1. Heard learned Senior Advocate Mr. Shalin Mehta assisted by learned advocate Mr. Hemang Shah for the petitioner, learned advocate Mr. Ashish H.Shah for respondent no.4 and learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent-State through video conference.

2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

“(a) Your Lordships be pleased to issue a writ of certiorari to quash and set aside the order dated 02.11.2020 passed by respondent no.2 concluding that respondent no.4 has not committed violation of bye-law no. 29A.

(b) Your Lordships be pleased to issue a writ of mandamus commanding respondent no. 2 to exercise power under section 81 of Gujarat Cooperative societies Act, 1961 and supersede the committee of respondent no. 3 for not committing violation of bye-law no. 29A;

(c) Your Lordships be pleased to issue a writ of mandamus and thereby command respondent no. 3 to remove respondent no. 4 from the post of committee member of The Prantij Taluka Co-Operative Purchase & Sale Union Limited for not committing violation of bye-law no. 29A;

(d) Pending admission, hearing and final disposal of this petition, Your Lordship be pleased to stay the operation, implementation and execution of order dated 2.11.2020 passed by respondent no. 2;

(e) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to direct respondent no.2 to exercise power under section 81 of Gujarat Co-operative Societies Act, 1961 and thereby supersede the committee of respondent no. 3;

(f)Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to restrain forthwith respondent no.4 from attending any of the meetings held by respondent no.3;

(g) Your Lordships be pleased to grant such other and further relief and/or order, as deemed, in the interest of justice in favour of the petitioner.”

3. Brief facts of the case are that the petitioner who is the Chairman of the Sonasan Group Seva Sahakari Mandli Ltd. and the Committee Member in respondent no.3 Prantij Taluka Co-operative Purchase and Sale Union Limited has filed this petition for taking actions for defaults committed by respondent no.4 who is a Committee Member in respondent no.3-Union occupying two seats as a Committee Member, one seat as a representative in the Committee for individual member and the other seat as a representative of the financial institution as a representative nominated by Sabarkantha District Central Co-operative Bank Ltd., Sabarkantha.

3.1 It is the case of the petitioner that as per the bye-law of respondent no.3, any member who remains absent for four consecutive meetings without obtaining the leave from the Committee then such a member is to be removed and his place is required to be filled in as per the provisions of section 74C(2)(3) of the Gujarat Cooperative Societies Act,1961 (For short “the Act, 1961”).

3.2 According to the petitioner, respondent no.4 remained absent in 17 consecutive meetings held in the year 2018- 2019 without obtaining the leave of the Committee and therefore, respondent no.4 is not entitled to continue as a Committee Member in respondent no.3-Union as per byelaw no. 29-A as amended in the year 2015.

3.3 The petitioner therefore addressed a communication dated 8th July, 2020 to the Chairman of respondent no.3-Union apprising him of absenteeism of respondent no.4 at the meetings of the Committee and to take appropriate steps against respondent no.4 as per bye-law no.29-A.

3.4 Pursuant to the complaint made by the petitioner, a Committee was constituted by the chairman of respondent no.3-Union to ascertain whether the allegations leveled by the petitioner are genuine or not.

3.5 In the meeting held on 13th July 2020, a resolution was passed stating that there is no breach of bye-law no. 29-A by respondent no.4. The petitioner therefore objected to formation of the Committee and also addressed a communication to the chairman of respondent no.3-Union with a request to take appropriate steps in the matter. The petitioner also addressed a communication to respondent no.2- District Registrar informing about the absenteeism of respondent no.4.

3.6 The petitioner thereafter addressed various communications dated 15th July, 2020, 22nd July, 2020 and 21st August, 2020 to various authorities ventilating his grievances against the meeting which took place on 13th July, 2020 wherein it is resolved that there is no breach of bye-law No. 29-A.

3.7 The petitioner thereafter addressed communications dated 28th August, 2020, 31st August, 2020, 5th September, 2020, 7th September, 2020, 11th September, 2020, 21st September, 2020, 23rd September, 2020, 29th September, 2020 and 12th October, 2020 to various authorities for taking steps in the matter.

