Gujarat High Court
Shree Jay Sardar Fruit And Vegetables ... vs State Of Gujarat on 2 January, 2019
Equivalent citations: AIRONLINE 2019 GUJ 443
Author: A.C. Rao
Bench: A.C. Rao
C/SCA/21180/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21180 of 2018
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SHREE JAY SARDAR FRUIT AND VEGETABLES PRODUCE SANGH
MANDALI LIMITED
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the PETITIONER(s) No. 1
MR VENUGOPAL PATEL, AGP(99) for the RESPONDENT(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE A.C. RAO
Date : 02/01/2019
ORAL ORDER
1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 27.12.2018 passed by the respondent No. 1 - Additional Registrar (Appeals), Cooperative Societies, Gujarat State, Gandhinagar in Miscellaneous Application No. 28/2018 by which, the said application for condonation of delay and consequently, the appeal preferred by the petitioner came to be rejected.
2. It is the case of the petitioner that the petitioner is registered under the Gujarat Co-operative Societies Act, Page 1 of 15 C/SCA/21180/2018 ORDER 1961 (hereinafter referred to as, 'the Act') for food and vegetable products. The respondent No. 3 is a registered society under the Act. The respondent No. 4 had changed their purpose by the amendment in by-laws and included purchase and sale. The said amendment was allowed by the District Registrar, Co-operative Societies, Junagadh. Previously, the said amendment was rejected by the Assistant District Registrar, Co-operative Societies, District Panchayat, Junagadh by order dated 22.01.2018. Being aggrieved by the order of amendment, the petitioner preferred appeal before the Additional Registrar (Appeals), Gandhinagar. Initially, the said appeal was returned as it was in English. However, thereafter, the petitioner preferred an appeal in Gujarati along with a delay condonation application. The said delay condonation application was rejected on the ground that the petitioner did not have any locus standi and has not made out sufficient cause for condonation of delay.
3. It is contended by the petitioner that the order passed by the District Registrar, Co-operative Societies, Junagadh is ultra vires and without jurisdiction to pass such an order Page 2 of 15 C/SCA/21180/2018 ORDER in view of notification of the respondent No. 1 dated 27.11.2018 and in fact, the order was required to be passed by the District Registrar, District Panchayat. The petitioner has also contended that since the order itself is ultra vires, the petitioner has locus standi to file this petition and therefore, the impugned order is required to be set aside. It is also contended that during the pendency of this petition, the District Registrar, Co- operative Societies, Junagadh may be ordered not to accept the nomination of respondent No. 4 at the election of the Agriculture Produce Market Committee (APMC). The learned advocate for the petitioner referred sections 4, 13 and 151 of the Act.
4.1 In support of his case, the learned advocate for the petitioner has relied upon following decisions:
4.1.1 Rendered by the Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 17, more particularly, paragraphs 14 to 16, which read as under:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not Page 3 of 15 C/SCA/21180/2018 ORDER limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions on of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the filed.
16. Rashid Ahmed V. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K. S. Rashid & son V. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances." 4.1.2 Division Bench of this Court in the case of Bhupendrasinh Vechatbhai Khant Vs. Vikramsinh Page 4 of 15 C/SCA/21180/2018 ORDER Ramsinh Dindor, 2018 (0) AIJEL-HC 239049, more particularly, paragraph 13, which reads as under:
"13. In the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others (supra), the Honourable Supreme Court has observed in Paragraphs9, 10 and 18 as under:
Person aggrieved "9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, Saghir Ahmad & Anr. v. State of U.P., Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors.; Rajendra Singh v. State of Madhya Pradesh; and Tamilnad Mercantile Bank Shareholders Welfare Page 5 of 15 C/SCA/21180/2018 ORDER Association (2) v. S.C. Sekar & Ors.
