Gujarat High Court
Vipulbhai M Chaudhary - Chairman vs Gujarat Cooperative Milk Marketing ... on 10 January, 2014
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, Mohinder Pal
C/LPA/6/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 6 of 2014
In
CIVIL APPLICATION NO. 13220 of 2013
In
SPECIAL CIVIL APPLICATION NO. 16515 of 2013
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VIPULBHAI M CHAUDHARY - CHAIRMAN....Appellant(s)
Versus
GUJARAT COOPERATIVE MILK MARKETING FEDERATION LIMITED &
6....Respondent(s)
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Appearance:
MR ND NANAVATI, SENIOR ADVOCATE assisted by MR PS CHAMPANERI,
ADVOCATE for the Appellant(s) No. 1
MR BS PATEL, ADVOCATE with MR CHIRAG B PATEL, ADVOCATE for the
Respondent(s) No. 4 , 6 - 7
MR SN SHELAT, SENIOR ADVOCATE assisted by MR KUNAL NANAVATI for
NANAVATI ASSOCIATES, ADVOCATE for the Respondent(s) No. 1
MR AMIT M PANCHAL, ADVOCATE with MS SHIVANI RAJPUROHIT,
ADVOCATE for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 10/01/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present Letters Patent Appeal is filed by Shri Vipulbhai M.Chandhary-appellant-petitioner being aggrieved by order passed by the learned Single Judge in Civil Application No.13220 of 2013 dated 06.01.2014, a Page 1 of 18 C/LPA/6/2014 ORDER copy of which is produced at Annexure-E to this appeal. The order runs from page No.Z-43 to Z-66.
2. Learned Senior Advocate Mr.N.D.Nanavati appearing for the appellant vehemently submitted that the learned Single Judge has committed an error in deciding Civil Application No.13220 of 2013, more particularly when Special Civil Application No.16515 of 2013, in which this CA was filed, is referred to by the learned Single Judge to the Division Bench. Learned Senior Advocate submitted that once the SCA is referred to the Division Bench, according to him, the learned Single Judge becomes functus officio and he could not have taken up the task of deciding CA No.13220 of 2013.
2.1 Besides that, learned Senior Advocate for the appellant submitted that the learned Single Judge directed the Registry to place papers of SCA before the Division Bench. He submitted that the papers of SCA will include the papers of all applications filed in the said SCA. Learned Senior Advocate for the appellant submitted that passing an order in CA, after referring the main matter, i.e. SCA No.16515 of 2013, is nothing but an arbitrary exercise of power which is required to be remedied by the Division Bench by entertaining this appeal and quashing the order allowing CA No.13220 of 2013.
Page 2 of 18 C/LPA/6/2014 ORDER
3. Learned Senior Advocate Mr.S.N.Shelat appears for respondent No.1 Federation, learned AGP Mr.Rindani appears for respondent Nos.2 and 3, learned Advocate Mr.B.S.Patel appears for respondent Nos.4, 6 and 7 and learned Advocate Mr.Amit M.Panchal appears for respondent No.5.
4. Learned Senior Advocate Mr.Shelat for respondent No.1 submitted that the learned Single Judge has not committed any error in adjudicating upon CA No.13220 of 2013. He submitted that the learned Single Judge was well within his rights in law in view of observations made by the Hon'ble the Apex Court which passed order in Special Leave to Appeal (Civil) No.37057- 37059 of 2013 (from the judgment and order dated 04.12.2013 in CA No.12770 of 2013 in LPA No.1413 of 2013 in SCA No.16515 of 2013, CA No.12775 of 2013 in LPA No.1414 2013 in SCA No.16515 of 2013 and CA No.12778 of 2013 in LPA No.1416 of 2013 in SCA No.16515 of 2013). Learned Senior Advocate for respondent No.1 invited attention of the Court to the order passed by the Hon'ble the Apex Court, a copy of which is produced at page Nos.116 to 118 of the compilation. Learned Senior Advocate for respondent No.1 invited attention of the Court to the observations made by the Hon'ble the Apex Court in para-4 onwards, which read as under:- Page 3 of 18 C/LPA/6/2014 ORDER
"4. Mr.Mukul Rohatgi, learned senior counsel for the respondent No.1 - Gujarat Co-operative Marketing Federation Ltd. (for short, 'Federation') submits that the Federation shall make an appropriate application for implementation of the above Resolution before the single Judge, if permitted by this Court.
