ORDER
D.S.R. Varman, J.
1. Challenging the proceedings dated 1-7-2000 issued by the 1st respondent, amending Bye-Law No. 1 of the petitioner-Primary Fishermen Co-operative Society, Kandikal village, Bandlaguda Mandal, Hyderabad (for short “the petitioner”), the present writ petition is filed.
2. The facts, which are not in dispute, are that the petitioner is involved in fishing activity having an area of operation of different tanks, including the disputed tank situated at Jalpally village. While so, upon the representation made by the 2nd respondent, the 1st respondent initiated proceedings to bifurcate the petitioner by deleting the said Jalpally tank from the area of operation of the petitioner and to form a new society at Jalpally village. Earlier the 2nd respondent had filed W.P. No. 15019 of 1999 seeking a relief of declaration that the action of the respondents therein in not registering their society under the provisions of the A.P. Co-operative Societies Act, 1964 (for short “the Act”), as illegal, in which the present petitioner was 5th respondent. The said writ petition was disposed of by this Court through order dated 13-3-2000 with a
direction to the official respondents therein to complete the process already initiated as expeditiously as possible and further directed that the decision shall be communicated to the petitioner therein and if necessary further opportunity shall be given to the petitioner therein before taking appropriate decision in the matter.
3. Pursuant to the said order of this Court, a notice purported to have been issued to the petitioner under Sections 15 and 15-A of the Act on 22-05-2000 proposing to delete Jalpally village with its water sources from the area of operation of the petitioner to enable the fishermen of Jalpally village to organize and register a separate society at their own, for which the petitioner had submitted a reply dated 7-6-2000 raising objections. Subsequently, the impugned proceedings dated 1-7-2000 were passed registering the amendment to Bye-Law No. 1 of the petitioner by invoking the power said to be vested with the 1st respondent under Section-15 of the Act and further by invoking Sub-section (5) of Section-16 of the Act, the amendment of Bye-Law No. 1 was duly certified and forwarded to the petitioner. Aggrieved by the same, the present writ petition is filed.
4. Learned Counsel for the petitioner contends that the 1st respondent did not follow the procedure contemplated under Sections-15 and 15-A of the Act and hence the consequential proceedings by way of making amendment to Bye-Law No. l of the petitioner through the impugned proceedings dated 1-7-2000 are illegal and without jurisdiction.
5. In the counter-affidavit filed on behalf of the 1st respondent, it was stated that the petitioner is having 16 tanks under the area of operation with water spread area of Ac.392-00. When the 2nd respondent has proposed and requested to organize a separate fishermen co-operative society in
Jalpally village with the water source of Jalpally tank, the petitioner raised an objection. However, pursuant to the directions of this Court in W.A.No. 1428 of 1998 dated 8-9-1998 and also pursuant to the judgment of the learned single Judge of this Court in W.P.No. 15019 of 1999 dated 13-3-2000 the 1st respondent issued a notice under Sections-15 and 15-A of the Act afresh on 22-5-2000 to the petitioner to show-cause as to why the Jalpally tank should not be deleted from the area of operation of the petitioner and in reply to the said notice, the petitioner made a representation dated 7-6-2000. After examining various documents regarding water spread area and also having regard to the wish of the villagers of Jalpally village to form a society, the impugned proceedings have been passed.
6. From the counter-affidavit, the assertion appears to be that the 1st respondent had invoked the provisions under Sections 15 and 15-A of the Act and hence there is no illegality or irregularity.
7. Having regard to the contentions of both parties, it is necessary to examine the very purport of the Sections 15 and 15-A of the Act and also whether the same were followed inasmuch as the said provisions are mandatory in nature.
Sub-section (1) of Section-15 of the Act reads as under:
“Power to direct division or amalgamation:–Wherein the opinion of the Registrar, any division or amalgamation of the Societies is necessary in the interest of societies or of the Co-operative movement, the Registrar shall, after consulting the financial bank to which such societies are indebted, call upon the committee of such societies, by notice in writing containing such particulars as may be prescribed and within such time as may be specified in the notice, so to divide or amalgamate, as the case may be.”
Sub-section (2) of Section 15 of the Act reads as under:
If, within the time specified in the notice, referred to in Sub-section (1), the societies fail to comply with direction of the Registrar, he shall after giving an opportunity in the manner prescribed, to the general body, the committee of such societies and the creditors thereof to make their representation, if any, by order notified in the Andhra Pradesh Gazette, direct the division or amalgamation, as the case may be and issue the necessary certificates of registration.
