{"id":204883,"date":"2008-06-10T00:00:00","date_gmt":"2008-06-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/acharya-vs-registrar-on-10-june-2008"},"modified":"2018-06-12T05:24:32","modified_gmt":"2018-06-11T23:54:32","slug":"acharya-vs-registrar-on-10-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/acharya-vs-registrar-on-10-june-2008","title":{"rendered":"Acharya vs Registrar on 10 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Acharya vs Registrar on 10 June, 2008<\/div>\n
Bench: K.M.Thaker<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nSCA\/8017\/2008\t 13\/ 13\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8017 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nACHARYA\nKAMLESHKUMAR SURYAKANTBHAI & 1 - Petitioner(s)\n \n\nVersus\n \n\nREGISTRAR-\nCO-OPERATIVE SOCIETIES & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nPS CHAMPANERI for\nPetitioner(s) : 1 - 2. \nMr. JK SHAH, Asst. GOVERNMENT PLEADER for\nRespondent(s) : 1, \nNOTICE SERVED BY DS for Respondent(s) : 1 -\n3. \nMR BS PATEL for Respondent(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\nDate\n: 10\/06\/2008  \nORAL JUDGMENT<\/pre>\n
\t\tThe
\npetitioners have approached this Court with belowmentioned prayers;\n<\/p>\n
(A)\tThis Honourable
\nCourt will be pleased to issue a writ of mandamus or a writ in the
\nnature of certiorari or any other appropriate writ, order or
\ndirection directing respondents nos. 1 and 2 to remove the executive
\ncommittee of respondent No.3 bank and to appoint Administrator \u00fd
\nCustodian for reconstitution of the Committee of the respondent
\nNo.3-Society;\n<\/p>\n
(B)\tThis Honourable
\nCourt will be pleased to issue a writ of mandamus or a writ in the
\nnature of certiorari or any other appropriate writ, order or
\ndirection directing respondents No.2 to supersede the executive
\ncommittee and\/or to remove the executive of the respondent No.3
\nsociety forthwith and to appoint the officer, administrator or
\ncustodian in place thereof;\n<\/p>\n
( C)\tPending
\nadmission, hearing and final disposal of this petition, an interim
\ninjunction may kindly be granted staying the implementation,
\nexecution and operation of the impugned resolution and decision dated
\n10th May 2008 and consequently be pleased to restrain and
\nprohibit respondent No.3 or any of its officers or persons from
\nacting in any manner pursuant to the impugned resolution dated 10th
\nMay 2008 in any manner;\n<\/p>\n
(D)\tPass such other
\nand further orders as may deem fit in the interest of justice.\n<\/p>\n
In
\nview of the contention regarding  the committee’s authority to pass
\nresolution dated 10.5.2008, petition requires to be considered.
\nHence,  Rule.  Upon request of the respective Advocates and with
\ntheir consent, matter is taken up for final hearing and disposal
\ntoday.\n<\/p>\n
2.\t\tThe
\nrespondent No.3, in present case, is a co-operative bank and as per
\nthe provisions contained under the Gujarat  Co-operative Societies
\nAct, 1961 [hereinafter referred to as ‘the Act’] the respondent No.3
\nis an urban cooperative bank.  According to the submissions of the
\npetitioner, the provisions contained under Chapter X-B of the Act
\nare, therefore, applicable to it.\n<\/p>\n
3.\t\tSo
\nfar as the facts relevant for present purpose are concerned, the
\npetitioners have come out with the case that the respondent No.3,
\nbeing an urban cooperative bank, is governed by the provisions
\ncontained under Chapter X-B of the Act and more particularly by
\nprovisions under Section 115-J which, according to the submissions of
\nthe petitioners, has overriding effect over other provisions of the
\nAct, rules and bye-laws of the bank.  The petitioners have stated
\nthat the term of the executive committee of the respondent bank has
\nexpired on 31.3.2008 and that therefore there is no power,  as per
\nthe provision applicable to the respondent No.3 bank,  empowering or
\nauthorising  the members of the executive committee to continue to
\nhold in office even  after the expiry of their term.  The petitioners
\nhave further narrated, in the petition, history of certain past
\nincidents which resulted into litigation in form of Lavad Suit No.
