Gujarat High Court
Gujarat vs State on 5 September, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
Print
SCA/676/2011 39/ 39 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 676 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GUJARAT
CO OPERATIVE BAR ASSOCIATION & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
MIHIR JOSHI, SR. ADVOCATE WITH MR SN THAKKAR
for
Petitioner(s) : 1 - 2.
MR PRAKASH JANI, GOVERNMENT PLEADER for
Respondent(s) : 1 - 2.
MR DIVYESH G NIMAVAT for Respondent(s) :
3,
MR YH MOTIRAMANI for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 05/09/2011
CAV
JUDGMENT
(Per :
HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The petitioners have challenged the validity of Secs.150[1], 150[2] and 150[3] of the Gujarat Cooperative Societies Act, 1961 [hereafter referred to as "the Act"] as being ultra vires; validity of the Gujarat Cooperative Societies [Amendment] Rules, 2010 [hereafter referred to as "Amendment Rules, 2010"], introduced by notification dated 6th October, 2010 is also under challenge.
Apart from challenging the validity of the provisions of the Act and the Amendment Rules, 2010, the petitioners have also challenged the appointment of Shri R.M. Thakkar and Shri V.C. Joshi, respondent nos. 3 and 4 respectively, who are retired officers of the Cooperation Department of the Government of Gujarat, as Member of the Gujarat State Cooperative Tribunal, made by notification dated 4th December, 2010. Further prayer has been made to direct respondent-State Government to seek effective consultation of the High Court of Gujarat before appointing members of the Gujarat State Cooperative Tribunal[hereafter referred to as "the Tribunal"] and members of the Board of Nominees and thereby to make appointment by following the provisions of Part-VI of Chapter-6 of the Constitution of India. Validity of Secs. 150[1], 150[2] and 150[3] of the Act has been challenged as being ultra vires and violative of Art.14 of the Constitution of India, on the ground that the same confers unbridled and untrammeled power upon the State Government in the matter of appointment of members of the Gujarat State Cooperative Tribunal and for prescribing the qualifications for appointment of the members of the said Tribunal.
Gujarat Cooperative Societies [Amendment] Rules, 2010 has been challenged as being arbitrary, malafide and contumacious and in clear breach of undertaking given by the State Government before this Court in Special Civil Application No.1835 of 2000 and Special Civil Application No. 10801 of 2009.
At this stage, it may be stated that during pendency of the writ petition, respondent nos. 3 and 4, namely, Shri R.M.Thakkar and Shri V.C. Joshi, the two retired officers of the Cooperation Department of the Government of Gujarat, who were appointed as members of the Tribunal, tendered resignations which were accepted by the State Government. In view of such development, prayer challenging the appointment of the aforesaid two persons has become infructuous.
Before deciding the issue, it is necessary to notice certain relevant facts on the basis of which arguments were advanced by the learned counsel for the petitioners.
The petitioner no.1-Gujarat Cooperative Bar Association [hereafter referred to as "the Association"] preferred a writ petition being Special Civil Application No. 7316 of 1992 challenging the action of the State Government of appointment of persons as Registrar's Nominee on the ground that they did not possess any legal and/or judicial background.
Earlier, validity of Secs. 96 to 102 of the Act fell for consideration before a Division Bench of this Court in the case of Rasiklal v. Kailash Gauri, reported in 1971 [12] GLR 355, which related to constitution or recognition of federal society to supervise working of societies; deciding disputes; procedure for settlement of disputes, attachment before award; appellate authority before whom appeal could have been preferred against the decision of Registrar or his nominee or board of nominee. The same was challenged on the ground that Registrar or his nominee are not judicial officers and have no legal background and that the matter could have been settled only by a Civil Court. While dismissing the writ petition, the Division Bench observed that there was nothing unreasonable in the said provisions, even if such disputes may involve determination of right to property so long as the basic essentials of fair trial are provided, or that merely because the said special machinery displaces the ordinary machinery of a civil suit, it does not mean that it is unreasonable.
However, it was observed by this Court that the Registrar must exercise discretion fairly and with a sense of responsibility so that there should be a fit and competent nominee appointed to decide the dispute. It was further observed that though sometimes appointments are made on extraneous considerations, but taking into consideration the policy adopted by the State Government to appoint a Board of Nominees consisting of retired Judges for deciding the disputes referred to the Registrar, the Division Bench observed that it was a very healthy step taken by the government which will go a long way towards restoring the confidence of public in the fairness, efficiency and purity of administration of justice under the special procedure provided by the impugned sections.
In the year 1992, petitioner Association challenged the appointment of some of the Registrar's Nominees by filing a writ petition, being Special Civil Application No. 7316 of 1992, but could not succeed.
Another writ petition being Special Civil Application No. 1835 of 2000 was preferred by the petitioner Association, raising question regarding not laying down qualification for appointment of President and members of the Gujarat State Cooperative Tribunal and member of Board of Nominees. Therein, this Court by order dated 24th July, 2006 directed the State Government to state as to why in last 20 years, even a single judicial officer has not been appointed and whether name of any judicial officer has been considered by the State Government to occupy the post of the President of the Tribunal. Thereafter, the State Government, by notification dated 17th February, 2007 introduced Gujarat Cooperative Societies [Amendment] Rules, 2007, introducing Rule 40A and Rule 78 laying down qualification for appointment of Registrar's Nominee as well as members and President of the Tribunal.
Rule 40-A was introduced prescribing qualifications of Registrar's Nominee. The same is quoted herein below:
"40-A. Qualifications of a nominee of the Board of Nominees- No person shall be eligible for appointment as a nominee of a Board of Nominees, unless he,--
[a] is holding or has held a judicial office not lower in rank than that of Senior Civil Judge, or [b] has practiced as an Advocate, Pleader or Vakil for not less than ten years, or [c] is enrolled as an Advocate or holds a degree or other qualification in law of any University established by law or of any other authority which entitles him to be enrolled as an Advocate, and either,--
[i] is a Joint Registrar of Cooperative Societies, or [ii] has held office not lower in rank than that of Deputy Registrar of Cooperative Societies or equivalent for not less than five years.
[d] No person shall hold or continue to hold the office of the Nominee of a Board of Nominees after he attains the age of sixty five years.
