Vadodara Dist. Co-op. Milk Producers Union Ltd. Vs. K.V. Acharya, Dy. Registrar and Member of Board of Nominees and anr. - Court Judgment

Excerpt:
- - 1 the learned nominee of the registrar has clearly mentioned in his order that thoughthe petitioner had filed a caveat application before him, the petitioner had not produced any material on record to show that the copy of the caveat application was served on the plaintiff. in a deserving case if the court/authority finds that if the caveator need not be heard before passing of the ex-parteorder and when the very purpose of filing application is likely to be defeated it can pass interim order for the limited purpose and period. (2) if the registrar is satisfied that the amendment so forwarded is not contrary to this act or the rules, he may register the amendment: for the purpose of registration the society which proposes to have amendment of the bye-laws will have to forward the proposed amendment to the registrar and the registrar on being satisfied that the amendment is not contrary to the provisions of the act or the rules will have to pass an order of either registering or not registering them as the amended bye-laws. if the provisions of the gujarat co-operative societies act as well as the rules thereunder are taken into consideration, then it would be quite clear that it is the jurisdiction of the general body of the co-operative society to resolve for passing of any bye-laws or amendment of any bye-laws.s.d. pandit, j.1. i have heard the advocates for both the sides at length on merits, and, therefore, i proceed to dispose off this petition finally at this stage.2. the petitioner is a registered co-operative milk producers' union established under the provisions of gujarat co-operative societies act, 1961. the respondent no. 2 is a member-society of petitioner no. 1. the managing board of the petitioner-society had taken decision to amend some of its bye-laws pertaining to election of the board of the trustees. thereafter, it was decided to put up the said decision and to amend the bye-laws for the purpose of approval by the general body of the petitioner-society and for the purpose of doing same, the general body meeting of the petitioner-society was summoned on 20th june, 1996.3. the respondent no. 2 society filed lavad case no. 924 of 1996 on 27-6-1996 before the respondent no. 1 and obtained an order of ad interim injunction against the petitioner-society to discuss and to resolve the proposed amendments in the bye-laws. it is the case of the petitioner that the petitioner had filed a caveat application before the registrar's nominee. the registrar's, nominee, without hearing the present petitioner had passed the said order of ad interim injunction in favour of the respondent no. 2 - society at 11-30 p.m. the petitioner has come before the court to challenge the said order of the respondent no. 1 on 3 grounds:1. that the respondent no. 1 has passed the said order without hearing the petitioner inspite of the petitioner having filed a caveat application.2. that the said order of respondent no. 1 is without jurisdiction. the jurisdiction of the respondent no. 1 is challenged on 2 grounds:(1) that as per the distribution of the work order passed by the registrar, the matter in question could not go before the respondent no. 1 and he had no jurisdiction to entertain such a matter and second ground regarding jurisdiction is based on the contention that in view of the provision of sections 13, 153, 155 and 96 of the gujarat co-operative societies act, 1961, the respondent no. 1 had no jurisdiction to entertain the suit of the respondent no. 1 and consequently entertaining the application for ad interim injunction.3. that the respondent no. 1 ought not to have passed the interim order as it amounts to final decision of the dispute.4. the claim of the petitioner is resisted by the respondent no. 2 co-operative society. it is contended that the attempt made by the petitioner to come before this court for getting a relief under article 226 of the constitution of india should be rejected as the petitioner has got the efficacious remedy to approach to the higher authority against the order of the registrar's nominee as provided by the gujarat state co-operative societies act, 1961. it is further contended that the claim of the petitioner that the respondent no. 1 had no jurisdiction to entertain the said petition is ill-founded and not tenable in law. it is contended that there is a subsequent circular issued by the registrar on 6th june, 1995 and as per the said circular, the respondent no. 1 had jurisdiction to entertain the said proceeding. it is further contended that only after the full trial, it is possible to hold as to whether the respondent no. 1 had jurisdiction to entertain the said suit or not. the said submissions made on behalf of the respondent no. 2 are also adopted on behalf of the respondent no. 1 and it is further contended that the state of gujarat was a necessary party to the present proceeding.5. as regards the first contention of the petitioner, it must be said that while considering the application for ad interim injunction, the respondent no. 1 the learned nominee of the registrar has clearly mentioned in his order that thoughthe petitioner had filed a caveat application before him, the petitioner had not produced any material on record to show that the copy of the caveat application was served on the plaintiff. he has also further mentioned that a statement was made by the plaintiff before him that the copy of the caveat has not been served on the respondent no. 2. if the averments of the petitioner in the petition are considered, then it would be quite clear that in whole of the petition there is no denial of the said observations made by the registrar's nominee - respondent no. 1 in his order. therefore, if the petitioner who was the caveator before the registrar's nominee had not served the copy of his application on the original plaintiff as has been found by the registrar's nominee - respondent no. 1, then if the respondent no. 1 do not think it proper to hear the petitioner before considering and passing the order in favour of the respondent no. 2, then that conduct of the respondent no. 1 could not be said to be illegal or