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SCA/4967/2001 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4967 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
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 ?
=========================================================
PANCHMAHAL
SHIRDI UTPADAKO NI ROOPANTHAR SEVA SAHAKARI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
BS PATEL for
Petitioner(s) : 1,MRS RANJAN B PATEL for Petitioner(s) : 1,
MR HH
PARIKH, AGP for Respondent(s) : 1 - 3.
HL PATEL ADVOCATES for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 21/01/2010
ORAL
JUDGMENT
1. The
short facts of the case appear to be that the petitioner society had
applied for registration. It had applied for registration as
Panchmahal Sherdi Utpadako Ni Seva Sahakari Mandli Ltd. As the powers
for registration of such society were with the Assistant Registrar,
Cooperative Societies (Panchayat) – respondent No.3, the proposal was
submitted to him. However, it appears that thereafter the word
‘Rupantar’, pending the proposal, was added between ‘Utpadakoni’ and
‘Seva Sahakari Mandli Ltd.’. Not only that but the English
translation of Bye-law No.4 of the said society providing for the
objects of the society is as under:
To
undertake the process for conversion of sugarcane crop of the members
and to undertake incidental activities of the same and to arrange for
transportation through contractor or directly.
2. It
appears that the case of the petitioner is that in the said Bye-law
No.4 before the registration, the word excluding the sugar , for
conversion of the crop of sugarcane, was added. The Assistant
Registrar granted registration, as per the petitioner, in the year
1998 on 24.09.1998. It appears that thereafter the Director, Sugar,
entered into the correspondence with the Registrar and ultimately the
matter was taken up in suo
moto revision
under Section 155 by the Additional Registrar (Appeals). The
Additional Registrar (Appeals), after
giving opportunity of hearing to the petitioner, accepted the
revision to the extent that the registration is maintained but if the
petitioner society desirous to get the registration, the matter was
remanded to the competent authority by submitting the proposal and
until the same, the status quo was ordered to be maintained. The
petitioner carried the matter in revision before the State Government
and the State Government, vide order dated 30th
August, 2000, found that since it was pertaining to the manufacturing
of sugar, powers were with the Director, Sugar and not with the
Assistant Registrar, Cooperative Societies (Panchayat) for
registration of the Society and dismissed the Revision. it is under
these circumstances the present petition.
3. It may
be recorded that this Court by interim order had stayed the impugned
order and consequently the petitioner society is functioning since
1997.
4. Heard
Mr. Patel, learned counsel appearing for the petitioner and Mr.
H.H.Parikh, learned A.G.P. for the State Authorities and Mr. Utkarsh
Sharma for H.L. Patel, Advocate for respondent No.3.
5. It
appears that in the name it did provide for the
word ‘Rupantar’ and Bye-law No.4 also provides for undertaking the
activities for conversion of crops of sugarcane. But, the pertinent
aspect is that the same is by excluding the sugar. Therefore, even if
Bye-law No.4 is to stand as it is, any activity by the petitioner
society for conversion of sugarcane crop into sugar is not
permissible. It was also declared by the learned counsel appearing
for the petitioner that the petitioner society was neither desirous
nor is desirous to undertake any activity of conversion of any crop
of sugarcane whether it is sugar or any other item. He also declared
that if this Court continues the registration with the clarification
and the bar of implementation of the whole Bye-law No.4 in toto, the
petitioner has no objection.
6. The
perusal of the order passed by both the authorities and the affidavit
in reply filed on behalf of the State Government goes to show that
the main aspect on the basis of which the powers have been exercised
is that the Bye-laws of the society did provide for manufacturing of
sugar and if such was the position the powers for registration was
with the Director, Sugar and not with the Assistant Registrar. Had it
been a case where the Bye-law did provide for manufacturing
activities of sugar, the matter might have stood on different
footing. However, it
appears that even if Bye-law No.4 is considered
as it is, it excludes the activities of conversion of sugarcane crop
in sugar. Therefore, it cannot be said that the Bye-law No.4 provided
for manufacturing activity of sugar for which the powers were with
the Director, Sugar. Therefore the said ground as it is taken into
consideration by both the authorities could not be said as with
proper application of mind or valid.
