Gujarat High Court
Bharatbhai Maganbhai Patel vs Director, (Sugar) on 29 July, 2025
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Reserved On : 15/07/2025
Pronounced On : 29/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8875 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9351 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
✔
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BHARATBHAI MAGANBHAI PATEL & ORS.
Versus
DIRECTOR, (SUGAR) & ANR.
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Appearance:
MR BS PATEL SENIOR ADVOCATE with MR UMANG H OZA(2440) for the
Petitioners
MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
Since both the matters are arising from the same facts
and involve common question of law, they are taken up for
hearing together, by treating the Special Civil Application
No.8875 of 2024 as lead matter.
2. Rule returnable forthwith. Mr.Venugopal Patel learned
Assistant Government Pleader waives service of notice of Rule
on behalf of the respondents
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3. By way of this petition under Article 226 of the
Constitution of India, the petitioners have called in question
the legality and validity of the order dated 23.4.2025 passed
by the respondent No.1, whereby the respondent No.1 has
authorized the respondent No.2 to initiate inquiry under
Section 93 of the Gujarat Cooperative Societies Act 1961 (for
short 'the Act').
4. Briefly stating the facts as per the petitioners are as
under :
4.1 The society, namely, Shree Kantha Vibhag Sahakari
Udhyog Mandli Ltd. situated at Saras, Taluka - Olpad, District
- Surat has been registered since the year 1987. The society is
mainly engaged in manufacturing of sugar and its by-
products, for which sugarcane is being procured by the
society from various places.
4.2 The society requires uninterrupted supply of sugar from
its members. Therefore, the society provides the seeds to its
members, who are sugarcane grower. It is the responsibilities
of the members to bring the sugarcane to the cooperative
sugar factory once it is grown. The sugarcane growers have
thereby formed their groups, which provide to its members
the services of providing labourers for cutting the sugarcane
and also providing transport of sugarcane upto the
cooperative sugar factory. The cooperative sugar factory, with
a view to keep the uninterrupted flow of sugarcane, gives
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money for cutting and transport to the groups formed by the
members of sugarcane growers.
4.3 That the amount which is being spent by the group of
the members of the sugarcane growers towards labour and
transportation is reimbursed by the sugar factory and is
thereafter deducted from the final payment to be made to the
sugarcane growers. Thus, according to the petitioners, the
aforesaid arrangement is prevailing mostly in all sugar
factories and the same is adopted since many years, therefore,
the society is, as such, not responsible for any payment to the
labourers involved in cutting and transporting of sugarcane as
it is the sole responsibility of the ad-hoc committee created by
the members of the sugarcane growers group, which has not
connection with the society.
4.4 The respondent No.1 vide its order dated 28.2.2024
appointed one Bipinchandra Pande (Managing Director),
Shree Chalthan Vibhag Khand Udhyog Sahakari Mandli Ltd.,
Chalthan, Taluka - Palsana, District - Surat for technical
inquiry. Pursuant to the same, the officer carried out the
inspection and submitted the report on 15.4.2024.
4.5 It is the case of the petitioners that the inquiry under the
provision of Section 86 of the Act was undertaken against
Shree Kantha Vibhag Sahakari Udhyog Mandli Ltd., wherein
the society through its Managing Director submitted its
statement to the respondent No.2. The President and/or
Managing Director of the society also provided evidence to
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the respondent No.2 along with their statement in writing.
The respondent No.2, after having considered the available
material, vide its report dated 28.11.2024 recommended to
initiate proceedings against all the members of the executive
committee under the provision of Section 93 of the Act.
4.6 Pursuant to the said report, the respondent No.1 issued
show cause notice dated 1.1.2025 to the petitioners and other
Directors under the provision of Section 93 of the Act with
regard to issue No.7 of the Inquiry Report. Apropos to the
aforesaid, the petitioners and other Directors have submitted
their joint reply. One of the Directors, namely, Kiritbhai
Gangarambhai Patel also filed his reply on 17.3.2024.
4.7 The respondent No.1, after having considered the reply,
vide its order dated 23.4.2025 authorized the respondent No.2
to initiate proceedings under Section 93 of the Act.
Consequently, the respondent No.2 vide show cause notice
dated 23.4.2025 called upon the petitioners as to why the
charges should not be framed against them.
