Gujarat High Court
Kathvada Milk Producer Co-Op. Society ... vs State Of Gujarat on 13 April, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/1339/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1339 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1462 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 3499 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 3570 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 3617 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4174 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4280 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? YES
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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KATHVADA MILK PRODUCER CO-OP. SOCIETY LTD
Versus
STATE OF GUJARAT
==========================================================
Appearance:
In SCA No.1339 of 2018 & SCA No.4174 of 2018
MR S.I. NANAVATI, SR. ADVOCATE WITH MR RAMNANDAN SINGH(1126)
for the PETITIONER(s) No. 1
Page 1 of 74
C/SCA/1339/2018 CAV JUDGMENT
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3,4
MR P.K. JANI, ADDL. ADVOCATE GENERAL WITH MS MANISHA L. SHAH,
GP WITH MR TIRTHRAJ PANDYA, AGP for the RESPONDENT(s) No. 2
In SCA No.1462 of 2018 and SCA No.3617 of 2018
MR P.S. CHAMPANERI for the PETITIONERS
MR P.K. JANI, ADDL. ADVOCATE GENERAL WITH MS MANISHA L. SHAH,
GP WITH MR TIRTHRAJ PANDYA, AGP for the RESPONDENT(s) No.1, 2
In SCA No.3499 of 2018
MR BHARAT T. RAO for the PETITIONER
MR P.K. JANI, ADDL. ADVOCATE GENERAL WITH MS MANISHA L. SHAH,
GP WITH MR TIRTHRAJ PANDYA, AGP for the RESPONDENT STATE
MR RAMNANDAN SINGH for the RESPONDENT No.5
MR RUTUL P. DESAI for the RESPONDENT No.6
In SCA No.3570 of 2018
MR. S.N. SHELAT, SR. ADVOCATE with MR BT RAO for the PETITIONER
MR P.K. JANI, ADDL. ADVOCATE GENERAL WITH MS MANISHA L. SHAH,
GP WITH MR TIRTHRAJ PANDYA, AGP for the RESPONDENT Nos,1,2,3,
and 4
In SCA No.4280 of 2018
MR RAVI B. SHAH for the PETITIONERS
MR P.K. JANI, ADDL. ADVOCATE GENERAL WITH MS MANISHA L. SHAH,
GP WITH MR TIRTHRAJ PANDYA, AGP for the RESPONDENT STATE
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 13/04/2018
CAV JUDGMENT
1. All these seven petitions pertaining to the election of the respondent Sabarkantha District Cooperative Milk Producers' Union Limited (hereinafter referred to as "the respondent Union") were heard together finally at the admission stage with the consent of the learned Page 2 of 74 C/SCA/1339/2018 CAV JUDGMENT Advocates for the parties, and are being decided by this common order.
2. The main prayers in each of the petitions may be reproduced as under:-
2(i) SCA 1339/2018: The petitioner, the Kathvada Milk Producers Cooperative Society Limited has preferred the petition seeking following main prayers:-
"9.(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction by directing the respondent No.2 Election Officer to the election of the respondent No.4 Society declaring that each voter would cast vote in his/her constituency of the respondent society only where his/her name appears in the voter's list of that constituency and would not be entitled to cast more than one vote as prescribed in by- law No.35(1)(A) of the By-laws of respondent society as it is contrary to Rule 3A(8) of the Gujarat Specified Co-Operative Societies Page 3 of 74 C/SCA/1339/2018 CAV JUDGMENT (Election to Committee) Rules, 1982).
2.(ii) SCA No.1462/2018: The petitioner, the Jaliya Danti Milk Producers Cooperative Society Limited has preferred the petition seeking following main prayers:-
14. (A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to direct the respondent No.1 to appoint the custodian in exercise of the power under section 7D of the Act and commanding the custodian to take steps for holding election of the members of the managing committee of the respondent no.4 society by submitting requisite proposal; (B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to direct the respondent Nos.1, 2 and 3 to conduct and hold the election of the members of the managing committee of the respondent no.4 society in accordance with Page 4 of 74 C/SCA/1339/2018 CAV JUDGMENT provisions of the Act and the Election Rules, 1982 by one man one vote principle and by division of electorate division of equal numbers of seats by dividing the entire area of operation with the equal proportion of the voters as provided and prescribed by Rule 3A(8) and (9) of the Gujarat Specified Cooperative Societies (Election to Committees) Rules, 1982.
2(iii) SCA No.3499/2018: The petitioner, the Ambawada Dudh Utpadak Sahakari Mandali Limited has preferred the petition seeking following main prayers:-
24. (b) 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 the order dated 27.2.2018 passed by the Election Officer and Deputy Collector, Himatnagar whereby the Election Officer has deleted the name of petitioner society from the provisional voters' list dated 15.2.2018 from Prantij Zone-8 and ordered to include name of the Page 5 of 74 C/SCA/1339/2018 CAV JUDGMENT petitioner society in Talod Zone-9 in final voters' list published on 27.2.2018 and further be pleased to direct the Election Officer and Deputy Collector, Himatnagar to include the name of the petitioner society in the final voters' list in Prantij Zone-8 for the reasons stated in the memo of petition and in the interest of justice;
(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 Election Officer and Deputy Collector, Himatnagar to allow the Chairman of the petitioner to fill in his nomination paper from Prantij Zone-8 and contest election as was allowed by the Election Officer in the election of the Union in 2014 though petitioner society's name was in the voters' list in Talod Zone-9 for the reasons stated in the memo of petition and in the interest of justice.
2(iv) SCA No.3570/2018: The petitioner, the Kalupur Dudh Utpadak Sahakari Mandali Limited Page 6 of 74 C/SCA/1339/2018 CAV JUDGMENT has preferred the petition seeking following main prayers:-
38. (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 Collector, Sabarkantha to pass order fixing the voting pattern for the election of the Sabarkantha District Cooperative Milk Producers' Union Ltd., in line with the judgement of this Hon'ble Court in SCA No.13178/2013 and Hon'ble Supreme Court in SLP (C) No.17404/2014 and earlier order dated 17.9.2014 of the Collector permitting each voter to cast one vote per constituency/zone for the reasons stated in the memo of petition and in the interest of justice.
2(v) SCA No.3617/2018: The petitioner, Shaileshbhai Rambhai Patel, claiming to be the Chairman of the Jesingpur Milk Producers' Cooperative Society Limited, has preferred the petition seeking following main prayers:- Page 7 of 74 C/SCA/1339/2018 CAV JUDGMENT
20. (A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction, to quash and set aside the impugned order dated 27.2.2018 -
Annexure-D passed by the respondent No.1 - Election Officer;
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction, commanding the respondent No.1 to delete the name of respondent No.3 herein from the list of voters and to include the name of the petitioner herein at Sr. No.7 in the final list of voters of Zone No.13 Malpur of Sabarkantha District Cooperative Milk Producers' Union Limited for the purpose of ensuing election to be held and conducted by the respondent No.1 to constitute the managing committee of the said Union. 2(vi) SCA No.4174/2018: The petitioner, Amodara (Prantij) Cooperative Milk Producers Page 8 of 74 C/SCA/1339/2018 CAV JUDGMENT Society Limited has preferred the petition seeking following main prayers:-
11. (B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing the respondent No.2 to hold the election as per Rule 3(A)(8) of the Election Rules read with Section 28 of the Co-
operative Societies Act specifying that every voter is entitled to cast only one vote, that too in his/her constituency only; (C) Your Lordships may be pleased to direct the respondent No.2 not to permit any voter to contest as a candidate other than in his/her constituency.
2(vii) SCA No.4280/2018: The petitioner, the Sisodara (Megali) Milk Producers Cooperative Society Limited has preferred the petition seeking following main prayers:-
19. (A) Your Lordships may be pleased to issue a writ of mandamus, or writ in the nature of mandamus or any other appropriate Page 9 of 74 C/SCA/1339/2018 CAV JUDGMENT writ, order or direction by quashing and setting aside the entire proceedings of election of the respondent No.5 by directing the respondent No.2 to 4 to prepare afresh voters list on the principle of one person one vote per constituency and thereafter conduct afresh election of the respondent No.5 society;
(B) Your Lordships may be pleased to issue writ of mandamus, or writ in the nature of mandamus or any other appropriate writ, order or direction to the respondent Nos.1 to 4 to restrain respondent Nos.6 to 9 and such other person whoever have multiple voting rights in multiple constituencies and restraining the voters to one man one vote principle;
(C) Your Lordships may be pleased to issue writ of mandamus, or writ in the nature of mandamus or any other appropriate writ, order or direction to the respondent Nos.1 to 4 to restrain from conducting elections of respondent No.5 society, to be scheduled Page 10 of 74 C/SCA/1339/2018 CAV JUDGMENT on 25.03.2018, unless and until proper voters list is prepared by the respondent Nos.2 to 4;
(D) Your Lordships may be pleased to direct respondent Nos.2 to 4 to act in accordance with law and to find out the names listed more than once in voters' list and to remove the same and to publish the fresh voters' list.
