Gujarat High Court
The Baiwada Vibhagiya Prathmik Krushi ... vs State Of Gujarat on 1 July, 2024
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6218 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN SD/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE BAIWADA VIBHAGIYA PRATHMIK KRUSHI DHIRAN SEVA SAHAKARI
MANDALI LTD. & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BS PATEL, SENIOR ADVOCATE WITH MR BAIJU JOSHI(1207) for the
Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
MS NIDHI VYAS, AGP for the Respondent(s) No. 1,2,3
MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR DIPAN DESAI(2481)
for the Respondent(s) No. 4,5,6,7,8
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 01/07/2024
CAV JUDGMENT
With the consent of the learned advocates appearing for the respective parties, the captioned writ petition is taken up for final disposal.
2. Issue rule, returnable forthwith. Ms Nidhi Vyas, learned Assistant Government Pleader waives service of notice of rule on behalf of respondent nos.1 to 3. Mr Dipan Desai, learned advocate Page 1 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined waives service of notice of Rule on behalf of respondent nos.4 to 8.
3. Captioned writ petition has been filed with the following prayers:
"21. (A) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ of certiorari or any other appropriate writ, order or direction, directing the respondent No.3 to remove the respondent Nos.5 to 8 as Administrator and appoint duly eligible and qualified skilled person as Administrator of the respondent No.4 Union.
(AA) YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or writ of certiorari and/or appropriate writ, order or direction, quashing and setting aside the order dated 7.7.2021 passed by the respondent No.3 - District Registrar amending the bye-laws of the respondent No.4 society which is produced at Annexure-J to the petition.
(B) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ of certiorari and/or writ of prohibition or any other appropriate writ, order or direction, directing the District Registrar, Cooperative Societies to not to take any decision on the proposal for amendment of bye-laws submitted before it, as the same would without authority of law and jurisdiction.
(C) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ of certiorari and/or writ of prohibition or any other appropriate writ, order or direction, declaring that the action of respondent Nos.5 to 8 as members of the Administrator Committee of respondent No.4 Union initiating proceedings for amendment of bye-laws is unjust, improper, ultra vires, highhanded and in violation of the principles laid down by the Supreme Court in the judgment reported in AIR 1997 SC 2925 and AIR 2000 SC 2378.
(D) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondent Nos.5 to 8 from functioning as members of the Administrator Committee of respondent No.4 Union and further be pleased to also restrain the respondent No.3 from taking any decision against the proposal for amendment of bye-laws submitted before it by respondent Nos.5 to 8, as for Administrator Committee of respondent No.4 Union.
(DD) During the pendency hearing and final disposal of this petition, Your Lordship may be pleased to stay the implementation, execution and operation of the order dated 7.7.2021 passed by the respondent No.3 - District Registrar Page 2 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined amending the bye-laws of the respondent No.4 society which is produced at Annexure-J to the petition.
(E) Any other and further reliefs as deemed just and proper looking to the facts of this case, may kindly be granted in favour of the petitioner, interest of justice."
4. Mr B. S. Patel, learned senior counsel appearing with Mr Baiju Joshi, learned advocate appearing for the petitioners, at the outset, submitted that in view of the subsequent development, prayers 21 (A) and 21 (B), would not survive and hence, not pressed, restricting the challenge only qua the order dated 07.07.2021 passed by the District Registrar, Co-operative Societies, Banaskantha at Palanpur (hereinafter referred to as "respondent no.3 - District Registrar"). While inviting attention to the provisions of Section 81 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as "the Act of 1961") and more particularly, sub-section (3), it is submitted that the Committee or Administrator so appointed have to exercise all or any of the functions of the committee and take action as may be required in the interest of the society subject to the instructions of the State Government and/or Registrar. Therefore, the language contained in sub-section (3) of Section 81 of the Act of 1961, is clear and the powers to be exercised by the Committee or the Administrator are only limited to day-to-day function and not to take any policy decision inasmuch as, there lies a difference between the duties, powers and functions. It is further submitted that sub-section (4) of Section 81 of the Act of 1961, provides that the Committee or the Administrator appointed, is under an obligation to hold the election of the Committee of the society as directed by the State Government or the Registrar, as the case may be. Proviso to sub- section (4), states that the Committee or the Administrator, shall arrange to hold election for constitution of a new Committee of a society in the co-operative credit structure within the stipulated period. Sub-section (7) provides for ineligibility of the members of Page 3 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined the Committee which has been superseded to become a member of the Committee for a period of six years. Therefore, if the Administrator and/or Committee is appointed, it must conduct the election as per the position prevailing as on 31.03.2021 for, there is an accrual of the rights of the members to contest the election.
