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TMI Blog2015 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitions are heard finally and decided and disposed of together by this common judgment and order. [3.0] In this group of petitions respective petitioner Cooperative Societies have challenged the decision/s of the Authorized Officer deleting the names of the members of the Managing Committee of the petitioner Societies from the Voters' list of Agriculturist Constituency for the election of Agricultural Produce Market Committee, Siddhpur (hereinafter referred to as "APMC, Siddhpur"). Special Civil Application No.3700/2015 [4.0] That the petitioner - Dethali Gopalak Vividh Karyakari Sahakari Mandali Limited has been registered under the provisions of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "Cooperative Societies Act") on 24.08.2009. That the District Registrar, Cooperative Societies passed the interim order dated 28.09.2012 appointing the Liquidator of the Society in exercise of powers under Section 107(1) of the Cooperative Societies Act. That feeling aggrieved and dissatisfied with the interim order of winding up / appointing the Liquidator of the petitioner Society, the Society preferred appeal before the first Appellate Authority - Additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid Special Civil Application No.303/2015 quashing and setting aside the order passed by the District Registrar, Cooperative Societies, Patan dated 17.12.2014 and directing the Additional Registrar (Appeals), Cooperative Societies, State of Gujarat to look into the facts of the case, the respondent No.5 raised the objection before the Authorized Officer on 21.02.2015 against the inclusion of the names of the members of the Managing Committee of the petitioner Society in the preliminary voters' list of Agriculturist Constituency contending inter alia that in view of the order passed by the Division Bench of this Court dated 12.02.2015 in aforesaid Special Civil Application, the names of the members of the Managing Committee of the petitioner Society are required to be excluded from the voters list. That the petitioner Society appeared before the Authorized Officer and requested to continue the names of the members of the Managing Committee of the petitioner Society in the voters list of Agriculturist Constituency by submitting that as such there was no direction by the High Court to delete the names of the members of the Managing Committee of the petitioner Society from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner Society. It appears that feeling aggrieved and dissatisfied with the order passed by the District Registrar, Cooperative Societies, Patan dated 15.09.2014, the respondent No.5 herein straightway preferred petition being Special Civil Application No.191/2015 before this Court under Article 226 of the Constitution of India and by judgment and order dated 12.02.2015, the Division Bench of this Court partly allowed the aforesaid Special Civil Application, however quashed and set aside the order passed by the District Registrar, Cooperative Societies, Patan dated 15.09.2014 and directed the Additional Registrar (Appeals), State of Gujarat, Gandhinagar to look into the facts of the case and pass appropriate order on the question of validity of the order of the liquidation. At this stage it is required to be noted that in the meantime the election of the APMC, Siddhpur came to be declared and the Authorized Officer was appointed and the Authorized Officer was to prepare the preliminary list of voters of Agriculturist Constituency. However, after the order dated 12.02.2015 passed by the Division Bench in the aforesaid Special Civil Application No.191/2015 quashing and setting aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the petitioner Society in exercise of powers under Section 107(1) of the Cooperative Societies Act on 23.08.2012. That thereafter the District Registrar passed a final order of winding up / liquidation by order dated 10.01.2013 under Section 107(3) of the Cooperative Societies Act. That feeling aggrieved and dissatisfied with the final order of winding up / liquidation passed by the District Registrar, Cooperative Societies, Patan, the petitioner Society preferred appeal before the Additional Registrar (Appeals), who by its order dated 17.06.2014 allowed the said appeal and quashed and set aside the final order of liquidation dated 10.01.2013 and remanded the matter to the District Registrar for fresh consideration. It is the case on behalf of the petitioner Society that thereafter the petitioner Society undertook activities of dispensing agricultural credit. That on remand the District Registrar, Cooperative Societies, Patan passed a fresh order on 15.09.2014 canceling the earlier order of winding up / liquidation dated 10.01.2013 and directed to continue the registration of the petitioner Society. It appears that feeling aggrieved and dissatisfied with the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f liquidation having not been challenged or set aside, the registration of the petitioner Society would be continued and therefore, the names of the members of the Managing Committee of the petitioner Society cannot be excluded from the voters list. That by impugned order dated 26.02.2015, the Authorized Officer has excluded the names of the members of the Managing Committee of the petitioner Society from the provisional list of voters of Agriculturist Constituency. Hence, the petitioner Society has preferred the present Special Civil Application challenging the impugned action/decision of the Authorized Officer - respondent No.4 herein excluding the names of the members of the Managing Committee of the petitioner Society from the voters list of Agriculturist Constituency of APMC, Siddhpur. Special Civil Application No.3716/2015 [4.3] That the petitioner Methan Gopalak Vividh