Shree Sakra Vividh Karyakari Seva Sahakari Mandali Ltd. vs State of Gujarat and Others

Honourable Mr. Justice M.R. Shah

The present Special Civil Application under Article 226 of the Constitution of India has been preferred by the Petitioner for an appropriate writ, order or direction to quash and set aside the impugned show cause notice dated 30/06/2011 at Annexure - A to the petition issued by Respondent No. 3 by which the Petitioner-Society is called upon to show-cause why in purported exercise of powers u/s 107 of the Gujarat Co-operative Societies Act, 1961 the order for another Liquidator should not be passed.

Shri Dipen Desai, learned advocate appearing on behalf of the Petitioner has vehemently submitted that as such no case is made out for issuance of notice u/s 107 of the Gujarat Co-operative Societies Act. It is further submitted that as such there is no material on record to justify the initiation of the proceedings u/s 107 of the Act. It is further submitted that even the ingredients of Section 107 are not satisfied and, therefore, it is requested to exercise the powers under Article 226 of the Constitution of India and issue writ of prohibition and to quash and set aside the impugned show-cause notice. Shri Dipen Desai, learned advocate appearing on behalf of the Petitioner has relied upon the decision of the Hon''ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, the decision of the learned Single Judge in the case of Pravinbhai Mohanbhai Raiyani and Others Vs. State of Gujarat and Others, in support of his prayer to entertain the present petition against the show-cause notice and to quash and set aside the same in exercise of powers under Article 226 of the Constitution of India.

The present petition is opposed by Shri L.B. Dabhi, learned APP by submitting that it is not the case on behalf of the Petitioner that there is total lack of jurisdiction while issuing show-cause notice. It is submitted that whether on facts powers u/s 107 of the Act are to be exercised or not and/or whether there is any material to exercise powers u/s 107 of the Act are yet to be considered by the appropriate authority and the Petitioner is yet to file reply to the same and, therefore, relying upon the decisions of the Hon''ble Supreme Court in the case of Executive Engineer, Bihar Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, ; in the case of The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, as well as in the case of State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, in support of his prayer not to entertain the present petition and relegate the Petitioner to file reply to the show-cause notice.

Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the present petition under Article 226 of the Constitution of India is against the show-cause notice issued by Respondent No. 3 in purported exercise of powers u/s 107 of the Gujarat Co-operative Societies Act and the Petitioner is yet to file reply to the show-cause notice and the same is yet to be considered by the concerned appropriate authority. At the outset, it is required to be noted that it is not the case on behalf of the Petitioner that Respondent No. 3, who has issued the show-cause notice, has no jurisdiction at all and/or he lacks jurisdiction to issue such a notice u/s 107 of the Gujarat Co-operative Societies Act and, therefore, this is not a case of total lack of jurisdiction in issuing the show-cause notice by Respondent No. 3. It is the case on behalf of the Petitioner that as such no case is made out for issuance of notice u/s 107 of the Gujarat Co-operative Societies Act and/or there is no material on record to initiate proceedings u/s 107 of the Act. The aforesaid aspects are required to be considered while adjudicating the show-cause notice and it will always be open for the Petitioner to submit accordingly, which is required to be considered by the appropriate authority in accordance with law and on its own merits. As held by the Hon''ble Supreme Court in the case of Brahm Datt Sharma and Anr (Supra) when a show-cause notice is issued to a Government servant under a statutory provision, ordinarily the Government Servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless notice is shown to have been issued palpably without any authority of law. Similar view is expressed by the Hon''ble Supreme Court in the case of Mohd. Ghulam Ghouse and Anr (Supra) as well as in the case of Ramesh Kumar Singh and Ors. (Supra). Under the circumstances, the present Special Civil Application under Article 227 of the Constitution of India against the show-cause notice is not required to be entertained.

So far as reliance placed upon the decision of the Hon''ble Supreme Court in the case of Whirlpool Corporation (Supra) is concerned it was the specific case and it was found by the Hon''ble Supreme Court that the show-cause issued to the Appellant was wholly without jurisdiction. That is not the case here. It is not the case on behalf of the Petitioner that the show-cause notice issued by Respondent No. 3 is wholly without jurisdiction. It is altogether a different thing whether Respondent No. 3 is justified in issuing notice u/s 107 of the Gujarat Co-operative Societies Act and/or whether there is material on record to pass an order u/s 107 of the Gujarat Co-operative Societies Act. The aforesaid shall be required to be considered at the time of adjudication by the appropriate authority on considering the material on record as well as the reply to the show-cause notice by the Petitioner.

In view of the above and for the reasons stated hereinabove, the present petition and the show-cause notice is not entertained. It will be open for the Petitioner to give reply to the show-cause notice within a period of two weeks from today and thereafter Respondent No. 3 to pass an appropriate order in accordance with law considering the reply submitted by the Petitioner and the material on record.

With this, the present Special Civil Application is dismissed.