IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos:2639 and 3781 of 2005 WRIT PETITION NO:2639 of 2005 Between: Sanga Mitra Co-Operative Building Society Limited, No.G-2778, Vijayawada, rep.by its person-incharge, M.B.T.Sundari Devi, W/o G.Sunil Kumar , Hindu, aged abour 34years, Assistant Registrar/Housing II, O/o the Divisional Co-Operative office AMC Complex, IInd Floor, Governorpet, Vijayawada. ..... PETITIONER AND 1 The Deputy Registrar of Cooperative Societies, Vijayawada, AMC. Complex, Governorpet, Vijayawada-520 002 2 Potluri Babu Rao S/o Late Potluri Soma Brahmaiah R/o 29-23-27, Tadepallivari Street, Suryaraopet, Vijayawada-520 002. .....RESPONDENTS Counsel for the Petitioner:MR.P.R.PRASAD Counsel for Respondent No.1: GP FOR COOPERATION Counsel for Respondent No.2: MR. SRINIVAS POLAVARAPU WRIT PETITION NO:3781 of 2005 Between: Sanga Mitra Co-operative Building Society Limited, No. G-2778, Vijayawada, Rep. by its Person-In-Charge, M.B.T. Sundari Devi, W/o. G. Sunil Kumar, Hindu, Aged about 34 Years, Assistangt Registrar/ Housing II, O/o. the Divisional Co-operative Officer, AMC Complex, IInd Floor, Governorpet, Vijayawada. ..... PETITIONER AND 1 The Deputy Registrar of Cooperative Societies, Vijayawada A.M.C. Complex, Governorpet, Vijayawada - 520 002. 2 Potlluri Babu Rao, S/o. Late Potluri soma Brahmaiah, R/o. 29-23-27, Tadepallivari Street, Suryaraopet, Vijayawada - 520 002. .....RESPONDENTS Counsel for the Petitioner:MR.P.R.PRASAD Counsel for Respondent No.1: GP FOR COOPERATION Counsel for Respondent No.2: MR. SRINIVAS POLAVARAPU The Court made the following : COMMON ORDER: Since the issues raised in these two writ petitions are inter-related, they are heard together and being disposed of by this common order. WP.Nos.2639 and 3781 of 2005 are ﬁled for a writ of mandamus to set aside common order, dated 07.01.2005 passed in O.A.Nos.28 and 122 of 2003 on the ﬁle of the Andhra Pradesh Cooperative Tribunal, Vijayawada (for short ‘the Tribunal’) respectively, whereby the Tribunal set aside the notice issued in Form No.9 in order to execute the order passed by respondent No.1 under Section 60(1) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short ‘the Act’). The facts in a nutshell are that at the relevant time, respondent No.2 was the President of the petitioner society. The District Cooperative Oﬃcer, Krishna, Machilipatnam vide his proceedings, dated 25.09.1993 ordered statutory enquiry under Section 51 of the Act authorizing the Cooperative Sub-Registrar (Housing II), Vijayawada. After recording the oral evidence and perusing the records, the Enquiry Oﬃcer submitted his report on 30.12.1993. Based on the said report, respondent No.1 initiated proceedings under Section 60(1) of the Act by issuing notice, dated 16.05.1994 to respondent No.2. On the ground that respondent No.2 failed to ﬁle his explanation and participate in the surcharge proceedings, respondent No.1 passed order, dated 07.07.1994 holding that respondent No.2 is liable to pay certain amounts. The said order was questioned before the Tribunal in appeal, which was registered as O.A.No.257 of 1994. By it’s order, dated 28.04.2000, the Tribunal allowed the said appeal on the short ground that respondent No.2 was not aﬀorded a reasonable opportunity of hearing before respondent No.1 before passing the surcharge order, set aside the same and remanded the case to respondent No.1 with the following directions: “i) In the event, the delinquent ﬁles his reply statement on 05.06.2000, after perusing the statement, the lower Court has to frame necessary points or issues for adjudication. ii) Then the lower authority has to ﬁx a date for taking evidence on the side of the enquiry oﬃcer or inspecting oﬃcer. The lower Court authority has to take evidence of the persons connected with the enquiry report or inspecting report including the evidence of the Enquiry Oﬃcer/Inspection Oﬃcer and the lower authority has to make documents on behalf of the Enquiry Oﬃcer as Ex.A.1 and Ex.A.2 etc. At the time of taking evidence, the lower authority has to give opportunity to the delinquent to cross-examine the witnesses. iii) After taking down the evidence on the side of the Enquiry Oﬃcer or Inspection Oﬃcer, the lower Court has to ask the delinquent to adduce his evidence oral and documentary and has to take down the evidence adduced by the delinquent by giving opportunity to the Enquiry Oﬃcer or Inspecting Oﬃcer to cross examine the delinquent and his witnesses. The exhibits produced by the