Gujarat High Court
Bhil Seva Mandal Sahakari Vastu Bhandar ... vs State Of Gujarat on 23 March, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/3021/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3021 of 2018
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BHIL SEVA MANDAL SAHAKARI VASTU BHANDAR LIMITED
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the PETITIONER(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
MR TIRTHRAJ PANDYA, AGP for the Respondent No.1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 23/03/2018
ORAL ORDER
1. With the consent of the learned Advocates for the parties, the matter has been heard finally at the admission stage.
2. The question that falls for consideration before this Court is, whether the petitioner Society is required to be registered as a Cooperative Marketing Society under the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the Societies Act"), so as to be construed as the Cooperative Marketing Society within the meaning of Section 2(v) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the APMC Act").
3. The petitioner Society, by way of present Page 1 of 13 C/SCA/3021/2018 ORDER petition, has challenged the order dated 17.2.2018 passed by the respondent No.2 Director and the order dated 11.1.2018 passed by the respondent No.3 District Registrar, at Annexure- A and Annexure-G respectively, whereby the petitioner Society has not been treated as the Cooperative Marketing as per Section 2(v) of the APMC Act for the election of APMC, Dahod, on the ground that the petitioner Society was not registered as the Cooperative Marketing Society under the the Societies Act.
4. As per the case of the petitioner Society, the petitioner Society is registered under the Societies Act, and it is engaged in the business of buying and selling of agriculture produce for its members within the market area of APMC, Dahod, and is also holding the licence issued by APMC, Dahod. The tenure of APMC, Dahod was likely to be over, and the petitioner apprehended that the petitioner Society would not be treated as the Cooperative Marketing Society for the purposes of the election of the APMC. It, therefore, had made representations to the respondent No.2 Director and the respondent No.3 District Registrar, however, the said representations remained undecided. In the meantime, the election programme was published by the Director on 4.1.2018, showing only one representative to be elected from the Cooperative Marketing Societies Constituency. The petitioner, therefore, had challenged the Page 2 of 13 C/SCA/3021/2018 ORDER said action by filing the Special Civil Application No.1163 of 2018. Since the representations made the petitioner earlier had remained undecided by the respondents, the Court without going into the merits of the case, vide the order dated 12.2.2018 directed the petitioner Society to make a fresh representation to the respondent Director, and directed the respondent Director to decide the same as expeditiously as possible. Accordingly, the respondent Director passed the impugned order dated 17.2.2018, rejecting the representation of the petitioner and holding that the petitioner Society was not the Cooperative Marketing Society, and therefore, could not be included in the voters' list of the Cooperative Marketing Societies Constituency. Being aggrieved by the same, the present petition has been filed.
5. The respondent Director has defended his action by filing the affidavit-in-reply contending inter alia that the petitioner Society having participated in the last election held in 2014 from the Traders' Constituency, it could not raise grievance this time for not including its name in the voters' list of Cooperative Marketing Societies. It is further contended that the petitioner Society is classified as the Consumer Cooperative Society and not Cooperative Marketing Society, as per the classifications made by the Registrar in the Circular dated Page 3 of 13 C/SCA/3021/2018 ORDER 26.7.1996 issued under Section 12 of the Societies Act, and therefore, it could not be said to be the Cooperative Marketing Society as per Section 2(v) of the APMC Act.
6. It is sought to be submitted by the learned Advocate Mr.Dipen Desai for the petitioner that the respondent Director, misinterpreting the provisions contained in Section 11(i)(iii) read with Section 2(v) of the APMC Act, has wrongly not included the petitioner Society in the voters' list of Cooperative Marketing Societies Constituency. According to Mr.Desai, the petitioner has already been included in the voters' list of traders' constituency as contemplated under Section 11(1)(ii), meaning thereby the petitioner Society is holding general licence for the purchase and sale of agricultural produces, however, for the purpose of Clause (iii) of Sub-section (1) of Section 11, the respondent Director has taken a contradictory stand by holding that the petitioner Society was a consumer society and not a Marketing Society under the APMC Act. Mr.Desai has also relied upon the audit report of the Society to show that in the previous year, the Society had traded in agricultural produce worth more than Rs.1 crore. Mr.Desai has relied upon the decision of the Division Bench of this Court in case of Jagidhbhai Ranchhodbhai Patel Vs. State of Gujarat, reported in 2008(0) GLHEL-HC 220473 and also the Page 4 of 13 C/SCA/3021/2018 ORDER decision in case of Azamukhi Dangar Utpadakoni Sahakari Mandali Ltd. Vs. State of Gujarat, reported in 2016(3) GLR 2051, to buttress his submission that no Society is registered as the Cooperative Marketing Society under the Societies Act, and therefore, the words 'as such' contained in Section 2(v) of the APMC Act is required to be construed to mean as Society only.
