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Wednesday, April 26, 2017

“Show-Cause Notice-I”) by the Registrar[4] of the Co-operative Societies (hereafter “the Registrar”) purporting to be one issued under Section 76B(1) & (2) of THE ACT calling upon Chaudhary to show cause why he should not be removed from the office for various reasons mentioned therein.[5] Chaudhary challenged the said show-cause notice by way of a writ petition. = Chaudhary was elected as its Chairman for a period of three years commencing from 2.5.2011 to 1.5.2014. However, he continued to hold the office beyond the period of three years by virtue of the operation of Section 74C(2) - as it then existed: “Section 74C(2). When the election of all the members of the committee of any such societies held at the same time, the members elected on the committee at such general election shall hold office for a period of three years from the date on which the first meeting is held and shall continue in office until immediately before the first meeting of the members of the new committee.”= There is nothing in Act No.12 of 2015 which warrants an interpretation that the legislature intended to create a disqualification which would run for a maximum period of six years with retrospective effect. The learned Additional Solicitor General Shri Mehta fairly accepted it. In the circumstances, the disqualification of six years upon Chaudhary is not tenable and at best Chaudhary could be disqualified for a maximum period of four years. We are of the opinion that having regard to the acts and omissions of Chaudhary forming the basis of disqualification cannot be said to be unreasonable. In the result, appeals of Chaudhary fail and appeal of the State is disposed of in terms of the above.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                    CIVIL APPELLATE/ORIGINAL JURISDICTION

                        CIVIL APPEAL NO.14678 OF 2015

VIPULBHAI MANSINGBHAI CHAUDHARY         …   APPELLANT

Versus

STATE OF GUJARAT & ANOTHER              …   RESPONDENTS


                                    WITH

                        WRIT PETITION(C) No.824/2015
                         CIVIL APPEAL NO.13784/2015
                          CIVIL APPEAL NO.1881/2016




                               J U D G M E N T



Chelameswar, J.

C.A NO.14678/2015, C.A. No.1881/2016 & C.A.No.13784/2015

1.    There are three appeals before us  -  two[1]  of  them  filed  by  one
Vipulbhai Mansingbhai  Chaudhary,  ('Chaudhary'  hereafter)  and  the  third
filed by the State of Gujarat & Others[2].

2.    The matter arises under the Gujarat Co-operative Societies  Act,  1961
(for short 'THE ACT').  The Mehsana  District  Co-operative  Milk  Producers
Union Ltd. (hereafter ‘UNION’) is  a  Society  within  the  meaning  of  the
expression under Section 2(19)[3] of THE ACT.  Chaudhary was elected as  its
Chairman for a period of three years commencing from 2.5.2011  to  1.5.2014.
However, he continued to hold the office beyond the period  of  three  years
by virtue of the operation of Section 74C(2) - as it then existed:
“Section 74C(2). When the election of all the members of  the  committee  of
any such societies held at  the  same  time,  the  members  elected  on  the
committee at such general election shall hold office for a period  of  three
years from the date on which the first meeting is held  and  shall  continue
in office until immediately before the first meeting of the members  of  the
new committee.”


3.    During the continuance  of  Chaudhary  in  the  office,  a  show-cause
notice was issued on 12.1.2015  (hereafter  “Show-Cause  Notice-I”)  by  the
Registrar[4] of  the  Co-operative  Societies  (hereafter  “the  Registrar”)
purporting to be one issued under Section 76B(1) & (2) of  THE  ACT  calling
upon Chaudhary to show cause why he should not be removed  from  the  office
for various reasons mentioned therein.[5]   Chaudhary  challenged  the  said
show-cause notice by way of a writ  petition.    It  was  dismissed  by  the
Gujarat High Court  as  pre-mature.    The  dismissal  was  confirmed  by  a
Division Bench in a Letters Patent Appeal. Aggrieved, Chaudhary carried  the
matter to this Court by way of SLP (Civil) No.4668/2015 which was  filed  on
12.2.2015.

4.    During the pendency of SLP (Civil) No. 4668  of  2015,  the  Registrar
passed a final order on 10.3.2015[6] by which  Chaudhary  was  removed  from
the office and also disqualified for a period of three  years  from  holding
“any office in any Sahakari Mandal to participate  in  any  election  for  a
period of three years”.

5.    This Court  by  an  order  dated  20.3.2015  disposed  of  SLP(C)  No.
4668/2015 directing that status quo regarding the  order  of  the  Registrar
dated  10.3.2015  be  maintained  till  30.3.2015  to  enable  Chaudhary  to
approach  the  appropriate  forum  challenging  the   correctness   of   the
Registrar’s order dated 10.3.2015.

6.    Chaudhary filed a statutory  revision  before  the  State  Government.
The Government by its order dated 8.5.2015 confirmed the  Registrar’s  order
dated 10.3.2015.

7.    Aggrieved by the same, Chaudhary filed a Writ  Petition  No.9618/2015.
A learned judge of the High Court by his  judgment  dated  29.9.2015  upheld
the action of the Registrar insofar  as  it  pertained  to  the  removal  of
Chaudhary from the office but set aside the order insofar  as  it  pertained
to the disqualification of Chaudhary for a future  period  of  three  years.
It  was  held  that  proceedings  under  Section  76B(2)  for  disqualifying
Chaudhary could have been  initiated  only  after  an  order  under  Section
76B(1) is passed.  Since the Registrar acted on the  basis  of  a  composite
notice (Show-Cause Notice-I), the action  of  the  Registrar  under  Section
76B(2) could not be sustained.

8.    Aggrieved by that part of the judgment in Writ  Petition  No.9618/2015
insofar as it went against him, Chaudhary preferred  Letters  Patent  Appeal
(LPA) No.1302 of 2015.  The said LPA was dismissed on 19.10.2015.  Chaudhary
approached this Court by way of Special  Leave  Petition  (C)  No.33630/2015
[now C.A.No.14678 of 2015].

9.    In view of the fact that the High Court had set  aside  the  order  of
the Registrar disqualifying Chaudhary for  a  period  of  three  years,  the
Registrar issued a fresh show-cause notice dated 3.10.2015 (hereafter ‘Show-
Cause Notice-II’) calling upon Chaudhary to explain as to why he should  not
be disqualified for a future period in exercise of the powers under  Section
76B(2) of THE ACT.

10.   The said show-cause notice was challenged by Chaudhary  again  by  way
of  another  Writ  Petition  (SCA  No.  17826  of  2015)  unsuccessfully.[7]
Chaudhary   carried   the   matter   in   Letters   Patent    Appeal    (LPA
No.1343/2015)[8].


11.   Eventually, the LPA No.1343/2015 of Chaudhary was allowed by the  High
Court on 2.11.2015.  The Show-Cause Notice-II was quashed holding:
“16.  If the impugned order of the  learned  single  Judge  is  examined  in
light of the observations made by us hereinabove, it can be  said  that  the
learned single Judge has committed error in interpreting the  provisions  of
section 76B(1) and 76B(2)  of  the  Act  and  the  consequential  order  for
dismissal of the petitioner calls for interference.

