ORDER
D.S.R. Varma, J.
1. This writ petition is filed to quash the order dated 28-4-2003 passed by the 3rd respondent - Tribunal in C.T.A.No. 124/2003.
2. The brief facts are that the 1st respondent is the society. It had seven members in the Managing Committee. On different dates, some general or the committee meetings could not be convened for various reasons. The reasons would be referred in the course of the judgment. Consequently the members of the society made a representation dated 22-3-2003 to the competent authority. It appears that a report was called for from the Sub-Divisional Co-operative Officer and accordingly he submitted a report. On consideration of the representation of the members of the society and the report of the Sub-Divisional Cooperative Officer, the 2nd respondent having felt that a General Body meeting could not be conducted in accordance with the provisions of the A.P. Co-operative Societies Act, 1964 (for short hereinafter referred to as 'the Act'), appointed a Person-in-charge, by order dated 28-3-2003 exercising his jurisdiction under Section 32(7)(a) of the Act. Challenging the said order, the Managing Committee of the Society filed an appeal in C.T.A.No. 124/2003 before the 3rd respondent - Tribunal. The Tribunal set aside the order of the 2nd respondent dated 28-3-2003. Challenging the same the 2nd respondent before the Tribunal who is a member of the Managing Committee, filed this writ petition.
3. From the record it is to be seen that the petitioner herein had raised a specific plea as regards the jurisdiction of the Tribunal in entertaining the appeal. Before the Tribunal the petitioner contended that the 2nd respondent - Sub-Divisional Co-operative Officer passed the order dated 28-3-2003 exercising his jurisdiction under Section 32(7)(a) of the Act and since the same is not an appealable order, the Tribunal has no jurisdiction to entertain the appeal.
4. In order to get over the above objection of the petitioner on the aspect of jurisdiction, the Tribunal held that the impugned order should be treated as one passed under Section 34 of the Act against which an appeal would lie. The reasoning given by the Administrative Member of the Tribunal on this aspect is extracted as under:
'9. Though the orders issued Under Section 32(7)(a) of the Act are not appealable Under Section. 76(1) of the Act, before the A.P. Co-operative Tribunal, this Tribunal has got jurisdiction to entertain an appeal Under Section. 76(1) of Act, if any Managing Committee is removed from office Under Section 34(1) of the Act. Though the impugned orders do not mention Section 34 of the Act, the result of the impugned orders is that the duly elected Managing Committee was illegally removed from office and Person-in-charge was appointed. The impugned order is a composite order wherein the existing elected Managing Committee was removed from office and Person-in-charge was appointed in place of the Committee. Only when there is no Committee, a person-in-charge can be appointed. But person-in-charge cannot be appointed to replace the existing committee before expiry of the term of the Committee.'
5. While concurring with the above reasoning, the Judicial Member also gave separate reasoning and the same is extracted as under:
'11. No doubt, Section 76 of the A.P.C.S., Act does not provide for an appeal against a decision rendered under Clause (a) of Sub-section (7) of Section 32 of the APCS Act under which provision the impugned decision was rendered by R-1 on 28-3-2003 without mentioning RC. No. such a decision having virtually ceased the Managing Committee of the appellant-society to hold office from 29-9-2002 onwards though their time would expire by 17-4-2006, it had in effect amounted to super cession of an existing committee Under Section. 34(1) of the APCS Act which is appealable Under Section. 76 of the APCS Act.'
6. While coming to the above said conclusions as regards the maintainability, the Tribunal further found on factual aspects that there was a committee, but it was not functioning. In such a case Section 32(7) (a) could not have been applied and on the contrary such an action initiated by the 2nd respondent amounts to a action taken under Sub-section (1) of Section 34 of the Act, which deals with a situation of non-functioning of the committee, where the affairs of the committee had fallen due to inept handling and improper functioning of a Managing Committee which is existing, and that the Act holds such a committee responsible for maladministration and provides for exercise of correctional jurisdiction by the Registrar under Section 34(1) of the Act.
7. In this regard I am of the firm view that it is not the duty of the Tribunal to go into the aspect of deciding the nature of the order and changing it, in order to maintain the appeal. In other words the Tribunal cannot convert the nature of the impugned order before it, in order to maintain the appeal. If there was no finding as regards the nature of the order passed by the 2nd respondent, which was impugned before it, the said order as such could not have been appealed against under Section 76 of the Act. It is only order under Section 34, which is appealable.
