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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hemant M. Prachchhak, J.
Vanrajsinh Harchanji Thakor & Ors. - Petitioner
Vs.
District Registrar - Respondent
Special Civil Application No. 22602 of 2017
Decided On : 05-04-2024
Leave to add the State of Gujarat as party respondent - Cooperative Society - Gujarat Co-operative Societies Act, 1961, Section 76B - The court quashed and set aside the impugned order dated 23.08.2017 passed by the respondent No.1 as it was found to be without jurisdiction and null and void.
Fact of the Case:
The petitioners challenged the impugned order dated 23.08.2017 passed by the respondent No.1, which disqualified them for a period of four years under Section 76B(2) of the Gujarat Co-operative Societies Act, 1961. The petitioners contended that the authority had directly passed the order under Section 76B(2) without exercising the power under Section 76B(1) and without issuing a notice for breach of Section 76B(1). The respondents objected to the petition, stating that the petitioners should approach the authority with their grievances.
Finding of the Court:
The court found that the impugned order was passed without jurisdiction and was null and void. It held that the authority cannot pass an order under Section 76B(2) without first issuing a notice for breach of Section 76B(1) and without removing the concerned officer from the post as per Section 76B(1). The court also noted that the petitioners had an alternative efficacious remedy available, but considering the settled legal principle, it decided to quash the impugned order.
Issues: The main issue was whether the authority had the jurisdiction to pass the impugned order under Section 76B(2) without first issuing a notice for breach of Section 76B(1) and without removing the concerned officer from the post as per Section 76B(1).
Ratio Decidendi: The court relied on the Gujarat Co-operative Societies Act, 1961, Section 76B and previous judgments to establish that the authority cannot pass an order under Section 76B(2) without first issuing a notice for breach of Section 76B(1) and without removing the concerned officer from the post as per Section 76B(1). It emphasized that the impugned order was without jurisdiction and null and void.
Final Decision: The court allowed the petition and quashed the impugned order dated 23.08.2017. It made the rule absolute to that extent and permitted direct service.
JUDGMENT :
Leave to add the State of Gujarat as party respondent.
1. Being aggrieved and dissatisfied with the impugned action of the respondent No.1, the petitioners have preferred the present petition seeking the following prayers:-
(B) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned tender order dated 23.08.2017 passed by the respondent-District Registrar, Co-operative Societies, Mehsana at Annexure-A to the petition.
(C) This Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest justice.
2. The facts giving rise to present petition are that the State Employees Co-operative Credit and Thrift Society Limited (hereinafter referred to as "the society” for short) is a Co-operative Society registered under the Gujarat Co-operative Societies Act, 1961 and the members of the said societies are employees of Gujarat State Road Transport Corporation. The petitioner Nos. 1 to 5 were erstwhile members of the managing committee of the society, whereas, the petitioner Nos.6 to 9 are members of managing committee of the society which got elected on 21.08.2016.
2.1 Since the term of the managing committee of the society expired, the then executive body of the society in its meeting held on 03.08.2016 vide Resolution No.5 resolved to conduct elections of members of managing committee of the society for the term of four years for the period from 2016-17 to 2020-21. It was also decided that the voters list as on 03.08.2016 be sent for publication in every unit and the executive body also decided to appoint the Election Officer and Assistant Election Officer.
2.2 One employee Shri Pareshkumar Abhesinh Thakor approached the learned Board of Nominees, Mehsana by filing Lavad Suit No.154 of 2016, wherein the said employee challenged the election rules of the society and also challenged the election process of the society. By way of injunction application, the said Pareshkumar Abhesinh Thakor sought stay of elections declared by the society. In the said suit, learned Board of Nominees vide order dated 10.08.2016 passed interim order to the effect that the society shall not proceed further with the process of election without publication of the preliminary voters list.
2.3 Therefore, the learned Board of Nominees did not restrain the society from proceeding further with the election, however, only restrained the society to the effect that without publication of the preliminary voters list, elections shall not be continued. The society, however, had published preliminary voters list on 03.08.2016 and name of the said plaintiff Pareshkumar Abhesinh Thakore also appeared in the preliminary voters list. The order of the learned Board of Nominees was served upon the society on 16.08.2016, by that time, however, election process was already in motion and as per the election program, election was to be completed on 20.08.2016.
2.4 The society therefore, filed its detailed reply before the learned Board of Nominees, pointing out that the voters list was published properly and thereafter, 73 persons had filed nomination forms and three forms were declared invalid and 70 persons were included in the final voters list of contesting candidates. However, out of that 42 persons withdrew their nomination forms and lastly 25 contested the election. Last date on which the contesting candidates' list was published was 12.08.2016 and voting was held on 20.08.2016. Thereby, total 10 candidates were declared elected after counting of votes, whereas, three candidates were declared e
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