Gujarat High Court
Vipulbhai M Chaudhary vs State Of Gujarat & Ors on 6 January, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/16515/2013 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16515 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16594 of 2013
With
CIVIL APPLICATION NO. 13220 of 2013
In
SPECIAL CIVIL APPLICATION NO. 16515 of 2013
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Special Civil Application No.16515 of 2013 VIPULBHAI M CHAUDHARY ....Petitioner Versus STATE OF GUJARAT & ORS. ....Respondents Appearance:
MR BB NAIK, SENIOR ADVOCATE WITH PS CHAMPANERI, ADVOCATE for the Petitioner MR PK JANI, GOVERNMENT PLEADER for the Respondents No.1-2 - State MR SN SHELAT, SENIOR ADVOCATE FOR NANAVATI ASSOCIATES for the Respondent No.3 MR BS PATEL, ADVOCATE for the Respondents No.4, 6 & 7 MS SHIVANI RAJPUROHIT for the Respondent No.5 ================================================================ Special Civil Application No.16594 of 2013 MEHSANA DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD. ....Petitioner Versus STATE OF GUJARAT & ORS. ....Respondents Appearance:Page 1 of 24
C/SCA/16515/2013 CAV ORDER MR BB NAIK, SENIOR ADVOCATE WITH PS CHAMPANERI, ADVOCATE for the Petitioner MR PK JANI, GOVERNMENT PLEADER for the Respondent No.1 - State MR SN SHELAT, SENIOR ADVOCATE FOR NANAVATI ASSOCIATES for the Respondent No.2 MR BS PATEL, ADVOCATE for the Respondents No. 4, 5 & 6 Respondent No.3 SERVED ================================================================ Civil Application No.13220 of 2013 GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LIMITED ....Applicant Versus VIPULBHAI M. CHAUDHARY & ORS. ....Opponents Appearance:
MR SN SHELAT, SENIOR ADVOCATE FOR NANAVATI ASSOCIATES for the Applicant MR BB NAIK, SENIOR ADVOCATE WITH PS CHAMPANERI, ADVOCATE for the Opponent No.1 MR PK JANI, GOVERNMENT PLEADER for the Opponents No.2 & 3 - State MR BS PATEL, ADVOCATE for the Opponents No.4, 6 & 7 MS SHIVANI RAJPUROHIT for the Opponent No.5 ================================================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 06/01/2014 CAV ORDER Page 2 of 24 C/SCA/16515/2013 CAV ORDER
1. The petitioner of Special Civil Application No.16515 of 2013, named Mr.Vipulbhai Chaudhary, who is Chairperson of Respondent No.3 - Gujarat Co-operative Milk Marketing Federation Limited, Anand, has challenged the action of the Managing Director of the respondent Federation of calling the meeting of the Board of Directors, to consider the No Confidence Motion moved by the majority of the Board of Directors, against the petitioner. During the pendency of this petition, pursuant to the order of the Division Bench of this Court passed in Letters Patent Appeal No.1413 of 2013 and cognate matters dated 04.12.2013, said No Confidence Motion is considered by the Board of Directors in its meeting dated 05.12.2013 and the same is unanimously approved by all the 14 out of 18 Directors, who were present and voted in the meeting. The said Resolution dated 05.12.2013 is on record.
The said Resolution is yet to be implemented, since that is not to be done without express permission of this Court, as ordered by the Division Bench in its order dated 04.12.2013, and as observed by Hon'ble the Supreme Court of India in its order dated 06.12.2013 in Special Leave to Appeal (Civil) Nos.37057-37059 of 2013. By amending the petition, even this Resolution dated 05.12.2013 is challenged by the petitioner. The challenge to the consideration and passing of the No Confidence Motion against the petitioner is principally on the ground that, there is no provision in the Gujarat State Co- operative Societies Act, 1961 ('Act' for short) in that regard and in absence of any provision in the statute, the same can not be done. There are other ancillary issues also, but principally, the controversy in this petition is as stated above. This petition is treated to be a lead matter, for the purpose of Page 3 of 24 C/SCA/16515/2013 CAV ORDER recording of this order.
