Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 678 (GUJ)

Patel Gaurangbhai Naranbhai v. State of Gujarat

2020-08-11

BIREN VAISHNAV

body2020
JUDGMENT : 1. Rule returnable forthwith. Learned advocates waive service of notice of rule for the concerned respondents. With the consent of the learned advocates appearing for the respective parties, the matters were taken up for final hearing forthwith on 05.08.2020. 2. The petitioner has approached this Court under Article 226 of the Constitution of India with the following prayer: “10(A) This Hon'ble Court may be pleased to issue writ of certiorari quashing and setting aside the show cause notice issued by the respondent bearing No.MSB/01/TP/6296/2020 dated 19th March, 2020 which is at Annexure 'J' to this petition and be further pleased to quash and set aside the communication dated 27th May, 2020 which is at Annexure 'L' to the petition.” 3. The prayer arises in the context of the following facts: - It is the case of the petitioner that the election of the Mehsana District Central Cooperative Bank Limited which is a specified cooperative society was due in the year 2015. The election was to be held in accordance with Chapter 11(A) of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as 'the Act'). The task of holding election was entrusted to the Collector. Certain dates are pleaded in the petition which are as under: (1) 20.8.2015 - the name of the petitioner was sent by Rampura Seva Sahakari Mandali Limited as its representative by passing a resolution. (2) 27.8.2015 – publication of the provisional list of voters; the name of the petitioner was shown as its nominee. (3) 16.10.2015 – even in final list of voters, the petitioner's name was shown as a representative of the Rampura Seva Sahakari Mandali Limited. - It is the case of the petitioner that the Rampura Seva Sahakari Mandali Limited is a member of the Mehsana District Central Cooperative Bank Limited and fulfills the eligibility criteria of being in the voters list of the Bank. It was only after due process that the name of the petitioner was included in the list of voters. The petitioner's case is that the Rampura Seva Sahakari Mandali Limited had audit class B for the years 2013-15 and has been consistently performing well either with audit class A or B since last ten years. It was only after due process that the name of the petitioner was included in the list of voters. The petitioner's case is that the Rampura Seva Sahakari Mandali Limited had audit class B for the years 2013-15 and has been consistently performing well either with audit class A or B since last ten years. - It is the case of the petitioner that since the petitioner fulfilled the requirement and eligibility as candidate to contest the election of the Mehsana District Cooperative Bank Limited and the bye laws, a detailed election programme was published; the petitioner filed his nomination paper and when the election of Board of Directors - Members of the Managing Committee was held on 19.11.2015, the petitioner was duly elected as a candidate for the Siddhpur seat in accordance with the declaration of the Collector dated 19.11.2015. No election petition challenging the election of the petitioner was filed. - Litigations have been referred to in the petition wherein the appointment of the Government nominees and professional Directors and action of their removal was challenged by different parties but never was the election of the petitioner brought into question. - It is the case of the petitioner that suddenly on 19.3.2020, the Registrar of the Cooperative Societies issued a show cause notice to the petitioner asking the petitioner to show cause as to why he should not be held to be ineligible to hold the post of the Director of the Mehsana District Central Cooperative Bank Limited. The petitioner was given 7 days' time to explain. - The case of the petitioner is that while issuing the show cause notice, the respondent has taken into account the opinion dated 16.3.2020 of the District Registrar. He has also taken note of the representations made by three individuals, who have filed the present Civil Application through Mr.Dipen Desai, leaned counsel for being joined as party respondents. - The petitioner requested for time to reply to the show cause notice due to the current pandemic. However, there was repeated pressure from the Registrar of Cooperative Societies that he must respond to the notice and the petitioner was asked to submit his explanation by 11.6.2020. - The petitioner requested for time to reply to the show cause notice due to the current pandemic. However, there was repeated pressure from the Registrar of Cooperative Societies that he must respond to the notice and the petitioner was asked to submit his explanation by 11.6.2020. The subject matter of challenge in the petition, therefore, is the show cause notice dated 19.3.2020 issued to the petitioner holding as to why the petitioner under the provisions of Sec.145(F)(e) read with Sec.27 of the Act and read with Rule 32 of the Gujarat Cooperative Societies Rules and bye law No. 32(6) of the bye laws of the Bank be held to be ineligible to continue to hold the post of the Director. 