5. We think that the prayer made on behalf of the respondent No.1 is reasonable. Instead of making an application for implementation of the Resolution dated 05.12.2013 before the Division Bench, we thing that it will be appropriate if such application is made before the single Judge. We order accordingly.
6. It will be open to the petitioner to oppose such application on all available grounds. We leave it open to the single Judge to either consider the application for implementation of the Resolution dated
05.12.2013 or hear the Special Civil Application No.16515 of 2013 itself finally for which date has already been fixed on 23.12.2013 or any other date which may be fixed by the Court.
(emphasis supplied) 4.1 Learned Senior Advocate for respondent No.1 submitted that the Hon'ble the Apex Court in its wisdom deemed it proper not only to permit respondent No.1 to file application for implementation of Resolution No.3 which was passed on 05.12.2013, which itself is part of Page 4 of 18 C/LPA/6/2014 ORDER the order of the Hon'ble the Apex Court, but the Hon'ble the Apex Court went ahead stating that, "We leave it open to the single Judge to either consider the application for implementation of the Resolution dated 05.12.2013 or hear the Special Civil Application No.16515 of 2013 itself finally.....".
4.2 Citing the aforesaid observations of the Hon'ble the Apex Court, learned Senior Advocate for respondent No.1 submitted that the learned Single Judge has not committed any error in deciding CA No.13220 of 2013, while referring the main petition on a very specific question of law.
4.3 In this regard, in addition to the relevant paras of the judgment and order of the learned Single Judge, which were invited attention to by learned Senior Advocate Mr.N.D.Nanavati for the appellant, learned Senior Advocate for respondent No.1 invited attention of the Court to the following paras:-
"5.3 So far the question of maintainability of the petition is concerned, generally, that question is gone into first, by the Court and in the event, the contention of the respondent is upheld in this regard, the matter may not be required to be examined on merits at all. Though, being conscious of this course to be adopted, this Court has, for the reasons and in Page 5 of 18 C/LPA/6/2014 ORDER the circumstances narrated hereinafter, thought it fit to first consider the bone contention on merits of the matter, and the maintainability aspect is gone into in para:9 of this order. 4.4 It is thereafter that the learned Single Judge examined the bone contention in para-6.1, which reads as under:-
"6.1 The bone contention on behalf of the petitioner, on merits, is that the petitioner was elected as Chairperson of the Federation by the Board for the term of three years and he has right to hold this office for three years, which is yet not over, and in absence of any provision in the Gujarat Co-operative Societies Act, 1961, No Confidence Motion could not have been moved against him at all by the Directors who had elected the petitioner as Chairperson, and therefore all subsequent actions in that regard i.e. from the stage of calling of the meeting of the Board of Directors to consider the no confidence motion, till passing of the said no confidence motion, are nullity and the same needs to be quashed and set aside.....".
4.5 After setting out the bone contention, the learned Single Judge has considered in para-6.2 various decisions cited before him. After citation of the judgment, the learned Single Judge has observed as under:-
Page 6 of 18 C/LPA/6/2014 ORDER
Thus, under (i) the Gujarat Agricultural Produce Markets Act, 1963, (ii) the Gujarat Co- operative Societies Act, 1961, and (iii) the Gujarat Panchayats Act, 1993, respectively, consistent view of this Court has been, that even in absence of any specific provision in the principal statute, No Confidence Motion can be brought and considered to remove any elected office bearer."
(emphasis supplied) 4.6 The learned Single Judge then proceeded to refer to the judgment of the Hon'ble the Apex Court in the matter of K.Sahadev versus Suresh Bir reported in 1995 Supp.(3) SCC 668, and in the case of State of U.P. versus C.L. Agrawal reported in AIR 1997 SC 2431(1).
