Gujarat High Court
Bhikhabhai Chanabhai Gajera vs Semrala Gopalak Vividh Karyakari ... on 6 October, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1526
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/460/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 460 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 9848 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 460 of 2020
With
R/LETTERS PATENT APPEAL NO. 461 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9878 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 461 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9878 of 2020
With
R/LETTERS PATENT APPEAL NO. 463 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9879 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 463 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9879 of 2020
With
R/LETTERS PATENT APPEAL NO. 464 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9876 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 464 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9876 of 2020
With
R/LETTERS PATENT APPEAL NO. 465 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9843 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 465 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9843 of 2020
With
R/LETTERS PATENT APPEAL NO. 466 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9859 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 466 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9859 of 2020
With
R/LETTERS PATENT APPEAL NO. 467 of 2020
In
Page 1 of 35
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C/LPA/460/2020 CAV JUDGMENT
SPECIAL CIVIL APPLICATION NO. 9877 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 467 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9877 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH Sd/-
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
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 ?
==========================================================
BHIKHABHAI CHANABHAI GAJERA
Versus
SEMRALA GOPALAK VIVIDH KARYAKARI SAHAKARI MANDALI LIMITED
==========================================================
Appearance:
MR BHARAT T RAO(697) for the Appellant(s) No. 1
MR. P. K. JANI, SR. COUNSEL with MR. DIPEN DESAI, LD. COUNSEL for
the Respondent(s) No. 1
MR. DHARMESH DEVNANI, LD. AGP for the Respondent(s) 2,3
for the Respondent (s) 4,5,6
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 06/10/2020
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) Page 2 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT
1. As the issues involved in all the captioned appeals are the same and the challenge is also to the selfsame order passed by the learned Single Judge, those were heard analogously and are being disposed of by this common judgment and order.
2. Having regard to the peculiar facts and circumstances of the case, the pivotal issue involved in this litigation and with the consent of the learned counsel appearing for the parties, we have decided to hear out the writ applications themselves along with the present appeals.
3. For the sake of convenience, the Letters Patent Appeal No.466 of 2020 in the Special Civil Application No.9859 of 2020 is treated as the lead matter.
4. This appeal under Clause 15 of the Letters Patent is at the instance of the original respondent No.3 of a writ application and is directed against the interim order passed by a learned Single Judge of this Court dated 25th August, 2020 in the Special Civil Application No.9859 of 2020, by which, the learned Judge admitted the writ application and stayed the order passed by the Addl. Registrar (Appeals) under Section 153 of the Gujarat Cooperative Societies Act, 1961 (for short "the Act, 1961).
5. The facts, giving rise to this litigation, may be summarized as under;
5.1 The appellant before us is the Chairman of the Agriculture Produce Market Committee, Junagadh (original respondent Page 3 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT No.3). The respondent No.1 (original writ applicant) is a Cooperative Society registered under the Act, 1961.
5.2 On 7th March, 2015, the respondent No.1 Society came to be registered.
5.3 The respondent-Society originally was registered as Shri Toraniya Gopalak Vividh Karyakari Sahakari Mandali Limited . The erstwhile bye-laws of the Society provided for the grant of credit to its members for agricultural purposes and for rearing of cattle.
5.4 The Society convened a special general meeting of his members dated 24th July, 2015 for the purpose of effecting amendments in the bye-laws for change of its objects and names.
5.5 The Addl. District Registrar, District Panchayat, Junagadh, vide order dated 27th July, 2015, approved the amendments. Its name was changed to "Toraniya Vividh Karyakari Seva Sahakari Mandali Limited".
5.6 The action of the Society in amending its bye-laws and the approval given to the same by the Addl. District Registrar, District Panchayat, Junagadh vide order dated 27 th July, 2015 was not liked by the appellant herein. The appellant, in his capacity as the Chairman of an Agricultural Produce Market Committee, thought fit to challenge the same by preferring an appeal before the Addl. Registrar (Appeals) under Section 153 of the Act, 1961. The appeals before the Addl. Registrar (Appeals) Page 4 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT came to be registered as the Appeals Nos. 80 to 86 of 2015 respectively.
5.7 The appellant herein thought fit to challenge the amendments in the bye-laws substantially on the ground that the same was nothing but a device to implant the voters list of the Agriculture Produce Market Committee, Junagadh.
5.8 It appears that the appellant herein had come before this Court by filing the Special Civil Application No.6002 of 2020 with a prayer that the Addl. Registrar (Appeals) Cooperative Societies be directed to expeditiously hear all the appeals and decide the same.
5.9 The appeals were taken up for hearing by the Addl. Registrar (Appeals) on 22nd July, 2020.
5.10 In the meantime, on 18 th July 2020, the Director of APMC, Junagadh declared the election of the APMC, Junagadh.
5.11 A notification of the election program came to be issued on 24th July, 2020.
5.12 On 6th August, 2020, the preliminary votes list for the election of the APMC, Junagadh came to be published wherein the names of the writ applicants' Societies were shown in the preliminary list of voters for the agriculturist constituency.
5.13 The respondent No.3 herein, i.e, the Addl. Registrar (Appeals) Cooperative Societies allowed the appeals filed by the appellant herein vide order dated 6 th August, 2020. The Addl.
Page 5 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENTRegistrar (Appeals) by allowing the batch of appeals rendered the amendments in the bye-laws non-operative and redundant.
5.14 The order passed by the Addl. Registrar (Appeals), referred to above, led to the filing of the captioned writ applications by the Society before this Court.
