Gujarat High Court
Thumthal Seva Sahakari Mandali Limited vs State Of Gujarat & 4 on 27 April, 2016
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/3267/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3267 of 2016
With
CIVIL APPLICATION NO. 3827 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3267 of 2016
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THUMTHAL SEVA SAHAKARI MANDALI LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR VC VAGHELA, ADVOCATE for the Petitioner.
MR. J.K. SHAH, AGP for the State Authorities.
MR PS CHAMPANERI, ADVOCATE for the Objector - Respondent No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4
MR. SY CHHAYA, ADVOCATE for the Applicants in CA No.3827/2016.
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 27/04/2016
ORAL ORDER
1. The Civil Application is to join the applicant as party-respondent No.6 in the main matter. The applicant has averred that he is an agriculturist and since vitally interested to see that the only eligible voters are permitted to take part in the election of the Market Committee, he is required to be joined as party-respondent in the main petition.
2. The Court however finds that since the authorized officer is represented by the Government Pleader who can defend the action of Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Apr 29 02:52:22 IST 2016 C/SCA/3267/2016 ORDER the authorized officer, the applicant, as such, is not required to be joined in the main petition as party-respondent. However, learned Advocate Mr. Chhaya is permitted to address the Court on legal issue as intervener.
3. Considering the urgency pointed out, the petition is taken up for final disposal at the notice stage with the consent of the learned advocates for the parties including Mr. Chhaya who is permitted to address the Court.
4. The challenge made in this petition filed under Article 226 of the Constitution of India is against the order dated 20.2.2016 passed by the authorized officer removing the names of the members of the Managing Committee of the petitioner society from the voters' list of agriculturists' constituency for election of the Agri. Produce Market Committee, Visnagar.
5. It appears that the respondent No.5 had raised more than one objections against the inclusion of the names of the members of the Managing Committee of the petitioner society in the voters' list for agriculturists' constituency. The authorized officer, however, ordered removal of the names of the members of the managing committee of the petitioner society on the ground that there is provision in bye- laws for election of 1/3rd members every year by rotation and nothing is produced to show that there is amendment made in the bye laws and without such amendment, managing committee of the petitioner society was formed based on the resolution passed in the annual general meeting of date 31.5.2015 and such formation of the Page 2 of 6 HC-NIC Page 2 of 6 Created On Fri Apr 29 02:52:22 IST 2016 C/SCA/3267/2016 ORDER managing committee of the petitioner is, therefore, not in consonance with the bye laws of the petitioner society.
6. Learned Advocate Mr. Vaghela for the petitioner submitted that the authorized officer though having found that the petitioner society is dispensing agricultural credit, ordered to remove the names of the members of the managing committee of the petitioner society from the voters' list on the ground which is not available in law for their removal from the voters' list. Mr. Vaghela submitted that after the amendment in the Gujarat Co-operative Societies Act,1961 ("the Act") the elections of the members of managing committee of the society are required to be held for full term of five years and 1/3rd rotation system is given go-bye. Mr. Vaghela submitted that in any case, the authorized officer has no jurisdiction to test or examine the legality or otherwise of the election of the members of the Managing Committee of the petitioner Society held in the meeting dated 31.5.2015.
7. Learned Advocate Mr. Champaneri submitted that since there is specific provision made in the bye laws for election by way of rotation of 1/3rd members every year, unless there is amendment in the bye- laws of the petitioner society, the petitioner society was required to follow the bye laws for the purpose of election. Mr. Champaneri submitted that since the petitioner society has not followed its bye laws for such purpose, it could be said that there was no election in the eye of law.
8. Mr. Chhaya who is permitted to address the Court as intervener Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Apr 29 02:52:22 IST 2016 C/SCA/3267/2016 ORDER submitted that the authorized officer has, in terms, found that the formation of the managing committee of the petitioner society was not in consonance with the bye laws of the society and, therefore, it could be said that there was no election in the eye of law. Mr. Chhaya submitted that it was only by resolution passed in the Annual General Meeting, the committee was formed and that too ignoring the provisions made in the bye laws for election by rotation of 1/3rd members of the managing committee. Mr. Chhaya therefore submitted that the authorized officer has committed no error in passing the impugned order removing names of the members of the managing committee of the petitioner society from the voters' list for agriculturists' constituency.
9. Learned A.G.P. Mr. Shah submitted that the authorized officer having considered the material presented before him found that without making amendment in the bye laws, the managing committee was formed in the meeting dated 31.5.2015 and, therefore, members of the managing committee of the petitioner society were not eligible to be included in the voters' list.
10. The Court, having heard the learned advocates for the parties, finds that the authorized officer has though found that the petitioner society is dispensing agricultural credit,however, only on the ground that the formation of the managing committee of the petitioner in its annual general meeting dated 31.5.2015 was not in consonance with the bye laws of the petitioner society, he passed the impugned order. It is settled position of law that the authorized officer is not to test or Page 4 of 6 HC-NIC Page 4 of 6 Created On Fri Apr 29 02:52:22 IST 2016 C/SCA/3267/2016 ORDER examine the legality or otherwise of the election of the members of the managing committee of a co-operative society. It is required to note that the authorized officer is to consider whether the petitioner society is dispensing agricultural credit and whether the names of the members of its managing committee sent to the authorized officer to be included in the voters' list are elected members or not. The authorized officer would not go into the aspects of legality or otherwise of the election of the members of the managing committee of the cooperative society. However, in the present case, the authorized officer has observed that the formation of the managing committee in the meeting of the society is not as per the bye-laws. Such consideration by the authorized officer is beyond his jurisdiction. The impugned order of the authorized officer is, therefore, required to be quashed and set aside.
11. The impugned order is, thus, quashed and set aside. Names of the members of the Managing Committee of the petitioner society shall continue to be included in the voters' list of agriculturists' constituency for election of Agri. Produce Market Committee, Visnagar.
12. This Court vide order dated 7.4.2016, by way of interim direction, directed the election officer to permit the members of the Managing Committee of the petitioner society to vote in the election of the Market Committee from agriculturists' constituency. This Court further directed that the votes cast by the members of the petitioner society shall be kept in a separate sealed cover and the result of the Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Apr 29 02:52:22 IST 2016 C/SCA/3267/2016 ORDER election of the agriculturists' constituency was ordered not to be declared till further order is made by this Court. Now, since the impugned order is quashed, separate sealed cover containing votes cast by the members of the managing committee of the petitioner society shall be opened and their votes shall be counted from the agriculturist constituency for election of 8 agriculturists as members of the Market Committee. After counting votes of the members of managing committee of the petitioner society, result of the election of agriculturists' constituency shall be declared. The petition is, thus, finally disposed of at the notice stage.
13. At this stage, learned Advocate Mr. Chhaya requests to suspend this order for reasonable time to enable him to carry the matter further before the higher forum. However, in the facts of the case, the request is rejected.
14. The Civil Application stands disposed of.
Direct Service Permitted.
Sd/-
(C.L.SONI, J.) anvyas Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Apr 29 02:52:22 IST 2016