Shri Mahendrasinh Ratnasinh Karmariya vs State Of Gujarat on 17 September, 2020

[Cites 10, Cited by 1]

Gujarat High Court

Shri Mahendrasinh Ratnasinh Karmariya vs State Of Gujarat on 17 September, 2020

Equivalent citations: AIR 2021 (NOC) 228 (GUJ.), AIRONLINE 2020 GUJ 951

2. This petition under Article 226 of the Constitution of India is filed against the issuance of show cause Notice by respondent No.2 dated 06.08.2020 in exercise of powers under Section 76 (B) of the Gujarat Co-operative Societies Act, 1961.

Page 1 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020

C/SCA/10265/2020 JUDGMENT

3. The background of facts, which has given rise to this petition is that the present petitioner is a Vice-president of the Valia Taluka Co-operative Purchase and Sale Union Limited (hereinafter referred to as the "Society") and the society is engaged in the activities of purchase and sale of agricultural and other items and also doing other activities.

4. According to the petitioner, the election of Executive Committee of society was lastly held in the year 2015 and as per the bye-laws of the society, there are as many as 19 members in executing committee. One Shri Yogendrasinh Jaswantsingh Mahida has been elected as President of the society, whereas petitioner was elected as Vice President of society in the said last election. It appears that manager of the society called a meeting of executive committee on 23rd June 2020 by issuing agenda on 19th June 2020 and the said agenda was consisting of as many as 10 items reflecting in it. According to the petitioner, out of 19 committee members, 2 members have expired. As a result of which, out of 17 existing members, 10 members moved the no confidence motion against the President and requested the authority to convene a meeting of members of the executive committee within a period of 30 days. The said letter dated 26th June 2020 of the very same date, according to the petitioner, the President was informed about this Page 2 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT move, then it was informed to cancel the meeting called on 23rd June 2020 as the members are not going to remain present. It is submitted that despite there was no coram, the meeting was held by the president on 23 rd June 2020 in the presence of only six members and time of meeting, which was fixed in the agenda at 10.00 a.m., the meeting was convened at 9.00 a.m. and as such, the said meeting, according to the petitioner was in clear conflict with relevant bye-laws and provisions of law. Hence, the said meeting was illegal. An immediate attention was drawn of respondent authority, on the very same day, that said illegal meeting was held by the President vide communication dated 23rd June 2020. Then vide letter dated 25th June 2020, the Manager of society was informed that in view of circular dated 25th June 2020 of the Sangh, the financial transactions being done with the Banks under the signature of president and manager should be cancelled and henceforth the same will be done under the joint signature of the petitioner being the Vice President of the society and the Manager Shri Jayendrasinh Chhatrasinh Mahida. The said circular was to be placed in the next meeting of the executive committee.

5. The petitioner has further asserted that 11 members of the executive committee have wrote to the president as well as the Manager of the society on 26 th June 2020 to call for the meeting of executive committee by issuing fresh agenda and requested to add two more items to be Page 3 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT included i.e. (1) to take note of Circular/Resolution dated 25th June 2020 and (2) to fill up the vacant posts of members of executive committee in view of Section 74(1-

c) of sub-clause (1). Since the president and Manager did not act in pursuance of the request made by the majority members of executive committee, the petitioner took out the agenda on 28.06.2020 and decided to hold the meeting of members of executive committee. The Manager of the society sought guidance from respondent No.2 whether he should remain present in the meeting or not, but, it appears that respondent No.2 informed the Manager by letter dated 29.06.2020, inter alia stating that proposal for no confidence motion against the president of society is pending for consideration and as such, the meeting which is sought to be convened at the instance of the petitioner is contrary to bye-laws and as such, meeting is required to be cancelled and hence, he need not remained present.

6. The petitioner having come to know about it all the 11 members of executive committee, who desire to hold the meeting wrote to respondent no.2, then he has no authority in the eye of law to declare holding of such meeting as illegal and since the same was without granting any opportunity, it was requested to cancel the letter dated 29th June 2020, and to give appropriate instruction to hold the meeting on 1.00 p.m. Page 4 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT

7. According to the petitioner, there was no response from respondent no.2 and as such, 11 members of executive committee concluded the meeting on 29 th June 2020. As per the agenda and unanimously decided to fill up three vacant posts of members of the executive committee by co-opting three members including (1) Mr.Narendrasinh Suratiya and (2) Badat Mohmad Yasin Yusuf and all these three members have been co-opted in the meeting dated 29th June 2020. By this time, respondent No.2 forwarded the proposal of no confidence motion to respondent No.3 for carrying out further proceedings but till date, according to the petitioner, no further proceedings have been initiated by the respondent-authorities.