4. Heard Mr. Prakash K. Jani, learned Senior Advocate appearing with Mr. Shivang Jani, learned advocate for the petitioner. Mr. Jani's submissions are as under: - According to Mr. Jani, the show cause notice suffers from several defects. He would submit that reading of the show cause notice would indicate that no jurisdictional facts for initiating proceedings exist. He would further submit that the show cause notice suffers from total non application of mind, inasmuch as, none of the provisions referred to in the show cause notice are attracted in the present case. - Mr. Jani would further submit that there has been a deliberate misreading and error in reading the provisions of the Act, the Rules and the bye laws and the show cause notice is aimed with a political malafide to remove the petitioner from the duly elected post of the Managing Committee of the Board of Directors of the Bank. - Mr. Jani would further submit that the show cause notice is premeditated or in other words issued with a predetermined mind and the same is issued at the instance of a political party i.e. the present ruling dispensation and especially at the behest of the BJP MLA to whom the applicants of the Civil Application have marked copies because she happens to be the MLA of the Constituency. - Mr. Jani would take the Court through the memo of the Civil Application and letters annexed thereto dated 12.3.2020 which would indicate that the applicants therein made a representation on 12.3.2020 and the Government promptly obliged by issuing the show cause notice dated 19.3.2020. In furtherance of this submission, Mr. - Mr. Jani would take the Court through the memo of the Civil Application and letters annexed thereto dated 12.3.2020 which would indicate that the applicants therein made a representation on 12.3.2020 and the Government promptly obliged by issuing the show cause notice dated 19.3.2020. In furtherance of this submission, Mr. Jani would contend that the authors of these letters are neither voters nor residents within the vicinity of the same village nor are they voters who voted in the petitioner's constituency and, therefore, they had no locus to ask for the removal of the petitioner from the Board of Directors of the Bank. - Mr. Jani would further submit that an audit report was submitted on 19.8.2019. It remained without any action forthcoming on the basis of that report. Only when the Board was revived pursuant to some litigation in the High Court, with effect from 13.1.2020 that the audit report of 19.8.2019 was suddenly put into motion. The District Registrar's comments were invited on 16.3.2020 as is evident from the reference in the show cause notice and within three days, the Registrar issued the show cause notice asking the petitioner to show cause as to why he should not be removed from the post of the Director of the Mehsana District Central Cooperative Bank Limited. - Mr. Jani would then draw the attention of the Court to the provisions referred to and relied upon in the show cause notice and explained as to how the invoking of such provisions is misconceived. In support of his submission Mr.Jani would submit as under: (a) Drawing the attention of this Court to Sec.27 of the Act, Mr.Jani would submit that the section provides for a right to vote. A person is disqualified from voting or exercising the rights of a member of the society if he is in default, or he has not been a member for the entire financial year. He would refer to the proviso to sub sec.3 and submit that no member society of a federal society shall exercise the right to vote at an election of a member of a committee, unless such a society has its last account audited in Class A or B. (b) Reading with these the provisions of Sec.145(F), Mr. Jani would submit that reading the title of the section itself would indicate that it pertains to disqualification for membership. Jani would submit that reading the title of the section itself would indicate that it pertains to disqualification for membership. The section states that a person will be disqualified from being elected as and for being a member of the committee, if he is a salaried employee of any other society, if he has been convicted of an offence or found guilty of corrupt practice and in accordance with sub sec.(e) of the Act, he is also disqualified by or under any other provision of the Act. He would submit that these provisions would indicate that the disqualification had to be incurred under the Act at the relevant time when the petitioner stood for election. It is an admitted fact, according to Mr. Jani, that the time when the petitioner was elected, he was not disqualified in accordance with the provisions of Sec.145(F) of the Act. (c) Reading Rule 32 of the Gujarat Cooperative Societies Rules, Mr. Jani would submit that even that rule speaks of being eligible for appointment and, therefore, the tenor of the rule is the eligibility at the inception and not at the time when or during the person holding the post. Extensive reference was also made to the bye laws of the society in support of the submission as hereinabove. Reading the bye laws annexed to the petition (Page Nos.54 and 55), especially bye law No.32(6), Mr.Jani would submit that the disqualification would be for being appointed as a Director on the audit class being less than A or B. It would not mean disqualification during the currency of the tenure of a Director. In support of his submission, Mr. Jani would would also rely on bye law Nos. 32(7) and (8) which speak in terms of the Director continuing to hold as compared to initial appointment as stated in bye law No. 32(6). Mr. Jani would, therefore, submit that what the bye laws and the Acts and the Sections referred to in the show-cause notice would provide for a qualification at the inception of the appointment and not during the petitioner's holding the post of