JUDGMENT 1. This writ petition was filed by 19 writ petitioners, challenging their removal from the membership of the second respondent – The Fishermen Co-operative Society as contrary to the provisions of A.P. Co-operative Societies Act, 1964 (for short ‘the Act’), and particularly, Sections 21(1)(g) and 21(c) of the Act read with Rule 20 of the Rules made under the Act. 2. It is the case of the petitioners that the second respondent-Society removed all the petitioners from the primary membership of the Society by passing a resolution in the general body meeting held on 10.10.2007. Subsequently, in the month of November, 2007, the Society through its President communicated the said decision to the petitioners individually and also to the first respondent-The Assistant Director of Fisheries, Fisheries Department, Anantapur, by a letter dated 12.12.2007, informing him that the share capital sent through the money order was refused by the petitioners and the same was credited to the Society account. It is their further case that in the communication sent to the first respondent, it was stated by the Society that since the petitioners did not question their removal even after lapse of two months after receipt of notice, they are communicating to the first respondent. The correspondence shows that no notice was issued before passing the resolution dated 10.10.2007. As per the provisions of Section 21(3) of the Act, an opportunity must be given to the members of the Society and since no notice was issued before the general body resolution dated 10.10.2007, the petitioners approached the A.P. Co-operative Tribunal at Hyderabad in C.T.A.No.105 of 2008 in May, 2008 and the resolution was suspended in I.A.No.450 of 2008 on 06.06.2008. Ultimately, the said C.T.A was dismissed on 03.10.2008 on erroneous grounds. It is the case of the petitioners that the observations made by the Tribunal in its order dated 03.10.2008 while upholding the action of their removal as members are unsustainable in law. As per Section 21(1)(g) of the Act, the petitioners should have failed to attend two consecutive general body meetings in two years without leave of their absence. In the absence of such failure, the petitioners cannot be removed from the membership of the Society. As per Section 21(1)(g) of the Act, the petitioners should have failed to attend two consecutive general body meetings in two years without leave of their absence. In the absence of such failure, the petitioners cannot be removed from the membership of the Society. Even as per Rule 20 of the Act, the Registrar shall give an opportunity before the proposed action of removal of members from the primary membership of the Society and the Tribunal failed to consider these provisions and hence, the resolution of the general body dated 10.10.2007 and the order of the Tribunal dated 30.10.2008 are unsustainable in law. 3. The second respondent filed its counter admitting the removal of the petitioners from the primary membership of the Society in the general body meeting held on 10.10.2007 on the ground that the petitioners had failed to attend two consecutive general body meetings in two years without leave of absence and the petitioners have become disqualified to continue as members of the second respondent-Society and also on the ground that the petitioners were acting detrimental to the interest of the Society and its members and they have become disqualified as members of the Society by virtue of Section 21(1)(g) of the Act. In order to protect the interest of the Society, a notice of intention to remove the petitioners was sent to the petitioners by certificate of posting requesting for their explanation and hence the contention of the petitioners that no notice was issued is baseless. The petitioners instead of submitting their explanation had made a representation to the District Collector making certain serious allegations of embezzlement of the Society funds by the President of the Society. The District Collector forwarded the said representation to the first respondent and a detailed enquiry was conducted by the first respondent by appointing the Fisheries Development Officer as the enquiry officer. The enquiry report reveals that the petitioners are not interested in involving in the Society activities by attending the general body meetings and keeping in view of the absence of the petitioners, the general body has passed a resolution for removal of the petitioners from the membership of the Society. The enquiry report reveals that the petitioners are not interested in involving in the Society activities by attending the general body meetings and keeping in view of the absence of the petitioners, the general body has passed a resolution for removal of the petitioners from the membership of the Society. The counter states that the resolution dated 10.10.2007 only indicated the reason for removal of the petitioners as members and authorized the President of the Society to take necessary action/steps against the petitioners and the terminology used in the said resolution dated 10.10.2007 cannot be construed as a final order. It is the case of the Society that the Society acted strictly in compliance with the proviso to Section 21(3) of the Act and hence the order of the A.P. Co-operative Tribunal is correct. 