JUDGMENT : Anant S. Dave, J. This petition under Article 226 of the Constitution of India is filed with following prayers: "8.(A) This Hon'ble Court may be pleased to admit this petition; (B) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the orders at AnnexureG and AnnexureI to the petition passed by respondent No.2 herein; (C) That this Hon'ble Court may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction directing the respondent No.2 to grant the leave to continue with the proceedings of Civil Suit No.2467 of 2000 pending in the City Civil Court at Ahmedabad. (D) That this Hon'ble Court will be pleased to stay the implementation, operation and execution of the impugned orders at AnnexureG and AnnexureI to the petition passed by respondent No.2 herein till and pending the admission, hearing and final disposal of this petition. (E) That this Hon'ble Court will be pleased to issue interim directions directing respondent No.2 to grant the leave under Section 111 or 112 of the Gujarat Cooperative Societies Act, 1961 to continue with the proceedings of Civil Suit No.2467 of 2000 pending in the City Civil Court at Ahmedabad till and pending hearing and final disposal of the petition. (F) That this Hon'ble Court will be pleased to award costs of this petition; (G) That this Hon'ble Court may be pleased to grant any such other and further reliefs as deemed just and proper in the facts and circumstances of the case and in the interests of justice." 2. It is the case of the petitioner that the petitioner entered into an agreement of lease dated 1.10.1998, by which, Shri Narmada Cotton Producers' Cooperative Spinning Mills Limited, a cooperative society (now in liquidation) for conversion contract for a period of 5 years. The above agreement was signed on behalf of Chairman of the Narmada Cotton Producers' Cooperative Spinning Mills Limited and Director of the petitionercompany. The above agreement was signed on behalf of Chairman of the Narmada Cotton Producers' Cooperative Spinning Mills Limited and Director of the petitionercompany. On 26.4.2000 a Civil Suit No.2467 of 2000 was filed by the petitioner Company against the said society in the City Civil Court, Ahmedabad, for breach of agreement of lease deed dated 1.10.1998 on account of nonfulfilment of the agreement by the society, the petitioner suffered a huge loss and damages and for recovery of the said damages and loss, the above suit was filed. It is the case of the petitioner that, petitioner is not a member of the society and relations between the petitioner and said society are purely contractual and commercial and rights and obligations of the parties are governed as per the terms of the above agreement of lease dated 1.10.1998 and, therefore, no right and obligation arise out of the provisions of the Gujarat Cooperative Societies Act, 1961 (in short "the Act") so far as subject matter of Civil Suit No.2467 of 2000 filed by the petitioner. 2.1. During pendency of the above Civil Suit No.2467 of 2000 an order of winding up of the above society was passed in exercise of powers under Section 107 of the Gujarat Cooperative Societies Act, 1961 and liquidator also came to be appointed under Section 108 of the above Act on 19th April, 2001. After the winding up order came to be passed, the liquidator filed Special Civil Suit No.208 of 2001 in the Court of the learned Civil Judge (SD), Bharuch, against the petitioner company for recovery of outstanding dues and liquidated damages for breach of the contract. 2.2. Thus, for the breach of terms and conditions as enumerated in various clause of the agreement, the parties have filed suit against each other and they are pending before different courts. The Civil Suit No.2467 of 2000 is pending in the City Civil Court, Ahmedabad, where service of notice of the Court is complete and it is pending at the stage of filing written statement. 3. As required under Section 112 of the Gujarat Cooperative Societies Act, 1961, the petitioner submitted an application for permission to grant leave to proceed further with the suit which came to be rejected on 6.6.2003 by Joint Director, Cottage and Village Industries, Gujarat Sate. 3. As required under Section 112 of the Gujarat Cooperative Societies Act, 1961, the petitioner submitted an application for permission to grant leave to proceed further with the suit which came to be rejected on 6.6.2003 by Joint Director, Cottage and Village Industries, Gujarat Sate. The above order dated 6.6.2003 was subject matter of challenge before this Court in Special Civil Application No.822 of 2004 on the ground that the order was passed without hearing the petitioner. After hearing the learned advocates appearing for the parties, the learned Single Judge allowed the petition by quashing and setting aside the order dated 6.6.2003 with further direction to respondent No.5 to give opportunity of hearing and to pass appropriate order after recording the reasons as to whether the leave should be granted to the petitioner for proceeding with the suit or not and while considering the said aspect the observations made by this Court in the order was also to be taken into consideration for deciding the application of the petitioner. After taking into consideration the above order, the respondentJoint Director, Cottage and Village Industries passed an order on 29.8.2005 by rejecting the application of the petitioner under Section 112 of the Act, on the ground that the notice as provided under the provisions of Section 167 was not addressed to the Registrar before filing of the suit and, therefore, the request was rejected. 