Gujarat High Court
Kathvada Milk Producer Co-Op. Society ... vs State Of Gujarat on 5 October, 2018
Equivalent citations: AIRONLINE 2018 GUJ 194
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/521/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 521 of 2018
In SPECIAL CIVIL APPLICATION NO. 1339 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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KATHVADA MILK PRODUCER CO-OP. SOCIETY LTD
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SI NANAVATI, SENIOR ADVOCATE WITH MR RAMNANDAN SINGH
for the PETITIONER(s) No. 1
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL WITH MR DM
DEVNANI, AGP for the RESPONDENT(s) No. 1
MR BHARAT T RAO(697) for the RESPONDENT(s) No. 6
MR MANISH S SHAH(5859) for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Page 1 of 41
C/LPA/521/2018 CAV JUDGMENT
Date : 05/10/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The present appeal, which is filed under Clause 15 of Letters Patent, is directed against the C.A.V judgment dated 13.04.2018 passed by the learned Single Judge in Special Civil Application No.1339 of 2018 and allied matters, whereby the learned Single Judge has dismissed the petition filed by the present appellant - original petitioner.
2. At the outset, it is required to be noted that though the learned Single Judge heard the batch of petitions, only the petitioner of Special Civil Application No.1339 of 2018 has preferred the present appeal.
3. The facts stated by the petitioner in the said petition briefly are as under:
3.1. It is the case of the petitioner that it is a Primary Milk Producer Co-operative Society. It is the member of Sabarkantha District Co-operative Milk Producer' Union Ltd., Himmatnagar (hereinafter referred to as the Union). The respondent Union framed the bye-laws. Bye-law No.35(1)(A) provides for the manner in which the election of the union is to be held. It is Page 2 of 41 C/LPA/521/2018 CAV JUDGMENT provided that there would be total 21 members of the Union and out of 21 members of the Board, 16 members are to be elected and every voter would be entitled to cast 16 votes. Other members are to be nominated or by virtue of holding the post, they are deemed to be the members. It is further stated that one group of matters pertaining to delimitation of constituency and the manner in which the election to be held in the co-operative society came for consideration before this Court in the case of Narendrabhai Mahijibhai Patel and ors. v. State of Gujarat and Ors., reported in 2013(0) GLHEL SC 229583. It is stated that the Full Bench of this Court held that if the society constituted in more than one village, then there will be separate constituency and one cannot be allowed to cast vote for all the villages. It is, therefore, held that if the specified society is having its operation in more than one village, then there has to be delimitation of the constituency and one person can cast vote in his constituency only. It is further stated that the aforesaid decision rendered by the Full Bench was challenged by Rajkot District Cooperative Bank Ltd. by filing Special Leave Petition No.26017 of 2013 before the Hon'ble Supreme Court, which was subsequently converted into Civil Appeal No.10392 of 2014. It is submitted that the Hon'ble Supreme Court Page 3 of 41 C/LPA/521/2018 CAV JUDGMENT rejected the said appeal and the said decision in the case of Rajkot District Cooperative Bank Ltd.
v. State of Gujarat and Others is reported in (2015) 13 SCC 401. The relevant paragraphs of the said decision are reproduced in the memo of the petition.
3.2. It is further stated that Sabar Dairy also challenged the aforesaid decision rendered by the Full Bench of this Court by filing Special Leave Petition No.34844 of 2013 before the Hon'ble Supreme Court. However, when the Hon'ble Supreme Court had rendered the decision in the case of Rajkot District Cooperative Bank Ltd. (supra), the appeal filed by Sabar Dairy became infructuous. It is, therefore, stated that the decision rendered in the case of Rajkot District Cooperative Bank Ltd. holds the field. Thus, the constituency should be delimited and voters' list should be prepared for constituency-wise and any person wants to contest the election has to contest in his own constituency. Similarly, the voter cannot cast vote in another constituency. In other words, one voter can cast vote only in one zone and not in all zones. The grievance is made that though the decision rendered by the Full Bench is confirmed by the Hon'ble Supreme Court, the respondent Union did not amend its bye-laws and therefore bye-law No. 35(1)(A) is Page 4 of 41 C/LPA/521/2018 CAV JUDGMENT contrary to the law laid down by the Hon'ble Supreme Court.
3.3. It is further stated that petitioner made representation on 18.01.2018 to the Collector as well as District Registrar for holding the election by permitting the person to cast his vote in his own constituency only i.e. one person can cast only one vote and not 16 votes as provided in the bye-law of the respondent Union. However, the grievance is made in the petition that respondent authorities did not consider the said representation and they are going to hold the election as per the bye-laws.
3.4. The petitioner, therefore, filed the captioned petition in which the petitioner had prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow the present petition.
(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction by, directing the respondent No.2 Election Officer to hold the election of the respondent No.4 society declaring that each voter would cast vote in his/her constituency of the respondent society only where his/her name appears in the voter's list of that constituency and would not be entitled to cast more than one vote as prescribed in bye-law No.35(1) Page 5 of 41 C/LPA/521/2018 CAV JUDGMENT (A) of the Bye-laws of respondent society as it is contrary to Rule 3A(8) of the Gujarat Specified Co-operative Societies (Election to Committee) Rules, 1982.
(C) Pending admission, hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to stay the further process of holding the election of respondent No.4 society, if the respondent authorities are acting contrary to Rules in holding election of respondent No.4 society.
(D) Your Lordships may be pleased to pass any other order, direction or relief, which may be deemed fit in the facts and circumstances of the present case."
4. The learned Single Judge, by the impugned judgment, dismissed the petition and therefore appellant - petitioner has preferred this appeal.
