RAMANBHAI ISHVARBHAI PATEL vs. STATE OF GUJARAT

C/SCA/2526/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 2526 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 2527 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 2528 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-

========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== KANUBHAI RAMABHAI PATEL Versus STATE OF GUJARAT ========================================================== Appearance: MR MIHIR THAKORE, SR. ADVOCATE with MR. ARCHIT P JANI(7304) for the PETITIONER(s) No. 1 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the RESPONDENT(s) No. 1 MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL with MS MANISHA L. SHAH, GP with MS JYOTI BHATT, AGP for the Respondent No.1 MR MIHIR JOSHI, SR. ADVOCATE with MR DIPEN DESAI(2481) for the RESPONDENT(s) No.5 - Caveator ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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C/SCA/2526/2019 JUDGMENT Date : 14-15/02/2019

ORAL JUDGMENT 1. The extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is sought to be invoked by the petitioners in this set of three petitions, pending the Appeals being No.4 of 2019, 5 of 2019 and 6 of 2019 filed them before the respondent No.2 i.e. Additional Registrar (Appeals) under Section 153 of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act”). The prayers sought in these three petitions, which are identical in nature read as under:- “9.(A) Your Lordships may be pleased to issue a   writ   of   certiorari   or   a   writ   in   the nature   of   certiorari   or   any   other appropriate   writ,   order   or   direction quashing and setting aside the order dated 28.1.2019 passed by the respondent No.1 at Annexure­A to this petition  and  the  order dated   28.1.2019   passed   by   the   respondent No.2 (Annexure­K) and further be pleased to continue the order passed by the respondent No.2 at Annexure­H; (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order   or   direction   quashing   and   setting aside   the   resolution   dated   17.12.2018 passed   by   the   respondent   No.3   and   the Page 2 of 30

C/SCA/2526/2019 JUDGMENT registration   certificate   dated   18.12.2018 issued by the respondent No.4 at Annexure­B Colly to this petition.” FACTUAL MATRIX : 2. For the sake of convenience, the facts stated in Special Civil Application No.2526 of 2019 are taken into consideration. 2.1 The petitioner claiming himself to be the leading person in the Unjha Agriculture Market Committee (hereinafter referred to as "APMC”), has filed the Appeal No.6 of 2019 before the respondent No.2 challenging the resolution dated 17.12.2018 passed by the respondent No.3 District Panchayat, Mehsana, resolving to grant registration to the respondent No.5 Society along with the other societies. In the said Appeal, the petitioner has also challenged the Registration Certificate issued by the respondent No.4 Assistant District Registrar, Cooperative Societies, Mehsana, on 18.12.2018 to the respondent No.5. The petitioner had filed the said appeal on 15.1.2019 before the respondent No.2 under Section 153 of the said Act, on the ground that by virtue of the Notification dated 27.11.2018 issued by the State Government under Section 156 of the Gujarat Page 3 of 30

C/SCA/2526/2019 JUDGMENT Panchayats Act, 1961, the respondent District Panchayat had lost its powers to grant registration to the Cooperative Societies. 2.2 As transpiring from the impugned orders, though the respondent No.5 Society had filed a caveat application before the respondent No.2, without issuing any notice and without giving any opportunity of hearing to the respondent No.5 Society, the respondent No.2 passed an ex parte ad interim order, staying the operation of the said Resolution dated 17.12.2018 and the Registration Certificate dated 18.12.2018, till 23.1.2019. The respondent No.5 Society, having been served with the said ex parte order, challenged the same by filing a Revision Application being No.3 of 2019 before the respondent No.1 under Section 155 of the said Act. The respondent No.1 after issuing notice to the petitioner and after hearing the petitioner as well as the respondent No.5, passed the impugned order on 28.1.2019, vacating the ad interim stay granted by the respondent No.2 on 15.1.2019 in Appeal No.6 of 2019, and disposed of the Revision Application No.3 of 2019. Page 4 of 30

