Gujarat High Court
The Chanchpur Arthsam Seva Sahakari ... vs State Of Gujarat on 3 May, 2023
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7009 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 6990 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 6992 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 6994 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 6996 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 6997 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 6999 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7001 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7012 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7013 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7015 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7016 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7020 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7021 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7022 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7023 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7025 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7215 of 2023
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R/SPECIAL CIVIL APPLICATION NO. 7218 of 2023
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C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023
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R/SPECIAL CIVIL APPLICATION NO. 7217 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN SD/-
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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 ? YES
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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THE CHANCHPUR ARTHSAM SEVA SAHAKARI MANDALI LIMITED
Versus
STATE OF GUJARAT
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Appearance:
MR VC VAGHELA(1720) for the Petitioner(s) No. 1
MR J. K. SHAH, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR B. S. PATEL, LD. SR. COUNSEL WITH MR UMANG H OZA(2440) for
the Respondent(s) No. 5,6
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 03/05/2023
COMMON ORAL JUDGMENT
1. Considering the similarity of controversy raised in the captioned writ petitions, with the consent of the learned advocates appearing for the respective parties, the matters are decided by this common oral judgment treating Special Civil Application no.7009 of 2023 as a lead matter.
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2. Mr V. C. Vaghela, learned advocate appearing for the petitioner submitted that the petitioner, by this petitions, has prayed for quashing and setting aside order dated 05.04.2023 passed by the respondent no.4 i.e. Authorized Officer & Cooperative Officer (Market) on the ground that the Authorized Officer, has accepted the objections only on the ground that the petitioner society is not dealing through three tier co-operative credit structure. It is submitted that clause (i) of sub-section (1) of Section 11 of the Gujarat Agricultural Produce and Livestock Marketing (Promotion and Facilitation) Act, 1963 (hereinafter referred to as "the Act of 1963") provides that ten agriculturists whose names are enlisted in the voters list, for the market area, shall be elected by the members of the Managing Committee of the Primary Agricultural Credit Co-operative Societies, dispensing agricultural credit in the market area. It is submitted that section no where says about dispensing of agricultural credit through three tier co-operative credit structure. It is submitted that the society had its own funds received as deposits from its members and therefore, it started dispensing agricultural credit to its members. It is further submitted that the bye-laws of the society are registered and which, provides that the society can create funds from the sources as indicated therein and therefore, the society accepted deposit from its members and has disbursed advances.
2.1 Reliance is placed on the judgment of this Court in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited v. State of Gujarat rendered in Special Civil Application no.2000 of 2016. It is submitted that this Court, was dealing with the amended clause (i) of sub-section (1) of Section 11 of the Act of 1963 providing election of eight agriculturists by the members of the Managing Committee of the Primary Agricultural Credit Co-operative Societies dispensing agricultural credit in the market area. It is Page 3 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 submitted that it only provides that Primary Agricultural Credit Co- operative Societies, are entitled to elect eight agriculturists. It is submitted that this Court, held and observed that the amending Section 11(1)(i) by amendment and prefixing word "primary" before the words "agricultural credit" makes the intention of the legislature more clear to give unequivocal indication that none except the societies which have prime object to do principal business of advancing finance for agricultural purpose and for the purposes connected with the agriculture activities could be included in the voters list.
2.2 Reliance is placed on the judgment of this Court in the case of Narendrasinh Rupsinh Chauhan v. State of Gujarat reported in 2021 LawSuit (Gujarat) 2777. It is submitted that both the judgments in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra) so also Narendrasinh Rupsinh Chauhan (supra), no where lay down about the requirement of dispensing credit through three tier co-operative credit structure, therefore, in the present case, the society, has its own funds, it can dispense with the agricultural credit by its own means.
2.3 Reliance is also placed on the judgment in the case of Rampura Seva Sahakari Mandli Limited Through Chairman Hasmukhbhai Ambalal Patel v. Authorized Officer and Election Officer (Marketing) reported in 2019 (0) AIJEL-HC-240289. It is submitted that reference is made to the judgment in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited v. State of Gujarat and others reported in 2016 (0) AIJEL-HC 235755, wherein, this Court, has explained the language contained in clause
(i) of sub-section (1) of Section 11 of the Act of 1963 and it has been held that provisions contained in Section 11(1)(i) have been amended w.e.f. 10.04.2015 and according to the said amended Page 4 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 provision, the petitioner societies have to be Primary Agricultural Credit Co-operative Societies dispensing agricultural credit observing the norms of three tier co-operative credit structure. It is submitted that language contained in clause (i) of sub-section (1) of Section 11 of the Act of 1963 does not provide for dispensation of agricultural credit as per three tier co-operative credit structure. It is further submitted that as the expression three tier co-operative credit structure is absent, the Authorized Officers, passes the order selectively and wherever it is convenient they apply the provision reading the three tier co-operative credit structure in the section and if it doesn't suit them, they passes the order disregarding or ignoring the dispensation of agricultural credit through three tier co- operative credit structure.
