Desai Jalabne Khengarbhai & vs State Of Gujarat & 9 on 14 July, 2015

[Cites 6, Cited by 0]

Gujarat High Court

Desai Jalabne Khengarbhai & vs State Of Gujarat & 9 on 14 July, 2015

1. In present petition, the petitioners have challenged order dated 17.06.2015 passed by the respondent no.2, whereby the respondent no.2 has appointed / nominated eight persons as "Custodian" in exercise of power conferred under Section 74(D) of the Gujarat Cooperative Societies Act, 1961.

2. At the outset it is relevant and necessary to mention that in view of the dispute and controversy raised in this petition and in view of the subject matter and also by keeping in view the possibility of declaration of election programme the petitioners requested that this petition may be heard and finally decided at the admission stage. Under instructions by learned Additional Advocate General, learned AGP submitted that the respondents also agreed to the said situation and request and they do not have any objection if the matter is heard and finally decided at admission stage. The parties have also Page 2 C/SCA/9929/2015 JUDGMENT declared that pleadings are completed. 2.1 In this view of the matter and to avoid any dispute or doubt or any technical difficulty or objection formal order admitting the petition for final hearing is hereby passed and learned AGP has waived service of process of Rule and the petition is taken up for hearing and final decision in view of above mentioned request and submissions. Mr. Joshi, learned Senior Counsel for the petitioners and Mr. Jani, Additional Advocate General have advanced their respective submissions treating the hearing as final hearing.

3. In view of the controversy and contention raised in present petition it is appropriate to take into account exact relief prayed for by the petitioners and that therefore it is quoted herein below:-

Page 3 C/SCA/9929/2015 JUDGMENT "6(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 17.06.2015 passed by the respondent No. 2 herein at Annexure-A to this petition.

(B) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the order dated 17.06.2015 passed by the respondent No. 2 herein at Annexure-A to the petition."

4. So as to support and justify the relief prayed for in the petition, the petitioners have mentioned factual background in light of which the petition is taken out.

5. The relevant facts which emerge from the petition are that:-

5.1 The petitioners here in were elected as Directors during the election conducted in May-

2011 in the Board of Directors of the Sangh. The term as Directors in the Board of the Sangh Page 4 C/SCA/9929/2015 JUDGMENT expired in May-2014. Thus, on the date when impugned order came to be passed and/or on the date when the order dated 13.04.2015 was passed and so also when the petition came to be filed, the petitioners were not, and as of now they are not members /Directors in the said Sangh. However, the petitioners, as mentioned earlier, have claimed that societies in which they are members and which they represent are members of the Union.

5.2 The Sangh/Union herein is cooperative society registered under the provisions of erstwhile Bombay Cooperative Societies Act, 1985 and is deemed to be a cooperative society registered under the Act of 1961. It is also claimed that the Union is specified society within the meaning of Section 74(c)of the Act and that therefore, the provision XIA of the Act and the provision under Gujarat Specified Cooperative Societies election to Committee Rules, 1982 are applicable Page 5 C/SCA/9929/2015 JUDGMENT to the Union.

5.3 It is not in dispute that the term of the petitioner as Directors of the Union has expired since May 2014. It is also not in dispute that in exercise of power under Section 74(D), the respondent no.2 has appointed Custodian for said Sangh/Union. In certain other proceedings, where the issue related to the provisions under Rule 3(A)(8) of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982 had arisen, certain orders were passed by Hon'ble Division Bench, which were carried before Hon'ble Apex Court and in the said proceedings being Special Leave Petition No.16663 of 2013, Hon'ble Apex Court by interim order directed that preparation of voters list can continue.




5.4    For     clarifying              the       factual   background        in

light     of       which         the     dispute         has    arisen       and

petition        is        taken      out,        the    petitioners        have



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averred and stated that:-

  "2.5    The petitioners submit that against the

aforesaid judgement of the Hon'ble Full Bench of this Hon'ble Court various Special Leave Petitions were preferrred before the Hon'ble Supreme Court of India and the Union also preferred Special Leave Petition which was numbered as Special Leave Petition No.166663 of 2013 and which was thereafter renumbered as Civil Application No. 10420 of 2014. The Hon'ble Supreme Court has passed an interim order in the aforesaid Special Leave Petition to the effect that Collector can continue the process upto preparation of voters list.

2.6 It is submitted that during the pendecy of the proceedings before Full Bench and thereafter before the Hon'ble Supreme Court, elections of specified societies all over the State of Gujarat could not be held and therefore, issue had arisen as regards appointment of Custodian in the specified societies all over the State.

2.7 It is submitted that in one of the said petition being Special Civil Application No. 12264 of 2013 preferred by Jamnagar District Cooperative Ltd., State of Gujarat had declared before the Hon'ble Court that since they are not in a position to conduct the elections because of the pendecy of proceedings with regards to Rule 3(A)(8) and because of amendment in the Act brought about by the 97th Constitutional Amendment, the State of Gujarat declared before the Hon'ble Court that they will not appoint Custodian in any of the specified society and thereby Special Civil Application No. 12264 of 2013 was dispoed of ivde order dated 08.08.2013. 2.9 The petitioners submit that thereafter the Hon'ble Supreme Court dismissed all the civil appeals preferred against the Hon'ble Full Bench vide judgement dated 19.11.2014 and judgement of the Hon'ble Full Bench was confirmed by the Hon'ble Supreme Court.

2.10.It is submitted that therefore, the issue with regards to interpretation of Rule 3(A)(8) has been put at rest and as regards amendment of the Act is Page 7 C/SCA/9929/2015 JUDGMENT concerned, State Legislature has by way of Gujarat Cooperative Societies (Amendment) Act,2013 inserted various provisions in the parent act and has amended the Act bringing it to be in conformity with the constitutional amendment made by way of 97th Constitutional Amendment Act. Therefore, the issue with regards to amendment of the Act has also been put at rest.

2.12 It is submitted that during the pendecy of the Special Leave Petition before the Hon'ble Supreme Court, since the term had expired and elections were to be held, the Union called for resolutions from its member societies by way of public notice dated 16.05.2014.

2.15 The petitioners submit that as stated above the last election of the Union were held in the month of March,2011 and the petitioners herein were elected as Directors and in the first meeting held on 02.01.2011 Shri Vipulbhai Chaudhary was elected as Chairman and the petitioner no.1 Desai Jalaben Kehngarbhai was elected as Vice Chairman. 2.16 The petitioners submit that after the Hon'ble Supreme Court dismissed the Special Leave Petitions the union made a proposal on 02.01.2015 to the Prant Officer and the District Registrar were purpose of holding elections by providing different constituencies in accordance with Rule 3(A)(8). 2.31 The petitioner therefore, had challenged the said order dated 13.04.2015 before this Hon'ble Court by way of Special Civil Application No. 7666 of 2015. In the said petition, this Hon'ble Court had issued notice and is pending for further admission hearing.

