Gujarat High Court
Shaktabhai Gafurbhai Bharwad vs State Of Gujarat on 24 December, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/16732/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16732 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16715 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16706 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16800 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16721 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16724 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16720 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16734 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16716 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16727 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16731 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16494 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16430 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16432 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16473 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16485 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16489 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16490 of 2020
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PATEL PRAHLADBHAI ISHWARBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR CP CHAMPANERI(5920) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1,2,3
MRS MANISHA L SHAH, GOVERNMENT PLEADER with MS AISHWARYA GUPTA,
AGP for the RESPONDENT-STATE
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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C/SCA/16732/2020 ORDER
Date : 24/12/2020
COMMON ORAL ORDER
1. This group of Special Civil Applications is filed under Article 226 of the Constitution of India basically against the order passed by the Election Officer, Mehsana District Co-operative Milk Producer Union Limited and the Prant Officer, Visnagar, by virtue of which the issue related to inclusion and exclusion of concerned petitioners came to be decided. Since the issue in all these matters is almost similar, upon request of learned advocates appearing for the respective sides, the Court has taken up the hearing of these petitions for its ultimate decision.
2. Since the issue involved has arisen out of the very same election process, for deciding these matters, Special Civil Application No.16430 of 2020 is treated as a lead matter as substantive submissions have been made in this present petition which would govern rest of the petitions.
3. The petitioners of this lead petition have come out with a case that the election of Mehsana District Co-operative Milk Producer Union Limited was due to be held in the month of November 2020 as term of the earlier committee was to come to an end and as such, the process began, by virtue of which the petitioner No.2 in its meeting passed a resolution appointing the petitioner No.1 as representative of the petitioner No.2 society to participate in the election of Mehsana District Co-operative Milk Producer Union Limited in view of Rule 5 of the Gujarat Specified Co-operative Societies Election to Committees Rules, 1982 ('Rules 1982' for short). The said resolution which was passed by the respondent No.2 society was forwarded onward. Accordingly, in the provisional list of voters, the name of the petitioner No.1 came to be incorporated at Serial No.78 from the Chanasma Becharaji Electorate Constituency.
Page 2 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER4. It is further the case of the petitioners that on the basis of absolutely vague and baseless objection raised by the objector against inclusion of the name of the representative of the petitioner No.2 society, an intimation was given by respondent No.2, vide communication dated 8.12.2020, to remain present for hearing on 10.12.2020 for examining the objection against the petitioners. It is the case of the petitioners that though the objection raised against the petitioners is not well supported by any material and though the bye-laws were not permitting, as also not produced by the objector, the respondent No.2 by the impugned order sustained and allowed the objection put up before him, which order, according to the petitioners, is not in consonance with the material nor in consonance with the relevant bye-laws and therefore, by making certain averments in the petition and raising multiple contentions, the petitioners have invoked the extraordinary jurisdiction of this Court for seeking the following reliefs:-
(A) That this Hon'ble Court may kindly be pleased to admit and allow the present petition.
(B) That this Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of same and be pleased to quash and set aside the same impugned order dated 10.12.2020 at Annexure A to the present petition in the interest of justice;
(C) That this Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of same and be pleased to direct the respondent no.2 to include the name of petitioner no.1 in the Final votes list for the Elections of Mehsana District Cooperative Milk Producers Union Ltd. as representative of petitioner no.2 society.
(D) Pending hearing till final disposal of the present petition, this Hon'ble Court may kindly be pleased to stay the order impugned and further be pleased to permit the petitioner no.1 to participate in the process of law of election of Mehsana District Cooperative Milk Producers Union Ltd. as representative of the petitioner no.2 society, in all manner in the interest of justice.Page 3 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER
(E) ...................."