5.15 A learned Single Judge of this Court, vide impugned order dated 25th August, 2020, admitted all the writ applications by issuing Rule making it returnable on 25 th September, 2020, and at the same time, stayed the impugned order passed by the Addl. Registrar (Appeals) from its operation, implementation and execution.
5.16 The appellant herein, being dissatisfied with the interim order passed by the learned Single Judge, referred to above, has come up with these appeals before us.
Submissions on behalf of the appellant:-
6. Mr. B.T. Rao, the learned counsel appearing for the appellant vehemently submitted that the learned Single Judge committed a serious error in passing the impugned order. Mr. Rao would submit that the writ applicants' Cooperative Societies are not competent to amend their bye-laws. It is argued that the Societies were earlier registered as the " Shri Toraniya Gopalak Vividh Karyakari Sahakari Mandali Limited" and, therefore, they could not have made changes in their objects by simply amending their Bye-laws.
Page 6 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT7. Mr. Rao would argue that such amendments in the bye- laws have the effect of changing the classification of the Societies and, therefore, the same could not have been done without following the procedure as prescribed under Section 17 of the Act, 1961 read with Rule 9 of the Gujarat Cooperative Societies Rules, 1965 ( for short "the Rules, 1965").
8. Mr. Rao further contended that since the scheme as envisaged under Section 17 read with the rules has not been framed and approved by the Registrar, the amendments could be said to be non-est and void and, in such circumstances, the Assistant District Registrar could be said to have committed a serious error in granting the approval to such amendments. Mr. Rao pointed out that even the District Registrar had asked the higher authorities to take up the subject of amendment in the bye-laws by way of suo motu proceedings.
9. Mr. Rao argued that the Addl. Registrar (Appeals) has assigned cogent reasons for the purpose of quashing and setting aside the amendments. Mr. Rao, in the last, submitted that, in fact, the learned Single Judge ought not to have entertained the writ application as the writ applicant has an alternative remedy of filing the revision application before the State Government under Section 155 of the Act, 1961.
10. In such circumstances, referred to above, Mr. Rao prays that there being merit in his appeals as well as the writ applications, those be allowed and the order passed by the Addl. Registrar (Appeals) be affirmed.
Page 7 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENTSubmissions on behalf of the original writ applicant:-
11. Mr. Prakash K. Jani, the learned senior counsel assisted by Mr. Dipen Desai, the learned counsel appearing for the writ applicant has vehemently opposed all the appeals. Mr. Jani would submit that all the appeals deserve to be dismissed and all his writ applications may be allowed and the impugned order passed by the Addl. Registrar (Appeals) Cooperative Societies be quashed and set aside. The principal argument of Mr. Jani in the present litigation is that the appellant herein not being the member or an office bearer in any of the cooperative societies, could not have questioned the legality and validity of the amendments in the bye-laws by filing appeals before the Addl. Registrar under Section 153 of the Act, 1961.
12. Mr. Jani would submit that an appeal is a creation of statute. An appeal is not a matter of right. Unless the statute provides for an appeal, no person has a inherent right to file an appeal. Mr. Jani would argue that by any stretch of imagination, the appellant herein cannot be said to be " aggrieved person" for the purpose of maintaining an appeal under Section 153 of the Act, 1961. Mr. Jani would argue that the appellant herein is not even the resident of any of the villages in which these societies are situated. He would argue that the appellant has no contractual relationship with any of the Societies of any nature. It is argued that the appellant has no financial stakes in any of the Cooperative Societies and he is not a creditor or contributory with any of the Societies. Mr. Jani submitted that the change of the objects and the bye-laws in no manner affects any other existing Society and no such case about the adverse effect upon Page 8 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT the existing society has been pleaded. Mr. Jani would submit that the appellant herein is a complete stranger so far as the activities of the writ applicant's cooperative Societies are concerned.
13. Mr. Jani argued that the amendments in the bye-laws carried out by his client is consistent with the provisions contained under Section 13 of the Act, 1961 read with Rule 6 of the Rules, 1965. Mr. Jani would argue that while approving the amendments, the Registrar is only to satisfy himself that the amendment so forwarded is not contrary to the provisions of the Act, 1961 and the Rules, 1965.
14. Mr. Jani further submitted that the procedure required for amending the bye-laws under Section 13 of the Act and Rule 6 of the Rules has been followed in letter and spirit and there is no irregularity or illegality of any nature.
15. Mr. Jani submitted that in the facts of the present case, Section 17(2) of the Act and Rule 9 of the Rules, 1965 has no application inasmuch as the conversion referred to in sub- section (1)(d) of Section 17 does not involve transfer of the liabilities of the Societies so far as the case on hand is concerned. He would argue that only when the conversion has the effect of transfer of liabilities, the procedure under Rule 9 is required to be followed by preparing a draft scheme in that regard in accordance with the provisions of Sub-section (2) of Section 17 of the Act.
16. Mr. Jani pointed out that indisputably in the case on hand, Page 9 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT there is no transfer of liabilities on account of the conversion of or the change of the object and, therefore, Section 17(2) has no application. In such circumstances, according to Mr. Jani, the procedure under Rule 9 of the Rules, 1965 is not required to be followed as the same is required to be followed in a case where Section 17(2) has the application.
