1. The challenge in the present petition, preferred under Article 226 of the Constitution of India, is to Show Cause notice dated 29-4-2010 issued to petitioner No.2 by respondent No.1(District Registrar), under the provisions of Rule 32 of the Gujarat Co-operative Societies Rules,1965. The petitioners have prayed for the issuance of a writ of prohibition, or any other appropriate writ or order, quashing and setting aside the proceedings initiated by respondent No.1 against petitioner No.2, by way of the said Show Cause notice.
2. Petitioner No.1 is Shri Vavdi (Road) Seva Sahakari Mandli Ltd., a Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 ( The Act for short). Petitioner No.2 is the Chairman of petitioner No.1-Society.
3. Briefly stated, the relevant factual background as stated in the petition is that, petitioner No.1-society has been registered on 22-4-1955. Bye-laws have been framed and, as per bye-law No.4(a1) any person residing in the area of operation of the Society namely, village Vavdi(Road), Bhayavadar, Talali,Juna Badalpur and Nava Badalpur areas, is entitled to become a member of petitioner No.1-Society. It is the case of the petitioners that the forefathers of petitioner No.2 were residents of village Vavdi(Road) and owned agricultural land at that place. Petitioner No.2 was born at Vavdi (Road) and has inherited the said landed property,which he is holding. According to the petitioners, petitioner No.2 became a member of petitioner No.1-Society in the year 1987, and is Chairman of the said Society since 1988. Petitioner No.2 is enrolled as a voter at Vavdi(Road),and an election identity card has been issued to him by the Election Commission of India, at this address. Moreover, petitioner No.2 has also got an electricity connection at village Vavdi(Road). It is further the case of the petitioners that petitioner No.2 had previously been elected as a Member of the Legislative Assembly from Babra Vadia constituency, on the ticket of a particular political party twice, in 1990 and 1995,respectively, and as a Member of Parliament in 2004. Respondent No.2 had contested in the said Parliamentary election against petitioner No.2 in 2004, and had been defeated by petitioner No.2. It is asserted by the petitioners that as respondent No.2 is affiliated with the party in power, in the State of Gujarat and is a Minister in the State Government, holding the portfolio for the Co-operation Department, therefore, the impugned Show Cause notice has been issued as a result of the political dictates of respondent No.2, hence, the same deserves to be quashed and set aside.
4. Mr.B.S.Patel,learned advocate for the petitioners has forcefully submitted that the impugned Show Cause notice is merely an empty formality as respondent No.1 has already taken a decision that petitioner No.2 is not residing at village Vavdi (Road). It is contended that in other proceedings, an order dated 26-3-2010 had been passed by the District Registrar, under the provisions of Section 76B of the Act,removing petitioner No.2 as Member of the Managing Committee of Najapur Seva Sahakari Mandli Ltd., without issuing a Show Cause notice, which action has been challenged by filing a petition, being Special Civil Application No.3967 of 2010. The impugned order in that petition has been passed on the basis of an application to the effect that petitioner No.2 is not residing within the jurisdiction of Vavdi (Road) Seva Sahakari Mandli Ltd. and Najapur Seva Sahakari Mandli Ltd. It is emphatically submitted by Mr.B.S.Patel that, in the affidavit-in-reply filed in Special Civil Application No.3967 of 2010 by the District Registrar, it is stated that the petitioner No.2 is not residing within the jurisdiction of Najapur Seva Sahakari Mandli Ltd. and Vavdi (Road) Seva Sahakari Mandli Ltd.; meaning thereby that a decision has already been arrived at, against the petitioner.
4.1 It is further submitted by the learned counsel for the petitioners that respondent No.1 is acting at the behest of respondent No.2. Purportedly, an application dated 27-4-2010 has been received from one Bharatbhai Popatbhai Sorathia,which is the basis of the impugned Show Cause notice. It is emphasised by the learned counsel for the petitioners that the forefathers of petitioner No.2 were residing at village Vavdi (Road) and petitioner No.2 was born at that place and holds agricultural land there. Further, petitioner No.2 is a Voter of village Vavdi(Road) and his election identity card bears the address of that place. In addition thereto, a Ration Card has been issued to petitioner No.2 at the address of village Vavdi (Road), apart from there being an electricity connection in his name. It is contended by the learned counsel for the petitioners that at the relevant point of time when petitioner No.2 had been elected as a Member of Parliament, he had to shift his residence to Amreli and to New Delhi. The learned counsel for the petitioners contends that petitioner No.2 can have more than one residence, but that does not mean that he is not a permanent resident of village Vavdi (Road), and there is ample evidence on record to prove the same.