5. Out of this group of petitions, Special Civil Application Nos.16715 of 2020, 16724 of 2020, 16734 of 2020 and 16716 of 2020 are with respect to a grievance for deletion of the names of the respondent No.3 in the final voter's list for election of Mehsana District Co-operative Milk Producer Union Limited as representative of the respective societies, whereas the other set of petitions is related to the issue regarding the grievance for inclusion of the names in the final voter's list. With a view to avoid overburden the present order, detailed narration of facts of each of the petitions is not stated here, but the Court has examined the same in light of the submissions which have been broadly made by learned advocate in the lead matter and as such, these submissions are governing this two sets of petitions. Since upon request of learned advocates, the basic submissions have been made before the Court, the same are being examined in the present order.
6. With the aforesaid background of facts, it appears that the Coordinate Bench of this Court was pleased to issue Notice on 22.12.2020 and since the Bench was not available on 24.12.2020, in view of the urgency being reflected, the matters were mentioned to be taken up for hearing by this Court, accordingly the matters have been assigned to this Court and learned advocates have been heard. The petitioners have been represented by learned advocate Mr. C.P. Champaneri, whereas on behalf the respondent authority, a true contesting party, learned Government Pleader Mrs. Manisha Shah has appeared and represented them.
7. Learned advocate Mr. C.P. Champaneri appearing on behalf of the petitioners has vehemently contended that the respondent No.2, i.e. the Election Officer, has no authority to pass an order Page 4 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER impugned in the petition, as it is beyond the scope of inquiry to be undertaken by him. It has been contended that there was a specific resolution passed to designate the petitioner No.1 to represent the petitioner No.2 to participate in the election and the same is strictly in consonance with the relevant procedure established by the Rules. It has been contended that by virtue of the provisions contained in the Rules, the member of the Managing Committee cannot be removed like this since the election of him is not under challenge. The petitioner is in fact not removed from the Managing Committee as Member nor any disqualification proceedings have been initiated and as such, in absence of such contingency, it is not open for the respondent No.2 to pass an order curtailing the valid right to participate in the election process. This order impugned in virtual effect of disqualifying the petitioner which is beyond the scope of the authority of respondent No.2 and as such, the order impugned deserves to be set aside. It has further been contended that even if the allegations raised in the objection are to be taken true for the time being, then also, the said objections were not having any substantive material nor justification and as such, the order impugned could not have been passed. It has been contended that the voting right is a fundamental right and also is a statutory right, same cannot be curtailed like this in a cavalier manner by the respondent No.2 by stroke of pen and as such, Mr. Champaneri has vehemently contended that this exercise of jurisdiction is absolutely vitiated on account of non-application of mind as well. It has further been contended that till date, the petitioner has not received any notice nor any order is passed about petitioner's removal or disqualification and so long as that is not undertaken, right to participate in the election cannot be snatched away by the respondent No.2 by passing this order. It has further been contended by Mr. Champaneri that this right to vote and participate Page 5 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER in the election is enshrined under the relevant provisions of the Constitution of India and as such, same may not be infringed in the manner in which the respondent No.2 has made an attempt. By virtue of this impugned order, if not corrected, an irreversible damage will be caused to the legitimate rights of the petitioners and as such, Mr. Champaneri has vehemently contended that the order in question deserves to be set aside.
7.1. Learned advocate Mr. Champaneri with a view to substantiate his contentions has further added that this exercise of power is politically motivated and is without verification of the adequate material and therefore, the conclusion arrived at is not just and proper and has submitted that this exercise of power can always be the subject matter of judicial review in exercise of the extraordinary jurisdiction.
7.2. To strengthen his submission, learned advocate Mr. Champari has relied upon the list of authorities. Narration of citations is reproduced hereunder:-
(1) In the case of Shankerbhai Jesangbhai Chaudhari Vs. State of Gujarat, reported in 2015(0) AIJEL-HC 233432 (2) In the case of Kanubhai Manibhai Patel Vs. State of Gujarat reported in 2014(0) AIJEL-HC 232578 (3) In the case of Arvindbhai Singhabhai Gamit Vs. Election Officer and Deputy Collector and Another reported in 2012(3) GLH 881;
(4) In the case of Ramansinh Narsinh Rathod Vs. State of Gujarat reported in 2017(0) AIJEL-HC 238108 (5) In the case of Daheda Group Seva Sahkari Mandali Limited.
