Gujarat High Court
Kimana (2478) Proposed Mahila vs Khimana Milk Producers' Cooperative ... on 7 March, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/516/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 516 of 2017
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KIMANA (2478) PROPOSED MAHILA....Petitioner(s) Versus KHIMANA MILK PRODUCERS' COOPERATIVE SOCIETY LIMITED &
1....Respondent(s) ================================================================ Appearance:
MR ASHISH H SHAH, ADVOCATE for the Petitioner(s) No. 1 MR PS CHAMPANERI, CAVEATOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date:07/03/2017 CAV ORDER The petitioner-Mahila Milk Producers' Co-operative Society Limited, by filing the present petition, has prayed to set aside judgment and order dated 30.12.2016 of the Gujarat State Co-operative Tribunal in Revision Application No. 72 of 2016. Thereby, the Tribunal set aside order dated 06.04.2016 below Exh.6 passed by Joint Registrar & Member, Board of Nominees, Mehsana in Lavad Suit No.3 of 2016 and directed to grant injunction that nobody should accept the milk from the petitioner society or its agents or assignees.
2. It was stated in the petition that 102 female milk procedures submitted application dated 10.12.2015 to the second respondent-Banaskantha District Co-operative Milk Procedures' Union Limited, requesting to accept the milk from the female producers. It was stated that the State Government had issued a circular to encourage the women milk producers. It was further claimed that the officer Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Aug 13 17:03:49 IST 2017 C/SCA/516/2017 CAV ORDER of the second respondent union submitted report dated 19.12.2015 which was favouring to the petitioner society in which it was mentioned that the Federation was likely to be benefited by additional collection of milk to the extent of 500 liters per day. An office order came to be issued by the second respondent Federation on 22.12.2015 permitting collection of the milk from the petitioner society on route No.64. It was further stated by the petitioner that Khimana Village Panchayat also issued a certificate regarding distance between the petitioner society and the second respondent society which was shown to be 2.5 km.; and the pollution of the village was more than 16000.
3. It appears that the first respondent-Khimana Milk Procedures' Co-operative Society Limited was aggrieved by aforementioned office order dated 22.12.2015 which was issued by the second respondent Federation for accepting the milk from the petitioner society. Therefore, the first respondent approached the Board of Nominees, Mehsana by filing Lavad Suit No. 3 of 2016 along with injunction application. The Board of Nominees on 06.04.2016 partly allowed injunction application at Exh.6 and directed the petitioner society-defendant No.2 in the suit not to collect the milk from the members of the original plaintiff-the first respondent herein.
3.1 It further appears that against the said order dated 06.04.2016 below Exh.6 in the Lavad Suit, the first respondent-original plaintiff was aggrieved, therefore, filed Special Civil Application No. 7626 of 2016. The said petition was disposed of by this Court as per order dated 08.12.2016 by issuing following directions, "4. In view of the above, the petition is disposed of with the following observations and directions, Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Aug 13 17:03:49 IST 2017 C/SCA/516/2017 CAV ORDER
(i) The petitioner shall approach the Tribunal within a period of ten days from today. If Revision Application is filed by the petitioner within a period of ten days, the same shall be accepted without being influenced by the question of delay, since the present petition was filed and remained pending before this court.
(ii) The relief which was granted earlier in this petition and operated during the pendency of the petition, shall continue to operate for a period of three weeks, as agreed by the learned advocates for the parties.
5. While the aforesaid directions are passed as per the consensus, it is observed that subsequent extension of relief or otherwise shall be decided by the Tribunal after hearing the parties in accordance with law and on merits. Continuation of interim relief during the pendency of this petition, is not a reflection on merits of the matter.
