Gujarat High Court
Jay-Purvi Co-Operative Housing ... vs District Registrar on 16 October, 2023
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/4900/2023 JUDGMENT DATED: 16/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.4900 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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JAY-PURVI CO-OPERATIVE HOUSING SOCIETY LTD.
Versus
DISTRICT REGISTRAR
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Appearance :
MR DIPEN DESAI WITH MR D V KANSARA for the Petitioner.
MR ASHISH H SHAH for the Respondent No.3.
MR ADITYASINH JADEJA, AGP for the Respondent Nos.1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 16/10/2023
ORAL ORDER
1. The matter was heard finally with the consent of
learned advocate Mr. Dipen Desai appearing with Mr. D. V.
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Kansara for the petitioner, learned AGP Mr. Adityasinh Jadeja for
the respondent Nos.1 and 2 and learned advocate Mr. Ashish Shah
for the respondent No.3. Rule. Learned advocates appearing for
respective parties waive service of rule.
2. By way of this petition, the petitioner has challenged
the orders dated 21.2.2023 and 18.1.2023 passed by the
respondent authorities at Annexure A to the petition. Vide order
dated 18.1.2023, the District Registrar, Cooperative Societies
(Housing), Ahmedabad in proceedings under Section 81 of the Act
has passed an order and superseded the Managing Committee of
the petitioner Society. The aforesaid order was challenged by
carrying it in appeal and vide order dated 21.2.2023 in Appeal No.3
of 2023, the aforesaid order passed by the District Registrar was
confirmed by Additional Registrar (Appeals).
3. Learned advocate Mr. Dipen Desai appearing for the
petitioner submitted that in view of settled legal position, the
matter is required to be remanded back to the District Registrar,
Cooperative Societies and he would address the Court on merits
only if the submission in respect of settled legal position does not
appeal to this Court. He drew attention of this Court that before
passing the impugned order dated 18.1.2023, when show-cause
notice was issued for initiation of proceedings under Section 81 of
the Act by the District Registrar, Cooperative Societies (Housing),
Ahmedabad on 31.12.2022, though at the end of the notice, it was
addressed to the Chairman, Secretary and all the members of the
Managing Committee, copy of the show-cause notice was sent only
to Chairman of the Society. In light of that, he drew attention of
the Court that even thereafter, when the notice was made
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returnable on 12.1.2023 at 15.30, on that day, notice was not
received by the Chairman of the Society. Despite that, the District
Registrar, in his impugned order dated 18.1.2023 stated that the
notice issued by him was refused and was returned to the District
Registrar. Mr. Desai submitted that when the notice was not
issued to individuals and was sent to only Chairman and when the
order does not mention anything about who refused the notice,
whether he was authorized or not, the District Registrar could have
waited before adjudicating the proceedings under Section 81 of the
Cooperative Societies Act by issuing fresh notice to the petitioners.
However, instead of issuing fresh notice and allowing the
petitioners to put forward their version, as one of the contention of
Mr. Desai is that the proceedings under Section 81 of the Act is
issued without jurisdiction, the District Registrar straightway
passed the impugned order dated 18.1.2023. He relied upon the
decision of this Court in the case of Haribhai M. Thakar and
others v. State of Gujarat and others, reported in 2007 (2)
GLH 80 and submitted that as per settled legal position, when the
notice is addressed to the Chairman, Secretary and Managing
Committee members, it must be served upon each of them
individually and if the same is not done, proceedings are required
to be quashed and set aside.
4. Learned advocate Mr. Ashish H. Shah appearing for the
private respondents, though opposed the petition by submitting
that the petitioners has after the order dated 18.1.2023 was
passed, challenged by way of appeal which was also rejected vide
order dated 21.2.2023 and, therefore, at least at Appellate stage,
the petitioners were heard on merits and against that the remedy
of revision under Section 155 is provided and, therefore, the
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petitioners preferred this petition before this Court without
availing the alternative remedy available to the petitioners. He
further states that by taking into consideration the decision of this
Court in the case of Haribhai M. Thakar and others v. State of
Gujarat and others (Supra), if the proceedings initiated at the
instance of the private respondents under Section 81 of the Act is
remanded back to the District Registrar with a direction to decide
the proceedings, he does not have any objection if the impugned
orders are quashed and set aside.