Director. Mr. Mr. Jani would, therefore, submit that what the bye laws and the Acts and the Sections referred to in the show-cause notice would provide for a qualification at the inception of the appointment and not during the petitioner's holding the post of Director. Mr. Jani drew the attention of the Court to the political malafides as he had alleged in the petition and invited Court's attention to the grounds raised in the petition from grounds (A) to (E) to submit as under, as far as political malafides are concerned: - According to Mr.Jani, the petitioner's father Shri Naranbhai Lalludas Patel is one of the oldest BJP Workers of Mehsana District, who has been the member of the legislative assembly for 4 times. He was the Chairman of the APMC, Unjha for a period of 15 years and is still an active worker. - Mr. Jani would further submit that one Ms. Ashaben Patel joined the present party in power after having resigned from the Congress though she was elected on the ticket of the Congress party. In the by- election to the Unjha Legislative Assembly, she was given a ticket from the party on which she got elected. He would further submit the panel sponsored by the petitioner came in direct contest with the panel of the current MLA Ms.Ashaben Patel and her panel got the majority. It is the submission of Mr.Jani that the three applicants with applications drew the attention of the Court were members of the APMC, Unjha and had contested as the candidates of panel supporting the MLA and, therefore, there is a political malafide. Adding to the political malafide, it would be obvious on the fact that these three applicants have nothing to do with the affairs of the Mehsana District Central Cooperative Bank Limited, they had no locus to file the applications. - Mr. Adding to the political malafide, it would be obvious on the fact that these three applicants have nothing to do with the affairs of the Mehsana District Central Cooperative Bank Limited, they had no locus to file the applications. - Mr. Jani submitted that conscious of the fact he is that, a preliminary objection would be taken by the respondents that a writ petition under Article 226 of the Constitution of India would not lie, however, in support of his submissions and contending that Article 226 of the Constitution of India is a unique provision which bestows extra ordinary powers on the High Court, submits that the following decisions would help him in support of his submission that a writ petition is maintainable under Article 226 of the Constitution of India against a show cause notice. Mr.Jani relied on the following decisions: Sr. No. Citations Party Relevant Paras Page Nos. 1. AIR 1961 SC 372 Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District I, Calcutta [6] [9] [10] [12] [16] [17] [20] [26] [27] [28] [31] [39] [53] 2-19 2. 2010 (13) SCC 427 Oryx Fisheries Pvt. Ltd. Vs. Union of India [24] [28] [29] [32] [33] [37] [38] [40] [41] [42] [43] 20-27 3. 2007 (3) GLR 2606 State of Rajasthan Vs. Prakash Chand 9 28-30 4. 1998 (1) SCC 1 State of Rajasthan Vs. Prakash Chand 31-54 5. 2012 (2) GLR 1824 State of Gujarat Vs. Nareshbhai P. Parmar [9] [17] [18] 55-64 6. 2014 (1) GLH 698 Chaudhari Visabhai K. Vs. State of Gujarat [7] [8] [12] [13] 65-70 7. 2006 (12) SCC 33 Siemens Ltd. Vs. State of Maharashtra 12 71-73 8. 2001 (6) SCC 260 Tarlochan Dev Sharma Vs. State of Punjab & Ors. [6] [9] [10] [15] 74-80 9. 2013 (7) SCC 25 State of Madhya Pradesh Vs. Sanjay Nagyach [16] [17] [22] [25] [26] [28] [34] [35] 81-91 10. D.B. Civil Writ Petition No.7451 of 2020 Prithviraj Meena & Ors. Vs. Hon’ble Speaker & Ors. Mr. Jani has also relied on a decision of the Division Bench of High Court Judicature for Rajasthan at Jaipur in the case of Prithviraj Meena and others v. The Hon'ble Speaker, Rajasthan Legislative Assembly, Rajasthan and another passed in the Civil Writ Petition No.7451 of 2020 dated 24.7.2020. 5. Ms. Manisha Lavkumar, learned Government Pleader with Mr. Mr. Jani has also relied on a decision of the Division Bench of High Court Judicature for Rajasthan at Jaipur in the case of Prithviraj Meena and others v. The Hon'ble Speaker, Rajasthan Legislative Assembly, Rajasthan and another passed in the Civil Writ Petition No.7451 of 2020 dated 24.7.2020. 5. Ms. Manisha Lavkumar, learned Government Pleader with Mr. Kanva M. Antani, learned Assistant Government Pleader have appeared for the respondent – State. Ms.Manisha Lavkumar, learned Government Pleader has made the following submissions on the basis of a brief note submitted beforehand to the Court. Her submissions are as under: - Relying on the relevant provisions of the Act, namely Sec.27, 145(F), bye law No.32(6) and Rule 38(B)(2) of the Gujarat Cooperative Societies Rules, Ms.Manisha Lavkumar would submit that reading of the rules and the sections would clearly indicate that the contention of Mr. Jani that the disqualification is to be incurred at the time of inception is misconceived. She would submit on reading Sec.27 of the Act that the proviso makes it clear that no member of a society shall exercise a right to vote at an election of a member of a committee unless such society has at its last account audited in class A, B or C. In the last accounts that were audited on 19.8.2019 since the classification was below the required classification as per Sec.27 of the Act, the petitioner was ineligible to be even elected as a member of the committee and in turn to be nominated to the Board of Directors of the Bank. - Reading Sec.145(F)(e) of the Act with Rule 