17. Mr. Jani submitted that the right to form Cooperative Societies is a fundamental right under Article 19(1)(C) of the Constitution and the same cannot be permitted to be curtailed at the instance of the appellant who is a stranger to the activities of the Societies. Mr. Jani, in the last, submitted that this litigation is nothing but personal vested interest of the appellant inasmuch as the appellant, as the Chairman of the Agriculture Produce Market Committee, Junagadh, does not wish that the bye-laws of these societies are changed or amended so as to make them eligible to figure in the voters list of the agriculturist constituency in the election of the Agriculture Produce Market Committee, Junagadh, within whose market area, these Societies fall. In such circumstances, referred to above, Mr. Jani prays that there being merit in all his writ applications, those may be allowed and the impugned order passed by the Addl. Registrar (Appeals) Cooperative Societies be quashed and set aside.
ANALYSIS
18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the appellant Page 10 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT herein had the locus in law to file appeals before the Addl. Registrar (Appeals) Cooperative Societies, State of Gujarat under Section 153 of the Act, 1961.
19. Before adverting to the rival submissions canvassed on either side, we may look into few relevant provisions of the Act, 1961 and the Rules, 1965. Section 13 of the Act provides for amendments of bye-laws of Societies. Section 13 reads thus;
"13. Amendments of bye-laws of societies. -
(1) No amendment of the bye-laws of a society shall be valid until registered under this Act. For the purpose of registration of an amendment of the bye-laws, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the Registrar.
(2) If the Registrar is satisfied that the amendment so forwarded is not contrary to this Act or the rules, he may register the amendment:
Provided that no order refusing to register the amendment shall be passed except after giving the society an opportunity of being heard.
[Provided further that the application for registration of amendment of bye-laws of a society shall be disposed of within sixty days from the date of its receipt.] (3) When the Registrar registers an amendment of the bye-
laws of a society, he shall issue to the society a copy of the amendment certified by him, which shall be conclusive evidence of its registration.
(4) Where the Registrar refuses to register an amendment of the bye- laws of a society, he shall communicate the order of refusal, together with his reasons therefor, to the society."
20. Section 17 of the Act is with regard to the amalgamation, transfer, division or conversion of the societies. Section 17 reads Page 11 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT thus;
"7. Amalgamation, transfer, division or conversion of societies. -
(1) Subject to the provisions of the rules and the previous sanction of the Registrar a society may, by resolution passed by two-thirds majority of the members present and voting at a special general meeting held for the purpose, decide-
(a) to amalgamate with another society;
[(aa) to amalgamate with another society registered under the Multi-State Co-operative Societies Act, 2002 (39 of 2002);]
(b) to transfer its assets and liabilities, in whole or in part, to any other society;
(c) to divide itself into two or more societies;
(d) to convert itself into another class of society; or
(e) to change its objects.
(2) Where the amalgamation, transfer, division or conversion referred to in sub-section (1) involves a transfer of the liabilities of society to any other society, the Registrar shall not sanction the resolution of the society unless he is satisfied that-
(i) the society, after passing such resolution, has given notice thereof in writing to all its members, creditors and other persons whose interests are likely to be affected (hereinafter, in this section referred to as `other interested persons"), giving them the option, to be exercised within one month from the date of the receipt of such notice, of becoming members of any of the new societies, or continuing their membership in the amalgamated or converted society, or of withdrawing their investments in its shares, their deposits and loans and demanding payment of their other dues, if any,
(ii) all the members and creditors and other interested persons, have assented to the decision, or are deemed to have assented thereto by having failed to exercise the option within the period specified in clause (i), and
(iii) all claims of members and creditors and other interested persons, who exercise the option within the period specified, Page 12 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT have been met in full.
(3) Notwithstanding anything contained in the Transfer of Property Act, 1882 (IV of 1882), or the Indian Registration Act, 1908 (XVI of 1908), in the event of division or conversion, the registration of the new societies or, as the case may be, of the converted society, and in the event of amalgamation, on the amalgamation the resolution of the societies concerned with amalgamation, shall in each case be sufficient conveyance to vest the assets and liabilities of the original society or amalgamating societies in the new societies or converted or amalgamated society, as the case may be.
(4) The amalgamation, transfer, division or conversion made under this section shall not affect any right or obligation of the societies so amalgamated, or of the society so divided or converted, or of the transferee, or render defective any legal proceedings which might have been continued or commenced by or against the societies which have been amalgamated, or divided or converted; and accordingly such legal proceedings may be continued or commenced by or against the amalgamated society, the converted society, the new societies or the transferee, as the case may be."
21. Section 153 of the Act provides for appeals. Section 153 reads thus;
"153. Appeals. -
(1) An appeal against an order or decision under Sections 4, 9, 11, 13, 17, 19, 36, 81 and 160 shall lie,-
(a) if made or sanctioned or approved by the Registrar, or an Additional or Joint Registrar on whom powers of the Registrar are conferred, to the State Government.
(b) if made or sanctioned by any person other than the Registrar, or an Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the Registrar. (2) An appeal against an order of a liquidator under Section 110 shall lie-
(a) to the State Government if the order was made with the sanction or approval of the Registrar, and
(b) to the Registrar in any other case.
Page 13 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT(3) An appeal against an order or decision under Sections 82, 90, 93 and any order passed by the Registrar for paying compensation to a society, and any other order for which an appeal to the Tribunal has been provided under this Act, shall lie to the Tribunal.
(4) An appeal under sub-section (1), (2) or (3) shall be filed within two months of the date of the communication of the order or decision.
(5) The procedure to be followed in presenting and disposing of appeals under this section or under any other provisions of this Act shall be such as may be prescribed. (6) As provided in this Act, no appeal shall lie against any order, decision or award passed in accordance with this Act; and every such order, decision or award shall be final, and where any appeal has been provided for, any order passed on appeal shall be final and no further appeal shall lie against it."