17.   As observed by us, if the second separate show  cause  notice  is  not
contemplated as per section 76B(2) of the Act,  and  both  the  consequences
should arise in only one proceeding under proceedings of  76B  of  the  Act,
then the fact remains that the order for  disqualification  was  quashed  by
this  court  without  there  being  any   express   liberty   reserved   for
continuation with the proceedings for disqualification under section  76B(2)
of  the  Act.   Therefore,  in  light  of  the  aforesaid  observations  and
discussions, it can  be  said  that  the  impugned  action  of  issuance  of
separate show cause notice for disqualification under section 76B(2) of  the
Act is without jurisdiction and beyond the scope of section 76B of the Act.

and therefore concluded:

20.   In view of the above, the impugned notice dated  3.10.2015  (Annexure-
F) is quashed being beyond the scope and ambit of section 76B  of  the  Act.
The order of the learned single Judge is set aside.  The appeal  is  allowed
accordingly.  Considering the  facts  and  circumstances,  no  order  as  to
costs.”


12.   It can be seen from the above that the High Court held that the  Show-
Cause Notice-II is untenable for the reason that when  the  High  Court  had
set aside the Show-Cause Notice-I,  it did not record that the Registrar  is
permitted to issue a fresh show-cause notice proposing action under  Section
76B(2).

13.   Before recording such  a  conclusion,  the  High  Court  rejected  two
submission made on behalf of the Registrar:

(i)   that in view of the fact that  the  earlier  order  of  the  Registrar
disqualifying Chaudhary was quashed on the ground of  breach  of  principles
of natural justice, it would still be open to the Registrar  to  issue  show
cause notice under Section 76B(2) of THE ACT.[9]

(ii)  Chaudhary is estopped from  arguing  that  the  notice  under  Section
76B(2) is illegal because  in  Writ  Petition  No.9618  of  2015,  Chaudhary
contended that a composite notice under Section 76B(1) and (2) proposing  to
remove Chaudhary from office and disqualifying  him  for  a  further  period
from contesting any election to the Society was illegal.


14.   The reasons of the High Court for rejecting the above two  submissions
of the Registrar are recorded at para 18.1 and 19 respectively as follows:
“18.1  As such, the facts of all the aforesaid cases cannot be equated  with
the facts and circumstances of the present  case  as  narrated  hereinabove.
Further, in view of the interpretation as made by us  hereinabove,  if  only
one proceeding is  contemplated  under  section  76B  of  the  Act  for  two
consequences of removal and disqualification,  and  those  proceedings  have
ended in SCA No. 9618 of 2015 and LPA No. 1302 of  2015,  it  would  not  be
open to the authority to initiate second  proceedings  on  the  same  facts,
more  particularly  when  no  express  liberty  was  so  reserved  and  even
otherwise also it could not be reserved in view of the  interpretation  made
by us hereinabove. Hence, when  initiation  of  the  second  proceedings  by
issuance of the show cause notice is beyond the scope of section 76B of  the
Act, the said decisions would be of no help to Mr. Jani, learned AAG.”

19.   Mr. Jani, learned AAG did attempted to contend that the  appellant  in
the earlier round of litigation of SCA  9618  of  2015  had  contended  that
separate show cause notice under Section 76B(2) of the Act was  required  to
be issued and not the composite notice under section 76B(1)  &  (2)  and  he
further contended  that  learned  single  judge  having  accepted  the  said
aspect, it would not be open to the petitioner to play hot and cold  at  the
same time, and now to contend that a composite  notice  was  required,  more
particularly when the learned single Judge has accepted the said  contention
and the said order has been not interfered with in the LPA.”



15.   In the meanwhile on 23.10.2015, a notification fixing  the  dates  for
the election  to  the  Managing  Committee  of  the  UNION  for  the  tenure
commencing from 2015 to 2020 was issued.  Chaudhary  filed  his  nomination.
He was declared elected uncontested on 18.11.2015.


16.   Aggrieved by the judgment in LPA No.1343 of 2015  dated  2.11.2015  by
which the second show-cause notice was quashed by the High Court,  State  of
Gujarat and others filed SLP(C) No. 32004 of 2015 (Civil Appeal No.13784  of
2015).

17.   By an order dated 23.11.2015 of this Court,  Chaudhary  was  permitted
to reply to the second show-cause  notice[10]  and  he  did  infact  file  a
reply.   Thereupon  the  Registrar  passed   an   order   dated   16.12.2015
disqualifying Chaudhary for a period of six (6) years.
“Therefore, I, Nalin Upadhyay (IAS),  Registrar  of  Cooperative  Societies,
Gujarat State, Gandhinagar, in exercise of powers conferred  upon  me  under
section 76(B)(2) of the Gujarat Cooperative  Societies  Act,  1961,  declare
Mr.  Vipulbhai  Mansingbhai  Chaudhary,  the  then  Chairman,  the   Mehsana
District Cooperative Milk Producers Union Ltd., Mehsana, as disqualified  to
participate in any election or to hold any  post  in  the  Mehsana  District
Cooperative  Milk  Producers  Union  Ltd.,  Mehsana  and  also   any   other
cooperative organization in the State, for a period of 6  (six)  years  from
the date of this order.”


18.   Aggrieved by the same, Chaudhary filed Writ Petition  (SCA  No.177  of
2016).  By the judgment dated 18.01.2016, the same was partly allowed  by  a
learned Single Judge:
“26.  For the reasons stated above, the impugned order dated  16.12.2015  is
quashed only to the extent it imposes period of  disqualification  beyond  3
years.  Disqualification of the petitioner under section 76B(2) of  the  Act
for a period of 3 years is not disturbed.  The petitioner,  thus  will  have
to suffer disqualification under section 76B(2) of the Act for a  period  of
3  years  from  the  date  of   the   impugned   order.    To   the   extent
disqualification is imposed beyond 3  years,  the  petition  succeeds.   The
petition thus finally stands disposed of accordingly.”


19.   Challenging  the  said  judgment  insofar  as  it  went  against  him,
Chaudhary carried the matter in LPA No.55 of 2016.  A division bench of  the
High Court by its judgment dated 28.01.2016 declined to interfere  with  the
Single Judge’s order.
“17.  In view of the aforesaid observations and discussion, we find that  no
further case is made out for interference to the view taken by  the  learned
Single Judge in the impugned order.   Hence,  the  appeal  is  disposed  off
accordingly with no order as to costs.”

Hence, SLP (C) No.3980/2016, now Civil Appeal No.1881 of 2016.

20.   Following submissions are made on behalf of Chaudhary:
(i)   The order of the Registrar dated  10.03.2015  had  been  set-aside  in
part [insofar as it pertained to action under Section 76B(2)]  by  the  High
Court in Writ Petition No.9618  of  2015.   The  same  was  allowed  by  the
Registrar to become final without any further challenge.   Therefore,  Show-
Cause Notice-II could not have been issued in the absence of  the  grant  of
any leave by the High  Court  to  issue  a  fresh  show-cause  notice  under
Section 76B(2).

(ii)  If Show-Cause Notice-II is illegal, all further  action  flowing  from
show-cause notice-II are void ab initio.

(iii) Assuming for the sake of argument that the Registrar  is  entitled  to
issue show-cause notice-II and take consequential  action,  the  process  of
disqualifying   Chaudhary   invoking   power   under   Section   76B(2)   is
unsustainable,  because each one of the acts or omissions which  formed  the
basis for action against Chaudhary was either taken by or  ratified  by  the
governing body (“committee”) of the society.  Therefore, action  if  at  all
required ought to be taken against the entire governing body of the  society
under Section 81 but not against individual members  thereof  under  Section
76B.

