Gujarat High Court
Krushnanagar (Lakhni) Dudh Utpadak ... vs State Of Gujarat & 5 on 24 August, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/13419/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13419 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KRUSHNANAGAR (LAKHNI) DUDH UTPADAK SAHAKARI MANDALI LTD &
6....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR. MIHIR JOSHI, SENIOR ADVOCATE with MR. VENUGOPAL PATEL for
MR DIPEN DESAI, ADVOCATE for the Petitioners.
MR. PRAKASH JANI ADDL. ADVOCATE GENERAL with MR.NIRAJ ASHAR,
A.G.P. For Respondent Nos.1 to 5.
MR. B.S. PATEL ADVOCATE for newly added respondent Nos. 7 and 8.
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 24/08/2015
ORAL JUDGMENT
1. By the present petition filed under Article 226 of the Page 1 of 34 HC-NIC Page 1 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT Constitution of India, the petitioners - cooperative societies have made following prayers in para 6:
"6. The petitioners therefore humbly pray that:
(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned orders dated 11.08.2015 and 12.8.2015 passed by the respondent No.4 - Election Officer annexed at Annexures - A and B respectively to this petition.
(B) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction commanding the respondent No.4 to hold elections of the Board of Directors of the respondent No.6 society as per the proposal submitted by the respondent No.6 dated 16.6.2015.
(C) Pending hearing and final disposal of the petition, the petition, the Hon'ble Court may be pleased to stay the operation, execution and implementation of the orders dated 11.08.201 and 12.08.2015 passed by the respondent No.4 - Election Officer annexed at Annexures - A and B to this petition.
(D) The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."
2. The case of the petitioners is that the respondent No. 6 - Banaskantha District Cooperative Milk Producers' Union ("the federation") is a specified society within the meaning of section 74(C) of the Gujarat Cooperative Societies Act, 1961 ("the Act") and the election of respondent No.6 is required to be held as per the provisions of the Gujarat Specified Societies Election to the Committees Rules, 1982 ("the Rules"). For such purpose, the respondent No.4 Deputy Collector, Palanpur is appointed as election officer. As per the bye-laws of respondent No. 6, more particularly bye-law No.35, the board of directors consists of 14 Directors and for change in the constitution of the board of directors, respondent No.6 in its annual general meeting held on 7.5.2015 proposed amendment of bye-law no.35 so as to bring equal representation of voters for Page 2 of 34 HC-NIC Page 2 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT each seat. Said proposed amendment in the bye-law was sent to the District Registrar for approval. However, no order till the date is passed by the District Registrar. It is further averred that the term of the elected body of respondent no.6 is to expire on 17.9.2015 and, therefore, election of the respondent No.6 is due and for the purpose of election, respondent No.6 demarcated the constituencies after following procedure as contemplated under rule 3A(1) to (7) of the Rules. Such demarcation of the constituencies was then published by the respondent No.6 on 26.5.2015. A copy of the final list of such constituencies was sent to the Collector and the proposal for election based on the final list of constituencies made by respondent no.6 was sent to the District Registrar for holding election of respondent no.6 as per the constituencies prepared by respondent No.6. However, the respondent No.4 published provisional list of voters on 12.8.2015 by considering the constituencies as per the bye laws I.e. for one seat against every taluka. Such order of the Election Officer is illegal. The petitioners have raised legal contention to the effect that respondent No.4 has got no power to proceed for holding of the election based on the constituencies provided in the bye-laws when respondent No. 6 has demarcated the constituencies after following the procedure as contemplated under rule 3A(1) to (7) of the Rules and that respondent No.4 has violated the principles of one man one vote by acting on the constituencies as per bye-laws.
3. Learned Senior Advocate Mr. Mihir Joshi appearing with learned Advocate Mr. Venugopal Patel for Mr. Dipen Desai for the petitioners submitted that the respondent No.4 Election Officer has exceeded his authority in adopting the constituencies provided in the bye-laws of respondent no. 6 while making order dated 11.8.2015 for the purpose of appointment of Additional Election Officer for different constituencies. Mr. Joshi submitted that the Election Officer is not authorized to issue the provisional list of voters based on the Page 3 of 34 HC-NIC Page 3 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT constituencies demarcated in the bye-laws as the society (federation) which is supreme authority, has passed the resolution proposing the amendment in the bye-laws to provide for equal representation to the members of the society and such resolution proposing amendment though not approved by the Registrar could be acted upon for the purpose of final demarcation of the constituencies as proposed in the amendment for ensuing election of respondent No.6 federation. Mr. Joshi submitted that irrespective of the proposed amendment in the bye-laws, the respondent No.6 is otherwise empowered to make demarcation of the constituencies for holding general election in exercise of the powers under rule 3A of the Rules, therefore, respondent no.4 election officer was required to follow the decision taken by the respondent no.6 on demarcation of the constituencies made by respondent no.6 under rule 3A(1) to (7) of the Rules especially when the Collector has not made any order under sub rule (9) of rule 3A of the Rules.
4. As against the above arguments, learned Additional Advocate General Mr. Prakash K. Jani appearing with learned Asstt. Govt. Pleader Mr. Niraj Ashar for the respondent State Authorities submitted that the constituencies as provided in the bye-laws is required to be followed for the purpose of holding general elections by the Election Officer. Mr. Jani submitted that once the bye laws of respondent No.6 has made clear provisions for talukawise constituency, the election is to be held as per such constituencies. Mr. Jani submitted that the amendment suggested by respondent No.6 in the bye laws for giving equal representation to the member societies is still not approved by the Registrar and, therefore, such amendment cannot be said tobe the part of the bye laws of respondent No.6 and, thus, cannot be acted upon for the purpose of holding election of respondent no.6. society. Mr. Mr. Jani submitted that the member societies in each Page 4 of 34 HC-NIC Page 4 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT taluka are well represented through the constituencies provided for them in the bye-laws and, therefore, it cannot be said that there is violation of the principles of one man one vote. Mr. Jani submitted that though rule 3A of the Rules is in furtherance of holding general elections of respondent no.6 as per the constituencies provided by the bye-laws and it has no independent role to play. Mr. Jani submitted that under rule 3A either demarcation of the constituencies may be done by the specified society or the Collector but the election officer has to follow the constituencies fixed by the bye-laws and he cannot act upon the different constituencies proposed by the society by amendment even if done by resolution passed unanimously.