32(1)(K), the learned Government Pleader would submit that reading these two in conjunction would make it clear that what is provided in the Rule, especially Rule 32(1-A), that a member of a committee who incurs any disqualification as specified in sub rule (1) shall vacate the office, and if he does not vacate such office, he shall be removed by the Registrar. This in the submission of learned GP would very well indicate the falsity of the submission of the learned counsel for the petitioner that it is a one time measure. This in the submission of learned GP would very well indicate the falsity of the submission of the learned counsel for the petitioner that it is a one time measure. According to learned GP, such a disqualification continues and enures during the entire tenure of the term and therefore reading the sections, rules and bye law No.32(6) would indicate that the bye law 32(6) is in conjunction with Sec.37 proviso which provides unequivocally of the qualification of a member to vote when the last audit is taken. - Ms. Manisha Lavkumar, learned GP would also stress on the fact that what Sec.145(F) provides is that a person shall be disqualified from being elected as and for being a member of the Committee which according to her would support her submission of the disqualification even during the tenure of the petitioner. - The next submission of Ms.Manisha Lavkumar, the Government Pleader was that the audit report came on 19.8.2019. The audit report was not challenged. An appeal against the audit report was only filed after more than a year on 20.7.2020 after the show cause notice and filing of the petition which indicates that the petitioner is trying to unnecessarily litigate rather than reply to the show cause notice. - Ms. Manisha Lavkumar would submit that there is no jurisdictional error and in fact jurisdictional facts do exist in accordance with the provisions of the law. - Ms. Manisha Lavkumar would further submit that it is wrong for Mr.Jani to contend that the applicants of the Civil Application had no right whatsoever to make an application for taking appropriate action against the petitioner. - Ms.Manisha Lavkumar would further submit that the petition challenging the show cause notice is premature. In case, the petitioner makes a representation, the authorities will with an open mind, in accordance with law, take a decision after the show cause notice and the petitioner's response. Even after that, if an order is passed, assuming that it may be passed against the petitioner, is an order which is appealable. She would further submit that there is no reason why the petitioner should apprehend that the order will be passed against the petitioner. It is quite possible that on the response of the petitioner, the authorities could drop the show cause notice proceedings. She would further submit that there is no reason why the petitioner should apprehend that the order will be passed against the petitioner. It is quite possible that on the response of the petitioner, the authorities could drop the show cause notice proceedings. - In response to the allegation of political malafide, Ms.Manisha Lavkumar would submit that the allegations of political malafides are best easily made. In the present case, false and bald allegations have been made without any specific pleadings or joining parties against him. 6. Mr.Dipen Desai, learned counsel who has made an application to join as a party would submit that he being a member of a society, would have an entitlement to see that the Director of the Bank of which he is a member is qualified to hold the post. He, therefore, would have a locus to challenge and be joined as a party and make an application to the Registrar pointing out the fact that the petitioner has incurred a disqualification. The word is 'incurred a disqualification' which would mean a 'continuing liability' to be eligible to hold the post. He would further submit that whether 32(6), the bye law invoked applies is a question of fact and not of jurisdiction. 7. Mr. P.K. Jani, learned Senior Counsel in rejoinder would submit and lay stress on Sec.145(F) and submit that what the disqualification in personem that is as an individual disqualification. That is why the stress on the word 'e.' Mr.Jani would submit that the society having on down-gradation in an audit would not immediately or automatically disqualify the petitioner because it was not an individual disqualification that had occurred. To this, Ms.Manisha Lavkumar would submit that Rule 32(1)(A) is a clear answer. Mr.Dipen Desai, in answer to the submission relied on a decision of this Court in the case of Gujarat State Cooperative Banks Ltd. Union and another v. State of Gujarat reported in 2009 (1) GLH 371 . 