Dismissed

Mehsana District Milk Producers Union Ltd. v. Registrar Cooperative Societies

Gujarat HC3 May 2018LPA/887/2017

Case brief

AI extract

What is this about?

Challenge by a district milk producers' co-operative union and its elected managing committee to a show-cause notice issued by the Registrar under Section 81 proposing supersession. The High Court dismissed the appeals, holding the Registrar had jurisdiction, that writ petitions were premature at the show-cause notice stage, and that the objections could be raised in reply.

What the court decided

AI extract

Mehsana District Milk Producers Union Ltd. Vs… — Cooperative Societies | Gujarat HC (2018)

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C/LPA/887/2017 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 887 of 2017

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In SPECIAL CIVIL APPLICATION NO. 18836 of 2016 With R/LETTERS PATENT APPEAL NO. 888 of 2017 In SPECIAL CIVIL APPLICATION NO. 18837 of 2016

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and

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HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?

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2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the NO judgment ?

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4 Whether this case involves a substantial question of law NO as to the interpretation of the Constitution of India or any order made thereunder ?

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MEHSANA DISTRICT MILK PRODUCERS UNION LTD

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Versus

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REGISTRAR COOPERATIVE SOCIETIES

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Appearance:

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MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR DIPEN DESAI(2481) for the PETITIONER(s) No. 1

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MR P.K. JANI, ADDITIONAL ADVOCATE GENERAL WITH MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and

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HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 03/05/2018

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C/LPA/887/2017 CAV JUDGMENT

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COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)

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1. Both these appeals are filed under Clause 15 of

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the Letters Patent against the common CAV judgment
dated 12.06.2017, rendered by the learned Single
Judge in Special Civil Application No.18836 of 2016
with Special Civil Application No.18837 of 2016, by
which the learned Single Judge has dismissed both the
petitions. The appellants – original petitioners
have, therefore, preferred these appeals.

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2.In these appeals, common issue is raised for our

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consideration and, therefore, with the consent of the
learned counsel appearing for the parties, both these
appeals are being heard together and decided finally
at the admission stage. For the sake convenience, the
facts narrated in special Civil Application No.18837
of 2016 are recorded.

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3.The factual matrix of the present case is as
under:

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3.1It is stated that the petitioners are the
elected members of the Managing Committee of the

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Mehsana District Co-operative Milk Producers Union
Limited (hereinafter referred to as “the Union” for
the sake of convenience). The said Union is District
Level Milk Producers Union and is a specified society
within the meaning of Section 74(C) of the Gujarat
Co-operative Societies Act, 1961 (hereinafter
referred to as “the Act” for short). The petitioners
have stated in the memo of petition about various
litigations filed by or on behalf of the Union and/or
its Member/Chairman etc. Relying upon such averments
made in the petitions and giving the history of the
various litigations, it is stated that at all stages,
political machinery of the ruling party has misused
the statutory powers of the Officers, be it at the
stage of holding the elections or even thereafter.

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3.2It is further stated that petitioners Nos.1 to
12 are functioning as elected members of the Managing

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Committee of the Union. However, three elected
Directors, who are sponsored and supported by ruling
party continued to make all kinds of frivolous
allegations against the Managing Committee and with
the support of the State authorities continued to

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disrupt the functioning of the Managing Committee in
all possible manner. It is alleged that the General
Body Meeting of the Union was also held on 26.06.2016
wherein, on the date of the General Body Meeting,

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three persons supported by ruling party along with
unauthorised persons sought to enter the place where
the General Body Meeting was to be convened only with
a view to disrupt the proceedings of the General
Body. The said three persons wanted to enter along
with the unauthorised persons who were stopped from
entering and, therefore, the said three persons did

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not attend the General Body Meeting and filed an FIR
before the Mehsana Police Station. It is stated that
in the said meeting, 808 members, out of total 1130

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members, remained present and the General Body
unanimously resolved in its meeting that the said
three persons are acting against the interest of the
society and trying to create hindrances in the smooth

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functioning of the society and, therefore, the
General Body unanimously resolved to take action
against the said three elected Directors and resolved
to suspend them as Directors.

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3.3 Against the said action of the General Body, Lavad Suit No.116 of 2016 was filed, in which the Board of Nominees, Mehsana, had granted interim relief on 23.06.2016 in favour of the concerned Directors.

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3.4 It is, thereafter, stated that respondent No.1-

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Registrar of Co-operative Societies issued the
impugned Show-cause Notice dated 27.10.2016 under
Section 81 of the Act relying upon the Report dated
29.07.2016 given by the District Registrar, Co-
operative Societies, Mehsana. The petitioners,
therefore, filed the captioned petitions in which the
petitioners prayed that the Show-cause Notice dated
27.10.2016, issued by respondent No.1- Registrar Co-
operative Societies, be quashed and set aside.

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3.5That the learned Single Judge has, by the
impugned common CAV judgment, dismissed both the
petitions and, therefore, the present appeals are
filed.

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4. Heard learned Senior Advocate Mr.Mihir Joshi

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assisted by learned advocate Mr.Dipen Desai for the
appellants and learned Additional Advocate General
Mr.P.K. Jani assisted by learned Assistant Government
Pleader Mr.K.M. Antani for the respondents.

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5.Learned Senior Advocate Mr.Mihir Joshi has

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mainly raised the following contentions:

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5.1It is contended that none of the preconditions
of Section 81 of the Act are attracted. The grounds
on which the Show-cause Notice is issued are with
regard to the decisions taken by the General Body and
it is Annual General Meeting dated 26.06.2016. The
said decisions have been taken unanimously by the
General Body and not by the Board of Directors. It is
submitted that Section 81 of the Act can be attracted
only if the Committee of Management makes persistent
default or is negligent in performing its duty or has
committed any act prejudicial to the interest of the
society or its members. However, in the present case,
none of the decisions in question or in respect of
which the impugned Show-cause Notice is issued are
taken by the Management Committee but are taken by

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the General Body. Thus, the Registrar has no
authority to initiate the proceedings under Section
81 of the Act.

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5.2Section 73 of the Act gives final authority to
the General Body and the General Body is supreme in
respect of affairs of any society. The said
authorities or the Registrar has no power to question
the decisions taken by the General Body.

