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SCA/10638/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10638 of 2008
=========================================================
HATHIBHAI
KARSHANBHAI VANAR - Petitioner(s)
Versus
ELECTION
OFFICER & DEPUTY COLLECTOR & 12 - Respondent(s)
=========================================================
Appearance
:
MR
DILIP B RANA for
Petitioner
None for
Respondents
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M. DOSHIT
and
HONOURABLE
MR.JUSTICE SHARAD D. DAVE 26th August, 2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M. DOSHIT)
The
petitioner, a Director in the Khambhat Taluka Sahakari Kharid Vechan
Sangh Limited [hereinafter referred to as, the Sangh ],
a cooperative society registered as such, has preferred this petition
under Article 226 of the Constitution to challenge the
decision of the Election Officer in continuing certain societies in
the voters list of the Sangh published on 6th August,
2008.
The
petitioner has submitted that many of the
member-societies are either defunct or non-functional or are under
process of liquidation. Such societies {43 in number} were
removed from the primary membership of the Sangh by Resolution No. 8
[2] dated 22nd June, 2007 passed in the General meeting of
the Sangh. It is the grievance of the petitioner that though the said
43 societies were expelled from the membership of the Sangh, the
Election Officer has included their names in the voters list. The
petitioner and some others objected to inclusion of their names in
the voters list. Nevertheless, the objection has been rejected
by the Election Officer. The Election Officer has directed the Sangh
to continue such societies in the voters list. The petitioner has
also prayed for a direction to the Election Officer to act in
accordance with bye-law 29 [1] of the Sangh in the forthcoming
election scheduled on 21st day of September, 2008.
Mr.
Rana has appeared for the petitioner. He has submitted that the
aforesaid Resolution dated 22nd June, 2007 has not been
challenged by any of the societies expelled under the said
resolution. The Election Officer has no power or authority to
interfere with the decision of the Sangh. He has also submitted that
under the relevant bye-law, only those societies which are classified
in A and B categories by the auditors are permitted to
send their representatives to contest the election. It is, however,
likely that the societies which are classified in C or D
categories may also send their representatives to contest the
election and such nomination may be accepted by the Election Officer.
The Election Officer is, therefore, required to be directed to act in
accordance with the above referred bye-law 29 [1] of the Sangh.
We
are afraid, we are unable to agree with Mr. Rana. Section 36 of the
Gujarat Cooperative Socities Act, 1961 [hereinafter referred to as,
the Act ] deals with expulsion of members.
Sub-section (1) of the said section empowers the society to expel a
member by resolution passed by three-fourths majority of all the
members present and voting at a general meeting of members held for
the purpose. Proviso thereto provides that the member
concerned shall be given an opportunity of representing his case to
the general body and no resolution shall be effective unless it is
submitted to the Registrar for his approval and is approved by him.
It
is apparent that the above referred resolution dated 22nd
June, 2007 had been passed by the Sangh in violation of the above
referred section 36 of the Act. First, it is observed by the
Election Officer that the expulsion of the member-societies was not
the agenda of the meeting held on 22nd June, 2007;
second, the concerned societies were not given notice or
opportunity of representing their case to the general body; and
third, it has not come on record that the said resolution was
submitted to the Registrar of Cooperative Societies for his approval
and that it was approved by him. Thus, to us it appears that the
above referred resolution dated 22nd June, 2007 not only
had been passed in violation of the statutory provisions contained in
Section 36 of the Act but has also not become effective for want of
approval of the Registrar. The petitioner’s claim based on such a
resolution has rightly not been accepted by the Election Officer.
We
have no reason to presume that the Election Officer will not act in
accordance with the bye-laws of the society. No relief can be granted
on mere apprehension.
No
other contention is raised before us. The petition is
dismissed in limine.
{Miss R.M Doshit, J.}
{Sharad
D. Dave, J.}
Prakash*
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