2.32 It is relevant to state that the custodian had vide communication dated 21.04.2015 appointed six employees of Gujarat cooperative Milk Markting Federation to look after the working of the Milk Producer's union, which clearly shows that the entire action of appointing custodian was with a view to take over the functioning of the Union by GCMMF which is altogether a different body and is managed by rival group belonging to the party in power.


2.33        It is submitted that at the relevant time,



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vide communication dated 22.04.2015, the managing Director informed the custodian that there are enough officers in the Union to take care of the interest of the Union and conduct of the affairs of the Union in proper manner and there is no need to appoint the officers of Milk Marketing Federation. 2.34 The aforesid order is also challenged in the above referred petition being Special Civil Application No. 7666 of 2015. It is relevant to state that two officers of GCMMF who are not appointed as members of the Custodian committee by the impugned order were also part of the above referred order dated 21.04.2015 who had given charge of the Mehsana Bank producer's Union which substantiates the say of the petitioners.

6. It emerges from the said details that after the term of the elected committee / board expired in May 2014, the election of the board was to be conducted, however, in view of the circumstances mentioned by the petitioner the election was not conducted.

6.1 Section 74(D)of the Act prescribes, inter alia, the reasons for and the circumstances in which a custodian can be appointed. It appears that the respondent Registrar invoked said provision and passed order dated 13.4.2015 and appointed one Mr. M.D.Chauhan, Managing Director, Gujarat Rajya Krishi Bazar Board, Gandhinagar, as Page 9 C/SCA/9929/2015 JUDGMENT the custodian for the union.

6.2 The petitioners have submitted and clarified that said other petition i.e. Special Civil Application No. 7666 of 2015 the order dated 13.4.2015 appointing custodian for the sangh is under substantial challenge on diverse grounds. 6.3 After having passed the above referred order dated 13.4.2015 (appointing Mr. Chauhan as custodian for the union) the said Mr. Chauhan i.e. the custodian had passed an order dated 21.4.2015 and appointed four persons for the union's office at Mehsana and two persons for the union's office at Delhi for carrying out administrative and management activities of the union / sangh.

6.4 Since, the said appointment came to be made while the petition challenging the order dated 13.4.2015 was pending, the petitioners also Page 10 C/SCA/9929/2015 JUDGMENT challenged (by way of amendment) the said order dated 21.4.2015 in the said pending petition. 6.5 It is claimed that subsequently, the respondent No.2 passed order dated 17.6.2015 whereby the respondent No.2 cancelled / modified the earlier order dated 13.4.2015 and appointed a committee comprising eight persons to act as custodian.

6.6 In present petition, it is the said order dated 17.6.2015 which is brought under challenge. 6.7 During the hearing of present petition, the petitioners submitted request dated 03.07.2015 and prayed for permission to amend the petition in terms of Draft Amendment dated 03.07.2015. The said request came to be granted vide order dated 07.07.2015 and in pursuance of the said order, the petitioners have amended the cause title of the petition. By introducing the said amendment, Page 11 C/SCA/9929/2015 JUDGMENT the petitioners have claimed and asserted that the petitioners are duly appointed as representatives of the respective Primary cooperative societies and the said primary societies are members of the Mehsana District Co- operative Milk Producer's Union (herein after referred to as "Sangh" or "Union"). 6.8 The petitioners claim that the members of the Union feel aggrieved by the order dated 17.06.2015 (as well as order dated 13.04.2015 which is impugned by way of separate proceedings)and to ventilate their grievance and to protect their rights, they have taken out present petition.

7. Mr. Joshi, learned Senior counsel for the petitioners assailed the order dated 17.6.2015 on the ground that the order is passed in arbitrary and colourable exercise of powers conferred under Section 74(D) of the Act. He also submitted that Page 12 C/SCA/9929/2015 JUDGMENT according to the provision under Section 74(D), the Registrar is obliged to act independently and take necessary and appropriate decision objectively without any external pressure or influence and by proper application of mind to the facts and circumstances and after satisfying himself about the need; if any, for passing order under the said section or modifying the order earlier passed by him. It is also alleged by the petitioners that the impugned order is passed with ill-intention of taking over the union and or its functions under the influence of or under control of GCMMF. The petitioners have also alleged that the impugned action is taken and the impugned order is passed at the behest of political party or the respondent State and instead of allowing democratically elected committee / board to conduct the business and affairs of the union, such arrangement is made with a view to grabbing control of the union. The petitioners have made specific allegations Page 13 C/SCA/9929/2015 JUDGMENT against most of the members of the committee appointed vide order dated 17.6.2015. It is claimed that the said GCMMF is rival organization and at various levels and in various aspects related to the activities of the said foundation of the union, there is competition and their interests are conflicting. Despite such fact situation, two officers from the GCMMF are appointed in the committee which would adversely affect the interest of the union.

7.1 Besides the allegations against the members of the committee and the contention that the said persons ought not have been appointed as custodian and their appointment is sufficient to establish that the custodian committee is appointed with political influence and malafide intention, the petitioners have claimed and alleged that the impugned order dated 17.6.2015 is passed under direction of the respondent No.1 and not independently and objectively. So as to Page 14 C/SCA/9929/2015 JUDGMENT support and justify the said submission, learned advocate for the petitioner heavily relied on communication dated 10.6.2015 addressed by the Dy. Secretary (Cooperation), Agriculture and Cooperation Department, to the respondent No.2. It is claimed that in the said communication, the respondent No.1 directed the respondent No.2 to relieve Mr. M.D.Chauhan, as custodian, and instead to appoint the persons whose names are mentioned in the said communication dated 10.6.2015 as the custodian and it was in view of the said direction vide communication dated 10.6.2015 that the respondent No.2 passed the impugned order and that therefore, the impugned order deserves to be set aside.

8. Mr. Joshi, learned Senior Counsel for the petitioners relied on below mentioned decisions:-

(1) Mohd. Karim Khan & others vs. Shyam Sunder Shrivastava and others (1987 [supp] Supreme Court Cases 244).

(2) K. Shantharaj vs. M.L. Nagaraj (1997 [6] SCC 37.

(3) Jt. Registrar of Cooperative Societies Kerala Page 15 C/SCA/9929/2015 JUDGMENT vs. T.A. Kuttappan (2000 [6] SCC 127).

(4) State of Madhya Pradesh vs. Sanjay Nagayach (2013 [7] Supreme Court Cases 25).