3. The undisputed facts as emerging from the records of the petitions may be summarized as under:-
3(i) The respondent Union is a specified Cooperative Society as specified in Clause (vi-
a) of the Section 74C(1) of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act"). The respondent Union has the area of operation in the erstwhile undivided Sabarkantha District, which now consists of Sabarkantha District and Arvali District. The said Union being the specified Cooperative Society, the election of the members Page 11 of 74 C/SCA/1339/2018 CAV JUDGMENT of its Committee and of its officers is subject to the provisions contained in Chapter XIA and is required to be conducted in the manner laid down by or under Chapter VII of the said Act as well as under the Rules namely the Gujarat Specified Cooperative Societies (Election to Committee) Rules, 1982 (hereinafter referred to as "the Rules of 1982") framed in exercise of the powers conferred by Section 168 read with Sub-section (2) of Section 145G, Sub-section (4) of Section 145U and Section 145Y of the said Act.
3(ii) The respondent Union has its Bye-laws duly approved by the Registrar, Cooperative Societies, Himatnagar. Bye-law No.35 of the said bye-laws was sought to be amended by the respondent Union by passing the Resolution on 20.10.2003, whereby it was proposed that there shall be sixteen representatives of the member- Societies of the respondent Union, and that each constituency shall consist of on an average 55 Milk Societies, with plus and minus five societies. It was further proposed that votes Page 12 of 74 C/SCA/1339/2018 CAV JUDGMENT shall be cast by the approved voters, and each voter shall cast sixteen votes, whereby he shall have to cast one vote for each constituency. The said Resolution was approved by the State Government by the order dated 21.3.2006 with certain modification. The respondent Union, therefore, had preferred Revision Application No.186 of 2006 before the Secretary (Appeals). The said Revision Application was allowed and the amendment of Bye-law No.35 as proposed by the Society vide its Resolution dated 28.10.2003 was approved. The District Registrar, Cooperative Societies also approved the said amendment in the Bye-law No.35 vide the order dated 21.3.2006. 3(iii) The said orders of the Registrar and the Additional Secretary (Appeals), and the validity of the said amended Bye-law 35 were challenged by one Mohanpura Dudh Utpadak Sahakari Mandli Limited by filing Special Civil Application No.10742 of 2009. The said SCA came to be dismissed on the ground of delay, laches and acquiescence and also on merits by the Page 13 of 74 C/SCA/1339/2018 CAV JUDGMENT Division Bench (Coram: Ms. Justice R. M. Doshit
- as she then was and Mr. Justice K. M. Thaker) vide the order dated 24.11.2009. The said order remained unchallenged and attained finality. 3(iv) It appears that thereafter the election of the respondent Union was to be held in the year 2013. However, one Special Civil Application being No.13178 of 2013 came to be filed by the Chairman of Vandhol Group Cooperative Milk Producers' Society Limited, challenging the election programme dated 17.8.2013 published for the election of the Managing Committee of the respondent Union. Another SCA being No.13293 of 2013 came to be filed by one Navalpur Milk Producers' Cooperative Society Limited, seeking direction that the election of the respondent Union be held as scheduled. Both the petitions came to be disposed of by the Division Bench (Coram: Mr. Justice Jayant Patel - as he then was and Mr. Justice Z. K. Saiyed) vide the order dated 9.6.2014 after giving certain directions as contained in paragraph 14 thereof. Page 14 of 74 C/SCA/1339/2018 CAV JUDGMENT 3(v) Being aggrieved by the said order dated 9.6.2014 passed by the Division Bench, the respondent Union preferred SLP (C) being No.17404 of 2014 before the Supreme Court. The said SLP came to be disposed of vide the order dated 4.8.2014 modifying the directions given by the Division Bench. It was held as under:-
" One other relevant factor which has to be borne in mind is that Bye Law 35(1)(A) of the Petitioner Society was subject matter of challenge before the High Court and by a judgement dated 24.11.2009, the High Court affirmed the said Bye Law introduced by way of an amendment by the petitionersociety. In the light of the above Statutory Rule, in particular Rule 43 and the nature of Membership of the Board of Directors of the petitionerSociety as provided under Bye Law 35(1)(A), we only state that the District Collector while implementing the order of the Division Bench shall apply the above quoted Bye Law as well as Rule 43 of the 1982 Rules, and ensure that the election of the petitionersociety is proceeded with and concluded."
3(vi) Consequent upon the order passed by the Supreme Court, the Collector, Sabarkantha passed the order on 17.9.2014 determining the constituencies in exercise of his powers conferred under Rule 3A(9) of the Election Rules of 1982. The Collector in the said order also Page 15 of 74 C/SCA/1339/2018 CAV JUDGMENT specified the voting pattern that every voter would give one vote for each constituency i.e. for 16 constituencies. Accordingly, the election of the respondent Union was held and newly elected body took over the management of the Union from 21.11.2014 for a period of three years.
3(vii) On 21.11.2017, the term of the elected members came to an end. However, the elections were not declared and the custodian was also not appointed in view of Section 74D of the said Act. Hence, one SCA being No.18163 of 2017 came to be filed by one Patel Bhogilal Ramanlal and another seeking direction to hold election for the Managing Committee of the respondent Union as per its bye-laws. The said petition came to be disposed of by the Single Bench vide the order dated 28.12.2017 with the concurrence of the learned Advocates for the parties. Accordingly, the Single Bench gave direction to the respondent Union to send the proposal for holding the election of its Managing Committee to the District Registrar and to the District Page 16 of 74 C/SCA/1339/2018 CAV JUDGMENT Collector, Sabarkantha within a period of seven days, and directing the District Registrar and the District Collector to carry out process of holding the elections within a period of 15 days from the date of receipt of the said proposal. 3(viii) Consequent upon the directions given by the Single Bench, the Managing Director of the respondent Union submitted the proposal to the District Registrar vide the order dated 29.12.2017. In the meantime, the District Registrar appointed the custodian vide order dated 1.2.2018. Thereafter, the election programme of the Managing Committee of the respondent Union was published by the Election Officer and the Deputy Collector, Himatnagar on 15.2.2018. The Election Officer also published provisional list of voters placing them into 16 constituencies declared as zones. Since the Managing Director of the respondent Union and the District Registrar, Himatnagar had included Ambawada Society at Sr. No.34 in Prantij i.e. Zone No.8 and included Nikodia Society at Sr. No.57 in Talod i.e. Zone No.9, which was not in Page 17 of 74 C/SCA/1339/2018 CAV JUDGMENT conformity with the earlier order dated 17.9.2014 of the Collector, the Collector, Sabarkantha vide the order dated 26.2.2018 directed to proceed with the election proceedings as per the constituencies (zones) determined by the Collector vide order dated 17.9.2014 pursuant to the earlier directions given by the High Court and the Supreme Court. Accordingly, the final voters' list was published on 27.2.2018.
4. In view of the above, the petitions have been filed by the various petitioners, who are the members of the respondent Union, seeking various prayers as stated herein above. It is required to be noted that on 8.3.2018, the learned Advocates appearing for the parties in all the petitions had submitted that in order to have fairer election as per the provisions contained in the Gujarat Cooperative Societies Act and the Rules framed thereunder, the proceedings of the election as declared in election programme dated 15.2.2018 of the respondent Union be stayed till further orders. Page 18 of 74 C/SCA/1339/2018 CAV JUDGMENT Accordingly the election programme was stayed by the Court vide the order dated 8.3.2018.
5. At this juncture it may be stated that though multiple issues in this batch of petitions have been raised, the main issue has been raised with regard to the Bye-law 35(1)(A) of the Bye-laws framed by the respondent Union, by contending that the said Bye-law is contrary to Rule 3A of the Rules of 1982 and to the decision of the Supreme Court in case of Rajkot District Cooperative Bank Ltd. Vs. State of Gujarat and Ors., reported in (2015) 13 SCC 401. It would, therefore, be expedient to state the genesis of the said decision.
5(i) It appears that the question of interpretation of Rule 3A(8) of the Election Rules in the light of bye-law 35(1)(A) as it existed at the relevant time of the respondent Union had arisen before the High Court in case of Antakampa Milk Producers' Cooperative Society Limited Vs. Sabarkantha District Cooperative Society Milk Produces' Union Limited, reported in 2004 (1) GLR 310. The said Bye-law provided Page 19 of 74 C/SCA/1339/2018 CAV JUDGMENT that 16 members of the Managing Committee shall be elected from seven constituencies as identified by the Union. In the said case, the Single Bench vide order dated 11.9.2003 held inter alia that Section 74C(3) of the said Act had an overriding effect on any other bye-laws of the society and that as per Rule 3A(8) of the Election Rules, the number of constituencies have to be equal to the total number of seats excluding two reserved seats as provided under Section 74B of the said Act. It was further found that bye-law 35(1)(A) provided seats for more than one person for each constituency, and therefore, the bye-laws were not in conformity with Rule 3A(8) of the said Rules and that bye- laws can operate to the extent of seven representatives to be elected from seven separate constituencies of the specified cooperative society, holding that Rule 3A(8) to be valid to that extent only.
