Mahendrasinh Ratnasinh ... vs State Of Gujarat
2021 Latest Caselaw 2070 Guj

            C/SCA/12068/2020                           CAVJUDGMENT



                 IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                R/SPECIALCIVILAPPLICATIONNO. 12068of 2020
                                  With
             CIVILAPPLICATION(FORJOININGPARTY) NO. 1 of 2020
               In R/SPECIALCIVILAPPLICATIONNO. 12068of 2020

FORAPPROVALANDSIGNATURE:


HONOURABLEMR. JUSTICEBIRENVAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MAHENDRASINHRATNASINHKARMARIYA Versus STATEOF GUJARAT ========================================================== Appearance:

MR.DIPAN DESAI, LD. ADVOCATE with MR HR PRAJAPATI(674)

MS.MANISHA LUVKUMAR, LD. GOVERNMENT PLEADER with MS.AISHVARYA GUPTA, LD. AGP for the Respondent(s) No. 1,2,3,4 MR.ZUBIN BHARDA, LD. ADVOCATE for the APPLICANT of Civil Application No.1 of 2020 in Special Civil Application No.12068 of 2020.

========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 11/02/2021 CAVJUDGMENT

C/SCA/12068/2020 CAVJUDGMENT

1. By way of this petition under Article 226 of the Constitution

of India, the prayer of the petitioner reads as under:

"7(a) YOUR LORDSHIPS to be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to quash and set aside the impugned order dated 14.9.2020 passed byt he respondent no.2 in purported exercise of powers u/s. 76(B)(1) and 76(B)(2) of the Act is ex­facie illegal, invalid, null & void, suffering from malafides, colourable exercise of powers, without jurisdication and competence, unreasonable, unjust, unfair and violative of Arts. 14, 19(1)(g) and 21 of the Constitution of India."

2. Facts in brief are as under:

3. The petitioner is the Vice President of Valiya Taluka

Cooperative Purcahse and Sale Union Limited. The election

to the Executive Committee of the Society was lastly held in

the year 2015. As per the bye­laws, there are 19 members of

the Executive Committee and one Shri Yogendrasingh

Yashvantsinh Mahida is the President of the Society. It is the

case of the petitioner that the Manager of the society called a

meeting of the Executive Committee on 23.06.2020. Out of

the 19 Committee members, two members had expired.

Therefore, out of 17 existing members, 10 members moved a

motion of no confidence against the President and requested

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the authorities to call for a meeting within a period of 30

days. The letter was addressed on 22.06.2020 by the

members of the Executive Committee. The President was

also informed on the same day. A request was also made to

the President that the meeting that he had called on

23.06.2020 be cancelled. The case of the petitioner is that

however the President proceeded to hold a meeting on

23.06.2020. On 25.06.2020 the petitioner by a letter to the

Manager of the society, informed him that all the transactions

being done under the Manager and the President be

cancelled. On 26.06.2020, 11 members of the Executive

Committee wrote to the President to call for a meeting of the

Executive Committee by issuing a new agenda. The agenda

included an issue to fill up vacant posts of members of the

Executive Committee under Section 74(1­c)(1) of the Act.

Since the President and the Manager did not act on the

requests, on 28.06.2020, the petitioner took out an agenda

calling a meeting on 29.06.2020. On 29.06.2020, the

meeting was conducted where 11 members of the Executive

Committee were present, where it was unanimously decided

to fill up three vacant posts of members of the Executive

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Committee by co­opting three members. As the respondents

remained inactive for calling the meeting for the no

confidence motion, 13 members of the Executive Committee

wrote a letter on 20.07.2020 to the President to call a

meeting immediatley, failing which, within three days, the

petitioner would be compelled to take out an agenda of the

meeting. It is the case of the petitioner that since the

Manager was not calling a meeting, the members sought a

clarification on 29.07.2020. Ultimately, it was decided to

hold a meeting on 30.07.2020 which was so held and it was

informed to the petitioner that such a meeting should not be

called.

4. As a result of this episode, a show cause notice dated

06.08.2020 was issued by the respondents to the petitioner

under Sections 76­B(1) and 76­B(2) of the Gujarat

Cooperative Societies Act on the following grounds:

I. The Vice President inspite of the no confidence

motion, not having been passed against the President

and inspite of the President continuing in office, the

petitioner called the meetings dated 29.06.2020 and

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30.07.2020 and thereby committeed a violation of the

bye­laws of the societiy.

II. In the meeting called by the petitioner on

29.06.2020, three vacancies in the Executive

Committee were filled in by coopting three members.

This is in violation of Section 74(1­C) as such vacancies

have been filled in after a period of 60 days prescribed

in the provision.

III. The vacancies in the Executive Committee have

been filled in violation of Rule 73 of the Gujarat

Specified Cooperative Societies Election to Committee

Rules 1982.