(iv)  Alternatively, it is submitted that even if resort to the power  under
Section 76B is permissible, show-cause notice-II narrates the  same  set  of
facts and gives the same reasons for action both under sub-sections (1)  and
(2) to Section 76B.  Such a course of action is not  permissible  under  law
as the considerations relevant under Section 76B(1) for removing  an  office
bearer of the society from the office  and  considerations  which  call  for
disqualifying an office bearer under Section 76B(2) either from holding  any
office  or  contesting  an  election  to  the  office  must  necessarily  be
different.

(v)   Even if action under Section 76B(2) is tenable, the  decision  of  the
Registrar to disqualify Chaudhary for  six  years  is  wholly  unsustainable
because it is not mandatory under sub-section (2)  to  disqualify  a  person
for complete six years in every case.

(vi)  The order  under  Section  76B(2)  must  disclose  the  reasons  which
prompted  the  Registrar  to  impose  a  disqualification  for  the  maximum
permissible period of six years.  The order is  absolutely  silent  in  this
regard thereby rendering the order wholly arbitrary.

21.   The State of Gujarat and the Registrar submitted:
(i)   The Division Bench of the High Court grossly erred  in  recording  the
conclusion that show-cause notice-II is illegal on the ground  that  it  was
issued without obtaining the leave of the High Court when it  had  partially
set-aside (in Writ Petition No.9618 of 2015) the order dated 10.03.2015.

(ii)  Except for the ipsi dixit of the High  Court  that  the  Registrar  is
required to obtain leave of the Court before issuing  show-cause  notice-II,
neither any principle of law nor any provision of law which forms the  legal
basis for such a proposition is referred to in the impugned judgment.

(iii) In the alternative, it is  argued  that  Chaudhary  is  estopped  from
advancing such an argument in view of the fact he had challenged  the  order
of the Registrar dated 10.03.2015 insofar as it pertained to Section  76B(2)
on the ground that such a notice could not have been issued in  exercise  of
the power under Section 76B(2) without first recording  a  conclusion  under
Section 76B(1) that he was required to be removed from the office.

(iv)  The findings recorded by the Registrar  after  an  elaborate  inquiry,
that various charges against Chaudhary are proved,  are  findings  of  fact.
Those findings disclose  that  the  various  actions/omissions  held  proved
against  Chaudhary  are  prejudicial  to  the  interest  of   the   society.
Therefore, they rightly formed the basis for both the actions  i.e.  removal
of Chaudhary  from  the  office  as  well  as  the  decision  to  disqualify
Chaudhary under Section 76B(2).

(v)   Assuming for the sake of argument that the  various  actions/omissions
which formed the basis for action against Chaudhary are  either  with  prior
approval or  subsequent  ratification  of  the  Committee  of  the  UNION  -
justifying action under Section 81 of THE ACT, law does not prohibit  action
against individual members of the Committee.  On  the  other  hand,  Section
76B clearly provides for such a possibility.

22.   A brief survey of the two  provisions  of  THE  ACT  is  necessary  to
examine the various questions involved in these appeals.

23.   Section 76B provides for  (i)  removal  of  “any  officer”;  and  (ii)
disqualification of such a removed officer to hold or  contest  election  to
any office either of that  Society  or  any  other  Society  for  a  certain
period.
“76B. Removal of officer – (i) If, in the  opinion  of  the  Registrar,  any
officer makes persistent default or  is  negligent  in  performance  of  the
duties imposed on him by this Act or the  rules  or  the  bye-laws  or  does
anything which is prejudicial to the interests of the society  or  where  he
stands disqualified by or under this Act, the Registrar  may,  after  giving
the officer an opportunity of being heard, by order remove such officer  and
direct the society to elect or appoint a person or  a  qualified  member  in
the vacancy caused by such removal and the officer so elected  or  appointed
shall hold office so long only as the officer in whose place he  is  elected
or appointed would have held if the vacancy had not occurred.

(2)  The Registrar may, by order, direct that the officer so  removed  shall
be disqualified to hold or  to  contest  election  for  any  office  in  the
society  from which he is removed and in any other society for a period  not
exceeding six years from the date of the order and such officer shall  stand
disqualified accordingly.”

24.   Section 81 authorises (i) the  supersession  of  the  Committee  of  a
Society; and (ii) appointment of a substitute committee or an  administrator
to manage the affairs of the society and various things incidental  thereto.
  Section 81 insofar as it is relevant for our purpose reads as follows:-
“Section 81(1) If in  respect  of  a  committee  of  a  society  having  the
Registrar as its member, the State Government and in respect of a  committee
of a  Society  which  does  not  have  the  Registrar  as  its  member,  the
Registrar, is of the opinion that;

the committee persistently makes default; or

the committee is negligent in the performance of its duties  imposed  on  it
by or under this Act or the rules made thereunder or the bye-laws; or

the committee has committed any act  prejudicial  to  the  interest  of  the
society or its members;

the State Government or, as the case may be,  the  Registrar,  after  giving
the committee an opportunity of being heard, within fifteen  days  from  the
date of issue of notice, by an order in  writing,  supersede  the  Committee
and appoint–

a Committee, consisting of one or more members of  the  society,  not  being
the members of the committee superseded under this sub-section, or

an Administrator from amongst the officers of the Cooperation Department  of
the State Government –

to manage the affairs of the society for a period not exceeding one year  as
may be specified in the order, which period may, at the  discretion  of  the
State Government or the Registrar, as the case  may  be,  be  extended  from
time to time, so, however, the term of the Committee  or  the  Administrator
shall be, the  remaining  term  of  the  committee  in  whose  place  he  is
appointed or two years in aggregate, whichever is less.”


25.   The expressions  “committee”,  “officer”  and  “society”  are  defined
expressions under Section 2(5), 2(14) and 2(19) of THE ACT:
“Section 2(5) "committee" means the  Managing  Committee  or  the  governing
body of a society to which the direction and control of  the  management  of
the affairs of a society is entrusted to;

Section 2(14) “officer” means a person elected or appointed by a society  to
any office of such  society  according  to  its  bye-laws;  and  includes  a
chairman,  vice-chairman,  president,  vice-president,  managing   director,
manager, secretary, treasurer,  member  of  the  committee,  and  any  other
person elected or appointed under this Act, the rules or  the  bye-laws,  to
give directions in regard to the business of such society;

Section 2(19) “society” means a co-operative society registered,  or  deemed
to be registered, under this Act;”


Further analysis of Sections 76B and 81 would be undertaken in the  judgment
at the appropriate place.

26.   It was in exercise of  the  power  under  Section  76B.    Action  was
initiated against Chaudhary initially by issuing Show-Cause  Notice–I  which
culminated in a final order dated 10.3.2015 by which Chaudhary  was  removed
from the office of the Chairman of the UNION and  also  disqualified  for  a
period of three years from holding any  office  or  to  participate  in  any
election “in any sahakari mandal”.[11]

27.   The conclusions recorded by the  Registrar,  in  the  order  of  dated
10.3.2015 removing Chaudhary from office, remained undisturbed by  the  High
Court, in Special Civil Application No.9618/2015.  The High  Court  recorded
(See paras 11 to 15 of the judgment) that of  the  various  charges  leveled
against Chaudhary, i.e. Charges Nos.2, 3, 6, 9, 10  and  11  had  been  held
proved by the Registrar.  The High Court further  held  that  such  findings
could not be determined in exercise of the jurisdiction  under  Article  226
of the Constitution of India.
“16.  The Court finds that in the nature of charges proved, the  view  taken
by respondent No.2 and affirmed by the Revisional Authority  is  not  to  be
disturbed in exercise of the powers under Article 226  of  the  Constitution
of India in absence of any complaint as  regards  decision  making  process.
It is not disputed that fair and sufficient opportunities were given to  the
petitioner and therefore, no complaint could be  made  as  regards  decision
making process to arrive at a decision by  respondent  No.2  to  remove  the
petitioner in exercise of powers under Section 76B(1) of the Act.”

