Satpal Dharamdas Patel vs The Jetpur Group Vividh Karyakari ...
2023 Latest Caselaw 5373 Guj

    C/SCA/11194/2022                              CAV JUDGMENT DATED: 10/07/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11194 of 2022
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 11197 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

================================================================ SATPAL DHARAMDAS PATEL Versus THE JETPUR GROUP VIVIDH KARYAKARI SEVA SAHKARI MANDLI LTD. ================================================================ Appearance:

MR VC VAGHELA(1720) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9

MR BAIJU JOSHI(1207) for the Respondent(s) No. 1 MR CHIRAG B PATEL(3679) for the Respondent(s) No. 2 MR SAURABH G AMIN(2168) for the Respondent(s) No. 5NOTICE SERVED

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

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 10/07/2023

Heard learned advocate Mr.V.C.Vaghela for

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

the petitioners in Special Civil Application

No.11194 of 2022, learned advocate Mr.Dipen

Desai for the petitioners in Special Civil

Application No.11197 of 2022, learned advocate

Mr.Baiju Joshi for the respondent-Society who

filed the Lavad Suit No.134 of 2022 in Special

Civil Application No.11194 of 2022, learned

advocate Mr.B.T.Rao for the respondent-Society

who filed the Lavad Suit No.133 of 2022,

learned Senior Advocate Mr.B.S.Patel with

learned advocate Mr.Chirag B. Patel for the

Gujarat State Co-operative Marketing Societies

Limited (for short 'Federation'), learned

advocate Mr.Saurabh Amin for the respondent

No.5 in Special Civil Application No.11194 of

2022, learned advocate Mr.Hriday Buch for

respondent No.5 in Special Civil Application

No.11197 of 2022 who are declared elected in

the result declared by the Election Officer in

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

the constituency of Chhota Udepur and Kheda

respectively learned Assistant Government

Pleader Mr.Aayan Patel for the respondent-

State.

1. Rule, returnable forthwith. Learned

advocate Mr.Baiju Joshi, learned advocate

Mr.B.T.Rao, learned advocate Mr.Chirag B.

Patel, learned advocate Mr.Saurabh Amin and

learned advocate Mr.Hriday Buch for the

respective respondents waive service of notice

of rule.

2.1. The petitioners are the Co-operative

Societies registered under the Gujarat Co-

operative Societies Act, 1961 (for short 'the

Act, 1961').

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

2.2. The petitioner No.1 is trader who has

filed his nomination from Chhota-Udepur

Constituency for contesting the election of

respondent No.2- Federaation. The petitioners-

Societies are engaged in the purchase and sale

of agricultural produce. Therefore,

petitioners-Societies applied to be members of

the respondent No.2- Federation. The

respondent No.2-Federation having found the

petitioners-Societies qualified to be enrolled

as members, admitted the petitioners-Societies

as members on 25th March, 2021. The Federation

is an apex level Society which is also a

specified Society under Section 74(C) of the

Act, 1961. The elections are being conducted

by the respondents-Election Officer, Deputy

Collector and City Deputy Collector,

Ahmedabad.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

2.3. As the term of the Managing Committee

of the Federation was expiring in the month of

July, 2022, voters list was prepared by the

Federation and forwarded to the Election

Officer for preparation of the final voters

list. The Election Officer declared the

preliminary voters list on 16.05.2022 and

thereafter, final voters list after the

hearing the objections was finalised on

20.05.2022. Election program was declared on

23.05.2022 and nominations were to be filed

from 25.05.2022 to 1st June, 2022. The

scrutiny of nomination was to be held on 3rd

June, 2022 and the list of final contesting

candidates was to be declared on 8th June,

2022 and voting if necessary to be held on

19th June, 2022.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

2.4. It is the case of the petitioners that

just one day before the date of the election

to be held on 19th June, 2022, i.e. on 18th

June, 2022, the respondent No.1 in Special

Civil Application No.11194 of 2022 and

respondent No.4 in Special Civil Application

No.11197 of 2022 filed Lavad Suit Nos.133 of

2022 and 134 of 2022 before the Board of

Nominees with a prayer to restrain the

petitioners from functioning as members of the

Federation.

2.5. The Board of Nominees, Ahmedabad vide

impugned order dated 18th June, 2022,Saturday,

granted stay restraining the petitioners from

exercise of any membership right of the

Federation and accordingly, the petitioners

were denied from exercising their rights to

vote in the election held on 19th June, 2022.

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2.6. It is the case of the petitioners that

notices containing the operative order were

provided to the petitioners at the time when

the petitioners went to vote in the election

and the petitioners were restrained from

voting by the Election Officer.

2.7. It is the case of the petitioners that

as soon as the Election Officer restrained the

petitioners from voting, the petitioners filed

this petition challenging the action of the

Federation and as it was a Sunday, the

permission was granted to circulate this

petition for 20.05.2022, Monday, at 11 AM. The

petitioners therefore had given an application

for not to declare the result but the Election

Officer did not accept the application and

declared the result and the respondent No.5-

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Shrimati Naynaben Dipeshkumar Shah in Special

Civil Application No.11194 of 2022 and

Mr.Maheshbhai Punambhai Patel in Special Civil

Application No.11197 of 2022 were declared

elected. It is the case of the petitioners

that if the petitioners-Societies were allowed

to vote, the respondent No.5 would have lost.

2.8. The Board of Nominees was served with

a notice issued by this Court, however, during

pendency of this petition, the Board of

Nominees proceeded with the final hearing of

the interim injunction application-Exh-6 in

Lavad case No.134 of 2022 and passed the order

dated 09.09.202 granting interim prayers which

are in effect the final prayers prayed by the

plaintiffs before the Board of Nominees in the

Lavad Suits and thus, practically allowed the

Lavad Suits. The Board of Nominees without

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taking into cognizance the pending proceedings

before this Court, passed the order dated

09.09.2022 below Exh-6 in Lavad Suit Nos.134

of 2022 whereas, the hearing of the

application for interim injunction in Lavad

Case No.133 of 2022 was adjourned.

2.9. The petitioners therefore amended the

Special Civil Application No.11194 of 2022 and

also amended Special Civil Application

No.11197 of 2022 raising the issue of

maintainability of Lavad Cases filed before

the Board of Nominees and further prayed to

quash and set aside the election result dated

19th June, 2022 declared by the Election

Officer and after allowing the petitioners to

vote, declare the result afresh. The

petitioners have also prayed to quash and set

aside the order dated 09.09.2022 passed by the

Board of Nominees in Lavad Suit No.134 of

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2022.

3.1. Learned advocate Mr.V.C.Vaghela for

the petitioners in Special Civil Application

No.11194 of 2022 submitted that Lavad Suit

No.134 of 2022 filed by the Jetpur Group

Vividh Karyakari Seva Sahakari Mandali Limited

under Section 96 of the Act, 1961 is not

maintainable before the Board of Nominees

whereby, the prayer is made to restrain the

petitioners to exercise their rights as

members of the Federation. It was submitted

that the Board of Nominees without following

the principles of natural justice and without

giving an opportunity of hearing has passed

ex-parte order of stay against the petitioners

on 18th June, 2022 which was a Saturday in

undue haste.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

3.2. It was submitted that the impugned

order which was passed granting ad-interim

relief was in nature of final relief whereby,

the petitioners are restrained from

functioning as members of the Federation.

3.3. It was submitted that as per the

provisions of Sections 22 and 23 of the Act,

1961, the Board of Nominees would not have any

jurisdiction to entertain the Lavad Suit as

Sections 22 of the Act, 1961 provides for

persons who may become members whereas,

Section 23 of the Act, 1961 provides for

removal from membership in certain

circumstances which would not fall within the

purview of Section 96 of the Act, 1961 which

provides for disputes which can be agitated

before the Board of Nominees.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

3.4. It was submitted that it is for the

Federation to admit the petitioners as members

or reject his application for admission as

members and provisions of Section 22(2A) of

the Act, 1961 provides for Appeal against the

order of admission as members or rejection for

non-admission as members. It was therefore

submitted Lavad Suit under Section 96 of the

Act, 1961 is not maintainable because any

dispute with regard to the membership of a

Society can be decided under Sections 22 to 24

of the Act, 1961 and specific provisions are

made with regard to the admission or removal

of the members along with an Appeal against

such orders to be preferred before the

Registrar, Co-operative Societies.

3.5. It was submitted by learned advocate

Mr.V.C.Vaghela that on bare perusal of Section

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96 of the Act, 1961, it nowhere provides that

the dispute with regard to the admission of a

member can be decided by Board of Nominees,

inas much as Section 96 of the Act, 1961

specifically provides for the disputes which

can be decided by the Board of Nominees. It

was therefore submitted that the prayers made

in the Lavad Suits do not fall within

jurisdictions of Board of Nominees and the

impugned orders passed by the Board of

Nominees are without jurisdiction and

therefore the petitioners have challenged the

same by invoking extra-ordinary jurisdiction

under Article 226 of the Constitution of India

by preferring these petitions.

3.6. It was submitted that the plaintiffs

before the Board of Nominees have no locus

standi as it cannot be said to be an aggrieved

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person to file a Suit challenging the legality

and validity of the admission of the

petitioners as members of the Federation.

3.7. It was submitted that the admission of

the petitioners as members has been approved

in the Annual General Meeting of the

Federation and no objection was raised by the

private respondents and therefore, by filing a

Lavad Suit, the respondents could not have

obtained an order to restrain the petitioners

from voting in the election.

3.8 It was submitted that no objection was

raised when the final voters list was

published by the Election Officer nor any

objection was raised when the nominations were

filed by the representative of the

petitioners-Societies. It was submitted that

the Board of Nominees could not have passed

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the impugned interim orders restraining the

petitioners to discharge the function as

members of the Federation at mid-night of 18th

June, 2022 and moreover, could not have

decided the application for interim relief

finally during the pendency of these petitions

granting the reliefs prayed in the main Lavad

Suits without prima-facie holding that the

petitioners have submitted false documents

being the members of the Federation.

3.8. It was submitted that the findings

given by the Board of Nominees are one sided

and without authority of law and in spite of

the fact that the Federation had taken an

objection with regard to the maintainability

of the Suit, but the same was not considered

by the Board of Nominees.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

3.9. It was submitted by learned advocate

Mr.V.C.Vaghela that if the petitioners have

become members of the Federation by producing

false and forged documents, the petitioners

can be removed as members under the provisions

of Section 36 of the Act, 1961.