C/SCA/2526/2019 JUDGMENT 2.3 In the meantime, the respondent No.2 i.e. Additional Registrar (Appeals) at the instance of the respondent No.4 Assistant District Registrar, initiated suo motu proceedings being Suo Motu Revision Application No.6 of 2019 against the respondent No.5 Society and again passed the same order on 25.1.2019, after making note of the Caveat Application filed by the respondent No.5, staying the operation of the Resolution dated 17.12.2018 and the Registration Certificate dated 18.12.2018 till 30.1.2019. 2.4 The respondent No.2, thereafter vacated the said ex parte ad interim order granted by him on 25.1.2019 in suo motu Revision Application No.6 of 2019, after hearing the concerned parties and after considering the order passed by the respondent No.1 in similar cases. The respondent No.2 directed to hear the said Suo Motu Revision on 4.2.2019. 2.5 The petitioner, being aggrieved by the said orders passed by the respondent Nos.1 and 2 on 28.1.2019 (Annexure-A and K respectively), has filed the petition praying for the prayers as stated herein above. The other two petitions also contain similar Page 5 of 30

C/SCA/2526/2019 JUDGMENT facts and identical prayers, and therefore, the same are not repeated to avoid duplication of facts. PRELIMINARY OBJECTIONS: 3. At the outset, the learned Sr. Advocate Mr.Mihir Joshi for the respondent No.5 Society in all the three petitions has raised multiple preliminary objections as regards the maintainability of the petitions, on the ground that the petitioners have already availed of alternative remedy by filing appeals before the respondent No.2, which are pending for adjudication. He also submitted that the present petitions having been filed at the interlocutory stage, challenging the interlocutory orders would not be legally tenable. Assailing the very locus standi of the petitioners, he submitted that the petitioners in two petitions are the members of their respective Cooperative Societies, and the said Societies have already consented to grant registration to the respondent No.5 Society, and therefore, the petitioners in their individual capacity could not challenge the registration of respondent No.5 Society. According to him, the Page 6 of 30

C/SCA/2526/2019 JUDGMENT said facts having not been disclosed in the petitions, the petitions deserve to be dismissed on the ground of suppression of material facts. The petitioners have failed to show any legal injury suffered by them by the impugned order, and therefore, could not be said to be the aggrieved persons. On the conjoint reading of Section 4 and 9 of the said Act, it is only the concerned Society, which is likely to be adversely affected on the registration of the respondent No.5 Society could be said to be an aggrieved Society and not the individual member of such society. Mr.Joshi, relying upon the decision of this Court in case of Rameshbhai Maganbhai Lakhani Vs. State of Gujarat, reported in 2011(4) GLR 2877 dealing with the similar issues as involved in this set of petitions, urged that the petitions at the instance of the petitioners are not maintainable. 4. The learned Advocate General Mr.K. B. Trivedi appearing for the respondent Nos.1 and 2 also relying upon various decisions of the Supreme Court and of this High Court urged not to Page 7 of 30

C/SCA/2526/2019 JUDGMENT interfere at this stage, as the appeals are pending for adjudication before the respondent No.2. Mr.Trivedi was requested to call for the files from the Cooperation Department and the Legal Department for the perusal of the Court as to how the Notification dated 27.11.2018 came to be published. 5. In response to the various preliminary objections raised by Mr.Joshi, learned Sr. Advocate Mr.Mihir Thakore for the petitioners vehemently submitted that the very Resolution passed by the respondent District Panchayat, Mehsana on 17.12.2018 was without jurisdiction in view of the Notification dated 27.11.2018 (Annexure-D) issued by the State Government, and therefore, the said Resolution passed by the respondent No.3 as well as the Registration Certificate issued by the respondent No.4 were nullity in the eye of law. According to Mr.Thakore, the order which is ab initio null and void and without authority of law, could be challenged by way of writ petition without availing alternative remedy. In this regard he Page 8 of 30

C/SCA/2526/2019 JUDGMENT has placed heavy reliance on various decisions of the Supreme Court. He further submitted that the petitioners are desirous of contesting the election of the APMC, Unjha, which is scheduled to be held in April, 2019, and the Societies like the respondent No.5 Society having been granted registrations only with a view to inflate the voters’ list, the petitioners are the aggrieved persons and entitled to challenge the said resolution and the registration certificate granted in favour of the respondent No.5 Society. Of course, Mr.Thakore submitted that since the appeals filed by the petitioners, challenging the said resolution and the registration certificate are pending before the respondent No.2, he has no objection if the petitioners are relegated to the said authority, however, according to him in the meantime, the ex parte ad interim order which was passed by the respondent No.2 on 15.1.2019 should be restored. ALTERNATIVE REMEDY: 6. Whether existence of alternative remedy is an Page 9 of 30

