Point of law : Section 74 of the Societies Act mandates that only elected members shall be entitled to be the members of the Managing Committee. Hence, the constitution of the Managing Committee consisting of 21 members elected by the petitioner society without election was ex-facie not in consonance of Section 74 of the Societies Act. The Court, therefore, does not in any illegality or infirmity in the impugned decision of the authorized officer.”

ORDER :

Heard learned advocate Mr.Dipen Desai for the petitioners, learned advocate Mr.Ravi Pahwa for the respondent No.1 and learned Assistant Government Pleader Mr.Ishan Joshi for the respondent No.4.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the impugned order dated 26th July, 2021 passed by the respondent No.3 – Gujarat State Co-operative Tribunal, Ahmedabad in Revision Application No.34 of 2021 as well as the order dated 23rd June, 2021, passed by the respondent No.2 – Board of Nominees, Mehsana in Lavad Suit No.46 of 2021.

3. It is the case of the petitioners that the petitioner Nos.2 to 9 are the members of the managing committee of the petitioner No.1 – Society, which is registered under the provisions of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as “the Act of 1961”).

3.1 According to the petitioners, as the term of the earlier committee of the petitioner – Society came to an end, a new committee of 8 members of the managing committee i.e. petitioner Nos.2 to 9 was constituted unanimously and approved in the general body of the petitioner – Society.

3.2 However, as the selection of the petitioner Nos.2 to 9 was not through election as per the bye-laws of the petitioner No.1 – Society, the respondent No.1 preferred a Lavad Suit No.46 of 2021 before the respondent No.2 – Board of Nominees alongwith an application for interim injunction.

3.3 It was prayed in the Lavad Suit that in the meeting held on 15th July, 2020 the managing committee of the petitioner No.1 – Society be prevented from functioning. It was also prayed that the resolution No.3 dated 15th July, 2020, by which the petitioner Nos.2 to 9 were elected as the members of the managing committee, be also declared as null and void.

3.4 The respondent No.2 – Board of Nominees, after considering the reply filed by the petitioners, by order dated 23rd June, 2021 partly granted the interim injunction application and restrained the members petitioner Nos.2 to 9 to function till the final disposal of the suit.

3.5 The petitioners therefore, being aggrieved and dissatisfied by the order dated 23rd June, 2021, preferred the Revision application no.34 of 2021 before the Gujarat State Cooperative Tribunal, Ahmedabad, under Section 150(9) of the Act of 1961. However, the Tribunal by impugned order dated 26th July, 2021, rejected the revision application and therefore, the petitioners have filed this petition.

4. Learned advocate Mr.Ravi Pahwa appeared for the respondent No.1 on caveat and learned AGP Mr.Joshi appeared for the newly joint respondent No.4 – District Registrar on advanced copy.

5. Learned advocate Mr.Dipen Desai submitted that the petitioner Nos.2 to 9 were unanimously selected by the members of the petitioner No.1 – Society by applying TODA wise system. It was submitted that the petitioner No.1 – Society is situated in village Kamalpur, wherein, instead of electing the members of the managing committee as per the bye-laws it was decided by the erstwhile members of the managing committee with the consent of the village people to appoint the petitioner Nos.2 to 9 as members of the managing committee unanimously and accordingly, the resolution No.3 dated 15th July, 2020 was passed in the managing committee of the petitioner No.1 – Society.

5.1 It was submitted that the petitioners are ready and willing to hold the election as per the terms of the bye-laws, and if required, the District Registrar – respondent No.4 may be directed to hold such elections in accordance with the bye-laws, so as to see that the grievances raised by the respondent No.1 are redressed before the Board of Nominees.

6. On the other hand, learned advocate Mr.Pahwa for the respondent No.1, submitted that the petitioners cannot hold the office as members of the managing committee in view of the provisions of Section 74(1A)(ii) of the Act of 1961 because only the elected members are entitled to be the office bea