Gujarat High Court
Chandrakantbhai Thakorbhai Patel vs J.R. Dodia Or His Successor In The Office on 7 April, 2005
Author: R.S. Garg
Bench: R.S. Garg, Ravi R. Tripathi
JUDGMENT R.S. Garg, J.
1. Heard learned counsel for the parties. Mr. B.V. Jha, Collector, Vadodara, is in attendance, Mr. J.R. Dodiya, Deputy Collector, Dabhoi, District-Vadodara -cumElection Officer is also in attendance in accordance with the directions issued by this Court, each of them has filed his personal affidavit in the matter.
2. Petitioner Chandrakantbhai Thakorbhai Patel is before this Court, seeking relief that by issuing appropriate writ, order or direction, the election programme declared by the respondent no.1 - Election Officer on 19.3.2005 be quashed and the order passed by the respondent no.2 at Annexure:B on 15.3.2005 be also quashed and the respondents be required to hold the elections in accordance with law. They have also prayed for ad-interim relief.
3. Facts necessary for disposal of the present writ application are that, the respondent no.3 - Vadodara District Cooperative Sugarcane Producers Union Ltd., is a cooperative sugarcane factory and as such, it is a specified society under Section 74-C of the Gujarat Cooperative Societies Act, 1961. Under the provisions of Section 74-C, the election of the Managing Committee is required to be held as per the provisions of Chapter XI-A of the Act.
4. It is not in dispute before us that the respondent no.3-Society was registered on 6.1.90 and immediately thereafter, the elections were not held, therefore, the State Government nominated a Body/Managing Committee for a period of three years. The period of three years could be extended upto five years, but despite the expiry of the said period, the elections were not held. It appears that the District Registrar, Cooperative Societies (Sugarcane), Surat, by letter dated 14.3.2005, informed the Collector Mr. B.V. Jha that Managing Committee of Vadodara District Sugarcane Growers Union Ltd., Taluka-Karjan, District-Vadodara was appointed by the State Government and its time had already expired. It was also informed that the said society being a specified society under the Act, its election for the period between 2005 and 2008 was required to be held. The Collector also informed that the society had sent proposal on 17.2.2005 to the Registrar of Cooperative Societies, Surat and as such, the elections were required to be held.
5. According to the affidavit of the Collector, after receipt of the aforesaid letter, exercising powers under Section 145-D(1) of the Gujarat Cooperative Societies Act, 1961, he fixed 17.4.2005 as the date of election. According to his affidavit, the period/term of the Managing Committee of the society had already expired in December, 2004 and thereafter, no Custodian was appointed on the date of declaration of the election of the Managing Committee of the Society. He thought that the election must be completed at its earliest and he accordingly fixed 17.4.2005 as the date of election. According to him, he passed an order on 16.3.2005 under which he appointed Prant Officer, Dabhoi, as Election Officer for conducting election of the aforesaid society. He submits that there was no malafide intention on his part and bonafide believing that the elections are to be concluded at their earliest, the elections were directed to be held on 17.4.2005. He states that under the bonafide impression, the Election Officer reduced 7 days' time fixed for inviting objections to 4 days. According to him, it was a bonafide mistake on the part of the Election Officer, but he further says that if the Election Officer was unable to follow the Schedule, then he could seek further instructions from the Collector.
6. Mr. J.D. Dodiya, Election Officer submits that after receiving instructions from the Collector, in accordance with Rule 16 of 1982 Rules, he prepared the election programme and with a view to follow Rule 16, he curtailed 7 days' time to 4 days only. It is further submitted that the words "within 7 days" occurring in Rule 6(2) were understood by him to mean maximum or the outer limit and, therefore, under a bonafide belief and faith, he thought that he could reduce it from 7 days to any other period. He submits that there were no malafides on his part.