2.4 While referring to the order of the Authorized Officer, it is submitted that the Authorized Officer has deleted the names only on the ground that since the petitioner society is not dealing with three tier co-operative credit structure, the names, cannot be included in the voters list. Considering the inquiry conducted by the Authorized Officer, it clearly suggest that the Authorized Officer, has traveled beyond the jurisdiction for, the powers of the Authorized Officer is only to have a summary inquiry which, can be clearly discern out from the language contained in sub-rule (1A) or Rule 8 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as "the Rules of 1965"). It is submitted that sub-rule (2) of Rule 7 of the Rules of 1965 provides for an inquiry, the Authorized Officer can undertake, who, only has to consider the requirements contained in clause (i) of sub-section (1) of Section 11 of the Act of 1963 and no further. Reliance is placed on the judgment in the case of Bhagat Chiragkumar Mukeshbhai v. State of Gujarat rendered in Letters Patent Appeal no.398 of 2023. It is therefore urged that the order of the Authorized Officer, deserves to be quashed and set Page 5 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 aside.
3. Mr J. K. Shah, learned Assistant Government Pleader, submitted that so far as the aspect of the summary inquiry by the Authorized Officer is concerned, issue is no longer res integra. This Court, in the case of Mandorpur (Fatehpur) Juth Seva Sahkari Mandali Limited v. State of Gujarat, reported in 2017 (2) GLR 1495, has considered in detail, the language contained in Rule 7 and Rule 8 of the Rules of 1965. It is submitted that in the present case, all what the Authorized Officer has done is to inquire as to whether the petitioner society is dispensing agricultural credit through three tier co-operative credit structure which, would be a permissible inquiry.
3.1 While referring to the judgment in the case of Narendrasinh Rupsinh Chauhan (supra), it is submitted that this Court, has considered various judgments including the judgment in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra). This Court, when found that nothing was indicated on facts to make out an extraordinary or special circumstances, so as to warrant immediate interference of this Court, relegated the petitioner therein to avail of the alternative remedy.
3.2 Reliance is further placed on the judgment in the case of Rampura Seva Sahakari Mandli Limited Through Chairman Hasmukhbhai Ambalal Patel (supra). It is submitted that this Court, while relying upon the judgment in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra), dismissed the petition as the petitioner societies therein, were unable to show as to how they were dispensing agricultural credit as per the three tier co-operative credit structure so as to bring them within the purview of the Primary Agricultural Credit Co-operative Societies. The said judgment, was subject matter of challenge in Letters Patent Appeal no.599 of 2019 and the Division Bench, while Page 6 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 rejecting the appeal, observed that it is in complete agreement with findings and reasons on the basis of which conclusion is drawn in the judgment dated 05.03.2019. Therefore, judgment of the learned single Judge, has been confirmed by the Division Bench.
3.3 It is submitted that the issue, is clear that ten agriculturists, enlisted in the voters list, shall be elected by the members of the Managing Committee of the Primary Agricultural Credit Co-operative Societies, dispensing agricultural credit in the market area through three tier co-operative credit structure and therefore, no error can be said to have been committed by the Authorized Officer. Moreover, there is an alternative remedy available to the petitioner to avail of under Rule 28 of the Rules of 1965.
4. Mr B. S. Patel, learned senior counsel appearing with Mr Umang H. Oza, learned advocate, submitted that it is incorrect on the part of the petitioner to contend that the Authorized Officer, has deleted the name only on the basis of the petitioner society not dispensing the agricultural credit through three tier co-operative credit structure. In fact, if the findings are read, the Authorized Officer, has verified other aspects inasmuch as, it has stated that on 25.03.2023, the loan was given on temporary basis. Applications were invited from the needy farmers and after obtaining vouchers, the loan has been sanctioned for the previous year. It has also been recorded that the society, has been reconstituted on 18.01.2023 and the stand of the society that it has given the loan, is far from truth. It is submitted that the Authorized Officer, has also taken note of the fact that credit is shown by the artificial entry. In fact, actually, no credit, has been dispensed with. It is submitted that the petitioner has taken recourse of Hawala entry which has been recorded by the Authorized Officer. Also, no evidence has been produced by the society.
Page 7 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 4.1 Reliance is placed on the judgment in the case of Rampura Seva Sahakari Mandli Limited (supra). It is further submitted that the Authorized Officer, has given findings on three issues. So far as two issues are concerned, the findings are on facts and therefore, inquiry under Article 226 of the Constitution of India, would be impermissible. So far as third issue about the aspect of three tier co- operative credit structure is concerned, the same would also be of no help to the petitioner.
4.2 It is submitted that heavy reliance is placed on the judgment in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra). In fact, after the amendment in the year 2015, the words added were "Primary Agricultural Credit Co- operative Societies". It is submitted that by virtue of the amendment, societies only under the co-operative structure can be considered as Primary Agricultural Credit Co-operative Societies which, is clear from the definition contained in Section 2(7-A) of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as "the Act of 1961"). "Co-operative Credit Structure" means (i) the Primary Agricultural Credit Co-operative Societies; (ii) the Central Co-operative Banks and (iii) the State Co-operative Banks. It is submitted that the judgment of the learned single Judge in the case of Rampura Seva Sahakari Mandli Limited (supra), has been confirmed by the Division Bench. It is submitted that if the Authorized Officer while deciding the objection, has relied upon the judgment, it is not a ground to entertain the writ petition.
4.3 Referring to the judgment in the case of Bhagat Chiragkumar Mukeshbhai v. State of Gujarat (supra), it is submitted that the Division Bench, has made a reference to the judgment in the case of Shrutbandhu H. Popat v. State of Gujarat, reported in 2007 (0) AIJEL- HC 217628 wherein, judgment of the Full Bench in the case of Page 8 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 Daheda Group Seva Sahakari Mandli Limited v. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing), reported in 2006 (1) GCD 211, was considered. It is submitted that in the present case, the Authorized Officer has not committed any jurisdictional error and everything, is within the jurisdiction of the Authorized Officer.