2. Special Civil Application No.16594 of 2013 is filed by the Mehsana District Co-operative Milk Producers Union Limited, in substance, agitating this very grievance.
3. Civil Application No.13220 of 2013 is moved by the contesting respondent No.3 of Special Civil Application No.16515 of 2013, i.e. by the Gujarat Co-operative Milk Marketing Federation Limited, seeking permission of this Court to implement the Resolution which is unanimously passed on 05.12.2013 by the Board of Directors of the respondent Federation, expressing no confidence in its Chairperson Mr.Vipulbhai Chaudhary. The said Civil Application is moved pursuant to the observations of Hon'ble the Supreme Court of India in the above referred order dated 06.12.2013, wherein the subject matter was the above referred order of the Division Bench of this Court dated 04.12.2013.
4. Heard Mr.B.B.Naik, learned Senior Advocate with Mr.P.S.Champaneri, learned advocate for the petitioner, Mr.S.N.Shelat, learned Senior Advocate with Mr.Nikunj Vyas for Nanavati Associates for the contesting respondent - Federation, Mr.P.K.Jani, learned Government Pleader with Mr.Niraj Ashar, learned Assistant Government Pleader for the respondent - State Authorities, Mr.B.S. Patel with Mr.Chirag Patel and Mr.Amit Panchal with Ms.Shivani Rajpurohit, learned advocates for the respective contesting respondents.
5.1 On behalf of the respondents, a preliminary objection is raised about the maintainability of the petitions, on more than one counts. It is contended that, the respondent Federation is Page 4 of 24 C/SCA/16515/2013 CAV ORDER not State within the meaning of Article 12 of the Constitution of India, nor it is an instrumentality of the State, nor State exercises any direct or indirect control over the affairs of the said society for deep or pervasive control and therefore, respondent Federation is not amenable to writ jurisdiction of this Court. It is further contended that even if it is held that, the respondent No.3 is amenable to writ jurisdiction of this Court, the petitioner has alternative statutory remedy in view of Section 96 of the Act and therefore on this additional ground also, these petitions be not considered on merits. Number of authorities are cited in support of these submissions.
5.2 On the other hand, Mr.Naik learned senior advocate for the petitioners has contended that, the petitions are maintainable. He has invited attention of this Court to various provisions of the Act, the bye-laws of respondent Federation and the provisions in the Constitution of India to contend that, the respondent Federation, if not State within the meaning of Article 12 of the Constitution of India, is atleast an instrumentality of the State, and further that, the State exercises direct, deep, pervasive and rigid control over the affairs of the said society and therefore, respondent Federation is amenable to writ jurisdiction of this Court. It is alternatively submitted that, atleast at this stage of final hearing of the matter, the petition be not disposed of either on the ground of maintainability or on the ground of alternative statutory remedy and the petition be entertained on merits. Number of authorities are cited by him also, in support of his submissions.
5.3 So far the question of maintainability of the petition is concerned, generally, that question is gone into first, by the Page 5 of 24 C/SCA/16515/2013 CAV ORDER Court and in the event, the contention of the respondent is upheld in this regard, the matter may not be required to be examined on merits at all. Though, being conscious of this course to be adopted, this Court has, for the reasons and in the circumstances narrated hereinafter, thought it fit to first consider the bone contention on merits of the matter, and the maintainability aspect is gone into in para:9 of this order.