9. Per contra, Mr. Jani, learned Additional Advocate General, submitted that Section 74(D) provides that the custodian can be an individual or a committee of persons and that therefore, the order which is impugned by the petitioner whereby the committee is appointed as custodian for the union, is in accordance with the provisions contained under Section 74(D) of the Act and that therefore, there is no reason or justification to set aside the said order or to interfere with the said order in any other manner.

9.1 Mr. Jani, learned Additional Advocate General, submitted that the term of the petitioners as Directors of the union expired in May 2014. Thereafter, the petitioners do not hold any position in the committee / board or in the sangh and they are not even members, in the union. In view of such fact, the petitioners, Page 16 C/SCA/9929/2015 JUDGMENT according to learned Additional Advocate General, does not have any locus or right - either legal or fundamental, to submit and maintain and prosecute present petition against the respondents and to challenge appointment of custodian for the union and that therefore, the petition filed by the petitioners (who do not hold any position with the union) is not maintainable.

9.2 Mr. Jani, learned Additional Advocate General, relied on the reply affidavit filed by the respondent No.2 and submitted that the allegations against the members of the committee (custodian) are incorrect and unjustified. Learned Additional Advocate General submitted that the petitioners have taken out the petition out of apprehensions in view of the irregularities allegedly committed during the tenure of the committee / board and its the then chairman (i.e. before appointment of the Page 17 C/SCA/9929/2015 JUDGMENT custodian)and to frustrate any inquiry into such irregularities and that therefore, the petitioners, on one ground or other, want to frustrate appointment of custodian. 9.3 Learned Additional Advocate General also submitted that in pursuance of the directions by the Court in other proceedings, the process of de-limitation is completed and the election for the union will be held within short time. Learned Additional Advocate General, during his submissions, emphasized that there are serious irregularities in the management and conduct of the affairs of the union and accounts of the union are not finalized since long time. Mr. Jani, learned Additional Advocate General, relied on the communication dated 9.6.2015 and submitted that the custodian i.e. the officer who was appointed as custodian by letter dated 13.4.2015 had requested that because of his substantive appointment and other additional charge which he Page 18 C/SCA/9929/2015 JUDGMENT is holding, it would not be possible for him to continue to act as custodian for the union and that he may be relieved and that it was in view of said request that the registrar passed the order dated 17.6.2015.

10. I have heard Mr. Joshi, learned Senior Counsel with Mr. Desai, learned advocate for the petitioners and learned Additional Advocate General for the respondents, at length. 10.1 At the outset it is relevant to deal with respondent's objection against locus of the petitioner to file and maintain this petition. 10.2 With reference to the objection raised by learned Additional Advocate General on the ground that the petitioners do not have any locus to challenge the order in question, the petitioners have, filed an affidavit and in their additional affidavit dated 29.6.2015 the petitioners have Page 19 C/SCA/9929/2015 JUDGMENT asserted and clarified that:-

"2. I say and submit that preliminary contention is raised that the petitioners herein have no locus to challenge the order inasmuch as they are not members of the Union. It is submitted that as such the petitioners are delegates / authorized representatives of the member societies and for filing the present petition, respective societies of which the petitioners are delegates / authorized representatives have by way of separate resolutions of the Board of Directors of each society authorized the petitioners to file a petition before this Hon'ble Court challenging the order dated 17.6.2015.

3. It is submitted that on that basis the present petition is filed by the authorized representatives / delegates of the concerned societies.

It is submitted that as such therefore, the petitioner is by persons, who are representing the societies, but by oversight the names of the societies are not mentioned in the cause-title however, the fact remains that the concerned societies who are members of the Milk Producers Union have authorized the petitioners to file the petition on their behalf. Therefore, the preliminary objection raised by the respondents may not be entertained and the petition be heard on merits."

10.3 So far as the objection on ground petitioners' locus against the maintainability of the petition is concerned, the petitioners have asserted, by way of affidavit that they have preferred the petition as representatives of primary societies and that the primary societies represented by the petitioners are members of the sangh and the petitioners are members of those Page 20 C/SCA/9929/2015 JUDGMENT primary societies.

10.4 On this count, the Court is of the view that it is not just or proper to accept a submission which grants immunity to the decisions and actions of the Registrar when one one hand, the term of the committee has expired and on the other hand election for a new committee is not held. It is pertinent that if such contention is accepted, then the Registrar or respondent No.1 can achieve his object of taking all sorts of decisions, sustainable or unsustainable, in cases where the term of the body has expired, merely by delaying election for fresh body. 10.5. It is also pertinent that when the exercise of power by statutory authorities is challenged on ground of colourable exercise of power or exercise of power under external influence or pressure, then such challenge, even if espoused or sponsored by single person may, in given set of facts and circumstances, be entertained at the Page 21 C/SCA/9929/2015 JUDGMENT discretion of the Court, though majority members may remain silent spectator constituting silent majority. Having regard to these aspects and for said reasons the objection raised by learned Additional Advocate General is not accepted.

11. The decision vide order dated 17.6.2015 appointing a committee comprising 8 members to act as custodian for the Sangh is brought under challenge by 11 petitioners.

12. After having appointed a "person" i.e. an individual vide order dated 13.4.2015 the respondent No. 2 modified the said order and appointed a committee comprising 8 members to act as custodian.

12.1 Neither the order dated 13.4.2015 nor the decision and action of appointing a person as custodian in exercise of power under Section 74D is under challenge in present petition. Therefore the Court would refrain from making any Page 22 C/SCA/9929/2015 JUDGMENT observation or expressing any view with regard to the order dated 13.4.2015 and / or with regard to the appointment of custodian for the sangh and / or exercise of power conferred on the respondent No. 2 to appoint custodian for any cooperative society.

12.2 In this context it is clarified that any observation in present order with reference to the order dated 13.4.2015 are only prima facie and are not expression of final view of this court on that count but are made only to address and decide the issue on hand in this petition i.e. with regard to the challenge raised in present proceedings against order dated 17.6.2015.

13. So as to appreciate and consider the contention raised by the petitioners and rival submissions by the respondents it is necessary to take into account the provision under Section 74D Page 23 C/SCA/9929/2015 JUDGMENT which would clarify the circumstances in which the Registrar can appoint custodian and the manner in which said power can be exercised and appointment can be made. The said section 74D reads thus:-

"74D. Appointment of Custodian in certain circumstances:-

(1) Where in respect of any society including a society existing immediately before the commencement of the Gujarat Co-operative Societies (Amendment) Act, 2015 (Guj.12 of 2015), a new committee of management is, for any reason whatsoever, not elected before the expiry of the term of office of members of a committee of management of such society or having been elected not functioning within a period of three months (not being a committee referred to in section 80A), except for the reason of order of the competent court due to which such election could not be held or the managing committee could not start functioning, the registrar shall by an order in writing, appoint a person or a committee of persons to be the Custodian of the society for a period of one year or until a new committee of management is elected or, as the case may be, starts functioning.