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5.3What is the interest of the Society has to be
left to the General Body and not the State Government
or the State Authorities. If the decision of the
General Body is illegal in any manner, the aggrieved
party has a right to challenge the said resolution of
the General Body before the Board of Nominees under
Section 96 of the Act. In the present case, three
Directors have already availed the remedy by filing
Lavad Suit Nos.116 of 2016 and 144 of 2016 before the
Board of Nominees wherein the injunction has been
granted in favour of the said Directors. Thus, there
was no reason to initiate the proceedings under
Section 81 of the Act.

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5.4Respondent No.1 has relied upon the Report dated
29.07.2016 of the District Registrar, Mehsana. The
so-called Report is prepared behind the back of the
petitioners and also the Union. No opportunity was
given before submitting the said Report by the
District Registrar. A copy of the said Report is not
furnished to the petitioners though the same is
relied upon. Therefore, there is a clear violation of
principles of natural justice.

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5.5The District Registrar is on the Board of
Directors of the Union as nominee of the Registrar,
therefore, he cannot inquire into any affairs and he
cannot make any Report. The State Government issued
GovernmentResolutiondated15.04.2005and
Notification dated 26.04.2005 whereby it was resolved
that in the society where the Registrar is a Member
of the Board of Directors, a separate Committee is
constituted to exercise powers of the Registrar under
various sections including Section 81 of the Act.
Thus, the Registrar is acting as a Judge of his own
cause and, therefore, the impugned notice is without
jurisdiction.

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5.6As per Bye-law No.35 of the Union, there shall
be one representative nominated by the Registrar in
the Board of Directors of the Union. Thus, it is the
Registrar’s nominee who is the Director and,
therefore, in capacity of Principal, he himself
becomes the Director of the Union. Once the Registrar
has nominated his representative, the representative
who appears as a Director in the Board of Directors
acts as a representative or nominee of the Registrar,
therefore, the Registrar cannot question any decision
where his representative or his nominee is a part.

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5.7The impugned Show-cause Notice issued under

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Section 81 of the Act is without authority of law and
without jurisdiction. As per proviso to Article 243ZL
of the Constitution of India, a board of a co-
operative society shall not be superseded if there is
no share capital of the State Government or loan or
financial assistance of the Government or any
guarantee by the Government. In the case of the
appellants Union, there is no Government share
holding or any loan or financial assistance by the
Government. Therefore, the Board of the appellant

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Union cannot be superseded, hence, the notice is
without jurisdiction.

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5.8Though 97th Constitutional amendment is set aside
by the Division Bench of this Court in the case of
Rajendra N. Shah V/s. Union of India reported in
2013(2) GLR 1698,the very 97thConstitutional
amendment has been relied upon by the Honourable
Supreme Court in the case of Vipulbhai M. Chaudhari

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V/s. Gujarat Co-operative Milk Marketing Federation

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Limited reported in (2015) 8 SCC 1 wherein the
HonourableSupremeCourtrelyingon97th

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Constitutional amendment rejected the appeal filed
before it. The Honourable Supreme Court has, in
various paragraphs, specifically placed reliance upon

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the 97th Constitutional amendment. Thus, the judgment
of the Division Bench of this Court in the case of
Rajendra N. Shah V/s. Union of India (supra) is
impliedly overruled.

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5.9Without prejudice to the aforesaid contention,

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it is further submitted that by way of 97th
Constitutional amendment, Article 19(1)(c) and

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Article 43B have been amended. The said amendment has
not been set aside and the same is still operative.
By the amendment made in Article 19(1)(c) of the
Constitution of India, it is made a fundamental right
to form a co-operative society and by inserting
Article 43B, it is made mandatory for the State
Government to endeavour to promote voluntary
formation, autonomous functioning, democratic control
and professional management of co-operative
societies. Thus, it is mandatory for the State
Government to allow autonomous functioning and
democratic control in a co-operative society. By
issuing the impugned Show-cause Notice, the said
provision is violated and, therefore, the same is
required to be quashed and set aside.

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5.10The learned Single Judge has not properly
appreciated all the aforesaid contentions and on the
contrary, committed an error in observing that
financial irregularities and scam worth Rs.1,000
crores is committed, though no such allegation is
made by the respondents nor it is contended by the
respondents.

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5.11The learned Single Judge has committed an
error by upholding the allegation made in the Show-
cause Notice on merits, though the learned Single
Judge has held on one hand that the petition at the
stage of Show-cause Notice is not required to be
entertained. Still, the learned Single Judge has
given findings on merits of the charges levelled in
the Show-cause Notice.

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Section 81 of the Act is vitiated by the malafides

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and is in colourable exercise of powers. It is
contended that since the party in power could not
secure the majority in the Board of Directors and

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only three Directors were sponsored by the party in
power could get elected, the Show-cause Notice is
issued by respondent No.1 at the behest of the party
in power to remove the democratically elected body.

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5.13Learned Senior Counsel Mr.Mihir Joshi has
referred various paragraphs of the impugned judgment
of the learned Single Judge and contended that such
contentions were never taken by the appellants and,

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therefore, there was no occasion to make adverse
observations by the learned Single Judge on those
aspects.

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5.14In view of the aforesaid contentions,

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learned Senior Counsel has placed reliance upon the
following decisions:

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(1)Ram Murti Versus Bhola Nath reported in
1984(3) SCC 111

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(2)The State of Madhya Pradesh Versus The
State of Maharashtra and others reported in
(1977) 2 SCC 288

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(3)Ham Shankar Pandey Versus Uttar Pradesh
Police Station Officer, P.S. Kotwali, Ghazipur
reported in 1995 AlHC 2926

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(4)Lanka Venkateshwarlu (Dead) By Lrs. Versus
State of Andhra Pradesh and others reported in
(2011) 4 SCC 363

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(5)J.N. Chaudhary and others Versus State of
Haryana and others reported in (2014) 11 SCC 249

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(6)Oryx Fisheries Private Limited Versus Union
of India and others reported in (2010) 13 SCC
427

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(7)Siemens Limited Versus State of Maharashtra
reported in 2006(12) SCC 33

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(8)State of Madhya Pradesh and others Versus
Sanjay Nagayach and others reported in (2013) 7
SCC 25

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(9)Vipulbhai M. Chaudhary Versus Gujarat
Cooperative Milk Marketing Federation Limited
and others reported in (2015) 8 SCC 1

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(10) Andhra Pradesh Dairy Development

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Corporation Federation Versus B.Narasimha Reddy
and others reported in (2011) 9 SCC 286

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(11)Thalappalam Service Cooperative Bank
Limited and others Versus State of Kerala and
others reported in (2013) 16 SCC 82

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(12)Commissioner of Central Excise, Bangalore
Versus Brindavan Beverages (P) Ltd. and others
reported in (2007) 5 SCC 388

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6.On the other hand, learned Additional Advocate
General Mr.P.K. Jani has mainly raised the following
contentions:

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6.1 The petition, which is filed at the Show-cause

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Notice stage, has been rightly dismissed by the
learned Single Judge and the learned Single Judge has
rightly declined to exercise the powers under Article
226 of the Constitution of India. The petitioners can

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raise all the contentions which are raised in the
petitions as well as in these appeals before
respondent No.1 and, thereafter, appropriate order
would be passed by respondent No.1, in accordance
with law.