22. Section 155 is with regard to the power of the State Government and Registrar to call for the proceedings of subordinate officers and to pass orders thereon. Section 155 reads thus;
"155. Power of State Government and Registrar to call for proceedings of subordinate officers and to pass orders thereon. - The State Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them, except those referred to in sub-section (9) of Section 150, for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. If in any case, it appears to the State Government, or the Registrar, that any decision or order or proceedings so-called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pass such order thereon as it or he may deem just."Page 14 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT
23. We shall now look into the Rules, 1965. Rule 9 prescribes the procedure for obtaining sanction under Section 17(1) of the Act. Rule 9 reads thus;
"9. Procedure for obtaining sanction under Section 17(1):-(1) Where a society proposes to amalgamate itself with another society or to transfer its assets and liabilities, in whole or in part, to any other society or to divide itself into two or more societies or to convert itself into another class of society or to change its object, it shall prepare a draft scheme in that behalf having regard to the provisions of sub- section (2) of Section 17 and place the same before a special general meeting of its members.
(2) if the special general meeting approves of the draft scheme with or without modifications by a resolution passed by two thirds majority of the members present and voting at the meeting, the society shall forward a copy of the resolution and a copy of the draft scheme as approved by the special general meeting to the Registrar requesting him to accord his sanction to the proposal.
(3) If the Registrar accords his previous sanction to the proposal, the society shall proceed to take further steps in accordance with the provisions of Section 17."
24. We would first like to address ourselves on the pivotal issue as regards the locus of the appellant to initiate this litigation by filing appeals under Section 153 of the Act.
25. Sec. 13 (1) provides that no amendment of the bye-laws of a society shall be valid until registered under the Act. For the purpose of registration of an amendment of the bye-laws a copy of the amendment passed in the manner prescribed at a general meeting of the society is required to be forwarded to the Registrar. Sub-sec. (2) provides that if the Registrar is satisfied that the amendment so forwarded is not contrary to the Act or Page 15 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT the rules he may register the amendment provided that no order refusing to register the amendment shall be passed except after giving the society an opportunity of being heard. Under sub-sec. (3) when the Registrar registers an amendment of the by-laws of a society he shall issue to the society a copy of the amendment certified by him which shall be conclusive evidence of its registration. Sub-sec. (4) requires the Registrar when he refuses to register an amendment of the by-laws of a society to communicate the order of refusal together with his reasons therefore to the society.
26. On a bare perusal of the statutory provisions it would appear that the power of the Registrar to register an amendment is to be exercised upon his being satisfied that the proposed amendment is not contrary to this Act or the rules. If the proposed amendment is contrary to the provisions of the Act or Rules and this requirement necessitates taking into consideration all the provisions of the Act or Rules the Registrar will have no power to register the amendment.
27. Sec. 4 is a pivotal provision in the Act. It provides that a society which has as its object the promotion of the economic interests or general welfare of its members or of the public in accordance with the co-operative principles or a society established with the object of facilitating the operations of any such society may be registered under the Act. The proviso to the said section which is material reads as under :
"Provided that it shall not be registered if in the opinion of Page 16 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT the Registrar it is economically unsound or its registration may have any adverse effect upon any other society or it is opposed to or its working is likely to be in contravention of public policy. (underlining supplied)"
28. It would appear therefore that only such society can be registered under the Act which is to function on the co-operative principles and the registration of which in the opinion of the Registrar will not have an adverse effect upon any other society. This provision which has been enacted to apply at the stage of registration of a society is relevant even at the stage of considering the question whether to register an amendment of the bye-laws of a society by reason of the provisions of sec. 13 (2). If it is found, therefore, upon examination of all the relevant facts and circumstances of a given case that the registration of an amendment of the bye-laws of a society whereunder for example the area of operation of the society is to be extended is likely to undermine the co-operative principles or to have an adverse effect upon any other society such amendment could not possibly be said to be in accordance with the Act or to put it negatively not contrary to the Act and therefore the Registrar cannot possibly grant registration to such an amendment.
29. We propose to examine this matter from a slightly different perspective. In other words, we would like to pose two questions for our consideration as under;
(I) Whether the duly constituted APMC under the provisions of the Gujarat Agriculture Produce Markets Act, 1963 has any say as regards the amendments, if effected by a Cooperative Page 17 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT Society registered under the provisions of the Gujarat Cooperative Societies Act, 1961?; and
(ii) Whether the Chairman of the APMC, on his own, has any locus to question the legality and validity of any amendments effected in the bye-laws of a Cooperative Society under the provisions of the Act, 1961?.
30. In so far as the first question posed by us is concerned, our attention was drawn by Mr. Rao to the decision of this Court in the case of Kalubhai Ranabhai Akabari vs. State of Gujarat & Ors., reported in 2007 (3) GLH 57. We quote the relevant observations made in the said decision as under;
"35. To sum up then, our conclusions are as under:
I. "The relevant date" for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in Sub-rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date -
(i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was Page 18 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates.
III. To be eligible for inclusion in the list of voters for elections to APMC, -
(i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.
(iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections.
