ORDER
1. Two important questions of law of general importance arise for consideration in this writ petition. The questions are:– (a) when the Registrar forms an opinion contemplated under sub-section (5) of Section 16 of the Andhra Pradesh Cooperative Societies Act, 1964, for short ‘the Act’, whether he is required to form such opinion on the basis of his subjective satisfaction or on his objective satisfaction; and (b) whether before forming the opinion under sub-section (5) of Section 16 of the Act, it is necessary for the Registrar to notify the concerned co-operative society and give it an opportunity of making its representation. These two questions arise in the backdrop of the following facts:
2. The petitioner is Fishermen Cooperative Society registered under the provisions of the Act. The second respondent – the Assistant Director of Fisheries, Medak district who is the Registrar for the purpose of the Act, issued notice No. 474/D/93 dated 22-7-1993 calling upon the petitioner-Society to delete Suraram village from the area of operation of the petitioner-society and submit a report in that regard within thirty days to him. There is no dispute between the parties that this notice was issued by the second respondent by virtue of the power conferred upon him under sub-section (5) of Section 16 of the Act. This order has been impugned in this writ petition by the petitioner-society.
3. The learned counsel for the petitioner firstly contended that before issuing the notice under sub-section (5) of Section 16 of the Act, the second respondent was required to form an opinion which in turn was required to be based on objective satisfaction. The learned counsel contended that in the present case the opinion formed by the second respondent is not based on any objective satisfaction. The learned counsel next contended that such a opinion could not be reached by the second respondent without affording an opportunity to the society to have its say in the matter. He further contended that in the present case the second respondent admittedly did not give any opportunity to the petitioner-society to have its say before he formed the opinion. For these reasons, the learned counsel submitted that it is a fit case where the Court should interfere. On the other hand, the learned counsel appearing for the respondents supported the impugned action of the second respondent and submitted that the impugned notice was issued by the second respondent in perfect conformity with the powers granted to him under subsection (5) of Section 16 of the Act.
4. Sub-section (5) of Section 16 of the Act reads thus:
“(5) If in the opinion of the Registrar, an amendment of the bye-laws of a society is necessary or desirable in the interest of such society or of the co-operative movement he may, in the manner prescribed, call upon the
society to make any amendment within such time as he may specify. If the society fails to make such amendment within the time so specified, the Registrar may, after giving the society an opportunity of making its representation, register such amendment and forward to the society by registered post a copy of the amendment together with a certificate signed by him; such a certificate shall be conclusive evidence that the amendment has been duly registered; and such an amendment shall have the same effect as an amendment of any bye-law made by the Society.”
Sub-section (5) of Section 16 of the Act contemplates that before the Registrar calls upon the society in question to carry out an amendment contemplated in the said subsection he is required to form an opinion that an amendment of the bye-laws of the society is necessary or desirable in the interest of society or of the co-operative movement. It should be noted that the formation of opinion contemplated under sub-section (5) of Section 16 of the Act, in the context of the case, should be held to be an opinion which is required to be based on subjective satisfaction of the Registrar and not on objective satisfaction. However, this opinion is required to be formed by the Registrar in the context of a power granted by the statute law. Therefore, it should be held that the opinion which is required to be based on subjective satisfaction of the Registrar should in turn be based on objective considerations or facts. In the present case it is not the case of the petitioner that when the second respondent formed the opinion which led to the issuance of the impugned notice, he formed such opinion on any irrelevant considerations or considerations which are not germane to the lawful exercise of that power. The impugned notice discloses that the fishermen of Suraram village have filed an application before the authorities requesting the latter for deletion of their village from the area of operation, of the petitioner-society. The second respondent has referred to this aspect in the impugned notice. The request of the fishermen of Suraram village to delete their village from the operation of the petitioner-co-operative society cannot be said to be an irrelevant
consideration for the formation of an opinion contemplated under sub-section (5) of Section 16 of the Act. Therefore, there is no merit in the contention of the learned counsel for the petitioner.
5. I do not find any merit in the second contention too advanced on behalf of the petitioner.” The formation of opinion contemplated under sub-section (5) of Section 16 of the Act is comparable to a satisfaction on the part of an employer to initiate a disciplinary proceeding against a delinquent employee. It is permissible for the employer to collect any materials for his satisfaction and to decide as to whether there is any prima facie case or not and in such a case the employee is not entitled to a right of hearing at the pre-enquiry stage; in other words the employee has no right to be heard in pre-enquiry proceedings. Similarly it is not necessary for the Registrar to give any opportunity to the concerned Co-operative Society before he forms an opinion that an amendment of the bye-laws of such a society is necessary or desirable in the interest of such society or of the co-operative movement. This declaration of law is in no way prejudicial to the concerned co-operative society because if the Registrar after formation of opinion calls upon the co-operative society to amend the bye-law and if that direction is not carried out by the concerned co-operative society and the concerned society shall have a right to be heard in the matter if the Registrar proceeds to amend the bye-laws himself and that is assured by sub-section (5) of Section 16 of the Act itself. Therefore I do not find any substance in the second argument advanced on behalf of the learned counsel for the petitioner.
6. The learned counsel for the petitioner, however, sought to derive support for his contentions from a decision of this Court (per S. R. Nayak, J.) rendered in the case of Dhumpala Sangameshwar v. Commissioner of Fisheries and Registrar of Co-operative Society (W. P. No. 9938 of 1993 decided on 4-8-1994). That decision is of no help to the petitioner. In that case an order made by the Commissioner of Fisheries and Registrar of
Co-operative Societies directing the third respondent therein, namely, the Assistant Director of Fisheries, Subashnagar, Nizama-bad district to separate Thimmapur village from the area of operation of Fishermen Go-operative Society, Gandivasanipet, Nizama-bad, was questioned. The Court, noticing that the impugned direction was issued by the Head of the Department of co-operation to a subordinate officer, held that the subordinate officer, in those facts-situation was obliged to carry out that direction and in that view of the matter the right to be heard provided to the co-operative society under sub-section (5) of Section 16 of the Act would be an empty formality. In that view of the matter in that case this Court interfered and held that the Commissioner of Fisheries and Registrar of Co-operative Societies pre-determined the whole issue. In other words that was a case where the Commissioner of Fisheries had put the horse before the cart. The view taken by me in that case subsequently was confirmed by the Division Bench of this Court in W.A. No. 956/94 decided’on 30-1-1995. Therefore, that decision is of no relevance or application to the facts of this case.
7. No other point was argued before the Court.
8. The writ petition fails and is accordingly dismissed.
9. However, it is made clear that if the
second respondent proceeds to take further action in pursuance of the impugned notice it is needless to state that he is required to give an opportunity to the petitioner-society to have its say in the matter as required under sub-section (5) of Section 16 of the Act itself. It is also made clear that all the interim orders made in this writ petition during its pendency shall come to an end with the dismissal of this writ petition.
11. In the facts and circumstances of the case the parties are directed to bear their own costs.
12. Petition dismissed.