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York and State of Rajasthan & Ors.
v. Union of India).
xxx xxx xxx Locus standi of respondent no.5 :
18. As Respondent no.5 does not belong to the Scheduled Tribes category, the garb adopted by him, of serving the cause of Scheduled Tribes candidates who might have been deprived of their legitimate right to be considered for the post, must be considered by this Court in order to determine whether respondent no. 5, is in fact, in a legitimate position to lay any claim before any forum, whatsoever."
4.1.3 In the case of Kuvrabhai Bharabhai Bharvad Vs. State of Gujarat, 2011 (1) CLR 217, more particularly, para 14, which reads as under:
"Keeping in mind the law laid down by the Hon'ble Apex Court in various decisions, if the present case is examined, we are of the opinion that respondent authority has exercised power conferred on it under section 84(5) of the Act, 1961 on an application given by the appellant. The appellant has paid the audit fees of Rs.52,000/and as amember of respondent no.4, the Page 6 of 15 C/SCA/21180/2018 ORDER appellant is interested that proper reaudit is carried out by the Special Auditor. There are allegations leveled against the appellant by name in the petition as observed hereinabove without joining him as party. Though no relief is prayed against the appellant in the petition, order appointing Special Auditor is under challenge who has been appointed on an application given by the appellant, we are of the view that in the facts and circumstances of the case, present appellant is necessary and proper party to the proceedings. We have gone through reasoning given by the learned Single Judge. However, in view of aforesaid discussion, we are of the opinion that the appellant is required to be joined as party respondent in Special Civil Application No.268 of 2015."
4.2 The learned advocate for the petitioner has also relied upon a decision of this Court in the case of B. B. Shroff & Another V. Sardar Bhilandwala Pardi People's Co. Op. Bank Ltd., 1981 (22) GLR 805, wherein, it is held that, 'if the by-law of society is amended and the amendment is likely to have adverse effect on any other society, then the society is required to be heard'.
5. While opposing this petition, learned counsel appearing on behalf of the respondent No. 4 has contended that the petitioner has no locus standi. In support, he has relied upon a decision of the Supreme Court in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671, more particularly, paragraphs 31 to 34, which read as under:
Page 7 of 15 C/SCA/21180/2018 ORDER
"31. Ex Parte Stott, is another illustration of a person who had no legal grievance, nor had he sufficient interest in the matter. A licensing authority under the Cinematography Act, 1901, granted to a theatre proprietor a licence for the exhibition of cinematograph films at his theatre. The licence was subject to the condition that the licensee should not exhibit any film if, he had notice that the licensing authority objected to it. A firm who had acquired the sole right of 1 exhibition of a certain film in the district in which the theatre was situated entered into an agreement with the licensee for the exhibition of the film at his theatre. The licensing authority having given notice to the licensee that it objected to the exhibition of the film, the film applied for a writ of certiorari to bring up the notice to be quash ed on the ground that the condition attached to the licence was unreasonable and void, and that they were aggrieved by the notice as 'being destructive of their property. It was held that whether the condition was unreasonable or not, the applicants were not persons who were aggrieved by the notice and had no locus standi to maintain the application.
32. Similarly, King v. Middlesex Justices, it was held that the words "person who shall think himself aggrieved"
appearing in the statute governing the grant of licences to innkeepers mean a person immediately aggrieved as by refusal of a licence to himself, and not one who is consequently aggrieved, and that though the Justices had granted a licence to a party to open a public house, not before licensed, within a very short distance of a licensed public house, the occupier of the latter house could not appeal against such grant.
33. Other instances of a restricted interpretation of the expression "person aggrieved" are furnished by R. v. Bradford on-Avon Urban District Council ex parte Boulton; Gregory v. Camden London Borough Council; R. v. London O. S. ex parte West-Minister Corporation; Regina v. Cardiff Justices Ex parte Cardiff Corporation. Page 8 of 15 C/SCA/21180/2018 ORDER
34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, in fringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter. (see The State of Orissa v. Madan Gopal Rungta; Calcutta Gas Co. v. State of West Bengal; Ram Umeshwari Suthoo v.