8. According to the petitioner, the respondent authorities remained inactive in calling the meeting of executive committee and some 13 members of executive committee wrote a letter on 20th June 2020 to President / Manager to call the manager for calling meeting of executive committee immediately, failing which, within a period of 3 days, the petitioner will be compelled to take out agenda of the meeting. Despite statutory time has passed away, no action has been taken on the issue of no confidence motion and as such, requested to do the needful at the earliest. In response to this, on 21.07.2020 the respondent No.2 sought certain details from the Manager of society, the petitioner was served with the Page 5 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT same through Manager of the society on 23 rd July 2020. According to the petitioner, since Manager was not calling the meeting on the ground that as and when he will be instructed by the respondent No.2, he will call the meeting and as such, members sought clarification about the same from respondent No.2 vide their letter dated 22 nd July 2020 as he said earlier the petitioner under that circumstance had issued agenda on 23 rd July 2020. As per the wish of majority members fixed the meeting of executive committee on 30th July 2020. In this response, the Manager of the society again sought guidance from the respondent No.2. Again respondent No.2 gave very same reason for not remaining present in the meeting and as such, on 27.07.2020, a writing was given to the respondent No.2 to the Manager. On account of this, the respondent No.2 gave an assurance on mobile that dhama was withdrawn. On 29 th July 2020, letter was written to respondent No.2 that Dhama has already been withdrawn upon assurance being given by respondent No.2. However, if instruction to that effect is not given latest by 30.07.2020, again 'dhama' will be held at the office of respondent no.2. According to the petitioner, Committee member - Shri Sandip Mangrola also wrote a letter to the respondent No.1 to cancel the letter dated 27.07.2020 and pointed out that meeting will be held on 30th July 2020 at 1.00 p.m. and also role of respondent No.2 has remained doubtful in entire episode. When meeting started, two Subordinate Officers from the office Page 6 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT of respondent No.2 came and gave a letter dated 30 th July 2020, stating that if the meeting is held it will be considered unauthorized.

9. The case of the petitioner further to the effect that then petitioner has made a written complaint on 4 th August 2020 against respondent No.2 and requested that action may be taken against him. Simultaneously petitioner also made a representation on 05.08.2020 to respondent No.1 for taking action under Section 76(B) of the Act against the President Shri Yogendrasinh Jaswantsingh Mahida the member of the society also gave a press release on 05.08.2020 against mismanagement of the President of the society. Now all these things happened, as a result of which, to the utter shock of the petitioner, respondent No.2 issued show cause notice on 06.08.2020 showing cause as to why the petitioner should not be removed under Section 76(B) of the Act and also why petitioner should not be disqualified to contest the election of the society, substantially on the ground that petitioner held two consecutive meetings on 29 th June 2020 and 30th June 2020 unauthorizedly and three members in the committee have been selected by the co- option after the 60 days period was over etc. and thereby has acted in a manner prejudicial to the interest of society.

10. It is further the case of the petitioner that the respondent No.2 informed the Branch Manager of Bank of Page 7 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT Baroda, Valia Branch vide letter dated 06.08.2020. That President Shri Yogendrasinh Jaswantsingh Mahida is an acting President of society and therefore, considering this, transactions in the bank may be permitted. This having been aggrieved by the petitioner, he made a representation in detail on 17.08.2020 before respondent No.1 against the show cause notice dated 06.08.2020 as well and requested that the show cause notice dated 06.08.2020 may be dropped or withdrawn and inquiry of the entire episode of the society be initiated by High Rank Officers like Joint Registrar by examining representation dated 17.08.2020 and by referring to aforesaid background of facts the present petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to question the issuance of show cause notice dated 06.08.2020 and accordingly has made following prayers, which are reproduced hereinafter:

"7(a) YOUR LORDSHIPS to be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to quash and set aside the show cause notice dated 6.8.2020 issued by the respondent no. 2 in purported exercise of powers u/s. 76(B) of the Act is ex-facie illegal, invalid, null & void, without jurisdiction and competence, unreasonable, unjust, unfair and violative of Arts. 14, 19(1)(g) and 21 of the Constitution of India;

