1. Rule. Mr. Alkesh N. Shah, learned Assistant Government Pleader waives notice for respondent nos.
1 to 3 and Mr. G.M.Joshi waives notice for respondent no.4 in both the petitions. By consent of the learned Advocates appearing on behalf of the respective parties the matters are taken up for final hearing and disposal.
2. By way of these petitions under Articles 226 & 227 of the Constitution of India, the petitioner- Society as well as Members of the Managing Committee along with developers have filed the present writ petitions. Mr. Chirag B. Patel, learned Counsel appearing for the petitioner in Special Civil Application No. 15410 of 2011 prays for deleting petitioner Nos. 7 & 8. Permission granted. The petitioners in both the petitions have interalia prayed for the following reliefs :
“(A) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the order passed by order passed by the respondent No.3 dated 28/01/2009 appointing Administrator under Section 81 of the Act, at Annexure “A” to the petition, and also the order dated 01/04/2011 passed by the respondent No.2 in Appeal No. 12/2009 at Annexure “B” to the petition, and also the order dated 29/09/2011 passed by the respondent No.1 in Revision Application No.
122/2011 at Annexure C“”to the petition;
(B) Pending admission and final disposal of this petition, Your Lordships will be pleased to stay further implementation, execution and operation of the order passed by the respondent No.3 dated 28/01/2009 appointing Administrator under Section 81 of the Act, at Annexure “A” to the petition, and also the order dated 01/04/2011 passed by the respondent No.2 in Appeal No. 12/2009 at Annexure “B” to the petition, and also the order dated 29/09/2011 passed by the respondent No.1 in Revision Application No.
122/2011 at Annexure C“”to the petition;
(C) Be pleased to award the cost of this petition;
(D) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted.”
3. Pursuant to the notice issued by this Court, Affidavit-in-Reply is filed by respondent No.3 herein. It is averred in the said Affidavit-in-Reply that the Show Cause Notice issued under section 81 of the Gujarat Cooperative Societies Act, 1961 was issued only to the Chairman and Secretary to the Society and not to all the Members of the Committee.
4. Mr. Patel, learned Advocate appearing for the petitioners in both the petitions, on the basis of such statement having been made submitted that in view of this admission on the part of respondent No.3- Authority, the orders impugned in both the petitions deserve to be quashed and set aside. Mr. Patel further relied upon the judgment of this Court in the case of Hariharbhai M. Thakar and Ors. Vs. State of Gujarat, reported in 2007(2) G.L.H. 80 in paragraph Nos. 7 & 8 has observed thus :
“7 In the first instance, regardless of whether such practice and procedure is adopted, it is apparent that in exercise of powers u/s. 81 of the Act, it is the member, viz.,each individual member of the Executive Committee who is to be removed by superseding the committee and appointing an Administrator. The defaults stipulated in clauses (a) & (b) of sub-section(1) of Section 81 of the Act relate to acts of mis-management, negligence etc., and are attributable to the Managing Committee of the Society and not to the Society itself. In the circumstances, merely by serving notice on one of the office bearers of the Society it cannot be stated that the service has been effected qua all the members of the Managing Committee.
8 The nature of defaults is such that a particular default may be attributable to only one or other member and not necessarily all the members. Once the provisions stipulate removal of the member concerned it is necessary and incumbent on the respondent authority to issue individual notice to each member of the Managing Committee and a common notice served on one of the office bearers cannot satisfy the requirement in law of effecting service of individual notice. The reason is not far to seek. Every individual member may have a different and independent explanation qua the default alleged and there cannot be any common notice. The consequence is removal of the member concerned and in the circumstances, each one of the member is required to be issued an independent notice, independent of each other and independent of the Society.”
5. Considering the facts of the petitions, it transpires that notice was issued only to the Chairman and Secretary of the Society whereas other Members of the Managing Committee being petitioner Nos. 1 to 6 of Special Civil Application No. 14410 of 2011 are not served with the said notice and therefore the notice itself is defective as it does not comply with the requirement of the provisions of section 81 of the Gujarat Cooperative Societies Act, 1961.
6. On this sole ground, the orders impugned deserve to be quashed and set aside and the matters deserve to be remitted back to the first authority viz. District Registrar. It would be open for the District Registrar to issue a fresh notice to all Members as contemplated under the provisions of section 81 of the Act. Mr. B.M.Joshi, District Registrar – Respondent No.3, who is present in the Court as identified by Mr. Alkesh Shah, learned Assistant Government Pleader shall issue fresh notice within a period of fifteen days from today after following procedure prescribed under the Act as well as Rules applicable and shall take a fresh decision on such notice within a period of two months from the date of the issue of the notice in accordance with law.
7. It is made clear that as both these petitions are disposed of only on the sole ground of defective notice. This Court has not examined the matters on merits and it would be open for the authorities to take appropriate decision in accordance with law on the facts and evidence that may be brought on record without being influenced by the present order. The petitions are allowed to the aforesaid extent. Rule made absolute accordingly with no order as to costs. Interim relief stands vacated. Direct service permitted.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT