MEHBOOBMIYA ANINMIYA MALEK v. DISTRICT REGISTRAR CO OP SOCIETIES & Ors.

CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 08/03/2002 C.A.V. JUDGEMENT

1.(cid:9)The petitioner of Revision Application No.139 of 1999 under Section 155 of the Gujarat Co-operative Societies Act, 1961 (For short "the Act") decided by respondent No.3 has, by filing this writ petition under Articles 226 and 227 of the Constitution of India, challenged the following three orders. a. an order dated 20/12/1998 passed under Section 32 of the Act by respondent No.1 (Annexure-A). b. an order dated 15/4/1999 passed by the respondent No.2 in Revision Application No.3 of 1999 (Annexure-B). c. an order dated 7/7/1999 passed by the respondent No.3 in Revision Application No.139 of 1999 (Annexure-C).

2.(cid:9)The facts leading to this present writ petition in a nutshell are as follows :-

2.1(cid:9)On or before 14/9/1998, the petitioner was a Chairman of Raoli Dudh Utpadak Sahakari Mandali Limited of village Raoli (Taluka : Petlad, District : Anand) (For short "the Mandali"). One Sadik ali Mahek ali Saiyad of village Savali, Taluka : Petlad, District : Anand, who was a member of the Executive Committee of Savali Dudh Utpadak Sahakari Mandali Limited made an application to respondent No.1, alleging that one Shri Mohmmad Sajid Malek, who is serving as tester in the Mandali, is brother of the petitioner, who is a Chairman of that Mandali and, therefore, the petitioner has become disqualified for holding a post of Chairman of the Mandali, in view of Byelaw 30(5) of the Bye-Laws of the Mandali read with explanation to Section 6 of the Act. On receipt of such application, the respondent No.1 called for remarks, in detail from the Mandali. In reply to letter dated 17/9/1998 of the respondent No.1, the Mandali submitted its reply dated 25/9/1998 in detail. Thereafter, respondent No.1 issued a show cause notice dated 5/10/1998 to the present petitioner as to why he should not be removed from the office of a member of the Executive Committee of the Mandali. In reply to such show cause notice, the petitioner submitted his reply dated 26/10/1998 to the respondent No.1. Thereafter, after examining the documents on record, the respondent No.1 passed an order dated 20/12/1998 (Annexure-A), by which the present petitioner was removed from the office of a member of the Executive Committee of the Mandali on the ground that the petitioner has become disqualified to continue the office of a member of the Executive Committee of the said Mandali, in view of Byelaw 30(5) of the Byelaws of the Mandali, as Shri Mohmmad Sajid Malek, the brother of the present petitioner was serving as tester in that very Mandali of which petitioner was a Chairman.

2.2(cid:9)Being aggrieved against and dissatisfied with the said order dated 20/12/1998 of respondent No.1 (Annexure-A), the present petitioner preferred one Revision Application No.3 of 1999 under Section 155 of the Act to respondent No.2. The respondent No.2, after giving opportunity of being heard to the petitioner and after hearing the arguments of the learned advocate Mr.Gandhi for the present petitioner and after making perusal of the record, the respondent No.2, by his order dated 15/4/1999 (Annexure-B) dismissed that Revision Application No.3 of 1999, preferred by the present petitioner.

2.3(cid:9)Being aggrieved against and dissatisfied with the said order dated 15/4/1999 of respondent No.2 (Annexure-B), the present petitioner, by filing a Revision Application No.139 of 1999 under Section 155 of the Act, carried the matter further to respondent No.3. After hearing the arguments of the learned Advocate Smt. Vora, who appeared for the present petitioner and after examining the order of respondent No.1 and order of respondent No.2, the respondent No.3 passed an order dated 7/7/1999 refusing to entertain the said Revision Application No.139 of 1999 preferred by the present petitioner.

2.4(cid:9)Being aggrieved against and dissatisfied with the said order dated 7/7/1999 of respondent No.3 (Annexure-C), the present petitioner has filed this writ petition. Though Articles 226 and 227 are stated in cause title of the petition, in fact, this writ petition is filed under Article 227 of the Constitution of India.

3.(cid:9)On 13/7/1999, this Court (Coram : M.R.Calla,J.) issued "Rule" and on that day, an ad-interim order was passed to the effect that the petitioner shall be allowed to function as Chairman of the Mandali, in case he has been continued to function as Chairman, so far. That order of an ad-interim relief has been continued from time to time till, this writ petition is taken up for final hearing on 20/2/2002.

4.(cid:9)Heard Mr.Shirish Joshi, learned advocate for and on behalf of Mr.Baiju Joshi, learned advocate for the petitioner and Mr.Hasmukh Patel, learned AGP for the respondents. None of the respondents has filed affidvit-in-reply.