IV. Challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963. VI. The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions. "
31. It appears that Kalubhai Ranabhai Akabari (supra) was a case, in which the dispute was with regard to the eligibility of a Page 19 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT person for inclusion in the voters list for the elections to the APMC. It is not clear from the entire judgment as to who was the petitioner in the said case. Probably, Mr. Rao seeks to rely on the Conclusion No. IV, wherein this Court has held that the challenge to the legality and validity of registration of a society under the Cooperative Societies Act can only be entertained by the Forum under Sections 153 and 155 of the Act, 1961 and not by the Election Tribunal constituted under Rule 28 of the APMC Rules 1965. Taking a clue from this, Mr. Rao would argue that when it comes to challenging the legality and validity of the amendments in the bye-laws of any Cooperative Society, then the only forum is under Sections 153 and 155 of the Act, 1961. To this limited extent, we may agree with Mr. Rao, but again the question would be whether the APMC, as a duly constituted Committee under the APMC Act, can question the legality and validity of the amendments carried out by a Cooperative Society of its bye-laws under the provisions of the Act, 1961. Besides the same, we also take notice of the fact that in Kalubhai Ranabhai Akabari (supra), this Court clarified that since the respondents- Societies were granted registration under the Act, 1961 after the declaration of the election program and after "the relevant date", the office bearers of those societies were not eligible to be included in the voters" list and were not legally entitled to vote at the elections to the APMC, Junagadh which were to ensue. The Court clarified that it had not gone into the merits of the controversy about the challenge to the registrations granted in favour of the Societies and that the matter was being decided only on the basis that the Societies were registered under the Act, 1961 on 21st April, 2007. Thus, the decision of this Court in the case of Kalubhai Ranabhai Akabari (supra) is, in no manner, Page 20 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT helpful to Mr. Rao.
32. In the instant case, the original writ applicant is a cooperative Society registered under the Act, 1961, whereas the appellant herein is the Chairman of a Agriculture Produce Market Committee constituted under the provisions of the Agriculture Produce Market Committee Act, 1963. The case on hand is not one in which the amendments carried out by the writ applicant-Society in its bye-laws has caused an adverse effect upon any other Cooperative Society registered under the Act, 1961. We fail to understand how the Chairman of a Agriculture Produce Market Committee could have raised objections with regard to the amendments in the bye-laws of a Cooperative Society registered under the Act, 1961. For the sake of arguments, we may assume for the moment that an Agriculture Produce Market Committee has some say with regard to the bye-laws of any cooperative society registered under the Act, 1961, the question would be to what extent the Chairman of such APMC, on his own, could have raised this issue and preferred appeals under Section 153 of the Act, 1961. The Committee of the APMC, as a whole, is not before us. The Chairman of the Committee is before us and there is nothing on record to indicate that this action is at the instance of the statutory Committee of the APMC, duly constituted under the provisions of the APMC Act through its Chairman. There is nothing on record to indicate that the committee passed a resolution empowering its Chairman to prefer appeals and raise this issue. There are no pleadings in this regard in the memo of the appeals.
Page 21 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT33. In the aforesaid context, we may refer to a Constitution Bench judgment of the Supreme Court in Daman Singh vs. State of Punjab, 1985 2 SCC 670, wherein it is said;
"......Once a person becomes a member of a cooperative society he loses his individuality qua the society and he has no independent rights except those given to him by the statute and the bye-laws He must act and speak through the society or rather , the society alone can act and speak for qua rights or duties of the society as a body.....".
34. The same principle, as afore-quoted will apply in the present case also so far as the appellant is concerned being a Chairman of a Agriculture Produce Market Committee.
35. A Division Bench of this Court in the case of Manubhai Hathibhai Patel v. Sejalben Janakbhai Patel [2010 ) (2) GLH looked into the meaning of the expression 'any person aggrieved' so as to consider whether the original complainant could be said to be 'a person aggrieved'. Therein the Court observed, "14. ... ... ... None of the legal rights of the petitioners are violated or breached. The term "person aggrieved" must be understood in the context in which the provisions of the statute under consideration have been made. Section 57 of the Act, as already noted, empowers removal or disqualification of an elected member, Up Sarpanch or Sarpanch. ... ... ... The role of the complainant in such a case is to bring to the notice of the Competent Authority the alleged irregularities. It is thereafter a matter between the elected members, Upa-Sarpanch or Sarpanch as the case may be and the Competent Authority. As a complainant, a person who brings such irregularities to the notice of the Competent Authority may participate in the proceedings and bring on record material at his command. He, however, cannot claim to be a "person aggrieved" if ultimately on the Page 22 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT basis of the evidence on record, the proceedings are dropped by the Competent Authority. ... ... "
36. In Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed [(1976) 1 SCC 671] the Supreme Court elaborately discussed the concept of 'an aggrieved person', and observed that in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an aggrieved person. If he does not fulfill that characteristic, and if is a 'stranger', the Court will deny him this extra ordinary remedy.
37. It was stated, "... ... ... of the cases in which a strict construction was put on the expression "person aggrieved", is Buxton and ors. v. Minister of Housing and Local Government [(1961) 1 QB 278]. There, an appeal by a Company against the refusal of the Local Planning Authority of permission to develop land owned by the Company by digging chalk, was allowed by the Minister. Owners of adjacent property applied to the High Court under Section 31(1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land, and that they were 'persons aggrieved' by the action of the Minister. It was held that the expression 'person aggrieved' in a statute meant a person who had suffered a legal grievance; anyone given the right under Section 37 of the Act of 1959 to have his representation considered by the Minister was a person aggrieved, thus section 31 applied, if those rights were infringed; but the applicants had no right under the statute, and no legal rights had been infringed and therefore they were not entitled to challenge the Minister's decision." (Para
30)
38. The Apex Court further stated what Salmon J. quoted with approval these observations of James T. J. in In Re Sidebothem Page 23 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT [(1880) 14 Ch D 458, 465], and the passage quoted with approval would apply apt and apposite.