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6.2The requirements of Section 81 of the Act are
complied with and in fact, Section 81(1) of the Act
has a wide scope of operation. All the issues stated
in the Show-cause Notice clearly fall under Section
81 of the Act. Thus, it cannot be said that the Show-
cause Notice is bad.

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6.3Learned Additional Advocate General has referred
various allegations made in the impugned Show-cause
Notice and, thereafter, contended that the
proceedings under Section 81 of the Act are justified
by issuance of the Show-cause Notice by respondent
No.1 and the said notice cannot be termed as without

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jurisdiction as alleged by the appellants.

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6.4The District Registrar is different from the
Registrar of Co-operative Societies. If the District
Registrar is one of the Directors, that does not
preclude the Registrar of Co-operative Societies
under Section 81 of the Act to initiate any
proceedings. Hence, it does not amount to being judge
of own cause. If the proposition as canvassed is
accepted, every Co-operative Society would frame bye-
laws making such prescriptions for the District
Registrar as Board of Director and the operation of
Section 81 of the Act would in such case become

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complex, which can never be the intent of the
statutory provisions. Hence, the contention of the
appellants on this aspect is misconceived and the
learned Single Judge has rightly not entertained such
contention.

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6.5 Merely because different statutory powers are

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invoked by the statutory authorities under the Act
for the alleged irregularities/ illegalities
committed by the Union and/or its Office Bearers

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and/or its Chairman for which various litigations are
filed before this Court and before the Honourable
Supreme Court, that does not mean that the impugned
Show-cause Notice is issued by respondent No.1 with
malafide intention. Respondent No.1 is authorised to
issue notice under Section 81 of the Act for the
alleged act or omission of the petitioners and,
therefore, the history of previous litigations is
irrelevant for deciding the present issue.

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6.6Both the petitions were filed at the Show-cause

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Notice stage. The petitioners have not submitted
reply to the said Show-cause Notice and respondent

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No.1, after considering the reply, will pass
appropriate order, in accordance with law. After the
order of respondent No.1, there is a provision of
filing an appeal before the Government and,
therefore, the petitions, at the issuance of the
Show-cause Notice stage, are rightly not interfered
with by the learned Single Judge. The present case
does not fall within the exception of the decisions

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rendered by the Honourable Supreme Court wherein the
Honourable Supreme Court has held that the petition

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at the Show-cause Notice stage is maintainable under
certain circumstances.

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6.7Part IXB of Article 243ZL of the Constitution of
India, by way of 97th amendment, has been introduced
with effect from 15.02.2012 and Part-IXB of the
Constitution was declared as unconstitutional by
judgment delivered on 22.04.2013 in the case of
Rajendra N. Shah V/s. Union of India (supra). Against
the said decision, Special Leave Petition is filed
before the Honourable Supreme Court which is pending
and no stay is granted by the Honourable Supreme
Court. Article 19(1)(c) of the Constitution of India
is required to be read with Article 19(1)(4) of the
Constitution of India. Thus, the contention of the
appellants with regard to the fundamental right
guaranteed under Part-III of the Constitution of
India is not unrestricted.

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6.8The agenda of meeting dated 24.06.2016, which is
circulated on 10.06.2016, was neither forwarded to
all concerned nor placed on record of the petitions
submitting that it confirms the selectiveness of the

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petitioners in hiding material information from the
Court. No Annual General Meeting was called upon in
time as provided under Section 77 of the Act. Thus,
there is no compliance of Sections 77(2) and 77(3) of
the Act. Though Baldevbhai, Lalubhai and Rajendrabhai
were nominated to the Board of petitioners’ Union as
provided under Section 80(2) of the Act, they are not
called for in some meetings, which confirms the
malafide intention of the petitioners showing that
they have no regards for rule of law. It is further
submitted that though there was an injunction granted
by the Board of Nominees, the petitioners have
continued their disobedience of the order of the
Board of Nominee.

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6.9 There are certain observations made by the

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learned Single Judge which is not a part of the Show-
cause Notice. However, the said observations may be
deleted by this Court and respondent No.1 may be
directed to decide the issue without being influenced
by any of the observations and conclusions made by
the learned Single Judge in the impugned judgment.

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6.10Learned Additional Advocate General has
placed reliance upon the following decisions:

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(1)Rajendra N. Shah V. Union of India and
another reported in 2013(2) GLR 1698

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(2)The State of Maharashtra Vs. Babulal
Kriparam Takkamore and others reported in AIR
1967 SC 1353

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(3)Sawarn Singh and another Versus State of
Punjab and others reported in (1976) 2 SCC 868

¶151

(4)Joint Registrar of Co-operative Societies,
Madras and others Vs. P.S. Rajagopal Naidu,
Govindarajulu and others reported in AIR 1970 SC
992

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(5)Special Director and another Versus Mohd.
Ghulam Ghouse and another reported in (2004) 3
SCC 440

¶153

(6)Union of India and another Versus Kunisetty
Satyanarayana reported in (2006) 12 SCC 28

¶154

(7)Union of India and another Versus Vicco
Laboratories reported in (2007) 13 SCC 270

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7. Having heard the learned advocates appearing for

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the parties and having gone through the material
produced on record, it is revealed that the
petitioners are elected members of the Managing
Committee of the Union. Respondent No.1 issued Show-
cause Notice dated 27.10.2016 under Section 81 of the
Act and, therefore, the petitioners filed the
captioned petitions challenging the said Show-cause
Notice on various grounds as discussed hereinabove.
At the outset, we would like to refer the provisions
contained in Section 81 of the Act, which reads as
under:

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“ 81. Supersession of a committee and appointment of a Committee or Administrator: -

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(1) If, in respect of a committee of a society having the Registrar as its member, the State Government and in respect of a committee of a society of a society which does not have the Registrar as its member, the Registrar, is of the opinion that-

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(I) the committee peristently makes default; of

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(II) the committee is negligent in the performance of its duties imposed on it by or under this Act or the rules made thereunder or

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they bye-laws; or

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(III) the committee has committed any act prejudicial to the interest of the society or its members; the State Government or, as the case may be, the Registrar, after giving the committee an opportunity of being heard, within fifteen days from the date of issue if notice, by an order in writing, supersede the Committee and appoint -

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(a) a Committee, consisting of one or more members of the society, not being the members of the committee superseded under this sub-section, or

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(b) an Administrator from amongst the officers of the Co-operation Department of the State Government - to manage the affairs of the society for a period not exceeding one year as may be specified in the order, which period may, at the discretion of the State Government or the Registrar, as the case may be, be extended from time to time, so, however, the term of the Committee or the Administrator shall be, the remaining term of the committee in whose place he is appointed or two years in aggregate, whichever is less.