4.1 It is submitted that the Administrator Committee, has exercised the powers of the Managing Committee amending the bye-laws and have unilaterally decided what should be the amended bye-laws and was placed before the general body. It is submitted that it is only the Managing Committee who is to initiate the proceedings for the amendment of the bye-laws and after following the procedure, the amendment is to be placed before the general body. The Administrator Committee, is not empowered or authorized to take any policy decision including the amendment of the bye-laws inasmuch as, the powers of the Administrative Committee, are limited only to perform the day-to-day function.
4.2 It is further submitted that the bye-law no.9 provides for the duties of the Managing Committee and clause 27, speaks about recommendation by the Managing Committee in the general body meeting. The nature of the amendment suggested by the Administrator Committee, is of such a nature that it changes the structure of the Managing Committee touching the elections. It is submitted that it is within the purview of the Managing Committee to frame the rules of election and to be submitted before the general body meeting, seeking its approval. Therefore, when the powers of framing the rules of the election lie with the Managing Committee, it would be impermissible for the Administrator Committee, to propose such change.
4.3 Reliance is placed on the judgment of Apex Court in the case of K. Shantharaj & Anr. vs. M.L. Nagaraj & Ors. reported in AIR 1997 Page 4 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined SC 2925. It is submitted that the provisions of the Karnataka Cooperative Societies Act, 1959 and more particularly, sub-section (2) of Section 30 are in pari materia with the provisions of Section
81. It is submitted that the Apex Court, has held that the election is to be conducted of the members as on the rolls and the Administrator, is not vested with power to enroll new members of the Society. Reliance is also placed on the judgment of the Apex Court in the case of Jt. Registrar of Cooperative Societies, Kerala vs. T.A. Kuttappan & Ors. reported in AIR 2000 SC 2378. The issue, was about the powers of the Administrator to enroll new members of the society. While considering the provisions of Kerala Cooperative Societies Act, 1969, the Apex Court, has held that there are no powers available with the Administrator to enroll new members and it would be impermissible to change the composition, which would amount to taking the policy decision. Reliance is also placed on the judgment of the Orissa High Court in the case of Urban Co-operative Bank vs. State of Orissa reported in 2002 (1) Orissa LR 486, following the ratio laid down by the Apex Court in the case of Jt. Registrar of Cooperative Societies, Kerala vs. T.A. Kuttappan (supra). Reliance is also placed on the judgment of the Bombay High Court in the case of S.M. Kamble & Ors. vs. Jt. Registrar, Co- operative Societies reported in 2008 (1) AIR BomR 274. It is submitted that it is the Administrator Committee, who has decided to amend the bye-laws and that decision is approved by the general body and therefore, it is incorrect to contend that the Administrator Committee has only placed the proposal before the general body.
4.4 It is submitted that as per the resolution, it is clear that the proposal was prepared by the Administrator Committee and was placed before the Managing Committee which, approved it and was placed before the general body without there being any discussion, as to why the amendment is necessary etc. No discussion worth the Page 5 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined name has taken place; however, the bye-law was approved in the annual general meeting on 03.01.2021. Item no.9 of the agenda does not say anything except the amendment. Resolution no.12, has been passed and whatever has been approved by the Administrator Committee, has been simply approved in the annual general meeting rendering the whole process contrary to law.
