Important Point:
Any statutory authority purporting to act under a provision of law to exercise powers which are not available to him under the provision or do not flow therefrom or acting to exercise the powers on the consideration de hors the express grounds mentioned in the provision, is in the nature of colourable exercise of powers. Such exercise is just not a wrongful exercise of powers but partakes a situation where the action could be said to be tainted with malice in law.

Heard learned advocate Mr. Bharat Patel for the petitioners, learned Assistant Government Pleader Mr. Rohan Yagnik for the first respondent, learned advocate Mr. Bharat Rao for the second respondent and learned advocate Ms. Megha Pandya for learned advocate Ms. Kruti Shah for the third respondent.

2. The District Registrar, Cooperative Societies, Surat-the first respondent herein, seeking to exercise his powers under Section 74D(1) of the Gujarat Cooperative Societies Act, 1961, passed order dated 22nd September, 2016 appointing a Custodian for the petitioner-Vashkui Dudh Utpadak Sahakari Mandali Limited. Respondent No.2 herein came to be appointed as Custodian. It is this order to which the challenge is addressed in this petition on the ground that the authority exceeded its jurisdiction and the resultant order is without jurisdiction.

3. The events preceded and made premise for passing the impugned order may be noted with relevance. It appears that elections to the Managing Committee of the petitioner society though were required to be notified, they were not notified, and the State Government had not appointed any authority to conduct the elections. In order dated 10th July, 2013 passed by this Court in Special Civil Application No.10155 of 2013, it was directed that the elections to the Managing Committee was required to be held as per the bye-laws. The Election Officer was thereafter appointed and the election programme was declared on 02nd September, 2016. The results of the elections were declared on 12th September, 2016 by the Returning Officer. It appears that certain female members of the first petitioner society filed objections before the District Registrar. The District Registrar addressed letter dated 08/12th September, 2016 to the petitioner to cancel the election programme and fix new programme. It was on the complaint that reserved seats for women were not notified. The said letter of the Registrar was received by the society after 12th September, 2016 when the results had been declared. It further appears that on 18th September, 2016 elections to two reserved seats for women were declared, which was the objection that the reserved seats for women were not kept and the elections were held in absence of such reservation. The case of the petitioner is that no candidate in the women category filled nomination form on 19th September, 2016.

3.1 The culmination of the aforesaid sequence of events was in form of the impugned order under Section 74D(1) of the Act. Adverting to see the contents and the grounds of the order, the District Registrar observed that the election programme of the society was published contrary to the legal provisions and that it was defective. It was stated that two seats for women were not reserved yet the elections were declared and conducted. It was further stated by the Registrar in the impugned order that though by communication dated 08/12th September, 2016, the petitioner society was asked to prepare fresh election programme, the instructions were not obeyed by the petitioner. It was in wake of such reasons and considerations that the first respondent-District Registrar proceeded to exercise his powers under Section 74D(1) of the Act and ordered appointment of the Custodian.

4. Respondent Nos.1 to 3 by filing their affidavit-in-replies defended the impugned order of appointment of Custodian. It is contended on behalf of the respondents that elections to the Managing Committee of the society was not held in accordance with law and since they were required to be held as per provision of Section 74-BB of the Act, but held in breach and that the reservation for seats for women was not provided, exercise of Section 74D(1) of the Act was undertaken and the Custodian was appointed. It was submitted that Managing Committee elected in an election conducted and held not in accordance with the provisions of the Act and the bye-laws, could not be allowed to continue. For supporting the said