5. Learned Advocate Mr. B.S. Patel appearing for the newly added parties submitted that the elections of the specified society which has spread over in more than one village has to be conducted as per the constituencies provided in the bye-laws and the election officer appointed by the Collector is to strictly follow the rules for the purpose of holding the election as per which in absence of any order of the Collector for demarcation of the constituencies, the electoral divisions provided by the society in the bye laws are required to be adhered to. Mr. Patel submitted that though respondent no.6 has proposed amendment in the bye laws, such amendment has got no legal efficacy for the purpose of holding election so long as the same is not approved by the Registrar. Mr. Patel submitted that rule 3A of the Rules has no independent play and is part of different stages to be followed for holding election of specified society and such rule does not give independent powers to the specified society providing for different constituencies than the constituencies laid by the bye- laws for the purpose of holding election. Mr. Patel submitted that publication of provisional voters' list could be said to be the commencement of election process and, therefore, this petition may Page 5 of 34 HC-NIC Page 5 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT not be entertained as the entertaining the petition would amount to interfering with the election process.
6. Having heard the learned advocates for the parties, it appears that the respondent no.6 a specified society has proposed amendment in its bye laws to provide for equal representation to the member societies in different constituencies and made proposal based on such proposed amendment in its bye laws, it has sent proposal to the concerned authority to hold election of its committee members. As per the present provision made by bye law 35(1), the constituencies shall be revenue taluka-wise and the Board of Directors shall consists of 19 members out of which election for 14 directors shall be by the member societies which are situated in the talukas and on the voter list of respondent no.6 federation. Thus, 14 revenue talukas are considered to be the constituencies in the bye laws of respondent NO.6. As could be seen from annexure A, page 292, against each of the constituencies, number of member societies of respondent no.6 are mentioned. In some taluka, member societies are less, whereas in other talukas, they are more in number. As submitted by the learned Senior Advocate Mr. Joshi that since the respondent no.6 federation found that there was no equal representation of the member societies for each of the constituencies, it decided to follow the principles of one man one vote and, therefore, respondent No. 6 has unanimously passed the resolution proposing amendment in the bye laws for such purpose and also exercised its power under rule 3A of the Rules by following due procedure as contemplated under rule 3A (1)to (7) of the Rules and sent final list of the constituencies with its proposal dated 17.7.2015 to the District Registrar for holding election as per such final list of the constituencies.
7. The election of specified society is governed by Chapter XI-A of Page 6 of 34 HC-NIC Page 6 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT the Act and the Rules made for such purpose. The Court finds that once revenue taluka-wise constituencies are provided in the bye laws, unless change in such constituencies is approved by the Registrar, only the constituencies as provided in the existing bye-laws are to be recognized for the purpose of holding election of the respondent no.6. As pointed out by the learned advocates, proposed amendment for change in the constituencies has still not been approved by the Registrar. Though it is true that the society is the supreme authority for its affairs but it has to act according to the provisions of the Act and the Rules and as per its bye laws. Thus, even if respondent no.6 federation has proposed change in its bye laws, till such change is approved, it has to act according to the existing provisions made in the bye laws for the constituencies for the purpose of its election. Mr. Joshi however submitted that rule 3A of the Rules gives independent powers to the specified authority for delimitation of the constituencies irrespective of the provisions made for demarcation of the constituencies in the bye laws. Mr. Joshi submitted that the procedure laid on rule 3A which is mandatorily required to be followed by the specified society for the purpose of delimitation of its constituencies for the election would suggest that even if there is provision made in the bye laws for demarcation of the constituencies for each of the seat, the specified society can make change in the existing demarcation of the constituencies and can propose to hold the election as per the delimitation of the constituencies done by the society under rule 3A of the Rules which in the present case has been done by the respondent No.6. However, it appears to the Court that what is provided in the Rules including rule 3A of the Rules is for conducting election of the specified society by taking stage-wise steps. Rule 3A cannot be read to hold that the society has got independent powers and can act differently than what is provided in its own bye laws. The Rules provide for complete procedure to be Page 7 of 34 HC-NIC Page 7 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT followed for the purpose of holding election of specified society. In rule 2(b), definition of constituency is given as per which, the constituency means an electoral division, if any, as specified in the bye-laws of the specified society. Therefore, the constituency for the purpose of election of specified society is an electoral division as specified in its bye-laws. The election has therefore to be held for the constituencies specified in the bye laws. If rule 3A is read so as to hold that the specified society has got independent power to provide for different electoral division other than what is specified in the bye laws, the definition of constituency given under the Rules will not serve the purpose for holding the election as per the Rules. Learned Additional A.G. Mr. Jani therefore rightly submitted that rule 3A is just for the purpose of making voters in the constituencies aware about the prescription of limits of each of the constituencies and about any change in the limits of the constituencies. Reading rule 3A of the Rules, it appears that it is only for describing limits of each constituency by publishing provisional list of constituencies and inviting suggestion from the voters against any error crept in such provisional list of constituencies so that the limits of each constituencies described in the provisional list could be corrected before further step is taken for publishing provisional list of the voters. Rule 3A is not at all for giving any independent power or authority to the specified society to have different electoral division or constituencies than what is specified in its bye laws. Sub rule (9) of rule 3A gives independent powers to the Collector for delimitation of the constituencies prior to the publication of the list of voters notwithstanding anything contained in the rules or the bye laws of the specified society where elections to the members of any committee are scheduled to be held before ending of the account year of the society. The Court therefore finds that as per the existing provisions made in the bye-laws for the constituencies, the election Page 8 of 34 HC-NIC Page 8 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT officer is to act and make provisional list of voters, which the election officer has done in the present case.
8. In the case of Rajkot District Cooperative Bank Limited versus State of Gujarat reported in 2014(0) AIJEL-SC-55915 = 2015 AIR SC 489 = 2014 (13) SCALE 255, The Hon'ble Supreme Court has held and observed in para 16 to 21 as under:
"16. On a careful examination of Rule 3-A (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 of the Rule 3- A 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.
17. 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.
18. Thus, when sub-rule (8) is read along with sub-rule (9) of Rule 3-A, 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 3-A of the Rules for the delimitation of the constituency in accordance with the mandate of sub rule (8) of Rule 3-A and thereafter, the process for publication of the voters' list is to be given effect to.Page 9 of 34
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19. 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 3-A, 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 bye-laws. Thus, the bye laws of any society have to be in conformity with the provisions of the Act and the Rules.
20. It is obligatory on the part of any specified society to bring about the amendment in its registered bye-laws in conformity with the provisions of the Rules and more particularly Rule 3-A (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 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 indispensible parameter for the democratic institutions to achieve the laudable object of Co- operative 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.
21. 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 3-A (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 homogenous group or heterogeneous group."
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C/SCA/13419/2015 JUDGMENT
9. Learned Senior Advocate Mr. Joshi, however, placed reliance on the interim order dated 11.3.2015 passed in Special Civil Application No. 2546 of 2015 so as to point out that the formation of taluka-wise constituency results into unequal representation as observed by the Court in para 5 of the order. Mr. Jani however submitted that such being the observations made in the interim order, it cannot be relied as law settled by the Court. Mr. Jani submitted that the principles of law finally settled for holding the election as per the constituency provided in the bye-laws is by the decision dated 27.7.2015 rendered by the Division bench in Special Civil Application No.11836 of 2015. In the said decision, the Division Bench considered bye-laws of specified society providing for constituencies for its election in the context of Rule 3A especially sub rule (8) and (9) thereof and held and observed in para 3 to 12 as under:
3. Upon hearing the learned counsel appearing for both the sides, it appears that the following positions are undisputed.
