Gujarat High Court
Shivji Juma Maheshwari vs State Of Gujarat on 16 October, 2023
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.7056 of 2023
With
R/SPECIAL CIVIL APPLICATION NO.8602 of 2023
With
R/SPECIAL CIVIL APPLICATION NO.7203 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
=========================================
1 Whether Reporters of Local Papers may be NO
allowed 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 ?
=========================================
SHIVJI JUMA MAHESHWARI
Versus
STATE OF GUJARAT
=========================================
Appearance :
MR SAVAN N PANDYA for the Petitioner.
MR ADITYASINH JADEJA, AGP for the Respondents.
=========================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 16/10/2023
COMMON ORAL JUDGMENT
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
1. In view of the fact that very short identical issue is
involved in all these petitions, with the consent of learned
advocates for the respective parties, the matters are taken up for
final hearing. Rule returnable forthwith. Learned AGP Mr.
Adityasinh Jadeja waives service of rule on behalf of the
respondents.
2. In Special Civil Application No.7056 of 2023, the
petitioner has challenged the order dated 30.9.2022 passed by the
Deputy Secretary (Appeals), Agriculture & Cooperation
Department, Gandhinagar in Revision Application No.60 of 2021
whereby he confirmed the order dated 17.10.2020 passed by
District Registrar, Kachchh by which liquidation of Abdasa Taluka
S.C. - S.T. Majur Kamdar Sahakari Mandali Limited (hereinafter
referred to as 'the Society') was ordered.
FACTS OF SCA NO.7056 OF 2023
2.1 The petitioner of Special Civil Application No.7056 of
2023 is the President of the Society which filled tender online to
get the work order of the Panchayat Irrigation Division, Bhuj -
Kachchh for repairing of storage tank and lake within six months.
However, though the contract was given to the petitioner Society,
the petitioner Society could not complete the work in time and,
therefore, vide letter dated 6.3.2020, the respondent issued notice
to the Society as to why its registration should not be cancelled and
the Society should not be liquidated. The Society filed its reply to
the aforesaid show-cause notice. However, on 11.9.2020, the
respondent No.4 i.e. District Registrar, Kachchh passed an interim
order dated 11.9.2020 under Section 107 and without assigning
any reasons, passed an order of liquidation in respect of the
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
petitioner Society by exercising the powers under Section 108 (1).
2.2 In the aforesaid order, it was stated that against the
interim order of liquidation, if the petitioner wants to make any
representation, the same may be made within a period of one
month to District Registrar, Bhuj - Kachchh failing which final
order would be passed.
2.3 The petitioner did not make any representation and,
therefore, the District Registrar, Bhuj - Kachchh passed an order
dated 17.10.2020 stating that as there is no representation against
the interim order dated 11.9.2020, the final order is passed under
Section 107 (3).
2.4 The petitioner challenged the said order dated
17.10.2020 by filing Appeal No.58 of 2020 which came to be
rejected vide order dated 1.7.2021.
2.5 Against the aforesaid order, the petitioner preferred
Revision Application No.60 of 2021 under Section 155 of the
Gujarat Cooperative Societies Act and as the aforesaid revision
application also was rejected vide order dated 30.9.2022 by Deputy
Secretary (Appeals), Agriculture, Family Welfare and Cooperation
department, the present petition is preferred.
FACTS OF SCA No.7203 of 2023
3. The petitioner of SCA No.7203 of 2023 - Shri Dinodhhar
Majur Kamdar Sahkari Mandali Limited - a co-operative Society
though applied for online tender, could not complete the work and,
therefore, pursuant to a show-cause notice, which was replied by
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
the petitioner, proceedings against the petitioner Society was
started. Vide order dated 18.7.2020, interim order of liquidation
was passed and though the petitioner has filed representation
against the same, the District Registrar, Bhuj while passing the
order on 11.9.2020 confirmed the interim order of liquidation by
stating that the petitioner did not make any representation in time
against the interim order of liquidation and, therefore, final order
of liquidation was passed and Official Liquidator was appointed.