4. The above order was once again subject matter of litigation in Special Civil Application No.14848 of 2005 on the ground that the petitioner may be effectively heard by informing him in advance about another date and time and decision be taken accordingly. The above Special Civil Application was allowed on 24.10.2005 by directing respondents to give fresh hearing. Accordingly, the order dated 28.11.2005 came to be passed by considering various facts, subject matter, nature of the suits filed by the petitioner and the respondent No.4 in liquidation, where contentions raised by the parties were taken note of, including nature of the agreement and after considering the provisions of Section 167 of the Act, the application under Section 112 for grant of leave to proceed with the Civil Suit by the petitioner came to be rejected. 4.1. 4.1. The above order dated 28.11.2005 passed by Joint Director, (Administration), Cottage and Village Industries, State of Gujarat refusing permission under Section 112 of the Act is impugned in this petition under Article 226 of the Constitution of India on various grounds by the petitioner. 5. Shri P.S. Champaneri, learned advocate for the petitioner vehemently contended that while considering the application of the petitioner for seeking leave to proceed with the suit under Section 112 of the Act, recourse taken by the Registrar to the provisions of Section 167 of the Act pertaining to mandatory requirement of issuance of notice to the Registrar before institution of the suit and aspects about touching the business of the society, is irrelevant in context of nature of the agreement by respondent No.4Society and the fact that the petitioner was not the member of the society and was not governed by Section 167 of the Act. It is next contended that while taking recourse to section 167 of the Act about mandatory requirement of issuance of notice to the Registrar before institution of suit and the aspects of touching the business of the society the Registrar exceeded his jurisdiction as the above issue is exclusively in the domain of Civil Court, where the suit was filed and was to be tested on the basis of pleadings of the suit nature of relief and findings that may be arrived on the basis of evidence laid with regard to the dispute between the parties at appropriate stage. It is further submitted that the Suit filed by the petitioner before the Civil Court at Ahmedabad was pertaining to breach of agreement entered into between the parties on 1.10.1998, which had no relevance on the phrase 'on touching the business of the society' and, therefore, also refusal by the Registrar to grant leave to proceed with the suit for exercise of powers under Section 112 is illegal. According to Shri Champaneri, learned advocate for the petitioner the society being a corporate body as defined under Section 37 of the Act and the Managing Committee to carry out requirement as per Section 74 of the Act, Rules and byelaws and the liquidator being the sole authority after liquidation of the society could not have decided merit of the suit, where he is also a party. It is further submitted that Suit filed by the petitioner was prior in time and liquidation had taken place subsequently and though the respondent No.4 appeared before the Civil Court at Ahmedabad in Civil Suit No.2467 of 2000, no disclosure was made about the winding up of the respondent No.4Society and, therefore, also the order deserves to be quashed and set aside. Lastly, it is submitted that by order dated 24.8.2004 passed in Special Civil Application No.822 of 2004, the Registrar was directed to decide the application under Section 112 of the Act after hearing the petitioner and considering the observations made by the Court in the above order i.e. in para 3 but by impugned order dated 28.11.2005, the Registrar merely reiterated the reasoning of the order dated 29.8.2005 which was based on provisions of Section 167 of the Act of issuance of notice etc., to the Registrar and even contentions raised on decisions cited are not taken note of. 5.1. Therefore, according to learned advocate for the petitioner, the impugned order deserves to be quashed and set aside. 6. In support of his submissions, Shri Champaneri, learned advocate for the petitioner placed reliance on the decision in the case of Ravjibhai Desaibhai Patel v. Rajpath Cooperative Society & Anr., 1976 GLR 1010 and submitted that notice under Section 167 is not a condition precedent to the institution of the suit when the subject matter of the suit is not pertaining to or touching the business of the society. That, another decision relied on in the case of Chankerbag Cooperative Housing Society Limited v. Kumari Sarojben Maganbahi by her next friend Maganbhai Karsanbhai Patel and Anr., 1991 (1) GLH 279 , where by the learned Single Judge held that statutory requirement of notice under Section 167 of the Act can be decided on facts and circumstances of each case and particularly, considering the nature of business of the society and in the present case, the petitioner, a non member of the respondent No.4Society by filing a suit for recovery of losses and liquidated the damages resulting breach of terms and conditions of lease agreement dated 1.10.1988 was aliened to the business of the society and, therefore, even if provisions of Section 167 are perused the same is not applicable and, thus, Registrar erred in deciding the application under Section 112 of the Act by taking recourse to the provisions of Section 167 of the Act hence, petition deserves to be allowed by quashing and setting aside the impugned order and directing the Registrar to grant permission under Section 112 of the Act. 7. Mr. C.B.Upadhyay, learned