Vipulbhai Mansinhbhai Chaudhary vs District Registrar, Cooperative ... on 5 March, 2021

[Cites 37, Cited by 0]

Gujarat High Court

Vipulbhai Mansinhbhai Chaudhary vs District Registrar, Cooperative ... on 5 March, 2021

Bench: Bhargav D. Karia

       C/SCA/11977/2020                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11977 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

==========================================================

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 or any
      order made thereunder ?

==========================================================
               VIPULBHAI MANSINHBHAI CHAUDHARY
                             Versus
    DISTRICT REGISTRAR, COOPERATIVE SOCIETIES, GANDHINAGAR
==========================================================
Appearance:
MR MIHIR THAKORE, SENIOR ADVOCTE WITH MR DIPEN DESAI(2481)
for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR VINAY VISHEN,
AGP for the Respondent(s) No. 1
MR PK JANI, SENIOR ADVOCATE WITH MR SHIVANG JANI FOR THE
INTERVENER.
==========================================================

    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 05/03/2021

                                CAV JUDGMENT

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1. Heard learned Senior Advocate Mr. Mihir Thakore assisted by learned advocate Mr. Dipen Desai for the petitioner, learned Advocate General Mr. Kamal Trivedi assisted by learned Assistant Government Pleader Mr. Vinay Vishen for the respondentState and learned Senior Advocate Mr. Prakash Jani assisted by learned advocate Mr. Shivang Jani for the intervener through video conference.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Vinay Vishen waives service of notice of rule on behalf of the respondent State.

3. This matter was argued for final disposal by both the sides and accordingly, the same was heard.

4. By this petition, the petitioner has challenged the order dated 9th September, 2020, passed by the respondentDistrict Registrar, whereby the petitioner was removed as the member of the Administrative Committee of Charada Dudh Utpadak Sahakari Mandli limited, at village Charada, Taluka Mansa, District Gandhingar (for short "the Society") under Section 76B(1) of the Gujarat Cooperative Societies Act, 1961 (for short 'the Act, 1961').

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5. After filing of the petition, the petitioner moved a draft amendment challenging the show cause notice dated 22nd September, 2020, issued by the respondentDistrict Registrar, Cooperative Societies, Gandhinagar under Section 76B(2) of the Act, 1961 calling upon the petitioner to show cause why the petitioner should not be disqualified for contesting election or to hold any office in any Co operative Society, as per the provisions of Section 76B(2) of the Act, 1961.

6. In this petition, a Civil Application was filed by Sendhabhai Veljibhai Chaudhary and Amitbhai Harising Chaudhary to be joined as party respondent Nos.2 and 3 being the members of the Committee of the Society. However, instead of considering as to whether the applicants of the Civil Application No.1 of 2020 be joined as necessary and proper party in the Special Civil Application, with the consent of all the advocates appearing for the respective parties, learned Senior Advocate Mr.Prakash Jani was heard treating the applicants as intervener.

7. Facts giving rise to the present petition are as under :

7.1) The petitioner was elected as the Chairman of the Mehsana District Cooperative Page 3 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT Milk Producers' Union Ltd. in the year 2015. A showcause notice was issued by the Registrar, Cooperative Societies under the provisions of Section 76B(1)and(2) of the Act, 1961 on the ground of acting in a manner prejudicial to the interest of the Society.

7.2) The petitioner challenged such notice before this Court. However, the petition was dismissed and the appeal was also dismissed by the Division Bench of this Court. The Registrar passed an order on 10th March, 2015 removing the petitioner from the post of Chairman of the Mehsana District Cooperative Milk Producers' Union Ltd. and further disqualified the petitioner for a period of three years from holding his Office or to participate in any election in any cooperative Society. The petitioner therefore, challenged the order dated 10th March, 2015 by filing Special Civil Application No.9618 of 2015 which was partly allowed by this Court confirming the order dated 10th March, 2015 whereby so far as the removal of the petitioner form the office of the Chairman in exercise of powers under Section 76B(1) of the Act, 1961 was not disturbed but the order disqualifying the petitioner to hold or to contest election for any office for a period of three years in exercise of the powers under Section 76B(2) of the Act, 1961, was quashed and set aside.

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7.3) The Registrar issued showcause notice to the petitioner under Section 76B(2) of the Act, 1961 to show cause as to why he should not be disqualified for a period of six years. An order dated 16.12.2015 was passed by the Registrar, disqualifying the petitioner for a period of six years from contesting the election of any cooperative society. The petitioner challenged the said order by preferring Special Civil Application No.177 of 2016 which was partly allowed by order dated 18.01.2016 reducing the period of disqualification to three years. The Division Bench of this Court by order dated 28.01.2016 passed in Letters Patent Appeal No.55 of 2016 confirmed the order passed by the learned Single Judge. The Supreme Court by order dated 17.04.2017, confirmed both removal and disqualification for a period of three years by dismissing the appeals filed by the petitioner as well as the respondentState.

7.4) Thus, the petitioner was disqualified under Section 76B(2) for a period of three years from 16.12.2015 i.e. up to 15.12.2018. However, the petitioner was elected as member of Managing Committee of the Society on 2nd July, 2017 for a period of five years i.e. up to 1st July, 2022.

7.5) The respondentDistrict Registrar, by letter dated 9th October, 2019, requested the Page 5 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT Society to remove the petitioner as the member of the Managing Committee. However, as no action was taken by the Society, by letter dated 6th June, 2020, the respondent informed the Society that though the petitioner has been disqualified from becoming the member of any Society by order dated 16.12.2015, he could not have been continued as member of the Society. The Society by letter dated 12th June, 2020 informed the respondentDistrict Registrar that the period of disqualification was reduced to three years and as such period is already over in the year 2018, no action is required to be taken as per Rule 32 of the Gujarat Cooperative Societies Rules, 1965 (for short 'the Rules, 1965').

7.6) The respondentRegistrar, thereafter issued showcause notice dated 30th July, 2020 calling upon the petitioner to show cause as to why he should not be removed as member of the Society under the provisions of Section 76B(1) of the Act, 1961 because the petitioner was elected as a member of the Committee of the Society, though the petitioner was disqualified for a period of three years up to 2018, which was confirmed by the Supreme Court. The petitioner preferred Revision Application challenging the showcause notice before the Additional Registrar (Appeals) in Revision Application No.21 of 2020. The Additional Registrar issued notice and fixed the date of Page 6 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT hearing on 26th August, 2020.

7.7) The petitioner therefore prayed for adjournment before the respondent on the ground that Revision Application is pending before the appellate authority to postpone the hearing of showcause notice to 10th August, 2020. The respondent therefore, adjourned the hearing to 27th August, 2020. The Additional Registrar (Appeals) adjourned the hearing of the appeal to 7th September, 2020. The petitioner therefore, informed the District Registrar to adjourn the hearing after 7th September, 2020. Accordingly, the hearing of the showcause notice was adjourned to 8th September, 2020 by the respondent.

7.8) According to the petitioner, he resigned as a member of the Managing Committee of the Society on 7th September, 2020. It is the case of the petitioner that the petitioner orally requested the respondent that he has tendered the resignation. The petitioner however, made an application on 8th September, 2020 before the respondentDistrict Registrar seeking adjournment on the ground that the appeal is pending before the appellate authority.

7.9) On 9th September, 2020, the respondent passed the impugned order, removing the Page 7 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT petitioner as a member of the Society under Section 76B(1) of the Act, 1961, and according to the respondent, the said order was sealed and sent for dispatch on the same day.

