Gujarat High Court
Gujarat State Co Operative Marketing ... vs State Of Gujarat & on 1 February, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/2836/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2836 of 2015
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GUJARAT STATE CO OPERATIVE MARKETING FEDERATION
LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 01/02/2017
ORAL ORDER
Heard learned advocate Mr. Dipen Desai for the petitioner and learned Assistant Government Pleader Mr. Rohan Yagnik for the respondent state authorities.
2. Impugned in this petition is a notice issued by the Registrar, Co-operative Societies in exercise of powers under Section 71 of the Gujarat Co-operative Societies Act, 1961.
3. Section 71 of the Act deals with investments of funds by the society which provides that the society may invest or deposit its fund in the Banks mentioned in sub section (1) in sub clauses (a) to (d). It further contemplates in sub clause ff(ii) that if the investment is done in the building or land of the society and where the money in such a fund is insufficient for the purpose or where the society has not established such fund, the investment could be permitted with the previous sanction Page 1 of 3 HC-NIC Page 1 of 3 Created On Fri Feb 03 04:56:25 IST 2017 C/SCA/2836/2015 ORDER of the Registrar. It is on the aforesaid aspect that while purchasing certain land properties by registered sale deeds, the society acted without permission of the Registrar. The Registrar therefore called upon the society to explain as to why the penal action under Section 147(1) of the Act should not be initiated.
4. Assailing the impugned notice, learned advocate for the petitioner submitted that the Registrar who issued notice is a member of the committee of the Board of Management of the society. The membership of the Registrar is by virtue of bye-laws of the society. Bye- law 39(A) provides that the Registrar of the Co-operative society or his representative shall be the member of the committee. In this case, the Registrar who himself is a member has issued the impugned notice. It was submitted that the Registrar who is also a member of the committee acted as a Judge for his own cause. This aspect prima facie strikes the root of the natural justice.
5. Reliance was placed on the decision of Division Bench of this Court in Rajkot District Co-operative Bank Ltd. vs. R. B. Solanki being Special Civil Application No.865 of 1972 decided on 15.11.1972 as well as decision of this Court in Gujarat State Co-operative Marketing Federation Ltd. vs. V. H. Parekh and anr. [1995(1)GLH 857].
6. In the decision in Rajkot District Co-operative Bank Ltd.(supra), it was noticed by the Court that the same person who attended the meetings of the Board, directed to initiate inquiry under Section 86 of the Act. It was Page 2 of 3 HC-NIC Page 2 of 3 Created On Fri Feb 03 04:56:25 IST 2017 C/SCA/2836/2015 ORDER held that the member of the society as nominee of the state government cannot order to initiate inquiry under Section 86 who himself was present in all the meetings and approved all the acts of commissions or omissions.
7. In the aforesaid view, a prima facie case is made out. The petition requires final consideration. Rule returnable on 13th June, 2017. Ad-interim relief granted by this Court by order dated 18.02.2015 shall continue as interim relief during the pendency of the petition.
(N.V.ANJARIA, J.) chandrashekhar Page 3 of 3 HC-NIC Page 3 of 3 Created On Fri Feb 03 04:56:25 IST 2017