5. Mr. Adityasinh Jadeja, learned AGP appearing for
respondent No.1 states that the District Registrar may be directed
to decide the dispute within some time bound schedule.
6. This Court in the case of Haribhai M. Thakar and
others v. State of Gujarat and others has observed in
paragraphs 5 to 7 as under :-
"5. On going through the impugned notice it is
apparent that though various instances of defaults by
different members of the Executive Committee have
been alleged in the show cause notice the respondent
authority has at the end of the notice categorically
stated that the Society is called upon to represent its
case along with supporting evidence. The notice is
admittedly issued to the Chairman/Secretary of the
Society.
6. When the attention of the learned Assistant
Government Pleader was invited to this fact situation it
was stated, under instructions, that the practice and
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procedure adopted by the respondent authority is to
obtain a signature from the person on whom the notice
is served to the effect that the said person shall inform
all other members of the Executive Committee about
the proposed action Under Section 81 of the Act.
7. In the first instance, regardless of whether such
practice and procedure is adopted, it is apparent that
in exercise of powers under Section 81 of the Act, it is
the member, viz., each individual member of the
Executive Committee who is to be removed by
superseding the committee and appointing an
Administrator. The defaults stipulated in Clauses (a) &
(b) of Sub-section (1) of Section 81 of the Act relate to
acts of mismanagement, negligence etc. and are
attributable to the Managing Committee of the Society
and not to the Society itself. In the circumstances,
merely by serving notice on one of the office bearers of
the Society it cannot be stated that the service has
been effected qua all the members of the Managing
Committee."
7. From the aforesaid observations, it is clear that when
the notice addressed to Chairman and all the Managing Committee
members which was required to be served upon them individually
as the same has not been done in the instant case and none of the
learned advocates appearing for the respective parties could
dispute the aforesaid fact, on the ground that the notice was not
served upon each of the petitioners, the impugned orders dated
18.1.2023 and 21.2.2023 are required to be quashed and set aside.
Further, I have also considered the fact that another grievance of
the petitioner was that the District Registrar could have issued
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fresh notice to the petitioners and after hearing the petitioners,
Registrar could have decided the issue on hand.
8. To avoid the repetition of the aforesaid situation and in
light of the decision of this Court in the case of Haribhai M.
Thakar and others v. State of Gujarat and others (Supra) and
considering the fact that learned advocate Mr. Ashish Shah
appearing for private respondents does not have the objection if
the impugned orders are quashed as the order dated 18.1.2023 is
virtually an ex-parte order and, therefore, present petition is
allowed with following directions :-
I. The impugned order dated 21.2.2023 passed by the
Additional Registrar (Appeals), Cooperative Societies, Gandhinagar
and the impugned order dated 18.1.2023 passed by the District
Registrar, Cooperative Societies (Housing), Ahmedabad (at
Annexure A to the petition) are quashed and set aside.
II. The District Registrar, Cooperative Societies (Housing) is
hereby directed to decide the proceedings under Section 81 of the
Act pursuant to the show-cause notice dated 31.12.2022 afresh
within a period of two months from today, in any case not later
than 31.12.2023.
III. There is no requirement to issue any fresh notice. However,
the parties are hereby directed to appear before the District
Registrar, Cooperative Societies (Housing) at 15.30 p.m. on
1.11.2023 so that no fresh notice is required to be issued to each of
the litigating parties.
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IV. Since learned advocate Mr. Dipen Desai appears for
Chairman, Secretary and all the Committee Members of the
Managing Committee and, therefore, now the District Registrar,
Cooperative Societies (Housing) is not required to issue any fresh
notice to any of the parties.
9. This order is passed without entering into the merits of
the case only on the ground that before passing the impugned
orders, each of the Committee Members were not served. Rights
and contentions of all the parties are kept open. Rule is made
absolute to the above extent. There shall be no order as to costs.
Sd/-
(NIRZAR S. DESAI,J)
SAVARIYA