4.4 Further reliance is placed on the judgment of the Division Bench in the case of Mohmed Javid Abdulmutlib Pirzada v. State of Gujarat in Letters Patent Appeal no.555 of 2022. It is submitted that the grievance was against the exclusion of the petitioners from the voters list. In view of the availability of the alternative efficacious remedy, the view taken by the learned single Judge was not disturbed. It has also been held and observed that in view of the settled proposition of law that when the Statute has made a remedy to redress the grievance, it is always permissible for a person while invoking same to raise all permissible contentions in accordance with law. The letters Patent Appeal, was dismissed confirming the order passed by the learned single Judge. It is therefore submitted that if the statute provides for an alternative remedy, this Court, may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
5. Mr V. C. Vaghela, learned advocate in a brief rejoinder, submitted that the findings of the Authorized Officer that the society, has not produced any documents, would be erroneous inasmuch as, reply was filed on 28.03.2023 and documents, were produced. Reference is made to page 23 in support of such contention. It is submitted that therefore the order of the Authorized Officer, deserves to be interfered with.
6. Heard the learned advocates appearing for the respective parties and perused the documents available on record.
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7. The Director, Agricultural Marketing and Rural Finance has declared elections of Agricultural Produce Market Committee, Godhra on 28.02.2023. The date of election, is fixed as 31.05.2023. Voters list was to be sent to the Authorized Officer by 10.03.2023 followed by publication of preliminary voters list by 16.03.2023. Objections and suggestions to the preliminary voters list, were to be filed on or before 31.03.2023. The names of the respective petitioner societies were included in the voters list to which, objections were raised by the objectors which, ultimately led to the passing of the order dated 05.04.2023 by the Authorized Officer deleting the names of the petitioner societies from the voters list. The Authorized Officer, considering the facts of the respective societies so also the provisions of clause (i) of sub-section (1) of Section 11 of the Act of 1963, was of the opinion that only those societies, who are dispensing agricultural credit through three tier co-operative credit structure, can be included in the voters list. The Authorized Officer, noted that the petitioner societies, are not dispensing agricultural credit as per the provisions of clause (i) of sub-section (1) of Section 11 of the Act of 1963 and by showing artificial entry that the names, have been included in the voters list and hence, their names, were directed to be deleted from the voters list. The Authorized Officer, while coming to such conclusion has relied upon the judgment in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra). The Authorized Officer, has further relied upon the judgment of this Court dated 26.08.2022. With this, the Authorized Officer, directed deletion of the names of the petitioners societies from the voters list.
8. It is required to be noted that in the matter before the Coordinate Bench, in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra), the subject matter of challenge was the order passed by the Authorized Officer deleting Page 10 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 the names of the members of the Managing Committee of the respective societies from the voters list. This Court, considered the provisions of Section 11 of the Act of 1963 and the aspect of amendment in clause (i) of sub-section (1) of Section 11 w.e.f. 10.04.2015 and substitution of words "Primary Agricultural Credit Cooperative Societies" in place of "Cooperative Societies" (other than Cooperative Marketing Societies and Milk Produce Cooperative Societies). Objection was raised before the Authorized Officer to the effect that none of the petitioners societies were Primary Agricultural Credit Co-operative Societies within the meaning of amended clause (i) of sub-section (1) of Section 11 of the Act of 1963 and had not followed the procedure and norms of three tier co- operative credit structure, while dispensing agricultural credit. This Court, held and observed that for the purpose of clause (i) of sub- section (1) of Section 11 of the Act of 1963, the societies have to be Primary Agricultural Credit Co-operative Societies, though the term is not defined under the Act of 1963 or under the Act of 1961, but by virtue of the definition provided in Section 2(7A) which was introduced in the Act of 1961 w.e.f. 08.10.2007, "Cooperative Credit Structure" means (i) the Primary Agricultural Credit Cooperative Societies; (ii) the Central Cooperative Banks; and (iii) the State Cooperative Bank. This Court, further held that amendment in the said provision, the eligibility criteria of co-operative societies to participate in the election of Agriculturist Constituency has been confined to the Primary Agricultural Credit Cooperative Societies only and therefore, it was incumbent on the part of the petitioner Societies to fall within the category of Primary Agricultural Credit Cooperative Societies dispensing agricultural credit through three tier co-operative credit structure. This Court, therefore, did not entertain the writ petitions and the petitions were dismissed. Relevant paragraphs 22, 23 and 24 of the said judgment, read thus:
Page 11 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 "22. The main thrust of the arguments made by the learned Sr. Counsel Mr.Joshi is that the Authorized Officer had travelled beyond the scope of inquiry as contemplated in Rule 8 and had not implemented the directions of the order dated 9.12.2015 passed by this Court in the true letter and spirit, inasmuch as the impugned orders though passed separately, contained the same reasons for deleting the names of the members of the Managing Committees of the petitioner Societies. In the opinion of the Court, though the said submissions apparently sound impressive, have hardly any substance in view of the recent amendment made in Section 11(1)(i) of the APMC Act. It transpires from the impugned orders passed by the respondent No.4 that the first and foremost objection raised by the respondent No.5 before the respondent No.4 was that none of the petitioner Societies were the Primary Agricultural Credit Cooperative Societies within the meaning of the amended Section 11(1)(i) of the APMC Act and had not followed the procedure and norms of three-tier Cooperative Credit Structure while dispensing agricultural credits. Now, as per the said amendment, which has come into force w.e.f. 10.4.2015, the words "Cooperative Societies (other than Cooperative Marketing Societies and Milk Produce Cooperative Societies)" have been substituted by the words the "Primary Agricultural Credit Cooperative Societies"