I. The Byelaw No.16.1.1 provides that the Managing Committee shall be comprising of 14 members to be elected from the President of the member of Cooperative Societies and it also provides that constituencies shall be per Taluka and one member shall be elected therefrom. It also provides that nobody will be entitled to cast more that one vote for one candidate.
II. Initially, the respondent No.3 society forwarded the proposal for the election of the members of the Managing Committee by forming constituency Talukawise for election of 14 members and one individual members from the delegates of the individual members.
III. But, the District Registrar was not satisfied with the said proposal and the District Registrar called upon the Managing Director of the respondent No.3 society to forward a fresh Page 11 of 34 HC-NIC Page 11 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT proposal by keeping equal number of proportion of voters on the basis of geographical location and then to form each constituency for each one city, total 14 cities.
4. The Managing Director of the respondent No.3 society forward the proposal as per the instructions of the District Registrar, but the respondent No.1 thereafter has not passed any formal order for delimitation of the society and published the very proposal received as submitted by the Managing Director of the respondent No.3 society and started with the process of publication of the preliminary voters' list.
5. It is under these circumstances, the present petition before this Court.
6. We may record that as per Rule 3A(8) of the Gujarat Specified Cooperative Societies (Election to Committee) Rules, 1982, (hereinafter referred to as 'the Rules') where the area of operation of the society is more than one village, the number of constituency shall be equal to total number of seats excluding the reserved seats. In the present case also, there are 14 seats and therefore, the constituency has to be 14 which has already been provided as per byelaws and for which there is no dispute.
7. As per Sub Rule 9 of Rule 3A of the aforesaid Rules, the delimitation of the constituency is to be made by the Collector prior to the publication of the list of voters.
Therefore, the constituencies shall be as prescribed in the byelaws, but within a particular constituency delimitation is to be made by the Collector.
8. At this stage, we may refer to the decision of the Apex Court in case of Rajkot District Cooperative Bank Limited Vs. State of Gujarat, wherein, the Apex Court at para No.18 observed as thus:
18. Thus, when subrule (8) is read along with subrule (9) of Rule 3A, Page 12 of 34 HC-NIC Page 12 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT where the society has the area of operation exceeding one village, even if the byelaws provide for single constituency, the seats provided by the byelaws 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 rule (9) of Rule 3A of the Rules for the delimitation of the constituency in accordance with the mandate of subrule (8) of Rule 3A and thereafter, the process for publication of the voters' list is to be given effect to.
(Emphasis Supplied)
9. It may also be recorded that similar question came up for consideration before this Court in Special Civil Application No. 11431 of 2015 in case of Gandhinagar District Cooperative Milk Producers Union Limited and Anr. v.
Returning Officer and Prant Officer Gandhinagar and Anr., decided on 24.07.2015 and this Court has observed at Para Nos.2 to 5 as under:
2. We have heard Mr.B.S.Patel, learned counsel appearing for the petitioner.
Mr.Rakesh Patel, learned AGP appears for respondent No.1 and 2. The principle contention raised on behalf of the petitioner was that the delimitation of the constituencies are not made as per the provisions of the byelaw No.19.1.1A which provides for four separate constituencies for women and eight general constituencies. It was submitted by the learned AGP that at the relevant point of time, when the District Collector came to know that byelaw No.19.1.1A has been stayed by the Registrar in the appeal preferred by one of the Member, Cooperative Societies through its President, the respondent No.1 bonafide believed that Page 13 of 34 HC-NIC Page 13 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT the byelaw prevailing prior to the amendment would remain which may give power to the Collector to delimit the constituencies and therefore the power was exercised for delimitation of the constituency and the delimitation of the constituencies is made in a manner that as far as possible as per geographical location, and proportion of number of voters is maintained in the respective constituencies.
3. However, the learned AGP Mr.Rakesh Patel under the instruction of Mr.Rakesh Vyasrespondent No.1 states that having known that the revision preferred before the Additional Registrar against the byelaw No.19.1.1A has been withdrawn and the stay is also vacated, and as the bye law No.19.1.1 has in force, constituencies may be required to be identified as per the byelaw. He submitted that earlier proposal was received by the society for election on the basis of the constituencies bifurcated as per byelaw No.19.1.1A and therefore if this Court is of the view that the constituencies are to be identified as per the byelaw, again fresh publication will be required to be made of the delimitation of the constituency and the procedure may be required to be undertaken of the preliminary voter's list and the process thereafter. He submitted that the outer limit is provided by this Court as per the order dated 06.07.2015 in Special Civil Application No.10474 of 2015, the District Collector undertook the process at the earliest.
But, if this Court is of the view that the delimitation of the constituency already made by the Collector is not in accordance with the byelaws and the Rules, the appropriate direction may be given by this Court for permitting the Page 14 of 34 HC-NIC Page 14 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT District Collector to undertake the process again so as to complete the election at the earliest.
4. Mr.Patel, learned counsel appearing for the petitioner submits that he has no objection if the fresh process is undertaken and the time bound programme is ordered by this Court.
5. In view of the above, it is observed and directed that the respondent No.1 shall withdraw the present election program within two days and thereafter within two days, he shall publish the delimitation of the constituencies as per the byelaws and the preliminary voter's list. The time to submit objections shall be granted of 15 days.
Thereafter, the voter's list shall be finalized after considering the objections and the further process of different stages of election shall be undertaken so as to complete it within six weeks from the date of publication of the final voters' list.
10. If the facts of the present case are examined in light of the above referred legal position, it appears that the byelaws expressly provides for Talukawise constituencies, whereas the proposal forwarded by the Managing Director of respondent No.3Society is not as per Talukawise constituency, but rather it is a mixture of more than one Taluka in a particular constituency which would run counter to the expressed provisions of the byelaws.
11. Mr.Patel, learned AGP and Mr.Pahwa for respondent No.3 attempted to contend that it is on account of the maintenance of equal number of voters in each constituency, the constituencies are defined which exceeds more than one Taluka and it was also submitted that the geographical location has also kept in mind and therefore it can be said that the formation of constituency would give equal representation to each of the voter. The respondent No.1 acting in bonafide Page 15 of 34 HC-NIC Page 15 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT further proceed with the election based on the proposal forwarded by the Managing Director and therefore if the proportion is maintained in each constituency, more or less in the same manner, it cannot be said as an arbitrary or in contravention to any express provision of the Rules or the byelaws.