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(2) Before passing an order under SubSection(1), the State Government or the

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Registrar, as the case may be, shall consult the co-operative financing institution if such society is indebted to it.

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(3) The Committee or Administrator so appointed shall, subject to such instructions and control of the State Government or the Registrar, as the case may be have power to exercise all or any of the functions or the committee or of any officer or the society, and take all such action as may be required in the interests of the, society.

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(4) The Committee or the Administrator appointed under sub-section (1)shall arrange to hold the election of the committee of the society at such time as directed by the State Government or the Registrar, as the case may be, but not later than the period as specified in sub – section(1);

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Provided that the Committee or the Administrator shall arrange to hold elections for constitution of a new committee or a society in the cooperative credit structure within a period of six months from the date of the order of supersession of the said Committee.

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(5) All acts done or purported to be done by the Committee or Administrator during the period during which the affairs of the society are carried on by the Committee or Administrator

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appointed under Sub-Section (1) shall be such as may be prescribed and the same shall be paid from the fund of the society.

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(6) The remuneration of members of the Committee or the Administrator appointed under sub-section (1) shall be such as may be prescribed and the same shall be paid from the fund of the society.

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(7) The members of the committee which has been superseded under sub-section (1), shall not be eligible to become a member of the committee of the same society for a period of six years from the date of supersession of such committee.”

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8.From the aforesaid provision, it is clear that

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respondent No.1 is empowered to issue Show-cause
Notice under Section 81 of the Act, if the

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administration of the society or the committee has
persistently made any default or negligent in

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performing the duties or committed any act
prejudicial to the interest of the society. Thus, the
competent authority has wide powers to supersede the
committee under the aforesaid contingencies. The
captioned petitions were filed at the issuance of
Show-cause Notice stage and, therefore, in the

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present proceedings, we would like to examine whether

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respondent No.1 is empowered to issue such Show-cause
Notice or not and whether the issuance of Show-cause
Notice is beyond the jurisdiction of respondent No.1
or not. If respondent No.1 has acted within his
jurisdiction in issuance of the notice under Section
81 of the Act, then whether the learned Single Judge
has committed any error, while not exercising the
powers under Article 226 of the Constitution of
India, or not.

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9.The contention of the learned counsel for the
petitioners that the District Registrar is on the
Board of the Directors of the Union as Nominee of the
Registrar, therefore, he cannot inquire into any
affairs and he cannot submit a report. Further,
reliance is placed on the Government Resolution dated
15.04.2005 and Notification dated 26.04.2005 issued
by the Government whereby it was resolved that in the
society where the Registrar is a Member of the Board
of Directors, a separate committee is constituted to
exercise powers of the Registrar under various
sections including Section 81 of the Act. Thus, the
Registrar is acting as a Judge of his own cause. The

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said submission is misconceived. The District
Registrar is one of the Directors and does not
preclude the Registrar of Co-operative Societies to
initiate proceedings under Section 81 of the Act. If
the proposition as canvassed is accepted, every co-
operative society would frame bye-laws making such
prescriptions for the District Registrar as Board of
Directors and the operation of Section 81 of the Act
would, in such case, become complex, which can never
be the intent of the statutory provisions.

¶194

10.It is further required to be noted that

¶195

Government Resolution dated 15.04.2005 was issued in
pursuance to Rule 39-B of the Rules. However, Rule
39-B of the Rules applies to the Federal Co-operative
Societies registered under the Act and specified in
table below the said Rule and for supervision of such
Federal CO-operative Societies, committee is
constituted. If we carefully examine the table given
below the said Rule, it is revealed that twelve
Federal Co-operative Societies are referred in the
said table. However, the petitioner Union, which is a
Milk Co-operative Society, is not mentioned in the

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said list. Thus, Circular dated 26.04.2005 and
Government Resolution dated 15.04.2005 would not be
applicable to the facts of the present case.

¶199

11.Another contention raised by the petitioners is
that the impugned Show-cause Notice is issued with
malafide intention and under the political pressure

¶200

of the party in power. In support of the said
contention, the petitioners have placed reliance upon
various orders passed by this Court in different
petitions filed by the petitioners and/or the Union
or the office bearers of the Union. In the memorandum
of the petition, the petitioners have narrated the
history of previous litigations by and against the
petitioners and/or Union. Even if the petitioners or
Union have succeeded in all or any of such
litigations, it cannot be said that it would give
rise or cause to the petitioners to get the impugned
Show-cause Notice quashed, irrespective of their
alleged default stated in the Show-cause Notice.
Merely because different actions are taken under
different provisions of the Act by statutory
authority, it does not mean that such steps are taken

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under political pressure with malafide intention.
Thus, we are of the view that only on this ground,
the impugned Show-cause Notice issued by respondent
No.1 cannot be quashed and set aside.

¶204

12.It is, thereafter, contended that the learned
Single Judge has, at some places, recorded incorrect
findings and though allegation of scam of Rs.1,000
crores is not levelled in the impugned Show-cause
Notice nor it is alleged by the respondents in the
present proceedings, the learned Single Judge has
recorded that there is a huge scam. It is further
contended that on one hand, the learned Single Judge
has observed that the petition at the stage of Show-
cause Notice is not maintainable and on the other
hand, at some places, findings are recorded by the
learned Single Judge against the petitioners. We are
of the opinion that even if some factual error is
made by the learned Single Judge in recording certain
findings but if the ultimate conclusion is correct,
then any observations not properly recorded, may not
be a ground for setting aside the order passed by the
learned Single Judge. Any observations and findings

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recorded by the learned Single Judge shall not come
in the way of the petitioners at the time of deciding
the issue in connection with the issuance of Show-
cause Notice by respondent No.1.