4.5 It is submitted that Rule 6 of the Gujarat Cooperative Societies Rules, 1965 (hereinafter referred to as the "Rules of 1965") provides for the procedure for amending the bye-laws, which says about due notice of any proposal; however, no notice or proposal has been forwarded to the members. While referring to the existing bye-laws and the amended bye-laws, it is submitted that bye-law no.7(1)(1) was proposed and accepted. It is submitted that vide bye-law no.7(1)(a), reservation is introduced and reservation is for the representative and not the members which, cannot be provided. So far as bye-law nos.7(1)(a) and 7(1)(b) are concerned, same have been introduced. Similar is the provision with regard to bye-law no.7(1)(d). The nature and substance of the bye-laws, would amount to taking the policy decision, which would be impermissible for the Administrator Committee to take. It is submitted that what has been provided in the bye-laws is against the statute. Reservation is contrary to the provisions of the Act and the Rules and more particularly, Section 74(1)(b) of the Act of 1961, which provides for reservation for scheduled castes and scheduled tribes and for women consisting of the individual as members; however, there is no such provision for reservation for the representatives.
4.6 It is submitted that in the pleadings, objection is raised about the maintainability of the writ petition. It is submitted that no appeal is provided against the proposal. Moreover, during the pendency of the writ petition, Registrar has already taken a decision and Page 6 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined therefore, there is a challenge to both, the aspect of proposal and order as well. Reliance is placed on the judgment in the case of State of M.P. & Ors. vs. Sanjay Nagayach & Ors. reported in (2013) 7 SCC 25. It is submitted that the Apex Court, has held and observed that when the authorities exercise the powers in an arbitrary fashion, writ petition under Article 226, would be maintainable. Further reliance is placed on the judgment in the case of M/s Siemens Aktiengeselischaft & S. Ltd. vs. DMRC Ltd. & Ors. reported in (2014) 11 SCC 288. The Apex Court, has held and observed that once the matter is before the Court, the Government should stay its hands. It is submitted that in the case on hand, the Registrar could not have accepted the bye-laws; however, it took the decision in an arbitrary manner without taking permission of the Court making it subject to the final outcome of the writ petition. It is submitted that the proceedings for amendment of the bye-laws at the behest of the Administrator Committee instead of duly elected Committee, would be impermissible. Hence, the petition, would very much be maintainable.
5. Mr Mihir H. Joshi, learned Senior Advocate with Mr Dipan Desai, learned advocate, submitted that as the petitioners have not pressed the prayers earlier prayed for, the limited prayer which remains, would be the challenge to the order dated 07.07.2021 passed by the respondent no.3 - District Registrar amending the bye-laws of the respondent no.4 - Deesa Taluka Cooperative Produce and Sales Union Limited (hereinafter referred to as "the Union"). It is at the outset, submitted that the decision of the Administrator Committee, is challenged and therefore, the question would be as to whether the writ petition against the decision of the Administrator Committee, would be maintainable for, it is not a State. It is further submitted that the Administrator Committee has stepped into the shoes of the Managing Committee and the Page 7 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined Managing Committee, is not susceptible to the writ petition.
5.1 It is submitted that the decision taken by the Administrator Committee, has culminated into the resolution of the general body and the resolution is not challenged. Under section 73 of the Act of 1961, general body is the supreme authority and the members, are bound by the decision taken by the general body. Also, it would be impermissible for the member to challenge the decision of the Registrar without challenging the resolution. Even otherwise, grievance is against the proposal which has culminated in the resolution of the general body and is not challenged and once the general body approves the bye-laws, the recommendation or the proposal, pales into insignificance.