The said view of the learned Single  Judge  was  endorsed  by  the  Division
Bench in Letters Patent Appeal No.1302/2015.   The  Division  Bench  in  its
judgment dated 19.10.2015 held as follows:
“3.   Mr. Thakore, learned  senior  counsel  appearing  for  the  appellant,
during the course of the hearing has taken us to the impugned  order  passed
by the authority for removal, which  was  subject  matter  of  the  petition
before the learned  Single  Judge.   There  are  findings  recorded  by  the
authority pertaining to persistent default in performance  of  the  duty  by
the appellant.  Those findings have been  examined  by  the  learned  Single
Judge to the extent of scope of judicial review in a petition under  Article
226 of the Constitution.  It is hardly required  to  be  stated  that  while
undertaking the exercise  of  judicial  review  under  Article  226  of  the
Constitution in a matter of removal of  an  office  bearer  of  the  society
under the Act, the Court would examine as to whether the opinion arrived  at
for removal is supported by objective material or not.  Sufficiency  of  the
material  may  not  be  re-assessed  by  the  Court  nor  this  Court  would
reappreciate the material and record a different  finding  as  that  of  the
appellate court.  After having expressed the view for the scope of  judicial
review, when we have considered the contents of the  impugned  order  passed
by the learned Single Judge, it appears that no error has been committed  by
the learned Single Judge in affirming or  not  interfering  with  the  order
passed by the authority under Section 76B(1) of the Act for removal  of  the
appellant as Chairman of the Milk Producers Union.”

28.   Civil Appeal No.14678 of 2015 [Arising out  of  SLP(C)  No.  33630  of
2015] challenging the correctness of the  above-mentioned  judgment  of  the
High Court is one of the three appeals before us.[12]  Therefore,  it  is  a
submission of Chaudhary that we are required to examine the  correctness  of
the conclusion recorded by the Registrar that the charges 2,  3,  6,  9,  10
and 11 are framed against Chaudhary.

In substance, the argument is that this Court should act  as  the  appellate
Court to determine the correctness of the conclusion drawn on the  basis  of
the evidence before the  Registrar.  An  exercise  which  ought  not  to  be
normally undertaken even by  the  High  Courts  in  the  jurisdiction  under
Article 226 of the Constitution of  India  nor  by  this  Court  on  further
appeal by leave under Article 136 of the Constitution.

29.   The High Court rightly declined  to  interfere  with  those  findings.
We see no error in the decision of the High Court in this regard.

We decline to undertake the exercise of examining  the  correctness  of  the
conclusions recorded by the Registrar.

30.   The order dated 10.3.2015  insofar  as  it  pertained  to  the  future
disqualification of Chaudhary was set aside in Writ  Petition  No.  9618  of
2015.

It was argued on behalf of Chaudhary that  issuance  of  a  combined  notice
proposing action both under sub-sections (1)  and  (2)  of  Section  76B  is
illegal.  Action under sub-section (2) of Section  76B  could  be  initiated
only after conclusion of the action under Section 76B(1).[13]



In terms of submission of Chaudhary, the learned  Single  Judge  formed  the
points for determination at para 20.[14]

On the construction of  Section  76B,  the  learned  Single  Judge  held  as
follows:
“21.  … There is no concept of issuing notice in advance.   If  such  notice
in advance is issued for the proposed action to follow the event to  happen,
it could be said that the action proposed is  prejudged,  predetermined  and
as a result of bias  attitude.   In  fact,  reading  the  language  of  sub-
sections (1) and (2) of Section 76B of  the  Act  independently,  one  would
find that the legislature  intended  to  pass  two  different  and  distinct
orders at two different stages.  In both the  sub-sections,  the  words  “by
order” are used. Therefore, removal of an officer is contemplated  by  order
to be passed at first in point of time  and  then  by  separate  order,  the
Registrar may direct that the officer “so removed” shall be disqualified  to
hold or to contest election for any office in his  own  society  or  in  any
other society for a period which may be fixed by the  Registrar  within  the
ceiling limit and for such order to  be  separately  passed,  principles  of
natural justice, as stated above, are to be followed.”

The learned Single Judge, therefore, concluded that a combined notice  under
sub-sections (1) and (2) of Section 76B is untenable.[15]

31.   The High Court also examined the  question  (on  the  assumption  that
even if a combined notice is not objectionable) whether  a  combined  notice
issued to Chaudhary complied with the  principles  of  natural  justice  and
concluded that Chaudhary was “not asked to show-cause as to  why  he  should
not be disqualified”.[16]

32.   The State of Gujarat and the Registrar accepted the said judgment  and
let it become final.

33.   Hence, the submission of Chaudhary both  before  the  High  Court  and
this Court that Show-Cause Notice-II could  not  have  been  issued  without
obtaining the leave of the High Court.  Such a submission found favour  with
the High Court in the judgment in LPA No. 1343 of 2015 when  it  was  called
upon to determine the legality of Show-Cause Notice-II.

34.   The High Court did not assign any reason for  such  a  conclusion  nor
any provision of law or  precedent  which  warrants  such  a  conclusion  is
referred to.  We find it difficult to sustain the conclusion.

35.   Any statutory power could “be exercised from time to time as  occasion
requires”.  Such a principle is recognised by Section 14[17] of the  General
Clauses Act, 1897 and Section 14[18] of the  Gujarat  General  Clauses  Act.
Power conferred on Courts to adjudicate the rights and  obligations  of  the
parties  is  an  exception  to  the  principle.   The  doctrines   of   res-
judicata[19] and double jeopardy[20] prohibit  the  repeated  invocation  of
the jurisdiction of the Civil Courts or repeated  attempts  to  prosecute  a
person on the same set of  facts  constituting  an  office.   Whether  power
conferred by a statute on a body other than a judicial  body  (i)  could  be
exercised repeatedly? or (ii) are there any legal limitations  thereon?  and
(iii) if there are limitations thereon what are they?  are  questions  which
require further examination.   But  for  the  purpose  of  this  case  these
questions need not be examined.  It is  already  held  by  this  Court  that
where an order passed in exercise of a power conferred by a statute  is  set
aside on the ground  that  such  an  order  was  passed  in  breach  of  the
principles of natural justice, the power could once again  be  exercised  by
complying with the principles of natural justice.

36.   A Division Bench of the Andhra Pradesh High  Court  in  Thimmasamudram
Tobacco Co. v. Assistant Collector  of  Central  Excise,  Nellore  Division,
Nellore, AIR 1961 AP 324, held that:
“… in a case where the flaw in the order appealed  against  consists  of  in
the non-observance of certain procedure or  in  not  giving  effect  to  the
maxim ‘audi alteram partem’, it is open to the officer  concerned  to  start
the procedure once again with a view to follow the rules  of  procedure  and
the principles of natural justice.”