"The words 'person aggrieved' do not really means a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance,'a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrong fully refused him something, or wrongfully affected his title to something." (Para 30) (emphasis supplied)
39. The following observations of the Apex Court in Ravi Yashvant Bhoir v. District Collector, Raigad [(2012) 4 SCC 407] explains the concept and the law.
"... ... ... A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria." (Para 58) "The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons i.e. a claim devoid of reasons." (Para 59)
40. The Supreme Court in the Bar Council of Maharashtra vs. M.V. Dabholkar (1975) 2 SCC 702, opined that the meaning of the words 'person aggrieved' will have to be ascertained with Page 24 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT reference to the purpose and the provisions of the statute. It observed that the words 'person aggrieved' correspond to the requirements of locus standi which arises in relation to the judicial remedies.
41. Thus, in order to become entitle to seek a statutory remedy, a person must show and establish that he is injured with a legal wrong. There must be an injury to a legally recognised, legally protected and legally enforceable right. The principle to be applied is that there must be a injuria sine damnum and not the damnum sine injuria for taking a legal action and a legal recourse. A damage suffered has to be coupled with legal injury. It is this kind of injury on which the right- enforceability may be based.
42. For acquiring a standing to sue or a standing to take a legal recourse or right to initiate legal action for relief, the presupposition is that there must subsist a legal wrong, one or invaded right in existence in relation to the subject matter in respect of which the action is sought to be initiated and the relief is asked for. It is this element which makes a person the possessor of litigative interest to become an aggrieved person. Again the invasion of right sought to be remedied should not be of one infringed in abstract. Its invasion must be in the context of the subject matter and the provision for which the right to seek relief or what is called locus standi, is claimed.
43. Whether a person is aggrieved person, whether he has suffered a legal injury and whether he has thus the locus to seek Page 25 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT remedy in law are the aspects, to be determined keeping in view the subject matter, the kind and nature of, and controversy, the legal provision with reference to which they arise. The context of the provision and the subject matter, are the important aspects.
44. The appellant herein had no legal right of his own which could be said to have been infringed so as to entitle him to invoke Section 153 of the Act to seek remedy therein. It is only in the matters involving public interest dimensions, which is not the case here, that the rule of person aggrieved or the principles of locus standi is made elastic. As there is no right to be enforced with the appellant in respect of the subject matter, as he is not 'aggrieved person' and is devoid of locus in law, the writ of mandamus would not lie in respect of the prayer.
45. On this short point of locus standi alone, as discussed above, all the writ applications deserve to be allowed.
46. We also have, to our advantage, a judgment of our High Court in the case of Rameshbhai Maganbhai Lakhani & Ors. vs. State of Gujarat & Ors., Special Civil Application No.5583 of 2011 and allied petitions, decided on 13.05.2011/16.05.2011. Rameshbhai Maganbhai (supra) was a case, in which, the petitioners were the members of Cooperative Societies operating in different areas of Dhoraji Taluka of Rajkot District. They filed three petitions under Article 226 of the Constitution of India, challenging the order granting registration to, and registering three new cooperative societies for the three areas. The challenge was on the ground that the registration was in Page 26 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT violation of the provisions of the Act, 1961 and was granted only for inflating the voters list for the Agriculture Produce Market Committee and the Cooperative Bank of the area, and being malafide.
47. In the aforesaid factual background, this Court took cognizance of few indisputable aspects referred to in Para-19 of the said judgment. The same reads thus:
"(i) The individual members of existing co-operative societies in their individual-members' capacity have filed these petitions challenging order dated 31.03.2011 passed by the respondent no.3 registering new societies,respondent no.4 for reasons mentioned in the petition,
(ii) The petitioners have approached this Court in their individual capacity and they have not filed this petition on behalf of existing society of which they claimed membership, nor have they even remotely claimed to be authorized by the existing societies for filing these petitions.
(iii) The Special Civil Application No.5583 of 2011is filed by three members of Shri Patanvaav Juth Vikas Karyakari Sahkari Mandli Ltd., the existing mandali operational in village Chichod and Patanvaav;
(iv) These three members-petitioners of the existing society have challenged the registration of respondent No.4 society viz. Shri Chichod Seva Sahkari Mandli Ltd.;
(v) The petitioners have claimed no authorization whatsoever from the existing society viz. Shri Shri Patanvaav Juth Vikas Karyakari Sahkari Mandli Ltd. for filing this petition challenging the registration of respondent no.4
(vi) Not only petitioners have not claim any authorization from their existing society for filing the petition challenging the registration of respondent no. 4 but they have also, through their advocates, taken up a specific stand that the individual members of the existing Page 27 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT society have locus standi and right to challenge the registration of new society in the area. Thus, it becomes evident and unequivocal that the petitioners have filed the petitions in their individual capacity and are not having any support from the existing society on whose behalf they claim to have been aggrieved so as to challenge the registration of respondent No.4 society;
(vii) The petitioner no.1 in Special Civil Application No.5583 of 2011 himself had proposed a new society and sought its registration as it is evident from the record.
The petitioner no.1 of petition being Special Civil Application No.5583 of 2011 had put a proposal for registering new society in the name of (proposed) Shri Chichod Seva Sahkari Mandli Ltd., Chichod and shown 67 members on whose behalf he was seeking registration of the said society;
(viii)The petitioner no.1 of Special Civil Application No.5583 of 2011 is the petitioner out of the three who has affirmed this petition and stated that the averments made in the petition are correct and he along with two other petitioners being aggrieved by registration of new society-respondent No.4, as it is likely to affect the existing society and its members, preferred this petition.