7. The petitioner says that non-observance of Rule 6 of 1982 Rules makes the entire election schedule/programme void and no election can be conducted on basis of such illegal programme. His further submission is that, in all, there are 6 constituencies and 12 persons are to be elected. According to him, the respondent no.2 framed its own election rules and referred the same to the Director for approval. The submission is that the Director, Sugar, Gujarat State, under his letter No. SRM/01/KH/304/2005, dated 15.3.2005, despite holding that the elections are to be held in accordance with the Specified Cooperative Societies Elections to Committees Rules, 1982, directed that the proposed election Rule no.5 be included in Rule 27 of the Elections Rules. It is submitted by him that the Director had no authority under the Act to amend the Election Rules of 1982. On the last date of hearing, it was submitted on behalf of the learned counsel for the State, so also by the learned counsel for the private respondent no.4 that, these two questions which are raised in this writ application can be raised in an election petition duly submitted under Rule 82 of the 1982 Rules. It was submitted before us that Rule 6(2) of the Rules provides 7 days as the outer limit, therefore, the Election Officer was justified under the pressing circumstances to reduce seven days' limit to four days. It was also submitted that to give proper representation to each and every constituency and to persons from each constituency, the respondent no.4 was acting in furtherance of the goals and objects of the Act and was not doing any wrong. It was submitted on behalf of the Director, that the proposed election Rule-5, as proposed by respondent no.3 could be included in the statutory rules. Taking an exception to the manner in which the elections are conducted and the conduct of the officers, we required the Collector, Vadodara and the Election Officer to file their affidavits, they have filed their affidavits. Mr. Patel, learned counsel for the petitioner has reiterated his arguments.
8. Mr. A.D. Oza, learned counsel appearing for the Collector and the Election officer, so also for the Director submitted that observance of Rule 6(2) is mandatory, but because of some bonafide mistake on the part of the Election Officer, the period was curtailed from 7 days to 4 days. In regard to insertion/inclusion of proposed Rule 5 to the statutory rules, he submitted that he has instruction from the Director to submit that proposed Rule 5 would not be included in the statutory rules. He submits that in view of his statement, the petition be disposed of.
9. Mr. N.D. Nanavati, learned counsel for the respondent No.4, though submitted that the period of 7 days fixed for inviting objections could not be reduced to 4 days and Rule 5, as such, could not be inserted by the Director, however, submitted that if the elections are allowed to be held, then also, the present petitioner would have a right to impugn the election in accordance with Section 145-U read with Rule 82 of 1982 Rules by filing election petition. His submission, in fact, is that the election process, which has once begun, cannot be forestalled.
10. We have heard the parties. Rule 16 of 1982 Rules provides that, "the Collector, in consultation with the Registrar, in the case of societies falling under clause (1) of section 74-C(1), and in consultation with the District Registrar, concerned, in the case of societies falling under other clauses of section 74-C(1), shall draw the schedule for elections, and by order in Form 1 appoint .....". Under Rule 16, the schedule must provide the last date, time and place of nominations, publication of nominations, scrutiny of nominations, publication of the list of valid nominations, the date for withdrawal of the nominations, publication of the final list of the contesting candidates, date on which and the time during which poll shall be taken, date, time and place of counting of votes and date of declaration of the results of voting. Rule 6(1) provides that " when any provisional list of voters is published for inviting claims and objections, any omission or error in respect of the name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society. Sub-rule (2) provides that every person making a claim or raising an objection shall do so by a separate petition, which shall be presented to the Collector during office hours within seven days from the date on which the provisional list of voters is displayed on the notice board under sub-rule(2) or (5) of rule 4, as the case may be". The person who wants to make a claim or raise an objection has been given 7 days' time under Rule 2. If the intention of the legislature was to give discretion to the Election Officer to give a shorter period, then the words "within 7 days" could be substituted by saying "within the time fixed by the Election Officer." When the legislature fixes a particular time limit for doing an act and there is no authority in the Election Officer to curtail the said period, then any step on his part in curtailing such period would be held to be an exercise of jurisdiction which does not vest in him. In the present matter, we must observe and hold that the period of 7 days within which objections can be filed is statutory limit which cannot be interfered. If we ignore this objection raised by the petitioner, then, we would be allowing an illegality to perpetuate. We are not required to cut a tree if we can nib in the bud. What is illegal at the threshold would not become legal and valid after some time. If ultimately, the election petition will have to be allowed on this legal issue, then, no useful purpose would be served by conducting elections, inviting election petition, allowing parties to spend money, time etc.and then declaring the results. What can be done on day one should not be postponed to doom's day. On this short ground, the election programme is held to be illegal and invalid.