The said principle laid down by the Andhra Pradesh High Court  was  approved
by this Court in Superintendent (Tech.I) Central Excise  I.D.D.  Jabalpur  &
Others v. Pratap Rai, (1978) 3 SCC 113[21].

37.   Inspite of the fact that the abovementioned  judgment  of  this  Court
was cited, the Division Bench of the High Court in L.P.A.  No.1343  of  2015
quashed the show-cause notice-II dated 03.10.2015 on the ground:
“ … Further, in view of the interpretation as made  by  us  hereinabove,  if
only one proceeding is contemplated under section 76B of  the  Act  for  two
consequences of removal and disqualification,  and  those  proceedings  have
ended in SCA No. 9618 of 2015 and LPA No. 1302 of  2015,  it  would  not  be
open to the authority to initiate second  proceedings  on  the  same  facts,
more  particularly  when  no  express  liberty  was  so  reserved  and  even
otherwise also it could not be reserved in view of the  interpretation  made
by us hereinabove …”.


The said conclusion is clearly untenable and is  required  to  be  set-aside
and the first submission of Chaudhary  is  liable  to  be  rejected.   As  a
consequence, the second submission also falls to ground.

38.   We shall now  deal  with  the  third  submission  of  Chaudhary.   The
submission in substance is that the acts  and  omissions  which  formed  the
basis of allegations leading to action against Chaudhary under  Section  76B
are not the  individual  acts  of  Chaudhary  but  the  collective  acts  or
omissions of the Committee of  the  UNION.   Therefore,  action  if  at  all
required must be taken under Section 81 against  the  entire  Committee  but
not  only  against  Chaudhary.   In  absence  of  any  action  against   the
Committee, action against Chaudhary is illegal and unsustainable.

39.   The text of both the Sections 76B and 81 is  already  taken  note  of.
Section 81 authorises the  supersession  of  the  Committee  of  a  Society.
Section 76B authorises action against individual officers of a  Society.  In
either case, action is required to  be  taken  upon  the  formation  of  the
opinion by the Registrar[22] that (i) there  is  a  persistent  default;  or
(ii) negligence in the performance of duties; or (iii) commission of an  act
which is prejudicial to the interest of the Society or its members.

40.   Committee of a cooperative society by  definition[23]  is  a  body  to
which “the direction and control of the  management  of  the  affairs  of  a
Society is entrusted to” - though under Section 73 of  THE  ACT,  the  final
authority of every Society shall  vest  in  the  general  body  of  members.
Section 74[24] declares that the management of every society shall  vest  in
a committee constituted in accordance with THE ACT etc.   The  Section  also
declares that the committee shall “exercise such  powers  and  perform  such
duties” (hereafter collectively - DUTIES) as may be conferred or imposed  on
it by THE ACT or the subordinate legislation made  thereunder.   Performance
of DUTIES normally obligates a committee  to  take  or  desist  from  taking
certain courses of actions.  Failure of  committee  to  perform  its  DUTIES
attracts various legal consequences specified under THE  ACT.   One  of  the
consequences is specified under Section 81.

41.    Committee is nothing but a collective name for the conglomeration  of
the individual officers of the society. An “officer”  by  definition[25]  is
either a person elected or appointed  under  THE  ACT,  or  the  subordinate
legislation made thereunder to give directions in regard to the business  of
such society.

42.   Committees are inanimate bodies. They function  through  human  agency
i.e. the individual members of the  Committee.   When  it  is  said  that  a
committee failed to perform its DUTIES under THE ACT, it is essentially  the
failure of the officers of the society collectively.

      Failure of the Committee to perform  its  DUTIES  necessarily  implies
failure on the part of the majority (if not the entire body) of the  members
of the Committee to perform DUTIES which they are obliged to  perform  under
THE ACT in their capacity as the members of the Committee.

Acts or omissions of individual members which are not  consistent  with  the
DUTIES  of  the  Committee  or  individual  members  entail  various   legal
consequences specified under THE ACT both to the individual members and  the
Committee.

Individual members of the Committee owe DUTIES some of  which  are  required
to be performed individually[26]  and  others  in  concert  with  the  other
members of the Committee.

43.   Committee by definition owes a duty to give directions  in  regard  to
the business of the society.  That DUTY of the  Committee  in  substance  is
the DUTY owed by the individual members of the Committee collectively.   The
legality of the directions given depends upon  the  nature  of  the  various
DUTIES to be performed by the Committee.  Failure  to  give  directions  may
also constitute an illegal omission (failure to perform a DUTY) in  a  given
case.

In a given case, if a  decision  taken  by  the  committee  is  so  patently
prejudicial to the interest of the society calling for action under  Section
81, there  is  a  collective  failure  of  the  individual  members  of  the
committee to perform their respective  duty  to  give  right  directions  in
regard  to  the  business  of  the  society.   Registrar  is  authorised  to
supersede the committee and appoint an administrator.   If  such  course  of
action is proposed by the Registrar, it will not be open  to  an  individual
member of the committee to argue  that  he  was  not  a  party  to  such  an
objectionable conduct of the committee because either he abstained from  the
decision making process  or  disagreed  with  the  objectionable  course  of
action  taken  by  the  other  (majority)  members  of  the  committee   and
therefore, there is no individual culpability on his part.   Section  81  of
THE ACT  authorises  collective  action  against  all  the  members  of  the
committee. The collective failure of the committee in  performing  its  duty
is  such  that  warrants  supersession  of  the  committee.  All  individual
officers lose their  offices  irrespective  of  their  contribution  to  the
culpable action of the committee.   Even in such cases  of  the  failure  of
the committee to perform a DUTY owed by it,  it  may  not  be  necessary  to
supersede the entire committee (in a given case) if it  can  be  ascertained
that the failure occurred due to culpable act or omission of  an  individual
member of the committee and other members though acquiesced,  did  not  have
any culpable motives.

In a given case an act or omission of the committee may  also  constitute  a
failure of the performance of duty on part of each individual member of  the
committee, who contributed to such failure of duty.   Law  can  provide  for
action to be taken against each of the members of the committee.  In such  a
case whether it is compulsory to take action against  all  the  members  who
contributed to the culpable action  is  a  matter  which  depends  upon  the
scheme and tenor of the law.

Sections 76B and 81 provide for such a courses of action.  The Registrar  is
conferred   with   a   discretionary   power   to   take   action    against
officers/members of  the  Committee  individual  or  against  the  Committee
collectively.

It is essentially for the Registrar to make an  assessment  whether  on  the
facts and circumstances of each case either action is to  be  taken  against
the committee or an  individual  officer  or  both.   The  decision  of  the
Registrar taken in  exercise  of  such  discretionary  power  would  not  be
amenable to challenge on the  ground  that  the  Registrar  failed  to  take
action under both Sections 76B and 81 unless the individual  member  against
whom action is proposed pleads and proves  mala  fide.   Individual  members
cannot  complain  that  since  the  Registrar  is   not   proposing   action
collectively against the committee, he could  not  initiate  action  against
individual members of the Committee.

44.   In substance, THE ACT envisages joint and several action  against  the
officers in their capacity as members of the committee.   While  Section  81
is designed to deal with the dereliction of the duties by the  committee  as
a body, Section 76B deals with the dereliction of duties of  the  individual
members of the committee.  The Registrar is invested by  THE  ACT  with  the
discretion to  choose  the  proper  course  of  action  depending  upon  the
situation.  The argument of Chaudhary is not that the Registrar  abused  his
discretion.  The submission is that it is not permissible for the  Registrar
to resort to action only under Section 76B.  We reject the submission.

