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Ambalal Manilal Makwana Vs. Khambhat Taluka Sahakari Kharid Vechan Sangh Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR382
AppellantAmbalal Manilal Makwana
RespondentKhambhat Taluka Sahakari Kharid Vechan Sangh Ltd. and ors.
Excerpt:
- - thus all the members of the society including the individual members as well as the societies registered as the members of 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 by now well recognised that for ascertaining whether this word is used in mandatory sense or in directory sense, the court has principally to look to the real intention of the legislature or the rule making authority. for ascertaining this intention, the court, amongst other things, may consider the nature and design of the statute or the rules, the.....t.u. mehta, j.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 section 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.....
Judgment:

T.U. Mehta, J.

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 Section 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 27-9-71. The relevant by-law is by-law No. 29, which says that the managing committee shall be constituted by 20 members elected as under:

1. The President elected by the members.

2. 12 representatives of individual members and 4 representatives of Societies members, all elected by all the members in a general meeting.

3. one representative of Central-Co-operative Bank;

4. one representative from the Co-operative Department; and

5. two representatives appointed by the Government.

Thus all the members of the Society including the individual members as well as the societies registered as the members of the respondent No. 1 elected its managing committee and the President on 27-9-71. It is an admitted position that the petitioner is a share-holder, and as such, a member of the respondent No. 1 Society and, therefore, he also took part in this election and voted for the purpose of above referred election of the managing committee and the President. The above referred managing committee and the President so elected started their work on 9-10-71, but this petition is filed on 27-10-71.

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 mandatary, 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.

4. The contention of the respondent-Society and the elected members of its managing committee including the President is that Rule 15 is directory and, therefore, society was free to frame its own by-laws for the purpose of electing the members of the managing committee and the President. These respondents further contend that after the rules of 1965 were framed, the district Registrar, Co-operative Societies, Nadiad, called upon all the societies working under his jurisdiction to frame their bylaws in conformity with the provisions contained in Rule 15, and in reply thereto the respondent No. 1-society passed resolution on 21-8-66 stating that the implementation of the provisions of Rule 15 would not work in interest of the society and, therefore, the same should not be insisted upon. These respondents further claim that they however framed their own bye-laws according to which the four representatives of the individual members of the Society could be elected as members of the managing committee. The respondents contend that this was approved and sanctioned by the Registrar, Co-operative Societies under Section 14 of the Act and, therefore, the disputed election is valid. In the alternative, these respondents have contended that, at any rate, the sanction given by the Registrar, Co-operative Societies to the by-law No. 29 which is adopted by the society, should be construed as exemption contemplated by Sections 161 and 162 of the Act.

5. As it is evident from the above noted contentions of the parties that the main dispute is whether the provisions contained in Rule 15 of the Rules are mandatory or directory, it would be necessary at this stage to quote the whole of this rule, which is in the following terms:

15. Voting rights of individual members in a Federal society:

(1) In the case of federal societies, other than the Gujarat State Co-operative Land Development Board the voting rights of individual members (which term shall include firm, company or body corporate, society registered under the Societies Registration Act, 1860, and state Government, but shall not include society) may be regulated as follows:

(a) Immediately after the 30th June, of every year and as soon as possible before the annual general meeting, individual members admitted to membership upto 30th June, of the preceding year (hereinafter referred to as 'the relevant date)' 'shall elect delegates equal to one fourth of the number of societies admitted to membership upto the relevant date on one delegate for every twenty five individual members (fractions being neglected) whichever is less. The delegates so elected will continue in office till their successors are elected after 30th June, next.

(b) Every society through its properly authorised representative and every delegate referred to in Clause (a) above shall have one vote in the general meeting.

(c) The quorum for the meeting shall be one-fifth of the total number of delegates and representatives of the societies or 25 whichever is less:

Provided that the delegate shall not at any time in the meeting exceed one-fourth of the number of representatives of the societies.

(d) The election of delegates shall be held in accordance with the provisions of the bye-laws.

(e) Any vacancy of a delegate caused on account of cessasion of membership 'shall be filled by the delegates by co-opting one of the individual members.

