Gujarat High Court
Kumbhan Telibiya Utpadak Sahakari ... vs State Of Gujarat on 23 February, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/3750/2022 ORDER DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3750 of 2022
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KUMBHAN TELIBIYA UTPADAK SAHAKARI MANDALI LIMITED
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MR
ISHAN JOSHI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/02/2022
ORAL ORDER
1. This writ-application has been filed under Article 226 of the Constitution of India seeking the following reliefs:-
"40(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside order dated 12.2.2022 passed by respondent no.3 whereby respondent no.3hasfixed different polling stations for the election of Bhavnagar District Cooperative Bank Ltd. for constituency under byelaw no.30(1)
(a), 30(1)(b), 30(1)(c) and 30(1)(d) whichiscontrary to Rule-
16(2) of Rules, 1982 as well as against settled practice at the elections of Bhavnagar District Cooperative Bank Ltd. and further be pleased to direct the respondent no.3 to fix only one polling station at Bhavnagar for all the constituencies by Page 1 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 making proper arrangements of separate compartment for each taluka.
(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent no.3 to strictly adhere to Rules-41 & 42 of Election Rules, 1982 and not permit any type of photography or videography of the process of secret voting by voters by voters, polling agents, polling officer, Presiding Officer, candidates or representative of candidates except the person authorised by Election Officer to carry out photography and/or videography of the process of election as the election is by secret ballot papers to ensure free and fair election.
(C) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ,order or direction, directing the respondent no.3 to give instructions to all the Presiding Officers not to allow any societies which are shown as defaulters in the preliminary voter list as well as final voter list published by respondent no.3 to cast vote merely on the ground that after finalisation of voter list they have repaid the outstanding amount to the bank and obtained No Due Certificate from the Bank as it is against the settled provisions of Rules, 1982 which have statutory force.
(D) Pending admission, hearing and final disposal of this petition, to stay the order dated 12.2.2022 passed by respondent no.3 whereby respondent no.3 has fixed different Page 2 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 polling stations for the election of Bhavnagar District Cooperative Bank Ltd. for constituency under byelaw no.30(1)
(a), 30(1)(b), 30(1)(c) and 30(1)(d) which is contrary to Rule- 16(2) of Rules, 1982 as well as against settled practice at the elections of Bhavnagar District Cooperative Bank Ltd. and further be pleased to direct the respondent no.3 to fix only one polling station at Bhavnagar for all the constituencies by making proper arrangements of separate compartment for each taluka.
(E) Pending admission, hearing and final disposal of this petition, to direct the respondent no.3 to strictly adhere to Rules-41 & 42 of Election Rules, 1982 and not permit any type of photography or videography of the process of secret voting by voters by voters, polling agents, polling officer, Presiding Officer, candidates or representative of candidates except the person authorised by Election Officer to carry out photography and/or videography of the process of election as the election is by secret ballot papers to ensure free and fair election.
(F) Pending admission, hearing and final disposal of this petition, to direct the respondent no.3 to give instructions to all the Presiding Officers not to allow any societies which are shown as defaulters in the preliminary voter list as well as final voter list published by respondent no.3 to cast vote merely on the ground that after finalisation of voter list they Page 3 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 have repaid the outstanding amount to the bank and obtained No Due Certificate from the Bank as it is against the settled provisions of Rules, 1982 which have statutory force.
(G) To grant ad-interim relief in terms of Para-40 (D), (E) & (F) herinabove.
(H) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
(I) To award the cost of this petition."
2. At the joint request of learned advocates for both the parties the present writ application is taken up for final disposal.
3. The brief facts leading to the filing of the present writ- application are summarized thus :-
3.1 The writ-applicant is a Cooperative Society registered under the provisions of the Gujarat Cooperative Societies Act, 1961 vide Registration No.18160 dated 15.10.1980. The writ-
applicant is engaged in the business of sales and purchase of groundnut and other seeds.
