Tadinarasimha Murti vs The State Of Andhra Pradesh
2022 Latest Caselaw 9903 AP

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                   WRIT PETITION No.24352 of 2022

   Between:

   Tadinarasimha Murti, S/o Pothu Raju, aged
   about    46    years,   R/p      P.R.Puram,
   Payakaraopeta Mandal, Anakapalli District
                                                             ... Petitioner.
                          Versus

   The State of Andhra Pradesh, Agriculture &
   Cooperation       Department,    Secretariat,
   Velagapudi, Amaravathi, Rep. by its Principal
   Secretary and five others.
                                              ... Respondents.

Counsel for the petitioner                    : Sri V.V.N.Narayana Rao

Counsel for respondents 1 to 3                : Learned Government Pleader
                                                for Cooperation

Counsel for respondents 6 to 8                : Sri V.Surendra Reddy

                                     ORDER

Petitioner filed the above writ petition seeking following

relief:

"... to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of 1st respondent in appointing the 6th respondent as non-official PIC for the 5th respondent-

Society through G.O.Rt.No.492 dated 01.08.2022 is highly illegal, arbitrary, unconstitutional and in violation of Article 14 of the Constitution of India and contrary to

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Section 32 (7) (a)(i) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short "the Act") and consequently direct the respondents 1 to 4 to continue the petitioner as non official person-in-charge committee of the 5th respondent society till election to be conducted and pass such other order or orders as the Court may deem fit and proper."

2. The averments in the affidavit in brief are that

petitioner was elected as Vice-president of 5th respondent

society during the elections held in 2013 for a period of five

years. One Devarapu Seshagiri Rao was elected as President.

Since elections to the society could not be conducted after

expiry of period, outgoing elected managing committee was

appointed as person-in-charge committee. Sri Seshagiri Rao

was appointed as chairman of person-in-charge committee of

5th respondent society for a period of six months. During that

period the said Seshagiri Rao died and thus on 10.05.2018, a

resolution was passed as per bye-law No.28 of the society

unanimously resolving to continue the petitioner as President

of the society. Accordingly, petitioner served for nine months

and thereafter one Vangalapudi Ramarao was appointed as

non-official person-in-charge. Subsequently official person-

in-charges were appointed they have been discharging the

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duties of person in charge. While so, the local MLA addressed

a letter dated 15.07.2022 to the Minister for Agriculture to

appoint is henchmen as three-men committee of 5th

respondent society. Pursuant to that letter, 1st respondent

appointed 6th respondent as non-official person-in-charge and

7 and 8 as members. Challenging the same, the above writ

petition was filed.

3. Initially, 6th respondent alone was shown as party

respondent and later, I.A.No.2 of 2022 was filed seeking

impleadment of respondents 7 and 8 and the same as

ordered on 01.12.2022.

4. 3rd Respondent filed counter on behalf of himself and

respondents 1 and 2. In the counter it was contended

interalia that 2nd respondent has got powers under Section 32

(7) (a) of the Act to appoint person or persons-in-charge. After

the death of elected President, the Government by virtue of

powers vested under proviso to sub-section 16 (a) of Section

115-D of the Act, issued directions to the Registrar to extend

the term of existing elected managing committee of the

Primary Agricultural Societies for a period of six months or

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till elections are conducted, whichever is earlier. Accordingly,

2nd respondent issued orders for extension of term of elected

managing committee. 4th respondent issued orders

appointing Vangalapudi Ramarao as Chairman, Koda

Koteswara Rao as person and Devavarapu Appalaraju as

person of three-men person-in-charge committee vide

proceedings Rc.No.194/2018-C dated 04.08.2019 from

04.08.2019 to 12.02.2021. 4th respondent issued orders

appointing official person-in-charge committee for 5th

respondent society vide Rc.No.194/2018-C dated 13.02.2021

and the same was continued upto 30.07.2022. The petitioner

cannot claim as a matter of right to continue as person-in-

charge. The Government issued G.O.Rt.No.492 dated

01.08.2022 appointing 6th respondent as Chairperson in 5th

respondent society and respondents 7 and 8 as its members

and they assumed charge on 02.08.2022; that petitioner has

no locus or statutory right and eventually prayed the Court to

dismiss the writ petition.