4.7 The aforesaid two decisions are referred to by the learned Single Judge to bring home the point that he does not want to act in any manner which may not be in accordance with judicial discipline and therefore, the learned Single Judge observed in para-7.1.4 as under:-
"7.1.4 The above view is consistently followed by the Apex Court and reference can be made to the decision in the case of Official Liquidator versus Dayanand and Others reported in (2008) 10 SCC 1 (Para 79 thereof)."
4.8 The learned Single Judge then observed as under:-
Page 7 of 18 C/LPA/6/2014 ORDER
"7.1.5 The above course does not appear to have been adopted while rendering the decision in the case of Babubhai Kalidas Patel (supra). Thus, the decision in the case of Babubhai Kalidas Patel (supra), in my view, is arrived at, procedurally in conflict with the view expressed by the Apex Court in the above referred decisions and therefore, I have considered it necessary to examine the issue on merits, as to whether the above referred three decisions of our Court can be said to have stood impliedly overruled for any reason and if yes, then it is only the procedural aspect which needs to be reconciled."
4.9 The learned Single Judge then examined the matter on merits and after posing question to himself, observed in para-8.1 as under:-
"8.1 The next question is, as to under these circumstances, which course should I adopt. When, in substance as well as in procedure, both, according to me, the decision in the case of Babubhai Kalidas Patel (supra) is in conflict with the law laid down by the Apex Court as narrated above, without referring the matter to the Division Bench, I could have proceeded to adjudicate the petition in accordance with law, however judicial discipline and propriety demands that our Court should not appear to be heard in different voices to the society, on broad proposition of law. Keeping this obligation in view, I consider it prudent Page 8 of 18 C/LPA/6/2014 ORDER to refer the matter to the Division Bench on the issue, as to whether the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra)."
(emphasis supplied) 4.10 In para-8.2, the learned Single Judge makes it clear that:-
"8.2 ..... Thus, the question of law, which is being referred to the Division Bench by this order, was already admitted for consideration by the Division Bench."
4.11 Learned Single Judge then recording finding on merits in para-10.3, which reads as under:-
"10.3 Having heard learned advocates and having gone through the material on record on this point, I find that the petitioner had remained present as Chairman in the said meeting and he unsuccessfully attempted to adjourn it without transacting any business, and then he walked out with his lone supporter Mr.Ramsingh Parmar. When the dispute is with regard to the consideration of No Confidence Motion against the Chairman of the said meeting Page 9 of 18 C/LPA/6/2014 ORDER itself, the say of said Chairman needs closer scrutiny. On going through the documents on record, this Court finds that this contention, though not unknown to law, is more out of frustration. If the petitioner succeeds on the bone contention, he need not bank upon this, but the petitioner can not salvage the situation only on the alleged procedural irregularity, which this Court finds none. This contention is rejected."
5. On perusal of the judgment and order rendered by the learned Single Judge in all depth and with all possible closure scrutiny, this Court is of the opinion that the learned Single Judge, being bound by the judicial discipline, deemed it proper to make a reference of 'a pure question of law to the Division Bench'. So far as merits are concerned, learned Single Judge, pursuant to directions issued by the Hon'ble the Apex Court (in the form of permission to the learned Single Judge to decide the main petition or the application), proceeded to decide CA. In para-11.2, the learned Single Judge has observed as under:-
"11.2 The above prayer, in the circumstances narrated above, can not be considered at this stage. Even after the decision is rendered by the Division Bench on the question of law which is being referred to by this order, it is not necessary that this prayer be accepted. At the most, it is a proposition of law, which a party Page 10 of 18 C/LPA/6/2014 ORDER aggrieved can press into service in appropriate proceedings, as is done in this case. This prayer therefore is rejected."
