NATVARLAL PITAMBARDAS PATEL CHAIRMANGUJARAT STATE COOP Vs. STATE OF GUJARAT AND OTHER
HIGH COURT OF GUJARAT
Natvarlal Pitambardas Patel Chairmangujarat State Coop
State Of Gujarat And Other
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(1.) This appeal under Clause 15 of the Letters Patent is directed against decision dated 11.10.2011 of learned Single Judge rendered in Special Civil Application No.7089 of 2011, whereby challenge to quash and set aside show cause notice dated 08.06.2011 issued by respondent No.2 i.e. Registrar, Cooperative Societies, Gujarat State, by which the petitioner was called upon to show cause why the petitioner should not be removed as a Chairman and Member of the Committee under Section 76B(1) of the Gujarat Cooperative Societies Act, 1961 (the Act), and that why he should not be declared disqualified from holding the post under Section 76B(2) of the Act.
1.1) The facts recorded in Paragraph No.2 of the order under challenge as such are not in dispute but the writ petition came to be decided in view of preliminary objection raised by learned Additional Advocate General on behalf of the State requesting not to entertain the writ petition against the show cause notice. As against the above, the contention was raised on behalf of the petitioner by the learned Senior Counsel that no ground was made out to invoke the powers under Section 76B(1) of the Act and, therefore, the notice impugned was without any factual foundation to invoke the power and deserves to be quashed and set aside.
1.2) However, the contentions were raised with regard to exercise of jurisdiction by the Registrar in view of the Registrar, being a member of the Managing Committee and participating in the proceedings, which culminated into issuance of the show cause notice and, therefore, the rule of bias would come in play and the Registrar person in his cause, could not have become the Judge. Inter alia, it was submitted that respondent No.2, being a director of the federation as per bylaw No.39 of the bylaws of the federation, becomes the part of the decision taken by the federation and hence, would not be competent to take action. What is recorded in Paragraph No.6 of the order under challenge of learned Single Judge about raising no contention of lack of jurisdiction or illegal exercise of jurisdiction is incorrect. The basic argument of the petitioner was absence of material to exercise of powers by respondent No.2 in the context of lack of jurisdiction by virtue of he being a member in Manging Committee of the Union.
(2.) While arguing this appeal, Mr.Dipen Desai, learned advocate for the appellant, has placed reliance on oral order passed by Division Bench and learned Single Judge in Special Civil Application No.3790/01 dated 11.10.2002 in Letters Patent Appeal No.497/03 dated 11.07.20013 whereby in the context of exercise of powers of issuing notice under Section 76B of the Act while disposing of the writ petition and continuing the interim relief qualification was made that instead of an officer issuing the show cause notice, who is also a member of the society, another officer of the State Government would initiate proceedings under Section 76B of the Act in accordance with law. That another order dated 11.07.2003 of Division Bench was in the context of an inquiry initiated under Section 93 of the Act and challenge was made on the ground that original respondent No.3 had participated as director of the petitioner federation and had taken part in the proceedings or in the meetings of the federation as a director and, therefore, he would be incompetent to take action and a Division Bench, while rejecting the appeal on behalf of the State of Gujarat against the directions issued by learned Single Judge confirmed the above direction issued by learned Single Judge. Even reliance is placed on Government Resolution dated 15.04.2005 of the Department of Agricultural and Cooperation of State of Gujarat whereby a committee constituted to deal with the similar situation in case of exercise of power by Registrar, Cooperative Societies, under Sections 81 to 94 of the Act and even notification is also issued on 26.04.2005 by the Department of Agricultural and Cooperation, State of Gujarat. Thus, it is submitted that the order passed by learned Single Judge deserves to be quashed and set aside by allowing the appeal as prayed for.
(3.) Mr.Bipin Bhatt, learned Assistant Government Pleader appearing on behalf of the respondentState, would contend that as the challenge was to the show cause notice in the writ petition and was rightly not interfered with and in addition to the above, the petitioner was directed to file reply to the show cause notice, in such case decision would be rendered on merits in accordance with law by the competent authority.;
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