THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.5481 of 2009 Dated 12th November, 2009 Between :- Chinta Ratnam and others .. Petitioners And The District Cooperative Officer, Guntur and 4 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.5481 of 2009 ORDER:- Respondents 2, 3 and 5 filed W.V.M.P.No.2255/2009 to vacate the interim order. 2. This Court issued rule nisi on 18-8-2009 and in W.P.M.P.No.7167/2009 interim suspension had been granted. 3. Counter affidavit had been filed on behalf of 4th respondent as well. 4. Sri Rajnikanth Reddy, the learned Counsel representing Sri C.Raghu, the Counsel for writ petitioners would maintain that in the light of the orders made by this Court in W.P.No.19734/2008, dt.14-10- 2008, this Writ Petition also to be allowed. 5. The learned Assistant Government Pleader for Cooperation had taken this Court through the contents of the counter affidavit filed along with W.V.M.P.No.2255/2009 and made submissions. 6. Sri Chidambaram, the learned Counsel representing R.4 had taken this Court through the contents of the counter affidavit filed by R.4 and would maintain that in the light of the order made in W.P.No.19734/2008 similar order may be passed in this Writ Petition as well. 7. This writ petition is filed for a Writ of Mandamus declaring the action of the 5th respondent representing 4th respondent in expelling the petitioners from the 4th respondent Society vide proceedings Rc.No.184/2004, dt.30-5-2008 issued respectively to the petitioners as illegal, arbitrary, without jurisdiction and in violation of Section 21 of the A.P.Cooperative Societies Act, 1964 (hereinafter in short referred to as ‘the Act’ for the purposes of convenience) and set aside the same and pass such other suitable orders. 8. The petitioners are the members of the 4th respondent. The 4th respondent Society was incorporated with an objective to acquire various lands for cultivation purposes to the benefit of its members, undertake subsidiary occupation such as Dairying, Poultry Farming etc., and other allied activities. 9. Further the petitioners stated that bye-law No.5A specifically stipulates the eligibility of membership. Any person who has attained majority and is of sound mind and residing within the area of operation of the Society and being a landless poor person is eligible to become a member of the Society. The area of operation of the Society is confined as per bye-law No.1 to the extent of 8 KMs., radius in and around Daggumallivaripalem, Bapatla. It means only those persons who are residing within 8 KMs., of Daggumallivaripalem and who are also landless poor person are eligible to become members of the Society. No other person can become a member of the Society if he does not fulfil the aforesaid requirements. 10. It is also stated that the petitioners fulfil all the requirements to become the members of the 4th respondent Society and accordingly they were admitted as members of the 4th respondent Society and the General Body has approved by way of resolution. 11. Further it is stated that as per the provisions of the Act, Section 21(3) if any person who is not eligible for being admitted as a member has been admitted as a member or where the member who is disqualified to continue as such under sub-section (1) is continued as a member, he shall be removed by the General Body on its own motion or on a representation made to it by any member of a Society or its federal Society or its financial bank. The proviso of Section 21(3) contemplates that no member shall be removed unless he had an opportunity of making representation against the proposed action and a copy of the resolution removing him shall be communicated to such person and on such communication, he shall be deemed to have ceased to be member of the Society. 12. It is also further stated that Section 34 of the Act contemplates that if a person-in-charge is appointed, he would have only power to discharge the functions of a Society. A Committee is constituted under Section 31 of the Act by the General Body as per the bye-laws and entrust the management of the Society. Therefore any Committee would be subordinate to the General Body and the officer-in-charge or person-in-charge who is appointed superseding any Committee would also be subordinate to General Body. 13. Further it is stated that a perusal of Sections 21, 31 and 34 of the Act shows that the eligibility of a membership can be only decided by a General Body and the Representation of a member pursuant to any notice with regard to his disqualification should be considered only by a General Body and a resolution has to be passed. A Committee constituted under Section 31 nor any office-in-charge appointed under Section 34 does have any power to decide about the eligibility of a member. It is also stated that no notice had been issued to the petitioners and straight-away the impugned orders had been made. 14. It is also further stated that a perusal of the order that the 4th respondent had hastily passed the Orders. The Orders dt.30-5-2008 in case of all the petitioners are prototype Orders except in case of the petitioners to whom notices were issued it was stated that the explanation is not sufficient. No reasons have been assigned in the impugned orders as to how the admission of the petitioners as the members of the Society is illegal and as to how the resolution passed by the General