3.2 The writ-applicant is society affiliated to the Bhagnavar District Cooperative Bank Ltd.
Page 4 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022C/SCA/3750/2022 ORDER DATED: 23/02/2022 3.3 The election of the Bhavnagar District Cooperative Bank
Ltd., came to be declared by the Assistant Collector, Bhavnagar and the Election Officer on 26.1.2022. The election programme is duly produced.
3.4 By way of present writ-application the writ-applicant seeks direction of this Court to direct the Dy. Collector and Election Officer for the election of Bhavnagar District Cooperative Bank Ltd., to hold the election in accordance with the provisions of Rules 1982 as the party in power in the State of Gujarat pressurising the Election Officer to divert from the statutory rules to hold the election and permit the representatives of the Bhavnagar District Cooperative Bank Ltd., to cast vote against the provisions of the Act, the Gujarat Cooperative Societies Rules 1965 and 1982.
3.5 The writ-applicant seeks further direction that the Election Officer i.e. respondent No.3 be directed to strictly adhere to Rules-41 & 42 of Election Rules, 1982 and not permit any type of photography or videography to the process of secret voting by voters, polling agents, polling officer, Presiding Officer, candidates or representative of candidates except the person authorised by Election Officer to carry out photography and/or videography of the process of election as the election is by secret ballot papers to ensure free and fair Page 5 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 election.
3.6 The writ-applicant has further challenged the legality and validity of the order passed by the Election Officer dated 12.2.2022 whereby the Election Officer has declared the talukawise polling station for all the constituencies i.e. constituencies under byelaw No.30(1)(a), 30(1)(b), 30(1)(c) and 30(1)(d) of the bye law of the Bhavnagar District Cooperative Bank Ltd., which is against the provisions of Rule 16(2) of Rules, 1982 and against the settled practice prevailing in the Bank since past 20 to 27 years.
4. Mr. B. T. Rao, the learned advocate appearing for the writ-applicant submitted that under Rule 4 of the Gujarat Specified Cooperative Societies (Election to Committee) Rules, 1982 ('Rules, 1982' for short), the preliminary voters' list is to be published by the Election Officer as he receives it from the Society. The Society while submitting the preliminary voter list also submits separate list of voters who are disqualified to vote as per the provisions of the Act, Rules and bye laws of the Society. The Society has informed the members who are disqualified in the said list in writing pointing out such disqualification incurred by the society.
4.1 Mr. Rao, the learned advocate submitted that Rule-6 of Rules, 1982 is with respect to claims and objections to the Page 6 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 preliminary list of voters. Two Societies raised objections about defaulter societies whose names are shown in the preliminary voter list as defaulters in the remarks column and the said objections are not decided. Rule-7 of the Rules, 1982 provides for final list of voters after objections under Rule-6 are decided. Final voters' list came to be published on 4.2.2022.
4.2 Mr. Rao, the learned advocate submitted that the Election Officer and Deputy Collector is quasi judicial authority under the Rules, 1982 and he is under an obligation to pass order when objections are raised.
4.3 Mr. Rao, the learned advocate submitted that in the final voter lists also the Election Officer has shown defaulter societies in the remarks column. There are approximately 70 such societies.
4.4 Mr. Rao, the learned advocate submitted that the interpretation put forward by the District Registrar and respondents under Sec.27(2) of the Gujarat Cooperative Societies Act, 1961 read with Rule-14A of the Gujarat Cooperative Societies Rules, 1965 that if the member society makes payment, it will get right to vote. This interpretation put forward by the respondents is not correct. Mr. Rao submitted that the contention raised by learned Government Pleader that Rule-14A is introduced on 20.7.2012 and therefore Page 7 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 judgment of Division Bench in SCA No.902 of 2009 is not applicable is not correct. The judgment of the Division Bench is on the issue of cut off date and cut off date is 31.3.2021 in this case. To be eligible to vote, the society has to be eligible on the cut off date and society cannot get eligibility after the voter list is finalised.