12. In our view, the attempt cannot be countenance for the simple reason that once a particular constituency is already identified and expressly provided in the byelaws, unless it has been shown as contrary to any statutory provision of the Act or the Rules, it is to be given effect. It is within a particular constituency, delimitation may be made by the Collector. When the byelaws provided for 14 seats to be elected from general member cooperative societies without there being making any provision for each constituency within the said constituency it might stand on different footing and different consideration, but in the present case, the bye law further provides for each one seat for a constituency Talukawise, meaning thereby there will be 14 constituencies for fourteen seats and such constituency has to be Talukawise. No provisions is shown to us under the Rules or the Act which provides that by virtue of byelaw, such constituencies cannot be defined in any particular society. In any case, byelaws are not under challenge. Under the circumstances, it was obligatory on the part of the respondent No.1 to apply his mind to find out as to whether the proposal forwarded for election by providing constituencies is proper or not. As in the present case, Collector has not passed any formal order for approving the delimitation of the constituency or making delimitation of the constituency, the action as part of the Collector can be said as without following mandatory procedure. Even if the powers were to be exercised, the constituencies were required to be formed as per the byelaws and the delimitation could be made within the constituency by the Collector if required as observed earlier. As such when the objections were raised before the Page 16 of 34 HC-NIC Page 16 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT respondent No.1Collector, in light of the aforesaid legal position, he could have himself provided for the constituency but such has not happened and instead that, the objections are rejected. Hence, we find that such aspects go to the root of the matter pertaining to the formation of the constituency has not been followed, which is mandatory on the part of the District Collector as per the decision of this Court in Special Civil Application No.12067 of 2012 and allied matters dated 04.03.2013 read with the above referred decision of the Apex Court in case of Rajkot District Cooperative Bank Limited (supra). Hence, we find that impugned action on the part of the respondent No.1 at Annexure:A as well as at Annexure:B cannot be sustained in the eye of law and deserves to be quashed and set aside with the further direction to the respondent No.1 to form the constituency as per the byelaws and to further exercise the power of delimitation and to initiate the process for holding of the election at the earliest and to complete the same as early as possible.
10. In light of the above, the election officer could not be said to have committed any illegality in making the impugned order and publishing the provisional voters' list for the constituencies provided in the bye-laws. The electoral division is for grouping the voters (electors) together in a constituency as specified for the purpose of election. Within such constituencies, the concerned authority including the Collector has to take necessary steps in furtherance of holding of election and one of such stage is to notify list of constituency to describe the limits of each of the constituencies and to finalize the same by inviting the objections. However, this would not mean that the specified society shall be competent to provide altogether different constituency for which no provision is made in the bye-laws for the purpose of its election.
11. The idea behind the principle of one man one vote is to see that the same voter may not be allowed to cast the vote for a Page 17 of 34 HC-NIC Page 17 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT representative of another constituency. The constituencies whether to have equal or nearly equal voters cannot be determined ignoring their geographical situation. One man one vote principle is to secure that a voter may not be allowed to select more than one representative and, therefore, demarcation of the constituency or a ward is required to group the voters, and to send their representative from such constituency or a ward. In the case on hand, what is proposed by the amendment in the bye-laws is to divide voters in equal or nearly equal proportion in 14 constituencies. Such division of voters whether would match the geographical areas of their constituency or whether would amount to permit them to vote beyond the territorial limits of their constituency are the factors to be considered and gone into by the concerned authority while deciding on the amendment proposed in its bye-laws by the respondent No.6.
12. At this stage, reference needs to be made to a decision of the Division Bench of this Court in the case of Bhavnagar District Co- operative Bank Ltd. and Ors. Versus State of Gujarat and Ors. reported in 2006(2) G.L.H. 545 wherein the Hon'ble Division Bench has considered the question of right of member to vote in the context of membership of such voter within the revenue areas of talukas declared as constituency for the purpose of election of the specified society. The Hon'ble Division Bench has held and observed in paragraph No.8 to 11, as under:
"8. In Siddhpur Taluka Cooperative Purchase and Sales Union & Ors. (supra), under the bifurcation made by the Revenue Department of the State Government, a new District Patan was created carving out some villages from Mehsana District. The State Government also excluded some of the villages forming part of Siddhpur Revenue Taluka and included them in newly formed Unjha Taluka. As a result of this bifurcation, 27 primary societies affiliated to Siddhpur Taluka Cooperative Society fell within the territorial area of Unjha Taluka. The Election Officer-cum-Prant Officer of Patan Taluka issued two election programmes for completing the process of Page 18 of 34 HC-NIC Page 18 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT election separately for Siddhpur and Patan Taluka Cooperative Sale & Purchase Union Limited. The election programme commenced on December 21, 2001 in the case of Siddhpur and on December 11, 2001 in the case of Patan Taluka Cooperative Unions with the preparation of provisional Voters' Lists. The election was over with declaration of result on January 21, 2002 for Patan Cooperative Union and was to end on February 4, 2002 for Siddhpur Cooperative Union. The Taluka Sale and Purchase Cooperative Unions at Siddhpur and Patan are specified cooperative societies under Section 74C of the Act and the elections to these cooperative societies were required to be held in accordance with the provisions contained in Sections 145A to 145Y under Chapter XIA of the Act and the Rules. The action taken by the Election Officer in excluding from the Voters' List 27 member cooperative societies out of total 65 member cooperative societies, which were affiliated to the Siddhpur Taluka Specified Cooperative Society, was challenged before the High Court in the writ petition filed under Article 226 of the Constitution. It was argued on behalf of the petitioners that merely on change of revenue areas of Patan and Siddhpur Talukas, the membership of the Federal Societies in those Talukas would not change unless the societies themselves amend their bye-laws under Section 13 of the Act and, therefore, 27 member cooperative societies, which were affiliated to Siddhpur Taluka Specified Cooperative Society could not have been excluded from the Voters' List. It was maintained before the Division Bench that 'Siddhpur Taluka' as used in the bye-laws should mean 'Siddhpur Taluka' as it existed prior to the year 1997, i.e. before areas of Taluka were changed and some parts of the Village with primary societies therein were excluded and, therefore, the names of the societies could not have been excluded from the Voters' List by the Election Officer. After surveying the scheme of the Act and the Rules, the Division Bench of this High Court has held in paragraphs 15, 17, 18 and 19 of the reported decision as under:
"15. Having thus briefly surveyed the scheme of the Act on the provisions of the Act and the Rules mentioned above, what we discover is that the structure of the cooperative societies from State level down to Taluka level is based on the revenue areas. A District and Taluka cooperative society is required to have Page 19 of 34 HC-NIC Page 19 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT its membership within the District and Taluka. Elections to societies, federal or otherwise, are required to be conducted by the District Collector on the basis of the revenue areas of Taluka or District concerned. It is, therefore, not possible to accept the contention advanced on behalf of the petitioners that revenue area of Taluka or District has no relationship with the holding of elections to cooperative society of District or Taluka level. It is true that in the Gujarat Act, there are no parallel provisions as to be found in Section 18C of the Maharashtra Act to take care of the change in structure of cooperative societies in the event of change of area of Taluka or District. But for that reason alone, it cannot be held that under the Gujarat Act and the Rules framed thereunder, regardless of the change of the area of Taluka or District and without amending its bye-laws, a cooperative society of primary level can send its members for vote or election to a federal society at Taluka level when such societies do not fall within the revenue area of that Taluka. In the absence of a provision analogous to Section 18C of the Maharashtra Act, to enable its members to exercise right of vote and contest from primary societies to federal society, it is incumbent on the society to amend its bye-laws to restrict its election to the area of Taluka or District in accordance with Sec.13 of the Act. The Registrar can also invoke its authority for effecting corresponding change in the bye-laws under Sec.14 of the Act to restrict election to members within the Taluka and District. There is great force in the submission made on behalf of the respondents that the right of a member to vote or contest as member of a primary society for election to federal society is to be regulated by the concerned bye-laws of the federal society and if the bye-laws restrict the membership to affiliated societies which fall within the Taluka, societies which fall outside the Taluka cannot claim right of vote and contest through their members or delegates. In this respect bye-law no.7(1) of Siddhpur Taluka Federal Cooperative Society and Patan Taluka Federal Cooperative Society are required to be seen, the copies of which were passed on to us in the course of hearing. Bye-law No.7(1) in both the Taluka level federal societies at Patan and Siddhpur prescribe eligibility qualification for Page 20 of 34 HC-NIC Page 20 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT a member to be an individual or society existing and operating within the Taluka concerned. If that is the position of the bye-law, any member society or individual, who is not within the Taluka, merely by continuance of its membership on the register with primary society can claim no right to participate in election to the federal societies.