5.1 It is further clarified that this court has not gone into the merits of the case of either side.
6. The petition stands disposed of in the aforesaid terms. Notice is discharged."
3.2 It may be re-stated that the Board of Nominees had passed the said order dated 06.04.2016 whereby the injunction was granted and the second defendant came to be injuncted from accepting the milk from the members of the plaintiff society. It was against said order that the aforesaid Special Civil Application No. 7626 of 2016 was filed and as the Tribunal was available, the petitioner was relegated to the Tribunal with the directions aforesaid. It is the order thereupon passed by the Tribunal in Revision Application No.72 of 2016, that is called in question herein. The Tribunal granted further injunction beyond what was granted by the Board of Nominees on 06.04.2016.
4. Heard learned advocate Mr. Ashish Shah for the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Aug 13 17:03:49 IST 2017 C/SCA/516/2017 CAV ORDER petitioner and learned advocate Mr. P. S. Champaneri for the first respondent.
5. It has to be observed and mentioned with quite relevance that another case, beset with similar facts and identical situation was before the Board of Nominees and it had traveled upto this Court in form of Special Civil Application No. 9480 of 2016. It had arisen from similar order of even date, that is, dated 06.04.2016 passed below Exh.6 by the Board of Nominees, Mehsana in Lavad Suit No.2 of 2016. The said Lavad Suit contained pleadings and case on identical lines and the order below Exh.6 was an injunction granted, not only in similar way but verbatim same. The original plaintiff of the said suit had filed the said petition being Special Civil Application No. 9480 of 2016 against order dated 06.04.2016 passed in the said Lavad Suit No. 2 of 2016. This Court, by order dated 29.09.2016, dismissed the petition.
5.1 Following extract from the said order dated 29.09.2016 would offer an idea about the similarity of facts, contentions and the pleadings involved in the said case, "3.2 The fourth respondent-plaintiff in the Lavad Suit contended in support of the prayer for injunction that it functions in a small village and there are 330 members belonging to all sections of the society. However, it is asked to supply the milk at a village where there are only 330 members. It was contended that when the second defendant-Mandali was granted permission to collect the milk, it made a representation to the first defendant-District Co-operative Milk Producers Union. It was alleged that the defendants had been acting in collusion and because of the second defendant-Mandali and permission granted to it to function, the interest of the plaintiff-Mandali would be adversely affected and jeopardized. On such pleadings, it was prayed to restrain the first defendant-
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C/SCA/516/2017 CAV ORDER
District Co-operative Milk Producers Union to accept the milk from the second defendant-Mandali. Reply was filed to the injunction application raising various contentions.
3.3 The Joint Registrar & Member, Board of Nominees by order dated 06.04.2016 partially allowed the injunction application of the petitioner-plaintiff. The second defendant came to be injuncted from accepting the milk from the members of the plaintiff society. The Board of Nominees granted injunction to the extent directing the second defendant not to accept the milk from the members of the plaintiff society-the petitioner herein till the final disposal of the suit. In granting injunction to the said extent, the Board of Nominees took into account the relevant bye-laws and considered the submission that because of the milk center of the second defendant, the plaintiff would economically suffer. It was observed in the body of the order that with a view to see that the issue is settled, the partially injunction was granted."
4. Respondent No.4 filed affidavit-in-reply and contended that alternative remedy was available to approach the Co-operative Tribunal. 4.1 Learned advocate for the petitioner relied on Section 8 of the Act. He further relied on Section 4 and stated that there was an absence of registration. He submitted that the aspect of impact on the interest of the other side was required to be considered and the injunction as prayed for ought to have been fully granted by the Board of Nominees. He raised various contentions pleaded in the petition as well as in his rejoinder affidavit."
5.2 The Court ultimately dismissed the petition as under, "5. On perusal of the impugned order and on overall consideration of facts of the case, no ground could be demonstrated or found to be existing which would justify interference in the impugned order passed below Exh.6 application by the Board of Nominees granting injunction to the extent above. The order impugned is an interim order and the main Lavad Suit is pending. Interim order is not the final determination of rights of the parties, for whom all contentions are open. For this very reason, various submissions on merits raised by learned advocate for the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Aug 13 17:03:49 IST 2017 C/SCA/516/2017 CAV ORDER petitioner did not call for in-depth consideration when they are large open to be raised and established on evidence in the Lavad Suit which is pending. The economic interests of the plaintiff society have been taken care of in the injunction order to the extent it is granted. During the pendency of the Lavad Suit, the partial interim order balances the rights and equities for all the parties. The impugned order could be said to be just and proper.
