AI Structured Summary
Not yet generated for this judgment
Judgment
Anant S. Dave, J
In this letters patent appeal under Clause-15 of the Letters Patent, challenge is to the C.A.V. judgment dated 9.7.2019 rendered by learned Single
Judge in Special Civil Application No. 17940 of 2018, whereby the appellant-original petitioner invoked extraordinary jurisdiction of the High Court
under Article 226 of the Constitution of India, in spite of availability of efficacious alternative remedy under the inbuilt mechanism of the Gujarat
Cooperative Societies Act, 1961 (“the Act†for short) by challenging the order dated 22.11.2018 passed by respondent No.1-District Registrar,
appointing respondent No.2 as custodian in the petitioner-Sangh, in exercise of power conferred under section 74(C)(2)/74D of the Act. Initially,
learned Single Judge, while issuing notice, directed the respondents to maintain status-quo prevailing on 28.11.2018, which continued till the date of
hearing of the writ-petition.
Before the learned Single Judge, manifold contentions were raised including that of power of Registrar to appoint Custodian, particularly when
election of the petitioners as Chairman and Vice Chairman was never under challenge by invoking appropriate remedy since they were elected for a
period of 5 years.
Even contention was raised on the ground that unless the ingredients mentioned in section 74D are fulfilled, the Registrar, Cooperative Societies has
no jurisdiction to enter into the arena of election of the petitioners as Chairman and Vice Chairman of the petitioner-Sangh. Besides, reliance was
placed on the decision of Division Bench of this Court rendered on 27.11.2017 in Letters Patent Appeal No. 204 of 2017 in support of the above
submission. Even amendment was made bringing certain facts on record for holding election of the managing committee of the petitioner-Sangh.
Though request was made, the amendment was not even considered. It is submitted that by incorrect interpretation of section 74C(2) of the Act, the
learned Single Judge erroneously dismissed the writ-petition. Learned Single Judge has quoted section 74C(2) of the Act in the judgment impugned,
which reads as under:
“74C. Provision for conduct of elections of committees and officers of certain societies and term of office of members of committees.-
(1) xxx … xxx … xxx
(2) . When the election of all the members of the committee of any such societies held at the same time, the members elected on the committee at
such general election shall hold office for a period of three years from the date on which the first meeting is held and shall continue in office until
immediately before the first meeting of the members of the new committee.â€
Similar such contentions are raised by learned counsel Mr. B.S.Patel, appearing for the appellants along with reliance on the decision of this Court
in the case of Amreli District Co.Op. Sale & Purchase Union vs. State, reported in 1984 (2) GLR 1244. It is submitted that in the above judgment
also, a Division Bench of this Court clearly held about restriction imposed qua power to be exercised by Registrar vis-a-vis appointment of custodian.
Our attention is also drawn to the fact that learned Single Judge erred in holding about availability of alternative remedy under section 155 of the Act,
that appointment of custodian cannot made for a period indefinite and it may be only by way of stop-gap arrangement and even such appointment of
custodian negates the very purpose and purport of the Cooperative Societies Act, 1961, hence, the impugned judgment deserves to be quashed and set
aside.
Upon consideration of the above submission, at the threshold, we find that following facts remain undisputed to which the learned Single Judge has
addressed in extenso, which are as under:
“3. The petitioner Sangh through its so called Chairman and Vice Chairman have averred in the petition, inter alia, that the members of the
Managing Committee of the petitioner-Sangh were elected uncontested on 24.06.2014 for a period of five years and subsequently, the election of the
Chairman and Vice Chairman had also taken place on 22.07.2014 on which date one Sharadbhai Shakarbhai Patel According and Tukarambhai
Raghunathbhai Patel were elected uncontested as the Chairman and the Vice Chairman of the said committee for a period of five years. According to
the petitioners, the said election had remained unchallenged, however, the respondent No.1District Registrar had issued notice dated 08.10.2018 calling
upon the members of the Managing Committee to show cause as to why the Custodian should not be appointed under section 74D of the said Act, as
the term of the Managing Committee of the petitioner-Sangh was for a period of three years from the date of election as per the provision contained in
the said Act and also as per the bye-laws of the petitioner-Sangh and therefore, the said term had come to an end on the expiry of three years on
22.07.2017. The petitioner-Sangh had challenged the said show cause notice before this Court by filing Special Civil Application No.16407 of 2018,
however the same was withdrawn with a view to approach the respondent No.1-District Registrar by filing reply to the said notice. The petitioners
and other members of the Managing Committee thereafter filed a reply on 01.11.2018 to the said show cause notice. The respondent no.1 thereafter
considering the said reply, passed the impugned order dated 22.11.2018 appointing respondent No.2 as the Custodian of the petitioner Sangh in
exercise of powers conferred under section 74D of the said Act.â€
Section 74C(2) then existed pertained to conduct of election of committees and officers of certain societies and the term of office of members of
committees. Sub-section (2) of section 74(C) provides that when the election of all the members of the committee of any such societies held at the
same time, the members elected on the committee at such general election shall hold office for a period of three years from the date on which the first
meeting is held and shall continue in office until immediately before the first meeting of the members of the new committee. Therefore, the learned
Single Judge rightly held that election of members of the managing committee was held on 23.6.2014 and election of the Chairman and Vice Chairman
was held on 22nd July, 2014 for a period of five years, which was neither in consonance with the statutory provision contained in the Act nor in
consonance with the bye-laws of the petitioner-Sangh.
As regards the reliance placed on the decision of a Division Bench of this court in Letters Patent appeal No. 204 of 2017, learned Single Judge, in
para-11 of the impugned judgment has held as under:
“11. There cannot be any disagreement to the legal position laid down by the Division Bench of this Court in case of Letters Patent Appeal No.204
of 2017 decided on 27.11.2017 relied upon by learned Advocate Mr.Patel to the effect that powers under section 74D of the said Act could be
exercised by the District Registrar under two eventualities, viz. Firstly, where a new committee of management is for any reason whatsoever, not
elected before the expiry of the term of office of members of a committee of management of the society and secondly, the members of the committee
though having been elected, had not started functioning within a period of three months. It may be noted that the term of office of the members of the
committee of the management would mean the term as statutorily provided under the Act and not the term which the committee had decided dehorse
the Act and the bye-laws.â€
We do not find any infirmity in the above reasoning of the learned Single Judge and before reliance is placed on the decision of Amreli District
Cooperative Sale and Purchase Union (supra), wherein certain observations are made by Division Bench of this Court qua powers of Registrar in the
context of the submission made by the learned counsel for the appellant about frequent misuse of powers of the Registrar to appoint custodian, which
was at the threshold negatived by the Division Bench. The submission made by learned counsel for the petitioners about the prayer pertaining to
seeking direction to hold election of the petitioner-Sangh was also bereft of merit considering the fact that grant of such amendment would amount to
changing the cause of action of the prayers of the petitioner. Overall facts reveal that no case is made out. In the absence of merit, the appeal
deserves to be dismissed and is accordingly dismissed. Consequently, connected civil application does not survive and the same is disposed of.
However, it will be open for the appellants to invoke appropriate remedy for seeking relief of holding of election of the petitioner-Sangh in
accordance with law.