5. 6th Respondent filed counter. Respondents 7 and 8 filed

vacate stay petition. In the affidavit, it was contended

interalia that 6th respondent was appointed as Chairperson

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and respondents 7 and 8 were appointed as Directors vide

G.O.Rt.No.492 dated 01.08.2022 and they assumed charge

and passed two resolutions; that when the matter was listed

initially learned single judge is not inclined to grant interim

order; that interim order was granted on 30.09.2022 as

counter of 6th respondent was not on board; however, 6th

respondent filed counter on 11.08.2022; that the period of 5th

respondent managing committee was initially was extended

for a period of six months vide Rc.No.5456/2017/PACS-

III/VSP dated 29.01.2018; later another Chairman by name

Vangalapudi Ramarao replaced the old committee and

continued for three terms consecutively; that the writ

petitioner was replaced through proceedings in

Rc.No.194/2018-C dated 04.08.2019; thereafter 4th

respondent appointed one S.Satyanarayana as official-in-

charge of 5th respondent society for six months vide

proceedings in Rc.No.194/2018-C dated 13.02.2021 and

later extended for six more months vide Rc.No.194/2018-C

dated 30.07.2021; later P.Satyamadhav another official

person-in-charge was appointed vide Rc.No.194/2018-C

dated 31.1.2022 and continued till issuance of G.O.Rt.No.492

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dated 01.08.2022; that the petitioner was not managing the

affairs of 5th respondent after appointment of Vangalapudi

Ramarao in 2019 and eventually, prayed the Court to dismiss

the writ petition.

6. Heard Sri V.V.N.Narayana Rao, learned counsel for writ

petitioner, learned Government Pleader for Cooperation for

respondents 1 to 4 and Sri V.Surender Reddy, learned

counsel for respondents 6 to 8.

7. Learned counsel for petitioner would submit that

respondents 6 to 8 were nominated as per the letter issued by

the local MLA. The 1st respondent without applying its mind

issued G.O.Rt.No.492 dated 01.08.2022 mechanically and

the same suffers from malafides and hence the proceedings

are liable to be set aside.

8. Learned Government Pleader for Cooperation would

submit that the petitioner has no locus standi to question the

appointment/nomination of three-men person-in-charge

committee to 5th respondent society and, in fact, petitioner is

not an affected party. He also would submit that the

Government in exercise of powers under Section 32 (7) (a) of

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the Act, issued the said G.O.Rt.No.492 dated 01.08.2022. He

would also submit that there is no plea in the affidavit

regarding extraneous consideration and the malice in law has

to be proved. In fact, there is no averment in the affidavit and

thus, prayed the Court to dismiss the petition.

9. Learned counsel for respondents 6 to 8 would submit

that pursuant to G.O.Rt.No.492 dated 01.08.2022, the

committee took charge on 02.08.2022 and no malice is

attributed against the local MLA. He also would submit that

pursuant to the interim stay granted by this Court,

respondents 6 to 8 stopped functioning.

10. In view of above contentions, the point for consideration

is:

Whether the petitioner is aggrieved person and thus has locus standi to challenge the proceedings in G.O.Rt.No.492 dated 01.08.2022 appointing or extending the term of three member non-official PICs upto 30.01.2023 to 5th respondent society?

11. Learned single Judge of this Court in W.P.No.21690 of

2022 and batch dated 30.9.2022, while considering the

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power of the Government to extend the period or to appoint

person-in-charge held as follows:

"11. This Court is bound by the ratio in The Deputy Registrar, Cooperative Societies, Bhongir and anr. Vs. K.Gandaiah and Ors.1, and accordingly holds that no restriction on the discretion of the appointing authority to appoint persons other than the initially appointed person-in-charge can be read into the language of Section 32 (7) (a) and the contention of petitioners in this regard has to be rejected."