17. After examining the scheme of the Act and the relevant bye-laws, the contention advanced on behalf of the petitioners, although attractive, is not acceptable. As we have stated above, the qualification, constitution and structure of the societies from State level down to Taluka level are based on the territorial revenue areas of District and Taluka. The Collector who is the Revenue Head of the District is empowered to hold the elections and his jurisdiction is limited to the District. Similarly, the Officers and Authorities on whom powers are conferred by the Collector for conducting elections have also territorial jurisdiction restricted to Talukas in which they are exercising the powers on behalf of the Collector. It is rightly pointed out on behalf of the respondents that if 27 primary cooperative societies, which no longer form part of Siddhpur Taluka and may seek affiliation to Unjha Taluka Federal Society, are allowed to vote and contest for election to Siddhpur Taluka, an imbalance would be created, adversely affecting the Federal Societies now falling in Unjha Taluka.
18. Keeping in view the envisaged structure of the Federal Societies in the Act, elections to them are required to be held only on the basis of existing revenue areas. It is also argued on behalf of the petitioners that merely by change of territorial area of Talukas, membership of primary societies or federal society would not automatically cease under any provision of the Act. It is also submitted that the area of operation and business activities of a federal society has no direct connection with the revenue areas of a Taluka or District. In this respect, it is further contended that rights of individuals and societies as members of primary and federal societies cannot be adversely Page 21 of 34 HC-NIC Page 21 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT affected contrary to their rights provided in the bye-laws only because of change of territorial area of the Talukas under the Bombay Land Revenue Code.
19. On the last argument, we may clarify that a member validly admitted to a primary or federal society has several rights qua member. By virtue of membership or as a share holder, he has a right to get advantage of his membership in the trade and business of the society. He has also other rights as member to have business transactions with the society. But in our considered opinion, his rights in society qua member to vote and contest are dependent upon his being a member (individual or society) residing or having its operations within a particular territorial jurisdiction of Revenue Taluka. If a society as a member or an individual as member ceases to belong to a Revenue Taluka, they cannot claim right to vote or contest as member of that society, in election of Federal Society of that Taluka. The bye-law No.7(1) of Taluka Federal Society have to be applied on the situation obtaining on the date of election. The contention advanced on behalf of the petitioners cannot be accepted that the word "Siddhpur Taluka" mentioned therein should be read to mean "Siddhpur Taluka" as it existed on the date of framing of bye-law No.7(1) and prior to delimitation of Taluka in the year 1997. In our opinion, such a construction and interpretation of the provisions of the Act and the bye-laws would be destructive of the structure of cooperative societies based on revenue areas from apex down to district and taluka levels. Such interpretation will also adversely affect the elections to the federal society of other Talukas like Unjha within whose territorial area now the 27 cooperative societies fall. In the absence of an analogous provision as to be found in Maharashtra Act, on delimitation or change of area of Revenue Talukas, it is incumbent on the concerned societies to amend their bye-laws or for the Registrar to take suitable corrective or coercive action under Section 14."
9. A perusal of the abovereferredto observations made by the Division Bench of this Court makes it Page 22 of 34 HC-NIC Page 22 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT evident that the structure of the cooperative societies from State level down to Taluka level is based on the revenue areas. A District and Taluka Cooperative Society is required to have its membership within the District & Taluka. The elections to the societies, federal or otherwise, are required to be conducted by the District Collector on the basis of the revenue areas of Taluka or District concerned. While interpreting the provisions of Sections 4 and 6 of the Cooperative Societies Act, 1912, the Supreme Court in Apex Cooperative Bank of Urban Bank of Maharashtra and Goa Limited vs. Maharashtra State Cooperative Bank Limited, (2003) 11 SCC 66, has held that: "in order to give societies a corporate existence without resort to the Companies Act, the Cooperative Societies Act, 1912 was enacted. Sections 4 and 6 thereof show that the Act essentially dealt with societies whose members were residing in the same town or village or group of villages or whose members were from the same tribe, class, caste or occupation. The object of the society had to be the promotion of interest of its members. This shows that the Cooperative Societies Act, 1912 was enacted for local societies."
The abovequoted principles would be applicable to the provisions of Section 6 of the Act which, inter alia, provide that no society with unlimited liability shall be registered unless all the persons forming the society reside in the same town or village or in the same group of villages. Therefore, it is clear that the structure of cooperative societies from the State level to Taluka level is based on the revenue areas. Under the circumstances, it is not possible for this Court to accept the contention advanced on behalf of the petitioners that the revenue areas of Taluka and District have no relationships with the holding of elections to cooperative society of District or Taluka level. Rule 4 of the Rules provides preparation of provisional list constituency wise as provided in the bye-laws of the societies. It is not possible for this Court to hold that regardless of the change of the area of Taluka or District and without amending its bye-laws, a cooperative society of primary level can send its members for vote or election to a federal society at Taluka Level when such societies do not fall within the revenue area of that Taluka. A member validly admitted to a primary or federal society has several right qua Page 23 of 34 HC-NIC Page 23 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT member. By virtue of membership or as a shareholder, he has a right to get advantage of his membership in the trade and business of the society. He has also other rights as member to have business transactions with the society. However, his rights in society qua member to vote and contest are dependent upon his being a member (individual or society) residing or having its operations within a particular territorial jurisdiction of Revenue Taluka. If a society as a member or an individual as a member ceases to belong to a Revenue Taluka, it/he cannot claim right to vote or contest as member of that society in election of Federal Society of that Taluka.