Member, Board of Revenue, Orissa; Gadda Venkateshwara Rao v. Government of Andhra Pradesh; State of Orissa v. Rajasaheb Chandanmall; Dr. Satyanarayana Sinha v. M/s. S. Lal & Co.)." 5.1 It is vehemently contended that the petitioner has no locus standi as he is not in the Voters' List. Therefore, it cannot be said that there is any legal or any other injury to the petitioner. It is contended that the petitioner and the respondent are operating in different areas and therefore, no right of the petitioner is prejudiced by the proposed amendment. It is also contended that the petitioner has not objected inclusion of the respondent No. 4 in the Voters' List. It is further contended that the delay condonation application is rejected by the respondent No. 3 and appeal is yet to be admitted and before admission of appeal, the petitioner cannot pray for restraining the election process. Accordingly, it is urged that the present petition is required to be dismissed. Page 9 of 15 C/SCA/21180/2018 ORDER 5.2 In support of his case, he has relied upon a decision of this Court dealing with the question of locus standi, in the case of Rajnikant Bhogilal Patel and Others Vs. State of Gujarat Thro. Secretary and Others, 2018 (1) GLH 361, more particularly, paragraphs 5.3 to 5.8, which read as under:
"5.3 Proceeding to consider who is 'a person aggrieved' in legal parlance, and whether petitioners can be said to be 'aggrieved to have locus for invoking Section 20 of the Act as the society has not commenced its business for reasonable time. In Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed [(1976) 1 SCC 671] the Supreme Court elaborately discussed the concept of 'an aggrieved person', and observed that in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an aggrieved person. If he does not fulfill that characteristic, and it is a 'stranger', the Court will deny him this extraordinary remedy. 5.3.1 It was stated:-
"... ... ... of the cases in which a strict construction was put on the expression "person aggrieved", is Buxton and ors. v. Minister of Housing and Local Government [(1961) 1 QB 278]. There, an appeal by a Company against the refusal of the Local Planning Authority of permission to develop land owned by the Company by digging chalk, was allowed by the Minister. Owners of adjacent property applied to the High Court under Secton 31(1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land, and that they were 'persons aggrieved' by the action of the Minister. It was held that the expression 'person aggrieved' in a statute meant a person who had suffered a legal grievance; anyone given the right under Section 37 of the Act of 1959 to have his representation considered by Page 10 of 15 C/SCA/21180/2018 ORDER the Minister was a person aggrieved, thus section 31 applied, if those rights were infringed; but the applicants had no right under the statute, and no legal rights had been infringed and therefore they were not entitled to challenge the Minister's decision." (Para 30) 5.3.2 The Apex Court further stated that Salmon J. quoted with approval these observations of James T. J. in In Re Sidebothem [(1880) 14 Ch D 458, 465], and the passage quoted with approval would apply apt and apposite.
"The words 'person aggrieved' do not really means a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance,'a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrong fully refused him something, or wrongfully affected his title to something." (Para 30) (emphasis supplied) 5.4 The following observations of the Apex Court in Ravi Yashvant Bhoir v. District Collector, Raigad [(2012) 4 SCC 407] explains the concept and the law.
"... ... ... A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria." (Para 58) "The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a Page 11 of 15 C/SCA/21180/2018 ORDER locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons I.e. a claim devoid of reasons." (Para 59) 5.5 The Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar [(1975) 2 SCC 702] opined that meaning of the words 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. It observed that the words 'person aggrieved' correspond to the requirements of locus standi which arises in relation to judicial remedies.
5.6 Thus, in order to become entitle to seek a statutory remedy, a person must show and establish that he is injured with a legal wrong. There must be an injury to a legally recognised, legally protected and legally enforceable right. The principle to be applied is that there must be a injuria sine damnum and not the damnum sine injuria for taking a legal action and a legal recourse. A damage suffered has to be coupled with legal injury. It is this kind of injury on which right-enforceability may be based.