in Clause (i) of Sub-section (1) of Section 11. Hence, when the fresh election programme was declared by the respondent No.2 Director, the said amendment had already come into force, which required that the eight members from agriculturists constituency of the said Committee shall be elected by the members of the Managing Committee of the Primary Agricultural Credit Cooperative Societies, dispensing agricultural credit in the market area. Therefore, for the purposes of Section 11(1)(i), the Societies have to be Primary Agricultural Credit Cooperative Societies. Of course, the term 'Primary Agricultural Credit Cooperative Societies' has not been defined either under the APMC Act or under the Gujarat Cooperative Societies Act. However, it appears that by the Amendment Act 1 of 2008, which came into force w.e.f. 8.10.2007, certain provisions of the Gujarat Cooperative Societies Act were amended, and the provisions with regard to the Cooperative Credit Structure were incorporated therein. The Cooperative Credit Structure is defined in Section 2(7-A) of the said Societies Act as under:-
"Section 2(7A). "Cooperative Credit Structure" means (i) the Primary Agricultural Credit Cooperative Societies; (ii) the Central Cooperative Banks; and (iii) the State Cooperative Bank;"
23. The said Societies Act was also amended by incorporating certain provisions for the Societies, which fall under the Page 12 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 Cooperative Credit Structure, more particularly in respect of borrowings, investments, loans, etc. It is not disputed that the petitioner Societies being cooperative societies registered under the Gujarat Cooperative Societies Act, are governed by the provisions of the said Societies Act and the Rules made thereunder. A bird's eye-view of the provisions of the said Societies Act would reveal that Section 6 of the said Act lays down conditions of registration, and Sub-section (1-A) thereof provides that in case of the society in cooperative credit structure registered under Sub-section (1), the society shall have power to decide their respective area of operation without any restrictions. Section 12 of the said Act states that the Registrar may classify all the 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. Section 44A lays down the powers of the committee of the Society in the cooperative credit structure. Section 45(3) puts restrictions on the eligibility of persons to borrow from or make deposit in a Primary Agricultural Credit Cooperative Societies. Certain privileges and exemptions have also been granted to the Primary Agricultural Credit Cooperative Societies falling in Cooperative Credit Structure, as contained in Chapters VI and VII pertaining to the property, funds and management of Societies.
24. Now, coming back to the provisions contained in Section 11(1)(i) of the APMC Act, it appears that after the amendment in the said provision, the eligibility criteria of Cooperative Societies to participate in the election of Agriculturist Constituency has been confined to the Primary Agricultural Credit Cooperative Societies only. Therefore, it was incumbent on the part of the petitioner Societies to fall within the category of Primary Agricultural Credit Cooperative Societies dispensing agricultural credit, for being eligible to vote in the election of members for the agriculturist constituency of the Market Committee. The objector i.e. respondent No.5 had categorically raised the objections against all the petitioner Societies that they were not the Primary Agricultural Credit Cooperative Societies, dispensing agricultural credit as per the amended provisions of Section 11(1)(i) of the APMC Act and that the credit transactions shown in the books of accounts were not genuine and not as per the three-tier Cooperative Credit Structure. Though the petitioner Societies had submitted their respective replies giving details of the agricultural credit dispensed by them, they had significantly remained silent as to whether they were the Societies classified as the Primary Agricultural Credit Cooperative Societies within the Cooperative Credit Structure under the Gujarat Cooperative Societies Act or not. No such averments have been made by the petitioners in the present petitions also."
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9. The said judgment, was challenged before the Division Bench and the Division Bench, vide judgment dated 01.07.2016, reported in 2017 (2) GLR 902, dismissed the appeal on the ground of availability of alternative remedy. The Division Bench, held and observed that the petitions filed by the petitioner therein were rightly held to be not maintainable in view of the availability of the efficacious alternative remedy under Rule 28 of the Rules of 1965. Relevant paragraphs 11, 12 and 13 of the said judgment, read thus:
"11. From reading of the provision under Section 11 (1)(i) of the Act read with Rule 8 of the Rules, it is also clear that as per the provision under Section 11(1)(i) of the Act, only members of the managing committee of primary agricultural credit cooperative society dispensing agricultural credit in market area alone are eligible for inclusion for holding elections to the agriculturist constituency of the market committee. Further from the reading of Rule 8 of the Rules, it is also clear that when objections are filed under Rule 8(1) of the Rules, it is always open for the authorized officer to hold an inquiry that whether such proposed members of the managing committee are the members of primary agricultural credit cooperative society or not and whether such primary agricultural credit cooperative society is involved in dispensing of agricultural credit in the market area or not. The authorized officer may not conduct in-depth enquiry elaborately, but so as to consider that such nominated members of the particular agricultural society fit into the electorate as contemplated under Section 11(1)(i) of the Act, can make summary inquiry into it. There cannot be any straitjacket formula on the scope of inquiry under Rule 8(2) of the Act with reference to eligibility of the electorate under Section 11(1)(i) of the Act, but it is a matter to be decided by the election officer having regard to the facts of each case. When it is