(2) Unless otherwise provided by the Registrar in respect of any particular society, the delegates on the committee or the board of directors, as the case may be, shall not at any time exceed one third of the number of representatives of societies (fraction being neglected).

6. The expression 'federal society' is defined by Section 2(9) of the Act as under:

Federal society means a society, not less than five members of which are themselves societies.

We shall refer to other relevant provisions relating to federal societies at a subsequent stage. For the present, it would be necessary to note the distinction which above referred Rule 15 makes as regards the voting rights of individual members and the voting rights of societies which are the members of a federal society. Sub-rule (1) of Rule 15 says that these voting rights 'may be regulated as follows'. Then follow Clauses (a) to (e) of Sub-rule (1). Clause (a) says that individual members who are admitted to the membership of the Society before 30th June, of the preceding year shall elect 'delegates' equal to one-fourth of the number of societies admitted to membership upto the relevant date or one delegate for every 25 individual members, whichever is less. CI. (b) of Sub-rule (1) further provides that every society which happens to be a member of the federal society through its properly authorised representative and every delegate referred to in Clause (a) shall have one vote in the general meeting. It is thus evident that the 'delegates' elected by individual members of the society in accordance with the Clause (a) and 'representatives' of every society which, happens to be the member of the federal society, shall constitute a general meeting. The point to be noted however is that every society which happens to be the member of a federal society can send one representative. Therefore, in the constitution of the general meeting of a federal society, there would be as many representatives of the federating societies as there is the number of such societies as members. But such is not the case so far as the delegates of individual members are concerned, because these delegates should be elected on the ratio of one for every 25 individual members, and if the number of delegates, who shall be so elected exceeds one-fourth of the number of societies admitted to membership of a federal society, then the latter number should prevail. So far as the respondent No. 1 is concerned, it is an admitted fact that its membership consists of 706 individual members and 80 society members. Therefore, the delegates of 706 individual members, if they are elected in accordance with Clause (a) of Sub-rule (1) of Rule 15, cannot be more than 20. But the representatives of the societies can be 80. Thus, the total strength of the general meeting of the respondent No. 1 Society would be 100, out of which 80 members would be the representatives of the societies who are the members, and 20 would be the delegates of the individual members, the total number of whom is 706. It is thus obvious that the managing committee elected on 27th September, 1971 is not in compliance with the above referred provisions of Rule 15. It should also be noted at this stage that Sub-rule (1) of Rule 15 uses the word 'may' while giving directions about the regulation of voting rights of individual members. This word was construed in Special Civil Application No. 1354/65 by Mehta, J. as meaning 'may' and not 'shall'. This is evident from what he has observed in his judgment dt. 19th June, 1970 in the said Special Civil Application:

Therefore, the provision of delegates seems to have been contemplated by Rule 15 of 1965 rules. The rule making authority has, however, deliberately provided in Rule 15(1) that in case of federal societies the voting right of individual members which term shall include a society may be regulated as shown therein. Therefore, the provision of delegates which is contemplated for the federal societies is not made mandatory for all the federal societies. The rule making authority has in Rule 15 left it to each federal society to regulate voting rights of its individual members by framing necessary bye-laws. That is why Rule 15 in terms uses the expression 'may' and not 'shall'. Therefore, until the bye-laws have been framed by the society to regulate the voting rights, the voting rights shall have to be exercised as per the existing bye-laws. The terms of Section 28(7) are mandatory as they in terms provide that the voting rights of the federal society shall be regulated only by rules and the bye-laws.

Respondents Nos. 1 to 17 support this view and contend that the word 'may' which is used in Sub-rule (1) of Rule 15 cannot be construed as 'shall'. Now it is not in dispute that the word 'may' does not always mean that the directions given by this word are directory in nature. There would be cases wherein this word can be construed as meaning 'must' or 'shall'. It is for the court to decide, on recognised principles as to whether this word makes the provisions which are mandatory or directory. It is by now well recognised that for ascertaining whether this word is used in mandatory sense or in directory sense, the court has principally to look to the real intention of the Legislature or the rule making authority. For ascertaining this intention, the court, amongst other things, may consider the nature and design of the statute or the rules, the consequences which would follow from construing this word one way or the other, and also whether the object of legislation in which this word is used will be defeated or furthered by a particular construction. It is in context of these principles that we may now proceed to consider whether the word 'may' is used in Rule 15(1) of the Rules in a mandatory sense or a directory sense. While considering this question it would be necessary to make reference to certain relevant provisions of the Act as well as of the Rules.

