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SCA/7054/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7054 of 2010
With
SPECIAL
CIVIL APPLICATION No. 7055 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
AMBALAL
J PATEL & 3 - Petitioner(s)
Versus
INQUIRY
OFFICER GHANSHYAMBHAI S MISHRA,RIDROL & 2 - Respondent(s)
=========================================
Appearance
:
MR BAIJU
JOSHI for
Petitioner(s) : 1 - 4.
NOTICE SERVED for Respondent(s) : 1 - 2.
MS
TRUSHA K. PATEL, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 2,
MR
CC BHALJA for Respondent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 02/08/2010
COMMON
ORAL JUDGMENT
Rule.
Ms. Trusha K. Patel, learned
Assistant Government Pleader waives service of notice of Rule on
behalf of respondent No.2. Shri C.C. Bhalja, learned advocate waives
service of notice of Rule on behalf of respondent No.3.
1. In
both these petitions, respective petitioners i.e. members of the
Managing committee of respondent No.3 Society as well as Secretary of
the said Society have prayed for appropriate writ, direction or order
quashing and setting aside the interim order passed by the Gujarat
Cooperative Societies Tribunal in Appeal No.36/2010, by which the
learned Tribunal has refused to grant stay so far as the Secretary of
the Society is concerned and has granted conditional interim stay so
far as the petitioners of Special Civil Application No.7054/2010 i.e.
members of the managing committee of respondent No.3 Society i.e.
appellant Nos.2 to 5 of the Appeal No.36/2010 are concerned. It
appears that while considering the stay application, the learned
Tribunal has directed to pay 50% of Rs.1,12,352.57 ps. by Secretary
of the Society as well as by members of the managing committee of
respondent No.3 Society.
2. Learned
advocates appearing on behalf of respective parties have tried to
make submissions on merits of the case and on legality and validity
of the order passed under Section 93 of the Gujarat Cooperative
Societies Act, which is impugned before the Tribunal. However, as
Appeal No.36/2010 is yet to be considered and decided and disposed of
by the learned Tribunal on merits, this Court is not further
considering the submissions made by learned advocates appearing for
respective parties, more particularly, when the present Special Civil
Applications are against interim order passed by the learned
Tribunal.
3. Shri
Baiju Joshi, learned advocate appearing on behalf of the petitioners
has submitted that so far as petitioners of Special Civil Application
No.7054/2010 i.e. members of the managing committee of respondent
No.3 Society are concerned, they are ready and willing to deposit the
amount as directed by the Tribunal, however, they will deposit the
amount with the Tribunal and not with the Society as directed by the
Tribunal and let the said amount be invested by the Tribunal in any
fixed deposit subject to the ultimate outcome of the Appeal. It is
further submitted by Shri Baiju Joshi, learned advocate appearing on
behalf of the petitioners of Special Civil Application No.7055/2010
i.e. Secretary of the respondent No.3 Society that considering his
financial position, he shall deposit the amount of Rs.25,000/- with
the Tribunal to show his bonafides and for rest of the amount, he
shall file an undertaking before the Tribunal that the said amount
shall be paid by him subject to outcome of the Appeal and within
stipulated time that may be directed by the Tribunal, however, the
same shall be without prejudice to his rights and contentions to
challenge the order that may be passed by the Tribunal (in case the
decision is against him). It is further submitted that the amount
that may be deposited by petitioner of Special Civil Application
No.7055/2010 may also be directed to be invested in Tribunal in fixed
deposit in the name of Nazir/Registrar, which shall be paid to the
respective parties on conclusion of the Appeal No.36/2010 and subject
to ultimate outcome of the same. Therefore, it is requested to
dispose of the present Special Civil Applications.
4. Shri
Bhalja, learned advocate appearing on behalf of the respondent No.3
Society has requested to pass appropriate order considering the above
submissions and to protect the interest of both the parties.
5. Having
heard learned advocates appearing on behalf of respective parties and
considering the fact stated herein above and the submissions made
by the learned advocates appearing on behalf of respective parties
referred to herein above, present Special Civil Applications are
disposed of and it is directed that there shall be stay of the order
passed by the respondent No.1 dated 27.12.2004 passed in inquiry
under Section 93 of the Gujarat Cooperative Societies Act pending
hearing and final disposal of Appeal No.36/2010 on condition that
petitioner of Special Civil Application No.7055/2010 shall deposit a
sum of Rs.25,000/- with the Tribunal within a period of two weeks
from today and petitioners of Special Civil Application No.7054/2010
are directed to deposit a sum of Rs.5,000/- each as directed by the
Tribunal, also within a period of two weeks from today with the
Tribunal and on such deposit, the Tribunal is directed to invest the
same in fixed deposit, initially for a period of one year in the name
of Registrar and whoever succeeds in the Appeal, an appropriate order
shall be passed by the Tribunal to return the said amount to the
party who succeeds. Petitioner of Special Civil Application
No.7055/2010 shall file an undertaking within a period of two weeks
from today in the Tribunal with a copy to the learned advocate
appearing on behalf of respondent No.3 Society that he shall
deposit/pay the balance amount within such a period that may be
directed by the Tribunal, in case he loses in the said Appeal.
However, the same shall be without prejudice to his rights and
contentions to challenge the order passed by the Tribunal that may be
passed.
6. With
this, both these petitions are disposed and/or the order passed by
the Tribunal dated 12th May 2010 in Appeal No.36/2010 is
modified to the aforesaid extent. It is made clear that there shall
be stay as stated above only with respect to the petitioners only.
Rule is made absolute to the aforesaid extent in both the petitions.
Ad-interim relief granted earlier stands vacated forthwith in both
the petitions. No order as to costs. Direct service is permitted.
(M.R.
Shah, J.)
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