5(ii) In another case of Shri Sodvadar Seva Sahakari Mandali Limited Vs. State of Gujarat, reported in 2010(3) GLR 2154 the Division Bench Page 20 of 74 C/SCA/1339/2018 CAV JUDGMENT had an occasion to deal with the issue with regard to Rule 3A(8) and Rule 43 of the said Rules. Division Bench held inter alia that there was no conflict between the said two Rules as both operate in two different fields. 5(iii) Again the question with regard to Rule 3A(8) read with Section 74C of the Act was raised for the election of Managing Committee of the Banaskantha District Milk Producers Union, in case of Khanodar (Old) Milk Producers' Cooperative Society Limited Vs. State of Gujarat, reported in 2012(1) GLH 245. The Division Bench in the said case found that the bye-law providing more than one representative to be elected in more than one constituency would be in contravention of Rule 3A(8). The Division Bench found that in Sodvadar Sahakari Mandali (supra) case, the members of the society were comprised of various classes of societies, whereas in Anantakampa Milk Producers Society (supra), the members constituted homogeneous group and not heterogeneous group. Hence, the Division Bench agreeing with the decision in Page 21 of 74 C/SCA/1339/2018 CAV JUDGMENT case of Antakampa Milk Producers' Cooperative Society Limited (supra), set aside similar bye- law 35(1) of the said society, which permitted the voter member society to cast one vote for each of the constituencies.
5(iv) Yet in another case the constitutional validity of Rule 3A(8) of the said Rules was challenged before the Division Bench in case of Banaskantha District Cooperative Milk Producers' Union Limited Vs. State of Gujarat, reported in 2012(2) GLR 1522. The Division Bench in the said case held inter alia that if any of the Rules are lawfully framed under the provisions of the Act and restrictions were imposed in relation to the subject matter of any of the clauses of the registered bye-laws of the society, such restrictions must be adhered to by it and any such clause in the bye-laws, which is in violation of the restriction imposed by the Rules should be deleted. It was further held that Rule 3A(8) of the Rules was neither in conflict with any of the provisions of the Act, nor was it held to be bad in law for want of Page 22 of 74 C/SCA/1339/2018 CAV JUDGMENT authority of the delegated legislation. 5(v) Once again when the legality and validity of Rule 3A(8) of the Rules were challenged in case of Narendrabhai Mahijibhai Patel and ors. Vs. State of Gujarat and Ors., in Special Civil Application No.12067 of 2012, the Division Bench vide the order dated 21.9.2012 referred the following questions to the Full Bench:-
(1) Whether Rule 3A of the Rules introduced by the Amendment dated 10.8.1987, could be applied to the Societies byelaws of which provide for a single constituency?
(2) Whether the scheme of the Rules permits the specified Societies having a single constituency, more than one seat for one constituency; and whether members of such society can legally be permitted to vote for more than one seat?
(3) Whether Collector has jurisdiction to make an order for delimitation of the constituencies, in absence of any proceeding undertaken in accordance with Section 14 of the Act?
(4) Whether delimitation of the constituencies under Rule 3A of the Rules can only be territorywise and/or whether delimitation of the constituencies can be based upon objects and activities of the member societies or classes of individual members?
5(vi) The Full Bench considering various Page 23 of 74 C/SCA/1339/2018 CAV JUDGMENT other judgements answered the said questions as under:-
(1) Rule 3A of Rules of 1982 could be applied to the societies byelaws which provides for a single constituency because Rule 3A is essentially for delimitation of the constituencies and preparation of the voters' list. But we clarify that sub rule(1) to subrule(7) would apply in case of all specified societies, whether byelaws provide for a single constituency or more than one constituency. Subrule(8) would apply to all specified societies having bye laws for single constituency only if its area of operation is in more than one village. Subrule(9) would apply to all specified societies where delimitation of the constituencies are required to be made by the Collector.
(2) The scheme of the Rules of 1982 do permit specified societies having single constituency, provided the area of operation is limited to one village and in those circumstances, more than one seat may be provided under the byelaws for one constituency. The members of such societies can legally be permitted to vote for more than one seat.Page 24 of 74 C/SCA/1339/2018 CAV JUDGMENT
(3) The Collector has the power to pass an order for delimitation of the constituency, even in absence of any proceedings undertaken in accordance with section 14 of the Act.
(4) The delimitation of constituency under Rule 3A of the Rules can also be territory wise. The delimitation of the constituencies can be based upon the objects and activities of the societies for the classes of individual members since each electorate is to represent the respective members of a particular area or a particular class, as the case may be.
5(vii) Being aggrieved by the decision of the Division Bench in Khanodar (Old) Milk Producers' Cooperative Society Limited (supra) and the decision of the Full Bench dated 4.7.2013 in case of Narendrabhai Mahijibhai Patel and ors. (supra), the Rajkot District Cooperative Bank Limited had filed SLPs before the Supreme Court. The Supreme Court in the said case held as under:-
"17. On a careful examination of Rule 3A (8) of the Rules by us, it is made clear that the said provision is aimed at geographical i.e. territory or zone wise bifurcation or division. A salient feature Page 25 of 74 C/SCA/1339/2018 CAV JUDGMENT of the Rule 3A is the delimitation of the constituencies which includes all specified cooperative societies. Once the area of operation of any society is more than one village, Sub rule (8) would come into play and the requirement of the number of constituencies would be equal to the total number of seats, excluding two seats reserved for the categories as provided under section 74 B of the Act.
18. Further, the language of sub rule (9) of Rule 3 A, makes it clear that the Rule Making Authority has graced the Collector with the power to delimit the constituency/constituencies prior to the publication of the voters list. The delimitation of the constituency/constituencies should be prior to the preparation of the voters' list and/or in any case simultaneous with the preparation of voters' list but the voters list has to be as per the delimitation of the constituencies. The same is the case when the delimitation of the constituency is required to be made by the Collector prior to the publication of the list of voters.
19. Thus, when subrule (8) is read along with subrule (9) of Rule 3A, where the society has the area of operation exceeding one village, even if the bye laws provide for single constituency, the seats provided by the bye laws has to be equal to the number of constituency/constituencies and therefore, for each seat, a separate constituency would be required to be delimited and if not so delimited by the society, of its own, it would be required for the Collector to exercise his power under sub rule (9) of Rule 3A of the Rules for the delimitation of the constituency in accordance with the mandate of sub rule (8) of Rule 3A and thereafter, the process for publication of the voters' list is to be given effect to.Page 26 of 74 C/SCA/1339/2018 CAV JUDGMENT
20. The power conferred with the Collector for the delimitation of the constituency under sub rule (9) is independent and separate and only applicable in the case when the election of the members of any Management Committee of specified society is scheduled to be held. Further, as specified in the sub rule (9) of Rule 3A, such powers are to be exercised by the Collector, notwithstanding anything contained in the bye laws of such society. The Collector has to exercise the power for delimitation of the constituencies prior to the publication of the list of voters. Further, as rightly stated by the High Court in the impugned judgment that when a specific power is conferred in a specific contingency to a different authority, such power has to be read in addition to the general power for the amendment in the byelaws. Thus, the bye laws of any society have to be in conformity with the provisions of the Act and the Rules.
21. It is obligatory on the part of any specified society to bring about the amendment in its registered byelaws in conformity with the provisions of the Rules and more particularly Rule 3A (8) and (9). But if the society/societies have not amended their bye laws, the same has to be in conformity with the said Rules by getting suitably amended; the effect of the Rule would not stand nullified or inoperable. For this purpose sub rule (9) gives the power to the Collector to delimit the constituency/constituencies of a society. Thus, once the area of operation of any society exceeds more than one village as per sub rule (8), the number of constituencies is required to be bifurcated by the Collector in exercise of his power, so as to make it equal to the total number of seats to see that effective representation is given to the members of the society for Page 27 of 74 C/SCA/1339/2018 CAV JUDGMENT giving fair representation to its members to elect their true representatives to participate in the affairs of the Society as part of the Managing Committee Members, as the society must be represented by its elected representatives in a democratic process to effectively represent in the Managing Committee which is an indispensable parameter for the democratic institutions to achieve the laudable object of Cooperative movement in the country, which is the constitutional philosophy as enshrined in Chapter XI A of the Constitution, which has been inserted by way of constitutional amendment.
