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[Cites 7, Cited by 1]

Gujarat High Court

Dhinchda Juth Seva Sahakari Mandali ... vs State Of Gujarat on 5 December, 2018

Author: Bela M. Trivedi

Bench: Bela M. Trivedi

         C/SCA/16913/2018                                           ORDER




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16913 of 2018

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             DHINCHDA JUTH SEVA SAHAKARI MANDALI LIMITED
                               Versus
                          STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the PETITIONER(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,3,4,5,6,7,8,9
MS. KRINA CALLA, AGP for the RESPONDENT(s) No. 1, 2, 3, 4
MR DHAVAL D VYAS(3225) for the RESPONDENT(s) No. 5
MR BHARAT T RAO(697) for the RESPONDENT(s) No. 6,7
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,4
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 CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

                                 Date : 05/12/2018

                                  ORAL ORDER

1. The petitioners by way of present petition, filed under Article 226 of the Constitution of India have challenged the legality and validity of the order dated 20.10.2018 passed by the respondent No. 4 - Authorized Officer allowing the objections raised by the respondent Nos. 6 and 7, and deleting the name of the nominee of the respondent No. 5 - Jamnagar District Cooperative Bank Limited included in the names of the managing committees of the petitioners societies in the preliminary voters' list published for the election of APMC, Jamnagar.

2. The short facts giving rise to the present petition are that the petitioner Nos. 1 to 24 Page 1 of 9 C/SCA/16913/2018 ORDER are the Primary Agricultural Credit Cooperative Societies having their main area of operation within the market area of APMC, Jamnagar. The petitioner societies are also dispensing the agricultural credits to its members. According to the petitioners, the said credit is received by the petitioners societies from the respondent No. 5 Bank, and one of the conditions while dispensing the credit, imposed by the respondent No. 5 Bank was condition No. 35 of the agreement to the effect that the Bank will nominate one representative in the Board of Directors of the societies. It is further case of the petitioners that some of the petitioners added a clause in the bye-laws to the effect that when any loan is taken from the Bank, one representative nominated by such Bank, shall be in the Board of Directors of the Societies. Accordingly the respondent No. 5 - Bank had appointed the petitioner No. 25 - Pravinsinh Hematsinh Zala as its nominee in the petitioners societies. As per further case of the petitioners, the elections of APMC, Jamnagar came to be declared by the respondent No. 2 - Director on 14.09.2018, whereby the preliminary voters' list was to be published on 03.10.2018, the provisional voters' list was to be published on 20.10.2018 and final voters' list was to be published on 30.10.2018 and election is to be held on 11.12.2018. The petitioners societies therefore had forwarded the names of the members of their managing Page 2 of 9 C/SCA/16913/2018 ORDER committees to the respondent No. 4 - Authorized Officer including the name of the nominee of the respondent No. 5 - Bank. The respondent No. 4

- Authorized Officer had included the said names of the members of the managing committee of the petitioner societies, however, the respondent Nos. 6 and 7 raised the objections against the inclusion of the name of the nominee of the respondent No. 5 - Bank as the member of the managing committee of the petitioners societies. The respondent No. 4 therefore vide the impugned order dated 20.10.2018 allowed the objections of the respondent Nos. 5 and 6 and deleted the name of the nominee of the respondent No. 5 - Bank from the voters' list holding that such name could not be included in the managing committee of the respective petitioners societies. Hence, the present petition has been filed by the petitioners.

3. The petition has been resisted by the respondent No. 4 - Authorized Officer and the respondent Nos. 6 and 7 - Objectors by filing separate affidavit-in-replies, to which the petitioners have filed affidavit-in-rejoinder.

4. The learned advocate Mr. Dipen Desai for the petitioners vehemently submitted that the Authorized Officer had travelled beyond his authority by deciding the validity of the nomination of the petitioner No. 25 as the Page 3 of 9 C/SCA/16913/2018 ORDER representative of the respondent No. 5 - Bank. According to him, the respondent No. 4 had no jurisdiction to decide the issue beyond the powers conferred under Rule 7 and 8 of the Gujarat Agriculture Produce Market Rules (hereinafter referred to as 'the said Rules') and deleting the name of the petitioner No. 25 from the voters' list holding that the nominated member was to be included only if the number did not exceed the number of the members of the managing committee mentioned in the bye-laws of the society. Relying upon the unreported decision of this Court in the case of Hemangbhai Bhupatrai Raval versus State of Gujarat in Special Civil Application No. 7540 of 2018 dated 08.05.2018, he submitted that the Section 11(1)