6.1 The bone contention on behalf of the petitioner, on merits, is that the petitioner was elected as Chairperson of the Federation by the Board for the term of three years and he has right to hold this office for three years, which is yet not over, and in absence of any provision in the Gujarat Co-operative Societies Act, 1961, No Confidence Motion could not have been moved against him at all by the Directors who had elected the petitioner as Chairperson, and therefore all subsequent actions in that regard i.e. from the stage of calling of the meeting of the Board of Directors to consider the no confidence motion, till passing of the said no confidence motion, are nullity and the same needs to be quashed and set aside. Reliance in this regard is placed on the decision recorded by the learned Single Judge of this Court in the case of Babubhai Kalidas Patel versus State of Gujarat & Others, on Special Civil Application No.11351 of 2012 with Special Civil Application No.4087 of 2012 dated 01.11.2012. Attention of this Court is invited to para 7.15 of the said decision to point out that, the view expressed by the Division Bench of this Court in the case of Motibhai R. Chaudhary versus Registrar, Co-operative Societies reported in 2005(1) GLH 270, which otherwise could have governed the controversy in this petition, is no more a good law. It is further pointed out that, not only the decision of the Page 6 of 24 C/SCA/16515/2013 CAV ORDER Division Bench of this Court in the case of Motibhai R. Chaudhary (supra) is held to have been impliedly overruled, but by the very same decision, even the judgment of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya, and that of Single Judge in case of Narmadaben V.Parmar, reference to which is made hereafter, are also held to have stood impliedly overruled. In this regard, attention of this Court is invited to the last line of Para 8.1 of the decision of Babubhai Kalidas Patel (supra). There are other ancillary issues also in the matter, however this Court has considered it proper to first go into the above stated principal contention. Number of authorities are cited by both the sides but the same is referred to, only to the extent required, that too in the later part of this order.
6.2 Both the sides have taken this Court through the decision of this Court in the case of Babubhai Kalidas Patel (supra). At the outset, it needs to be recorded that, whether in absence of any provision in the statute, No Confidence Motion could have been brought against any elected office bearer or not, is already answered by this Court in three different decisions, the details of which are as under :
(i) Nandlal Bavanjibhai Posiya versus Director of Agriculture Marketing & Rural Finance - 2002 (1) GLH 659 (Full Bench) [under the Gujarat Agricultural Produce Markets Act, 1963 ]
(ii) Motibhai R. Chaudhary versus Registrar, Co-
operative Societies - 2005 (1) GLH 270
(Division Bench) [under the Gujarat Co-
operative Societies Act, 1961 ]
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(iii) Narmadaben Parmar versus Taluka
Development Officer, Kheralu - 1998 (1) GLR 225 (Single Judge) [under the Gujarat Panchayats Act, 1993] Thus, under (i) the Gujarat Agricultural Produce Markets Act, 1963, (ii) the Gujarat Co-operative Societies Act, 1961, and (iii) the Gujarat Panchayats Act, 1993, respectively, consistent view of this Court has been, that even in absence of any specific provision in the principal statute, No Confidence Motion can be brought and considered to remove any elected office bearer.
6.3 It is the above three judgments of this Court, including that of the Division Bench and the Full Bench of this Court, which are held to have been impliedly overruled in view of the subsequent decision of the Supreme Court of India, in the case of Pratap Chandra Mehta versus State Bar Council of Madhya Pradesh reported in (2011) 9 SCC 573, which is discussed hereinafter, as perceived by learned Single Judge of this Court, while recording the decision in the case of Babubhai Kalidas Patel (supra).
7.1.1 With respect, I have not been able to persuade myself to concur with the view expressed by the learned Single Judge of this Court in the case of Babubhai Kalidas Patel (supra), for more than one reasons. Firstly, if this Court finds that the earlier view of the Division Bench and Full Bench of this Court is impliedly overruled by the subsequent decision of Hon'ble the Supreme Court of India, the course to be adopted is to refer the matter to the Division Bench. Reference in this Page 8 of 24 C/SCA/16515/2013 CAV ORDER regard can be made to the decisions of Hon'ble the Supreme Court of India in the case of K.Sahadev versus Suresh Bir reported in 1995 Supp.(3) SCC 668, and in the case of State of U.P. versus C.L. Agrawal reported in AIR 1997 SC 2431(1).
