Gujarat High Court
Kaushikkumar Sureshchandra Desai vs State Of Gujarat & 5 on 13 November, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/16391/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16391 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KAUSHIKKUMAR SURESHCHANDRA DESAI....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR DIPAN DESAI, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR RONAK RAVAL, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1-3
MR DHAVAL DAVE, SR. ADVOCATE, with MR SIRAJ GORI for Respondent(s)
No. 4-6
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 13/11/2014
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C/SCA/16391/2014 JUDGMENT
ORAL JUDGMENT
Rule. Service of rule is waived by learned AGP Shri Ronak Raval for respondents Nos. 1-3 and learned advocate Shri Siraj Gori for respondents Nos. 4-6.
2. The present petition is filed by the petitioner under Arts. 14, 19 and 226 of the Constitution of India as well as under the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as 'the Act') read with the Gujarat Co-operative Societies Rules, 1965 (hereinafter referred to as 'the Rules') for the prayers, inter alia, that the impugned order dated 10.11.2014 passed by respondent No.3-Election Officer rejecting the nomination papers of the petitioner at Annexure-A may be quashed and set aside and the Election Officer may be directed to accept the nomination papers of the petitioner on the grounds stated in the memo of petition.
3. Respondent No. 4-6 had filed a civil application to be impleaded as party and they have been joined as party respondents.
4. Heard learned advocate Shri Dipan Desai for the petitioner, learned AGP Shri Ronak Raval for respondents Nos. 1-3 and learned Sr. Counsel Shri Dhaval Dave appearing with learned advocate Shri Siraj Gori for respondents Nos. 4-6.
5. Learned advocate Shri Dipan Desai submitted that the nomination papers of the petitioners have been rejected on flimsy and non-germane grounds which has led to filing of the present petition. He submitted that the Election Officer is not acting in a transparent manner and conducting the election in a fair manner. He submitted that though the order appears to have been passed in purported exercise of powers under Rule 32 of the Page 2 of 10 C/SCA/16391/2014 JUDGMENT Rules, the case of the petitioner is not covered in any of the grounds mentioned. He, therefore, submitted that the order could not have been passed by respondent No.3-Election Officer de hors the provisions or the bye-laws and therefore it is ultra vires the powers and jurisdiction. For that purpose, he pointedly referred to the impugned order produced at Annexure-A and submitted that irregularities and offences are alleged but admittedly no FIR or complaint have been filed before the Registrar. In fact, as stated in the impugned order, the District Registrar has instructed the bank to now initiate the proceedings or filing the FIR meaning thereby as on day there is no such complaint and therefore the nomination form could not have been rejected.
6. For that purpose, learned advocate Shri Desai referred to Rule 32 of the Rules which provide, "Qualifications for the members of the committee". He submitted that as there is not even an FIR, there is no question of having found guilty and he is not a defaulter and therefore the order could not have been passed. He also referred to the bye-laws.
7. Learned advocate Shri Desai referred to the judgment of this High Court reported in 2001 (1) GLR 259 in the case of Kanjibhai Babaldas Patel v. Election Officer of APMC, Visnagar and submitted that the contention about alternative remedy under sec. 96 of the Act has been considered and it has been observed that even if statutory remedy is there, the powers under Art. 226 could be exercised in the interest of justice and there is no bar. He submitted that though this judgment is referring to the Agricultural Produce Market Committee and the rules it has been observed that the officer cannot read or add which is not provided in the rules. He submitted that it would amount to adding or re-writing the provisions of the rule. Learned advocate Shri Desai has also referred to and relied upon the judgment of the Hon'ble Division Bench of this High Court reported in 2011 (0) GLHEL-HC-226211 in the case of Dilipbhai Page 3 of 10 C/SCA/16391/2014 JUDGMENT C. Nathvani v. State of Gujarat through the Secretary. He has also referred to the judgment of this High Court reported in 1993 (1) GCD 433 (Guj) and submitted about the approach in such matters. He emphasized the observations in para 7 that a liberal approach is required to be taken because the consequences of the technical or narrow approach might result in setting aside the election for the entire ward. He submitted that if there is any doubt the benefit should be given in favour of acceptance of the nomination papers.