7. However, the learned AGP Mr.Tirthraj Pandya for the respondent Director vehemently submitted that the petition was thoroughly misconceived, inasmuch as the core object of the petitioner Society is not to buy or sell agricultural produce, and therefore, it could not be treated as Cooperative Marketing Society as contemplated in Clause (iii) of Sub-section (1) of Section 11 of the APMC Act. Raising the preliminary objection against the maintainability of the petition, he submitted that the petitioner had an alternative remedy available to approach the competent authority under Rule 28 of the said Rules challenging the validity of the election, or could have also challenged the impugned order passed by the respondent No.2 Director under Section 48 of the APMC Act. He further submitted that as per the definition contained in Section 2(v), the Society has to be registered as the Cooperative Marketing Society under the Societies Act and as per the classification made by the Registrar in the Page 5 of 13 C/SCA/3021/2018 ORDER Circular dated 26.7.1996. The petitioner Society having not been registered as the Cooperative Marketing Society, and it being a consumer society, the respondent Director had rightly not treated it as the Cooperative Marketing Society for the purposes of Section 11(1)(iii) of the APMC Act.
8. So far as the submission of the learned AGP with regard to the existence of alternative remedy is concerned, it may be noted that under Rule 28 of the said Rules, the person qualified either to be elected or to vote at the election in question could challenge the validity of the election of the member of the Market Committee before the Director. However, in the instant case, the Director himself has passed the impugned order pursuant to the earlier order passed by this Court in SCA No.1163 of 2018, and therefore, the petitioner could not be relegated to the same authority as contemplated in Rule 28 of the said Rules.
9. The Court is also well aware and quite conscious of the well settled legal position to the effect that once the election process starts, it would not be proper for the Courts to interfere with the election process and that the Courts must be very circumspect and act with caution while entertaining the election disputes. However, it is equally settled position of law that the orders passed by the election officers are open Page 6 of 13 C/SCA/3021/2018 ORDER to judicial review under Article 226 of the Constitution of India, if the decisions of such officers or statutory bodies are found to be mala fide or arbitrary exercise of powers, or to be in breach of law or on misconception of law.
10. In the instant case, the petitioner has challenged the order passed by the respondent Director on the ground of being arbitrary, illegal and dehors the APMC Act. The issue posed before the Court being on interpretation of the provisions contained in the APMC Act and Societies Act, it would be apposite to reproduce the relevant provisions thereof. Section 11(1)
(iii) of the APMC Act reads as under:-
"11. Constitution of market committee.- (1) Every market committee shall consist of the following members, namely;-
(i) xxx
(ii) xxx
(iii) two representatives of the co-operative marketing societies situate in the market area, holding general licences, engaged in the business in conformity with their respective objects and have their last accounts audited in class A, B, or C, as the case may be, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies;"
11. The definition of "Cooperative Marketing Society" as contained in Section 2(v) reads as Page 7 of 13 C/SCA/3021/2018 ORDER under:-
"2. Definition.- In this Act, unless the context otherwise requires-
(i) to (iv) xxx
(v) "co-operative marketing society"
means a society registered or deemed to be registered as such under the Gujarat Co- operative Societies Act, 1961 and engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce and holding a licence;"
12. Section 2(19) of the Societies Act, defines 'Society' as under:-
"2. Definitions.-
(1) to (18) xxx (19) "society" means a co-operative society registered, or deemed to be registered, under this Act;"
13. Section 4 of the Societies Act deals with the registration of the Societies, which reads as under:-
"4. Societies which may be registered.-
A society, which has as its object the promotion of the economic interest or general welfare of its members or of the public, in accordance with co-operative principles, or as society established with the object of facilitating the operations of any such society, may be registered under this Act:
Provided that it shall not be registered if, in the opinion of the Registrar, it is Page 8 of 13 C/SCA/3021/2018 ORDER economically unsound, or its registration may have an adverse effect upon any other society, or it is opposed to, or its working is likely to be in contravention of public policy."
14. Section 12 of the Societies Act pertains to the classification of the Societies, which reads as under:-
"12. Classification of societies.-
The Registrar may classify all societies in
such manner, and into such classes, as he
thinks fit; and the classification of a
society under any head of classification by
the Registrar shall be final."