5. Being aggrieved and dissatisfied by the aforesaid, the
petitioners have approached this Court by way of this petition,
challenging the order dated 23.4.2025 passed by respondent
No.1 authorizing, inter alia, the respondent No.2 as an Inquiry
Officer under Section 93 of the Act.
6. I have heard Mr.B.S. Patel learned Senior Advocate
assisted by Mr.Umang Oza learned advocate for the
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petitioners and Mr.Venugopal Patel learned Assistant
Government Pleader for the respondents.
7. Mr.B.S. Patel learned Senior Advocate submitted that
the respondent No.1, while passing the impugned order,
ought to have opined that the petitioners have
misappropriated the amount as per the inquiry report under
Section 86 of the Act. Mr.B.S. Patel learned Senior Advocate
submitted that as per the provision of Section 93 of the Act, it
is the obligation on part of respondent No.1 to record
satisfaction before authorizing a person to initiate inquiry
under Section 93 of the Act. According to Mr.B.S.Patel
learned Senior Advocate, there is no recording of any
satisfaction by the respondent No.1 against the petitioners
and thus, the impugned order authorizing the officer to
initiate inquiry under Section 93 of the Act is absurd and
arbitrary in nature, which deserves to be quashed and set
aside.
7.1 Mr.B.S. Patel learned Senior Advocate submitted that
the impugned order is based on surmises and conjectures and
without recording any finding of fact with regard to any
misfeasance, liability and/or breach of trust by the petitioners.
According to Mr.B.S. Patel learned Senior Advocate, the
impugned order is thereby passed without proper application
of mind, thus, the same is bad in law and against the provision
of Section 93 of the Act.
7.2 Mr.B.S. Patel learned Senior Advocate next submitted
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that the impugned order under Section 93 of the Act is
without jurisdiction inasmuch as the inquiry so sought to be
initiated is for the period 2012 to 2024. According to Mr.B.S.
Patel learned Senior Advocate, in view of Section 93, the
scope of inquiry is limited only for a period of 5 years prior to
any such audit, inquiry or inspection. Therefore, the present
inquiry which is sought to be initiated from the year 2012
which itself is barred by law of limitation provided under
Section 93 and accordingly, the same is without jurisdiction,
which may be quashed and set aside by this Hon'ble Court.
7.3 Mr.B.S. Patel learned Senior Advocate further submitted
that the respondent No.1, based upon the report under
Section 86, issued notice to the present petitioners by
adopting pick and choose policy. Mr.B.S. Patel learned Senior
Advocate pointed out that one Mukesh Patel, who was also a
Director for the period in question, has not been served with
any notice merely because he is the sitting Cabinet Minister of
the State Government. Mr.B.S. Patel learned Senior Advocate,
therefore, submitted that the impugned order is most
arbitrary in nature inasmuch as by virtue of this order,
Mr.Mukesh Patel has been exonerated from the inquiry under
Section 93 of the Act. Hence, the impugned order is not only
arbitrary but wholly discriminatory in nature.
7.4 Having heard the aforesaid submissions, this Court has
paused a specific question to learned Senior Advocate Mr. B.
S. Patel that under which provisions of law and / or the Act, a
show cause notice is required before undertaking and / or
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ordering inquiry under Section 93 of the Act. As against that,
learned Senior Advocate Mr. Patel stated that it is the
practice of the respondents authorities to issue show cause
notice and call for the explanation from the Directors of the
Societies and to show cause as to why inquiry under Section
93 of the Act be not ordered. Learned Senior Advocate Mr.
Patel further submitted that day in and day out in almost all
the cases, show cause notices are being issued by the State
authorities and thereby, it is the duty of the State authorities
to pass legal order complying not only the principles of
natural justice, but also recording reasons against the
contentions so raised by the person who is served with the
notice. Learned Senior Advocate Mr. Patel submitted that
pursuant to the show cause notice, the detail reply was filed
by the petitioner and the same has not been considered by the
respondent No.1 in its letter and spirit. Learned Senior
Advocate Mr.Patel has placed reliance on various decisions of
this Court so as to substantiate his say about normal practice
of issuance of notice prior to initiation of the actual inquiry
under Section 93 of the Act. According to learned Senior
Advocate Mr. Patel, those petitions have been entertained by
this Court without raising any such issue about the validity of
the notice and thereby, the practice of issuance of notice prior
to initiation of inquiry under Section 93 of the Act is impliedly
approved by this Court. To buttress the said contention,
Mr.B.S. Patel learned Senior Advocate has placed reliance on
the following decisions :
(1) Laxmidas Kurjibhai & Ors. v. District Registrar & Ors.,
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reported in 2002 (3) GLH 773.