22. Thus, the bye laws of any specified society under the provisions of the Co operative Societies Act cannot be permitted to prevail over the statutory Rule 3A (8) & (9) of the Rules. The moment the area of operation of any specified society exceeds one village, sub rule (8) would come into play, irrespective of the fact that whether members of such society constitute homogeneous group or heterogeneous group.
23. to 26. xxx
27. In view of the law laid down by this Court in the aforesaid cases, we have to hold that the sub rules (8) & (9) of Rule 3 A are applicable to the appellant society/Societies as the area of operation is more than one village and therefore the orders passed by the Collector for the delimitation of the constituency/constituencies cannot be said to be illegal. Further, we hold that there will be no proper representation of the voters to their respective specified societies for electing representatives of their area which would materially affect the result of the election and the impugned provisions and Rules are legally justifiable."Page 28 of 74 C/SCA/1339/2018 CAV JUDGMENT
6. Before adverting to the submissions made by the learned Advocates for the parties, it would be apposite and convenient to refer to and reproduce the relevant provisions contained in the said Act and the Election Rules for ready reference. Section 2(2) defines bye-laws as under:-
"(2) "bye-laws" means bye-laws registered under this Act and for the time being in force, and include registered amendments of such bye-laws."
7. Section 13 inter alia provides that no amendment of the bye-laws of a Society shall be valid until registered under the said Act. Section 28 pertains to the voting powers of members. The relevant part thereof reads as under:-
Section 28. Voting powers of members.-
Sub-section (1) No member of any society shall have more than one vote in its affairs:
Provided that in the case of an equality of votes the Chairman shall have a casting vote.
(2) to (7) xxx (8) The voting rights of individual members of a federal society shall be such as may be Page 29 of 74 C/SCA/1339/2018 CAV JUDGMENT regulated by the rules and by the bye-laws of the society.
8. Chapter VII pertains to the management of societies. Section 74 thereof pertains to committee, its powers and functions. Sub- section (1C) of Section 74 was substituted by the Amendment Act of 2015 w.e.f. 10.4.2015. Clause (ii) of Sub-section (1C) of Section 74 provides that the elected members of the managing committee and its office bearers shall cease to hold the office on the date of expiry of their term. As per Section 74(1E), where there are functional directors of a society, they shall also be members of the Managing Committee, however, such members shall be excluded for the purpose of counting the total number of members of the Managing Committee. The functional director means and includes a Managing Director or a Chief Executive Officer. The appointment and removal of Managing Director or Chief Executive Officer is governed by Section 76A of the Act.
9. Section 74C provides inter alia that the election of the members of committees and of the Page 30 of 74 C/SCA/1339/2018 CAV JUDGMENT officers by the Committee, of the Societies of the categories mentioned therein shall be subject to the provisions of Chapter XI-A and shall be conducted in the manner laid down by or under the Chapter VII.
10. Section 74D pertains to the appointment of custodian in certain circumstances, the relevant part thereof reads as under:-
"74D. Appointment of Custodian in certain circumstances. (1) Where in respect of any society including a society existing immediately before the commencement of the Gujarat Co operative Societies (Amendment) Act, 2015 (Guj. 12 of 2015), a new committee of management is, for any reason whatsoever, not elected before the expiry of the term of office of members of a committee of management of such society or having been elected not functioning within a period of three months (not being a committee referred to in section 80A), except for the reason of order of the competent could not start functioning, the registrar shall by an order in writing, appoint a person or a committee of persons to be the Custodian of the society for a period of one year or until a new committee of management is elected or, as the case may be, starts functioning.
(2) The Custodian shall arrange to hold election of such society within a period of one year and the Committee shall be Page 31 of 74 C/SCA/1339/2018 CAV JUDGMENT constituted before the expiration of that period."
11. Section 145A to 145Z contained in the Chapter XI pertain to the elections of committees and of the officers of the societies belonging to the categories specified in Section 74-C. Section 145U provides that notwithstanding contained in Section 96 or any other provisions of the Act, any dispute relating to an election shall be referred to the Tribunal.
12. The State Government has framed Rules called the Gujarat Cooperative Societies Rules 1965 in exercise of the powers conferred by Section 168 of the said Act for carrying out the purposes of the said Act. The State Government has also framed Rules called Gujarat Specified Cooperative Societies (Elections to Committees) Rules 1982 for conducting elections to the Committees of specified societies. Rule 3A of the Election Rules 1982 reads as under:-
"3A. Delimitation of constituencies for purpose of election. (1) In every society where there are more Page 32 of 74 C/SCA/1339/2018 CAV JUDGMENT than one constituencies, the Secretary or where there is no post of Secretary, the Chief Executive Officer of every such society shall, in the year preceding the year in which election to the Committee is scheduled to be held, prepare a provisional list of the constituencies.
(2) Such list shall describe the limits of each constituency. A copy of the provisional list shall be displayed with a notice to be signed by the Secretary or where there is no post Secretary, the Chief Executive Officer of the society on the notice board of every office or suboffice of the society. A copy of such provisional list along with the notice shall also be sent to the Registrar and to the Collector.
(3) A copy of such list along with notice shall also be sent to every member of the society by registered post.
(4) The notice referred to in subrule (2) and (3) shall clearly lay down that any objections or suggestions in respect of the provisional list may be sent by any person to the Secretary or where there is no post of Secretary, to the Chief Executive Officer of the society within a period of 15 days from the date on which the provisional list is displayed on the notice board of the office of the society.
(5) Any member of the society may bring to the notice of the society any omission or error in respect of the name or address or other particulars shown in the provisional list.
(6) Any person raising any objection or making a suggestion shall send such objection or suggestion with grounds therefor in writing within 15 days from the date on which the provisional list is displayed on the notice board of the office Page 33 of 74 C/SCA/1339/2018 CAV JUDGMENT of the society.
(7) The society shall after considering every objection, suggestion or any error in the provisional list indicated by any member under subrule (5), prepare the final list.
The final list shall be displayed on the notice board of the office or suboffice of the society and a copy of such final list shall be sent to the Registrar and also to the Collector.
(8) Where the area of operation of a society is in more than one village, the number of constituencies shall be equal to the total number of seats excluding two seats reserved under subsection (1) of section 74B. (9) Notwithstanding anything contained in these rules and the byelaws of the society, where the elections to the members of any Committee are scheduled to be held before the ending of the accounting year of the society, the delimitation of the constituencies shall be made by the Collector prior to the publication of the list of voters"
13. Rule 4 thereof pertains to the preparation of provisional list of voters, and Rule 5 pertains to the particulars to be included in provisional list of voters. The objections to the provisional list of voters could be filed under Rule 6 and final list of voters would be prepared under Rule 7. Rule 18 pertains to the nomination of candidates and Rule 19 pertains to presentation of nomination paper and Page 34 of 74 C/SCA/1339/2018 CAV JUDGMENT requirements for valid nominations. Rule 42 pertains to the voting procedure and Rule 43 pertains to the procedure for voting where there are no separate constituencies or more than one seat to be filled in one constituency.
14. Since the Bye-law 35(1)(A) of the Bye-laws framed by the respondent Union is required to be appreciated in the light of afore-stated provisions in the Act and the Rules, the same is reproduced below for ready reference:-
"ËÍ, inyamk m>Dl : -
(É) inyamk m>Dl nIce j`avel ÊÉ sWyonu> bnxe (A) s>2na s>yoijt du2 wrtI swasd m>DlIAona ÉÎ p/itini2 rhexe.
p/Tyek ivwagma> srerax p>cavn du2 m>DlInI s>QyaAe Aek p/itini2 rhexe. jema> pa>c m>D5InI v223 4{ xkxe Ae3le ke pcas m>D5I4I Ao0I Ane sa[# m>D5I 4I v2are m>D5InI s>Qya ivwagma> rhexe nih. tmam ivwago ma3e mtdan tmam maNy mtdataAo krxe. qulaxo : - mtdata kul ÉÎ mt Aapxe. jema> ivwagvar Aek Aek mt Aapvano rhexe."
SUBMISSIONS MADE BY THE LEARNED ADVOCATES FOR THE PARTIES:-
15. The learned Sr. Advocate Mr.S. I. Nanavati with learned Advocate Mr.Ramnandan Singh made following submissions in Special Civil Application No.1339 of 2018 for the petitioner Page 35 of 74 C/SCA/1339/2018 CAV JUDGMENT Kathwada Milk Producers Cooperative Society Limited:-
(i) Though by the judgement dated
24.11.2009 the Division Bench in SCA
No.10742 of 2009 had confirmed the validity of the Bye-law 35(1)(A) of the Bye-laws of the respondent Union, the Full Bench in case of Narendrabhai Mahijibhai Patel and ors. (supra) held that if the bye-law is contrary to Rule 3A(8) of the Rules, then the District Collector had to delimit the constituencies ignoring that bye-law, and therefore, the judgement dated 24.11.2009 passed by the Division Bench could not be said to be holding the field.