4.5 Mr. Rao further submitted that if the contention raised by the Learned Government Pleader is accepted, Section 27(2) Gujarat Cooperative Societies Act, 1961 read with Rule-14A of the Gujarat Cooperative Societies Rules, 1965 would render meaningless.
4.6 Mr. Rao, the learned advocate submitted that merely because of operation of Sec.27(2) read with Rule-14A if the member society makes payment of the amount, it does not entitle voter to vote. Sec.27(2) and Rule-14A have to be read with the relevant date fixed for the election.
4.7 Under Rule-16 of the Rules, 1982, the Deputy Collector and Election Officer has to fix the booth after inviting objections, suggestions and discuss with the Bank. The language of the Rule16(b) is mandatory in nature. The proviso to Rule-16(b) is in aid to Clause-b of Rule-16 and the said proviso cannot be read independently. When the Rule provides that for every 1000 voters there shall be one polling booth and for making more than one polling booth, the said justification Page 8 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 is required to be recorded. Merely because there are 13 seats in 13 Talukas and therefore 13 polling booths are provided is not justification. Bye laws of the Bank provides for 13 seats Talukawise one seat. Therefore order passed under Rule-16(b) is erroneous inasmuch as in the elections of 2006 & 2009 very Deputy Collector and Election Officer held elections and fixed one polling booth at Bhavnagar only for all constituencies. Rule-16(b) is in existence since the time of elections of the Bank conducted in 2006 and 2009 also.
4.8 Mr. Rao, the learned advocate submitted that all the four constituencies of the Bank under its bye laws viz. constituency under bye law No.30(1)(a), 30(1)(b), 30(1)(c) & 30(1)(d). In constituency included under bye law No.30(1)(a), there are 13 seats in 13 Talukas. He submitted that there is no provisions under the Act & Rules, 1982 whereby Deputy Collector & Election Officer can pass an order bifurcating the voters of constituencies under bye law No.30(1)(b), 30(1)(c) & 30(1)(d) at Taluka level.
4.9 Mr. Rao, the learned advocate submitted that the writ- applicant is voter and contesting candidate for the election of the Board of Directors of the Bhavnagar District Cooperative Bank Ltd. The writ-applicant therefore has right to challenge the illegal order passed by the Deputy Collector and Election Officer. The writ-applicant is not claiming anything more. On the contrary, in the voter list itself there is remark made by Page 9 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 the Election Officer himself while publishing the preliminary and final voter lists that the societies are defaulter societies, then they cannot be allowed to cast vote. Merely on making payment they do not get eligibility. As District Registrar on 14.2.2022 and Deputy Collector and Election Officer have on 16.2.2022 passed erred in passing the impugned orders that any society which makes payment on or before 28.2.2022, is entitled to cast vote is totally erroneous because after the cut off date they cannot be permitted to vote being defaulter societies.
4.10 Mr. Rao, the learned advocate submitted that the case of the writ-applicant is not with regard to include or exclude the names from the voters' list and, therefore, the only prayer is that since the defaulter society are included in the voters' list they should not be permitted to caste vote and, therefore, there is no question of inclusion or exclusion.
4.11 Mr. Rao, the learned advocate relied on the judgment of the Division Bench of this Court in Letters Patent Appeal No.913 of 2011 in the case of Brijarajsinh Hemantsinh Jadeja vs. State of Gujarat, reported in 2012(3) GLR 2704 and submitted that the locus of the writ-applicant cannot be doubted in view of the fact that the writ-applicant is a Bank affiliated to the Bhavnagar District Cooperative Bank Ltd., and also one of the voters and the candidate in the said election. Lastly Mr. Rao, the learned advocate submitted that the Page 10 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 present writ-application may not be construed as adversarial litigation, however the present writ-application is filed only with a view to ensure adherence with the Rules and Regulations with regard to the election of the Bhavnagar District Cooperative Bank Ltd.
5. Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Mr. Ishan Joshi, the learned AGP submitted that the election programme was published by the Election Officer on 26.1.2022. The elections are due to be held on 28.2.2022. She submitted that the election being declared the writ-applicant be relegated to the alternative remedy by filing an Election Petition under Section 143U of the Act.
5.1 Ms. Manisha Lavkumar Shah, the learned Government Pleader submitted that the defaulter society who raised objections before the Election Officer by filing objections dated 8.11.2021 are not before this Court and they have chosen not to challenge the voters' list. She submitted that the writ- applicant could have raised objections before the Election Officer as stipulated under the Act and the objections could have been decided by the Election Officer.
5.2 Ms. Manisha Lavkumar Shah, the learned Government Pleader submitted that the writ-applicant in the writ- application has stated that actually challenge inclusion and omission of voters included in the final voters' list. She Page 11 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 submitted that resultant effect would be the challenge with regard to inclusion and exclusion from the voters' list.
5.3 Ms. Manisha Lavkumar Shah, the learned Government Pleader submitted that since the election process is in force, no order be passed and the writ-applicant can avail remedy in accordance with law. She on instructions submitted and ensured that so far as prayer made by the writ-applicant with regard to Prayer (B) i.e. strict adherence to Rules 41 and 42 of the Election Rules, 1982 and not to permit any type of videography or photography of the process of voting by voters, polling agent, polling officer, presiding officer, candidates or representative of candidate except the person authorised by the Election Officer to carry out phorography and/or videography of the process of election as the election is by secret ballet paper to ensure free and fair election.
5.4 Ms. Manisha Lavkumar Shah, the learned Government Pleader on instructions with regard to prayer 40(B) submitted that no person would be allowed to carry mobile inside the polling booth and hence no question of photography or videography would arise as contested and apprehended by the writ-applicant.
5.5 Ms. Manisha Lavkumar Shah, the learned Government Pleader with regard to prayer 40(C) submitted that the writ- applicant has relied upon Section 27of the Gujarat Cooperative Page 12 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 Societies Act, 1961 and Rule 14 (A) of the Gujarat Cooperative Society Act, 1965 to stress that the defaulters may not be permitted to vote in the ensuing election of the Bhavnagar District Cooperative Bank Ltd which is a fallacious argument on 2 grounds mainly;
(i) The list annexed to the petition is a list forwarded by the banks which is published by the Election Commissioner which also raises contention with regards to the locus of the writ- appilcant as; if at all there should be a grievance, the said grievance should have been agitated by the Banks, forwarding the list and not the writ-applicant;
(ii) The writ-applicant has relied upon the judgment of Surendranagar District Cooperative Bank Ltd in Special Civil Application No. 902 of 2009 for buttressing their argument under Section 27 of the act which cannot be accepted on the count that Rule 14 (A) came to be inserted in the statue book after the judgment was passed by this Court and also the fact that it was the bank which came before this Court at the relevant point of time and not some 3rd party who fails to show the prejudice before this Court.
5.6 Ms. Manisha Lavkumar Shah, the learned Government Pleader further submitted that the entire grievance of the writ- applicant which is sought to be agitated before this Court, in the guise of adherence to Rule 16 with regards to polling Page 13 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 booth, is to the effect of inclusion and exclusion of voters which cannot be agitated or at this stage but would have to be addressed under section 145(U) of the Act after election is over and not during the pendency of the said election.