7. At the outset it should be noted that before the present Rules came into force in the year 1965, the Bombay Co-operative Societies Rules, 1927 were in force and all the societies were governed by the provisions of these rules of 1927 as read with the provisions contained in Gujarat Co-operative Societies Act, 1961. Before Co-operative Societies Act, 1961 came into force, the Act which was applicable was Bombay Co-operative Societies Act, 1925, which is hereinafter referred to as 'the Act of 1925'. Now the Act of 1925 originally did not contain any concept of a federal society. This concept was brought into the Act by Bombay Act No. XXVIII of 1948 which inserted the definition of the expression 'federal society', in the definition Clause as under:

Federal society means a society not less than three fourths of the members of which are societies.

It would be of some interest to note that the Statement of Objects and Reasons to this Bombay Act XXVIII of 1948 mention that the expression 'federal society' was defined 'because such societies will be associated with the exercise of control and supervision over co-operative societies which are affiliated to them'. This part of the said Statement of Objects and Reasons is material so far as the present dispute is concerned, because, it shows why the the concept of federal society was introduced in the scheme of the Cooperative Societies Act then prevalent in the State. The idea apparently was that a federal society would, to a certain extent, be able either to exercise direct or indirect control and supervision over other co-operative societies which are affiliated to it. It was on account of this that it was given a special treatment in the Act as well as the Rules framed under it.

8. Now proceeding further with other relevant provisions of the Act, we find that Section 8 of the Act provides for an application to be made by a society for its registration under the Act. This Section stipulates that an application for registering it under the Act should be accompanied by four copies of the proposed bye-laws of the society. Then follows Section 9 which says 'on the receipt of an application for registration from a society (a) if the Registrar is satisfied that the society has complied with the provisions of this Act and the rules as to registration and that its by-laws are not contrary to this Act and the rules, he shall register the society and its by-laws; and (b) if the Registrar is of opinion that the application complies with the requirements of Section 8 but that its by-laws are not in conformity with the provisions of this Act and the rules, he may provisionally register the society and by an order in writing permit the society to perform such functions subject to such conditions as he may specify in the order and may also by an order in writing direct the society to amend within the period prescribed in this behalf its by-laws so as to bring them in conformity with this Act and the rules'. These provisions of Section 9 therefore show beyond any doubt that the by-laws which are proposed by a society aspiring to get registration under the Act, should be in conformity not only with the provisions of the Act itself, but also with the provisions of the rules framed under the Act, and if they are not found to be in conformity with either the Act or the Rules, the Registrar can grant only a provisional registration. Obviously these provisions of Section 9 therefore show that the by-laws which are framed by a society should be in conformity with the rules.

9. Other relevant provisions are contained in Sections 13 and 14. Section 13 provides for the amendment of by-laws of a society and Section 14 provides for the Registrar's power to direct the amendment of by-laws. Both these Sections are in the following terms:

13. (1) No amendment of the by-laws of a society shall be valid until registered under this Act. For the purpose of registration of an amendment of the by-laws, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the Registrar.

(2) If the Registrar is satisfied that the amendment so forwarded is not contrary to this Act or the rules, he may register the amendment;

Provided that no order refusing to register the amendment shall be passed except after giving the society an opportunity of being heard.

(3) When the Registrar registers an amendment of the by-laws of a society, he shall issue to the society a copy of the amendment certified by him, which shall be conclusive evidence of its registration.

(4) Where the Registrar refuses to register an amendment of the by-laws of a society, he shall communicate the order of refusal, together with his reasons therefor, to the society.

14. (1) If it appears to the Registrar that an amendment of the by-laws except in respect of the name or objects of a society is necessary or desirable in the interest of such society, he may call upon the society, in the prescribed manner, to make the amendment within such time as he may specify.