(ii) The decision dated 4.8.2014 of the Supreme Court in case of the respondent Union in SLP(C) No.17404 of 2014 did not have the occasion to deal with the decision of the Full Bench in case of Narendrabhai Mahijibhai Patel and ors. (supra), which has been confirmed by the Supreme Court in case of Rajkot District Cooperative Bank Ltd. Page 36 of 74 C/SCA/1339/2018 CAV JUDGMENT (supra) decided on 19.11.2014. In case of Rajkot District Cooperative Bank Ltd. (supra), the Supreme Court has also confirmed the decision of the Division Bench of this Court in case of Khanodar (Old) Milk Producers' Cooperative Society Limited (supra), which had inter alia held that one person can not cast vote for more than one seat. Therefore, bye-law 35(1)(A) is contrary to Rule 3A(8).
(iii) In case of Shri Sodvadar Seva Sahakari Mandali Limited (supra) the Division Bench of this Court was dealing with the issue of the Societies, which had heterogeneous group, whereas in the instant case, the members of the respondent Union are doing only one activity, and therefore, is having homogeneous group. Therefore, the ratio in Shri Sodvadar Seva Sahakari Mandali Limited (supra) is not applicable to the facts of the case.
(iv) Rule 3A(8) of the Rules prevails over the bye-law 35(1)(A) of the bye-laws of the Page 37 of 74 C/SCA/1339/2018 CAV JUDGMENT respondent Union, in view of the decision of the Supreme Court in case of Rajkot District Cooperative Bank Limited (supra), and therefore, one voter could not cast more than one vote. When there is conflict of judgements of two equal Benches of the Supreme Court, the judgement which deals with the subject elaborately and in detail is required to be followed by the High Court, as per the legal position settled by the Full Bench of this Court in case of Gujarat Housing Board, Ahmedabad Vs. Nagajibhai Laxmanbhai and Ors., reported in Air 1986 Gujarat 81.
(v) As one candidate can not cast vote to the candidate of another zone, the candidate of one zone also could not be permitted to contest election from the other zone where his name does not appear in the voters' list.
16. Mr.P.S. Champaneri supporting the submissions made by the learned Sr. Advocate Mr.S. I. Nanavati has made following further Page 38 of 74 C/SCA/1339/2018 CAV JUDGMENT submissions in Special Civil Applications No.1462 of 2018 and No.3617 of 2018:-
(i) The Manging Director of the respondent Union could not have forwarded the proposal for holding the election to the Collector as per the letter dated 29.1.2018, after the expiry of the term of Managing Committee of the respondent Society on 21.11.2017. In view of the provisions contained in Sub-
section (2) of Section 74D of the said Act, it was the custodian who had to make arrangement for holding the election of the Managing Committee of the respondent Union. Therefore, the Collector acting on the receipt of the proposal from the Managing Director of the respondent Union could not have processed the election programme.
(ii) The Bye-laws of the Cooperative Society is a contract between the Society and its members, whereas the right to vote and right to contest the election is a statutory right, which could be exercised only in accordance with the statutory Page 39 of 74 C/SCA/1339/2018 CAV JUDGMENT provisions. Section 28(1) of the said Act provides that no member of any Society shall have more than one vote in its affairs. The Bye-law 35(1)(A) of the Bye-laws, therefore, authorizing the member of the respondent Union to cast 16 votes for 16 constituencies is not in consonance with the provisions contained in Section 28(1) of the said Act.
(iii) The respondent Union consists of homogeneous group and the area of operation of the respondent Union is Sabarkantha District and Arvali District i.e. the entire erstwhile Sabarkantha Revenue District. The respondent Union being not a single constituency, its members can not have the right to elect all the members of Managing Committee by giving 16 votes for 16 constituencies. The impugned action of the Collector permitting to conduct the election as per the Bye-law 35(1)(A) entitling the voter to cast votes for 16 constituencies is per se illegal and contrary to the provisions contained in the said Act and Page 40 of 74 C/SCA/1339/2018 CAV JUDGMENT Rules.
17. The learned Advocate Mr.Ravi Shah for the petitioner Sisodara (Megali) Milk Producers Cooperative Society Limited in SCA No.4280 of 2018 has made following submissions:-
(i) The area of operation of the respondent Union is in more than one village, and therefore, Rule 3A(8) of the said Rules would apply, according to which the number of constituencies have to be equal to the number of seats excluding the reserved seats. In view of the bye-law 35(1)(A) of the Bye-laws of the respondent Union, there has to be one representative for 55 Milk Societies with more or less 5 societies, meaning thereby there should not be less than 50 societies or more than 60 societies in a group. Since the constituencies of the respondent Union have been divided into 16 zones, as per the explanation given below bye-law 35(1)(A), a voter can cast 16 votes for each of the constituencies. In some of the zones, the member societies have Page 41 of 74 C/SCA/1339/2018 CAV JUDGMENT delegated the names of their respective representatives to cast vote on their behalf and the same persons have also been authorized to cast vote on behalf of another member society in different zone. Hence, such persons would have authority to cast 32 votes for two societies belonging to different constituencies/zones, which is not permissible.
(ii) The zone-wise voters' list prepared by the respondent Union is dehors the bye-law 35(1)(A) as in view of the said bye-law, one voter can cast 16 votes and one vote for each seat. If one voter is permitted to represent two member societies, he would have multiple voting rights.
18. The learned Sr. Advocate Mr.S. N. Shelat appearing with the learned Advocate Mr.B. T. Rao in SCA No.3570 of 2018 for the petitioner the Kalupur Dudh Utpadak Sahakari Mandali Limited, supporting the election programme submitted as under:-
Page 42 of 74 C/SCA/1339/2018 CAV JUDGMENT
(i) The provisions of Rule 3A(8) and (9) of the said Rules of 1982 do not prohibit single member voting in different constituencies, and therefore, the bye-laws of the respondent Union could not be said to be in conflict with the provisions of Rule 3A. Unless there is a specific bar in the statute or Rules, the rights flowing from the bye-laws can not be restricted, by stretching the Rules to an extent, which is not found in the parent statute.
(ii) The controversy before the Full Bench and before the Supreme Court in case of Narendrabhai Mahijibhai Patel and ors.
Vs. State of Gujarat and Ors. (supra) was with regard to the conflict between the bye- laws of the society and the powers of the Collector to delimit the constituencies conferred under Rule 3A(9) of the said Rules. Hence, the said decisions are not applicable to the issues and questions raised in the present petition. The decision of the Division Bench in SCA Page 43 of 74 C/SCA/1339/2018 CAV JUDGMENT No.10742 of 2009 in case of Mohanpura Dudh Utpadak Sahakari Mandli Limited (supra) approving the amendment in the bye-law 35(1) (A) in question of the respondent Union has become final and the Supreme Court in SLP(C) No.17404 of 2014 had also directed to hold the election of the respondent Union, considering the said amendment in the bye- law as well as Rule 43.
(iii) Distinguishing the judgements in case of Sodvadar Seva Sahakari Mandali Limited Vs. State of Gujarat (supra) and Khanodar (Old) Milk Producers' Cooperative Society Limited Vs. State of Gujarat (supra) it was submitted that the issue of voting rights or voting pattern was not involved in the said cases.
19. The learned Advocate Mr.B. T. Rao appearing for the petitioner Ambawada Dudh Utpadak Sahakari Mandali Limited in SCA No.3499 of 2018 submitted as under -
(i) The petitioner Society, which was Page 44 of 74 C/SCA/1339/2018 CAV JUDGMENT included in Prantij Zone No.8 in the preliminary voters' list of the respondent Union published on 15.2.2018 has been placed in Talod Zone No.9 vide the order dated 27.2.2018 passed by the Deputy Collector and Election Officer without affording opportunity of hearing to the petitioner, and therefore, the Chairman of the petitioner Society should be allowed to contest the election from Prantij Zone No.8.
(ii) The Division Bench in case of
Govindbhai Prabhudas Patel Vs. Election
Officer of Sabarkantha District Cooperative Milk Producers Union Limited in SCA No.16613 of 2014 decided on 8.1.2015, has held that the person, who is qualified to contest election can contest the election from any Zone provided the proposer and the seconder should be from the Zone from where he is proposing to contest election. Hence, the Chairman of the petitioner Society be allowed to contest the election from Prantij Zone No.8 though the petitioner Society's Page 45 of 74 C/SCA/1339/2018 CAV JUDGMENT name has been included in Talod constituency.
20. The learned Additional Advocate General Mr.P.K. Jani appearing for the Collector and the Deputy Collector (Election Officer) in all the petitions has made following submissions:-
(i) The petitioners in all the petitions are the members of the respondent Union.
Out of the approximately 918 members of the respondent Union, only five or six members have filed the petitions and others have accepted the election to be held as per bye- law 35(1)(A). The petitioners being the members of the respondent Union they are bound by their own bye-laws duly approved by them as members, and registered under the said Act, as per the ratio laid down by this Court in case of Zoroastrian Cooperative Housing Society Ltd. Anr. Vs. District Registrar Cooperative Societies (Urban) and Ors., reported in 2005(3) GLH 571.