(emphasis supplied)
6. Learned Senior Advocate Mr.Shelat for respondent No.1 rightly invited the attention of the Court to the observations made by the learned Single Judge in para-12 to bring home the submission that the learned Single Judge was conscious of the course adopted by him. Para-12 reads as under:-
"12. Now coming to the next question, that pending further consideration of this petition by the Division Bench on the question of law which is recorded above, which course should be adopted......"
(emphasis supplied) 6.1 Learned Single Judge has then discussed in para-13 about SCA No.16594 of 2013 and after careful consideration has come to the following conclusion:-
"During the course of hearing, it was specifically inquired by this Court as to who is appearing for respondent No.3 of Special Civil Application No.16594 of 2013, and everybody is silent, even Mr.Chapaneri, learned advocate for petitioners of both the petitions, has also stated that he is not appearing for respondent No.3 of Special Civil Application No.16594 of 2013. The petitioner of Special Page 11 of 18 C/LPA/6/2014 ORDER Civil Application No.16594 of 2013 can not have any locus to agitate about the no confidence motion being considered by the Federation against its Chairperson. It appears that, the Mehsana District Cooperative Milk Producers Union Limited has treated it to be Mr.Vipulbhai Chaurdhary. Said person is already agitating his grievance in Special Civil Application No.16515 of 2013. This petition, therefore, needs to be dismissed.
6.2 Finally, learned Single Judge has allowed the CA, but before that the learned Single Judge has taken pains to decide SCA No.16515 of 2013 and observed in para-14. As under:-
"14.2 Special Civil Application No.16515 of 2013
(i) This petition is entertained on merits. The preliminary objection of the respondents about its maintainability is rejected, for the reasons and circumstances recorded in Para 9 above.
(ii) On the principal contention of the petitioner, that in absence of any provision in the Gujarat Co-operative Societies Act, 1961, No Confidence Motion could not have been considered and passed against him, the matter is referred to the Division Bench to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Page 12 of 18 C/LPA/6/2014 ORDER Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra), can be said to have stood impliedly overruled, as perceived by this Court in the case of Babubhai Kalidas Patel (supra), on the face of the reasons recorded in Para 7 above.
(iii) The alternative submission of the petitioner as recorded in Para 10 is rejected.
(iv) The prayer clause 15(AA) is rejected."
7. Learned Senior Advocate Mr.N.D.Nanavati invited attention of the Court to para-15, while submitting that the learned Single Judge directed the Registry to place papers of SCA No.16515 of 2013 before the Hon'ble the Chief Justice to consider for placing it before the Division Bench, to consider the question as to whether, the decision of the Full Bench of this Court in the case of Nandlal Bavanjibhai Posiya (supra), and that of the Division Bench of this Court in the case of Motibhai R.Chaudhary (supra) and that of Single Judge in the case of Narmadaben V.Parmar (supra) can be said to have stood impliedly overruled. He submitted that the papers of SCA No.16515 of 2013 were ordered to be placed before the Hon'ble the Chief Justice, which could be construed to mean that papers of CA No.13220 of 2013 are also required to be placed and learned Single Judge cannot decide CA Page 13 of 18 C/LPA/6/2014 ORDER No.13220 of 2013 once the aforesaid direction is issued.
8. As observed hereinabove, this Court is not able to accept that contention. This Court is of the opinion that in view of the liberty granted by the Hon'ble the Apex Court to the learned Single Judge by saying that, "We leave it open to the single Judge to either consider the application for implementation of the Resolution dated 05.12.2013 or hear the Special Civil Application No.16515 of 2013 itself finally", the learned Single Judge has considered the SCA finally and only the question of law is referred to the Division Bench by directing the Registry to place the papers before the Hon'ble the Chief Justice.