(2) The Custodian shall arrange to hold election of such society within a period of one year and the committee shall be constituted before the expiration of that period.

(3) The Custodian so appointed shall, subject to the control of the Registrar and to such instructions as Page 24 C/SCA/9929/2015 JUDGMENT he may form time to time given, have powers to exercise all or any of the functions of the committee and take all such actions as may be required in the interest of the society.

(4) All acts done or purported to be done by the Custodian during the period when the affairs of the society are carried on by such Custodian, shall be binding on the new committee of management."

14. It emerges from the plain reading of the said provision that the registrar (i.e. present respondent No. 2) is competent to appoint "a person" or "a committee of persons" as "custodian" for a society where, before the commencement of Amendment Act 2015 new committee is not elected before expiry of the term of the office of the members of the committee or where the committee has not commenced function (except for reason of order by the Court) 14.1 The said provision also prescribes that the custodian shall arrange to hold election of such society within period of one year. The Sub- section (2) of section 74D further provides that the custodian appointed by the Registrar shall Page 25 C/SCA/9929/2015 JUDGMENT have all power of the committee of management of the society and the custodian so appointed can take all such actions as may be required in the interest of the society. The principal and primary function of the custodian, according to Section 74(D), is to hold election / to ensure that the election is held within period of one year. It is also duty and function of the custodian to protect, and to take steps for safeguarding, interest of the society and that for said purpose the custodian can exercise all powers of committee of management and that all acts done or purported to be done by the custodian shall be binding on the new committee of management of the society.

14.2 Once it is acknowledged and accepted that the registrar has power and discretion to appoint (provided circumstances contemplated under sub- section (1) of section 74(D) exist) either a person or a committee of persons as custodian Page 26 C/SCA/9929/2015 JUDGMENT then the next question which would arise for consideration by the Court would be about the nature and extent of judicial review with regard to the decision taken by the registrar because the Court's inquiry in respect of the impugned decision would be circumscribed and limited to extent permissible in exercise of Court's jurisdiction by way of judicial review of a decision taken by statutory authority. 14.3 Therefore, when, the power to appoint custodian exists and in exercise of such power any decision or action is taken, then the limited aspect (related to the order or action) for which may arise for consideration by the Court would be whether such power is exercised arbitrarily and / or whether the action / order is or whether the exercise of power if tainted by extraneous consideration.

15. So far as present case is concerned this Page 27 C/SCA/9929/2015 JUDGMENT aspect will have to be examined in light of the facts which have emerged from the material placed on record of this petition and from the rival contention raised by contesting party. 15.1 The petitioners have assailed the order dated 17.6.2015 on the ground it is actuated by malafide and the respondent passed the said order under influence of and in view of the directions by respondent No. 1. Of course the respondents have denied such allegation and contentions. The respondent No. 2 has filed affidavit and submitted that the decision dated 13.4.2015 came to be modified because the person appointed as custodian vide order dated 13.4.2015 himself desired that he may be relieved from the said duty.

15.2 The petitioners have alleged that the said 8 persons nominated in the committee are not fit or qualified to be custodian inasmuch their track Page 28 C/SCA/9929/2015 JUDGMENT record is tainted which disqualify them to be custodian for the union they have political interest and agenda which is adverse to the interest of the union.

15.3 On the other hand the respondent No. 2 has, by placing details regarding credentials of said persons denied the allegations by the petitioners.

15.4 On this count it is relevant and necessary to mention that learned Senior Counsel for the petitioners, while assailing the nomination of the person comprising committee appointed by respondent No. 2 as custodian had initially raised objection with reference to all 8 members however, after considering the reply filed by the respondents he fairly submitted that so far as the person whose names are mentioned at serial Nos. 1 to 8 (in the order) the petitioners do not have any objection against said two persons.




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15.5    The       allegations    against   the   persons     who

comprise the committee are thus stated by the petitioners:-

"8. In furtherance of the contentions raised in the petition, it is submitted that the respondent NO. 4- Ashokbhai Chaudhari and respondent No.7- Maheshbhai Chaudhari are the persons who had complained against the erstwhile members of the managing committee of the union. It is submitted that earlier a representation was made on 21.10.2013 to the Hon'ble Minister, wherein Shri Maheshbhai Chaudhari is signatory. Further, recently, a Mehsana Dairly Dudh Utpadak Hit Reakshak Samiti is constituted, wherein, they have made grievances against the erstwhile chairman and meeting of the milk producers was called on 25.4.2015 as invitees of the said meeting Ashokbhai Cahudhari and Maheshbhai Chaudhari are shown. Therefore, the very said persons who had raised against the erstwhile managing committee are the persons who are now appointed as committee members and they would be judging their own grievances.

9. Further i.e. two committee members Shri Maheshbhai Chaudhari and Veljibhai Chaudhary are contractors and have milk transportation contract with the dairy and therefore, when they are /were engaged in the business with the Dairy, they could not be appointed as committee members.

10. It is further submitted as far as Maheshbhai Veljibhai Chaudhary is concerned, not only that he was holding a transportation contact, but he was earlier bound to have committed theft of milk from the road milk tankers and now such a person is appointed as a committee member.

15.6 The respondent No.2 has given response in reply to the allegations and stated that:-

Page 30 C/SCA/9929/2015 JUDGMENT "22. It is submitted that the petitioners have leveled several accusation against the members of the custodian committee without submitting any detail of / and proof against the members. The credentials of the members appointed as custodian are as under:-

(1) Shri A.M. Sharma Shri A.M. Sharma has passed his bachelor's degree in the subject of Dairy Technology and is also having the qualification of M.Sc. (Dairying). Shri Sharma has also worked for three years as Senior Research Assistant with SMC College of Dairy Science, Anand.

Shri Sharma was selected in Gujarat Administrative Service, Class-I in the year 1993. Shri Sharma is having vast experience of 22 years on administrative side. During the said tenure he has hold very important position, such as Additional District Magistrate as well as Administrator of Somnath Trust. Shri Sharma is also having the experience in Scientific Publication which relates to dairy science.