delinquent may be marked as Ex.B.1 and Ex.B.2 etc., iv) After evidence is over the lower court/authority has to ﬁx a date of hearing both sides. After hearing both sides, the lower authority has to pass a reasoned order under Section 60(1) of the A.P.C.S.Act.” After remand, respondent No.2 did not appear before respondent No.1 on 05.06.2000, as directed by the Tribunal, or on any other subsequent date. Respondent No.1, therefore, passed order, dated 19.03.2001 on the basis of the record wherein he held that respondent No.2 is liable to pay the amounts of Rs.3,66,600/- and Rs.3,87,000/- along with interest @ 18% per annum with eﬀect from 23.08.1982 and 07.07.1994 respectively, to the petitioner society. The said order was assailed by respondent No.2 before the Tribunal in O.A.No.28 of 2003. As notice was issued by respondent No.1 for recovery of the said amount, respondent No.2 ﬁled O.A.No.122 of 2003 questioning the same. Both the said O.As were heard together and by common order, dated 07.01.2005, the Tribunal allowed both the O.As. The said order is questioned in the present writ petitions. Sri P.R.Prasad, learned counsel for the petitioner society submitted that admittedly, respondent No.2 failed to appear before respondent No.1 as directed by the Tribunal in O.A.No.257 of 1994. He further submitted that respondent No.2 also failed to ﬁle his explanation to the surcharge notice and that in the absence of respondent No.2 denying the liability and participating in the proceedings initiated by respondent No.1, the latter passed order on the basis of the available record. He also submitted that the Tribunal committed a serious error in interfering with the order passed by respondent No.1 on the ground that no independent enquiry was held by respondent No.1. Opposing these contentions, Sri Srinivas Polavarapu appearing for respondent No.2 submitted that the order passed by respondent No.1 was in violation of principles of natural justice. He relied on a judgment of this Court in Lankala Koderu Cooperative Rural Bank Limited, Palacol Mandal, West Godavari District v. Ungarala Pullaiah Naidu and another[1], to contend that the enquiry under Section 51 of the Act and the report submitted by the Enquiry Oﬃcer are administrative in nature and that the Registrar should hold an independent enquiry before passing the order under Section 60(1) of the Act. He also relied on the judgments of the Supreme Court in BALRAJ TANEJA AND ANOTHER v. SUNIL MADAN AND ANOTHER[2] a n d RAMESHCHAND ARDAWATIYA v. ANIL PANJWANI [3] and contended that even if respondent No.2 has not appeared, it is incumbent upon respondent No.1 to record the evidence of the witnesses including the Enquiry Oﬃcer and give ﬁndings on such evidence. I have carefully considered the submissions of the learned counsel for the parties. As regards the contention relating to violation of principles of natural justice by respondent No.1, as could be seen from the above reproduced portion of the order passed by the Tribunal in O.A.No.257 of 1994, respondent No.2 was directed to appear before respondent No.1 on a particular date. Admittedly, he did not appear on that day or any other subsequent date or dates to which respondent No.1 posted the case for enquiry. Having not appeared, respondent No.2 has come out with the version that he was not well. He not only failed to appear, but also failed to ﬁle his explanation. He has not raised the bogie of ill health for the ﬁrst time. Even on the earlier occasion also, on the same ground, he questioned the surcharge order passed by respondent No.1 successfully and the Tribunal after setting aside the said order, remanded the case for fresh consideration. His conduct, in my view, suggests that the plea of illness was invented by him only for the purpose of avoiding enquiry before respondent No.1. As regards the contention of the learned counsel for respondent No.2 that respondent No.1 failed to hold an independent enquiry, I have carefully perused the order passed by respondent No.1. In his order, respondent No.1 took note of the depositions of respondent No.2 recorded by the enquiry oﬃcer in the statutory enquiry and also of the persons from whom respondent No.2 collected the amounts and considered the fact that in his deposition, respondent No.2 admitted that he purchased Acs.3.14 cents of land in the name of the petitioner society @ Rs.40,000/- per acre, executed ﬁve sale deeds for Ac.0.30 cents each in favour of ﬁve persons styled as group leaders and collected