7.10) It is the case of the petitioner that the Society, in its meeting held on 10th September, 2020, accepted the resignation of the petitioner. The petitioner therefore, informed the respondent District Registrar that he has resigned from the Society and his resignation was accepted and therefore, the proceedings of showcause notice dated 30th July, 2020 be dropped.

7.11) It appears that thereafter, the impugned order dated 9th September, 2020 was dispatched by the department and served upon the petitioner on 14th September, 2020.

7.12) The petitioner thereafter, preferred this petition on 17th September, 2020 and during the pendency of the petition, the showcause notice dated 22nd September, 2020 was issued by the respondent under Section 76B(2) of the Act, 1961. The petitioner has therefore, challenged such showcause notice dated 22nd September, 2020 by filing a draft amendment which was granted by this Court and the matter was heard on 1st October, 2020 by passing the following order:

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"Heard learned Senior Advocate Mr. Mihir Thakore assisted by learned advocate Mr. Dipen Desai for the petitioner, learned Senior Advocate Mr. P.K. Jani for the Charada Dudh Utpadak Sahakari Mandali Ltd., and learned Assistant Government Pleader Mr. Hardik Soni for the respondentState through video conference.

Learned Senior Advocate Mr.Mihir Thakore for the petitioner has tendered a draft amendment. Draft amendment is allowed in terms of the draft. To be carriedout in due course.

Learned AGP Mr.Soni states that learned Advocate General has instructions to appear in this matter. He further makes a statement under the instructions of the respondent that no decision will be taken with regard to the show cause notice dated 22nd September 2020 issued by the respondent for taking action under Section 76B(2) of the Gujarat Cooperative Societies Act, 1961 till the next date of hearing.

Stand over to 12th October, 2020.

Learned Senior Advocate Mr. Prakash K. Jani appears on caveat and on advance copy on behalf of one of the members of the Managing Committee of the Charada Dudh Utpadak Sahakari Mandali Ltd. As Mr.Jani has not filed any application for joining as party in the present petition, he may do so and such application shall be considered on merits on the next date of hearing."

Submissions on behalf of the petitioner :

8. Learned Senior Advocate Mr.Mihir Thakore assisted by learned advocate Mr.Dipen Desai submitted that the impugned order dated 09.09.2020 passed by the respondent is without Page 9 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT jurisdiction, as the respondent could not have initiated proceedings under Section 76B(1) of the Act, 1961. It was submitted that the provisions of Section 76B(1) of the Act, 1961 can be invoked only if a member has incurred disqualification after such member is elected. Learned Senior Advocate Mr.Thakore relied upon the decision of the Supreme Court in case of Election Commission, India v/s. Saka Venkata Rao reported in AIR 1953 SC 210 to contend that the provisions of Section 76B(1) does not apply in the facts of the case, as the petitioner was already disqualified when he was elected as a member of the Society. It was submitted by Learned Senior Advocate Mr.Thakore that the respondentDistrict Registrar could not have invoked the jurisdiction to remove the petitioner from the post of the member of the Society under the provisions of Section 76B(1) of the Act, 1961 because such powers can be exercised only in the following four eventualities :

i) makes a persistent default, or;

ii) is negligent in performance of the duties imposed on him by the Act or the Rules or the byelaws, or;

iii) does anything which is prejudicial to the interests of the Society, or;

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iv) where he stands disqualified by or under this Act.

9. It was submitted by Learned Senior Advocate Mr. Thakore that in the facts of the case of the petitioner, none of the four eventualities took place after the petitioner was elected as member of the society and therefore, the respondent District Registrar could not have assumed the jurisdiction under section 76B(1) of the Act 1961, to remove the petitioner as the member of the Society.

10. Learned Senior Advocate Mr.Thakore further submitted that Rule 32(1) of the Rules,1965 applies to both the situations of pre and post election disqualification. However, in the facts of the case, Rule 32(1) is not pressed into service by the respondentDistrict Registrar under section 76B(1) of the Act 1961. Thus according to Learned Senior Advocate Mr. Thakore, provision of section 76B(1) of the Act 1961 applies only to post election disqualification.

11. Learned Senior Advocate Mr.Thakore relied upon the decision of this Court in case of Bhadreshkumar Ramanlal Patel v. State of Gujarat reported in 1999 (3) GLR 2549 in support of his submissions. Learned Senior Advocate Mr.Thakore Page 11 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT submitted that in the said case, the District Registrar refused to exercise the jurisdiction under Section 76B(1) of the Act, 1961 and such refusal was challenged before this Court. In the facts of the said case, the District Registrar refused to take action either under Section 76B or under Section 145U of the Act, 1961 on the ground that only election petition could be maintainable under the provisions of the Act, 1961. Learned Senior Advocate Mr.Thakore heavily relied upon the following observations of this Court in the said judgment:

"7. Section 76B of the Act provides for removal of the member from the office of the society. This provision empowers the Registrar of the co operative society, in his opinion if any officer found defaulter can disqualify by or under the Act. The Registrar after giving an opportunity of being heard, by Order remove such officer and direct the society to elect or appoint a person or a qualified member in the vacancy occurred by such removal and the officer so elected or appointed shall hold office so long only as the officer in whose place he is elected or appointed would have hold if the vacancy had not occurred. It is the contention of the learned Counsel for the petitioner that the Registrar should have exercised its power under Section 76B of the Act, 1961 as the respondent No. 5 stands disqualified under the Act and should have been removed from office rather than to relegate the petitioner to the remedy of the election petition. In his submission in case the respondent No. 5 would have been removed under Section 76B of the Act, 1961 he would have incurred further disqualification to hold or to contest election for any office in the society from which he is removed and in any other Page 12 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT society for a period not exceeding 4 years from the date of the Order. In case the remedy of the election petition would have been resorted to by the petitioners in this case the election of the respondent No. 5 would have been declared to be illegal and he would have been Ordered to be removed from the office of the respondent No.4 but it would hot have been incurred further disqualification as provided under Subsection (1) of Section 76B of the Act, 1961.