45.   We shall now examine the  fourth  submission  of  Chaudhary  that  the
reliance upon the same set of facts in  both  Show-Cause  Notices-I  and  II
would render the Show-Cause Notice-II and the  action  consequent  thereupon
illegal.

      At the outset, we must state that we have examined the tenor  of  both
the show-cause notices and we proceed on the basis that the  tenor  of  both
of them is substantially the same if not identical.




46.   Section 76B(1) contemplates removal of an officer of a society if  the
Registrar is satisfied that such an officer is guilty  of  any  one  of  the
misconducts  specified  under  the   section.    Sub-section   (2)   further
authorises the Registrar to disqualify such an officer either to contest  or
to hold any office in that society from which the  officer  is  removed  and
also in any other society for a period to  be  specified  by  the  Registrar
subject to a statutory outer limit.

From the language of sub-section (2), it appears to us  that  the  Registrar
is not obliged to disqualify every officer against whom an order of  removal
under Section 76B(1) is passed. Going by the text of sub-section  (2)  which
says that the “Registrar may …direct that the officer so  removed  shall  be
disqualified…..”, the power to disqualify is discretionary.

The basic requirement of sub-section (2) is that the power thereunder  could
be exercised only against an officer of  a  society  who  has  already  been
removed from office.  Therefore, the  factual  basis  on  which  the  action
under sub-section (1) and sub-section (2) of Section 76B is to be  taken  is
bound to be the same though the reasons and logic  on  the  basis  of  which
action under either of the sub-sections is to be taken could  be  different.
Depending upon the intensity and gravity of the misconduct in a given  case,
mere action [under Section 76B(1)] of removal from office might suffice  and
meet the ends of justice.  Whereas in some cases action under both the  sub-
sections might be called for.  But in no  case  action  only  under  Section
76B(2) is permissible without taking action under  Section  76B(1).   It  is
also possible that in a given case, facts may  not  only  justify  but  also
oblige the Registrar to pass not only an order of removal under  sub-section
(1) but also an order of disqualification under  sub-section  (2)  depending
upon the nature of the misconduct and the legal obligation  flouted  by  the
officer.

It all depends upon the facts and circumstances of each and every  case  and
the scheme of the law relevant to such facts.  The variables are too many.

47.   On the facts of the present case, Chaudhary  is  found  liable  to  be
removed from office on various charges  which  according  to  the  Registrar
tantamount to (i) negligence on the part of Chaudhary in performance of  his
duties under THE ACT  or  the  subordinate  legislation  therein,  and  (ii)
indulgence in acts which are prejudicial to the UNION.

      Such conclusions are based on an inquiry where evidence was  gathered.
 The order of the Registrar dated 10.3.2010 by which Chaudhary  was  removed
from office of the Chairman  of  the  Society  was  approved  by  the  State
Government (Revisionary Authority under THE ACT).  Chaudhary  unsuccessfully
questioned the same  in  Writ  Petition  No.  9618  of  2015.   The  further
challenge of Chaudhary was rejected in LPA No. 1302 of 2015.[27]

48.   For the  purpose  of  passing  the  order  of  disqualification  under
Section 76B(2) against Chaudhary, the Registrar rightly   proceeded  on  the
basis that there is an earlier order of the Registrar dated 10.3.2013  where
charges against Chaudhary had been held proved and the High  Court  declined
to interfere  with  those  findings.   He,  therefore,  opined  that  he  is
entitled to proceed to take action under Section 76B(2) on the basis of  the
same conclusions which rendered Chaudhary liable  for  removal  from  office
under Section 76B(1).  In the process, both in the show-cause notice–II  and
the order dated 16.12.2015,  the  Registrar  once  again  repeated  all  the
allegations which formed the basis for the order under Section 76B(1).

In our opinion, it was not really necessary.   It  would  have  sufficed  if
the Registrar mentioned the fact that Chaudhary was removed from the  office
of Chairman of the Society in exercise of the power under Section  76B(1)  -
the mention of such a fact is also not mandatory.  It is  only  a  condition
precedent for initiating action under Section 76B(2).  The  requirements  of
valid notice under Section 76B(2), in  our  opinion,  are  that  the  notice
should indicate broadly the reasons which prompt the Registrar  to  initiate
action and the period for which the  person,  against  whom  the  action  is
initiated, is proposed to be disqualified.  However, the mentioning  of  the
past history though avoidable does not in any  way  vitiate  the  show-cause
notice or the final order if they are otherwise in accordance with law.

49.   In our opinion, there is  no  legal  infirmity  either  in  the  logic
adopted by the Registrar or the action taken by him under Section 76B(2)  on
the ground that the Registrar relied upon the same  set  of  facts  and  the
conclusions drawn thereupon for taking action both under Section 76B(1)  and
Section 76B(2).

      In Show-Cause Notice-II, it is indicated that  Chaudhary  is  proposed
to be disqualified under Section 76B(2) on the ground he “committed  serious
type  of  administrative  and  financial  irregularities  as  a  consequence
thereof, the Sangh[28] has suffered financial loss on large scale …..”  –  a
statement made on the basis of the previous history of the  litigation.   It
further indicated in  the  Show-Cause  Notice  that  the  Society  of  which
Chaudhary was the Chairman is the largest UNION of the State with 4.5  lakhs
milk  producers  who  are  members  of  1097  milk   producers   cooperative
societies[29], therefore, there is  a  need  to  disqualify  Chaudhary  from
holding or contesting for any post in any society.




The mention of the facts

  That on account  of  the  misconduct  of  Chaudhary,  the  UNION  suffered
financial loss on a large scale;

  That the UNION consists of various smaller societies each of which  has  a
large number of milk suppliers; and

   That the Registrar’s proposed to disqualify Chaudhary for maximum  period
of six years,
in our opinion, makes the Show-Cause Notice-II sufficiently  compliant  with
the requirement of Section 76B(2).


50.    The  final  order  disqualifying  Chaudhary  was  passed  after   due
compliance with the principles of natural justice.  If  the  Registrar  came
to the conclusion that Chaudhary should not  be  permitted  to  contest  any
election or hold any office in any society functioning under  THE  ACT,  the
same, in our view, can’t be found fault with. Because Chaudhary has  already
been found guilty of conduct which  resulted  in  a  large  scale  financial
irregularities in the conduct of  the  business  of  the  society  and  also
financial loss to the society.  The activity of the UNION is spread over  in
three  districts.   The  UNION  consists  of  a  large  number  of   primary
societies.  Disqualifying Chaudhary only from the holding post in the  UNION
is to give him a chance to meddle with the affairs of  the  societies  which
are members of the UNION.

51.   The only other question  remaining  to  be  examined  is  whether  the
period of disqualification of six years is consistent with law.

Section 76B(2) as of today provides for disqualification of an  officer  for
a period not exceeding six  years.   Originally  the  Section  provided  for
disqualification only for four years.   But  the  “four  years”  period  was
substituted by “six years” period  by  the  Gujarat  Co-operative  Societies
(Amendment) Act, 2015 (Act No.12 of 2015).