4.2 It is further urged by the learned counsel for the petitioners that the District Registrar has already disclosed his mind by filing an affidavit-in-reply to Special Civil Application No.3967 of 2010, wherein a stand has been taken that petitioner No.2 is not a resident of the area falling within the jurisdiction of Najapur Seva Sahakari Mandli Ltd. and petitioner No.1-Society. In the circumstances, to submit to the proceedings of the impugned Show Cause notice would mean that petitioner No.2 would have to go before an authority (respondent No.1),who has a predetermined mind, as the said respondent is acting under the political dictates of respondent No.2. It is further emphasised by the learned counsel for the petitioners that respondent No.2 is bent upon creating hurdles against petitioner No.2 for extraneous reasons, as the said respondent had suffered defeat at the hands of petitioner No.2, in the Parliamentary elections.
4.3 The learned counsel for the petitioners has asserted that though there is an alternative statutory remedy available to the petitioners, in the above circumstances, the same is illusory and would not prove to be an efficacious one, as the concerned authorities are acting at the behest of respondent No.2. The petitioner No.2 has a fundamental right to be a Member of an Association and respondent No.2 is targeting petitioner No.2,which has resulted in the issuance of the impugned Show Cause notice by respondent No.1. As the said Show Cause notice is a result of colourable exercise of power and has been issued for extraneous considerations, the Court may exercise discretion by issuing a writ of prohibition to quash and set aside the Show Cause notice, and the proceedings initiated against petitioner No.2, on the basis of the said Show Cause notice.
4.4 In support of the above submissions, the learned counsel for the petitioners has placed reliance upon the following judgments:
(a) Chimanbhai P.Trivedi V. B.R.Katara,1996(1)GLR 512
(b) V.K.Ashokan v.Asstt.Excise Commissioner, 2009(4) SCALE 225
5. The petition has been strongly opposed by Mr.Prakash K.Jani,learned Government Pleader, who has appeared on an advance copy of the petition. It is submitted by the learned Government Pleader that the petition is directed against a Show Cause notice issued to petitioner No.2, on the basis of an application dated 27-4-2010 received by respondent No.1 from one Bharatbhai Popatbhai Sorathia. Petitioner No.2 has stated in the cause title of the petition that he is a permanent resident of village Vavdi (Road), whereas in the cause title of Special Civil Application No.3967 of 2010, it is mentioned that petitioner No.2 is presently residing at Amreli.
5.1 The learned Government Pleader has submitted that, according to bye-law No.4(a1) of petitioner No.1-Society, only a person residing in the area of operation of the said Society is qualified to be a Member. This is in keeping with the objects of the Society, which are for the benefit of the public of the local area. The learned Government Pleader has contended that petitioner No.2 has stated contrary facts regarding his place of residence in both the petitions. By issuing the Show Cause notice,respondent No.1 has afforded an opportunity of hearing to petitioner No.2. The contents of the Show Cause notice are prima facie in nature, and it is upto petitioner No.2 to meet with them by appearing before the concerned authority, and producing material in support of his stand. Petitioner No.2 has been given an opportunity to respond to the Show Cause notice but has chosen not to file a reply. It cannot,therefore, be said that the Show Cause notice is an outcome of political pressure exerted by respondent No.2 upon respondent No.1.
5.2 The learned Government Pleader has further contended that, the reply filed in Special Civil Application No.3967 of 2010 should be seen in the context of that petition, where an order of removal had been passed against petitioner No.2 straightaway, without issuing a Show Cause notice. What is stated in the reply is based on a perusal of an application by a third party and cannot be said to constitute a finding arrived at by respondent No.1, against petitioner No.2. The learned Government Pleader has emphatically submitted that in that petition, no Show Cause notice had been issued, whereas in the present case petitioner No.2 has been issued the impugned Show Cause notice, to which he can respond by appearing before the concerned authority along with documents in support of his case, which shall duly be taken into consideration by the said authority. If petitioner No.2 is successful in establishing his case, the Show Cause notice may even be dropped,but even if an order is passed against him under Rule 32(3) of the Rules, the said order is subject to two revisional proceedings under the Scheme of the Act, before the Additional Registrar and Deputy Secretary, respectively, and if aggrieved thereafter, the remedy of filing a writ petition is there. The learned Government Pleader has contended that petitioner No.2 has an alternative, efficacious remedy available to him but, before even submitting a reply to the Show Cause notice, petitioner No.2 has filed the petition,even though it is not disputed that respondent No.1 has jurisdiction to issue the said Show Cause notice.