11. The second submission made by Mr. Patel is equally important. The letter dated 15th March, 2005 is addressed to the Chairman/Managing Director, Vadodara Cooperative Sugarcane Growers Union Ltd., Gandhara, Taluka-Karjan, District-Vadodara. The Director had informed the Chairman that the institution has to follow Cooperative Societies Law, 1961, specially Section 74-C in Chapter XI for the election procedure; Rules of 1982 for the election of the specified cooperative societies are framed and declared, therefore, it would not be necessary to prepare separate election rules for the institution. By this order, the Director, Sugar, clearly rejected the prayer of the Vadodara District Cooperative Sugarcane Growers Union Limited seeking approval of the election rules framed by the Cooperative Society. It would also appear from the observations that the Director was of the considered opinion that the elections are to be conducted in accordance with Chapter XI (in fact, Chapter-XI-A) after observing 1982 Rules. The last but one paragraph of the communication says that "the letter dated 11.3.2005 of the institution, which proposes the election rule no.5 is taken into consideration. The number of members in the villages of area of operation of the society are divided into six constituencies. The said issue is accepted. Rule 5 is included in Rule 27." He further directed that "as the detailed provisions have been made in the rules framed for elections to specified cooperative societies, therefore, the election procedure has to be conducted with the said clarification."
12. We required Mr. Oza to inform us that under what authority of law, 1982 Rules could be amended or modified by the Director, to which, his plain submission was that the Director had no authority. Ordinarily, that should have been the end of the matter, but Mr. Nanavati submits that if the elections are to be held, then the elections must be held in accordance with law and looking to the intention of the legislature, his submission, in fact, is that, in accordance with Rule-3(A) of 1982 Rules, delimitation of constituency for the purpose of election has to be made and if the word "constituency" is read in its true perspective under Rule 2(B), it would mean an electoral division, if any, as is specified in the byelaws of the specified society. His submission is that if the six constituencies are made, then, each constituency must have proper and equal representation and if to achieve such goal, Rule-5 was proposed and the same was accepted by the Director, then, no illegality can be founded.
13. In our opinion, the argument is misconceived. Statutory rules of 1982 have been framed by the State Government in exercise of the powers conferred by Section 168 read with sub-section (2) of Section 145-G, sub-section (4) of Section 145-U and Section 145-Y of the Gujarat Cooperative Societies Act, 1961 and all other powers enabling it in this behalf. If the Rules have been framed by the State Government, then, no individual can amend the rules. The State Government has exercised its various rule making powers and has framed the rules. In the present matter, the Director has simply observed that to achieve the goal of proper representation of each and every constituency, Rule-5 must be read in Rule-27. Rule-27 of the statutory rules relates to publication of list of contesting candidates. It has nothing to do with the delimitation of the constituency or curtailing powers of a particular member of the society from being elected from any constituency.
14. In any case, the Director had no authority under the law to introduce a new rule in the statutory rules of 1982.
15. Mr. Nanavati, despite this clear legal provision, submitted that this question can also be raised in an election petition. In our considered opinion, such glaring illegalities cannot be allowed to perpetuate and pollute the entire stream. If we can strike at the threshold and destroy the source of the pollution, then, we are not required to clean the ocean.
16. The petition deserves to be and is allowed. There shall be no order as to costs. The election programme and all steps taken in accordance with the said programme are hereby quashed. Insertion of Rule-5 proposed by the respondent-Society by the Director in the statutory Rules of 1982 is quashed. The Collector and the Election Officer appointed by him shall act in accordance with law for early elections.