AMBALAL MANILAL MAKWANA Vs. KHAMBHAT TALUKA SAHKARI KVS LIMITED

JUDGEMENT

(1.) By this writ petition the petitioner has challenged the validity and legality of the election of the respondent No. 2 as the President and of respondents Nos. 2 to 17 as the members of Managing Committee of the respondent No. 1 which is a federal society registered under Gujarat Co-operative Societies Act 1961 which is hereinafter referred to as the Act. The challenge is on the ground that since respondent No. 1 Society is a federal society as defined by sec. 2(19) of the Act the meeting in which the impugned election of the respondents Nos. 2 to 17 was made was not legally constituted as provided by rule 15 of Gujarat Co-operative Societies Rules 1965 which are hereinafter referred to as the Rules. The matter came up for hearing before our learned brother Diwan J. (as he then was) on 5th February 1972 when a question arose as to whether rule 15 of the Rules on which the petitioner has put reliance is mandatory or directory. In Spl. C. A. No. 1354/65 our learned brother J. B. Mehta J. has taken a view that this rule 15 is directory and not mandatory. However Brother Diwan J. was of the view that looking to the object for which rule 15 has been framed it should be held to be mandatory and not directory. Since there was a Judgment of Mehta J. taking the contrary view the matter has been referred to a larger bench and that is how this matter comes before us.

(2.) Short facts of the case are that the respondent No. 1 is known as Khambhat Taluka Sahakari Kharid Vechan Sangh Ltd. It is a federal society having 706 individual members and 80 co-operative societies as members. The election of the President and the Managing Committee of this society took place according to the by-laws of the Society on 27 The relevant by-law is by-law No. 29 which says that the managing committee shall be constituted by 20 members elected as under:

(3.) The contention of the petitioner is that the respondent No. 1 Society being a federal society the voting rights of the individual members as well as the society members of this society are regulated by rule 15 of the Rules and since the above referred election is not made in accordance with the said rule 15 the election is illegal and void. It is an admitted position that if rule 15 which is the main bone of contention between the parties in this writ petition is found to be directory and not mandatory the above referred election cannot be challenged as invalid but if the same is found to be mandatory then the society was bound to elect its President and the members of the managing committee only in accordance with the provisions of this rule and since it is an admitted position that the provisions of rule 15 are not complied with it must be held that the election is invalid.