Gujarat High Court
Sangramsinh Naranbhai Rathva vs State Of Gujarat & 3 on 5 November, 2015
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/18504/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18504 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 to see No
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SANGRAMSINH NARANBHAI RATHVA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PS CHAMPANERI, ADVOCATE for the Petitioner(s) No. 1
MR PK JANI, ADDL. AG WITH MR NIRAJ ASHAR, AGP for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 05/11/2015
ORAL JUDGMENT
[1] The matter is taken up for final hearing and disposal. Hence, Rule. Learned AGP Mr. Ashar waives service of rule on behalf of the respondents.
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[2] The petitioner who is member of Puniavant Milk Producers
Cooperative Society limited, which is affiliated society and member of Vadodara District Cooperative Milk Producers Union Limited has come with present petition under Article 226 of the Constitution of India with following prayers : "20(A) The Hon'ble Court will be pleased to issue a writ of mandamus or prohibition or any other appropriate writ, order or direction to quash and set aside the impugned resolution Annexure A dated 27.10.2015 issued by the respondent no.1 - Government.
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus and to direct the respondents to proceed further with the election programme and process to conduct the elections of the members of the managing committee of the Baroda District Cooperative Milk Producers' Union Limited from the stage from where it is postponed by the respondent no.4 and such direction to proceed with the election process from the stages of declaration of list of contesting candidates be issued forthwith;
(C) The Hon'ble Court will be pleased to order to stay the operation of the impugned resolution dated 27.10.2015 issued by the respondent no.1 - Annexure A till and pending hearing and final disposal of the present petition.
(D) That this Hon'ble Court will be pleased to direct the respondent no.4 to proceed further from the stage of declaration of the list of contesting candidates for the ensuing elections of the members of the managing committee of the Baroda District Cooperative Milk Producers' Union Limited and to complete the elections of the members of the managing committee of the said Union forthwith or within reasonable time as may be deemed just, fit and proper by this Hon'ble Court by way of interim direction during the pendency of this petition.
(E) Be pleased to pass such other and further orders as may be deemed fit and proper."
[3] Vadodara District Cooperative Milk Producers Union
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Limited is a specified society and therefore, elections to its committee members shall be governed by provisions made under Chapter XIA of the Gujarat Cooperative Societies Act, 1961 ("the Act" for short) and the Gujarat Cooperative Specified Societies Election to Committee Rules, 1982 ("1982 Rules" for short).
[4] As per section 145(C) of the Act every election of the specified society is required to be held as far as possible one month before the date on which the terms of office of the members is due to expire. Now such intention of the legislature is further emphasized at the time of amending Act in the year 2013 and as per subsection (4) of section 74C of the Act inserted by Gujarat Act No.17 of 2013 with effect from 15.4.2014, it is provided that the election of the managing committee shall be conducted before expiry of its term so as to ensure that newly elected members of the managing committee assumes office immediately on the expiry of term of office of members of the outgoing managing committee. To ensure that such elections are held as intended by the legislature, 1982 Rules for election to the committee of specified societies are made for taking of various steps as per time schedule provided therein. Rule 3 and 3A of the 1982 Rules would go to suggest that steps towards initiation of process of election are to be initiated much in advance to ensure holding of elections before expiry of term of existing elected members.
[5] The case of the petitioner is that process for holding election of Vadodara District Cooperative Milk Producers' Union Limited was already set on motion by respondent no.4 Election Officer and stage upto withdrawal of nomination had reached on 27.10.2015 and it is at that stage respondent no.1 through its Deputy Secretary, Agriculture and Cooperation Department issued notification dated 27.10.2015 in Page 3 of 19 HC-NIC Page 3 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT purported exercise of powers under section 161 of the Act to exempt specified societies from holding elections till 5.12.2015. It is pointed out that based on such notification respondent no.4 - election officer has now postponed election till further order by giving public notice, copy whereof was made available to the Court for its perusal.