3.8 As no steps were taken by the District Registrar- respondent no.2, the petitioner filed Special Civil Application No. 11704/2020 which was disposed of by this Court on 12th October, 2020 with a direction to respondent no.2- District Registrar to complete the inquiry in respect of the representations made by the petitioner. The petitioner thereafter addressed a communication dated 16th October, 2020 to respondent no.2 making a grievance that respondent no.3-Union had not remained present with the original records and therefore, appropriate steps ought to have been undertaken under section 81 of the Act, 1961.

3.9 It appears that after giving an opportunity of hearing to the petitioner, respondent no.2-Disrict registrar passed the impugned order dated 2nd November, 2020 while considering the representation of the petitioner holding that there is no irregularity in the conduct of respondent no.3-Union with regard to the violation of bye-law no. 29-A and further held that the grievances raised by the petitioner are contrary to the facts on record. It was further observed that the Committee of respondent no.3-Union granted leave to respondent no.4 from remaining present in the meetings and therefore, there is no absenteeism of respondent no.4 contrary to the bye-law no. 29-A of the respondent no.3- Union.

4. Learned Senior Advocate Mr. Shalin Mehta assisted by learned advocate Mr. Hemang Shah for the petitioner submitted that respondent no.4 remained absent in 17 consecutive meetings without taking leave of the Committee in violation of bye-law No.29-A. It was submitted that respondent no.3-Union though served has chosen not to appear before this Court. It was submitted that the leave applications as well as resolution passed by respondent no.3-Union granting such leave applications which are produced on record by the respondent no.4 are concocted as same are not verified or stated to be true copies either by respondent nos.2 or 3 in response to the notice issued by this Court. It was therefore, submitted that respondent nos. 2 and 3 have tried to shield the absenteeism of respondent no.4 by creating false evidence placed on record.

5. On the other hand, learned advocate Mr. Ashish Shah appearing for respondent no.4 refuted the allegations made against the respondent no.4 and submitted that the respondent no.4 has remained absent after taking leave from the Committee of respondent no.3 which is approved by respondent no.2 – district registrar in the impugned order.

5.1 In support of his above submissions, learned advocate Mr.Shah relied upon the following averments made in the affidavit in reply filed on behalf of the respondent no.4:

“6. I, even otherwise state that the Respondent No. 3 Union had amended the bye laws in the year 2017. The amended bye laws 29-A provides that in case a member of managing committee without obtaining leave remains absent in 4 consecutive meetings than after giving one opportunity member shall be removed. A copy of the amended bye laws of the Respondent No. 3 Union is annexed hereto and marked as Annexure R1.

7. I state that it is not true that the answering respondent had remained absent without leave in all the meetings mentioned in para 7 of the petition. I state that in respect of meetings dated 12.10.2018, 19.12.2018, 15.06.2019, 23.09.2019, 15.11.2019, 04.02.2020 and 15.05.2020 the answering respondent had submitted leave reports and the same were approved by the chairman of the Union. Copies of approved leave reports are annexed hereto and marked as Annexure R2 Colly. I state that the managing committee of the Respondent No. 3 Union had even passed resolutions approving leave of the answering respondent. Copies of resolutions passed by the managing committee of the Respondent No. 3 Union are annexed hereto and marked as Annexure R3 Colly.

8. I state that the petitioner had made an application dated 08.07.2020 addressed to the Respondent No. 3 Union calling upon the Union to pass resolution for removal of answering respondent as member of managing committee of the Union for breach of bye law 29-A of the Union. Copy of the communication was also forwarded to Respondent No. 2 District Registrar. A copy of the said communication dated 08.07.2020 addressed by the petitioner is annexed hereto and marked as Annexure R4. District Registrar vide communication dated 13.07.2020 had called upon the Respondent No. 3 Union to inquire and submit a factual report within 7 days. A copy of the communication dated 13.07.2020 issued by respondent no. 2 District Registrar is annexed hereto and marked as Annexure R5. I state that Respondent No. 3 Union had conducted a factual independent inquiry and found that there is no instance of 4 consecutive absence without leave by the answering respondent and there is no breach of bye law 29A. The report of the inquiry was placed before the managing committee of the Respondent No. 3 Union in its meeting dated 13.07.2020 and resolution was passed to the effect that there is no breach of bye law 29-A. I state that accordingly fact finding report was forwarded to the Respondent No. 2 District Registrar by the Union. Copies of report and the resolution passed by the Union are already annexed to the petition.