Karyakari Sahakari Mandali Limited came to be registered under the provisions of the Cooperative Societies Act on 30.09.1999. That the District Registrar, Cooperative Societies passed an interim order of winding up / liquidation of the petitioner Society in exercise of powers under Section 107(1) of the Coop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat to look into the facts of the case, the respondent No.5 raised the objection before the Authorized Officer on 21.02.2015 against the inclusion of the names of the members of the Managing Committee of the petitioner Society in the preliminary voters' list of Agriculturist Constituency contending inter alia that in view of the order passed by the Division Bench of this Court dated 12.02.2015 in aforesaid Special Civil Application, the names of the members of the Managing Committee of the petitioner Society are required to be excluded from the voters list. That the petitioner Society appeared before the Authorized Officer and requested to continue the names of the members of the Managing Committee of the petitioner Society in the voters list of Agriculturist Constituency by submitting that as such there was no direction by the High Court to delete the names of the members of the Managing Committee of the petitioner Society from the voters list and as such even the liquidation order being already set aside by the higher Forum (Revisional Authority) and the said order of setting aside the order of liquidation having not been challenged or set aside, the registration of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge it is required to be noted that in the meantime the election of the APMC, Siddhpur came to be declared and the Authorized Officer was appointed and the Authorized Officer was to prepare the preliminary list of voters of Agriculturist Constituency. However, after the order dated 12.02.2015 passed by the Division Bench in the aforesaid Special Civil Application No.306/2015 quashing and setting aside the order passed by the District Registrar, Cooperative Societies, Patan dated 16.10.2014 and directing the Additional Registrar (Appeals), Cooperative Societies, State of Gujarat to look into the facts of the case, the respondent No.5 raised the objection before the Authorized Officer on 21.02.2015 against the inclusion of the names of the members of the Managing Committee of the petitioner Society in the preliminary voters' list of Agriculturist Constituency contending inter alia that in view of the order passed by the Division Bench of this Court dated 12.02.2015 in aforesaid Special Civil Application, the names of the members of the Managing Committee of the petitioner Society are required to be excluded from the voters list. That the petitioner Society appeared before the Authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er afresh from the stage after the interim order was made by the District Registrar. That thereafter on remand the District Registrar, Cooperative Societies, Patan passed an order dated 15.09.2014 quashing and setting the earlier interim order of winding up and directed to continue the registration of the petitioner Society. It appears that feeling aggrieved and dissatisfied with the order passed by the District Registrar, Cooperative Societies, Patan dated 15.09.2014, the respondent No.5 herein straightway preferred petition being Special Civil Application No.305/2015 before this Court under Article 226 of the Constitution of India and by judgment and order dated 12.02.2015, the Division Bench of this Court partly allowed the aforesaid Special Civil Application, however quashed and set aside the order passed by the District Registrar, Cooperative Societies, Patan dated 15.09.2014 and directed the Additional Registrar (Appeals), State of Gujarat, Gandhinagar to look into the facts of the case and pass appropriate order on the question of validity of the order of the liquidation. At this stage it is required to be noted that in the meantime the election of the APMC, Siddhpur came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Special Civil Application No.3719/2015 [4.6] That the petitioner Sahesa Gopalak Vividh Karyakari Sahakari Mandali Limited came to be registered under the provisions of the Cooperative Societies Act on 30.09.2005. That the District Registrar, Cooperative Societies passed an interim order of winding up / liquidation of the petitioner Society in exercise of powers under Section 107(1) of the Cooperative Societies Act on 16.10.2009. That thereafter the District Registrar, Cooperative Societies, Patan passed final order of winding up / liquidation on 23.03.2011 in exercise of powers under Section 107(3) of the Cooperative Societies Act. That feeling aggrieved and dissatisfied with the final order of liquidation/winding up, the petitioner Society preferred Special Civil Application No.1326/2013 before this Court and by detailed judgment and order dated 14.08.2013, the learned Single Judge of this Court partly allowed the aforesaid Special Civil Application and quashed and set aside the final order of liquidation and remanded the matter to the District Registrar, Cooperative Societies, Patan for deciding the matter afresh from the stage after the interim order was made by the Distric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y submitting that as such there was no direction by the High Court to delete the names of the members of the Managing Committee of the petitioner Society from the voters list and as such even the liquidation order being already set aside by the higher Forum (Revisional Authority) and the said order of setting aside the order of liquidation having not been challenged or set aside, the registration of the petitioner Society would be continued and therefore, the names of the members of the Managing Committee of the petitioner Society cannot be excluded from the voters list. That by impugned order