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Hargovanbhai J. Patel Vs. Lanva Dudh Utpadak Co-operative Society Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 454 of 1979
Judge
Reported inAIR1981Guj227; (1981)0GLR787
ActsGujarat Co-operative Societies Act, 1962 - Sections 71 and 155; Constitution of India - Articles 226 and 227
AppellantHargovanbhai J. Patel
RespondentLanva Dudh Utpadak Co-operative Society Ltd. and ors.
Appellant Advocate R.N. Shah, Adv.
Respondent Advocate C.K. Takwam, Asst. Govt. Pleader for Bhaishanker Kanga and Girdharlal and; A.P. Trivedi, Adv.
Cases ReferredMaganlal Lalbhai Patel v. State of Gujarat
Excerpt:
- - the petitioner, in my view, has failed to show that mr. it gives power of revision to the registrar as well as to the government......but the respondent no. 2 has filed an affidavit and to it is annexed one document showing that the state government had already moved for the withdrawal of the criminal case which stood withdrawn with recording of acquittal of the accused on 2-8-1978.4. mr. r. n. shah, the learned advocate appearing for the petitioner, firstly urged that once the power under s. 155 of the act had been exercised by the additional commissioner of co-operative societies, the state government was denuded of any powers under the said section because the additional commissioner was acting as a delegate of the 6overnment and powers once exercised by the delegate could not be re-exercised in principle. i asked mr. shah for the petitioner as to whether he had any authority or any order of the government to show.....
Judgment:
ORDER

1. This is a petition filed by one citizen residing at village Lunva of Chansmu Taluka in Mehsana District. The respondents herein are the office-bearers of one co-operative milk society of that village and the respondent No. 10 is the State of Gujarat. The petitioner claims to be a member of the said co-operative society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 (the 'Act', for short). The managing committee of the said co-operative society had passed on 15th July 1975 a resolution No. 48 to purchase some 'property for the purposes of the Society by spending about lis. 45,600 to Rs. 50,000 and then by a subsequent resolution No. 53 dated 14th September 1975, they had entered into an agreement to purchase the house of one Shri Virchandas Tanthudas Patel for Rs. 48,000/- and they had paid amounts of Rs. 7,000/- and Rs. 15,000/- respectively on 22nd August 1975 and 17th September 1975 towards the price of the said building. The petitioner, as a vigilant ordinary member of the Society, felt that the provisions of Section 71 of the Act requiring how the funds of the Society should be invested by the managing committee had been flagrantly violated by the members of the Society and he had, therefore, got initiated certain proceedings against the office bearers of the Society because the said alleged investment violated Section 71 read with Rule 29 (c) of the Act. The Special Officer appointed by the District Registrar of Co-operative Societies, Mehsana, felt that the offence under Section 147(d) was committed by the office bearers of the Society and so a Criminal Case No. 106 of 1977 was filed in the Court of competent criminal jurisdiction on 27-1-1977. Exhibit 'A' is the copy of the said complaint which was said to be pending before the Magistrate when the petition was filed.

2. The respondents Nos. 1 to 9 had filed a Revision Application before the Additional Commissioner and Registrar of Co-operative Societies by invoking Section 155 of the Act challenging the order of the District Registrar to file a complaint against them on the alleged violation of the provisions of Section 71 of the Act and they had sought for a further prayer of regularising the deal of purchase made by them. The Registrar-cum Additional Commissioner of Co-operative Societies, while exercising his revisional powers under Section 155 of the Act, declined to interfere. But the Government then took up the matter in revision under Section 155 of the Act and passed the order Annexure 'B' dated 15-5-1978 that the complaint filed against the respondents should be withdrawn and the resolution to strike the deal must be regularised. Being aggrieved by the said decision of the Government, which is at Annexure 'B', the petitioner invoked this High Court's jurisdiction under Arts, 226 and 227 of the Constitution of India because in his view the then Minister-in-Charge of Co-operation Shri Rasiklal Acharrya had taken this unlawful decision mala fide under the pressure of political workers.