5.7 With regard to prayer 40(A) that the Election Officer has erred by issuing communication dated 12.2.2022 whereby the Election Officer has fixed different polling booths for the election of Bhavanagar District Cooperative Bank Ltd which is contrary to Rule 16(2) of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982 as per the say of the writ-applicant which contention may not be accepted as the writ-applicant reads and relied upon the rule in a piece- meal manner and the fact that the rules starts with the words, " there shall be at least one polling station ...... " read with the proviso which gives the Election Officer to fix at his discretion, the number of polling booths with due regard to the convenience of the voters which in this present time and scenario of Covid 19 pandemic has to be given importance and primacy and in fact, has submitted that the authorities have complied the said rules and in no manner not acted contrary to the said rules. Further she submitted that the writ-applicant has not been able to justify the prejudice caused to him by the order dated 12.02.2022 which in fact questions the locus of the writ-applicant as the writ-applicant has been pursuing the litigation for everyone involved without assigning any reasons much less any instances which entitle the writ-applicant to Page 14 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 pursue this present litigation. Lastly she submitted that in view of the overall facts and circumstances the writ-application be rejected.
6. Heard Mr. B. T. Rao, the learned advocate appearing for the writ-applicant and Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Mr. Ishan Joshi, the learned AGP Position of Law :-
7. Law as regard judicial review in the matter related to election is well settled. The ratio as laid down by the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorised Officer and Cooperative Officer (Marketing), reported in 2006 (1) GCD 211 held that the inclusion or exclusion of name in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India. Paragraphs 31, 32 and 33 reads thus :-
"31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India and Ors. (18 GLR 714) where the principles have been clearly Page 15 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.
31.1. In the case of Mehsana Dist. Coop. Sales and Purchase Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR 308), the Court have noted the observations made by the Hon'ble Apex Court as under:
"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies".
In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration."
In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to Page 16 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 judicial review on the ground of malafide or arbitrary exercise of powers.
32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/ or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the Page 17 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
7.2 The ratio laid down by the Division Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Ltd., vs. State of Gujarat and Others, reported in 2017(2) GLR 902, paragraphs 13 to 16 read thus :-
Page 18 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022C/SCA/3750/2022 ORDER DATED: 23/02/2022 "13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorised officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorised officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorised officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.
14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only Page 19 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all.
14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.
15. However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of election, it can approach the competent authority by raising an election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the findings recorded either by the learned single Judge or by this Court in this appeal.
16. Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of."
7.3 The ratio laid down by the Division Bench of this Court in the case of Raghubhai Munjibhai Mungra Vs. Jamnagar Page 20 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 Co.Operative Bank Ltd., reported in AIR 2021 Gujarat 185, paragraph 6 reads thus :-
"6. It is a cardinal principle accepted, applied, reiterated and followed that High Court will not, in all ordinary circumstances, interfere with the election process to interrupt, interfere or stall such democratic process and that all election disputes arising in the middle of the elections shall be postponed for their resolution until after the elections are over, to be dealt with in accordance with the machinery provided under the statute therefor.
6.1 In Vitthodar Vividh Karyakari Seva Sahakari Mandli (supra) relied on by the respondents in the context of Section 145U of the Gujarat Co-operative Societies Act read with Rule 128 of the Gujarat Agricultural Produce Markets Rules, 1965, this Court enunciated the law on the issue to observe that though the petition under Article 226 of the Constitution is maintainable, the powers are to be exercised only in extra-
ordinary or special circumstances such as where the order is ultra vires or nullity or ex facie without jurisdiction. The principles were reiterated in Mehsana Taluka Cooperative Purchase & Sales Union (supra), which decision came to be confirmed in Letters Patent Appeal No.1255 of 2016 and other cognate Appeals decided on 29th November, 2016.
6.2 In yet another decision of Division Bench of this Court in Kanubhai Chhaganbhai Patel v. Director of Agricultural Page 21 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 Marketing & Rural Finance [2004 (3) GLR 2718], which involved the issue of rejection of nomination paper, after considering its earlier decisions in Kanjibhai Babaldas Patel v. Election Officer, APMC Visnagar [42 (1) GLR 260], Mehsana District Sales & Purchase Union v. State of Gujarat [1988 (2) GLR 1060] observed to hold that, "any interference after the scrutiny of nominations would create a real possibility of the election process being interrupted, obstructed or delayed. This is why in the aforesaid four decisions of the Division Bench of this Court it has been laid down that Rule 28 provides an efficacious remedy and when the election process is started, Court would refuse to exercise its extra-ordinary jurisdiction.". Reiterating the principle, the Court refused to go into the nature of dispute, that is the objections raised against the validity of nominations and did not examine whether Rule is violated to find out whether the Scrutiny Officer had committed any error in rejecting or accepting the nomination.