8. Having considered the facts and having set out the submissions of learned counsels for the respective parties, we need to appreciate these, in the context of the submissions made. - The first submission made by Shri Jani was that the notice under challenge i.e. the show cause notice dated 19.3.2020 was issued at the behest of the applicants of Civil Application No.1/2020 who addressed a letter to the Registrar on 12.3.2020. - The first submission made by Shri Jani was that the notice under challenge i.e. the show cause notice dated 19.3.2020 was issued at the behest of the applicants of Civil Application No.1/2020 who addressed a letter to the Registrar on 12.3.2020. Reading of the letters would indicate that it is pointed out therein that the petitioner had been elected as a Director of the Bank for a period of five years. That the re-audit of Rampura Seva Sahakari Mandali Limited of which the petitioner by virtue of being a member was nominated was carried out and the society received the audit class D. The letter would further indicate that accordingly a request was made to the Registrar that since the society had now an audit class D, the petitioner is disqualified to continue as a Director. On the question of locus of the applicants to make such a application, not being voters of the petitioner's constituency, reading of the application makes it clear that the authors of these letters were members of Hajipur Seva Sahakari Mandli Limited, Shri Kamli Seva Sahakari Mandli Limited and Shri Khatasna Seva Sahakari Mandli Limited. All these societies are the members of the Mehsana District Central Cooperative Bank Limited. Being members of the Mehsana District Central Cooperative Bank Limited and having taken loans from the Bank, they are directly concerned with the proper management with the Bank and, therefore, even entitled to put forth their point that a Director of the Bank now stands disqualified by virtue of the provisions of the law in force. They, therefore, pressed into service bye law No.32(6) of the Bank and suggested that the petitioner had no right to continue. - Merely because on an application made on 12.3.2020, if the Registrar calls for a report and as referred to in the impugned show cause notice that the District Registrar sends a report opining about the status on 16.3.2020, a presumption cannot be drawn that the impugned show cause notice has been issued in hot haste and / or is premeditated or politically malafide merely because it is on the behest of the authors of the letter dated 12.3.2020 and such letters have been marked to the sitting Member of a Legislative Assembly. Any constituent would have a right to mark a letter addressing his/ her grievances to the Member of a Legislative Assembly of his / her constituency and merely because a bald allegation of a politically malafide action is suggested without joining Ashaben as a party respondent, I do not think it fit to accept the submission of Mr. Jani that the action is either politically malafide or is at the behest of the applicants of the civil application, who had no locus to address these letters. Clearly, the authors of the letters being a members of a society and who had obtained loans from the Bank were clearly interested in seeing that the Bank is functioning in accordance with the provisions of law and rules in force. 9. Now let us undertake the exercise of appreciating the submission of Mr. Jani in context of a submission that the show cause notice suffers from jurisdictional error and the sections, rules and the bye laws do not warrant the action because either they are not applicable or according to Mr. Jani, a misreading of the bye laws under the rules and the sections have been made. In order to appreciate the controversy, let us reproduce the relevant sections hereunder: “SEC.27. RIGHT TO VOTE: [(1)] No person shall exercise the rights of a member of a society, until he has made such payment to the society in respect of membership, or acquired such interest in the society, as may be prescribed by the rules, or the bye-laws of such society. RIGHT TO VOTE: [(1)] No person shall exercise the rights of a member of a society, until he has made such payment to the society in respect of membership, or acquired such interest in the society, as may be prescribed by the rules, or the bye-laws of such society. [(2)] The person who has committed a default and remains as such defaulter in making repayment of loan or interest thereon for a period of one year from the due date of repayment of such loan or interest or installment shall not be entitled to exercise voting rights of a member of a society till all such repayments are made.] (3) No person shall exercise the right to vote at an election of a member of a committee in a financial year unless he is a member of the society for the whole of the financial year preceding the financial year in which the election is being held: Provided that no member society of a federal society shall exercise the right to vote at an election of a member of a committee unless such society has its last accounts audited in the class A, B or C. (4) Nothing in sub section (3) shall apply to the first election of a committee to be held immediately after the registration of a society.” SEC.145(F) DISQUALIFICATION FOR MEMBERSHIP: (1) A person shall be disqualified for being elected, as, and for being a member of the committee of any specified society- (a) if he is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he holds or is appointed to the office of a Managing Director or any other office under the society declared by the State Government by general or special order not to disqualify its holder; (b) if he has been convicted of an offence punishable under Section 153-A or Section 171-E or Section 171-F or sub-section (2) or subsection (3) of Section 505 of the Indian Penal Code, 1860 (XLV of 1860), or under Section 145-R or clause (a) of sub- section (2) of Section 145-S of this Act, unless a period of six years has elapsed since the date of his conviction; (c) if he has been convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years, unless a period of five years has elapsed since his release; (d) if he is found guilty of a corrupt practice under this Chapter by the State Government unless a period of six years has elapsed since the