52.   All the acts and omissions which formed the basis for  action  against
Chaudhary pertained to the period anterior[30] to the  Act  No.12  of  2015.
Under Section 7 of the Gujarat General Clauses  Act,  it  is  provided  that
where an enactment is repealed by a subsequent enactment,  the  repeal  does
not normally affect any investigation or legal  proceedings  in  respect  of
any  right,  privilege,  obligations,  liability,  penalty,  forfeiture   or
punishment and any legal proceeding initiated during  the  currency  of  the
repealed enactment could be continued as if the repealing Act has  not  been
passed.

Repeal  could  be  either  of  the  entire  enactment  or  a  part  of   it.
Substitution of parts of an enactment is nothing but  pro  tanto  to  repeal
those parts.


Normally when an enactment is repealed,  any  action  initiated  under  that
enactment dealing its currency should lapse.  Because the authority  of  law
for action initiated under an  enactment  ceases  to  exist  on  its  repeal
rendering the continuation of action without  authority  of  law.   To  meet
such a contingency, the General Clauses Act made a provision  under  Section
7.  It  seeks  to  preserve  various  rights  and  obligations  acquired  or
incurred under repealed enactments.  It  also  provides  for  various  other
things incidental to preservation of such rights and obligations[31].

53.   As  a  logical  corollary  to  the  above  proposition,  no  right  or
liability can be created by a repealing  enactment,  which  is  inconsistent
with the rights and obligations conferred under the repealed Act unless  the
repealing enactment makes an express declaration to that  effect  or  adopts
some  other  technique  known  to  law  to  achieve  that  purpose.   Giving
retrospective effect to the repealing enactment is one of the techniques  by
which the legislature seeks to achieve that purpose.

54.    There  is  nothing  in  Act  No.12  of   2015   which   warrants   an
interpretation that the legislature intended to  create  a  disqualification
which would run for  a  maximum  period  of  six  years  with  retrospective
effect. The learned Additional Solicitor General Shri Mehta fairly  accepted
it.  In the circumstances, the disqualification of six years upon  Chaudhary
is not tenable and at best Chaudhary could be  disqualified  for  a  maximum
period of four years.

55.   It is next  argued  on  behalf  of  Chaudhary  that  the  order  dated
12.10.2015 does not disclose reasons which prompted the Registrar to  impose
the maximum penalty and, therefore, that order is vitiated. We do  not  wish
to examine the submission for the reason the judgment under  appeal  thought
it fit that disqualification of Chaudhary for a period of three years  would
meet the ends of justice.  We are of the opinion that having regard  to  the
acts and omissions  of  Chaudhary  forming  the  basis  of  disqualification
cannot be said to be unreasonable.

56.   In the result, appeals of Chaudhary fail and appeal of  the  State  is
disposed of in terms of the above.

Writ Petition (Civil) No.824 of 2015 filed by Chaudhary is dismissed as  not
pressed.




      In the facts and circumstances of the case, there will be no order  as
to costs.


                                  ..….....................................J.
                                       (J. CHELAMESWAR)




                                           …….   ………….....................J.
                                       (ABHAY MANOHAR SAPRE)

New Delhi
April 17, 2017
-----------------------
[1]      Civil Appeal Nos.14678 of 2015 and 1881 of 2016
[2]      Civil Appeal No.13784/2015.
[3]      Section 2(19). “Society” means a co-operative  society  registered,
or deemed to be registered, under this Act;”
[4]     Section 2(17) – “Registrar” means  a  person  appointed  to  be  the
Registrar of Co-operative Societies under this  Act;  and  includes  to  the
extent of the powers of the Registrar conferred on any  other  person  under
this Act, such person and includes an Additional or Joint Registrar;

[5]     Though the notice purported to have been issued invoking  both  sub-
sections (1) and (2) of Section 76B, there is no whisper in the said  notice
regarding the proposal to disqualify Chaudhary for a further period.
[6]    …..Thus, taking into consideration the facts as a whole,  because  of
the irregularities committed by him, the Union has suffered great  financial
damage and serious damage has been caused to the Mehsana Jilla Dudh  Utpadak
Sangh as well as the lacs of members providing milk in  the  milk  societies
connected  with  it  and  interests  of  the   Pashu   Palaks.     In   such
circumstances, I consider it proper to remove him from  the  post  and  also
for the aforesaid reasons, think it proper to held him disqualified to  have
any office in any Sahakari Mandal or to participate in any  election  for  a
period of three years.
[7]      The writ petition was dismissed by a judgment dated 27.10.2015.
[8]     It must be stated for the sake of the completion  of  the  narration
of the fact that during the pendency of the said  LPA,  the  State  made  an
oral application before the Division Bench to adjourn the matter  to  enable
the  Registrar  to  seek  certain  clarifications  from  the  Single  Judge.
Permission was granted.  However, the Single  Judge  declined  to  give  any
clarification.

[9]       In support of that submission, the Registrar relied upon  a  large
number of decisions.
          Para 18 of the Judgment dated 02.11.2015  of  the  High  Court  of
Gujarat in LPA No.1343 of 2015:
      “Mr. Jani, relied upon  the  decisions  of  the  Apex  Court  in  M/s.
Guduthur Bros.  Vs.  The  Income-tax  Officer,  Special  Circle,  Bangalore,
reported at AIR 1960 SC 1326, in Superintendent (Tech.  I)  Central  Excise,
I.D.D. Jabalpur and Others vs. Pratap Rai reported at [(1978)  3  SCC  113],
in Anand Narain Shukla vs. State of Madhya Pradesh reported at (1980) 1  SCC
252, in M.V. Janardhan Reddy vs. Vijaya Bank and Others reported at  [(2008)
7 SCC 738] and in Commissioner of Sales Tax and others vs. M/s. Subhash  and
Company reported at AIR 2003 SC 1628 … ”
[10]   This Court while granting leave in SLP (C) No.33630 of 2015  [arising
out of the LPA No.1302 of 2015 arising out of WP No. 9618 of 2015] filed  by
Chaudhary ordered-
      “It has been submitted by the learned  senior  counsel  appearing  for
the respondent (Chaudhary) that the reply to the second  show  cause  notice
is being filed today.  In these circumstances, we direct that if  any  order
adverse  to  the  respondent  is  passed  by  the   Registrar,   Cooperative
Societies, State of Gujarat, the same shall not be implemented for a  period
of  four  weeks  from  the  date  of  communication  of  the  order  to  the
respondent.”

      By another order dated 26.02.2016, this Court while granting leave  in
SLP (C) No.3980 of 2016 filed by Chaudhary ordered:
      “Leave granted.
      List this appeal in the month of August, 2016 for hearing.
      No interim relief.
      Tag with SLP (C) No.33630 of 2015 and connected matters.”

[11]   See F/N 5
       In view of the subsequent development, it is not necessary for us  to
examine the meaning of the expression “sahakari mandal”.

[12]   In our opinion, LPA No.1302/2015 ought to have been dismissed on  the
simple  ground  that  the  said  appeal  had  become  infructuous.   Because
admittedly the tenure of Chaudhary as Chairman of  the  Society  expired  on
01.05.2014.  Therefore, SLP (Civil) No.33630/2015  was  a  futile  exercise.
We only wonder as to how leave came to granted in the said SLP.