C/SCA/2526/2019 JUDGMENT absolute bar to entertaining the writ petition under Article 226 of the Constitution of India is a question which has been repeatedly dealt with by the Supreme Court in catena of decisions. It is well settled canon of law that the availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of writ jurisdiction, however, such jurisdiction has to be exercised with some circumspection in exceptional cases. The Supreme Court in case of Union of India and Ors. Vs. Major General Shri Kant Sharma and Anr., reported in (2015) 6 SCC 773 after considering various earlier judgements has deduced the following principles in paragraph 36: “36. The   aforesaid   decisions   rendered   by this Court can be summarised as follows: (i) The power of judicial review vested in the High Court under  Article 226  is one of the   basic   essential   features   of   the Constitution   and   any   legislation   including Armed   Forces   Act,  2007   cannot  override   or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. (ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though   cannot   be   circumscribed   by   the provisions   of   any   enactment,   they   will certainly have due regard to the legislative Page 10 of 30

C/SCA/2526/2019 JUDGMENT intent   evidenced   by  the  provisions   of   the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (iii)When   a  statutory   forum  is   created   by law   for   redressal   of   grievances,   a   writ petition should not be entertained ignoring the statutory dispensation. (iv)The   High   Court   will   not   entertain   a petition   under Article   226 of   the Constitution   if   an   effective   alternative remedy is available to the aggrieved person or   the   statute   under   which   the   action complained of has been taken itself contains a mechanism for redressal of grievance.” 7. In the instant cases, the petitioners have already availed of the alternative statutory remedy available to them under the said Act, and the Appeals are at large with the respondent No.2. The petitions have been filed challenging the interim orders passed by the respondent Nos.1 and 2 with further prayers to stay the operation of the impugned resolution and the registration certificates. The question, therefore, that falls before this Court is whether such an interim orders could be passed by the Court in the writ petition, till the time the said Appeals are heard. 8. A very pertinent observations made by the Supreme Court in this regard in case of Page 11 of 30

C/SCA/2526/2019 JUDGMENT Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Ors., reported in 2010(9) SCC 437 may be reproduced as under:- “22. It is a settled legal proposition that the forum of the writ court cannot be used for the purpose of giving interim relief as the   only   and   the   final   relief   to   any litigant.     If   the   court   comes   to   the conclusion   that   the   matter   requires adjudication   by   some   other   appropriate forum and relegates the said party to that forum,   it   should   not   grant   any   interim relief in favour of such a litigant for an interregnum   period   till   the   said   party approaches   the   alternative   forum   and obtains interim relief.” 9. The Supreme Court in case of United Bank of India Vs. Satyawati Tondon and Ors., reported in 2010(8) SCC 110 has categorically observed in paragraph 45 as under:- “45. While expressing the aforesaid view, we are   conscious   that   the   powers   conferred upon   the   High   Court   under   Article   226   of the Constitution to issue to any person or authority,  including  in appropriate  cases, any Government, directions, orders or writs including   the   five   prerogative   writs   for the   enforcement   of   any   of   the   rights conferred   by   Part   III   or   for   any   other purpose   are   very   wide   and   there   is   no express   limitation   on   exercise   of   that power but, at the same time, we cannot be oblivious   of   the   rules   of   self­imposed restraint   evolved   by   this   Court,   which every High Court is bound to keep in view while exercising power under Article 226 of Page 12 of 30

C/SCA/2526/2019 JUDGMENT the Constitution.” 10.In case of Titaghur Paper Mills Co. Ltd. and Anr. Vs. State of Orissa and Ors., reported in 1983(2) SCC 433 and in case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, reported 1985(1) SCC 260 also it has been observed inter alia that the Article 226 is not meant to short-cut or circumvent statutory proceedings, and it is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situation, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution of India. LOCUS STANDI: 11.So far as the locus standi of the present petitioners to challenge the impugned resolution and the registration certificate is concerned, it may be noted that the two petitioners out of Page 13 of 30

C/SCA/2526/2019 JUDGMENT the three, i.e. petitioner Kanubhai Ramabhai Patel of SCA No.2526 of 2019 and petitioner Ramanbhai Ishvarbhai Patel of SCA No.2527 of 2019 are the members of the Bhramvanvada Seva Sahkari Mandli and Shree Upera Seva Sahkari Mandli respectively and the said Societies have not raised any objections against the registration of the respondent No.5 Society. On the contrary the said Societies have consented for the registration of the respective respondent No.5 Societies. As a matter of propriety, the petitioners being the members of the said Societies, should have disclosed the said facts in their respective petitions, and non-disclosure thereof would amount to suppression of material facts. Such suppression assumes significance in view of the proviso to Section 4 of the said Act, which reads as under:- “4.  A   society,   which   has   as   its   object   the promotion   of   the   economic   interests   or general welfare of its object the promotion of   the   economic   interests   or   general welfare of its member, or of the public, in accordance with co ­ operative principles, or a society, or a society established with the   object   of   facilitating   the   operations Page 14 of 30