(2) Chhaganbhai Narottamdas Patel & Anr. v. Gujarat
Sachivalaya Employees Cooperative Credit Society Ltd.,
reported in 2003 (4) GLR 3020.
(3) Kheda District Cooperative Purchase and Sales Union
Ltd & Anr. v. J.P. Gupta or His Successor in Office & Anr.,
reported in 2014 LawSuit (Guj.) 686.
(4) Vipulbhai M. Chaudhary v. State of Gujarat, reported in
2018 (0) AIJEL-HC-239085.
(5) A decision in the case of Surjisinh Amarsinh Mangrola,
rendered in Special Civil Application No.3405 of 2022 and
allied matters, dated 7.4.2022.
7.5 Lastly, learned Senior Advocate Mr. B. S. Patel
submitted that one petition being Special Civil Application
No.6165 of 2025 filed by the person like the present petitioner
and the same is pending before this Court with regard to the
same society and against the same show cause notice.
Learned Senior Advocate Mr. Patel, therefore, submitted that
this Court either should wait till the final outcome of the
aforesaid petition or tag this petition along with Special Civil
Application No.6165 of 2025 in the larger interest of justice.
8. By making above submissions, Mr.B.S. Patel learned
Senior Advocate urged this Court to allow this petition.
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9. Per contra, Mr.Venugopal Patel learned Assistant
Government Pleader for the respondents, while opposing the
present petition, has made the following submissions :
(1) Mr.Venugopal Patel learned AGP has contended that the
impugned order passed by the State authority is perfectly
justified and absolutely in accordance with law and thereby,
same may not be interfered with by this Court by exercising
jurisdiction under Article 226 of the Constitution of India.
(2) Mr.Venugopal Patel learned AGP further submitted that
as such, the present petition is not maintainable in view of
provision of Section 150(9) read with Section 153(3) of the
Act, by which the remedy is provided by way of an Appeal
before the Gujarat State Cooperative Tribunal. He, therefore,
submitted that in view of availability of alternative statutory
remedy, the present petition may not be entertained by this
Court and urged this Court to dismiss the same.
(3) Mr.Venugopal Patel learned AGP, without prejudice to
the aforesaid submissions, next submitted that merely
because the inquiry sought to be conducted for the period
between 2012 to 2024 wherein certain years are more than 5
years from the date of inquiry report that per se would not
make the inquiry vitiated. According to Mr.Venugopal Patel
learned AGP, it is a question of merit which can be agitated
before the officer undertaking the inquiry under Section 93
and if the same is found satisfactory, it is for the officer to
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decide the same in accordance with law. Thus, at this stage,
the aspect of jurisdiction of inquiry may not be gone into
merely because out of total period i.e. 2012 to 2024, certain
years are not amenable being beyond more than 5 years from
the date of inquiry report. Mr.Venugopal Patel learned AGP
submitted that it is not the case that entire period which is
sought to be inquired is beyond the period of limitation of 5
years and thereby, the inquiry period being mixed period
within and beyond the limitation, the same can very well be
gone into by the Inquiry Officer while taking decision under
Section 93 of the Act.
(4) Relying upon the provision of Section 93 of the Act,
Mr.Venugopal Patel learned AGP submitted that the order for
initiating inquiry under Section 93 and/or authorizing person
to undertake the inquiry is merely an administrative in nature
and shall be strictly on the basis of report under section 86, as
in the instant case. Thus, as such, the present petitioners
cannot be said to be prejudiced nor they can have legal right
to challenge the order by raising contentions with regard to
merits. According to Mr.Venugopal Patel learned AGP, the
petition is thereby nothing but seeking pre-adjudication of
rights prior to initiating inquiry under Section 93 therefore,
same does not deserve to be entertained.
(5) Mr.Venugopal Patel learned AGP lastly submitted that
the petitioners have otherwise not challenged the inquiry
report under Section 86 and therefore, consequential order
and/or process of initiating inquiry under Section 93 cannot
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be interjected by the petitioners at this stage. He, therefore,
urged this Court to dismiss the present petition at the
threshold.
10. By making above submissions, Mr.Venugopal Patel
learned AGP urged this Court to dismiss the present petition.
