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TMI Blog2017 (4) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... the repealed enactment could be continued as if the repealing Act has not been passed. 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can be created by a repealing enactment, which is inconsistent with the rights and obligations conferred under the repealed Act unless the repealing enactment makes an express declaration to that effect or adopts some other technique known to law to achieve that purpose.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 - 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. Appeal dismissed. - Civil Appeal Nos. 14678, 13784/2015, 1881/2016 and Writ Petition (C) No. 824/2015 - - - Dated:- 17-4-2017 - Jasti Chelameswar And Abhay Manohar Sapre, JJ. For Appearing Parties: Tushar Mehta, ASG, Fali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ipse 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (i) the committee persistently makes default; or (ii) 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 (iii) the committee has com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (i) That on account of the misconduct of Chaudhary, the UNION suffered financial loss on a large scale; (ii) That the UNION consists of various smaller societies each of which has a large number of milk suppliers; and (iii) That the Registrar's proposed to disqualify Chaudhary for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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] f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sahakar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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