(ix)The Assistant District Registrar Cooperative Society Respondent No.3 has stated on oath by filing an affidavit as under:
"It is submitted that the Technical and Supervision Committee of the District of Rajkot resolved to opine that the proposed society promoted by Mr.Mayurbhai K. Singla be registered and a proposed society promoted by Rameshbhai Maganbhai Lakhani as a Chief Promoter i.e. petitioner no.1 herein is having just 67 members and, therefore, there is no recommendation for it and a copy of the said resolution is annexed as ANNEXURE-B. It is pertinent to note that No Objection Certificate issued by the Chairman and Secretary of Patanvav Juth Vividh Karyakari Seva Sahkari Mandli Ltd Dtd.21.12.10 was forwarded by Taluka Development Officer, Dhoraji along with his proposal and was also taken into consideration by the Technical and Supervision Committee before passing the said resolution."
48. After taking note of the above referred indisputable facts, Page 28 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT the Court proceeded to observe as under;
"Thus, from the aforesaid averments made on oath it can be said that nowhere the petitioners have indicated that there was in fact " letter of No Objection" issued by the Chairman of the existing society but as it was only issued by the Chairman without any resolution of the existing society the said"letter of No Objection" was not valid for registering the new society, respondent no. 4. The Letter of 'No Objection' considered was not issued by entire society by passing resolution. It was only issued by the Chairman. The petitioners have instead of making thus specific averments attempted to project their case as if there was no "No Objection" at all from any quarter. The petitioners have clearly avoided specific averments that though there exists a "Letter of No Objection" issued by the Chairman of the existing society but the same was not to be treated as valid "letter of no objection" from the existing society as no general body meeting was called for discussing matter of issuing "letter of no objection" in favour of the respondent no. 4 societies. In short it was bounden duty of the petitioners to make specific averment that there was a Letter of 'No Objection' issued by the Chairman of the existing society and then they could have submitted that said 'letter of no objection being issued merely by Chairman was not valid as it was not issued on the strength of any General Body resolution. But instead they omitted in making mention of 'letter of No Objection' by the Chairman or Secretary of the existing societies which in fact were relied upon for and taken into consideration by the Committee while granting registration to the newly formed societies respondent no. 4 hereinabove. The petitioners could not claim any ignorance of existence of such letter as it was subject matter of discussion in all the meetings held by Technical Committee as well as meeting held by the committee who ultimately ordered registration of respondent no. 4 society. The respondent no. 5 the District Cooperative Bank, who has all along supported the petitioners' stand and who is alleged to have helped the petitioners in producing the correspondence and communications which otherwise could not have been in the custody of the petitioners and they have not explained the sours of its availability, through its General Page 29 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT Manager was present in the meeting dated 28.03.2011 wherein the new proposals were being discussed threadbare, and who in fact opposed those proposals on account of lack of " No Objection" from the District Cooperative Bank i.e. his employer whom he represented in the committee but could not object new proposal on the ground that the existing societies have also not issued any " Letter of No Objection"as he could not have done so on account of the"Letters of No Objections" from the existing societies available with the new proposal. The petitioners have made no attempts to even plead ignorance of existence of such letter of 'No objection' even in their rejoinder affidavit."
49. Finally, the Court proceeded to observe in Paras- 30,31,32,33 and 34 respectively as under:
"30. The decisions of the apex court cited by the learned advocate for the respondent no. 4 newly registered societies also go to support this proposition of law that once a society is registered than it enjoys all rights conferred upon it under the statute as"corporate body"
and its individual members have no independent right to bring action in their individual members capacity for enforcing rights which are only conferred upon that 'body corporate'.The apex court has in case of Daman Singh and others, etc., Appellants v. State of Punjab and others, etc., reported in AIR 1985 SUPREME COURT 973 observed as under:
"11 The next submission of the learned counsel was that S. 13(8), (9) and (10) did not make express provision for the issue of notice to the members of the concerned Cooperative Societies and were, therefore, violative of the principles of natural justice. He argued that in the absence of any provision, the rules of natural justice may be read into the provisions and notice to the members of the affected societies was imperative. Otherwise, he argued, members of one society would be forced against their will and without being heard to associate themselves with members of another society. We have no hesitation in rejecting this submission also. Once a person becomes a Member of a co-operative society, he loses his individuality qua the society and he has no Page 30 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT independent rights except those given to him by the statute and the by-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. So if the statute which authorizes compulsory amalgamation of co-operative societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members. That is why S.13(9)(a) provides for the issue of notice to the societies and not to individual members. S.13(9)(b), however, provides the members also with an opportunity to be heard if they desire to be heard. Notice to individual members of a co- operative society, in our opinion, is opposed to the very status of a co-operative society as a body corporate and is, therefore, unnecessary. We do not consider it necessary to further elaborate the matter except to point out that a member who objects to the proposed amalgamation within the prescribed time is given, by S. 31(11), the option to walk-out, as it were, by withdrawing his share, deposits or loans as the case may be". In another case sited at the bar by the learned advocate for the respondent no. 4societies in case of State of UP. and another etc.,Appellants v. C.O.D. Chheoki Employees' Co- op. Society Ltd., and others etc reported in AIR 1997 SUPREME COURT 1413 the apex court has reiterated the principles that no one has fundamental right to be a member of cooperative society but once he becomes member than the society would govern his rights qua the society and its management and the individual members cannot bring challenge on behalf of the society claiming infringement of their fundamental rights.
