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2002 DIGILAW 356 (GUJ)

UCHARAPI SEVA SAHAKARI MANDLI LIMITED v. STATE

2002-04-24

J.N.PATEL

body2002
JAYANT PATEL, J. ( 1 ) ). HEARD Mr. KS Jhaveri, for petitioner and Mr. AD Oza, Ld. GP with Mr. IM Pandya, Ld. AGP for the respondent nos. 1,2 and 3 and Mr. Vaghelal for the respondent No. 4 and Mr. DA Desai for SK Jhaveri, for respondent No. 5. ( 2 ) ). RULE. With the consent of the parties the matter is taken up today for final hearing. ( 3 ) ). THE short facts giving rise to the present petition are that, on 6. 12. 2001, the District Registrar passed an order for appointing the administrator in exercise of the powers under Sec. 81 of the Gujarat Cooperative Societies Act, 1961 (hereinafter for the sake of convenience and brevity referred to as "the Act" ). Against the said order passed by the District Registrar, the respondent No. 4 viz. Society, preferred a Revision before the State Government though the appeal was maintainable under Sec. 153 (3) of the Act and the said Revision Application came to be preferred under Sec. 155 of the Act. The Revisional Authority passed an order which came to be challenged by the petitioner by preferring Spl. C. A. No. 11667 of 2001 and on 14. 12. 2001, this Court passed an order directing the petitioner to prefer an appeal before the State Government interalia observed that it will be open for the petitioner to raise all contentions, which are mentioned in the petitioner, as well as which are available to the petitioner under the law, and shall decide the same in accordance with law. ( 4 ) ). THEREAFTER, the petitioner appeared before the Revisional Authority and raised the contentions, which were raised in the petition namely that, when the statutory remedy of appeal is available, the revision should not be entertained. However in respect of the same, the Revisional Authority viz. the State Government passed order dtd. 15. 12. 2001, whereby, the revision is allowed and the order passed by the District Registrar appointing the administrator under Sec. 81 of the Act is set aside. It is the said order dtd. 15. 12. 2001, which is under challenge in this petition. Since there were 5 societies, separate petitions are preferred by all. ( 5 ) ). MR. Jhaveri for the petitioner contended that, when this Court had relegated the petitioner vide order dtd. 14. 12. It is the said order dtd. 15. 12. 2001, which is under challenge in this petition. Since there were 5 societies, separate petitions are preferred by all. ( 5 ) ). MR. Jhaveri for the petitioner contended that, when this Court had relegated the petitioner vide order dtd. 14. 12. 2001 and the Revisional Authority is also directed to decide the contentions and the Revisional Authority, instead of deciding the preliminary contentions of the petitioner regarding the maintainability of the revision, decided the main revision without even dealing the aforesaid and other contentions raised by the petitioner. Mr. Jhaveri also submitted that, when the appeal was permitted, as per the settled principle of law it was a obligatory for the Revisional Authority to relegate the parties to prefer an appeal and straightway the revision should not be entertained. ( 6 ) ). ON behalf of the respondent No. 4 society, Mr. Vaghela submitted that, the petitioner has as such no locus-standi to prefer this petition and they could not have objected the revision, preferred by the respondent No. 4 society before the state government. Mr. Vaghela submitted that, as a matter of fact, when the appointment of administrator is made under Sec. 81 of the Act, the petitioner society has nothing to do with the said order and therefore, they cannot raise contentions that the petitioner should go to the appellate authority and cannot invoke the revisional powers of the State Government. ( 7 ) ). MR. AD Oza, LD GP with Mr. IM Pandya, Ld. AGP for the respondents supported the order passed by the Revisional Authority. ( 8 ) ). CONSIDERING the above, it is clear that the order was passed under Sec. 81 of the Act, and against the said order passed under Sec. 81 of the Act, though statutory remedy of appeal is provided under Sec. 153 (3) of the Act, the revision was preferred before the State Government under Sec. 155 of the Act. When statutory remedy of appeal is provided, normally, it was necessary for the authority to relegate the parties to prefer an appeal and not to entertain the revision. ( 9 ) ). AFORESAID observations are made in the normal circumstances, but in an extraordinary circumstances, may be for the reason that the appellate authority are not available etc. , the revision can still to be maintained. ( 9 ) ). AFORESAID observations are made in the normal circumstances, but in an extraordinary circumstances, may be for the reason that the appellate authority are not available etc. , the revision can still to be maintained. But neither side has raised such contentions that it was not possible for the respondent No. 4 society to prefer an appeal, therefore, when the forum of appeal is provided by the statute and there were no special circumstances for not to prefer an appeal, it appears that, the Revisional Authority was not justified in entertaining the revision and deciding the revision on merits. ( 10 ) ). THE said aspect could coupled with the fact that this court has earlier observed by giving direction to the Revisional Authority to take the decision. The decision is not at all taken and apart from that, even the perusal of the scheme under Sec. 155 and 153 of the Act shows that normally when the appeal has been permitted by the statute, it is necessary for the party to resort to such remedy and it is only extra ordinary circumstances, such remedy can be bypassed. In the present case, since the appeal is not preferred and straightway, the revision is preferred, the action of entertaining the revision and deciding the revision, on merit, is primafacie cannot be sustained on the basis of sound judicial discretion. However, since the revision is decided on merits, and it has been submitted by Mr. Vaghela that managing committee of the society is functioning even today, I find it proper to pass the following orders:-1) the respondent NO. 4 society shall prefer an appeal within a period of 4 weeks from today under Sec. 153 of the Act against the order under Sec. 81 passed by the District Registrar2) upon such appeal, the appellate authority shall take the decision within a period of 3 months from the receipt of such appeal. The appeal of the society shall be decided on its merits without being influenced in any manner by any observations, made by Revisional Authority while deciding the revision application as per Order dtd. 15. 12. 2001. 3) until the appeal is finally decided as indicated above, the status-quo as prevailing as on date, shall be maintained. ( 11 ) ). THE petition is allowed to the aforesaid extent. There shall be no orders as to costs. 15. 12. 2001. 3) until the appeal is finally decided as indicated above, the status-quo as prevailing as on date, shall be maintained. ( 11 ) ). THE petition is allowed to the aforesaid extent. There shall be no orders as to costs. Rule is made absolute accordingly. .