10. The contention that in view of the provisions of Section 28(3) of the Act, the names of the societies situate within Savarkundla Revenue Taluk1a could not have been excluded, has no merits. The provisions of Section 28 subsection (3) of the Act will have to be read subject to the provisions of the Rules. Section 28(3) of the Act provides that a society which has invested any part of its funds in the shares of another society, may appoint one of its members to vote on its behalf in the affairs of that society, and accordingly such member shall have the right to vote on behalf of the first society. However, there is no manner of doubt that the right to vote will have to be determined on the basis of the provisions of the Rules and as the primary cooperative societies situate within Savarkundla Revenue Taluka were not the members of the Specified Society as on March 31, 2005 in terms of Rule 4(1) of the Rules, they have no right to vote at the elections to the committees of the Specified Society.
11. The plea that no cessation of the membership of the primary cooperative societies situate within Savarkundla Revenue Taluka has taken place in terms of Section 26 of the Act and, therefore, those societies could not have been prevented from exercising voting powers as conferred on them by Section 28 of the Act, also cannot be accepted. It is nobody's case nor the Election Officer has held that because primary cooperative societies situate within Savarkundla Revenue Taluka are not entitled to vote in the election to the Managing Committee of the Specified Society, they have ceased to be members of the Specified Society. As averred by the petitioners in the petitions, the primary societies situate within Savarkundla Revenue Taluka which are Page 24 of 34 HC-NIC Page 24 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT members of the specified society have continued to exercise other rights available to them as members and enjoyed the benefits. However, right to vote at the election to the Managing Committee of the specified society is not governed by contract between the specified society and its members, but is governed by statutory Rules of 1982 and as provided in Rule 4(1) of the Rules, only those persons who are members of the specified society on the date of drawing up the accounts of the year immediately preceding the year in which election is due, are entitled to be included in the provisional list. The record shows that the petitioner No.1 in Special Civil Application No.5753 of 2006, i.e. Bhavnagar District Cooperative Bank Limited, itself had implemented the decision of the Division Bench of this Court in Siddhpur Taluka Cooperative Purchase & Sales Union & Ors. (supra), and, therefore, the amendment of the bye-laws was moved to enable the cooperative societies situate within Savarkundla Revenue Taluka to exercise the right of voting at the election to the committee of the specified society. It is not the case of the petitioners in Special Civil Application No.5753 of 2006, i.e. Bhavnagar District Cooperative Bank Limited, that the amendment made of the bye-laws pursuant to the decision rendered in Siddhpur Taluka Cooperative Purchase & Sales Union & Ors. (supra), was illegal or contrary to the provisions of the Act or misconceived nor the record shows that any application was made by the petitioners in Special Civil Application No.5753 of 2006 to any authority to cancel the amendment made of the bye-laws, which were approved in the General Meeting of the Specified Society held on October 26, 2005 nor the record shows that another amendment of the bye-laws was moved by the Specified Society to restore the position prevailing prior to the resolution dated October 26, 2005 passed in its general meeting of the Board after the registration of the amendment of the bye-laws by the Registrar of the Cooperative Societies. It is well settled proposition of law that the bye-laws framed by a cooperative society as amended from time to time, are binding on the society and its members and neither the society nor its members can be permitted to act contrary to the bye-laws adopted by the society. In this case, the bye-laws of the Specified Society as amended by it in its General Board Meeting dated October 26, 2005 are in force as on today and the reliefs claimed by the specified society and its members, which are Page 25 of 34 HC-NIC Page 25 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT contrary to the bye-laws, cannot be granted. The conduct of the petitioners in Special Civil Application No.5753 of 2006 is such, which disentitles them from claiming the reliefs prayed for in the petition. On bifurcation of Districts and Talukas, the cooperative societies situate within Taluka cease to be members having rights to vote or contest as member of that society in election of the Specified Society. Therefore, the bye-laws were amended by the Specified Society, which came into force with effect from October 26, 2005. The primary cooperative societies situate in Savarkundla Revenue Taluka were not the members of Bhavnagar District Cooperative Bank Limited, which is a Federal Society for the purpose of claiming right to vote or contest as member of that society as on March 31, 2005 and, therefore, the decision taken by the Election Officer to exclude their names from the Voters' List, cannot be regarded as illegal so as to warrant interference of this Court in the instant petitions filed under Article 226 of the Constitution."
13. Reference is also required to be made to the decision of this Court in the case of ANTAKAMPA MILK PRODUCERS COOPERATIVE SOCIETY LIMITED Versus SABARKANTHA DISTRICT COOPERATIVE MILK PRODUCERS reported in 2004(1) G.L.R. 310 where the Court, in the context of the Rules for holding election of a specified society, has held and observed in para 9 to 15, as under:
"9. The aforesaid takes me to examine the provisions of other part of byelaw 35(1) so far as it relates to giving representation to more than one person for each constituency. The Rule 3A(8) which is relevant reads as under;
"3A(8) Where the area of operation of a society in more than one village, the number of constituencies will be equal to the total number of seats excluding two seats reserved under subsection (1) of section 74-B."
Plain and simple reading of Sub-rule (8) of Rule 3A shows that the number of constituencies has to be equal to the total number of seats excluding two seats reserved under subsection (1) of Section 74B. Section 74B provides for co-option of reserved category which is not relevant in the present group of petitions. However, the language used in sub-rule (8) of Rule 3A makes it clear that as a consequence of Sub.rule (8) there will be one seat for one constituency. If one constituency provides for more Page 26 of 34 HC-NIC Page 26 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT one seat the same would not be in conformity with the provisions of Sub.rule(8). Similarly, if for each constituency the seat is provided for not more than one it may be in conformity with subrule(8) of Rule 3A.
