ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This appeal lays challenge to the order dated 3.2.2020 passed in Special Civil Application No.2869 of 2020 wherein the appellant herein had challenged the order dated 24.12.2019 and order dated 4.1.2020, by which order, an Administrator came to be appointed to the Olpad Sayan Kim Nagrik Dhiran Sahakari Mandali Limited, Olpad (for short “the society”) and appointed Respondents No. 4 to 10 as the members of the committee in place of the Administrator.

2. The learned Single Judge by the impugned order after considering the rival contentions has declined to exercise the extraordinary jurisdiction vested under Article 226 of the Constitution of India on the premise that impugned orders are appealable under Section 153 of the Gujarat Cooperative Societies Act, 1961 (for short “the Act”). Hence this appeal.

3. We have heard Mr. B.S. Patel, learned senior counsel appearing for the appellants, Mr. K.M.Antani, learned Assistant Government Pleader for Respondents No. 1 and 2 and Mr. Archit Jani, learned advocate for Respondents No. 4 to 10.

4. Since Respondent No.3 herein was not served before the learned Single Judge notice to Respondent No.3 stands dispensed with.

5. It is the contention of the learned senior counsel appearing for the appellants that the learned Single Judge having considered the rival contentions has proceeded to adjudicate the matter on merits, expressed opinion thereof and has then held that petitioners have alternative remedy and as such dismissed the application which exercise ought not to have been undertaken, as it would affect the rights of the parties before the appellate authority. He would also contend that the Apex Court in the case of State of Madhya Pradesh and Ors. vs. Sanjay Nagayach and Ors. reported in (2013) 7 SCC 25 has given directions to all the Registrars of Cooperative Societies across the country which has been flouted in instant case and particularly drawing the attention to paragraphs 42.1 to 42.7 he would buttress his arguments by contending that there was no justifiable reasons for appointing an Administrator to the Society and consequential modifying the said order by nominating Respondents No.4 to 7 out of whom few were defaulters of the Society not being eligible to be appointed as members of the committee. He would also contend that misappropriation on the basis of which the order of appointment of an Administrator came to be passed at the first instance on 24.12.2019 and the records including the finding recorded by the learned Single Judge discloses that alleged misappropriation was not by the members of the committee but by an agent who had been appointed by the committee and as such there was nothing attributable to the petitioners for their misfeasance or malfeasance and hence the act of an agent cannot be held against the petitioners. He would also draw the attention of the Court to the fact that said agent against whom misappropriation has been alleged have been proceeded is by lodging a complaint by the committee and thus, all reasonable steps as expected of a prudent management committee had been taken by the petitioners and only with legal malice and for political consideration the committee of management had been superseded by appointing an Administrator and thereafter appointing a committee. On these grounds he seeks for allowing the writ petition which has been erroneously dismissed by the learned Single Judge.

6. Per contra, learned AGP appearing for the Respondent – State as well as the learned counsel who is on Caveator supports the impugned order.

7. Learned senior counsel having contended before this Court that the learned Single Judge ought not to have gone into merits, yet has proceeded to address the arguments on merits. In the event of this Court were to accept the plea put forward by the respondents or in other words if this Court would affirm the finding of the learned Single Judge by dismissi