Gujarat High Court
Gujarat State Cooperative Marketing ... vs Shree Patan Taluka Sahkari Kharid ... on 17 April, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/1114/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1114 of 2012
In
SPECIAL CIVIL APPLICATION NO. 7225 of 2011
With
CIVIL APPLICATION NO. 8494 of 2013
In
LETTERS PATENT APPEAL NO. 1114 of 2012
With
CIVIL APPLICATION NO. 3429 of 2014
In
LETTERS PATENT APPEAL NO. 1114 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Sd/-
and
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
=========================================
1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the NO
fair copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of
the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the Civil NO
Judge ?
=========================================
GUJARAT STATE COOPERATIVE MARKETING FEDERATION LTD &
1....Appellants
Versus
SHREE PATAN TALUKA SAHKARI KHARID VECHAN SANGH LTD....Respondent
=========================================
Page 1 of 12
C/LPA/1114/2012 JUDGMENT
Appearance :
MR DIPEN DESAI, ADVOCATE for the Appellants.
MR NK PAHWA, ADVOCATE ASSISTED BY MR PRAVIN P PANCHAL,
ADVOCATE for the Respondent.
=========================================
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 17/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. By way of the present Letters Patent Appeal, the appellants have challenged the judgment and order dated 31.8.2012 passed by the learned Single Judge in Special Civil Application No.7225 of 2011 by which the learned Single Judge allowed the writ petition filed by the respondent herein and set aside the order dated 26.5.2011 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Revision Application No.63 of 2011.
2. While admitting the present Letters Patent Appeal on 5.9.2012, this Court has passed the following order :-
"Letters Patent Appeal :-
1. Admit. Learned advocate Mr. Navin K. Pahwa appearing with learned advocate Mr. Pravin P. Panchal for respondent waives notice of admission for the respondent.
Civil Application:-
2. Rule. Learned advocate Mr. Navin K. Pahwa appearing with learned advocate Mr. Pravin P. Panchal for the opponent on caveat waives notice of Page 2 of 12 C/LPA/1114/2012 JUDGMENT rule on behalf of the opponent.
3. We have heard the learned Senior Counsel Mr. Mihir Joshi with learned advocate Mr. Dipen Desai for the applicant and learned advocate Mr. Pahwa for the opponent.
4. It does prima facie appear that the learned Single Judge, after restoration of the order passed by the learned Nominee by setting aside the order of the Tribunal which was under challenge in the writ petition, has issued further direction and, therefore, it prima facie appears that the source of power could be under Article 226 of the Constitution of India. Consequently, impugned order may result into exercise of power under Article 227 read with Article 226 of the Constitution of India, therefore, Letters Patent Appeal may be maintained.
5. Considering the facts and circumstances, we find that the matter deserves consideration and, therefore, the appeal has been admitted.
6. On the aspects of interim relief, apart from the aspects of prima facie case, balance of convenience and irreparable injury, the Court would also be required to take into account the equitable consideration of the matter pertaining to supply of fertilizers to the agriculturists who are the ultimate beneficiaries in the present monsoon and the recent period prevailing now. It prima-facie appears that as per the scheme, fertilizers are Page 3 of 12 C/LPA/1114/2012 JUDGMENT being supplied to the respondent No.1 by the apex body at the State level the appellant herein who receives the supply of fertilizers from KRIBHCO and other Companies at the national level. State level body will get the supply of the fertilizers as per the policy of the Government primarily for distribution thereof to the District level unions as well as taluka level unions in the State which are federal societies and whose members are mainly primary level cooperative societies of the areas which caters the needs of its member agriculturists and in a given case non-member agriculturists too after satisfying the needs of the member agriculturists. If the supply of fertilizers is disrupted by the appellant State level body to the original petitioner-plaintiff, taluka level body, the resultant effect would be that it would not be in a position to supply and satisfy the need of fertilizers of primary level cooperative societies of taluka as well as the agriculturists of the area. It is true that when any quantity of fertilizers is supplied to the original petitioner being taluka level federal society, primary duty is to supply to all primary level cooperative societies who in turn are to supply the fertilizers to its member agriculturists and, therefore, while considering the aspects of interim relief, we need to ensure that all primary level cooperative societies are supplied required quantity of fertilizers by the original petitioners even if the supply is received by the appellant from the apex level body. It further appears that the learned counsel for the appellant stated that if the supply rest to the extent of primary level cooperative Page 4 of 12 C/LPA/1114/2012 JUDGMENT societies by the original petitioner then appellant has no objection but the grievance additionally was raised by the learned counsel for the appellant that the original petitioner cannot be permitted to sell fertilizers on retail basis to the agriculturists by running retail depots. He submitted that the appellant has no objection if the original petitioner is getting the supply the fertilizers to the extent of all of its member primary level cooperative societies who in turn may be catering needs of the member agriculturists of such primary level societies. He mainly raised grievance that the retail business by original petitioner - respondent No.1 herein is not permitted even as per the scheme.