3.1 The petitioner challenged the aforesaid order by way of
appeal under Section 109 by preferring appeal No.53 of 2020
which came to be rejected by order dated 1.7.2021 by Additional
Registrar (Appeals), Co-operative Societies, Gujarat State and
against the said order, the petitioner preferred Revision
Application No.58 of 2021 which was also rejected vide order dated
30.9.2022. Hence the present petition.
FACTS OF SCA No.8602 of 2023
4. The petitioner of SCA No.8602 of 2023 - Kandala Godi
Majur Kaamdar Sahkari Mandali Limited - a Cooperative Society
who applied for online tender and though the tender was granted
to it, pursuant to which the work was allotted to the Society, the
Society could not complete the work allotted to it and hence,
proceedings under Gujarat Cooperative Societies Act were initiated
against the petitioner for liquidation.
4.1 Vide interim order dated 18.7.2020, District Registrar -
Kachchh passed an interim order of liquidation. The petitioner
Society was required to make a representation within a period of
one month against the aforesaid order. Though the petitioner
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
made a representation against the aforesaid interim order dated
18.7.2020, the District Registrar, Kachchh passed an order dated
11.9.2020 confirming the interim order of liquidation on the ground
that the petitioner has not made any representation.
4.2 The aforesaid order was challenged by way of Appeal
No.54 of 2020 before the Additional Registrar (Appeals),
Cooperative Societies, Gujarat State, Gandhinagar who rejected the
appeal of the petitioner being Appeal No.54 of 2020 vide order
dated 1.7.2021.
4.3 The aforesaid order was challenged by way of Revision
Application No.59 of 2021 which also came to be rejected vide
order dated 30.9.2022 and hence the present petition.
5. Learned advocate Mr. Jinesh Kapadia appearing for the
petitioners in all these petitions relied upon the decision of this
Court in the case of Majevadi Tel-Biya Uatpadak Sahakari
Mandali Limited and others v. State of Gujarat through the
Secretary and others, 2008 (2) GLH 35 and submitted that if
any final order is passed under Section 107 (3) of the Act by the
District Registrar without providing any opportunity of hearing to
the Society on the basis of the fact that the Society has not made
any representation against the interim order of liquidation, the
same would amount to violation of principles of natural justice and
such opportunity of hearing is required to be given. He further
submitted that in two petitions i.e. SCA No.7203 and 8602 of 2023,
the petitioner had made representations and those representations
were not considered and while passing the final order, the
authority held that as there was no representation by the petitioner
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
within time frame, the authority has confirmed the interim order of
liquidation. He further submitted that be that as it may, the fact
remains that the petitioners were not heard in each of the petitions
once the interim order of liquidation was passed, but before
passing the final order.
6. Learned Assistant Government Pleader Mr. Adityasinh
Jadeja appearing for the respondents could not dispute either the
aforesaid aspect or the settled legal proposition of law canvassed
by learned advocate Mr. Kapadia. Though he opposed the
petitions, he submitted to pass appropriate order.
7. I have heard learned advocates appearing for the
respective parties and perused the record. On perusal of the
record, I found that while passing the impugned order of
liquidation, the District Registrar - Kachchh has specifically stated
the petitioners to make representation within a period of one
month failing which appropriate order would be passed. However,
the fact remains that barring SCA No.7056 of 2023, in other two
writ petitions, representation was made by the respective
petitioners. Despite that, the District Registrar passed final order
as if there was no representation made. In fact, in the impugned
order also, it was recorded that no representation was received
within the time prescribed and, therefore, only on that ground,
since there was no representation, the interim order was confirmed
by the District Registrar.