[6] Learned advocate Mr. Champaneri for the petitioner submitted that there is no power available under section 161 of the Act to postpone election of the specified societies. Mr. Champaneri submitted that if there are powers to postpone elections such powers are to be exercised on extra ordinary circumstances which are absent in the present case as election are postponed by impugned notice on the ground of difficulties to hold such elections in view of ensuing election of Panchayt, Municipalities and Municipal Corporations and not on impossibility on account of extra ordinary circumstances like act of god. Mr. Champaneri submitted that under the provisions of the Act and 1982 Rules, it is obligatory on the part of the respondents to complete the election process as per time schedule before expiry of term of existing elected committee and once the election is commenced it could not be postponed in purported exercise of powers under section 161 of the Act. Mr. Champaneri submitted that no general directions could have been issued by impugned notification for postponing the election of specified societies under section 161 of the Act. Mr. Champaneri submitted that even otherwise as stated in the impugned notification elections for panchayat, municipalities and municipal corporations are to begin after 22.11.2015 whereas for election of Vadodara District Milk Producers' Union Limited, respondent no.4 has finalized all stages upto final list of contesting candidates and the election was scheduled to be held on 6.11.2015 and therefore, there is no good reason to postpone election of such specified society.
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[7] As against above arguments, learned Additional Advocate
General Mr. Jani appearing with learned AGP Mr. Ashar submitted that State Government has power under section 161 of the Act to exempt specified societies from holding election, and since elections of Panchayt, municipalities and municipal corporations are required to be held from 22.11.2015, impugned notification is issued considering them as extra ordinary circumstances as it would not be possible for the State authorities to employ various State officers for election of specified societies. Mr. Jani submitted that the elections are postponed under the impugned notification just upto 5.12.2015 and it is for all societies which would go to suggest that the impugned notification is issued for valid grounds and valid purpose. Mr. Jani submitted that for election of panchayat, municipalities and municipal corporations, State Government is required to make available to State Election Commission such step as may be necessary for discharge of functions conferred on the State Election Commission as required under Article 243(K) of the Constitution of India. Mr. Jani submitted that on account of extra ordinary circumstances prevailing the State Government has for limited period thought it fit to exercise powers under section 161 of the Act, this Court may not interfere with the impugned notification under Article 226 of the Constitution of India. Mr. Jani submitted that even otherwise as per section 21 of the General Clauses Act, State as also concerned authorities have power to modify, add or rescind notification to meet with any situation which may arise and therefore, it cannot be said that there is no power in the Act to postpone elections once process for election has commenced. Mr. Jani submitted that section 161 of the Act is held constitutional valid and the reasons for exercise of powers are stated in the affidavit in reply especially for Vadodara District Cooperative Milk Producers' Union Limited which covers vast area of Page 5 of 19 HC-NIC Page 5 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT district and has large number of voters and the respondent no.4 is assigned duty even for ensuing elections of panchayat, municipalities and municipal corporations. Mr. Jani submitted that if powers are exercised bona fide based on which respondent no.4 has now postponed the election, this Court may not interfere with the impugned notification in exercise of powers under Article 226 of the Constitution of India.
[8] Having heard learned advocates for the parties, at the outset it is required to note that section 161 of the Act though empowers State Government to exempt any society or class of societies from any provisions of the Act or that it may direct that such particular provisions of the Act shall not apply to such societies or class of societies, exercise of such powers cannot be exercised to nullify or frustrate intention of the legislature for taking other measures by other provisions in a particular manner and within time limit.
[9] The legislature after section 145C was introduced, has further emphasized the need for timely election when in 2013 it brought in force provisions of subsection (4) of section 74C of the Act to ensure that election of managing committee is conduced before expiry of its terms and the purpose for such provision to ensure that newly elected members of the managing committee assumes office immediately on the expiry of term of office of members of the outgoing managing committee. If such is the intention of the legislature and when in furtherance of such intention election of specified society are set in motion as per 1982 Rules where schedule for elections as provided in Rule 16 is to be adhered to for timely conclusion of election process, it could be said that general direction issued under section 161 of the Act to overcome difficulties for holding elections of the specified societies will run counter to the legislative intention.
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[10] It is required to note that effect of impugned notification in
general form for all specified societies is to postpone even the election reached to the last stage after crossing all stages i.e. upto final list of the contesting candidates. Such exercise of powers in general cannot be permitted without being conscious of the stages of election process already commenced for a particular specified society.