C/SCA/2526/2019 JUDGMENT of   any   such   society,   may   be   registered under this Act : Provided   that   it   shall   not   be   registered if, in the opinion of the Registrar, it is economically   unsound,   or   its   registration have   an   adverse   effect   upon   any   other society, or it is opposed, or its working is likely to be in contravention of public policy.” 12. As transpiring from the bare reading of the said provision, the Society may be registered under the said Act, which has its object, the promotion of the economic interests or general welfare of its members or of the public in accordance with cooperative principles, or a society established with the object of facilitating the operations of any such society, provided that it shall not be registered if, in the opinion of the Registrar, it is economically unsound, or its registration may have an adverse effect upon any other society, or it is opposed to, or its working is likely to be in contravention of public policy. So far as the respective respondent No.5 Societies are concerned, the Societies which should have objected against their registrations would have been the societies, which are likely to be Page 15 of 30

C/SCA/2526/2019 JUDGMENT adversely affected upon their registrations. Bhramvanvada Seva Sahkari Mandli and Shree Upera Seva Sahkari Mandli of which the two petitioners are the members, have already granted no objection to the registration of the respective respondent No.5 Societies, and therefore, the said petitioners could not have challenged their registrations in their individual capacities. 13.Similar issue having cropped up before this Court in case of Rameshbhai Maganbhai Lakhani Vs. State of Gujarat (Supra), the Single Bench, after considering the decisions of the Supreme Court in case of Zoroastrian Cooperative Housing Society Ltd. and Another Vs. District Registrar, Cooperative Societies (Urban), reported in AIR 2005 SC 2306 and in case of Daman Singh and Ors. Vs. State of Punjab and Ors., reported in AIR 1985 SC 973 held inter alia that once a person becomes a member of a cooperative society, he loses his individuality qua the society and he has no independent rights except those given to him by the statute and the bye laws. It has been further observed as under:- Page 16 of 30

C/SCA/2526/2019 JUDGMENT “25. Thus   bearing   in   mind   the   prevalent position of law, one can safely deduce that leave   alone   individual   members   of   the existing society, even the existing society did not have any statutory right to lodge formal   or   substantial   objections   against consideration   of   the   proposal   for   new societies based upon the safeguard provided under proviso to Section 4 of the Gujarat Co­operative Societies Act 1961. 26.The   aforesaid   logical   deduction   from   the plain   reading   of   the   language   of   the statutory provisions of Section 4 to 9 of the Gujarat Co­operative Societies Act 1961 read with the decisions of the apex court gets   further   strengthened   from   plain reading of the provisions of appeal as laid down   in   Section   153   of   the   Gujarat   Co­ operative   Societies   Act   1961.   The   section 153   of   the   Gujarat   Cooperative   Societies Act   1961   provides   appeal   against   orders made

under

various

provisions

of Cooperative   Societies   Act   including   order under Section 4 and 9.  The sub­section (4) of   Section   153   period   for   two   month limitation   from   the   date   of   the communication   of   the   order   sought   to   be impugned in the appeal.   Now no provisions either   in   Section   4   to   9   or   in   Rules governing   the   registration   it   is   provided that   order   of   registration   is   also   to   be communicated   to   the   existing   societies   or to any objector as if it was an order made in   any   adjudicatory   or   quasi   judicial proceedings.   In   short   the   entire   exercise of   considering   registration   of   proposed societies under Section 4 to 9 is only an administrative exercise to be undertaken by the   Registrar   and   he   has   to   function   in accordance   with   the   statutory   provision. The process of registration of new society cannot be in any termed to be judicial or quasi   judicial   so   as   to   envisage   an adversarial