[13]    “Para 19.  … the contentions raised on behalf of the petitioner  are
that there was  no  notice  in  the  eye  of  law  for  proposed  action  of
disqualification and that it would  be  only  after  order  for  removal  is
passed, the action under Section 76B(2)  of  the  Act  could  be  taken  and
therefore, issuance of the combined notice under Section 76B(1) and  (2)  of
the Act was not permissible. …”
[14]   “Para 20. … Therefore, in the context of  the  provision  of  Section
76B of the Act, the Court needs to examined  whether  before  the  order  of
removal could be made, action for  disqualification  under  sub-section  (2)
could  be  initiated  and   whether   separate   order   is   required   for
disqualification under sub-section (2) after serving the  order  of  removal
to the petitioner and whether mere reference to Section 76B(2) in  the  show
cause notice for removal could be said to be notice for proposed  action  of
disqualification under sub-section (2).”
[15]   “Para 26. … Therefore, if separate order is to  be  made  only  after
the order of removal is passed, there is no question of issuing  any  notice
proposing disqualification with notice for removal.  The  Court,  therefore,
finds that action taken for disqualification of the petitioner runs  counter
to the provisions of sub-section (2) of Section 76B of the Act.”
[16]   Para 27. …whether there was in fact a notice in the eye  of  law  for
proposed action of disqualification.  The show cause  notice  at  Annexure-A
is titled as ‘Show Cause Notice  under  Section  76(B)(1)(2)  of  the  Act’.
However, in the language of the notice at  Annexure-A,  the  petitioner  was
asked only to show cause why he should not be removed  from  the  office  of
Chairman, and  while  asking  the  petitioner  to  show  cause  against  the
proposed action of removal, sub-section (2) is  mentioned  with  sub-section
(1) of Section 76B of the Act.  The petitioner is thus  not  asked  to  show
cause as to why he should not be disqualified after  his  removal  from  the
office of Chairman.”
[17]   Section 14. Powers conferred to be exercisable from  time  to  time.-
 (1) Where, by any Central Act or Regulation made after the commencement  of
this Act,  any  power  is  conferred,  then  unless  a  different  intention
appears, that power  may  be  exercised  from  time  to  time  as  occasions
requires.

      (2). This section applies also to all  Central  Acts  and  Regulations
made on or after the fourteenth day of January, 1887.

[18]   Section 14. Powers conferred on  any  Government  to  be  exercisable
from time to time.-  Where, by any Bombay Act or Gujarat Act made after  the
commencement of this Act, power is conferred on  any  Government  then  that
power may be exercised from time to time as occasion requires.
[19]    Embodied in Section 11 of the Code of Civil Procedure, 1908.
[20]    Contained in Article 20(2) of the Constitution of India and  Section
300 of the Code of Criminal Procedure, 1973.
      Constitution of India
      Article 20. Protection in respect of conviction for offences.—  (2) No
person shall be prosecuted and punished for the same offence more than once
      The Code of Criminal Procedure, 1973
      Section 300. Person once convicted or acquitted not to  be  tried  for
same offence.- (1) A person who has once been tried by a Court of  competent
jurisdiction for an offence and  convicted  or  acquitted  of  such  offence
shall, while such conviction or acquittal remains in force,  not  be  liable
to be tried again for the same offence, nor on the same facts for any  other
offence for which a different charge from the one  made  against  him  might
have been made under sub- section (1) of section 221, or for which he  might
have been convicted under sub- section (2) thereof.


[21]   Superintendent (Tech.I) Central Excise I.D.D. Jabalpur & Others v.
Pratap Rai, (1978) 3 SCC 113
       “Para 6.  In  the  case  of Thimmasamudram  Tobacco  Co. v. Assistant
Collector of Central Excise, Nellore Division,  Nellore [AIR  1961  AP  324]
while construing the provisions of the Central Excise  and  Salt  Act  which
was almost on identical terms as the Customs Act, a Division  Bench  of  the
Andhra Pradesh High Court observed as follows (AIR p. 325, para 11):

      “Assuming that Section 35 of the Central Excise Act  does  not  clothe
the appellate authority with power to  remand  the  matter  to  the  officer
whose order is appealed against, nothing stands in the way of the  Assistant
Collector initiating the proceedings afresh, when his order was quashed  not
on merits but on  technical  grounds  i.e.  for  not  following  either  the
procedure or the dictates of natural justice. In a case where  the  flaw  in
the order appealed against consists of  in  the  non-observance  of  certain
procedure or in not giving effect to the maxim ‘audi alteram partem’, it  is
open to the officer concerned to start the procedure once again with a  view
to follow the rules of procedure and the principles of natural justice.”
      We find ourselves in complete agreement with the  view  taken  by  the
Andhra Pradesh High Court and the  observations  made  by  Reddy,  C.J.  who
spoke for the Court.”


[22]   Or the Government in certain cases the details of which  may  not  be
necessary for the present purpose.
[23]   See Section 2(5) in para 25 (supra)
[24]    Section  74.   Committee,  its  powers   and   functions.—(1)    The
management of every society  shall  vest  in  a  committee,  constituted  in
accordance with this Act, the rules and bye-laws, which shall exercise  such
powers and perform such  duties  as  may  be  conferred  or  imposed  on  it
respectively by this Act, the rules and the bye-laws.
[25]   See Section 2(14) in para 25 (supra)
[26]   An officer is obliged to attend the meetings  of  the  Committee  and
participate  in  the  decision  making  process.   Failure  to  attend   and
participate in  such  meetings  may  attract  legal  consequences  –  if  so
prescribed by THE ACT or subordinate legislation made thereunder.

[27]   The details of which are discussed by us  in  Paragraphs  27  and  28
supra.
[28]    Society
[29]    The Mehsana  Jilla  Sahakari  Dudh  Utpadak  Sangh  Limited  is  the
largest Union of the State with which, larger interest of  about  more  than
4.50 lacs milk producers and 1097 milk producers  cooperative  societies  is
connected.  In such circumstances, it is appearing proper that you  are  not
only removed from the office bearer  in the cooperative movement but to  see
that you may not participate in such activity and the damage is  not  caused
to the cooperative establishment  because  of  your  such  activity,  it  is
necessary to keep you away from  assuming  the  office  in  any  cooperative
establishment by participating in the election maximum for a period  of  six
years.
[30]   Show-Cause Notice-I is dated 12.1.2015 and the Act No.12 of 2015
came into force on 7th April 2015.
[31]   Section 7 of The Gujarat General Clauses Act, 1904:
      “Section 7. Effect of repeal.- Where this Act, or any  Bombay  Act  or
Gujarat Act made after the commencement of this Act, repeals  any  enactment
hitherto made or hereafter to be made, then  unless  a  different  intention
appears, the repeal shall not-
      (a)  revive anything not in force or existing at  the  time  at  which
the repeal takes effect; or
       (b) affect the previous operation of any  enactment  so  repealed  or
anything duly done or suffered thereunder; or
      (c) affect any right, privilege,  obligation  or  liability  acquired,
accured or incurred under any enactment so repealed; or
      (d) affect any penalty, forfeiture or punishment incurred  in  respect
of any offence committed against any enactment so repealed; or
      (e) affect any investigation, legal proceeding or  remedy  in  respect
of any such right, privilege, obligation, liability, penalty, forfeiture  or
punishment as aforesaid, and any such  investigation,  legal  proceeding  or
remedy may be instituted, continued  or  enforced,  and  any  such  penalty,
forfeiture or punishment may be imposed, as if the  repealing  Act  had  not
been passed.”

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