(b) YOUR LORDSHIPS be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to direct the respondent authorities to forthwith call for meeting of members of Managing Committee of Page 8 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT the Society by issuing agenda to all the members of the executive committee so as to take decision with respect to motion of No confidence against the President of Society;

(c) YOUR LORDSHIPS be pleased to direct the respondent no.1 to take action against the respondent no. 2 in accordance with law in pursuance of the respondent dated 17.08.2020 made by petitioner;

(d) YOUR LORDSHIPS may be pleased to stay the further operation, implementation and execution of the show cause notice dated 6.8.2020 issued by the respondent no. 2 pending the admission, hearing and final disposal of this petition;

(e) YOUR LORDSHIPS be pleased to grant such other and further relief/s, as are deemed fit, in the interest of justice."

11. The petition was placed for hearing on 28 th August 2020. Mr.Bhargav Pandya, learned Assistant Government Pleader has submitted that no copy of petition is made available to him by the learned advocate for the petitioner. As a result of this, the matter was adjourned to 31st August 2020. On 31st August 2020, Civil Application No.1 of 2020 is moved by the Valia Taluka Co-operative Purchase and Sale Union Ltd. through its President and President Mr.Yogendrasinh who filed the application for being impleaded as a party respondent in the petition, as they are effected with the outcome of present petition. This application was not placed on record on 31.08.2020. As a result of which, the matter was adjourned to Page 9 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT 01.09.2020 and subsequently, the Special Civil Application and the Civil Application both were placed before the Court for hearing and on that day, the learned advocate Mr. Dipen Desai appearing with Mr.H.R. Prajapati, learned advocate for the petitioner and Mr.Zubin Bharda, the learned advocate for the applicant in Civil Application, learned Assistant Government Pleader were heard and matter was adjourned to 07.09.2020 and later on 07.9.2020, it was indicated that since substantially matter is heard, the same is than put up on 09.09.2020 for orders.

12. With these facts and background, the learned advocates submissions are taken up for consideration by this Court in the present proceeding. Mr.Dipen Desai, the learned advocate appearing with Mr.H.R. Prajapati, learned advocate for the petitioner has submitted that the issuance of Notice is ex facie a mala fide act on the part of the respondent-authority and at the behest of the President, who now came for being impleaded in the present proceeding and therefore, the action of issuance of Notice is unjust and improper and smacks mala fides. Hence, the same be quashed and set aside.

13. Mr.Desai, learned advocate for the petitioner has submitted that ex facie the notice, which has been issued is indicating that Seciton 76(B) of the Act is not attracted since the charge is merely of conducting a meeting in the absence of President and the said meeting was also Page 10 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT convened with the request and concurrence of several members and not by the petitioner alone. It has been contended that instead of taking action against the respondent No.2, the petitioner is served with the show cause notice, which circumstance is quite shocking and reflects a clear intent of the authority. According to Mr.Desai tenore of notice is reflecting a clear pre- determined action in contemplation against the petitioner and therefore, when that be so, the petitioner was left with no alternate but to invoke extraordinary jurisdiction of this Court. Mr. Desai has submitted that identical issues have been cropped up in past before this Court in several cases in which, the Courts have taken a view that no simultaneous action can be issued and as such, ex facie, the notice is beyond the scope of authority and without jurisdiction.

14. Learned advocate Mr.Desai has further submitted that apparently when ingredients of Section 76 are not prima facie attracted, there is hardly any reason for the authority to exercise the discretion. The issuance of notice itself amounts to without authority of law. This is nothing but a colourable exercise of powers in contemplation against the petitioner to remove him from Vice Chairmanship of the society. In this view of peculiar set of circumstance, the writ petition according to Mr.Desai deserves to be entertained. It has further been submitted that this power, which is sought to be Page 11 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT exercised reflecting from the tenore of notice is before the stage of removal, which is thoroughly impermissible and as such, the Court may exercise the discretion in this peculiar background of fact.

15. To substantiate this contention, the learned advocate Mr.Desai has submitted by drawing attention to the decision delivered by the Court on earlier occasion almost in similar circumstance, wherein, it has been clearly held that issuance of combined notice proposing action both under Sections (1) and (2) of Section 76(B) is illegal. Action under sub-section (2) of Section 76(B) can be initiated only after conclusion of action under Section 76(B) (1) and therefore, ex facie the issuance of notice is an impermissible action and not in consonance with the proposition of law laid down by several decisions of this Court. As a result of this, request is made to set aside the impugned show cause Notice and simultaneously has also made a request to decide the representation at the earliest without any further loss of time.