(2) Shri Ashokbhai B. Chaudhary:

Shri Chaudhary is actively participating in the field of cooperative movement in the Mehsana District. Shri Chaudhary is affiliated to this primary level milk producer's cooperative society from Chitrodipura since 1994. Shri Chaudhary was elected as President of the Mehsana Nagar Palika for the year 2005 to 2007. During his term as President of Nagar Palika his action of non-using facilitates which has been provided by the Nagar palika, like Car, Telephone and other allowance etc., has been appreciated by the citizens of Mehsana Town. During his tenure as President of Nagarpalika highest taxes were collected by the Nagarpalika and the cleanliness of the town has also been improved. Moreover, Shri Chaudhary is also nominated by the primary level society to which he is affiliated for the purpose of casting vote in the forthcoming election of the Union. Shri Chaudhary is also appointed as Director of Gujarat Housing Board, in the year 2014 by the State Government. That so far allegations made by the petitioner about having a transport contract, the same is totally false. Shri Chaudhari is not having any business relation with the Union at present.





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(3) Shri Raymalbhai Desai

Shri Raymalbhai Desai is also affiliated with the cooperative movement since many years. He is working as member of the managing committee in Kasva Dudh Utpadak Mandli since the year 2001. Shri Desai is appointed as co-convener of Gujarat Pradesh Congress Samiti, Maldhari Cell with effect from 23.8.2012. Shri Desai is elected as President for the last 20 years from Kadi Taluka Gopalak Yuvak Mandal. Shri Desai was also an elected member of District Panchayat from the year 2005 to 2010. Shri Desai was appointed as member of Dudhsagar Dairy, Mehsana as a Member of Sankalan Samiti. At this stage it is to be noted that the members of sanklan samiti has been appointed by the then managing committee of union in which the present petitioners were the members. Shri Desai is affiliated with the congress party since many years.

(4) Shri Thakor Pradhanji Nathuji Shri Thakor is also affiliated with the cooperative movement since many years. He was holding the post of Secretary with effect from 1995 to 2014 in the cooperative Milk Producer's Society, Khareda. Shri Thakore was also the member of Sankalan Samiti, Dudhsagar Dairy, Mehsana. Shri Thakore is also holding the post of the Chairman, Executive Committee, District Panchayat Patan from 21.12.2010 till today.

(5) Shri Maheshbhai Veljibhai Chaudhari Shri Maheshbhai Chaudhari is also active in the cooperative movement since many years. Shri Chaudhari is affiliated with Vera Milk Producer's Cooperative Society since many years. He is also holding the post of Deputy Sarpanch of Vera Village since the year 2006. So far as Shri Chaudiari is concerned, it has been alleged in the petition that during his term as the transport contract in the year 2011-2012, it was found that the quantity of the milk is less. It is to be noted that said contact was only for the year 2011-2012. Thereafter, he is not having any contract with the Union and nowhere his financial interest is connected with the Union. It is also submitted that when the said incident has occurred, Shri Chaudhari was not present. In fact, it was the driver of the Page 32 C/SCA/9929/2015 JUDGMENT tanker who has committed the said act.

(6) Shri K.M. Jhala Shri Jhala in connected with the Gujarat Cooperative Milk Marketing Federation since last 29 yers. Shri Jhala is having degree of Masters in Business Administration and at present he is holding the post of the Chief General Manager in the Federation.

Before joining services with the Federation, he has worked as the Deputy Collector with the State Government and has also worked with the HDFC Bank as a senior executive (Resources) and the General Manager (finance) in the federation. Shri Jhala is nominated member in the Banaskantha District Milk Producer's Cooperative Union and Kheda District Milk Producer's Cooperative Union.

(7) Shri Atulkumar Agrawal Shri Agrawal is affiliated with the Federation since 2003. Shri Agrawal is having vast experience in the field of financial management. Shri Agrawal is a qualified Chartered Accountant. In fact, he is the pioneer in the introducing the costing system as well as fast collection system in the Federation. Shri Agrawal is also nominated member in the Surat and Panchmanal District Milk Producer's Cooperative Unions.

(8) Shri R.M. Assodiya.

Shri Aasodiya is at present working as the District Registrar, Cooperative Society, Sabarkantha. Shri Aasodiya is holding the qualification of higher diploma in the Cooperation and Accountancy. Shri Aasodiya has jointed cooperative department in the year 1993 and has vast experience with the cooperative department. Shri Aasodiya has also worked as member of custodian committee in the Bharuch district Cooperative milk producer's union ltd. Shri Aasodiay has also worked as Special Auditor (Milk) Class-I while his tenure with the Cooperative Department. Shri Aasodiya has rendered his services as the District Registrar in various districts in the State of Guajrat."

16. In light of the allegations and the reply the Page 33 C/SCA/9929/2015 JUDGMENT question which arises for consideration by the Court is as to whether the Court would enter into realm of examining credential of each individual nominated in the custodian committee constituted by the Registrar and whether the Court would be justified in evaluating and assessing credential of the persons and deciding that some persons are proper or good and other persons are not good and not fit or the Court should examine the decision and action of respondent No. 2 only to examine presence of arbitrariness or malafide or external pressure.

17. Before adverting to the said issue an issue which requires consideration is whether the Government has power to appoint custodian and does that power include power to appoint a person or a committee of persons as custodian. 17.1 On plain reading of above quoted provision i.e. Section 74(D), it emerges that the Page 34 C/SCA/9929/2015 JUDGMENT Legislature has conferred power to the Registrar to appoint custodian if circumstances specified under Section 74(D) occur.

17.2 So far as present case is concerned, it is claimed that the term of the Board of Directors expired in May 2014 and before the date of expiry of the term of the Board of Directors or even immediately thereafter, the election was not held and that therefore, the eventuality contemplated under Section 74(D) has occurred in present case inasmuch as though almost 14 months have passed since the term of the board expired, the election is not held. This fact is not in dispute. 17.3 On this count i.e. the decision to take action under section 74-D of the Act and to appoint custodian, the Court would not make any other observation or remark because the said decision and the order appointing custodian (which the Registrar passed on 13.4.2015) is Page 35 C/SCA/9929/2015 JUDGMENT challenged by these petitioners in other writ petition being Special Civil Application No.7776 of 2015.

18. The second issue which arises from the rival submissions is the Registrar's power to appoint "a committee of persons" as custodian. 18.1 On this count also, the section makes is abundantly clear that power to appoint committee of persons as custodian is conferred to the Registrar and it is not necessary that the Registrar should or can appoint only "a person"

as custodian. The discretion to either appoint "a person" as custodian or "a committee of persons" vests with the Registrar. It is for the Registrar to evaluate the situation and reach to his own conclusion as to whether in a given case "a person" should be appointed as custodian or a committee of persons should be appointed. If the Registrar is satisfied and considers it Page 36 C/SCA/9929/2015 JUDGMENT appropriate to appoint a committee of persons to act as custodian, then, Court will not substitute Registrar's decision with Court's own view -

unless any recognized ground to exercise jurisdiction of judicial review of acion by statutory authority is established - since the said aspect is in the realm of Registrar's discretion.