8. It is not the case of the petitioner that the alleged disqualification has been incurred by the respondent No. 5 after he was elected as the member of the Board of Directors of the respondent No. 4Society. If we go by the pleadings of the petitioner in this Special Civil Application coupled with the fact that it is also not the contention of the learned Counsel for the petitioner that the respondent No. 5 has incurred disqualification as alleged against him, after his election as the member of the Board of Directors of the Society. The only inference falls from that is that he was already disqualified to contest election for the member of the Board of Directors of the respondent No. 4Society. The first meeting of the Board of Directors was held on 611999 and if we go by the facts of this petition, the petitioners came to know about this disqualification of the respondent No. 5 on 711999. From Section 145F of the Act, I find that if what the petitioners are alleging against the respondent No. 5 is correct then the respondent No. 5 shall be disqualified from being elected as and for being a member of the Committee of the specified society. It is not in dispute that the respondent No. 4 is a specified society and the respondent No. 5 is a salaried employee of a society other than the society of the employees themselves. The Section 145U provides remedy for adjudication of the disputes relating to election of the specified society. Dispute relating to the election of the specified society has to be referred to the Tribunal. As stated earlier, in case the respondent No.5 was Page 13 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT already suffering from this disqualification for being elected as and for being a member of the Committee of the specified society and this dispute, there cannot be two views, relates to election and the remedy for the petitioners in this matter would have been only to file election petition before the Tribunal in view of the provisions of Section 145U of the Act. The approach of the Registrar in this case not to entertain the complaint of the petitioners made against the respondent No. 5 and to observe that only election petition is appropriate remedy cannot be said to be arbitrary or perverse or contrary to the provisions of the Act, 1961. If we go by the provisions of Section 76B of the Act, 1961, coupled with the dispute raised by the petitioners relating to an election of the member of the Board of Directors of the respondentsociety and the provisions of the Section 145U of the said Act in case where the member of the Board of Directors of the Society was already disqualified for being elected as and for being elected as member of the Committee of any specified society this case will certainly not fall within four corners of Section 76B of the Act. It is not the case of the petitioner nor the contention of the learned Counsel for the petitioner before this Court that the dispute which has been raised by the petitioners against the respondent No. 5 does not relate to any election. So this is not in dispute that the complaint made by the petitioners against the respondent No. 5 before the District Registrar is in respect of a dispute relating to election of a person as a member of the Board of Directors of the specified society and the fact that the respondent No. 5 was already suffering from this disqualification earlier to the date of filing of his nomination, the only appropriate and available remedy for decision or/and the adjudication of this dispute is as provided under Section 145U of the Act, 1961. A conjoint reading of Sections 76B and 145U of the Act, 1961 gives out that these provisions work and operate in altogether two different and distinct Page 14 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT fields. Though dividing line of the jurisdiction of the authorities under Sections 76B and 145U of the Act, 1961 may be thin but it clearly remarks the scope of the jurisdiction of the authorities under these two provisions to be exercised. Section 76B of the Act, 1961 is very specific and clear and only in case where after election a member of the Board of Directors of the specified society incurs any disqualification to continue as a member, the power vested with that authority to remove that member from the office. But, where the person who has been elected as a member, was not qualified to contest the election for the office of the member of the Board of Directors of the society and but still his nomination was accepted and he has been elected then only remedy available to the aggrieved party is to file an election petition before the Tribunal as provided under Section 145U of the Act, 1961. In view of this position of the law and the facts of this case the District Registrar has not committed any illegality whatsoever in passing of the impugned Order. In the result, this Special Civil Application fails and the same is dismissed."

12. Learned Senior Advocate Mr.Thakore relying upon the aforesaid decision submitted that, at the most, the petitioner cannot be said to be validly elected member but once he is elected, question of removal does not arise under Section 76B(1) of the Act, 1961 as no further disqualification is incurred by the petitioner after being elected.

13. Learned Senior Advocate Mr.Thakore heavily relied upon the observations made by this Court to the effect that a conjoint reading of Section Page 15 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT 76B and Section 145U of the Act, 1961 provides that these provisions work and operate in altogether two different and distinct fields. Though dividing line of the jurisdiction of the authorities under sections 76B and 145U of the Act, 1961 may be thin but it clearly earmarks the scope of the jurisdiction of the authorities under these two provisions to be exercised. It was therefore, pointed out that the provisions of Section 76B(1) of the Act, 1961 is very specific and clear and only in case where after election a member of the Board of Directors of the specified society incurs any disqualification to continue as a member, such member can be removed while exercising powers under Section 76B(1) of the Act, 1961.

14. Learned Senior Advocate Mr.Thakore thereafter, relied upon the decision of Election Commission, India v/s. Saka Venkata Rao (Supra) and more particularly, the following observations :

"11. In the view we have expressed above as to the applicability of Article 226 to the present case, it is unnecessary to enter upon a discussion of the question whether Article 192(1) applies only to members who, having been already elected, have become subject to a disqualification by reason of events happening after their election; but having heard the point fully argued before us, we think it right to express our opinion thereon, especially as both sides have invited us to do so in view of its general importance.

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12. The relevant provisions of the Constitution on which the determination of the question turns are as follows:

190. (3) If a member of a House of the Legislature of a State

(a) becomes subject to any of the disqualifications mentioned in clause (1) of Article 191 ; or

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant,

191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State

(a) if he holds any office of profit under the Government of India or the Government of any State, specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

192. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion Page 17 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT of the Election Commission and shall act according to such opinion.

193. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State............ when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.

13. As has been stated already, the respondent's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under Article, 191 (1) (e) read with section 7 of the Representation of the People Act, 1951, passed by Parliament, the period of five years since his release on 15th August, 1947, not having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 15th March, 1952, could he be said to have "become" subject to that disqualification within the meaning of Article 192. The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above."

15. Learned Senior Advocate Mr.Thakore thereafter, submitted that the petitioner has already resigned on 7th September, 2020. He invited the attention of the Court to the agenda issued by the Society on 7th September, 2020 to call a meeting on 10th September, 2020 and one of the business referred to in such agenda of the meeting was to consider the resignation tendered by the petitioner. It was Page 18 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT therefore, submitted by Learned Senior Advocate Mr.Thakore that the resignation tendered by the petitioner on 7th September, 2020 cannot be disputed. He further submitted that the resignation of the petitioner was accepted on 10th September, 2020 by the Society in the meeting.

16. Learned Senior Advocate Mr.Thakore further submitted that the resignation from membership of the Committee of the Society is an unilateral act on the part of the petitioner which does not require acceptance. It was submitted that the moment the petitioner tendered his resignation on 7th September, 2020, the act on his part is complete and the petitioner stood resigned as member of the Committee of the Society. It was therefore, submitted that the decision taken on 9th September, 2020 cannot be applied to the petitioner as the petitioner has already resigned prior to the date of the decision or even prior to the communication of the impugned order on 14th September, 2020.

17. In support of his submission, Learned Senior Advocate Mr.Thakore relied upon the decision in case of Union of India and others v. Gopal Chandra Misra and others reported in (1978) 2 Supreme Court Cases 301 to submit that resigning the office is an unilateral act of the petitioner resulting into the relinquishment of Page 19 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT the office which implies cessation or termination from the office.

18. Learned Senior Advocate Mr.Thakore therefore, submitted that the impugned order passed by the respondent after the resignation tendered by the petitioner would become ineffective and infructuous. Learned Senior Advocate Mr.Thakore further relied upon the decision in case of Moti Ram v. Param Dev and another reported in (1993) 2 Supreme Court Cases 725, to submit that the petitioner has resigned from the office as a member of the Committee and such resignation would take effect from the date of communication by the petitioner. It was submitted that there is no provision in the Act 1961 or any of the Rules to accept and notify the resignation of any member of the society and therefore, the resignation tendered by the petitioner has come into effect from 7th September, 2020 and therefore, the impugned order dated 9th September, 2020 removing the petitioner from the office as the member of the society would not survive.

19. Learned Senior Advocate Mr.Thakore thereafter relied upon the decision in case of Sanjay Jain v. National Aviation Company of India Limited reported in (2019) 14 Supreme Court Cases 492, to submit that once the right to resign is exercised properly, the acceptance of such Page 20 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT resignation is not necessary, as it would depend upon the phraseology used in provision for acceptance or any other formality required. It was submitted that in the facts of the case, there is no provision for accepting the resignation or any other formality prescribed either in the Act or the Rules and therefore, it cannot be said that the resignation of the petitioner came into effect on 10th September, 2020 when it was accepted by the Society in its meeting. Learned Senior Advocate Mr.Thakore therefore, submitted that the act of tendering the resignation by the petitioner is an unilateral act on his part as there is no such requirement of acceptance of resignation and therefore, the impugned order would not survive. It was therefore, submitted that the resignation has to be considered from 7th September, 2020 and once the petitioner has resigned there is no question of removing the petitioner as member of the Society.

