Gujarat High Court
Ashwinbhai Ambalal Patel vs Balasinor Dudh Utpadak Sahakari ... on 14 February, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10461 of 2018
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 10461 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ASHWINBHAI AMBALAL PATEL & 9 other(s)
Versus
BALASINOR DUDH UTPADAK SAHAKARI MANDALI LTD & 6 other(s)
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR BS PATE, SENIOR ADVOCATE WITH MR CHIRAG B PATEL(3679) for
the Respondent(s) No. 4,5,6
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,7
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 14/02/2022
ORAL JUDGMENT
Heard learned advocate Mr.B.M. Mangukiya for the petitioners, learned Assistant Government Pleader Mr.Dhawan Jayswal for the respondent No.1 Page 1 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022 C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022 and learned Senior Advocate Mr.B.S Patel assisted by learned advocate Mr.Chirag Patel for the respondent Nos.4 and 5 through video conference.
2. Rule returnable forthwith. Learned AGP Mr.Dhawan Jayswal waives service of notice of rule for the respondent No.1 Custodian of Balasinor Dudh Utpadak Sahakari Mandali Ltd. Learned advocate Mr.Chirag Patel waives service of notice of rule for the respondent Nos.4 and 5.
3. Though served, none appears for the respondent Nos.2, 3 and 7. Respondent No.6 has already expired, and therefore, this Court passed the order dated 13th January, 2022 to bring the legal heirs of respondent No.6 on records. However, today learned advocate Mr.Mangukiya submitted that this petition pertains to election and hence, there is no need to bring the legal heirs of the respondent No.6 on records.
4. By this petition under Article 227 of the Constitution of India, petitioners have prayed for the following reliefs :
"(A) be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions and quash and set aside the order passed by the Gujarat State Cooperative Tribunal in Revision Application No.151 of 2017 confirming the order passed by learned Nominee below Exh.24 in Arbitration Suit No.24 of 2017;Page 2 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022
C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022 (B) pending hearing and final disposal of this petition, be pleased to stay operation, implementation and execution of the order passed by the Gujarat State Cooperative Tribunal in Revision Application No.151 of 2017 confirming the order passed by learned Nominee below Exh.24 in Arbitration Suit No.24 of 2017 and further direct that the Petitioners may not be restrained by anybody from functioning as a member of the Committee of the Respondent No.1 Society;
(C) be pleased to grant such other and further reliefs as the circumstances may require."
5. The brief facts of the case are that the petitioners, who are agriculturists, alongwith respondent Nos.4, 5 and 7 are the members of the respondent No.1 Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 (for short "the Act of 1961").
5.1 It is the case of the petitioners that the election of the respondent No.1 Society was held in the year 2017 and in the election the petitioners were elected as members of the respondent No.1 Society.
5.2 The respondent Nos.4 to 6 filed Lavad Suit No.24 of 2017 before the Board of Nominees at Godhra, challenging the election and also preferred an application Exh.-4 for interim orders. During the pendency of the hearing of the interim injunction application at Exh.-4 the respondent No.1 Custodian was appointed on 21st September, 2017.
Page 3 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022 5.3 The Board of Nominees, however, ignored the appointment of the Custodian of the respondent No.1 Society and passed an order dated 16th October, 2017 allowing the application Exh.-4 restraining the petitioners from discharging their duties as committee members till further elections are held.
5.4 The petitioners being aggrieved of the order dated 16th October, 2017 passed by the Board of nominees preferred Revision Application No.151 of 2017 before the Gujarat State Co-operative Tribunal (for short "the Tribunal"). The Tribunal by order dated 18th June, 2018 rejected the revision application on the ground that as the Custodian is appointed on 21st September, 2017, there is no need to interfere in the order passed by the Board of Nominees granting interim injunction against the petitioners.
5.5 Being aggrieved by the orders passed by the Board of Nominees and the Tribunal, the petitioners have filed this petition with the aforesaid prayers.
6. Learned advocate Mr.B.M. Mangukiya appearing for the petitioners submitted that the Board of Nominees could not have passed an order granting injunction against the petitioners in view of the order of appointment of Custodian during the Page 4 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022 C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022 pendency of the hearing of the injunction application. It was submitted that the order of appointment of the Custodian is already challenged by the petitioners before the appropriate authority.
7. Learned Senior Advocate Mr.B.S.Patel assisted by learned advocate Mr.Chirag Patel for the respondent Nos.4 and 5 submitted that it is true that the Board of Nominees could not have passed the impugned order dated 16th October, 2017 in view of the appointment of the Custodian of the respondent No.1 Society. It was submitted that the appointment of the Custodian is under challenge and therefore, till such challenge is decided by the appropriate authority, the Board of Nominees could not have adjudicated upon the interim injunction application Exh.-4 filed in Lavad Suit No.24 of 2017.
8. Learned AGP Mr.Jayswal also fairly stated that in view of appointment of Custodian, impugned interim orders were not required to be passed.
9. I have considered the submissions made on behalf of the learned advocates for the respective parties and also perused the orders passed by the Board of Nominees as well as the Tribunal. The Board of Nominees has taken into consideration the appointment of the Custodian Page 5 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022 C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022 during the pendency of the application for interim injunction, however, without considering the effect of such order, the Board of Nominees has passed the impugned order on merits, without waiting for the outcome of the challenge to appointment of Custodian before the appropriate authority. Similarly, the Tribunal has also confirmed the order passed by the Board of Nominees, inspite of the fact that the order of appointment of Custodian dated 21st September, 2017 was prior in point of time then the order passed by the Board of Nominees i.e. on 16th October, 2017.
9.1 In such circumstances, the order dated 16th October, 2017 as well as the order passed by the Tribunal confirming such order cannot be sustained and hence, both the orders i.e. order dated 16th October, 2017 passed by the Board of Nominees below Exh.-4 as well as the order dated 18th June, 2018 passed by the Tribunal in Revision application No.151 of 2017 are hereby quashed and set aside and the matter is remanded back to the Board of Nominees to decide the application Exh.- 4 after the challenge to the order appointing Custodian is finally adjudicated and after giving an opportunity of hearing to both the sides in accordance with law, without being influenced by the observations made in the earlier order dated 16th October, 2017 or in this order passed by this Court.
Page 6 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022C/SCA/10461/2018 JUDGMENT DATED: 14/02/2022 9.2 Rule is made absolute to the aforesaid extent. No order as to costs.
10. In view of the order passed in Special Civil Application, the civil application is disposed of accordingly.
(BHARGAV D. KARIA, J) dolly Page 7 of 7 Downloaded on : Sun Apr 24 12:55:04 IST 2022