5.2 It is submitted that it is sought to be argued by the petitioners that only functions are to be performed by the Administrator Committee and not to exercise the powers. While inviting the attention of this Court to Section 81 of the Act of 1961, it is submitted that the said provision, provides for appointment of the Administrator to manage the affairs of the society; however, there is no embargo. Also, the section does not impose any restriction. Similarly, sub-section (3) of Section 81 provides that the Committee or Administrator so appointed shall have the power to exercise all or any of the functions of the Committee and take all such actions as may be required in the interest of the society. Bye-law no.9 provides for the duty of the Managing Committee; however, it does not say anything about the powers and functions. Clause (2) provides for the disposal of the application crystalising the rights of the person vis-a-vis the society and therefore, the final decision is to be taken by the Managing Committee and can be done by the Administrator Committee. The Apex Court in the judgment in the case of K. Shantharaj vs. M.L. Nagaraj (supra) has held that it cannot Page 8 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined be done. The question before the Apex Court was about the powers and the functions and which arose because of the peculiar provisions in the Karnataka Co-operative Societies Act. Provision, provided for the appointment of the Administrator and another provision, was dealing with the appointment of the Special Officer and the Apex Court, was called upon to decide the relative powers. It is submitted that interpreting the provisions, it has been held by the Apex Court that the powers, lay with the Special Officer and functions with the Administrator Committee. It was in the peculiar facts that the principle has been laid down. The judgment, would not be applicable to the facts of the present case.
5.3 It is submitted that both the judgments of the Apex Court have no bearing as, the judgments deal with the membership. In the present case, action of the Administrator Committee, cannot be faulted inasmuch as, it is a part of the function to propose the change and the proposal is not a decision; whereas, the decision is to be taken by the general body. Who has initiated the proposal, would be irrelevant. Furthermore, the proposal, has culminated into the decision of the general body and it has not been challenged. Besides, the decision of the general body is to be approved by the State Government and therefore, the contention of the powers, functions etc. would be insignificant.
5.4 It is submitted that another contention raised is about the absence of discussion and deliberation by the general body. It is submitted that if at all there is any grievance on the part of members as regards procedural aspects, it has to be challenged and in absence of any challenge, grievance cannot be raised that the amendments, were not discussed or deliberated. The resolution passed by the general body, it being a supreme, would be binding on all the members.
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5.5 It is submitted that challenge is to the validity of the order of the Registrar. Against which, there is a remedy provided under Section 153 of the Act of 1961. It is also submitted that the petitioners have lost right to file an appeal for, there is no challenge to the resolution on the ground that the recommendation, could not have been made by the Administrator Committee. Sub-section (2) of Section 13 of the Act of 1961 provides for registration of the amendment by the Registrar if it is satisfied that the amendment, is not contrary to the Act, the Rules and the bye-laws.
5.6 It is submitted that it is also sought to be argued that the bye- law, is against the provisions of Section 74B(1)(a) of the Act of 1961. It is submitted that the contention raised, does not find place in the pleadings. Even otherwise, in one or the other form, the said bye- law is in currency since the year 1998. It is submitted that even if the provisions of Section 74B(1)(a) is accepted, it is a mandate where, you can have a member of said class or category; however, there is no bar that you cannot do it.
5.7 While dealing with the contention that even if there is an alternative remedy, the petitioners, should not be relegated to avail of the same, it is submitted that when the order was passed, the substantial prayers prayed in the petition were very much there and the dispute raised by the petitioners, lay in a different compass. It was not that the challenge was pending and the order was passed. Even otherwise, merely because the order has been made subject to the final outcome, the petition would not be held to be maintainable. It is also incorrect to contend that by passing an order dated 07.07.2021, that the authorities, have overreached the Court process for, a specific prayer was prayed for restraining the respondent from taking any decision against the proposal for amendment of bye-laws. This Court, has passed an order dated Page 10 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined 07.04.2021 wherein the learned advocate for the petitioners, has not pressed the interim relief. Therefore, it would be highly improper on the part of the learned counsel for the petitioners to contend that by passing an order, the authorities have overreached the Court process. It is submitted that the reasons, have been assigned by the Registrar. Also, the petitioners have been heard and it is only after hearing that bye-laws have been amended.
5.8 In support of the submissions made, reliance is placed on the judgments in the case of Karmacharinagar Cooperative Housing Society Limited vs. State of Gujarat & Ors. reported in 2013 (3) GLR 268 as well as the judgment in the case of Banaskantha District Cooperative Union Limited vs. State of Gujarat & Ors. reported in 2011 (2) GLR 1707. It is urged that the petition filed by the petitioners, is misconceived and deserves to be dismissed.