8. In view of the aforesaid background, the decision relied
upon by learned advocate Mr. Kapadia in the case of Majevadi Tel-
Biya Uatpadak Sahakari Mandali Limited and others v. State of
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
Gujarat through the Secretary and others (Supra) is required to be
considered. While dealing with similar situation, the coordinate
Bench of this Court in paragraphs 9 to 13 has observed in the said
judgment as under :-
"9. The learned AGP appearing for the State
Authority contended that if there is no explanation
by the society or the society has not availed
opportunity of submitting explanation, the District
Registrar may not be required to give opportunity of
hearing and therefore, order cannot be said as
illegal in the eye of law.
10. In my view when sub-section (3) of Section
107 of the Act, independently provides for hearing
and is not dependent upon the explanation by the
society as conceived sub-section (2) of section 107
of the Act. It cannot be said that if the society has
not submitted any explanation, no opportunity of
hearing is required to be given before passing the
final order for vacating or confirming interim order.
If such contention is accepted it would run counter
to the scheme of subsections (2) and (3) of Section
107 of the Act. It is hardly required to be stated that
liquidation is last resort and therefore, even if there
is no explanation of the society submitted, it would
be required for the District Registrar to consider the
matter on the basis of the material available before
him, and after giving opportunity of hearing to the
society, the District Registrar has to record the
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
satisfaction for vacating or confirming interim order.
Therefore, such contention of learned AGP cannot
be accepted.
11. Further it appears that in the impugned order
passed by the District Registrar no satisfaction
whatsoever is recorded for vacating or confirming
order, except mentioning that after interim order no
explanation or reply submitted on behalf of the
society, and therefore, final order of liquidation.
Such can also be said as mechanical exercise of the
power by the District Registrar without considering
the ground / circumstances germen to the exercise
of the power for finalising order of liquidation.
12. The aforesaid aspect which goes to the root of
the matter are not considered by the Additional
Registrar in appeal as well as by the State
Government in Revisional Jurisdiction. Therefore,
same also can be said as without proper application
of mind.
13. In view of the above, the impugned order
passed by the District Registrar for final order of
liquidation of the petitioner society and its
confirmation thereof by the Additional Registrar in
appeal, and by the State Government in revision are
quashed and set aside. As a consequence thereof the
District Registrar will be required to give
opportunity of hearing to the petitioner as required
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
under subsection (3) of section 107 of the Act, and
shall be required to pass afresh order in accordance
with law after giving opportunity of hearing to the
petitioner society."
9. The aforesaid observations made by the coordinate
Bench makes it clear that after the interim order of liquidation is
passed by the District Registrar before passing final order, the
petitioners were required to be heard. In the instant case, learned
AGP Mr. Jadeja could not point out anything showing that the
petitioners were heard and any opportunity of hearing was given to
the petitioners. In view of that uncontroverted position, all these
three petitions stand allowed. The impugned order dated
17.10.2020 passed by District Registrar, Kachchh (under challenge
in SCA No.7056 of 2023) as well as impugned order dated
11.9.2020 passed by the District Registrar, Kachchh, (which were
under challenge in SCA Nos.8602 and 7203 of 2023) are quashed
and set aside. Consequential orders passed in Appeals as well as
Revision Applications in each of the petitions are also quashed and
set aside.
Each of the proceedings is remanded back to the
District Registrar, Kachchh for adjudication from the stage of
interim liquidation and the petitioners are directed to file
representation if they so wish, within a period of one month from
today. Once the period of one month is over, the District Registrar
- Kachchh is directed to give hearing to the petitioners and
thereafter to pass appropriate final order in accordance with law.
10. It is clarified that this Court has not gone into the
NEUTRAL CITATION
C/SCA/7056/2023 JUDGMENT DATED: 16/10/2023
undefined
merits of the matter and the present petitions are entertained only
on the ground of non-observance of the principles of natural
justice.
Rule is made absolute to the above extent. No order as
to costs.
Sd/-
(NIRZAR S. DESAI,J)
SAVARIYA