5. Heard learned Senior Counsel Mr. S.I.Nanavati assisted by learned advocate Mr. Ramnandan Singh appearing for the appellant - original petitioner, learned Additional Advocate General Mr. P.K. Jani assisted by learned AGP Mr. D.M. Devnani for the respondent - State and learned advocate Mr. B.T. Rao appearing for the newly added party.
6. Learned Senior Counsel Mr. Nanavati appearing for the appellant - petitioner has, at the outset, referred the relevant provisions of the Gujarat Cooperative Societies Act, 1961 Page 6 of 41 C/LPA/521/2018 CAV JUDGMENT (hereinafter referred to as 'the Act') as well as Gujarat Specified Cooperative Societies (Elections to Committees) Rules, 1982 (hereinafter referred to as the Rules). Learned counsel has also referred bye-law No.35(1)(A) of the Bye-laws of the respondent Union. Thereafter, learned Senior Counsel has heavily placed reliance upon the decision rendered by the Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel (supra). The learned Senior Counsel thereafter submitted that the said decision rendered by the Full Bench of this Court has been confirmed by the Hon'ble Supreme Court in the case of Rajkot District Co-operative Bank Ltd. (supra). It is further stated that the Hon'ble Supreme Court also confirmed the decision of Division Bench of this Court in the case of Khanodar (Old) Milk Producers' Cooperative Society Limited Vs. State of Gujarat, reported in 2012(1) GLH 245, and held that one person cannot cast vote for more than one seat. Thereafter, learned Senior Counsel has referred the decision rendered by the Division Bench of this Court in the case of Shri Sodvadar Seva Sahakari Mandali Limited Vs. State of Gujarat, reported in 2010(3) GLR 2154 and submitted that in the said case the Division Bench was dealing with the issue of the society which had heterogeneous group, whereas in the present case, the members of the respondent Page 7 of 41 C/LPA/521/2018 CAV JUDGMENT Union are carrying out only one activity and therefore is having homogeneous group. It is, therefore, urged that the reliance placed by the respondent upon the decision rendered in the case of Shri Sodvadar Seva Sahakari Mandali Limited (supra) is not applicable to the facts of the present case.
7. Learned Senior Counsel Shri Nanavati would thereafter contend that Rule 3A(8) of the Rules prevails over the bye-law 35(1)(A) of the bye- laws of the respondent Union in view of the decision rendered by the Hon'ble Supreme Court in the case of Rajkot District Cooperative Bank Ltd. (supra). Hence, one voter cannot cast more than one vote. At this stage, learned Senior Counsel would further urge that when there is a conflict of judgments of two equal Benches of the Hon'ble Supreme Court, the judgment which deals with the subject elaborately and in detail is required to be followed by the High Court. In support of the said contention, learned counsel has placed reliance upon the decision rendered by this Court in the case of Gujarat Housing Board, Ahmedabad Vs. Nagajibhai Laxmanbhai and Ors., reported in AIR 1986 Gujarat 81 and the decision rendered by the Andhra Pradesh High Court in the case of Nazeer Hussain v. Farooq Ali, reported in 2004(2) ALD 808.
Page 8 of 41 C/LPA/521/2018 CAV JUDGMENT8. At this stage, learned Senior Counsel contends that though the judgment dated 24.11.2004 rendered by the Division Bench of this Court in Special Civil Application No.10742 of 2009 had upheld the validity of bye-law No. 35(1) (A) of the bye-laws of the respondent Union, but in view of subsequent decision rendered by the Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel (supra), the earlier judgment of the Division Bench cannot be relied upon.
9. Learned Senior Counsel lastly contended that as one candidate cannot cast vote to the candidate of another zone, the candidate of one zone also cannot be permitted to contest election from the other zones where his name does not appear in the voters' list.
10. Per contra, learned Additional Advocate General Mr. P.K. Jani appearing for the respondent authorities opposed this appeal and supported the reasoning recorded by the learned Single Judge. At the outset, he has submitted that the present appellant - original petitioner is the member of the respondent Union and out of approximately 918 members of the respondent Union, initially 5 members filed the petitions before the learned Single Judge. However, after Page 9 of 41 C/LPA/521/2018 CAV JUDGMENT the impugned decision is rendered by the learned Single Judge, only one petitioner - member has challenged the same by filing the present appeal. All the other members have accepted that the election is to be held as per the bye-law 35(1) (A). As a member of the respondent Union, the petitioner is bound by the bye-laws duly approved by the members registered under the Act. Petitioner was one of the participants in the process of passing the resolution and therefore it is not open for the petitioner to challenge the decision taken by the respondent Union which has been approved by the District Registrar.
11. Learned Additional Advocate General, thereafter, would refer the decision rendered by the Division Bench of this Court in Special Civil Application No.10742 of 2009. In the said decision, the Division Bench did not interfere with the decision taken by the Registrar approving the amendment of bye-laws of the respondent Union. He would submit that the said decision has attained finality. It is also pointed out that petitioner has not challenged the validity of bye-law No. 35(1)(A) on the ground that the same is contrary to the provisions of the Act and the Rules. Thus, in absence of any challenge to the said bye-law, it is not open for the petitioner to pray that the Page 10 of 41 C/LPA/521/2018 CAV JUDGMENT respondent Election Officer be directed to hold the election of the respondent Union declaring that each voter would cast vote in his constituency of the respondent Union only where his name appears in the voters' list of that constituency and he would not be entitled to cast more than one vote as prescribed in bye-law No.35(1)(A) of the bye-laws of the respondent Union.
12. At this stage, learned Additional Advocate General has further contended that if the petitioner is of the opinion that bye-law No.35(1)(A) is not proper, procedure is prescribed under the Act and the Rules for modification or repelling of the bye-law. However, without following the prescribed procedure, the petitioner cannot seek prayer which has effect of nullifying the bye-law.