6. Ms Nidhi Vyas, learned Assistant Government Pleader, while supporting the judgment, submitted that Section 13 provides for framing of the bye-laws and Rule 6 of the Rules of 1965 provides for the procedure. It is submitted that a bare perusal of the order and more particularly, findings recorded, it clearly spells out that a due notice was given which, would be in compliance of clause (a) of Rule 6 of Rules of 1965. Similarly, the requirement of quorum also stands satisfied. Therefore, there is no violation of either of the provisions of the Act and the Rules. It is submitted that when there is a resolution passed and placed before the Registrar, the Registrar cannot go beyond the resolutions and if the amendment, is in consonance with the Co-operative principle, it has to be accepted. Registrar having arrived at the satisfaction, has approved the bye- laws and therefore, it cannot be said that any error has been committed. Besides, there is no objection raised against the resolution, which is unanimous.
Page 11 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED: 01/07/2024 undefined 6.1 It is submitted that it is also argued that the Administrator
Committee, could not have mooted the proposal. While responding, it is submitted that the Registrar cannot go beyond the resolution and cannot also decide, who was the proposer. Reliance is placed on the judgment in the case of Karmacharinagar Cooperative Housing Society Limited vs. State of Gujarat (supra). It is further submitted that so far as the allegation of overreaching of the Court process is concerned, the same is also misplaced for, there was no interim relief granted by this Court which, has been breached or that the order has been passed in defiance of the said interim relief. It is further submitted the submission of the breach of Section 74B(1)(a), has been raised for the first time. It was never the case of the petitioners and now, therefore, raising such contention, would be impermissible.
7. Mr B.S. Patel, learned Senior Advocate, while responding, submitted that the Administrator Committee, is appointed by the Registrar, who is directly working under the instructions and control of the Registrar. When the Committee is under the direct control of the Registrar, petition under Article 226, is very much maintainable. Moreover, there is no relief sought for against the Committee and hence, the maintainability cannot be questioned.
7.1 It is submitted that it is also incorrect to argue that the powers available with the Registrar is to see whether the bye-laws is in accordance with the Act and the Rules and if yes, the Registrar has to accept the proposal. It is submitted that there is not a whisper in the order that the bye-laws are in accordance with the Act and the Rules. Though this Court has issued notice, the reply was filed only in the month of July 2021, i.e. after passing the order, which conduct on the part of the Registrar would not be proper.
7.2 Reliance placed on the judgment in the cases of Page 12 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED: 01/07/2024 undefined
Karmacharinagar Cooperative Housing Society Limited vs. State of Gujarat (supra) and Banaskantha District Cooperative Union Limited vs. State of Gujarat (supra), would also be misplaced. It is also submitted that submission as regards the provisions of Section 74B(1)(a) can be raised at any point of time, it being pure question of law. It is therefore, submitted that the petition warrants interference and the order of the Registrar dated 07.07.2021, deserves to be quashed and set aside.
8. Heard the learned counsel appearing for the respective parties and perused the documents made available on record.
9. The challenge in the captioned writ petition is to the order dated 07.07.2021 passed by the respondent no.3 - District Registrar amending the bye-laws of the respondent no.4 - Union. Initially, the challenge, was seeking direction to the respondent no.3 to remove the respondent nos.5 to 8 as Administrator Committee and to appoint duly eligible and qualified skilled persons. Subsequently and during the pendency of the writ petition, the order dated 07.07.2021 having been passed by the respondent no.3 - District Registrar amending the bye-laws of the respondent no.4, Mr B. S. Patel, learned Senior Counsel appearing with Mr Baiju Joshi, learned advocate for the petitioners has not press prayers 21 (A) and 21 (B) and have restricted the challenge only to prayer 21 (AA) and consequential prayer 21(C). Therefore, the captioned writ petition has been considered only qua the challenge to the order dated 07.07.2021 and the connected prayer and the grounds.