8. Learned Sr. Counsel Shri Dhaval Dave appearing with learned advocate Shri Siraj Gori raised the preliminary objection stating that as there is an alternative, efficacious remedy provide by the statute under sec. 96 of the Act the petition under Art. 226 may not be entertained. Learned Sr. Counsel Dave submitted that this is not the case of violation of any fundamental or legal right which may justify the exercise of discretion under Art. 226. He emphasized and submitted that assuming for the sake of argument and taking the case at the face value against the respondents, it could be a matter for consideration before the proper forum as the alternative remedy is provided. Learned Sr. Counsel Shri Dave submitted that it cannot be said that the order is without jurisdiction or ultra vires in light of the statutory provision and therefore whether the order is erroneous or not can be considered. He submitted that the order which is without jurisdiction is one aspect and the order which is erroneous in exercise of statutory power is another aspect. He therefore submitted that the petition of the petitioner under Art. 226 may not be entertained. Learned Sr. Counsel Shri Dave submitted that though there may be a discretion under Art. 226, the same may not be exercised when there is an alternative remedy. He has referred to p. 80 which is the bye- laws and clause 8 refer to 'Miscellaneous' and submitted that it refers to the election and clearly provides that if there is any objection one can have recourse under sec. 96 and therefore the petition is not maintainable.
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9. In support of his submissions, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1987 (Supp) SCC 512 in the case of Gujarat University v. N.U. Rajguru and ors., and referred to the observations in para 6 to emphasise that ordinarily when the remedy is provided by the statute, it must be followed. He has also referred to the papers and the affidavit-in-reply filed by the respondents. He pointedly referred to the bye-laws at p. 80 and a letter from the bank to the Reserve Bank of India dated 2.9.2014 at p. 81 and tried to submit that as a vice-chairman he has indulged in irregularity in respect of the work of excavation of the pond He therefore referred to Rule 32 and submitted that Rue 32 (b) would be applicable as the petitioner had a direct or indirect interest in the transactions with the bank which cannot be disputed. He pointedly referred to this letter to support his contention about the irregularity by the petitioner.
10. Learned Sr. Counsel Shri Dave referred to the details of the affidavit to support his contention about the interest of the petitioner as a vice-chairman and the irregularity to suggest that that he was involved and therefore the order is justified in purported exercise of power under Rule 32(b) of the Rules.
11. Learned Sr. Counsel Shri Dave submitted that it is well accepted that once the election process is started, normally, the court would not intervene and the election process would not be disturbed and the party can have the remedy after conclusion of the election. In support of his contention he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1952-AIR (SC)-0-64 in the case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and pointedly referred to the observations made in para 16.
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12. Learned Sr. Counsel Shri Dave, therefore, submitted that if the order is without jurisdiction, then, perhaps, the discretion under Art. 226 may be justified but if the order is passed in exercise of statutory power and is not without jurisdiction then the court would decline to exercise such discretionary powers. He has also referred to the judgment reported in (2006) 1 GCD 211 in the case of Daheda Group Seva Sahakari Mandli Limited v. R.D. Rohit, Authorised Officer and Co-operative Officer (Marketing) and the observations made in para 32. He therefore submitted that the present petition may not be entertained.
13. Learned AGP Shri Raval has adopted the submissions made by learned Sr. Counsel Shri Dave and has also referred to the affidavit filed on behalf of respondent No.3. He has also emphasised about the alternative remedy as provided under sec. 96. He has also referred to the affidavit and the annexures to support the contention about the qualification referring to the provisions of Rule 32. He has also refereed to sec. 115 and the latter addressed to the Reserve Bank of India to emphasize about the alleged irregularity. He has also referred to sec. 147 and the provisions of sub-sec. ( r) submitting that it provides that if a person has indulged into malpractice such a person is liable to be punished and therefore the District Registrar on the basis of the material has directed the bank to file a criminal complaint and therefore he may not be permitted and therefore the nomination has been rejected which is just and proper.
14. In rejoinder, learned advocate Shri Desai submitted that the alternative remedy is not a bar as observed in the judgment of this High Court reported in 2000(1) GLR 259. He submitted that the reliance placed on the judgment of the Hon'ble Apex Court in the case of N.P. Ponnuswami (supra) [1952-AIR(SC)-0-64] refers to the Representation of the People Act and when there is a constitutional provision for such a bar.
Page 6 of 10C/SCA/16391/2014 JUDGMENT Learned advocate Shri Desai submitted that even in a case under the Representation of the People Act where the constitutional provision has been made, the scope of judicial review under Art. 226 cannot be curtailed. In support of his submission he has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Election Commission of India v. Ashok Kumar and ors. [(2000) 8 SCC 216] and submitted that the subsequent judgment has considered the earlier judgment of the Hon'ble Apex Court reported in the case of N.P. Ponnuswami (supra) and has made the observations and concluded that despite such alternative remedy there is no bar for exercised of such jurisdiction. He pointedly referred to the observations in para 32 and submitted that while concluding the Hon'ble Apex Court has clearly made the observations, "(3). Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power beingo made out or the statutory body being shown to have acted in breach of law."
