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SCA/4353/2011 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4353 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA Sd/-
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
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
=========================================================
UMESHBHAI
SHANTILAL SHAH - Petitioner(s)
Versus
AUTHORISED
OFFICER & COOPERATIVE OFFICER ATTACHED TO (MARKET & 3 -
Respondent(s)
=========================================================
Appearance
:
MR
VC VAGHELA with MR DILIP B RANA
for
Petitioner(s) : 1,
MS MONALI BHATT ASSTT GOVERNMENT PLEADER for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 11/04/2011
ORAL
JUDGMENT
(Per
: MR.JUSTICE D.H.WAGHELA)
1. Rule
of which notice is waived by learned A.G.P. and learned counsel
Mr.Vaghela, appearing for respondents. The petition was heard for
final disposal, by consent and at the request of learned counsel on
both sides.
2. The
petitioner has called into question order dated 25.3.2011 of
Authorized Officer and Co-operative Officer (Markets) in the office
of District Registrar of Co-operative Societies, Vadodara, whereby
objection of the petitioner to inclusion of the names of members of
the managing committee of respondent Nos.3 and 4 was rejected. The
controversy revolves around pure question of law as to whether
members of the co-operative society, which has been wound up, could
be included in the final list of voters for election to the
Agricultural Produce Market Committee concerned.
3. There
is no dispute about the facts that respondent No.3 co-operative
society is ordered to be wound up on 08.10.2010 and respondent No.4
co-operative society is ordered to be wound up on 04.02.2009. The
only ground mentioned in the impugned order for including the names
of members of the managing committee of those two co-operative
societies is that in spite of orders for winding up and appointment
of liquidator, the liquidator has not actually taken over charge and
the managing committees had continued to manage the affairs of the
co-operative societies concerned. Provisions of the Gujarat
Co-operative Societies Act, 1961 contains in its Chapter X, the
provisions for liquidation and winding up of co-operatives societies
and relevant provisions of Sec.108 of that Act read as under:
“S.108 Appointment
of Liquidator:
(1) …. …. ….
(2) …. …. ….
(3) When
a final order is made confirming the interim order, the officers of
the society,
(a) shall
hand over to the liquidator the custody and control of any property,
effects and actionable claims and any books, records, and other
documents pertaining to the business of the society, which for any
reason are not handed over to the liquidator under sub-section (2) at
the time when an interim order was made.
(b) shall
vacate their offices and while winding up order remains in force, the
general body of the society shall not exercise any powers.
(4) The
liquidator shall, subject to the general control of the Registrar,
exercise all or any of the powers mentioned in section 110. The
Registrar may remove him from his officer and appoint another in his
place, without assigning any reason.
(5) The
whole of the assets of the society shall on the appointment of the
liquidator vest in him and notwithstanding anything contained in any
law for the time being in force, if any immovable property is held by
him on behalf of the society, the title over the land shall be
complete as soon as the title on the ground of dispossession, want of
possession or physical delivery of possession.”
(6) …. …. ….
4. In
view of the admitted fact that Registrar has issued final order for
winding up of the respondent societies concerned way back in the year
2009 and 2010, it was apparently illegal and unauthorized for anyone
else, including the managing committee or the general body of
co-operative society, to manage the affairs of the societies and more
particularly when officers of the societies were mandatorily required
to vacate their offices and not exercise any powers, the argument
that the liquidator was required to take over charge cannot be
accepted.
5. In
the peculiar facts of the case and clear provisions of law and in
view of the fact that deletion of the names of the members of the
managing committees of respondent Nos.3 and 4 from the final voters’
list is not likely to in any way hamper or impede the process of
election as also the fact that the petitioner has approached the
court before publication of the final list of voters, we consider it
an extraordinary and exceptional case to exercise the writ
jurisdiction of this court in order to prevent illegality being
committed during the process of election. Accordingly, the petition
is allowed with the direction that the impugned order dated 25.3.2011
shall stand partly set aside as far as the objection of the
petitioner in respect of the office bearers of respondent Nos.3 and 4
were concerned and with the further direction that names of the
members of the managing committees of respondent No.3 and 4 shall
stand deleted from the final voters’ list prepared for the election
to respondent No.2. Rule is made absolute accordingly, with no order
as to costs. Direct service.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(
R.M.Chhaya, J.)
(KMG
Thilake)
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