9. I further state that the Respondent No.2 District Registrar vide communication dated 29.09.2020 called upon the Union to remain present on 12.10.2020 with the original records. I state that the representative of the Union had remained present on 12.10.2020 and produce the relevant original records. I state that the Respondent No. 3 Union had filed a detail reply to the application made by the petitioner. A copy of the reply filed by the Union is annexed hereto and marked as Annexure R6.

10. I state that application of the petitioner for removal of answering respondent as member of managing committee of the Respondent No. 3 Union is misconceived and vague. I state that application does not reveal the provisions of the under which the action is sought to be initiated against the answering respondent. I state that such application is even otherwise not maintainable.

11. I state that District Registrar had conducted a fact finding inquiry in respect of breach of bye law 29A of the Union. I state that show cause notice is issued to the answering respondent for the proposed action of removal of answering respondent as member of managing committee of the Union. I state that no notice is issued and no hearing is afforded to the answering respondent though answering respondent is directly and adversely affected by the action sought to be initiated against him.

12. I state that in Respondent No. 3 Union is a specified society under section 74 C of the and section 145F of theprovides for disqualifications of the members of managing committee of the Specified societies. I state that bye laws of the society cannot over ride the provisions of the and provide for additional disqualifications. I state that the provisions of bye laws which are contrary to the provisions of the shall not prevail and is non est.

13. I further state that even as per bye laws there is no breach or default on the part of answering respondent. I state that answering respondent had not remained absent without leave for 4 consecutive meetings and therefore even provisions of bye laws are bot applicable to the facts of the present case. I state that answering respondent had in respect of 8 meetings forwarded leave reports and the same was sanctioned by the Chairman of the Union. I state that as per scheme of the act a specified society acts through its office bearers. I state that Chairman of the Union is Chairperson of the meeting of the managing committee and is empowered and authorize to approve leave. I further state that even otherwise the leave reports are also sanctioned in the meetings of the managing committee of the Union.

14. I state that the petitioner being a member of the managing committee of the Union is aware of the said facts and has filed false and frivolous application to settle political scores against the chairman of the Union. I state that the application is malafide and for political reasons.

15. I further state that the answering respondent is also a nominated member on behalf of Sabarkantha District Cooperative Bank a financial institute granting financial aid to Respondent No. 3 Union. I state that the provisions of the bye laws more particularly bye law 29A does not apply to nominated members and nominated members continue to hold office as per directions of the nominating institute.

16. I state that it is not true that answering respondent had remained absent without leave in 4 consecutive meetings. I state that it is not true that the District Registrar had issued specific directions to the Union and submit a compliance report by communication dated 13.07.2020. I state that District Registrar had merely directed to inquire as per the application of the petitioner and submit a factual report. I state that the allegations made in the petition are devoid of merits and the same are made recklessly without there being cogent and reliable evidence.”

5.2 Referring to the documents referred to in the affidavit in reply as well as the averments made therein, it was submitted that there was no violation of bye-law no.29-A of respondent no.3-Union and therefore, no interference is required to be made by this Court while exercising extraordinary jurisdiction under Article 227 of the Constitution of India.

6. On perusal of the documents on record, it appears that the petitioner has filed this petition against respondent no.4 with the aforesaid prayers to ventilate the grievances so as to remove respondent no.4 as a Committee Member on the ground that respondent no.4 remained absent in four consecutive meetings without obtaining leave from the Committee contrary to the bye-law no.29-A of the respondent no.3-Union.

7. In response to the aforesaid allegations made by the petitioner, respondent no.4 has produced on record, leave applications along with the extract from the resolution book of the respondent no.3-Union at page nos. 213 to 222 to point out that the Committee of respondent no.3 – Union has sanctioned the leave of respondent no.4 and therefore, the respondent no.2-District Registrar has rightly held that there is no violation of bye-law no. 29-A.

8. With regard to the allegations made on behalf of the petitioner that the documents produced by respondent no.4 along with affidavit in reply are concocted and are created afterwards raises disputed question of fact and therefore, this Court would not like to adjudicate or go into the same, more particularly, when respondent no.2 - District Magistrate has given categorical finding in the impugned order to the effect that the auditor has also not given any adverse remark in the audit report for the year 2018-2019 with regard to breach of any of bye-law and as per the original record of respondent no.3-Union, there is no violation of bye-law no.29-A of the respondent no.3-Union.

9. In view of above facts, this petition is not entertained as the same is devoid of any merit and is accordingly dismissed. Notice is discharged.