15. He therefore submitted that as there is no complaint filed as on date, nor is there any action taken, there is no justification for rejection of the nomination form and the present petition may be allowed.
16. Learned Sr. Counsel Shri Dave made the submissions referring to what could be stated ultra vires and he again emphasised about the involvement of the petitioner.
17. In view of these rival submissions, it is required to be considered whether the present petition can be entertained and allowed.
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18. Though the submissions have been made referring to the aspect of alternative remedy under sec. 96 of the Act, it is required to be mentioned that the scope of judicial review under Art. 226 is very well settled. It is well settled that even in such election matters the courts have made observations with regard to caution and exercise of powers meaning thereby the restrictions or broad guidelines are self-imposed. In other words, it refers to a self-imposed restraint rather than lack of discretion or jurisdiction. Therefore, the moot question is whether the present petition deserves to be entertained even though there is a statutory remedy in a given set of facts in the interest of justice.
19. For that purpose, the background of facts are required to be considered that the election programme as provided refers to various stages and if the grievance against the nomination is not entertained it would amount to fait accompli denying the right to the petitioner to contest the election. Again, it requires a closer scrutiny of the impugned order passed in purported exercise of power under Rule 32 of the Rules read with the bye-laws. Admittedly, there is no complaint, there is no FIR for the alleged irregularity. Therefore, as on the day there is nothing against the petitioner. Further, though the reference is made and emphasis is given to the communication by the bank dated 2.9.2014 to the Reserve Bank of India with regard to the irregularity committed by the petitioner as Vice- Chairman that he has been involved in some irregularity in respect of the work of excavation of the pond, the fact remains that no complaint has been made either before the Registrar, Co- operative Societies, nor any complaint for financial irregularity has been made anywhere. Therefore, it is too late to dig out such material at this stage to prevent the petitioner from contesting the election.
20. As referred to by the learned AGP, sec. 115C refers to the Page 8 of 10 C/SCA/16391/2014 JUDGMENT 'qualifications and disqualifications for being a committee member' and it would not be applicable to the facts of the case as there is no conviction or any default. Therefore, again, one can refer to Rule 32 which provide for the aspect of disqualification and it has to be considered within the broad criteria or grounds mentioned in Rule 32 and the bye-laws. The emphasis on rule 32(b) about the direct or indirect interest in the transaction is required to be considered. Assuming that there were some irregularities in respect of the work for excavation of the pond, there is nothing by which it can be said that there is any prima facie material even to involve the present petitioner. Admittedly, no complaint has been filed anywhere including even before the Registrar, C-operative Societies and therefore it cannot be made a ground now at this stage to disqualify the petitioner. Therefore, it cannot be said that the petitioner was having direct or indirect interest in the transaction with the bank. Therefore, the exercise of power has to be considered whether it is arbitrary, illegal or not.
21. Therefore, in view of the observations made in a judgment reported in (2000) 8 SCC 216 in the case of Election Commission of India through Secretary v. Ashok Kumar and ors., referring to the scope of exercise of powers under Art. 226 and interference with the election process the court is required to consider the rival claims and exercise the discretion in the interest or justice or rather to prevent the miscarriage of justice. Merely on some allegations or colourable exercise of power a person cannot be denied his right to contest the election and thereafter to be told that he may avail alternative remedy only to meet with the fait accompli after the election.
22. Therefore, in view of the discussions made hereinabove, the present petition deserves to be allowed considering the rival submissions as discussed above. Therefore, the impugned order dated 10.11.2014 Page 9 of 10 C/SCA/16391/2014 JUDGMENT passed by respondent No.3 is hereby quashed and set aside and respondent No.3 is directed to permit the petitioner to contest the election of Kalol Nagrik Sahakari Bank Ltd. as prayed and shall accept the nomination papers of the petitioner forthwith. It is clarified that the electron process may go on and the election may be conducted as scheduled inasmuch as this direction would not in any way disturb the election process as the time schedule is maintained before giving the symbols. With the aforesaid observations the present petition stands allowed. Rule is made absolute. No order as to costs.
D.S. permitted today.
(RAJESH H.SHUKLA, J.) (hn) FURTHER ORDER After the order was pronounced, learned advocate Shri Gori has requested for stay of the operation of the order for a day to enable his clients to approach the higher forum. In the facts of the case, as discussed above, the request is turned down.
(RAJESH H. SHUKLA, J.) Page 10 of 10