IV. Shri Yogendrasingh Mahida is continuing as the

president of the society. In spite of this, the petitioner

has illegally formed a group of members of the

Executive Committee and has held the meetings on

29.06.2020 and 30.07.2020, wherein, the powers of the

President to conduct the financial transactions have

been usurped by the petitioner and the petitioner has

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acted against the interest of the society.

V. Despite a communication dated 29.06.2020

having been addressed by the District Registrar

declaring the meeting called by the petitioner as illegal,

the petitioner proceeded to hold the meeting on the

said date.

VI Despite a communication dated 27.07.2020

addressed by the District Registrar, declaring the

meeting called by the petitioner as illegal, the petitioner

proceeded to hold the meeting on the said date.

5. The date of hearing of the show cause notice was fixed on

17.08.2020 on which date, an adjournment was sought by

the petitioner by an application dated 19.08.2020. In the

meantime, a challenge is made to the show cause notice by

the petitioner by filing Special Civil Application No.10265 of

2020. The case of the petitioner is that the petition came up

for hearing on 28.08.2020 after which the petition was

adjourn on 31.08.2020 with a view to enable the advocate for

the petitioner to supply a copy of the petition to the learned

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AGP. On 31.08.2020, hearing of the petition was adjourned

to 01.09.2020 as the Civil Application for joining party was

not placed on record. On 01.09.2020, the hearing was

adjourned to 03.09.2020. On 03.09.2020, the matter was

fully heard and kept for judgment on 07.09.2020 which then

was adjourned to 09.09.2020 and 10.09.2020. The judgment

therein was pronounced on 17.09.2020 by which the petition

was dismissed on the ground that the contentions can be

raised by the petitioner before the authority which had issued

the show cause notice.

6. In the interaggnum, it appears that by the impugned order

dated 14.09.2020, the respondents passed an order under

Sections 76­B(1) and 76­B(2) of the Gujarat Cooperative

Societies Act. The order was a combined action under

Section 76B(1) and 76B(2) of the Act by which, the petitioner

was removed and disqualified by a combined order.

7. Mr.Dipan Desai learned advocate appearing with

Mr.H.R.Prajapati learned counsel for the petitioner would

make the following submissions:

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7.1    A combined notice under Sections 76­B(1) and 76­B(2)

of the Gujarat Cooperative Societies Act, was illegal. Two

separate eventualities ocurred. Reading Section 76­B(2) of

the Act, he would submit that first what was warranted under

Section 76­B(1) of the Act was removal. Thereafter, under

Section 76­B(2), the Registrar may by order direct that the

officer so removed shall be disqualified. In other words the

action of disqualification was a spearate action for which a

separate procedure and a separate notice and hearing ought

to have been granted which was not done.

7.2 Mr.Desai would invite the attention to the show cause

notice and submit that it is apparent in reading the show

cause notice that the authorities had prejudged the issue.

Mr.Desai would submit that the order dated 15.09.2020 has

been passed by overreaching the proceedings of this Court.

In support of his submission, Mr.Desai would invite the

attention of the Court to the dates noted by the Court while

dismissing the petition agaisnt the show cause notice. He

would invite the attention of the Court to para 11 of the

order at page 120 which recorded the adjourned date.

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Comparing this with the impugned order dated 14.09.2020,

Mr.Desai would submit that though a specific request was

made that the petition challenging the show cause notice was

pending, and therefore a date beyond 31.08.2020 be given,

the respondent authority did not grant any date observing

that there was no need for granting of further date though

the respondent was aware that the hearing was adjourned

after 31.08.2020. This, according to Mr. Dipan Desai

amounted to clear overreach of the proceedings pending

before the High Court.

7.3 Mr.Desai would invite the attention of the Court to the

observations made in the order challenging the show cause

notice especially to paragraphs 13 and 14 and paragraphs 28

to 31 to submit that the petitioner was ousted only on the

basis of the fact that the challenge was made to the show

cause notice. However, the Court had left it to the authorities

to take a decision observing that the respondent authorities

after examining and scrutinizing as to whether the

contentions are sufficient enough to recall the notice or to

proceed ahead with the notice will take a decision. The Court

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had only not interfered because it had observed that it would

not like to usurp the functions of the Court.

7.4 On merits, Mr.Desai would submit that the allegations

are indicative of the fact that though the calling of the

meeting was essentially a function of the President or the

Manager and the misconduct alleged was not falling within

the provisions of Section 76B of the Act and it was the entire

Committee which was to be held responsible, the petitioner

has been singled out.

7.5 On the question of a twin notice under Sections 76B(1)

and 76B(2) of the Act, Mr.Desai would submit that the action

of the respondents in issuing such a combined notice was

held to be bad and even on this ground, the order impugned

be set aside.

