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2023 DIGILAW 313 (AP)

Katam Kasi Raju v. State of Andhra Praedsh

2023-02-03

GANNAMANENI RAMAKRISHNA PRASAD

body2023
ORDER : Heard Sri B.P. Raju, learned Counsel for the Writ Petitioners and Sri M.V. Narasimham, Assistant Government Pleader for Fisheries and Animal Husbandry for the Respondents. 2. Prayer made in the Writ Petition is as under: “….. to issue an appropriate Writ, order or direction more particularly in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in issuing no confidence Notice vide Rc.No.18/2022 dated 6.4.2022 there is a gap of no less than 15 clear days between date of dispatch of notice on 7.4.2022 and date of meeting on 20.4.2022 (both dates excluded) as highly illegal, arbitrary and contrary to law and clear violation of section 34(a) r/w rule 24-Aof A.P. Co-operative societies Act, 1964 and consequently to Quash the same and pass such ….” 3. Learned Counsel for the Writ Petitioner has submitted that he was unanimously elected as Chairman/President of the Prakasam District Sheep Breeders Co-operative Union Limited, Ongole vide Rc.No.82/AH/S/95 dated 01.05.2018 for a period of five years. While so, Writ Petitioner was served with a Notice for No Confidence Motion dated 06.04.2022 vide Rc.No.18/2022. This Notice was served by the Functional Registrar, Prakasam District Sheep Breeders Co-operative Union Limited, Ongole stating that the elected Office Bearers of the Society would hold a meeting in the Office on 20.04.2022 at 11.00 A.M for considering the No Confidence Motion against the Writ Petitioner. Learned Counsel for the Writ Petitioner further submitted that the said Notice dated 06.04.2022 was dispatched to the Writ Petitioner on 07.04.2022 and the Writ Petitioner received the said Notice on 08.04.2022. The date of receipt of Notice is in fact after the scheduled date of the meeting itself. 4. Learned Counsel for the Writ Petitioner has submitted that the Functional Registrar/Joint Director (A.H) (R.2) has committed irregularity in issuing the Notice of meeting for considering the Agenda of No Confidence against the Writ Petitioner. Learned Counsel further submits that Sub-section (3) of Section 34-A of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, the Act) stipulates that the Competent Authority shall give to the members Notice of not less than 30 clear days of meeting. The relevant portion of Section 34-A(3) of the Act reads as under:- “34-A. Motion of no-confidence in the President and Vice-President of the committee. The relevant portion of Section 34-A(3) of the Act reads as under:- “34-A. Motion of no-confidence in the President and Vice-President of the committee. - (1) A motion expressing want of confidence in the President or the Vice-President of a Committee may be made in accordance with the procedure laid down in the following sub-sections.] (2) A written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of members of the Committee together with a copy of the proposed motion shall be delivered in person, by any two of the members signing the notice, to the Registrar having jurisdiction over the Society. Explanation: - For the removal of doubts, it is hereby declared that for the purposes of this section, the expression "total number of members of the Committee" shall mean the total number of elected members inclusive of its President and Vice-President but irrespective of any vacancy existing in the office of member at the time of meeting. (3) The Registrar shall then convene a meeting for the consideration of the motion at the office of the society on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him. He shall give to the members notice of not less than fifteen clear days of such meeting in such manner as may be prescribed : Provided that where the holding of such meeting is stayed by an order of a Court the meeting shall be adjourned, and the Registrar shall hold the adjourned meeting on a date not later than thirty days from the date on which he received the intimation about the vacation of stay, after giving to the members notice of not less than fifteen clear days of such adjourned meeting.” 5. In the instant case, the Notice was dispatched on 07.04.2022 and the same was received by the Writ Petitioner on 08.04.2022. The meeting is scheduled to be held at 11.00 A.M on 20.04.2022. In the instant case, the Notice was dispatched on 07.04.2022 and the same was received by the Writ Petitioner on 08.04.2022. The meeting is scheduled to be held at 11.00 A.M on 20.04.2022. Learned Counsel for the Writ Petitioner further submits that in view of the date on which the meeting is scheduled and the Notice concerning the scheduling of the meeting was communicated to the Writ Petitioner, there are 15 clear days, as contemplated under the Statute is not satisfied, and therefore, the action on part of the Respondent No.2 is clearly vitiated as the same is in violation of the said statutory provision. 6. In support of his contention, he has also submitted a Judgment rendered by this Court in Ananthula Sathaiah v. Functional Registrar and Prohibition and Excise Superintendent, Vijayawada (2010 (2) ALD 58). The relevant portion of the said Judgment reads as under: “3.The only question that needed to be answered is whether the said notice issued by the 1st respondent is in accordance with the provisions contained in Section 34-A of the Act. Section 34-A has been inserted by the Amending Act No. 21 of 1985, providing for consideration of a motion of no-confidence on the President and Vice- President of the Committee. Sub-section (1) of Section 34-A made it clear that a motion expressing want of confidence in the President or the Vice-President of a Committee may be made in accordance with the procedure laid down in the said section. Sub-section (2) thereof made it clear that a motion signed by not less than one-half of the total number of members of the committee together with a copy of the proposed motion shall be delivered in person, by any two of the members signing the notice, to the Registrar having jurisdiction over the Society. Sub-section (3) then makes it clear that the Registrar shall convene a meeting for the consideration of the motion, not later than 30 days from the date on which the notice under sub-section (2) was delivered to him. The Registrar was also required to give the members notice of not less than 15 clear days of such meeting. However, sub-section (14) of Section 34-A of the Act made it clear that the provisions of this Section shall not apply in respect of a President of any Cooperative Society elected by the members of the general body from amongst themselves. 