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2002 DIGILAW 505 (GUJ)

SAMARBHAI NAGJIBHAI CHAUDHARY v. STATE

2002-07-08

J.N.PATEL

body2002
JAYANT PATEL, J. ( 1 ) THE present petition is preferred by the petitioner against the order dtd. 16. 4. 1999 passed by the District Registrar, Co-op. Societies, Mehsana, in purported exercise of the powers, whereby, the communication was made by him to the Mehsana District Coop. Bank Ltd. , for allowing certain office bearers of the Society to operate the bank account and not to allow certain other persons to operate the account. ( 2 ) THE petitioner had also preferred an appeal and Revision Application before the Statutory Authority and the order of the District Registrar was also confirmed and those orders are also under challenge before this Court. ( 3 ) THE short facts of the case are that, the petitioner Chaudhary Shamlabhai Nagjibhai, was holding the post of Chairman of the Vangla Seva Sahakari Mandali. It is the case of the petitioner that, on 7. 3. 1999, the Secretary of the Society was removed and since the Secretary was removed from the said post, the Secretary on his own created the resignation of the petitioner as Chairman of the Society and on 11. 3. 1999, proceedings were also drawn by the said Secretary for the purpose of holding Spl. Annual General Meeting and the Managing Committee was shown as elected. ( 4 ) THE case of the petitioner is that, the District Registrar, without giving any opportunity of hearing to the petitioner, passed the order on 16. 4. 1999 whereby, the Manager/chairman of Mehsana District Coop. Bank Ltd. was intimated that, the New Managing Committee which is elected on 11. 3. 1999, should only be allowed to operate the Bank Account and not the earlier one, and the copy of the order dtd. 16. 4. 1999, is also forwarded to the petitioner with noting that, appropriate orders may be obtained from the Board of Nominees regarding legality and validity of the meeting. ( 5 ) THE petitioner preferred an appeal before the Additional Registrar, being appeal No. 42 of 1999 and the said appeal is dismissed on 16. 2. 2000. The petitioner against the said order passed in appeal, preferred Revision Application before the State Government which ultimately has been dismissed vide order dtd. 14th May 2001, copy whereof is produced at Annexure "a" to this petition. ( 6 ) THEREAFTER, the petitioner approached before this Court by filing the present petition. This Court on 15. 2. 2000. The petitioner against the said order passed in appeal, preferred Revision Application before the State Government which ultimately has been dismissed vide order dtd. 14th May 2001, copy whereof is produced at Annexure "a" to this petition. ( 6 ) THEREAFTER, the petitioner approached before this Court by filing the present petition. This Court on 15. 4. 2002, after hearing both the sides has passed the following order :-"the grievance raised in this petition is that the election of the primary level Coop. Society was held on 11. 3. 1999, and thereafter, the District Registrar gave instructions to the Bank not to permit the operation of bank account through the elected body. It is the contention of the respondents that the election was not actually held and there was dispute. The question remains to be examined is whether the Dist. Registrar has authority to pass such prohibitory order unless the election is set at naught by the Competent authority. Hence, Rule. 2. BY way of interim relief, in the larger interest of the society, it is directed that the District Registrar, Coop. Societies, shall depute on officer not below the rank of a Assistant Dist. Registrar, to hold the election of the Vangla Seva Sahakari Mandali Ltd. , in accordance with the bye-laws of the society and shall complete the process of holding election within a period of two months from today and shall submit the report to this court. 3. IT is further made clear that after such election is held, the newly elected body shall be permitted to manage the affairs of the society in accordance with law. " ( 7 ) THE pending this petition, petitioner has moved C. A. No. 3977 of 2002 to restrain the respondent from allowing the new members after 11. 3. 1999 to vote or participate at the election which was being held pursuant to the order dtd. 15. 4. 2002. However, before the Civil Application No. 3977 of 2002 could further be heard by this Court, the election was already held on 14. 6. 2002. Keeping in view the aforesaid aspect of the case, the Court is required to examine the questions and the contentions raised by both the sides. ( 8 ) MR. 15. 4. 2002. However, before the Civil Application No. 3977 of 2002 could further be heard by this Court, the election was already held on 14. 6. 