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Judgment
D.A. Mehta, J.—This petition challenges order dated 21/02/2009 made by respondent No. 2 in exercise of powers u/s 80(2) of the Gujarat Co-operative Societies Act, 1961 (the Act).
The case of the petitioner is that it is a registered co-operative society and the petition has been preferred through the Chairman. That at the election of the Managing Committee of the petitioner - society on 08/08/2008 petitioner came to be elected as a member in accordance with provisions of the Gujarat Specified Co-operative Societies Election to Committees Rules, 1982. On 16/09/2008 a show-cause notice came to be issued by respondent No. 2 suggesting appointment of three persons enumerated in paragraph No. 6 of the show-cause notice and calling upon the petitioner to raise objections, if any, within time period specified. The petitioner came before this Court by way of Special Civil Application No. 11986 of 2008. The petition came to be rejected by permitting the petitioner to withdraw the petition with liberty to challenge in case the petitioner-society is aggrieved by appointment of government nominees. Hence this petition.
It is the case of the petitioner as contended by learned Advocate for the petitioner that the three persons are not concerned with the petitioner - society and are not acceptable to the petitioner - society as the said three persons do not have experience. In relation to one Shri Shamalbhai Hathibhai Chaudhary resident of Village Kodram, Tal. Vadgam, Dist: B.K., it was contended that he was not a member of the Managing Committee of Kodram Co-operative Society. In relation to one other nominee, Shri Becharbhai Valjibhai Chaudhary it was submitted that though he did not contest the election in 2008 he is being permitted to go on the board as government nominee and hence the impugned order is bad in law. That there was no share capital of the State Government in the petitioner society and therefore exercise of powers u/s 80 of the Act was bad in law.
Learned Advocate for the petitioner also placed reliance on communication dated 05/02/2003 issued by District Registrar that it was not necessary to appoint government nominee in the petitioner - society and contended that there was no change in circumstances so as to warrant appointment of a government nominee. Lastly, it was contended with emphasis that the Managing Committee of the petitioner - society is having strength of fourteen Directors with one representative of the Co-operative Officer, wherein eight Directors, including the Chairman, comprise of one group while the other group is comprised of six Directors who are opposed to the Chairman. Hence appointment of government nominees would result in tilting the balance in favour of the group opposing the Chairman. The exercise was therefore with a view to reducing / converting majority into minority and hence illegal. For this purpose reference is made to list of Directors appearing at Annexure - F.
On behalf of respondent authority learned Assistant Government Pleader submitted that while passing the impugned order the authority has taken care to ensure that the requirement prescribed by provisions of Section 80(2) of the Act are fulfilled. The petitioner - society was given an opportunity of hearing and the said opportunity has been availed of by the petitioner. The contention in relation to the nominees, lacking in experience or not being a member of the Managing Committee of the respective society was not raised as part of the reply tendered by the petitioner and has come for the first time in the petition. That this being a factual matter the Court should not entertain the said contention. It was further submitted that provisions of Section 80(2) of the Act do not prescribe the number of Government nominees which can be appointed and hence merely because there is likelihood that the total strength of the Managing Committee may undergo change and in a given fact situation tilt the balance one way or the other would not be a relevant factor for determining whether powers have rightly been exercised under provisions of Section 80(2) of the Act. Learned Assistant Government Pleader therefore submitted that no interference was warranted and the petition was liable to be rejected.
Section 80(2) of the Act came up for consideration before this Court in the case of Baroda District Co-operative Milk Producers Union Ltd. and Ors., v. State of Gujarat and Ors., in Special Civil Application No. 7388 of 2007 and vide order dated 04/07/2007 it is stated as under in paragraph No. 7 of the said order.
On a plain reading it becomes apparent that the said provision can be invoked by the State Government in a case where the State Government has not subscribed to the share capital of a society but the State Government is of the opinion that having regard to the public interest involved in the operation of a Society it is necessary or expedient so to do, the State Government may nominate its representatives on the Committee of such Society. The provision, therefore, requires that the State Government is to form an opinion: such opinion is to be on two fold counts, the first being involvement of public interest in the operation of the Society, and second one being the necessity or expediency vis-a-vis operation of the Society. Both the conditions, which are pre-requisite conditions, for the formation of the opinion by the State Government are not independent conditions as such, but are factors which have to be read in conjunction with each other. In other words, both the conditions have to exist together and it is the cumulative effect of the two conditions which would go to make the opinion of the State Government.
When the present order is examined in light of the aforesaid position in law it becomes clear that both the prerequisite conditions stand fulfilled. Respondent authority has categorically recorded that the activities of the petitioner - society are of such a nature that public interest is involved and it is necessary and expedient to appoint three Government nominees.
The contention on behalf of petitioner that the operation of the society is smooth and trouble free would not be a relevant factor. The petitioner is not in a position to show that in the activities carried out by the petitioner - society no public interest is involved. Then the only issue that survives is whether respondent-authority has formed an opinion as to the necessity and expediency for appointing Government nominees. Any such necessity and expediency would depend on facts of each case and there cannot be any criteria for determining same. Once it is shown that while arriving at the decision the authority has considered the relevant provisions of law and the relevant factors it is not possible to state that the impugned order suffers from any legal infirmity.
Similarly the contention that appointment of three nominees by the Government would tilt the balance and may affect the voting pattern of the Managing Committee is also an issue which is primarily based on an apprehension only on the basis of political alignment of various members with different political parties. The Court cannot presume that merely because the nominees have been appointed by the State Government on every issue viz., every subject matter brought before the Managing Committee the nominee Directors would vote only in a particular manner. In absence of any evidence or pointer in this direction the exercise of powers u/s 80(2) of the Act cannot be either termed to be mala-fide or tainted with any other consideration. Furthermore, even if the voting pattern changes that by itself is not sufficient.
Insofar as the contention based on membership and experience of two of the Government nominees suffice it to state that the same would not directly have any bearing as to exercise of powers u/s 80(2) of the Act. The only consideration which can go into decision making process is as to whether the person who is to be considered for appointment as a nominee would be able to take care of public interest ensuring that the operation of the society does not result in detriment to such public interest. For this purpose it would suffice if the person concerned is primarily associated with the kind of activities carried out by the society in question. It may be that in a given case a person may also have experience in this direction. But it is not possible to state that in each and every case, every Government nominee must necessarily possess experience in the line of operation of the society in question to which the Government nominee is appointed.
In the circumstances, even if two of the three nominees may not have been members of the Managing Committee of their respective societies that by itself would not dis-entitle either the said persons from being appointed as nominees by the State Government, nor would it be a relevant factor for treating the impugned order as bad in law.
In the circumstances on none of the grounds pleaded or urged at the time of hearing does the petition merit acceptance and the same is accordingly rejected. Notice discharged with no order as to costs.