\n476 of 2005 and 477 of 2005 wherein judgment came to be delivered on
\n8th May, 2008.  It is the case of the petitioners that the
\nlegality and validity of the said judgment has been challenged by
\nfiling appeals being Appeals No. 199 of 2008 and 200 of 2008 before
\nthe Gujarat State Cooperative Tribunal.  The petitioners have
\ndisclosed that along with the said appeals, application for interim
\nrelief also were preferred, however after hearing the parties, the
\nprayer for injunction has been rejected by the learned Tribunal.  The
\npetitioners have also made reference of an order dated 12.9.2006
\npassed by the District Registrar, under Section 23 of the Act.  After
\nstating the aforesaid and such other facts the petitioners have
\nstated that now the respondent No.3 has passed a resolution in the
\nmeeting held on 10th May, 2008 appointing Election Officer
\nand Assistant Election Officer and thereby the respondent No.3 bank
\nhas put in motion the process for election.\n<\/p>\n
4.\t\tIn
\nbackground of such facts and submissions, the petitioners have made
\nthe above referred prayers.\n<\/p>\n
5.\t\tIn
\nresponse to the notice issued by virtue of the order dated 2.6.2008,
\nMr. BS Patel has entered appearance on behalf of the respondent No.3
\nbank and Mr. JK Shah, learned AGP has appeared on behalf of the
\nrespondents No. 1 and 2.  On behalf of respondent No.3 a reply
\naffidavit has been filed wherein various contentions, including
\nobjections as regards maintainability of the petition are raised.
\nThe respondent No.3 contends, by way of the affidavit, that the
\npetitioners herein have already preferred appeal before the learned
\ntribunal, along with an application for interim stay, and such
\napplication for interim relief has been rejected by the  learned
\ntribunal by order dated 23.5.2008 and that therefore the present
\npetition, in view of the pending appeal, is not maintainable.    It
\nis further contended that if at all the petitioners have any
\ngrievance against the respondent No.3 or its functioning or the
\ndecision taken during the meeting held on 10.5.2008, then there is an
\nappropriate alternative remedy made available by  the  statute by
\nvirtue of Section 96 and the petitioners can file lavad case under
\nSection 96 and in view of such alternative remedy the petition is not
\nmaintainable and does not deserve to be entertained.  It is further
\ncontended by the respondent No.3 that no case for appointment of
\ncustodian is made out and in any case before requesting this court,
\nby invoking Article 226 of the Constitution of India, to appoint
\ncustodian and\/or to remove the executive committee of the respondent
\nNo.3, the petitioner has not approached the authority under the Act,
\ni.e., respondent No.2 and therefore also there is no cause for
\nissuing writ of mandamus as prayed for.  Besides the aforesaid
\nsubmissions, respondent No.3 has submitted that the steps for holding
\nelection have already been taken and as a step in that direction a
\nresolution dated 10.5.2008 is passed appointing, unanimously,
\nElection Officer and Assistant Election Officer and that therefore
\nalso there is no justification or merits in the subject petition.\n<\/p>\n
6.\t\tI
\nhave heard Mr. Champaneri, learned advocate for the petitioners and
\nMr. BS Patel, learned advocate for respondent No.3 and Mr. Shah,
\nlearned AGP for respondents No. 1 and 2.  Mr. Champaneri has
\nreiterated the contentions stated in the petition and has submitted
\nthat  all that the petitioners pray is that a direction may be issued
\nfor appointment of an administrator or custodian  to oversee and\/or
\nconduct the election so that the ensuing elections can be held in
\nfair manner under the authority and  supervision of independent
\nperson.\n<\/p>\n
7.\t\tIn
\nview of the fact that the resolution dated 10.5.2008 has already been
\npassed, and since the petitioner has not approached respondent No.2
\nwith  request for appointment of administrator or custodian or to
\nsupersede the committee and as there is no decision by respondent
\nNo.2 either granting or refusing such request,  granting of such
\nrelief at this stage \u00fd  particularly when resolution dated 10.5.2008
\nis passed appointing election officer \u00fd  would amount to undermining
\nthe  impartiality and independence and authority of Election Officer
\nand that therefore this Court is not inclined to and does not
\npropose, at this stage, to consider or entertain the prayer or  to
\npass an order that the executive committee may be removed or
\nsuperseded or to direct the respondent No.2  to remove or supersede
\nthe Executive Committee.\n<\/p>\n
8.\t\tFurther,
\nthe petitioners have also failed to make out a case that
\neventualities  which would necessitate appointment of custodian or an
\nadministrator exist or have now come in existence.  Even if it is
\npresumed that such  circumstances exist, then also at this stage the
\nprayers of the petitioner do not warrant consideration by this Court
\ninasmuch as before approaching the court with such request the
\npetitioners ought to have approached the respondent No.2 and ought to
\nhave made out a case before him for appointment of custodian or an
\nadministrator and if only the respondent No.2 failed to pass any
\norder, rejecting the request then the action of the petitioners for
\npreferring the present petition and seeking directions against
\nrespondent No.2 would be justified.\n<\/p>\n
9.\t\tEven
\notherwise, as per the provisions under the Act, the   circumstances
\nand eventualities on occurrence of which a custodian may be
\nappointed, are provided.  Likewise, the Act also contains the
\nprovisions prescribing circumstances or eventualities when an
\nadministrator may be appointed.  The petitioner has failed to show
\nand establish that such circumstances or eventualities have occurred.