9. Learned Senior Advocate Mr.Shelat for respondent No.1 invited attention of the Court to a decision of the Hon'ble the Apex Court in the matter of State of Rajasthan Vs. R.S.Sharma and Company, reported in (1988) 4 SCC 353. Learned Senior Advocate for respondent No.1 invited attention of the Court to para-8 of the judgment, relevant part of which reads as under:-
"8. The law as it stands today is clear that unless there is an error of law apparent on the face of the award, the award, cannot be challenged merely on the ground of absence of reasons. This is settled law by a long series of decisions. Interests of justice and Page 14 of 18 C/LPA/6/2014 ORDER administration of justice would not be served by keeping at bay final adjudication of the controversy in this case on the plea that the question whether an unreasoned award is bad or not, is pending adjudication by a larger bench....."
9.1 Learned Senior Advocate for respondent No.1 relied upon the aforesaid observations and submitted that question of law as set out by the learned Single Judge is referred to the Division Bench, assuming for the sake of argument that, that question which is referred to is required to be referred by the learned Single Judge. He submitted that this is all without admission on the part of his client that adjudication of CA was not required to be kept pending along with other points, which could have been decided and are decided by the learned Single Judge in SCA No.16515 of 2013.
10. Learned Advocate Mr.B.S.Patel appearing for respondent Nos.4, 6 and 7 invited attention of this Court to a decision of Division Bench of this Court in the case of Atulbhai Patel, Director, Baroda District Co-op. Milk Producers Union Vs. State of Gujarat & Ors., reported in 2009 (1) GLR 623. Learned Advocate invited attention of the Court to para-21 of the judgment, which reads as under:-
"21. As regards the submission of Mr. Mehta Page 15 of 18 C/LPA/6/2014 ORDER that under the present scheme, elections of the Chairmen of the different District dairies are held on different dates, and therefore, the term of the directors on the Board of Directors of the respondent Federation commences and ends on different dates, we do not think that for that reason alone, the Bye-laws of the respondent Federation, particularly Bye-law No.18.1 can be regarded as arbitrary and unreasonable. As regards the hypothetical illustration and the apprehension about the possibility of the Chairman of the Federation continuing as Chairman, though he does not enjoy majority support, the apprehension is thoroughly misconceived. A Full Bench of this Court has already held in Nandlal Bavanjibhai Posiya & Ors. Vs. Director of Agriculture Marketing & Rural Finance & Anr. 2002(2) GLR 1132 that it is the inherent right of a member of a democratic body to move the no-confidence motion against their elected leader, which is a concomitant of the right to elect a leader, that a no confidence motion can be passed by simple majority, unless the statute or Bye-law indicates a contrary intention. In Motibhai R. Chaudhary, Chairman, Mehsana District Milk District Producers Co-operative Federation Ltd. Vs. Registrar, Co-operative Societies, 2004 (3) GLR 2251 a Division Bench of this Court has applied the above principle in the matter of no-confidence motion against the Chairman/Vice- Chairman of the Managing Committee of the Federal Society or any Co-operative Society registered under the Gujarat Co-operative Page 16 of 18 C/LPA/6/2014 ORDER Societies Act.
Hence, the Chairman of the respondent Federation, who is elected by the Board of Directors of the Federation can be removed by the Board of Directors at any time by passing a no-confidence motion, as there is nothing in the statute or the Bye-laws of the Society of the Federation to take away the said democratic right."
(emphasis supplied)
11. In view of the aforesaid discussion, this Court is of the opinion that the learned Single Judge has not committed any error in deciding CA No.13220 of 2013. This Court deems it proper to put a note of appreciation that the learned Single Judge has consciously made all attempts to adhere to judicial discipline.
12. In the result, this appeal fails and the same is dismissed.
13. At this juncture, learned Senior Advocate Mr.N.D.Nanavati for the appellant requested that non- implementation of No Confidence Motion be extended atleast for a period of 10 days, on condition that the appellant-original petitioner will not preside over the meetings.
14. This Court would have readily accepted such a request made by the learned Senior Advocate in any other Page 17 of 18 C/LPA/6/2014 ORDER matter, but in the present case, this Court is of the opinion that once a Chairperson, who is unanimously voted out by majority of Board of Directors, this request cannot be accepted. The request is rejected.
(RAVI R.TRIPATHI, J.) (MOHINDER PAL, J.) SHITOLE Page 18 of 18