approach

from

existing society.” Page 17 of 30

C/SCA/2526/2019 JUDGMENT 14. The Court further observed in paragraphs 31 and 33 as under:- “31. The Court cannot accept the petitioners claim of any violation of their fundamental right   or   their   collective   suffering   on account  of registration  of new society  as it   was   sought   to   be   canvassed   that   on account of new society in the same area of operation  unhealthy  competition would have adverse  impact  upon  the  members,  like the petitioners,   of   the   existing   societies. This  aspect  was  required  to be considered by the existing societies in their general body   meeting   and   there   could   have   been resolution   that   in   such   a   case   society should   take   appropriate   action. But individual

members

like

present petitioners,   against   their   own   existing societies’   resolution   cannot   be   permitted to   bring   and   maintain   action   or   petition challenging   registration   of   the   new societies.  A catena  of the judgments  goes to show that Courts have no power to add or supply   or   read   into   the   plain   statutory provisions. The apex court has in case of Union   of   India   Vs.   Devki   Nandan   Agrawal reported   in   1992   Suppl.   (1)   SCC   323   held that   Courts   have   no   power   to   rewrite   the statutory provisions. The following list of authorities   go   to   support   the   proposition of law that plain language of the statute must   be   in   absence   of   any   ambiguity   must hold the field irrespective of its results. Namely (1), Sathidevi Vs. Prasanna (2010) 5 SCC 622, (2) AIR 1981 SC 1610, (3) AIR 2007 SC 1956, (4) (2009)13 SCC 22, (5) (2007)3 SCC 720. 32. xxx 33. The   Court   need   not   examine   the integrity of irregularity in according the Page 18 of 30

C/SCA/2526/2019 JUDGMENT registration to the new societies as under article   226   of   the   Constitution   such disputed   questions   of   facts   cannot   be examined   at   the   instance   of   those petitioners   who   have   no   locus   standi   to file the petition.” 15.The afore-stated decision applies in full force to the facts of the present case. The Court, therefore, is of the opinion that the petitioners in their individual capacity have no right to challenge the registration of the Cooperative Societies in the writ petition filed under Article 226 of the Constitution of India. They also could not fall within the category of aggrieved persons. As per the legal position settled by Supreme Court in case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Ors., reported in (2013) 4 SCC 465, only a person who has suffered or who suffers from legal injury can challenge the action in a Court of law. The relevant observations may be reproduced as under:- “Person aggrieved : 9. It is a settled legal proposition that a stranger   cannot  be   permitted   to  meddle   in any   proceeding,   unless   he   satisfies   the Authority/Court,   that   he   falls   within   the Page 19 of 30

C/SCA/2526/2019 JUDGMENT category   of   aggrieved   persons.     Only   a person   who   has   suffered,   or   suffers   from legal

injury

can

challenge

the act/action/order etc. in a court of law. A writ   petition   under  Article   226  of   the Constitution is maintainable either for the purpose  of   enforcing   a  statutory   or  legal right, or when there is a complaint by the appellant that there has been a breach of statutory   duty   on   the   part   of   the Authorities.   Therefore,   there   must   be   a judicially   enforceable   right   available   for enforcement,   on   the   basis   of   which   writ jurisdiction is resorted to. The Court can of   course,   enforce   the   performance   of   a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided   that   such   person   satisfies   the Court that he has a legal right to insist on such   performance.   The   existence   of   such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit   in   the   exercise   of   such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is   the   foundation   of   the   exercise   of   the said   jurisdiction   by   the   Court.  The  legal right that can be enforced must ordinarily be the right of the appellant himself, who complains   of   infraction  of   such  right   and approaches the Court for relief as regards the same. 10.  A   “legal   right”,   means   an   entitlement arising out of legal rules. Thus, it may be defined   as   an   advantage,   or   a   benefit conferred upon a person by the rule of law. The expression, “person aggrieved” does not include   a   person   who   suffers   from   a psychological   or   an   imaginary   injury;   a person aggrieved must therefore, necessarily be   one,   whose   right   or   interest   has   been adversely affected or jeopardised.” 16. The submission of Mr.Thakore that the Page 20 of 30

C/SCA/2526/2019 JUDGMENT petitioners are likely to contest election of APMC, Unjha and the registrations of the respondent Societies may affect the results of the said election, cannot be accepted, such apprehension being absolutely imaginary and hypothetical. As observed by the Supreme Court in the aforesaid case, the expression ‘aggrieved person’ does not include a person who suffers from a psychological or an imaginary injury, he must necessarily be one whose right or interest has been adversely affected or jeopardised. 17. In view of the above the petitions as such do not deserve any further consideration on merits as the Appeals are pending before the respondent No.2 for adjudication, however, during the course of arguments, the learned Sr. Advocate Mr.Mihir Joshi had submitted that the Notification dated 27.11.2018 on the basis of which the impugned resolution and the registration certificates are challenged, itself is illegal and invalid, having been issued under the repealed Act of 1961. In response thereto, learned Sr. Advocate Mr.Mihir Thakore has made Page 21 of 30