improper. it must be also observed that by mere filing of a caveat application, the jurisdiction of the court to pass ex-parteorder is not taken away. in a deserving case if the court/authority finds that if the caveator need not be heard before passing of the ex-parteorder and when the very purpose of filing application is likely to be defeated it can pass interim order for the limited purpose and period. therefore, in the circumstances, i am unable to hold that the order in question is illegal and improper on account of the filing of the caveat application by the present petitioner.6. the real dispute of the matter is as to whether the respondent no. 1 registrar's nominee had jurisdiction to entertain suit which filed before him by the respondent no. 2. it is an admitted fact that the board of the directors of the present petitioner has taken a decision to have certain amendments in their bye-laws and after taking such a decision in the meeting of the board of the directors, it was decided to put those proposed amendments in the bye-laws for the approval in the general meeting of the petitioner no. 1 - society. the respondent no. 2 has filed the suit seeking an injunction against the petitioner to restrain the petitioner to have the discussions and decision on proposed amendment of bye-laws. it is the claim of the petitioner that such a proceeding before registrar's nominee is not tenable. the claim of the petitioner will have to be taken into consideration in the background of the various provisions of the gujarat co-operative societies act, 1961. sections 13 and 14 of the gujarat co-operative societies act, 1961 are running as under:13. (1) no amendment of the bye-laws of a society shall be valid until registered under this act. for the purpose of registration of an amendment of the bye-laws, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the registrar.(2) if the registrar is satisfied that the amendment so forwarded is not contrary to this act or the rules, he may register the amendment:provided that no order refusing to register the amendment shall be passed except after giving the society an opportunity of being heard.(3) when the registrar registers an amendment of the bye-laws of a society, he shall issue to the society a copy of the amendment certified by him, which shall be conclusive evidence of its registration.(4) where the registrar refuses to register an amendment of the bye-laws of a society, he shall communicate the order of refusal, together with his reasons therefor, to the society.14. (1) if it appears to the registrar that an amendment of the bye-laws except in respect of the name or objects of a society is necessary or desirable in the interest of such society, he may call upon the society, in the prescribed manner, to make the amendment within such time as he may specify.(2) if the society fails to make the amendment within the time so specified, the registrar after giving the society an opportunity of being heard and with the prior approval of the state co-operative council, may register the amendment, and shall thereupon issue to the society a copy thereof certified by him. with effect from the date of the registration of the amendment in the manner aforesaid, the bye-laws shall be deemed to have been duly amended accordingly; and the bye-laws as amended shall be binding on the society and its members.if the above provisions of sections 13 and 14 are considered, then it would be quite clear that the amendment to bye-laws of a society will not become valid until they are registered under the act. for the purpose of registration the society which proposes to have amendment of the bye-laws will have to forward the proposed amendment to the registrar and the registrar on being satisfied that the amendment is not contrary to the provisions of the act or the rules will have to pass an order of either registering or not registering them as the amended bye-laws. the sections further provides that in case if the registrar wants to reject the said proposed amendment of bye-laws, then he must give an opportunity of being heard to the society which has proposed the amendment in the bye-laws. if the provisions of the gujarat co-operative societies act as well as the rules thereunder are taken into consideration, then it would be quite clear that it is the jurisdiction of the general body of the co-operative society to resolve for passing of any bye-laws or amendment of any bye-laws. the said jurisdiction or power of the general body of the co-operative society could not be controlled or disputed by any authority except the registrar of co-operative societies. the registrar, co-operative societies can interfere with the proposed amendment of the bye-laws or passing of the bye-laws by exercising powers under section 13 of the gujarat co-operative societies act and the rules framed therein. these sections 13 and 14 of the co-operative societies act have laid down a procedure or a method for amendment of the bye-laws of society. if a society is following the said procedure; then the society could not be restrained by filing a suit or a proceeding before the registrar's nominee from considering the said amendment of the bye-laws in the general body meeting. besides provisions of sections 13 and 14, section 153 of the gujarat co-operative societies act, 1961 is making a provision for preferring an appeal against the order of the registrar. therefore, when the registrar has passed an order either allowing or rejecting the amendment of the bye-laws, the said order is appealable as provided by section 153 of the gujarat co-operative societies act. then section 153 makes a further provision of a revision before the state government. thus, when the gujarat co-operative societies act, 1961 had laid down a specific provision for challenging or disputing the amendment of the bye-laws, a suit before the registrar's nominee will not be tenable because that will not amount to a dispute as contemplated by section 96 of gujarat co-operative societies act. therefore, the suit filed by the respondent no. 2 before the registrar's nominee - respondent no. 1 is not tenable in law in view of the provisions of section 96 read with sections 13, 153 and 155 of the gujarat co-operative societies act, 1961. therefore, in