11. Having heard the learned advocates appearing for the
respective parties and having gone through the material
produced on record, a short but interesting question that falls
for consideration of this Court is, whether the Registrar /
Director (Sugar), Gujarat State, is permitted to hold any kind
of inquiry before initiating proceedings under Section 93 of
the Act and/or can the Registrar / Director (sugar), Gujarat
State be permitted to call upon the concerned person /
delinquent at the stage of appointing and/or authorizing
officer to hold inquiry under Section 93 of the Act?
12. So as to decide the aforesaid question, first and foremost
thing is to go through the provision of Section 93 of the Act
very carefully. Section 93 of the Act reads, thus;
"93. Power of Registrar to assess damages against
delinquent, promoters, etc.:
(1) Where, in the course of or as a result of an audit under
Section 84, or an inquiry under Section 86 or an inspection
under Section 87, or the winding up of a society, the
Registrar may satisfied on the basis of the report made by
the auditor or the person authorised to make inquiry under
Section 86, or the person authorised to inspect the books
under Section 87, or the Liquidator under Section 110, that
any person who has taken any part, in the organisation or
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management of the society or any deceased, or past or
present officer of the society has, within a period of five
years prior to the date of such audit, inquiry, inspection or
order for winding up, misapplied or retained, or become
liable or accountable for, any money or property of the
society, or has been guilty of misfeasance or breach of trust
in relation to the society, the Registrar or a person
authorised by him in that behalf may investigate the conduct
of such person or persons and after framing charges against
such person or persons, and after giving a reasonable
opportunity to the person concerned and in the case of a
deceased person to him representative who inherits his
estate, to answer the charges, make an order requiring him
to repay or restore the money or property or any part
thereof, with interest at such rate as the Registrar or the
person authorised under this section may determine, or to
contribute such sum to the assets of the society by way of
compensation in regard to the misapplication, retention,
misfeasance or breach of trust, as he may determine.
(2) The Registrar or the person authorised under sub-
section (1) in making any order under this section, may
provide therein for the payment of the costs or any part
thereof of such investigation, as he thinks just, and he may
direct that such costs or any part thereof shall be recovered
from the person against whom the order has been issued.
(3) This section shall apply, notwithstanding that the act is
one for which the person concerned may be criminally
responsible".
13. For the purpose of deciding the aforesaid question, the
provision of Section 93(1) is the most relevant. Thus, upon
careful consideration of the provision of Section 93(1), it
appears that the said provision is legislated to invest power in
the Registrar / Director (Sugar) so as to assess damages
against the delinquent, promoters etc. upon being satisfied on
the basis of an audit under Section 84, inspection under
Section 84(a), inquiry under Section 86, inspection under
Section 87 or 88 or winding up of the society. It has also
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provided limitation of 5 years prior to any such audit, inquiry
and inspection etc. can be gone into in the inquiry under
Section 93. As per the said provision, the discretion is also
given to the Registrar / Director (Sugar) to authorize any
officer to undertake inquiry under Section 93 instead of
conducting inquiry by itself. Thereafter, once the actual
inquiry is initiated, the stage of issuing show cause notice
would come upon the concerned delinquent for the purpose of
framing of charge by giving reasonable opportunity. Lastly,
the stage of determination would arise wherein order of
repay, restore the money or the property with interest can be
passed.
14. From the above analysis of the provisions of Section
93(1) of the Act, this Court finds clear dichotomy within the
provisions as to administrative function and quasi-judicial
function. Thus, the provisions of Section 93(1) of the Act
envisages two separate parts. With regard to holding of
inquiry under Section 93(1) of the Act, at the first stage, the
Registrar / Director (Sugar) has an option either to inquire
itself or to authorize a person to hold an inquiry. This decision
is purely an administrative decision, for which, in the
provisions of the Act, there is no requirement of issuance of
any notice, as envisaged. The legislature has in its wisdom not
provided any such provisions in the nature of pre-inquiry for
the simple reason which I could see is that by virtue of said
decision as such there is no prejudice to any delinquent. Once
the decision to hold inquiry under Section 93 of the Act either
by the Registrar / Director (Sugar) itself or by the person so
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authorized is taken, the function of the authority would then
start as that of quasi-judicial authority. I say so because in the
later part of the provisions of Section 93(1) of the Act, the
authority undertaking inquiry is obliged to frame charges,
obliged to give reasonable opportunity to the person
concerned and thereafter, can pass an order requiring the
said person or delinquent to repay or restore the money or
property to any part thereof with interest.