7.1.2 Para 5 of the decision in the case of K.Sahadev (supra) reads as under.
"5. In our opinion, the learned Single Judge in recording the finding that the decision in Ataur Rehman was no more a good law, did not act properly as unless the decision in Ataur Rehman was set aside by a larger bench the declaration given by it that Section 4 was ultra vires could not be put at naught by a decision given by this Court in respect of another Act. The proper course for the learned Single Judge was to refer the matter to the Division Bench. In the absence of any such decision by a larger bench the section could not revive."
7.1.3 Para 19 of the decision in the case of State of U.P. versus C.L. Agrawal (supra) reads as under.
"19. We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue "notwithstanding the aforesaid pronouncement of the Full Bench judgment.....". If the judgments in the cases of Supreme Court Employees' Welfare Association (AIR 1990 SC 334) and M.C.Puttaswamy (AIR 1991 SC 295) were cited and the respondents to the said writ petition submitted that the Full Bench judgment was Page 9 of 24 C/SCA/16515/2013 CAV ORDER erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench. Judicial discipline requires that a Division bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court."
7.1.4 The above view is consistently followed by the Apex Court and reference can be made to the decision in the case of Official Liquidator versus Dayanand and Others reported in (2008) 10 SCC 1 (Para 79 thereof).
7.1.5 The above course does not appear to have been adopted while rendering the decision in the case of Babubhai Kalidas Patel (supra). Thus, the decision in the case of Babubhai Kalidas Patel (supra), in my view, is arrived at, procedurally in conflict with the view expressed by the Apex Court in the above referred decisions and therefore, I have considered it necessary to examine the issue on merits, as to whether the above referred three decisions of our Court can be said to have stood impliedly overruled for any reason and if yes, then it is only the procedural aspect which needs to be reconciled.
7.2.1 Having examined so, even on merits I have not been able to concur with the view expressed in the case of Babubhai Kalidas Patel (supra) that, the above referred three judgments of our Court are impliedly overruled. The reasons for this are as under.
7.2.2 The analogy on which the decision in the case of
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Babubhai Kalidas Patel (supra) is based, is that the view of this Court in the case of Narmadaben V. Parmar (supra), Motibhai R. Chaurdhary (supra) and Nandlal Bavanjibhai Posiya (supra), is on the same line, i.e. that even in absence of any provision in the statute, No Confidence Motion can be brought against an elected office bearer. One of these three decisions, i.e. the decision of the Full Bench of our Court in the case of Nandlal Posiya (supra) was referred to by one of the parties before the Madhya Pradesh High Court. The Madhya Pradesh High Court did not agree with the view expressed by the Full Bench of this Court in the case of Nandlal Posiya (supra) and proceeded to record decision in the case before it. The said decision of the Madhya Pradesh High Court was the subject matter before Hon'ble the Supreme Court of India in the case of Pratap Chandra Mehta versus State Bar Council of Madhya Pradesh reported in (2011) 9 SCC 573, and the Apex Court has not interfered in the said judgment of the Madhya Pradesh High Court. It is this decision of Hon'ble the Supreme Court of India in the case of Pratap Chandra Mehta (supra), which was principally treated to be the base to come to the conclusion that, in the circumstances stated above, the above decision of the Full Bench of this Court stands impliedly overruled, and further that, since all the three decisions of our Court i.e. Nandlal Posiya (supra), Motibhai R.Chaudhary (supra) and Narmadaben V.Parmar (supra) are on the same lines, in effect, all the three have stood impliedly overruled.
7.2.3 At this juncture, reference can be made to the decision of Hon'ble the Supreme Court of India in the case of M/s. Orient Paper and Industries Ltd. versus State of Orissa reported in AIR 1991 SC 672 and in the case of Bhavnagar Page 11 of 24 C/SCA/16515/2013 CAV ORDER University versus Palitana Sugar Mill Pvt. Ltd. reported in AIR 2003 SC 511(1). Relevant from Para 19 of the decision in the case of M/s. Orient Paper and Industries Ltd. (supra) reads as under.
"19. The authority of Titaghur ((1985) 3 SCR 26) is confined to matters which were directly and substantially in issue, in that case. It is neither precedent nor res judicata or any other matter. "What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it......"