13. Learned Additional Advocate General further submits that the reliance placed by the learned counsel for the petitioner on the decision rendered by the Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel (supra) and the decision rendered by the Hon'ble Supreme Court in the case of Rajkot District Cooperative Bank Ltd. (supra), is misconceived. It is submitted that the said decisions are required to Page 11 of 41 C/LPA/521/2018 CAV JUDGMENT be appreciated and interpreted in light of the decision of the Division Bench of this Court rendered in the case of Mohanpura Dudh Utpadak Sahakari Mandli Limited in Special Civil Application No.10742 of 2009. The decision rendered by the Hon'ble Supreme Court in the case of Sabarkantha District Cooperative Milk Producers' Union Ltd., is also required to be considered by this Court, wherein the direction was given to hold the election as per bye-law No.35(1)(A) of the bye-laws. It is, therefore, contended by learned Additional Advocate General that the learned Single Judge has considered all the relevant decisions upon which the reliance is placed by the learned advocates appearing for the concerned parties and thereafter learned Single Judge has rightly dismissed the petition filed by the appellant - petitioner. This Court, therefore, may not interfere with the impugned decision rendered by the learned Single Judge.
14. Learned advocate Mr. B.T.Rao appearing for the newly added respondent also supported the reasoning recorded by the learned Single Judge and opposed this appeal. At the outset, he has contended that independent member has no right to challenge the decision taken by the Cooperative Society. In the present case, the appellant - petitioner is a member of the respondent Union Page 12 of 41 C/LPA/521/2018 CAV JUDGMENT and out of 918 members, only 4 to 5 members filed the petition before the learned Single Judge with a prayer to give direction to the election officer to hold the election by permitting the concerned voter to cast vote in his own constituency. Against the decision rendered by the learned Single Judge, only one member has preferred the appeal and therefore only on this ground, this Court may not entertain this appeal.
15. It is thereafter contended that the provisions contained in Rule 3A(8) and 3A(9) of the Rules do not prohibit single member voting in different constituencies and therefore the bye- laws of the respondent Union cannot be said to be in conflict with the provisions of Rule 3A of the Rules. He would further contend that unless there is a specific bar in the Statute or Rules, the rights flowing from the bye-laws cannot be restricted, by stretching the Rules to an extent, which is not found in the parent statute. At this stage, after referring to the decision rendered by the Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel and others (supra), it is submitted that the controversy in the said case was with regard to the conflict between the bye-laws of the society and the powers of the Collector to delimit the constituencies conferred under Rule 3A(9) of the Rules. The said decision Page 13 of 41 C/LPA/521/2018 CAV JUDGMENT is confirmed by the Hon'ble Supreme Court. However, both the decisions would not be applicable to the issue involved in the present matter. In fact the decision rendered by the Division Bench of this Court in Special Civil Application No.10742 of 2009 in the case of Mohanpura Dudh Utpadak Sahakari Mandli Limited (supra), wherein the amendment in the bye-law No.35(1)(A), which was approved by the District Registrar, was in question. The Division Bench approved the said amendment and the said decision has attained the finality. Thereafter, the Hon'ble Supreme Court in the case rendered in Special Leave Petition (C)No.17404 of 2014 has also directed to hold the election of the respondent union considering the said amendment in the bye-laws as well as Rule 43. Learned advocate Mr. Rao, therefore, urged that there is no merit in the present appeal and hence the same be dismissed.
16. Learned advocate Mr. Rao has placed reliance upon the following decisions in support of his submissions.
(1) In State of Uttar Pradesh v.
C.O.D. Chheoki Employees Cooperative Society Limited, reported in (1997) 3 SCC 681;
(2) In Daman Singh v. State of Punjab Page 14 of 41 C/LPA/521/2018 CAV JUDGMENT & Haryana, reported in (1985)2 SCC 670;
(3) In Banaskantha District Co. Op. Union Ltd. v. State of Gujarat through Deputy Secretary, reported in 2011(2) GLR 1707;
(4) In Karmacharinagar Coop. Hou. Soc.
Limited v. State of Gujarat,
reported in 2013(3) GLR 2682;
17. Having considered the submissions canvassed by learned advocates appearing for the parties and having gone through the material produced on record, following relevant facts would emerge:
17.1. The respondent Union is a specified Cooperative Society under the Act. It has area of operation in District Sabarkantha. The election of the members of its committee and of its office bearers is subject to provisions contained in Chapter XIA and the same is required to be conducted in the manner laid down under Chapter VII of the Act as well as the Rules. The respondent Union has its bye-laws duly approved by the Registrar of the Cooperative Societies.
Bye-law No.35 was sought to be amended by the respondent Union by passing the resolution on 20.10.2003, whereby it was proposed that there shall be 16 representatives of the member- societies of the respondent union and that each constituency shall consist of on an average 55 Page 15 of 41 C/LPA/521/2018 CAV JUDGMENT Milk Societies, with plus and minus five societies. It was further proposed that the vote shall be cast by the approved voters and each voter shall cast 16 votes, whereby he shall have to cast one vote for each constituency. The said resolution was approved by the State Government with certain modifications in the year 2006. Therefore, the respondent Union filed Revision Application before the Secretary (Appeals). The same was allowed and proposed bye-law of the society was approved. The said amendment was also approved by the District Registrar.
17.2. The orders of the Registrar and Additional Secretary (Appeals) as well as the validity of the amended bye-law No.35 were challenged by Mohanpura Dudh Utpadak Sahakari Mandli Limited by filing Special Civil Application No.10742 of 2009. The said petition came to be dismissed by Division Bench of this Court by an order dated 24.11.2009. It is not in dispute that the said order has attained finality.