10. Keeping in view the aforesaid interpretation on Rule 3A(8), if the byelaw 35(1)(A) is examined, it is apparent that for constituency of Malpur, Meghraj taluka, Bhiloda, Khedbrahma and other constituencies representatives are provided of seats more than one though the constituency is one in each case. Therefore, in my view when the statutory rules provide seat shall not be more than one for each constituency, the byelaw would not be in conformity and would stand in contravention to subrule (8) of Rule 3A and hence such byelaws can not be maintained nor can be allowed to operate. It is well settled that the statutory rules shall march over operation of byelaws and no byelaw can be allowed to be maintained on the face of statutory rules. When the court has to give effect between the byelaws and the statutory rules the court will give effect to statutory rules and not the byelaws if such byelwas are in conflict with rules. If the byelaws are in conflict or are nullifying the effect of statutory rules such byelaws deserve to be ignored for the purpose of properly enforcing the statutory rules. Therefore, if the Sangh is desirous to hold the election of the members managing committee as per byelaw 35(1)(A) by providing seats for more than one person for each constituency, such can not be permitted. As such, it would be ultimately on the part of respondent No.1-Sangh to amend the byelaws to make it in conformity with Rule 3A(8) of the Rules. The aforesaid is without prejudice to the rights and contentions of the petitioner-respondent No.1 Sangh in SCA No.6524/03. In case this court finds that Rule 3A(8) is unconstitutional or void matter would be different but till then the rule should be allowed to operate and merely because challenge is made to the constitutional validity of the rule, the effect and enforceability of the rule can neither be nullified diluted.
11. In view of the aforesaid discussion and observations qua the validity or Byelaw 35(1)(A) matter will have to be considered for the purpose of ordering the election of the members of the managing committee. There is no dispute on the point that the election has become due. It may be that in the past the election might have been held on the basis of byelaw 35(1)(A). However, it is not even the case of the respondent No.1 sangh that the validity of Byelaw 35(1)(A) was examined by this court or by any competent forum known to law and it has stood by the said test. When this court in view of the aforesaid observations has found that the Byelaw 35(1)(A) so far as giving representation to more than one person in each constituency is illegal and when this court has found that the byelaw providing induction by cooption of three women representatives in the members of the managing committee is illegal, the election for the members of the managing committee of the respondent No.1-Sangh should be held as per the provisions of law Page 27 of 34 HC-NIC Page 27 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT and the byelaw to that extent as found to be illegal will have to be ignored. It may be for the respondent No.1 sangh at its general body meeting to consider the matter for amending the byelaws to make in conformity with the provisions of Section 74C(3) of the Act or in conformity with Rule 3A(8) of the Rules, but merely because the amendment is not carried out or that the general body of the sangh has not considered positively, the election of the specified society like the respondent No.1 can not be allowed to be in dormant or in any event can not be stalled further. With a view to see that the efforts of stalling of election would not result into benefiting those who have lost the mandate of voters the provisions of section 74D are enacted by the legislature. Therefore, proper care is required to be taken to see that in any case before the expiry of the period of six months from the date on which the election becomes due, which is in the present case upto 24.1.04, the election of the members of the Managing Committee is held and not only held but newly elected body is allowed to assume the office and in case if for one reason or the other the elected body is not permitted to assume the office or the elections is not held, in that case, the present managing committee has to go and custodian should be appointed after the expiry of six months, i.e. after 24.1.2004. Equally, the court would see to it and ensure that the elected representatives of the voters are allowed to resume the office and to function in accordance with law because as observed earlier the election has already become due and the election should be held in time. It is undisputed position that the election has become due and therefore the election as observed earlier can not be stalled until the byelaws are amended by the general body of the society. Further, as observed earlier the statutory provisions of the Act and Rules would not operate over any byelaws. Therefore, the election of respondent No.1-Sangh deserves to be ordered keeping in view the effect of statutory provisions and by maintaining the byelaws only to the extent it does not operate in conflict with the statutory provisions of the Act or Rules, as the case may be. Consequently, the net effect of earlier observations would be that byelaw 35(1) so far as it provides for co-option of three women representatives as in the members of the Managing Committee can not be given effect and in the same manner byelaw 35(1)(A) so far as it relates for providing representation of more than one member for each constituency also can not be given effect.
12. Mr.Mehta as well as Mr.Patel for respondent No.1 and the petitioner respectively, as observed earlier, have submitted that the election can be held as per 13 zonewise divisions which is placed on record. I am afraid such contention can be accepted at this stage because the byelaw do not provide for such zonewise division. Ultimately, it will be for the respondent No.1 to amend the byelaws accordingly and if the byelaws are accordingly amended the matter would be considered for the purpose of holding the elections subsequently. At this stage, since the byelaws are not amended I am not inclined to accept the request of Mr.Mehta as well as Page 28 of 34 HC-NIC Page 28 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT Mr.Patel to order for holding of election as per zonewise constituency.
13. The submission of Mr.Patel on behalf of petitioner so far as it relates to giving representation to Milk Cooperative Societies of Vadali, Talod and Dhansura are concerned, prior to formation of independent revenue taluias, as such, it has been submitted by Mr.Mehta that for the societies situated in new revenue talukas of Vadali, Talod and Dhansura were given representation in the concerned constituencies And therefore as such those societies which are member cooperative societies of respondent No.1 will have right to vote and to participate at the election. Under the circumstances, when there is already representation of such cooperative societies for which the grievance is voiced by the petitioner in respective constituency on the basis of taluka which existed prior to formation of these three talukas, until the byelaws are amended by the society of forming independent constituencies of newly formed revenue talukas, namely, Vadali, Talod and Dhansura, it can not be permitted that there should be separate constituency for each taluka. Byelaw 35(1)(A) provides for various constituencies and there are seven divisions. Therefore, it can not be said that it must be on the basis of new revenue talukas formed. It may be that at the relevant point of time when the byelaws were framed the divisions or constituencies might have been formed keeping in view the area of revenue taluka but that does not mean that if the new revenue taluka is formed or constituted it would be obligatory on the part of the Sangh to independently form the constituency nor can it be considered as one of the valid grounds for holding election which has become due by forming separate constituency of Vadali, Talod and Dhansura. As observed earlier, since such cooperative societies are already given representation in the constituency which is made divisionwise, no serious prejudice will be caused if the election is ordered to be held constituencywise as per byelaw 35 keeping the representation as in existence.
14. Mr.Mehta made an attempt to submit that in certain areas, division or constituency there are more number of voters, namely, more number of milk cooperative societies and the society is getting more milk from such area and therefore they can be given representation. I am afraid such contention can be accepted on the face of provisions of Rule 3A(8) of the Rules. As observed earlier, it will be for the society to frame the byelaws or to amend the byelaws for formation of constituencies and the considerations may be various including that may be revenue taluka, quantity of milk etc but in any case once the constituency is formed it can not have representation except one seat as per the provisions of Sub-rule (8) of Rule 3A and therefore until the society decides to form independent or separate constituency amending the byelaws, the election can not be stalled nor can be ordered to be held on the basis of quantity of milk. As observed earlier, it is the say of the respondent No.1 that the matter was placed before the general body of the society and the general body has Page 29 of 34 HC-NIC Page 29 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT deferred the question of making amendment in the byelaws and therefore as observed earlier until the general body takes decision for amendment of byelwas or otherwise, the election of the respondent No.1 society can not be put in standstill position or can not be stalled further more particularly because period of two months has already passed after the expiry of statutory term of three years on 25.7.03. As such an opportunity was given by this court as per order dated 28.3.03 to the general body of the respondent No.1 society to consider the matte for amendment in the byelaws. However, the ground may be justifiable or otherwise, but the fact remains that the byelaws are not amended by the general body of the society. Even the resolution is not passed by the general body of the society for amendment of byelaws making it in conformity with the provisions of section 74C(3) and Rule 3A(8) of the Rules.