6. For the foregoing discussion, no case is made out, on the basis of which, the Writ Court could interfere in the impugned order of the Board of Nominees."
6. Now, adverting to the challenge to the impugned order of the Tribunal which modified the order of the Board of Nominees to grant further relief, it is undisputed that the order which is passed by the Board of Nominees in the instant case was identically worded and injuncted the defendant in the similar and same way in the other Lavad Suit No.2 of 2016. The merits of the similar order which was in the context of identical set of pleadings and rival contentions was examined by this Court as per order dated 29.09.2016 in Special Civil Application No.9480 of 2016 referred to above. It was clearly held therein that the order took care of economic interest of the plaintiff society in view of extent of injunction granted and other submissions on merits were not accepted; the said order balanced the interests of both the sides till the final decision in the Lavad Suit.
6.1 Learned advocate for the petitioner was therefore totally justified in submitting that when the Tribunal considered order dated 06.04.2016 of the Board of Nominees in the instant Lavad Case in the Revision Application, there were two identical orders passed in two Lavad Suits, earlier being in Lavad Suit No.3 of 2016 in the same set of facts, one of which had culminated into order dated 29.09.2016 of this Court in Special Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Aug 13 17:03:49 IST 2017 C/SCA/516/2017 CAV ORDER Civil Application No. 9480 of 2016. As the Tribunal considered the issue of similarly placed case and passed identically poised order, the order in Special Civil Application No.9480 of 2016 was a binding precedent for the Tribunal in the later instant case. There was no overriding difference in the facts, pleadings, issues and aspects of the present case juxtaposing them with another Lavad Suit No.2 of 2016 in which order below Exh.6 had ended with the order in Special Civil Application No. 9480 of 2016 of this Court. The merits of this ran parallel and at this stage, interim orders were therefore required in law to be guided by similar merit consideration.
7. The order below Exh.6 in both Lavad Suits, apart that they were of same date, as stated above, had a background of similar facts and identical issue. In the said view of the matter, the Tribunal in passing the impugned order clearly misdirected itself. The Tribunal was bound by what was held by this Court as reflected in order dated 29.09.2016 in Special Civil Application No. 9480 of 2016. The impugned order of the Tribunal which travels beyond, tantamount to breach of and stands in disregard of binding order of this Court. When both the cases were similar and identical, in propriety and in law both, the Tribunal was not permitted to take a different view in respect of another interim injunction order and it ought to have maintained the injunction in the similar way only and could not have granted the injunction in further terms so as to stand in conflict with the binding order of this Court.
8. For the aforesaid reasons, the impugned judgment and order cannot be allowed to sustain. The petition deserves to be allowed by setting aside the impugned judgment and Page 7 of 8 HC-NIC Page 7 of 8 Created On Sun Aug 13 17:03:49 IST 2017 C/SCA/516/2017 CAV ORDER order.
9. Accordingly, the impugned judgment and order dated 30.12.2016 of the Gujarat State Co-operative Tribunal in Revision Application No. 72 of 2016 is set aside and the petition is allowed. The original order dated 06.04.2016 passed by Board of Nominees shall continue to operate during the pendency of the Lavad Suit.
9.1 In the facts and circumstances of the case, it is observed and directed that the Board of Nominees, Mehsana shall expeditiously proceed with Lavad Suit No.3 of 2016 and complete the trial thereof within a period of one year from the date of receipt of this order.
10. The petition stands allowed as above.
(N.V.ANJARIA, J.) Further order At this stage, learned advocate Mr. Champaneri requested for stay of the present order. The request cannot be acceded to in view of the facts and circumstances and in view of what is held hereinabove. Hence, rejected.
(N.V.ANJARIA, J.) chandrashekhar Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Aug 13 17:03:49 IST 2017