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2018 DIGILAW 242 (GUJ)

ISHWARBHAI GOPALBHAI PATEL v. STATE OF GUJARAT

2018-01-24

J.B.PARDIWALA

body2018
JUDGMENT : 1. “Corruption today can be called a malaise attached to the largest democracy of the world i.e. India. Anti-corruption action has produced a mountain of words and hardly a molehill of solid results in terms of positive change, or, reform, in the institutional behaviour. The failure in this regard has much to do with the complexity, dynamism and pervasiveness of the corruption. The best of law has no value, if it is not enforced. The best of Judges are wasted, if the cases are never brought to them.” 2. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs : “10(A) Your Lordships may be pleased to pass appropriate orders, writ or direction, directing the respondents to forthwith register the FIR in pursuance to written complaint dated 8.5.2017 (Annexure-A) given by the petitioner, in the interest of justice; (B) Your Lordships may be pleased to direct the respondent no.2 to 4 to produce the action taken report before this Hon'ble Court in pursuance to written complaint dated 8.5.2017 (Annexure-A) give by the petitioner, pending the admission, hearing and final disposal of this petition; (C) Your Lordships be pleased to grant such other and further orders, as may be deemed fit and proper by this Hon'ble Court in the interest of justice.” 3. The case of the writ applicant, in his own words, as pleaded in his writ application, is as under : “2.1 The petitioner is an agriculturist and is rendering services in Cooperative Societies as Member / Chairman / President of various societies since last more than 12 years. 2.2 In the year 2004, the petitioner came to be appointed as Chairman of one Puna – Kumbhariya Group Cooperative Fruit and Vegetable Growers Society Ltd. 2.3 On 16.11.2014, a meeting was held in the Society for approving the proposal to purchase the land for the Society. In pursuance to such intention, advertisements were given in local newspapers. 2.4 On 2.12.2014, the proposal for purchasing the land for the Society was approved. 2.5 On 25.1.2005, an agreement to sell was executed by the original owners in favour of the Society in respect of certain parcels of lands. 2.6 On 7.1.2006, the father of petitioner expired. 2.7 On 6.10.2006, sale deed came to be executed in favour of the Society. 2.5 On 25.1.2005, an agreement to sell was executed by the original owners in favour of the Society in respect of certain parcels of lands. 2.6 On 7.1.2006, the father of petitioner expired. 2.7 On 6.10.2006, sale deed came to be executed in favour of the Society. 2.8 On 1.3.2008, the Deed of Compromise was entered into validating the payment for the agreement to sell dated 27.6.1996 to Jayantibhai Babariya. 2.9 On 10.3.2008, resolution passed by the Committee and the payment was made to Jayantibhai Babariya. 2.10 During the period from 2004 to 2011, the petitioner served as Chairman of the Society. 2.11 In the year 2012, the petitioner was elected as member of Puna – Kumbhariya Group Co-operative Fruit and Vegetable Society Ltd. 2.12 On 13.12.2014, one Jagubhai Naranbhai Patel became to the member of the Society. 2.13 In the year 2016, Jagubhai Naranbhai Patel as well as petitioner had contested the elections for the post of President of Society. Both Jagubhai as well as the petitioner had received 9 votes each. 2.14 On 9.7.2016, because of political rivalry, Jagubhai Patel gave false complaint against the petitioner before District Registrar, Cooperative Societies, Surat seeking suspension of petitioner as member of the Society. 2.15 On 8.9.2016 at about 4:45 pm, the District Registrar, Co-operative Societies, Surat passed an ex-parte order against the petitioner, This ex-parte order dated 8.9.2016 was passed by the District Registrar u/s. 76(b) of the Gujarat Cooperative Societies Act, 1961 thereby removing the petitioner for a period of 6 years from the post of member / director of the Society. 2.16 On 9.9.2016 because of the above ex-parte order of suspension, the petitioner could not contest the election and ultimately, petitioner lost the election, while Jagubhai Patel wrong the election and appointed as Chairman of the Society. 2.17 Being aggrieved by the ex-parte order dated 8.9.2016, the petitioner filed Revision Application No.8 of 2017 before the Deputy Secretary (Appeals), Cooperative Department. Along with the revision, the petitioner also filed stay application. The Deputy Secretary (Appeals), Cooperative Department allowed the stay application and stayed the ex-parte order until the final adjudication of revision application. 2.18 On 4.4.2017, the Deputy Secretary (Appeals), Cooperative Department allowed the revision and set aside the order dated 8.9.2016 and remanded the matter to District Registrar with direction to decide the genuineness of transaction within a period of 30 days. 2.18 On 4.4.2017, the Deputy Secretary (Appeals), Cooperative Department allowed the revision and set aside the order dated 8.9.2016 and remanded the matter to District Registrar with direction to decide the genuineness of transaction within a period of 30 days. 2.19 On 17.4.2017, the District Registrar issued show cause notice to the petitioner under the provisions of Section 76B of Act and Rule 32 of the Rules without any specific particulars on the proposed action. 