7.6 On the question of overreaching of the proceedings by

the respondents during the pendency of the petition,

Mr.Desai would rely on the following decisions:

(I) In case of M/s.Maruti Enterprise through

Authorized Partner Jigneshbhai Bharatbhai Tarpara

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v. State of Gujarat passed in Special Civil Application

No.20307 of 2019. He would rely on paras 18 to 22 of

the order.

(II) He would also rely on the decision in the case of

Appeal From Order No.503 of 1997 dated 10.02.1998

reported in 1998 (2) GLH (UJ1) to submit that the

Court had held that if an order was passed pending a

litigation though there was no temporary injunction,

that clearly amounted to overreaching the proceedings.

(III) On the question that the order violated the

principles of natural justice inasmuch as even a post

decisional hearing would cure the defect of violation,

Mr.Desai would rely on the decision in the case of

Hasmukhbhai Thakorebhai Patel v. Registrar

Cooperative Societies reported in 2017 (4) GLR 2999

to submit that it was evident from the show cause

notice that the respondents had made up their mind

and no post decisional hearing would cure such a

defect.

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(IV) Shri Desai would also rely on a decision in the

case of Vipulbhai Mansingbhai Chaudhary v. State of

Gujarat & 1 reported in 2016 (1) GLR 86, paras 19 to

21 and (2017) 13 SCC 51 in support of his submission

that a combined notice under Section 76B(1) and

76B(2) cannot be issued.

8. Ms.Manisha Luvkumar learned Government Pleader

appearing with Ms.Aishvarya Gupta learned AGP for the State

would take the Court to the relevant dates in the proceedings

and submit that the conduct of the petitioner was categorical

to show that he was trying to usurp the office of the President

without following the due process of law. Ms.Manisha

Luvkumar, the learned Government Pleader would invite the

attention of the Court to Section 74­E of the Act and submit

that a particular process has to be followed for passing a

motion of no confidence against the President, Vice President

etc. In calling for a meeting and signing a requisition which

consisted of a majority of less than the prescribed number,

the petitioner in issuing the agenda was clearly acting in a

wrongful manner.

       C/SCA/12068/2020                                  CAVJUDGMENT




8.1     Ms.Manisha Luvkumar would invite the attention of the

Court to bye­laws 32 and 39(3) of the society and submit that

it was the duty of the Manager to call for the meeting of the

Executive Committee. Till the President holds the office, the

agenda had to be issued under the signature of the President

and the Manager. It was not the business of the petitioner to

call for a meeting and there was a clear violation of the bye­

laws.

8.2 Ms.Manisha Luvkumar would then submit that on a

meeting held on 29.06.2020 within a period of a day, the

petitioner proceeded to fill three vacant posts of the Executive

Committee by nominating three persons. This was in clear

violation of the provisions of Section 74(1C) of the Act. She

would read the provisions of Section 74(1C) of the Act.

8.3 As far as overreaching the process by passing the

impugned order and it not being without reasons,

Ms.Luvkumar would submit that the sufficient opportunity

was given to the petitioner as is evident from the dates in the

order, however, the petitioner continued to asked for time on

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the ground of pendency of the petition. She would submit

that as there was no interim relief in the petition, the

authorities were not prevented from acting and passing an

order pursuant to the show cause notice issued on

06.08.2020.

8.4 As far as the submission of Mr.Desai on a combined

notice and the order, Ms.Luvkumar would concede and state

that these proceedings and the notice be treated as one under

Section 76B(1) of the Act and the separate procedure shall be

followed as far as provisions of Section 76B(1)(2) of the Act

is concerned.

9. Having considered the submissions made by the learned

advocates for the respective parties, this Court would have

considered in deciding and appreciating the controversy as to

whether the act or omission of the petitioner on merits

required interference inasmuch as, the ingredients of Section

76B(1) of the Act are attracted or not. However, the Court is

not in a position to do so in view of the perusal of the order

dated 14.09.2020 which brings out two glaring infirmities in

the order viz.

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(a)     The        order   refers   to         the   pending     Special        Civil

Application No.10265 of 2020. Conscious is the authority of

the pendency of the petition, though, as Ms.Luvkumar would

submit that the authority was not aware of the next date, it

passes an order knowing fully well that the petition is

pending.

(b) The order is completely bereft of reasons showing the

hot haste in which the authority wanted to proceed to pass an

order before the judgment in Special Civil Application

No.10265 of 2020 was delivered.