Relevant from Para 59 of the decision in the case of Bhavnagar University versus Palitana Sugar Mill Pvt. Ltd. (supra) reads as under.
"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision........."
7.2.4 If the reasons recorded by this Court in the case of Babubhai Kalidas Patel (supra) are looked at, in my view, essentially, it is on the basis what logically followed from the chronology which is stated above and not based on what is pronounced by Hon'ble the Supreme Court of India. Thus, the law holding the field over a decade so far our Court is concerned, is perceived to have been impliedly overruled, in Page 12 of 24 C/SCA/16515/2013 CAV ORDER my view, not on the basis of the law pronounced by the Apex Court but on the basis of what logically could follow from the decision of the Apex Court in the case of Pratap Chandra Mehta (supra).
7.3.1 Further, it also needs to be recorded that Hon'ble the Supreme Court of India in the case of Pratap Chandra Mehta (supra) had framed three questions for its consideration. The second of the above three questions, with which we are concerned, which has remained unanswered by the Apex Court (See para:82 of the said judgment), reads as under.
"Whether despite the absence of the enabling provisions in the principal statue, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office-bearers of the State Bar Councils by "no-confidence motions", such power could be read into the general clause of Section 15(1) of the Advocates Act ?"
7.3.2 Thus, in my view, the law as propounded by this Court in the case of Nandlal Bavanjibhai Posiya (supra), Motibhai R.Chaudhary (supra), and Narmadaben V. Parmar (supra), is not only impliedly not overruled, but is expressly kept untouched by the Apex Court.
7.4 While recording the decision in the case of Babubhai Kalidas Patel (supra), over and above, Pratap Chandra Mehta (supra), reference is also made to other decisions of Hon'ble the Supreme Court of India. They are, (i) Ravi Yashwant Bhoir versus District Collector, Raigad and others reported in (2012) Page 13 of 24 C/SCA/16515/2013 CAV ORDER 4 SCC 407, (ii) C.N. Rudramurthy versus K.Barkathulla Khan and others reported in (1998) 8 SCC 275, (iii) Afjal Imam versus State of Bihar and others reported in 2011 AIR SCW 2722 and (iv) Bhanumati and others versus State of Uttar Pradesh through its Principal Secretary and others reported in (2010) 12 SCC 1. Ravi Yashwant Bhoir (supra) was the case where an elected office bearer was removed from office on the ground of misconduct, which is different from the concerned office bearer loosing confidence of the members who had elected him to the office. In the case of Bhanumati (supra), constitutional doctrine of silence is discussed in Paras 49 and 50, the situation with which we are concerned. There can not be any dispute with regard to the proposition of law emerging from the case of Rudhramurthy (supra), however, the question is whether there is any declaration of law by the Apex Court on the point at issue. The conclusion in Para 37 in the case of Afjal Imam (supra) also speaks of the elected office bearer enjoying the confidence of the members who have elected him. It can not be lost sight of that in the case of Pratap Chandra Mehta (supra), the Hon'ble the Supreme Court of India has ultimately upheld the action of moving no confidence motion even in absence of any provision in that regard in the principal statute. Thus, the conjoint harmonious reading of these five judgments, which are referred in the case of Babubhai Kalidas Patel (supra), in my view, only strengthens the view expressed by this Court in Nandlal Bavanjibhai Posiya (supra) and does not dilute it in any manner, much less overrules it.
7.5 For the above reasons, I have not been able to persuade myself to concur with the view expressed by this Court in the case of Babubhai Kalidas Patel (supra) that, the above referred Page 14 of 24 C/SCA/16515/2013 CAV ORDER three decisions of this Court, including that of the Division Bench and the Full Bench of this Court are impliedly overruled in view of the decision of the Apex Court in the case of Pratap Chandra Mehta (supra).
