A Bangaru Raju vs The State Of Andhra Pradesh
2023 Latest Caselaw 227 AP

       THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               WRIT PETITION No.41485 of 2022

A. Bangaru Raju, S/o Chinna Lakshmi Peddi Raju, aged about
63 years, R/o Vempadu Village, Nakkapalli Manda, Anakapalli
District (Erstwhile Visakhapatnam District).
                                              ... Petitioner

                              Versus

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

                                                    ... Respondents


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

Counsel for respondents                : Learned Government
                                         Pleader for Agriculture
                                         and Cooperation
                                         and Sri V. Surender
                                         Reddy

                             ORDER:

The present Writ Petition came to be filed under Article

226 of the Constitution of India seeking the following relief:-

"to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent Nos.1 to 4 in appointing the respondents No.6 to 8 as non-official person-in-charge for the respondent No.5 society at the instance of local MLA through G.O.Rt.No.849, dated 05.12.2022 on the file of the 1st respondent and consequential Proceedings in Rc.No.194/2018-C, dated 09.12.2022 on the file of the 4th respondent are contrary Page 2 of 16 SRS,J W.P.No.41485 of 2022

to the orders of this Hon'ble Court made in W.P.No.21690 of 2022 and batch dated 30.09.2022 and contrary to the judgments of Division Bench of this Hon'ble Court in the matter of M. Ranga Reddy vs. State of A.P. & another, B. Kota Mallaiah vs. Commissioner & Registrar of Cooperative Societies & Gottipati Rama Rao vs. Special Cadre Deputy Registrar and others (Reported vide 1991 (3) (ALT) 532 is highly illegal, arbitrary, unconstitutional, in violation of Article 14 and contrary to Section 32 (7)(a)(i) of APCS Act, 1964, set aside the same, and consequently direct the respondent Nos.1 to 4 to continue the petitioner as non official person-in-charge committee of the respondent No.5 Society till the elections to be conducted and pass such other order or orders ....".

2. The case of the petitioner, in brief, is :

Petitioner was elected as President of respondent

No.5/society during the elections held in 2013, for a period of

five years. After expiry of the period, since elections were not

conducted, their term was extended for a period of six months

through proceedings dated 10.08.2019. The said period was

extended from time to time, through proceedings, dated

31.07.2020, 30.01.2021 and 31.01.2022. Before expiry of

extended term, local MLA addressed letter, dated 15.07.2022 to

the Minister for Agriculture, Government of Andhra Pradesh,

Vijayawada, recommending to appoint his henchmen as three

man person-in-charge committee of respondent No.5 society.

Challenging          the    same       petitioner   along       with    others        filed
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                                                 W.P.No.41485 of 2022

W.P.No.21690 of 2022 and WP.No. 23302 of 2022, pending

which interim direction was given to continue petitioner and two

others as person-in-charge till election is conducted or until

further orders. Pending W.P.No.21690 of 2022 and WP No

23302 of 2022, respondent No.4, by proceedings dated

02.08.2022, extended the term of three man person-in-charge

committee of respondent No.5/society. The said writ petition

along with other writ petitions was disposed of on 30.09.2022.

After disposal of the writ petition, respondent No.1 issued

G.O.Rt.No.849, dated 05.12.2022, wherein respondent Nos.6 to

8 were appointed as three man persons-in-charge of respondent

No.5/society. Pursuant to said G.O. respondent No.4 issued

proceedings vide Rc.No.194/2018-C, dated 09.12.2022

appointing respondent Nos.6 to 8 as three man person-in-

charge committee of respondent No.5/society till 30.01.2023 or

till elections are conducted or until further orders, whichever is

earlier. Assailing the same, present writ petition is filed.

3. Instructions were placed before this Court wherein it is

stated that three man person-in-charge committee for

respondent No.5/society was appointed exercising power 32

(7)(a) of APCS Act. Initially petitioner herein along with others

filed W.P.No.21609 of 2022 and the same was disposed of by Page 4 of 16 SRS,J W.P.No.41485 of 2022

order, dated 30.09.2022. Pursuant to disposal of

W.P.Nos.21609 and 23302 of 2022, CEOs of co-operative

societies were directed to send particulars of members suitable

to be nominated as three man person incharge committee. CEO

of respondent No.5 society submitted the names of suitable

persons to the Government through proper channel. Basing on

the proposals received from District Cooperative Officer,

Anakapalli, Government issued G.O.Rt.849, dated 05.12.2022

and subsequently, three man persons-in-charge committee was

appointed, whose term, as per proceedings, is till 30.01.2023.