(2) If the society fails to make the amendment within the time so specified, the Registrar after giving the society an opportunity of being heard, and with the prior approval of the State Co-operative Council may register the amendment, and shall thereupon issue to the society a copy thereof certified by him. With effect from the date of the registration of the amendment in the manner aforesaid the by-laws shall be deemed to have been duly amended accordingly; and the bylaws as amended shall be binding on the society and its members.

These provisions show that the Act casts an obligation on the Registrar to obtain a satisfaction that the proposed amendment of a by-law is not contrary to the rules framed under the Act. Provisions of Section 14 further show that the Registrar is also empowered to call upon a society to make a particular amendment which is found necessary or desirable within a prescribed time and that if the society fails in carrying out these directions of the Registrar, the Registrar may register the amendment proposed by him after, of course, giving the concerned society an opportunity of being heard and after obtaining a prior approval of the State Co-operative Council. Both these sections, therefore, further emphasise the fact that in the matter of framing by-laws, the Registrar has complete control and has also a duty to see that the bylaws framed by a particular society are in conformity with the rules and not contrary to them.

10. Section 28 of the Act provides for the voting powers of the members of a society. Sub-section (1) thereof says that no member of any society shall have more than one vote in its affairs. So far as the disputed point is concerned, the more relevant provision is made by Sub-section (7) of Section 18 which says that the voting rights of members of a federal society shall be regulated by the rules, and by the by-laws of the society. This Section 28 should be read together with Section 73, which speaks about the final authority of the society and which is in the following terms:

73. Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the by-laws:

Provided that, where the by-laws of a society provide for the election of delegates of such members, the final authority may vest in the delegates, of such members elected in the prescribed manner, and assembled in general meeting.

These two Sections when read together show that the voting rights of a federal society should be regulated either by the rules or by the by-laws of the society and that if the by-laws of the society provide for the election of delegates of the members then these delegates would constitute the general meeting of the society.

11. These are the relevant provisions in the Act. We shall now proceed to consider the relevant provisions of the Rules. Rule 5 of the Rules makes provisions for framing by-laws. It says that where a society has been registered, the by-laws submitted under Sub-section (1) of Section 8, shall subject to any modification approved by the Registrar and adopted at a general meeting, become the by-laws of the society. Sub-rule (2) of this rule enjoins upon every society to make by-laws on the matters which are mentioned therein. Since the contesting respondents have relied upon Clause (h) of this Sub-rule (2), it would be in fitness to make a reference to this Clause which says that every society shall make bye-laws relating to 'rights of voting by a nominal, associate or sympathiser member and voting rights of a federal society'. The contention of the contesting respondents was that this Clause authorises the society registered under the Act to frame by-laws relating to the voting rights of a federal society and, therefore, it should be held that the by-laws prescribing the voting rights of the members of a federal society may not be in conformity with Rule 15 of the Rules. We are of the opinion that this contention cannot be upheld as correct for the simple reason that Clause (h) of Rule 5(2) speaks about the rights of voting 'of a federal society and not 'in' a federal society. This Clause is apparently contemplating the cases wherein the federal society is itself a member of another society. Clause (h) therefore contemplates the regulation of the voting rights of a federal society which happens to be a member of another society. Since this Clause does not speak of the voting rights of members 'in' a federal society, this Clause cannot be utilised for the purpose of interpreting whether the word 'may' which is used in Rule 15 is mandatory or directory, for the simple reason that Rule 15 speaks if the rights of members in a federal society.

12. Proceeding further with the other relevant rules, we find Rules 6 and 7 which provide for the amendment of by-laws by a society. There is nothing very special in these rules because Rule 6 contemplates a procedural aspect of the manner of altering or abrogating a by-law and Rule 7 contemplates the manner of calling upon a society to make amendment under Section 14 of the Act, to which we have already made a reference above.