8. From the above, it is clear that three requirements are to be fulfilled; firstly that the Registrar shall form an opinion as regards the necessity of division or amalgamation of any society; secondly that there must be consultation with the financial bank to which such societies are indebted; and thirdly that the Registrar shall call upon the committee of such societies by notice in writing.
9. All these requirements, prescribed under Sub-section (1) of Section-15 of the Act, as already pointed out, appear to be mandatory.
10. But, a reading of the counter-affidavit reveals that no averment is made either explicitly or impliedly that the 2nd and 3rd requirements have ever been complied with. The only requirement that was fulfilled was that the Registrar had formed an opinion that Jalpally tank should be deleted from the area of operation of the petitioner.
11. A bare reading of Sub-section (1) of Section 15 of the Act makes it clear that mere formation of such an opinion is not sufficient and for formation of such an opinion either to delete or to amalgamate, the 2nd and 3rd requirements are imperatively to be complied with. Further, there is no indication whatsoever in the counter-affidavit filed by the 1st respondent as regards these
two requirements are concerned. On this ground itself i.e.t non-compliance of the mandatory requirements, the impugned proceedings, dated 1-7-2000, passed by the 1st respondent are liable to be set aside and accordingly they are set aside.
12. It is to be further seen that subsection (2) of Section 15 of the Act also specifies that in the event of issuing any notice as contemplated under Sub-section (1) of Section 15 of the Act, the Registrar is required to notify any amalgamation or deletion after issuing a necessary certificate of registration. No such Gazette Notification has been made nor is there any opinion forthcoming from the counter-affidavit filed by the 1st respondent in this regard.
13. Even assuming that any notification was issued in accordance with Sub-section (2) of Section 15 of the Act, such a notifications shall have to be declared as illegal inasmuch as the mandatory requirements under Sub-section (1) of Section 15 of the Act were not followed. In other words, the procedure contemplated under Sub-section (2) of Section 15 is subject to the procedure prescribed under Sub-section (1) of Section 15 of the Act. If the procedure under subsection (1) of Section 15 of the Act is not followed, all the consequential proceedings, even if followed, would have to be rendered as ineffective apart from being illegal.
14. It is to be further noted that the prime object of the Act is undoubtedly advancement of co-operative movement in various fields. In furtherance of these objects, some times, the concerned authorities may have to resort to the action of either deletion of area of operation of a society or divide a society and consequently form a new society or amalgamate two or more societies in order to make them more viable.
15. The question of division, by deleting a part of the area of operation from
any existing society, arises, normally when the proposed new society as well as the existing society, in spite of a division or deletion of a part of the area of operation, both the existing society and the proposed new society are found to be viable. The division of a society or deletion of a part of the area of operation of a society shall not cause prejudice to one society and abrade the existing society. Therefore, the authorities concerned should always exercise their jurisdiction under Sections-15 and 15-A and Sub-section (5) of Section-16 of the Act in a rational manner. Such formation of an opinion and the consequential final decision in this regard should always be on the rational basis after going through all the aspects indicated above.
16. When it is the specific case of the petitioner that if the disputed tank i.e., Jalpally tank, is deleted from it, it would hamper the livelihood of the fishermen drastically, it is very much essential for the 1st respondent to give a serious thought to that aspect and examine the ground realities through necessary sources and after the estimation on rational basis come to a final conclusion. It cannot be forgotten that after forming an opinion and before arriving at a final decision contemplated under Sections 15 and 15-A of the Act, the mandatory requirements envisaged under Sub-section (2) of Section 15 preceded by the mandatory procedure contemplated under Sub-section (1) of Section 15 of the Act (sic have to be satisfied).
17. As already pointed out, the procedure under Sub-section (1) of Section 15 of the Act was not strictly followed by the 1st respondent in spite of its mandatory nature, the reasons offered by the 1st respondent in the counter-affidavit cannot be sustained. Consequently, the decision arrived at by the 1st respondent through the impugned proceedings, dated 1-7-2000, is liable to be set aside and accordingly the impugned proceedings are set aside.
18. In the result, the writ petition is allowed. However, there shall be no order as to costs. It is made clear that this order does not preclude the 1st respondent to initiate necessary proceedings strictly in accordance with Sections 15 and 15-A of the old Act, keeping in view the observations made above.