Petitioner cannot have right or claim to continue as a matter of

right. Hence, prayed to dismiss the writ petition.

4. Heard both sides.

5. Learned counsel for the petitioner would contend that

G.O.Rt.No.849 was issued by the Government in a mechanical

manner. While issuing G.O.Rt.No.849, respondent No.1 did not

consider the order passed in W.P.No.21690 of 2022. He would

also contend that since the Government exercised its discretion

and nominated the petitioner on earlier occasion, same

arrangement shall continue. However, at the instance of local

MLA, three man persons-in-charge committee of respondent

No.5 has been changed. He would further submit that Page 5 of 16 SRS,J W.P.No.41485 of 2022

respondent No.8 has no land with the jurisdiction of the society

and that she is also due of certain amount to the society. He

would also contend that G.O.Rt.No.849 is vitiated on the ground

that decision making process and hence it is illegal, arbitrary

and malafide one.

6. On the other hand, learned Government Pleader would

submit that Government got power under Section 32(7)(a) of the

APCS Act to appoint three man person incharge committee. By

exercising power under Section 32(7)(a) after disposal of earlier

writ petition committee was constituted. He further contended

that after submitting the list of suitability of members by CEOs

of respondent No.5/society, non-official respondents were

appointed as chairman and persons of respondent No.5/society.

He would also submit that the petitioner cannot claim legal

right to continue in the office and there are no extraneous

considerations. He would submit that petitioner earlier

approached this Court before issuance of G.O.Rt.No.849 and

the same was disposed of and hence, writ petition is barred by

constructive res judicata.

7. Learned counsel for un-official respondents adopted the

arguments of learned Government Pleader.

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                                                         W.P.No.41485 of 2022

8. The point to be considered is whether petitioner has legal

right to challenge G.O.Rt.No.849, dated 05.12.2022 issued by

Government, appointing unofficial respondents as three man

persons-in-charge committee of respondent No.5/society?

9. Earlier when government appointed three man person in

charge committee to the societies, batch of writ petitions were

filed challenging the action of the Government. learned Single

Judge of this Court, while dealing with scope of Section 32 (7)(a)

of the APCS Act, made the following observation at para 5 of the

order:

"The challenge of the petitioners, in these cases, is twofold. Firstly, the language of Section 32(7)(a) of the Act has to be interpreted to mean that once a person in-charge has been appointed, the appointing authority can, at best, extend the term of such a person and no power is available to the appointing authority to change the person, who has initially being appointed as the person in-charge. Secondly, the said Rule read in conjunction with the other provisions of the Act, require the appointing authority to appoint only the members of the society or the erstwhile management of the society as persons in-charge and no outsider can be appointed unless it is shown that the earlier management had mismanaged the affairs of the society or misappropriated the funds of the society."

10. Further after considering earlier judgments of Division

Benches, learned Single Judge held as follows at para No.11:

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                                                     W.P.No.41485 of 2022

"This Court is bound by the ratio and judgment in The Deputy Registrar, Cooperative Societies, Bhongir and anr., vs. K. Gandaiah and Ors., 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 the petitioners in this regard has to be rejected."

11. In the case on hand, petitioner, whose term was expired

by afflux of time, was nominated to the office of Chairman of

three man persons-in-charge committee, from time to time. By

proceedings, dated 30.01.2022, it was extended by six more

months and the same would expire on 30.07.2022.

12. As the matter stood thus, petitioner and others filed

W.P.No.21690 of 2022 and 23302 of 2022 contending that the

local MLA recommended names of other persons to be

appointed as Chairman and persons-in-charge of three men

committee of respondent No.5 society. The said writ petition was

disposed of on 30.09.2022 with the following direction:

"In W.P.No.21690 of 2022 and W.P.No.23302 of 2022, the petitioners have approached this Court with apprehension that the persons, who are not members of the society/members of the erstwhile management of the society, would be appointed on the recommendation of the local representative of the people. In that view of the matter, these two writ petitions are disposed of with a direction to the Page 8 of 16 SRS,J W.P.No.41485 of 2022

respondents therein to consider the suitability of the members of the society/erstwhile management of the society, including the petitioners, before considering appointment of any non-member or official of the cooperative department while appointing the person in-charge."