20. Learned Senior Advocate Mr.Thakore thereafter, relied upon the following observations of the Supreme Court in the case of the petitioner reported in case of the petitioner reported in (2017) 13 Supreme Court Cases 51:

"51. Section 76B(1) contemplates removal of an officer of a society if the Registrar is satisfied that such an officer is guilty of any one of the misconducts specified under the Page 21 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT section. Subsection (2) further authorises the Registrar to disqualify such an officer either to contest or to hold any office in that society from which the officer is removed and also in any other society for a period to be specified by the Registrar subject to a statutory outer limit. From the language of subsection (2), it appears to us that the Registrar is not obliged to disqualify every officer against whom an order of removal under Section 76B(1) is passed. Going by the text of subsection (2) which says that the "Registrar may ...direct that the officer so removed shall be disqualified.....", the power to disqualify is discretionary.

52. The basic requirement of subsection (2) is that the power there under could be exercised only against an officer of a society who has already been removed from office. Therefore, the factual basis on which the action under sub section (1) and subsection (2) of Section 76B is to be taken is bound to be the same though the reasons and logic on the basis of which action under either of the subsections is to be taken could be different. Depending upon the intensity and gravity of the misconduct in a given case, mere action [under Section 76B(1)] of removal from office might suffice and meet the ends of justice. Whereas in some cases action under both the sub sections might be called for. But in no case action only under Section 76B(2) is permissible without taking action under Section 76B(1). It is also possible that in a given case, facts may not only justify but also oblige the Registrar to pass not only an order of removal under subsection (1) but also an order of disqualification under sub section (2) depending upon the nature of the misconduct and the legal obligation flouted by the officer. It all depends upon the facts and circumstances of each and every case and the scheme of the law relevant to such facts. The variables are too many."

21. It was therefore pointed out that the Page 22 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT impugned order passed by the Registrar is nothing but abuse of power exercised by him under Section 76B(1) of the Act, 1961 as it is a discretionary power to be exercised in the facts of the case.

22. Learned Senior Advocate Mr.Thakore submitted that on 8th September, 2020 the petitioner was not present before the District Registrar as he has filed an application for adjournment and without considering or passing any order on such application for adjournment, the respondent District Registrar passed the impugned order dated 09.09.2020 without giving an opportunity of hearing to the petitioner by removing him as the member of the society. It was therefore submitted that there is a breach of principles of natural justice and the respondent has shown an undue haste in passing the impugned order as the respondent was orally informed by the petitioner that he had resigned on 7th September, 2020. Learned Senior Advocate Mr.Thakore submitted that the impugned order passed by the respondent is therefore, required to be quashed and set aside.

23. Learned Senior Advocate Mr.Thakore in the alternative, without prejudice to the other submissions, submitted that assuming that the resignation tendered by the petitioner on 7th September, 2020 cannot be said to be an Page 23 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT unilateral act, then the resignation was accepted by the society on 10th September, 2020 which is prior to the communication of the impugned order dated 9th September, 2020. It was submitted that it is not in dispute that the impugned order was served on 14th September, 2020 and it is also a settled legal position that unless and until the order is communicated, the same would not come into effect. It was therefore, submitted that the impugned order is a nullity as, in any circumstances, the petitioner has already resigned either on 7th September, 2020 or on 10th September, 2020 when his resignation was accepted which is prior to the date of communication of the impugned order.

24. Learned Senior Advocate Mr.Thakore further submitted that in any case Section 76B(1) of the Act, 1961 cannot apply in the facts of the case as the petitioner was not disqualified after he was elected. Learned Senior Advocate Mr.Thakore further submitted that when the impugned show cause notice was issued on 30th July, 2020, the disqualification period of the petitioner was already over in the year 2018 and therefore, on the date of issuance of the show cause notice, the petitioner was not disqualified. It was submitted by Learned Senior Advocate Mr.Thakore that at the most the election of the petitioner could have been challenged under section 96 of the Act, 1961 but the powers and jurisdiction Page 24 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT under section 76B(1) of the Act, 1961 could not have been invoked. Learned Senior Advocate Mr.Thakore further submitted that the showcause notice dated 22nd September, 2020 issued under Section 76B(2) is only with a view to see that the petitioner cannot take part in the election of the Mehsana District Cooperative Societies Limited. It was submitted that the jurisdiction under Section 76B(1) of the Act,1961 was also invoked so as to disqualify the petitioner to become member or to take part in election of any Cooperative Society. It was therefore submitted by Learned Senior Advocate Mr.Thakore that on any count, the impugned order is unsustainable and deserves to be quashed and set aside.

Submissions on behalf of the respondent:

25. Learned Advocate General Mr. Kamal Trivedi assisted by learned Assistant Government Pleader Mr. Vinay Vishen submitted that on perusal of the chronology of events, it is apparent that though the petitioner was aware that he is not qualified to contest election, the petitioner filed nomination on 1st July, 2017. The petitioner has also not disputed that he was disqualified under Section 76B(2) as per the order dated 16.12.2015 for a period of three years to become member or being elected as member of any society.

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26. Learned Advocate General Mr. Trivedi invited the attention of the Court to the fact that though the petitioner was already a member of the Co operative Society and without tendering his resignation, he again stood in the election of the Society. It was therefore submitted that the conduct of the petitioner is contrary to the provisions of the statute as well as the orders passed by this Court and the Supreme Court.

27. Learned Advocate General Mr. Trivedi thereafter referred to Rule 32 of the Rules which provides for qualifications for the members of the committee and more particularly, Subrule(c) and Rule 32(1A) of the Rules to point out that Rule 32 and provision of Section 76B are independent provisions. Reference was also made to provisions of Section 145A to 145Z of the Act, 1961 which provides for effective measures to be taken with regard to the election of a member of the Society and more particularly, Section 145F and 145U which provide for challenging the election of any member visavis provisions of Section 76B. It was therefore submitted that purposive interpretation is required to be made of Section 76B(1) of the Act, 1961 as the petitioner was disqualified prior to election and continued to be disqualified even after the election as per the order dated 16.12.2015 which has achieved finality for disqualification period of three years of the petitioner. It was Page 26 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT therefore submitted that the petitioner cannot take the Society for a ride in spite of being disqualified for being a member or being elected as a member of a Society.

28. Learned Advocate General Mr. Trivedi thereafter submitted that there are disputed questions of fact with regard to the resignation tendered by the petitioner as according to the respondent, the petitioner has not tendered any resignation prior to the date of the impugned order i.e. 09.09.2020 as the resignation of the petitioner was accepted by the Society on 10.09.2020. Learned Advocate General thereafter submitted that the petition is also not required to be entertained in view of the alternative remedy available to the petitioner by preferring a Revision under Section 155 of the Act, 1961. Reliance was placed on the decision of this Court in case of Mukesh Bhavarlal Bhandari and others v/s. UCO Bank and others reported in 2016 SCC OnLine Guj 3884 and Union of India v/s. Major General Shrikant Sharma and another reported in 2015 (6) Supreme Court Cases 773. With regard to the submission that petition is not required to be entertained in view of the disputed questions of fact, reliance was placed in case of State of Kerala v/s. M.K.Jose reported in (2015) 9 Supreme Court Cases 433 and in case of Nayna d/o Dnyanoba Pawar (Patil) v/s. Vimal w/o Nandkishor Mundada reported in 2008(3) Page 27 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT Mh.L.J. 156

29. Thereafter, reference was made to Section 22(2A) of the Act, 1961 to point out the person who can become a member of the Society. Reliance was placed on the provisions of second proviso to Section 36 with regard to the communication of the order and Section 153(4) of the Act, 1961 to point out that the order passed under Section 76B comes into effect from the date of the order and not from the date of communication. Learned Advocate General submitted that, therefore, the impugned order dated 09.09.2020 passed by the respondent comes into effect from the same day as the same was dispatched which is evident from extract of the outward Register produced on record.