(i) of the APMC Act did not discriminate between the elected member or the nominated member of the managing committee of the Primary Agricultural Credit Cooperative Society, and therefore, the respondent No. 4 could not have excluded the name of the nominated member on the ground that it exceeded the maximum number mentioned in the bye-laws of the respective society. Reliance was also placed on the another unreported decision of Division Bench of this Court in the case of Vibhapar Seva Sahakari Mandali Ltd. versus State of Gujarat and others in Special Civil Application No. 6587 of 2010 and others, dated 15.07.2010, to submit that the Authorized Officer had limited jurisdiction for holding the inquiry as contemplated under Rule Page 4 of 9 C/SCA/16913/2018 ORDER 8(1) of the said Rules. Mr. Desai has also relied upon the decision of Division Bench of this Court in the case of Vibhaniya Seva Sahakari Mandali Ltd. and others versus State of Gujarat and others reported in 2012 (1) GLH 575 to submit that if the Authorized Officer had exercised the powers not vested to him, the interference of the Court is required. The learned advocate Mr. Dhaval Vyas for the respondent No. 5 - Bank also supported the submissions made by the learned advocate Mr. Desai for the petitioners.

5. However, the learned advocate Mr. B.T. Rao appearing for the respondent Nos. 6 and 7 submitted that none of the bye-laws of the petitioners societies permitted the nominee of the respondent No. 5 - Bank to be the member of the managing committee of the petitioners societies. He further submitted that in any case, the maximum number of members of the managing committee could not exceed twenty one as per Section 74 of the Cooperative Societies Act, and therefore the respondent No. 4 - Authorized Officer has rightly deleted the name of the nominee of the respondent No. 5, who was included as the member of the managing committee of the petitioners societies. Ms. Krina Calla, learned AGP appearing for the respondent No. 1 to 4 has also supported the submissions made by the learned advocate Mr. Rao.

Page 5 of 9 C/SCA/16913/2018 ORDER

6. At the outset, it may be stated that the petition is filed with regard to the voters' list published for the agricultural constituency of the APMC Jamnagar. As per Section 11(1)(i) of the APMC Act, the market committee consisting of eight agriculturists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area, have to be elected by the members of the managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area. Hence, eight agriculturists for being the members of the market committee, have to be elected by the members of the managing committees of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area. The present petitioners societies being the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit, had sent the names of the members of their managing committees, including the name of petitioner No. 25, who was the representative of the respondent No. 5 Bank nominated by the said Bank. Initially the said names sent by the petitioners societies including the name of petitioner No. 25 were published in the preliminary voters' list, against which the respondent Nos. 6 and 7 had raised objections before the respondent No. 4. The said Page 6 of 9 C/SCA/16913/2018 ORDER objections have been allowed by the respondent No. 4 by deleting the name of petitioner No. 25 from the voters' list as the member of the managing committee of the petitioners societies.

7. The bone of contention raised by the learned advocate Mr. Desai for the petitioners is that the respondent No. 4 had travelled beyond his jurisdiction by deleting the said name of the petitioner No. 25, as the respondent No. 4 could not have gone into the issue of the validity of the nomination made by the respondent Bank, and that Section 11(1)(i) does not distinguish between the elected member and the nominated member of the Primary Agricultural Cooperative Society. The Court does not find any substance in the said submission. It is not disputed that one of the conditions of the agreement entered into between the petitioners societies and the respondent No. 5 - Bank while granting loan was that one representative of the Bank shall be nominated in the managing committee of the petitioners societies, and that the petitioners societies would have to amend their bye-laws accordingly. However, from the respective copies of bye-laws produced on record, it appears that the petitioners societies had not carried out any such amendment in their respective bye-laws for including the name of the nominee / representative of the respondent No. 5 - Bank in the managing committee of the Page 7 of 9 C/SCA/16913/2018 ORDER petitioners societies. As transpiring from the record, some of the societies had specifically deleted such bye-law which existed earlier, and in the bye-laws of the other societies, the provision was to keep the representative of the respondent No. 5 - Bank to monitor or supervise the working of the managing committee of the petitioners societies. Mr. Desai had failed to point out from the bye-laws of any of the petitioners societies which permitted to include the name of the representative of the respondent No. 5 - Bank in the managing committee of the petitioners societies. Be that as it may, the number of the members of the managing committee has to be mentioned in the Bye-laws, and the elected members of the managing committee in any case could not exceed 21 as per Section 74 of the Cooperative Societies Act. Meaning thereby, there could be elected members and co-opted members in the cooperative societies, however, such number cannot exceed the number of members mentioned in their respective bye-laws, as approved by the Registrar, and in no case, elected members could be more than 21 members. Hence, if the nominee / representative of the respondent No. 5 - Bank was in addition to the maximum number mentioned in the bye-laws of the respective societies, such nominee or representative could not be included in the managing committee of the petitioners societies. The Court therefore does not find any illegality Page 8 of 9 C/SCA/16913/2018 ORDER in the impugned order passed by the respondent Authorized Officer.

8. In any case, the inclusion or exclusion of the names of voters in the voters' list could not be said to be extraordinary circumstance requiring interference of this Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India as per the decision of Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing) reported in 2006 (1) GCD 211.

9. In that view of the matter, the petition being devoid of merits, is dismissed. Notice is discharged.

(BELA M. TRIVEDI, J) AMAR SINGH Page 9 of 9