dated 26.02.2015, the Authorized Officer has excluded the names of the members of the Managing Committee of the petitioner Society from the provisional list of voters of Agriculturist Constituency. Hence, the petitioner Society has preferred the present Special Civil Application challenging the impugned action/decision of the Authorized Officer - respondent No.4 herein excluding the names of the members of the Managing Committee of the petitioner Society from the voters list of Agriculturist Constituency of APMC, Siddhpur. Special Civil Application No.3721/2015 [4.7] That the petitioner - J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Application, however quashed and set aside the order passed by the District Registrar, Cooperative Societies, Patan dated 17.12.2014 and directed the Additional Registrar (Appeals), State of Gujarat, Gandhinagar to look into the facts of the case and pass appropriate order on the question of validity of the order of the liquidation. At this stage it is required to be noted that in the meantime the election of the APMC, Siddhpur came to be declared and the Authorized Officer was appointed and the Authorized Officer was to prepare the preliminary list of voters of Agriculturist Constituency. However, after the order dated 12.02.2015 passed by the Division Bench in the aforesaid Special Civil Application No.302/2015 quashing and setting aside the order passed by the District Registrar, Cooperative Societies, Patan dated 17.12.2014 and directing the Additional Registrar (Appeals), Cooperative Societies, State of Gujarat to look into the facts of the case, the respondent No.5 raised the objection before the Authorized Officer on 21.02.2015 against the inclusion of the names of the members of the Managing Committee of the petitioner Society in the preliminary voters' list of Agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner cooperative societies from the provisional list of voters of Agriculturist Constituency of APMC, Siddhpur is/are absolutely illegal and most arbitrary and contrary to the provisions of the Cooperative Societies Act and the Rules. [5.2] It is further submitted by learned advocates appearing for respective petitioner Cooperative Societies that while accepting the objections raised by respondent No.5 and excluding the names of the members of the Managing Committee of the petitioner Cooperative Societies, the Authorized Officer has not properly appreciated the common judgment and order passed by the Division Bench of this Court in Special Civil Application No.190/2015 and other allied matters. [5.3] It is further submitted by learned advocates appearing for respective petitioner Cooperative Societies that the Authorized Officer has not properly appreciated the fact that as such the registration of the respective petitioner Cooperative Societies has been continued and the registration of the respective petitioner Cooperative Societies has not been canceled, as no final order of winding up / liquidation has been passed by any Authority. It is submitted that therefore when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has heavily relied upon Section 108 of the Cooperative Societies Act more particularly subsection (3) of section 108. It is submitted that as provided in subsection (3)(b) of section 108 of the Cooperative Societies Act, when a final order is made confirming the interim order of winding up / liquidation, the Officer of the Society shall vacate their offices and while winding up order remains in force, the general body of the Society shall not exercise any powers. It is submitted that therefore till the interim order of liquidation / winding up has been passed and final order is made confirming the interim order of winding up / liquidation, the office bearers of the Society shall continue to occupy their offices and only when a final order is passed confirming the interim order of winding up / liquidation, the office bearers of the Society shall vacate their offices. It is further submitted that section 20 of the Cooperative Societies Act provides for cancelation of the registration. It is submitted that even after the final order of winding up / liquidation, an order is required to be passed by the Registrar canceling the registration of the Society. It is submitted that therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the learned Division Bench did not grant the said relief. [5.6] Making above submissions and relying upon the aforesaid decision of the learned Single Judge of this Court, it is requested to allow the present Special Civil Applications and quash and set aside the impugned decision/s of the Authorized Officer excluding the names of the members of the Managing Committee of the petitioner Societies from the voters' list of Agriculturist Constituency and have requested to direct the Authorized Officer to include the names of the members of the Managing Committee of the petitioner Societies in the final list of voters of Agriculturist Constituency of APMC, Siddhpur. [6.0] All these petitions are vehemently opposed by Shri N.D. Nanavaty, learned Senior Advocate appearing with Shri Satyam Chhaya, learned advocate appearing on behalf of the respondent No.5 - original objectors. An affidavit in reply is filed on behalf of behalf of respondent No.5 opposing the present petitions. It is vehemently submitted by Shri Nanavaty, learned Counsel appearing on behalf of the original objector that in the facts and circumstances of the case and the purpose for which the learned Division Bench has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in Special Civil Application Nos.190/2015 and other allied matters set aside the orders passed by the District Registrar, Cooperative Societies, Patan of revival of the petitioner Societies meaning thereby interim order of winding up / liquidation would be restored/revived and/or come into existence. It is submitted that during the winding up proceedings and/or liquidation proceedings and even till the final order of winding up is passed by the District Registrar in exercise of powers under Section 107(3) of the Cooperative Societies Act, the Liquidator of the Society alone and only would be in administration and management of the Society. It is submitted that therefore when the Managing Committee of the Society would not be in administration and management of the Society, the members of the Managing Committee of the Society shall shall not have any right to participate in the election of the Market Committee and shall not have any right to include their names in the voters list of Agriculturist Constituency of APMC, Siddhpur. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the objector that even as per subsection (2) of Section 108 of the Coop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.190/2015 and other allied matters, when it was found that the order/s passed by the District Registrar, Cooperative Societies, Patan of revival of the respective petitioner Societies have been set aside and therefore, the interim order of liquidation / winding up under Section 107(1) of the Cooperative Societies Act shall revive, the Authorized Officer has as such rightly on the objection raised by the respondent No.5 - objector, excluded the names of the members of the Managing Committee of the petitioner Societies. Therefore, it is requested to dismiss the present petitions. [8.0] Heard learned advocates appearing on behalf of respective parties at length. A short question which is posed for consideration of this Court in present group of petitions is whether in a case where an interim order of winding up / liquidation is passed by the District Registrar in exercise of powers under Section 107 of the Cooperative Societies Act and no final order of winding up/liquidation has been passed under subsection (3) of section 107 of the Cooperative Societies Act, whether the members of the Managing Committee of such societies shall have the right to get their names included in the vot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.5 herein and others specifically prayed to direct the Authorized Officer not to include the names of the members of the Managing Committee of the petitioner societies in the voters' list of Agriculturist Constituency of APMC, Siddhpur, however no such relief has been granted by the Division Bench and as such the Division Bench has made the Rule absolute to the extent of quashing and setting aside the orders passed by the District Registrar, Cooperative Societies, Patan vacating the interim order/s of winding up/liquidation and directing the Additional Registrar (Appeals), Cooperative Societies to look into the matter. Meaning thereby and even as per the submissions made by the learned advocates appearing for respective parties, the resultant effect of the order passed by the Division Bench of this Court dated 12.02.2015 passed in aforesaid Special Civil Application No.190/2015 and other allied matters would be that the interim order of winding up / liquidation would be revived. That thereafter on considering the common judgment and order dated 12.02.2015 passed by the learned Division Bench in Special Civil Application No.190/2015 and other allied matters and on the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r offices. The office bearers / Officers of the Society shall vacate their offices only when a final order is made confirming the interim order of winding up / liquidation. Even while winding up order remains in force and/or after the final winding up order is passed by the District Registrar under Section 107(3) of the Cooperative Societies Act and after the period of limitation challenging the final order of winding up expires and thereafter the Registrar passes an order of cancellation of registration of a society, the registration of the Society continues. Therefore, on conjoint reading of Sections 107, 108 and 20 of the Cooperative Societies Act, after the interim winding up/liquidation order passed under Section 107(1) of the Cooperative Societies Act and before the final order of winding up is passed under Section 107(3) of the Cooperative Societies Act, the Officers shall continue to hold their offices and even the registration of the Society continues. Under the circumstances, when the registration of the Society continues, the members of the Managing Committee of such society dispensing with agricultural credit shall have a right to exercise their powers as officer bearer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view taken by the learned Single Judge in the case of Mansangbhai Dalsang Chaudhary (Supra) is in operation since 1994 and which has been consistently followed. [8.3] It is required to be noted that in the present case as observed herein above as such specific prayers were made by the respondent No.5 in aforesaid Special Civil Application No.190/2015 and other allied matters for directing the Authorized Officers not to include the names of the members of the Managing Committee of the petitioner Societies, however no such relief has been granted by the Division Bench while deciding and disposing of the aforesaid Special Civil Applications. Be that as it may, for the reasons stated herein above, we are of the view that the Authorized Officer has materially erred in excluding the names of the members of the Managing Committee of the petitioner Societies from the voters' list of Agriculturist Constituency of the APMC, Siddhpur on the ground that interim orders of winding up/liquidation have been passed, the members of the Managing Committee of such societies have no right to include their names in the voters' list. [9.0] In view of the above and for the reasons stated above, all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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