5.3 Refuting the allegations of political malafides, the learned Government Pleader has submitted that these allegations are not supported by any material on record, and petitioner No.2 is attempting to take shelter behind such allegations, in order to evade the proceedings.
5.4 On the basis of the above submissions, it is prayed that the Court may not entertain the petition.
6. I have heard the learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned Show Cause notice and other documents on record.
7. The main submission advanced by the learned counsel for the petitioners is that the proceedings before respondent No.1 would be illusory in nature as the said respondent has a predetermined mind. In this regard, the learned counsel for the petitioners has,time and again, referred to the affidavit-in-reply filed in Special Civil Application No.3967 of 2010, which is annexed as Annexure G to the petition. The papers of that petition have been made available to the Court by the learned Government Pleader. The said petition has been finally decided, by order dated 6-5-2010 passed by the Division Bench, wherein the Court has quashed the impugned order, on the ground that it had been passed in violation of the principles of natural justice. A copy of this order has been tendered by the learned counsel for the petitioners, and has been perused.
8. There is no dispute regarding the fact that the impugned Show Cause notice has been issued by respondent No.1, on the basis of an application dated 27-4-2010 received from one Bharatbhai Popatbhai Sorathia, alleging that petitioner No.2 is residing at Amreli, and not within the jurisdiction of petitioner No.1-Society, as required by bye-law No.4(a1) of the said Society, therefore,he should be disqualified as Member of the said Society. Petitioner No.2 has been called upon to reply to the Show Cause notice and submit material in his support, within a period of eight days from the date of the Show Cause notice. Admittedly, petitioner No.2 has not appeared before respondent No.1, nor has a reply been filed or material produced, pursuant to the Show Cause notice. Instead the petitioners have straightaway invoked the extraordinary jurisdiction of this Court, with a prayer to issue a writ of Prohibition, to quash the Show Cause notice and the proceedings initiated as a consequence thereof. It is the stand of the petitioners that though respondent No.1 has jurisdiction to issue the impugned Show Cause notice,however the same has been issued in colourable exercise of power and under the political dictates of respondent No.2, therefore,the alternative statutory remedy would be illusory, as the concerned authority has a predetermined mind against petitioner No.2.
9. In the context of the above submissions,the first question to be decided is whether the petition can be entertained, given the fact that it is directed against a Show Cause notice. In this regard, the learned counsel for the petitioners has relied upon Chimanbhai P.Trivedi V. B.R.Katara (Supra) wherein a Division Bench of this court has held that in exceptional or extraordinary circumstances, the High Court may entertain a petition even where an alternative remedy exists. In that case, the petitioner therein had challenged the decision of the Director under Section 3 of the Gujarat Agricultural Produce Markets Act,1963, declaring that he was not an agriculturist . The contention of the respondent that against the decision of the Director there was an alternative efficacious remedy by way of statutory appeal, was negatived by the Division Bench in the peculiar facts of that matter, as noted in paragraph 3 of the said judgment.
10. The point of difference between the factual matrix of that case and the present one is that, in Chimanbhai P.Trivedi V. B.R.Katara (Supra) there was an order of the Director against which a statutory remedy existed. In the present case only a Show Cause notice has been issued, and no order has been passed as yet. The petitioners have approached this court at a stage where petitioner No.2 has not responded to the Show Cause notice, or produced any material in support of his stand. Moreover, in Chimanbhai P.Trivedi V. B.R.Katara (Supra) the Division Bench had found, on the basis of material on record of that case, that the order of the authority had political and extraneous colour, whereas in the present case, no order has been passed. The affidavit-in-reply filed in Special Civil Application No.3697 of 2010 merely states that from a perusal of the application received against petitioner No.2 in that matter, it appears that petitioner No.2 was not a resident of the area falling within the jurisdiction of Najapur Seva Sahakari Mandli Ltd. and petitioner No.1-Society. The judgment in Chimanbhai P.Trivedi V. B.R.Katara (Supra) will,therefore, not be helpful to the petitioners on the facts of the present case.
