Gujarat High Court
Rathwa Shashikantbhai Parshottambhai vs State Of Gujarat on 12 March, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/2539/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2539 of 2018
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RATHWA SHASHIKANTBHAI PARSHOTTAMBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR VC VAGHELA(1720) for the PETITIONER(s) No. 1
MR. TIRTHRAJ PANDYA, AGP, ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP(99) for the RESPONDENT(s) No. 1,2,3,4,
MR CHIRAG B PATEL(3679) for the RESPONDENT(s) No. 5
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 6
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 12/03/2018
ORAL ORDER
1. The petitioner claiming to be an agriculturalist and member of managing committee of Chachak Group Vividh Karyakari Sahkari Mandli Ltd., has filed the present petition under Article 226 of the Constitution of India challenging the order dated 10.02.2018 (Annexure 'A') passed by the respondent No. 4 - Authorized Officer rejecting his application raising objection against the inclusion of the members of the managing committee of the respondent No. 5 Society in the voters' list for the election of APMC Bodeli.
2. The short facts relevant for the purpose of this petition are that the respondent No. 2 vide notification dated 28.12.2017 declared the Page 1 of 8 C/SCA/2539/2018 ORDER election of APMC, Bodeli. The preliminary voters' list was published on 11.01.2018 and the objections to the said list were to be filed on or before 25.01.2018. The provisional voters' list was to be published on 01.02.2018 and the objections against the said provisional list were to be filed on or before 08.02.2018. The final publication of the voters list was to be published on 10.02.2018.
3. As per the case of the petitioner, the first voters' list published on 11.01.2018, did not include the name of the members of the managing committee of the respondent No. 5 - Society, however, their names came to be included in the 2nd provisional list published on 01.02.2018. The petitioner, therefore, raised the objections before the respondent No. 4 - Authorized Officer against the inclusion of the names of the members of the respondent No. 5 - Society on the ground that the respondent No. 5 - Society was not a registered society. The respondent No. 4
- Authorized Officer after considering the objections raised by the petitioner, and the replies and documents submitted by the respondent No. 5 - Society, rejected the objections of the petitioner vide the impugned order which is under challenge in the present petition.
4. The respondent No. 5 - Society has resisted Page 2 of 8 C/SCA/2539/2018 ORDER the petition by filing affidavit-in-reply challenging the maintainability of the petition at the instance of the petitioner and further contending inter alia that the respondent No. 5
- Society was registered as per the registration certificate dated 13.09.2017 granted by the Assistant District Registrar, Cooperative Societies (Panchayat) Chhota Udepur, and on the same day, bye-laws of the society were also registered. The said registration of the respondent No. 5 - Society has not been challenged by the petitioner under the provisions contained in the Gujarat Cooperative Societies Act, 1961, and the same could not be challenged in the election proceedings held under the APMC Act.
5. The learned advocate Mr. V.C. Vaghela for the petitioner vehemently pressing into the service the provisions contained in Section 174 of the Panchayats Act, submitted that it was the Taluka Panchayat, which was delegated with the powers of Registrar of Cooperative Societies, and therefore, competent to register the cooperative society, and in the instant case, the respondent No. 6 has issued the registration certificate in favour of the respondent No. 5 - Society in contravention of the provisions contained in the Panchayats Act and the Cooperative Societies Act, which is illegal and cannot be relied upon for the purpose of Section Page 3 of 8 C/SCA/2539/2018 ORDER 11(1)(i) of the Gujarat APMC Act. Mr. Vaghela has also relied upon the correspondence and the resolution passed by the District Agricultural Produce and Irrigation Committee of the District Panchcyat to submit that the said committee had not granted any approval for the registration of the respondent No. 5 - Society, and therefore, the respondent - Authorized Officer had wrongly rejected the objections raised by the petitioner.