Learned counsel for the original petitioner- respondent herein however contended that the appellant itself is having four retail outlets in Patan Taluka itself which are directly selling the fertilizers on retail basis to the agriculturists and, therefore, it was submitted that after catering needs of primary level cooperative societies, if any quantity of fertilizers is yet available with the petitioner, there could not be any prohibition to sell it on retail basis.
7. Mr. Joshi, learned Senior Counsel for the appellant during the course of hearing, under the instructions, also declared that if this Court is to prohibit retail business for retail supply of fertilizers by the original petitioner, the appellant is agreeable to see that no retail counters of the appellant in Patan Taluka are continued and the said retail business of fertilizers shall also be Page 5 of 12 C/LPA/1114/2012 JUDGMENT stopped and it will be supplied only through primary level cooperative societies whereas Mr. Pahwa, learned counsel for the original petitioner submitted that the appellant is having about 100 depots throughout the State as stated in the affidavit in reply and, therefore, if they are to stop the retail business, it should be for the whole of the State and cannot be for Patan Taluka only. Whereas learned Senior Counsel Mr. Joshi submitted that so far as the other talukas are concerned, same is not the subject matter of the petition and, therefore, the appellant cannot be compelled to stop the retail business out side Patan taluka.
8. It prima facie appears to us that the contention of retail sale after satisfying the requirement of all primary level cooperative societies would not be against the interest of the agriculturists who are the ultimate beneficiaries of the cooperative structure but rather it would be in the larger interest of the agriculturists of the area namely Patan Taluka, in the present case. It is not necessary for any agriculturist to become member of the primary level cooperative society. If any agriculturist who is not a member of any primary level cooperative society is desirous to have fertilizers he has to buy it from retail counter only. As against the same, if such is prohibited, the consequences may arise for compelling him to be enrolled as member of primary level cooperative societies and thereafter to get the supply through primary level cooperative society or in the alternative,he has to go at the retain counter which Page 6 of 12 C/LPA/1114/2012 JUDGMENT is run by any primary level society at the distance area. Ultimate consumer is the agriculturist of the area. If there is retail counter available,may be of the original petitioner or of the appellant federation, same would be in the larger interest of the ultimate beneficiaries/consumers who are agriculturists of the area since they will have choice and procurement of the supply at the nearer distance. Therefore, it appears to us that after satisfying the need of all primary level societies, if there is any surplus quantity, same may be permitted to be used for catering needs of the non- member agriculturists in retail business.
9. On the aspect of operation of the order passed by the learned Nominee and restoration by the learned Single Judge, we find that if the operation is stayed, it would create irreversible situation in as much as in the present monsoon, primary cooperative societies as well as the agriculturists will have a lot of difficulties in the smooth supply and consequently would be adversely affecting their interest which cannot be restored even after the appellant fails at the end. Therefore, considering the principles of irreparable injury, we find that the supply of fertilizers which is one of the essential item should not be disrupted and can rather be continued under the orders of the learned Nominee which has been restored by the learned Single Judge in the impugned order.
10. On the aspect of observations made by the learned Single Judge for issuing directions after Page 7 of 12 C/LPA/1114/2012 JUDGMENT restoring order passed by the learned Nominee, we find that the same appears to have been issued in order to facilitate the smooth compliance of the directions if the appellant and the original petitioner are desirous for such purpose. Therefore, none of the directions are running counter to the spirit of implementation of the order passed by the learned Nominee which has been restored by the learned Single Judge.
11. Mr. Joshi, learned Senior Counsel for the appellant raised the contention that the interim order passed by the nominee and restoration by the learned Single Judge resulted into allowing the suit contrary to the provisions of the Specific Relief Act and there was no concluded agreement at the relevant point of time and, therefore, in his submission, such interim injunction could not have been granted by the learned Nominee nor the same could have been restored by the learned Single Judge.
