IMPORTANT POINT
The court established that disqualification under Section 76(B) requires clear evidence of misconduct, and the inquiry process must be thorough and fair.

ORDER :

Vaibhavi D. Nanavati, J.

1. By way of present petition, the petitioners herein have prayed for the following reliefs:

(a) YOUR LORDSHIP be pleased to issue writ of mandamus and/or any other appropriate writ, order or directions, directing the respondent nos.1 to 3 herein to declare that the respondent no. 4 as disqualified and remove the respondent nos. 4 as Chairman and Director of the respondent no.5 – society.

(b) YOUR LORDSHIP be pleased to issue writ of mandamus and/or any other appropriate writ, order or directions, directing the respondent nos. 1 to 3 herein to initiate proceedings under the provisions of Section 76 (B) of the Act immediately and take appropriate steps expeditiously.

(c) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to pass necessary orders upon respondent nos.1 to 3 to investigate and submit the report before this Hon'ble Court in a time bound schedule.

(d) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent nos. 1 to 3 to produce the report before this Hon’ble Court in compliance to the Annexure-H of the order passed by this Hon’ble Court.

(e) YOUR LORDSHIP be pleased to grant such other and further relief as may be deemed fit in the interest of justice.

2. Heard Mr. P.K. Jani, learned Senior Counsel appearing for the petitioners herein with Mr. Baiju Joshi, learned advocate appearing for the petitioners, Mr. R.R. Marshall, learned Senior Counsel appearing for Mr. Daifraz Havewalla, learned advocate appearing for respondent nos. 4 and 5 and Ms. Pooja Ashar, learned AGP appearing for the respondent State Authority.

3. By way of present petition, the petitioners herein have challenged the inaction on the part of the respondent nos. 1 to 3 in not initiating any proceedings against the respondent no. 4, who is disqualified and non-suited to hold the post of Chairman of respondent no. 5 – society which is known as ‘SUMUL’. Present petitioners herein stated that though this Court had directed the respondent authorities to take a decision by 30.11.2023, but as the present petitioners are unaware regarding whether the decision is taken or not by the Respondent Authorities and if it is taken, the same is not given to the present petitioners just to protect the respondent nos. 4 and 5 from facing the proceedings under Section 76(B) of the Act.

3.1 The present petitioners are the societies registered under the provisions of Gujarat Cooperative Societies Act, 1961 (for short “the Act”) and Rules made thereunder and are body corporate under Section 37 of the Act. The respondent no. 5 herein is a specified society as well as federal society and the present petitioners are members of the respondent no. 5 – society.

3.2 On election of the respondent no. 5 – society which was held in August 2020, the respondent no. 4 herein was elected as Chairman of the respondent no. 5 – society. The petitioners herein approached the respondent no. 2 with a representation dated 21.04.2023, after the respondent no. 4 was elected as Chairman of the respondent no. 5 – society, one firm i.e. Rudra Enterprise came to be registered on 24.02.2021 whose proprietor is Vasu Pavankumar Mistry. Thereafter, on 24.06.2021, a partnership firm came to be registered i.e. Som Industries in which the said Vasu Pavankumar Mistry was amongst the partners along with two sons of the respondent no. 4 who is elected Chairman of respondent no. 5 – society. It was pointed out to the respondent no. 2 that the respondent no. 5 had given contract of polythene bags and other goods to Rudra Enterprise, who had not undertaken any productions and had purchased all the goods from Som Industries in which the two sons of the respondent no. 4 are the partners along with Vasu Pavankumar Mistry. The sister of the said Vasu Pavankumar Mistry i.e. Namrata Pavankumar Mistry is also amongst the partners of Som Industries. Under Clause 22 of Partnership Deed of Som Industri