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SCA/14013/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14013 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=====================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? YES
2
To
be referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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?NO
5
Whether
it is to be circulated to the civil judge?NO
=====================================
SHREE
BHAVNAGAR NAGRIK SAHAKARI BANK LTD - Petitioner(s)
Versus
STATE
OF GUJARAT, THROUGH DEPUTY SECRETARY (APPEALS) & 3 -
Respondent(s)
=====================================
Appearance :
MR
SHIRISH JOSHI for Petitioner(s) : 1,
MS JIRGA JHAVERI, AGP for
Respondent(s) : 1,
None for Respondent(s) : 2,
4,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 01/12/2010
ORAL
JUDGMENT
1.0 Rule.
Learned advocate Mr. JT Trivedi for respondent no. 3 and learned
Assistant Government Pleader Mr. Jirga Jhaveri waive service of
process of Rule.
2.0 Heard
learned advocate Mr. Joshi for the petitioner. The petitioner –
Bhavnagar Nagrik Sahakari Bank Ltd. is before this Court through its
Chairman/Manager being aggrieved by the priorities fixed by the
liquidator of Shri Vardhman Co-operative Bank Ltd., a copy of which
is produced at page 49.
2.1 Against
the fixation of priorities, the petitioner preferred an appeal before
the Registrar, Co-operative Societies, Gujarat State, Gandhinagar,
who decided the appeal by judgment and order dated 5th
February 2010 and rejected Appeal No.79 of 2009. The learned
advocate for the petitioner effectively demonstrated that the
Additional Registrar (Appeals) has decided the appeal by stating
therein that, ‘the liquidator has not disallowed the claim of the
applicant (present petitioner); that the applicant (present
petitioner) is already included in the Priority List at serial No. 5’
and very cursorily, it is also mentioned in the order that, ‘overall,
the priorities fixed by the liquidator do not warrant any
interference’. This is nothing but shirking of responsibility of
deciding as to whether, the liquidator has rightly fixed the
priorities or not. The Additional Registrar (Appeals) ought to have
decided that, as to whether the priorities fixed by the liquidator
are properly fixed or not.
2.2 Against
the order of Additional Registrar (Appeals), the petitioner
approached the Deputy Secretary (Appeals), Agriculture and
Co-operation Department, Gandhinagar, who too, dismissed the same and
confirmed the order of Additional Registrar (Appeals) dated 5th
February 2010. The learned advocate for the petitioner invited
attention of the Court to the observations made by the Deputy
Secretary (Appeals) that, ‘taking into consideration the contents of
Section 110-E of the Gujarat Co-operative Societies Act, there is no
provision for hearing the applicant (present petitioner)’.
3.0 The
right of hearing is to be read in every provision, where the
authority decides the right of a person. In the present case, it is
the liquidator who decided the right of the petitioner by putting the
petitioner at serial No. 5 in the Priority List and by that, it
adversely affected the right of the petitioner without affording any
hearing to the petitioner. To such an order, the higher authorities
– appellate authority has affixed the seal of approval by
saying that, ‘the liquidator has not disclaimed the claim of the
petitioner’ and the Deputy Secretary (Appeals) has said that, ‘there
is no provision for hearing and therefore, the order of the
Registrar, does not warrant any interference’.
3.1 In
the opinion of this Court both these orders are suffering from
‘non-application of mind’ and also ‘ignorance of the settled position
of law’ to the effect that, right of hearing is required to be read
in every provision. Therefore, this petition deserves to be allowed.
The Priority List at page 49, order passed by the Additional
Registrar (Appeals), and order passed by the Deputy Secretary
(Appeals) are quashed. The exercise of fixing the priority be
undertaken afresh by the liquidator, after giving necessary hearing
to all the concerned parties and priorities be fixed de novo.
3.2 At
the request of learned Assistant Government Pleader
Ms. Jirga
Jhaveri it is clarified that quashing of these orders does not mean
that the Court has pronounced anything on the claim of the
petitioner. The only pronouncement is that the action of fixing the
priorities by the liquidator without affording any hearing to the
petitioner is unknown to law and therefore, it is quashed along with
the order passed by the Additional Registrar (Appeals) and order
passed by the Deputy Secretary (Appeals).
3.3 The
petition is allowed. Rule is made absolute with no order as to
costs. Direct service is permitted.
3.4 It
goes without saying that when it comes to the Official Liquidator to
decide the priorities, he will fix the priorities in accordance with
law without being influenced by the factum of allowing of this
petition.
3.5 If
any respondent is aggrieved by this judgment and order then can
approach this Court within three weeks from the date of service of
this judgment.
[
Ravi R. Tripathi, J. ]
hiren
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