THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.27789 of 2009 9th February, 2010 Between :- Perupalem Toddy Tappers Cooperative Society, Rep. by its President – Guthula Tata Rao And others .. Petitioners And The Government of Andhra Pradesh Rep. by its Secretary, Cooperation Department, Secretariat, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.27789 of 2009 ORDER:- This Court order notice before admission on 31-12-2009 and further directed status quo to be maintained for a limited period which was further extended for a limited period. 2. Counter affidavit and reply affidavit also had been filed. 3. This Writ Petition is filed for a Writ of Mandamus declaring the action of the respondents 3 and 4 in initiating enquiry pursuant to the urgent notice dt.4-12-2009 issued by the Prohibition and Excise Inspector, Narasapur, West Godavari District, 3rd respondent herein as illegal, arbitrary, unreasonable, without jurisdiction, null and void and violative of Article 14 of the Constitution of India and opposed to the very spirit and object of the provisions of the Andhra Pradesh Cooperative Socities Act, 1964 and the Andhra Pradesh Cooperative Societies Rules, 1964 and pass such other suitable orders. 4. Sri A.V.Sesha Sai, the learned Counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the writ petition and would maintain that in the light of the impugned notice, it appears that the Prohibition and Excise Inspector, Narasapur, virtually intends to enquire into the validity or invalidity of the election which is an election dispute. The Counsel also would maintain that the said Prohibition and Excise Inspector is not competent to issue such notice at all. The learned Counsel also would further maintain that the stand taken in the counter affidavit that this enquiry is being conducted under Section 51 of the Andhra Pradesh Cooperative Societies Act, 1964 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) also cannot be sustained since even as per the delegation of powers, the Prohibition and Excise Superintendent being the Functional Registrar alone is entitled to exercise such power for other irregularities if any and unless there is a written order in this behalf as specified by Section 51 of the Act, such enquiry cannot be conducted by any other authority. 5. Per contra, the learned Assistant Government Pleader for Prohibition & Excise would maintain that the Functional Registrar, the Prohibition and Excise Superintendent made a written order in the light of the complaint made, authorizing the Prohibition and Excise Inspector, Narasapur to conduct an enquiry into the irregularities and in the light of the same, the present notice had been issued. The learned Assistant Government Pleader for Prohibition & Excise also would maintain that this notice is in no way concerned with the election dispute as such but about the other irregularities relating to which an enquiry can be conducted under Section 51 of the Act. The learned Assistant Government Pleader for Prohibition & Excise had taken this Court through the relevant portions of the counter affidavit and also placed the other records before this Court. 6. Heard the Counsel. 7. The President of the 1st petitioner – society had sworn to the affidavit filed in support of the writ petition. It is the case of the petitioners that the petitioner No.1 is a Toddy Tappers Cooperative Society registered under the provisions of the Act. It is stated that vide urgent circular Rc.No.1/2007/D C.S.I. dt.3-1-2007 the Prohibition and Excise Superintendent, 2nd respondent herein, directed the petitioners’ society to hold elections as per Rule 22(b) of the Andhra Pradesh Cooperative Societies Rules, 1964 and the bye laws by convening General Body Meeting. In terms of the said circular, as the term of the earlier Committee was coming to an end, they convened a general body meeting on 11-3-2008 and elected the petitioners initially as Directors unanimously and subsequently elected petitioners 2 to 4 as the President, Vice President and Secretary of the petitioner society and the petitioners 5 and 6 as Directors of the society. Ever since the date of election, the petitioner have been functioning as the members of the Managing Committee of the 1st petitioner society strictly adhering to the Act and the Rules framed thereunder without any remarks and blemish whatsoever from any quarter. It is also stated that as per the above mentioned circular dt.3-1-2007 they also sent the report on the elections. 8. Further it is averred that while the things stood thus, to their utter surprise and dismay, the Prohibition and Excise Inspector, Narsapur, West Godavari District – 3rd respondent herein issued an urgent notice dt.4-12-2009 saying that the society submitted a resolution to the effect that the elections to the society were conducted and in the said notice the 3rd respondent further informed that enquiry would be conducted on 11-12-2009 at 11.00 a.m. by the Cooperative Senior Inspector, Eluru – 4th respondent herein and the 3rd respondent also asked the petitioner to appear with the records of the society in the Narsapur Prohibition and Excise Station. The petitioners herein came to know that the said action had been resorted to by the authorities basing on the complaints of certain individuals, who are not interested in continuation of the petitioners as Office-bearers and when they asked the respondent authorities to disclose their names, the authorities refused to disclose the same. In such circumstances, the writ petitioners approached this Court by filing the present Writ Petition. 9. In the Counter affidavit filed by the 2nd respondent, it is stated that the petitioner No.1 is a registered society under the provisions of the Act. The other allegations made in para 3 of the affidavit are not within the knowledge of this respondent as the petitioners never informed about convening a General Body Meeting and electing the petitioners as Office-bearers in the General Body Meeting held on 11- 3-2008 and the petitioners are put to strict proof of those allegations. 10. Further it is stated that the 3rd respondent issued an urgent notice dt.4-12-2009 requesting the 2nd petitioner to produce the records on 11-12-2009 before the Prohibition and Excise Station, Narsapur, pertaining to 1st petitioner society such as Minutes Book, Admission Register, Bye-laws of the society, cash Register prior to 1- 3-2009 and Receipt Book prior to 1-3-2009. 