view of the said provisions, the respondent no. 1 registrar's nominee ought not to have entertained any suit to restrain any co-operative society from discussing the amendment in their bye-laws in the general body meeting. this point of jurisdiction of the respondent no. 1 is quite clear in view of the clear provisions of the act and there is no necessity to allow the proceeding in question to go before the registrar's nominee.7. no doubt, the gujarat co-operative societies act, 1961 is making provision for appeal and revision against the decision of registrar's nominee, but the said procedure need not be allowed to have recourse in the present matter when it is obvious and quite clear that initial jurisdiction to entertain the proceeding in question does not vests with the respondent no. 1. it would be waste of public time and public money to allow the continuation of the proceeding in question before the registrar's nominee. therefore, i hold that the original proceeding before the registrar's nominee is not tenable in law and he had no jurisdiction to entertain such proceeding under section 96 of the said act of 1961. consequently, the order passed by him is illegal and the same deserves to be quashed by exercising the jurisdiction under article 226 of the constitution of india.8. the petitioner has produced the circular issued by the registrar of cooperative societies, gujarat state, dated 3rd july, 1990. it seems that prior to july, 1990, there were only post of joint registrar and subsequently post of deputy registrar of class i as nominee of registrar has been created by the state government. after the creation of the said new post of deputy registrar as a nominee of the registrar, the registrar has issued this circular dated 3rd july, 1990. by this circular, he has distributed and assigned the work of the nominee between the joint registrar and the deputy registrar. it is sole prerogative of the registrar to distribute the work among his nominees. as per the distribution of the said work, the deputy registrar is to entertain only the proceedings for recovery of amount up to 50,000/- and he has been assigned another work regarding the sanction of leave of employees, passing orders of increments, pay bills, t.a. bills and passing of other financial orders in the office and the joint registrar has been empowered to entertain the cases of recovery exceeding the amount of rs. 50,000/- and all other cases other than the money recovery cases. now, if the said distribution of the work is taken into consideration, then it would be quite clear that the deputy registrar is not to entertain or consider any proceeding other than a proceeding for recovery of amount up to rs. 50,000/- and the proceeding which is a proceeding other than recovery of amount is to be entertained only by the joint registrar. admittedly the respondent no. 1 is a deputy registrar.9. no doubt, the learned advocate for the respondent no. 2 has produced before me the circular issued by the registrar, dated 6th june, 1995. it runs, as under:if the above circular is taken into consideration, then it would be quite clear that by the said circular out of the pending cases, the deputy registrar has been permitted to entertain a proceeding for recovery of amount even exceeding rs. 50,000/-. but the said circular does not empower him to entertain cases other than recovery cases. when the registrar has made the distribution of work among his nominees, then his nominees have to work as per the said distribution. therefore, the respondent no. 1 had no jurisdiction to entertain the proceeding in question before him. he ought to have returned the said proceeding to the petitioner before him in order to present the same to the joint registrar. therefore, on that ground also the order of respondent no. 1 in this case is without jurisdiction.10. the learned advocate for the petitioner has also vehemently urged before me that granting of ad interim injunction in question has amended to the final granting of the relief sought by the plaintiff in the plaint. he submitted before me that the respondent no. 1 ought not to have granted such a relief. he could have at the most represented the present petitioner from implementing resolution of the general body and he ought to have allowed the tabling of the said resolution and passing of the said resolution in the general body. merely because the ad interim order happened to result into finally deciding the controversy between the parties, it could not be said that the court has no jurisdiction to pass an interim order. it depends upon the nature of the proceeding. sometimes the interim relief would be of such a nature that it would amount to finally deciding the controversy between the parties, but it is settled law that merely because the deciding of the interim relief would amount to the finally deciding the controversy between the parties, the court cannot refuse to entertain interim relief and also from granting the same. therefore, i am unable to hold that merely because the ad interim relief in this case happen to deciding finally the controversy between the parties, the order of granting ad interim injunction is illegal and invalid. though i would observe that it is the duty of the court to take utmost care in granting ad interim relief and to see that no injustice causes to any party by order of the court. it is always expected by a court while granting ex parte order of ad interim injunction in favour of the party approaching the court to see that the interest of the party who is absent is also adequately protected by the court. it would not be proper on my part to lay down the norms for exercising the discretion by the trial court.11. thus, i hold that the respondent no. 1 had no jurisdiction to entertain the original proceeding. consequently the order passed by the respondent no. 1 is null and void.12. i, therefore hold that the same will have to be quashed and set aside by exercising powers under article 226 of the constitution of india. i, therefore, allow this writ petition and set aside the order passed by the respondent no. 1 and i also quash the lavad proceeding before the respondent no. 1. in the circumstances, i direct the parties to bear their respective cost. rule is made absolute accordingly.