C/SCA/2526/2019 JUDGMENT elaborate submissions. The said issue being pure question of law, the Court had permitted the learned Advocates for the parties to address the Court on the legality and validity of the said Notification dated 27.11.2018. 18.Mr.Thakore, by placing reliance upon a catena of decisions of the Supreme Court, submitted that all irregular or erroneous or even illegal orders cannot be held to be null and void, as there is a fine distinction between the orders, which are null and void and the orders, which are irregular, wrong or illegal. In this regard he has relied upon the decision of the Supreme Court in case of Deepak Agro Foods Vs. State of Rajasthan and Others, reported in (2008) 7 SCC 748. Reliance is also placed on the decision of the Supreme Court in case of Lekhraj Sathramdas Lalvani Vs. N. M. Shah, Deputy Custodian cum Managing Officer, Bombay and Others, reported in AIR 1966 SC 334 to submit that when an authority passes an order, which is within its competence, it cannot fail merely because it purports to be made under a wrong provision, if it can be shown Page 22 of 30

C/SCA/2526/2019 JUDGMENT to be within its power under any other Rule. Mr.Thakore has also relied upon the decision of the Supreme Court in case of State of Karnataka Vs. Krishnaji Srinivas Kulkarni, reported in (1994) 2 SCC 558 and in case of M.T. Khan and Others Vs. Government of A.P. And Others, reported in (2004) 2 SCC 267, and also in case of Mohd. Shahabuddin Vs. State of Bihar and Others, reported in (2010) 4 SCC 653 to submit that the validity of the order/notification must be judged on a consideration of its substance and not its form, and that non-mentioning or wrong mentioning of provision of law would not invalidate an order, in the event it is found that the power therefor exists. Mr.Thakore has also heavily placed reliance on the decision of the Karnataka High Court in case of Sri B. H. Narayanaswamy and Ors. Vs. The Karnataka Power Transmission Corporation Limited and Anr., reported in 2009 SCC Online Kar 561 in this regard. Mr.Thakore has also relied upon the decision of the Supreme Court in case of B. K. Srinivasan and Others Vs. State of Karnataka and Others, reported in (1987) 1 SCC 658 and Page 23 of 30

C/SCA/2526/2019 JUDGMENT submitted that if the subordinate legislation does not prescribe the mode of publication, it will take effect on the publication of customarily recognized official channel i.e. the official gazette or some other mode of publication. According to Mr.Thakore, the Notification dated 27.11.2018 having been published in the official gazette, it had deemed to have come into force from the date of its publication and under the circumstances, the District Panchayat had ceased to have powers to grant registration from the said date of publication, and that in the instant case, the respondent Panchayat having passed the Resolution on 17.12.2018 i.e. after the publication of the Notification, when the respondent District Panchayat had ceased to have powers to register, such registration of the respondent No.5 Society would be null and void. 19.As stated earlier, the issue as regards the legality and validity of the Notification dated 27.11.2018 had cropped up only during the course of arguments, and therefore, the same does not Page 24 of 30

C/SCA/2526/2019 JUDGMENT find place in the pleadings of the parties. In absence of any pleadings and requisite material on record, it is difficult to express any final opinion on the legality and validity of the said Notification, nonetheless, it may be noted that the submission of Mr.Thakore that by virtue of the said Notification, the respondent District Panchayat had lost its power to grant registration to the Cooperative Societies, though prima facie seems to be very attractive and impressive, on a closer reading of the said Notification, the said submission requires deeper consideration. Admittedly, the said Notification has been issued invoking Section 156 of the Gujarat Panchayats Act 1961, which has stood repealed. There cannot be any disagreement to the proposition of law laid down by the Supreme Court in the decisions relied upon by Mr.Thakore to the effect that the non- mentioning or wrong mentioning of the provision of law would not invalidate the order or notification so long as the State has such power under some other provision of law. However, the Court also finds substance in the submission of Page 25 of 30