3.10. It was submitted that the Board of

Nominees has failed to consider the

ingredients for granting interim relief as

provided under Order 39 Rules 1 and 2 of the

Code of Civil Procedure, 1908 inas much as,

the plaintiffs before the Board of Nominees

failed to show as to what inconvenience would

be caused and what loss would be incurred

which cannot be compensated in terms of money

if the interim relief is not granted. It was

further submitted that the plaintiffs have

also failed to show that the prima-facie case

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in their favour and despite, the Board of

Nominees relying on the statements made in an

application for interim injunction, passed the

impugned order which is final in nature.

3.11. Learned advocate Mr.V.C.Vaghela

invited the attention of the Court to the

interim reliefs prayed by the plaintiffs in

the application for injunction and compared

the same with the final reliefs prayed in the

Lavad Suits to submit that the impugned orders

passed by the Board of Nominees are in nature

of final relief.

3.12. It was submitted that the Board of

Nominees has thus exceeded its jurisdiction

vested in it under Section 96 of the Act, 1961

by passing the impugned orders without

authority of law. It was therefore prayed that

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the impugned orders along with the Lavad Suits

are required to be quashed and set aside as

the impugned orders are passed by the Board of

Nominees apparently under political pressure.

3.13. It was further submitted that the

Election Officer could not have restrained the

petitioners from voting as members of the

Federation as their names appeared in the

final voters list and once the final voters

list is prepared, the Election Officer becomes

ex-officio defunct and has no power to delete

the names from the voters list. It was

therefore submitted that the action of the

Election Officer in not allowing the

petitioners to vote on the basis of the orders

passed by the Board of Nominees is also

required to be quashed and set aside.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

3.14. It was submitted by learned advocate

Mr.V.C.Vaghela that as the Lavad Suit filed

before the Board of Nominees is not

maintainable, the order passed below Exh-6

granting interim-injunction restraining the

petitioners to function as members of the

Federation would also not survive.

3.15. In support of his submissions, learned

advocate Mr.V.C.Vaghela referred to and relied

upon the Judgment dated 13th October, 2022

passed by the Apex Court in case of The

Bengal Secretariat Cooperative Land Mortgage

Bank And Housing Society Ltd. Versus Sri

Aloke Kumar reported in 2000 (0) AIJEL-SC

69976. It was submitted that another Lavad

Suit No.132 of 2022 was also filed before the

Board of Nominees wherein, similar order was

passed on 18th June, 2022 and Special Civil

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Application No.11196 of 2022 was filed but the

same was not pressed as the election did not

take place as only one candidate was declared

uncontested from the constituency.

4. Learned advocate Mr.Dipen Desai for the

petitioners in Special Civil Application

No.11197 of 2022 adopted the arguments and

submissions of learned advocate Mr.V.C.Vaghela

and in support of such submissions, he

referred to and relied upon the following

decisions of this Court as well as the Apex

Court:

(1) Benedict Denis Kinny Versus Tulip Brian

Miranda with Prachi Prasad Parab Versus State

of Maharashtra reported in AIR 2020 SC 3050

(2) Magadh Sugar & Energy Ltd. Versus State

of Bihar reported in (2021) 11 Scale 350

(3) Election Commission of India versus Ashok

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Kumar and Others reported in 2000 (8) SCC 216

(4) Ishwarbhai Narayanbhai Patel versus State

of Gujarat reported in 2021 JX (Guj) 624

(5) Mahendra Maganbhai Patel versus State of

Gujarat reported in 2014 JX (Guj) 62

(6) Shrutbandhu H. Popat versus State of

Gujarat reported in 2007 (3) GLR 1942

(7) State of U.P. and Others versus Ram Sukhi

Devi reported in (2005) 9 SCC 733

(8) Sardarkunj Co-operative Housing Society

Limited and Others Versus Ramabhai Jethabhai

Patel and Others reported in 1984 GLH 1059

(9) Maganbhai Khanabhai Nandodaria versus

Vandematram Co-operative Society Limited

reported in 2003 (3) GLH 482

(10) Vasantbhai Vadilal Joshi versus

Laxmikuvar Virendrasinh Parmar rendered on

27.09.2021 in Special Civil Application

No.7941 of 2021

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(11) ZOROASTRIAN Co-operative Housing Society

Limited versus District Registrar, Co-

operative Societies (Urban) reported in 2005

(5) SCC 632

(12) Daman Singh Versus State of Gujarat

reported in 1985 (2) SCC 670

(13) Ravi Yashwant Bhoir Versus District

Collector, Raigad and Others reported in 2012

(4) SCC 407

(14) Ganpat Mohanbhai Vasava versus

Additional Developement Commissioner reported

in 2008 (1) GLR 844

(15) Veneshkumar Ratanlal Patel and Others

versus Agricultural Produce Market Committee-

Sinor and Others reported in 2014 (2) GLH 730

(16) Vasantbhai Vadilal Joshi versus

Laxmikuvar Virendrasinh Parmar rendered on

27.09.2021 in Special Civil Application

No.7941 of 2021 against which Special Leave

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Petition preferred before the Hon'ble Supreme

Court was also dismissed by the order dated

08.11.2021.

5.1. On the other hand, learned Senior

Advocate Mr.B.S.Patel appearing for the

respondent-Federation submitted that once the

election process starts, interference by the

Court is not called for as the petitioners are

required to avail the alternative efficacious

remedy to challenge the order passed by the

Board of Nominees by filing an Appeal before

the Tribunal and / or challenge the election

process before the Election Tribunal as

provided under Section 145U of the Act.