Vs. R.D. Rohit, Authorised Officer and Co Operative officer (Marketing) reported in 2005(0) AIJEL-HC 202701 (6) In the case of Bhesavahi Group Vividh Karyakari Seva Page 6 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER Sahakari Mandali Limited Vs. State of Gujarat and others reported in 2016(0) AIJEL-HC 235899 (7) In the case of Election Commission of India Through Secretary Vs. Ashok Kumar reported in (2000)8 SCC 216 (8) In the case of Pundlik Vs. State of Maharashtra reported in 2005(0) GLHEL-SC 35484 (9) In the case of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency, Namakkal Salem Dist, reported in 1952(0) GLHEL-SC-18767.
7.3. After referring to the aforesaid propositions laid down by various decisions, the contention is reiterated that the petitions are maintainable and the High Court can exercise the jurisdiction to set at naught the orders impugned in the petitions.
8. As against the aforesaid submissions, learned Government Pleader Mrs. Manisha Shah assisted by learned Assistant Government Pleader Ms. Aishwarya Gupta appearing on behalf of the respondent authority has vehemently contended that the impugned order is passed by the authority after due compliance of the principles of natural justice and after proper verification of the material placed before him and the decision making process is strictly in accordance with the procedure established by law and therefore, cannot be said to be perverse or unjust or arbitrary in any manner. Simply because an assertion is made that this decision is actuated with political motivation, same would not change the very nature of the order which is apparently in consonance with the principles of natural justice. It has been contended that after receipt of the objection, the petitioners have been called for explanation and for meeting with the objections and specific hearing was given to each of the petitioners and after verifying the relevant material on record, the authority has passed the orders and as such, in no circumstance, the said exercise of jurisdiction can be said to be Page 7 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER either without authority of law or perverse in any form in absence of any material irregularity or patent illegality. It is a settled position of law that exercise of extraordinary jurisdiction ordinarily should not be undertaken to substitute the views qua that of the authority on the basis of the same material. Additionally, Mrs. Manisha Shah has vehemently contended that the election program, which is attached to the petition compilation, is clearly reflecting that final voter's list stage was already over on 11.12.2020, whereas the present petition is presented only on 18.12.2020, which is reflecting from registration form. Hence, the process of election which has reached to substantial extent may not be intercepted at the instance of the petitioners. In addition to this, Mrs. Manisha Shah has further contended that the petitions contain the disputed questions of fact and the facts have been analyzed and examined by the authority who is invested with the power and has arrived at a particular conclusion and as such, on the basis of the disputed questions of fact also, the petitions are not entertainable.
8.1. In addition to the above, Mrs. Manisha Shah has submitted that the order in question is passed after granting adequate opportunity and the same has been passed after perusal of the documents and the relevant bye-laws. Hence, upon such proper scrutiny, when the power is exercised by the authority, same cannot be said to be suffering from vice of any non-application of mind. So far as the scope of inquiry of respondent No.2 is concerned, the said issue is already dealt with by catena of decisions and it has been held that apparent facts if lead to a situation for an authority to pass an order, same cannot be said to be unjust. Here, in the present case, on apparent material and ex- facie submission, it has been found that the petitioners are not to be included or excluded in respective petitions as stated above. The said justification is well within the scope of inquiry by the authority Page 8 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER and apart from that, all these niceties can well be examined in a substantive petition, to be brought by the petitioners in case they are aggrieved by the result of the election.
