Rajnikant Bhogilal Patel v. State of Gujarat Thro Secretary
2017-10-05
N.V.ANJARIA
body2017
DigiLaw.ai
JUDGMENT : The petitioners are aggrieved by, and, they pray to set aside order dated 13th March, 2012 passed by District Registrar – respondent No.2 herein, who did not entertain the petitioners' application under Section 20 of the Gujarat Co-operative Societies Act, 1961, for cancellation of registration of respondent No.3 co-operative society. 2. The originally filed petition contained two prayers. The first prayer was for declaring that order dated 05th October, 1997 of Gujarat Revenue Tribunal was not binding to the petitioners. The first prayer was not pressed by the petitioners as while issuing Rule in the petition, in order dated 17th July, 2012, the Court recorded statement of learned advocate for the petitioners that the petition was not pressed in respect of the first prayer since the said prayer could not be granted. The second prayer was for setting aside aforementioned order dated 13th March, 2012 which only survived. 3. The case of the petitioners is inter alia that land bearing Survey No.246/1/2, now been converted into Final Plot No.294 admeasuring 3,251 sq. mtrs. in Town Planning Scheme No.9 of Ahmedabad City, belonged to their grandfather Bhudarbhai Lallubhai Patel. Bhudarbhai died in 1937, to leave behind him his widow Kashiben and two sons – Bhogilal and Kalidas, the father and the uncle respectively of the petitioners herein. It is the further case that grandmother Kashiben sold off the property which was ancestral property, by registered sale deed dated 19th July, 1966 in favour of one Aaram Co-operative Housing Society Limited though she was no such right. The petitioners claimed coparcenary right and interests in the land. It appears that the said Aaram Co-operative Housing Society came to be dissolved and divided into five different societies, one of which happened to be respondent No.3 herein. Respondent No.3 society was created and came to be registered on 19th May, 1997. 3.1 On the premise of assertion of claim of ownership as above, petitioners made an application dated 19th April, 2011 before the District Registrar, Co-operative Societies, to cancel the registration of respondent No.3 society under Section 20 of the Gujarat Co-operative Societies Act (hereinafter referred to as 'the Act') on the ground that despite passage of several years, the society had not commenced its business and that no houses were constructed. Respondent No.2 – District Registrar did not accept the prayer and filed the application as per the impugned order.
Respondent No.2 – District Registrar did not accept the prayer and filed the application as per the impugned order. 3.2 Pausing at this stage, the facts about the first prayer dropped as stated above, by the petitioners may be taken note of. The aforementioned sale deed dated 19th July, 1966 whereby the grandmother Kashiben Bhudarbhai had sold the land in question in favour of the co-operative society was subject matter of proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948. The Mamlatdar & ALT held that the sale effected by Kashiben – opponent No.1, in favour of the society was against provisions of Section 63 of the Bombay Tenancy Act and the said order came to be confirmed by Deputy Collector in Tenancy Appeal. The Revision Application filed by respondent No.3 co-operative society came to be allowed by the Tribunal, setting aside the orders passed by the tenancy authorities and declaring that the sale in favour of respondent No.3 society was not in contravention of Section 63 of the Act. The proceedings under Section 84C of the Act were ordered to be dropped by the Tribunal. The first prayer made in the petition was related to the said order of the Tribunal, which was given up by the petitioners. 4. Learned senior counsel Mr. Krishnakant Vakharia with learned advocate Mr. Hardik Muchhala for the petitioners harped that 47 years since creation of erstwhile Aaram Co-operative Housing Society and in any case 14 years reckoning from the date of registration of the respondent No.3 society, which was 19th May, 1997, have been passed by but as respondent No.3 society failed to take steps in any manner to commence the business, its registration was required to be cancelled by the Registrar, under Section 20 of the Act. He vehemently submitted that there was no justification for not commencing the business, and further submitted that whatever may be the reasons with the society not to commence the business, in view of the unambiguous language of Section 20, the very fact that there has been unreasonable lapse of time, the cancellation of registration was warranted.