5.(cid:9)Admittedly, the Mandali is a registered under Section 9(a) of the Act. The Mandali has got registered its own Byelaws with the Office of the respondent No.1. It is an admitted fact that on or before or around 14/9/1998, the present petitioner was a Chairman of the Mandali. The Chairman is being elected from amongst the members of the Executive Committee of the Mandali, meaning thereby, the petitioner was a first member of the Executive Committee of the Mandali and, thereafter, from amongst the members of the Executive Committee of the Mandali, he was elected as a Chairman of the Committee for one year. The member of the Executive Committee, who is elected as Chairman of the office is elected for one year. The petitioner has challenged an order of respondent No.1, who removed the petitioner from the office of the member of the Executive Committee of the Mandali on the ground that petitioner has become disqualified for continuing as a member of the Executive Committee of the Mandali, as his real brother Shri Mohmmad Sajid Malek is serving as a tester in that very Mandali, of which the petitioner was elected as a Chairman.

6.(cid:9)On the basis of an application dated 14/9/1998 of one Sadik ali Mahek ali Saiyad, the respondent No.1 processed the subject matter of that application and after calling for an explanation of the Mandali as well as explanation from the petitioner, the respondent No.1 passed an order dated 20/12/1998 (Annexure-A) by placing reliance on Byelaw 30(5) of the Byelaws of the Mandali.

7.(cid:9)Mr.Slhirish Joshi, learned advocate for the petitioner has supplied to this Court a booklet of Byelaws of the Mandali for perusal. Rule 32 of the Gujarat Co-operative Societies Rules, 1965 (For short "the Rules") speaks for the qualifications for the members of the Committee. As per Rule 32(1)(c) of the said Rules, every member of a Society, who is entitled to vote shall be eligible for appointment as a member of a Committee thereof, if, he is not otherwise disqualified for appointment as such member. Admittedly, respondent No.1 passed an order, which is also the subject matter of this writ petition is passed under Section 76B of the Act. On reading that order dated 20/12/1998 of respondent No.1 (Annexure-A), it is crystal clear that respondent No.1 has passed an order under Section 76B of the Act by taking aid of said Rule 32 of the Rules read with Byelaw 30(5) of the Byelaws of the Mandali.

Byelaw 30(5) of the Mandali speaks that a member of the Mandali will be eligible for being elected as a member of the Executive Committee provided, he fulfills the different qualifications enumerated in Clause (1) to (10), Clause 5 of the Byelaw 30 speaks that that person should not be a paid employee of the Mandali or any other Mandali or he should not be "a member of the family" of a paid employee of that Mandali. In Byelaw 30(5), it is also clarified as to who can be said to be "a member of the family". The rule making authority has referred to Section 6 of the Act in this Byelaw 30(5) of the Byelaws of the Mandali. There is no dispute for the fact that Shri Mohmmad Sajid Malek is a brother of the present petitioner and that Shri Mohmmad Sajid Malek is a paid employee of the Mandali because, he is serving as tester in the Mandali of which the petitioner is a Chairman. And, therefore, the respondent No.1 has by taking help of definition of "a member of the family" defined in explanation to Section 6 of the Act, held that the present petitioner is not qualified to become a member of the Mandali because in that very Mandali, the brother of the petitioner is serving as tester.

Explanation to Section 6 of the Act, speaks as who can be said to be "a member of the family". As per explanation to Section 6 of the Act the expression "member of family" means a wife, husband, father...., brother, sister.... and, therefore, brother of the petitioner is a member of family of the petitioner. As brother of the petitioner was a paid employee of the very Mandali, the present petitioner was not qualified to become a member in view of Byelaw 30(5) of the Byelaws read with Rule 32(1)(c) of the Rules.

8.(cid:9)Under the circumstances, the order passed by the respondent No.1 is according to law. It cannot be said that the respondent No.1 had no jurisdiction to pass such order, because he has passed this order under Section 76B of the Act. This order cannot be said to be a "perverse" order because the order is passed on admitted fact for which the petitioner cannot deny. In the circumstances, the order cannot be said to be an order passed on "no evidence". Under the circumstances, the order of respondent No.1 (Annexure-A), which has been confirmed by the respondent Nos.2 and 3 in exercise of powers conferred on them under Section 155 of the Act cannot be disturbed in this writ petition.

9.(cid:9)Inspite of the aforesaid legal position with regard to orders challenged in this writ petition, now this writ petition does not survive. On or before or around 14/9/1998, the petitioner was a member of the Executive Committee and he was elected as a Chairman. His tenure as Chairman expired after one year and, therefore, he ceased to be a Chairman on 14/9/1999. As a member of the Executive Committee of the Mandali he can hold office for three years and, therefore, he ceased to a member of the Executive Committee of the Mandali on 14/9/2001.