11. The second judgment relied upon by the learned counsel for the petitioners is V.K.Ashokan v.Asstt.Excise Commissioner (Supra), which is a case under the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. In that case, the Show Cause notice had been issued pursuant to an order passed by a higher authority. The learned counsel for the petitioners has laid stress upon paragraph 32 of the said judgment, which deals with the submissions made before the Court to the effect that, when an authority had already made up its mind,the formality of complying with the principles of natural justice is a nominal and sham one. After considering the said submissions and several judgments, the Supreme Court held, in paragraph 35 of the said judgment, that it is a well settled principle of law that a statutory authority must exercise its jurisdiction within the four corners of the Statute and any action taken which is not within the domain of the said authority would be illegal and without jurisdiction. Admittedly, in the case in hand, the petitioners do not dispute that the Show Cause notice has been issued by an authority who has jurisdiction to do so. It is also not the stand of the petitioners that the impugned show cause notice does not fall within the four corners of the statute or that it is an outcome to an order passed by a higher authority. The factual and legal matrix in V.K.Ashokan v.Asstt.Excise Commissioner (Supra) is on a totally different footing than that obtaining in the present case,therefore, this judgment will not advance the case of the petitioners much further.
12. At this juncture, it would be helpful to examine the legal position regarding maintainability of a petition challenging a Show Cause notice under Article 226 of the Constitution of India. In Union of India and another v. Kunisetty Satyanarayana, reported in (2006)12 SCC 28, the Apex Court has lucidly summed up the legal position,as under:
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
13. The principles of law laid down in the above judgment are squarely applicable to the present petition, as no formal order has been passed against petitioner No.2 and,as such, the petition is premature. It may be helpful to examine what are the extraordinary circumstances or contingencies, the existence of which would not operate as a bar to entertaining a writ petition, without exhausting the alternative remedy. In this regard, the Supreme Court has elaborated on certain contingencies in Whirlpool Corporation v. Registrar of Trade Marks,Mumbai, reported in (1998) 8 SCC 1. The relevant extracts of the said judgment are reproduced herein-below:
The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. The High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
(Paras 14 and 15) Therefore, the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
(Para
20) Hence, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the Tribunal (Para
21)
14. On the peculiar facts of that case, the Show Cause notice was quashed as it was held that the Registrar had no jurisdiction to issue it. This is not the position in the present case. Secondly, by the issuance of the Show Cause notice, no legal or fundamental right of the petitioners, especially of petitioner No.2, has been infringed. Thirdly, it cannot be said that the principles of natural justice have been violated,as petitioner No.2 has been called upon to furnish the reply to the Show Cause notice, along with material in his support, which he has chosen not to do. The case of the petitioners, therefore, does not fall within the extraordinary and exceptional contingencies as contemplated in Whirlpool Corporation v. Registrar of Trade Marks,Mumbai (Supra).
15. Coming to the contention of the learned counsel for the petitioners to the effect that respondent No.1 has a predetermined mind against petitioner No.2 and is acting under pressure from respondent No.2, it is clear from a perusal of the affidavit-in-reply filed in Special Civil Application No.3967 of 2010, that the District Registrar was referring to the contents of the application received against petitioner No.2 in that matter. The submissions made in paragraph 7 of the said affidavit are based on a perusal of that application. Having gone through the said affidavit-in-reply, in the considered view of this Court, it cannot be said that any conclusive finding has been arrived at by respondent No.1 therein. Nor do the contents of the said affidavit disclose that the concerned authority has a predetermined mind against petitioner No.2. The affidavit-in-reply has to be read in the context of the factual background of the petition in which it is filed, namely, that an order of removal had been passed straightaway,without issuing a Show Cause notice to petitioner No.2. The said order has been set aside by order dated 6-5-2010 of the Division Bench,as being violative of the principles of natural justice. In the present case, there is no such allegation that there has been a violation of the principles of natural justice. The Show Cause notice issued to petitioner No.2, has still not culminated in an order. Moreover, against any order passed after adjudication of the Show Cause notice, there is an alternative remedy under the Scheme of the Act. At this stage, as no order has been passed on the basis of the impugned Show Cause notice, it cannot be said that petitioner No.2 is aggrieved in any manner.
