Gujarat High Court
Shyam Seva Sahakari Mandali Limited vs State Of Gujarat & 5 on 17 March, 2016
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/3828/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3828 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 3839 of 2016
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SHYAM SEVA SAHAKARI MANDALI LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MR RONAK RAVAL, ASSTT GOVT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 5
VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 17/03/2016
COMMON ORAL ORDER
1. In all these petitions filed under Article 226 of the Constitution of India, the orders of the Authorized Officer of the same date are challenged.
2. It appears that earlier by order dated 27.1.2016, the Authorized Officer ordered deletion of the names of the members of the Managing Committee of the petitioner Societies from the voter list, which is now finalized for election of eight agriculturists as members of Bhatiya Agricultural produce Market Committee under Section 11(1)(i) of the Gujarat Agricultural Produce Markets Act, 1963 ('the Act'). The said order was challenged by the petitioners by filing Special Civil Application No.1952 of 2016 and this Court set side the order vide order dated 29.2.2016 and remanded the matter to the Authorized Officer to reconsider the issue about inclusion of the names in the voter list in light of the observations made in the said Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER order.
3. The Authorized Officer then reconsidered the matter and passed impugned order dated 3.3.2016 for each of the petitioner society not to include the petitioner society in the voter list for Agricultural Constituency.
4. Learned advocate Mr. Dipen Desai for the petitioners submitted that the Authorized Officer has traveled beyond his jurisdiction inasmuch as he has examined the genuineness of the loan transaction and just on the basis of suspicion about the credit advanced by the petitioner societies to their members, the impugned orders for non-inclusion of the petitioner Societies in the voter list are made. Mr. Desai submitted that there is no bar in taking deposit in cash from any member of the society and to advance credit from such amount of deposit to other members. Mr. Desai submitted that for taking deposit and advancing credit to its members, the society passed resolution and on the basis of the application as also declaration made by the members, the loan was disbursed and since such process was permissible, it cannot be said that there was no genuine credit disbursed by the petitioner societies nor could it be said that there was no genuine transaction of loan by the petitioner societies.
5. Learned advocate Mr. Viral Shah appearing for the objector in each matter submitted that there was in fact no credit advanced in the eye of law. Mr. Shah submitted that as observed by the Authorized Officer, no resolution or minutes of the meeting for accepting the deposit or for disbursement of the loan was produced before the Authorized Officer and just cash transaction of taking deposit and giving the loan to the members on the same day or on the next day by the societies was shown and such was purely for the Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER purpose of election. The petitioner societies have not advanced agricultural credit as observed by the Authorized Officer in the impugned orders. Mr. Shah submitted that since the Authorized Officer has examined the matter and found that there was no credit advanced and show was made of taking deposit and giving advance from such deposit to different members on the same day to take part in the election and therefore, this Court may not interfere in the impugned order in exercise of the powers under Article 226 of the Constitution of India when the voter list is finalized and the election process has commenced.
6. Learned Assistant Government Pleader Mr. Raval submitted that the Authorized Officer in his order has stated that the petitioner societies had not produced copies of the resolutions or minute books and therefore, it is not open to the petitioners to rely on the same before this Court. Mr. Raval submitted that each petitioner society has its own bye-law to regulate the business of dispensing agricultural credit, however, as found by the Authorized Officer, the petitioner societies have not done any credit business. Mr. Raval submitted that the petitioner society has neither kept any passbook for the purpose of acceptance of the deposit or for withdrawal of the deposit nor even has done any other transaction and only single deposit for giving credit to some members on the same day is relied. The Authorized officer therefore, committed no error in recording that the so-called deposit was just a show to take part in the election. Mr. Raval submitted that the Authorized Officer has committed no error in passing impugned order and therefore, this Court may not interfere in the impugned order in exercise of the powers under Article 226 of the Constitution of India.