6. However, the learned advocate Mr. Patel appearing for the respondent No. 5 - Society challenging the very locus standi of the petitioner to file the present petition submitted that the petitioner being the member of Chachak Group Vividh Karyakari Sahkari Mandli Ltd., cannot file the petition in his individual capacity and has to speak only through the society. In this regard, he has relied upon the decision of Supreme Court in the case of Daman Singh and others versus State of Punjab and Others reported in AIR 1985 SC 973. Reliance is also placed by Mr. Patel on the judgment of Division Bench in the case of Kalubhai Ranabhai Akabari versus State of Gujarat and Others reported in 2007 (3) GLH 57, to submit that the relevant date for determining the eligibility of the persons for inclusion in the voters' list for elections of APMC is the date on which the Authorized Officer is to be communicated the Page 4 of 8 C/SCA/2539/2018 ORDER names as communicated in Sub Rule 1 of Rule 7 of APMC Rules, and in the instant case, the registration of the respondent No. 5 - Society having taken place on 13.09.2017, i.e. much prior to the publication of the notification of the election programme, and the said registration having not been challenged so far by the petitioner, the Authorized Officer has rightly rejected the objections of the petitioner.
7. In the instant case, it may be stated that the petitioner has filed the petition claiming to be an agriculturalist and the member of the managing committee of the Chachak Group Vividh Karyakari Sahkari Mandli Ltd. Though the petitioner would be a voter by virtue of his being a member of Managing Committee of the said Chachak society, Mr. Vaghela has failed to point out as to how the petitioner was entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. As rightly submitted by the learned advocate Mr. Patel, the petitioner being the member of the society, has to speak through the society and cannot challenge the action of the respondent authority in his individual capacity. As held by the Supreme Court in the case of Daman Singh and others versus State of Punjab and Others (Supra), once the person becomes a member of a cooperative society, he loses his Page 5 of 8 C/SCA/2539/2018 ORDER individuality qua the society and he has no independent rights except those given to him by the statute and the bye-laws. He must act and speak through the society or rather, the society alone can act or speak for him qua rights and duties of the society as a body.
8. It is also required to be noted that as per section 11(1)(i) of the APMC Act, eight agriculturalists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area, are required to be elected by the members of managing committee of the Primary Agricultural Credit Co-operative Societies dispensing agricultural credit in the market area. The petitioner has raised the objections against inclusion of the names of the managing committee of the respondent No. 5 - Society on the ground that the respondent No. 5 - Society was not a registered cooperative society, and therefore, the members of its managing committee were not entitled to be included in the voters' list published by the respondent No. 4 - Authorized Officer. In this regard, it is required to be noted that the respondent No. 5 has produced the copy of the registration certificate dated 13.09.2017 granted by the Assistant District Registrar, Cooperative Societies (Panchayat) Chhota Udepur under Section 9 of the Gujarat Cooperative Societies Act, 1961. The bye-laws Page 6 of 8 C/SCA/2539/2018 ORDER of the said respondent No. 5 - Society have also been registered by the said Assistant District Registrar, as per Annexure II annexed along with the affidavit-in-reply filed by the respondent No. 5. It is not in dispute that neither the said registration of the respondent No. 5 - Society nor registration of its bye-laws have been challenged by the petitioner or by any other person in accordance with the provisions contained in the Gujarat Cooperative Societies Act or under any other Act. The challenge of the said certificate of registration issued in favour of the respondent No. 5 indirectly in this petition cannot be permitted.
9. Apart from the fact that the said registration of respondent No. 5 has not been challenged by the petitioner in any proceedings nor the said certificate has been cancelled by any authority competent to do so, the inclusion or exclusion of names in the voters' list could not be said to be extraordinary circumstance warranting interference of this Court under Article 226 of the Constitution of India. The beneficial reference of the decision of Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing) reported in 2006 (1) GCD 211 (SCA No.2489 of 2005 dt. 27.4.2005), be made in this regard, in which it was held that : -
Page 7 of 8 C/SCA/2539/2018 ORDER"33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
10. The petition also involves number of disputed question of facts, which cannot be decided in the petition under Article 226 of the Constitution of India.
11. In that view of the matter, the petition being devoid of merits, is dismissed. Notice is discharged.
(BELA M. TRIVEDI, J) AMAR Page 8 of 8