17.3. Thereafter, the election of respondent Union was held in the year 2013. At that time, the petition being Special Civil Application No.13178 of 2013 came to be filed challenging the election programme. The Division Bench of this Page 16 of 41 C/LPA/521/2018 CAV JUDGMENT Court disposed of the said petition along with another petition by giving certain directions. However, the said order came to be challenged by the respondent Union by filing SLP(c) No.17404 of 2014 before the Hon'ble Supreme Court. The said SLP came to be disposed of by the Hon'ble Supreme Court by an order dated 04.08.2014 with certain modifications and giving certain directions.
17.4. The Collector, Sabarkantha, therefore, by an order dated 17.09.2014, has determined the constituency in exercise of powers conferred under Rule 3A(9) of the Rules as per the directions of the Hon'ble Supreme Court. He has also specified the voting pattern that every voter would cast one vote for each constituency i.e. for 16 constituencies. Election of the respondent Union was accordingly held and the elected body has taken over the management of the respondent Union on 21.11.2014.
17.5. On completion of term of the earlier elected body, the election programme for the Managing Committee of the respondent Union was published by the Election Officer on 15.02.2018. The Election Officer also published provisional list of voters in which 16 constituencies declared as zones. Therefore, the present appellant as well as 3 to 4 other members also Page 17 of 41 C/LPA/521/2018 CAV JUDGMENT filed different petitions. The learned Single Judge, by the impugned judgment, dismissed the petitions filed by the present appellant - petitioner.
18. Before we consider the submissions canvassed by learned advocates appearing for the parties, we would like to refer to the relevant provisions of the Act, Rules and the bye-laws.
19. Section 2(2) of the Act defines the word 'bye-law', which provides as under:
"(2) "bye-laws" means bye-laws registered under this Act and for the time being in force, and include registered amendments of such bye-laws."
19.1. Section 28 of the Act reads as under:
"28. (1) No member of any society shall have more than one vote in its affairs :
Provided that in the case of an equality of votes the Chairman shall have a casting vote.
(2) Where a share of a society is held jointly by more than one person, each such person shall have, in the absence of preceding person or persons, a right to vote :
Provided that such person is present and is not a minor.Page 18 of 41 C/LPA/521/2018 CAV JUDGMENT
Provided further that where the manner of voting is by ballot, all the joint holders of the share may appoints one of them to vote on their behalf in the affairs of the society.
(3) A society which has invested any part of its funds in the shares of another society, may appoint one of its members to vote on its behalf in the affairs of that others society, and according such member shall have the right to vote on behalf of the first society :
Provided that the first - society shall not appoint any of its members who is also its paid employee.
(4) A company or any other body corporate constituted under any law for the time being in force which has invested any part of its funds i the shares of a society may appoint any one of its directors or officers to vote on its behalf in the affairs of such society ; and accordingly such director or officers shall have the right to vote on behalf of the company or the body corporate, as the case may be.
(5) Where a firm has invested any part of its funds in the shares of a society, any one of its partners appointed by the firm shall be entitled to vote in the affairs of the society on behalf of the firm.
(6) A local authority or public trust which has invested any part of its funds in the shares of a society may appoint any of its members or trustees to vote on its behalf in the affairs of that society ;
and accordingly, such person shall have the right to vote on behalf of the local authority or the public trust, as the case Page 19 of 41 C/LPA/521/2018 CAV JUDGMENT may be.
(7) nominal or sympathiser member shall have the right to vote and no such member shall be eligible to be a member of a committee or for appointment as a representative of the society of any other society.
(8) The voting rights of individual members of a federal society shall be such as may be regulated by the rules and by the bye - laws of the society.)"
19.2. Rule 3A of the rules reads as under:
"3A. Delimitation of constituencies for purpose of election.(1) In every society where there are more than one constituencies, the Secretary or where there is no post of Secretary, the Chief Executive Officer of every such society shall, in the year preceding the year in which election to the Committee is scheduled to be held, prepare a provisional list of the constituencies. (2) Such list shall describe the limits of each constituency. A copy of the provisional list shall be displayed with a notice to be signed by the Secretary or where there is no post Secretary, the Chief Executive Officer of the society on the notice board of every office or sub-
office of the society. A copy of such provisional list along with the notice shall also be sent to the Registrar and to the Collector.
(3) A copy of such list along with notice shall also be sent to every member of the society by registered post.
(4) The notice referred to in sub-rule (2) and (3) shall clearly lay down that Page 20 of 41 C/LPA/521/2018 CAV JUDGMENT any objections or suggestions in respect of the provisional list may be sent by any person to the Secretary or where there is no post of Secretary, to the Chief Executive Officer of the society within a period of 15 days from the date on which the provisional list is displayed on the notice board of the office of the society. (5) Any member of the society may bring to the notice of the society any omission or error in respect of the name or address or other particulars shown in the provisional list.
(6) Any person raising any objection or making a suggestion shall send such objection or suggestion with grounds therefor in writing within 15 days from the date on which the provisional list is displayed on the notice board of the office of the society.
(7) The society shall after considering every objection, suggestion or any error in the provisional list indicated by any member under sub-rule (5), prepare the final list. The final list shall be displayed on the notice board of the office or sub-office of the society and a copy of such final list shall be sent to the Registrar and also to the Collector. (8) Where the area of operation of a society is in more than one village, the number of constituencies shall be equal to the total number of seats excluding two seats reserved under subsection (1) of section 74B.
(9) Notwithstanding anything contained in these rules and the bye-laws of the society, where the elections to the members of any Committee are scheduled to be held before the ending of the accounting year of the society, the delimitation of the constituencies shall Page 21 of 41 C/LPA/521/2018 CAV JUDGMENT be made by the Collector prior to the publication of the list of voters"
19.3.Rule 43 of the Rules reads as under:
"43. Procedure for voting where there are no separate constituencies or more than one seat to be filled in one constituency.- In cases where there are no constituencies defined in the bye-laws or where more than one seat is authorised in the bye-laws for a constituency, voting in so far as these seats are concerned shall be recorded in accordance with the following provisions, namely:-
(a) Every voter shall be entitled to give as many votes as there are seats for filling which votes are to be taken but no voter shall give more than one vote to any one candidate.
