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2011 (2) GCD 1712 (Guj)
Hon’ble Mr. Justice S.R. Brahmbhatt
Banaskantha District Co-operative Union Ltd. Through
Versus
State of Gujarat Through Deputy Secretary & Ors.
Special Civil Application No. 3730 of 2011—Decided on 12/05/2011
Gujarat Co-operative Societies Act, 1961 — Sections 13, 153 and 155 — Gujarat Co-operative Societies Rules — Rule 6 — Bye-Laws — 24(9), 24(11) and 74(B)(B) — Amendment — Nomination of three women by way of reservation in Committee — Resolution by Society — Approval and order of District Registrar Co-operative Societies — Quashing and setting aside for lack of appropriate notice — Sustainability — Finding of — The resolution for amendment of bye laws came to passed in pursuant to the agenda lien in meeting of the Society — Court examined the resolution and found it is explicitly clear and contention of Respondent No. 4 is not acceptable that it is cryptic and did not denote the purport of amendment — Besides it would not be sufficient as to disturb, the approval made by general body of the Society — In any event the resolution could have been challenged by him in appropriate forum — Respondent No. 4 having not done either of the things now at a belated stage filed the appeal which could not be allowed — The Court added that requirement of law is that if Registrar is interested in making any charge or modification in proposed amendment he may hear the Society but in the case Society has not made any grievance and it has accepted the amendment as approved — Here the proposed amendment is challenged by Respondent No. 4 only and that too in absence of any prejudice to him — In the facts impugned orders are quashed and set aside.
Held :
The resolution is explicitly clear which reflects the amendment in the bye-law. Learned Advocate for the Respondent No. 4 is not unjustified in arguing that the item No. 5 is cryptic and did not denote adequately the purport of amendment or the details of amendment but that alone, in my view, would not be considered to be so sufficient as to disturb the approval when the general body meeting approved the bye-law and the resolution shows details by the Respondent No. 4 being really aggrieved by such a situation or a proposed amendment, then nothing prevented him from participating in the meeting and lodging his protest against the same. The protest, which is sought to be made out before the authority is in respect of lack of appropriate notice to the members in respect of the details of the proposed amendment, then in the case item No. 5 in the agenda, would be sufficient enough to put him in guard, that there is a proposal for amendment so as to give representation to women and in the case had he been so vigilant and conscious he could have remained present and protested against the same. The resolution could have been challenged by him in appropriate forum. As he has not done either of the things, now at a belated stage filing of the appeal bearing coming elections in mind, would indicate that this was an attempt to throw spanner in the wheel otherwise it was running smoothly. Therefore, in my view this petition is required to be allowed. [Para 13]
The Court hasten to add here that the requirement of law is that Registrar if is interested in making any change or modifying the proposed amendment, then he has to here the society but in the instant case society has not made any grievance and it was accepted the amendment as approved, which is slightly different, than the original proposed amendment but that in itself would not faced the Respondent No. 4 with any right to challenge the same in absence of any prejudice likely to be caused to him. [Para 14]
Law Laid Down :
Challenge to amendment in absence of any prejudice likely to be caused to petitioner is justified.
S.R. Brahmbhatt, J.—Rule. Shri K.P. Raval, learned AGP waives service of notice of Rule on behalf of Respondent Nos. 1, 2 and 3 and Shri V.C. Vaghela Learned Advocate waives service of notice of Rule on behalf of the Respondent No. 4. Rule is fixed forthwith at the request of the Learned Advocates appearing for the parties.
2. The petitioner, a registered co-operative society has approached this Court under Article 226 of the Constitution of India, challenging the orders dated 10.03.2011 passed by Respondent No. 1 confirming the order dated 22.10.2010 passed by Respondent No. 2, whereunder the appeal of Respondent No. 4 was allowed and the order of District Registrar, Co-operative Societies, Banaskantha, an amendment in the bye-laws, dated 26.03.2010 was quashed and set aside.
3. The facts in brief leading to filing of this petition deserves to be set out as under.
4. The petitioner society, with a view to carry out the statutory mandate embedded in provision 74(B)(B) for providing representations to women in the committee of the society. The society’s bye-laws prior to the amendment provided for nomination of two women individual members by way of reservation in the committee, instead thereof an amendment was proposed to provide for reservation to three from amongst individual members in the committee. The bye-law number 24(9) and 24(11) were thus required to be amended suitably. The bye-law No. 24(9) was required to be amended. The agenda item came to be circulated for the meeting to be held on 29.06.2009. In the said agenda item of the meeting to be held on 29.06.2009, item No. 5 was in respect of amendment in the bye-law so as to provide for representation to women individual members. The said agenda item was also forming part of the annual report for the year 2008-2009. The copy of the proposed bye-law in a tabular form is produced at page 37 and it is averred in the oath of the memo of the petition that this copy along with the agenda were sent to individual members under certificate of posting and those documents indicating posting to members are produced on record. Pursuant to the said agenda, annual general meeting of the society was held on 29.06.2009, wherein the resolution was passed, as proposed amendment. After resolving to amend the bye-laws, the requisite proposal was sent to the concerned authority namely Respondent No. 3 for according his approval. The said bye-laws came to be approved by the competent authority vide his order dated 26.03.2010, however the approval granted, did not reflect the exact amendment which was proposed and resolved. The change and modification was at the end of Registrar without it being notified to the society. The change was to the effect that instead of three members as proposed, the Registrar while approving the bye-laws reduced it to two women members out of originally four individual members in the original bye-laws as proposed contained amendment so as to elect five life time individual members out of which three women members were to be given representation, whereas the approved amendment reflected it to four, election of life time members out of which two members were to be women members. This approval was accepted by the society as no protest at all was registered by the society and society, therefore, was not aggrieved at all by not notifying the society for changing the proposal of bye-law and approved the changed bye-law. The present Respondent No. 4 who happen to be individual member of the society preferred an appeal under Section 153 of the Gujarat Co-operative Societies Act, 1961(“the Act” for short), inter alia contending that the bye-law as proposed ought not to have been approved as the mandatory requirement of Section 13 and Rule 6 had not been complied with. The appeal was preferred on 07.09.2010, meaning thereby after the prescribed period for filing appeal and hence a prayer for delay condonation was also made. The Appellate Authority after recording reas
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