19. In light of the nature and extent of the power and authority conferred on the authority, it follows that such power also includes power to modify earlier decision / appointment and if the Registrar is so satisfied, after considering reasons or circumstances, then he may, modify the order and substitute "a person" who was initially appointed as custodian by "a committee of persons" to act as custodian or add more number of persons with the person initially nominated and convert the nomination of single person into a committee.




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19.1    In      present          case,      after        putting        forward

submissions to some extent on this count, Mr. Joshi learned Senior Counsel also fairly submitted that the petitioners do not place their case to the level of absolute contention that the Registrar cannot appoint a committee of persons to act as custodian, after having already appointed a person to act as custodian. Mr. Joshi learned Senior Counsel, however, hastened to submit that though the power to appoint committee of persons as custodian cannot be denied and in present case the petitioners do not deny or dispute such power or the ground cited for such modification or the method in which or the circumstances for which such modification is made can be questioned and the Court would be open to consider such objection and will not foreclose the contention against exercise of such power.

20. As mentioned earlier, when the Registrar Page 38 C/SCA/9929/2015 JUDGMENT appointed "a person" (viz. Mr. Chauhan) as custodian vide his order dated 13.4.2015 the petitioners challenged the said decision by filing writ petition which is pending for consideration.

20.1 Thereafter, for the reasons mentioned in the order dated 17.6.2015 when the Registrar modified the earlier order, the petitioners challenged even the said decision. The said subsequent decision is subject matter of present petition. 20.2 For, and while challenging said decision the petitioners have raised several allegations against the persons who are nominated on the committee as its members.

20.3 The petitioners have, by citing the track of carrier of the nominees appointed by the Registrar, challenged the decision on the ground that the impugned decision / order is arbitrary Page 39 C/SCA/9929/2015 JUDGMENT and is passed in colourable exercise of the power by Section 74(D) of the Act. It is alleged that the persons who are nominated in the committee are appointed only with a view to achieving political agenda and objects and with a view to grabbing control over the union. Of course, the learned Additional Advocate General for the respondents opposed the said submissions and allegations.

21. So far as the earlier mentioned issue i.e. whether Court can enter into process of examining and verifying or evaluating the fitness and suitability of the persons who are appointed as members of the committee to act as custodian is concerned, it is relevant that the aspects related to the candidates who are selected by the Registrar and appointed as member of the committee constituted to act as custodian, are within the realm of registrar's satisfaction and competent authority and the Court would not be Page 40 C/SCA/9929/2015 JUDGMENT justified in entering into the said territory. The Court cannot be Judge of the fitness or suitability of the persons.

21.1 On this count, it is relevant to mention at this stage that two persons who are appointed as members of the committee, the petitioners raised objection on the ground that they are officers or directors with GCMMF and so far as the interest of union are concerned, the said GCMMF is a rival and competitor and that therefore, appointment of officer or director of such business competitor would affect and harm interest of the union. Learned Additional Advocate General opposed the said allegation and denied that said GCMMF is a rival and competent.

21.2 Besides the said denial, the relevant aspect on this count is that merely because two nominees are officers / directors of a body or institution or an undertaking which according to the Page 41 C/SCA/9929/2015 JUDGMENT petitioner is its rival, that singular aspect, without anything more, will not render them unfit or unsuitable from being member of the committee. 21.3 When the said persons are entrusted with statutory duty of acting as custodian, then, the presumption would be that such persons will rise above the assumed rivalry and will honestly and diligently perform their functions and duty cast by statute, (i.e. as custodian). At this stage, the petitioners have failed to point out even single instance which would demonstrate and justify petitioners allegation that the said persons, while acting as custodian, have acted or tried to act in a manner adverse to the interest of the union.

21.4 Likewise, with reference to other couple of members of the committee it is alleged that they are associated with political party, more particularly ruling party. While denying the said Page 42 C/SCA/9929/2015 JUDGMENT allegation, the respondent No.2 has asserted that the said persons are actually social workers. Be that as it may, when a person or persons are appointed as custodian in respect of the cooperative society which is engaged in particular activity (e.g. milk producing and marketing activity) then, ordinarily a person associated with and active in field of cooperative societies would be appointed and in such circumstances it would be easy to raise allegations of all sorts against such person. Therefore, in absence of any specific instances which may demonstrate that the said person or persons have, while acting as custodian, actually acted in manner which will harm and adversely affect interest of the union (and not of a particular group), the Court would not readily and quickly accept such allegation or objection without cogent material which may support and justify such allegation or objection and reservation against such person and the Court Page 43 C/SCA/9929/2015 JUDGMENT would not be justified in interfering with the decision of the competent authority.

22. Moreover, relevant fact is that the said nominees are, at present, not before the Court since the petition is essentially and mainly contested and opposed by the respondent Nos. 1 and 2 in view of the fact that essentially what is under challenge in this petition is order dated 17.6.2015 passed by the respondent No.2 and that therefore, it is the respondent Nos. 1 and 2 who are actual contesting parties since the author of the order has to defend the impugned order. In this view of the matter learned AGP with consent of the learned Additional Advocate General submitted and declared that the petition may be heard and finally decided at this stage. In absence of the said persons the allegations by the petitioners against them cannot be considered and decided. Learned Senior Counsel for the petitioners made specific and empathetic Page 44 C/SCA/9929/2015 JUDGMENT allegations with reference to Mr. A.B. Chaudhary and Mr. M.V. Chaudhary. Even allegations against said persons also cannot be taken into account for any purpose, more particularly because the said persons are not before the Court and the petition is, as mentioned above, essentially opposed and contested by the respondent Nos. 1 and 2 who are defending the impugned order dated 17.6.2015. Even otherwise, in absence of any cogent and contemporaneous material on the basis of their past record,the Court would not be justified in interfering with the Registrar's decision. It is pertinent that at this stage any cogent and contemporaneous material against said persons is not available on record and therefore also the said allegations cannot and do not deserve to be taken into account.

23. As observed earlier, the task of examining and determining the suitability and fitness of the person to be appointed as Custodian has to be Page 45 C/SCA/9929/2015 JUDGMENT decided by the Registrar and the Court cannot sit as appellate authority and decide the suitability of the nominees. The scope and extent of judicial review in such cases do not extend to such extent and will permit the Court to only examine as to whether the power is exercised bonafide or not and whether competent authority has acted, and taken decision independently or it has acted, and taken decision under external influence or extraneous consideration.