8.2. Learned Government Pleader Mrs. Manisha Shah has specifically contended that there is a specific statutory alternative and efficacious remedy available under Chapter-XIA of the Act and as such, at this stage of proceedings, no interference be made, which would prejudicially affect the conclusion of process of election program and as held by several decisions, that issue of inclusion or exclusion from the voter list is a part of the process of election, same can be adjudicated at a subsequent stage as well and since the petitioners are having adequate alternative remedy, to be availed of, no exercise of extraordinary jurisdiction is required at the instance of the petitioners, especially when the program of election has processed further from the stage of final voter's list, as indicated above. Hence, the petitions being devoid of merit, same deserve to be dismissed. To substantiate and strengthen the submissions, Mrs. Shah has taken the Court to certain relevant Rules about the procedure related to the voter's list and has further canvassed the submission about alternative remedy on the basis of few decisions delivered by this Court as well by the Apex Court and then has submitted that the proposition of law is well laid down by series of decisions, the petitions may not be entertained in this peculiar background of facts. Since Mrs. Shah has pressed into service the relevant decisions, the same are quoted hereunder, which will be dealt with at an appropriate stage in the present order:-
(1) In the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited Vs. State of Gujarat and others, being Letters Patent Appeal No.569 of 2016;Page 9 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER
(2) In the case of Ghanshyambhai Chunibhai Thakkar Vs. State of Gujarat and others, in Letters Patent Appeal No.1263 of 2017 dated 14.8.2017 (3) In case of Shaji K. Joseph Vs. V. Viswanath and others reported in (2016)4 SCC 429, (4) In the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and others reported in (2001)8 SCC 509;
(5) Judgment and order dated 23.12.2011 in Special Civil Application No.14425 of 2011 decided in the case of Mukeshbhai Basilal Patel & Another Vs. Election Officer & Dy.
Collector and others.
9. Having heard learned advocates appearing for the parties and having gone through the material on record, prima facie, a bare look at the order is giving a clear impression to the Court that before passing the impugned order, a specific opportunity is given to the petitioners concerned and it is only after due compliance of the principles of natural justice, the order came to be passed. It further appears that even while passing the impugned orders, an application of mind is reflecting to the facts which were pointed out before it and it only after due reference to the said material placed before him and in consonance with the relevant bye-laws, as indicated in the order, when it was found by the authority that the petitioners are not eligible to be included in the final voter's list, their inclusion came to be set aside and the objections have been sustained. So, for arriving at a conclusion on the issue of inclusion or exclusion in the final voter's list, the apparent basic inquiry, which is needed, is undertaken by the respondent No.2 while passing the impugned order and as such, in no circumstance, it is possible for this Court to come to a conclusion that the order appears to be perverse in any form. A brief order cannot be said to be invalid since the relevant justification is very much reflecting in Page 10 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER the impugned order. Hence, the order passed by the authority is not possible to be branded as suffers from vice of non-application of mind in any form.
10. Now, in the background of the aforesaid details and on the basis of the submissions which have been canvassed before the Court, the Court cannot un-notice the election program which has been projected before the Court. As submitted by learned Government Pleader Mrs. Shah, that stage of final voter's list was on 11.12.2020, whereas the present petition has been brought before the Court only on 18.12.2020, i.e. much after the said stage, and as such, when the said stage is already over and the process of election has carried further, this Court is in such a situation not inclined to intercept the process of election in any form. Passing of an order at this stage shall have an effect of hampering the said process of election, which is not warranted in view of the catena of decisions. Since this conclusion is based upon few decisions delivered by this Court as well as by the Apex Court, which have been brought before the Court by Mrs. Shah, the Court deems it proper to deal with the same at first instance.
(1) In the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited Vs. State of Gujarat and others (supra), the Division Bench of this Court has clearly propounded on the basis of series of earlier relevant decisions that exclusion or inclusion of the names in the voter's list cannot be termed as extraordinary circumstance warranting interference by this Court under Article 226 of the Constitution of India and such questions are left to be decided in an election petition under the relevant Rules. The said proposition is reflecting in paragraph Nos.8,9,11, 12 and 15, which are reproduced hereunder:-
Page 11 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER8. Heard Mr. Mihir Joshi, learned Senior Advocate assisted by Mr. Mr. Dipen Desai; learned counsel for the appellant, Mr. P.K. Jani, learned Additional Advocate General for respondent no.1-State of Gujarat and Mr. V.C.Vaghela, learned counsel for respondent no.5.