4. An additional counter was also filed on behalf of the second respondent subsequent to the election of a new President in the elections held on 22.12.2008. The filing of additional counter affidavit was justified on the ground that the earlier counter affidavit was filed by the then President and the record was with the then President and all the facts could not be brought to the notice of this Court. It is stated that it is a custom in and around the area of Anantapur District to serve notice through a messenger and accordingly on 23.09.2007, the notice of agenda was handed over to the messenger by name Sri Chinna Rajanna with instructions to give notice of the proposed meeting on 10.10.2007 by explaining the reason for convening the general body meeting to each and every member of the Society as on that date and accordingly the information was sent to all the members. The information was thus communicated to all the members and the copy of the notice was handed over to the then President on 4.10.2007 by the messenger after service and an affidavit of the said messenger is filed in this Court. Certain other facts that had happened subsequent to the interim order passed by this Court are also narrated in the said additional affidavit and they are not relevant for the purpose of disposal of the present writ petition. 5. Certain other facts that had happened subsequent to the interim order passed by this Court are also narrated in the said additional affidavit and they are not relevant for the purpose of disposal of the present writ petition. 5. A reply affidavit was filed on behalf of the petitioners stating that the crucial issue involved in the writ petition is whether any prior notice was issued to the petitioners before they were removed from the primary membership of the second respondent-Society before the resolution of the second respondent-Society in the general body meeting on 10-10-2007 and whether the petitioners were removed by virtue of the resolution dated 10.10.2007 of the second respondent-Society or through the communication dated 12.12.2007 addressed by second respondent to the first respondent. It is the case of the petitioners in the reply affidavit that the Society advanced different versions stating at one point of time that the resolution dated 10.10.2007 is only a proposal to remove the members from the primary membership and the actual removal took place on 12.12.2007 and that version was changed by concocting a letter dated 23.09.2007, which was not at all referred or filed before the Co-operative Tribunal in C.T.A. No.105 of 2008, and stating that the petitioners were removed from membership on 10-10-2007 by issuing prior notice. It is the case of the petitioners that no such notice dated 23.09.2007 was issued before the meeting of the general body held on 10.10.2007. As per the bye-laws of the Society, notice must be served through certificate of posting or by personal acknowledgment and when the removal was communicated by certificate of posting, it cannot be contended by the second respondent-Society that the notice of general body meeting to be held on 10.10.2007 was communicated by oral information through a messenger even without obtaining an acknowledgment. 6. Heard the learned Counsel for petitioners and the learned Counsel for respondents 1 and 2. 7. In order to appreciate the rival contentions, it is necessary to go through the admitted facts available from the record. 8. 6. Heard the learned Counsel for petitioners and the learned Counsel for respondents 1 and 2. 7. In order to appreciate the rival contentions, it is necessary to go through the admitted facts available from the record. 8. The crucial document is the notice dated 23.09.2007 informing the members of the proposed general body meeting to be held on 10.10.2007 alleged to have been sent through a messenger and the agenda for the same was mentioned as follows:- (i) The removal of 19 members who were not participating in the activities of the Society and were obstructing the development of the Society. (ii) Giving power to the President of the Society for removal of the 19 members. Items 3 and 4 are not relevant for the purpose of the present Writ Petition. The next document is the resolution dated 10.10.2007. The resolution states that out of total 127 members, 96 members had attended and they unanimously resolved to remove 18 members and authorised the President to take action for removal of the said members from the membership of the Society. The next document is a communication dated 12.12.2007 addressed to the first respondent. In the said communication, the President of the Society informed the first respondent that as per resolution dated 10.10.2007, 17 members in the said communication were removed from the membership of the Society as they were not participating in the general body meetings of the Society, they were obstructing the development of the Society and there was no response from them to the notice informing them of their removal from the membership of the Society. It was also stated in the said communication that the share capital and the notice sent to them were refused. It is pertinent to notice that the resolution dated 10.10.2007 mentions the names of 18 members as removed, whereas the communication addressed to the first respondent dated 12.12.2007 mentions the names of 17 members. Now, 19 members have approached this Court challenging their removal from the membership of the Society. Though the communication dated 12.12.2007 to the first respondent mentions with regard to the notice issued to the removed members, no date on which such notice was sent was indicated. However, some of the petitioners in their representation dated 29.10.2007 addressed to the District Collector, admitted the receipt of a notice of removal of 19 members from the Society by post. 9. However, some of the petitioners in their representation dated 29.10.2007 addressed to the District Collector, admitted the receipt of a notice of removal of 19 members from the Society by post. 9. Before the A.P. Co-operative Tribunal, the first respondent herein filed a counter affidavit stating that a show cause notice dated 22.10.2007 was issued in pursuance of the resolution of general body dated 10.10.2007, seeking objections from the members proposed to be removed against their removal and the members have not filed their objections. Accordingly, they were removed from the membership of the Society on 12.12.2007 on the ground that they failed to attend more than two consecutive general body meetings and failed to submit their objections to the show cause notice dated 22.10.2007. It is the case of the first respondent that the order of removal is dated 12.12.2007, but not 10.10.2007 and the removal is in respect of 17 members and since no show cause notice was sent to the 8th petitioner/appellant, he cannot be held to have been removed from membership despite resolution dated 10.10.2007. 