2.20 The petitioner replied to show cause notice and also submitted written submissions before the District Registrar. 2.21 The petitioner came to be know that Jagubhai Naranbhai Patel and his associates have given bribe to District Registrar J.C. Shah. 2.22 In May, 2017, the petitioner gave complaint against the District Registrar Shri J.C. Shah for indulging himself into corruption. 2.23 On 17.6.2017, the petitioner filed application before the District Registrar Shri J.C. Shah specifically stating that Jagubhai Patel and Sunil Patel have threatened the petitioner that setting has been done with District Registrar for Rs.20 Lakhs and that the District Registrar will pass order against the petitioner. As threatened by Jagubhai and Sunilbhai and anticipated by the petitioner, the District Registrar passed order against the petitioner dated 13.6.2017. This order is passed by the contentions raised by the petitioner on the grounds of limitation and issuance of show-cause notice passed the order of removal of petitioner from the Society and disqualified the petitioner from other societies also. In fact, this order is passed malafide because of bribe amount received by District Registrar from Jagubhai Patel and his associates. The said order was never communicated to the petitioner despite the written application made by the petitioner. 2.24 It is submitted that while passing the order, the District Registrar has misused his post and position. The District Registrar has illegally exercised the powers u/s. 76B(1) of the Gujarat Cooperative Societies Act. 2.25 On the same day i.e. 17.6.2017, the petitioner gave a complaint to Police Commissioner, Surat against Jagubhai Patel, Sunilbhai Patel, District Registrar Shri J.S. Shah, Mukesh Shantilal Patel – Choksi officer, etc. regarding the fact that setting has been done with District Registrar for Rs.20 Lakhs and that the District Registrar will pass order against the petitioner. 2.26 On 3.7.2017, the petitioner preferred the revision application before the Registrar (Appeals), Cooperative, Gandhinagar challenging the order dated 17.6.2017 passed by District Registrar. regarding the fact that setting has been done with District Registrar for Rs.20 Lakhs and that the District Registrar will pass order against the petitioner. 2.26 On 3.7.2017, the petitioner preferred the revision application before the Registrar (Appeals), Cooperative, Gandhinagar challenging the order dated 17.6.2017 passed by District Registrar. The Revisional Authority issued notice. 2.27 On 4.7.2017, the Registrar (Appeals) passed a further order without intimating the petitioner but intimation to the other societies about the order and disqualifying the petitioner from the societies. 2.28 On 12.7.2017, the petitioner preferred a stay application before the Registrar (Appeals) against the order dated 4.7.2017. The registry refused to accept the application as the matter was listed on 18.07.2017 2.29 On 17.7 .2017, the petitioner filed Special Civil Application No. 13560 of 2017 before this Hon’ble Court, but the same was not circulated as the revision application was listed for hearing on 18.07.2017. 2.30 On 18.7.2017, Jagubhai Patel appeared before Registrar (Appeals) and filed reply. The petitioner pressed for hearing of both the stay applications but the same was not heard in spite of the fact that the order dated 04.07.2017 has no bearing on the Jagubhai Patel and Sunil Patel as it is passed in connection to other societies. 2.31 On 20.7.2017, the petitioner filed SCA 13560 of 2017 before this Hon’ble Court. This Hon’ble Court was pleased to stay any further action pursuant to the removal order and directed speedy disposal of the proceedings before the Additional Registrar (Appeals). 2.32 On 5.10.2017, the Additional Registrar passed an order confirming the removal of the petitioner but remanded the matter on the aspect of disqualification and punishment. The petitioner has already preferred revision application before the Deputy Secretary (Appeals), Agriculture and Co-operation Department which is pending and the same is not taken up for hearing owing to the medical condition of the officer concerned. 2.33 On 20.11.2017 and 30.11.2017, hearing came to be fixed by the District Registrar in the remand proceedings. 2.34 On 7.12.2017, the petitioner appeared and filed the vakalatnama and still the notice came to be issued citing the absence and fixing the date of hearing as 14.12.2017. 2.35 It is submitted that thus, from the facts and circumstances, it is clear that the District Registrar has passed the order of removal of petitioner by exceeding his jurisdiction and that too without giving any opportunity of hearing to the petitioner. 