5.2. It was submitted that in the matters

where alternative efficacious remedy is

available, no interference is required and

Writ Petition should not entertained ignoring

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such statutory dispensation.

5.3. It was submitted that the Board of

Nominees after considering the averments made

in the application for stay has found a prima-

facie case restraining the petitioners from

discharging their duties as members as the

petitioners were not eligible to continue as

per the by-laws of the Federation. It was

submitted that where there is a mere error of

law and alternative remedies are also

available, jurisdiction of this Court under

Article 227 is not attracted. Learned Senior

Advocate Mr.Patel pointed out that when there

is a statute which provides for machinery for

determination of the election disputes, writ

petition under Article 226 challenging the

right of the petitioners to vote in the

election is not maintainable.

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

5.4. In support of his submissions, learned

Senior Advocate Mr.Patel referred to and

relied upon the following decisions in which

it is held that the writ jurisdiction should

not no be exercised when there is alternative

efficacious remedy is availble :

(1) Shaji K. Joseph Versus Vishwanath reported in (2016) 4 SCC 429.

(2) Commissioner of Income Tax and Others Versus Chhabil Dass Agarwal reported in (2014) 1 SCC 603.

(3) Dipakbhai Prahladbhai Patel Versus State of Gujarat reported in 2016 (2) GLR 1626.

(4) Mohd. Yunus Versus Mohd. Mustaqim and Others reported in (1983) 4 SCC 566.

(5) Gujarat University Versus N.U.Rajguru and Others reported in 1987 (Supp) SCC

512.

6. Learned advocate Mr.Hriday Buch and

learned advocate Mr.Saurabh Amin adopted the

submissions made by learned Senior Advocate

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Mr.B.S.Patel in support of the elected

respondent No.5 in the election and further

relied upon the following decisions

reiterating that petitions should not be

entertained when it pertains to election

disputes:

(1) Laxmibai Versus Collector, Nanded and Others reported in (2020) 12 SCC 186.

(2) Daheda Group Seva Sahakari Mandli Limited versus R.D.Rohit, Autho. Officer & CO. Operative Officer (Marketing) reported in (2006) 1 GCD 211 (FB).

(3) Bhilalbhai Ukabhai Board & Ors. Versus Election Officer & Dy. Collector, Amreli & Ors. reporeted in (1997) 3 GCD 789.

(4) Maharaja Chintamani Saran Nath Shahdeo Versus State of Bihar & Others reported in (1999) 8 SCC 16.

7. By order dated 29.11.2022, the Registry

was directed to call for the original records

of the Lavad Case Nos.131 to 134 of 2022 from

the Board of Nominees, Ahmedabad which has

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been collected by the Registry and placed

before the Court.

8. The facts are not in dispute. The main

contention of the respondents is that this

Court should not entertain these petitions

because alternative efficacious remedy is

available to the petitioners to challenge the

impugned interim order passed by the Board of

Nominees under Section 102 of the Act, 1961.

However, an ex-parte order was passed by the

Board of Nominees on 18th June, 2022 which was

a Saturday without giving hearing to the

petitioners knowing fully well that the

election of the Federation was scheduled next

day on Sunday i.e. on 19th June, 2022.

9. In the ex-parte order passed by the Board

of Nominees, no reason is assigned with regard

to prima-facie case, balance of convenience or

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irreparable injury arising out of the facts of

the case. The Board of Nominees also did not

consider the fact that the reliefs prayed in

the plaint for restraining the petitioners

from availing their rights as members of the

Federation would not fall within the

jurisdiction of the Board of Nominees under

Section 96 of the Act, 1961.

10. The petitioners have placed on record the

intimation of the stay granted by the Board of

Nominees. Therefore, the original record was

called for and on perusal of the original

record, it appears that the Board of Nominees

has passed interim order on 18th June, 2022

considering the bye-law No.9(A)(I) to form an

opinion that the petitioners are not having

the eligibility to become the member and there

is a provision of bye-law No.11(A) that the

membership of the petitioners would be liable

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to be cancelled and after recording such

prima-facie opinion, the impugned order was

passed without examining the provisions of the

Act, 1961, more particularly, Section 23 of

the Act, 1961 which deals with the issue of

the membership of any Co-operative Society to

be decided by the Registrar, Co-operative and

not by the Board of Nominees. The Federation

also in the reply filed before the Board of

Nominees has contended that the Board of

Nominees has no jurisdiction to entertain the

Suit under Section 96 of the Act, 1961.

11. From the facts recorded herein above it

is apparent that the Board of Nominees has

passed the impugned orders including the order

below Exh.-6 in Lavad Case No.134 of 2022

which is also challenged before this Court

without assigning any reason with regard to

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the submissions made by both the sides on the

ground that the petitioners have obtained the

membership as per the provisions of the Act,

1961 and the bye-laws of the Federation. It is

also pertinent to note that the Board of

Nominees passed the order below Ex.6 in Lavad

suit No.134 of 2022 on 09.09.2022 during the

pendency of the petition before this Court

over reaching the process, without waiting for

the final outcome of the litigation.