\n Besides, it would be for the respondent No.2, in the first instance,
\nto examine the issue and satisfy himself as to whether such need has
\narisen and if he satisfied, either suo motu or on any representation,
\nthen he would take necessary steps as may be considered appropriate.
\nIt would be premature and pre-emptive, for the Court, to give at this
\nstage the directions as prayed for.\n<\/p>\n
10.\t\tIn
\nlight of the facts and circumstances narrated by the petitioners  and
\nin view of the relief prayed for by the petitioners, it is also not
\nnecessary, at this stage, to examine in greater detail the contention
\nof the petitioners that in view of the provisions contained under
\nChapter X-B and more particularly Section 115-J, the executive
\ncommittee of the respondent No.3 bank has no authority to continue to
\nhold office because its term has expired and the provision under
\nSection 115-J does not allow the committee and prohibit it to
\ncontinue to hold the office after expiry of its term.    However,
\nsuffice it to say that  the respondents have not  disputed  the
\npetitioners’ contention that the term of the committee has expired.
\nInstead, the respondents have, come out with the submission that  the
\nterm of the committee has expired which has necessitated that the 11
\nposts may be filled in, and for that very purpose the actions for
\ninitiating election process have already been taken and as a step in
\nthat direction the Election Officer and Assistant Election Officer
\nhave been appointed and that therefore there is no substance or
\nmerits in the allegations or demand of petitioners.\n<\/p>\n
11.\t\tOn
\nplain reading of the said provision, namely Section 115-J, it comes
\nout that the provisions under Chapter X-B  have an overriding effect
\nover the provisions in the Act or the Rules or the bye-laws of the
\nbank which may be contrary to the provisions under Chapter X-B.
\nChapter X-B contains Sections 115-B to 115-L.  Sections 115-K and
\n115-L contain  the saving clause and transitory provisions
\nrespectively while Section 115-J, as noticed above,  gives overriding
\neffect to the provisions under this chapter.  So far as Section 115-B
\nis concerned, the same contains definitions of the terms ‘Bank’,
\n‘Committee’, ‘Committee Member’, ‘Company’, ‘Member of a Bank’, and
\n‘Urban Cooperative Bank’, while Section 115-C prescribes
\nqualifications and disqualifications for being committee members.
\nSection 115-D provides for right to vote.  Section 115-E prescribes
\nthe functions which the committee must ensure and Section 115-G
\nprovides for creation of Credit Equalization Fund.    Section 115-H
\nmakes provision for taking cognizance and punishment for offences and
\nby Section 115-I provisions under Section 84 are made applicable to
\nspecify bank with the modification mentioned in Section 115-I.\n<\/p>\n
12.\t\tFrom
\nthe aforesaid, it becomes clear that so far as the controversy or
\ndispute in present matter is concerned, the said provisions, except
\nSection 115-J and thereby Section 115-E,would not have much
\nrelevance.\n<\/p>\n
13.\t\tThis
\n brings in picture the provisions under Section 115-E.  As per the
\nsaid provision, a Chairman or a Vice Chairman or the Managing
\nDirector or a Committee are not entitled to hold office continuously
\nfor more than 2 terms and can do so only after a  hiatus of 2 terms.
\nThus, if the petitioners want to rely upon and invoke the provisions
\nunder Section 115-E against the  Committee, then it would be
\nnecessary for the petitioners to establish that the Chairman or the
\nVice Chairman  or the Managing Director or the Committee or all of
\nthem have been holding office continuously for more than 2 terms.  At
\nthis stage, it would not be out of place to take note of  submissions
\nadvanced by Mr. Patel on behalf of respondent No.3 by relying upon
\nthe bye-laws of respondent No.3 bank.  Mr. Patel relied upon the
\nprovisions contained under Bye-law No. 28 which, inter alia, provides
\nthat the term of the 11 members of the board shall be of 3 years and
\nupon expiry of such term, the elected members of the existing board
\nshall continue to hold the office until the new elected members take
\nover the charge after election.   The said bye-law of the respondent
\nsociety permit the existing members to continue to hold office until
\nnew members are elected.\n<\/p>\n
14.\t\tIf
\n the petitioners establish the said fact, then only the petitioners
\ncan invoke the said provision and press in service the said provision
\nagainst the said officers or the committee.  There is no specific
\naverment in the petition categorically suggesting that any of the
\nmembers or officers have completed continuous two terms in the
\noffice.  The petitioners have failed to establish that all or any of
\nthe 11 members have completed continuously 2 terms in office and
\nuntil that is established, the provisions under Section 115-E would
\nnot be attracted.  Thus, their actions e.g. Passing resolution on
\n10.5.2008 cannot be held to be without authority. Besides this, the
\npetitioners do not appear to have approached the respondent No.2 with
\naforesaid facts.\n<\/p>\n
15.\t\tThus,
\nwhen there is no foundation to attract and\/or apply provisions under
\n115-E, the issue of any of the bye-laws being contrary to the
\nprovisions under Chapter X-B would  not arise and consequently the
\nquestion of applicability of Section 115-J also would not arise.