30. Learned Advocate General thereafter submitted that the act of tendering of resignation is a bilateral act and not an unilateral act as canvassed on behalf of the petitioner. In support of such submission, it was pointed out that the reliance placed by the petitioner on the judgment in case of Gopal Chandra Misra and others (supra) cannot be applied in the facts of the case, as in the said case facts pertained to resignation of a sitting High Court Judge and petitioner cannot claim parity with constitutional authority and contend that fact of resignation by member of a Cooperative Page 28 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT Society is an unilateral act. It was submitted that the constitutional provision prescribes unilateral act on the part of the sitting High Court Judge to tender the resignation and therefore, the same cannot be made applicable in the facts of the present case.

31. Reliance was placed on the decision in case of Dr. Baljit Singh v. State of Haryana reported in (1997) 1 Supreme Court Cases 754 to submit that until the acceptance of the resignation is communicated, the petitioner continues to remain as member of Society and petitioner cannot be said to have resigned or relinquished his post as a member of the Society.

32. Learned Advocate General further submitted that there is no violation of principles of natural justice as alleged by the petitioner by passing the impugned order dated 09.09.2020. It was submitted that the petitioner was given sufficient opportunity of hearing by the respondent authority, however, the petitioner never availed such opportunity and prayed for time on one pretext or another. It was submitted that even on 08.09.2020, the petitioner did not remain present for hearing and forwarded a stereotyped application seeking adjournment and no disclosure was made by the petitioner with regard to his resignation alleged to have been tendered on 7th September, 2020. It was therefore Page 29 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT submitted that such conduct of the petitioner clearly shows that the petitioner never resigned on 7th September, 2020 and the grievance made by the petitioner with regard to the violation of the principles of natural justice cannot be sustained in the facts of the case. Reliance was placed on the decision of Roshan Lal Mehra v/s. Iswhwar Dass reported in AIR 1962 Supreme Court 646 to submit that the rules of natural justice have to be inferred from the nature of tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute. It was submitted that mere circumstances that the procedure prescribed by the statute does not require that the evidence should be recorded in the manner laid down for ordinary courts of law and absence thereof does not necessarily mean that there is a violation of principles of natural justice. It was therefore submitted that in the facts of the case when it is not in dispute that the petitioner was disqualified and continued to be disqualified and hence he is required to be removed from the post of member of the Society while exercising the powers under Section 76B(1) of the Act, 1961. With regard to the principal contention of the petitioner that the petitioner ought to have been disqualified after he was elected, so as to invoke the provision of Section 76B(1) of the Act, 1961, it was submitted that the petitioner cannot be said Page 30 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT to be qualified even though he is disqualified at the time of being elected. It was pointed out that the petitioner continued to remain disqualified even after his election and therefore, the fourth eventuality prescribed under provisions of Section 76B(1) of the Act, 1961, as petitioner stands disqualified, would give jurisdiction to the respondent to remove the petitioner as a member of the Society. It was therefore submitted that no interference is required to be made while exercising powers under Article 227 of the Constitution of India in the impugned order dated 09.09.2020 passed under Section 76B(1) of the Act, 1961.

Submissions on behalf of the intervener:

33. Learned Senior Advocate Mr.Prakash Jani assisted by learned advocate Mr. Shivang Jani submitted that the petitioner stands disqualified by virtue of the order dated 16.12.2015 even after he was elected. He further submitted that the point at which proceedings for disqualification should have been initiated is not material as the petitioner incurred the disqualification for three years on 16.12.2015. The petitioner was a member of the Cooperative Society even after he was disqualified as per the order passed by the Supreme Court and he ought to have resigned.

Learned Senior Advocate Mr.Jani referred to the dates of decision of this Court as well as the Page 31 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT Supreme Court and pointed out that the petitioner continued to be member of the Society till 31.05.2017 flouting the directions issued by the Apex Court and contested election on 02.07.2017 for another five years. It was therefore, submitted that the point of determination of disqualification of the petitioner is 2nd July, 2017 which is falling within the three years of disqualification from 2015 to 2018. Learned Senior Advocate Mr.Jani heavily relied upon the following decisions of the Supreme Court :

i) Pundalik v/s. District Deputy Registrar, Co operative Societies, Chandrapur and others reported in (1991) 2 Supreme Court Cases 423, wherein it is observed as under :

"11. Mr. Sanghi, however, submits that the expression, "makes default" or "stands disqualified" being in present the default must have been committed after the coming into force of section 73FF and that his default even, if any, was prior to that date and not after that date. We are unable to persuade ourselves to accept this submission. The day an instalment falls due on its due date failure to pay results in default and that default continues from day to day until it is repaid. Every day thereafter until payment results in making of default and, therefore, it could not be said that default could be on the due date only and thereafter no default but only liability. Considered by this principle the appellant can be said to have made default on the first day of his directorship and on every subsequent day till the instalment or instalments were paid. The submission, has Page 32 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT therefore, to be rejected.

12 Similarly the submission that the default must have been one committed after the Act came into force has also to be rejected on the same ground that immediately on the Act coming into force the appellant was a defaulter and so long that default continued he must be taken to have made default until repayment."

ii) Rajendra Singh Rana and others v. Swami Prasad Maurya and others reported in (2007) 4 Supreme Court Cases 270, wherein it is observed as under :

"31. Considerable arguments were addressed on the scope of paragraph 2 and paragraph 3 of the Tenth Schedule with particular reference to the point of time that must be considered to be relevant. Whereas it was argued on behalf of leader of B.S.P. that the liability or disability is incurred at the point of voluntarily giving up the membership of the political party, according to the 37 M.L.As. who left, the relevant point of time is the time when the Speaker takes a decision on the plea for disqualification. As a corollary to the above, the contention on the one side is that if on the day the disqualification is incurred there has been no split in terms of paragraph 3, those disqualified who had given up their membership of the party must be declared disqualified, the argument on the other side is that if by the time the Speaker takes the decision, the persons sought to be disqualified are able to show that there has been a split in the original party and by that time they have a strength of Page 1012 one third of the Legislature party, the Speaker will have necessarily to accept the split and reject the petition for disqualification. In other words, Page 33 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT according to this argument all developments until the point of decision by the Speaker are to be taken note of by him, while deciding the question of disqualification. They canvas the acceptance of what the learned Chief Justice of the High Court has called the snowballing effect of persons severing their connections with the original party and joining the quitters subsequently and not confining the decision to the point of their alleged severing their connection with the original party."

iii) Shrimanth Balasaheb Patil v. Speaker Karnataka Legislative Assembly and others reported in 2020 (2) Supreme Court Cases 595 wherein it is observed as under :

"85. It was also contended by the Petitioners that the Speaker did not have the jurisdiction to deal with disqualification petitions, as the Petitioners having resigned were no longer members who could have been disqualified. This issue does not apply to the Petitioners in Writ Petition (C) No. 992 of 2019 and Writ Petition (C) No. 1003 of 2019 as they did not tender their resignation.

88. Therefore, it can be clearly concluded that the Tenth Schedule was brought in to cure the evil of defection recognising the significant impact it has on the health of our democracy. The 91st Constitutional Amendment also strengthens the aforesaid view that the law needed further strengthening in order to curb the evil of defection. The aforesaid amendment introduced Articles 75(1B), 164(1B) and 361B in the Constitution. These provisions bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is reelected to the legislature, whichever is earlier.

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93. As such, there is no doubt that the disqualification relates to the date when such act of defection takes place. The tendering of resignation does not have a bearing on the jurisdiction of the Speaker in this regard. At this point we may allude to the case of D. Sanjeevayya v. Election Tribunal, Andhra Pradesh, AIR 1967 SC 1211, wherein this Court has held that:

"5.It is, therefore, not permissible, in the present case, to interpret Section 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election and secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature, whatever the reason for his resignation may be..."

