2007 Supreme(Guj) 104

Gujarat High Court
Judgename :D.A.MEHTA
JAYANTIBHAI DAHYABHAI PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 3276 Of 2007
Decided On : 02/21/2007

Headnote:Point in Issue :

       Whether removal of Managing Committee of Co-operative Society and appointment of custodian without giving opportunity of hearing to members of committee sustainable?

       Head Note :

       Gujarat Co-operative Societies Act, 1961(10 of 1962) - Sections 74-D, 74-D(1), 74-C(2) and 145-C - Gujarat Specified Cooperative Societies Elections to Committee Rules, 1982 - Rules 4, 4(2), 4(3) Rule 4(4) and Rule (5) - Constitution of India, 1950 - Articles 14 and 19(1)(c) - Removal of Managing Committee - Appointment of custodian - Absence of opportunity of hearing - Challenge on ground of violation of principles of Natural Justice - Sustainability - Finding as to - Under the provisions of the Act the members elected on the committee are to hold office for a period of three years from the date on which first meeting is held and are to continue in office until immediately before the first meeting of the members of the new Committee - In the case the term of the Committee was to expire on 07.04.2006 - The six months period envisaged by provision in the Act was to expire on 07.10.2006 - Every election under the provisions of the Act to be held as far as possible one month before the date on which the term of office of members is due to expire - In the circumstances question arises as to what is legislative intent when legislature uses phrase as far as possible, specially when read with may used in Section 74-D of the Act where in it is stated that Registrar may be on order appoint custodian - There is thus inherent indication in the Scheme of the Act itself that not only is registrar vested with discretion in matter of appointment of a custodian but such discretion has to be exercised in the light of the fact which has to be ascertained as to whether it was or was not possible to hold election one month before the date on which the term of the office of member was due to expire - Under the Rules also Registrar is required to determine whether requirements of Rules are complied with - Registrar has to exercise discretion keeping in view all the relevant fact and for that it becomes incumbent on authority to call upon members of Managing Committee to explain - There may not be specific provisions under the Act or Rules for giving opportunity of hearing before appointment of custodian but it has to read in the provisions as in built.

       Held :

       The contention on behalf of the respondent authority that Section 74-D of the Act does not provide for any requirement of hearing Committee members in required to be recorded to be rejected. Once the provision itself i.e. Section 74-D of the Act confers a discretion on the Registrar and Section 145-C of the Act provides determination of the fact whether it was possible to hold election or not, such a fact becomes a relevant factor before such discretion is exercised. For this purpose, the requirement of granting a reasonable opportunity of hearing has to be read into the provisions even if not specifically provided for by the legislature as otherwise the existing committee members cannot place on record as to why it was not possible to hold elections, the legislature heaving provided for a situation where it may not be possible to hold election by use of the phrase as far as possible. [Para 8]

       The Registrar is, therefore, required to pose a question to himself and answer: as to whether the society had complied with the requirements of the Election Rules within the specified time, and if the answer is yes, where has the default occurred. If the answer goes to show that the default is not at the end of the society, it is necessary to exercise discretion and apply his mind as to whether the drastic action of appointment of custodian is required in the circumstances. For posing the question and obtaining the answer it becomes incumbent on the authority to call upon the members of the Managing Committee to explain as to whether there is compliance with the Election Rules and the requirements thereof. Even if he does not do so he is expected to look into the record and ascertain the facts before ascribing any default to the Managing Committee. [Para 10]

       Though no contention is raised, it can be urged on behalf of the respondent authority that an exercise of this nature is not necessary because regardless of who is at fault, Section 74-D of the Act states that a custodian can be appointed if a new committee of management is not elected "for any reason whosoever". Nothing can be further away from such a proposition if one considers the legislative scheme delineated hereinbefore. If this was the legislative intent there was no requirement of vesting Registrar with any discretion by use of the word "may", nor providing for holding of election before one month "as far as possible". The legislature has, therefore, provided for emergent situations, extenuating circumstances and the circumstances which are beyond control of the Managing Committee. [Para 11]

       Law Laid Down :

       Any interpretation of law which renders a part of the provision itiose or superfluous should be avoided.

       Case Law Analysis :

       Amreli District Co-operative Sale & Purchase Union Ltd. vs. State of Gujarat, 1982 25(2) GLR 1244 [Para 14].- Relied on

       Conclusion :

       It is not possible to accept the submission on behalf of the respondent authority that an opportunity of hearing is not required to be granted before removal of committee and appointment of custodian.

       Decided in Favour of :

       Petitioner

       Petition Allowed