(b) The voter shall make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbols of the candidate or candidates for whom he intends to vote, so however, that no part of any mark so made shall appear in the space provided for other candidate. The voter and insert the folded ballot paper into the ballot box and without undue delay leave the polling station."
19.4. Relevant portion of Bye-law No.35(1)(A) of the Bye-laws of the respondent Union reads as under:
"35(1)(A)Board of Directors:-
(1) The Board of Directors shall be formed with following 21 members. (A) There shall be 16 representatives Page 22 of 41 C/LPA/521/2018 CAV JUDGMENT from the composite milk supplier member-
societies of the Union. There shall be one representative on average 55 milk- societies in each Division, wherein five societies can be included or excluded; which means there shall not be less than 50 societies and more than 60 societies in a Division.
All eligible voters can cast their votes for all Divisions.
Explanation: Voters can cast total 16 votes; wherein each vote is to be cast division-wise.
20. Learned Senior Counsel Mr. S.I.Nanavati has assailed the impugned judgment rendered by the learned Single Judge mainly relying upon the decision rendered by the Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel (supra). The Full Bench in the said case has considered the decision rendered by the Division Bench of this Court in the case of Antakampa Milk Producers' Cooperative Society Limited Vs. Sabarkantha District Cooperative Society Milk Produces' Union Limited, reported in 2004 (1) GLR 310, Sadvadar Seva Sahkari Mandali Ltd., Khanodar (Old) Milk Producers' Cooperative Society Limited (supra) and observed in para 6, 7, 8 and 9 as under:
"6. In the case of Antakampa Milk Producers Coop Soc. Ltd. v. Sabarkantha Dist. Coop. Milk Producers Union Ltd. reported at 2004(1) GLR 310, the question arose for giving interpretation to Rule 3A (8)and also for the validity of the byelaw Page 23 of 41 C/LPA/521/2018 CAV JUDGMENT no.35(1)(A) of Sabarkantha District Cooperative Milk Producers' Union Ltd. which is a specified society. The learned Single Judge of this Court (one of us - Jayant Patel, J.) found that on plain reading of section 74C(3) of the Act, there is overriding effect on any other byelaws of such society. It was also found that as per Rule 3A(8), the number of constituencies has to be equal to the total number of seats excluding two reserved seats under section 74B. The learned Single Judge found that byelaw no.35(1)(A) of the Sabarkantha District Milk Producers' Union Ltd (a specified society) provided for the seats more than one person for each constituency and therefore, the byelaw was not in conformity with Rule 3A(8)and it was also found that the byelaw can operate to the extent of 7 representative to be elected from 7 separate constituencies and therefore, held to be valid to that extent only.
7.In the case of Shri Sadvadar Seva Sahkari Mandali Ltd. vs. State of Gujarat, reported at 2010(3) GLH 117, one Division Bench of this Court had an occasion to consider once again the question for holding of the election of the Bank in accordance with Rule 3A(8) of the Rules. The Division Bench found that when Rule 3A(8) and Rule 43 are examined in juxtaposition, it emerges that the object as well as the field of operation of the said two provisions are different inasmuch the former deals with the "constituencies" bifurcated on the territorial/zone basis. The Division Bench did consider the view taken by the learned Single Judge of this Court in the case of Antakampa Milk Producers Coop Soc. Ltd. (supra) but found that in the said case, the constituencies were bifurcated zone or territory wise and therefore, tested on Page 24 of 41 C/LPA/521/2018 CAV JUDGMENT different set of facts than the facts posed before it.
8.Once again the question arose for considering the provisions of Rule 3A(8)read with section 74C of the Act in the case of Khanodar (Old) Milk Producers Cooperative Society Ltd. and others vs.State of Gujarat and reported at 2013(1) GLH 245 before this Court. The second Division Bench of this Court found that the byelaw providing more than one representative to be elected in one constituency would be in contravention to Rule 3A(8)and it was found that the decision in the case of Shri Sadvadar Seva Sahkari Mandali Ltd. (supra) was a case where the members of the society were comprised of various classes of societies. Whereas the decision of this Court in the case of Antakampa Milk Producers Coop Soc. Ltd. (supra) was a case where the members constituted homogeneous group and not heterogeneous group. Therefore, the decision of Antakampa Milk Producers Coop Soc. Ltd. (supra) would govern the present case before the Division Bench. Ultimately, the Division Bench set aside the byelaw no.35(1) providing for voting right for more than one seat in one constituency.
9.The constitutional validity of rule 3A(8)was also challenged before this Court in the case of Banaskantha District Coop.
Milk Producers Union ltd. Vs. State of Gujarat reported at (2012) 2 GLR 1522. The third Division Bench of this Court in its decision held that if any of the rules lawfully framed under the provisions of the Act creates a restriction in relation to the subject matter of any of the clauses of the byelaws, such restriction must be adhered to and any such clause in violation of the restriction imposed by the rules should be deleted. It was also held that the State Government while enacting the impugned Page 25 of 41 C/LPA/521/2018 CAV JUDGMENT provisions of the Rule has not deviated from the principles mentioned under section 74C (3) of the Act, but has only created a position by making provisions of the election of members from the general body. It was also held that even by way of creation of constituency and allowing its members to participate as provided in the Rule, the committee of the management will still be elected by the general body of the members and not in any way otherwise than by general body of the members. The Division Bench found no substance in the contention that the act of creation of constituencies is inconsistent with any of the provisions of the Act and thus curtails the purposes of the Act. Ultimately, Rule 3A(8) is held to be not in conflict with any of the provisions of the Act nor it was held suffering from want of authority of the delegated legislation and Rule 3A(8) was held to be legal and valid."