¶208

13.The contention raised by the learned counsel
appearing for th petitioners that though 97th
Constitutional amendment is set aside by the Division

¶209

Bench of this Court in the case of Rajendra N. Shah

¶210

V/s. Union of India (supra),the very 9th

¶211

Constitutional amendment has been relied upon by the
Honourable Supreme Court in the case of Vipulbhai M.
Chaudhari V/s. Gujarat Co-operative Milk Marketing
Federation Limited (supra)wherein in various

¶212

paragraphs, the Honourable Supreme Court has

¶213

specifically placed reliance upon the 97th
Constitutional amendment. Thus, the judgment rendered
by the Division Bench of this Court in the case of

¶214

Rajendra N. Shah V/s. Union of India (supra) is
impliedly overruled. We are of the view that the said
contention is misconceived because against the
decision rendered by the Division Bench of this Court

¶215

in the case of Rajendra N. Shah V/s. Union of India

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(supra), Special Leave Petition (C) Nos.25266-25267
of 2013 are pending before the Honourable Supreme
Court and the Honourable Supreme Court issued notice
in the said matters. However, no stay is granted. As

¶219

per the submission canvassed by the learned
Additional Advocate General, the said Special Leave
Petitions are pending before the Honourable Supreme
Court till date. Thus, in absence of any stay granted
by the Honourable Supreme Court, reliance placed in
the case of Vipulbhai M. Chaudhari V/s. Gujarat Co-
operative Milk Marketing Federation Limited (supra)
is misconceived.

¶220

14.Learned Additional Advocate General is right in
submitting that the amendment made in Article 19(1)
(c) and Article 43B of the Constitution of India, has
not been set aside. However, the said fundamental
right guaranteed under Article 19(1)(c) of the
Constitution is required to be read with Article
19(1)(4) of the Constitution of India and is always
subject to the reasonable restrictions. Thus, the
said fundamental right guaranteed under Part-III of
the Constitution is not unrestricted.

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15.It is the specific case of the respondents that
the agenda of the meeting dated 24.06.2016, which is
circulated on 16.06.2016, was neither forwarded to
all concerned nor the same was placed on the record
of the present petitions. No Annual General Meeting
was called upon in time as provided under Section 77
of the Act. Thus, prima-facie, there is no compliance
of Sections 77(2) or 77(3) of the Act. It is further
required to be noted that it is the specific case of
the respondents that though Baldevbhai, Lalubhai and
Rajendrabhai were nominated to the Board of the
petitioners’ Union as provided under Section 80(2) of
the Act, they were not called in some meetings with
malafide intentions. It is further the case of the
respondents that though there was an injunction
granted by the Board of Nominees, the petitioners
have continued their disobedience of the order of the
Board of Nominee.

¶224

It is the case of the petitioners that Section
73 of the Act gives final authority to the
General Body and General Body is supreme in
respect of affairs of any society. The grounds

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on which the Show-cause Notice is issued are
with regard to decisions taken by the General
Body and decisions have been taken unanimously

¶228

by the General Body and not by the Board of
Directors. However, we are of the view that such
contention can be taken by the petitioners while
submitting their reply to the Show-cause Notice
issued under Section 81 of the Act. Such
contentions are not required to be gone into by
this Court while exercising powers under Article
226 of the Constitution of India. It is open for
the petitioners to take such contentions before
respondent No.1.

¶229

16.In the case of Ram Murti Versus Bhola Nath

¶230

(supra), the Honourable Supreme Court has observed in
Paragraph-16 as under:

¶231

“16. It would be incongruous to hold that even if the defence of the tenant is not to be struck out under sec. 15(7), the tenant must still be visited with the punishment of being deprived of

¶232

the protection under Section 14(2). In Hem Chand's case (AIR 1977 SC 1986) the Court went to the extent of laying down that even if the

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defence of the tenant is struck out under sec. 15(7), the Rent Controller could not straightaway make an order for eviction in favour of the landlord under sec. 14(1)(a). The Court held that the High Court was wrong in its assumption that failure to comply with the requirements of sec. 15(1) vests in the landlord an 'indefeasible right, to secure an order for the eviction of the tenant under sec. 14(1)(a). The Court set aside the judgment of the High Court taking that view and remanded the matters to the Rent Controller observing that there was still an issue to be tried. If that be so, the question at once arises "What is the issue to be tried?". If the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant under sec. 14(1)(a), surely the tenant has the right to participate in the proceedings and cross-examine, the landlord. It must logically follow as a necessary corollary that if the defence is not to be struck out under sec. 15(7) it means that the tenant has still the defences open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under sec. 14(2). What is of essence of sec. 14(2) and of sec. 15(6) is whether there has been a substantial compliance with the order passed under sec. 15(1). The words "as required by sec. 15(1)" in these provisions must be construed in a reasonable

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manner. If the Rent Controller has the discretion under sec. 15(7) not to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under sec. 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control. The previous decision in Hem Chand's case interpreting sec. 15(7) and sec. 14(2) in the context of sec. 15(1) of the Delhi Rent Control Act, 1958, although not expressly overruled, cannot stand with the subsequent decision in Shyamcharan's case interpreting the analogous provisions of the Madhya Pradesh Accommodation Control Act, 1961 as it is of a larger Bench.”

¶239

17. In the case of The State of Madhya Pradesh

¶240

Versus The State of Maharashtra and others (supra),

¶241

the Honourable Supreme Court has observed in Paragraph-23 as under :

¶242

“23. The plaintiff's suit in 1949 was only for setting aside the impugned orders. The plaintiff did not ask for relief for arrears of salary for the obvious reason that the plaintiff in the 1949 suit asked fox' setting aside of the impugned orders and an order that the plaintiff was deemed to be continuing in service. The plaintiff proceeded on the existing law as it

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stood by reason of the decision in High Commissioner for India v. 1. M. Lall(1). The Judicial Committee in that case held that a civil servant was not entitled to. sue the State for recovering arrears of salary and pay. Counsel for Madhya Pradesh relied on the decision in Province of Punjab v. Pandit Tara Chand (2) which held that a public servant had a right to bring a suit for arrears of pay. The decision of the Judicial Committee in Lall's case.”

