PATEL KODARBHAI JIVABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) TALATI J. The petitioners who are 9 in number have filed this petition with a prayer that Government resolution dated 5-7-1982 produced at annexure B may be quashed and that appropriate writ be issued so that in pursuance of the said Government resolution on further action may be taken by the Government and its servants. Few facts which are necessary are required to be stated.

(2.) The petitioners claimed to be the members of the Managing committee of Khedbrahma Taluka Sahkari Kharid Vechan Sangh. From the petition it appears that there were 16 members of the managing committee of that co-operative society. According to the petitioners they belonged to a group which consisted of 9 members and the other group consisted of 7 members only. The petitioners alleged that those 7 members belonged to Congress (I) and that as they were 7 they were in minority. Further allegation is that the meeting of the managing committee was scheduled to be held on 7-7-1982 and the Government issued resolution dated 5/07/1982 by which respondents Nos. 2 3 and 4 were nominated as Government representatives on the managing committee of Khedbrahma Taluka Sahkari Kharid Vechan Sangh. The challenge to this resolution is mainly on the ground that this was done with an ulterior motive and the motive alleged is that by nominating the three members to the managing committee the Government disturbed the composition of the managing committee in such a way that the majority was converted into a minority as 7 Congress (I) members became 10 as against the 9 petitioners. The further allegation is that the appointment of the three members was not in public interest and the Government never formed any opinion after considering the public interest involved in the operation of the society. The learned advocate Shri Vakharia who appeared on behalf of the petitioners submitted that as one looks to annexure B Government resolution dated 5-7-1982 it abundently becomes clear that it does not on the face of it show that the three persons were nominated in public interest after the Government having formed an opinion in regard to the public interest of the society. The learned advocate Shri Vakharia further submitted that imputations made in the petition are not denied either by the State (respondent No. 1) or the Assistant District Registrar (respondent No. 2). On behalf of respondents Nos. 3 and 4 the affidavits are filed.

(3.) The learned Assistant Government Pleader Shri Takwani who appeared on behalf of respondents Nos. 1 and 2 submitted that it is not necessary that in Government resolution it should be mentioned that the appointment was made in public interest after forming an opinion. He relied upon the case of NANALAL NAVALNATHJI YOGI V. COLLECTOR OF BULSAR & ORS. REPORTED ON 1980 (2) G. L. R. AT PAGE 333. It was a case where the order made in exercise of the powers conferred by sec. 3 of the Essential Commodities Act 1955 was challenged. It was found that the order itself recited that the Government of India issued a particular notification and after obtaining prior concurrence of the Central Government the Government of Gujarat made that order. It was clear in that case that reference to sec. 3 of the Essential Commodities Act and further reference to the notification which the Government of India issued clearly imply that the State Government had formed a requisite opinion within the meaning of sec. 3 (1) of the Act and it was held that otherwise such an order could not have been passed. It was a case for passing of a statutory order where it was clearly mentioned that that order was being made in exercise of the powers conferred by sec. 3 of the Essential Commodities Act 1955 Now in this particular case when one looks at Government resolution dated 5-7-1982 it is clear that it is not a statutory order which is issued in exercise of any of the powers conferred on the Government. It is an administrative order and unfortunately it is also not mentioned under what powers the Government issued this particular resolution though the Government had such powers under sec. 80 of the Gujarat Co-operative Societies Act 1961 Now sec. 80 of the Act came to be amended and by amendment clause (2) was added to that section. Before the amendment the Government had power to nominate not more than three representatives on the committee of the society provided the Government had subscribed to the share capital of a society directly or through another society. Now in this particular case the Government had subscribed to the share capital of the society and the Government had nominated the two persons and that the share capital was returned and as a result the representation of the Government was cancelled by Government resolution dated 2-12-1981 which is produced at page 48. In fact the petitioners made a grievance in paragraph 4 of the petition that by withdrawing the nomination of Shri N.A. Patel and continuing the representative of the Assistant Registrar the Government tried to reduce the majority of the petitioners group. I am not concerned at this stage with the action taken by the Government when the share capital was returned. The State Government got further power when sec. 80 was amended and Clause (2) wa. added which runs as under :