8.1 The next question is, as to under these circumstances, which course should I adopt. When, in substance as well as in procedure, both, according to me, the decision in the case of Babubhai Kalidas Patel (supra) is in conflict with the law laid down by the Apex Court as narrated above, without referring the matter to the Division Bench, I could have proceeded to adjudicate the petition in accordance with law, however judicial discipline and propriety demands that our Court should not appear to be heard in different voices to the society, on broad proposition of law. Keeping this obligation in view, I consider it prudent to refer the matter to the Division Bench on the issue, as to whether the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra).
8.2 It is recorded that, the decision of this Court in the case of Babubhai Kalidas Patel (supra) was already under challenge in Letters Patent Appeals No.1551 of 2012 and 1553 of 2012. Both the appeals were admitted by the Division Bench vide order dated 27.11.2012. While admitting those appeals, the Division Bench had inter alia recorded thus, "......Since, this appeal raises a pure question of law, we dispense with the Page 15 of 24 C/SCA/16515/2013 CAV ORDER necessity of filing formal paper book." During the pendency of the said appeals, the term of the Committee in question expired and on facts, no one remained to be aggrieved party and therefore, one of the appeals was withdrawn and the second one was disposed of by the Division Bench without going into the merits of the matter, vide order dated 25.04.2013. Thus, the question of law, which is being referred to the Division Bench by this order, was already admitted for consideration by the Division Bench.
8.3 Registry therefore needs to be directed to place the papers of Special Civil Application No.16515 of 2013 before Hon'ble the Chief Justice, to consider for placing it before the Division Bench, to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra).
8.4 At this stage, it is recorded that Mr.Naik for the petitioner has contended that, the election law is a special jurisprudence where common law has no applicability. By referring to the various decisions of Hon'ble the Supreme Court of India right from the case of Jagan Nath versus Jashwant Singh reported in AIR 1954 SC 210(1), it is contended that, the decisions of this Court in the case of Motibhai R.Chaudhari (supra) and Nandlal Bavanjibhai Posiya (supra) were inconsistent with the law prevailing even then and therefore, according to him, were per incurium even when the said decisions were recorded by Page 16 of 24 C/SCA/16515/2013 CAV ORDER the Division Bench and the Full Bench of this Court. Since the matter is being referred to the Division Bench as recorded above, it is for the learned advocate for the petitioner to persuade the Division Bench that the above referred decisions of the Division Bench and Full Bench of this Court were per incurium, even when the said decisions were recorded by this Court.
9. As recorded in the earlier part of this order, the respondents have raised the preliminary objection about maintainability of this petition. According to them, there are two fold objections. Firstly, respondent Federation is not amenable to writ jurisdiction. The alternative argument is that, even if the respondent Federation is held to be amenable to writ jurisdiction of this Court, the petitioner does have alternative remedy, which is statutory in nature, in view of Section 96 of the Act. The learned advocates for the petitioner as well as the respondents have cited number of decisions, for and against this submission. However, in the peculiar circumstances of this case, I have thought it fit to consider this petition on merits. One of the factors which has weighed in adopting this course is that, even if the petitioner was to be relegated to the statutory Authority under Section 96 of the Act, the said Authority is expected to adjudicate this issue in accordance with law, but the position of law on the point at issue is as stated above, for which even the reference is being made to the Division Bench. Under these circumstances, to relegate the petitioner to avail the alternative remedy would more appear to be shirking the responsibility by this Court, the course which I do not propose to adopt. Further, that would only add to the complications and result in multiplicity of Page 17 of 24 C/SCA/16515/2013 CAV ORDER proceedings. Therefore, I have thought it proper to entertain this petition, without going into the question as to whether the respondent Federation is State or otherwise. Further, this matter, even at interlocutory stage, has gone right upto Hon'ble the Supreme Court of India. Further, there are observations of Hon'ble the Supreme Court of India in its order dated 06.12.2013 to the effect that, the request of the respondent Federation shall be considered by the High Court to implement the resolution which is already passed against the petitioner expressing no confidence in him. Since the question of maintainability under these circumstances is not gone into, though number of authorities are cited by both the sides, the same is not discussed here. It is held that in the facts and circumstances of the case, this petition is treated to be maintainable and is entertained on merits.