2002. Keeping in view the aforesaid aspect of the case, the Court is required to examine the questions and the contentions raised by both the sides. ( 8 ) MR. Jhaveri for the petitioner submitted that the order has been passed without giving any opportunity of hearing and he submitted that, the order is without any authority and jurisdiction and therefore, the order passed by the District Registrar is ab-initio void and illegal. Mr. Jhaveri also submitted that, since, in the capacity of Chairman of the Society petitioner had removed the Secretary, and since the Secretary was having record of the Society the said Secretary of his own, has drawn the proceedings of the resignation and also of the meeting without issuing any agenda to the other members and therefore, Mr. Jhaveri submitted that, it is clear case of exercise of powers by the District Registrar at the behest of the Secretary of the Society. Mr. Jhaveri also submitted that, the spirit of the order dtd. 15. 4. 2002 passed by this Court, was to enable the genuinenly elected body to function. However, he submitted that, the body which is sought to have been elected as per the proceedings dtd. 11. 3. 1999 has admitted unauthorisedly by 156 members and Mr. Jhaveri also submitted that, these persons i. e. so called newly elected admitted members, could not have participated at the election dt. 15. 4. 2002, but since the majority was to be procured by the body, they have been authorisedly allowed to participate the said 156 members. Mr. Jhaveri therefore, submitted that, while considering the subject matter of the petition, the appropriate consequential order may be passed by this Court. ( 9 ) ON behalf of the respondent No. 4, Mr. Jani has contended that, the petition, as such, has become infructuous, in as much as, the order, which was passed in April 1999, was for allowing the body which came to be elected at the relevant point of time and thereafter, on 14. 6. 2002, the election has been held and that, body is functioning. This Court may not be required to examine this question raised in the petition. Mr. 6. 2002, the election has been held and that, body is functioning. This Court may not be required to examine this question raised in the petition. Mr. Jani submitted that, even otherwise also, the District Registrar is having General Supervisory powers over the administration of the Coop. Society and therefore, he has addressed the letter dtd. 16. 4. 1999, which is impugned in this petition. But the said letter is only of an advisory in nature and it can not be said to be mandatory order. Mr. Jani also submitted that, by passing the order dtd. 16. 4. 1999, the rights and contentions of either parties are not decided and therefore, he submitted that, the order should not be interfered by this Court in view of the circumstances of the subsequent election. On the question of holding of the election dtd. 14. 6. 2002, Mr. Jani submitted that, those persons who are admitted as members and those who are members of the society as on expiry of the last accounting year, are allowed to participate and no illegality is committed at the election which has been held on 14. 6. 2002 and he also submitted that, there is no challenge raised in the main special civil application regarding admission of those persons as members and therefore, the examination of the challenge regarding admission of these persons as members would be outside the scope and ambit of this petition. Mr. Jani concluded by saying that, the petition rather be disposed of as having become infructuous. ( 10 ) ON behalf of respondent No. 1 and 2 authorities, Ms. Devani, Ld. AGP has adopted the contentious raised and the arguments advanced on behalf of the respondent No. 4. ( 11 ) THE first contention raised by Mr. Jani is that, the petition has become infructuous and therefore, this Court should not examine the question raised in this petition, appears primafacie, to be attractive. But upon the scrutiny of the record, it appears that, if the legality and validity of the order is not examined it will have effect upon the subsequent actions and meeting dtd. 14. 6. 2002, and therefore, the said contention of Mr. Jani is rejected. ( 12 ) THE order dtd. 16. 4. 1999, which is subject matter of this petition has been passed by the District Registrar without their being any authority under the law. 14. 6. 2002, and therefore, the said contention of Mr. Jani is rejected. ( 12 ) THE order dtd. 16. 4. 