11. Further it is also stated that 46 members of the 1st petitioner society made a representation dt.19-10-2009 to this respondent complaining that elections to the 1st petitioner society were held on 5- 10-2002 as per the High Court orders, wherein the 2nd petitioner was elected as President and though his term of 5 years is completed is continuing as President and acting against the interest of the members of the society and did not convene either Committee Meeting or General Body Meeting. It was also further alleged in the said representation that no auditing was done and he is not disclosing any information about the affairs of the society and that he is selling the trees to the members of other societies and requested to conduct elections and constitute a managing Committee to deal with the affairs of the society. It is also stated that after coming to know that members of the society made a representation to this respondent, this respondent sent the resolution dt.1-3-2008 to the Prohibition and Excise Inspector, Narsapuram informing that a General Body was convened on 1-3-2008 and petitioners 2 to 6 were elected as office- bearers of the Managing Committee. Further it is stated that in response to the said information furnished by this respondent, the 3rd respondent issued urgent notice dt.4-12-2009 directing the 2nd respondent to produce the record on 11-12-2009 before the Prohibition and Excise Inspector, Narsapuram to verify the affairs of the society. 12. Further it is averred that the 3rd respondent requested this respondent to depute the Cooperative Senior Inspector -4th respondent for enquiry as certain issues with regard to the Act are involved. It is also stated that this respondent requested the 4th respondent herein through Rc.No.238/2009/D, dt.7-11-2009 to visit Perupalem and conduct enquiry along with the Station House Office, Narasapuram and to submit the enquiry report. 13. Section 51 of the Act reads as hereunder:- Inquiry:- The Registrar, may of his own motion and shall, on the application of a society to which the society concerned is affiliated, or of not less than one third of the members of the Committee, or of not less than one fifth of the total number of members of the society, hold an inquiry into the constitution, working and financial condition of a society. Such inquiry shall be completed within a period of four months and the report of inquiry along with the findings of the Registrar thereon shall be communicated to the managing Committee of the society. It shall be the responsibility of the managing Committee to place the inquiry report before the General Body or Special General Body convened for the purpose for its information, within a period of one month from the communication of the inquiry report by the Registrar. The Registrar shall be competent to initiate action under the provisions of this Act, if the Committee fails to take action as aforesaid: Provided that notwithstanding anything contained in this Act and the Rules made thereunder, the bye laws of a society and the action of the society in placing the inquiry report along with the findings of the Registrar, the Registrar shall not be precluded from taking follow up action as may be required on the basis of inquiry report: Provided further that such action shall not be nullified even if the General Body of the society passes a resolution negativing the findings of the inquiry: Provided also that the Registrar may for reasons to be recorded in writing extend the period of four months for completion of inquiry for a further period not exceeding two months. Explanation:- For the purposes of this Section, “Managing Committee” includes a Committee constituted under Section 31(1)(a), and a person-in-charge appointed under Section 32(7)(a) and also a special officer appointed under Section 34 of the Act.” 14. Further it is averred that majority members of the 1st petitioner society put in a representation to this respondent making various allegations about petitioner No.2 and the affairs of the society and requested to conduct elections as the 2nd petitioner continued to be the President of the 1st petitioner society even after expiry of his term of Office of 5 years. It is stated that though according to the petitioners, the election was held on 1-3-2008 and the Minutes of the election was sent to the 3rd respondent only after coming to know that majority of the members of the society made a representation to this respondent complaining about 2nd petitioner. Further it is stated that after receipt of the representation dt.19-10-2009 from majority of the members of the 1st petitioner society, this respondent being the Registrar ordered for enquiry into the constitution, working and financial condition of the 1st petitioner society by invoking Section 51 of the Act. 15. Further specific stand had been taken that the 2nd respondent by invoking powers under Section 51 of the Act directed respondents 3 and 4 to conduct an enquiry an to submit report and hence the said action cannot be found fault and the Writ Petition to be dismissed. 16. In the reply affidavit filed, the stand taken in the affidavit filed in support of the writ petition had been reiterated and specific stand had been taken that the impugned proceedings do not reflect an inquiry under Section 51 of the Act and under the guise of conducting an inquiry under Section 51 of the Act, these authorities cannot adjudicate upon any election dispute. 17. Section 51 of the Act already had been referred to above and Rc.No.238/2009/D, dt.23-10-2009 of the Prohibition and Excise Superintendent, Bhimavaram, West Godavari District had been placed before this Court. It appears a written order had been made in this regard. Reliance also was placed on G.O.Ms.No.39, Food & Agriculture (Co-Op.IV), Department, dt.3-4-79, wherein the delegation of powers to Excise Superintendent had been dealt with. In B.NARAYANA v. DIRECTOR OF SUGAR[1] while dealing with an enquiry under Section 51 of the Act into constitution, working and financial condition of society, it was held that there was no prohibition from Registrar appointing one person after another to conduct enquiry. 18. No doubt several reasons had been supplemented in the counter affidavit but however the language employed in the notice as such is not satisfactory. There cannot be any doubt or controversy that as far as election dispute is concerned, such dispute may have to be decided in accordance with Section 61(3) of the Act. It is no doubt true that the Functional Registrar, the Prohibition and Excise Superintendent, by virtue of the delegation, is entitled to conduct enquiry into certain allegations and may be by a written order authorize such other authority to conduct an enquiry into such allegations. No doubt, certain submissions were made that the Prohibition and Excise Superintendent being a Functional Registrar by virtue of delegation cannot further delegate. However, the language of the provision is clear that by virtue of a written order, such enquiry can be conducted through yet another authority as well. This aspect need not be dealt with any further for the reason that this Court is thoroughly satisfied that the notice issued in this regard being totally unsatisfactory, the same is hereby set aside. But however, liberty is given to the respondents to issue appropriate notice in accordance with law in the light of the complaint already received in this regard if they are so advised. 19. With the aforesaid liberty and subject to the aforesaid liberty, the Writ Petition is hereby allowed to the extent indicated above. No order as to costs. ____________________ Justice P.S.Narayana 9th February, 2010 smr [1] AIR 1977 A.P. 307