4. However, sub-section (14) of Section 34-A of the Act made it clear that the provisions of this Section shall not apply in respect of a President of any Cooperative Society elected by the members of the general body from amongst themselves. 4. Two infirmities can be noticed from the order passed by the 1st respondent-Registrar in this case. Firstly, he has not tried to ascertain before issuing the said notice as to whether the President of the Society has been elected by the general body at its meeting or not. As was noticed supra, if the President of the Society has been elected by the general body of the Society, in such circumstances, sub-section (14) would come into operation, and consequently, the provisions contained in Section 34-A of the Act will not be attracted at all. Therefore, it is incumbent for the 1st respondent - Registrar to ascertain before acting upon any notice delivered to him under subsection (2) of Section 34-A and find out whether the President of the Managing Committee of the Society has been elected by the general body at their meeting or the Managing Committee in turn had elected him. If the general body elected the President, then he cannot entertain and take further action in terms of Section 34-A on the motion of no-confidence delivered to him. The 2nd infirmity is that sub-section (3) requires the Registrar, upon receipt of the notice under sub-section (2), to give to the members notice of not less than 15 clear days of such meeting. The impugned notice is dated 6th January 2007 and it has proposed to convene the meeting on 20th June 2007. The meeting in the instant case has been called exactly on the 15th day from 6th June 2007, whereas subsection (3) requires him to give notice to the members of not less than 15 clear days. The emphasis is clearly laid on the words “15 clear days”. In other words, the notice itself should provide 15 clear days duration, obviously implying that a meeting is required to be conducted any time between the 16th to 30th day, because within 30 days, the meeting is required to be convened. Hence, the day on which the notice is drawn out by the Registrar has got to be excluded so as to comply with the requirement of 15 clear days. Hence, the day on which the notice is drawn out by the Registrar has got to be excluded so as to comply with the requirement of 15 clear days. This 15 clear days period is not required to be maintained from the date of service of such a notice, as the notice may be served, during the interregnum period. Therefore, compliance with the mandate of 15 clear days can be achieved by excluding either the date on which the notice is drawn or in the alternative, the date on which the meeting is convened. In the instant case, for the failure to give 15 clear days' notice, in terms of sub-section (3) of Section 34-A also, the impugned order fails. The impugned notice, dated 6th June 2007 issued by the 1st respondent is hence quashed.” 7. Learned Assistant Government Pleader for Fisheries and Animal Husbandry has drawn the attention of this Court to the contents of the Counter Affidavit and submitted that the election of the Writ Petitioner to the Society is hit by Section 21-A of the Act. Sub-section 1-A of Section 21-A of the Act prescribes that a candidate having more than two children shall be disqualified for election or for continuing as a Member of the Committee. The relevant portion reads as under: “(1A) A person having more than two children shall be disqualified for election or for continuing as a Member of the Committee : Provided that the birth within one year from the date of commencement of the Andhra Pradesh Co-operative Societies (Amendment) Act, 1995 (hereinafter in this Section referred to as the date of such commencement) of an additional child shall not be taken into consideration for the purposes of this section ; Provided further that a person having more than two children (excluding the child if any born within one year from the date of such commencement) shall not be disqualified under this section for so long as the number of children he had on the date of such commencement does not increase ; Provided also that the Government may direct that the disqualification in this section shall not apply in respect of a person for reasons to be recorded in writing.” 8. Learned Counsel for the Writ Petitioner has submitted that the purpose for which the Notice was issued is different from the submission made by the learned Assistant Government Pleader for Respondents, inasmuch as the Notice was issued for testing No Confidence on the Writ Petitioner and the alleged violation of Sub-section 1(A) of Section 21-A of the Act has no relevance in the present circumstances. 9. This Court is in agreement with the submission made by the Writ Petitioner that the disqualification of the Writ Petitioner under Sub-section 1(A) of Section 21-A of the Act is dehors the scope of the present Writ Petition. The present Writ Petition is filed by the Writ Petitioner challenging the Notice as regards the scheduling of the meeting for testing No Confidence against the Writ Petitioner. Therefore, the scope of the Writ Petition is only to look into the Notice issued by the Respondent No.2 and to consider whether the same is within the teeth of the Statue or not. If the Notice issued by the Respondent No.2 falls outside purview of Sub-section (3) of Section 34-A of the Act, the Notice will have to be struck down. 10. Learned Counsel for the Writ Petitioner has submitted that the dates as under: i. Date of the Notice : 06.04.2022. ii. Date of dispatch of the Notice : 07.04.2022. iii. Date of receipt of the Notice by the Writ Petitioner: 08.04.2022. iv. Meeting scheduled at 11.00 A.M on 20.04.2022. 11. On perusal of the dates, which is the writing on the wall, it is to be said that the Notice is hit by Sub-section (3) of Section 34-A of the Act. In view of the fact that this Court has already considered the effect of transgressing this provision to the effect that the Notice gets vitiated if there is any irregularity in issuing the Notice, the Impugned Notice bearing Rc.No.18/2022 dated 06.04.2022 is liable to be set aside. 12. In this view of the matter, Writ Petition is allowed. The Notice bearing Rc.No.18/2022 dated 06.04.2022, issued by the Functional Registrar/Joint Director (A.H), the Prakasam District Sheep Breeders Co-operative Union Limited, Ongole, Prakasam District (R.2), is set aside. There shall be no Order as to the Costs. 13. Interlocutory Applications, if any, stand disposed of in terms of this order.