10. The Judgment of the Tribunal in C.T.A.No.105 of 2008 dated 3.10.2008, indicates 19 members have filed an appeal before the Tribunal. The Tribunal in para 7 of the Judgment, while repelling the contention of the appellants before it that resolution dated 10.10.2007 never indicated the reasons for the removal of the appellants from the membership opined that the resolution passed by the general body is self-explanatory and it was specific that the removal was based on the ground that the appellants did not attend the general body meetings and acted against the interest of the Society. However, in para No.11, it observed that the actual removal took place on 12.12.2007. The Tribunal in its Judgment extracted Section 21(1)(g) of the Act and held that the letter addressed by the Fisheries Development Officer clearly indicates that the general body minutes book shows that the appellants were not regular in attending the general body meeting and the Society was right in ordering for the removal of the appellants as its members. The Tribunal in its Judgment extracted Section 21(1)(g) of the Act and held that the letter addressed by the Fisheries Development Officer clearly indicates that the general body minutes book shows that the appellants were not regular in attending the general body meeting and the Society was right in ordering for the removal of the appellants as its members. The Tribunal after examining Section 21(2) of the Act, which says that the copy of the resolution removing the member shall be communicated to such person and on such communication he shall be deemed to have ceased to be the member of the Society, held that since the letter dated 29.10.2007 addressed by some of the removed members to the District Collector indicated receipt of some communication, there is no basis for complaining that the mandatory proviso to Section 21(2) was not complied with. The Tribunal held that the general body resolution was passed on 10.10.2007 and the actual removal of membership took place by orders dated 12.12.2007 and since the appellants failed to produce any record to show that they were regular in attending the general body meetings, the action of the Society was correct. 11. A perusal of the above facts indicate that action of removal was taken by the Society against the aggrieved members on the following grounds:- (i) That they were not regular in attending the meetings of the general body. (ii) They were acting detrimental to the interest of the Society. 12. A resolution was passed on 10.10.2007 resolving unanimously to remove 18 members from the membership of the Society and giving power to the President to take further action. The record is not clear on which date a communication was sent to the removed members. However, some of the aggrieved members approached the District Collector with a representation dated 29.10.2007 and he appears to have ordered for an enquiry by the first respondent. An enquiry was conducted by the Fisheries Department Officer, who submitted his report on 23.11.2007 to the first respondent with his findings with regard to the other allegations against the President of the Society including the removal of 18 members from the membership of the Society. An enquiry was conducted by the Fisheries Department Officer, who submitted his report on 23.11.2007 to the first respondent with his findings with regard to the other allegations against the President of the Society including the removal of 18 members from the membership of the Society. 19 members have appealed to the Tribunal and the Tribunal upheld the decision of the Society removing 19 members ignoring the admission made by the first respondent that no notices were served to two members out of 19 members. 13. Section 21 of the Act, deals with the disqualification of membership of the Society and clause (g) of sub-section (1) which is relevant for the purpose of the present case reads as follows:- Section 21: Disqualification for membership of Society: - (1) A person shall be disqualified for being admitted as, and for being, a member, if he (g) Fails to attend two consecutive General body meetings in two years without leave of absence. Sub-section (3) which reads as follows, deals with the procedure for removing a member from the Society. (3) Where any person, who isnot eligible for being admitted as member has been admitted as member or where the member who is disqualified to continue as such under sub-section (1) is continued as 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 financing bank. Provided that no member shall be removed under this sub-section unless he had an opportunity of making a representation against the proposed action. A copy of the resolution removing the member shall be communicated to such person and on such communication, he shall be deemed to have ceased to be a member of the society. Section 23 of the Act, deals with expulsion of members and it reads as follows:- Section 23: Expulsion of Members:- (1) Any member who has acted adversely to the interests of the society may be expelled upon a resolution of the general body passed as its meeting by the votes of not less than two thirds of the members of the society present and voting. (2) No member shall be expelled under sub-section (1) without being given an opportunity of making his representation to the General Body. (2) No member shall be expelled under sub-section (1) without being given an opportunity of making his representation to the General Body. A copy of the resolution expelling the member shall be communicated to the member. 