12. In view of the above undisputed facts and

considering the settled legal positions as

held by this Court as well as the Apex Court

with regard to the maintainability and

entertaining the Writ Petition under Article

226 of the Constitution of India in the

following decisions, both the petitions are

entertained on merits as the Board of Nominees

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

on face of the record has exceeded the

jurisdiction vested in it under Section 96 of

the Act, 1961 which reads as under:

CHAPTER IX.

PROCEDURE FOR DECIDING DISPUTES.

96. (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society shall be referred in the prescribed form either by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if the parties thereto are from amongst the following:--

(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society;

(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;

(c) a person, other than a member of the society, who has been granted a loan by the society, or with whom the society

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

has or had transactions under the provisions of section 46, and any person claiming through such a person;

(d) a surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society under section 46, whether such a surety is or is not a member of the society;

(e) any other society, or the Liquidator of such a society.

(2) When any question arises whether for the purposes of sub-section (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.

Explanation 1.--For the purposes of this sub-section, a dispute shall include--

(a) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such a debt or demand be admitted or not;

(ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect of a loan by a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not;

(iii) a claim by a society for any loss caused to it by a member, past member, or deceased member, by any officer, past

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

officer or deceased officer, by any agent, past agent or deceased agent, or by any servant, past servant or deceased servant, or by its committee, past or present whether such loss be admitted or not;

(iv) a refusal or failure by a member, a past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it for breach of conditions of the assignment.

Explanation II .--For the purposes of this section, the expression "agent" includes in the case of a housing society, an architect, engineer or contractor engaged by the society."

13. On perusal of above provision , it is

clear that when the respondent No.1 has filed

the Lavad Suit with a prayer to restrain the

petitioners from discharging their duties and

availing rights of the members of the

Federation has no locus standi to restrain the

petitioners from casting their votes in the

election held on 19th June, 2022. The

petitioners are the members of the Federation

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since 2021 and the respondent No.1 did not

raise any objection when the final voters list

was published by the Election Officer and the

election process was already in motion and on

the previous day of the election, the

respondent No.1 filed the Lavad Suit in which

the Board of Nominees has passed the impugned

order contrary to the provisions of Section 96

of the Act, 1961 so as to stall the democratic

process by restraining the petitioners by

voting in the election held on 19th June,

2022. This Court as well as the Apex Court has

held in the following decisions that in such

circumstances writ jurisdiction can be

exercised:

(1) Benedict Denis Kinny Versus Tulip

Brian Miranda with Prachi Prasad Parab

Versus State of Maharashtra reported

in AIR 2020 SC 3050 wherein, the

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Hon'ble Supreme Court while discussing

the scope of judicial review by the

High Court in exercise of its

constitutional jurisdiction conferred

under Article 226 of the Constitution

of India held that the High Court can

pass an order interdicting a legal

fiction engrafted in a State enactment

as such power is an integral and

essential feature of constitution and

is basic structure of constitution. It

was further held that look out of the

High Court is to see whether injustice

has resulted on account of any

decision of a constitutional

authority, a statutory authority, a

tribunal or an authority within

meaning of Article 12 and in such

case, judicial review is designed to

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prevent cases of abuse of power or

neglect of a duty by public authority.

(2) Magadh Sugar & Energy Ltd. Versus

State of Bihar reported in (2021) 11

Scale 350 wherein, the Hon'ble Supreme

Court held that a High Court would

normally not exercise its writ

jurisdiction under Article 226 if an

effective and efficacious alternate

remedy is available, existence of an

alternate remedy does not by itself

bar High Court from exercising its

jurisdiction in certain contingencies

if order of authority is challenged

for want of authority jurisdiction

which is a pure question of law.

(3) Election Commission of India versus

Ashok Kumar and Others reported in

2000 (8) SCC 216 wherein, it was held

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by the Apex Court in the facts of the

case that interference with election

process sought for has the effect of

interrupting, obstructing or

protracting the election proceedings,

then judicial remedy should be

postponed till after the completion of

such proceedings and subject to this,

order issued by election commission is

open to judicial review on ground of

mala-fide or arbitrary exercise of

power.

(4) Ishwarbhai Narayanbhai Patel versus

State of Gujarat reported in 2021 JX

(Guj) 624 wherein, it was held by the

Division Bench of this Court with

regard to the facts of the case that

the petition under Article 226 is

maintainable despite availability of

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an alternative remedy, yet the powers

are to be exercised in case of

extraordinary or special circumstances

such as where the order is ultra vires

or nullity and / or ex facie without

jurisdiction. In the facts of the said

case, it was held that ordinarily, the

remedy provided by the statute must be

followed before the authority

designated therein. But there may be

cases before the Court where

exceptional or extraordinary

circumstances may exist to justify by-

passing the alternative remedies. It

was further held that in a case where

the statutory authority has not acted

in accordance with the provisions of

the law or acted in defiance of the

fundamental principles of judicial

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procedure, or has resorted to invoke

provisions which are repealed, or

where an order has been passed in

violation of the principles of natural

justice, then, in such circumstances,

the Writ Court should not hesitate to

entertain the writ application despite

the fact that the aggrieved person has

an efficacious alternative remedy

available in law.

(5) Mahendra Maganbhai Patel versus State

of Gujarat reported in 2014 JX (Guj)

62 wherein, the Division Bench of this

Court held that whenever it is found

by the Court that an extraordinary

case is made out and it is found that

there is an attempt to create an

artificial majority and the action is

found to be not only illegal but also

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fraud on election process and the

intervention of the Court is

warranted, the Court can certainly

entertain the petition under Article

226 of the Constitution of India and

grant the relief and / or issue writ

in exercise of powers under Article

226 of the Constitution of India.