(c) The following chain of events prompt this Court to

observe and hold as above:

(i) In the order pronounced by this Court viz­a­viz

the challenge to the show cause notice dated 06.08.2020,

when the judgment of the Court on 17.09.2020 is

perused, para 11 of the order reads as under:

"11. The petition was placed for hearing on 28 th August 2020. Mr.Bhargav Pandya, learned Assistant Government Pleader has submitted that no copy of petition is made available to him by the learned advocate for the petitioner. As a result of this, the matter was adjourned to 31st August 2020. On 31st

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August 2020, Civil Application No.1 of 2020 is moved by the Valia Taluka Co­operative Purchase and Sale Union Ltd. Through its President and President Mr.Yogendrasinh who filed the application for being impleaded as a party respondent in the petition, as they are effected with the outcome of present petition. This application was not placed on record on 31.08.2020. As a result of which, the matter was adjourned to 01.09.2020 and subsequently, the Special Civil Application and the Civil Application both were placed before the Court for hearing and on that day, the learned advocate Mr. Dipen Desai appearing with Mr.H.R. Prajapati, learned advocate for the petitioner and Mr.Zubin Bharda, the learned advocate for the applicant in Civil Application, learned Assistant Government Pleader were heard matter was adjourned to 07.09.2020 and later and on 07.9.2020, it was indicated that since substantially matter is heard, the same is than put up on 09.09.2020 for orders. "

(ii) The above order makes it clear that the hearing of

the petition was adjourned from time to time not because

the petitioner wanted time, but there were circumstances

which were beyond the control of the Court. If the Court

had thought it fit to accommodate the counsel for the

respective parties, I do not see a reason why the authority

in a cavalier fashion thought it fit to rush through the

hearings of the matter as is evident from the text of the

impugned order dated 14.09.2020. Marked hot haste is

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evident from reading the text of the order which also

indicates that though a request was made by the

petitioner that his Special Civil Application No.10285 of

2020 was pending, the authority did not think it fit to

adjourn the matter. It does not rest there. From the

succeeding paragraphs of the order, the authority in a

single line concludes that perusal of the show cause notice

would indicate that the petitioner has committed a default

and therefore is liable for action under Section 76B(1)

and 76B(2) of the Act. There is no discussion on merits as

to how the authority came to the conclusion that action

was warranted under Section 76B(1) and/or Section

76B(2) of the Act. Apparently the petitioner was not

given an opportunity to contest his claim. These twin

deficiencies in the order not only expose the order of is

being without reasoning but also amounting to

overreaching the process of the Court. It will be in fitness

of things to refer to the decision rendered in Special Civil

Application No.20307 of 2019. Paras 18 to 20 of the

order are reproduced as under:

"18. Thus, though the municipality had placed

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the legal opinion of the consultant before the first respondent that passing any orders when the matter is sub­judice before the High Court may amount to disrespect of the High Court, the first respondent thought himself to be wiser and has opined that if the tender is opened in accordance with the rules the matter before the High Court may also stand disposed of. What the first respondent has overlooked is that the tender has already been awarded in favour of the petitioner. The petitioner was therefore an affected party. However, without affording any opportunity of hearing to the petitioner, the first respondent - Regional Commissioner of Municipalities has directed the second respondent municipality to consider all the tenders which had been uploaded online with the necessary and genuine documents as eligible and open them. Thus, apart from overreaching the process of this court, by interfering in a matter wherein the subject matter before him and the subject matter before the High Court is the same, such action on the part of the Regional Commissioner of Municipalities, is clearly in breach of the principles of natural justice and instead of bringing an end to the litigation pending before this court, has given rise to another litigation and has burdened this court with yet one more litigation.

19. In the considered opinion of this court, once the matter was pending before this court and was sub­judice, the first respondent Regional Commissioner of Municipalities ought to have stayed his hands and could not have entered into the merits of a dispute which was already subject matter before this court. Till the date when he issued the communication dated 05.11.2019, it appears that the first respondent ­ Regional Commissioner of Municipalities was

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not aware of the writ petitions filed by Jay Corporation before this court, however, once this fact was brought to his notice, the first respondent ought to have waited till the outcome of the petitions. However, despite the fact regarding the pendency of the petitions was brought to his notice and the second respondent

- municipality had clearly opined that complying with the order dated 05.11.2019 may amount to disrespect of the High Court and informing the first respondent that the legal advisor of the municipality had opined that till the High Court finally decides the proceedings before it, no action should be taken in respect of the tender proceedings; the first respondent, firstly made an endorsement on the letter of the municipality that the municipality be informed that if the tenders are opened in accordance with the rules the matter before the High Court may be disposed of; and thereafter directed the municipality to comply with his instructions dated 05.11.2019 failing which disciplinary action would be initiated against all office bearers/officers concerned, and compelled the second respondent - municipality to issue the impugned letter dated 14.11.2019 though the matter was sub­judice. By such action, the first respondent - Regional Commissioner of Municipality has not only himself overreached the process of the court, but also compelled the second respondent to do so under threat of disciplinary action.

