G Balayogi vs The State Of Andhra Pradesh
2023 Latest Caselaw 229 AP

       THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               WRIT PETITION No.40145 of 2022

Veesam Rama Krishna, S/o Nageswara Rao, aged about 54
years, R/o Nakkapalli Village and Mandal, Anakapalli District
(Erstwhile Visakhapatnam District) and others
                                              ... Petitioners

                              Versus

The State of Andhra Pradesh, Agriculture and Cooperation
Department, Rep. by its Principal Secretary, Secretariat,
Velagapudi, Amaravathi and 15 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 wirt, 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.8 to 16 as non-official person-in-charge for the respondent Nos.5 to 7 societies 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 Page 2 of 16 SRS,J W.P.No.40145 of 2022

09.12.2022 on the file of the 4th respondent are contrary 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 petitioners as non official person-in-charge committee of the respondents No.5 to 7 Society till the elections to be conducted and pass such other order or orders ....".

2. Initially three petitioners filed the above writ petition

against sixteen respondents. When the matter was listed on

13.12.2022, learned counsel for the petitioners sought

permission to withdraw the writ petition on behalf of petitioner

Nos.2 and 3 with liberty to file fresh writ petitions. Accordingly,

permission was accorded. Writ petition was dismissed, as

withdrawn, on behalf of petitioner Nos.2 and 3.

Learned counsel for the petitioners also sought permission

to withdraw the writ petition against respondent Nos.6, 7 and

11 to 16. Accordingly, permission was accorded and writ Page 3 of 16 SRS,J W.P.No.40145 of 2022

petition against respondent Nos.6, 7 and 11 to 16 was

dismissed as withdrawn.

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

Petitioner along with two others was elected as three man

person-in-charge committee of respondent No.5/society during

the elections held in 2013. Since elections were not conducted

after expiry of the period, 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. As the matter stood

thus, local MLA, by letter dated 15.07.2022 recommended

names of his henchmen for appointing them as three-man

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

Challenging the same petitioner along with others filed

W.P.No.21690 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, 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 Page 4 of 16 SRS,J W.P.No.40145 of 2022

G.O.Rt.No.849, dated 05.12.2022, wherein respondent No.8 was

appointed as Chairman and respondent Nos.9 and 10 were

appointed as members 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.8 to 10 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.

4. Counter affidavit is filed by respondent No.4 on its behalf

as well as on behalf of respondent Nos.1 to 3. It was inter alia

contended that three man person-in-charge committee for

respondent No.5/society was appointed by exercising power

under Sec 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 order, dated 30.09.2022. Pursuant to disposal of

W.P.Nos.21609 and 23302 of 2022, CEOs of societies are called

for suitability of members of the society. 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 isused G.O.Rt.849, dated 05.12.2022 and Page 5 of 16 SRS,J W.P.No.40145 of 2022

subsequently, three man persons-in-charge committee was

appointed, whose term is till 30.01.2023. Petitioner cannot have

right or claim to continue as a matter of report. Hence, prayed

to dismiss the writ petition.

5. Heard both sides.

6. Learned counsel for the petitioner would contend

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 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 also contend that G.O.Rt.No.849 is vitiated

on the ground that decision making process is illegal, arbitrary

and malafide one.

7. 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 Page 6 of 16 SRS,J W.P.No.40145 of 2022

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.

8. Learned counsel for un-official respondents adopted the

arguments of learned Government Pleader.

9. 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?

10. 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:

 Page 7 of 16                                             SRS,J
                                                         W.P.No.40145 of 2022

"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."

11. Further after considering earlier judgments of Division

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

"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."

12. 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 Page 8 of 16 SRS,J W.P.No.40145 of 2022

proceedings, dated 30.01.2022, it was extended by six more

months and the same would expire on 30.07.2022.

13. As the matter stood thus, petitioner filed W.P.No.21690 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 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."

14. 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 Page 9 of 16 SRS,J W.P.No.40145 of 2022

the said recommendations of CEO, unofficial respondents were

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

charge committee.

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

appointed as per recommendation of the local MLA. Xerox copy

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 copy of xerox was marked to DCO,

Anakapalli. As per said letter, respondent No.8 has been

recommended as their Chairperson and two other persons were

recommended as members of three man committee. However,

the G.O. issued by the Government reflects that one among

three persons was considered and two persons other than

recommended persons, were appointed.

16. 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.

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

others1, the Hon'ble Apex Court held as follows:

1996 9 SCC 309 Page 10 of 16 SRS,J W.P.No.40145 of 2022

"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."

18. 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.

19. In Oriental Bank of Commerce Vs. Sunder Lal Jain 3,

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

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

2004 2 SCC 150

2008 2 SCC 280 Page 11 of 16 SRS,J W.P.No.40145 of 2022

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 existing Page 12 of 16 SRS,J W.P.No.40145 of 2022

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."

20. 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."

21. 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

AIR 1977 SC 276 Page 13 of 16 SRS,J W.P.No.40145 of 2022

such power was exercised arbitrarily or abused. Pleadings play

very important role in legal matters.

22. In the case on hand, petitioner having filed a copy of the

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

securing said letter. The xerox copy of 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. Therefore, this Court cannot rely upon

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

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 Page 14 of 16 SRS,J W.P.No.40145 of 2022

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

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 respondent No.2 did not

exercise the power under Section 32 (7) of the APCS Act

2010 (5) ALD 1

AIR 1989 SC 997 Page 15 of 16 SRS,J W.P.No.40145 of 2022

independently, which amounts to abdication or surrender of its

discretion.

26. As observed supra, learned Single Judge while disposing

of W.P.No.21690 of 2022 and batch, came to the conclusion

that there is no restriction on the discretion of the appointing

authorities to appoint persons other than persons initially

appointed as person-in-charge can be read into the language of

Section 32(7)(a).

27. 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.

28. 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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 Page 16 of 16                              SRS,J
                                           W.P.No.40145 of 2022

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

W.P.No. 40145 of 2022

Date : 19.01.2023

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