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Jamnadas Vaghjibhai Patel Vs. Karamsad Urban Co-op. Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectElection;Trusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR304
AppellantJamnadas Vaghjibhai Patel
RespondentKaramsad Urban Co-op. Bank Ltd.
Excerpt:
- - that injunction having not been granted by the nominee as well as by the gujarat state co-operative tribunal as per their respective orders at annexures-h and j, the present petition has come to be filed. the power to disqualify is discretionary as the auxiliary verb 'may' clearly indicates......the suit is filed for a declaration that he is a duly elected director of the respondent no. 1 cooperative society, as per the elections held in august, 1984 and he cannot be restrained from acting as such. the society on the other hand was contending that he was removed from his office by the registrar under section 76b(1) of the act, and he was disqualified on the day of the election, namely, august 1984, the registrars order being dated 27th january, 1984, his election itself was had and, therefore, he could not bank on his alleged election of august, 1984. the nominee of the registrar refused to grant the interim injunction and his order came to be confirmed by the co-operative tribunal in the revision application filed against that order, and that has given rise to the present.....
Judgment:

N.H. Bhatt, J.

1. This is a petition under Article 227 of the Constitution of India by a plaintiff of a suit under Section 96 of the Gujarat Co-operative Societies Act, and presently the opponent before the Board of Nominees. The suit is filed for a declaration that he is a duly elected Director of the respondent No. 1 Cooperative Society, as per the elections held in August, 1984 and he cannot be restrained from acting as such. The Society on the other hand was contending that he was removed from his office by the Registrar under Section 76B(1) of the Act, and he was disqualified on the day of the election, namely, August 1984, the Registrars Order being dated 27th January, 1984, his election itself was had and, therefore, he could not bank on his alleged election of August, 1984. The Nominee of the Registrar refused to grant the interim injunction and his order came to be confirmed by the Co-operative Tribunal in the revision application filed against that order, and that has given rise to the present petition under Article 227 of the Constitution of India.

2. I am not oblivious of this Courts limited jurisdiction while exercising powers under Article 227 of the Constitution of India, nor oblivious of the discretionary character of this High Court's writ jurisdiction. However, when it appears that on gross misconception of facts and law the authorities refused to exercise the jurisdiction vested in them by law, if the decisions impugned before this High Court can be said to be without jurisdiction, they are liable to be in interfered with.

3. In Order to understand the controversy, a few facts are required to be noted carefully. The petitioner at the relevant time of the order, i e. 1981, 1982, 1983 and 1984, was holding the post of an elected Director on the Board of Directors of this respondent No. 1 Co-operative Society. As the order of the Tribunal itself shows, vide paragraph 3, his post was to fall vacant on his retirement in Aug. 1984. As per bye-laws, 1/3rd members of the Board of Directors were to retire on rotation and the petitioner was one of them. So, his term as a Director was limited to the period upto August, 1984. Had he not been removed he also would have ceased to be a Director. Now, the Registrar in exercise of his power under Section 76-B(l) of the Gujarat Co-operative Societies Act, removed him from the office of the Director. He could not have been removed beyond the period of his tenure, i.e. beyond August, 1984. But the Registrar, perhaps, oblivious of the limitations of his power purported to pass an order removing him for one year. Being aggrieved by the said decision, the petitioner had filed a revision application before the State level Additional Registrar. The Additional Registrar was competent to reject the revision application but he had no jurisdiction to further say the petitioner was disqualified also by necessary presumption. But he purported to say that. I take this concurrent finding of the Co-operative Tribunal as unwarranted and without authority of law and, therefore, non-est. The petitioner came to be newly elected in August, 1984. As stated above, he also laboured under the impression that he had no right to work as a Director and so he waited till March, 1985 when he approached the respondent No. 1 Society to permit him to function as a Director. He having been so restrained, filed a suit before the Board of Nominee and applied for an interim injunction. That injunction having not been granted by the Nominee as well as by the Gujarat State Co-operative Tribunal as per their respective orders at annexures-H and J, the present petition has come to be filed.

4. Even a bare look at the text of Section 76-B(1)(2) makes it clear that under that Section 76-B the Registrar has got two-fold powers. Under Sub-section (1) he has got power to remove a Director, but that power is obviously limited to the remainder of the terms of his. This is very clear from the latter part of Sub-section (1). After removal an officer, the Registrar has to direct the Society to appoint a person or a qualified member in the vacancy caused by such a removal and the new incumbent shall hold the office so long only as the Officer in whose place he is elected or appointed would have held if the vacancy had not occurred. 'This means and must mean that removal cannot be beyond the period of his office. The petitioner's office was to come to an end in August 1984. Therefore, his removal, though stated to be for one year, was operative only till August, 1984. Under Sub-section (2) it was open to the Registrar to further direct that the petitioner who was removed under Sub-section (1) would stand disqualified to hold the post or contest the election for any office of the society for a period not exceeding four years from the date of the order of disqualification. Disqualification, therefore, does not per se follow removal. It is to be specifically and separately ordered. The power to disqualify is discretionary as the auxiliary verb 'may' clearly indicates. The Registrar, unfortunately, did not know this fine distinction of law. He simply jumbled up both the sub-sections in his order annexure-A. The operative part of the order is only for removal for one year which for all practical purposes was removal only upto August, 1984. The Co-operative Tribunal in the revision against that order went further to say that because of that removal he stood disqualified for one year. If the removal was only upto August, 1984, how can there be consequential, or as a matter of course, disqualification operative beyond August, 1984. This is a clear example, how the offices and Judicial Tribunals clothed with judicial powers are manned by people not knowing law and such mistakes are being committed by them.

5. If the petitioner whose removal came to an end or ceased to be operative in August, 1984, sought re-election and came to be elected, he had a right to act as such in and from August, 1984. These clear legal concepts unfortunately are lost sight of both by the Board of Nominees and the Co-operative Tribunal and their refusal to grant interim injunction flows from their knowledge about their jurisdiction. In other words, their orders suffer from jurisdictional error and, therefore, they are set aside.

6. Mr. Patel for the respondent No. 1 Bank, however, has contended before me that the order annexure-B of the Additional Registrar had become final. I have already dealt with it. It is the exuberance on the part of the Additional Registrar to have unwittingly twisted the law by going beyond his jurisdiction in a revision application filed by this private party.

Mr. Patels second argument was that this injunction granted would ultimately result into allowing the suit. If that is the natural and inevitable outcome, it cannot be helped.

7. Mr. Patel's last, valiant argument was that in the matter of discretion this High Court should not interfere. It is truism to state that discretion must be judicial discretion. Where it is open to the authority to grant or not to grant an injunction in the given set of circumstances and facts and if the authority exercises the jurisdiction one way or the other, this Court cannot interfere with it. But where there is gross misconception of jurisdictional power and the refusal emanates from that gross misconception, the orders are to be branded as passed without authority of law and/or in disregard of jurisdictional powers.

8. The result is that the petition is allowed. The respondent-Bank is restrained by an injunction issued by this Court from interfering with this petitioner acting as a Director of the respondent No. 1-Bank in his capacity as a Director elected in the elections held in August, 1984. Rule is accordingly made absolute with costs to be paid by the respondent No. 1-Bank.

9. The request to maintain status quo is refused because in my view there is no other alternative outcome of this litigation possible.


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