Therefore, the aforesaid principle may be adopted accordingly, wherein the taint of disqualification does not vaporise, on resignation, provided the defection has happened prior to the date of resignation."

34. With regard to the reliance placed on the decision of the Supreme Court in case of Election Commission, India v/s. Saka Venkata Rao(Supra), it was submitted that the same would not be applicable in the facts of the case as in the said decision, the petitioner had Page 35 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT incurred the disqualification. Reference was made to the provisions of Section 7(B), 36(1), 80 and 100 of the Representation of the People Act to submit that provisions of Section 76B(1) is totally different than that of the Article 192 and therefore, the disqualification incurred by the petitioner pursuant to the order dated 16.12.2015 continues even after he was elected as member of the Society. It was submitted that the impugned order is passed only to give effect to the order dated 16.12.2015 passed under section 78(B) of the Act,1961.

35. Learned Senior Advocate Mr.Jani thereafter submitted that considering the irregularities committed by the petitioner being Chairman of the Mehsana District Cooperative Societies Limited, the petitioner was disqualified which was confirmed up to the Apex Court and therefore, the petitioner cannot now have a back door entry relying upon the wrong interpretation of the Section 76B(1) of the Act,1961 by adopting tactic of tendering resignation. It was submitted that the petitioner has complete disregard to the statute as well as the decision given by this Court as well as the Apex Court and therefore, the petitioner cannot be continued as a member of the Society.

36. Thereafter, Learned Senior Advocate Mr.Jani referred to the byelaws of the Society and more Page 36 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT particularly, byelaw Nos.10(2), 18 and 25 which clearly provides that the Committee cannot accept the resignation of the member and such resignation is required to be accepted in general or special meeting of all the members. It was therefore submitted that the acceptance of the resignation of the petitioner by the Committee on 10th September, 2020 is contrary to the byelaws of the Society.

37. It was therefore submitted that in view of the admitted fact that the petitioner was not qualified to contest the election and thereafter to continue as a member of the Society, the respondent has rightly exercised the powers under Section 76B(1) of the Act, 1961.

Rejoinder of the petitioner:

38. Learned Senior Advocate Mr.Thakore submitted that there are no disputed question of facts except the resignation tendered by the petitioner on 7th September, 2020. It was submitted that the language of Section 76B of the Act, 1961 is clear and unambiguous and the provision of Section 76B can be applied only after the person is elected and not prior to his election. Learned Senior Advocate Mr.Thakore reiterated the decision in case of Election Commission, India v/s. Saka Venkata Rao (supra) to submit that the nature of works are identical moreso in view of earlier three eventualities Page 37 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT stated in Section 76B(1) of the Act, 1961. Learned Senior Advocate Mr.Thakore submitted that the word "stands" is equal to word "incurs" as per Article 190 of the Constitution of India. With regard to the judgment of Pundalik (Supra) relied upon by Learned Senior Advocate Mr.Jani, it was submitted that in the said case the interpretation of newly inserted Section 73FF was considered by the Apex Court and therefore, the said decision would not be applicable in the facts of the present case. It was therefore, pointed out that once the petitioner was not disqualified after being elected, as contemplated by Section 76B(1)of the Act,1961, the impugned order passed by the respondent is without jurisdiction and therefore, liable to be quashed and set aside. Learned Senior Advocate Mr.Thakore reiterated that the act of tendering resignation by the petitioner is unilateral as in all electoral post there is no need to accept the resignation by the authority. Reference was made to the decision in case of Motiram v. Param Dev and another reported in (1993) 2 Supreme Court Cases 725 and more particularly, paragraph Nos.18, 20 and 23 to submit that there is no provision of acceptance either in the Act or in the Rules. It was therefore submitted that impugned order being without any jurisdiction is liable to be quashed.

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Analysis:

39. Having heard the learned advocates for the respective parties and having gone through the materials available on record, it is an admitted fact that the petitioner was disqualified to become a member or to be elected as a member of any Cooperative Society for a period of three years from 16.12.2015, as per the order passed by the District Registrar which was confirmed up to the Apex Court.

40. In spite of such disqualification, the petitioner ventured to contest the election of the Society on 02.07.2017 during the period of disqualification. The conduct of the petitioner is very clear that he has total disregard to the orders passed by this Court as well as the Apex Court whereby he was disqualified to contest the election or to become a member of any Co operative Society.

41. In the above context, it would be germane to refer to the provision of Section 76B of the Act 1961 which reads thus:

"76(B) Removal of officer (1) If, in the opinion of the Registrar, any officer makes persistent default or is negligent in performance of the duties imposed on him by this Act or the rules or the byelaws or does anything which is prejudicial to the interests Page 39 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT of the society or where he stands disqualified by or under this Act, the Registrar may, after giving the officer an opportunity of being heard, by order remove such officer and direct the society to elect or appoint a person or a qualified member in the vacancy caused by such removal and the officer so elected or appointed shall hold office so long only as the officer in whose place he is elected or appointed would have held if the vacancy had not occurred.

(2) The Registrar may, by order, direct that the officer so removed shall be disqualified to hold or to contest election for any office in the society from which he is removed and in any other society for a period not exceeding six years from the date of the order and such officer shall stand disqualified accordingly."

42. On perusal of the provision of Section 76B(1) of the Act, 1961 it is clear that the respondentDistrict Registrar can initiate proceedings to remove a member of the Society who is an officer under Section 2(14) of the Act, 1961 if he stands disqualified by or under the provisions of the Act. In the facts of the case, the respondent has initiated proceedings only on the ground that the petitioner stands disqualified by or under the Act.

43. The submissions made on behalf of the petitioners are quite attractive, inasmuch as, it was tried to canvas that the petitioner was not disqualified after he was elected as a member of the Society. It was pointed out that the petitioner was already disqualified and Page 40 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT therefore, the provisions of Section 76B(1) of the Act, 1961 cannot be applied in the case of the petitioner. However such argument is nothing but a fallacy because it is true that the petitioner was disqualified to contest the election and therefore, the act of election can be contested or can be questioned in election petition under Section 96 of the Act, 1961. However, the petitioner continued to be disqualified even after being elected as per the order dated 16.12.2015 passed under Section 76B(2) of the Act which prohibits the petitioner from becoming a member of any Cooperative Society. Thus, the petitioner stood disqualified even as a member of the Society and therefore, the reliance placed on the decision of Supreme Court in case of Election Commission, India v/s. Saka Venkata Rao (supra), cannot be applied in the facts of the case as the facts in the said decision before the Supreme Court, the facts are very clear as is evident from the paragraphs reproduced here under:

"11. In the view we have expressed above as to the applicability of Article 226 to the present case, it is unnecessary to enter upon a discussion of the question whether Article 192(1) applies only to members who, having been already elected, have become subject to a disqualification by reason of events happening after their election; but having heard the point fully argued before us, we think it right to express our opinion thereon, especially as both sides have invited us to do so in view of its general importance.

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12. The relevant provisions of the Constitution on which the determination of the question turns are as follows:

190. (3) If a member of a House of the Legislature of a State

(a) becomes subject to any of the disqualifications mentioned in clause (1) of Article 191 ; or

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant,

191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State

(a) if he holds any office of profit under the Government of India or the Government of any State, specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

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(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

13. As has been stated already, the respondent's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under Article, 191 (1)

(e) read with section 7 of the Representation of the People Act, 1951, passed by Parliament, the period of five years since his release on 15th August, 1947, not having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 15th March, 1952, could he be said to have "become" subject to that disqualification within the meaning of Article 192. The rival contentions of the parties centered round the true interpretation to be placed on that word in the context of the provisions quoted above.