20.1. Thereafter, in para 10, legal issues formulated by the Division Bench and referred to the Larger Bench were reproduced which read as under:
"Legal Issues:
10.When the present group of petitions came up before the fourth Division Bench of this Court on 21.09.2012, the following legal issues are formulated and referred to the larger bench -
(1) Whether Rule 3A of the Rules introduced by the Amendment dated 10.8.1987, could be applied to the
Societies byelaws of which provide for a single constituency?
(2) Whether the scheme of the Rules Page 26 of 41 C/LPA/521/2018 CAV JUDGMENT permits the specified Societies having a single constituency, more than one seat for one constituency; and whether members of such society can legally be permitted to vote for more than one seat?
(3) Whether Collector has jurisdiction to make an order for delimitation of the constituencies, in absence of any proceeding undertaken in accordance with Section 14 of the Act?
(4) Whether delimitation of the constituencies under Rule 3A of the Rules can only be territory wise and/or whether delimitation of the constituencies can be based upon objects and activities of the member societies or classes of individual members? Accordingly, all matters are before us.
20.2. Thereafter, the Full Bench in para 25, gave conclusion for legal issues referred to it. Para 25 reads as under:
"25. In view of the aforesaid observations and discussions, we find that the issues referred to us can be answered as under:
(1) Rule 3A of Rules of 1982 could be applied to the societies bye-laws which provides for a single constituency because Rule 3A is essentially for delimitation of the constituencies and preparation of the voters' list. But we clarify that sub-
rule(1) to sub-rule(7) would apply in case of all specified societies, whether bye-laws provide for a single constituency or more than one constituency. Sub-rule(8) would apply to all specified societies having bye-laws for single constituency only if its area of operation is in more than one village. Sub-rule(9)would apply to all specified societies where Page 27 of 41 C/LPA/521/2018 CAV JUDGMENT delimitation of the constituencies are required to be made by the Collector. (2) The scheme of the Rules of 1982 do permit specified societies having single constituency, provided the area of operation is limited to one village and in those circumstances, more than one seat may be provided under the bye-laws for one constituency. The members of such societies can legally be permitted to vote for more than one seat.
(3) The Collector has the power to pass an order for delimitation of the constituency, even in absence of any proceedings undertaken in accordance with section 14 of the Act.
(4) The delimitation of constituency under Rule 3A of the Rules can also be territory-wise. The delimitation of the constituencies can be based upon the objects and activities of the societies for the classes of individual members since each electorate is to represent the respective members of a particular area or a particular class, as the case may be."
21. The Rajkot District Cooperative Bank Ltd. challenged the decision rendered by the Full Bench by filing SLP before the Hon'ble Supreme Court. The Hon'ble Supreme Court in the said case of Rajkot District Cooperative Bank Ltd. (supra), observed in para 19 to 22 as under:
"19. Thus, when sub-rule (8)is read along with sub-rule (9) of Rule 3A, where the society has the area of operation exceeding one village, even if the bye laws provide for single constituency, the seats provided by the bye laws has to be Page 28 of 41 C/LPA/521/2018 CAV JUDGMENT equal to the number of constituency/constituencies and therefore, for each seat, a separate constituency would be required to be delimited and if not so delimited by the society, of its own, it would be required for the Collector to exercise his power under sub rule (9) of Rule 3A of the Rules for the delimitation of the constituency in accordance with the mandate of sub rule (8) of Rule 3A and thereafter, the process for publication of the voters' list is to be given effect to.
20. The power conferred with the Collector for the delimitation of the constituency under sub rule (9) is independent and separate and only applicable in the case when the election of the members of any Management Committee of specified society is scheduled to be held. Further, as specified in the sub rule (9) of Rule 3A, such powers are to be exercised by the Collector, notwithstanding anything contained in the bye laws of such society. The Collector has to exercise the power for delimitation of the constituencies prior to the publication of the list of voters.
Further, as rightly stated by the High Court in the impugned judgment that when a specific power is conferred in a specific contingency to a different authority, such power has to be read in addition to the general power for the amendment in the bye-laws. Thus, the bye-laws of any society have to be in conformity with the provisions of the Act and the Rules.
21. It is obligatory on the part of any specified society to bring about the amendment in its registered bye-laws in conformity with the provisions of the Rules and more particularly Rule 3A (8)and (9). But if the society/societies have not Page 29 of 41 C/LPA/521/2018 CAV JUDGMENT amended their bye laws, the same has to be in conformity with the said Rules by getting suitably amended; the effect of the Rule would not stand nullified or inoperable. For this purpose sub rule (9) gives the power to the Collector to delimit the constituency/constituencies of a society. Thus, once the area of operation of any society exceeds more than one village as per sub rule (8), the number of constituencies is required to be bifurcated by the Collector in exercise of his power, so as to make it equal to the total number of seats to see that effective representation is given to the members of the society forgiving fair representation to its members to elect their true representatives to participate in the affairs of the Society as part of the Managing Committee Members, as the society must be represented by its elected representatives in a democratic process to effectively represent in the Managing Committee which is an indispensable parameter for the democratic institutions to achieve the laudable object of Cooperative movement in the country, which is the constitutional philosophy as enshrined in Chapter XI A of the Constitution, which has been inserted by way of constitutional amendment.
22. Thus, the bye laws of any specified society under the provisions of the Cooperative Societies Act cannot be permitted to prevail over the statutory Rule 3A (8)&(9) of the Rules. The moment the area of operation of any specified society exceeds one village, sub rule (8) would come into play, irrespective of the fact that whether members of such society constitute homogeneous group or heterogeneous group."
