K KATAIAH Vs. REGISTRAR OF CO OPERATIVE SOCIETIES

JUDGEMENT

(1.) In the writ petition, as originally presented, a writ of quo warranto was sought against the respondents 2, 3 and 4. In the election held on 2-4-1997 to elect the office bearers and Directors of the Committee of Management of the fifth respondent Co-operative Society, namely, Mutyalarao Co-operative Housing Society Limited, the respondents 3 and 4 were elected as Directors, whereas the respondent No. 2 was elected as the President of the said society. The petitioners are the members of the society. According to the petitioners, the respondents 2, 3 and 4, on the date of filing of their nominations, were working as employees; the respondent No. 2 was working as an employee of Hindustan Machine Tools, a Central Government Undertaking; the respondent No. 3 was working as Upper Division Clerk in Defence Meteorological Research Laboratories (DMRL); and the respondent No. 4 was working as an Attender in the Bank of Baroda, and therefore all of them were disqualified to be members of the society by force of the disqualification prescribed under clause (i) of sub-section (1) of Section 21-A of the Andhra Pradesh Co-operative Societies Act, 1964, for short 'the Act', as amended by the Andhra Pradesh Co-operative Societies (Amendment) Act 4 of 1995 which came into force with effect from 2-1-1995. Clause (i) of sub-section (1) of Section 21-A of the Act provides that no person shall be eligible for being chosen as, and for being, a member of the committee, if he is a Village Administrative Officer or an employee of the State or Central Government or an employee of any institution receiving aid from the funds of the State or Central Government or an employee of any undertaking owned and controlled by the State or the Central Government. The petitioners claim that the disqualification incurred by the respondents 2, 3 and 4 to be members and office bearers of the society was brought to the notice of the first respondent, the Registrar of Co-operative Societies, but the first respondent did not disqualify them, and on the other hand, it appears that he advised the second respondent to resign from the post which he held in Hindustan Machine Tools so that he can continue as the President of the society. So alleging and contending that the respondents 2 to 4 were disqualified to be the members of the society when they filed nominations, writ of quo warranto was sought against all of them. However, subsequently on 2-9-1998, Sri M.R.K. Chowdary learned Senior Counsel who appeared for the petitioners sought permission of the Court to delete the names of respondents 3 and 4 from the array of respondents on the ground that they are already disqualified by the Registrar of the Co-operative Societies, and the permission was accordingly accorded by the Court by its order dated 2-9-1998, and the names of respondents 3 and 4 were deleted.

(2.) When this case was heard for admission on 26-8-1998, it was pointed out by the Court to the learned senior Counsel that since the petitioners can seek disqualification of respondents 2 to 4 by making an application to the Registrar of Co-operative Societies under Section 21 (3) of the Andhra Pradesh Co-operative Societies Act, 1964, for short 'the Act', read with Section 31-A of the Act, the Court, in its discretion, was not inclined to entertain the writ petition, but the learned senior Counsel contested the position that writ of quo warranto is a discretionary writ, and on the other hand, he maintained that once an applicant for the writ establishes that the respondent is disqualified to hold the office in question, it becomes the duty of the Court, in other words, becomes mandatory, to issue writ of quo warranto . But, the learned Counsel was not in a position to substantiate his contention with reference to any authority, and therefore, he sought adjournment to produce authorities before the Court in support of his contention. Accordingly, the case was adjourned to enable the learned senior Counsel to produce the authorities.

(3.) Sri M. R.K. Chowdary, the learned senior Counsel, at the resumed hearing for admission, cited two-Judge Bench decision of the Supreme Court in State of Haryana vs. Haryana Co-op. Transport to which reference will be made little later, in support of his contention noted above.