16. To strengthen his submission, the learned advocate Mr.Desai has relied upon following decisions:

(i)In the case of Oryx Fisheries Private Limited vs. Union of India reported in 2010 (0) GHEL-SC 49078.

(ii) In the case of Vipulbhai M. Chaudhary versus Page 12 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT State of Gujarat reported in 2016(1)GLR 86.

(iii) In the case of State of Uttar Pradesh versus Arezzo Developers Pvt. Limited reported in 2016(12)SCC 530.

(iv) In the case of Vipulbhai Mansingbhai Chaudhary versus State of Gujarat reported in 2017(13) SCC 51.

17. In addition to the aforesaid submission, Mr.Dipen Desai, learned advocate for the petitioner has drawn the attention of this Court to the draft amendment and contents thereof whereby the respondent-authorities have issued a further show cause notice on 21 st August 2020 in purported exercise of powers under Section 80(2) of the Act calling upon the members of managing committee to explain as to why three representatives should not be appointed by the State Government as members of the Managing Committee of society. By referring to this, it has been contended that there are no circumstances available for the respondent-authorities to issue such kind of show cause notice and this is indicative of the fact that authority is pre-determined and as such, has requested to quash and set aside the said Notice dated 21.08.2020 as well. No other submissions have been made.

18. As against this, learned Assistant Government Page 13 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT Pleader has vehemently contended that this petition is absolutely premature at this stage. The petitioner is merely called upon to explain and reply to the Notice so in view of the consistent practice, normally the extraordinary jurisdiction may not be exercised at the stage of issuance of show cause notice. It has been vehemently contended that what has been relied upon by the learned advocate for the petitioner, are the decisions substantially when the action is culminated into an order and that order by the authority appears to have been questioned and examined and as such, at this stage, the presumption may not be allowed to be raised that authority will not consider the reply of the petitioner. Apart from that even on merit whether Section 76(B), clauses are attracted or not is exclusively within the initial domain of the statutory authority, who is invested with the specific power under the statute and therefore, the statutory authorities must be allowed to act within four corners of statute and when powers are invested in it, it is only when error is committed by the authority, the writ jurisdiction may be invoked after exhausting alternative remedies, and as such, it has been vehemently opposed against entertainment of petition. The learned Assistant Government Pleader has also drawn the attention to one of the decisions of Division Bench of this Court delivered in Letters Patent Appeal No. 132 of 2015 in Special civil Application No. 2063 of 2015 with Civil Application No. 1197 of 2015 in Letters Patent Appeal No. 132 of 2015 dated 04.02.2015 and wherein, Page 14 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT it has been pointed out that since the action was at a notice stage was not permitted to be challenged and by referring to this decision a contention is raised that let the statutory authority be permitted to examine the issue, which is tried to be agitated. The Court may not usharp the discretion of statutory authority, which is invested by a specific statute. So far, whether the petitioner has acted prejudicially to the interest of society or whether his conduct is possible to be visited with action under Section 76 of the Act or not are the matters of details, which are to be examined based upon the material, which may be placed before the authority and therefore, such adjudication of fact and examination of it may not be undertaken in exercise of extraordinary jurisdiction. Learned Assistant Government Pleader has vehemently opposed the consideration of amendment as the same is also a subject matter of scrutiny by statutory authority under the Act and as such, precisely a contention is raised that this is not a stage where the petitioner may be allowed to invoke extraordinary jurisdiction by simply alleging mala fide or pre-determined mind. Powers of statutory authority may not be interjected and the authorities are required to be allowed the exercise of statutory powers independently and without any pressure.

19. With these submissions, the learned Assistant Government Pleader has additionally submitted few further decisions and requested not to entertain this Page 15 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT petition.

20. In Civil Application, Mr.Zubin Bharda, learned advocate for the applicant has submitted that substantially the allegations are levelled against the applicants of Civil Application that it is at the behest to him the action is sought to be initiated against the petitioner and further in the relief, which has been prayed for in paragraph (c)there is a direct relief against the applicant - respondent No.2 and as such, applicants are necessary proper party to the proceedings and therefore, may be impleaded.

