JUDGMENT :

Jayant Patel, J.

The short facts of the case appears to be that the petitioners are some of the members of Vitthalnagar Cooperative Housing Society at Vodadara (hereinafter referred to as 'the Society' for the sake of convenience). It is the case of the petitioners that about 39 members who were legal heirs of the original members and some other persons have been wrongly admitted by the Society as against original 63 members of the Society. Therefore, it appears that the complaint was made to the District Registrar and the District Registrar in purported exercise of the power under Section 23 of the Gujarat Cooperative Societies Act, (hereinafter referred to as 'the Act') found that these 39 members are wrongly admitted as member with mala fide intention by the office bearers of the Society, therefore, he directed the removal of such 39 members as member of the Society. It appears that those 39 members carried the matter before the Additional Registrar (Appeal) being Revision Appeal No. 63/97. The Additional Registrar found that the exercise of the power under Section 23 of the Act is not in accordance with the Act and the Rules, therefore, he set aside the order of the District Registrar. The matter was carried further in revision before the State Government and the State Government having concurred with the view of the Additional Registrar (Appeal) has dismissed the revision. It is under these circumstances, the present petition before this Court.

2. Heard Mr. Gandhi for the petitioners, Mr. Oza with Mr. BS Patel, Mr. Pushpaddatta Vyas with Mr. P.J. Vyas, Mr. S.P. Majmudar for the respective respondents and Mr. Pradip B. Jagetia appearing as party-in-person.

3. It is undisputed position that the exercise of the power by the first authority, i.e. District Registrar is under Section 23 of the Act. Section 23 of the Act for ready reference is reproduced as under:

"23. Removal from membership in certain circumstances:-

1. Where a person becomes a member of any society on his making a declaration as required by the bye-laws of the society or otherwise and such declaration is found to be false, then such person shall be disqualified to continue as a member of the society.

2. Where a person continues as member of the society notwithstanding the disqualification incurred by him {under sub-section (3) of section 22 or under sub-section (1)}, he shall be removed from the society by the Registrar;

Provided that the Registrar shall, before making an order of removal give the person an opportunity of being heard." UL>

4. The aforesaid shows that if any declaration is filed by any person at the time of admission as member as per the bye-laws and such declaration is found to be false, then only such person shall be disqualified to continue as the member and in spite of such declaration, if he continues as member, the Registrar has the power for removal. At this stage, the reference may also be made to the decision of this Court in the case of Vikrambhai Dhirajbhai Patel v. A.S. Jog, District Registrar, reported at 1989(1) GLR 690, wherein the view taken by this Court is that it is only that the upon the contingency that the declaration as per the bye-laws having been found false, the power can be exercised.

5. If the facts of the present case are examined in light of the aforesaid legal position, it appears that the District Registrar has not exercised the power on the premise that the declaration was filed and was found to be false, but the basis of the order passed by the District Registrar is that the admission of 39 members is in contravention to the Act and the Rules. Therefore, under these circumstances, it can be said that the exercise of the power by the District Registrar under Section 23 of the Act so far as removal of 39 members are concerned was beyond the scope and ambit of power under Section 23 of the Act, therefore, rightly set aside by the Additional Registrar (Appeal) and the State Government.

6. However, the learned cou