Page 30 of 41 C/LPA/521/2018 CAV JUDGMENT22. Learned Senior Counsel Mr. Nanavati also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Ziley Singh, ETC v. Registrar, Gane Co-operative Societies and Others, reported in (1972) 1 SCC 719, wherein, the Hon'ble Supreme Court observed and held in para 10 as under:
"10. As to the power of the Registrar to interpret rule 409 it win appear that the rule does not confer any power on the Registrar to interpret or to express views to guide the rights of members to vote at the annual general meeting for the purposes of election of the committee of management. On the contrary, under rule 409 the Co-operative Society may with the previous sanction of the Registrar (i) divide its membership into different groups on territorial or any other rational basis and (ii) also specify the number or proportion of the members of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. Therefore, under rule 409 a co-operative society can divide its membership into different groups on territorial or any other rational basis for the purposes of election of the members of the committee. The rule also empowers the society to apportion the membership of the committee of management amongst different groups into which the membership is divided. The number or proportion of members of the com- mittee of management will have to be apportioned in such a manner that the different areas Page 31 of 41 C/LPA/521/2018 CAV JUDGMENT or interests into which the membership of the society are divided may obtain suitable representation on the committee of management. The entire purpose of division of membership into different groups and specifying suitable representation of such group on the committee of management is to emphasise the, right of the particular group to send its representative to the committee. To illustrate if a society is divided into 14 separate groups on a territorial. basis and one member of the committee of management is allotted to each group and if delegates of one group have the right to cast 14 votes two consequences will follow. First, the right of choosing a representative of the constituency will be not confined to that constituency but will be enlarged to outsiders in other constituencies. Secondly, a member of the committee from one constituency may be elected by a majority of votes from delegates of other constituencies. If delegates residing outside a territorial constituency 155 take part at the election for member of a committee from territorial constituency within which he is not a resident it will not only amount to enlarging the right of representation beyond ones territorial basis but also deny the delegates within the constituency the right of electing their own representative."
23. As against this, learned Additional Advocate General and learned advocate Mr. B.T.Rao appearing for the respondents have heavily placed reliance upno the decision rendered by the Division Bench of this Court in the case of Page 32 of 41 C/LPA/521/2018 CAV JUDGMENT Mohanpura Dudh Utpadak Sahakari Mandli Limited (supra). In the said case, the Division Bench of this Court while considering the amendment made in bye-law No.35(1)(A) specifically observed and held as under:
"In our opinion challenge in the present petition suffers from the vice of delay, laches and acquiescence. Section 28 of the Act deals with the voting power of the members of a Society. The respondent no. 4 being a federal society, the voting right of its members shall be governed by sub- section 8 of Section 28 of the Act and the bye-laws. Rule 15 of the Rules also recognizes voting right of members of the federal society. In the present case the bye-laws are neither contrary to section 28 of the Act nor to Rule 15 of the Rules. The reliance placed on the Representative of the Peoples Act is thoroughly misconceived."
24. Learned counsel appearing for the respondents further submitted that the Division Bench of this Court in the order dated 09.06.2014 passed in Special Civil Application No.13178 of 2013 in the case of Patel Pankajkumar Ramjibhai gave certain directions to the District Collector while conducting the election and to examine the aspect of voting pattern and delimitation of the constituency for the election of the respondent Union itself. Against the said directions issued by the Division bench, the respondent Union preferred SLP(c) No.17404 of 2014. The Hon'ble Supreme Court in the order dated 04.08.2014 Page 33 of 41 C/LPA/521/2018 CAV JUDGMENT disposed of the said appeal and observed as under:
"One other relevant factor which has to be borne in mind is that Bye Law 35(1)(A) of the Petitioner - Society was subject matter of challenge before the High Court and by a judgment dated 24.11.2009, the High Court affirmed the said Bye Law introduced by way of an amendment by the petitioner-society. In the light of the above Statutory Rule, in particular Rule 43 and the nature of Membership of the Board of Directors of the petitioner- Society as provided under Bye Law 35(1) (A), we only state that the District Collector while implementing the order of the Division Bench shall apply the above quoted Bye Law as well as Rule 43 of the 1982 Rules, and ensure that the election of the petitioner - society is processed with and concluded.
This direction we issue in the peculiar facts of this case where the relevant Bye- Law is differently worded, which may not be applicable to any other society."
25. Thus, learned counsel for the respondents contended that when the issue involved in the present petition is squarely covered by the decisions rendered by the Division Bench of this Court as well as the Hon'ble Supreme Court, learned Single Judge has rightly dismissed the petition.
26. Learned Additional Advocate General as well as the learned advocate Mr. B.T.Rao appearing for the respondents have also contended that once a Page 34 of 41 C/LPA/521/2018 CAV JUDGMENT person becomes a member of the cooperative society, he loses his individuality qua the society and he has no independent right except those given to him by statute and the bye-laws. He must act and speak through the society or rather, the society alone can act or speak for him qua rights and duties of the society as a body. In support of the said contention, learned counsel have placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Daman Singh (supra), C.O.D. Chheoki Employee Cooperative Society Limited (supra) and Zoroastrian Co-operative Housing Society Ltd. and another v. District Registrar, Co-operative Societies (Urban) and others, reported in AIR 2005 SC 2306.