Rule 78 was introduced by the said notification prescribing the qualification of the President and other members of the Tribunal. The same is quoted hereunder:
"78.
Qualifications of President and other members of Co-operative Tribunal- [1] The State Government shall appoint a person who is or has been a Judge of a High Court or is or has been a District Judge, to be the President of the Gujarat State Co-operative Tribunal:
Provided that the appointment of a person who was a Judge of a High Court or a District Judge, as the president of the Tribunal, shall be made in consultation with the Chief Justice of the High Court.
[2] Each of the other members of the Tribunal to be appointed by State Government shall be a person,-
[a] who possesses any qualification as laid down in sub-rule [1]; or [b] who is enrolled as an Advocate or holds a degree or other qualification in law of any University established by law or of any other authority which entitles him to be enrolled as an Advocate, and either-
[i] has held office not lower in rank than that of Deputy Secretary to Government for not less than five years, or Joint Secretary to the Government, having some background in or experience of working in Cooperation Department, or [ii] who is a Joint Registrar of Co-operative Societies for not less than five years, or Additional Registrar of Co-operative Societies.
[3] Appointment of the persons, who have not held or are not holding the judicial office in the State, as Members of the Tribunal, shall be made in consultation with the Advocate General of the State.
[4] No person shall hold or continue to hold the office of the President or Member of the Tribunal after he attains the age of sixty five years.
[5] Subject to sub-rule [4] and save as otherwise specified by the State Government in any case, the President and any other member of the Tribunal shall hold office for a period of three years in the first instance, and thereafter his terms of office may be extended by the State Government, from time to time, for such period as it may deem fit.
[6] In the event of the occurrence of any vacancy in the office of the President of the Tribunal, the senior-most member shall act as in-charge President as per the order of the State Government."
In view of such Amendment Rules, 2007 and a statement made by the learned Advocate General that henceforth appointment of President and other members of the Tribunal shall be made in accordance with Rule-78, the writ petition was disposed of without further direction.
Gujarat Cooperative Societies [Amendment] Rules, 2007 not having been given effect, Mehsana Jilla Panchayat Karmachari Cooperative Bank Ltd. preferred a writ petition being Special Civil Application No. 14159 of 2007 before this Court seeking to implement the Amendment Rules, 2007 and for appointment of persons as Registrar, Nominees' Court and members of the Cooperative Tribunal, in accordance with Rule 40-A and Rule 78 of the Gujarat Cooperative Societies [Amendment] Rules, 2007. Prayer was also made to remove those persons who did not hold qualifications in accordance with Rule 40-A and Rule-78. In the said case, the State Government having shown total readiness and commitment to introduce judicial fervor in the appointment of members of the said bodies under the provisions of the said Act and an undertaking having been given that the State Government will replace those incumbents who were not possessing the prescribed qualification, the writ petition was closed on 9th August, 2007. On 16th October, 2008, Mr. R.M. Thakkar, Additional Registrar [Admn.] was appointed as member of the Cooperative Tribunal, but the said appointment was not challenged.
The State Government issued a draft notification on 12th June, 2009, inviting objections to further amendment in Rule 40-A and Rule 78 of the Cooperative Societies Rules. The petitioner Association preferred an objection to such proposed notification. By filing a writ petition being Special Civil Application No. 10801 of 2009 the petitioner Association also challenged the draft notification dated 12th June, 2009, seeking to introduce the aforesaid amendment in Rule 40-A and Rule 78-A. The petitioner also sought declaration that the present practice of the government in making appointment of any person as member of the Board of Nominee or members of the Tribunal without considering whether they are legally qualified or not or whether they are well equipped with legal training and judicial approach, as being illegal, unconstitutional and violative of Arts. 14 and 21 of the Constitution of India. The aforesaid writ petition having been filed as Public Interest Litigation at premature stage, a Division Bench of this Court, on 4th November, 2009 did not choose to interfere with the same, however, gave liberty to the petitioner Association to move again in case of any difficulty and thereby disposed of the writ petition.
In the meantime, Shri R.M. Thakkar, member of the Tribunal, who was to retire, was given extension in service for a period up to 31st May, 2010. A resolution was issued by the State Government on 18th March, 2010 declaring terms and conditions of appointment of Registrar's Nominee.
The period of extension of service of Shri R.M. Thakkar was further extended and on 18th September, 2010, he was appointed as President of the Tribunal. This was opposed by the petitioner Association. Shri H.P. Patel, a retired District Judge was appointed as President of the Cooperative Tribunal on 14th October, 2010, in exercise of powers conferred by Sub-sec.[2] of Sec.150 of the Act read with Rule 78 of the Amendment Rules, 2007.
Finally, Rule 40-A and Rule 78 were amended by Amendment Rules, 2010, gazetted by a notification 6th October, 2010 published on 7th October, 2010.
Chapter-XIII of the Gujarat Cooperative Societies Act, 1961 deals with appeals, review and revision. Sec.150 thereof deals with "Gujarat State Co-operative Tribunal". Under Sub-sec.[1] of Sec.150, while the State Government is required to constitute a Tribunal under the Act, under Sub-sec.[2] of Sec.150 stipulation has been made to have a President and not more than three other members of such Tribunal. Sub-sec.[3] of Sec.150 empowers the State Government to fill up the posts of members of the Tribunal. The relevant provision made under Sec.150 of the Act, is quoted hereunder:
"Sec.150.
Gujarat State Co-operative Tribunal.--[1] The State Government shall constitute a Tribunal called the Gujarat State Co-operative Tribunal to exercise the functions conferred on the Tribunal by or under this Act.
[2] The Tribunal shall consist of a President, and not more than three other members possessing such qualifications as may be prescribed.
xxx xxx xxx [3] Any
vacancy in the membership of the Tribunal shall be filled by the State Government."
Though formally, Sub-secs. [1], [2] and [3] of Sec. 150 of the Act are under challenge, no specific ground has been shown to declare the provisions ultravires.
Under Sub-sec.[1] of Sec.150, a Tribunal is to be constituted. Such constitution cannot be held to be arbitrary.
Sub-sec.[2] of Sec. 150 relates to constitution of Tribunal consisting of a President and other members, not more than three holding such qualifications as may be prescribed, which also cannot be held to be arbitrary.