2.35 It is submitted that thus, from the facts and circumstances, it is clear that the District Registrar has passed the order of removal of petitioner by exceeding his jurisdiction and that too without giving any opportunity of hearing to the petitioner. The District Registrar while acting as public servant has framed incorrect record and/or writing with clear intention to save Jagubhai Patel and thereby the District Registrar is guilty of committing the offence u/s 219 of IPC. The District Registrar in fact has acted in connivance and in conspiracy with Jagubhai Patel and thereby the District Registrar is guilty of committing the offence u/s. 120(B) of IPC. 2.36 It is submitted that once another member of the said Society viz. Sunil M. Patel had preferred an application before the same District Registrar viz. J.S. Shah u/s. 86 of the Gujarat Cooperative Societies Act, whereby Mukesh Shantilal Patel, who was appointed as Choksi Officer, prepared incorrect and false report giving findings against the petitioner. On the basis of such incorrect and false report, a false and vexatious FIR being C.R. No.I-46/2017 came to be registered on 7.3.2017 with Puna Police Station against the petitioner for the offences punishable u/s. 406, 420, 465, 467, 468 and 471 of IPC. The petitioner therefore filed quashing petition being Criminal Misc. Application NO.7055 of 2017 before this Hon'ble Court for quashing of the said FIR. This Hon'ble Court vide order dated 14.3.2017 was pleased to stay the further proceedings of the said FIR. The said petition is pending for its adjudication and the next date of hearing is 7.2.2018. 2.37 It is submitted that the sale transactions subject matter of above FIR are in fact legal and valid. The lands were sold in favour of the Society after holding members meeting and after due consent of all the 15 members of the Society unanimously. The payment of consideration was also paid through cheque and the same is also recorded in the accounts maintained with the Society. The lands were purchased at the price less than the market price. Therefore, there is no any irregularity or illegality in the above sale transactions. However, for extraneous considerations and for oblique motives, the choksi officer Mukesh S. Patel prepared false and incorrect report against the petitioner. For any irregularity in the sale transaction, all 15 members should be held liable. Therefore, there is no any irregularity or illegality in the above sale transactions. However, for extraneous considerations and for oblique motives, the choksi officer Mukesh S. Patel prepared false and incorrect report against the petitioner. For any irregularity in the sale transaction, all 15 members should be held liable. However, it is surprising to note that while registering the FIR, only the petitioner is targeted. 2.38 It is submitted that as per the Gujarat Cooperative Societies Act, there has to be internal audit 3 times a year and one final audit. Whereas, during the tenure of the petitioner as President of the Society, there were internal audit every month. During the period from 2004 to 2008 and 2008 to 2015, no irregularity or misappropriation of funds is found against the petitioner. Therefore also, there was no chance of any irregularity or illegality by the petitioner. 2.39 The conduct of District Registrar suffers from vices of malafides and suggests collusion with Jagubhai Patel, Mukeshbhai S. Patel choksi officer and others. In fact, the District Registrar has also indulged himself in corruption activities connivance with other accused. The District Registrar has taken gratification as a reward for inducing, by corrupt and illegal means to pass illegal order against the petitioner. The District Registrar has also dishonestly and fraudulently misappropriated / converted for his own use and thereby, the accused are guilty of committing offences u/s. 8 and 13(1)(c) of Prevention of Corruption Act. 3. The petitioners submit that thus, from the above facts and circumstances, it is clear that the accused named in the written complaint dated 8.5.2017 are guilty of committing criminal cognizable offences punishable u/s. 219, 120(3) of IPC as well as Sec. 8 and 13(1)(c) of Prevention of Corruption Act.” 4. Mr. Kavina, the learned senior counsel appearing for the writ applicant assisted by Mr. Manan Shah, the learned counsel submitted that it is high time that the case of the present nature should not be just considered as an error on the part of the authority. The error was absolutely conscious and was nothing, but a part of a well-hatched conspiracy to ensure that the writ applicant is not able to contest the election and the rival candidate is elected without any contest. Mr. The error was absolutely conscious and was nothing, but a part of a well-hatched conspiracy to ensure that the writ applicant is not able to contest the election and the rival candidate is elected without any contest. Mr. Kavina, the learned senior counsel submitted that the manner in which the District Registrar, Cooperative Societies, Surat conducted himself speaks volumes about his integrity and the matter is one which needs to be thoroughly investigated in the right direction. 