Back
2015 Supreme(Guj) 980
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. Thaker, J.
Mahedevbhai Veljibhai Cahudhari - Petitioner
Versus
State of Gujarat and Ors. – Respondent
Special Civil Application No. 8960 of 2015.
Decided on : 30-9-2015.
For the Petitioner No. 1:Dipen Desai, Advocate.
For the Respondent No. 1: Manisha L. Shah, Government Pleader.
For the Respondent Nos. 2 and 3: notice served by DS
Important Point-Power to decide applications seeking membership with a society has to be exercised in democratic manner by democratically elected body representing members of society.
Headnote:Gujarat Co-operative Societies Act, 1961-Section 74(c)-Gujarat Specified Co-operative Societies Election to Committee Rules 1982-Power to decide applications seeking membership with a society has to be exercised in democratic manner by democratically elected body representing members of society and their views and said power must be exercised in accordance with bye-laws of society and for the purpose of advancing object and interest of society-Decision and action of enrolling new members alters composition of a society and it is always appropriate and just that power to decide application seeking enrolment of member is decided by duly elected body/committee comprising representatives of members from all classes/categories and constituted in democratic manner and not by any outsider i.e. a person/committee of persons in name and style of "custodian" appointed by Registrar.
Result-Special Civil Application allowed.
K.M. Thaker, J.
In present petition the petitioner has prayed, inter alia, that by appropriate writ the respondent No.3- custodian may be restrained from enrolling any new member in Mehsana District Central Co-operative Bank Limited (hereinafter referred to as the "bank"). It is also prayed that the respondent no.3-custodian may also be directed to "only take care of day to day affairs" of the bank.
2. So as to give exact nature and scope of the relief prayed for by the petitioner, the paragraph No. 6(B) and (C) are quoted herein below:-
"6(B) The Hon'ble Court be pleased to issue a writ of prohibition or writ in the nature of prohibition or any other appropriate writ, order or direction, restraining the respondent no.3 - Custodian to enroll any new member in the Mehsana District Central Cooperative Bank Limited.
(C) The Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent no.3 - Custodian to only take care of day to day affairs of the Mehsana District Central Co-operative Bank Limited and not take any policy decision."
3. The petitioner has mentioned factual background in light of which the petition is taken out.
3.1 According to the details mentioned in the petition, the bank is "specified society" within meaning of Section 74(c) of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as the "Act").
3.2 In view of the provision under Chapter XIA the election for the bank has to be held in accordance with the provision under said Chapter read with Gujarat Specified Co-operative Societies Election to Committee Rules 1982.
4. The petitioner society has claimed that it is one of the members of the bank and as a member it is vitally interested in the affairs of the bank.
4.1 It is further claimed that according to the provision under the Act the tenure of the managing committee to hold the office is 3 years.
4.2 So far as the Bank is concerned, the term of the committee (which was last elected) expired on 1.4.2015. According to Section 145-C election of specified society should be held, as far as possible one month before the date on which the "term" is due to expire.
4.3 It is claimed that by order dated 19.12.2014 passed by the Collector, Mehsana, Prant Officer came to be appointed as election officer to conduct the election of the bank. It is claimed that since any progress was not made in the matter of completing the procedure and formality for holding election the bank had addressed a letter dated 27.1.2015 requesting authority to take action for holding election in accordance with the provision under the Act. Subsequently the bank initiated certain litigation related to election for the Managing Committee (hereinafter referred to as the Committee) and filed a writ petition i.e. Special Civil Application No. 2355 of 2015 seeking direction to hold election at the earliest Then the bank filed a petition being SCA No. 4959 of 2015 against delimitation. During the pendency of the petition Gujarat Co-operative Societies (Amendment) Act, 2015 came into force w.e.f. 10.4.2015. By the said Amendment Act Section 74(C)(2) and Section 74(D) are inserted by virtue of the said amendment. In view of the provision under Section 74(D) the Government is required to appoint custodian in cases where election is not held and a new committee is not elected before the term of the committee/board expires. In case of the Bank the term of the elected body expired on 1.4.2015. The petitioner has claimed that during pendency of the SCA No. 6065 of 2015 the respondent No.2 Registrar appointed respondent No.3 as custodian for the bank. The said appointment is made vide order dated 13.4.2015 (i.e. after expiry of the term of the elected body) and the custodian has taken charge on and from 15.4.2015.
4.4 The petitioner has also mentioned that though request to suspend the order of appointment of custodian, the said request was howev