20. It is settled legal position that a party cannot avail of any remedy in respect of the same cause of action before two different forums. Therefore, once the party namely Jay Corporation had already chosen to avail the remedy before this court by invoking its writ jurisdiction and this court had entertained the petition, the Regional Commissioner of

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Municipalities, had no authority to thereafter enter into the merits of the case and pass any orders in a matter which was sub­judice before this court. Besides, Jay Corporation had issued a statutory notice to the seond respondent - municipality and only endorsed a copy to the first respondent and had not filed any application before the first respondent. Therefore, when pursuant to the statutory notice issued by it Jay Corporation had instituted proceedings in connection with such notice before this court, the first respondent had no authority to thereafter deal with the matter. The impugned communication dated 14.11.2019 passed by the first respondent, therefore amounts to overreaching the process of this court, and is also in breach of the principles of natural justice as the petitioner who is an affected party has not been heard, and hence, cannot be sustained. The impugned order dated 14.11.2019 municipality being passed by the consequential to second the respondent order dated 14.11.2019, passed by the first respondent also cannot be sustained. "

(iii) On the question that there is no hearing and the

post decisional hearing shall not cure the defect, the

decision of this Court in case of Hasmukhbhai

Thakorebhai Patel v. Registrar Cooperative Societies

reported in 2017 (4) GLR 2999 needs to be referred to.

Paras 7, 8 and 8.1 reads as under:

"7. In the concept of natural justice comprising opportunity passing order of hearing entailing before adverse taking action consequences, or the normal rule is to give a pre­decisional

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hearing. The post­decisional hearing is a resort which may be allowed in exceptional cases where the compliance of natural justice in form of hearing before decision was an empty formality or giving of hearing would not have made difference or change the scenario. However where the action or order entails civil consequences and becomes complete in itself against the person concerned, post­decisional hearing would only be an eye­wash and could not be viewed as remedy to fill up the want of natural justice.

7.1 The provision of Sec. 76B itself expressly incorporates right of affording hearing before passing the order thereunder; and there would be no gainsaying that the order under Section 76B entails civil consequence suffered by person against whom it is passed. Right to hearing has to be viewed in the aforesaid context of the provision and this has its significance. When the Legislature has provided for right to hearing before taking a decision, the concept of post­ decisional hearing has to be ruled out at the first blush. Where statute itself contemplates right of hearing before an action and thereby mandates compliance of natural justice before passing an order, the defect of non­hearing cannot be remediate by modus of post­decisional hearing. The order which is passed under Section 76B is one of removal, whereby the officer against whom the order is passed necessarily suffers a civil consequence for which post­decisional hearing is no cure in eye of law.

8. The contention about not entertaining the petition on the ground of availability of alternative remedy has to be referred to be rejected. It is undisputed position that the impugned order was passed without affording

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hearing and that it was a pure question of violation of principles of natural justice which was incorporated in the provision of Section 76B itself. In this view, having regard to the decision of the Supreme Court in Whirlpool Corporation v. Registrar of Trademarks, Mumbai [(1998) 8 SCC 1], in particular observation in paragraph 15, which held that one of the considerations for exercising discretion in favour of entertaining the writ petition under Article 226 of the Constitution when there has been a violation of principles of natural justice. Therefore this contention of the other side is overruled and discretion is exercise in favour of the petitioners to deal with and decide the petition.

8.1 Except the aforesaid aspect of non­giving of hearing and the aspect whether post­decisional hearing would cure the vice, no other aspect of merits have been gone into by this Court. "

(iv) As far as the combined action of issunce of show

cause notice and proceedings under Section 76B(1) and

76B(2) of the Act, by the decision in the case of Vipulbhai

Mansingbhai Chaudhary v. State of Gujarat reported in

2016 (1) GLR 86 this Court in unequivocal terms, held as

under:

"26. Thus, what emerges from the provisions of Section 76B of the Act, as interpreted in above­said two decisions, is that there has to be an order of removal of an officer at the first instance and following such order of removal, a decision is to be taken by a separate order for his disqualification. It is only by such reading of provisions of Section 76B,

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a harmonious meaning could be assigned to the words 'by order' and 'so removed' used therein. For taking such decision by separate order under sub­ section (2), element of proportionality has got to be entered in the mind of the Registrar as the Registrar is to decide whether disqualification of officer removed should be restricted to his own society or additionally for any other society and also for period of such disqualification. The words, "from the date of the order and such officer shall stand disqualified accordingly", used in sub­section (2) would suggest that disqualification is to commence after separate order is made under sub­section (2) and in proportion to the decision taken for such disqualification. There is one more reason why initiation of action under sub­section (2) for disqualification is required by separate notice and separate order. The notice to be issued for disqualification cannot be a mere formality. When the order of removal is passed under sub­section (1), officer on receipt of the order of removal and the notice proposing disqualification will have an opportunity to represent before the concerned authority either not to pass order of disqualification in the nature of charge considered to be proved against him or for taking lenient view of the matter. Either way, removed officer would have fair opportunities to represent his case against the proposed action of disqualification only after he is made aware about the grounds of his removal and therefore, the legislature appears to have intended to make separate provision for disqualification in sub­section (2) requiring to make separate order. Therefore, if separate order is to be made only after the order of removal is passed, there is no question of issuing any notice proposing disqualification with notice for removal. The Court, therefore, finds that action taken for disqualification of the petitioner runs counter to the provisions of sub­ section(2) of Section 76B of the Act.