6.3 In Shri Sant Sagduru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509], the Apex Court in the context of the Maharashtra Co-operative Societies Act, 1960 read with Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 stated and held, "In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the Page 22 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate. If aggrieved, by means of an election petition before the Election Tribunal."
6.4 The trite proposition about non-interference in election process, howsoever the ground canvassed may appear to be strong, and that election disputes are to be gone into and settled after the elections are over as per the machinery provided for resolution of such disputes, has been holding the field right from the decision in N.P. Ponnuswami v. Returning Officer [AIR 1952 SC 64], which statement of law found its further exposition in a more recent decision in Shaji K. Joseph v. V. Vishwanath [(2016) 4 SCC 429], "... as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect whenever the process of election starts, normally courts should not interfere with he process of election for the simple reason that if the process of election is interfered Page 23 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 with by the courts, possibly no election would be completed without the court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. ... ... "
(Para 15) 6.5 In Mehsana Taluka Co-operative Purchase & Sales Union (supra), following were the observations "5.1.2 The election jurisprudence, its principles and the applicability of election laws have different delineations and dimensions. They indeed operate, and has to be allowed to operate in their own way so as to sub-serve a higher purpose. In the election which is a democratic process, what is fundamental is the event of election.
Neither the right to vote or to participate in election as voter or as a contesting candidate, is perceived to be a fundamental right. They are the rights guarded by statutory framework and could be exercised only in the manner the statute may provide. What is at stake is the interest of whole body which goes to the democratic process of elections. Election jurisprudence hardly emphasise rights of Page 24 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 individuals. Election rights are the democratic rights operating as a whole and for collective end."
Analysis :-
8. The election to the Board of Directors of the Bhavnagar District Cooperative Bank Ltd., was declared on 26.1.2022 and the election is to be held on 28.2.2022. It is the case of the writ-applicant that Section 27(2) of the Gujarat Cooperative Societies Act read with Rule 14A of the Gujarat Cooperative Societies Act, 1965 bars the inclusion of voters from voting if the said voters are defaulters on or before 31.3.2021 which is the cut of date fixed by the District Registrar, Cooperative Societies, Bhavnagar with regard to the present election.
8.1 In view of the settled legal position, this Court is not inclined to interfere under Article 226 of the Constitution of India in view of the fact that the election programme came to be declared as back as on 26.1.2021 and the election is to be held on 28.2.2022 and in view of the settled legal position as discussed above this Court is not inclined to interfere with the above prayer as prayed for by the writ-applicant under Article 226 of the Constitution of India. Under such circumstances, it is open for the writ-applicant to avail the statutory remedy available under the provisions of Section 145U of the Gujarat Cooperative Societies Act, 1961 read with Rule 82 of the Gujarat Specified Cooperative Societies (Election to Committee) Page 25 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 Rules, 1982 by filing an Election Petition. Section 145U reads thus :-
"145U. Disputes relating to elections to be submitted to the Tribunal.-
(1) Notwithstanding anything contained in Section 96 or any other provisions of this Act, any dispute relating to an election shall be referred to the Tribunal, (2) Such reference may be made by an aggrieved party by presenting an election petition to the Tribunal:
Provided that no such petition shall be made till after the final result of the election is declared and where any such petition is made it shall not be admitted by the Tribunal unless it is made within two months from the date of such declaration:
Provided further that, the Tribunal may admit any petition after the expiry of that period, if the petitioner satisfies the Tribunal that he had sufficient cause for not preferring the petition within the said period.