¶246

18.In the case of Ham Shankar Pandey Versus Uttar
Pradesh Police Station Officer, P.S. Kotwali,
Ghazipur, the Allahabad High Court has observed in
Paragraphs-17 to 19 as under:

¶247

“(17.) A question maybe raised whether a single Judge of this Court can hold a Full Bench decision on this Court to be no longer good law. In my opinion though ordinarily a Single Judge is bound to follow a Full bench decision of the same court, he should not follow the said decision if it is contrary to a Supreme Court decision. In this connection I may refer to Article 141 of the Constitution which says “The law declared by the Supreme Court shall be binding on all “Courts within the territory of India”. It may be noticed that there is no

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corresponding provision in the Constitution making decisions of the High Court binding on lower courts or on smaller benches of the High Court, through by the theory of precedents they are binding.

¶251

(18.) The fact that there is no corresponding provision for High Court like Article 141 shows that the intent of the Constitution-makers was to make Supreme Court decisions more authoritative, peremptory and binding than High Court decision. Even the obiter of a Supreme Court decision is binding though not of the High Court. Thus, in my opinion, it is the undoubted duty of a Single Judge to follow the Supreme Court decision and not to follow the Full Bench decision of the High Court if there is inconsistency between the two. In my opinion there is inconsistency between Bhajan Lal’s and Pavithran’s decisions on the one hand, and Ram Lal Yadav;s decision on the other hand because while the former do not make any distinction between the pre charge-sheet and post chargesheet stages for the purpose of interference under Section 482, Cr.P.C., the latter has made such a distinction. The former decisions, being of the Supreme Court, will therefore prevail.

¶252

(19.) In the circumstances, I hold that the judgment of the Full Bench of this Court in Ram Lal Yadav’s case (supra) is no longer good law

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in view of the subsequent decisions of the Supreme Court. The correct legal position is that the High Court in exceptional circumstances has power under Section 482, Cr.P.C. to quash the police investigation and/or quash the first information report and/or stay the arrest of the applicant. The circumstances are mentioned in paragraph 108 of Bhajan Lal’s case and there maybe also some other exceptional circumstances (since the 7 grounds mentioned in paragraph 108 of Bhajan Lal’s case are only illustrative and not exhaustive) and the High Court can interfere in these exceptional circumstances even prior to the submission of the charge-sheet.”

¶256

19.In the case of Lanka Venkateshwarlu (Dead) By

¶257

Lrs. Versus State of Andhra Pradesh and others

¶258

(supra), the Honourable Supreme Court has observed in
Paragraphs-27 to 31 as under:

¶259

“27. The displeasure of the Court is patently apparent from the impugned order itself. In the opening paragraph of the impugned order the High Court has, rather sarcastically, dubbed the government pleaders as without merit and ability. Such an insinuation is clearly discernable from the observation that "This is a classic case, how the learned government pleaders appointed on the basis of merit and

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ability (emphasis supplied) are discharging their function protecting the interest of their clients". Having said so, the High Court, graphically narrated the clear dereliction of duty by the concerned government pleaders in not pursuing the appeal before the High Court diligently. The High Court has set out the different stages at which the government pleaders had exhibited almost culpable negligence in performance of their duties. The High Court found the justification given by the government pleaders to be unacceptable. Twice in the impugned order, it was recorded that in the normal course, the applications would have been thrown out without having a second thought in the matter. Having recorded such conclusions, inexplicably, the High Court proceeds to condone the unconscionable delay.

¶263

28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required

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to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.

¶267

29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.

¶268

30. The order of the High Court, in our opinion, is based purely on the personal perceptions and predilections of the Judges on the bench. The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality. In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the "justice oriented

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approach", the bedrock of which is fairness and impartiality.

¶272

31. Judges at all levels in this country subscribe to an oath when entering upon office of Judgeship, to do justice without fear or favour, ill will or malice. This commitment in form of a solemn oath is to ensure that Judges base their opinions on objectivity and impartiality. The first casualty of prejudice is objectivity and impartiality. It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice.”

¶273

20. In the case of J.N. Chaudhary and others Versus
State of Haryana and others (supra), the Honourable
Supreme Court has observed in Paragraphs-45 and 46 as
under:

¶274

“4 5. At this juncture, it would be appropriate to observe that in judging the functioning of a co-operative society or any other statutory body where the democratic process of election is adopted in pursuance to the Rule and a

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collective decision is taken by majority of the members of the entire body expressed in terms of a resolution passed by the General Body, then the plea that the same should be ignored and bye-passed even if the same has been challenged by a handful of members on speculative allegation and assumption contrary to the reasons recorded in the Minutes Books on the plea of mala fide, without any evidence, would be illegal and arbitrary to accept being contrary to the rule unless the alleged malicious action is writ large on the alleged decision and is challenged by majority of the members. If a decision is taken by majority of the members of a Co-operative Society or any other body under a statute in terms of the Rule, it cannot be over-ruled by minority on the ground of mala fide or fraud unless it has passed through a strict proof of evidence. It is a well known dictum that mala fide is always easy to allege but difficult to prove as the same cannot be held as proved relying on assumption, speculation and suspicion.

¶278

46. In the instant matter existing 10 members of the society have practically reduced the Cooperative Society to a defunct society as all members except 10 out of 278 have finally withdrawn. Hence, the auction sale at their instance, although the said auction sale had

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taken place in view of the majority support of the General Body resolution which was conducted under the supervision of the Board of Administrators appointed by the Registrar, Cooperative Society and the Sales Committee is difficult to scrap it as illegal in spite of the overwhelming material relied upon by the High Court which has upheld the auction sale. Thus in a matter where the decision has been taken collectively by the General Body reflected in the form of a resolution passed by the General Body, it would be unjust and inappropriate to nurture a lurking doubt and keep suspecting the decision by entertaining the version of a handful who might be disgruntled or might be genuine but would be difficult to be gauged by any court so as to over-rule the General Body resolution and accept the view of the minority based on no evidence except assumption and speculation.”

¶282

21.In the case of Oryx Fisheries Private Limited
Versus Union of India and others (supra), the
Honourable Supreme Court has observed in Paragraphs-
23, 24, 25 and 27 as under:

¶283

“23. Relying on the underlined* portions in the show cause notice, learned counsel for the

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appellant urged that even at the stage of the show cause notice the third respondent has completely made up his mind and reached definite conclusion about the alleged guilt of the appellant. This has rendered the subsequent proceedings an empty ritual and an idle formality.

¶287

24. This Court finds that there is a lot of substance in the aforesaid contention. It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show cause proceeding. A show-cause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice.

¶288

25. Expressions like "a reasonable opportunity of making objection" or "a reasonable opportunity of defence" have come up for consideration before this Court in the context of several statutes. A Constitution Bench of this Court in Khem Chand v. Union of India, of course in the context of service jurisprudence, reiterated certain principles which are applicable in the present case also.