9. In this appeal, it is mainly contended by Mr. Mihir Joshi, learned Senior Advocate that the learned single Judge has committed error in rejecting the Special Civil Application filed by the appellant on the ground of availability of effective remedy under Rule 28 of the Rules. It is submitted that earlier, at the stage of passing interim orders, the said objection was raised and in spite of the same, interim relief was granted by permitting the members of the managing committee of the appellant society to vote in the election with further direction to keep such votes in sealed cover and not to declare the results of the agricultural constituency. It is submitted that having entertained the writ-petition in spite of such defence by the respondents, the learned single Judge ought not to have dismissed the petition on the ground of availability of effective alternative remedy. It is further contended by the learned counsel that as much as 4th respondent-authorized officer has committed jurisdictional error by exceeding the scope of inquiry under Rule 8 of the Rules, it is always open for the appellant to question the said order by way of petition under Article 226 of the Constitution of India. It is further pleaded that the scope of inquiry under Rule 8 of the Rules by the authorized officer is to the limited extent. In support of his submissions, learned counsel has placed reliance on the Division Bench judgment of this Court in the case of Seva Sahkari Mandali Limited v. State of Gujarat, reported in 2010(0) GLHEL-HC 223660. By submitting that when the authorized officer exercises powers not statutorily available, the remedy under Rule 28 of the Rules cannot be said to be alternative remedy, the learned Sr. Advocate relied upon the Division Bench judgment of this Court in the case of Vibhaniya Seva Sahakari Mandali Ltd and Ors vs. State of Gujarat and Ors, reported in 2012 (1) G.L.H. 575 and also in the case of Shrutbandhu Himatlal Popat v.
State of Gujarat Through Secretary, reported in 2011 (0) GLHEL-HC 226207.
11. So far as the submission made by Mr. Mihir Joshi that in view of the interim order dated 22.3.2016, the Special Civil Application ought not to have been dismissed on the ground of availability of alternative remedy, we find no merit in such contention. While passing the interim order dated 22.3.2016, no finding is recorded by the learned single Judge on the maintainability of the Special Civil Application having regard to the alternative remedy available under Rule 28 of the Rules. In any event, merely because interim order is passed in spite of raising of such objection with regard to Page 12 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER maintainability of the petition, that will not preclude the Court to go into such issue at the time of disposal of the petition by considering the submissions of both the sides by referring to the case-law on the subject. Such plea raised by the learned counsel for the appellant also cannot be accepted in view of the ratio in the judgment in the case of State of U.P. and Anr. v.Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors., reported in (2008) 12 SCC 675. The learned single Judge has rightly relied upon para-38 of the said decision which is reproduced hereunder:
"38. ...True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ- petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writpetition albeit wrongly and granted the relief to the petitioner."
12. In view of the aforesaid reasoning and the judgment of the Hon'ble Supreme Court, we are not inclined to accept the above submission made by the learned Senior Advocate for the appellant in this regard.
15. As it is not in dispute that precisely it is the case of the appellant in this case that their names were wrongly excluded is certainly a ground which can be agitated by way of election petition under Rule 28 of the Rules.
(2) Yet, in another decision delivered in the case of Ghanshyambhai Chunibhai Thakkar Vs. State of Gujarat and others (supra), it has been propounded that the decision of the authorised officer of not including the name of the petitioner in the voter's list can be challenged under Rule 28 of the Rules by filing election petition before appropriate authority and this proposition is reflecting in para 3 and 4 of the said decision. But, with a view to see that the present order may not be overburdened, the same are Page 13 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER not reproduced hereunder.