(ii) The legality of bye-law 35(1)(A) Page 46 of 74 C/SCA/1339/2018 CAV JUDGMENT having been upheld by the Division Bench in SCA No.10742 of 2009, and the said decision of the Division Bench has attained finality. None of the petitioners have made any prayer challenging the validity of the said bye-law 35(1)(A) or declaring the said bye-law to be contrary to the provisions of the said Act and the Rules. In absence of any such prayer with regard to the legality and validity of the bye-laws, more particularly bye-law 35(1)(A) it is not open for the petitioners to seek prayers, which would make the said bye-law nugatory or redundant.
(iii) If the petitioners are aggrieved by the bye-law 35(1)(A), there is a prescribed procedure contained in the Act and the Rules for modifying or repealing the bye-law. Without following the said prescribed procedure, the petitioners could not seek prayers nullifying the effect of the bye-law.
(iv) The Supreme Court in SLP(C) No.17404 of 2013 had specifically directed the Page 47 of 74 C/SCA/1339/2018 CAV JUDGMENT Collector, Sabarkantha to hold the impending election of 2014 of the respondent Union as per the bye-law 35(1)(A) and Rule 43 of the said Rules. Consequent upon the said order, the elections of the respondent Union were held in the year 2014 allowing every member to cast vote for 16 candidates contesting from 16 constituencies. For holding the elections in the year 2018 also the same principle has been followed by the Election Officer.
(v) The reliance placed by the
petitioners on the judgement of the Full
Bench in case of Narendrabhai Mahijibhai
Patel and ors. Vs. State of Gujarat and Ors. (supra) and of the Supreme Court in case of Rajkot District Cooperative Bank Ltd.(supra) are required to be appreciated and interpreted in the light of the decisions of the Division Bench in case of Mohanpura Dudh Utpadak Sahakari Mandli Limited (supra) and of Supreme Court in case of Sabarkantha District Cooperative Milk Producers' Union Page 48 of 74 C/SCA/1339/2018 CAV JUDGMENT Ltd. (supra). There is no violation of any provisions of the said Act or any of the Rules framed under the said Act.
21. Now, as could be seen from the aforementioned submissions made by the learned Advocates for the parties, and the prayers made in the petitions, none of the petitioners have challenged the legality or validity of the Bye- law 35(1)(A) of the Bye-laws framed by the respondent Union, nor have they sought declaration that the said Bye-law is in contravention or violation of any of the provisions of the said Act or the Rules, and therefore, illegal, null and void. Though in some of the petitions, a controversy is sought to be raised with regard to the voting pattern or the voting rights conferred on the members of the respondent Union as contained in the Bye-law 35(1)(A), the validity of the said Bye-law itself has not been challenged in any of the petitions. Pertinently, all the petitioner Societies are the members of the respondent Union, and have approved the said Bye-laws Page 49 of 74 C/SCA/1339/2018 CAV JUDGMENT including Bye-law 35(1)(A), framed by the respondent Union. Therefore as rightly submitted by learned Additional Advocate General Mr.Jani, all the petitioners are bound by the said Bye-laws, and the elections of the Managing Committee and Officers of the respondent Union are required to be held according to the provisions of the Act, Rules and the said registered Bye-laws only.
22. Further it is required to be noted that the said Bye-law 35(1)(A) is in existence since 2006, however, none of the members petitioners have ever sought any amendment or deletion of the said Bye-law, as per the procedure prescribed under the Act and Rules. The controversy is raised with regard to the said Bye-law only after the election programme was declared by the Election Officer on 15.2.2018. The petitioner Kathvada Milk Producers Cooperative Society Limited of SCA No.1339 of 2018, the petitioner Amodara (Prantij) Cooperative Milk Producers Society Limited of SCA No.4174 of 2018, and the petitioner, the Page 50 of 74 C/SCA/1339/2018 CAV JUDGMENT Jaliya Danti Milk Producers Cooperative Society Limited of SCA No.1462 of 2018 have sought directions inter alia against the respondent Election Officer to hold election as per Rule 3(A)(8) of the Election Rules read with Section 28 of the said Act by declaring that the voter would not be entitled to cast more than one vote as prescribed in Bye-law 35(1)(A) of the said Bye-laws, without challenging the validity of the said Bye-law, whereas the petitioner Kalupur Dudh Utpadak Sahakari Mandali Limited of SCA No.3570 of 2018 has sought directions for holding the election of the respondent Union in the line with the judgement of High Court in SCA No.13178 of 2013 and of the Supreme Court in SLP(C) No.17404 of 2014 permitting each voter to cast one vote per constituency i.e. as per Bye- law 35(1)(A) of the Bye-laws.
23. As stated herein above, the Bye-law 35(1)(A) of the Bye-laws was sought to be amended by the respondent Union in the year 2003 and the same was approved by the District Registrar as per the order dated 21.3.2006. After about three Page 51 of 74 C/SCA/1339/2018 CAV JUDGMENT years thereof, a petition being SCA No.10742 of 2009 was filed by the Mohanpura Dudh Utpadak Sahakari Mandli Limited, challenging the legality and validity of the said amendment made in the Bye-law 35(1)(A) on the ground that the concept of conferring each voter 16 voting rights for 16 constituencies was contrary to the provisions contained in the said Act and the Rules. The said petition was dismissed by the Division Bench vide order dated 24.11.2009 on the ground of delay, laches and acquiescence as also on merits. The relevant observations made by the Court are reproduced as under:-
"In our opinion challenge in the petition suffers from the vice of delay, laches and acquiescence. Section 28 of the Act deals with the voting power of the members of a Society. The respondent No.4 being a Federal Society the voting right of its members shall be governed by Subsection (8) of Section 28 of the Act and the byelaws. Rule 15 of the Rules also recognizes voting right of members of the Federal Society. In the present case, the byelaws are neither contrary to Section 28 of the Act, nor of Rule 15 of the Rules. The reliance placed on the Representative of Peoples Act is thoroughly misconceived."
24. The said order of the Division Bench remained unchallenged. Thus, the very validity Page 52 of 74 C/SCA/1339/2018 CAV JUDGMENT of the said Bye-law 35(1)(A) of the Bye-laws has been upheld by the Division Bench and the said bye-law is in force and operative since 2006 till this date. Not only that the Supreme Court in case of Sabarkantha District Cooperative Milk Producers' Union Ltd. in SLP(C) No.17404 of 2014 had also vide order dated 4.8.2014 directed to hold election of the respondent Union as per the said Bye-law 35(1)(A) keeping in view the decision of the Division Bench. Consequently, the District Collector, Sabarkantha had directed to hold election in the year 2014 in view of the said Bye-law 35(1)(A) of the Bye-laws, considering the decisions of the High Court and the Supreme Court, specifying the voting pattern in the order dated 17.9.2014, conferring right on each voter Society to cast one vote for each of the 16 constituencies. The said order and the said elections held in the year 2014 had also remained unchallenged.
25. On the expiry of the term of the Managing Committee of the respondent Union in December 2017, the election process had not started, and Page 53 of 74 C/SCA/1339/2018 CAV JUDGMENT therefore, the petition being SCA No.18163 of 2017 was filed by one Patel Bhogilal Ramanlal before this Court. The Single Bench disposed of the said petition with the consensus of the learned Advocates for the parties by passing the order on 28.12.2017 directing the respondent Union to send proposal for holding the election of its Managing Committee to the District Registrar and to the District Collector, and further directing them to carry out process of holding election within 15 days from the receipt of the said proposal. Accordingly, the Managing Director of the respondent Union submitted the proposal to the District Registrar on 29.12.2018. The Election Officer and the Deputy Collector thereafter published election programme on 15.2.2018. In the meantime, the District Registrar had appointed the Custodian vide the order dated 1.2.2018.
26. At this juncture, it would be relevant to deal with the submission made by the learned Advocate Mr.Champaneri for the petitioner with regard to forwarding of the said proposal by the Page 54 of 74 C/SCA/1339/2018 CAV JUDGMENT Managing Director. According to him, the election of Managing Committee is required to be conducted before the expiry of its term, and if for any reason, new committee of the management is not elected or is not made functional, the Custodian is required to be appointed for the respondent Union and such Custodian has to arrange to hold the election of such society within one year in view of Section 74D of the said Act. He had also submitted that elected members of the Managing Committee and its office-bearers cease to hold office on the date of expiry of their term as per Section 74C(2)
(iv), and therefore, in the instant case the Managing Director of the respondent Union could not have sent the proposal on behalf of the respondent Union for holding the election though directed by the Court. There is hardly any substance in the said submissions of the learned Advocate Mr.Champaneri. Though it is true that the elected members of the Managing Committee and its office-bearers would cease to hold office on the date of expiry of their term, in view of Section 74C(2)(iv) of the said Act, it Page 55 of 74 C/SCA/1339/2018 CAV JUDGMENT is pertinent to note that the Managing Director or the Chief Executive Officer of the specified society is appointed and removed as per Section 76A of the said Act. Their terms and conditions of services are also governed by the said provisions and not by Section 74C(2)(iv) of the said Act, as the Managing Director or the Chief Execution Officer is not elected, but appointed by the authority under the Act. Therefore, though the term of the old Managing Committee had expired and its members had ceased to hold office, the Managing Director would continue to hold his office. Under the circumstances, it could not be said by any stretch of imagination that the proposal forwarded by the Managing Director of the respondent No.5 pursuant to the order dated 28.12.2017 passed by the Single Bench was the proposal sent by the old body of the Managing Committee whose term had already expired.