12. In the case on hand, petitioner was elected as Vice

President of 5th respondent and the said term was expired.

Since elections were not conducted the elected body was

continued. However, since the Chairperson died, petitioner

acted as Chairperson for some time. Subsequently one

Vangalapudi Ramarao was appointed, and that committee

continued for three terms consecutively.

13. It is undisputed fact that writ petitioner discharged the

duties as Vice President of elected committee. Since the

elections were not conducted, the Government continued the

same committee by issuing proceeding dated 29.01.2018.

During that period, President of 5th respondent died the

1978 (1) APLJ 347 = MANU/AP/0312/1977

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petitioner, who was acting as Vice President was continued as

President for nine months. Later, Vangalapudi Ramarao was

appointed as non-official person-in-charge by proceedings

dated 04.08.2018. The said committee continued for three

terms and later one S.Satyanarayana was appointed as

official person-in-charge by proceedings dated 30.07.2021.

14. It is not the case of petitioner that by that time when

the G.O was issued, petitioner has been continuing as

Chairman of 5th respondent-society. Petitioner is one among

the other members of the society. The Government in

exercise of powers conferred under Section 32 (7) (a) of the

Act, issued G.O.Rt.No.492 dated 01.08.2022. As stated

supra, in the batch of writ petitions, learned single Judge of

this Court concluded that there is no restriction on the

appointing authority to appoint persons, other than initially

appointed, as persons-in-charge. While coming to said

conclusion, learned single Judge relied upon the judgment of

the earlier Division Bench.

15. Petitioner mainly challenged the appointment of

respondents 6 to 8 on the ground that local MLA

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recommended their names and hence, they were appointed.

The Government did not consider the appointment of PIC

committee to the Society objectively.

16. When this Court enquired the learned counsel for

petitioner as well as learned Government Pleader regarding

Rules or procedure prescribed, under the Act, to appoint the

members of the committee after expiry of term of elected

body, both the learned counsel, except placing reliance upon

Section 32 (7) of the Act, place no other Rules or Government

Orders. Though learned counsel for petitioner would contend

that appointment of respondents 6 to 8 is arbitrary and on

extraneous consideration, no such material is placed before

this Court.

17. Respondents 6 to 8 are also members of the society and

they were considered to be appointed as Chairman and

Directors for a period of six months i.e. upto 30.01.2023 or

till elections are conducted or until further orders, whichever

is earlier.

18. For issuance of Writ of Mandamus, petitioner should

satisfy the Court qua the infringement of his legal right and

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corresponding legal obligation on the part of the State or its

instrumentality.

19. In State of U.P. and others Vs. Harish Chandra and

others2, the Hon'ble Apex Court held as follows:

"10 ...Under the Constitution, a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."

20. In Union of India Vs. S.B. Vohra3, the Hon'ble Apex

Court considered the similar issue and held that for issuing a

writ of mandamus in favour of a person, the person claiming,

must establish his legal right in himself. Then only a writ of

mandamus could be issued against a person, who has a legal

duty to perform, but has failed and/or neglected to do so.

21. In Oriental Bank of Commerce Vs. Sunder Lal Jain4,

the Supreme Court emphasized the necessity to establish

existence of legal right and its infringement for grant of writ of

mandamus referred the principles stated in the Law of

(1996) 9 SCC 309

(2004) 2 SCC 150

(2008) 2 SCC 280

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Extraordinary Legal Remedies by F.G. Ferris and F.G.

Ferris, Jr.:

"Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the

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existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."

22. In Mani Subrat Jain Vs. State of Haryana5, while

considering scope of Article 226 of the Constitution, the

Hon'ble Apex Court observed as follows:

9"...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See Halsbury's Laws of England 4th Ed. Vol I, paragraph 122); State of Haryana Vs. Subash Chander, AIR 1973 SC 2216; Jasbhai Motibhai Desai Vs. Roshan, Kumar Haji Bashir Ahmed, AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."

