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Patel Kodarbhai Jivabhai and ors. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR325
AppellantPatel Kodarbhai Jivabhai and ors.
RespondentState and ors.
Cases ReferredNanalal Navalnathji Yogi v. Collector of Bulsar and Ors.
Excerpt:
.....further reference to the notification which the government of india issued clearly imply that the state government had formed a requisite opinion within the meaning of section 3(1) of the act and it was held that otherwise such an order could not have been passed. it was, a case for passing of a statutory order where it was clearly mentioned that that order was being made in exercise of the powers conferred by section 3 of the essential commodities act, 1955. now in this particular case when one looks at government resolution dated 5-7-1982 it is clear that it is not a statutory order which is issued in exercise of any of the powers conferred on the government. now, therefore, if merely by an appointment the majority is reduced or converted into the minority one cannot say that the..........further reference to the notification which the government of india issued clearly imply that the state government had formed a requisite opinion within the meaning of section 3(1) of the act and it was held that otherwise such an order could not have been passed. it was, a case for passing of a statutory order where it was clearly mentioned that that order was being made in exercise of the powers conferred by section 3 of the essential commodities act, 1955. now in this particular case when one looks at government resolution dated 5-7-1982 it is clear that it is not a statutory order which is issued in exercise of any of the powers conferred on the government. it is an administrative order and unfortunately it is also not mentioned under what powers the government issued this.....
Judgment:

S.L. Talati, J.

1. The petitioners who are 9 in number have filed this petition with a prayer that Government resolution, dated 5-7-1982 produced at Annexure 'B' may be quashed and that appropriate writ be issued so that in pursuance of the said Government resolution no further action may be taken by the Government and its servants. Few facts which are necessary are required to be stated.

2. The petitioners claimed to be the members of the Managing Committee of Khedbrahma Taluka Sahkari Kharid Vechan Sangh. From the petition it appears that there were 16 members of the Managing Committee of that co-operative society. According to the petitioners they belonged to a group which consisted of 9 members and the other group consisted of 7 members only. The petitioners alleged that those 7 members belonged to Congress (I) and that as they were 7 they were in minority. Further allegation is that the meeting of the Managing Committee was scheduled to be held on 7-7-1982 and the Government issued resolution, dated 5th July, 1982 by which respondent Nos. 2, 3 and 4 were nominated as Government representatives on the Managing Committee of Khedbrahma Taluka Sahkari Kharid Vechan Sangh. The challenge to this resolution is mainly on the ground that this was done with an ulterior motive and the motive alleged is that by nominating the three members to the Managing Committee the Government disturbed the composition of the managing committee in such a way that the majority was converted into a minority as 7 Congress (I) members became 10 as against the 9 petitioners. The further allegation is that the appointment of the three members was not in public interest and the Government never formed any opinion after considering the public interest involved in the operation of the society. The learned advocate Shri Vakharia who appeared on behalf of the petitioners submitted that as one looks to Annexure 'B', Government resolution, dated 5-7-1982 it abundantly becomes clear that it does not on the face of it show that the three persons were nominated in public interest after the Government having formed an opinion in regard to the public interest of the society. The learned advocate Shri Vakharia further submitted that imputations made in the petition are not denied either by the State (respondent No. 1) or the Assistant District Registrar (respondent No. 2). On behalf of respondents Nos. 3 and 4 the affidavits are filed.

3. The learned Assistant Government Pleader Shri Takwani who appeared on behalf of respondent Nos. 1 and 2 submitted that it is not necessary that in Government resolution it should be mentioned that the appointment was made in public interest after forming an opinion. He relied upon, the case of Nanalal Navalnathji Yogi v. Collector of Bulsar and Ors. reported on : AIR1981Guj87 . It was a case where the order made in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 was challenged. It was found that the order itself recited that the Government of India issued a particular notification and after obtaining prior concurrence of the Central Government, the Government of Gujarat made that order. It was clear in that case that reference to Section 3 of the Essential Commodities Act and further reference to the notification which the Government of India issued clearly imply that the State Government had formed a requisite opinion within the meaning of Section 3(1) of the Act and it was held that otherwise such an order could not have been passed. It was, a case for passing of a statutory order where it was clearly mentioned that that order was being made in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955. Now in this particular case when one looks at Government resolution dated 5-7-1982 it is clear that it is not a statutory order which is issued in exercise of any of the powers conferred on the Government. It is an administrative order and unfortunately it is also not mentioned under what powers the Government issued this particular resolution though the Government had such powers under Section 80 of the Gujarat Cooperative Societies Act, 1961. Now Section 80 of the Act came to be amended and by amendment Clause (2) was added to that section. Before the amendment the Government had power to nominate not more than three representatives on the committee of the society provided the Government had subscribed to the share capital of a society directly or through another society. Now in this particular case the Government had subscribed to the share capital of the society and the Government had nominated the two persons and that the share capital was returned and as a result the representation of the Government was cancelled by Government resolution, dated 2-12-1981 which is produced at page 48. In fact the petitioners made a grievance in paragraph 4 of the petition that by withdrawing the nomination of Shri N.A. Patel and continuing the representative of the Assistant Registrar, the Government tried to reduce the majority of the petitioner's group. I am not concerned at this stage with the action taken by the Government when the share capital was returned. The State Government got further power when Section 80 was amended and Clause (2) was added which runs as under:

80(2) Where the State Government is of the opinion that having regard to the public interest involved in the operation of a society it is necessary or expedient so to do, it may nominate its representatives on the committee of such society as if the State Government had subscribed to the share capital of the society and the provisions of Sub-section (1) shall, so far as may be apply to such nomination.