AGP appearing for respondentState and Mr. Varun Patel for Mr. K.M. Patel, learned advocate appearing for respondent No.1, 2, 3 and 4 vehemently submitted that the impugned order dated 28.11.2005 is passed after hearing the petitioner and due considerations on relevant facts germane for deciding an application under Section 112 of the Act and satisfaction of the Registrar arrived on the basis of appreciation of the above facts do not require any interference in exercise of powers under Article 226 of the Constitution of India. It is further submitted that if the Registrar has examined prima facie requirement of Section 167 of the Act for arriving at proper decision to decide the issue raised by the petitioner for seeking permission to grant leave to proceed further with the suit under Section 112 of the Act, it cannot be said that the Registrar has exceeded jurisdiction or passed order contrary to law. According to learned advocate appearing for the respondents the Registrar was duty bound to consider unwarranted and avoidable litigation against society in liquidation and cost that may be incurred to pursue or defend the litigation, if the permission is granted which was to be tested ultimately on the touch stone of Section 167 of the Act by the Civil Court. According to learned advocate appearing for the respondents the Registrar was duty bound to consider unwarranted and avoidable litigation against society in liquidation and cost that may be incurred to pursue or defend the litigation, if the permission is granted which was to be tested ultimately on the touch stone of Section 167 of the Act by the Civil Court. It is then submitted that the petitioner herein had admitted that no notice was given under Section 167 of the Act and when there was no dispute about issuance of notice under Section 167 of the Act, granting permission under Section 112 would have been an exercise in futility and, therefore, the findings of the Registrar that proceedings under Section 112 are of quasi judicial in nature and requirement of Section 167 can be examined and cannot be said to be in any manner contrary to law. Learned advocate further submitted that, it is otherwise also mandatory as required under subsection (2) of Section 166 of the Act which places an embargo on the powers of the Civil Court to proceed further with the civil proceedings unless permission or leave is granted by the Registrar under Section 112 of the Act. If the decision is taken in public interest and to expedite claim and proceedings of liquidation keeping in mind interest of the administration, the decision of the Registrar cannot be said to be in any manner arbitrary or unreasonable which deserves any interference by this Court. According to learned advocate for respondents the decision of the Registrar is in consonance with the direction given by the learned Single Judge in order dated 24.10.2005 in Special Civil Application No.14848 of 2005 and after hearing the petitioner and after assigning elaborate reasoning on all contentions raised by the petitioner is just and proper, the petition deserves to be rejected. 8. Mr. 8. Mr. Varun Patel, learned advocate appearing for respondent No.4Society has drawn attention to the agreement dated 1.10.1998 and the pleadings and prayers made therein and submitted that the dispute raised by the petitioner before the Civil Court, Ahmedabad and Civil Suit No.2467 of 2000 is exclusively related to management and business of the society and Section 167 are referred to touching the business of society has very vide connotation and in support of the above arguments learned advocate placed reliance on the decision in the case of Anjar Municipality v. Anjar Taluka Cooperative Sale Purchase Union & Anr., 1993 (2) GLR 1551 and submitted that reference to Section 167 by the Registrar while deciding an application under Section 112 is just, proper, reasonable and in accordance with law. Learned advocate also referred to a decision in the case of Star Engineering Works Ltd. v. Official Liquidator of the Krishnkumar Mills Co. Ltd. & Ors., 1975 GLR 371 by drawing analogy from Section 446 of Company Act, 1956 where suit for proceedings against Company in liquidation, leave of the Court is mandatory and principles regarding granting of leave laid down therein which according to learned advocate will be applicable in the facts and circumstances of this case while exercising powers under Section 112 of the Act by the Registrar and, therefore, prime consideration of the authority is to see that the society is not to be exposed to unnecessary litigation and cost, and the decision is to be taken in the best interest of the society and futility of proceedings before the Civil Court pertaining to nonissuance of notice as required under Section 167 was admitted by the petitioner and, therefore, decision of the Registrar based on Section 167 cannot be said to be illegal. 9. Mr. Varun Patel, learned advocate further submitted that conduct of the petitioner of not adhering to the terms and conditions of the agreement dated 1.10.1998, for which, the liquidator had to file Civil Suit before the learned Civil Judge at Bharuch being Civil Suit No.208 of 2001 for recovery of outstanding dues and liquidated damages will show that the petitioner somehow takes recourse to the litigation and in granting of relief under Article 226 of the Constitution of India will delay the proceedings of liquidation and against the interest of the society at large. It is also submitted by Mr. It is also submitted by Mr. Varun Patel, learned advocate for the respondent that the petitioner has adequate alternative remedy for redressal of his grievances and, therefore, the petition deserves to be rejected. 