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Judgment
K.S. Jhaveri, J.—By way of this petition the petitioner has challenged the order dated 22/10/2001 passed by the Deputy Secretary, Agriculture and Co-operation Department, State of Gujarat confirming the order of appellate authority as well as the District Registrar which has not approved the decision of the society of removing the respondent No. 1 as a member of the society.
Learned Counsel for the petitioner has submitted that all the authorities have misread the contention of the petitioner - society. In-fact the respondent No. 1 was not removed under the provisions of Section 36 of the Gujarat Co-operative Societies Act (the Act). It is submitted that the order impugned is in excess of jurisdiction of lower authority and is contrary to law and evidence produced on the record and contrary to provisions of Section 23 of the Act. It is further submitted that communication dated 01/09/1999 was regarding legal and illegal removal of respondent No. 1 and not regarding legality and validity of proceedings u/s 36 of the Act. According to learned Advocate for the petitioner Section 36 of the Act has no application to the facts of the present case and the authority has misread and misconstrued the provisions of Section 23 read with By-law 11(A)(1) and Section 36 of the Act. It is submitted that the action of authority can be said to be "removal" and not "expulsion" and all the authorities have committed error in rendering the decision.
Before proceeding with the matter the facts which are admitted on record are that respondent No. 1 enrolled as a member on 27/07/1968 and the alleged membership was continued till the resolution of removing was passed in the year 1989. In that view of the matter, even with such alleged false declaration, respondent No. 1 continued as a member of the society. In spite of that no action was taken by the society.
3.1 On plain reading of Section 23(2) of the Act, it is clear that even if there is a disqualification under Sub-section (2) actions are required to be taken by the District Registrar. Section 23(2) of the Act reads as under.
23(2). Where a person continues as a 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.
3.2 In-fact no such order is passed by the District Registrar, even though endavour is made to take support of an order of without date (Page No. 123) that pursuant to the letter addressed by the Society, the District Registrar has authorized the society to take action. However, as contended by learned Advocate for respondent No. 1 Sub-section (2) of Section 23 will clearly come into operation because a person continues as a member of the society notwithstanding the disqualification incurred by him under Sub-section (3) of Section 22 or under Sub-section (1) shall be removed from the society by the Registrar.
This Court is in complete agreement with the findings arrived at by the authorities below. The petition is therefore dismissed. Rule is discharged with no order as to costs. Interim-relief, if any, stands vacated.