date on which the decision of the State Government takes effect; (e) if he is also disqualified by or under any other provision of this Act. [(1-A) (i) (a) No member of a society in the Central Co-operative Bank and the State Co-operative Bank shall be eligible to be elected as a member in the committee if he is in default for a period of twelve months in payment of dues to the society; (b) no person elected as a member of a society in the Central Co-operative Bank and the State Co-operative Bank shall be continued as a member if he is in default for a period exceeding twelve months in payment of dues to the society unless the amount in default with due interest is paid to the society; (c) no member of a Primary Agricultural Credit Co- operative Society shall be eligible to be elected as a member in the committee of the State Co-operative Bank or a Central Co-operative Bank if the society is in default in payment of dues to the co-operative bank unless the default with due interest is paid to the co-operative bank; (d) no member of a non-credit society who is a member in the committee of a Central Co-operative Bank or the State Co- operative Bank shall be continued as such member if the society commits default for a period exceeding 90 days in payment of dues to the bank. (ii) The above provisions shall be in addition to and not in derogation of any other provisions for disqualification contained in this Act.]” Rule 32 of the Gujarat Co-operative Societies Rules, 1965: "32. Qualification for the member of the Committee:- (1) Every member of a society who is entitled to vote shall be eligible for appointment as a member of a committee thereof it- (a) he is not in default in respect of any loan taken by him for such period as is specified in the bye-laws, or [(aa) he is not a defaulter in respect of a loan or interest thereon as specified in sub-sec. (2) of Sec.27 of the Act, or] (b) he has not directly or indirectly any interest in any subsisting contract made with the society or in any property sold or purchased by the society or any other transaction of the society except in any investment made in or any loan taken from the society, or (c) if he is not otherwise disqualified for appointment a such member [or] (d) he is not held responsible under Section 82, or (e) no order for recovery of costs made against him by a Magistrate under Section 91, or (f) no order is made against him under Section 93, or (g) if he is not found guilty of any of the offences under Section 147 or any offence under Section 403 of the Indian Penal Code in respect of the property of any society.] [(1-A) A member of the committee who incurs any of the disqualifications specified in sub-rule (1) shall vacate the office and if he does not vacate such office, he shall be removed by Registrar as such member: Provided that the Registrar, shall before making such order of removal, give the person concerned an opportunity of being heard.]” 10. The bone of contention between Mr.Jani, learned Senior Counsel and learned GP Ms.Manisha Lavkumar is whether Sec.27 read with Sec.145(F) (e), Rule 32, would apply at the initial stage of being voted as a Director or such a disqualification would enure in the entire term and therefore in the government's perception even the continuance of the petitioner as a Director would now no longer be possible in view of the disqualification that the petitioner has occurred by the Society of which he was a member and on the basis of which he was nominated as an audit classification 'D.' 10.1 Reading Sec.27 of the Act would indicate that a member of a society can only exercise such rights as a member of such society under certain requisite parameters. The proviso to sub sec.3 of Sec.27 indicates that unless the society has its accounts audited in class A, B or C in the last accounts, no member of such a society shall exercise the right to vote at an election of the member of the Committee. The proviso to sub sec.3 of Sec.27 indicates that unless the society has its accounts audited in class A, B or C in the last accounts, no member of such a society shall exercise the right to vote at an election of the member of the Committee. In other words, in the event, the society's audit class is D, as in the case of the present petitioner's society – the Rampura Seva Sahakari Mandali Limited, the petitioner's society and he being a member of society, would have no right to vote at an election. 11. Considering the facts on hand and reading the submissions in the petition it would indicate that the petitioner was nominated by the Rampura Seva Sahakari Mandali Limited on the voters list of the Mehsana District Central Cooperative Bank Limited. His name was sent as a nominee of the society for the elections to the Bank. According to the petitioner, he fulfilled the requirement and eligibility as a candidate to contest the election of the Mehsana District Central Cooperative Bank Limited and, therefore, filed his nomination, his nomination was held to be valid and on the basis of this, he was elected to the Board of Directors of the Managing Committee of the Bank. 12. Sec.145(F) of the Act provides for disqualification of membership. Reading of the section which is reproduced hereinabove would indicate that a person shall be disqualified for being elected as and for being a member of the committee of any specified society if he is also disqualified by or under any other provisions of the Act. In other words, apart from he being disqualified on being employed as a salaried employee of the society or any conviction or having been found guilty of any corrupt practice, if any other provision under the Act disqualifies such person from being a member of the committee of any specified society, the disqualification for membership shall be attracted. If this is read in context of the proviso to Sec.27(3) thereof, reading this with sub clause (e) of Sec.145(F)(1), it would be a disqualification under sub sec.