(3) In addition to the above, in case of Shaji K. Joseph Vs. V. Viswanath (supra), the Apex Court after analysing the circumstance, as propounded that whenever process of election starts, normally the Court should not interfere with the said process and all disputes with regard to said election should be dealt with only after completion of the election and relevant extract of the said decision contained in para 15, since relevant, is reproduced hereunder:-
15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, 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 that whenever the process of election starts, normally courts should not interfere with the 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 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 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.
(4) Yet, in another decision which has been brought to the notice of this Court is of the Apex Court in the case of Shri Sant Sadguru Page 14 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra (supra). In the said decision, the Apex Court propounded that preparation of electoral roll is a part of election process and if there is any breach of the Rules in preparing the electoral role, same can be called in question after declaration of result of election, by means of filing an election petition before the Tribunal. The relevant observations contained in paragraph Nos.7, 9 and 12, since relevant, are reproduced hereunder:-
7. In the light of the aforestated provisions of Chapter XIA of the Act and the Rules, we will examine as to whether preparation of electoral rolls is an intermediate stage in the process of election. The provisions referred to above shows that Chapter XIA was enacted and the rules were framed specially to deal with the election of the specified societies under Section 73G of the Act. Section 144X provides that various stages of election shall also include preparation of the list of voters. Once the statute provides that the preparation of the voters' list shall be part of the election process, there is no reason to hold that the preparation of the electoral roll is not an intermediate stage in the process of the election of a specified society. This matter can be examined from another angle. A perusal of the Rules discloses that the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and Rules, the preparation of voters' list must be held to be part of the election process for constituting managing committee of a specified society. In Someshwar Sahakari Sakhar Karkhana Ltd., Someshwarnagar vs. Shriniwas Patil, Collector, Pune & Ors. - 1992 Maharashtra Law Journal, 883, it was held that in the scheme of the provisions of the Act and the Rules, the preparation of the list of voters for election to the managing committee of a specified society is an intermediate stage in the process of the election. Similar view was taken in Shivnarayan Amarchand Paliwal vs. Vasantrao Vithalrao Gurjar and Ors. - 1992 (2) (vol 30) Page 15 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER Maharashtra Law Journal, 1052. However, in Karbhari Maruti Agawan and Ors. vs. State of Maharashtra and Ors. - 1994 (2) Maharashtra Law Journal, 1527, although it was held that the preparation of the list of voters is an intermediate stage in the process of election, but that does not debar the High Court to entertain a petition under Article 226 of the Constitution challenging the validity of the electoral roll. It appears that the consistent view of the Bombay High Court on the interpretation of Chapter XIA of the Act and the Rules framed thereunder is that the preparation of electoral roll is an intermediate stage of the election process of the specified societies. This being the consistent view of the High Court on the interpretation of provisions of a State Act, the same is not required to be disturbed unless it is shown that such a view of the High Court id palpably wrong or ceased to be good law in view of amendment in the Act or any subsequent declaration of law. We are, therefore, of the view that the preparation of the electoral roll for election of the specified society under Chapter XIA and the Rules framed thereunder, is an intermediate stage in the process of election for constituting managing committee of a specified society.
9. If the contention of the appellant is that there was a breach of rule or certain mandatory provisions of the rules were not complied with while preparing of the electoral roll, the same could be challenged under Rule 81 (d)(iv) of the Rules by means of an election petition. In view that, the preparation of electoral roll in part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal.
12. In view of our finding that preparation of the electoral roll is 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 appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal.
(5) Yet, another decision which is next in the line is the decision in Special Civil Application No.14425 of 2011 decided on 23.12.2011 in the case of Mukeshbhai Basilal Patel & Another Page 16 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER Vs. Election Officer & Dy. Collector and others (supra). In the said decision, it has been specifically held that by virtue of the provisions contained under Section 145U of the Gujarat Cooperative Societies Act, 1961, the petitioners have an alternative remedy of filing a petition and the ratio laid down in the case of Daheda Group Seva Sahakari Mandali Limited is applied to a specific Co-operative Society. Hence, by virtue of the said proposition of law, it appears that learned Government Pleader Mrs. Shah has made out a strong case against the petitioners that the petitioners are having an alternative efficacious remedy to assail the grievance after conclusion of the election.
