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Tuesday, June 30, 2015

Whether the impugned Sanction proceedings issued by respondent No.1 ,are without jurisdiction and under Section 83(3) of the Act, no prosecution shall be instituted under the Act without the previous sanction of the Registrar and that respondent No.1 is only the Collector and not the Registrar and that therefore it is only the Registrar appointed under Section 3(1) of the Act who is entrusted with the power to sanction prosecution.




THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY            

WRIT PETITION NO.28047 of 2012  

2-6-2015

Thota Tata Rao   Petitioner

The District Collector Krishna District at Machilipatnam  and others
Respondents

COUNSEL FOR THE PETITIONER:  Mr. C. Raghu      

COUNSEL FOR RESPONDENT NOs.1, 2 and 4: G.P. for Co-operation (AP)      
 COUNSEL FOR RESPONDENT NO.3          :  None appeared      

<GIST

>HEAD NOTE:  

? CITATIONS:
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY          

       
WRIT PETITION NO.28047 OF 2012    


DATED:2.6.2015

THE COURT MADE THE FOLLOWING:        


ORDER:

        This writ petition is filed for a Mandamus to set aside the
Proceedings Rc. No.5744/2003/MTM/C-1, dt.28.12.2011 of respondent  
No.1 whereby he has authorized respondent No.2 to file a criminal
complaint against the petitioner.
2.      I have heard Mr. C. Raghu, learned counsel for the petitioner, and
the learned Government Pleader for Co-operation (AP).
3.      The petitioner was a President of Viswanathapalli Primary
Agricultural Cooperative Society Limited.  Proceedings under Section 60 of
the Andhra Pradesh Cooperative Societies Act, 1964 (for short, the Act)
were initiated for the alleged misappropriation of a certain amount by the
petitioner.  Initially a surcharge order was passed on 15.11.2003 by the
Joint Registrar/District Cooperative Officer, Krishna District at
Machilipatnam.  The said order was questioned by the petitioner by way
of an appeal.  The appeal was allowed and the case was remanded to the
original authority. After remand, the Deputy Registrar of the Cooperative
Societies, Machilipatnam, has passed a fresh order on 26.3.2011 wherein
the petitioner was found guilty of misappropriating a part of the amount
belonging to the cooperative society, along with the then Paid Secretary.
The petitioner, it is stated by the learned counsel appearing for him,
instead of questioning the said order has paid the entire amount of
Rs.85,735/- payable under the surcharge order.  Following the surcharge
order passed against the petitioner, respondent No.2 has approached
respondent No.1 for sanction of the petitioners prosecution.  Vide the
impugned proceedings respondent No.1 has granted the sanction.  It is
this order which is questioned in this writ petition.
4.      A counter affidavit is filed on behalf of respondent Nos.1, 2 and 4.
5.      At the hearing, Mr. C. Raghu, learned counsel for the petitioner,
strenuously contended that the impugned proceedings issued by
respondent No.1 are without jurisdiction.  He has elaborated his
submission by stating that under Section 83(3) of the Act, no prosecution
shall be instituted under the Act without the previous sanction of the
Registrar and that respondent No.1 is only the Collector and not the
Registrar and that therefore it is only the Registrar appointed under
Section 3(1) of the Act who is entrusted with the power to sanction
prosecution.  The learned counsel further submitted that though Section
2(n) of the Act defines Registrar, as including any person other than the
Registrar appointed under Section 3(1) of the Act, such persons should
have been conferred with the power of the Registrar under the specific
provisions of the Act and that as the Collectors have not been conferred
with such power under Section 83(3) of the Act, they cannot be treated as
Registrars within the meaning of the said provision.  He has referred to
Section 62(1)(b) of the Act to fortify his submission.
6.      Opposing the above submission, learned Government Pleader for
Co-operation (AP) has relied upon the Notification 7.10.2009 published in
the Andhra Pradesh Gazette dt.6.11.2009 and submitted that since the
Collectors have been appointed as Registrars under Section 3(1) of the
Act for the specific purpose under Section 83(3) of the Act, respondent
No.1 has jurisdiction to sanction the prosecution of the petitioner.
7.      Countering his submission, the learned counsel for the petitioner
has submitted that if it is assumed that the Collectors are appointed as
Registrars under Section 3(1) of the Act, they are bound to function under
the superintendence of the Registrar of the Cooperative Societies
appointed under Section 3(1) of the Act and that in the instant case there
is no material on record to show that respondent No.1 has obtained
appropriate instructions from the Registrar of Cooperative Societies before
sanctioning the prosecution of the petitioner.
8.      In order to resolve the dispute, the relevant provisions of the Act
need to be noticed.
        Section 2(n) of the Act defines Registrar as under:
        Registrar means the Registrar of Cooperative Societies appointed under
Section 3(1) and includes any other person on whom all or any of the powers of
the Registrar under this Act are conferred:

        Section 3 of the Act reads as under:
        3. Appointment of Registrar and other persons for the purpose of
this Act: - (1) There shall be appointed a Registrar of Cooperative Societies
for
the State and as many other persons as the Government think fit for the
purposes of this Act.
        (2) Every other person appointed under sub-section (1) shall exercise
under the general superintendence of the Registrar, such powers of the
Registrar, under this Act as the Government may from time to time confer on
him.