24. On this count, it is relevant and appropriate to refer to the decision by Hon'ble Apex Court in the case of State of Madhya Pradesh (supra). In the said decision, while considering the challenge against the order passed by the Joint Registrar of Co-operative Societies, Sagar, Madhya Pradesh of superseding the Board of Directors of District Co-operative Central Bank Ltd., Panna, Hon'ble Apex Court emphasized the fact that the Registrar, while exercising his Page 46 C/SCA/9929/2015 JUDGMENT powers, must act independently and without considering external pressure, otherwise exercise of powers and the order which may be passed by him, would amount to non-exercise of powers statutorily vested in him. Hon'ble Apex Court also observed that:

"37. The Registrar/Joint Registrar, while exercising powers of supersession has to form an opinion and that opinion must be based on some objective criteria, which has nexus with the final decision. A statutory authority shall not act with pre-conceived notion and shall not speak his masters voice, because the formation of opinion must be his own, not somebody else in power, to achieve some ulterior motive. There may be situations where the Registrar/Joint Registrar are expected to act in the best interest of the society and its members, but in such situations, they have to act bona fide and within the four corners of the Statute. In our view, the impugned order will not fall in that category."

25. So far present case is concerned, it is true that the term of the Board of Directors expired in May 2014. It is relevant to mention that now Section 74(D) provides, inter alia, that if election is not held before expiry of the term of the Committee / Board, then the Registrar may appoint custodian. While it is true that sub- section (3) of Section 74D provides, inter alia, that the custodian shall, subject to the control of Registrar, exercise all or any of the Page 47 C/SCA/9929/2015 JUDGMENT functions of the committee and the custodian may take all such actions as may be in the interest of the society, however, the same Section 74D, by virtue of sub-section (2), also provides that the custodian shall arrange to hold election of such society within period of one week. 25.1 It is necessary to keep in focus the fact that the occasion to exercise powers under Section 74D arises when, despite the eventuality contemplated under said provision the election is not held as contemplated by the Act and that, therefore, the main function or object of the custodian so appointed would be to ensure that the elections are held as expeditiously as possible and thereafter the management and administration of the society is taken over by the elected body. These institutions should be governed and managed by democratically elected body and not by executive or officers of State. The legislature has, therefore, provided sub-




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section    (2)          and    prescribed       that     the    custodian

shall arrange to hold election within the period of one year.

26. On the ground that the situation as contemplated under Section 74D has arisen and that, therefore, there is necessity to appoint custodian, the Registrar appointed custodian and accordingly, Mr. Chauhan came to be appointed as custodian in the order dated 13.4.2015. Subsequently, the impugned order came to be passed.

27. In this background it becomes necessary to ascertain as to whether the impugned order can be said to have been passed under external influence and pressure or by extraneous considerations.

28. For this purpose, it would be appropriate to take into account some relevant dates.

Page 49 C/SCA/9929/2015 JUDGMENT 13.4.2015 The order appointing Mr. Chauhan as custodian came to be passed.

21.4.2015 Mr. Chauhan acting as custodian passed order and appointed six persons on the ground that field of operation and administration of the sangh is vast.

9.6.2015 After about two months since his appointment as custodian, Mr. Chauhan requested that he may be relieved from the said duty. The request was addressed to the respondent No.2 10.6.2015 The Deputy Secretary addressed letter to the respondent No. 2 registrar directing him to accept the request of Mr. Chauhan and to appoint custodian committee and nominate 8 persons as members of the committee 17.6.2015 The respondent No. 2 registrar Page 50 C/SCA/9929/2015 JUDGMENT passed impugned order which is in accordance with the instruction given by the deputy secretary vide his letter dated 10.6.2015.

29. The Registrar in exercise of its power under Section 74 passed first order appointing custodian, i.e. Mr.Chauhan as custodian, on 13.4.2015.

30. About a week thereafter, i.e. on 21.4.2015, the said custodian, i.e. Mr. Chauhan passed an order appointing 6 persons (4 persons for Sangh's office at Mehsana and 2 persons for Sangh's office at Delhi).

30.1 The said order dated 21.4.2015 came to be passed by the custodian Mr. Chauhan on the ground that the field of operation and administration of the Sangh is vast and that, therefore, the said persons will be of help and assistance in running Page 51 C/SCA/9929/2015 JUDGMENT the administration and affairs of the Sangh. 30.2 At this stage, it is pertinent to note that when the Registrar passed order dated 13.4.2015 and appointed Mr.Chauhan as custodian, he was already appointed and working as Managing Director, Gujarat Rajya Krishi Bazaar Board and was holding additional charge as Chief Executive Officer Inspection and Audit, at that time also. 30.3 This aspect emerges and becomes clear from his own letter dated 9.6.2015 wherein, said Mr. Chauhan has mentioned that he is appointed and working as Managing Director, Krishi Bazaar and he is also holding additional charge of Chief Executive Officer, Inspection and Audit. 30.4 Thus, when the order dated 13.4.2015 came to be passed appointing as custodian, he was holding both the charge, however, neither at the stage of his nomination / appointment nor for almost two Page 52 C/SCA/9929/2015 JUDGMENT months, he opposed to the said appointment as custodian and continue to act as custodian of the Sangh and also passed the above mentioned order dated 21.4.2015 appointing 6 persons to help him to conduct administration, management and affairs of the Sangh.

30.5 Then, suddenly after few months, said Mr. Chauhan, (i.e. custodian) addressed a letter dated 9.6.2015 to the Registrar with a request to relieve him from the charge of custodian in view of existing engagement as Managing Director of Krishi Bazaar Board and as Chief Executive Officer, Inspection and Audit.

30.6 It is also pertinent that the said communication dated 9.6.2015 was addressed by Mr. Chauhan who does not appear to have taken any decision with regard to the said communication and in any case, even before he took into account the said communication, much less the request Page 53 C/SCA/9929/2015 JUDGMENT made in the said communication dated 9.6.2015. Interestingly, the Deputy Secretary (Cooperation), issued direction vide communication dated 10.6.2015 instructing and directing the Registrar to relieve Mr. Chauhan from his charge as custodian.

30.7 The said Deputy Secretary (Cooperation) vide his letter dated 10.6.2015 also directed the Registrar to appoint a committee as custodian for the Sangh.

30.8 Not only this but the said Deputy Secretary took further step and also directed the Registrar to appoint 8 persons (whose names were mentioned in his communication dated 10.6.2015) as member of the custodian committee.

30.9 The respondent Registrar, as if he is an obedient subordinate of the Deputy Secretary (who addressed letter dated 10.6.2015) mechanically Page 54 C/SCA/9929/2015 JUDGMENT acted in pursuance of as well as in consonance with and also in compliance of the said communication dated 10.6.2015 and passed impugned order dated 17.6.2015.