21. To this submission, Mr.Desai, learned advocate for the petitioner has vehemently contended that basically the petition is directed against the issuance of show cause by the authority. It may be that certain averments have been made but that would not permit the applicant to jump into litigation, since there is a dominus of the petitioner, whom to join or not to join. Simply, because action of the authority is questioned by the petitioner, the same will not permit the applicant to be joined in the proceedings at this stage, where no orders are passed by the authorities and in paragraph (c) what has been prayed for in prayer clause is merely to take appropriate decision on pending representation and if need be while taking such decisions upon pending representation, the authority may grant an opportunity, if desire and permissible and as Page 16 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT such, the presence of the applicant in present petition is not at all inevitable and he cannot be said to be proper and necessary party and in this peculiar background of fact, since the petitioner is having a dominus by virtue of well recognized principles of "dominus litis", the application may be dismissed by not granting any relief. The contesting respondents in addition to the Division Bench judgment as stated above have also placed reliance upon few decisions, which would be considered appropriately in the present order at appropriate stage.

22. Having heard learned advocates appearing for the respective parties and having gone through the material on record and considering the submissions, few circumstances are not possible to be unnoticed by this Court while examining the grievance of the petitioner.

23. Before dealing with the submission of learned advocate, the Court would like to summarize some of the observations made by the Apex Court on the issue of exercise of extraordinary jurisdiction at a notice stage. In case of Union of India and Ors. vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, it has been observed that in very rare and exceptional cases, the High Court can entertain the petition and cannot anticipate that it may not drop the proceedings. Of course, the said decision is related to a quashing of charge-sheet and the show cause notice, but since the observations are relevant, the Court deems it Page 17 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT proper to reproduce the same:

"14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet."

24. As such upon this observation, the Court cannot anticipate that statutory authority, which is invested with the power, would ignore the settled position of law, if applicable which is tried to be canvassed by the learned advocate for the petitioner and yet another decision delivered by the Apex Court in the case of D.N. Jeevraj vs. Chief Secretary, Government of Karnataka and Others reported in (2016) 2 SCC 653, in which also, the Apex Court has observed that when the discretion is required to be exercised by Page 18 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT statutory authority, it must be permitted to do so and the High Court may not usharp the discretion of authority, when statute has invested a specific power upon the said authority. The relevant observation contained in para 41, 42 and 43 since considered by the Court deserved to be reproduced hereinafter:

"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

42. In Mansukhlal Vithaldas Chauhan v. State of Page 19 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT Gujarat[9] this Court held that it is primarily the responsibility and duty of a statutory authority to take a decision and it should be enabled to exercise its discretion independently. If the authority does not exercise its mind independently, the decision taken by the statutory authority can be quashed and a direction given to take an independent decision. It was said:(SCC pp. 632-33, paras 22-

23) "22. "Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory.

Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right".

23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion."

43. To this we may add that if a court is of the Page 20 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by- pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."

25. Yet another decision almost in a similar circumstance, the Division Bench of this Court in Letters Patent Appeal No.132 of 2015 decided on 4 th February, 2015 by confirming the order of learned Single Judge has refrained from exercising extraordinary jurisdiction particularly when the controversy was arose at a stage of show cause notice and almost similar contentions were raised before the Court. In that case, also a submission was made before the Division Bench that respondent issued show cause notice to the appellant Page 21 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT of that case under Section 76(B)(1) and (2) of the Act and has apprehended the action of not only removal but also future disqualification as indicated in the notice and very same contention was raised that the said show cause notice is without jurisdiction as would not attract action under Section 76(B) of the Act. While dealing with the said notice, the Division Bench of this Court has clearly observed in paragraphs 10, 11 and 12, the Court would like to reproduce the relevant observations hereunder.

"10. It has to be borne in mind that the Gujarat Cooperative Societies Act, 1961 is enacted with a noble object of giving boost to the Co- operative movement and to uplift the living conditions of poor farmers. If a person like the appellant who is at the helm of affairs of such society indulges into mass scale financial irregularities for his personal benefits as depicted in the impugned notice then the purpose of forming cooperative society shall be frustrated. Therefore, if this Court at this juncture interjects and quashes and sets aside the impugned notice then it would amount to perpetuating the sordid illegal and irregular financial activities allegedly indulged into by the appellant. It is required to be mentioned herein that the appellant had an occasion earlier to challenge similar notices which is evident from the decision of this Court in the case of . In our view this speaks volume about the quality of leadership of the appellant.