1999, which is subject matter of this petition has been passed by the District Registrar without their being any authority under the law. It is admitted position that, no opportunity of hearing has been given by the District Registrar to the petitioner before passing the impugned order. When its a matter of operation of the bank account and when there was no extra ordinary material with the District Registrar to dispense with the principle of natural justice, I am of the opinion that, in a matter like this, in any case, the District Registrar ought to have given opportunity of hearing to the affected persons. Since no opportunity of hearing has been given by the District Registrar, the order becomes vulnerable and will be rendered illegal. That apart, but even otherwise also, the basis of the order passed by the District Registrar is that certain election has taken placed in a primary level Coop. Societies and therefore, the body so elected should be allowed to operate the Bank account and the out going body or a particular body should not be allowed to operate the account. The said basis would essentially be a basis for challenging the election or the subject matter which would touch to the constitution or the Management of the society may be for the purpose of operating the bank account. As per the scheme of the Act, the authority or forum provided for such type of dispute, is under Sec. 96 of the Act. i. e. Registrars Board of Nominee and not the District Registrar. Mr. Jani is not able to show any provisions of Gujarat Coop. Societies Act under which the powers could be exercised by the District Registrar. ( 13 ) THE situation sought to be salvaged by contending that, it is not mandatory order, but it is advisory in nature. Perusal of the order shows that the Dist. Registrar wanted to convey that, the directions given is to be strictly complied with and the said aspect is apparent from the last line that, otherwise, there shall not be any responsibility at his end. When office like Dist. Registrar addresses letter to the Dist. Coop. Perusal of the order shows that the Dist. Registrar wanted to convey that, the directions given is to be strictly complied with and the said aspect is apparent from the last line that, otherwise, there shall not be any responsibility at his end. When office like Dist. Registrar addresses letter to the Dist. Coop. Bank of such type, it would result into affecting the rights of the existing office bearers in functioning as the Officer bearers of the society and therefore, I cannot accept contention raised by Mr. Jani that, by passing impugned order no rights are affected. ( 14 ) AS a matter of fact, the perusal of the last line of the order shows that, the Dist. Registrar was fully conscious that, the only forum is before the Nominee, but inspite of the same, he has proceeded to pass the order. In the result, the only conclusion is that, the order passed by the District Registrar is absolutely without any authority and competence and void in the eye of law. ( 15 ) THE above facts lead to the examination of second contention raised by Mr. Jhaveri in respect to the admission of 156 new members by the body which is said to have been elected on 11. 3. 1999. Mr. Jani is right in submitting that, the said aspect is beyond the scope of the subject matter of this petition. Therefore, the petitioner should take recourse available to him under the law. However, so far as the election dtd. 14. 6. 2002, is concerned, the facts remain that, these 156 members have participated at the election and therefore, whether they had any rights to participate at the said election or not is the question, which can be examined simultaneously while examining the question of admission and their status as members of the society. If the petitioner feels that, the election dt. 14. 6. 2002, is vitiated on account of the participation of 156 new members, then it will be for the petitioner take recourse available to them under the law for challenging the proceedings of the said meeting dtd. 14. 6. 2002. ( 16 ) HOWEVER, since the aforesaid question of admission of 156 members and their participation at the said meeting dtd. 14. 6. 14. 6. 2002. ( 16 ) HOWEVER, since the aforesaid question of admission of 156 members and their participation at the said meeting dtd. 14. 6. 2002, are beyond the scope of the main special civil application, I find it proper, not to examine the said aspect and the liberty should be left to the petitioner for challenging the said aspect in accordance with law without prejudice to the rights and contentions of both the sides in the said proceedings. ( 17 ) IN the result, the order passed by the District Registrar, dtd. 16. 4. 1999, and its confirmation thereof, by Additional Registrar, and the State Government as per the orders dtd. 16. 2. 2000 and 14. 5. 2001 respectively, are quashed and set aside with clarification that, so far as the challenge to the admission of 156 new members and their participation at the election and the meeting dtd. 14. 6. 2002, the petitioner will be at liberty to take the recourse available to him under the law. ( 18 ) THE petition is allowed to the aforesaid extent. There shall be no orders as to cost. ( 19 ) IN view of the order passed in main matter, the civil application shall stand disposed of accordingly. .