Sub-sec.[3] of Sec.150 empowers the State Government to fill up any vacancy in the membership of the Tribunal, and it is always open for the legislature to delegate such power, therefore, this also cannot be held to be arbitrary.
Under Rule 78, the State Government is vested with power to appoint any non-judicial person as member or members of the Tribunal, that would not render Sec.150 of the Act as illegal. Therefore, no prima facie case is made out to declare Secs. 150[1], 150[2] and 150[3] of the Act as illegal or ultra vires.
By Amendment Rules, 2010, after Rule 40-A(b), for sub-rule [c] new rule has been substituted, which reads as under:
"[c] holds a degree in law from a university established by Law in India; and [i] has worked for not less than five years as a Deputy Registrar of Co-operative Societies, Gujarat State or its equivalent post; or [ii] has worked as a Joint Registrar of Co-operative Societies, Gujarat State."
In Rule-78, in sub-rule [2] of clause [b], for the sub-clauses [i] and [ii], the following substitution has been made:-
"[i] has worked for not less than five years as a Deputy Secretary having some background in or experience of working in Co-operation Department, Gujarat State; or [ii] has worked as a Joint Secretary or an Additional Secretary having some background in or experience of working in Co-operation Department, Gujarat State; or [iii]has worked for not less than five years as a Joint Registrar, Co-operative Societies, Gujarat State; or [iv] has worked as an Additional Registrar of Co-operative Societies, Gujarat State."
In view of the Amendment Rules, 2010, Rule-40-A reads as under:
"40-A. Qualifications of a nominee of the Board of Nominees- No person shall be eligible for appointment as a nominee of a Board of Nominees, unless he,--
[a] is holding or has held a judicial office not lower in rank than that of Senior Civil Judge, or [b] has practiced as an Advocate, Pleader or Vakil for not less than ten years, or [c] holds a degree in law from a university established by Law in India; and [i] has worked for not less than five years as a Deputy Registrar of Co-operative Societies, Gujarat State or its equivalent post; or [ii] has worked as a Joint Registrar of Co-operative Societies, Gujarat State."
Similarly, Rule-78, after Amendment Rules, 2010 reads as follows:
"78.
Qualifications of President and other members of Co-operative Tribunal- [1] The State Government shall appoint a person who is or has been a Judge of a High Court or is or has been a District Judge, to be the President of the Gujarat State Co-operative Tribunal:
Provided that the appointment of a person who was a Judge of a High Court or a District Judge, as the president of the Tribunal, shall be made in consultation with the Chief Justice of the High Court.
[2] Each of the other members of the Tribunal to be appointed by State Government shall be a person,-
[a] who possesses any qualification as laid down in sub-rule [1]; or [b] who is enrolled as an Advocate or holds a degree or other qualification in law of any University established by law or of any other authority which entitles him to be enrolled as an Advocate, and either -
[i] has worked for not less than five years as a Deputy Secretary having some background in or experience of working in Co-operation Department, Gujarat State; or [ii] has worked as a Joint Secretary or an Additional Secretary having some background in or experience of working in Co-operation Department, Gujarat State; or [iii]has worked for not less than five years as a Joint Registrar, Co-operative Societies, Gujarat State; or [iv] has worked as an Additional Registrar of Co-operative Societies, Gujarat State.
[d] No person shall hold or continue to hold the office of the Nominee of a Board of Nominees after he attains the age of sixty-five years.
[3] Appointment of the persons, who have not held or are not holding the judicial office in the State, as Members of the Tribunal, shall be made in consultation with the Advocate General of the State.
[4] No person shall hold or continue to hold the office of the President or Member of the Tribunal after he attains the age of sixty five years.
[5] Subject to sub-rule [4] and save as otherwise specified by the State Government in any case, the President and any other member of the Tribunal shall hold office for a period of three years in the first instance, and thereafter his terms of office may be extended by the State Government, from time to time, for such period as it may deem fit.
[6] In the event of the occurrence of any vacancy in the office of the President of the Tribunal, the senior-most member shall act as in-charge President as per the order of the State Government."
The grievance of the petitioners is that though the State Government has given repeated assurances to the High Court of having transparent mechanism in the quasi judicial proceedings held under the provisions of the Cooperative Societies Act, the same have not been followed. All the time, there is repeated deliberate breach committed by the State for regaining control over the functioning of the Registrar's Nominee as well as the Cooperative Tribunal. In this connection, reliance has been placed on a Division Bench of this Court in the case of Rasiklal v. Kailash Gauri, reported in 1971 [8] GLR 355, wherein, while examining validity of Secs. 96 to 102 of the Cooperative Societies Act, the Division Bench of this Court has observed as under:
"...
that now a policy has been adopted by the State Government to appoint the Board of Nominees consisting of retired judges for deciding the disputes referred to the Registrar, that this is a very healthy step taken by the Government and there is no doubt that it will go a long way towards restoring the confidence of public in the fairness, efficiency and purity of administration of justice under the special procedure provided by the impugned sections which by reason of ill-considered appointments in the past was badly shaken."
It is alleged that inspite of the decision delivered by this Court in the above case, only few judicial officers have been appointed as Registrar's nominee. Between 1971 to 1980 two or three retired District Judges were appointed as Registrar's nominee against requirement of 15 names; in between 1998 to 2009, not even a single retired judicial officer has been appointed as Registrar's nominee. The State Government, thus, continued with its practice of appointing as Registrar's nominee only such officers of the Cooperation Department who were favourable to the government. As on date, eight posts of Registrar's nominee are vacant. The effect is that there is repeated allegation of rampant corruption amongst the officers of the Cooperation Department who were being susceptible to the government pressure while adjudicating the disputes worth crores of rupees and other disputes.
It is informed, as noticed above, that in writ petition, being Special Civil Application No. 1835 of 2000, Division Bench of this Court has asked as to why not a single judicial officer has been appointed. Even after the notification dated 17th February, 2007 was issued prescribing qualifications for appointment of Nominee under Rule 40-A and qualifications of President and other members of the Cooperative Tribunal under Rule 78, an assurance was given before this Court that henceforth, appointments of President and other members of the Cooperative Tribunal shall be made in accordance with amended Rule 78, no such appointment was made in accordance with the Rules. In other writ petitions, namely, Special Civil Application No. 14159 of 2007 as well as Special Civil Application No. 1835 of 2007, filed by the petitioner Association, the State Government came forward and showed total readiness and commitment to introduce judicial fervor in the appointment of members of same bodies.