        Section 83 of the Act, which deals with cognizance of offences,
reads as follows.
        (1) No court inferior to that of a Magistrate of the first class or a
Metropolitan Magistrate shall try any offence under this Act.
        (2) Every offence under this Act shall, for the purpose of the Code of
Criminal Procedure, 1973, be deemed to be cognizable.
        (3) No prosecution shall be instituted under this Act without the previous
sanction of the Registrar.

9.      On a careful reading of the above mentioned provisions, it is clear
that the Act envisages not only the appointment of a Registrar of the
Cooperative Societies for the State, but also any other person as a
Registrar, besides conferring the powers on such persons all or any of the
powers of the Registrar under the Act.  Before proceeding further, it
needs to be noted that the validity of the Notification dt.7.10.2009
appointing the Collectors as Registrars for the purpose of exercise of
powers under Section 83(3) of the Act, is not questioned.  A careful
perusal of the said notification reveals that the District Collectors have
been appointed for sanctioning prosecution against the personnel
connected with the primary level and District level cooperative societies
only.  This appointment is made under Section 3(1) of the Act.  It is a
moot question as to whether it was appropriate for the State Government
to invoke Section 3(1) of the Act for appointing Collectors as Registrars,
for the limited purpose of exercise of power under Section 83(3) of the
Act, instead of conferring such powers on them without such
appointment.  This question need not be addressed as the validity of the
notification is not under challenge.  The fact, however, remains that the
State Government has exercised the power conferred on it under Section
3(1) of the Act by appointing all the Collectors as Registrars for exercising
the powers under Section 83(3) of the Act.  On the strength of such
appointment, respondent No.1 very well answers the description of the
Registrar referred to under Section 83(3) of the Act.  Once an
appointment is made under Section 3(1), the appointee is entitled to
exercise all the powers of the regular Registrar which are specifically
conferred on him by proceeding under which he is appointed.  The words
All or any other powers under this Act are conferred are referable to the
powers conferred on the regular Registrar.  Such powers can as well be
conferred on others appointed as Registrar.  Reliance on Section 62(1)(b)
of the Act by the counsel is wholly misplaced.  This is only an enabling
provision whereunder the regular Registrar can make over his functions to
another person specifically appointed by the Government to discharge his
functions as arbitrator under Section 61 of the Act.  Mere absence of such
a provision under Section 83(3), does not denude an appointee under
Section 3(1) of the Act of the exercise of the specific power conferred on
him by the Government.  Therefore, it is not correct to contend that the
persons other than the Registrar appointed under Section 3(1) of the Act
can exercise powers only if a particular statutory provision under the Act
permits such exercise.  Hence, the submission of the learned counsel for
the petitioner that respondent No.1 has no jurisdiction to sanction
prosecution of the petitioner is without any merit.
10.     The submission of the learned counsel for the petitioner that if
respondent No.1 was appointed under Section 3(1) of the Act, he has to
necessarily take instructions from and act under the directions of the
Registrar of the Cooperative Societies under Section 3(2) of the Act, can
be referred only to be rejected.  Under sub-section (2) of Section 3 of the
Act, the same persons, other than the Registrar of Cooperative Societies,
appointed as Registrars under sub-section (1) shall exercise the powers
under the general superintendence of the Registrar.  The phrase general
superintendence shall not be understood casting obligation on the other
appointees to obtain permission from the Registrar of Cooperative
Societies before exercising the power conferred on them.  At best it could
be said that where in respect of any power that is exercisable by persons
appointed under sub-section (1) of Section 3 of the Act as Registrars, the
Registrar of Cooperative Societies may issue general directions and in
such a case such Registrars shall not act in violation of such directions.  In
the instant case, it is not the pleaded case of the petitioner that the
impugned sanction of prosecution granted by respondent No.1 against the
petitioner is contrary to any of such general directions issued in exercise
of his powers of general superintendence by the Registrar of Cooperative
Societies.
11.     On the analysis as above, I do not find any illegality or jurisdictional
error in the order passed by respondent No.1.
12.     The writ petition is therefore dismissed.
        As a sequel to dismissal of the writ petition, W.P.M.P. No.35730 of
2012 shall stand disposed of as infructuous.

______________________  
C.V. NAGARJUNA REDDY, J    
02.06.2015 

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