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27. Assuming that the combined notice was permissible, then also, as submitted by Mr. Shelat, whether there was in fact a notice in the eye of law for proposed action of disqualification. The show cause notice at Annexure­A is titled as 'Show Cause Notice under Section 76(B)(1)(2) of the Act'.

However, in the language of the notice at Annexure­ A, the petitioner was asked only to show cause why he should not be removed from the office of Chairman, and while asking the petitioner to show cause against the proposed action of removal, sub­ section (2) is mentioned with sub­section (1) of Section 76B of the Act. The petitioner is thus not asked to show cause as to why he should not be disqualified after his removal from the office of Chairman. Mr. Jani however submitted that the notice since clearly mentioned as issued under Section 76B(1) and (2), the petitioner was put to show cause for both the proposed actions and the petitioner well understood and took such notice for both the proposed actions and therefore, he has given long reply, including the reply not to take proposed action of disqualification. Mr. Jani submitted that his long reply in two parts, i.e. First provisional reply and then final reply, would go to suggest that the reply is given under the legal advice and it is not possible to believe that the petitioner had no notice for proposed action of disqualification. To support his contention, Mr. Jani drew the attention of the Court to a judgment dated 7.3.2011 rendered by this Court in Special Civil Application No.2053 of 2011 with Special Civil Application No.2055 of 2011, especially para 6(ii), which reads as under:­ 6(ii) The authorities cited at the bar on behalf of the State by learned AGP, would have no applicability, so far as the present case is concerned, as this Court while dealing with the very provision of Section 76B(2) in case of Kantilal Chandulal Shah Vs. G.J. Jose and Another (supra), held that

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when power of disqualification is to be exercised, then the delinquent has to be especially informed and notice is required to be issued. In the instant case, the Court would have been persuaded to accept the submission of learned AGP, had there been, on facts, a case where the petitioners did exercise their right to reply to the notice qua disqualification also, but reading of the entire reply, it appears that there did not make any averments as to why they should not be disqualified. In other words, assuming for the sake of examining the submission that there was sufficient notice to the petitioners, but petitioners have chosen not to respond to the notice qua the aspect of disqualification as they were not called upon to explain and give cause with regard to the likelihood of the power being exercised under Section 76­B (2) of the Act, and therefore, in my view the exercise of disqualifying the petitioners being per­se illegal and contrary to the provision of law, the same cannot be sustained and therefore it is required to be quashed and set aside and accordingly the orders i.e. original order dated 04.01.2011, passed by District Registrar, Co­operative Societies, and the Appellate Order dated 28.02.2011, passed by the Additional Registrar (Appeals) in Revision Appeal No.8/2011 and 9/2011, is hereby quashed and set aside.

28. The case however on consideration of the provisions of Section 76(B(2) would stand somewhat on different footing. This Court when is taking a view that action could be initiated under sub­section (2) only after passing the order of removal, issuance of notice prior thereto for proposed action of disqualification would not be permissible and therefore, sending the reply to the show cause notice could be considered only for proposed action of removal. In the above­referred decision, the Court has not addressed such issue. The Court in the said case has also not positively decided that giving of reply would obviate the

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requirement of a due notice. Therefore, the observations made therein would lend no support to the contention raised by Mr. Jani. Even if such contention is considered in the context of the reply given by the petitioner, it does not appear from the reply, provisional and final, that the petitioner has replied against the proposed action of disqualification as the petitioner has in clear terms stated in the reply that the action and the order under sub­section (1) and sub­section (2) are different and distinct and action under sub­ section (2) could be initiated only after the order of removal is passed. It is stated that the impugned notice suffers from misreading of the provisions of Section 76B of the Act. It is further stated in the final reply that the jurisdiction of the Registrar under sub­section (2) is discretionary and therefore, till the order of removal is passed, no proceedings under sub­section (2) could be initiated. It is specifically contended in para 5 of the reply that unless the contingencies on full­ fledged inquiry, as contemplated under sub­section (1) take place, the Registrar has got no jurisdiction to initiate action under sub­ section (2). Thus, notice under sub­ section (2) is opposed in the reply on the ground of lack of jurisdiction etc. Of the Registrar. Such could not be said to be a reply on merits against the proposed action of disqualification. In such view of the matter also, the observations made by this Court in the above­referred decision will not support the contention raised by Mr. Jani. The issuance of notice before taking action under sub­ section (2) is with purpose to enable the noticee to make fruitful and effective representation against the action proposed. "

(v) Even in the decision in the case of Vipulbhai

Mansingbhai Chaudhary v. State of Gujarat and

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Another reported in 2017 (13) SCC 51 reading para 50

to 52 and 55 which are reproduced as under:

"50. We shall now examine the fourth submission of Chaudhary that the reliance upon the same set of facts in both Show­Cause Notices­I and II would render the Show­Cause Notice­II and the action consequent thereupon illegal. At the outset, we must state that we have examined the tenor of both the show­cause notices and we proceed on the basis that the tenor of both of them is substantially the same if not identical.