15. Mr.Patel made an attempt to submit that since the total number of vacancies in the managing committee are 13, it can not be reduced to 7 and the Collector has power under Rule 3A(9) for delimiting the constituency and therefore he submitted that such discretion or power may be left to the Collector. I am afraid such contention can be accepted because the delimitation of the constituency can be read as formation of a constituency. Formation of constituencies is provided as per byelaws and therefore if read accordingly the power of delimitation would operate to the extent of identifying such constituency and inclusion of voters in such constituency and in any case subrule (9) of Rule 3A is for giving effect to or to have overriding effect over byelaws providing for time schedule of delimitation of constituency and it can not be read as authorising the collector to independently form the constituency which are otherwise not provided under the byelaws and therefore such contention is not accepted."
14. Whether there will be equal and proportionate representation in each constituency or not is not to be considered at this stage. If there is an amendment proposed for proportionate representation for each constituency, on its approval by the competent authority like the Registrar, same could be followed but what is required to be considered presently is as to whether the election which is being held is in consonance with the rules and the provisions made in the bye- laws of the specified society or not.
15. In fact, once step towards holding of the election is taken under the rules by publishing provisional voters' list by the election officer for the specified society, it could be said to be an intermediate stage Page 30 of 34 HC-NIC Page 30 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT in the election process and, therefore, the petitioners who are voters of respondent no.6 federation, cannot be permitted to invoke the writ jurisdiction at this stage. In the case of Shri Sant Sadguru Janardan Swami (moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another versus State of Maharashtra and others reported in (2001) 8 SCC 509, the Hon'ble Supreme Court had an occasion to consider the Maharashtra Specified Cooperative Societies Election to Committees Rules, 1971 which are almost para-materia to the Rules under which the election of respondent No.6 is to be held. The Hon'ble Supreme Court has held and observed in paragraph 7 to 13 as under:
"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 Page 31 of 34 HC-NIC Page 31 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT 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) Maharashtra Law Journal, 1052. However, in Karbhari Maruti Agawan and Ors. vs. State of Maharashtra and Ors. 1994 (vol 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 is 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.
8. It was then urged that the tribunal constituted under the Act has no power to go behind the preparation of the electoral roll and, therefore, the writ petition is maintainable.Learned counsel also strongly relied upon the decisions in the case of Bar Council of India and Ors. vs. Surjeet Singh and Ramchandra Ganpat Shinde vs. State of Maharashtra . Learned counsel also referred to Section 100 of Representation of Peoples Act and a decision in the case of Shri Shreewant Kumar Choudhary vs. Shri Baidyanath Panjiar. In sum and substance, the argument is that since the breach of rule in preparation of the electoral roll cannot be questioned in an election petition before the election tribunal, therefore, the writ petition challenging the preparation of the electoral roll could not have been dismissed on the ground that the appellant had an alternative remedy of filing an election petition. In this regard, it is relevant to notice Rule 81 of the Rules which provides for grounds for declaring election to be void. The relevant portion of the Rule runs as under:
81. Grounds for declaring election to be void.-
(d) (iv) by any non-compliance with the provisions of the Act or any rules made thereunder, the Commissioner shall declare the election of the returned candidate to be void.
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 is part Page 32 of 34 HC-NIC Page 32 of 34 Created On Thu Aug 27 01:26:43 IST 2015 C/SCA/13419/2015 JUDGMENT 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.
10. In the case of Bar Council of India & Ors. vs. Surjeet Singh,Untwalia,J.speaking for the Court observed thus:
"12. There is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of Delhi Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of Rule 34 covers challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rule ultra vires and invalid."
11. In the aforesaid case, this Court held that a writ petition under Article 226 of the Constitution should not be rejected on account of an alternative remedy by way of election petition where, firstly, the challenge is not a ground under the Act or Rules for filing an election petition and, secondly, where the validity of a rule is challenged being ultra vires and invalid. It is true that a tribunal being a creature of an Act or the Rules has a limited jurisdiction and it is not open to a tribunal to decide the validity of the Act and the Rules. But, that is not the case here and, therefore, the decision in the case of Bar Council of India & Ors. vs. Surjeet Singh & Ors. (supra) is of no help to the case of the appellant. In the case of Ramchandra Ganpat Shinde & Anr vs. State of Maharashtra & Ors. (supra), the parties to a writ petition obtained a collusive order by applying fraud on the court and such an order was made basis of the election. In that context, it was held that so long as the order of the High Court continues, the tribunal would be bound by that order of the High Court and, therefore, the writ petition was maintainable and the same cannot be thrown out on the ground of an alternative remedy. Again, that is not the case of the appellant and, therefore, the same is distinguishable. In Shri Shreewant Kumar Choudhary vs. Shri Baidyanath Panjiar (supra), it was held that it was not open to the tribunal to go behind the entry in an electoral roll. This was in the context of the provisions of Representation of Peoples Act, 1950 and 1951. It may be borne in mind that there is a distinction between the scheme of the provisions of the Representation of Peoples Act, 1950 and the Representation of Peoples Act, 1951. The Representation of Peoples Act, 1950 provides for the delimitation of constituencies and allocation of seats for purposes of election to, the House of the People and the Legislatures of States and preparation of the electoral roll, whereas, Representation of Peoples Act, 1951 provides for conduct of election.
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Under Section 100 of the Representation of Peoples Act, 1951 one of the grounds amongst other is an election can be challenged where there is non-compliance of the provisions of the Constitution or of the said Act and the rules or orders made thereunder meaning thereby that breach of the Representation of Peoples Act, 1950 cannot be called in question in an election petition filed under 1951 Act. In that view of the matter, the decision replied upon by the appellant is distinguishable.
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.
13. In that view of the matter, we are in agreement with the view taken by the High Court that the appellant having an alternative remedy, the writ petition deserved dismissal."
16. In light of the above, and for the reasons stated above, the petition deserves to be rejected. Hence rejected.
Sd/-
(C.L.SONI, J.) anvyas Page 34 of 34 HC-NIC Page 34 of 34 Created On Thu Aug 27 01:26:43 IST 2015