(3) of Sec.27 and be a disqualification under that provision of the Act. The submission of Mr. Jani that the disqualification has to be at the time of the initial eligibility also appears to be misconceived. The submission of Mr. Jani that the disqualification has to be at the time of the initial eligibility also appears to be misconceived. Reading sub sec.(1) of sec.145(F) would indicate that a person shall be disqualified from being elected as and for being a member of the Committee. In other words, the disqualification enures during the tenure of the petitioner's eligibility for the entire term as a Director, because, but for his being eligible as a member in accordance to proviso of sub sec.3 of sec.27, the petitioner would not have been nominated as a Director of the Board of the Bank. By an audit report of 19.8.2019 when the society on the basis of an audit classification D, which nominated the petitioner to be a representative stands disqualified or ineligible to vote in terms of the proviso to sub sec.3 of sec.27, the disqualification is triggered. 12.1 This also finds support on reading Rule 32 of the Gujarat Cooperative Societies Rules, particularly Rule 32(1-A). One needs to appreciate the fine distinction that has been made reading Rule 32(1) as compared to Rule 32(1)-(A) of the Rules. Mr.Jani's submission would find support if the rule was read in isolation. True it is that Rule 32(1) when read would provide that every member of a society who is entitled to vote shall be eligible for appointment as a member of the committee. Therefore, Rule 32(1) would support Mr.Jani's submission. Unfortunately what the learned counsel for the petitioner has lost sight of is the provision of sub rule (1-A) of the Rules. Reading Rule 32(1-A) of the Act would indicate that a member of a committee who incurs any disqualification specified in sub rule (1) shall vacate the office. In other words, the word incur when read in context of vacate the office would unequivocally suggest that such a disqualification has to happen during the continuance of an incumbent in his term. Had that not been the intention, the term “vacate the office”, would not find place in the provisions of the rules. If Mr.Jani's submission is accepted then the sub rule 1-A would have no point of being in place in the rules of the society's act. 12.2 That Rule 32(1-A) is a rule which is invoked and rightly so, is also finding support when one reads proviso to Sec.27 sub sec.3 thereof. If Mr.Jani's submission is accepted then the sub rule 1-A would have no point of being in place in the rules of the society's act. 12.2 That Rule 32(1-A) is a rule which is invoked and rightly so, is also finding support when one reads proviso to Sec.27 sub sec.3 thereof. The proviso categorically states that no member of a society shall exercise a right to vote at an election of a member of a committee unless such society has its last accounts audited in class A, B or C. Audit of accounts is done as an exercise at the end of every financial year. The audited accounts, therefore, would be subject to a classification accordingly. It is in the context of this that the term “last accounts” has been used in Sec.27(3) of the Act. Keeping this spirit in mind, Rule 32(1-A) finds place in the Rules. Therefore, the submission of Mr. Jani, learned Senior Advocate that the disqualifications envisaged under the provisions invoked in the show cause notice are without jurisdiction because such disqualifications have to be taken into account only at the initial stage of appointment is a submission which does not impress this Court. 13. The bye laws have been pressed into service by the Government and the petitioner in support of his submission. Bye law 32(6) has been pressed into service by Mr.Jani as not applicable in context of the submission that I have not agreed to immediately hereinabove. The bye law, therefore, will have to be read in conformity with the provisions of the Statute namely Secs.27, 145(F)(e) and Rule 32(1-A) of the Act. The submission therefore of Mr.Jani for the reasons stated immediately hereinabove, does not warrant acceptance. 14. Though I do not impute any motives on the part of the petitioner to institute a petition against the show cause notice and would not therefore deal with the submission of the learned GP that it is only after filing of the petition that the audit report of 19.8.2019 is challenged by way of an appellate remedy on 20.7.2020. This may be one more attempt on the part of the petitioner to justify his submissions to support the petition against the show cause notice. I leave it at that. 15. This may be one more attempt on the part of the petitioner to justify his submissions to support the petition against the show cause notice. I leave it at that. 15. Having held that there is no jurisdictional error of fact or a jurisdictional error to make the show cause notice bad and, therefore, the justification to invoke Article 226 of the Constitution of India, the judgments cited by the learned advocate for the petitioner in the case of Calcutta Discount Company Limited (Supra) and Oryx Fisheries Pvt. Ltd. (Supra) would have no applicability. 