an objection of the objector that the appellant society is not dispensing agricultural credit in the market area, limited inquiry is always permissible by authorized officer under Rule 8(2) of the Rules to that limited extent. Further when electrotate under Section 11 (1)(i) of the Act are members of the primary agricultural credit cooperative society dispensing agricultural credit in the market area, it is also open for the authorized officer to examine whether such societies are primary agricultural credit cooperative societies or not which are involved in dispensation of agricultural credit in the market area. While we are in agreement with the view taken by the earlier Division Bench on the restricted scope of inquiry in the case of Shrutbandhu Himatlal Popat (supra), we Page 14 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 hold that such finding in the inquiry is to be recorded on the basis of the material placed before the authorized officer having regard to the facts of each case. Such order which is passed by considering the material placed before the authorized officer, cannot be said to be an order passed without jurisdiction or extraordinary circumstances as held by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra), so as to entertain the petition under Article 226 of the Constitution of India in view of the remedy available under Rule 28 of the Rules. Further, in the judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha vs. State of Maharashtra and others, reported in (2001) 8 SCC 509, the Hon'ble Supreme Court held that breach of or non-compliance of mandatory provisions with rules during the preparation of electorate roll can be challenged in an election petition under the provisions of the Maharashtra Cooperative Societies Act. In the aforesaid decision, it is held that where election process has started, dispute has to be agitated by way of election petition only. It is further held that preparation of voters list is a part of election process for constituting a managing committee of the specified society and such dispute can be resolved by way of election petition. In recent judgment, while considering the validity of rejection of nomination paper under Dental Council (Election) Regulations, 1952 and Dentists Act, 1948 in the case of Shaji K. Joseph v. V.Viswanath & Ors, reported in 2016 (0) AIJ-SC 57978, the Hon'ble Supreme Court held that all disputes with regard to election should be dealt with only after completion of the election by seeking resolution of dispute as per the regulations.
12. In view of the aforesaid judgments, we are of the view that the petition filed by the appellant is rightly held to be not maintainable by the learned single Judge in view of the that effective alternative remedy available under Rule 28 of the Rules.
13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorized officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorized officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Page 15 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 Rules the Director is working under the government and the impugned order passed by the authorized officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy."
10. Special Leave to Appeal against the judgment of the Division Bench, was dismissed by the Apex Court vide order dated 28.07.2016.
11. In another round of litigation, in the case of Rampura Seva Sahakari Mandli Limited (supra), the issue was once again raised and the learned single Judge, has dismissed the petition relying upon the judgment in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra). The learned single Judge, has also taken note of the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (supra) wherein, it has been held that exclusion or inclusion of the names in the voters list could not be said to be an extraordinary circumstance, warranting interference in writ petition under Article 226 of the Constitution of India. The said judgment, was a subject matter of challenge before the Division Bench by way of Letters Patent Appeal no.599 of 2019 and the Division Bench, vide oral judgment dated 14.03.2019, dismissed the appeal observing thus:
"2. Having heard learned counsel for the appellant, considering the facts and circumstances of the case, and on perusal of the record of the case, including the impugned order, it appears that the learned Single Judge has dismissed all the petitions by assigning cogent reasons. Para 5 of the order dated 05.03.2019 reads as under:
"5. However, the learned Advocate General Mr. K. B. Trivedi appearing for the respondent authorities submitted that the issues raised by the petitioners in the petitions are no more res integra in view of the decision of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited versus State of Gujarat and others decided on 28.06.2016 in Special Civil Application No. 2128 of 2016 and others, which has Page 16 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 been confirmed by the Division Bench in Letters Patent Appeal No. 569 of 2016 and also by the Supreme Court in Special Leave to Appeal (C) No. 19103 of 2016. According to him, the petitioner societies being not the primary agricultural credit societies dispensing agricultural credit as contemplated under the amended Section 11(1)(i) of the APMC Act, the respondent - Authorised Officer has rightly deleted the names of the members of the petitioner societies from the voters' list. He also submitted that the alternative remedy of filing the Election Petition being available to the petitioners under Rule 28 of the said APMC Rules, the present petitions should not be entertained."
3. In view of the above, we are not inclined to accept any of the grounds raised in these appeals since we are in complete agreement with the findings and reasons on the basis of which conclusions drawn by the learned Single Judge in the order dated 05.03.2019."
12. Therefore, the judgment of the learned single Judge in the case of Rampura Seva Sahakari Mandli Limited (supra), has been confirmed by the Division Bench and therefore, the principle, is by now, well settled that the Primary Agricultural Credit Co-operative Societies dispensing agricultural credit has to be as per the provisions of clause (i) of sub-section (1) of Section 11 of the Act of 1963 and the credit transaction, should be as per the three tier co- operative credit structure as defined under Section 2(7A) of the Act of 1961. Mr V. C. Vaghela, learned advocate, could not dispute the said position and thus, contention raised by the petitioner societies that there are divergent views taken, would be fallacious and cannot be accepted.