So far as the appointment of R.M. Thakkar and Shri V.C. Joshi as members of the Tribunal is concerned, we are not deliberating on the issue as they have already resigned and their resignations have also been accepted.
With regard to the appointment of President of the Tribunal, it is stated that after number of years, one Shri H.P. Patel, a retired District Judge was appointed as President of the Tribunal, but no consultation was made with the Chief Justice of the High Court.
Mr. Mihir Joshi, learned Senior Advocate appearing with Mr. S.M. Thakkar, learned counsel for the petitioners, while assailing the validity of amended Rule 40-A as introduced vide notification dated 6th October, 2010, submitted that provisions of Secs. 96 to 99 read with Rule 40-A, nowhere prescribe guidelines for appointment of Nominees of the Registrar. Though provision of Sec.96 read with Sec.98[1] of the said Act provides for a decision of Registrar for deciding the dispute himself or for referring for disposal by a Board of Nominee appointed by the Registrar, the fact remains that till date, Lavad suits filed in the State of Gujarat are being directly heard by the Registrar's Nominee. There has never been a decision of the Registrar for referring the dispute in the manner contemplated by Sec.98[1]. There are no guidelines, whatever issued by the State Government guiding the Registrar as to which type of cases/disputes under Sec.96 would be heard by the Registrar himself or his nominee or by the Board of Nominee, decision on the said issue has been left to the sole discretion of the Registrar.
It is also submitted that there are no guidelines whatsoever prescribed by the State Government in respect of pecuniary jurisdiction to be exercised by the Registrar or his nominee or Board of Nominees.
Learned counsel submitted that as per the Amendment Rules, 2007, qualifications for appointment of nominee or Board of Nominees was such that only the candidates who hold or has held a judicial office not lower in rank than that of Senior Civil Judge or has practiced as an advocate, pleader or Vakil for ten years or more, is enrolled as an advocate or having a degree or other qualification in law of any university. Even Joint Registrars, Cooperative Societies were to hold such qualification of degree in law and experience of having held office not lower in rank than that of Deputy Registrar of Cooperative Societies. Now, the State Government, instead of adhering to its commitment and assurance given to this Court, of bringing in judicial fervor and ensuring independence of the Registrar's nominee, has, by amended Rule 40-A introduced vide impugned notification dated 6th October, 2010, has allowed law degree holders working for five years as Deputy Registrar of Cooperative Societies in the State of Gujarat, or its equivalent post, or Joint Registrar of Cooperative Societies, Gujarat State, to be appointed as Registrar's Nominee. Thus, instead of ensuring that a capable person like a practicing advocate or a person qualified and holding a degree in law from a recognized university which entitles him to be enrolled as an advocate and having knowledge of specialized subjects such as Law of Evidence, Code of Criminal Procedure, Code of Civil Procedure etc. is appointed as Registrar's Nominee, the State Government has deemed it fit to do away with such qualification and instead, appointment of candidates who have cleared only IInd LL.B. now can be made.
Learned counsel referred to some of the decisions of this Court in the case of Manjulaben Dahyabhai Trivedi v. Pushpaben Mangaldas Patel & Anr., reported in 2007 [2] GLR 1269, Habron Co-operative Housing Society Ltd. v. Meenakshiben Anantkumar Macwan, reported in 2002 [1] G.L.H. 272, Arjunbhai K. Vegda v. Tejvir Park Co-op Housing Society Ltd. and others, reported in 2003 AIHC 288, to highlight the nature of cases a Registrar or his nominee or Board of Nominees is required to adjudicate under Sec.96 of the Act. It is contended that power as vested with Registrar or his nominee to decide such important issues, only the persons having experience in judicial field and knowledge of law should be preferred over others.
So far as the provisions of Secs. 150[1], 150[2] and 150[3] are concerned, referring to Rule 78, it is submitted that neither provisions of Sec.150 nor Rule 78 prescribe any guideline whatsoever to the State Government as to the number of judicial officers to be appointed as members of the Tribunal. Further, no guideline whatsoever has been given to the President for deciding the constitution of Bench and/or as to which type of cases shall have to be adjudicated by the Bench comprising only of judicial officer and/or a Bench comprising of at least one judicial officer; the State Government, by its own conduct has shown its disinclination for appointment of judicial officer and at any cost wants to ensure that it continues to hold the field in the matter of appointment and functioning of the Registrar's nominee as well as the Tribunal.
It is alleged that since last four decades, despite the decision rendered by this Court in the case of Rasiklal v. Kailash Gauri [supra], no specific step has been taken by the State to bring judicial fervor in the constitution of Tribunal and Registrar's nominee or Board of Nominee.
Mr. P.K. Jani, learned Government Pleader appearing for the respondents has disputed the allegation and taken a specific plea that the observations made by this Court earlier and the undertaking as was given have been implemented in its letter and spirit. According to the respondents, the judgment rendered by this Court in the case of Gujarat Revenue Tribunal and Anr v. A.K. Chakravotry, President, Gujarat Revenue Tribunal and Anr., reported in 2009 [3] G.L.R. 2665 is not applicable to the present case, inasmuch as in the said case, qualification for appointment to the post of President of Gujarat Cooperative Tribunal was not under challenge, but provisions stipulating the appointment of Chief Secretary of the State Government as President of the Gujarat Revenue Tribunal was under
challenge. In the said case, this Court held that Secretary to the Government cannot be appointed as President of the Gujarat Revenue Tribunal.
It is contended that there is no such stipulation made in the present rules as President is appointed from amongst judicial officers as provided in the Act and the Rules referred by the petitioners.
