Gunvantbhai Narottambhai Vahiya vs State Of Gujarat
2023 Latest Caselaw 4081 Guj

     C/SCA/16278/2022                                      JUDGMENT DATED: 06/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 16278 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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

2     To be referred to the Reporter or not ?                           No

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

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

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                        GUNVANTBHAI NAROTTAMBHAI VAHIYA
                                     Versus
                               STATE OF GUJARAT
========================================================
Appearance:
MR. ARCHIT P JANI(7304) for the Petitioner(s) No. 1
MR BS PATEL SENIOR ADVOCATE FOR MR UMANG OZA AND MR CHIRAG
B PATEL(3679) for the Respondent(s) No. 5
MR JAY TRIVEDI ASSISTANT GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 06/06/2023

                                  ORAL JUDGMENT

1. Heard learned Advocate Mr. Archit P. Jani on behalf of the petitioner, learned Assistant Government Pleader Mr. Jay Trivedi for respondents no.1, 2 and 3 and learned Senior Advocate Mr. B.S. Patel with learned Advocate Mr. Umang Oza on behalf of respondent no.5. None

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appears for respondent no.4.

2. Rule. Learned AGP and learned Advocates waive service of rule on behalf of the respective respondents.

3. By way of this petition, the petitioner challenges an order dated 23.05.2022 passed by the respondents no.2 herein i.e. Director, Sugar, State of Gujarat whereby the inquiry initiated against respondent no.5 by issuing a notice under Section 76(B) of the Gujarat Co-operative Societies Act, 1961 ( for short 'the Act') has been closed.

4. While the learned Senior Advocate appearing for the respondent no.5 has taken a preliminary objection as regards maintainability of the present petition at the instance of the petitioner, this Court proposes to deal with the same along with the merits of the issue.

5. Learned Advocate Mr. Jani on behalf of the petitioner would submit that the respondent no.2 has exonerated the respondent no.5 without taking into consideration the aspects raised by the present petitioner more particularly according to the applicant, the District Registrar, had twice thought it appropriate to recommend initiation of proceedings against the respondent no.5 herein initially by way of a recommendation to the respondent no.2- Director, Sugar dated 16.09.2016 and later on vide a recommendation dated 26.06.2020. Learned Advocate would submit that the recommendation was on two separate aspects namely (1) that the respondent no.5 had sold sugar at a lesser price than the price at which sugar was sold by other sugar factories and (2) that scrap of the sugar factory had been sold without any tendering process. Learned Advocate would submit that since both the issues touch upon the functioning of the factory as well as the administrative decisions taken by the Executive

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Committee of the factory of which the respondent no. 5 is the Head, therefore, the respondent no.5 ought not to have been exonerated by the respondent no.2- Director, Sugar.

6 Learned Advocate would further submit that the applicant had also not been provided with copies of inquiry report, more particularly under Section 86 of the Act and therefore, the entire process stood vitiated. Learned Advocate would further submit that as such, the respondent no.2 had inter alia noted that around 11 members of the Executive Committee had taken objection against the sale of sugar during the period in question i.e March 2016 to April 2016 and whereas merely because the objections were later on withdrawn, the notice under Section 76(B) of the Act ought not to have been filed by the respondent no.2.

6.1 As far as aspect of maintainability of the writ petition is concerned, the learned Advocate Mr. Jani would rely upon decision of a learned Co- ordinate Bench of this Court in case of Velabhai Hardasbhai Patel vs. Hirabhai Hardasbhai Patel & Ors. reported in 2007(2) GLR 1039 more particularly whereby the learned Co-ordinate Bench had inter alia observed that even if members of a society were to take a stand different from the society itself, that by itself would not be fatal to the orders passed by the District Registrar as well as the State Government under Section 76(B) of the Gujarat Co-operative Societies Act, 1961. Learned Advocate would submit that in view of the law laid down by learned Co-ordinate Bench, therefore, the preliminary objection raised by the respondent no.5 may not be countenanced.

7. This petition is vehemently objected to by learned Senior Advocate Mr. B.S. Patel appearing with learned Advocate Mr. Umang Oza on behalf of the respondent no.5. As noted hereinabove learned Senior Advocate

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Mr.Patel has taken a preliminary objection with regard to maintainability of the present petition at the instance of the present petitioner. Learned Senior Advocate would submit that the present applicant, was at the most a complainant, at whose instance, the respondent no.2 had initiated proceedings against the respondent no.5 herein more particularly by issuing a notice under Section 76(B) of the Gujarat Co-operative Societies Act. Learned Senior Advocate would submit that the petitioner, as a complainant could at the most lead evidence as a witness and whereas he could not claim the status of an adversial litigant and certainly the petitioner was not a party to the lis, whereby he could have preferred a writ petition challenging the order passed by respondent no.2- Director, Sugar. Learned Senior Advocate in support of the preliminary objection would rely upon decision of the Hon'ble Apex Court in case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others reported in 2012 (4) SCC 407. Learned Senior Advocate relying upon the said decision would submit that the Hon'ble Apex Court has in the said decision in almost similar circumstances, has inter alia observed that only a person who suffers from some legal injury could challenge the particular act or omission and whereas the complainant has to establish that he has been deprived of or is denied of a legal right and that he has sustained injury to any legally protected interest for agitating a particular complaint.

