GANPATBHAI KHANABHAI PARMAR Vs. ARJUNBHAI KARSANBHAI VAGADA

JUDGEMENT

(1.) The short facts of the case are that the petitioner No.1 is the Chairman of the petitioner No.2 and the petitioner No.2 is the Coop. Housing Society. It is the case of the petitioner that the respondent No.1 when became the member of the petitioner No.2 society has submitted a declaration (of course the date of declaration is blank) that the members of his family were not having house in another Housing Society. On 15.3.84 the District Registrar issued notice to the respondent No.1 under section 147(1) of Gujarat Cooperative Societies Act (hereinafter referred to as "the Act") stating that the Chairman of the petitioner No.2 society in his application dated 2.3.84 communicated that the respondent No.1 had filed a wrong declaration and therefore it is an offence under section 146(1) of the Act and therefore the respondent No.1 was called upon to show cause as to why the complaint should not be lodged against him for the said offence and for such purpose the opportunity was given to him under section 149(3) of the Act. On 16.4.84 the District Registrar intimated the Chairman of the petitioner No.2 society to remain present on 4.5.84 for the purpose of hearing. It appears that thereafter on 17.8.84, once again, the District Registrar addressed a letter to the Chairman of the petitioner No.2 society copy whereof is forwarded to respondent No.1 herein intimating that the signature on the said declaration is denied and therefore the original declaration may be produced before him on 29.8.84. Thereafter, on 23.9.85 an order has been passed by the District Registrar under section 23(2) of the Act whereby the respondent No.1 is removed as the member of the petitioner No.2 society on the ground of false declaration.

(2.) The respondent No.1 herein preferred revision before the Additional Registrar, Cooperative Societies, Gujarat State being Revision Application No.25/85 against the order dated 23.9.85 passed by the District Registrar under section 23(2) of the Act. In the said revision the Additional Registrar, Cooperative Societies found that the proceedings were initiated under section 147 of the Act and therefore the final order could not have been passed under section 23(2) of the Act by the District Registrar and he further found that as per the record of the society the respondent No.1 is already removed as the member by Resolution under section 36 of the Act in the year 1975 and therefore the proceedings under section 23 of the Act, in any case, can not be maintained because when a person is expelled as member there is no question of expelling him as a member by the District Registrar and therefore ultimately the revision is allowed and the order of the District Registrar is set aside. It is this order dated 25.7.86 passed by the Additional Registrar in revision which is under challenge in this petition

(3.) Mr.S.V.Parmar appearing on behalf of the petitioner has mainly raised two contentions that in fact and rather in substance the proceedings were initiated as per the provisions of section 23 of the Act since it was the case of the society that a false declaration is filed. Therefore, merely because in the show cause notice there is a mention of section 147 of the Act, in his submission, final order under section 23 of the Act would not be defeated. Mr.Parmar raised second contention that merely because the resolution passed under section 36 of the Act for expulsion or approval is granted by the District Registrar for such expulsion, the same would not foreclose the proceedings under section 23 of the Act, because it may be that the proceedings under section 36 of the Act may or may not be maintained and even if it is maintained subsequently a person can still be admitted as a member of the society. Therefore, he submitted that the basis of the proceedings under section 36 considered by the Additional Registrar is an irrelevant and extraneous consideration. Mr.Parmar lastly submitted that even if this court finds that when the first notice was issued there was no proper mentioning of section and if the order of the Additional Registrar is maintained liberty may be reserved to the District Registrar to take appropriate action under section 23 of the Act for filing false declaration by the respondent No.1.