13. From these provisions of the Act and the Rules one thing which becomes very evident is that the by-laws which a society registered under the Act is expected to frame should be subject to the rules framed by the Government under the Act, and should not in any manner be contradictory to these Rules. The object of the rule making authority in framing these Rules is obvious. That object is to see that the individual members of a federal society should not be in a position to outvote the representatives of the society, and thus to jeopardize the interest of societies which have preferred to become the members of a federal society. As we have pointed out earlier, the object of introducing the concept of a federal society into the scheme of the Act was to see that a type of society which can exercise either direct or indirect control and supervision over its affiliated societies should come into existence. If we once bear this particular object in mind then the nature and design of the scheme contemplated by Rule 15 becomes clear. It is obvious that according to this scheme, the general assembly of a federal society would always remain dominated by the representatives of the societies which have preferred to be the members. This was necessary because individuals by seeking membership in a federal society would otherwise be able to have either direct or indirect control over the management of the societies which have preferred to be affiliated to such a federal society. From the analysis of the scheme of Rule 15 it becomes evident that whatever be the extent of the individual membership, the delegates of these individual members cannot represent a general assembly by majority. Now if this was the original object which was in view of the rule making authority, at the time of framing Rule 15, the question which at once arises to be considered is whether this object could be frustrated by the members of a particular federal society by framing its bylaws which are contadictory to Rule 15. In our opinion, this was never contemplated either by the Legislature or by the rule making authority. The Legislature has specifically provided at various places, as pointed out by us above, that by-laws which would be framed by the Society should always be consistent with the rules framed under the Act, and if they are not so consistent, the Registrar by the powers vested in him under the Act, can make them consistent. Therefore, the object of the Legislature in framing these relevant provisions regarding by-laws and the rules was to see that no society should be at liberty to frame any by-law which would run contrary to the Rules. The object of the rule framing authority in framing Rule No. 15 is to see that the interest of the federating societies could not be put to jeopardy by the majority of the individual members. This object, therefore, cannot be allowed to be frustrated by a by-law, and if that be so, we must read the word 'may' as meaning 'shall' or 'must'.

14. Miss Shah, who appeared on behalf of the contesting respondents and Mr. Nanavati, who appeared on behalf of the respondent No. 32, who is the Registrar, Co-operative Societies, Gujarat State, Ahmedabad, put much reliance upon Sub-section (7) of Section 28 which says that the Toting rights of the members of the federal society shall be regulated by rules and by-laws of the Society. It was contended that this Sub-section contemplates the regulation of the voting rights both of the individual members as well as of the Societies who have preferred to become the members of the federating Society not only by rules but even by by-laws. It was pointed out that the very fact that this voting right can be regulated by by-laws suggests that the Legislature has contemplated freedom to every federal society to frame its by-laws which may not be consistent with the rules framed on a particular subject. We find ourselves totally unable to accept this argument especially when we find many provisions to which we have already made a reference above going to show that by-laws framed by the society should always be consistent with the rules framed by the State Government under the Act. Again, it should be noted that Sub-section (7) of Section 28 refers to rules as well as by-laws because the rules would obviously not be making all the detailed provisions as regards the subject dealt with by them. Therefore many details would still remain to be filled in and these details could be filled in by framing by-laws. Sub-section (7) of Section 28 speaks generally of 'voting rights.' Now if we take the provisions of Rule 15 into consideration we find that though the respondent No. 1 Society would not be at liberty to frame by-laws, which would run counter to the provisions of this rule, it would, none-the-less, be at liberty to fill in the details such as the manner of voting and the method of counting the votes cast at a particular meeting. All these details would obviously have reference to 'voting rights' of members. Therefore, when Sub-section (7) speaks of the rules as well as by-laws for the purpose of regulating the voting rights of a member of federal society, we do not find any dichotomy therein. If rules make sufficient provisions on a particular subject, then obviously by-law would be so framed as to make it consistent with the said rule. But if the rule is silent on a particular subject, then obviously the by-law could be framed with a view to fill up the lacuna. In this connection it should also be noted that when the Act of 1961 came into force, the Societies were governed by the Bombay Co-operative Societies Rules of 1927 and these rules did not contain any rule which was similar to Rule 15 of the present Rules. Under the circumstances, Sub-section (7) of Section 28 could have been legitimately utilised by a society registered under the Act to make provisions about the voting rights of its members by framing suitable by-laws. But when the rules were re-framed in the year 1965, these by-laws must find consistency with these Rules. In our opinion, therefore, Sub-section (7) of Section 28 does not in any manner help the contentions raised by the contesting respondents.