5.7 For acquiring a standing to sue or a standing to take a legal recourse or right to initiate legal action for relief, the presupposition is that there must subsist a legal wrong one or invaded right in existence in relation to the subject matter in respect of which the action is sought to be initiated and the relief is asked for. It is this element which makes a person possessor of litigative interest to become an aggrieved person. Again the invasion of right sought to be remedied should not be one infringed in abstract. Its invasion must be in the context of the subject matter and the provision for which the right to seek relief or what is called locus standi, is claimed.
5.8 Whether a person is aggrieved person, whether he has suffered a legal injury and whether he has thus locus to seek remedy in law are the aspects, to be determined keeping in view the subject matter, the kind and nature Page 12 of 15 C/SCA/21180/2018 ORDER of, and controversy, the legal provision with reference to which they arise. The context of the provision and the subject matter, are the important aspects. The petitioners herein had no legal right infringed to invoke Section 20 of the Act to seek remedy therein. It is only in the matters involving public interest dimensions, which is not the case here, that the rule of person aggrieved or the principles of locus standi is made elastic. As there is no right to be enforced with the petitioners in respect of the subject matter, as they are not 'aggrieved person' and are devoid of locus in law, writ of mandamus would not lie in respect of the prayer."
6. The learned Assistant Government Pleader appearing for the respondent State has relied upon section 13 of the Act and contended that only members can challenge the amendment in the by-laws and the petitioner being stranger to the society, has no locus standi to challenge the by-laws. He has also drawn the attention of the Court to Rule 6 of the Gujarat Co-operative Societies Rules (hereinafter referred to as, 'the Rules'), wherein, it is stated that due notice of proposal to make, alter or abrogate the by-law is only given to the members of the society. Therefore, the petitioner has no legal right to challenge the amendment of by-laws.
7. Having considered the rival submissions advanced by the learned advocates for the respective parties and considering the fact that the petitioner is a co-operative Page 13 of 15 C/SCA/21180/2018 ORDER society dealing in different village and the petitioner is not a member of the society, the petitioner cannot be said to be an aggrieved person. Aggrieved person is well defined by the Apex Court in the case of Jasbhai Motibhai Desai (supra) and by this Court in the case of Rajnikant Bhogilal Patel (supra). The decision of this Court in the case of B. B. Shroff (supra), relied by the petition, would not be applicable to the facts of the case for the reason that the petitioner and the respondent No. 4 operate in different areas. In the said reported case, due to the amendment of the by-laws, the area of operation was extended wherein the petitioner society was operating and the Court was of the view that it would be a unhealthy competition. Therefore, the same would not be applicable to the facts of the present case. Further, the learned advocate for the petitioner is not able to point out that as to how the business of grain would adversely affect the right of the petitioner. Secondly, the petition is not maintainable on the ground that the nomination filed by the respondent No. 4 is not objected by the petitioner before the Election Officer at the relevant point of time. Further, Rule 6 of the Rules also provides a notice to the member of the society and not to Page 14 of 15 C/SCA/21180/2018 ORDER any other society. Thirdly, the contention of the petitioner that due to the amendment in by-laws, the respondent No. 3 would be included in the Voters' List and would entitle to nominate in the election of APMC, Visavadar, is also not sustainable in view of the fact that it is well decided that exclusion or inclusion in Voters' List cannot be said to be an extra-ordinary circumstance requiring interference of the High Court exercising jurisdiction under Article 226 of the Constitution. Under the circumstances, I do not find any illegality in the observations made by the respondent No. 1 in holding that the appeal is not maintainable.
8. The petition, therefore, fails and is dismissed accordingly with no order as to costs. Notice is discharged.
[ A. C. Rao, J. ] hiren Page 15 of 15