Learned Government Pleader referred to order dated 21st February, 2011 passed by this Court in the present case, wherein a specific query was raised as to whether without consultation of the Chief Justice of the High Court, the State Government can appoint any retired High Court Judge or retired judicial officer as member of the Tribunal/Commission. It was contended that under Secs. 150[2] and 150[3] of the said Act, the Tribunal consists of one President and three members. As the post of President was to fall vacant since 20th September, 2010, a letter dated 18th May, 2010 was addressed by the State Government to the Registrar General of the High Court of Gujarat, requesting to forward list containing names of sitting or retired High Court Judges/District Judges. In continuation of the said letter, another letter was addressed by the State Government on 17th June, 2010 to the Registrar General, High Court of Gujarat. In reply to the said letter, Registrar General, High Court of Gujarat, by communication dated 15th June, 2010 forwarded names of ten retired District Judges and nine retired Fast Track Court Judges; in all 19 names for appointment to the post of President and members of the Tribunal.
On 4th August, 2010, the State Government, from its Agriculture and Cooperation Department wrote individual letters to the concerned officers seeking their willingness for appointment as President of the Tribunal. The said letters were followed by reminders dated 17th August, 2010. On receipt of such reply, on 11th October, 2010, the State Government decided to appoint Shri H.P. Patel, a retired District Judge on the post of President, Gujarat State Cooperative Tribunal. On 11th October, 2010, by a letter addressed to the Registrar General, High Court of Gujarat, name of Shri H.P. Patel was forwarded by the State Government for approval of the Chief Justice, High Court of Gujarat. Thereafter, Registrar [Admn.], High Court of Gujarat, by his letter dated 12th October, 2010 forwarded the approval stating that the Chief Justice is pleased to grant clearance as required under the provisions of Rule 78 of the Gujarat Cooperative Societies [Amendment] Rules, 2007 for the name of Shri H.P. Patel. Consequent upon the clearance and approval given by the Chief Justice of the High Court, Shri H.P. Patel had been appointed as President of the Gujarat State Cooperative Tribunal, Ahmedabad. Thus, total procedure was followed by the Government after consultation with the Chief Justice, High Court of Gujarat on the administrative side and thereby, undertaking given before this Court in the earlier case was followed.
So far as the appointment to the post of Member [Judicial] in the Tribunal is concerned, it is stated that on 28th May, 2010, the State Government, from its Agriculture and Cooperation Department, called for ten names from the Registrar General, High Court of Gujarat, who were juniors to the President and against whom no departmental inquiry had been conducted or pending. On 17th June, 2010, reminder was given followed by another letter dated 4th August, 2010 written by the State Government to the Registrar General, High Court of Gujarat. Registrar [Admn], High Court of Gujarat, by letter dated 5th October, 2010, forwarded a list of ten judicial officers to the State Government. In the meantime, as the State Government had appointed Shri H.P. Patel as President of the Tribunal, by another letter dated 16th October, 2010, the State Government requested the Registrar General, High Court of Gujarat, for getting new names of judicial officers who were junior to Shri H.P. Patel. Pursuant to the said letter, Registrar [Admn], High Court of Gujarat, by letter dated 22nd November, 2010 forwarded list of 12 judicial officers who were junior to Shri H.P. Patel. After seeking consent from the said 12 judicial officers by letter dated 22nd December, 2011, 6 out of 12 officers had submitted their willingness for the post of Member of the Tribunal.
On 19th January, 2011 Shri A.G. Raval was selected and on 22nd January, 2011, the same was approved by the Chief Election Officer, State of Gujarat as at that time, notification was published for holding by-election of Khadia Assembly Constituency. Shri A.G. Raval, retired judicial officer had been appointed as Member of the Gujarat State Cooperative Tribunal. The aforesaid matter was also intimated to the High Court of Gujarat and post facto approval was prayed for.
As noted earlier, it has already been brought to the notice of this Court that Shri V.C. Joshi and Shri R.M. Thakkar have tendered their resignations which have been accepted. Thus, grievance of the petitioners to that extent is redressed.
Learned Government Pleader would contend that in view of the action taken by the State Government and the procedure followed, on mere presumption, the petitioners cannot challenge the provisions of Secs. 150[1], 150[2] and 150[3] of the Gujarat Cooperative Societies Act, 1961 and challenge to Rule 78 of the Amendment Rules, 2010 is also uncalled for.
We have already noticed Secs. 150[1], 150[2] and 150[3] of the Act, which relate to constitution of Gujarat State Cooperative Tribunal to exercise functions conferred on the Tribunal under the Gujarat Cooperative Societies Act, 1961. Under sub-sec.[2] of Sec.150, the Tribunal shall consist of a President, and not more than three other members possessing such qualifications as may be prescribed. Sub-sec.[2A] of Sec.150 stipulates grounds to terminate appointment of member of Tribunal before the expiry of term of his office; whereas under sub-sec[3] of Sec.150, any vacancy in the membership of the Tribunal shall be filled by the State Government. We have already noticed that the petitioners have miserably failed to state as to why the power of President to constitute benches be declared as ultra wires in absence of any contradiction with any of the provisions of the Constitution of India.
The petitioners have not challenged the total provision of Rule 40-A including clauses- [a] and [b] of the said Rule. They have challenged newly substituted sub-rule [c], wherein, qualification of degree in law from a university established by law of India has been prescribed apart from the experience of Deputy Registrar of Cooperative Societies, Gujarat State or its equivalent post or Joint Registrar of Cooperative Societies, Gujarat State.
Under clause [a] of Rule 40-A of the Amendment Rules, 2007, nominee of the Board of Nominees can be appointed from amongst the judicial officers of the rank of Senior Civil Judge, or above. An advocate or Pleader or Vakil having ten years of experience is also eligible for appointment as nominee of the Board of Nominees under clause [b] of Rule 40-A. Two provisions contained under clause [a] and [b] of Rule 40-A are not under challenge.
Prior the Amendment 2010, persons holding a degree or qualification of law of any university and holding the post of Joint Registrar of Cooperative Societies or holding the office not lower in rank than that of Deputy Registrar, Cooperative Societies or equivalent post for five years or more, were eligible for appointment. By newly substituted clause [c] of Rule 40-A, no substantive change has been made except that Joint Registrar of Cooperative Societies or Deputy Registrar of Cooperative Societies having five years or more experience who hold a degree of law from the university established by law in India have been made eligible. This newly substituted provision is almost the same as was there under the old clause [c]. Only difference is that in the earlier clause [c], there was a specific stipulation that such person must have a degree in law of any university established by law or of any other authority which entitles him to be enrolled as an Advocate. But this time, such stipulation that "which entitles him to be enrolled as an Advocate" has not been made.