Rs.5,12,600/- towards site advance. Respondent No.1 stated in his order that respondent No.2 deposed that out of the said sum of Rs.5,12,600/-, he collected Rs.3,73,000/- in his personal capacity as a professional trader under agreements entered with the members and that the said amount belongs to him. He also deposed that in respect of another group of 18 members, he sold a part of the land out of Acs.3.14 cents belonging to the society at Rs.105/- per sq.yard working out to Rs.4,57,380/- and collected an advance sum of Rs.3,07,600/- and that only a sum of Rs.90,000/- was credited to the petitioner-society. He claimed that the balance sum of Rs.2,17,600/- was received by him in his personal capacity and status. Respondent No.1 also considered the depositions of all the members of the society, from whom respondent No.2 collected the amounts, who stated that respondent No.2 entered into agreements with them in his capacity as President of the society and not in his personal capacity. The order of respondent No.1 therefore, made it abundantly clear that in the absence of any explanation ﬁled by respondent No.2 to the show cause notice issued in the surcharge proceedings, he relied on the depositions of respondent No.2 and also the members of the society, who are involved in the transactions in respect of which enquiry was held and surcharge order was passed. The petitioner society ﬁled a copy of the deposition of respondent No.2. I have carefully gone through the said deposition, which clearly shows that he has admitted the fact that an extent of Acs.3.14 cents of land was registered in the name of the petitioner society and the above mentioned amounts were collected by him from 28 members and 18 members respectively only towards the sale transaction relating to the said land. In the face of this admission, his further stand that a part of the amount collected from the members of the petitioner society towards the sale of the said land personally belongs to him can by no stretch of imagination be accepted. As far as the judgment of this Court in Lankala Koderu Cooperative Rural Bank Limited’s case (1 supra), there cannot be any dispute about the legal proposition that enquiry under Section 51 of the Act is administrative in nature. In the said case, the person against whom surcharge proceedings were initiated ﬁled his explanation denying the allegations, but without holding an enquiry, the Registrar merely basing on the enquiry report, passed the surcharge order. On the facts of this case, the said judgment is clearly distinguishable and will not be of any avail to the petitioner. With respect to the judgments of the Supreme Court in Balraj Taneja’s case and Rameshchand Ardawatiya’s case (2 and 3 supra), I have carefully gone through the same and I am of the view that they relate to suits and the ratio laid down by the Supreme Court in the said cases has no application to the proceedings under the Act. The learned counsel for respondent No.2 submitted that even if his client has not ﬁled his explanation, it is incumbent upon respondent No.1 to hold a formal enquiry by examining the enquiry oﬃcer and the other witnesses and marking the enquiry report. In my considered view, this contention is wholly meritless. When respondent No.2 has not disputed his liability mentioned in the show cause notice, in the absence of any speciﬁc procedure prescribed under the Act or the Rules made thereunder, there is no need for respondent No.1 to examine the witnesses as a condition precedent to dispose of the surcharge proceedings. Respondent No.1 has gone into the entire record relating to the statutory enquiry and he relied on respondent No.2’s own deposition apart from the other oral evidence of the members recorded in the enquiry in coming to the conclusion that respondent No.2 is liable to pay the amounts to the society. It is not as if respondent No.1 blindly relied on the report of the Enquiry Oﬃcer in ﬁxing the liability of respondent No.2. In this view of the matter, I do not ﬁnd any procedural illegality or irregularity in respondent No.1 passing the order under Section 60(1) of the Act. The Tribunal committed a serious jurisdictional error in interfering with the order passed by respondent No.1. For the above-mentioned reasons, the impugned common order is set aside and both the writ petitions are accordingly, allowed. C.V.NAGARJUNA REDDY, J 15th SEPTEMBER, 2008. Note: L.R.Copies to be marked. kvni [1] 2002(6) ALT 380 [2] AIR 1999 SC 3381 [3] AIR 2003 SC 2508