13. As has been stated already, the respondent's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under Article 191(1)

(e) read with Section 7 of the Representation of the People Act, 1951, passed by Parliament, the period of five years since his release on 1581947, not Page 43 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 1531952, could he be said to have "become" subject to that disqualification within the meaning of Article 192. The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above.

14. The Attorney General argued that the whole fasciculus of the provisions dealing with "disqualifications of members" viz. Articles 190 to 193, should be read together, and as Articles 191 and 193 clearly cover both preexisting and supervening disqualifications, Articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in Articles 190(3) and 192(1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and Article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both preexisting and supervening disqualifications; but it does not necessarily follow that Articles 190(3) and 192(1) must also be taken to cover both.

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Their meaning must depend on the language used which, we think, is reasonably plain. In our opinion these two articles go together and provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words "becomes subject" in Article 190(3) and "has become subject" in Article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in Article 190(3) can equally be applied to a preexisting disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney General admitted that if the word "is" were substituted for "becomes" or "has become", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used.

15. It was said that on the view that Articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under Article 329 of the Constitution read with Section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent's Page 45 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT construction of the constitutional provisions. On the other hand, the Attorney General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under Article 192 and by the Election Tribunal inquiring into an election petition under Section 100 of the Parliamentary statute referrred to above.

16. For the reasons indicated we agree with the learned Judge below in holding that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent's disqualification which arose long before his election."

44. From the above facts and the decision of the Supreme Court, it is clear that the person ought to have incurred disqualification after being elected so as to remove him as an elected member. However, in the facts of the case, the petitioner continued to be disqualified to hold the post of member for a period of three years which was not the case before the Apex Court and in such circumstances, the reliance placed on behalf of the Learned Senior Advocate Mr.Jani in case of Pundalik (supra) would be applicable, as stated in paragraphs reproduced here under:

"8. Chapter XIA of the Act deals with election of committees and officers of certain societies. Admittedly this chapter applies to the Bank. Section 144E deals with disqualification for membership. Under subsection (1) thereof a person shall be disqualified for being elected as, and for Page 46 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT being a, member of the committee of any specified society, ... (e) if he is so disqualified by or under any other provision of this Act. Section 144 2DT deals with disputes relating to election and provides in subsection (1) that notwithstanding anything contained in Section 91 or any other provisions of this Act, any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held or to an officer not below the rank of Additional Commissioner of a Division authorised by the State Government in this behalf. The procedure for an election petition is prescribed by the subsequent sections of that chapter. Admittedly the appellant's election was not called in question under the above provisions. Section 144E, as we have noted, over and above the other specified disqualifications in subsection (1)(e) included disqualifications by or under any other provisions of the Act. Section 78(1) which deals with powers of removal of committees or member thereof provides as follows:

"78. Power of removal of committee or member thereof.-- (1) If, in the opinion of the Registrar, the committee of any society or any member of such committee makes default, or is negligent in the performance of the duties imposed on it or him by this Act or the rules or the byelaws, or commits any act which is prejudicial to the interests of the society or its members, or wilfully disobeys directions issued by the State Government, or by the Registrar for the purposes of securing proper implementation of cooperative policy and development programme approved or undertaken by the State Government or is otherwise not discharging its or his functions properly and diligently and the business of the society has or is likely to come to a standstill, or Page 47 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT where any member of such committee stands disqualified by or under this Act for being a member, the Registrar may, after giving the committee or the member, as the case may be, an opportunity of stating its or his objections, if any, within 15 days from the date of receipt of notice, and after consultation with the federal society to which the society is affiliated; by order--

(a)(i) remove the committee, and

(ii) appoint a committee consisting of three or more members (who shall not be the members of the committee so removed) of the society in its place, or appoint one or more Administrators who need not be the members of the society, but who shall not be the members of the committee so removed, to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, be extended by a further period not exceeding three months so, however, that the total period does not exceed nine months in the aggregate:

Provided that, the Registrar shall have the power to change the committee or any member thereof or the Administrator or Administrators appointed under paragraph (ii) at his discretion even before the expiry of the period specified in the order made under this subsection;

(b)***"

Section 78(1) empowers the Registrar to remove a member of a committee who "makes default" or where any member of such committee "stands disqualified by or under this Act for being a member".

                   Section       73FF       deals       with
                   disqualification    for    membership   of

committee. Subsection (1) provides:

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"73FF. Disqualification for membership of committee.-- (1) Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being a member of a committee, no person shall be eligible for being appointed, nominated, elected, coopted or, for being a member of a committee, if he --

(i) is a defaulter of any society;

Explanation.-- For the purposes of this clause, the term "defaulter" includes--

(a) in the case of a primary agricultural credit society, a member who defaults the repayment of the crop loan on the due date;

(b) in the case of term lending society, a member who defaults the payment of any instalment of the loan granted to him;

***"

Subsection (2) says: "A member who has incurred any disqualification under subsection (1), shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant."

9. This section was inserted by Maharashtra Act, 20 of 1986 with effect from May 12, 1986. If the impugned order is found to have been passed by way of setting aside the election of the appellant the order would be bad as the appellant's election had not been called in question in accordance with the procedure prescribed by the Act. However, the notice has ex facie been issued under Section 78 of the Act. No doubt there is reference to the appellant's having been a defaulter and disqualified for being elected but it has been addressed to the appellant as Director of the Bank and also stated: "You have been elected as Director on the Board of Directors of Chandrapur District Central Cooperative Page 49 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT Bank on August 18, 1986 and today on this date you are working as the Director of the said Bank." It also refers to the appellant's being disqualified "to be elected or to continue as Director or Executive Committee member of the Executive Committee" under Section 73FF of the Act and about ceasing to be a Director by committing default. From the above contents, there is no room for holding that the appellant's election has been set aside by the impugned order; on the other hand, the emphasis is on the appellant's being disqualified to continue as Director or ceasing to be Director on account of his having committed default. The question of generalibus specialia derogant -- special things take from general or generalia specialibus non derogant -- general words do not derogate from special, therefore, does not arise. What was stated in para 36 of the report in Hundraj Kanyalal Sajnani v. Union of India [1990 Supp SCC 577 : AIR 1990 SC 1106 : (1991) 15 ATC 771] will not be relevant. The question of repugnancy involved in Zaverbhai Amaidas v. State of Bombay [(1955) 1 SCR 799 : AIR 1954 SC 851] does not arise in this case. The decision in Maharashtra State Board of Secondary and Higher Secondary Educationv. Paritosh Bhupesh Kumar Sheth [(1984) 4 SCC 27 : (1985) 1 SCR 29] is also not apposite. The provisions relating to election have to be interpreted harmoniously with other provisions of the Act such as in Section 78(1). Interpretare et concordare leges legibus est optimus interpretendi modus. To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation.

10. Mr Sanghi does not dispute that the appellant was in arrear in respect of instalments on the date of his election and till October 21, 1986 i.e. both prior and posterior to his election on August 18, Page 50 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT 1986. Admittedly the instalment was not paid on due date. There was of course some dispute as to the amount of interest payable and appropriation of the amount paid against interest instead of capital but all this would not exonerate the appellant from being in default on non payment of instalment on due date.