(6) Shrutbandhu H. Popat versus State of

Gujarat reported in 2007 (3) GLR 1942

wherein, in the facts of the case it

was held by the Division Bench of this

Court that in preparation of the

voters list, the fraud was committed

for creating artificial majority of

voters by granting as many as 293

licenses including 269 fresh licenses

illegally which would be a fraud on

election process as the challenge of

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grant of license would be time

consuming and would not be completed

before the date of election and the

election tribunal is not empowered to

decide whether license was granted in

accordance with the relevant

provisions of the Act and the Rules

and therefore entertained the Writ

Petitions by issuing various

directions quashing and setting aside

the resolution granting general

licenses for traders to 293 persons

holding it to be illegal and fraud on

election process prohibiting such

persons from participating in the

election.

(7) State of U.P. and Others versus Ram

Sukhi Devi reported in (2005) 9 SCC

733 wherein, the Apex Court in the

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facts of the case held that final

relief in the form of Writ Petition

has been granted as an interim

measure. It was further held that the

Apex Court, on numerous occasions, has

observed that the final relief sought

for should not be granted at an

interim stage. The position is

worsened if interim direction has been

passed with stipulation that the

applicable Government order has to be

ignored. It was further observed by

the Apex Court that time and again the

Apex Court has deprecated the practice

of granting interim orders which

practically give the principal relief

sought in the petition for no better

reason than that of prima-facie case

having been made out, without being

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concerned about the balance of

convenience, the public interest and a

host of other considerations. It was

held that no basis has been indicated

as to why learned Single Judge thought

the course as directed was necessary

to be adopted. Even it was not

indicated that a prima-facie case was

made out though as noted above, that

itself is not sufficient. The Apex

Court thereafter set aside the order

passed by the learned Single Judge as

affirmed by the Division Bench and

without expressing any opinion on the

merits of the case as the Apex Court

interfered primarily on the ground

that the final relief has been granted

at an interim stage without

justifiable reasons.

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(8) Sardarkunj Co-operative Housing

Society Limited and Others Versus

Ramabhai Jethabhai Patel and Others

reported in 1984 GLH 1059 wherein, it

was held by this Court that dispute

whether a person was legally enrolled

as a member would fall under Section

23 of the Gujarat Co-operative

Societies Act and general provisions

of Section 96 stands excluded. It was

observed by this Court that as per the

provisions of Section 23(2) of the

Act, the Registrar can entertain a

dispute with regard to granting of

membership and can make proper order

of removal of the concerned person

after giving him notice and

opportunity of hearing. Such an order

of Registrar would also be revisable

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by appropriate authority as laid down

by Section 155 of the Act. Thus, the

legislature has made express provision

for resolution of such types of

disputes and has also provided

hierarchy of proceedings for

challenging the orders passed in such

proceedings. In that view of the

matter, general provisions of Section

96 of the Act which otherwise would

cover all sorts of disputes including

the dispute of membership would get

excluded protanto.

(9) Maganbhai Khanabhai Nandodaria versus

Vandematram Co-operative Society

Limited reported in 2003 (3) GLH 482

wherein, it was held by this Court

that the Board of Nominees has no

jurisdiction when the resolution is

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passed at Annual General Meeting of

Society regarding expulsion of member

from membership of Society and process

for approval / disapproval or deemed

approval is concluded by machinery

provided under Section 36 i.e.

District Registrar, Registrar and

Deputy Secretary under Section 36,

153 and 155 of the Act. This Court

relied upon the decision of Jitendra

Natverlal Thaker and Others versus

Hirabag Co-operative Housing Society

Limited and Others reported in 1978

(19) G.L.R. 92 wherein, it was held

that the decision of Society to expel

the deceased member which has been

duly approved by the Registrar would

become final under Sub-section 6 of

Section 153. If an appeal is

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preferred, the order passed in appeal

would become final. Such a final

decision cannot be subject matter of

dispute under Section 96 of the Act.

(10) The decision of the Division Bench of

this Court in case of Vasantbhai

Vadilal Joshi versus Laxmikuvar

Virendrasinh Parmar rendered on

27.09.2021 in Special Civil

Application No.7941 of 2021 against

which Special Leave Petition preferred

before the Hon'ble Supreme Court was

also dismissed by the order dated

08.11.2021. This Court in the facts of

the said case held that if there is

any hurdle faced by the citizen in

acquiring his voting right, he would

only have the protection and remedies

that are available in establishing the

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

said constitutional right. When once

such a voting right is acquired,

thereafter, the casting of the said

voting right having been recognised as

a fundamental right, should have all

the protection and safeguards that are

available as provided under Chapter-

III of the Constitution. Thereafter,

infringement of such a right will

certainly call for the intervention of

this Court in the exercise of its

extraordinary jurisdiction under the

Constitution. It was further held that

at the end of the day, the "Rule of

Law" must prevail. The power of

judiciary lies, not in deciding cases,

nor in imposing sentences, nor in

punishing for contempt, but in the

trust, confidence, and faith of the

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common man. We don't want a common man

to lose faith and confidence in the

judiciary but rather we should instill

confidence and faith by condemning the

act and setting it right.