51. Section 76B(1) contemplates removal of an officer of a society if the Registrar is satisfied that such an officer is guilty of any one of the misconducts specified under the section. Sub­ section (2) further authorises the Registrar to disqualify such an officer either to contest or to hold any office in that society from which the officer is removed and also in any other society for a period to be specified by the Registrar subject to a statutory outer limit. From the language of sub­section (2), it appears to us that the Registrar is not obliged to disqualify every officer against whom an order of removal under Section 76B(1) is passed. Going by the text of sub­section (2) which says that the "Registrar may ...direct that the officer so removed shall be disqualified.....", the power to disqualify is discretionary.

52. The basic requirement of sub­section (2) is that the power thereunder could be exercised only against an officer of a society who has already been removed from office. Therefore, the factual basis on which the action under sub­ section (1) and sub­section (2) of Section 76B is

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to be taken is bound to be the same though the reasons and logic on the basis of which action under either of the sub­sections is to be taken could be different. Depending upon the intensity and gravity of the misconduct in a given case, mere action [under Section 76B(1)] of removal from office might suffice and meet the ends of justice. Whereas in some cases action under both the sub­ sections might be called for. But in no case action only under Section 76B(2) is permissible without taking action under Section 76B(1). It is also possible that in a given case, facts may not only justify but also oblige the Registrar to pass not only an order of removal under sub­section (1) but also an order of disqualification under sub­section (2) depending upon the nature of the misconduct and the legal obligation flouted by the officer. It all depends upon the facts and circumstances of each and every case and the scheme of the law relevant to such facts. The variables are too many. ...

...

55. In our opinion, it was not really necessary. It would have sufficed if the Registrar mentioned the fact that Chaudhary was removed from the office of Chairman of the Society in exercise of the power under Section 76B(1) ­ the mention of such a fact is also not mandatory. It is only a condition precedent for initiating action under Section 76B(2). The requirements of valid notice under Section 76B(2), in our opinion, are that the notice should indicate broadly the reasons which prompt the Registrar to initiate action and the period for which the person, against whom the action is initiated, is proposed to be disqualified. However, the mentioning of the past history though avoidable does not in any way vitiate the show­cause notice or the final

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order if they are otherwise in accordance with law.

(vi) From the above, it is evident that a combined

action under Section 76B(1) and 76B(2) of the Act cannot

be taken in a combined manner.

(vii) As far as the issue of combined action being

taken, in view of the concession offered by Ms.Manisha

Luvkumar learned Government Pleader that the present

proceedings will be taken to be as proceedings under

Section 76B(1) of the Act, the order of 14.09.2020 failing

to abide by the decision in the case of Vipul Chaudhary

(supra) that a combined decision cannot be taken as far as

Sections 76B(1) and 76B(2) are concerned, the order

taking action under Section 76B(2) is quashed and set

aside only on the ground of it failing the legal position

enunciated by this Court in the decision in case of Vipul

Chaudhary reported in 2016 (1) GLR 86 and in case of

Vipulbhai Mansingbhai Chaudhary v. State of Gujarat

and Another reported in 2017 (13) SCC 51.

10. As far as the validity of the decision i.e. the impugned order

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dated 14.09.2020 on its legality under Section 76B(1) of the

Act is concerned, perusal of the order as discussed

hereinabove would indicate that the order has been passed in

clear overzealousness of overreaching the proceedings of this

Court when knowing fully well that the petition challenging

the show cause notice was at large and from the observations

made by this Court in the order in the petition indicates that

the Court expected and the respondents that since it was a

show cause notice, it will be the authority who would deal

with the contentions raised by the petitioner with regard to

the averments of the show cause notice on the defense that

the petitioner would tender before this Court. That fond

hope of the petitioner was denied in the action of the

respondent in paras 28 to 32 which are reproduced as under:

"28. The case however on consideration of the provisions of Section 76(B(2) would stand somewhat on different footing. This Court when is taking a view that action could be initiated under sub­section (2) only after passing the order of removal, issuance of notice prior thereto for proposed action of disqualification would not be permissible and therefore, sending the reply to the show cause notice could be considered only for proposed action of removal. In the above­referred decision, the Court has not addressed such issue. The Court in the said case has also not positively decided that giving of reply would obviate the requirement of a due notice.