7. It is
hardly required to be stated that a mere nomenclature of any society
would not confer jurisdiction upon the Registering Authority but
whether the authority has power to register the society can be
decided on the basis of its object as provided in the Bye-laws.
Therefore, the insertion of the word Rupantar , though at the
first instance may give an impression of society for conversion of
sugarcane crop. It may be that the conversion of sugarcane crop may
include sugar but if considered with Bye-law No.4, it is specifically
exclude sugar. Therefore, it cannot be said that the petitioner
society is registered with the object of manufacturing activity of
sugar from sugarcane merely because the word Rupantar is added
in its name.
8. I
would have further considered the matter on the aspect as to whether
the activity for conversion of the sugarcane crop excluding the sugar
would change the functioning of the society and as to whether the
jurisdiction would fall with the Director, Sugar or would be
available with Assistant Registrar, Cooperative Society (Panchayat).
However, the learned counsel, as recorded hereinabove, declared
before the Court that the petitioner is not desirous to press for
implementation of Bye-law No.4 if the registration is continued
excluding Bye-law No.4 and this Court may order for deletion of
Bye-law No.4 while maintaining the registration.
9. It
appears to the Court that the matter is pertaining to the grant of
registration of a society. It may be that the proposal might be
submitted by any society with the proposed Bye-laws for registration
but it is always open to the Registering Authority to delete Bye-law
if not in accordance with the policy or in contravention to the Act
or the Rules at the time when the registration is granted or the
registration can be granted with a specific condition also. As the
present petition is arising from the exercise of the powers by the
Registering Authority and the higher Authority, the matter can be
considered for exclusion or deletion of the Bye-law while maintaining
the registration of a society, more particularly when on behalf of
the petitioner an unequivocal declaration is made that Bye-law No.4
may be ordered to be deleted and the society may be permitted to
function as the society of sugarcane manufacturer for supplying
sugarcane to the sugar manufacturer.
10. In
view of the aforesaid, the registration of the petitioner society can
be maintained with two modifications. One is that it will remain as
Panchmahal Sherdi Utpadako Ni Seva Sehakari Mandli Ltd. by name
and in the object clause, Bye-law No. 2(4) shall stand deleted.
11. It
appears to the Court that if the registration is maintained as
observed earlier, the grievance on the part of the Additional
Registrar (Appeals) as well as of the State Government would not
survive and the power of registration of such society could be said
as was available with the Assistant Registrar, Cooperative Societies
(Panchayat), who has in fact exercised the powers. This Court is
inclined to take the aforesaid view in view of three peculiar
circumstances; one of continuation of the society since 1997; the
second is that no activity undertaken by the society for conversion
of any production of sugarcane, even if sugar is excluded and third
is that the declaration is also made on behalf of the society for
deletion of the word Rupantar in the name and no objection for
deletion of such Bye-law No. 2(4) providing for any activity of
conversion of sugarcane crop for any product.
12. In
view of the aforesaid, the impugned orders passed by the Additional
Registrar (Appeals) and the State Government are quashed to the
extent that the order of the Assistant Registrar, Cooperative
Societies (Panchayat) for registration of the society shall operate
with the name of the petitioner society as Panchmahal Sherdi
Utpadako Ni Seva Sahakari Mandli Ltd. and in the object clause,
Bye-law No. 2(4) shall stand deleted.
13. Respondent
No.3 shall issue corrected registration certificate by way of
compliance of order of this Court within a period of one month from
the receipt of the order of this Court.
14. Petition
is allowed to the aforesaid extent. Rule made absolute accordingly.
No order as to cost.
[JAYANT
PATEL, J.]
jani
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