15.1 While relying on the decision in the case of State of Rajasthan (Supra) and in the case of Nareshbhai P. Parmar (Supra), this Court would not want to enter into the exercise of appreciating the validity of the action of the respondents at the stage of the show cause notice and consider whether the action of the respondents of initiating the removal procedure is valid or not because having found that there is no error of jurisdiction, it is best left to the authorities to take a call when the petitioner has responded or is yet to respond to the show cause notice. As far as the reliance placed on the decision in the case of Tarlochan Dev Sharma (Supra) which is relied by the learned Single Judge of this Court while taking a decision of in the case of Chaudhari Visabhai (Supra), Mr. Jani's submission that an elected representative can only be removed by the procedure that is envisaged for setting aside his election, is a submission bereft of merit in view of the discussion of the provisions of law regarding disqualification which have been invoked vis-a-vis the petitioner in the present case. 16. On the aspect of malafides, allegations have been made in the grounds of the petition. These are legal submissions not backed by facts. Moreover, in addition thereto, though bald allegations have been made against the sitting member of the legislative assembly to whom the applicants of the Civil Application marked copies of the letter, the concerned MLA has not been joined as party respondent which is a basic requirement when one makes allegations of malafide. Allegations of political malafides are best made easily to substantiate and to support a petition. Allegations of political malafides are best made easily to substantiate and to support a petition. In the facts of the case, these allegations are not supported by any credible evidence except bald allegations made in the grounds and during the course of submissions and the Court, therefore does not intend to accept these as germane to the cause. 17. In the end of the submissions, Mr.Jani inviting the attention of the Court to the provisions of Sec.145(F) would argue that these disqualifications are person centric. In other words, if the petitioner was to be disqualified for being convicted in a Court or being a salaried employee, these disqualifications being personal to the petitioner would be applicable. Merely because the society of which he is a member would fail to be qualified as an Audit Class as required under the law, would automatically disqualify the petitioner. Considering the decision of the Division Bench of this Court in the case of Gujarat State Cooperative Banks Ltd. Union and another v. State of Gujarat cited by learned advocate Mr. Dipen Desai for the civil applicants which is reported in 2009 (1) GLH 371 , this very submission was considered by the Division Bench of this Court in context of the words “Person and a Member”. In paragraph No.10 of the decision, a submission was made that a bye law would apply only to a person and not a cooperative society and, therefore, the respondents in that petition should not be considered as disqualified under the bye laws as that applied to the society and not the persons i.e. the respondents therein. The challenge in the Division Bench was to the preparation of the voters list in context of the elections to the Board of Directors of the Gujarat State Cooperative Bank Limited. It is in this context that the Division Bench clearly observed that individuals cannot become members of the petitioner Bank with voting rights. In other words, a member cannot be eligible to vote in context of the present facts, unless the society has an audit classification so prescribed under the proviso to sub sec.3 of sec.27 of the Act. It is in this context that the Division Bench clearly observed that individuals cannot become members of the petitioner Bank with voting rights. In other words, a member cannot be eligible to vote in context of the present facts, unless the society has an audit classification so prescribed under the proviso to sub sec.3 of sec.27 of the Act. If that is so, the society which nominated the petitioner and by virtue of which nomination, the petitioner became the Director of the Bank was not entitled to nominate the petitioner to be a member and therefore be nominated to stand for election. The submission therefore that the provision is person centric also stands to fail. 18. Admittedly, the petition is challenging the show cause notice dated 19.3.2020. Having extensively discussed and found that the notice does not suffer from any jurisdictional error, this Court in exercise of its powers under Article 226 of the Constitution of India will be loathe to interfere and interject to the proceedings at the show cause notice stage, merely because the petitioner apprehends that the authorities have taken a premeditated and a predetermined stand. Merely on the basis of such allegations, this Court would not prejudge the issue at the hands of the petitioner and leave it to the authorities to take a decision on the show cause notice in accordance with law and without being influenced by such reasons. 19. For the reasons as aforesaid, the petition is dismissed with no order as to costs. Rule is discharged. 20. In view of the orders passed in main matter, Civil Application does not survive and the same stands disposed of accordingly. 21. The Registry is requested to communicate this CAV Judgment through E-mail and / or Fax.