16. Regarding the stand of the petitioners, that the impugned Show Cause notice is a result of political pressure from respondent No.2, after thoroughly scrutinising the averments made in the petition and the documents annexed thereto, the Court finds that there is not even an iota of material on record to make good this contention. The allegations of the petitioners that respondent No.2 has pressurised respondent No.1 into issuing a Show Cause notice in order to avenge his defeat at the hands of petitioner No.2 in the Parliamentary elections held in 2004,do not stand substantiated from any material on record. Apart from bald statements and allegations, the learned counsel for the petitioners has failed to establish the allegations of political malafides against respondent No.2, and colourable exercise of power in issuing the Show Cause notice by respondent No.1. It is a settled position of law that allegations of malafide and colourable exercise of power have not only to be pleaded, but have to be proved by producing cogent material on record.
17. In the above circumstances, it cannot be presumed that merely because petitioner No.2 and respondent No.2 are political rivals, the impugned Show Cause notice has been issued by respondent No.1,as a result of pressure exerted by respondent No.2.
18. Examining the case of the petitioner from all angles, in the considered view of this Court, no exceptional circumstances have been made out to persuade this Court to exercise discretion under Article 226 of the Constitution of India.
19. Further, the petitioners have prayed for the issuance of a writ of prohibition. This prayer has been strongly reiterated by the learned counsel for the petitioners in his submissions.
20. It is clear that petitioner No.1-Society is not mentioned in the impugned Show Cause notice, which is addressed only to petitioner No.2. It is not,therefore, clear how petitioner No.1 is aggrieved, so as to pray for the issuance of a writ of prohibition.
21. In order to examine this plea at the behest of petitioner No.2 it would be helpful to notice a relevant judicial pronouncement. In what circumstances, the Supreme Court or the High Courts may issue a writ of prohibition, has been laid down in Thirumala Tirupati Devasthanams v. Thallappaka Anantha Charyulu, reported in AIR 2003 SC 3290. The relevant extract of the said judgment is reproduced herein below:
14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a clock of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate Court. It was not even argued that there was total lack of jurisdiction in the civil Court. It could not be denied that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the civil Court to decide these questions. In the impugned Judgment no reason, much less a cogent or strong reason, has been given as to why the civil Court could not be allowed to decide these questions. The impugned judgment does not state that the civil Court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the civil Court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil Court be not allowed to decide whether the suit was barred by virtue of Section 14 of the said Act or on principles of res judicata/estoppel. To be remembered that no fundamental right is being violated when a Court of competent jurisdiction is deciding, rightly or wrongly, matters before it .
22. The principles of law laid down in the above-quoted judgment apply squarely to the facts of the present case. None of the grounds where a writ of prohibition can be issued are made out in this case. The competent authority i.e. respondent No.1 has not yet adjudicated upon the Show Cause notice. No exceptional or compelling reasons have been made out by the petitioners to show that any legal or fundamental right has been violated, or that there is a lack of jurisdiction, or that the impugned notice has been issued as a result of colourable exercise of power, at the behest of respondent No.2. In the above circumstances, there is no justifiable reason for this Court to entertain the petition.
23. At this juncture,it would be relevant to mention that the learned counsel for the petitioners as well as the learned Government Pleader have made certain submissions, for and against, on the merits of the case, regarding the material produced by petitioner No.2 in support of his contention that he is a resident of village Vavdi (Road). However, this Court will refrain from expressing any opinion in this regard, as to go into this aspect would hamper the process of adjudication of the Show Cause notice, by the competent authority. It is,therefore, made clear that this Court has not entered into the merits of the case, and no observation made in this order may be construed,as such.
It is open to petitioner No.2 to appear before respondent No.1 and produce material in his support. In that eventuality, respondent No.1 shall adjudicate upon the said Show Cause notice on merits, and in accordance with law, without being influenced by the factum of filing of the present petition.
24. As a result of the aforesaid discussion, the petition must fail. It is, therefore, dismissed.
(Smt.Abhilasha Kumari,J) arg Top