13. In view of the above, let me also refer to the judgment in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra) of the learned single Judge. In the said case, the issue, was as to what meaning should be assigned to phrase "Primary Agricultural Credit Co-operative Societies" included in clause (i) of sub-section (1) of Section 11 of the Act of 1963. It is Page 17 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 held and observed that by virtue of the Amendment Act of 2015, the legislature now intends that except the Primary Agricultural Credit Cooperative Societies, no other cooperative societies though dispensing agricultural credit should be made entitled to elect 8 agriculturists. The insertion of the word 'primary' would suggest that the societies at the grass root level dealing mainly in advancing agricultural credit are intended to be entitled to elect 8 agriculturists whose names are enlisted in the voters list. The learned single Judge, therefore, held and observed that when clause (i) of sub- section (1) of Section 11 of the Act of 1963 requires only Primary Agricultural Credit Co-operative Societies dispensing agricultural credit in the market area to elect 8 agriculturists for the purpose of constitution of market area, the same is in furtherance of the object of the Act and, therefore, only those societies with prime object of providing agricultural credit can be said to be eligible to be included in the voters list. This Court, while not accepting the contention that the amendment act of 2015 has widened horizon to include all the co-operative societies dispensing agricultural credits, held and observed that if all the societies with one of the objects of dispensing agricultural credit are intended to be included without any exception, there was no need to incorporate the words "primary, agricultural, credit" before the words "cooperative societies". It has been held and observed that considering the phrase used by the legislature while amending clause (i) of sub- section (1) of Section 11 of the Act of 1963, only those societies which have their main object to do business of advancing agricultural credit activities would be considered to be the primary agricultural credit cooperative societies for the purpose of section 11(1)(i) of the Act of 1963.
13.1 The issues considered were viz. (i) the nature; (ii) the membership; (iii) the power and freedom to decide its financial and Page 18 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 internal administrative matters; (iv) minimal subscription by the State Government; (v) payment of dividend, subject to guidelines of the Reserve Bank of India or National Bank; (vi) liberty to affiliate or disaffiliate any federal society of its choice, subject to passing of the Resolution, so on and so forth of the Primary Agricultural Credit Cooperative Society; however, the issue as regards dispensing agricultural credit through three tier co-operative credit structure, was not considered. Pertinently and at the cost of repetition, it is required to be noted that the issue, was to assign meaning to the phrase Primary Agricultural Credit Co-operative Societies and this Court, considering various provisions of the various statues, held that when clause (i) of sub-section (1) of Section 11 of the Act of 1963 requires only Primary Agricultural Credit Co-operative Societies dispensing agricultural credit in the market area, the same, is in furtherance of the object of the Act and therefore, only those societies with prime object of providing agricultural credit, should be said to be eligible to be included in the voters list. The arguments of the learned counsel that the amendment Act has widened the horizon to include all the co-operative societies dispensing agricultural credit, was not accepted.
[ 13.2 Besides, the aforesaid aspect, is strengthened by the observations made in the case of Narendrasinh Rupsinh Chauhan (supra). In fact, in the said judgment, in paragraph 22, it has been recorded that "the main contention about Primary Agricultural Credit Co-operative Societies is based on the amendment brought in Section 11 of the Act of 1963.......The argument, is also based on the decision of the Court in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra)". This Court, has further recorded that "on the basis of the judgment, it is contended to Page 19 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 recognize a society as Primary Agricultural Credit Co-operative Society, the parameters is the 3-tier pattern of credit dispensation." This court, therefore, in paragraph 23, in the opening sentence, has observed that "the closer look of the judgment does not indicate so."
In paragraph 27, this Court, was of the opinion that "the judgment in the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra), does not support the contention of the petitioner that the only and effective parameters to decide the character of Primary Agricultural Credit Co-operative Society is dispensing of credit in three tier system and that such definition will have application to the facts of the case."
Relevant paragraphs 22, 23 and 27 of the said judgment, read thus:
"22. The main contention raised about 'Primary Agriculture Credit Co-operative Society' is based on the Amendment brought in Section-11 of APMC Act, 1963, where Phrase "Primary Agriculture Credit Co-operative Society' was inserted in this section. The argument is also based on the decision of the Court in a group of petition being Special Civil Application No.2000 of 2016 & allied matters in case of "SHREE ABHAY GOPALAK VIVIDH KARYAKARI SAHAKARI MANDALI LIMITED v/s. STATE OF GUJARAT" dated 15-03-2016. On basis of this judgment, it is contended that to recognize as society as Primary Agriculture Credit Co-operative Society, the parameters is the 3-tier Pattern of Credit dispensation.
23. The closer look at the aforementioned judgment does not indicate so. It appears the attempt in that petition was to include Co-operative Credit Society involved in dairy framing activity in the definition of Primary Agriculture Credit Co- operative Society, Para-7 & 8 of the judgment reads as under:
"7. The controversy in the present group of petitions is concerning preparation of voters list for the first constituency falling within section 11(1)(i) i.e. as regards election of eight agriculturists who will be the members of the market committee with other members to be elected and nominated as provided in section 11 to constitute the market committee.Page 20 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023
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8. As per section 11(1)(i) of the Act before it was amended by Amendment Act, 2015, except the cooperative marketing societies and cooperative milk producing societies dispensing cooperative agricultural societies, credit all were entitled to elect eight agriculturists to be the members of Market Committee. Now, by Amendment Act, 2015, clause (I) of section 11(1) is substituted by new clause (i) whereunder it is provided that eight agriculturists whose names are enlisted in the voters' list published by the Election Commission of India for the market area shall be elected by members of managing committee of the primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area. Thus, only Primary Agricultural Credit Cooperative Societies are made entitled to elect eight agriculturists."
27. In view of the aforesaid, Court is of the opinion that the judgment of this Court in case of SHREE ABHAY GOPALAK (supra), does not support the contention of the petitioner that the only or effective parameters to decide the character of Primary Agriculture Credit Co-operative Society is dispensing of credit in three tier system and that such definition will have application to the facts of the case. At this stage, it would be appropriate to reproduce only relevant para from Affidavit of one such respondent Credit Society, as the Affidavits of each Respondent Credit Society is almost identical and have remain unconverted.
"3.3 The deponent states that Section-11(1)(i) provides that 10 agriculturists having land such are to be elected by the members of managing committee of primary agricultural credit co-operative societies dispensing agricultural credit in the market area. It is submitted that the deponent society has been registered in the year 2014 and since then it is dispensing agricultural credit. It is submitted that in the last election of APMC, Balasinor the names of members of managing committee of deponent society was included in the voters list of Balasinor APMC and the members of the society had taken part in the election and no one had raised objection against the inclusion of names of the deponent society in the voters list of agriculturist constituency for Balasinor constituency.
3.4 It is submitted that society is dispensing agricultural credit every year to the members of the society. It is submitted that bye-laws of the society are registered and bye law no.4(1) of the bye laws provides that the society can create funds from the below mentioned sources:Page 21 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023
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(a) from shares (1) from members (2) from Government
(b) from deposit (1) from members (2) from non members of the area of the operation
(c) from loans
(d) from gifts
(e) admission fee Since due to political reasons the District Co-operative Banks was not ready to grant loans to the deponent society therefore the society created its own fund by accepting deposits from its members and have granted loans to the needy members of the society. It is submitted that the society is dispensing agriculture credit every year and the accounts of the society are audited every year. No objection has been raised by the auditor from dispensing agriculture credit from the society. It is submitted therefore the objections raised by the petitioner is not tenable. It is submitted that the authorized officer pursuant to the declaration of election programme had asked by letter dated 21-12-2020 to forward the names of the members of the managing committee along with the documents showing dispensation of agricultural credit. The deponent society had produced the necessary documents to the authorized officer on 28-12-2020."
While observing thus, this Court, did not entertain the petition and was of the opinion that nothing has been indicated on facts to make out an extraordinary and special circumstance so as to warrant immediate interference of this Court invoking Article 226 of the Constitution of India.
14. Adverting now to the aspect of availability of alternative remedy, the Judgment of the Division Bench in the case of Mohmed Javid Abdulmutlib Pirzada (supra) is worth referring to. The Division Bench, pointed out that when statue has created remedy to redress grievance, it is always permissible for a person while invoking same to raise all permissible contentions in accordance with law. The Division Bench, did not interfere with the judgment of the learned single Judge which, dismissed the petition on the ground of availability of the alternative remedy. Relevant paragraphs 9 to 12, read thus:
Page 22 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 "[9] We are also quite satisfied with the conclusion arrived at while disposing of the petition of not examining the merits of the impugned order since said issue also can be gone into by an authority to which the appellants may approach. Hence, we see no error in the said order questioned before us.
[10] We have even independently examined the said issue relating to alternative and efficacious remedy available and find that conjoint effect of the relevant rules would clearly indicate that possible view of the learned Single Judge is not erroneous rather said view is well supported by the decision delivered by full bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (supra). We deem it proper to extract and quote hereunder the relevant paragraphs from the said decision:-
"4. In view of the conflicting judgments of the Division Benches of this Court wherein some of the Division Benches had taken a view that the inclusion or non- inclusion of the names in the voters' list cannot be made a ground in an election petition, while the other view is that preparation of the voters' list which includes deletion of the names in the voters' list being integral, the questions can be raised in an election petition under rule 28, the Division Bench felt that the matters need hearing by a larger Bench to settle all the disputes once and for all. Hence this group of petitions has been referred to us to answer the following questions:
I. Whether a person whose name is not included in the voters' list can avail provisions of rule 28 of the rules by filing election petition ?
II. Whether the remedy under rule 28 can be termed to be efficacious remedy ?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the voters' list ?
25. The Division Bench of this Court in a decision rendered in the case of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718 (supra), rightly held that the decision rendered by Page 23 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 the Division Bench in the case of Mehsana Dist.Coop.Purchase and Sales Union Ltd. (supra) (1998 (1) GLH 170, could have referred the matter to the Larger Bench if at all while taking a different view than the view expressed in the earlier two decisions of the Division Benches. The said Division Bench, though referred to those two decisions of the earlier Division Benches but took absolute contrary view than the view expressed by the earlier two decisions. (1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex Court in the case of Atma Ram v. State of Punjab (AIR 1959 SC 519), observed that -
"where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger bench".
26. We may make it clear that by interpreting Rule 6 and 28 of the Rules, we are not enlarging the scope of the legislation or intention of the legislator nor recasting, rewriting or reframing the legislation. We are conscious of the fact that the Court has no power to legislate. Therefore, the decision rendered by the Hon'ble Apex Court in the case of State of Gujarat and Ors v. Dilipbhai Nathjibhai Patel and Ors., reported in AIR 1998 SC 1429 cited by Mr B S Patel will be of no assistance to him.