13. In the counter affidavit filed by the respondents, it was

specifically contended by respondent No.4 that as per orders in

W.P.Nos.21690 and 23302 of 2022, CEOs of the societies were

called to furnish suitability of members of the society and CEO

submitted the names of the members of the society. Basing on

the said recommendations of CEO, unofficial respondents were

appointed as Chairman and persons of three man person-in-

charge committee.

14. The case of the petitioner is that three man committee was

appointed as per recommendation of the local MLA. Xerox copy

of letter said to have been addressed by local MLA is filed along

with this writ petition at page No.23. A perusal of the said letter

would indicate that a copy was marked to DCO, Anakapalli. A

perusal of the said letter indicates that names three persons

were recommended to be appointed as committee. However, the

G.O. issued by the Government does not reflect their names and

persons other than recommended by local MLA, were appointed

as three man persons-in-charge committee.

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                                                     W.P.No.41485 of 2022

15. For issuance of Writ of Mandamus, petitioner should

satisfy the Court qua the infringement of his legal right and

corresponding legal obligation on the part of the State or its

instrumentality.

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

others1, 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."

17. In Union of India Vs. S.B. Vohra2, 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.

18. In Oriental Bank of Commerce Vs. Sunder Lal Jain3,

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 Page 10 of 16 SRS,J W.P.No.41485 of 2022

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 Page 11 of 16 SRS,J W.P.No.41485 of 2022

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 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."

19. In Mani Subrat Jain Vs. State of Haryana 4, 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."

    AIR 1977 SC 276
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                                                 W.P.No.41485 of 2022

20. 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-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.

21. In the case on hand, petitioner though filed having filed a

copy of the letter did not state in the affidavit as to the source of

his securing said letter. The said letter cannot be given credence

without any supporting material. Unlike in civil or criminal or

original proceedings, marking of documents in writ petition is a

rare phenomenon. In such a case, the litigant approaching the

Court and filing papers along with the writ petition as

annexures must aver as to securing papers relied upon in

seeking remedy.

22. Apart from that the persons, whose names are mentioned

in the letter were not appointed as members of the committee.

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                                                  W.P.No.41485 of 2022

23. 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.

24. Learned counsel for petitioner relied upon the judgment of

the composite High Court in Pagadala Pratap and Arcod

Muthu Vs. State of Andhra Pradesh and others5. 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

2010 (5) ALD 1 Page 14 of 16 SRS,J W.P.No.41485 of 2022

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.

25. 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 Singh6 and would contend that

appointment of unofficial respondents is solely on the basis of

letter addressed by the local MLA and the power under Section

32 (7) of the APCS Act was not exercised independently, which

amounts to abdication or surrender of its discretion.

26. Though it was averred in the affidavit that respondent

No.8 has no land within the jurisdiction of the society and that

she is in due of certain amount to the society, learned counsel

during the course of the argument stated that the said averment

was wrongly typed in the affidavit and he is not pressing the

same. In view of the said statement this court is not dealing

with that aspect.

27. As observed supra, learned Single Judge while disposing

of W.P.No.21690 of 2022 and batch, concluded that there is no

restriction on the discretion of the appointing authorities to

appoint persons other than persons initially appointed as

AIR 1989 SC 997 Page 15 of 16 SRS,J W.P.No.41485 of 2022

person-in-charge can be read into the language of Section

32(7)(a).

28. In view of the discussion supra, this Court does not find

any merits in this writ petition and the same is liable to be

dismissed.

29. Accordingly, the writ petition is dismissed at admission

stage. No costs.

As a sequel, all the pending miscellaneous petitions, shall

stand closed.

                                           _________________________
                                           SUBBA REDDY SATTI, J
Date : 19.01.2023
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                                           W.P.No.41485 of 2022

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

W.P.No. 41485 of 2022

Date : 19.01.2023

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