10. Tersely stated are the facts;
11. The petitioners and the Union, are registered under the provisions of the Act of 1961 and the Rules made thereunder. In the year 2016, election of the Union, had taken place and the newly Page 13 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined elected body was in power and managing the affairs of the respondent no.4 Union. As per the provisions of Section 74 of the Act of 1961, election was due in the year 2021-2022; however, according to the petitioners on 29.08.2020, a show cause notice was issued to the Union, requiring it to show cause as to why Government nominee should not be appointed. Respondent nos.5 to 8 and one Ishwarji Okhaji Thakore, who passed away were appointed as Government nominees. According to the petitioners, before any further steps could be taken, the respondent no.3 - District Registrar has passed an order dated 09.10.2020 appointing the Committee consisting of 5 persons as Administrators to the Union. The petitioners, being aggrieved, have preferred the captioned writ petition, inter alia, challenging the action on the part of the District Registrar appointing the Administrator Committee so also the action of the Administrator Committee.
12. It is the case of the petitioners that after the Administrator Committee took over the charge, it in absolute highhanded and arbitrary manner, started functioning to the extent that the Committee has initiated the proposal for amending the bye-laws, which it could not have done. On 21.12.2020, a Resolution no.7 was passed, followed by the agenda of Annual General Meeting to be held on 03.01.2021. The Annual General Meeting, was convened and the decision was taken to amend the bye-laws of the respondent no. 4 Union. Bye-laws were accordingly sent to the office of the District Registrar on 24.03.2021 together with the Form nos.2 to 5. Upon objection being raised by some of the member societies, that the hearing was conducted which ultimately culminated into passing of the order dated 07.07.2021, approving the bye-laws as suggested by the respondent no.4 Union.
13. As stated herein above, the petitioners were earlier aggrieved Page 14 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined by the appointment of the Administrator Committee and hence, had filed the captioned writ petition. This Court, on 07.04.2021, has passed the following order:
"Heard learned advocate Mr. Baiju Joshi appearing for the petitioners, learned Government Pleader Ms. Manisha Lavkumar assisted by learned Assistant Government Pleader Ms. Aishwarya Gupta appearing for respondent Nos.1 to 3 and learned advocate Mr. Dipen Desai appearing for respondent Nos.5 to 8.
NOTICE returnable on 17.06.2021.
Learned Assistant Government Pleader Ms. Aishwarya Gupta waives service of Notice for respondent Nos.1 to 3 and learned advocate Mr. Dipen Desai waives service of Notice for respondent Nos.5 to 8.
Learned advocate appearing for the petitioners does not press for interim relief at this stage."
Clearly, the learned advocate appearing for the petitioners did not press for interim relief which, at the relevant point of time was, inter alia, seeking direction to the respondent no.3 - District Registrar from taking any decision against the proposal for amendment of the bye-laws. Since, there was no interim relief, that the respondent no.3 - District Registrar approved the bye-laws by passing the order dated 07.07.2021. The order was passed during the pendency of the captioned writ petition and therefore, the petitioners have sought for the amendment which, came to be granted and accordingly, now the petitioners have restricted their challenge to the order dated 07.07.2021. In furtherance, the petitioners have also prayed for direction that the action of the respondent nos.5 to 8 as members of the Administrator Committee of the respondent no.4 union initiating the proceedings for amendment of the bye-laws is unjust and improper.
14. Thus, the principal contention raised by the learned counsel for the petitioners is that as per the bye-laws, the Managing Page 15 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024 NEUTRAL CITATION C/SCA/6218/2021 CAV JUDGMENT DATED:
01/07/2024 undefined Committee of the society is to initiate proposal for amendment of the bye-laws which, thereafter, is to be placed in the general body meeting. Except the duly elected Managing Committee and office bearers, no other person can undertake such exercise. The Administrator Committee appointed, in exercise of the powers conferred under section 81 of the Act of 1961, has no jurisdiction or authority to take any policy decision which, includes the amendment of the bye-laws. Such a proposal by the Administrator Committee, amending the bye-laws, would be without jurisdiction and in violation of the provisions of the Act and the Rules made thereunder. It is also the contention of the petitioners that the proposal sent, has been accepted by the general body in toto without any independent application of mind and therefore, what was proposed by the Administrator Committee has been accepted by the Registrar, by passing an order dated 07.07.2021, which exercise, was impermissible in law. It is this order dated 07.07.2021 of the Registrar, is under challenge. Objection is raised about the maintainability in view of the scheme of the Act providing approval and registration of the bye-laws. Therefore, provisions governing amendment of bye-laws, would require a brief look.