5. Having heard the learned counsel appearing for the parties and having considered the materials on record, prima facie, I am at one with the learned senior counsel. I am of the view that the matter requires detailed investigation. It is so apparent that everything was managed. On 7th September 2016, one Sunil Patel filed an application addressed to the District Registrar Cooperative Societies, Surat as regards the alleged irregularities at the end of the writ applicant. Within 48 hours thereafter, the District Registrar, without any notice to the writ applicant, proceeded to pass an order in exercise of his powers under Section 76(b) of the Gujarat Cooperative Societies Act, 1961 to disqualify the writ applicant for a period of six years from holding any office in the society. By the time, the appellate authority passed an order quashing the order of the District Registrar, it was too late. The purpose of passing the order was served. In my view, the act should not be termed or dismissed as a mere error in passing the order. The allegations levelled in the complaint lodged by the writ applicant are quite clear and needs to be thoroughly investigated in accordance with law. 6. In India, the Arthashastras of Kautilya, published between the 4th Century BC and 2nd Century AD, dramatically describes corruption, which then existed, in the following terms. “Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a Government servant not to eat up, at least, a bit of the Kings revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out while taking money.” The Rig Vedas and the Bible also contained verses which undoubtedly point to corruption as being as evil which exists. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out while taking money.” The Rig Vedas and the Bible also contained verses which undoubtedly point to corruption as being as evil which exists. What is the position today as far as India is concerned? The question that an Indian would ask is, are we to tolerate this state of affairs after 65 years of independence and who is to bear the blame. The political wing or the State would turn around and say you are to blame because the Indians across the board are corrupt and this is a mindset which no one can change. But corruption starts at the top and finally it trickles down to the little man working in the public utility services. I am of the view that the blame attaches fully to the lack of governance by those entrusted by the people, with the duty and responsibility of steering the country through various policies which would not engender corruption, but would negate it. The last couple of decades have seen a radical change in the role of the higher judiciary in India. The higher judiciary has been looked upon by sections of the public as the last hope for redress against public and governmental failure. How much can one single institution do if the mindset of the political wing of the State and bureaucracy, who are at the top of the pyramid, as well as the mindset of the people of the country, does not change? 7. In the result, this writ application is disposed of with a direction to the respondents Nos.2, 3 and 4 to look into the matter at the earliest and carry out a detailed inquiry as to in what circumstances the order came to be passed by the District Registrar. The respondents Nos.2, 3 and 4 shall investigate into the matter keeping in mind Section 219 of the Indian Penal Code as well as the provisions of the Prevention of Corruption Act, 1988. Let an appropriate decision be taken at the earliest in accordance with law, preferably within a period of three months from the date of receipt of this order. The outcome of the inquiry shall be communicated to the writ applicant in writing. Let an appropriate decision be taken at the earliest in accordance with law, preferably within a period of three months from the date of receipt of this order. The outcome of the inquiry shall be communicated to the writ applicant in writing. I expect the authority concerned to assign reasons for his decision. If, ultimately, at the end of the inquiry, a prima facie case of corruption surfaces, then the F.I.R. shall be registered in accordance with law. 8. The facts of this case are so gross that it was expected of the State Government also to look into the matter at the earliest. The State Government should have initiated an appropriate inquiry into the conduct of the District Registrar. After all, the District Registrar is an employee of the State Government appointed under the provisions of the Gujarat Cooperative Societies Act, 1961. I also direct the State Government to look into the matter and do the needful in accordance with law. 9. With the above, this writ application is disposed of. Direct service is permitted. 10. The Registry shall place this matter before this Court after a period of two months to report compliance of the directions issued by this Court.