THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.12018 of 2001 ORDER: The deceased-1st petitioner functioned as President of the Arunjyothi Harijana and Weaker Sections Cooperative Housing Society Limited, Kavadiguda, Secunderabad (for short ‘the Society’), the 2nd respondent, between 1982 and 1989. An enquiry was held into the affairs of the Society for that period under Section 51 of the A.P. Cooperative Societies Act, 1964 (for short ‘the Act’). On the basis of a report, dated 12.03.1991, a show cause notice under Section 60(1) of the Act was issued to the petitioner, requiring him to remit a sum of Rs.60,000/-, on the ground that he was responsible for the loss, incurred by the society to that extent. On a consideration of the explanation submitted by the 1st petitioner, the 1st respondent passed an order, dated 08.08.1995, directing recovery of a sum of Rs.81,649/-. C.T.A.No.180 of 1995 was filed before the Cooperative Tribunal, Hyderabad. The appeal was allowed, on 17.02.1997, and the order passed by the 1st respondent on 08.08.1995 was set aside, on the ground that the 1st petitioner has not given adequate opportunity to cross-examine the witnesses to adduce rebuttal evidence. The matter was remanded to the 1st respondent. After remand, the 1st respondent passed an order, dated 01.03.1998, holding that the 1st petitioner is liable to pay the amount mentioned in the show cause notice. The same is challenged in this Writ Petition. During the pendency of the writ petition, the 1st petitioner died and his legal representatives have come on record as petitioners 2 to 7. The petitioners contend that the Society is not at all in existence and that the order was passed mechanically by the 1st respondent. It is also stated that the allegation was about the defect as to title to the property purchased by the Society, and that the amount was stipulated without there being any basis. On behalf of the 1st respondent, he filed a counter-affidavit denying the allegations. It is stated that in the enquiry under Section 51 of the Act, every aspect was dealt with in detail, and during the course of surcharge proceedings, under Section 60 of the Act, adequate opportunity was given to the 1st petitioner. Heard learned counsel for the petitioners, learned Government Pleader for Cooperation and learned counsel for the 2nd respondent. The surcharge proceedings were initiated, against the 1st petitioner, on the basis of a report submitted under Section 51 of the Act. Initially, an order of surcharge was passed on 08.08.1995 by the 1st respondent. That was set aside by the Tribunal through its order, dated 17.02.1997 in C.T.A.No.180 of 1995, on the sole ground that the 1st petitioner was not given adequate opportunity, and the matter was remanded. After remand, the notices were served upon the 1st petitioner, more than once. It is argued that the show cause notice was issued by one incumbent and the order was passed by another. That, however, is not true. In response to the show cause notice, the 1st petitioner submitted written explanation. The subsequent incumbent not only took that representation into account, but also gave opportunity to the 1st petitioner afresh. The surcharge order passed thereafter was challenged in C.T.A.No.83 of 1998. The Tribunal undertook extensive discussion and found that the 1st petitioner was given adequate opportunity. The finding reads as under: “From the above, we are of the opinion that the appellant has never been denied of the opportunity of being heard and the 1st respondent after thoroughly going through the record, depositions of the Managing Committee and the appellant, has passed the surcharge order, dated 01.03.1998.” The Tribunal did not stop at that. It proceeded to examine the matter on merits. A clear and specific finding was recorded to the effect that the 1st petitioner was responsible for the loss incurred by the society and its members. This Court is not inclined to take a different view. One aspect, however, becomes important. If for any reason, the 2nd respondent is not functioning, the petitioners cannot be mulcted with the liability to pay the surcharge amount. If it is found that it is functioning, the legal representatives of the erstwhile President have to be made to shoulder the responsibility. The payment of balance of surcharge amount would itself be a burden to them. They cannot be mulcted the liability to pay the interest. Hence, the Writ Petition is disposed of, directing that, a) the 1st respondent shall verify as to whether the 2nd respondent-Society is in existence and is functioning in accordance with law; b) if it is found that the Society is in existence, he shall intimate to petitioners 2 to 7, within six weeks from the date of receipt of a copy of this order, about the surcharge amount due from the 1st petitioner together with particulars; and c) petitioners 2 to 7 shall pay the amount within two months from the date of receiving communication, if any, from the 1st respondent. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.11.06.2010. GJ