15. In view of the aforesaid, this Court has completely failed
to understand as to how and why the Director (Sugar) has
thought it fit to hold pre-inquiry by show cause notice dated
1.1.2025. According to this Court, as stated herein-above,
such issuance of show cause notice at the stage of whether to
initiate proceedings or authorize any person to hold inquiry
under Section 93, is completely foreign to the provision of
Section 93(1). The Director (Sugar) appears to be completely
ignorant about the simple language of the provision of Section
93(1). Calling upon the person and/or delinquent at this stage
is unwarranted and adjudicating submissions of the person
and/or delinquent by way of show cause notice would
amounting to pre-judge of issue before actually holding
inquiry under Section 93(1). Another angle of the situation
would be the inquiry which has been held, although, has no
force in the eye of law; however, the subsequent inquiry that
suppose to be undertaken by the authorized person which is
backed up of provision of Section 93(1), would become mere
formality. I say so because once the show cause notice is
issued to the concerned person, naturally in response thereof,
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the person and/or delinquent would raise all his best
contentions as to why any such inquiry shall not be initiated
against him. Thereafter, if the Registrar/ Director (Sugar)
initiates inquiry and/or authorize someone to hold inquiry, in
that event, all the contents of the delinquent would be
repeated which would amount to lead meaningless and/or
futile exercise. In the instant case, consequent situation may
arise that the officer so authorized to undertake inquiry, who
is subordinate to the Registrar / Director (Sugar), Gujarat
State, would not be able to take independent view than that of
already taken by the Registrar / Director (Sugar) while taking
decision with regard to authorizing person to hold inquiry.
Therefore, now, the inquiry that would be initiated by the
authorized person would be mere empty formality, as best of
the contentions raised by the delinquent have already been
pre-judged by the Registrar / Director (Sugar), Gujarat State
vide impugned order.
16. In my view, the action on part of the Registrar / Director
(Sugar), Gujarat State of calling the person against whom
inquiry is to be proposed under Section 93 at the stage of
taking decision of institution of inquiry and/or authorizing
person to hold the inquiry, is not backed by the provision of
law. The action on part of respondent No.1 appears to be very
clear that respondent No.1 wants to keep the supremacy over
the proceedings and at the same time, does not want to
shoulder the responsibility of taking decision under Section
93. It is not proper on part of respondent No.1 to authorize a
person to hold inquiry after pre-judging the issue by which the
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independence of the subordinate officer, in my view, is
completely taken over by the respondent No.1. The said action
is completely contrary to the concept and object of Section 93
of the Act and thereby, such action at the end of respondent
No.1 is not worthy approving but has to be deprecated.
Section 93(1) of the Act does not contemplate any pre-inquiry
stage and thereby, the respondent No.1 ought not to have
issued notice and called upon the delinquent, as the same, in
my view, is completely against the basic structure of the
provision of law. Thus, even if any such practice is in force
since many years, but has no legal force, is unjust, illegal,
unwarranted and de-hors the law, thereby such practice has
to be discontinued with immediate effect. The State
authorities cannot adopt any procedure or practice which is
not legislated in the provision of law.
17. Keeping in mind the aforesaid discussion, now, this
Court would like to proceed to deal with the contentions
raised by learned advocates for the respective parties, as
under :
(1) To begin with, let us examine the contentions of an
alternative statutory remedy as envisaged under Section
150(9) read with Section 153(3) of the Act, which read, thus:
"150. Gujarat State Co-operative Tribunal.
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) xxx xxx xxx
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(5) xxx xxx xxx
(6) xxx xxx xxx
(7) xxx xxx xxx
(8) xxx xxx xxx
(9) The Tribunal may call for and examine the record of
any proceeding in which an appeal lies to it, for the purpose
of satisfying itself as to the legality or propriety of any
decision or order passed. If in any case, it appears to the
Tribunal that any such decision or order should be modified
annulled or reversed, the Tribunal may pass such order
thereon as it may deem just."
"153 Appeals.
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) An appeal against an order or decision under Sections
82, 90, 93 and any order passed by the Registrar for paying
compensation to a society, and any other order for which an
appeal to the Tribunal has been provided under this Act,
shall lie to the Tribunal."