31.The Court cannot accept the petitioners claim of any violation of their fundamental right or their collective suffering on account of registration of new society as it was sought to be canvassed that on account of new society in the same area of operation unhealthy competition would have adverse impact upon the members, like the petitioners, of the existing societies. This aspect was required to be considered by the existing societies in their general body meeting and there could have been resolution that in such a case society should take appropriate action. But individual members like present petitioners,against their own existing societies' Page 31 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT resolution cannot be permitted to bring and maintain action or petition challenging registration of the new societies. A catena of the judgments goes to show that Courts have no power to add or supply or read into the plain statutory provisions. The apex court has in case of Union of India Vs. Devki NandanAgrawal reported in 1992 Suppl. (1) SCC 323 held that Courts have no power to rewrite the statutory provisions. The following list of authorities go to support the proposition of law that plain language of the statute must be in absence of any ambiguity must hold the field irrespective of its results. Namely (1), Sathidevi Vs. Prasanna (2010) 5 SCC 622,(2) AIR 1981 SC 1610, (3) AIR 2007 SC 1956, (4)(2009)13 SCC 22, (5) (2007)3 SCC 720.
32.The petitioners' challenge to the delegation of power as per the notification dated 31.08.1981 is also do not appear to be tenable in eye of law. By virtue of the provisions of Section 276 the earlier transfer of functions are specifically saved. The petitioners have conveniently ignored the provisions of the Section 162 of the Gujarat Co-operative Societies Act 1961 where under it is specifically provided that such functions could be delegated to panchayats and this being administrative function it could be done by the committee and it could not be challenged as such on account of the provisions of 174 and 271 of the Gujarat Panchromatic Act 1993.Assuming without holding that there is some substance in the submissions of the petitioners than also the present petition is not tenable in eye of law and hence it would be of no avail to them.
33.The Court need not examine the integrity of irregularity in according the registration to the new societies as under article 226 of the Constitution such disputed questions of facts cannot be examined at the instance of those petitioners who have no locus standi to file the petition.
34.The Court needs to be mindful of the fact that none of the memos of petitions in three petitions contain any whisper about non viability of the new society nor have the petitioners indicated anywhere in the entire memo as to what real prejudice is likely to be caused to the members of the existing societies. The pleading of members or delegation of members would be of no avail Page 32 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT to the present petitioners as had there been so the challenge to the registration would be available to the existing society. It can be said that they will also have no right to file appeal under section 153 of the Cooperative Societies Act. The Court has not adverted to it in great detail as in case the existing societies are passing general resolution indicating that No Objection was given fraudulently than there could be some semblance of right in them to file appeal that to only after they establish their right to file appeal. In light of the learned single judge's order in Vachhal Dudh utpadak (supra) if the existing societies have any right to file appeal than they may do so and this right to challenge the registration would not be affected by passing of this order in any manner. The democratic process must be given its full play and the course available to the members of existing societies of mustering enough support within their society for passing appropriate resolution and challenging new registration by and/or on behalf of society with new resolution of society then, this order could not be any impediment in their way to so challenge by invoking section 153 of the Cooperative Societies Act."
50. The learned Single Judge, in her impugned order, has also commented a lot about the bonafide of the appellant herein. We may quote few relevant observations;
"8. The Court, therefore, has reasons to believe that the impugned order has been passed with ulterior motive with a view to see that the petitioners Societies as primary agricultural credit societies, are ousted from the voters' list in the APMC election and they are deprived from participating in the said election.
9. The Court does not find any substance in the submission made by the learned Advocate Mr. Rao that the Societies were required to follow a separate procedure for changing their names under Section 15 of the said Act. It is pertinent to note that the Rule 8 of the said Rules provides that where a society proposes to change its name under Section 15, it shall do so by an amendment of its bye-laws, and that for the amendment in Page 33 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT the bye-laws, the procedure as contemplated in Section 13 is required to be followed. The said procedure has been followed by the petitioners and approved by the competent authority i.e. the Assistant District Registrar, Cooperative Societies. Be that as it may, the Court is prima facie satisfied that the impugned order passed by the respondent No.2 at the instance of the respondent No.3 lacks cogent reasons as also the bonafides, and the same appears to have been passed after the declaration of the election of APMC with an ulterior motive to oust the names of the petitioners societies from the voters' list. It is required to be noted that the names of the members of the petitioner Societies have already been included in the preliminary voters' list as contemplated in Rule 7 of the APMC Rules. :
51. We do not propose to go into any other issues as canvassed before us, more particularly, whether the provisions of Section 13 would apply or Section 17 of the Act, 1961 would apply. We are also not going into the issue with regard to the applicability of Rule 9 of the Rules, 1965. We are not going into all such issues because we are of the view that the appellant herein, on his own, in the first instance, had no legal right to prefer appeals under Section 153 of the Act, 1961 in his capacity solely as the Chairman of the APMC.
52. The preliminary objection raised by Mr. Rao as regards the maintainability of the writ application on the ground of alternative remedy in the form of Section 155 of the Act, 1961 is also thoroughly misconceived and is rejected.
53. In the result, all the appeals fail, whereas all the writ applications stand allowed. The impugned order passed by the Page 34 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020 C/LPA/460/2020 CAV JUDGMENT Addl. Registrar (Appeals) Cooperative Society, State of Gujarat is hereby quashed and set aside. Rule is made absolute in all the writ applications.
54. In view of the order passed in the main matters, the connected civil applications, if any, stand disposed of accordingly.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) Vahid Page 35 of 35 Downloaded on : Tue Oct 06 23:50:02 IST 2020