[11] As stated in the notification, election for Panchayat, municipalities and municipal corporations are to he held from 22.11.2015. Therefore if in a particular specified society only the last stage remains to be complied with on particular date like in the case of present - Vadodara District Cooperative Milk Producers Union Limited, where final date for election is stated to be fixed on 6.11.2015, there would have been no problem or difficulty to hold election on 6.11.2015 as all the stages till last before holding of elections are already over. It may be that in a case of particular specified society considering circumstances related to holding of election of such society, the Collector or the election officer may decide to make change of the time schedule of the election and exercise of powers can be referable to section 21 of the General Clauses Act but the provisions of section 21 of the General Clauses Act is not available for issuing general directions in purported exercise of powers under section 161 of the Act.
[12] Though Mr. Jani pointed that election officer in the present case has exercised powers to postpone election by giving public notice, however, the Court finds from the public notice made available for its perusal that the election officer has postponed holding of election of Vadodara District Cooperative Milk Producers Union Limited till further order based on the impugned notification dated 27.10.2015 and he has Page 7 of 19 HC-NIC Page 7 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT not exercised his independent powers taking help of Section 21 of General Clause Act.
[13] Learned Additional Advocate General has relied on decisions in the case of Ashoksinh Gopalsinh Jadeja v/s. D.H.Brahmbhatt reported in 1990 (2) GLR 1010, in the case of Shree Sidhbali Steels Limited and Ors. v/s. State of Uttar Pradesh and Ors. reported in (2011) 3 SCC 193, in the case of Ranchhod Zina v/s. Patankar, Shri Collector, Broach reported in 1966 GLR 341, in the case of Mohd. Yunus Saleem v/s. Shivkumar Shastri and Ors. reported in AIR 1974 SC 1218 and in the case of Jitendrabhai Chunibhai Patel & Ors. v/s. State of Gujarat and Ors. reported in 2004 (3) GLR 2400 to point out that law is well settled that the authority which has power to hold election has also power to postpone election.
[14] The question in the present case is not about powers of such authority to postpone election. The question is about issuance of general directions under section 161 of the Act by the State Government to postpone holding of election in all specified societies till 5.12.2015 on the ground of ensuing elections of Panchayat, Municipalities and Municipal Corporations.
[15] If the authority which has set in motion process to hold election has decided to postpone election for any extra ordinary circumstances taking help of section 21 of the General Clause Act, it would have been different matter and then in such circumstances the matter could be examined in the facts of the case. Therefore, reliance placed on above said decisions by Mr. Jani will be of no help to the State Government.
[16] Learned advocate Mr. Champanari was right when he
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pointed out that existence of extra ordinary circumstances in exercise of powers under Section 161 is prerequisite and difficulties have no place for exercise of powers under section 161. Learned Advocate Mr. Champanari submitted that it is not the case the notification under Section 161 of the Act is issued on the ground that it is impossible to hold election on account of natural calamities i.e. the act of god. From the contents of the impugned notification and from the contents of the affidavit in reply, he could successfully point out that exercise of powers under Section 161 of the Act to postpone the elections are projected difficulties and on account of difficulties to be faced for ensuing election of Panchayat, Municipalities and Municipal Corporations, legislative mandate of holding election before expiry of term of elected body of specified societies cannot be allowed to be frustrated.
[17] Learned Additional Advocate General Mr. Jani relying on the decision in the case of The Registrar of Cooperative Societies and Anr. v/s. K. Kunjabmu and ors. reported in AIR 1980 SC 350 and in the case of Joshi Indulal Vallabram v/s. State of Gujarat reported in 1975 GLR 1096 submitted that exercise of powers under Section 161 of the Act to exempt societies from holding election is held valid and similarly provisions of section 60 of the Tamil Nadu Cooperative Societies Act is found not void on the ground of excessive delegation to exempt societies from provisions of the Act.