C/SCA/2526/2019 JUDGMENT Mr.Mihir Joshi to the effect that the Panchayats Act of 1961 had stood repealed by virtue of Section 276 of the Gujarat Panchayats Act 1993, and even if the source of power under the said Act of 1993 is traced from the provisions contained in Section 174 of Act of 1993, the Notification

dated

27.11.2018

being

a modification of the earlier Notification issued in the year 1981, and not of the Notification issued under the Act of 1993, the provisions contained in Clause (j) of Section 276(2) of the Panchayats Act of 1993 would come into play, which reads as under:- “276. Repeal and savings.­ (1) xxx (2) With effect on, and from the appointed day  the  Gujarat  Panchayats  Act 1961  shall stand

repealed

and

the

following consequences shall ensure, that is to say­ (a) to (i) xxx (j) any appointment, notification, notice, tax,

fee,

order,

scheme,

licence, permission,   rule,   bye­law,   regulation   or form   made,   issued   imposed   or   granted   in respect   of   the   local   area   of   an   existing panchayat   under   the   Repealed   Act   and   in force immediately before the appointed day, shall, in so far as it is not inconsistent Page 26 of 30

C/SCA/2526/2019 JUDGMENT with  the provisions  of this  Act,  continue to be in force as if made, issued, imposed or granted in respect of the corresponding local area of the successor panchayat under this   Act   until   superseded   or   modified   by any appointment, notification, notice, tax, fee,   order,   scheme,   licence,   permission, rule,   bye­law,   regulation   or   form   made, issued, imposed or granted under this Act. 20.The said Notification dated 27.11.2018 having not been issued in modification of the Notification issued under the Act of 1993, and having been issued invoking the provisions contained in the repealed Act of 1961, the said Notification could not be said to have been issued in accordance with the provisions contained in the Act of 1993 , and therefore, could not be said to be legal and valid. Though it is true that all erroneous or irregular or even illegal orders cannot be held as null and void as submitted by Mr.Thakore, the Court also finds substance in the submission of Mr.Joshi that even if it is held that the District Panchayats were divested of the powers to register the cooperative societies by virtue of the said Notification, then also the said Notification had only brought about the change in the forum, before whom such applications for Page 27 of 30

C/SCA/2526/2019 JUDGMENT registration would lie. Though such Notification, is deemed to have come into effect from the date of its publication, it has to be construed in absence of any specific provision made in the Notification that the fresh applications that may be filed by the proposed cooperative societies for registration would not be filed before the District Panchayat and would be filed before the Registrar, Cooperative Societies, in view of a very pertinent observations made by the Supreme Court in case of Commissioner of Income Tax, Orissa Vs. Dhadi Sahu (supra) which reads as under:- “18. It may be stated at the outset that the general   principle   is   that   a   law   which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown.  One of the modes by which such an intention is shown is by making a provision for change­over of proceedings, from the court or the tribunal where they are pending to the court of the tribunal   which   under   the   new   law   gets jurisdiction to try them.” 21. The Court at this juncture is not inclined to delve deep into the factual aspects of the matter, as the Appeals are pending for adjudication before the respondent No.2. It is, Page 28 of 30

C/SCA/2526/2019 JUDGMENT therefore, expected that the same shall be decided by the respondent No.2 in accordance with law and after taking into consideration the merits of the appeals, without being influenced by the observations made by this Court in this order. 22. Before parting, the Court cannot resist itself from observing that on the perusal of the original files of the Agricultural, Farmer Welfare and Cooperation Department and of the Legal Department, a very dismal and sorry state of affairs prevailing in the said departments has come to the fore. It appears that though apparently the officers in the hierarchy in both the departments have put their signatures, nobody has seriously applied their mind or bothered to verify whether the Gujarat Panchayats Act 1961 in fact, existed or not, or under which provision of which Act, the powers of the State Government to issue such Notification could be invoked. It is a matter of serious concern that the departments of the Government do not pay requisite attention to the Page 29 of 30

C/SCA/2526/2019 JUDGMENT legal issues involved in the important matters, which result into unwarranted litigations. 23. It is expected that the matter shall be taken up seriously at the highest level of the Government. Office is directed to send a copy of this order to the Chief Secretary, and the concerned Principal Secretaries/Secretaries of the Panchayats Department, of the Agricultural, Farmer Welfare and Cooperation Department and the Legal Department. 24. For the reasons stated above, all the petitions are dismissed. Sd/- (BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 30 of 30