(11) ZOROASTRIAN Co-operative Housing

Society Limited versus District

Registrar, Co-operative Societies

(Urban) reported in 2005 (5) SCC 632

wherein, the Apex Court in the facts

of the case held that the rights of a

member or an allottee over a building

or plot is attachable and saleable in

enforcement of a decree or an

obligation against him cannot make a

provision like one found in the bye-

             laws,     an         absolute             restrain                  on

             alienation      to    attract           Section             10      of

the Transfer of Property Act. It was

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further held that it is property in

the hands of the member on the

strength of the allotment which may be

attachable and saleable in spite of

the volition of the allottee but that

does not enable the Court to hold that

the condition that an allotment to the

member is subject to his possessing

the qualification to be a member of

the Co-operative Society or that a

voluntary transfer by him could be

made only to the Society itself or to

another person qualified to be a

member of the Society and with the

consent of the Society could

straightway be declared to be an

absolute restraint on alienation, and

consequently, an interference with his

rights to property protected by

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Article 300A of the Constitution of

India. The Apex Court was therefore

satisfied that the finding that the

restriction placed on rights of a

member of the Society to deal with

property allotted to him must be

deemed to be invalid as an absolute

restraint on alienation is erroneous

and therefore the said finding was

reversed.

(12) Daman Singh Versus State of Gujarat

reported in 1985 (2) SCC 670 wherein

the Apex Court while dealing with the

provisions of Section 13(8) read with

Section 1 of the Punjab Co-operative

Societies Act, 1961, a Co-operative

Society being Corporation, the Act is

applicable and is not challengeable on

this count so as to get protection

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under Article 31-A(1)(c) of the

Constitution of India by giving a

broad interpretation to the said

provision on account of the

requirement of the public interest,

proper management of the Corporation

mentioned therein. It was held that

there cannot be the slightest doubt

that a Co-operative Society is a

corporation as commonly understood and

the scheme of the Constitution does

not make any difference. The very

mention of Co-operative Societies i.e.

both in Entry 43 of List I and Entry

32 of List II along with other

corporations give an indication that

the constitutional makers were of the

view that Co-operative Societies were

of the same genus as other

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corporations. In fact, the very

express exclusion of Co-operative

Societies from Entry 43 of List I is

indicative of the view that but for

such exclusion, Co-operative Societies

would be comprehended within the

meaning of expression "Corporations".

It was held that the very philosophy

and concept of the Co-operative

movement is impregnated with the

public interest and the amalgamation

of Co-operative Societies when such

amalgamation is in the interest of the

Co-operative Societies is certainly in

the public interest or can only be to

secure the proper management of the

Societies

(13) Ravi Yashwant Bhoir Versus District

Collector, Raigad and Others reported

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

in 2012 (4) SCC 407 wherein, the Apex

Court in the facts of the said case

held with regard to the issue of locus

of the complainant that when no injury

caused to ex-President he could not be

considered as aggrieved party and

party to lis, therefore, charges

against appellant do not warrant order

to removal and explanation furnished

by appellant could have been accepted.

(14) Ganpat Mohanbhai Vasava versus

Additional Developement Commissioner

reported in 2008 (1) GLR 844 wherein,

it was held by this Court with regard

to the person who can be said to be an

aggrieved person relying upon the

decision of Lalbhai Trading Company

Versus Union of India reported in 2006

(1) GLR 497 of the Division Bench that

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any person as stated in Section 57(3)

of the Gujarat Panchayat Act, 1993 can

only be a person upon whom some legal

burden has been imposed or who has

been deprived of something to which he

is legally entitled, with reference to

the provisions of the statute.

(15) Veneshkumar Ratanlal Patel and Others

versus Agricultural Produce Market

Committee-Sinor and Others reported in

2014 (2) GLH 730 wherein, in the facts

of the said case this Court quashed

and set aside the election of Chairman

and Vice-Chairman of the respondent-

Market Committee on the ground that

the respondent No.2 acted in total

defiance of procedural requirement of

the democratic process of holding the

election and in arbitrary and

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unreasonable manner and therefore, the

Court would not relegate the

petitioners to avail alternative

remedy.

(16) Banaskantha District Co-operative

Union Limited Versus State of Gujarat

and Others reported in 2011 (2) GLR

1707 wherein, this Court in the facts

of the said case while considering

Sections 13 and 153 of the Act, 1961

held that question whether the bye-

laws which came to be approved by the

competent authority, such approval did

not reflect the exact amendment which

was proposed and resolved. Therefore,

the change and modification was at the

end of Registrar without it being

notified to the Society. It was

therefore held that order of

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authorities which was bereft of merits

without recording the reasons as to

why the Society should not be believed

that the agenda item along with the

Annexures was sent and more

particularly, when such resolution was

not challenged by any member including

the petitioner then it would have been

sufficient ground for rejecting the

appeal as well as the revision holding

against the respondent and therefore,

the impugned orders were quashed and

set aside. The Court without entering

into the aspect of maintainability of

appeal by individual member under

Section 153 of the Act challenging the

order of approval granted by the

Registrar in exercise of the powers

under Section 13 of the Act held that

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the approval was in consonance with

the law laid down in respect of

reserving two seats in the managing

committee for women and the respondent

being not in any way indicating any

likely prejudice cannot be permitted

to challenge such approval by way of

belated appeal.