10. Having heard learned advocates appearing for the parties, perusal of the record and the relevant provisions namely Sections 112, 166 and 167 of the Gujarat Cooperative Societies Act, 1961, I am of the opinion that while passing the impugned order in exercise of powers under Section 112 of the Act, the Registrar has unnecessarily taken into consideration requirement of issuance of notice before institution of suit under Section 167 of the Act, which exclusively to be decided by the Civil Court where the suit is pending. Section 112 reads as under: "Bar of suit in winding up and dissolution matters: Save as expressly provided in this Act, no Civil Court shall take cognizance of any matter connected with the winding up or dissolution of a society under this Act; and when a winding up order has been made no suit or other legal proceedings shall lie or be proceeded with against the society or the liquidator, except by leave of the Registrar, and subject to such terms as he may impose; Provided that, where the winding up order is cancelled, the provisions of this section shall cease to operate so far as the liability of the society and of the members thereof to be sued is concerned, but they shall continue to apply to the persons who acted as liquidator." Section 166 of the Act reads as under: "Bar of jurisdiction of courts:1. Save as expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of (a) the registration of a society or its byelaws, or the amendment of its byelaws, or the dissolution of the committee of a society, or the management of the society on dissolution thereof; or (b) any dispute required to be referred to the Registrar, or his nominees, or board of nominees, for decision; (c) any matter concerned with the winding up and dissolution of a society. 2. 2. While a society is being wound up, no suit or other legal proceeding relating to the business of such society shall be proceeded with or instituted against the society or any member thereof, or any matter touching the affairs of the society, except by leave of the Registrar, and subject to such terms as he may impose. 3. All orders, decision or awards passed in accordance with this Act or the rules, shall, subject to the provisions for appeal or revision in this Act be final; and no such order, decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any it upon the merits, or upon any other ground whatsoever except for want of jurisdiction." Section 167 of the Act reads as under: "Notice necessary in suits: Save as otherwise provided in this Act, no suit shall be instituted against a society, or any of its officers in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left." 11. The above sections are relevant in the context of the facts and issues involved in this petition under Article 226 of the Constitution of India. Section 112 is with regard to Bar of Suit in windingup and dissolution matters which begins with phrase 'save as expressly provided in this Act' and further restrains Civil Court from taking cognizance of any matter connected with the windingup or dissolution of a society under the Cooperative Societies Act and even after winding-up order is passed a suit or any other legal proceedings can proceed further against the society or the liquidator except by the leave of the Registrar. Therefore, in the facts of this case the petitioner filed a Civil Suit No.2467 in the Court of City Civil, Ahmedabad on 26.4.2000 for recovery of huge loss and damages pursuant to nonfulfilment of the agreement dated 1.10.1998 against respondent No.4. Therefore, in the facts of this case the petitioner filed a Civil Suit No.2467 in the Court of City Civil, Ahmedabad on 26.4.2000 for recovery of huge loss and damages pursuant to nonfulfilment of the agreement dated 1.10.1998 against respondent No.4. Admittedly, the order dated 19.4.2001 for windingup of respondent No.4Society came to be passed in exercise of powers under Section 108 of the Act and liquidator was appointed. Therefore, as required under Section 112, leave of Registrar was necessary to proceed further with the suit. In juxtaposition to Section 112 if subsection (2) of Section 166 is perused with regard to power of jurisdiction of courts when a society is being woundup, no suit or other legal proceedings relating to the business of such society shall be proceeded, a duty is cast upon to consider a request for leave of the Registrar by affected persons or a party in accordance with law. 11.1 So far as Section 167 is concerned, it mandates issuance of notice before institution of suit against a society or its officer in respect of any Act touching the business of the society and, therefore, requirement of issuance of notice prior to institution of suit or otherwise is to be looked into by the Civil Court where the suit is pending. In case if objection is raised by the defendant in this regard at that point of time the Civil Court can certainly look into necessary material including pleadings in the suit to decide about nature of the suit, relief claimed and whether provisions of the Cooperative Society Act are applicable and issuance of notice or otherwise is mandatory and if mandatory noncompliance there of is fatal or not. By placing reliance on provisions of Section 167 and considering the fact of non issuance of notice by the petitioner to respondent No.4 before institution of suit was not within purview of Registrar considering an application for leave while exercising powers under Section 112 of the Act. By placing reliance on provisions of Section 167 and considering the fact of non issuance of