MR.BHASKAR BHATTACHARYA

1. All these Special Civil Applications were taken up together as a common question of law is involved in all these matters.

2. The petitioners in these writ-petitions have prayed for a declaration that Rule 3-A (8) of the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 [hereafter referred to as the Rules] is ultravires the Constitution of India and/or the Gujarat Co-Operative Societies Act, 1961 [hereinafter referred to as the Act] and the rules made thereunder under the provisions of the said Act.

3. The Rules are framed pursuant to the powers conferred under sections 168 read with section 148A of the Act and accordingly, after compliance of the provisions contained in those provisions of the Act, the Rules were framed by the Government.

4. The sum and substance of the contentions advanced by Mr. Parikh, learned senior Advocate appearing on behalf of the petitioners in these applications, was that Rule 3-A (8) restricting the number of constituencies cannot be enacted by way of a delegated legislation as the Act does not authorize the delegated authority to put any restriction with regard to the formation of constituency. According to Mr. Parikh, the Act has authorized the Co-Operative Societies to frame its bye-laws in accordance with the provisions of the Act and the Rules made thereunder but by enacting the aforesaid provisions in the Rules by delegated legislation, something which is in conflict with the provisions of the Act cannot be introduced. In other words, according to Mr. Parikh, Rule 3-A (8) is in conflict with the main provisions of the Act, particularly, the provisions contained in section 74C(3) of the Act which gives a mandate that the committee of the management should be elected by the general body of the members of the Society. According to Mr. Parikh, the provisions contained in Rule 3-A (8) of the Rules violates the aforesaid provisions of section 74C(3) of the Act inasmuch as by virtue of the aforesaid provisions of the Rules, the committee of management now can be elected by the choice of a restricted members of the general body of the society. Mr. Parikh contends that such provision is in direct conflict with the intention expressed by the legislature.

5. All the learned counsel appearing on behalf of the respondents have, however, opposed the aforesaid contentions of Mr. Parikh. They have submitted before us that the provisions contained in Rule 3-A (8) are in no way conflict with any of the provisions of the Act and section 145Y of the Act specifically authorizes the delegated authority to frame Rules relating to election of the committee which includes creation of constituencies or delimitation of such constituencies. They have further contended that the Rules having been framed not only under section 145A of the Act but also in compliance with the requirement provided in section 168 of the Act, the contentions advanced on behalf of the petitioners are not tenable in the eye of law and the State Legislative Assembly has explicit approval of the Rules.

6. Therefore, the only question that falls for determination in these writ-petitions is whether the provisions contained in Rule 3-A (8) of the Rules is inconsistent with any of the provisions of the Act or beyond the scope of legislative delegation provided under section 145A or section 168.

7. In order to appreciate the aforesaid contentions, it will be profitable to refer to the following provisions of the Act:

Section 2 (2). ‘Bye-Laws’ - Means bye-laws registered under this Act and for the time being in force, and include registered-amendments of such bye-laws;

Section 2 (5). ‘Committee’ – Means the committee of management, or other directing body, to which the management of the affairs of a society is entrusted;

Section 9: Registration and provisional registration, Certificate of registration:

(1). On receipt of an application for registration from a society

(a). If the Registrar is satisfied tha