7. The Court having heard learned advocates for the parties finds that the petitioner societies are stated to be registered between the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER month of August 2015 to month of October 2015. It is not in dispute that the credit stated to be advanced by the petitioner society to its few members was by accepting the cash deposit from single member and disbursement thereof was also in cash either on the same day or on the next day. As per the bye-laws, the petitioner societies are required to maintain passbook for receipt of the deposit and for withdrawal of the deposit. It is further provided by the bye-laws that the members of the society shall also be given separate passbook. It needs to be mentioned that though the Primary Agricultural Credit Co-operative Society is not a bank, however it is to purely deal in dispensation of the agricultural credit to its members for agriculture purpose or for the purposes connected with agricultural activities. Therefore, it cannot just lend money like ordinary transaction. The Primary Agricultural Credit Co-operative Society has to regulate its business of credit in accordance with the bye-laws. It is required to note that the Primary Agricultural Credit Co-operative Societies are to function in accordance with the guidelines of the Reserve Bank of India. Such would go to show that unless credit in real sense is found to have been advanced, the society cannot be included in the voter list for Agricultural Constituency.
8. Learned advocate Mr. Desai, however submitted that it is not open to the Authorized officer to test the veracity of the transaction of the credit. As per his submission, once it is found that there is receipt of deposit by the society and from such deposit, the disbursement of the amounts as credit to the members is found, the Authorized Officer has to include the society in the voter list and cannot keep the society out of the voter list just on the suspicion that there was no advancement of credit by the society.
9. In the case of Vibhapar Seva Sahakari Mandali Ltd. Vs. State of Gujarat, this Court in its judgment, relied on by Mr. Desai, dated Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER 15.7.2010, delivered in Special Civil Application Nos.6587 of 2010 to 6596 of 2010, has observed as follows:-
Rule 8(1-A) of the Rules only talks of revising the list of voters upon such objections relatable to inclusion of any new names entered in the list. Therefore, while publishing the final list under sub-rule (2) of Rule 8 of the Rules, the Authorised Officer had limited powers which would not permit the Authorised Officer to then delete the names which were already included. This has to be appreciated in context of the fact the under rule 5 of the Rules, for the purpose of section 11(1)(i) of the Act, a list of members of the Managing Committee of the Co-operative Society dispensing agricultural credit in the market area was required to be prepared and sent by such co-operative society to the Authorised Officer. Under rule 7 of the Rules, more particularly sub-rule (2) thereof, the Authorised Officer has to, within 7 days from the date fixed under sub-rule (1) of rule 7, prepare the list of voters as stipulated by rule 5 on the basis of the information received from each co-operative society. Sub- rule (2) of rule 7 of the Rules states in the latter part after making such inquiry as the Authorised Officer may deem fit, if necessary. However, such inquiry cannot be treated to be extending beyond ascertainment of the details submitted by the co-operative society and testing the veracity thereof, namely whether a particular person whose name has been included by the co-operative society in the list is a member of the Managing Committee or not, or whether he resides at the place stated in the list by the co-operative society or not. Once the stage of that inquiry is over, rule 8(1) of the Rules indicates that the Authorised Officer is duty bound to publish the list of voters prepared under rule 5 read with rule 7 and it is at that stage that the objections as to inclusion or exclusion are to be raised. Therefore, the scope of inquiry which an Authorised Officer can undertake is limited statutorily by the rules and it is not possible to expand such scope. The contention on behalf of respondent authorities that respondent No.5 - Co-operative Bank cannot send a nominee to the Managing Committee of the agricultural credit society deserves to be stated only to be rejected. None of the rules relating to preparation of the list of voters permits the Authorised Officer to travel beyond the list of members of the Managing Committee of the agricultural credit society. Hence, the entire basis adopted by the respondent authority is contrary and in violation of the statutory provisions relatable to conduct of elections and preparation of list of voters prior thereto.