Sec.7 of Advocates Act, 1961 stipulates functions of Bar Council of India. Under Sec.7[1][h], while Bar Council of India is required to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils, under clause [i] of Sec.7[1] for promoting such legal education, the Bar Council of India is empowered to recognize Universities whose degree in law shall be a qualification for enrollment as an advocate and for that purpose to visit and inspect the Universities.
All the recognized Universities and their constituent or affiliated colleges impart teaching in law on obtaining recognition from the Bar Council of India. It is unfortunate that some of the institutions which are imparting teaching for degree in law, may not be recognized by the Bar Council of India. But we are not concerned with any such degrees not recognized by Bar Council of India as legal education can be promoted and standard of education can be laid down by any University in India only in consultation with Bar Council of India under Sec.7[1][h] of the Advocates Act, 1961. Therefore, we hold that a degree in law from a university established by law in India as referred to in newly substituted clause [c] of Rule 40-A means degree of law from a university as established by law in India, i.e. recognized by University Grants Commission and Bar Council of India.
It is informed at the Bar that now, for enrollment as an Advocate, special examination is conducted by the Bar Council of India from amongst holders of a degree in law from university recognized by Bar Council of India. In view of such examination, if the State Government has deleted the words "which entitles him to be enrolled as an advocate", it cannot faulted with and that will not render the newly substituted clause [c] of Rule 40-A as illegal or ultra vires.
The petitioners have raised a doubt with regard to ability of nominees appointed from administrative side out of Deputy Registrars or Joint Registrars of Cooperative Societies; the main thrust of the argument is that judicial officers should be preferred over them.
Sec.96 read with Sec.98 of the Gujarat Cooperative Societies Act, 1961 relates to disputes resolution empowering Registrar, Cooperative Societies to decide the dispute himself; he is also empowered to refer the dispute for disposal to a nominee or Board of Nominee appointed by the Registrar under Sub-sec. [2]; while the Registrar is empowered to withdraw any dispute from a nominee or Board of Nominee for the reasons recorded in writing and may decide the dispute himself or refer it again for decision to any other member. For proper appreciation of the issue, relevant Sec.96[1] and Sec.98 are quoted hereunder:
"96.
Disputes:
[1] Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society shall be referred in the proscribed form either by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if the parties thereto are from amongst the following:
[a] a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society;
[b] a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;
[c] a person, other than a member of the society, who has been granted loan by the society, or with whom the society has or had transactions under the provisions of section 46, and any person claiming through such a person;
[d] a surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society under section 46, whether such a surety is or is not a member of the society.
[e] any other society, or the liquidator of such a society.
xxx xxx xxx 98. Settlement of disputes: [1] If
the Registrar is satisfied that any matter, referred to him is a dispute, within the meaning of section 96 the Registrar shall, subject to the rules, decide the dispute himself, or refer it for disposal to a nominee, or a board of nominees, appointed by the Registrar:
Provided that no person who is connected with a dispute or with the society at any stage or has previously inspected the society or audited its accounts shall be appointed as a nominee or as member of the board of nominees to settle the dispute.
[2] Where any dispute is referred under sub-section [1] for decision to the Registrar's nominee or board of nominees, the Registrar may at any time, for reasons to be recorded in writing withdraw such dispute from his nominee, or board of nominees, and may decide the dispute himself, or refer it again for decision to any other nominees, or board of nominees, appointed by him.
[3] Notwithstanding anything contained in section 96, the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society. If any such suit is not instituted within two months from the Registrar's order suspending proceedings, the Registrar shall take action as is provided in sub-section [1]."
From the aforesaid provisions, it will be evident that the Registrar who is empowered to decide the dispute is not a judicial officer but an officer of the State Government and for him the qualification of Law degree has not been prescribed. The aforesaid provisions of Sec. 96 and Sec.98 of the Act empowering the Registrar to decide the dispute are not under challenge. The power vested with him to refer the matter to the nominee or Board of Nominee is also not under challenge. The only issue which is under challenge is appointment of nominee out of Deputy Registrar and Joint Registrar of Cooperative Societies having law degree.
Original Rule 40-A also empowers Joint Registrar and Deputy Registrar of Cooperative Societies to decide such disputes, if nominated as nominee of the Registrar. The same is also not under challenge. Validity of Sec. 96 and Sec.98 and some other provisions of the Act was under challenge in the case of Rasiklal Patel v. Kailasgauri Ramanlal Mehta, reported in 1971 GLR 355. In the said case, the Court noticed that the special procedure provided in these sections is much less advantageous than the ordinary procedure of adjudication by Civil Courts. In the said case, similar argument was made that special machinery which provides for arbitration by Registrar or his nominee is a poor substitute for the ordinary machinery of determination by a Civil Court. It was urged that no minimum qualification is prescribed for the Registrar or his nominee under any provision of the Act. All the aforesaid arguments were rejected by the Division Bench of this Court. Hon'ble Mr. Justice P.N. Bhagwati [as he then was], while dealing with the matter, on behalf of the Bench observed as follows:
"17. It is apparent from this analysis of the impugned provisions that the special procedure provided in these sections is much less advantageous than the ordinary procedure of adjudication by Civil Courts according to the Code of Civil Procedure. In the first place, under the special procedure, the dispute would be decided by the Registrar or his nominee who would not ordinarily be an experienced judicial officer and may not even be a competent lawyer. Secondly, there would be no right of appeal to a Court of law: the right of appeal would only be to the Co-operative Tribunal. Thirdly, there would be no right of second appeal even on a question of law. Fourthly, the elaborate safeguards provided by the procedural provisions of the Code of Civil Procedure would be absent. Fifthly, instead of full record of the evidence, there would be only brief notes of evidence. And lastly, legal representation would not be available to the parties unless the dispute involves complicated question of law or fact. The parties to whom the special procedure is made applicable may legitimately inquire: what is this discrimination being made against us and why should our disputes with the Society be adjudicated according to a special procedure which has not the same advantages as the ordinary procedure applicable to other litigants? If no rational justification can be given in answer to this question, the special procedure would be clearly violative of the equal protection clause contained in Article 14.