On careful consideration of the aforesaid provision of
law, it appears that the remedy by way of an appeal is
provided before the Gujarat State Cooperative Tribunal
against any decision or order passed under Sections 82, 90
and 93. Meaning thereby, an Appeal appears to have been
prescribed against the order or decision in the inquiry under
Section 93. This Court is of the firm opinion that any decision
or order which is final in nature, can be appealable by way of
Appeal before the Tribunal. As discussed herein-above,
Section 93 has two parts, viz., (i) on administrative side which
includes the decision to initiate inquiry and/or to authorize a
person to hold inquiry and (ii) a quasi-judicial category
wherein framing of charge, giving opportunity of hearing and
passing of a decision would be undertaken. Therefore, what is
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prescribed under Section 150(9) read with Section 153(3) of
the Act is an Appeal against the final outcome, which is
affecting the rights of the parities. Mere decision to hold
inquiry or cause to be held by the authorized person, is not an
adversarial order which affects any rights of the person and/or
delinquent. As discussed herein-above, in the present case,
what is impugned is the order authorizing a person to hold an
inquiry under Section 93, being an administrative in nature, in
my view, the remedy of Appeal is not available under Section
150(9) read with Section 153(3) of the Act.
(2) So far as the contention raised by the petitioners that
the Registrar / Director (Sugar) must record the decision
considering the merit as well as the submissions those were
raised by the petitioners pursuant to the show cause notice is
concerned, in my view, the said contention is not worth
accepting. As observed herein-above, issuance of show cause
notice by the respondent No.1 itself is illegal. Thereby, at the
administrative stage, no in-depth satisfaction to be recorded
for forming decision to contemplate inquiry and/or authorizing
person to hold an inquiry. One more reason, for not accepting
the said contention, is that if the respondent No.1 records the
satisfaction after considering the submissions of the
petitioner, in that event, it would amounting to pre-judging
the matter which would result into rendering actual inquiry
under Section 93 of the Act as an empty formality. Be that as
it may. From the impugned communication and / or the order,
it cannot be said that there is no satisfaction recorded by the
respondent No.1. Respondent No.1, in my view, said to have
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recorded its prima facie satisfaction about alleged
irregularities and / or misconduct. In the said order, it is
specifically stated that respondent No.1 has considered report
under Section 86 of the Act and findings recorded in the said
report. Accordingly, in my view, while passing the order,
which is in administrative nature, no in-depth recording is
necessary, hence, the contention of the learned advocate for
the petitioners is rejected.
(3) So far as the contention raised by the petitioners with
regard to limitation and method of pick and choose policy is
concerned, in my view, the same being purely on merits and
thereby, same can very well be gone into by the authorized
officer while holding inquiry under Section 93 of the Act.
However, at this stage, it is to be noted that merely because
the period of inquiry is prescribed from 2012 to 2024, certain
years are beyond 5 years before the inquiry report would per
se not vitiate holding of inquiry. The authorized officer can
appreciate the said contention and decide the same in
accordance with law. So far as contention with regard to pick
and choose action is concerned, in my view, there cannot be
any negative equality. Merely because one Mukesh Patel, who
was also a Director, during the said period, has not been
served with the notice that itself would not be a ground for
the petitioner to claim an equal treatment. I say so because it
is settled law that there cannot negative equality. The
petitioners cannot claim the same treatment which has been
given to Mr.Mukesh Patel. Non service of notice upon
Mr.Mukesh Patel, even if his name is figured in the report
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under Section 86, cannot be said to be legal and thus, there
cannot be any equality in illegality.
(4) So far as the contention with regard to either wait for
final outcome of SCA No.6165 of 2025 or this petition be
heard along with SCA No.6165 of 2025 is concerned, in my
view, the same is not acceptable for the simple reason that
both the petitions are independently filed and by the
independent parties in a different capacity. More so, in the
present case, only question of law is being decided, rather
going much into the facts of the case. Thus, while deciding a
petition on question of law, if another petition which is
pending, may not always be heard together, if there is no intra
connecting facts and/or overlapping facts or in conflict of
interest between the parties. So, whatever decided in this
petition may be made applicable to the other petition if the
facts of that petition, are not materially different. Thus, in my
view, said contention raised by the petitioners is not
acceptable. Even otherwise, said contention raised by the
petitioners is not pleaded in the memo of petition but, the
same is raised as an afterthought sensing the fate of this
petition after putting marathon efforts while arguing the
petition. Accordingly, this Court would not accept the said
contention after having invested long hours of judicial time.