8. Obviously the 2nd respondent exercising its jurisdiction under Section 32(7) (a) of the Act passed the order. When the invocation of the said jurisdiction was specifically referred to for the purpose of appointing a Person-in-charge, I am at a loss to understand as to how the Tribunal could consider the same as the one passed under Section 34(1) of the Act. When an order has been passed by the competent authority invoking the jurisdiction under a particular provision of the statute, the duty of the appellate authority would and should be only to the extent of examining the legality or otherwise of the said order. But it cannot change or mould the nature of the order, which was passed with certain comprehension, to get over the hurdle of the maintainability of the appeal. The Tribunal by giving such an interpretation to the impugned order before it, went into other aspects.
9. In my view any impugned order before the Tribunal should be understood as was understood and passed by the concerned authority and accordingly decide the legality or otherwise of it. Hence the Tribunal undoubtedly crossed the frontiers of law without identifying or knowing its own limitations. On this ground alone, the order of the Tribunal is liable to be set aside.
10. The next question that falls for consideration is that, what is the remedy available against the order passed by the 2nd respondent under Section 32(7) (a) of the Act. It is not an order for appeal. Therefore, the said order can be said to be final, of course subject to the invocation of the revisional jurisdiction either by the aggrieved party or by the Government, as the case may be, by invoking the jurisdiction under Section 77 of the Act.
11. However, I feel it necessary to go into the validity or otherwise of the order passed by the 2nd respondent exercising his jurisdiction under Section 32(7)(a) of the Act.
12. In this context it is necessary to look into the provisions of the Section 32.
13. Sub-section (1) of the Section 32 specifically envisages that two general meetings of the society shall be conducted in a co-operative year. Sub-section (2) of Section 32, postulates that general meeting of the society shall be held within 30 days from the date of receipt of requisition in writing from any of the sources mentioned therein. Sub-section (3) of Section 32 deals with the duty of the President to call for such meetings. The said sub-section is extracted as under for ready reference:
'(3) It shall be the duty of the President of the society to call the meetings of the committee so that at least one meeting of the committee is held in every three months. If the President fails to discharge that duty with the result that no meeting is held, within such period of three months or within one month following such period, he shall with effect from the date of expiration of one month aforesaid cease to be the President:
Provided that it shall also be the duty of the President to call such meetings within fifteen days of the date of receipt of requisition in writing in that behalf from any of the requisitionists specified in Sub-section (2).'
14. From the above it is clear the subsection (3) specifically casts upon the President a duty to call meeting of the society once in three months and also to call for the general meetings.
15. Sub-section (4) deals with the method of making requisition for calling for the general meeting.
16. Sub-section (5) of Section 32 deals with the procedure that is to be adopted by the Registrar. The said sub-section is extracted as under for ready reference:
(a) If for any reason, a meeting is not called in accordance with the requisition delivered under subsection (4), or if, in the opinion of the Registrar there is no committee or officer competent under this Act, the rules or the bye-laws to call a meeting, or if there be a dispute regarding the competence of the committee to function, then notwithstanding anything in the bye-laws of the society, the Registrar shall have the power to call such meeting in the manner prescribed, and to determine the time for such meeting and the subjects to be considered thereat. The Registrar or a person authorized by him in writing in this behalf shall preside at such meeting, but he shall not be entitled to vote.
(b) (i) If at any general meeting of the society called by the Registrar himself under Clause (a), otherwise than in pursuance of the requisition, there is no quorum, the meeting shall stand adjourned to such other date and time as the Registrar may determine.
(ii) If at the adjourned meeting also there is no quorum for holding the meeting, the members present shall constitute the quorum.
(c) If at any general meeting of the society called by the Registrar himself under Clause (a) in pursuance of the requisition, there is no quorum, the requisition shall lapse.
17. The above provision specifically states that if in the opinion of the Registrar there is no committee or officer competent under the Act or the Rules or the bye-laws to call a meeting, the Registrar shall have the power to call for the general meeting. Meaning thereby that this provision enables the Registrar to call for a general body meeting on his own, if he feels it necessary. In other words this provision enables the Registrar to call for a general body meeting, subject to his satisfaction. But it shall not be understood that the Registrar is at an obligation to call for the general body meeting in the situation mentioned in Clause (a) of Sub-section (5) of Section 32. Clause (b) of Sub-section (5) deals with the procedure to be followed when a general body meeting is to be called for by himself.
18. Sub-section (6) of Section 32 deals with the power of the Government to call for any general body meeting, subject to its satisfaction about the necessity to call for such meeting.
19. Sub-section (7) of Section 32 deals with the procedure that is to be adopted in different contingencies. The said sub-section is extracted as under for ready reference:
(a) If there is no committee or in the opinion of the Government or, the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the committee, the Government, in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society for a period not exceeding six months and the Government may, on their own and the Registrar with the previous approval of the Government, extend from time to time, such period beyond six months, so however that the aggregate period include the extended period if any, shall not exceed three years.