notice by the petitioner to respondent No.4 before institution of suit was not within purview of Registrar considering an application for leave while exercising powers under Section 112 of the Act. It is more so, a careful perusal of Sections 166 and 167 of the Act reveals that subSection (2) of Section 166 which bars jurisdiction of Courts refer to suit or other legal proceedings relating to the business of such society was to be proceeded with or instituted against a society which is being woundup or any matter touching the affairs of the society except by leave of the Registrar and Section 167 is about prohibition of institution of a suit against a society or of its officer in respect of any Act touching the business of the society, therefore, subsection (2) of Section 166 is wider in terms when it refers to 'any matter touching the affairs of the society' then a reference to a phrase 'any Act touching the business of the society' as referred to in Section 167 of the Act requiring notice to be issued before institution of suits. Therefore, only Civil Court can decide the above aspects whether issues involved in the suit proceedings had anything to do with the Act touching the business of the society or touching the affairs of the society depending upon the facts and circumstances of each case. Even, other issues about breach of terms and conditions in various clauses of the agreement dated 1.10.1998 and recital in the lease agreement has any bearing or relevance on the phrase namely any Act touching the business of the society or affairs of the society can only be gone into by the Civil Court after discussing and scrutinising the evidence on record. 11.2. 11.2. That, Registrar, exercising powers under Section 112 of the Act, no doubt may consider welfare of the society in liquidation and public interest but at the same time when contentions are raised to the effect that the petitioner is not a member of the society and dispute pending before the Civil Court in a suit filed by the petitionerplaintiff, various contentions have been raised and, therefore, whether pleadings in the suit supported by necessary documentary as well as oral evidence and relief claimed thereunder, only Civil Court can analyse such pleadings and evidence on record and come to the conclusion that whether subject matter of the suit is touching the business of the society and, therefore, a notice is mandatory under Section 167 of the Act. If on analysing and scrutinising the evidence on record if the Civil Court finds that subject matter of suit is not touching to the business of the society, in such case, a Court may come to a conclusion that notice under Section 167 of the Act may not be necessary. All the above aspects can be considered by the competent Civil Court were suit proceedings are pending and Registrar exercising powers under Section 112 of the Act is only performing his administrative duties to a limited extent about protecting interest of the society in liquidation under ChapterX of the Gujarat Cooperative Societies Act. 11.3. Therefore, reliance placed on Section 167 of the Act for denying leave to proceed further with the suit is illegal and contrary to law and, therefore, deserves to be quashed and set aside. 12. Therefore according to this Court, the decision of the Registrar amounts exceeding jurisdiction vested in him and reliance placed on requirement of Section 167 of issuance of notice before institution of suit is extraneous and not germane while exercising powers under Section 112 of considering an application for leave. One more fact is to be taken into consideration in filing Special Civil Suit No.208 of 2001 by the liquidator in the Court of learned Civil Judge (S.D.), Bharuch against the petitionerCompany also for recovery of outstanding dues pursuant to breach of alleged contract and therefore in all fairness the Registrar ought to have considered the application for leave preferred by the petitioner under Section 112 of the Act in correct perspective by granting it. 13. 13. A bare perusal of the impugned order would reveal that no other justification comes forth except nonissuance of notice under Section 167 of the Act, in spite of the fact that on earlier occasions learned Single Judge of this Court twice directed the Registrar to decide the application for leave after considering the rival contentions and affording effective opportunity of hearing as observed in the order dated 24.8.2004 in Special Civil Application No.822 of 2004 but the above observations have also not been taken into consideration by the Registrar. 14. Even on second occasion the impugned order dated 29.8.2005 was challenged in Special Civil Application No.14848 of 2005 which was allowed by an order dated 24.10.2005 on the ground that the order impugned was required to be kept in abeyance till the reasoned order is passed after hearing the petitioner but ultimately the Registrar has failed to pass reasoned order and therefore also the order impugned in this petition is arbitrary, unreasonable, contrary to law and deserves to be quashed and set aside. 15. Thus, the decisions relied on by the learned advocates for the parties and proposition of law laid down therein, this Court is not in disagreement with but considering the facts and circumstances of the case in the backdrop of provisions of Sections 112, 166 and 167 of the Act those decisions are as such not relevant to be taken into consideration and for the discussions herein above this petition is allowed and impugned order dated 28.11.2005 passed by the Registrar, Cooperative Society is quashed and set aside. Rule is made absolute accordingly. Petition allowed.