26.1. In the present case, only the petitioner which is a member of the respondent Union has filed the present appeal and no other members have challenged the bye-law No.35(1)(A) of the Bye-laws of the respondent Union. It is settled law that once a person becomes a member of the cooperative society, he loses his individuality qua the society and he has no independent right except those given to him by statute and the bye- laws. He must act and speak through the society or rather, the society alone can act or speak for him qua rights and duties of the society as a Page 35 of 41 C/LPA/521/2018 CAV JUDGMENT body. Thus, we are of the view that petitioner cannot file the petition against the respondent Union and other respondents for the reliefs prayed for in the petition. However, when the learned advocates have argued the matter on merits and the learned Single Judge has also considered the case on merits, we have examined the case on merits.
27. Another contention of learned Senior Counsel Mr. S.I.Nanavati is that when there are two conflicting decisions of the co-equal Benches of the Hon'ble Supreme Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act. Both the views of the Hon'ble Supreme Court cannot be binding on the Courts below. In such a situation, a choice, however, difficult it may be, has to be made. In support of this contention, learned counsel has placed reliance upon the decisions rendered by the Full Bench of this Court in the case of Gujarat Housing Board, Ahmedabad (supra) and the decision rendered by the learned Single Judge of Andhra Pradesh High Court in the case of Nazeer Hussain (supra).
28. Keeping in view the aforesaid decisions upon which the reliance is placed by learned counsels Page 36 of 41 C/LPA/521/2018 CAV JUDGMENT appearing for the parties, if the facts of the present case as discussed hereinabove are examined, the submissions canvassed by learned Senior Counsel Mr. Nanavati cannot be accepted. If we consider Rule 3A of the Rules, it pertains to the delimitation of the constituencies for the purpose of election and it does not pertain to the voting pattern or voting rights of the voters. The Hon'ble Supreme Court in the case of Rajkot District Cooperative Bank Ltd. (supra) has observed that the provisions contained in Rule 3A is aimed at geographical i.e. territory or zone- wise bifurcation or division. Once the area of operation of any society is more than one village, Rule 3A(8) would be attracted and in such case, number of constituencies should be equal to total number of seats, excluding two seats reserved for the categories as provided under Section 74B of the Act. It is also observed by the Hon'ble Supreme Court that Rule 3A(9) provides that the rule making authority has empowered the Collector to delimit the constituencies prior to the publication of the voters' list. Such power is separate and independent and can be exercised by the Collector notwithstanding anything contained in the bye- laws of the specified society. It is also stated that it is obligatory on the part of the specified society to bring about amendment in its Page 37 of 41 C/LPA/521/2018 CAV JUDGMENT registered Bye-laws in conformity with the provisions of the Rules. However, in the facts and circumstances of the present case, the decision rendered by the Full Bench as well as the Hon'ble Supreme Court, upon which reliance is placed by the learned counsel for the appellant, would not be applicable.
29. The bye-law No.35(1)(A) of the respondent Union has not been interfered with, by the Division Bench of this Court in the case of Mohanpura Dudh Utpadak Sahakari Mandli Limited (supra). Further, the Hon'ble Supreme Court, in order dated 04.08.2014 passed in SLP(c) No.17404 of 2014, has specifically referred the aforesaid judgment of the Division Bench rendered on 24.11.2009 and has confirmed the said bye-law introduced by way of amendment by the respondent Union. The Hon'ble Supreme Court has directed the District Collector that while implementing the order of the Division Bench which was challenged before the Hon'ble Supreme Court, he shall apply bye-law No.35(1)(A) as well as Rule 43 of the Rules and further directed to ensure that the election of the present respondent Union (which was petitioner before the Hon'ble Supreme Court) is processed with and concluded. It was also observed that the said direction was issued in the peculiar facts of the case where the relevant Page 38 of 41 C/LPA/521/2018 CAV JUDGMENT bye-law is differently worded, which may not be applicable to any other society. Thus, after the decision rendered by the Hon'ble Supreme Court in the case of Rajkot District Cooperative Bank Ltd. (supra) in August, 2014, the Hon'ble Supreme Court, in the case of the respondent Union itself, has directed the District Collector to hold the election as per bye-law No.35(1)(A) and accordingly the election was held, there is no reason for us to say that bye-law No.35(1)(A) is contrary to the statutory Rules. Even otherwise the petitioner has not challenged the validity of bye-law No.35(1)(A) of the bye-laws of the respondent Union.
30. Reliance placed by learned Senior Counsel Mr. Nanavati upon the decision rendered by this Court in the case of Gujarat Housing Board (supra) as well as the decision rendered by the Andhra Pradesh High Court in the case of Nazeer Hussain (supra) contending that when there are conflict between the decisions of co-equal Benches of the Hon'ble Supreme Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately, is misconceived. For the sake of repetition, we would like to note that the Division Bench of this Court in the case of Mohanpura Dudh Utpadak Sahakari Mandli Limited (supra) has not Page 39 of 41 C/LPA/521/2018 CAV JUDGMENT interfered with the same bye-law No.35(1)(A) and when the Hon'ble Supreme Court in the order dated 04.08.2014 passed in SLP(c) No.17404 of 2014 has specifically directed the Collector to hold the election as per bye-law No.35(1)(A), there is no reason for us to interfere with the impugned judgment rendered by the learned Single Judge. It is once again required to be noted that the issue in connection with bye-law No.35(1)(A) of the bye-laws of the respondent Union did not fall for consideration before the Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel (supra) as well as the Hon'ble Supreme Court in the case of Rajkot District Cooperative Bank Ltd. (supra). Thus, when there is direct judgment of Hon'ble Supreme Court on the point of bye-law No.35(1)(A) of the bye-laws of the respondent Union, we are of the view that learned Single Judge has not committed any error while dismissing the petition filed by the appellant - petitioner.
31. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are not inclined to interfere with the impugned judgment rendered by the learned Single Judge. The appeal is accordingly dismissed. Pending civil application also stands Page 40 of 41 C/LPA/521/2018 CAV JUDGMENT disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) Jani Page 41 of 41