¶289

26. xxx xxx xxx

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27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceeding become an idle ceremony.”

¶293

22.In the case of Siemens Limited Versus State of
Maharashtra (supra),the Honourable Supreme Court has
observed in Paragraph-10 as under:

¶294

“10.Although ordinarily a writ court may not
exercise its discretionary jurisdiction in
entertaining a writ petition questioning a
notice to show cause unless the same inter alia
appears to have been without jurisdiction as has
been held by this Court in some decisions
including State of Uttar Pradesh v. Brahm Datt
Sharma and Anr. AIR 1987 SC 943, Special
Director and Another v. Mohd. Ghulam Ghouse and
Another, (2004) 3 SCC 440 and Union of India and
Another v. Kunisetty Satyanarayana, 2006 (12)
SCALE 262], but the question herein has to be

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considered from a different angle, viz, when a
notice is issued with pre-meditation, a writ
petition would be maintainable. In such an
event, even if the courts directs the statutory
authority to hear the matter afresh, ordinarily
such hearing would not yield any fruitful
purpose. It is evident in the instant case that
the respondent has clearly made up its mind. It
explicitly said so both in the counter affidavit
as also in its purported show cause.”

¶298

23.In the case of State of Madhya Pradesh and
others Versus Sanjay Nagayach and others,the

¶299

Honourable Supreme Court has held in Paragraph-36 as
under:

¶300

“Registrar/JointRegistrarandExternal

¶301

Influence:

¶302

36. Statutory functionaries like Registrar/Joint Registrar of Co- operative Societies functioning under the respective Co-operative Act must be

¶303

above suspicion and function independently without external pressure. When an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Large number of cases are coming up before this

¶304

Court and the High Courts in the country

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challenging the orders of supersession and many of them are being passed by the statutory functionaries due to external influence ignoring the fact that they are ousting a democratically elected Board, the consequence of which is also grave because the members of the Board of Directors would also stand disqualified in standing for the succeeding election as well.”

¶308

24.We cannot dispute the proposition of law laid
down by the Honourable Supreme Court in the aforesaid
decisions upon which reliance is placed by learned
advocate for the petitioners. However, in the facts
and circumstances of the present case, as discussed
hereinabove, the said decisions would not render any
assistance to the petitioners.

¶309

25.In the case of The State of Maharashtra Vs.

¶310

Babulal Kriparam Takkamore and others (supra), the
Honourable Supreme Court has observed in Paragraphs-
15 and 16 as under:

¶311

“15. Mr. Bobde contended that the opinion of the State Government was based on two grounds arid as one of them is found to be non-existent or irrelevant, the order is invalid and should be

¶312

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set aside. The cases relied on by him may, be briefly noticed. In a number of cases, the Court has quashed orders of preventive detention based on several grounds one of which is found to be irrelevant or illusory. After reviewing the earlier cases Jagannadhadas J, in Dwarka Dass Bhatia v. The State of Jammu and Kashmir, 1956 SCR 948 at p. 955: (AIR 1957 SC 164 at p.168) said:

¶315

"The principle underlying all these decisions is ’this. Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety ’of reasons all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power is bad. This is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based. If ’some out of them are found to be nonexistent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of -some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of

¶316

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the. Statutory authority. In applying these principles, however, the Court must be. satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court, while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders."

¶319

In Naursinha v. State of Madhya Pradesh, AIR 1958 Madh Pra 397, the Madhya Pradesh High Court, following the principle of the preventive detention cases, held that an order of supersession of the municipality under S. 208 of the Madhya Bharat Municipalities Act 1954, based on several grounds, most of which were found to be irrelevant, was invalid. In Dhirajlal Girdharilal v. Commissioner of Income-tax Bombay, AIR 1955 SC 271 at p. 273. Mahajan, C. J., said with reference to the order of an income-tax tribunal, that:

¶320

"The learned Attorney-General frankly conceded that it could not be denied that to a certain extent the Tribunal had drawn upon its own imagination and had made use of a number of

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surmises and conjectures in reaching its result. He, however, contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which the finding of fact could be supported. -In our opinion, this contention is not well founded. It is well established that when a court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the ’mind of’ the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises."

¶324

In State of Orissa v. Bidyabhushan Mahapatra 1963 (1) SCR 648 at p.665-6: (AIR 1963 SC 779 at p.786) an administrative tribunal in a disciplinary proceeding against a public servant found the second charge and four out of the five heads under the first charge proved and recommended his dismissal. The Governor after giving him a reasonable opportunity to show cause against the proposed punishment dismissed him. The High Court held that, the findings on two of the heads under the first charge could not be sustained as in arriving at those findings the tribunal had violated rules of natural justice. It held that the second charge and only two heads of the first charge were

¶325

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established and directed the Governor to
reconsider whether on the basis of these charges
the punishment of dismissal should be
maintained. On appeal, this Court set aside the
order of the High Court. In the course of the
judgment, Shah, J, observed:

¶328

"If the High Court is satisfied that if some but not all of the findings of the Tribunal were ’unassailable’, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed the order Of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of same of the findings but not all it appears that there had been violation of the rules of natural

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justice."

¶332

The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be nonexistent or irrelevant, can be sustained if the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision.

¶333

16. Now, the opinion of the State government that the corporation was not competent to perform the duties imposed on it by or under the Act, was based on two grounds one of Which is relevant and the other irrelevant. Both the grounds as also other grounds were set out in paragraphs 1 and 2 read with annexures 1 and 2 of the showcause notice dated July 21, 1965.

¶334

Para 3 of the show-cause notice stated, "And

¶335

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¶337

whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant action under section 408(1) of the said Act". The (order dated September 29, 1965, read with the notice dated July 21, 1965 shows that in the opinion of the State government the second ground alone was serious enough to warrant action under s. 408(1) and was sufficient to establish that the corporation was not competent to perform its duties under the Act. The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We are reasonably certain that the State government would have passed the order on the basis of the second ground alone. The order is, therefore, valid and cannot be set aside.”