23. A conspectus of the expressions of Hon'ble Apex

Court would discern that a writ of Mandamus can be

issued if the petitioner satisfies or establishes existence of

legal right in himself and a corresponding legal duty in the

respondent. Section 32 (7) of the Act confers discretion

upon the appropriate authority to appoint persons-in-

AIR 1977 SC 276

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charge to run the affairs of the society. However, no

material was placed before the Court that such power was

exercised arbitrarily or abused. Pleadings play very

important role in legal matters.

24. In Bachhaj Nahar Vs. Nilima Mandal and Ors.6, the

Hon'ble Apex Court highlighted the importance of pleadings

and reiterated the object of pleadings and held thus:

"9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.

10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the

AIR 2009 SC 1103 = (2008) 17 SCC 491

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defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."

25. In the case on hand, except the copy of letter said to

have been issued by the local MLA, nothing was placed before

the Court. No plea was raised regarding malice in law. It is

also pertinent to mention here regarding the letter allegedly

issued by local MLA, no averment was made in the affidavit

as to how the petitioner secured the said letter.

26. When the petitioner primarily relied upon such letter,

he must plead in the affidavit as to source of his securing the

letter. A xerox copy of the letter filed along with the writ

petition. It cannot be given any credence without any

supporting material. Unlike in civil, criminal or original

proceedings marking of documents in the writ petition is rare

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phenomena. In such a case, litigant approaching the Court

and filing papers along with the writ petition as annexures

must aver as to securing the papers, relied upon, in seeking

remedy. Thus, this Court is not a position to rely upon the

alleged letter said to have been issued by the local MLA.

27. The other aspect of the case is that in the absence of

plea of malice-in-law, the Court shall not issue any directions

which run contrary to the discretionary power conferred

upon the appointing authority in the light of language

employed in Section 32 (7) of the Act. Legal malice or malice

in law means something done without lawful excuse. In other

words, it is an act done wrongfully and willfully without

reasonable or probable cause and not necessarily an act done

from ill feeling and spite. It is a deliberate act in disregard of

the rights of others. As indicated supra, neither plea nor it

was demonstrated by the petitioner that the discretion has

been abused or improperly exercised.

28. Learned counsel for petitioner relied upon the judgment

of the composite High Court in Pagadala Pratap and Arcod

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Muthu Vs. State of Andhra Pradesh and others7. In that

case, learned single Judge dealt with constitution of Trust

Board. Challenge in that writ petition is that while

constituting Trust Board, the Government failed to follow the

statutory Rules. In the case on hand, as pointed out supra,

neither the learned counsel for petitioner nor the learned

Government Pleader could place the rules and prescribed for

appointment of PICs. Thus, in the considered opinion of this

Court the ratio laid down in Pagadala Pratap's case supra,

does not apply to the facts of the case.

29. Learned counsel for petitioner also relied upon the

judgment of Hon'ble Apex Court in State of U.P. and others

Vs. Maharaja Dharmander Prasad Singh8 and would

contend that appointment of respondents 6 to 8 is solely on

the basis of letter addressed by the local MLA and the 2nd

respondent did not exercise the power under Section 32 (7) of

the Act independently, which amounts to abdication or

surrender of its discretion.

2010 (5) ALD 1

AIR 1989 SC 997

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30. As pointed out supra, unless the petitioner satisfies his

legal right to challenge the appointment of respondents 6 to 8

and further establishes that respondents abused power

improperly, petitioner, in the considered opinion of the this

Court, cannot challenge the appointment of respondents 6 to

8. Hence, this Court does not find any merits in this writ

petition and the same is liable to be dismissed.

31. Accordingly, the writ petition is dismissed at admission

stage. No costs.

As a sequel, all the pending miscellaneous petitions,

shall stand closed.

________________________________ JUSTICE SUBBA REDDY SATTI

29th December, 2022

PVD