27. In the instant case, the Managing Director of the respondent Union had forwarded the proposal on 29.12.2017 to the District Registrar Page 56 of 74 C/SCA/1339/2018 CAV JUDGMENT and the Collector on the basis of the constituencies constituted by the Collector for the election of 2014, in exercise of the powers conferred upon him under Rule 3A(9) of the Rules, keeping in view of the orders passed by the Division Bench and the Supreme Court at the relevant time. It further appears that pursuant to the said proposal forwarded on behalf of the respondent Union, a provisional voters' list was published on 15.2.2018, wherein the Ambawada Society was shown in Zone-8 of Prantij and the Nikodia Society was shown in Zone-9 of Taloda, which was not in consonance with the order dated 17.9.2014 passed by the Collector earlier. The respondent Collector, therefore, vide the order dated 26.2.2018 directed that the proceedings of the election be conducted as per the constituencies constituted in the said order dated 17.9.2014. Accordingly, the final voters' list was published by the Election Officer on 27.2.2018. The said member Society Ambawada Dudh Utpadak Sahakari Mandali Limited has filed SCA No.3499 of 2018 raising the grievance that the name of the said Society was included in Page 57 of 74 C/SCA/1339/2018 CAV JUDGMENT Talod Zone-9 instead of Prantij Zone-8 in the final voters' list published on 27.2.2018 without giving opportunity of hearing. It has been further prayed that the Chairman of the said Society be permitted to fill up nomination papers from Prantij Zone-8, though the petitioner Society's name was included in Talod Zone-9 in the final voters' list. The said contention shall be dealt with later on hereunder, after dealing with the main controversy raised in the present set of petitions with regard to the voting pattern or voting rights specified in Bye-law 35(1)(A) of the Bye-laws.
28. The bone of contention raised by the learned Sr. Advocate Mr.S.I. Nanavati, Mr.Ramnandan Singh and Mr.Champaneri, relying upon the decision of the Supreme Court in case of Rajkot District Cooperative Bank Ltd. Vs. State of Gujarat and Ors. (supra) is that the Bye-laws of any specified society can not be permitted to prevail over the statutory Rules, and in the instant case, Rule 3(A) of the said Rules. Page 58 of 74 C/SCA/1339/2018 CAV JUDGMENT According to them, Bye-law 35(1)(A) giving right to each voter, who is the representative of the member society, to cast one vote for each of the constituencies is not in consonance with the said Rule 3A of the said Rules as also Section 28 of the said Act. Mr.Nanavati has emphatically submitted that though the Division Bench in SCA No.10742 of 2009 had upheld the validity of the said Bye-law 35(1)(A) and the Supreme Court in SLP(C) No.17404 of 2014 had directed to hold the election of the respondent Union for the year 2014 as per the said Bye-law, the earlier decisions of the Division Bench of this Court were not brought to the notice of the said Division Bench as also of the Supreme Court in SLP(C) No.17404 of 2014. Relying upon the Full Bench decisions of the Calcutta High Court and Allahabad High Court he submitted that in case of conflict between the judgements of Apex Court rendered by coordinate Benches, the High Court should follow that judgement of the Supreme Court, which appears to lay down the law elaborately and accurately. In the instant case, runs the submissions of Mr.Nanavati the Page 59 of 74 C/SCA/1339/2018 CAV JUDGMENT decision of the Supreme Court in case of Rajkot District Cooperative Bank Ltd. Vs. State of Gujarat and Ors.(supra) has elaborately and accurately laid down the law, which should be followed by this Court for holding that if the Bye-laws of the specified society are not in conformity with the provisions of the Act and the Rules, the same can not be permitted to prevail over, and the society has to amend the Bye-laws so as to bring them in conformity with the Act and the Rules. According to him, the Bye-law 35(1)(A) of the respondent Union permitting the voter member to cast one vote for each of the constituencies being not in consonance with the spirit of Rule 3A, such Bye- law can not be permitted to be operated.
29. The said submissions of Mr.Nanavati are difficult to accept. From the bare reading of the said Rule 3A, it clearly transpires that the said Rule pertains to the delimitation of the constituencies for the purpose of election. It does not pertain to the voting pattern or voting rights of the voters i.e. representatives of the Page 60 of 74 C/SCA/1339/2018 CAV JUDGMENT member societies of the specified society. The Supreme Court in said case of Rajkot District Cooperative Bank Ltd. Vs. State of Gujarat and Ors.(supra), relied upon by Mr.Nanavati has observed that the said provision of Rule 3A is aimed at geographical i.e. territory or zone- wise bifurcation or division. Salient feature of Rule 3A is the delimitation of the constituencies, which includes all specified cooperative societies. Once the area of operation of any society is more than one village, Sub-Rule (8) of the Rule 3A would come into play and in that case, number of constituencies should be equal to total number of seats, excluding two seats reserved for the categories as provided under Section 74B of the Act. It is further observed therein inter alia that the language of Sub-Rule (9) of Rule 3A makes it clear that the Rule making authority has graced the Collector with the power to delimit the constituency/constituencies prior to the publication of the voters' list. The said power of the Collector under Sub-Rule (9) is independent and separate and could be exercised Page 61 of 74 C/SCA/1339/2018 CAV JUDGMENT by the Collector notwithstanding anything contained in the Bye-laws of the specified society. It is obligatory on the part of the specified society to bring about amendment in its registered Bye-laws in conformity with the provisions of the Rules and more particularly Rule 3A(8) and (9), and if the Society/Societies have not amended their Bye-laws in conformity with the said Rules, the effect of the Rule would not stand nullified or inoperable. The Bye-laws of any specified society can not be permitted to prevail over the statutory Rule 3A(8) and (9) of the Rules.
30. There could not be any disagreement with the said proposition of law laid down by the Supreme Court in the said case, however, it is pertinent to note that in the said case the Supreme Court was called upon to examine the issues raised and decided by the Full Bench of this Court with regard to applicability of Rule 3A to such societies which provided for single constituency in their Bye-laws though their area of operation was in more than one village, and with regard to Page 62 of 74 C/SCA/1339/2018 CAV JUDGMENT the powers of the Collector under Sub-rule (9) of the said Rule 3A. The Supreme Court was also concerned with the issue as to whether Sub-rule (8) thereof would be applicable to the societies having homogeneous groups. The decision of Division Bench upholding the validity of Bye-law 35(1)(A) of the respondent Union was not brought to the notice of the Supreme Court, and therefore, the Supreme Court in the said case had no occasion to deal with the voting pattern or voting rights of the members of the specified society. Mr.Nanavati has failed to point out as to how the voting rights specified in Bye-law 35(1)(A) of the respondent Union's Bye-laws was not in conformity with Rule 3A of the said Rules. In the instant case, as stated herein above, the Collector in exercise of his power under Sub-rule (9) of Rule 3A had already constituted sixteen constituencies vide order dated 17.9.2014. The elections were held in the year 2014 as per the said order. Following the said order of Collector constituting sixteen constituencies for sixteen seats, provisional list was published by the Election Officer on Page 63 of 74 C/SCA/1339/2018 CAV JUDGMENT 15.2.2018 for the election of 2018-2023. The order of Collector constituting the constituencies as per Rule 3A was neither challenged at the relevant time, nor challenged in the instant petitions. Hence, the issue of delimitation or constitution of the constituencies by the Collector having not been raised in the present petitions, it is presumed that the said delimitation carried out by the Collector exercising his powers under Sub-rule (9) in view of the earlier decisions of the Division Bench and the Supreme Court was in consonance with Rule 3A of the said Rules.