15. Now, the respondent Director has not treated the petitioner Society as the Cooperative Marketing Society, on the ground that the petitioner Society is not registered 'as such' i.e. as the Cooperative Marketing Society under the Societies Act, as contemplated in Section 2(v) of the APMC Act. In the opinion of the Court, the respondent Director has thoroughly misinterpreted the said provision. If the definition of "Cooperative Marketing Society" as contained in Section 2(v) is closely read, it transpires that a Society registered or deemed to be registered 'as such' under the Cooperative Marketing Societies Act, 1961, engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce and is holding a licence would be called Cooperative Marketing Society. Meaning thereby, Page 9 of 13 C/SCA/3021/2018 ORDER the Society has to be registered or deemed to be registered as the Society under the Societies Act. The submission of the learned AGP that the words 'as such' contained in the definition clause is required to be interpreted in the context of the Operative Marketing Society, has no legs to stand. As per Section 2(19) of the Societies Act, 'Society' means a Cooperative Society registered or deemed to be registered under the said Act. If the said definition is read in the context of the definition clause contained in Section 2(v) of the APMC Act, it appears that the words 'as such' used in the Section 2(v) would relate to the Society and not the marketing society. There is no provision under the Societies Act to register any cooperative society as the Cooperative Marketing Society. The learned AGP has failed to show any provision from the Societies Act, which would require any society to be registered as the Marketing Society or the consumer society or as per the classifications made by the Registrar under Section 12 of the Societies Act. Section 12 empowers the Registrar to classify the societies under the different categories for the purposes of the said Act. However, there is nothing on record to suggest that the cooperative societies are registered as per the classification made by the Registrar under Section 12 of the Societies Act. Hence, apart from the fact that the copy of the Circular Page 10 of 13 C/SCA/3021/2018 ORDER dated 26.7.1996 has not been produced by the respondent along with the affidavit-in-reply, such Circular, if any, issued under Section 12 could not be relied upon for the purpose of the interpretation of the provisions of the APMC Act, and to hold that the cooperative societies are required to be registered as per such classification.
16. For the purposes of Section 2(v) of the APMC Act, a society for being construed as the Cooperative Marketing Society, has to satisfy three conditions. Firstly, the society has to be registered or deemed to be registered 'as such' means 'as society' under the Gujarat Cooperative Societies Act, 1961. Secondly, the said society must have been engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce, and thirdly such society must be holding licence granted under the said Act.
17. Similar view has also been taken by the Single Bench of this Court in case of Azamukhi Dangar Utpadakoni Sahakari Mandali Ltd. Vs. State of Gujarat, reported in 2016(3) GLR 2051, wherein it has been observed that -
"21. In the definition of cooperative marketing society under section 2(1)(v) of the Act of 1963, two parts "registered" and "deemed to be registered as such" are connected with conjunction "or" which coordinate such parts of the definition and Page 11 of 13 C/SCA/3021/2018 ORDER creating alternative between them. The word 'as such' cannot be for the phrase 'marketing society'. Even otherwise, undisputably, no society is registered as marketing society under the provisions of the Societies Act. The word 'as such' is just to make it certain that the registration of the society by deeming fiction is under the provisions of the Societies Act. Section 169 of the Societies Act provides for such deemed registration of the cooperative society under the Societies Act."
18. It was next submitted by the learned AGP that the petitioner Society was not engaged in the business of buying or selling of agricultural produce or of processing agricultural produce. The said submission also cannot be accepted. The respondent Director in the impugned order itself has specifically stated that as per the report of the auditor, the petitioner Society was carrying on the business of buying and selling of grains, which are agricultural produces. Even otherwise, when the petitioner Society has already been included in the voters' list of the traders' constituency and is holding valid licence issued under the Act for the purchase and sale of agricultural produces, it does not lie in the mouth of the respondent authorities to say that the petitioner society is not engaged in the business of buying or selling the agricultural produces.
19. In that view of the matter, the impugned Page 12 of 13 C/SCA/3021/2018 ORDER order passed by the respondent Director could not be vindicated. Permitting such order to survive would result into misinterpretation of the provisions contained in the APMC Act, entailing misuse of powers by the concerned authorities under the said Act. The petitioner Society is required to be treated as the "Cooperative Marketing Society" within the meaning of Section 2(v) for the purposes of Section 11(1)(iii) of the APMC Act. The members of the petitioner Society shall be at liberty to fill up the nomination form from the Co- operative Marketing Societies constituency of the APMC, Dahod.
20. The impugned order dated 17.02.2018 passed by the respondent Director is set aside. The petition stands allowed accordingly. The learned AGP is directed to convey the order telephonically to the concerned respondents. Direct service is permitted.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 13 of 13