\nThe provision under bye-law 28  provides that until the new body is
\nelected, members of the existing body would continue.  If in any
\ngiven case the existing body or any member of the body completes
\ncontinuously two terms in the office, then certainly the said
\nbye-law,  in view of provision under Section 115-E r\/w. Section
\n115-J, would not help such member to continue to hold the office
\nuntil the new body takes over.     However, so long as the said
\neventuality does not come in picture or is not established, (i.e., so
\nlong as it is not established that the existing body or any of its
\nmembers has completed continuously two terms in office) question of
\nBye-law 28 being contrary to Section 115-E or the question of 115-E
\nbeing attracted would not arise.\n<\/p>\n
16.\t\tIn
\nthis view of the matter,  it becomes clear that the petitioners have
\nfailed to make out the case that the said resolution dated 10.5.2008
\nis without authority in law.  It is also relevant to note that Mr.
\nPatel has pointed out that after the resolution dated 10.5.2008 the
\nelection programme is already notified as per which the dates for
\nsubmitting nominations, verification of nomination, publication of
\nlist of candidates\/contestants and date for voting have already been
\nnotified.  As per the said programme, the date for voting is
\n22.6.2008.  The said details bring out that the election process has
\nalready commenced and therefore also now there is no justification
\nfor this Court to interfere in the matter, much less to now stay the
\nimplementation and operation of the resolution dated 10.5.2008.\n<\/p>\n
17.\t\tIt
\nis pertinent to note that on one hand the petitioners seek that the
\nnew body should come in existence  because the term of the existing
\nbody has expired, whereas on the other hand the petitioners also pray
\nthat the resolution dated 10.5.2008 by virtue of which Election
\nOfficer has been appointed, may be  stayed and the respondent No.3
\nmay be restrained from acting in pursuance of the notification, which
\nwould mean arresting the election process.\n<\/p>\n
18.\t\tSince
\nthis Court has come to the conclusion that the petitioners have not
\nestablished that the resolution is  without authority in law, there
\nis no need to examine other issue or other relief prayed for in the
\npetition, i.e., for appointment of administrator or custodian because
\nby the said resolution dated 10.5.2008 the Election Officer and
\nAssistant Election Officer have been appointed and subsequently under
\ntheir authority, election programme has also been notified as a
\nresult of which election process is in motion.   There is no reason
\nor justification to interfere with the said election process and at
\nthis stage, even otherwise, in view of the said development, the
\nquestion of appointment of custodian or administrator would not
\narise.\n<\/p>\n
19.\t\tFurther,
\nif the facts are presented before the respondent No.2 and if the
\nrespondent No.2 is satisfied either suo motu or upon submissions by
\nthe petitioners or any other interested person, that the affairs of
\nrespondent No.3 bank require appointment of custodian or an
\nadministrator, then it would be for the respondent No.2 to take
\nappropriate decision and action.  However, so long as the said
\nexercise is not undertaken, there would be no justification for
\nissuing any direction against respondent No.2 to appoint an
\nadministrator or custodian.  It would, however, be open for the
\npetitioners to approach the respondent No.2 so as to make out a case
\nbefore him and satisfy the respondent No.2 that affairs of respondent
\nNo.2 bank warrants appointment of an administrator or  custodian.\n<\/p>\n
20.\t\tIn
\nlight of the aforesaid discussion and the facts of present case, the
\npetition is not required to be entertained at this stage.  Rule
\ndischarged.  No order as to cost.\n<\/p>\n
\t\t\t\t\t\t\t[
\nK.M. Thaker, J. ]<\/p>\n
rmr.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Acharya vs Registrar on 10 June, 2008 Bench: K.M.Thaker SCA\/8017\/2008 13\/ 13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8017 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-204883","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAcharya vs Registrar on 10 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/acharya-vs-registrar-on-10-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Acharya vs Registrar on 10 June, 2008 - 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