12. We find that there is no bar operating for passing such mandatory orders if emergent situation so requires for such purpose. On the aspect of absence of agreement, it is not a matter where the contract was not at all there in the past and the Court considered aspects of enforcement of bylaws. It is duty of State level body to cater and satisfy need of its member societies and more particularly when the State level body has received the supply of fertilizers on behalf of the member society. The vacuum created by not signing Page 8 of 12 C/LPA/1114/2012 JUDGMENT agreement cannot be read to frustrate the enforcement of bylaws in favour of the member cooperative societies against the apex society more particularly in the matter of supply of essential commodity like fertilizers. Prima facie, we find that the learned Nominee had power to enforce bylaws and to command implementation of the bylaws keeping in view the interest of member cooperative societies of Sate level body and consequently interest of the ultimate beneficiaries. Therefore, it is not a matter where the order is passed without there being any basis in law. Any action in contravention of the bylaws or against the interest of member by a federal body if brought to the notice of the learned Nominee, the learned Nominee has power to pass appropriate order keeping in view the urgent requirement and so is considered by the learned Single Judge. Prima facie, it cannot be said that the order was without any basis. Hence we are not impressed by the said contention keeping in view the urgency of supply of fertilizers to the ultimate users more particularly in view of the monsoon season.
13. In the above facts and circumstances,we are inclined to pass the following interim order:
Operation and implementation of the judgment and order of the learned Nominee read with the judgment and order of the learned Single Judge in Special Civil Application No. 7225 of 2011 shall continue on compliance of the following conditions :Page 9 of 12
C/LPA/1114/2012 JUDGMENT
(1) The respondent herein - original petitioner
shall out of the quantity of fertilizers supplied to it, at the first instance, supply and satisfy the need of all of its primary level cooperative societies.
(2) After the requirement of all member primary level cooperative societies are satisfied, remaining quantity of fertilizers, if any, may be made available for retail sale to the original petitioner.
14. It is clarified that the present order shall not operate as a bar to any primary level cooperative societies of Patan Taluka to undertake retail sale of fertilizers after satisfying the needs of all of its member agriculturists.
15. Rule is made absolute to the above extent. This application stands disposed of accordingly."
3. Learned counsel appearing for the parties have agreed that they will abide by the directions issued in paragraph 13 of the above order dated 5.9.2012 subject to certain fresh modifications.
4. Mr. N.K. Pahwa, learned counsel appearing for the respondent, on instructions, has made a statement that the respondent Society will not buy fertilizers which are available on demand with the appellant Federation, from any other competitor, except those which are either not available with the appellant Federation or not manufactured or which are not procured or not supplied by the appellant Federation.
5. This arrangement will enure for the benefit of both the parties. In our opinion, the learned Board of Nominees, by way of Page 10 of 12 C/LPA/1114/2012 JUDGMENT interim relief, should not have granted such a blanket stay in favour of the respondent.
6. May that as it may be, we are not going into the merits of the matter at this stage as the issue is still writ large before the Board of Nominees. Since the present proceedings arise out of the interim order passed by the Board of Nominees, we direct the learned Board of Nominees to decide and dispose of Lavad Suit No.155 of 2012 as expeditiously as possible, preferably within a period of six months from today. The parties to the proceedings shall not seek unnecessary adjournments and will cooperate in early disposal of the suit.
7. It goes without saying that the interim arrangement made above will enure for the benefit of the respondent till the Board of Nominees decides the suit itself and as and when the indent is made by the respondent Society to the appellant Federation, the necessary items will be supplied by the appellant Federation to the respondent Society irrespective of the technicalities.
8. With the above observations and directions, this Letters Patent Appeal stands allowed. The judgment and order dated 31.8.2012 passed by the learned Single Judge in Special Civil Application No.7225 of 2011 stands modified to the above extent. The parties shall bear their own costs.
9. In view of disposal of the main Letters Patent Appeal, connected Civil Applications also stand disposed of.
10. At this stage, Mr. N.K. Pahwa, learned counsel appearing for the respondent has fairly submitted that in view of disposal of main Letters Patent Appeal, he will also withdraw the Page 11 of 12 C/LPA/1114/2012 JUDGMENT contempt petition being Misc. Civil Application No.708 of 2014 pending before the Contempt Bench.
Sd/-
(V.M.SAHAI, J.) Sd/-
(K.J.THAKER, J.) Savariya Page 12 of 12