11. At this stage, we make it clear that we are not expressing any opinion on the merits of the impugned notice and not for a moment we should be misunderstood to have accepted the allegations made in the impugned notice against Page 22 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT the appellant as true. We do not propose to condemn the appellant for the so called irregularities alleged against him in the impugned notice. In our considered opinion, the appellant should reply to the impugned show cause notice and try to convince the authorities that the allegations levelled against him in the impugned notice are not tenable on the grounds which are available to him under the law. We are therefore not inclined to disturb the impugned order passed by the learned Single Judge.

12. No doubt Mr. Naik has taken this Court to various decisions of the Apex Court and this Court. However, in our view going by the documentary and factual findings which have been arrived at by the Registrar, it cannot be said that the proceedings are politically motivated or that this litigation requires interference by this Court at this stage in any manner."

26. The Court was pleased to, on the contrary, imposed the token cost of Rs.7,500/- upon the appellant while dismissing the appeal.

27. So aforesaid observations are in nutshell indicate that only in rarest of rare case when such extraordinary case is tried to be made out, the High court may exercise extraordinary jurisdiction, otherwise normally the statutory authority is required to be allowed to independently exercise their discretion vested in law.

28. In the light of aforesaid observations, almost similar Page 23 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT contentions have been raised by the learned advocate representing the petitioner and has anticipated that authority will not act independently. On this submission that issuance of show cause notice smacks mala fide, is not outrightly possible to be accepted by this Court particularly when after examining and scrutiny, the statutory authority will have to examine as to whether the contentions are sufficient enough to recall the notice or to proceed ahead with the notice by ariving at specific findings. This essential function of decision making by the authority, the Court would not like usherp and no special circumstance are pointed out to this Court to deviate from aforesaid principles, which may call for any interference.

29. A record indicates that though calling of the meeting essentially is the function of President or the Manager as said by the authority, attempts have been made by the petitioner to convene the meeting with aim to pass no confidence motion against the President and in turn has also seen to it that some new members through co-option be introduced. This is an issue to be examined by the authority and whether such act would invite the consequences as stated in the notice or not is the matter of detailed examination and adjudication of issue, here it seems that both the petitioner and the respondent No.2 are out to act on their own with a specific inter se and as such, this Court would not like to dwell into such aim by either party and rather would like to leave it open for Page 24 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT examination by statutory authority and as such, this petition appears to be premature. The issuance of show cause notice is by an appropriate authority, who is invested with the power to issue which is not in dispute and as such, it is not the case that the authority who issued the notice has no power at all, it may be that ingredients may or may not be attracted as said earlier the same would be a matter of scrutiny and this Court would not like to express anything in this regard at this stage.

30. The submission, as such, made by Mr.Desai, learned advocate for the petitioner are not possible to be accepted and Court cannot presume that authority while adjudicating show cause notice will ignore the statutory requirement and the ingredients of provisions relevant to the issue and Court also cannot assume at this stage that statutory powers may be exercised by the authority de horse the settled proposition of law, if applicable, in background of present case of petitioner.

31. Learned advocate Mr.Desai for the petitioner has submitted certain decisions to strengthen his case but while going through the said decisions majority decisions are at a stage where specific orders have been passed by the authorities and as such this Court is not inclined to accept the submissions and would not like to opine anything on merit since the petition is not entertained at Page 25 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT the show cause notice stage. The first judgment which has been pointed out to the court is the decision in the case of Vipul Chaudhri (supra), but while going through the said decision it clearly transpires that the court was examining the validity of an actual order, which has been passed against the said petitioner and as such, it may be that analogy of submission about interpretation of Section 76(B)(1) and (2) of the Act may be sounding attractive but Court would not like to presume that the statutory authority will ignore this proposition of law if applicable while adjudicating the show cause notice. It may be that after considering this settled position is applicable the authority may recall the Notice or dropped the proceedings and as such since the stage is altogether different the Court would not like to express any opinion on the submission made by the learned advocate at this premature stage which may influence the decision making process by authority. Yet another decision, which has been relied upon again in the case of Vipul Chaudhary (supra)where also the Apex Court was dealing with a specific order passed against the appellant. It appears that the aforesaid order of learned Single Judge of 2016(1) GLR 86 appears to be a subject matter of scrutiney before the Apex court and hence as said earlier binding effect of the said decision may not be ignored by the authority, which is going to exercise statutory function and as such, the court would not like to interject the said adjudicating process pursuant to the show cause notice. Another Page 26 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT decisions which are tried to be pressed into service in the case of Oryx Fisheries Private Limited (supra)and State of Uttar Pradesh (supra), but facts are altogether different and as such the court is not inclined to opine anything and would leave it open for the petitioner to press into service before the statutory authority where the petitioner is being offered an opportunity.