31. On examination of the impugned order dated 17.6.2015 in juxtaposition with the communication dated 10.6.2015, it appears that the respondent Registrar has merely signed on the dotted lines drawn by the Deputy Secretary vide his communication dated 10.6.2015 and said two orders also give out that the respondent No.1 appears to be of the belief that the Registrar i.e. the respondent No.2 is not an independent statutory authority, but the respondent Registrar is personal or private assistant and obliged to comply his dictate.

32. It appears that respondent No.2 also seems to be under similar impression and belief that he should speak his master's voice and that, Page 55 C/SCA/9929/2015 JUDGMENT therefore, respondent No.2, as observed by Hon'ble Apex Court in above mentioned decision in case of State of Madhya Pradesh (supra), did what respondent no.1 directed vide his communication dated 10.6.2015 and he i.e. the respondent no.2 played the same tune and same lyric i.e. passed the order dated 17.6.2015, i.e. the impugned order, which, as mentioned earlier, is reproduction of the details mentioned in the communication dated 10.6.2015.

33. Differently put, on reading the impugned order dated 17.6.2015 in juxtaposition with the communication dated 10.6.2015 it becomes clear that the order dated 17.6.2015 is passed by respondent No.2 under the dictate of the Deputy Secretary, i.e. under external influence. 33.1 Actually the order dated 17.6.2015 seems to have been prepared on dotted lines - the sketch or script of which was provided by the respondent Page 56 C/SCA/9929/2015 JUDGMENT no. 1 (through the Deputy Secretary) vide his communication dated 10.6.2015 and the contents of order dated 17.6.2015 merely echoes the contents or substance of the letter dated 10.6.2015 i.e the directions by the Dy. Secretary on behalf of the respondent No. 1.

34. At this stage, it is appropriate to mention that during the hearing of this petition, opportunity was given to learned Additional Auditor General to inform the Court as to whether the respondents are ready to remove or substitute some of the members of the custodian committee against whom substantial objections are raised by the petitioners and to substitute them by other persons of the choice of the respondent Registrar, however, the learned Additional Advocate General did not respond to the said query. Thus, it appears that the respondent is not ready to consider such alternative.





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35. It is also relevant to mention that so far as the submission by learned Additional Advocate General that the petitioners do not have any locus to challenge the impugned order, is concerned, it is pertinent that the said objection is raised on the ground that the petitioners are not, after May 2014, Directors of the Sangh and they are also not members of the Sangh and that, therefore, they do not have any statutory or fundamental rights to raise objection against the order passed by the respondent Registrar.

36. From the above chronology starting from 13.4.2015 and leading upto the stage of the impugned order which is passed on 17.6.2015 and more particularly the chronology which emerge from the communication dated 10.6.2015 and the impugned order dated 17.6.2015, the Court is of considered view that the respondent Registrar has passed the impugned order under dictate of the Page 58 C/SCA/9929/2015 JUDGMENT Deputy Secretary issued by him under his letter dated 10.6.2015. It is relevant that after Mr. Chauhan addressed the letter dated 9.6.2015 to the Registrar, he i.e. the Registrar did not, on his own and independently apply his mind judiciously so as to consider the request, and did not take independent decision. Before he could do so, very next day i.e. 10.6.2015 he received the letter dated 10.6.2015 from the Deputy Secretary which contained the direction to relieve Mr. Chauhan and also contained names of the person who should comprise the committee and to appoint a committee instead of appointing a person to act as custodian. Thus, the said letter dated 10.6.2015 did not leave anything to the discretion of registrar neither the decision as to whether Mr. Chauhan's request should be accepted or not if accepted then when should he be relieved and then in his place whether some other "person" should be appointed or a committee of persons should be appointed and if the Page 59 C/SCA/9929/2015 JUDGMENT committee is to be appointed who should be the members. None of these and other related aspects were left to Registrar's discretion and entire course of action was carefully and in detail charted in the letter dated 10.6.2015 which the registrar obediently and diligently accepted and obeyed and mechanically passed the order dated 17.6.2015 on dotted line. This tantamounts to legal position that the impugned order dated 17.6.2015 is not passed independently by the Registrar but it is passed under external influence and / or pressure or extraneous consideration. The impugned order is not passed independently with due and proper application of mind by the authority competent to pass such order i.e. the authority who is entrusted with statutory duty and that therefore, it is tainted and vitiated.

37. In this view of the matter and for the foregoing reasons, the impugned order dated Page 60 C/SCA/9929/2015 JUDGMENT 17.6.2015 cannot be sustained and it deserves to be set aside and is, therefore, hereby set aside. 37.1 At the same time, it is relevant and necessary to clarify and the Court would hasten to do so, that the respondent Registrar has power to appoint a "person" or a "committee of persons"

who will act as custodian and the selection of the persons to be nominated as members of the committee is left, by the legislature, to the satisfaction and discretion of the Registrar and that, therefore, the Court would not enter into the said territory.

37.2 Therefore, when the impugned order is set aside, it will be open to the respondent Registrar, as competent authority under Section 74D, to pass appropriate fresh order appointing "a person" or "a committee of persons" who will act as custodian, in accordance with the provision under Section 74D until such period as Page 61 C/SCA/9929/2015 JUDGMENT decided by him or permissible under said section, whichever is earlier. It is further clarified that it will be open to the registrar to independently pass fresh order nominating any "person" or "committee of persons" as he, on his own independently considers fit and proper.

37.3 Before concluding it is relevant to deal with one contention by the learned Additional Advocate General.

37.4 The respondents' contention that to avoid the inquiry into irregularities of the committee, the petitioners have taken out this petition and have challenged the appointment of the committee, does not carry any weight because the person who was originally appointed as custodian could have undertaken necessary inquiry in accordance with law and / or any other person or any other committee (who may be appointed as custodian) can still inquire into alleged irregularity in Page 62 C/SCA/9929/2015 JUDGMENT accordance with law. Thus, merely by challenging appointment of the committee, any purpose, much less alleged purpose of frustrating, cannot be achieved by the petition inasmuch as it is plain and simple that even the person or the committee who / which will be appointed in place of order dated 27.6.2015 can conduct such inquiry as may be necessary, and in accordance with law and therefore, the contention against the petitioners on the ground of petitioners' intention is not sustainable.

38. So that a vacuum or void is not created upon the impugned order dated 17.6.2015 being set aside, and until fresh order is passed, the Registrar is granted time until 1.8.2015 to pass fresh order to appoint a custodian in accordance with the provision under Section 74-D, until then present committee may continue to act but in accordance with Section 74-D and under supervision of the District Registrar.




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              C/SCA/9929/2015                           JUDGMENT



         With            the   aforesaid      clarifications      and

directions, the petition is disposed of.

Sd/-

(K.M.THAKER, J.) Girish*/KDC*/Suresh*/Bharat* Page 64

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