15. Section 13 of the Act of 1961 provides for amendment of bye- laws and it 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:Page 16 of 20 Downloaded on : Mon Jul 01 21:14:25 IST 2024
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01/07/2024 undefined 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."
16. It states that bye-laws would not be valid until registered under the Act and for the purpose of registration of 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. Sub-section (2) of section 13 speaks about the satisfaction of the Registrar and if the Registrar is of the opinion that amendment so forwarded is not contrary to the Act and the Rules, he may register the amendment. Proviso speaks about offering of an opportunity of being heard to the society, if the Registrar proposes to refuse to register the amendment of the bye-laws. Sub- section (3) of section 13 since not relevant, is not referred to. Sub- section (4) of section 13 envisages that where the Registrar refuses to register the amendment of the bye-laws of a society, he shall communicate order of refusal together with the reasons therefor to the society.
17. Moreover, Section 153 of the Act of 1961 provides for an appeal and Section 155 further provides for revision against the order or decision under section 13. Sections 153 and 155 of the Act of 1961 read thus:
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01/07/2024 undefined "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.
(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.
155. The Government and the Registrar may call for 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 property of any decision or order passed, and as to the regularity of the proceedings of such officer. If in 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 pas such order thereon as it or he may deem just."
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18. It is therefore, if the petitioners, are aggrieved by the decision of the Registrar amending the bye-laws under section 13, appeal is provided under section 153 of the Act of 1961 and the petitioners can very well avail of the remedy. Though it is sought to be argued that the proposal has been initiated by the Administrator Committee and it had no authority, clearly, it is not an exception carved out for entertaining the writ petition. Writ petition can be taken recourse of when there is infraction of celebrated parameters, namely, where the writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where, the order or proceedings are wholly without jurisdiction or the vires of the Act is challenged. It is not the case of the petitioners that the order has been passed in violation of the principles of natural justice and even otherwise, section 13 of the Act of 1961 does not make any provision of hearing to the members who are opposed to passing of the amendment. Hearing is contemplated to the society, in the event the Registrar refuses to register the amendment in the bye-laws. Also, it is not the case of the petitioners that the Registrar had no authority to approve the bye-laws. As per the provisions of the Act, the Registrar is very much competent to approve the bye-laws and therefore, when the Registrar has approved the bye-laws by passing an order and if any party is aggrieved, it can very well avail of alternative remedy of appeal available under section 153 and further revision under section 155 of the Act of 1961. None of the parameters are available to the petitioners and when there is an inbuilt mechanism provided, it would not be permissible to the petitioners to circumvent the said remedy and challenge the order before this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.
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19. Besides, while placing reliance on the judgment in the case of State of M.P. vs. Sanjay Nagayach (supra), contention is raised that if the authority has exercised the power in an arbitrary manner, petition is maintainable. In this connection, it is argued that when this Court was seized of the matter, Registrar could not have taken a decision. The petitioners, have lost sight of the fact that it was the petitioners, who have not pressed the interim relief. When there was no restraint order passed, it was open to the Registrar to take a decision, which he took. Therefore, the said contention does not deserve to be accepted.
20. Under the circumstances, the writ petition is not entertained solely on the ground of availability of alternative remedy to the petitioners, relegating the petitioners to avail of the same. Since the Court is not inclined to entertain the writ petition, other contentions are not gone into. It is further clarified that it will be open to the petitioners and the respondents to raise all the contentions, permissible and available in law. Needless to clarify that the authority concerned, shall decide it in accordance with law.
21. In view of the above, the captioned writ petition is not entertained and hence, it is dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.
SD/-
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