xxx xxx xxx 23. There
were in the main three grounds on which it was contended on behalf of the petitioners that the special machinery of adjudication provided in the impugned sections is unreasonable. The first ground was that the special machinery which provides for arbitration by the Registrar or his nominee is a poor substitute for the ordinary machinery of determination by a Civil Court. The petitioners also urged, and this was the second ground, that no minimum qualification is prescribed for the Registrar or his nominee under any provision of the Act nor is it stipulated in any provision of the Act that the Registrar or his nominee should be a person with legal training and the basic requirement of a fair trail, namely, that it should be by an experienced Court is, therefore, not satisfied. The last ground was that sec.99 sub-sec.[2] denies legal representation to the parties unless the dispute involves complicated questions of law or fact and this provision denying access to legal aid also detracts from the reasonableness of the special machinery. These grounds require to be considered only in relation to disputes with members since so far as non-members are concerned, we have already held that the impugned provisions are violative of Article 14. But even so, what we observe in regard to the first two grounds would apply equally in relation to the disputes with non-members.
24. So far as the first ground is concerned, it is no doubt true that the special machinery prescribed by the impugned sections provides for determination of the dispute by the Registrar or his nominee in accordance with the procedure set out in the impugned provisions read with Rule 41 instead of by a Civil Court according to the Code of Civil Procedure, but that is no reason why the special machinery should be condemned as unreasonable. We have grown up in a system of administration of justice where Civil Courts have been the primary authorities entrusted with the task of determination of disputes and, therefore, whenever a special machinery is devised by the Legislature entrusting the power of determination of disputes to another authority set up by the Legislature in substitution of Courts of law, our minds which are conditioned by the historical existence of Courts of law and which have, therefore, acquired a certain predilection for the prevailing system of administration of justice by Courts of law, react adversely against the establishment of such an authority. We must, therefore, cast aside our predilection for the existing system of administration of justice which has prevailed over a long period of time and examined the special machinery set up by the Legislature objectively and dispassionately without any pre-conceived notion or prejudice against it. If we approach the problem from this point of view, we do not think there is anything per se unreasonable in the provision of special machinery for adjudication of disputes by the Registrar or his nominee so long as the basic essentials of a fair trial are present. Merely because this special machinery displaces the ordinary machinery of a civil suit, it does not mean that it is unreasonable.
25. Turning to the second ground the petitioners are right when they contend that no minimum qualification for the Registrar or his nominee is prescribed in any provision of the Act nor does any provision of the Act require that the Registrar or his nominee should be possessed of legal training. But that in our view does not introduce any element of unreasonableness in the special machinery provided by the impugned sections. The Registrar is the highest officer contemplated by the Act and large administrative and quasi-judicial functions are entrusted to him under various provisions of the Act. The State Government would, therefore, naturally be careful to see that the Registrar is a senior experienced officer competent to discharge the functions and duties entrusted to him under the Act. The Registrar would in the circumstances be a highly responsible officer fully conscious of his manifold responsibilities under the Act. Now when a dispute is referred to him by any of the parties for decision, he would naturally as a responsible officer first consider whether he is competent to decide the dispute. It is possible that he may be a lawyer or he may have acquired sufficient legal training in which event he may think that he can competently decide the dispute referred to him. But if he has no legal training, he would naturally find out a nominee who is fit and competent to decide the dispute and refer the dispute to him for decision. Now it is true that no minimum qualifications are prescribed for a nominee and, therefore, theoretically the nominee may be any person even without legal training. But it must be remembered that there are innumerable kinds of disputes, which may come for decision before the Registrar. Some disputes may be so simple that they do not require any particular knowledge of law and might best be decided by experienced co-operators or commercial men. Then again there might be some disputes such as those relating to building or construction work, which can be more competently decided by architects or engineers than by lawyers. Some other disputes may come before him who involves questions of law but these questions may be fairly simple and it might be possible to have them decided by lawyers who are doing reasonably well in the profession. Then there might also be certain disputes, which involve complicated or difficult questions of law or fact and in those cases, it may be necessary to have good senior experienced lawyers as nominees. The choice of the nominee must, therefore, necessary depend on the nature of the dispute which comes before the Registrar and it would not be possible in the very nature of things to prescribe any rigid or definite qualifications which must be possessed by a person before he can be appointed a nominee. The discretion must be left with the Registrar to choose a proper nominee having regard to the nature of the dispute before him. The Registrar must exercise his discretion fairly and with a sense of responsibility so that there should be a free and competent nominee appointed to decide the dispute. It is true that sometimes cases have come to our notice where we have found that lawyers without much experience or having little or no practice at all are appointed by the Registrar as nominees to decide disputes and these has led to an uneasy feeling in the minds of the litigating public that appointments of nominees are sometimes made on extraneous considerations or at any rate without giving due and proper thought to the question. But in such cases, where the discretion is exercised unfairly, unreasonably or perversely, the arms of the Court are sufficiently long to reach the Registrar and to strike down any improper appointment made by him. As a matter of fact, we are told that now a policy has been adopted by the State Government to appoint a board of nominees consisting of retired Judges to decide disputes referred to the Registrar. This is a very healthy step taken by the State Government and we have no doubt that it will go a long way towards restoring the confidence of the public in the fairness, efficiency and purity of administration of justice under the special procedure provided by the impugned sections which by reason of ill-considered appointments of nominees in the past was badly shaken. The absence of prescription of minimum qualification to be possessed by a nominee does not in the circumstances have the effect of making the machinery of adjudication unreasonable."
The aforesaid judgment in the case of Rasiklal Patel v. Kailasgauri Ramanlal Mehta rendered by Division Bench of this Court still holds good and takes care of the argument as advanced by the petitioners on mere suspicion. We hold that the Registrar who is the highest officer contemplated by the Act is not only competent to perform administrative power but also quasi-judicial functions and on same principle, the Joint Registrar and Deputy Registrar having sufficient experience with degree of law are also competent to deal with the same. Earlier, when the issue was challenged, no qualification was laid down for Registrar or his nominee. But in the present case, now, even qualification of law degree has been prescribed for being appointed as nominee apart from administrative experience.
