ORAL ORDER

Heard learned advocate Mr.Dipen Desai for the petitioners and learned Assistant Government Pleader Mr.Trupesh Kathiriya for the respondent No.1.

1. This Court (Coram: Hon’ble Mr.Justice Biren Vaishnav) passed the following order on

19.10.2019 :

“1. This Court by an extensive order dated 26.09.2019 unequivocally recorded the circumstances under which prima facie the impugned order under Section 81 of the Gujarat Cooperative Societies Act, 1961 could not have been passed.

“1 In this petition under Article 226 of the Constitution of India, under challenge is the order dated 13.09.2019, by which, the Society of the petitioner is sought to be superseded in exercise of powers under Section 81 of the Gujarat Cooperative Societies Act, 1961 (for short “the Act”).

2 The petition has a chequered history. By an order dated 08.09.2016, the respondent in exercise of powers under Section 74(D) of the Act appointed a custodian. On a challenge to the order in revision, since the interim relief was vacated, the Society was constrained to file a petition being Special Civil Application No. 19986 of 2016. This Court by an order dated 31.07.2018, granted interim relief on the ground that the powers of appointing a custodian under Section 74(D) (1) of the act were not warranted because in any case if there is any dispute raised with respect to an election, that by itself is not a ground to appoint the custodian. That petition is pending. The issue did not rest there. Even though the order was confirmed in the Letters Patent Appeal, the respondent passed a fresh order under a new Section, Section 76(B)(2) of the Act removing the existing committee. It was again a subject matter of challenge by Special Civil Application No. 22606 of 2017 wherein also this Court after hearing learned counsel for the petitioner Mr.Desai, found that the order was prima facie not in accordance with law and granted stay. That petition also is pending. Once again, the respondent issued a show cause notice under Section 93 of Co-operative Societies Act and this Court again in Special Civil Application No. 15213 of 2018 has granted interim relief in terms of para 6(C) staying the show cause notice.

3 On 16.02.2019, it appears that one Mukeshbhai Patel, who was the Chairman was removed by the Society by passing a No Confidence Motion. The action of the Society is a subject matter of scrutiny in a Lavad Suit No. 29 of 2019 filed before the Board of Nominees. Initially, in that suit, below Exh.6 stay of the No Confidence Motion was granted on 05.03.2019.

4 The respondent, therefore, on 29.05.2019 at page 92 issued a show cause notice to the petitioners as to why action to supersede the Society under Section 81 should not be taken. Mr.Desai, learned counsel for the petitioner has invited my attention to the contents of the show cause notice which would indicate that the notice was triggered because of the issue of removal of the Chairman of the Society which is a subject matter of a Lavad Suit, and therefore, according to Mr.Desai, it was a dispute purely between the members and the Chairman and not the case within the purview of Section 81. Be that as it may. The Board of Nominees vacated the stay on 04.06.2019, therefore, the petitioner Society on 06.06.2019 specifically pointed out that the grievance that was raised in the show cause notice would no longer survive in view of the fact that the stay was already vacated. The Tribunal reversed the order and granted stay in favour of the Chairman by an order dated 19.08.2019.

5 The petitioner approached this Court challenging the order of the Tribunal, however, the petition was withdrawn on 04.09.2019.

6 At the hearing of the show cause notice, on 05.09.2019 the petitioners specifically filed a reply wherein it was unequivocally stated at page 125 that they would implement the order of the Tribunal and restore the Chairman. A resolution accordingly was moved and passed on 11.09.2019 restoring the Chairman.

7 Despite these facts