[18] In the case of The Registrar of Cooperative Societies and Anr.(supra) reported in AIR 1980 SC 350, Hon'ble Supreme Court has held and observed in paragraph no.12 as under : "12. The policy of the Act is there and so are the guidelines. Why the legislation ? "To facilitate the formation and working of Cooperative Societies". Cooperative Societies, for what purpose ?
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"For the promotion of thrift, selfhelp and mutual aid". Amongst whom ? "Among agriculturists and other persons with common economic needs". To what end ? "To bring about better living, better business and better methods of production". The objectives are clear; the guidelines are there. There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members, duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment, arbitration etc. We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble. But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact, the too rigorous application of someof the provisions of the Act may itself occasionally result 267 in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by s.60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear."
[19] In the case of Joshi Indulal Vallabram (supra) reported in 1975 GLR 1096, this Court has held and observed in paragraph no.10 as under : "10. She, therefore, contended in the alternative that this is a delegation of the legislative function and, therefore, to that extent the Legislature has abdicated his duties and the provision, therefore, is ultra vires the powers of the State Government, We have not been able to appreciate on reading section 161 that the power which has been invested in the State Government is of legislative nature at all. It is a power granted to the State Government to exempt any society or a class of societies from any of the provisions of the Act or to give directions that such provisions would not apply to such society or class Page 10 of 19 HC-NIC Page 10 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT of societies with such modifications without affecting the substance thereof as may be specified in the order. Having regard to the nature of the power and the order of the State Government in the case before us, we do not think that it could be successfully contended that it was in the nature of a legislative act. It appears to us from the order ExO that the State Government has exercised its power under Section 161 of the Gujarat Cooperative Societies Act in cases of those societies whose liquidation proceedings could not be completed within the prescribed period of seven years. In the particular case before us, the society was formed in the time of the erstwhile State of Baroda and it was on account of various objections raised by the petitioner and other shareholders and because they took the matter in appeal and revision from time to time that the proceedings could not be completed within the prescribed statutory period. The outstanding liability of the society was to the tune of Rs. 1,00,000/ and the Mehsana District Central Cooperative Bank Limited was the only creditor. If in that context the State Government thought fit to exercise the power under section 161 it cannot be said that it was exercising or discharging the legislative function which it could not have done. In that view of the matter, therefore, the second limb of the last contention of Miss. Shah should be rejected."
[20] The Court finds that such above decisions on validity of section 161 of the Act and validity of powers for exemption from application of provisions of the Act would be of no help to support the impugned notification when the Court on examination of impugned notification finds that no general directions to postpone the election of specified societies in purported exercise of powers under section 161 of the Act could be issued.
[21] In the case of Manavadar Bantva Taluka Co.op. Purchase and Sales Union Limited v/s. State of Gujarat in Special Civil Application No.5687 of 2004 relied on by Mr. Champaneri, learned Single Judge of this Court has held and observed in paragraph no.3 to 5 as under : Page 11 of 19 HC-NIC Page 11 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT "3. Upon hearing Mr.Champaneri, learned Counsel for the petitioner and Mr.Dave, learned AGP for the respondents, it appears that there is no dispute on the point that the election of specified Societies are required to be held as early as possible and as per the Scheme of the Act the same is required to be completed one month prior to the expiry of the statutory term. It further appears that in the present case, the statutory term has expired on 1242004 and as such prior to the expiry of the statutory term the process of election was initiated. However, on account of the ensuing election of Parliament, the State Government in exercise of power under Section 161 of the Act granted exemption to specified cooperative societies from holding election and as a result thereof, the further process of the electionwas stayed and the aforesaid position continued upto 3062004. It is the case of the petitioner that pending the aforesaid, the petitioner Society has undertaken the process for preparation of the preliminary voters' list and the proposal is already pending before the authority for holding the election.
4. On behalf of the respondents, as such no extraordinary circumstances are brought to the notice of this Court on the basis of which it can be said that it is not possible to hold the election of the petitioner Society within some reasonable time.