10. In the case of Shrutbandhu Himmatlal Popat Vs. State of Gujarat Through Secretary, this Court in its judgment dated 13.12.2011, delivered in Special Civil Application No.16246 of 2011, has held and observed in para 7.2 as under:-Page 5 of 8
HC-NIC Page 5 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER 7.2 We have followed the decision in Vibhapar Seva Sahakari Mandali Ltd. v. State of Gujarat in Special Civil Applications Nos. 6587 to 6596 of 2010 in our judgment in Vibhaniya Seva Sahakari Mandali (supra) on the scope and ambit of powers of the Authorized Officer under Rule 8 of the Rules. Going through the contents of impugned order fortified by the contention raised in the above quoted affidavit-in-reply of respondent no.4, it is clearly noticed that the Authorized Officer has gone into the factual merits of the eligibility of the petitioners as license holders. Their names in the capacity of holders of general licenses were duly sent by the Market Committee for the purpose of inclusion in the list of voters, and Authorized Officer could not have deleted those names by delving into factual inquiry as to the trading activity and by questioning the legality of their holding of licenses with reference to their volume of trading, non-availability of trading details etc. Deletion of names of the petitioners from the list of voters upon such grounds was clearly impermissible in law and the Authorized Officer exceeded his statutory powers under Rule 8 of the Rules. The contention that the facts in the present petition are than those involved in Special Civil Application No.16238 of 2011 and cognate matters in Vibhaniya Sahakari Mandali (supra) is not acceptable inasmuch as, the Authorized Officer has exceeded the ambit of his powers under Rule 8 of the Rules in both the cases in similar way by going into the merits on the eligibility of the petitioners to be in the list of voters.
11. In the case of Vibhaniya Seva Sahakari Mandali Ltd. and Ors.
Vs. State of Gujarat and Ors. reported in 2012(1) GLH 575, this Court, has held and observed in para 7.2 and 7.3 as under:-
7.2 The decision of Division Bench of this Court in Vibhapar Seva Sahakari Mandali Ltd. (supra) has settled the issue of the extent of powers of the authorized officer functioning and acting under Rule 8 of the Rules, the Special Leave Petition preferred therefrom is stated to have been dismissed by the Apex Court, and we are in respectful agreement with the same. On being urged by learned counsel for the respondents, we have again considered the scheme of rules and the nature of powers under Rule 8 and we see no reason to take a different view. The authorized officer is not supposed to delve into the merits of the nominations and cannot base his decision under Rule 8 on such considerations as are not germane to preparation of proper list of voters and expand the scope of inquiry as is done in the impugned order. When Rule 8 is harmoniously construed with other related Rules, namely, Rules 5 and 7, the only conclusion possible about the scope of powers under Rule 8 is one already arrived at by this Court in Vibhapar Seva Sahakari Mandali Ltd. (supra).Page 6 of 8
HC-NIC Page 6 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER 7.3 Learned counsel appearing for the respective parties endeavoured to embellish their submissions by canvassing the factual merits of the order passed by the authorized officer. Here we have confined ourselves to the aspect of nature, scope and ambit of powers exercisable under Rule 8, the contours of which have been already decided by the Division Bench in Vibhapar Seva Sahakari Mandali Ltd. (supra). We, having examined the impugned order on that limited ground, find that the authorized officer has clearly exceeded the ambit of statutory powers available to him under Rule 8, which makes the impugned order void on account of lack of jurisdiction.
12. The Court, however, finds in the present facts situation that the Authorized Officer did not just test the veracity or genuineness of the credit stated to have been advanced by the petitioner society. The Authorized Officer has found that it was just a show made of giving credit to take part in election. The question is whether the petitioner society could be said to have at all advanced agricultural credit. It is not in dispute that receipt of cash deposit and disbursement of the amounts therefrom was either on the same day or on the next day. The opening balance was with 0 (nil) balance and closed with 0 (nil) balance. In one of the cases, i.e. of Special Civil Application No.3830 of 2016, one of the members who gave deposit in cash of Rs.50,000/-, was shown to have taken loan of Rs.45,000/-. The transactions of loan by the petitioner societies were almost at the end of November 2015. Except such single transaction of taking deposit by each of the society to disburse loan, no other transaction ever took place. Neither any passbook was given nor maintained. Mr. Desai could not dispute the above facts though he tried to show some ledger from the societies wherein the resolutions were stated to have been recorded for taking cash deposit and for disbursement of the loan in cash. The Authorized officer has observed that no resolution or minutes book was ever produced before him. The Court, therefore, finds that such would be in arena of inquiring into the disputed questions of fact. When the Authorized officer has examined the issue raised before him and has given sufficient reasons for not including the names of Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Mar 19 02:29:56 IST 2016 C/SCA/3828/2016 ORDER the petitioner societies in the voter list, the Court finds that such order is not to be interfered with in exercise of the powers under Article 226 of the Constitution of India.
13. In view of above, the petitions are rejected. Notice is discharged in each petition.
Sd/-
(C.L. SONI, J.) omkar Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Mar 19 02:29:56 IST 2016