Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 813

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, J.B. PARDIWALA, JJ.
Pravinsinh Indrasinh Mahida – Petitioner
Versus
State of Gujarat – Respondent
Special Civil Application Nos. 4449, 5301, 6776 of 2020, Civil Application (For Direction) Nos. 1, 4 of 2020, Civil Application (For Joining Party) Nos. 2, 5 of 2020, Civil Application (For Orders) No. 1 of 2020
Decided On : 27-08-2021

Advocates:
Advocate Appeared:
For the Petitioners: Mr. Mihir Thakore, Mr. Dhaval D. Vyas, Mr. Prakash K. Jani, Mr. Archit P. Jani, Mr. Amit M. Barot, Mr. Mihir Joshi, Mr. Dipen Desai.
For the Respondents: Mr. Kamal Trivedi, Mr. Vinay Vishen, Mr. H.R. Prajapati, Mr. Saurabh Soparkar, Mr. Jigar Gadhavi, Mr. V.C. Vaghela.

Point of law: A provision of the Act providing for a shorter period of limitation cannot be declared to be unconstitutional simply because in some of the Statutes a longer period of limitation has been prescribed for the redressal of the litigants grievances. The legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those covered by the legislature are left out would not render the legislation of any law being discriminatory and violative of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution.

Headnote:
Constitution of India,1950 – Article 226,13(2),43B,14,19(1)(g) and 14 - Gujarat Cooperative Societies Act, 1961 - Co-operative Societies Act, 1912 - Section 74C, 76A and 74(C)(1)(v) - Principal Act of 1961 - Section 80(1) - Co-operative Credit Societies Act, 1904 - English Friendly Societies Act of 1896 - Co-operative - Writ applicant is a member of Udhyog Mandali Limited, writ applicant is a member of Udhyog Mandali Limited, writ applicant is a member of Shree Mandali Limited, petitioner is a member of Udhyog Mandali Limited and writ applicant No. 5 is a member of Mandali Limited - Cooperative sugar factories of which writ applicants are its members are cooperative societies registered or deemed to be registered under Gujarat Cooperative Societies Act, 1961 writ applicants, in their memorandum of writ application, have given a fair idea of history of cooperative movement in country petitioners submit that in order to properly consider the issue in present petition, a brief history of Co-operative movement in country would be necessary - Whether the Gujarat Cooperative Societies (Amendment) Act, 2019 is ultra-vires Article 14 of Constitution of India.
Finding of the court : Court have noted that High Court has characterized clause (f) as “arbitrary” and “unconscionable” while imputing it with unconstitutionality. It is pertinent to note that High Court reaches this conclusion without undertaking an actual examination of clause (f) - Instead, declaration is preceded by an enquiry into circumstances leading up-to enactment - As discussed constitutional power of judicial review contemplates a review of provision, as it stands and not a review of circumstances in which enactment was made - Be it noted that merely holding an enacted provision as unconscionable or arbitrary is not sufficient to hold it as unconstitutional unless such infirmities are sufficiently shown to exist in the form, substance or functioning of the impugned provision - Court may not look into motive of legislature, but, definitely object of legislation can be looked into - In view all the writ applications succeed and are hereby allowed - Gujarat Cooperative Societies (Amendment) Act, 2019 is declared as ultra-vires Article 14 of the Constitution of India.
Result: Civil Applications disposed of.

JUDGMENT :

J.B. PARDIWALA, J.

1. Since the issues raised in all the captioned writ applications are the same and the challenge to the legality and constitutional validity of the Gujarat Cooperative Societies (Amendment) Act, 2019 is also common in all the writ applications, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

FOR THE CONVENIENCE OF EXPOSITION, THIS JUDGMENT IS DIVIDED INTO THE FOLLOWING PARTS:

S. No.	Paras	Description
1.	3 to 10	Facts giving rise to the writ applications
2.	11 to 14	Submissions canvassed on behalf of the writ applicants
3.	15	Case law relied upon on behalf of the writ applicants
4.	16 to 18	Submissions canvassed by the learned Advocate General appearing on behalf of the State
5.	19	Case law relied upon by the learned Advocate General
6.	20 to 21	Submissions canvassed by Mr. Soparkar, the learned Senior Counsel appearing on behalf of the Federation of Cooperative Sugar Factories Limited
7.	22	Case law relied upon by Mr. Soparkar
8.	25 to 37	Events leading to the impugned amendments
9.	38 to 46	97th Amendment of the Constitution in relation to the cooperative societies
10.	47 to 49	Events leading to the removal of the Sugar Cooperative Societies from the list of specified cooperative societies under Section 74(C) of the Act
11.	50 to 62	Statutory provisions
12.	63 to 105	Final analysis
13.	106 to 127	Case law relied upon on behalf of the respondents
14.	128	Final conclusion

2. For the sake of convenience, the Special Civil Application No. 5301 of 2020 is treated as the lead matter.

3. By this writ application under Article 226 of the Constitution of India, the writ applicants seek to question the constitutional validity of the Gujarat Cooperative Societies (Amendment) Act, 2019.

4. The facts giving rise to this litigation may be summarized as under.

5. The writ applicant No. 1 is a member of the Shree Kamrej Vibhag Sahakari Khand Udhyog Mandali Limited, the writ applicant No. 2 is a member of the Shree Kantha Vibhag Sahakari Khand Udhyog Mandali Limited, the writ applicant No. 3 is a member of the Shree Sayan Vibhag Khand Udhyog Mandali Limited, the petitioner No. 4 is a member of the Shree Mahuva Pradesh Sahakari Khand Udhyog Mandali Limited and the writ applicant No. 5 is a member of the Shree Sayan Vibhag Khand Udhyog Mandali Limited.

6. The cooperative sugar factories of which the writ applicants are its members are the cooperative societies registered or deemed to be registered under the Gujarat Cooperative Societies Act, 1961 (for short “the Act 1961”). The writ applicants, in their memorandum of writ application, have given a fair idea of the history of the cooperative movement in the country. We quote the brief history in the words of the writ applicants themselves as under:

“5. The petitioners submit that in order to properly consider the issue in the present petition, a brief history of the Co-operative movement in the country would be necessary. The petitioners submit that the Government to India had placed on the statute book the first piece to legislation pertaining to co-operative societies which was known as the Co-operative Credit Societies Act, 1904. The petitioners submit that the necessity to such legislation was felt because there was no other Act at that time under which an association or a society could be formed for the purposes to promoting the economic interest to its members in accordance with the well recognised co-operative principles and therefore the co-operative societies had to be organised under the Indian Companies Act 1882 and therefore the provisions to the Companies Act 1882 were wholly inapt to the societies envisaged for implementation to the rec

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2021 Supreme(Guj) 813

Cases Referred (103)