¶338

26.In the case of Sawarn Singh and another Versus

¶339

State of Punjab and others(supra), the Honourable
Supreme Court has held in Paragraph-19 as under:

¶340

“19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to

¶341

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¶342

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¶343

several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision [see State of Maharashtra v. B.K. Takkamore (supra); State of Orissa v. Bidyabhuhan Mohapatra]”

¶344

27.In the case of Joint Registrar of Co-operative

¶345

Societies, Madras and others Vs. P.S. Rajagopal
Naidu, Govindarajulu and others (supra),the

¶346

Honourable Supreme Court in Paragraphs-9 and 10 has
held as under:

¶347

“9. The Single Judge laid a great deal of emphasis on the Committee being an elected body and the prejudice that would be caused to its members if they are visited with the consequences of supersession on account of irregularities and improper functioning of the previous members of the Committee. What was argued before the High Court was that one-third members of the Committee have to retire every year and fresh members have to be elected. If certain grave irregularities are committed say in the year 1964, 1965, it would be unfair to

¶348

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¶350

the new members who have been. elected to supersede the Committee in 1968. We do not consider that that would be the correct approach in construing section 72 which is meant for superseding the Committee as a whole when its working disclose s such irregularities or improprieties as would justify its supersession. Normally it would be expected that only that Committee would be superseded whose functioning has been found to be highly defective. The object of supersession apparently is to appoint a Special Officer or a managing committee in order to set the working of the society right. It is not difficult to envisage a situation where maladministration by a committee has so adversely affected the functioning of the society that it is essential in the interests of the society itself to give temporarily the control of its affairs to a neutral authority. At any rate if the operation of section 72 in certain circumstances is likely to operate harshly so far as certain members of the committee are concerned, it is not 236 possible to read into it other provisions of the Act which are not incorporated in the section expressly or by necessary implication.

¶351

10. We have been taken through the material parts of the orders of the Registrar and the Joint Registrar and we do not find any such infirmities in them which would justify

¶352

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interference by the High Court under Article 226 of the Constitution. The High Court could not act as an appellate Court and reappraise and reexamine the relevant facts and circumstances which led to the making of the orders of supersession as if the matter before it had been brought by way of appeal. The limits of the jurisdiction of the High Court under Article 226 when a writ in the nature of certiorari is to be issued are well-known and well-settled by now and it is pointless to re-state the grounds on which any such writ or direction can be issued. We are satisfied that there was no justification whatsoever for quashing the orders of the Joint Registrar and that of the Registrar in appeal. The appeals are consequently allowed with costs and the judgment of the High Court is set aside. The writ petitions are ordered to be dismissed. One hearing fee.”

¶355

28.In the case of Special Director and another
Versus Mohd. Ghulam Ghouse and another(supra), the
Honourable Supreme Court has held in Paragraph-5 as
under:

¶356

“5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as

¶357

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proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection not granted. ”

¶360

29. In the case of Union of India and another

¶361

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¶363

Versus Kunisetty Satyanarayana (supra),the

¶364

Honourable Supreme Court has observed in Paragraphs-
13 to 16 as under:

¶365

“13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh, Special Director vs. Mohd. Ghulam Ghouse, Ulagappa and others vs. Divisional Commissioner, Mysore, State of U.P. vs. Brahm Datt Sharma, etc.

¶366

14. The reason why ordinarily a writ petition should not be entertained against a mere showcause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not

¶367

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infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

¶370

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

¶371

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.”

¶372

30.In the case of Union of India and another Versus
Vicco Laboratories(supra), the Honourable Supreme
Court has observed in Paragraph-31 as under:

¶373

“31. Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the

¶374

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absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.”

¶377

31.Thus, from the aforesaid decisions, it is clear
that ordinarily, no writ lies against the charge-
sheet or Show-cause Notice. The reason why ordinarily
writ petition should not be entertained against the
Show-cause Notice is that at that stage, the writ
petition may be held to be premature. A mere issuance
of Show-cause Notice does not give rise to any cause
of action because it does not amount to an adverse

¶378

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¶380

order which affects the right of any party. It is
quite possible that after considering the reply of
the Show-cause Notice, the authority concerned may
drop the proceedings. In some very rare and
exceptional cases, Show-cause Notice can be quashed
by the High Court, if it is found to be wholly
without jurisdiction or for some other reason, it is
wholly illegal. The petitioners have failed to point
out that their case falls within the exception stated
by the Honourable Supreme Court in the aforesaid
decisions.

¶381

32.We have gone through the allegations made in the

¶382

Show-cause Notice, in which, the allegations are with

¶383

regard to mis-management and disorder in
implementation of Section 77 of the Act, Rule 34(3)
of the Rules and Bye-law Nos.24 and 29, regarding
suspension of directors elected by exercising mis-

¶384

management/malpractice and giving unauthorised
appointment in their place, allegations with regard
to concealing of facts before the General Meeting and
irregularity committed in proceedings of Agenda No.1
dated 10.06.2016, regarding not sending the agenda of

¶385

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the meeting of the Managing Committee to the
Government representatives and allegations are also
levelled with regard to not furnishing the minutes of
the meeting of the Board of Directors of the Union.

¶388

Whether such allegations are correct or not, is to be
examined by respondent No.1 after the reply is
received by him from the petitioners. However, at the
issuance of the Show-cause Notice stage, such issues
cannot be examined in the writ petition filed by the
petitioners under Article 226 of the Constitution of
India. If on the basis of such allegations, Show-

¶389

cause Notice is issued, it cannot be said that the
same is without jurisdiction. It is stated by the
learned Additional Advocate General that the
petitioners have not submitted the reply to the Show-
cause Notice and, therefore, after the reply is
submitted by the petitioners, the same would be
examined by respondent No.1 and respondent No.1 would

¶390

pass appropriate order, in accordance with law.
Against the order passed by respondent No.1, there is

¶391

a provision of filing an appeal before the
Government. Thus, the present case does not fall
within the exceptions as stated in the judgment

¶392

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rendered by the Honourable Supreme Court wherein the
Honourable Supreme Court has held that the petition
at the Show-cause Notice is maintainable under
certain circumstances.

¶395

33.In view of the foregoing discussion, we are of
the view that no error is committed by the learned
Single Judge while dismissing the petitions.
Accordingly, the appeals are dismissed.

¶396

34.However, it is clarified that any of the
observations made by the learned Single Judge as well
as in this order shall not come in the way of the
appellants at the time of deciding the issue with
regard to issuance of the Show-cause Notice under
Section 81 of the Act by respondent No.1.

¶397

(R.SUBHASH REDDY, CJ)

¶398

(VIPUL M. PANCHOLI, J)

¶399

piyush

¶400

Page 62 of 62

Mehsana District Milk Producers Union Ltd. v. Registrar Cooperative Societies

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Mehsana District Milk Producers Union Ltd. v. Registrar Cooperative Societies

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