(3) In exercising the functions conferred on it by or under this Chapter, the Tribunal shall have the same powers as are vested in a Court in respect of-
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any person and examining him on oath;
(c) compelling discovery or the production of documents, and
(d) issuing commissions for the examination of witnesses.
In the case of any such affidavit, an officer appointed by the Page 26 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 Tribunal in this behalf may administer the oath to the deponent.
(4) Subject to any regulations made by the Tribunal in this behalf, any such petition shall be heard and disposed of by the Tribunal as expeditiously as possible. An order made by the Tribunal on such petition shall be final and conclusive and shall not be called in question in any Court. "
The above provision provides for submission of dispute related to election to the Tribunal under Rule 82 of the Rules, 1982 which read thus :-
"(a) that on the date of his election a returned candidate was not under these rules, or
(b) that any corrupt practice has been committed by a returned candidate or his Election Agent or by any other person with the consent of a returned candidate or his Election Agent, or
(c) that any nomination paper has been improperly rejected, or
(d) that the result of the election, in so far as it concerns as returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his Election Agent, or
(iii) by the improper reception, refusal or rejection of any Vote or the reception of any Vote which is void, or Page 27 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022
(iv) by any non-compliance with the provisions of the Act or any rules made thereunder, the Government shall declare the election of the returned candidate to be void. "
8.2 The submissions of Mr. Rao, the learned advocate with regard to non-compliance of Rule 16 of the Rules, 1982 to fix the booth after inviting suggestions and discussion with the Bank and that the said Rule being mandatory in nature and that there should be one polling booth for over 1000 voters and further submission that because there are 13 seats in 13 talukas and that 13 booth be provided is not justified. Ms. Manisha Lavkumar Shah, the learned Government Pleader submitted with regard to the said contention raised by Mr. Rao that it is the discretion of the Election Officer that the number of polling booths with regard to the convenience of the voters which in this present time and scenario of Covid 19 pandemic, the the respondent No.3 fixed different polling stations for the election of the Bhavnagar District Cooperative Bank Ltd., for the constituencies under the bye laws No.30(1)
(a), 30(1)(b), 30(1)(c) & 30(1)(d). In view of above, this Court under Article 226 would not sit in appeal over the said decision passed by the competent authority dated 12.2.2022.
8.3 The submission with regard to the prohibition of photography under Rules 41 and 42 of the Election Rules, 1982 which do not permit any type of photography or videography of the process of secret voting by voters, polling Page 28 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022 C/SCA/3750/2022 ORDER DATED: 23/02/2022 agents, polling officer, Presiding Officer, candidates or representative of candidates except the person authorised by Election Officer permitting photography and/or videography of the process of election as the election is by secret ballot papers and to protect sanctity of free and fair election.
Ms. Shah, learned Government Pleader candidly submitted that the said prayer as prayed for by the writ- applicant would be adhered to in true spirit.
8.4 Under such circumstances, no case is made out for interference under Article 226 of the Constitution of India. The present writ-application cannot be said to be an exceptional case which would warrant interference under Article 226 of the Constitution of India by seeking the relief as prayed for by not including the voters who are defaulter as on 31.3.2021 which is the cut of date fixed by the Election Officer for the voters to be eligible to vote. The resultant effect is inclusion and/or exclusion of the voters from the voters' list. This can be adjudicated in an Election Petition.
8.5 It is open for the writ-applicant to agitate the grievance by filing an Election Petition before the Tribunal as envisaged under Section 145U of the Gujarat Cooperative Societies Act, 1961 read with Rule 82 of the Gujarat Specified Cooperative Societies (Election to Committee) Rules, 1982.
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9. With the aforesaid, the present writ-application stands disposed of.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 30 of 30 Downloaded on : Fri Feb 25 22:03:39 IST 2022