8. Learned Senior Advocate would further argue that as such, on basis of the complaint preferred by the petitioner, the District Registrar had recommended taking action against the petitioner on two counts to the Director, Sugar and whereas as noted hereinabove, notice under Section 76(B) of the Gujarat Co-operative Societies Act,1961 had also issued against the respondent no.5 for his removal and whereas in the said proceedings, the present petitioner was given an opportunity of hearing also. Learned Senior Advocate would submit that beyond such opportunity, the petitioner,

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who was a complainant, would not acquire a right to challenge the order of respondent no.2 before this Court.

9. Learned Senior Advocate on merits would submit that as such respondent no.2 has after detailed inquiry, come to a conclusion that there was no wrong doing on part of the present petitioner which warranted any action against the petitioner under Section 76(B) of the Act. Learned Senior Advocate would submit that under such circumstances, no interference may be made by this Court to the impugned decision.

10. This application is also resisted by learned Assistant Government Pleader Mr. Jay Trivedi who would submit that the present petitioner, would not fall under the criteria of "aggrieved person" to be entitled to prefer an appeal against the order in question. Learned AGP Mr. Trivedi in support of his submissions has relied upon decision of Hon'ble Division Bench of this Court in case of Lalbhai Trading Company through B.K. Bhatt & Ors vs. Union of India & Ors. reported in 2006(1) GLR 497.

10.1 Learned AGP would further submit that as such no error whatsoever has been committed by the respondent no.2 while passing the order impugned which calls for interference of this Court.

10. Heard learned Advocates for the respective parties who have not submitted anything else.

10.1 At the outset, it requires to be noted that the learned Senior Advocate for the respondent no.5 had raised a preliminary objection regarding maintainability of the petition and whereas the learned AGP had also supported the same by contending that the petitioner is not a person aggrieved. In the considered opinion of this Court in view of the findings

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by this Court in the ensuing paras, the question regarding maintainability is not gone into by this Court.

11. Insofar as the merits of the issue is concerned, this Court has gone through order passed by the respondent no.2 and whereas it would appear that on both the counts that on the aspect of the sale of scrap without tendering and on the aspect of sale of sugar at a lesser price, the respondent no.2 has found no wrong doing on part of the present respondent no.5. A perusal of the impugned order would reveal that insofar as the sale of scrap without tender process is concerned, while the respondent no.5 had clearly accepted that there had been some wrong doing and whereas the same has resulted in proceedings being initiated against an employee of respondent no.4 society who was working as a store keeper and whereas ultimately vide an order order dated 13.10.2016, the said store keeper had been removed from service on account of misconduct in sale of scrap. Insofar as the aspect of sale of sugar at a lower price is concerned, respondent no.2 has inter alia found that sugar was being sold by various factories in the vicinity at different rates and while some factory had a higher rate, some sugar factories were selling at a lower rate. It is observed by the respondent no.2 that considering the aspect of no specific rate being set out of sale of sugar, the loss if any could not be quantified in exact terms. The respondent no.2 Director Sugar had also inter alia observed that even 11 members of the Executive Committee of the society who had objected to the sale of sugar at a lower price between the period March 2016 to April 2016 had also withdrawn their complaints.

12. In the considered opinion of this Court, since adequate reasons appear to have been given by the respondent no.2 and since this Court does not find any error of jurisdiction or any error of law or on facts committed by the respondent no.2, no ground for issuance of writ of certiorari having

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been made out, the impugned order does not call for any interference.

13. Insofar as the contention of the petitioner that copy of the report of inquiry by the Registrar under Section 86 of the Act not being provided to the petitioner, it would appear that the petitioner had not made any such grievance before the respondent no.2. Furthermore, the impugned order clearly reflects that the petitioner had made elaborate written and oral submissions and whereas it is not reflective of any submissions as regards non supply of report of inquiry under Section 86 of the Gujarat Co- operative Societies Act, 1961 or the prejudice caused to the petitioner on account of the same. Even the pleading of the present petition are bereft of any such averment. Under such circumstances, in the considered opinion of this Court the contention of the petitioner cannot be countenanced.

14. In the considered opinion of this Court, the respondent no.2 has after giving adequate opportunity to the applicant has given adequate reasons for dropping of the proceedings against respondent no.5 herein and whereas in the considered opinion of this Court, the said order, not suffering from any defect or infirmity, does not call for any interference more particularly at the instance of the present petitioner.

15. In this view of the matter, more particularly in view of the reasoning and observations made hereinabove, the present petition being meritless is hereby rejected. Rule is discharged.

(NIKHIL S. KARIEL,J) NIRU