He vehemently submitted that there was no justification for not commencing the business, and further submitted that whatever may be the reasons with the society not to commence the business, in view of the unambiguous language of Section 20, the very fact that there has been unreasonable lapse of time, the cancellation of registration was warranted. 4.1 Learned senior counsel by referring to the language used in Section 20 and further relaxing on the ground of non-commencement of business within a reasonable time, submitted that provision was required to be literally interpreted and applied on the basis of doctrine of 'A verbis legis non est recedendum' which means “from the words of law, there must be no departure”. He relied on observations from the decision of the Apex Court in Rohitash Kumar v. Om Prakash Sharma [ (2013) 11 SCC 451 ] in paragraphs 27 to 32 about principles governing the literal interpretation. He next pressed into service another decision of the Apex Court in Union of India v. Tata Chemicals Limited [ (2014) 6 SCC 335 ] to contend that since the language and the words used for the said ground in the Section were clear and capable of only one meaning, it is required to be applied in strict sense. He submitted that it has to be seen only whether the society has commenced its business within reasonable time, without adding or subtracting anything or stretching the meaning. Learned counsel focused on the various aspects drawn from the facts of the case to pinpoint that at every material stage, there was an unreasonable delay in commencing the business on part of respondent No.3 society. 4.2 On the other hand, learned senior counsel for the respondent No.3 society Mr. Dhaval Dave assisted by learned advocate Mr. Jigar Patel, relied on affidavit-in-reply filed by respondent No.3 to submit that petitioners suppressed material fact about three different civil suits instituted in relation to the subject matter between the parties in which the legality of sale of land from Kashiben to respondent No.3 was also one of the issues decided. It was further submitted that in the earlier Special Civil Application No.18213 of 2011 filed by the petitioners against respondent No.3 society, in the affidavit-in-reply, the details about three civil suits were mentioned, still however, in the present proceedings, the petitioners remained conveniently and deliberately silent on that score.
It was further submitted that in the earlier Special Civil Application No.18213 of 2011 filed by the petitioners against respondent No.3 society, in the affidavit-in-reply, the details about three civil suits were mentioned, still however, in the present proceedings, the petitioners remained conveniently and deliberately silent on that score. Learned senior counsel for the respondents relied on the decision of the Supreme Court in Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P. [AIR 2007 SC (supp) 1223], to submit that the suppression of material fact rendered the petition liable to be dismissed on the said ground alone. 4.3 Learned senior counsel for respondent No.3, without prejudice to his other contentions including also that the land was not an ancestral property, raised a question that the petitioners did not have any right or locus to apply under Section 20 and to seek cancellation of registration of the society in as much as they were strangers and had nothing to do with the society. It was submitted that the petitioners are not 'aggrieved person' to be entitled to maintain the proceedings. Learned advocate for the petitioners relied on decision of the Division Bench of this Court in Manubhai Hathibhai Patel v. Sejalben Janakbhai Patel [ 2010 (2) GLH 757 ], in which the Court looked into the meaning of expression 'any person aggrieved' so as to consider whether the original complainant could be said to be 'a person aggrieved'. Therein the Court observed,- “14. … … … None of the legal rights of the petitioners are violated or breached. The term “person aggrieved” must be understood in the context in which the provisions of the statute under consideration have been made. Section 57 of the Act, as already noted, empowers removal or disqualification of an elected member, Upa0Sarpanch or Sarpanch. … … … The role of the complainant in such a case is to bring to the notice of the Competent Authority the alleged irregularities. It is thereafter a matter between the elected members, Upa-Sarpanch or Sarpanch as the case may be and the Competent Authority. As a complainant, a person who brings such irregularities to the notice of the Competent Authority may participate in the proceedings and bring on record material at his command.