11. Mr. Sanghi, however, submits that the expression, "makes default" or "stands disqualified" being in present the default must have been committed after the coming into force of section 73FF and that his default even, if any, was prior to that date and not after that date. We are unable to persuade ourselves to accept this submission. The day an instalment falls due on its due date failure to pay results in default and that default continues from day to day until it is repaid. Every day thereafter until payment results in making of default and, therefore, it could not be said that default could be on the due date only and thereafter no default but only liability. Considered by this principle the appellant can be said to have made default on the first day of his directorship and on every subsequent day till the instalment or instalments were paid. The submission, has therefore, to be rejected.

12. Similarly the submission that the default must have been one committed after the Act came into force has also to be rejected on the same ground that immediately on the Act coming into force the appellant was a defaulter and so long that default continued he must be taken to have made default until repayment.

13. What then would be the consequence of such a default. Subsection (2) of Section 73FF says that a member who has incurred any disqualification under subsection (1) shall cease to be a member of the committee and his seat thereupon be deemed to be Page 51 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT vacant. Therefore, the moment the appellant after election continued to be in default, and, therefore, must be taken to have made default, stood disqualified and thereby ceased to be a member of the committee and his seat deemed to have fallen vacant. In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a Director and his seat already fell vacant. In Keshaorao Narayanrao Patil v. District Deputy Registrar [1987 Mah LJ 709] Bombay High Court held that Section 73FF(2) did not operate automatically and that passing of an order of removal was necessary. This has to be interpreted in the context of the provisions in the section."

45. It is true that the Supreme Court was considering the provisions of Section 73FF of the Cooperative Societies Act. However, the principle would remain the same and insertion of Section 73FF cannot dilute the situation with regard to assumption of jurisdiction under Section 76B(1) of the Act, 1961 because the provisions of Section 76B(1) of the Act, 1961 is unambiguous and does not require any further interpretation as sought to be done on behalf of the petitioner. The petitioner was and continued to be disqualified and therefore, the incidence of election is of no consequence. In such circumstances, reliance placed on behalf of the petitioner on the decision of this Court in case of Bhadreshkumar Ramanlal Patel(Supra) would not be applicable as in the said case, election of the member of the Society was disputed and Page 52 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT therefore, this Court rightly held that the provisions of Section 76B can be resorted to only in case where after election a member of the Society incurs any disqualification to continue as a member and the power is vested with the authority to remove that member from the office. Therefore, when the petitioner was disqualified for a period of three years and continued to be disqualified even after his election, the provision of Section 76B(1) would come into play and accordingly, the respondent authority has rightly exercised the power under Section 76B(1) of the Act, 1961.

46. With regard to the contentions raised on behalf of the petitioner that there is breach of principles of natural justice as the petitioner was not given any opportunity of hearing is concerned, it is an admitted fact that the show cause notice was issued on 30th July, 2020 and thereafter, the petitioner was given an opportunity to represent his case but the petitioner on one pretext or another did not remain present before the authority and therefore, it cannot be said that there is any violation of principles of natural justice. It is also emerging from the record that the petitioner did not remain present on 8th September, 2020 and has forwarded a stereotyped application seeking adjournment which is rightly rejected by the authority by passing the Page 53 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT impugned order on 09.09.2020.

47. With regard to the contention that the resignation tendered by the petitioner is an unilateral act and it comes into effect from 7th September, 2020, is also not tenable in view of the byelaws of the Society relied upon by learned Senior Advocate Mr.Jani, because such resignation is required to be accepted in general or special meeting of the Society and not by the Committee members, as it is done in the facts of the case by holding meeting on 10 th September, 2020. In such circumstances, the submission made on behalf of the petitioner that it is an unilateral act on part of the petitioner to tender resignation cannot be accepted. Reliance placed on behalf of the petitioner in the case of Gopal Chandra Misra and others (supra) and more particularly, on paragraph nos. 25 and 28 which are reproduced as under, clearly shows that the said decision is in case of a sitting High Court Judge who tendered his resignation with a future effect and therefore, it was held by the Apex Court that such resignation cannot be said to be come into effect from the date of resignation :

"25. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give tip or relinquish the office and the concomitant act of its relinquishment, are Page 54 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edn., Vol. 15A, page 80), although the act of relinquishment may take different forms or, assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the, office which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event.

28. The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only. In the first sentence, it is stated: "I beg to resign my office as Judge, High Court of Judicature at Allahabad." Had this sentence stood alone, or been the only content of this letter,, it would operate as a complete resignation in praesenti, involving immediate relinquishment of the office and termination of his tenure as Judge. But this is not so. The first sentence is immediately followed by two more, which read "I will be on leave till 31 .7. 1977. My resignation shall be effective on 1.8.1977.", The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it. Construed as a whole according to its tenor, the. letter dated May 7, 1977, is merely an intimation or notice of, the writer's intention to resign his office as Judge, on a future date, viz., August 1, 1977. For the sake of convenience, we might call this communication as a prospective or potential resignation, but before the arrival of the indicated future, date, it is certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such."

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48. Reliance placed on behalf of the petitioner on such decision cannot be applied in the facts of the case as the petitioner who is a member of the Cooperative Society is governed by the bye laws of the Society as well as the Act and the Rules which otherwise, do not provide for any acceptance of the resignation. However, in the facts of the case , the byelaws of the Society provide for acceptance of resignation with effect from the date of its acceptance in a general or a special meeting of the Society, and thereafter such member cannot continue to hold office as member of the Society. The petitioner was therefore, rightly removed by the impugned order passed by the respondentDistrict Registrar on 9th September, 2020 as the petitioner continued to be member of the Society even on the date of service of such order on 14 th September, 2020 as his resignation was not accepted as per the byelaws of the Society.

49. The contention raised on behalf of the petitioner that the petitioner was not disqualified when the impugned showcause notice was issued on 30th July, 2020 is also not tenable because as per the provisions of Section 76B(1) of the Act, 1961 once the petitioner stood disqualified under the Act, 1961 the powers under Section 76B(1) of the Act, 1961 can be invoked during the period when the petitioner continued to be a member. As the petitioner was Page 56 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT elected as a member from 2017 to 2022, the respondent has the jurisdiction to invoke provisions of Section 76B(1) of the Act, 1961 to remove the petitioner as a member after giving an opportunity of hearing. As the petitioner continued to be a member during the period from 2017 to December, 2018, though he was disqualified to be a member of any Cooperative Society, the respondent has rightly exercised the jurisdiction under provisions of Section 76B(1) of the Act, 1961. The provisions of Section 76B(1) of the Act, 1961 clearly provides that if any officer which includes the member of the Society, stands disqualified by or under the Act, then powers to remove such member can be exercised by the respondent.

50. With regard to the objections raised on behalf of the respondent that alternative remedy is available, it is needless to state that when the petitioner has challenged the impugned order on the ground of lack of jurisdiction by the respondent, the petition is maintainable and is required to be entertained inspite of having alternative remedy in view of the decision in the case of Whirlpool Corpn. V. Registrar of Trade Marks reported in (1998)8 SCC page 1 as under:

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision Page 57 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT 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 one 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 field."

In view of above dictum of law, the petition is maintainable and is accordingly entertained on merits.

51. However, in view of the foregoing reasons and undisputed facts and settled legal position there is no infirmity in the impugned order dated 09.09.2020 passed by the respondent removing the petitioner as member of the society under Section 76B(1) of the Act, 1961 and Page 58 of 59 Downloaded on : Thu Jan 13 06:31:15 IST 2022 C/SCA/11977/2020 CAV JUDGMENT therefore, no interference is called for while exercising extraordinary jurisdiction under Article 227 of the Constitution of India.

52. The petition is accordingly, dismissed. Rule is discharged. In view of dismissal of the petition, no order is required to be passed in civil application for joining party and the same is accordingly disposed of.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR-

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