Gujarat High Court
Jayeshbhai Chimanbhai Patel vs State Of Gujarat on 28 January, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/1619/2022 ORDER DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1619 of 2022
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JAYESHBHAI CHIMANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2
MR.BHARAT PATEL, SENIOR ADVOCATE with ISHAN JOSHI, AGP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2
MR MOUSAM R YAGNIK(3689) for the Respondent(s) No. 3
MR NIRAD D BUCH(4000) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/01/2022
ORAL ORDER
[1] This writ application is filed under Article 226 of the Constitution of India challenging the order dated 18.01.2022 passed by the respondent no.2 Election Officer and Deputy Collector, whereby the respondent no.2 rejected the objection raised by the writ applicant no.1 against the nomination form of the respondent no.3 in the election of Kheda District Central Co-operative Bank Limited.
[2] The brief facts leading to the filing of the present petition are that the Kheda District Central Cooperative Bank Limited (for short "the bank") is a specified society within the meaning of Section 74C of the Gujarat Cooperative Societies Act, 1961 and the election of the said society is to be conducted by the respondent no.2 Election Officer and Deputy Collector in consonance with the provisions of Chapter XI of Page 1 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 the Gujarat Cooperative Societies Act, 1961 r/w. Provision of Gujarat Specified Cooperative Societies Election to Committee Rules, 1982 (for short "Rules 1982"). It is stated that the name of the writ applicants came to be included in the provisional voters' list for the election of the Bank, which was duly published by public notice dated 24.01.2021 and names of the writ applicants were included as delegate of the society. It is stated that the respondent no.3 raised objection against the membership of the writ applicant no.1 and pursuant to the said objection, the District Registrar passed order dated 30.12.2021 directed the society to remove the name of the writ applicant no.1 as a member. On the basis of the said order, the Election Officer vide order dated 10.01.2022 deleted name of the writ applicant no.1 from the voters' list. It is stated that the writ applicant no.1 challenged the said order before the Additional Registrar (Appeals) and vide order dated 10.01.2022 the Additional Registrar (Appeals) rejected the stay application.
[3] In view of the above, the writ applicants approached this Court by filing Special Civil Application No.925 of 2022 and this Court by the order dated 17.01.2022 issued notice and by way of ad interim relief stayed the order dated 30.12.2021 passed by the Deputy Registrar. It is stated that the respondent no.3 filed nomination Page 2 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 form from the said constituency. The writ applicant no.1 raised objection against the nomination of respondent no.3 on the ground that he was disqualified from contesting the election as he was a defaulter in Kapadvanj Nagrik Cooperative Credit Society. It is further stated that the respondent no.2 Election Officer rejected the objection raised by the writ applicant no.1 and accepted the nomination of respondent no.3.
[4] Being aggrieved by the said order dated 18.01.2022 passed by the respondent no.2 Election Officer, the writ applicants are constrained to approach this Court with the following reliefs:-
"(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the impugned order dated 18.01.2022 passed by the respondent no.2 Election Officer and Deputy Collector, annexted at Annexure A to this petition and be pleased to pert the petitioner to contest the elections from the Kapadvanj Constituency seat of Kheda District Central Cooperative Bank Limited.
(B) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay further execution, operation and implementation of the impugned order dated 18.01.2022 passed by the respondent no.2 Election Officer and Deputy Collector, annexed at Annexure A to this petition."
(5) Learned advocate Mr.Dipen Desai appearing for the writ applicants submitted that the respondent no.2 ought to have allowed the objection raised by the writ applicant no.1 as the respondent no.3 Page 3 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 was a defaulter in Kapadvanj Nagrik Cooperative Credit Society and he has produced absolutely false certificate dated 10.01.2022. He submitted that before rejecting the objection raised by the writ applicant no.1 by the letter dated 18.01.2022, the respondent no.2 ought to have inquired from the credit society to ascertain the correct position.
[6] Learned Senior Advocate Mr.B.S.Patel assisted by learned AGP Mr.Ishan Joshi appearing for the respondent no.2 submitted that the impugned order passed by the respondent no.2 was just and proper and the said order does not require any interference by this Court. He further submitted that this Court may not entertain this writ application mainly on the ground when the writ applicants have available efficacious statutory remedy under section 145(U) of the Act r/w. Rule 82 of the Rules 1982. He further submitted that the respondent no.3 had paid debt and there was no outstanding dues to be paid to the Bank and the Election Officer had relied upon the acknowledgment / receipt produced by the respondent no.3.
[7] Learned advocate Mr.Nirad Buch appearing for the respondent no.3 submitted that there was no outstanding dues is to be paid by the respondent Page 4 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 no.3 and the order passed by the respondent no.2 is just and proper. He adopted the submissions made by the learned Senior Advocate Mr.B.S.Patel and submitted that the writ applicantion may not be entertained and it is required to be dismissed.
