IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 24289 of 2008 Between: Yerra Sri Ramulu, S/o. Gangayya, Ex. President, Bomminam Padu Post, Mudani Palli Mandal, Krishna District. ..... PETITIONER AND 1 The Deputy Registrar of Cooperative Societies, Gudiwada, Krishna District. 2 The Bomminampadu Primary Agriculture Cooperative Credit Society Limited, No. H. 1376, Mudani Palli Mandal, Krishna District, Rep. by its In-Charge, Secretary. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, Order or direction more particularly a Writ in the nature of Certiorari calling for the records leading upto passing the impugned Order of the 1st Respondent, Registrar of Cooperative Societies, Gudivada in his Proceedings Rc.No. 1987/2006C, Dt. 29-10- 2008 and set aside the same being without jurisdiction and authority of law and without observing the principlesof natural justice, arbitrary, illegal and unconstituional and pass Counsel for the Petitioner:MR.Y.SUBRAHMANYAM Counsel for the Respondent No.: GP FOR COOPERATION The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 24289 of 2008 Order: The present writ petition is filed aggrieved by the order passed by the Deputy Registrar of Cooperative Societies on 29.10.2008, wherein, on the basis of a surcharge order issued against the petitioner herein fixing joint liability along with the Ex-Secretary to a tune of Rs.2,60,000/-, being the amount received by the petitioner as advance on 28.05.2007, under Section 60(1) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short ‘the Act’), the Deputy Registrar had passed orders holding that the petitioner would cease to hold office as the President of the Bomminampadu Primary Agricultural Cooperative Credit Society Limited and that he was ineligible to be elected as member of the managing committee for a period of six years. Sri Y. Subrahmanyam, learned counsel for the petitioner, would submit that, against the surcharge order, the petitioner has preferred an appeal before the Cooperative Tribunal and that the said appeal is pending. Learned counsel is, however, not in a position to state as to whether any interim order was passed in the said appeal. Learned counsel would submit that de hors the order of surcharge passed under Section 60(1) of the Act, any action taken under Section 21-AA(2) of the Act, necessitates the petitioner being put on notice and being given an opportunity of being heard before the impugned action was taken. Learned counsel would refer to Rule 24 of the A.P. Cooperative Societies Rules, 1964 to contend that it is the General Body of the Society which alone can take a decision and that the Deputy Registrar has no authority to pass the orders under Section 21-AA(2) of the Act. Learned counsel would submit that failure on the part of the Deputy Registrar to issue a notice, and to give him an opportunity of being heard, was in violation of the principles of natural justice and that this Court in Awari Devanna, President, Primary Agrl.Co-op. Credit Society, Kammarpalli v. The Divisional Co-operative Officer, Nizamabad District[1], had faulted such action. Learned Government Pleader for Cooperation, on the other hand, would contend that against the impugned order passed by the Deputy Registrar of Cooperative Societies an appeal lies to the Cooperative Tribunal under Section 76 of the Act, without exhausting which the petitioner ought not to have invoked the jurisdiction of this Court under Article 226 of the Constitution of India. Learned Government Pleader would further contend that all these contentions now raised in the writ petition can as well be agitated before the Tribunal which can go into both facts and law. A copy of surcharge order dated 29.09.2008 has been placed on record. It is evident therefrom that a sum of Rs.2,60,000/- was paid to the petitioner on 28.05.2007. The surcharge order records that there was a voucher for the amount of Rs.2,60,000/- duly signed by the petitioner. The contention of the petitioner was that he had signed the voucher for receipt of honorarium to which the President was eligible but the Ex-secretary had utilized the said voucher and shown expenditure of Rs.2,60,000/- in order to reduce the cash balance. The petitioner claimed to have produced the letter signed by Sri B. Venkata Narayana, Ex-secretary admitting receipt of the amount. However his request to relieve him from the liability of Rs.2,60,000/-, based on the letter issued by the Ex-secretary, was not accepted by the Deputy Registrar in the surcharge order since loss of Rs.2,60,000/- was caused and it was held that, unless the said amount was paid by the Ex-Secretary, the petitioner could not be relieved of his liability. The Deputy Registrar observed that the petitioner and B. Venkata Narayana, Ex-Secretary were jointly and severally liable to make good the amount of Rs.2,60,000/- together with interest at 18% from the date of occurrence till the amount was realized to the assets of the society. The contentions that it is the General Body which has the power, and not the Deputy Registrar, and that the petitioner should have been put on notice before action was taken, despite an earlier order of surcharge having been passed, are all matters which the petitioner can as well agitate before the Cooperative Tribunal. In Awari Devanna’s Case (1 supra), relied on by the petitioner, it is no doubt true that this Court observed that an order passed under Section 21-AA(4) of the Act was required to be passed after putting the petitioner on notice. In the case on hand, however, there is an order of surcharge, wherein the petitioner has been held jointly liable for repayment of a sum of Rs.2,60,000/- with interest at 18% p.a. from the date of occurrence till realization. The question whether, in the light of such a surcharge order, an independent order can be issued to the petitioner without putting him on notice all over again, is a matter which is required to be considered. This question did not arise for consideration in Awari Devanna’s Case (1 supra). Since all these questions, raised in the present writ petition, can as well be agitated before the Cooperative Tribunal, I see no reason to exercise discretion to entertain the writ petition. It needs no reiteration that the jurisdiction to be exercised by this Court under Article 226 of the Constitution of India is discretionary and, since a surcharge order has been passed wherein the petitioner has been held jointly liable to pay Rs.2,60,000/- (which amount he is said to have drawn from the society funds), I see no reason to exercise discretion to entertain the writ petition, more so as all these questions can be decided by a fact finding Tribunal. Leaving it open to the petitioner to avail the remedy under Section 76 of the Act, the writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. __________________________ RAMESH RANGANATHAN, J. Date: 25.11.2008 Nsr [1] 1994 (1) ALT 363