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Therefore, the observations made therein would lend no support to the contention raised by Mr. Jani. Even if such contention is considered in the context of the reply given by the petitioner, it does not appear from the reply, provisional and final, that the petitioner has replied against the proposed action of disqualification as the petitioner has in clear terms stated in the reply that the action and the order under sub­section (1) and sub­section (2) are different and distinct and action under sub­ section (2) could be initiated only after the order of removal is passed. It is stated that the impugned notice suffers from misreading of the provisions of Section 76B of the Act. It is further stated in the final reply that the jurisdiction of the Registrar under sub­section (2) is discretionary and therefore, till the order of removal is passed, no proceedings under sub­section (2) could be initiated. It is specifically contended in para 5 of the reply that unless the contingencies on full­ fledged inquiry, as contemplated under sub­section (1) take place, the Registrar has got no jurisdiction to initiate action under sub­ section (2). Thus, notice under sub­section (2) is opposed in the reply on the ground of lack of jurisdiction etc. Of the Registrar. Such could not be said to be a reply on merits against the proposed action of disqualification. In such view of the matter also, the observations made by this Court in the above­referred decision will not support the contention raised by Mr. Jani. The issuance of notice before taking action under sub­section (2) is with purpose to enable the noticee to make fruitful and effective representation against the action proposed.

29. Mr. Jani however submitted that the petitioner availed of full opportunities to resist the action under sub­section (2). However, any notice not specifying the grounds for proposed action is no notice in the eye of law as it would deprive the very valuable right of the noticee to persuade the concerned authority not to take

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proposed action or to take less drastic action. The noticee could be given an opportunity to effective represent against the proposed action of disqualification only when he is made aware of the grounds with full particulars for which action is proposed in the context of the provisions of Section 76B(1).

30. In the case of Oryx Fisheries Pvt. Ltd. Vs. Union of India and Ors, reported in 2010(12) JT 35, Hon'ble Court'ble Supreme Court has observed in para 31 as under:­

31. It is of course true that the show cause notice cannot be read hyper­technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show­cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show­ cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi­judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.

31. In the facts of the case, the Court, therefore, finds that the order disqualifying the petitioner to hold the office or to contest the election in his society and in any other society for the period prescribed in the order is not according to law and therefore, same is required to be quashed and set aside. The petition is therefore, required to be partly allowed.

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32. For the reasons stated above, the petition is partly allowed. The impugned order insofar as the petitioner is removed from the office of the Chairman in exercise of the powers under Section 76B(1) of the Act passed by the respondent No.2 and affirmed by the Revisional Authority is not disturbed. However, the order disqualifying the petitioner to hold or to contest election for any office in his society and in any other society for a period of three years in exercise of the powers under Section 76B(2) of the Act passed by the respondent No.2 and affirmed by the Revisional Authority is quashed and set aside. Rule is made absolute to the aforesaid extent. "

11. Reading the show cause notice and the impugned order

would indicate that the hope that the authorities would take

into consideration the contentions raised by the petitioner

and take a reasoned decision is evidently not existing in the

order on the ground that not only has the authority

overreached the proceedings of the High Court, but has

proceeded to pass an order without any reasons which

reflects the tendency and the overzelousness of the

authorities to ignore the pending proceedings in the High

Court albeit that there was no interim order preventing them

from passing such order. What is expected of the authority

which is rendering these decisions and are aware of the

pending proceedings in the High Court was to secure

assistance from the machinery of the Government in the form

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of the lawyers who defend the cases of the Government, to

approach them and take appropriate advice in taking such

decisions.

12. What is evident from the reading the remarks in the

impugned order, had the authorities taken appropriate

caution and proceeded to take action after having informed

the learned counsel for the Government or at least showing

reasonable respect of pendency of the matters, the repeated

tendencies that the authorities are reflecting in passing orders

without the leave of the Court or when the hearing is

eminently scheduled, reflects the growing tendency of the

authority to ignore judicial proceedings and the pendency

thereof under the pretext that at each stage or some stage

they would be absolved of the tendency to overreach the

process of the Court.

13. The Court would rest and not express any further opinion.

The order dated 14.09.2020 is quashed and set aside. As far

as Section 76B(2) is concerned, liberty is reserved to take

appropriate fresh proceedings by issuing a fresh notice. As

far as Section 76B(1) is concerned, since the order suffers

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from the vice of non application of mind and is without

reasons, and when the Court holds that it has been passed in

a clear overreach, the same is also quashed and set aside.

Liberty is reserved to the authorities to pass a fresh order on

both counts separately by granting of opportunity of fresh

hearing to the petitioner and then passing a reasoned order.

Since the order is set aside only on the ground of overreach

and violation of principles of natural justice, the Court

clarifies that it has not gone into the merits of the action that

the respondents have taken against the petitioner under

Section 76(B­1) and / or 76(B­2) of the Act. The petition is

allowed to the aforesaid extent. As far as the Civil

Application is concerned, in view of the fact that in the show

cause notice proceedings, the Court had observed that the

applicant had no locus, the civil application is rejected.

(BIRENVAISHNAV,J) ANKITSHAH