32. At this stage, Mr.Desai has drawn the attention to the subsequent event in the form of amendment which has taken place that authority has issued another notice under Section 80 (2) of the Act calling upon the members of managing committee to show cause as to why three representatives should not be appointed by the State Government as members of the managing committee of the society but these circumstances, which are pointed out in the draft amendment may be offspring but out of context in the present petition. It may be inter related but the said event is also at the show cause notice stage, and altogether on a different issue so the court would not like to interject the adjudication in contemplation on the same analogy. Hence, without expressing any opinion on merit the court is inclined to independently leave it open for the authority to consider all these issues which have been raised since it may have the effect of influencing decision making process by the authority. Hence, in considered opinion of this court, the present petition being premature, same is not entertained at this stage.

Page 27 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020

C/SCA/10265/2020 JUDGMENT

33. A statute has created a specific machinery to adjudicate the issues and has also provided a statutory mechanism to ventilate the grievance if any. Hence, the Court would not like circumvent this process created by statute of adjudication by exercising jurisdiction under article 226 of the Constitution of India.

34. Simultaneously, it appears that the petitioner has also raised grievance against the respondent No.2 in the form of representation dated 17.08.2020 the same also will have to be examined at length by the authority after due compliance of principles of natural justice and it is expected that the statutory authorities while adjudicating the show cause notice and simultaneously examining the representation dated 17.08.2020 will keep in mind, the proposition of law laid down by the decisions which are tried to be pressed into service by the petitioner and for such purpose due opportunity to both the sides be given before taking any decision in accordance with law. With these observations petition being premature at the notice stage is dismissed with no order as to costs.

Order in Civil Application No.1 of 2020 This Civil Application is filed for the purpose of seeking impleadment as respondent Nos.5 and 6 in the main petition in which the action of issuance of show cause notice is challenged by the original petitioners.

Page 28 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020

C/SCA/10265/2020 JUDGMENT Mr.Zubin Bharda learned advocate appearing for the applicants has submitted that original petitioner ought to have joined present applicants as respondents in the proceedings since they are vitally concern and effected with the outcome of the same and further has pointed out that one of the reliefs which has been sought for in paragraph 7(c) is directly against the one of the applicants. Hence, they are necessary and proper parties to the proceedings.

As against this, learned advocate Mr.Dipen Desai appearing with Mr.HR Prajapati has vehemently opposed mainly on the ground that applicants cannot be said to be necessary and proper parties and main challenge in the petition is issuance of show cause notice dated 06.08.2020, so the incidental relief, which has been sought may not establish that applicants are necessary and proper parties and in any case, the said relief is only with a view to see that authority may examine so at this stage of the proceedings, applicants cannot be said to be necessary parties.

Additionally Mr.Desai has submitted that in view of well recognized principles of "dominus litis" there is no need to join applicants in the main petition since no basic reliefs are sought against the applicants personally. Hence, the application being meritless deserves to be Page 29 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020 C/SCA/10265/2020 JUDGMENT dismissed.

Having heard the learned advocates appearing for the parties and having gone through the averments contained in the application and the submission made before this Court, since the Court is not inclined to entertain the petition as being premature, no order need to be passed in Civil Application. Further, Mr.Desai has rightly submitted that principles of "dominus litis" would permit the original petitioner whom to join in the proceedings since the petition itself is not entertained by this Court, the Court is of the clear opinion that applicants are not necessary to be impleaded in the proceedings. Accordingly, the Civil Application being devoid of merits deserves to be dismissed.

However, this disposal of Civil Application will not come in the way of the applicants to take out any appropriate remedy to represent before statutory authority if so desire.

with these observations, the present Application stands dismissed.

(ASHUTOSH J. SHASTRI, J) ALOK/MARY VADAKKAN Page 30 of 30 Downloaded on : Thu Sep 17 23:17:31 IST 2020

Unlock Advanced Research with PRISMAI

Gujarat High Court