11. That being the position, in view of the aforesaid peculiar background of facts, when the respondent authority upon due inquiry, has found the petitioners ineligible to be finding place in the final voter's list, this Court is not impressed with the submission of learned advocate Mr. Champaneri for the petitioners to invoke the extraordinary jurisdiction. Hence, the petitions are found to be merit-less.
12. In the background of the aforesaid situation, which is visible from the record, and the proposition of law, the cases which have been relied upon by learned advocate Mr. Champaneri for the petitioner are no-doubt observing that in a given case, the High Court can exercise jurisdiction as there is no blanket bar to entertain the petitions. But for that, from reading of the said decisions, it prima facie suggest that the factual details of those cases are distinct from what is in the case on hand and therefore, the Court is unable to accept the submission of learned advocate for the petitioners on the basis of the aforesaid decisions.
Page 17 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER13. A brief analysis of the said decisions which have been brought to the notice, it appears that the case of Shankerbhai Jesangbhai Chaudhari Vs. State of Gujarat (supra) has distinct background of facts and essentially, the same is related to member's eligibility as on the date of drawing up of the account of the year. The word 'last audit' was appearing to be in controversy as seen in para 15 and as such, the proposition is not possible to be applied here in different background of facts as a straitjacket formula.
14. In addition to it, the other decisions which have been brought to the notice, having been gone through, this Court found a clear deviation of the factual matrix from the present background of facts and as such, it is not possible for this Court just to substitute the finding of the respondent No.2 on the basis of the said proposition of law as the Court found that there is no perversity nor material irregularity or patent illegality of any nature, in the orders impugned.
15. Out of those decisions which have been brought to the notice, even one decision of the Division bench of this Court of 2016 on the contrary is giving an impression that the present petitioners are having an alternative and efficacious remedy and the background of the proposition of the said decision in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (supra) is on the contrary of no assistance to the petitioners.
16. An attempt is made by learned advocate Mr. Champaneri to dwell into the decision of past right from 1952 Supreme Court, but the said attempt appears to be a mere attempt since recent proposition of law laid down by series of decisions, as stated above, Page 18 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021 C/SCA/16732/2020 ORDER is on the line that once the process of election has commenced and inclusion and exclusion in the voter's list is a part of election process, normal trend is not to entertain the petition or to exercise extraordinary jurisdiction and that being the so, this Court is of the clear opinion that the recent pronouncement by the Division Bench of this Court and other decisions, as pointed out by learned Government Pleader Mrs. Shah, are actually not in favour of exercising the extraordinary jurisdiction. Hence, in view of the principle of judicial discipline, this Court would not like to deviate in any form from the said proposition of law laid down in the recent past. That being so, no case is made out by the petitioners.
17. Apart from the above, learned advocate Mr. Champaneri has made an attempt to rely upon the decision delivered by learned Single Judge reported in 2018(1) GLR 647. But, a close scrutiny of the same is reflecting that it was a case in which the facts were such which might have prompted the Court to exercise the jurisdiction. But, simply because the said decision of 2018(1) GLR 647 are in different background of facts, the Court cannot un-notice the consistent proposition of law propounded by series of decisions of the Division Bench of this Court as well as by the Apex Court. Hence, this is not a fit case to exercise the extraordinary jurisdiction. Accordingly, in the considered opinion of this Court, no case is made out by the petitioners to call for any interference.
18. Hence, all the petitions in the peculiar background of facts are DISMISSED hereby with no order as to costs. Notices issued in the petitions stand discharged. Ad-interim relief, if any, stands vacated forth.
(ASHUTOSH J. SHASTRI, J) NAIR SMITA V./OMKAR Page 19 of 19 Downloaded on : Wed Aug 25 13:12:40 IST 2021