31. As stated earlier, the said Rule 3A of the Rules pertains to the delimitation of the constituencies only and does not pertain to the voting rights of the member societies. As such none of the provisions of the Act or Rules prohibit the specified society from framing the Bye-law permitting the voter to cast vote for each of the constituencies. Hence, as rightly submitted by the learned Sr. Advocate Mr.S. N. Shelat, Bye-law 35(1)(A) of the Bye-laws framed Page 64 of 74 C/SCA/1339/2018 CAV JUDGMENT by the respondent Union giving right to the voter i.e. the representative of the member society, to cast one vote for each constituency, could not be said to be contrary or in violation of any of the provisions of the Act or the Rules. As discussed earlier, the Division Bench of this Court in SCA No.10742 of 2009 has specifically upheld the validity of the very Bye-law 35(1)(A) of the respondent Union and the Supreme Court in SLP(C) No.17404 of 2014 had also, keeping in view the said decision of the Division Bench, directed to hold the election as per the said Bye-law 35(1)(A) in the year 2014. The said decisions being in respect of the very Bye-law 35(1)(A), it is difficult to hold that the said Bye-law is not in conformity with the Rule 3A, which basically pertains to the delimitation of the constituencies only.
32. The reliance placed by learned Advocate Mr.Champaneri on Section 28 of the said Act is also misplaced. Section 28 pertains to the voting powers of the members of the society. Sub-section (1) thereof states that no member of Page 65 of 74 C/SCA/1339/2018 CAV JUDGMENT any society shall have more than one vote in its affairs, provided that in case of equality of votes, the Chairman shall have a casting vote. Meaning thereby the said sub-section applies to the voting power of the member to be exercised during the course of the affairs of the society, which also provides that in case of equality of votes, the Chairman is empowered to cast vote. This provision has nothing to do with the voting rights of the member societies of the specified society in the election of the Managing Committee of the specified society. Sub-section (8) of Section 28, providing that the voting rights of individual members of the Federal Society are regulated by the Rules and by the Bye-laws of the Society also could not be made applicable to this case. As such the election of the Managing Committee of the specified society is subject to the provisions of Chapter XIA and has to be conducted in the manner paid down by or under the Chapter VII of the Act. The said special provisions also do not prohibit the specified society from framing the Bye-laws permitting its members to cast one vote for each Page 66 of 74 C/SCA/1339/2018 CAV JUDGMENT of the constituencies as permitted in Bye-law 35(1)(A) of the respondent Union.
33. It is also significant to note that at the time of registration of any society the Registrar has to satisfy himself that the Bye- laws of the society are not contrary to the provisions of the said Act and the Rules, before registering such society under Section 9 of the said Act. Before registering any amendment in the registered Bye-laws also the Registrar has to satisfy himself that the amendment in the Bye-laws of the society is not contrary to the Act and the Rules, as contemplated in Section 13 of the said Act. In the instant case, as stated earlier the District Registrar had approved the amendment in the Bye-law 35(1)(A) of the Bye-laws by order dated 21.3.2006, and thereafter no amendment was ever sought in the said Bye-law by any of the petitioners on the ground that it was not in consonance with the Act or the Rules. Therefore also, it does not lie in the mouth of the petitioners, who are the members of the respondent Union to say that the Page 67 of 74 C/SCA/1339/2018 CAV JUDGMENT election should not be conducted as per the said registered Bye-laws.
34. The validity of the said Bye-law 35(1)(A) having been specifically upheld by the Division Bench of this Court and the same having also been impliedly affirmed by the Supreme Court in case of Sabarkantha District Cooperative Milk Producers' Union Ltd. in SLP(C) No.17404 of 2014, no direction contrary to the said Bye-law, which even otherwise is duly registered, could be issued. The election of the Managing Committee of the respondent Union, therefore, has to be held in accordance with the provisions contained in the Act, Rules and its registered bye-laws. In that view of the matter, the Special Civil Application No.3570 of 2018 deserves to be allowed to the aforesaid extent, and the Special Civil Application No.1339 of 2018, Special Civil Application No.1462 of 2018 and Special Civil Application No.4174 of 2018 deserve to be dismissed.
35. In Special Civil Application No.3499 of 2018, the petitioner the Ambawada Dudh Utpadak Page 68 of 74 C/SCA/1339/2018 CAV JUDGMENT Sahakari Mandali Limited has sought direction against the Election Officer and Deputy Collector, Himatnagar to include the name of the petitioner Society in the final voters' list in Prantij Zone-8 or to permit the Chairman of the petitioner to fill in the nomination paper from Prantij Zone-8, though the name of the petitioner society has been included in the voters' list in Talod Zone-9. In this regard, Mr.B. T. Rao has relied upon the decision of the Division Bench of this Court in case of Govindbhai Prabhudas Patel Vs. Election Officer, Sabarkantha District Cooperative Milk Producers' Union Ltd., Special Civil Application No.16613 of 2014 decided on 8.1.2015, in which it has been held inter alia that as per Sub-rule (1) of Rule 18, any person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Act, Rules and Bye-laws and his name is entered in the list of voters. The only requirement would be that the proposer and seconder should be of the same constituency. Hence, in view of the provisions of the Act and Page 69 of 74 C/SCA/1339/2018 CAV JUDGMENT the Rules, it is always open for the petitioner Society to pass a resolution for sending the name of its candidate to stand at the election, and is open for the Election Officer to consider the nomination form of such candidate in accordance with law. In the case of the petitioner society also, it is expected that the Election Officer shall take appropriate decision in accordance with law. At this stage, no such direction as prayed for could be granted. Subject to the said observations, the petition deserves to be dismissed.
36. So far as Special Civil Application No.3617 of 2018 is concerned, it appears to have been filed by one Shaileshbhai Rambhai Patel, claiming to be the Chairman of the Jesingpur Milk Producers' Cooperative Society Limited for setting aside the order dated 27.2.2018 passed by the Election Officer, and to delete the name of the respondent No.3 Patel Sharadbhai Shivabhai from the list of voters and to include the name of the petitioner Shaileshbhai Rambhai Patel in the list of voters of Zone-13 for the Page 70 of 74 C/SCA/1339/2018 CAV JUDGMENT purpose of ensuing election of the respondent Union. It appears from the impugned order dated 27.2.2018 that the provisional voters' list was issued by the Election Officer on 15.2.2018, in which name of the respondent No.3 Sharadbhai Shivabhai was shown as the Chairman of the petitioner Society. Hence, there appears to be a dispute with regard to the Chairmanship of the said society, which could not be adjudicated upon in this petition as to who should represent the said society as the Chairman in the election of the respondent Union. There being disputed questions of facts involved in the petition, the Court is not inclined to entertain this petition. The petition, therefore, deserves to be dismissed.
37. In Special Civil Application No.4280 of 2018 filed by the petitioner Sisodara (Megali) Milk Producers Cooperative Society Limited, direction is sought to hold election on the principle of "one person one vote per constituency". It is sought to be submitted by the learned Advocate Mr.Ravi Shah for the petitioner that there are Page 71 of 74 C/SCA/1339/2018 CAV JUDGMENT some member societies, which have delegated the same persons as their respective representative, as a result thereof such person would be entitled to cast votes on behalf of two societies though situated in different constituencies. According to him, such power of multiple voting rights in multiple constituencies should not be permitted. The said submission also is without substance. It may be noted that every member society has to send the name of their representative for being included in the votes' list and such voter is entitled to vote on behalf of his member society. If such person is also member in some other society and is authorized to represent that society also, he would be entitled to vote on behalf of the other society also. It is the concerned society, which is the member of the respondent Union and not the person. Therefore, if one person is member in two societies, and if both the societies authorise him as their respective representative to cast vote on their behalf, it could not be said that the said person would have multiple voting rights. Such Page 72 of 74 C/SCA/1339/2018 CAV JUDGMENT representative or voter would be exercising the voting right of the respective member society and not in his individual capacity. As per Rule 5(2) of the said Rules of 1982, where a society is a member of specified society, the specified society has to call for the name of the delegate duly authorized to vote at an election on behalf of the affiliated society, and while communicating the name of its delegate, the affiliated society has to enclose a copy of the resolution of the society or its Committee under which the delegate is so authorized. Accordingly, the specified society has to include in the list of voters the names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. Hence, it is just possible that when a person is member of two societies, which are affiliated to the respondent Union, his name could be sent by such two societies as their delegate for the purpose of casting vote on their behalf in the election of the specified society. The Court, therefore, does not find any illegality or irregularity if the name of Page 73 of 74 C/SCA/1339/2018 CAV JUDGMENT the same person is shown as the representative of two different member societies situated in two different zones. In that view of the matter, this petition also deserves to be dismissed.
38. As an upshot of the afore-stated reasons and findings, the Special Civil Application No.1339 of 2018, the Special Civil Application No.1462 of 2018, the Special Civil Application No.4174 of 2018, the Special Civil Application No.3617 of 2018, the Special Civil Application No.3499 of 2018 and the Special Civil Application No.4280 of 2018 are dismissed. The Special Civil Application No.3570 of 2018 is allowed. It is directed that the election of the Managing Committee of the respondent Union shall be held at the earliest in accordance with the provisions of the Act, the Rules and the Bye- laws of the respondent Union. The interim order stands vacated forthwith.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 74 of 74