15. In this connection it would be some what surprising to note the stand taken by the respondent No. 32, the Registrar of Gujarat Cooperatives Societies, in his affidavit which is filed in reply to this petition. Reference to para 8 of this affidavit shows that according to him the respondent Society has given representation to four individual members in the managing committee against 12 representatives of affiliating societies and, therefore, the respondent Society has complied with the provisions of Rule 15. In the same breath he states in para 10 of his affidavit that his department is still persuing the matter of non-compliance with the provisions of Rule 15 of the respondent Society. After stating this he makes the following statements:

It is however submitted that such action as is necessary will be taken against the first respondent society if it fails to adopt the provisions of Rule 15 of the Rules under Section 14 of the Act.

Obviously these two statements one that the respondent-Society has already complied with the provisions of Rule 15, and the other that an action for the breach of this rule is contemplated by the department are contradictory. It is therefore evident that the respondent No. 32 is not clear in his stand with regard to the disputed question.

16. We are informed by Miss Shah on behalf of the contesting respondents that even after the rules came into force, the Society has passed a Resolution on 21st August, 1966 stating that the provisions of Rule 15 are not in the interest of the Society and, therefore, authority should be moved not only for approving by-law No. 29, to which the reference is already made above, but also to exempt the society from implementing the provisions of Rule 15. Miss Shah further contended that as a result of this Resolution, the Society has framed by-law No. 29 according to which all the members of the society-individual as well as Societies would be at liberty to elect the members of the managing committee in a particular proportion. This rule is said to have been sanctioned by the Registrar on 14th February, 1967. Miss Shah therefore contended that when this amended rule is sanctioned by the Registrar, the said sanction should be construed as exemption contemplated by Sections 161 and 162 of the Act.

17. If a reference is made to Section 161 of the Act, it will be found that it empowers the State Government to exempt Societies from any of the provisions of the Act. This Section contains a proviso that no order to the prejudice of any society shall be passed, without an opportunity being given to such society to represent its case. Thus, according to this Section it is clear that in case of an exemption which is contemplated to be given by the State Government before any order is passed by the State Government, the Society which is likely to be prejudiced should be given an opportunity of being heard. No such opportunity is either alleged to have been given or actually given in this case. The fact of the matter is that though the Resolution of the Society dt. 21-8-66 contemplates that the State Government should be moved to grant exemption there is nothing in the record to show that any such a move was actually made. Miss Shah wanted to construe the sanction of the Registrar to the amended by-law as amounting to exemption. No such sanction is produced in the record of the case to enable us to know in what words and under what provisions the same is granted. But even presuming that that was a sanction under Section 14 of the Act allowing the Society to carry out the amendment of the by-law, it is obvious that it cannot be construed as an exemption contemplated either by Section 161 or by Section 162 which contemplates delegation of powers of the State Government to exempt a particular Society from the provisions of the Act in favour of the Registrar.

Under these circumstances, we find that by law No. 29 in accordance with which the elections of the members of the managing committee and the President of the Society have been made on 27th September, 1971, is ultra vires and illegal as it is contrary to the provisions contained in Rule 15. We also find that if the Registrar has granted any sanction to by-law No. 29 the said sanction is illegal and cannot be construed as amounting to an exemption to the respondent Society from any of the provisions of the Act or the Rules.

18. Though the above finding is in favour of the petitioner, we are of the opinion that no writ can be entrusted to the petitioner in this case in view of the fact that the petitioner has himself taken part in the disputed election and has thereafter waited sufficiently in approaching this Court by way of this petition. As already stated above, after the elections were over, the President as well as the managing committee started functioning on 9-10-71. Several days thereafter the petitioner approached this Court with a prayer for obtaining a declaration that the disputed election was void and illegal. The petitioner himself being a party to the said illegality, is not entitled to be entrusted with any writ. The result, therefore, is that this petition deserves to be dismissed. In view of the peculiar facts of the case, there shall be no order as to costs.


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