Point of Law: Provisions of Section 76(B(2) would stand somewhat on different footing. This Court when is taking a view that action could be initiated under subsection (2) only after passing order of removal, issuance of notice prior thereto for proposed action of disqualification would not be permissible and therefore, sending reply to show cause notice could be considered only for proposed action of removal.

JUDGMENT :

1. By way of this petition under Article 226 of the Constitution of India, the prayer of the petitioner reads as under:

“7(a) YOUR LORDSHIPS to be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to quash and set aside the impugned order dated 14.9.2020 passed by the respondent no.2 in purported exercise of powers u/s. 76(B)(1) and 76(B)(2) of the Act is exfacie illegal, invalid, null & void, suffering from malafides, colourable exercise of powers, without jurisdiction and competence, unreasonable, unjust, unfair and violative of Arts. 14, 19(1)(g) and 21 of the Constitution of India.”

2. Facts in brief are as under:

3. The petitioner is the Vice President of Valiya Taluka Cooperative Purcahse and Sale Union Limited. The election to the Executive Committee of the Society was lastly held in the year 2015. As per the byelaws, there are 19 members of the Executive Committee and one Shri Yogendrasingh Yashvantsinh Mahida is the President of the Society. It is the case of the petitioner that the Manager of the society called a meeting of the Executive Committee on 23.06.2020. Out of the 19 Committee members, two members had expired. Therefore, out of 17 existing members, 10 members moved a motion of no confidence against the President and requested the authorities to call for a meeting within a period of 30 days. The letter was addressed on 22.06.2020 by the members of the Executive Committee. The President was also informed on the same day. A request was also made to the President that the meeting that he had called on 23.06.2020 be cancelled. The case of the petitioner is that however the President proceeded to hold a meeting on 23.06.2020. On 25.06.2020 the petitioner by a letter to the Manager of the society, informed him that all the transactions being done under the Manager and the President be cancelled. On 26.06.2020, 11 members of the Executive Committee wrote to the President to call for a meeting of the Executive Committee by issuing a new agenda. The agenda included an issue to fill up vacant posts of members of the Executive Committee under Section 74(1c)(1) of the Act. Since the President and the Manager did not act on the requests, on 28.06.2020, the petitioner took out an agenda calling a meeting on 29.06.2020. On 29.06.2020, the meeting was conducted where 11 members of the Executive Committee were present, where it was unanimously decided to fill up three vacant posts of members of the Executive Committee by co-opting three members. As the respondents remained inactive for calling the meeting for the no confidence motion, 13 members of the Executive Committee wrote a letter on 20.07.2020 to the President to call a meeting immediately, failing which, within three days, the petitioner would be compelled to take out an agenda of the meeting. It is the case of the petitioner that since the Manager was not calling a meeting, the members sought a clarification on 29.07.2020. Ultimately, it was decided to hold a meeting on 30.07.2020 which was so held and it was informed to the petitioner that such a meeting should not be called.

4. As a result of this episode, a show cause notice dated 06.08.2020 was issued by the respondents to the petitioner under Sections 76B(1) and 76B(2) of the Gujarat Cooperative Societies Act on the following grounds:

I. The Vice President inspite of the no confidence motion, not having been passed against the President and inspite of the President continuing in office, the petitioner called the meetings dated 29.06.2020 and 30.07.2020 and thereby committed a violation of the byelaws of the society.

II. In the meeting called by the petitioner on 29.06.2020, three vacancies in the Executive Committee were filled in by co-opting three members. This is in violation of Section 74(1C) as such vacancies have been filled in after a period of 60 days prescribed in the provision.

III. The vacancies in the Executive Committee have been filled in v