14. In the instant case, both the sections are attracted since the removal was based on both the grounds. Rule 20 of the A.P. Cooperative Societies Rules, 1964 which reads as follows empowers the Registrar to act in the situation mentioned therein:- Rule 20: Removal of a member of a society who is disqualified:- (1) If any person, who is admitted as a member of a society becomes disqualified under Section 21 to continue as such, the Registrar may, on his own motion or on a representation made to him by any member of the society or its financing bank by an order in writing, declare that he shall cease to be a member of the society from the date of such disqualification. (2) Before passing an order under sub-rule (1) the Registrar shall give such person an opportunity to state his objection, if any, for the proposed action and if the person wishes to be heard, he shall be given opportunity to be heard. The Registrar’s decision shall be final and binding on the society and it shall not be questioned in any court. Though reliance was placed before the Tribunal and before this Court, the said rule is not applicable to the instant case. 15. The crucial aspect of the matter is interpretation of procedural safeguards contained in proviso to Sec.21 (3) and Sec.23 of the Act. Proviso to Section 21 (3) contains the words “unless he had an opportunity of making a representation against the proposed action” and Section 23 contains the words “without being given anopportunity of making his representation to the General Body”. The safeguard provided in the said sections is not an empty formality. When a member who served the Society is sought to be removed from the membership, he should not only be notified of the reasons for his removal and also sufficient opportunity should be given to the said member to explain his case to the General Body which is supreme. A mere notice of convening a General Body meeting with the agenda for removal is not sufficient. A mere notice of convening a General Body meeting with the agenda for removal is not sufficient. In respect of the members against whom action was proposed to be taken, the member should be informed of the grounds for the proposed action with sufficient material, if available, or with an explanatory note containing reasons in order to enable him to effectively offer his explanation either orally or through representation to the General Body. A mere ‘notice’ has to be distinguished from ‘opportunity’ in all cases requiring providing of opportunity. Sometimes a notice may be pregnant with opportunity. When the legislative intent is clear, we need not infer. This applies equally in respect of actions proposed under Secs.21 and 23 of the A.P. Cooperative Societies Act. In the instant case, no such opportunity was given. The members against whom action was proposed were not aware on which dates they were absent consecutively in the last two years in order to attract the disqualification. On the other hand, evidence was tried to be placed before this court for the first time as to the service of notice of convening the General Body meeting, which, even if it is true, is not a sufficient compliance within the meaning of the above provisions. 16. The Tribunal came to the conclusion that the order of removal came into effect from 12.12.2007, but not from 10.10.2007 and the stand of the respondents is not clear in this aspect. However, with regard to the notice served on the members proposed to be removed/expelled from the membership of the Society, the Tribunal had not the advantage of looking to the notice dated 23.09.2007 alleged to have been served through a messenger, who filed an affidavit for the first time in this Court. This notice and mode of service of notice is very much disputed by the petitioners in their reply affidavit. This Court is also not satisfied with the mode of service of notice through a messenger and filing an affidavit for the first time before this court along with the said notice, when the subsequent copy of resolution pursuant to the orders of this Court in W.P.M.P.No.35167 of 2008 dated 20.01.2009 directing the reinstatement of the petitioners were served through certificate of posting. Further, the third party affidavit of the messenger also does not indicate whether individual acknowledgments were obtained from each member of the Society in proof of service of notice of general body meeting proposed to be held on 10.10.2007. In any event, in view of the observations supra with regard to the procedure provided for affording opportunity to the members against whom action was proposed to be taken, the notice in the manner served is not sufficient even if it is taken to be true. Though the instant case deals with the expulsion of the members as contemplated under Section 23 of the Act, the case was neither advanced by the Counsel for petitioners nor by the respondents. Further, though the resolution was passed for removal of 18 members and the subsequent communication was not served on all 19 members but only on 17 members as per the counter filed before the Tribunal by the first respondent, the Tribunal without looking into the said aspect upheld the removal of 19 members. This Court granted an interim direction to continue the Petitioners in W.P.M.P.No.35167 of 2008 on 20.01.2009 and the same was made absolute on 27.10.2010 and all the Petitioners are continuing as members as on today. Keeping in view all these facts and the irregularities noticed in following the procedure contemplated in Section 21(3) and Section 23 of the Act, the resolution dated 10.10.2007 is set aside. However, liberty is given to the second respondent-Society to take appropriate action against any of its members in accordance with law, if it is so advised and circumstances warrant. 17. Accordingly, the writ petition is allowed. No order as to costs. The miscellaneous petitions, if any, pending in this writ petition, shall stand closed.