It is thereafter a matter between the elected members, Upa-Sarpanch or Sarpanch as the case may be and the Competent Authority. As a complainant, a person who brings such irregularities to the notice of the Competent Authority may participate in the proceedings and bring on record material at his command. He, however, cannot claim to be a “person aggrieved” if ultimately on the basis of the evidence on record, the proceedings are dropped by the Competent Authority. … … …” 5. From the compass of the contentions canvassed by both the sides in respect of the controversy, a question which cropped up in the forefront was whether the petitioners could be said to be 'aggrieved person' to claim the locus to apply under Section 20 of the Gujarat Co-operative Societies Act, 1961 asking for cancellation of registration of the society. As this aspect strikes at the root, the same is focused to be dealt with at the outset. 5.1 For addressing the moot question in the context of provision of Section 20 of the Act, the Section is usefully reproduced hereunder. “20. Cancellation of registration.-(1) The Registrar shall make an order cancelling the registration of a society if it transfers the whole of its assets and liabilities to another society, or amalgamates with another society, or divides itself into two or more societies, or if its affairs are wound up or it has not commenced business within a reasonable time of its registration or has ceased to function. (2) An order made under sub-section (1) shall be published in the Official Gazette. (3) The society shall, from the date of such order of cancellation, be deemed to be dissolved and shall cease to exist as a corporate body.” 5.2 The Section provides that Registrar shall order cancellation of registration of a society if any of the grounds mentioned therein are satisfied. First ground is that the society has transferred the whole of its assets and liabilities to another society or it has been amalgamated in another society. The other ground on which cancellation of registration may be ordered is that the society has wound up its affairs. Yet another ground is that the society has not commenced its business within reasonable time of its registration or that it has ceased to function. On happening of any of the contingencies or the ground, Registrar shall make an order cancelling the registration.
Yet another ground is that the society has not commenced its business within reasonable time of its registration or that it has ceased to function. On happening of any of the contingencies or the ground, Registrar shall make an order cancelling the registration. The object of the provisions appears to be that a co-operative society which has been registered, remains properly functional. 5.3 Proceeding to consider who is 'a person aggrieved' in legal parlance, and whether petitioners can be said to be 'aggrieved to have locus for invoking Section 20 of the Act as the society has not commenced its business for reasonable time. In Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed [ (1976) 1 SCC 671 ] the Supreme Court elaborately discussed the concept of 'an aggrieved person', and observed that in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an aggrieved person. If he does not fulfill that characteristic, and it is a 'stranger', the Court will deny him this extraordinary remedy. 5.3.1 It was stated, “… … … of the cases in which a strict construction was put on the expression "person aggrieved", is Buxton and ors. v. Minister of Housing and Local Government [(1961) 1 QB 278]. There, an appeal by a Company against the refusal of the Local Planning Authority of permission to develop land owned by the Company by digging chalk, was allowed by the Minister. Owners of adjacent property applied to the High Court under Secton 31(1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land, and that they were ’persons aggrieved’ by the action of the Minister.
Owners of adjacent property applied to the High Court under Secton 31(1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land, and that they were ’persons aggrieved’ by the action of the Minister. It was held that the expression ’person aggrieved’ in a statute meant a person who had suffered a legal grievance; anyone given the right under Section 37 of the Act of 1959 to have his representation considered by the Minister was a person aggrieved, thus section 31 applied, if those rights were infringed; but the applicants had no right under the statute, and no legal rights had been infringed and therefore they were not entitled to challenge the Minister’s decision.” (Para 30) 5.3.2 The Apex Court further stated that Salmon J. quoted with approval these observations of James T. J. in In Re Sidebothem [(1880) 14 Ch D 458, 465], and the passage quoted with approval would apply apt and apposite. "The words ’person aggrieved’ do not really means a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrong fully refused him something, or wrongfully affected his title to something." (Para 30) (emphasis supplied) 5.4 The following observations of the Apex Court in Ravi Yashvant Bhoir v. District Collector, Raigad [ (2012) 4 SCC 407 ] explains the concept and the law. “… … … A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.” (Para 58) “The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest.
In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons i.e. a claim devoid of reasons.” (Para 59) 5.5 The Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar [ (1975) 2 SCC 702 ] opined that meaning of the words 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. It observed that the words 'person aggrieved' correspond to the requirements of locus standi which arises in relation to judicial remedies. 5.6 Thus, in order to become entitle to seek a statutory remedy, a person must show and establish that he is injured with a legal wrong. There must be an injury to a legally recognised, legally protected and legally enforceable right. The principle to be applied is that there must be a injuria sine damnum and not the damnum sine injuria for taking a legal action and a legal recourse. A damage suffered has to be coupled with legal injury. It is this kind of injury on which right-enforceability may be based. 5.7 For acquiring a standing to sue or a standing to take a legal recourse or right to initiate legal action for relief, the presupposition is that there must subsist a legal wrong one or invaded right in existence in relation to the subject matter in respect of which the action is sought to be initiated and the relief is asked for. It is this element which makes a person possessor of litigative interest to become an aggrieved person. Again the invasion of right sought to be remedied should not be one infringed in abstract. Its invasion must be in the context of the subject matter and the provision for which the right to seek relief or what is called locus standi, is claimed.