The petitioners could have raised this ground at the threshold
instead of taking chance of arguing entire matter on merits.
(5) So far as the decisions those are relied upon by the
petitioners are concerned, the said decisions are not
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applicable in the facts of the present case. Pertinently, in all
the cited decisions, question about the validity and issuance of
show cause notice at the stage of holding inquiry under
Section 93 and/or to authorize someone to hold inquiry was
not the point of discussion. In other words, question posed in
this petition was not the subject matter of any of the cited
decisions.
(i) So far as the decision in the case of Laxmidas Kurjibhai
(supra) is concerned, in the said decision the challenge was to
the final order of inquiry under Section 93, whereas in the
case on hand, what is challenged in the present case is not the
final order but, an order of appointing authorized officer to
hold inquiry under Section 93 of the Act.
(ii) So far as the decision in the case of Chhaganbhai
Narottamdas Patel (supra) is concerned, the said decision has
been rendered in the different set of facts and in a different
context. However, one thing which is worth noticing in the
said decision is that the Court has held the provision of
Section 93 as administrative in nature.
(iii) So far as the decision in the case of Kheda District
Cooperative Purchase and Sales Union Ltd (supra) is
concerned, the said decision has been cited only with a view
to show that the practice of issuance of show cause notice is
in existence. The said petition against the show cause notice
was not entertained on merits, however, the practice of
issuance of show cause notice was not disapproved. On going
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through the said decision, true it is that the said petition was
entertained and dismissed on merits, but that would not per
se approve the practice adopted by the State Government of
issuance of show cause notice at the administrative stage of
Section 93. It further appears that in the said decision, the
question with regard to issuance of notice at the stage of
appointment of Authorized Officer to undertake inquiry under
Section 93, was not at all raised and considered. The said
decision is, therefore, not applicable to the present case.
(iv) So far as the decision in the case of Vipulbhai M.
Chaudhary (supra) is concerned, the said decision is also cited
only with a view to show that the practice of issuance of
notice before holding an inquiry under Section 93 has been
taken note of by the Division Bench of this Court and thus, the
said practice is impliedly approved. In my view, in the case
before the Division Bench, although the fact was recorded
with regard to issuance of notice before holding of inquiry
under Section 93, however, the ultimate challenge before the
Court was against the issuance of show cause notice by
Section 93 and not against the order appointing the
authorized person to hold the inquiry. Thus, merely recording
of some facts with regard to issuance of notice, without there
being any deliberation thereof, cannot be held to be approving
the practice of issuance of show cause notice before holding
inquiry under Section 93.
(v) So far as the decision in the case of Surjisinh Amarsinh
Mangrola (supra) is concerned, the said decision admittedly
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not on merits. On the contrary, on the basis of the statement
made by the learned AGP, thus same is not binding in nature.
18. In view of the aforesaid discussion, this Court is not
having slightest doubt in the mind that the respondent No.1
has committed blatant illegality insofar as issuing notice upon
the petitioners at the stage of taking decision to authorise the
officer to hold inquiry under Section 93 of the Act. Therefore,
the practice adopted of issuing show cause notice and holding
pre-inquiry by the respondent No.1 at the administrative
stage is highly deprecated. The respondent No.1, therefore, in
my view, could not have introduced any such inquiry and / or
practice by issuing the show cause notice prior to holding an
inquiry under Section 93 and/or authorizing person to hold an
inquiry being not approved by the provisions of law.
I answer the question accordingly.
19. For the foregoing reasons, present petitions are bereft of
any merits and the same deserve to be dismissed.
Accordingly, the present petitions are dismissed with no order
as to costs. Rule is discharged.
20. Needless to clarify that the petitioner shall be at liberty
to raise all such contentions before the Authorized Officer in
an inquiry under Section 93 of the Act and the Authorized
Officer shall consider all the contentions of the petitioner
independently and strictly in accordance with law.
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21. Since the issue involved in these petitions, is important
in nature as it is directly connected with the daily
administration of quasi-judicial functions of the Cooperation
Department, this Court finds it necessary to send the copy of
this judgment to the Ministry of the Cooperation Department
as well as to the Principal Secretary of the Cooperation
Department for their kind perusal and compliance.
(NIRAL R. MEHTA,J)
V.J. SATWARA