(17) The Bengal Secretariat Cooperative

Land Mortgage Bank And Housing Society

Ltd. Versus Sri Aloke Kumar reported

in 2000 (0) AIJEL-SC 69976 wherein the

Apex Court has held as under:

"59. The object of the provision has to be borne in mind. The entire leg- islative scheme goes to show that the Co-operative Society is to func- tion democratically and the internal democracy of a society, including resolutions passed in accordance with the Act, the Rules, and the bye-laws have to be respected and implemented. The Co-operative Move-

ment is both a theory of life and a system of business. It is a form of

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

voluntary association where individ- uals unite for mutual aid in the production and distribution of wealth upon principles of equity, reason and common good. It stands for distributive justice and asserts the principle of equality and equity ensuring to all those engaged in the production of wealth a share propor- tionately commensurate with the de- gree of their contribution. It pro- vides as a substitute for material assets, honesty and a sense of moral obligation and keeps in view the moral rather than the material sanc- tion. The movement is thus a great Co-operative movement.

60. The basic principles of co-oper- ation are that the members join as human beings and not as capitalists. The Co-operative Society is a form of organization wherein persons as- sociate together as human beings on the basis of equality for promotion of economic interest of its members. This movement is a method of doing the business or other activities with ethical base. "Each for all and all for each" is the motto of the co-operative movement. This movement not only develops latent business capacities of its members but pro- duces leaders; encourages economic and social virtues, honesty and loy- alty, becomes imperative, prospects of better life, obtainable by con-

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

certed effort is opened up; the in- dividual realises that there is something more to be sought than mere material gains for himself. So, in fact, it being a business cum moral movement, and the success of the Co-operative Society depends upon the reality with which one of the members work for the achievement of its objects and purpose. The Com- mittee on Co-operation in India em- phasized the moral aspect co-opera- tion, to quote the words:--

"The theory of co-operation is very briefly that an isolated and powerless individual can, by association, with others and by moral development support, ob- tain in his own degree the mate- rial advantages available to wealthy or powerful persons and thereby develop himself to the fullest extent of his natural abilities. By the Union of forces, material advancement is secured and by united action self reliance is fostered and it from the inter-action of these influences that it is hoped to attain the effective realisation of the higher and more prosper- ous standard of life which has been characterised as better business, better arming and bet-

ter living; we have found that there is a tendency not only

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among the outside public but also among supporters of the movement to be little its moral aspect and to regard this as su-

perfluous idealism. Cooperation in actual practice must often fall short of the standard aimed at and details inconsistent with co-operative ideals have often to be accepted in the hope that they may lead to better things.

We wish clearly to express that it is the true co-operation alone, that is, to a co-opera-

tion which recognises the moral accept of the question that Gov- ernment must look for the ame-

lioration of the masses and not to a psudo co-operative edifice, however imposing, which is built in ignorance of co-operative principles. The movement is es- sentially a moral one and it is individualistic rather than so- cialistic. It provides as a sub- stitute for material assets hon- esty and a sense of moral obli-

gation and keeps in view the moral rather than the material sanction. Pages 5 and 6 of The-

ory and Practice of Co-operation in India and Abroad by Kulkarni, Volume 1. Co-operation is a mode of doing business, is at present applied as the solution of many economic problems. Co-operation is harnessed to almost all forms

C/SCA/11194/2022 CAV JUDGMENT DATED: 10/07/2023

of economic activity. Though co- operation was introduced in this country as a remedy for rural indebtedness, it has been ap-

plied successfully in a wide range of activities such as pro- duction, distribution, banking, supply, marketing, housing and insurance. See Theory and Prac- tice of Co-operation in India and Abroad by Kulkarni Volume 1 Page 2."

14. Considering the above conspectus of

law with regard to the interference by the

judicial or quasi-judicial authority when the

election process was going on is deprecated by

the Court time and again. In the facts of the

case, decisions relied upon by the learned

advocates for the respondents would not be

applicable.

15. It appears that apparently, the Board of

Nominees has passed the impugned order so as

to overreach the election process by

restraining the petitioners from voting. In

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such circumstances, both the petitions deserve

to be allowed and accordingly, the impugned

orders passed by the Board of Nominees are

quashed and set aside. The Lavad Suits

preferred by the respondent No.1 are also

ordered to be dismissed as the Board of

Nominees has no jurisdiction to try such

suits. As the election has already been held

on 19th June, 2022 and respondent No.5 is

declared to be elected candidate, the

petitioners can file appropriate proceedings

under Section 145U of the Act, 1961

challenging such election in accordance with

law before the Election Tribunal as a

consequence of the orders passed in these

petitions. If any such Election Petition is

preferred by the petitioners, the same shall

be decided within a period of three months

from the date of filing by the competent

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authority.

16. Rule is made absolute to the aforesaid

extent. No orders as to cost.

17. Registry to send back the original record

of Lavad Case Nos.131 to 134 of 2022 which was

called for by this Court to the Board of

Nominees.

(BHARGAV D. KARIA, J)

Further Order :

After the judgment was pronounced, learned advocate Mr.Baiju Joshi for the original plaintiffs made a request to stay the implementation and operation of this judgment for two weeks.

Considering the fact that the petitioners are granted time to file Election Petition before the Election Tribunal, the request is rejected.

(BHARGAV D. KARIA, J) PALAK