32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Page 24 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
[11] Keeping in view of the aforesaid binding decision of the full bench of this Court, we are in complete agreement with the view taken by the learned Single Judge. At this stage, we may clarify that in view of the settled proposition of law, when statue has created remedy to redress grievance, it is always permissible for a person while invoking same to raise all permissible contentions in accordance with law, we also clarify here that since specific remedy under the statute is available Page 25 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 as indicated above, the issue of jurisdiction namely whether authorized officer was justified in entertaining objections also can be raised before said authority and we expect that same will be examined by such authority in its proper perspective and record a finding. Since learned Single Judge has also opined similarly, nothing on this issue is tried to be as raised before us by the learned counsel appearing for the appellants. We make it clear that we have not expressed any opinion on it and leaving it open for the appellants to raise the same before appropriate authority, if they choose to do so under Rule 28, we are not inclined to entertain this appeal. Further, it is not possible to arrive at a definite conclusion as to whether opportunity was given or not to the appellants since it is bare assertion by way of averments and as such, it is not possible for this Court to safely conclude as to whether appellants were given any opportunity or not by Authorized Officer while arriving at a decision and as such, normally, fact finding forum which has already been created under the statute would adjudicate such disputes on the basis of oral as well as documentary evidence produced before such authority and as such, it is apt and appropriate not to exercise extraordinary jurisdiction to accept such contention of the appellants more particularly, when same was not even canvassed before the learned Single Judge. Hence, we deem it proper to observe that the appellants would be at liberty to raise all possible contentions and since said authority has to examine such issues. We hereby make it clear that we have not expressed any opinion even on the issue relating to effect of Rule 8 (1A), and it would be open for the appellants to canvass the same before the competent authority.
[12] A conjoint effect of the observations made by full bench (supra) and in view of the effect of the rules, contentions raised by the learned advocates are of no assistance since said issue has already been decided by the full bench of this Court (supra) and keeping in view the binding effect of it, we are not inclined to entertain the present Letters Patent Appeal, as same being devoid of merits. We dispose of the same by following :ORDER:
(i) Letters Patent Appeal is dismissed confirming the order passed by the by learned Single Judge dated 12.04.2022 passed in Special Civil Application No.18140 of 2021.
(ii) We also reiterate that since present appeal is disposed of on a limited ground of availability of alternative remedy to the appellants, we express no opinion on merits and clarify that it would be open for the appellants to raise all permissible contentions before an authority as indicated above and we expect that while dealing with the said proceedings if Page 26 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 appellants avail the same, such authority shall independently consider the same without being influenced by the disposal of present proceedings.
(iii) Accordingly, rule is discharged. Interim relief, if any, stands vacated.
(iv) Costs made easy.
(v) All pending applications stand consigned to records."
15. In the present case, as can be discern out, the Authorized Officer, followed the principle laid down by this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra) and accepting the objections, deleted the names of the petitioners societies from the voters list. The learned advocate for the respondent is right in contending that the findings have been arrived at by the Authorized Officer namely touching the facts of the case i.e. the transactions of the societies and also regarding the principle laid down by this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra).
16. Adverting to the contention raised by the petitioner societies as regards inquiry conducted by the Authorized Officer, it is required to be noted that said inquiry, was within the permissible limit inasmuch as, the Authorized Officer, has only taken note of the statements of the Chairman and Secretary. It also considered the fact that the Managing Committee, had advanced the loan by calling an application on 25.03.2023 i.e. after the declaration of the election programme. It also took note of the fact that the Committee, has been revived on 18.01.2023. The Authorized Officer, also took note of the fact that the societies have not produced records namely debt account / debt ledger, balance-sheet, entries of the loans advanced, so on and so forth. In the opinion of this Court, the said inquiry, was a permissible inquiry by the Page 27 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 Authorized Officer and the Authorized Officer, has not acceded the jurisdiction.
17. Apt would be the judgment in the case of Mandorpur (Fatehpur) Juth Seva Sahkari Mandali Limited (supra). This Court, in paragraph 5.3 and 5.4 has held and observed thus:
"5.3 The juridical concept of summary inquiry, therefore would not exclude the undertaking of the actual factual inquiry, but such inquiry would be of minimum nature to be done in non-elaborate way. Summary inquiry does not postulate absence of inquiry or that the inquiring person should blindly accept something by handicapping his task on the count that his inquiry was only to be summary. Summary decision and summary inquiry would refer to a decision or inquiry which is short and quick and not elaborate but it would not mean a non- reasoned performance. Nor it implies prohibition against inquiring into the facts necessary to be inquired."
5.4 Summary nature of the inquiry is not to be confused with a cursory or a casual inquiry. Inquiry of summary nature is an inquiry into minimum necessary facts to find out a thing or to ascertain a state of affair in respect of a fact or aspect for which derivation of knowledge, and for that purpose the inquiry is intended. A summary inquiry would indeed include availing and knowing bare minimum facts and to find out whether the requisite root-facts exist. It is not the process of adjudication."
18. Applying the aforesaid principle to the facts of the present case and the contents of the order of the Authorized Officer, the inquiry conducted by the Authorized Officer, was a summary in nature without the Authorized Officer inquiring into the legality or veracity of the basic aspects. Therefore, considering the facts involved, reliance placed by the petitioner societies on the judgment of this Court in the case of Bhagat Chiragkumar Mukeshbhai (supra), will be of no help.
19. Nothing exceptional has been pointed out by the petitioner, warranting interference by this Court under Article 226 of the Constitution of India. Therefore, in view of the availability of Page 28 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023 C/SCA/7009/2023 JUDGMENT DATED: 03/05/2023 alternative remedy to the petitioner societies, and more particularly, in absence of any extraordinary circumstances, the petitions, do not warrant any interference and deserve to be dismissed and hence, are dismissed. No order as to costs.
SD/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 29 of 29 Downloaded on : Tue May 09 20:34:34 IST 2023