(b) ...............
(c) ...............
(d) ...............
20. From a reading of the Clause (a) of Sub-section (7) of Section 32 it is clear that if in the opinion of the Government or the Registrar there was no committee, the Government or the Registrar, as the case may be, appointed a person or Persons-in-charge to manage the affairs of the society. The language employed in the above provision is explicit to the extent that it is only the Registrar or the Government as the case may be, subject to satisfaction that there is no committee or if there is a committee, the same is not functioning, has the jurisdiction to appoint a person or Persons-in-charge.
21. Now the order of the 2nd respondent which was impugned before the Tribunal if tested in the light of the power conferred upon the 2nd respondent under Clause (a) of Sub-section (7) of Section 32 it is to be seen that in the said impugned proceedings it is stated that the general body meeting to be held on 29-3-2003, was called by the Managing Committee without majority. It is not in dispute that the committee is consisting of seven members including the President and the Secretary . The impugned order indicates that there was no majority and, therefore, a request was made to stop the convening of the general body meeting. It also appears that the report of the Sub-Divisional Co-operative Officer which was called for, also reveals that the general body meeting which was to be held on 28-9-2002 was also adjourned for want of quorum and no further general body meeting was held and in such circumstances, it was felt by the 2nd respondent that the general body meeting could not be conducted in accordance with the provisions of Section 32(1) of the Act and consequently it was found that the Management ceases to hold the office as per the provisions laid down under Section 32(1 -A) of the Act from 29-9-2000 onwards. After coming to this conclusion, the 2nd respondent specifically indicates in the order that exercising his jurisdiction under Section 32(7)(a) of the Act, appointed a Person-in-charge to manage the affairs of the society.
22. As already observed it is wholly subject to the satisfaction of the Registrar and if in the opinion of the Registrar there was no committee, Person-in-charge can be appointed to manage the affairs of the society.
23. The learned counsel appearing for the Secretary of the 1st respondent-society contends that the committee was in existence. In the counter-affidavit it is stated that the Vice-President was co-opted as a Secretary.
24. It is not in dispute that there was no President. It is further contended that though the President resigned, same was not accepted by the Registrar and, therefore, it should be deemed that the President is actively functioning.
25. The learned counsel for the 1st respondent further contended that Vice-President was co-opted as a Secretary. This again is something incomprehensible. On the other hand it is the specific contention of the counsel for the petitioner that the President had resigned quite some time back and the Secretary by name D.V. Narayana passed away and the Assistant Secretary N. Appalacharyulu also had resigned and further one more member S.N. Maruti did not claim to be member at all, as he was not invited to any of the committee meetings.
26. If the above contention of the learned counsel for the petitioner is to be accepted, obviously there was no committee because by virtue of the absence of the President, Secretary, Assistant Secretary and a committee member, only three members would remain in the committee, which cannot be called as a valid committee. It appears that the committee members have resigned and only the minority members have been functioning as members of the committee and further in such an event the minority committee members cannot fulfill the statutory obligations, particularly when a duty is cast upon the President alone to convene the general body meetings or the committee meetings.
27. On the contrary if the contention of the counsel for the 1st respondent is accepted, the committee is still in force and is capable of running the society on its own.
28. In view of the above contentious issues, it is very difficult for this court to express any opinion as regards the existence of the committee as on the date of passing of the order dated 28-3-2003 by the 2nd respondent. All these questions are purely questions of fact and this court cannot go into these questions sitting under the writ jurisdiction.
29. Unless and until the controversy raised by both the parties are thoroughly examined or enquired into, in my considered view, order passed by the 2nd respondent shall hold good.
30. In this regard it is to be further seen that Section 77 of the Act provides for a revision exercisable either by the Government or by the Registrar as the case may be. Obviously since the impugned order of the 2nd respondent dated 28-3-2003 was passed by the competent authority in the capacity of Registrar, it can be challenged before the Government by way of revision.
31. In view of the above said legal position and also in view of the rival contentions, which are factual in nature, the 1st respondent is at liberty to approach the Government by way of revision, if it so chooses within a period of one month from the date of receipt of a copy of this order. In the event of any such revision being filed, the Government shall decide the same as expeditiously as possible, preferably within a period of six months thereafter, after giving reasonable opportunity to both the sides and if necessary after through verification of the records available with the society and also with the authorities concerned.
32. Till the disposal of the above said revision, the order of the 2nd respondent dated 28-3-2003 shall be in force.
33. The writ petition is accordingly allowed with the directions indicated above. No costs.