10.1 There is one more argument advanced on behalf of the petitioner that, even if he loses on the principal contention which is recorded above, procedurally also, the Resolution dated 05.12.2013, which is passed against the petitioner can not be allowed to stand in eyes of law. It is contended that, initially the meeting for this purpose was scheduled on 26.10.2013 vide communication dated 23.10.2013. This meeting was stayed by the interim order of this Court dated 25.10.2013. It is contended that, the said agenda could not have been transacted in the meeting dated 05.12.2013 and since the no confidence motion is considered and passed in the meeting dated 05.12.2013, it is illegal. In support of this contention, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Chandrakant Khaire versus Dr.Shantaram Kale and others reported in (1988) 4 SCC Page 18 of 24 C/SCA/16515/2013 CAV ORDER
577. 10.2 On the other hand, on behalf of the respondents it is submitted that, after the order of the Division Bench dated 04.12.2013, appropriate notice was already issued to all the Directors including the petitioner that in the meeting dated 05.12.2013, the business shall be transacted even with regard to the no confidence motion in question and thus, there is no procedural irregularity. It is further pointed out on behalf of the respondents that, the petitioner had on 05.12.2013 itself filed one more petition before this Court being Special Civil Application No.17768 of 2013, but the same was withdrawn with a view to take appropriate objections in the meeting of the Board in which the representative of the Registrar of Co- operative Societies was to remain present. It is stated that, the petitioner walked out of the meeting without raising any such objection before the Authority and therefore, he is precluded from raising this contention before this Court.
10.3 Having heard learned advocates and having gone through the material on record on this point, I find that the petitioner had remained present as Chairman in the said meeting and he unsuccessfully attempted to adjourn it without transacting any business, and then he walked out with his lone supporter Mr.Ramsingh Parmar. When the dispute is with regard to the consideration of No Confidence Motion against the Chairman of the said meeting itself, the say of said Chairman needs closer scrutiny. On going through the documents on record, this Court finds that this contention, though not unknown to law, is more out of frustration. If the petitioner succeeds on the bone contention, he need not bank Page 19 of 24 C/SCA/16515/2013 CAV ORDER upon this, but the petitioner can not salvage the situation only on the alleged procedural irregularity, which this Court finds none. This contention is rejected.
11.1 In the main petition, there is one more prayer which pertains to Government. The said prayer reads as under :
"15(AA) This Hon'ble Court will be pleased to issue an appropriate writ, order or direction, commanding the Registrar, Cooperative Societies and/or State Government to issue an appropriate notification or a resolution or a circular to implement the judgment and order passed by this Hon'ble Court in Special Civil Application No.11351 of 2012, in the case of Babubhai Kalidas Patel & others Vs. State of Gujarat."
11.2 The above prayer, in the circumstances narrated above, can not be considered at this stage. Even after the decision is rendered by the Division Bench on the question of law which is being referred to by this order, it is not necessary that this prayer be accepted. At the most, it is a proposition of law, which a party aggrieved can press into service in appropriate proceedings, as is done in this case. This prayer therefore is rejected.
12. Now coming to the next question, that pending further consideration of this petition by the Division Bench on the question of law which is recorded above, which course should be adopted. It is recorded that the respondent Federation has Page 20 of 24 C/SCA/16515/2013 CAV ORDER moved Civil Application No.13220 of 2013 in Special Civil Application No.16515 of 2013, with the prayer that it be permitted to give effect to the resolution which is already passed against the Chairman, expressing No Confidence in him. The law, which should govern the issue, in my view, is as propounded by the Division Bench of this Court in the case of Motibhai R.Chaudahri (Supra). The perception in the case of Babubhai Kalidas Patel (supra), vis-a-vis the reasons recorded in Para 7 above, guides this Court to take a view which is not inconsistent with the decision of this Court in the case of Motibhai R. Chaudhary (supra). The Civil Application, therefore, needs to be allowed.
