Gujarat High Court
Varsada Vividh Karyakari Sahakari ... vs State Of Gujarat Thro Secretary on 13 February, 2013
Author: Jayant Patel
Bench: Jayant Patel
VARSADA VIVIDH KARYAKARI SAHAKARI MANDALI LIMITED THROUGH....Petitioner(s)V/SSTATE OF GUJARAT THRO SECRETARY C/SCA/1378/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1378 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== 1 - VARSADA VIVIDH KARYAKARI SAHAKARI MANDALI LIMITED THROUGH Petitioner(s) VERSUS 1 - STATE OF GUJARAT THRO SECRETARY 2 - DIRECTOR 3 - ELECTION OFFICER AND DISTRICT REGISTRAR 4 - AUTHORIED OFFICER AND THE COOPERTIVE OFFICER (LAGAT) Respondent(s) ============================================================== Appearance: MR VC VAGHELA, ADVOCATE for the Petitioner(s) No. 1 MR RAKESH PATEL, AGP for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 13/02/2013 ORAL JUDGMENT
(PER :
HONOURABLE MR.JUSTICE JAYANT PATEL) Rule.
Mr. Patel, learned AGP waives notice of Rule for respondents no.1 to 4 and Mr. Dipan Desai waives for the newly added party as per the order of this Court in Civil Application No.1755/13.
The present petition has been preferred by the petitioner for challenging the legality and validity of the order passed by the authorised officer to delete the name of the petitioner Society from the provisional voters list and it is prayed that the respondents be directed to include the name of the managing committee of the petitioner society in the final voters list which is to be published on 14.02.2013.
On the aspect of facts, there is no dispute of the election programme declared, the exclusion of the name of the petitioner society in the provisional voters list and the decision of the authorised officer to exclude the name of the petitioner society/members of the managing committee of the petitioner society from the voters list. Therefore, no much discussion is required on the said aspects.
The only contention to be considered in the present petition is whether the society who has undertaken its activity and the business during the period of earlier three years could be said as dispensing agricultural credit if it has not given loan to any person but it has undertaken recovery proceedings and has recovered the amount of loan granted earlier.
It is an admitted position that the authorised officer has also found that the recovery is made of the earlier loans but the agricultural loans have not been granted by the petitioner society. Therefore, on the said ground, the authorisied officer has found by the impugned order that the petitioner society could not be said as dispensing agricultural credit and therefore, the name is excluded from the voters list.
In our view, the same is not correct reading to the requirement of the law. Section 11(1)(i) of the Gujarat Agriculture Produce Markets Act, 1963 (hereinafter referred to as the Act ), which is relevant for the purpose of this Court reads as under:
"11.
Constitution of market committee,- (1) Every market committee shall consist of the following members, namely :-
(i) eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative marketing societies) and milk produce cooperative societies dispensing agricultural credit in the market area;
The aforesaid shows that the society should be such which is dispensing agricultural credit in the market area. It is not in dispute that the society is not a credit society nor it is in dispute that the members of the managing committee of the petitioner society are not duly elected members of the managing committee. The only aspect canvassed was that since it has not given loans to any of the persons during the respective period, it could not be termed as dispensing agricultural credit in the market area even if it has made recovery during the respective period of the loans granted earlier.
It deserves to be recorded that when any society is described as dispensing agricultural credit in the market area would mean that it should be dispensing agricultural credit. Dispensation of the agricultural credit or functioning as an agricultural credit society does not mean that there should be the transaction of loan only otherwise it will cease to be dispensing agricultural credit. Dispensing credit in our view would include the action of recovering the loans already granted. Credit would include recovery then only the banking business of such society of rendering credit could be said as complete. It is not a matter where credits are to be granted or loans are to be granted but not to be recovered in future. Any person engaged in the business of banking or granting of loan or rendering credit would essentially be required to undertake two tasks; one would be granting of loan and another would be recovery of the loan with the accrued interest. Therefore, both are the basic limbs which could be considered for the word dispensing agricultural credit . If none of the limbs are existent, one could say that the society is defunct, but in a case where one of the limbs is available and the activities are rendered for such purpose, unless found to be bogus or by way of eye wash it is not possible for us to accept the contention that such aspect could not be termed as dispensing agricultural credit in view of the wider meaning to be considered for giving effect to the word dispensing agricultural credit . It is hardly required to be stated that essential purpose of the legislature is to keep away the defunct society in the participation of the election or a mushroom created society, not functioning at all. The petitioner society, as stated by the learned counsel for the petitioner was registered as back as on 1954. Therefore, the creation of the society or the formation of the society is not a recent one just to play role in the ensuing election in the nearby period. Under the circumstances, when the society is functioning for a long period and it has advanced loan in past and has continued its activity for recovery of the loan and actually realised the loan to a substantial extent, which is also found by the authorised officer, it cannot be said that the authorised officer was justified in excluding the name of the office bearers of the petitioner society.
In view of the aforesaid discussion, the order passed by the authorised officer which is impugned in the present petition cannot be sustained and the members of the managing committee of the petitioner society are required to be continued in the voters list which is to be finalised tomorrow, i.e., on 14.02.2013.
Before parting with, we may add that since the election is not disturbed by this Court, it would be well within its power to interfere with the election process for preparation of the voters list and finalisation thereof, and similar powers were exercised by this Court in Juni Jithardi Vividh Karyakari Sahakari Mandali Ltd. vs. State of Gujarat decided on 14.07.2009. It is true that in the said decision, it had come on record that the society had rendered credit for fertilizer to its farmers and therefore, Mr. Desai, learned counsel appearing for the private parties had made an attempt to distinguish the said judgment. In our view, if the interference is to be made without disturbing the election process, such is permissible under Article 226 of the Constitution and further, if the word dispensing agricultural credit would include recovery of the loans already granted, name could not be excluded by the authorised officer.
In view of the aforesaid observations and discussions, the impugned decision of the authorised officer is quashed and set aside with the direction that the names of the members of the managing committee of the petitioner society who were already in the provisional voters list shall continue to remain in the final list which is to be published tomorrow.
Petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
Mr. Patel, learned AGP shall communicate the order to the authorised officer and it is stated that he is already present in the Court and he is communicated.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) bjoy Page 7 of 7