Bhagwanbhai Arsibhai Pachodi and Others vs State of Gujarat and Others

R.M. Doshit, J.—This Appeal preferred under Clause 15 of the Letters Patent arises from the judgment and order dated 23rd September 2008 passed by the learned Single Judge in above Special Civil Application No. 10386/2008.

The appellants-petitioners are the elected Directors of the Una Taluka Sahakari Kharid Vechan Sangh Limited, a federal society (hereinafter referred to as ''the Society''). Feeling aggrieved by the order dated 22nd/23rd April 2008 made by the Registrar, Cooperative Societies, in exercise of powers conferred by Section 80(1) of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the Act"), the appellants preferred above Special Civil Application No. 10386/2008 under Article 226 of the Constitution of India.

It is the grievance of the appellants, inter alia, that three persons nominated as the representatives of the Government are disqualified to be the members of the Society. The specific objection raised by the appellants has not been considered by the authority below. It is also the grievance of the appellants that the exercise of power u/s 80(1) of the Act is vitiated by malafide as it has been made with a view to tilting the balance and not in the interest of public.

The petition was contested by the State Government.

The learned Single Judge has considered the provisions contained in Section 80(1) of the Act and has relied upon the judgment of this Court in the matter of Patel Kodarbhai Jivabhai and Others Vs. State and Others, The learned Single Judge upheld the action of the authority below and has rejected the writ petition. Therefore, the present Appeal.

Learned advocate Mr. Mangukiya has appeared for the appellants. He has taken us through the statutory provisions and the order of the authority below. He has strenuously urged that the appellants were not given opportunity of hearing. He does not dispute that the authority below has power to nominate the representatives on the board of the Society. However, in the submission of Mr. Mangukiya, such powers are required to be exercised in public interest. In the present case, it has not been exercised in public interest but for extraneous purpose. In support of his arguments, he has relied upon the judgments in the matters of Amreli District Co-operative Sale and Purchase Union Ltd. and Others Vs. State of Gujarat, of Gujarat State Marketing Cooperative Federation Limited and Anr. v. State of Gujarat and Ors. 2005 (1) GLH 144 and of Shri Vanthali Vibhagiya Nagarik Shri Vanthali Vibhagiya Nagarik Sahkari Bank Ltd. Vs. State of Gujarat and Another,

The Appeal is contested by the learned Additional Advocate General Mr. Tushar Mehta.

We are of the opinion that the appellants'' grievance is justified in as much as the allegation that the concerned nominees are disqualified to be the members of the Society has not been considered The appellants had, before the authority below, raised a specific allegation that the concerned nominees namely Nanubhai Jivabhai Nandvana and Babubhai Kalabhai Vaghela were not qualified to be the members of the Society. Nevertheless, without considering the specific allegation in light of the statutory provisions as well as the bye-laws of the Society, the impugned order made by the authority below is vitiated on this ground alone.

For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 23rd September 2008 passed by the learned Single Judge in Special Civil Application No. 10386/2008 is set-aside. The impugned order dated 22nd/23rd April 2008 made by the Registrar of Cooperative Societies is set-aside to the extent of nomination of the respondent Nos. 6 and 7 ''Nanubhai Jivabhai Nandvana and Babubhai Kalahai Vaghela only on the ground that the disqualification alleged against the said Nanubhai Jivabhai Nandvana and Babubhai Kalahai Vaghela has not been considered. The respondent No. 4'' Registrar of Cooperative Societies will, within fifteen days from today, reconsider the nomination of the said Nanubhai Jivabhai Nandvana and Babubhai Kalabhai Vaghela, particularly the question of disqualification.

This order is made without prejudice to the rights and contentions raised by the parties. The appellants, if aggrieved, will be at liberty to challenge the order of the respondent No. 4 made pursuant to this order, on all available grounds.

Civil Application stands disposed of. The parties will bear their own cost.