4. Now, therefore, the State Government got the power which could be exercised in a given case though the State Government may not have subscribed to the share capital of the society and when those powers are exercised the effect would be that the nomination of the persons who may not be more than three would exercise the same rights, duties, responsibilities and liabilities and their appointment would be considered as if the State Government had subscribed to the share capital of the society. The only condition, therefore, which was laid down was that though the State Government may not have subscribed to the share capital the State Government may exercise similar powers if the State Government is of the opinion that having regard to the public interest involved in the operation of the society it is expedient or necessary so to do. Now, therefore, what is necessary is that the Government is expected to apply its mind and having applied its mind it may come to the conclusion that it is in the public interest that the appointment must be made. That public interest is again clarified by words 'involved in the operation of a society'. Now, therefore, the interest of the society must be looked into particularly the operation of the society and if it is so found that it is necessary or expedient so to do the Government after having formed an opinion had power to nominate any number of persons who may not be more than three.

5. I am not impressed with the argument that in Government resolution the words 'opinion or public interest' are always required to be mentioned. Here the difficulty is of a different nature. Firstly it is not clear from the Government resolution as to whether that resolution is adopted or passed in exercise of the powers conferred on the Government under Section 80(1) or 80(2) of the Gujarat Co-operative Societies Act, 1961. Secondly there are clear imputations and the imputations are that in order that the petitioners who did not belong to Congress (I) may be reduced to minority, three appointments were made. Now these allegalions are not denied. I may here say that whenever any appointment is made or nomination is made that person is bound ultimately to belong to one group or the other and, therefore, his action in the committee may affect the constitution of the Managing Committee and it is quite likely that the majority may be reduced or converted to a minority. Now, therefore, if merely by an appointment the majority is reduced or converted into the minority one cannot say that the nomination is bad unless it is shown that it was done with that particular purpose. Now here this purpose is imputated and it is not denied. There are other facts which one cannot overlook. The other facts are that the meeting of the Managing Committee was called by issuing a circular and that circular was issued on 1-7-1982 which is produced at annexure 'A'. Now by the circular, dated 1-7-1982 the meeting was convened on 7-7-1982 at 2-00 P.M. Before that meeting could be held on 5-7-1982 the Government adopted resolution Annexure 'B' and three appointments are made. Now, therefore, naturally respondent Nos. 3 and 4 who were non-official persons could not have received any intimation in regard to the meeting for which the circular was issued on 1-7-1982. The persons nominated resided at Khedbrahama Taluka and respondent No. 4 even did not reside at Taluka headquarters but he resided at Unchi Dhanal in a village. It is, therefore, clear that if the Government resolution was posted to them from Sachivalaya Gandhinagar on 5-7-1982 they could never have received it on 7-7-1982. It is more clear, therefore, that they got the resolution perhaps sitting in Gandhinagar on 5-7-1982 and proceeded straight to Khedbrahma to attend the meeting. The allegation in the petition is that that meeting was required to be postponed and the board was put to that effect and the reason that has been given is that an injunction was received against the functioning of the newly elected three members by the Gujarat State Co-operative Tribunal. Now that allegation is denied by respondent Nos. 3 and 4 and according to them they did not know anything about the injunction and they did not know anything about cancellation of the meeting. I may only say that they were not members till 5-7-1982. Therefore, it is but natural that they would not receive the agenda, they would not receive circular of the meeting, they would not know anything about the injunction but in all these cases they would not go to the office of the Sangh on 7-7-1982 unless they were in Gandhinagar on 5-7-1982 and got the resolution there and there. It clearly thereafter appears that they went to Khedbrahma to attend the meeting. According to them there was a quorum and the meeting was held and the proceedings are at page 31 Exh. P. It is not stated as to who were the members who were present in the meeting. It is more clear that 9 petitioners were not present and they elected the President of the Managing Committee etc. It is also clear that these were the persons who some how wanted to get themselves appointed. They got themselves appointed on 5-7-1982. They immediately went to Khedbrahma and inspite of the fact that the meeting was adjourned and the members were not present they carried on the meeting and ultimately passed resolutions and elected the Chairman. Immediately thereafter within a week i.e. on 13-7-1982 it appears that one of the appointed members listed the grievances and made several allegations against the working of the previous management. Now, therefore, it is clear that respondent Nos. 3 and 4 were interested in their appointment. They were interested in seeing that the minority is converted into majority. They were also interested in seeing that the previous management is blamed. So far as the allegations against the previous management are concerned I only say that the allegations may be true or false. But the interest of respondent Nos. 3 and 4 in their appointment is more clear. It is not their case that the Assistant District Registrar who is respondent No. 2 ever suggested to the Government that they may be appointed. Now, therefore, it was either for the Government or for the Assistant District Registrar to say that the nomination of respondent Nos. 3 and 4 was necessary in public interest of running a Co-operative Society. They could have come out with a case that the persons appointed were well-worsed in co-operative movement. They had taken part in co-operative movement in that particular Taluka and that, therefore, their appointment was necessary in the interest of co-operative Government. If such was the case and if the Government thought it so and in the opinion of the Government, it was expedient in public interest to appoint respondents Nos. 3 and 4 this Court would never sit in judgment on the decision which the Government is empowered to make in public interest. But where the Government resolution is challenged on the ground of mala fides and it is clearly suggested that the appointment was to convert the majority into minority and that it was not in the public interest but it was in party interest that this was being done, when such allegations are not controverted or denied the only alternative left to the Court is to strike down that resolution and as a result this petition succeeds and it is allowed. Resolution dated 5-7-1982 is set aside and the Government and its officers and respondent Nos. 3 and 4 are restrained from taking any action in pursuance of that resolution.

Rule made absolute with no order as to costs.


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