Again the invasion of right sought to be remedied should not be one infringed in abstract. Its invasion must be in the context of the subject matter and the provision for which the right to seek relief or what is called locus standi, is claimed. 5.8 Whether a person is aggrieved person, whether he has suffered a legal injury and whether he has thus locus to seek remedy in law are the aspects, to be determined keeping in view the subject matter, the kind and nature of, and controversy, the legal provision with reference to which they arise. The context of the provision and the subject matter, are the important aspects. The petitioners herein had no legal right infringed to invoke Section 20 of the Act to seek remedy therein. It is only in the matters involving public interest dimensions, which is not the case here, that the rule of person aggrieved or the principles of locus standi is made elastic. As there is no right to be enforced with the petitioners in respect of the subject matter, as they are not 'aggrieved person' and are devoid of locus in law, writ of mandamus would not lie in respect of the prayer. 6. Reverting to the operative facts of this case, the ownership of the land was divested from ancestors of the petitioners – grandmother Kashiben when she sold off the land by registered sale deed dated 19th July, 1966, the said sale stands valid and in one of the civil suits being Civil Suit No.288 of 1982 between the parties, the issue about the legality and validity of the said sale deed has also been decided to stand for and in favour of respondent No.3 society. Thereby the rights and interest of the present petitioners have stood completely divested of and obliterated with the lawful sale transaction above in which the ownership and all the incidences of ownership of the land passed to respondent No.3 cooperative society. The proceedings under the Bombay Tenancy and Agricultural Lands Act also ended to the success of respondent No.3, and the challenge to the judgment and order of the Revenue Tribunal which held in favour of respondent No.3 co-operative society, was given up as recorded above by not pressing the prayer in that regard. 7.
The proceedings under the Bombay Tenancy and Agricultural Lands Act also ended to the success of respondent No.3, and the challenge to the judgment and order of the Revenue Tribunal which held in favour of respondent No.3 co-operative society, was given up as recorded above by not pressing the prayer in that regard. 7. In light of these facts, there did not remain a semblance of right of the petitioners or any surviving interest in respect of the land in question. It is, therefore, not possible to perceive any locus for the petitioners to apply under Section 20 of the Act for cancellation of registration of respondent No.3. They are not the members of the society. Nor they have any lis in the subject matter. The lis would arise provided a legal right exists. For the purpose of Section 20 of the Act, the petitioners are strangers, alien and busybody. Even if the nature of provision of Section 20 is considered, it is peculiarly confined to the functioning of co-operative society. The recourse for cancellation of registration of the society may be taken either by the member or by a person who has some legally sustainable interest in respect of the society. The petitioners do not satisfy such test and for the purpose of Section 20 they are outsiders. 8. When learned Assistant Government Pleader Mr. Manan Mehta was called upon to submit on the aspect of the grounds on which respondent No.2 – Registrar did not cancel the registration of the respondent No.3 co-operative society, he was entirely at his receiving end. However having found and held that that the petitioners did not have any locus standi and had no right to seek invocation of Section 20 for cancellation of registration of respondent No.3 society at their instance, Court did not delve into and thus has not expressed anything on the merits of those grounds. 9. For the foregoing reasons, this petition by the present petitioners is not liable to be entertained. Accordingly the same is dismissed. Rule is discharged. Interim relief stands vacated. No costs. FURTHER ORDER At this stage, learned advocate Mr. Vakharia for the petitioners requested that interim relief which was remained operative may be continued for a reasonable period in order to file Appeal. The request was opposed by the other side.
Accordingly the same is dismissed. Rule is discharged. Interim relief stands vacated. No costs. FURTHER ORDER At this stage, learned advocate Mr. Vakharia for the petitioners requested that interim relief which was remained operative may be continued for a reasonable period in order to file Appeal. The request was opposed by the other side. It transpires from the record that while issuing Rule on 17th July, 2012, this Court, by way of interim relief, directed that respondent No.3 society will not change the conditions of the land in question prevailing on the date of passing of the order, in any manner whatsoever. Since the said relief has continued during the pendency of the petition, and in the facts and circumstances of the case, the same is extended upto 06th November, 2017. Petition dismissed.