3. The Government has not filed any affidavit in this case. But the respondent No. 2 has filed an affidavit and to it is annexed one document showing that the State Government had already moved for the withdrawal of the criminal case which stood withdrawn with recording of acquittal of the accused on 2-8-1978.

4. Mr. R. N. Shah, the learned advocate appearing for the petitioner, firstly urged that once the power under S. 155 of the Act had been exercised by the Additional Commissioner of Co-operative Societies, the State Government was denuded of any powers under the said section because the Additional Commissioner was acting as a delegate of the 6overnment and powers once exercised by the delegate could not be re-exercised in principle. I asked Mr. Shah for the petitioner as to whether he had any authority or any order of the Government to show that the Additional Commissioner of Co-operative Societies was functioning as the delegate of the Government. Mr. C. K. Tackwani, the learned, Assistant Government Pleader appearing for the State, orally declared that the Additional Commissioner who was also Joint Registrar of the Co-operative Societies, had exercised powers under Section 155 of the Act in his capacity as the Registrar as the order ex facie shows. The said order was made available to me and it showed that Mr. T. Chellam, the IAS Officer, had passed the said order in his capacity as the Additional Registrar and also as the Additional Commissioner of Co-operation under the provisions of the Act. There is no post of an Additional Commissioner of Co-operation under the Act but Government, it seems, for its Administrative purposes has appointed certain officers to look after the affairs of Co-operation. The petitioner, in my view, has failed to show that Mr. T. Challam had exercised his revisional powers in the Revision Application No. 356 of 1977 as the delegate of the Government. The order itself does not speak of any of such delegation.

5. Mr. Shah for the petitioner then alternatively urged that the powers of the Government and the powers of the Registrar under Section 155 of the Act are co-extensive and once the powers are exercised by the Registrar or the Joint Registrar the State Government cannot exercise such powers. The language of Section 135 of the Act does not support this reasoning. It gives power of revision to the Registrar as well as to the Government. The Registrar exercises powers of revision against the orders of his subordinates and the Government is invested with the powers of revision against the order of its subordinates. The Jt. Registrar is obviously an officer subordinate to the Government and so there is nothing in Section 155 of the Act itself to show that the Government cannot exercise powers under S. 155 of the Act against the Jt, Registrar's orders after the powers are exercised by the Jt. Registrar. Mr. Tackwani in this connection had invited my attention to the judgment of this High Court in the case of Maganlal Lalbhai Patel v. State of Gujarat, reported in 19 Guj LR 1141 : (AIR 1979 Guj 43). It is the case arising under the provisions of the Gujarat Panchayats Act but the principle laid down in that case squarely applies to the present case. What the learned Judge says about Section 294(5) of the Gujarat Panchayats Act, in my view, should apply to a provision which is in pari materia with that provision. The learned single Judge in this connection observes as follows (at p. 45 of AIR):

'Once the State Government authorises a particular officer, the power conferred under sub-section (5) of Section 294 belongs to that officer. When such an officer exercises power under sub-section (5) of Section 294, it is within the competence of the State Government to revise his order under sub-section (5).11

6. Mr. Shah for the petitioner urged that the mala fides attributed to the Minister-in-Charge of Co-operation at the relevant time have stood undenied. Mr. Tackwani in this connection submitted that as Shri Rasiklal Acharrya is no longer there in office, it is difficult for the Government to affirm or deny the allegations but he has made available for my perusal the original file and I find, that there was an elaborate order passed by the then Minister-in-Charge of Co-operation Shri Rasiklal Acharrya and it appeared ex facie from the order, set out in detail on the file, that the Minister-in-Charge had ,interpreted the legal provisions and passed the order. Mr. Shah had in this connection urged that Section 71 of the Act prohibits the Society from investing its funds in a manner other than provided in that section, But the then Minister's order on the Government file showed that the Government had treated this as a case, not of investment but of spending for the purchase of the property for the purposes of the Society. Ex facie the order of the Government appears to be right because Section 71, from its very nature of the text, is confined to investment of the surplus funds of the Society so that cash does not remain on hand with the chances of its being channelled to other unlawful sources.

7. In view of the matter, I find little merit in this petition which stands rejected. Rule discharged with no order as to costs.

8. Petition dismissed.


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