Body approving the admission is illegal and in violation of the Act. 15. Further it is averred that the 5th respondent who is the person- incharge of the 4th respondent does not have any jurisdiction to pass an order under Section 21 of the Act. It is only the General Body which is competent to pass such Orders. The 5th respondent can only discharge the functions of a Managing Committee but not that of a General Body. Therefore the impugned orders passed removing the petitioners from the membership is without jurisdiction and contrary to the provisions of the Act. 16. Several further averments also had been made referring to different provisions of the Act and the identical proceeding which had been challenged and the Order made in W.P.No.19734/2008 also had been referred to. 17. In the counter affidavit filed by respondents 2, 3 and 5, several of the averments had been denied. It is averred that pursuant to the representations received from the members of the 4th respondent Society, the 2nd respondent directed the person-in-charge of the Society to remove the irregularly admitted members after examination of the records to proceed with conduct of Elections. Accordingly, notices were issued to 126 persons, out of which only 16 persons submitted their explanation. The others have not submitted any reply. After considering the explanation, the said 16 persons were removed along with 108 others who have not submitted explanation. The petitioners were removed as members of the Society as their admission is illegal. Further under Section 32(7)(ii) of the Act, the person-in-charge is empowered to exercise all or any of the functions of the Committee and also act according to the directions of the Registrar. Basing on the powers conferred, the 2nd respondent herein had given a direction to the 5th respondent herein to remove the petitioners herein after verification of records. In turn, the 5th respondent had given an opportunity to the petitioners herein and then only final Orders were passed. 18. Further it is averred that the person-in-charge to the 4th respondent Society was not appointed under Section 34 of the Act. He was appointed under Section 32(7)(a) of the Act. As per Section 32(7) (b) of the Act, the person-in-charge so appointed shall subject to the control of the Government or as the case may be, of the Registrar and subject to such instructions or directions as they may issue from time to time have power to exercise all or any of the fu8nctions of the Committee or any Office of the Society and to take all such actions as may be required in the interest of the Society. Therefore the contentions that person-in-charge is subordinate to General Body is not tenable. 19. It is also stated that the removal of the petitioners was not done by invoking provisions of the Sections 21, 31 and 34 of the Act. The 5th respondent was appointed under Section 32(7) of the Act and followed the directions of the Registrar as provided under the said Section. 20. It is further averred that the person-in-charge (the 5th respondent herein) issued notices to all the petitioners on 12-5-2008 specifically stating the reasons on which the removal of the petitioners was proposed. Thereafter proceedings Rc.No.184/2003 dt.30-5-2008 were issued. In the said proceedings also the reasons for removal were mentioned categorically. The contentions contra are untenable. The 5th respondent herein had given an opportunity to the petitioners to file their objections for the proposed action. Only 16 members preferred to submit their explanations. The explanations of these 16 members were examined before passing orders. The orders dt.30-5-2008 contain the reasons for their removal. The contents contra are untenable. 21. Further it is stated that the 5th respondent herein was appointed under Section 32(7)(a) of the Act. The person-in-charge so appointed shall subject to the control of the Government or as the case may be of the Registrar and subject to such instructions or directions as they may issued from time to time have power to exercise all or any functions of the Committee or any Officer of the Society and to take all such actions as may required in the interest of the Society. Hence, the 5th respondent herein followed the directions given by the Registrar and removed the petitioners by following due procedure. There is no illegality or procedural irregularity in passing the orders in question nor as it contrary to the provisions of the Act or Rules framed thereunder. 22. The relevant provisions of the Act also had been referred to. 23. The counter affidavit of R.4 also had been filed almost on similar lines. 24. The respective stands taken by the parties need not detain this Court any longer for the reason that when a similar proceeding had been challenged following the decision of the Apex Court, W.P.No.19734/2008 was allowed by this Court by order dt.14-10- 2008. 25. In the light of the said order, this Court also is inclined to make the following Order:- “The Writ Petition is accordingly allowed and the impugned proceedings issued against the petitioners are set aside. This order, however, would not preclude the competent authority – Managing Committee under the Act and the Rules made there-under to take necessary action vis-à-vis the petitioners. There shall be no order as to costs.” ______________________ Justice P.S. Narayana 12th November, 2009 smr