[8] Position of law:- The law as regards judicial review the matters pertaining to election is well settled:-
(A) The Full Bench in the case of Daheda Group Seva Sahkari Mandli Limited vs. R.D.Rohit, Authorised Officer and Co-operative Officer (Marketing) reported in 2006 GCD 211 (SCA No.2489 of 2005 dated 24.04.2005) has specifically held in Paragraphs 31,32 and 33 that:-
"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 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 Page 5 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 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 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 Page 6 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33.In view of the above discussion, Reference as under:-
i. A we answer the 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."
(B) While deciding the matter in the case of Mandropur (Fatehpur) Juth Seva Sahkar Mandali Limited vs. State of Gujarat reported in 2017 (2) GLR 1495, the Coordinate Bench has held thus:-
"5. Travelling to root after gathering the controversy and the contentions canvassed by both the sides, in the general elections to the APMC, the societies dispensing agriculture credit would have its Managing Committee members as the voters to be included in the list of voters. Under the Gujarat Cooperative Societies Act as per Section Page 7 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 74(1)(a),members of the Managing Committee are to be elected. The members of the Managing Committee of cooperative society would become voters in the APMC elections and would be those one who are elected ones. Therefore, from the above statutory requirement it is manifest that the members of Managing Committee to figure in the list of voters would be the persons elected as members."
(C) While deciding the Letters Patent Appeal No.68 of 2021 in Special Civil Application No.16961 of 2020, the Division Bench has held 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 Marketing & Rural Finance [2004 (3) GLR 2718], which involved the Page 8 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 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 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."
Page 9 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022C/SCA/1619/2022 ORDER DATED: 28/01/2022 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 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. ... ... "
6.5 In Mehsana Taluka Co-operative Purchase & Sales Union (supra), following were the observations made:-
"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.Page 10 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022
C/SCA/1619/2022 ORDER DATED: 28/01/2022 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 individuals. Election rights are the democratic rights operating as a whole and for collective end."
7. In view of the categorical law settled as above, the learned Single Judge was eminently justified in taking the view that the petitioner had have the remedy of filing of election petition, thereby not interfering with the election process to the elections of respondent No.1 District Cooperative Bank to ultimately dismiss the writ petition. For the reasons we have recorded hereinabove, we upheld such decision of learned Single Judge in dismissing the petition.
8. While endorsing to the decision of learned Single Judge and the said ground of dismissal of petition, we make it clear that we have not gone into, nor have expressed, any opinion on merits. It will be open for the petitioner to invoke the remedy of filing election petition in accordance with law."
Analysis:-
[9] The ratio as laid down by this Court as well as Supreme Court, this Court is not inclined to interfere with regard to the decision taken by the respondent no.2 rejecting the objection raised by the writ applicant no.1 against the nomination of respondent no.3 vide Communication dated 18.01.2022 and permitting the respondent no.3 in participating in the election of Kheda Page 11 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 District Central Co-operative Bank Limited. No malafide, arbitrariness or any jurisdictional error is found in the order passed by the respondent No.2 Election Officer and the said order does not call for any interference, since the same does not result into any extraordinary circumstances seeking the interference by this Court.
It is open for the writ applicants to avail statutory remedy under Section 145(U) of the Gujarat Cooperative Societies Act, 1961 read with Rule 82, which reads thus:-
Section 145(U):-
"(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 [1] [Tribunal].
(2) Such reference may be made by an aggrieved party by presenting an election petition to the [1] [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 [1] [Tribunal] unless it is made within two months from the date of such declaration :
Provided further that, the [1] [Tribunal] may admit any petition after the expiry of that period, if the petitioner satisfies the [2][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 [1] [Tribunal] shall have Page 12 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 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 on oath;
(c) compelling discovery of 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 [1] [Tribunal] in this behalf may administer the oath to the deponent.
(4) Subject to any regulations] made by the [1] [Tribunal] in this behalf, any such petition shall be heard and disposed of by the [1] [Tribunal] as expeditiously as possible. An order made by the [1] [Tribunal] on such petition shall be final and conclusive and shall not be called in question in any Court."
Rule 82 of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982, reads thus:-
(a) That on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat 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 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 a 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 agency Page 13 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022 C/SCA/1619/2022 ORDER DATED: 28/01/2022 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;
(iv) by any non-compliance with the provision of the Act or any rules made thereunder, the (Tribunal) shall declare the election of the returned candidate to be void."
[10] In view of above, this Court is not inclined to entertain the present writ-application exercising its extraordinary discretion under Article 226 of the Constitution of India and no extraordinary circumstance warrant the interference by this Court even otherwise the election is to be held on 30.01.2022. Considering Rule 82 of the said Rules, improper acceptance or rejection of any nomination paper can be a ground for declaring an election void in an election petition. It is open for the writ applicants to avail efficacious remedy under Section 145(U) r/w. Rule 82 of the of the Rules 1982. None interference of this Court under Article 226 of the Constitution of India will not render the writ applicants remediless.
[11] With the above observations, the present writ application fails and the same is dismissed. Notice discharged.
(VAIBHAVI D. NANAVATI,J) NABILA Page 14 of 14 Downloaded on : Sat Jan 29 20:40:56 IST 2022