The petitioners have challenged the validity of Sec.150 of the Act which relates to constitution of Gujarat State Cooperative Tribunal on one of the grounds that that there should be one judicial member for Benches of the Tribunal; he should be appointed with consultation of the Chief Justice of the State and administrative members should also be appointed in consultation with the Chief Justice. It is alleged that under Rule-78, administrative members are appointed in consultation with the Advocate General.
In the case of Union of India v. R. Gandhi, President, Madras Bar Association, reported in JT 2010 [5] SC 553, while deciding the validity aspect of Establishment of National Company Law Tribunals and National Company Law Appellate Tribunals, the Supreme Court noticed difference between the "Courts" and the "Tribunals" as under:-
"The term 'Courts' refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for administration of justice that is for exercise of the judicial power of the state to maintain and uphold the rights to punish wrongs and to adjudicate upon disputes. Tribunals on the other hand are special alternative institutional mechanisms usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law. Courts refer to Civil Courts, Criminal Courts and High Courts. Tribunals can be either private Tribunals [Arbitral Tribunals], or Tribunals constituted under the Constitution [Speaker or the Chairman acting under Para 6[1] of the Tenth Schedule] or Tribunals authorized by the Constitution [Administrative Tribunals under Article 323A and Tribunals for other matters under Article 323B] or Statutory Tribunals which are created under a statute [Motor Accident Claims Tribunal, Debt Recovery Tribunals and consumer fora]. Some Tribunals are manned exclusively by Judicial Officers [Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial Tribunals]. Other statutory Tribunals have Judicial and Technical Members [Administrative Tribunals, TDSAT, Competition Appellate Tribunal, Consumer for a, Cyber Appellate Tribunal, etc.]."
In the said case, the Supreme Court also held that Legislation can transfer certain areas of litigation from Courts to Tribunals and recognized that the legislature can provide for technical members in addition to judicial members in such Tribunals.
The functioning of the Registrar's nominee and Cooperative Tribunals fell for consideration before a Full Bench of this Court in the case of Shaikh Mohammedbhikhan Hussainbhai v.
Manager, Chandrabhanu Cinema and others, reported in 1985 G.L.H. 1076.
In the said case, question was raised that whether Tribunal is covered under the scope and ambit of the word 'Court' as employed by the Contempt of Courts Act and while dealing so, noticed the scheme for Gujarat Cooperative Societies Act, 1961. The Full Bench held that there is no room for doubt that the Registrar's nominees arid the Co-operative Tribunal satisfy all the four tests for deciding the question whether they are covered by the net-work of provisions of the Contempt of Courts Act, 1971 and thus, held that the Tribunals and judicial authorities satisfy the test.
Thus, it will be evident that Gujarat State Cooperative Tribunal, satisfy all the tests of Court and constitution of such Tribunal in absence of any conflict with the provisions of the Constitution, cannot be upset solely on the ground that rule does not provide for appointment of administrative member in consultation with the Chief Justice of the State.
Similar question as to whether contemplation of consultation with Chief Justice is necessary for appointment of revenue members other than judicial members in the Tribunal constituted under the Andhra Pradesh Land-Grabbing [Prohibition] Act, 1982, fell for consideration before the Supreme Court in the case of State of A.P. v. K. Mohanlal and another, reported in [1998] 5 Supreme Court Cases 468.
In the said case, the Supreme Court held that no consultation is required with Chief Justice for appointment of revenue member of the Tribunal and answered the question as follows:
"11.
In the perspective of these observations, it would not be correct to hold that because the members of the Special Court, in the present case, can be appointed by the Government without consulting the Chief Justice of the State, the Special Court is an unconstitutional court, since its members do not enjoy the same degree of independence as the members of the higher judiciary, especially when the Chairman's appointment is in consultation with the Chief Justice of the State. Also, the remedy under Articles 226 and 227 is available against the orders of the Special Court.
xxx xxx xxx 13.
In the present case, there are some additional safeguards. The appointment of the Chairman has to be in consultation with the Chief Justice of the High Court if he is a retired High Court Judge or it has to be a person nominated by him, if he is a sitting High Court Judge, with the concurrence of the Chief Justice of India. This will go a long way towards securing the kind of independence that one is looking for such a Special Court. However, Section 7 cannot be considered as violative of any provision of the Constitution. Our attention was drawn to a decision of this Court [to which one of us was a party] in case of State of Maharashtra v. Labour Law Practitioners' Assn. The question considered in that case was somewhat different from the question before us here. In that case, the question was whether a member of the executive could be appointed to a service which was held to be a judicial service of the State. This Court held that he could not be so appointed. In the present case, the said Special Court is not a part of the judicial service of the State. It is an administrative tribunal with a mixed composition of Judicial and Revenue Members. The appointments of retired District Judges and Revenue Members do not attract Article
234."
In the present case, while qualification of President and other members has been prescribed under Rule-78, for appointment of person who has been Judge of the High Court or District Judge, as the President of the Tribunal, consultation of the Chief Justice of the High Court has been made mandatory, therefore, it cannot be held that appointment of President of the Tribunal is illegal or violative of any provisions of the Constitution of India. So far as appointment of members of the Cooperative Tribunal is concerned, it will be evident that apart from an advocate, a person who holds a degree or other qualification of law, Deputy Secretary to the Government and Joint Secretary to the Government are also eligible for appointment. Appointment of those members who are not holding judicial office in the State is to be made in consultation with the Advocate General. The Supreme Court in the case of State of A.P. v. K. Mohanlal, reported in [1998] 5 SCC 468 has held that in absence of such consultation with the Chief Justice, it will not render the Act unconstitutional, because, the Special Court was subject to judicial review of the High Court under Arts. 226 and 227 of the Constitution. In view of such finding of the Supreme Court, the submission that for appointment of members of the Tribunal, consultation with Chief Justice is required cannot be accepted. Thus, submission as made on behalf of the petitioners being devoid of merit and the main grievance relating to appointment of respondent nos. 4 and 5 having been redressed on their having tendered resignations and acceptance thereof by the State Government, no further relief can be granted; the writ petition is accordingly dismissed. There shall be no order as to costs.
[S.J. MUKHOPADHAYA, CJ.] [J.B.PARDIWALA, J.] pirzada/-
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