13. Special Civil Application No.16594 of 2013 is filed by Mehsana District Cooperative Milk Producers Union Limited. In view of bye-law No.18.1(i) of the respondent Federation, the Chairman of an affiliated Milk Union is on the Board of Directors of the Federation. Mehsana District Cooperative Milk Producers Union Limited, is one such affiliated Milk Union. Mr.Vipulbhai Chaudhary is the Chairman of the said Mehsana District Cooperative Milk Producers Union Limited. That is how he is on the Board of Directors of the respondent Federation and that is how he had an occasion to become the Chairperson of the Federation in view of bye-law No.18.2. The cause of action and the grievance voiced in this petition is the action of the Board of Directors of the Federation of moving no confidence motion against Mr.Vipulbhai Chaudhary as the Chairperson of the Federation. In this regard, it needs to be recorded that, moving no confidence motion against Mr.Vipulbhai Chaudhary as the Chairperson of the Federation has nothing to do with the status of Mr.Vipulbhai Chaudhary so Page 21 of 24 C/SCA/16515/2013 CAV ORDER far his Chairmanship of Mehsana District Cooperative Milk Producers Union Limited is concerned. The petitioner of Special Civil Application No.16594 of 2013 appears to have identified itself as its Chairman, who is also Chairperson of the Federation. In this petition, Mr.Vipulbhai Chaurdhary, is respondent No.3. He is petitioner in Special Civil Application No.16515 of 2013. During the course of hearing, it was specifically inquired by this Court as to who is appearing for respondent No.3 of Special Civil Application No.16594 of 2013, and everybody is silent, even Mr.Chapaneri, learned advocate for petitioners of both the petitions, has also stated that he is not appearing for respondent No.3 of Special Civil Application No.16594 of 2013. The petitioner of Special Civil Application No.16594 of 2013 can not have any locus to agitate about the no confidence motion being considered by the Federation against its Chairperson. It appears that, the Mehsana District Cooperative Milk Producers Union Limited has treated it to be Mr.Vipulbhai Chaurdhary. Said person is already agitating his grievance in Special Civil Application No.16515 of 2013. This petition, therefore, needs to be dismissed.
14.1 In the result, the following order is passed.
14.2 Special Civil Application No.16515 of 2013
(i) This petition is entertained on merits. The preliminary objection of the respondents about its maintainability is rejected, for the reasons and circumstances recorded in Para 9 above.
(ii) On the principal contention of the petitioner, that in absence of any provision in the Gujarat Co-operative Societies Page 22 of 24 C/SCA/16515/2013 CAV ORDER Act, 1961, No Confidence Motion could not have been considered and passed against him, the matter is referred to the Division Bench to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra), can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra), on the face of the reasons recorded in Para 7 above.
(iii) The alternative submission of the petitioner as recorded in Para 10 is rejected.
(iv) The prayer clause 15(AA) is rejected.
14.3 Special Civil Application No.16594 of 2013 is dismissed.
14.4 Civil Application No.13220 of 2013 in Special Civil Application No.16515 of 2013 is allowed. The applicant - Gujarat Co-operative Milk Marketing Federation Limited is at liberty to implement the Resolution dated 05.12.2013 expressing no confidence in Mr.Vipulbhai Chaudhary, as the Chairperson of the Federation.
15. Registry is directed to place the papers of Special Civil Application No.16515 of 2013 before Hon'ble the Chief Justice, to consider for placing it before the Division Bench, to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the Page 23 of 24 C/SCA/16515/2013 CAV ORDER case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra).
(PARESH UPADHYAY, J.)
16. After this order is pronounced, learned advocate for the petitioner of Special Civil Application No.16515 of 2013 has requested that, atleast the order on Civil Application No.13220 of 2013 be stayed for some time. This request is opposed by the learned advocates for the respondents. Considering the totality, it is ordered that, this order, qua Civil Application No.13220 of 2013 in Special Civil Application No.16515 of 2013, shall be effective from 11.01.2014.
(PARESH UPADHYAY, J.) Amit/1 Page 24 of 24