5. It is true that the election was required to be held well in time, but it appears that on account of election of Parliament the election of the society has not been held. It is well settled that it is obligatory on the part of the statutory authority to hold the election well in time so as to enable the voters to have their representative(s) through election by democratic process. Since now no extraordinary circumstances are there on the basis of which it can be said that it is not possible to hold the election, the authority who is enjoined with the duty to hold the election cannot get away from the obligation of holding the election and as up till now the election programme is not published, I find that it would be just and proper to direct respondent No.3, Direct Collector, Junagadh to hold the election of petitioner Society and complete the election process latest by 15th September, 2004 so that the elected body can assume office prior to 121020004."
[22] Learned Additional Advocate General Mr. Jani however, relying on the judgment in the case of Tata Cellular v/s. Union of India reported in AIR 1996 SC 11 submitted that judicial review of executive Page 12 of 19 HC-NIC Page 12 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT function is available when administrative authorities exercise unbridled and arbitrary powers but where such functions or administrative powers are exercised within four corners of law, the Court within its limited judicial review may not interfere with the executive or administrative function of the State Government based on provisions of the Act. In the said case, Hon'ble Supreme Court while examining the matter concerning selection of licencee through tender process for providing telecommunication services held and observed in paragraph nos.85, 86, 89, 90, 93, 94 and 113 as under : "85.It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in execises of that power of judicial review. Government is the guardian of the finances of the State . It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
86. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy;thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.
xx..xx..xx
89. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercise to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of theCourt'sability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial Page 13 of 19 HC-NIC Page 13 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT control over administrative action.
90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is made, but the decision making process itself.
x...xxx...xx.
93. The duty of the Court is to confine itself to the question of legality. Its concern should be;
1. whether a decisionmaking authority exceeded its powers?
2. committed an error of law.
3. committed a breach of the rules of natural justice.
4. reached a decision which no reasonable Tribunals would have reached or.
5. abused its powers.
94. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality : This means the decisionmaker must understand correctly the law regulates his decisionmaking power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
xx...xxx.xx.
113. The principles deducible from the above are :
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of theinvitation to tendercannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.Page 14 of 19
HC-NIC Page 14 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT Normally speaking, the decision to accept the tender or award the construct is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated bymala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
[23] Going with the above principles laid down by the Hon'ble Supreme Court, when impugned notification is examined, executive functions exercised through impugned notification under section 161 of the Act appears to have been exercised not for the purpose for what it is required to be exercised and not in furtherance of purpose and object of the act and could be said to have exercised against democratic principles of cooperative societies to function under the Act.
[24] Learned Additional Advocate General Mr. Jani then relying on the judgment in the case of Manguben Ratilal Thakkar (Decd) v/s. State of Gujarat reported in 2015 (1) GLR 297 pointed that validity of section 161 of the Act is upheld by this Court and the notification issued by the State Government in the said case in exercise of powers under Section 161 of the Act exempting the societies from some provisions of the Act was held legal. Mr. Jani therefore, submitted that when under the power existing in section 161, the impugned notification is issued to exempt specified societies from provisions of section 74C and section 145(1) of the Act from holding election, such notification cannot be said to be arbitrarily issued or that redundant powers were exercised to issue such notification. However, the question raised in the present petition is not about validity of section 161 of the Act. Section 161 provides for Page 15 of 19 HC-NIC Page 15 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT power of State Government to exempt any society or class of society from any provisions of the Act or may direct that such provisions shall not apply such society or class of society. However, it is required to note that such powers available to the State Government is by way of delegated legislature which are not meant to be exercised dehors or contrary to intention of legislature incorporated in other provisions of the Act. Therefore, when the legislature has clearly intended for holding of election before expiry of term of existing committee, such intention should be duly respected and to be complied with unless extraordinary circumstances exist on account of act of god i.e. referable to natural calamity.
[25] In the case of K.B.Nagur, M.D.(Ayurvedic) v/s. Union of India reported in (2012) 4 SCC 483, the Hon'ble Supreme Court while dealing with validity of section 7 of the Indian Medical Central Council Act, 1970 and the issue as regards holding of election of the council has observed in paragraph no.33,34 and 35 as under :
33. In the case of Kishansing Tomar, this Court while dealing with the question of revision of electoral rolls by the State Election Commission, noticed that the Election Commission shall complete the election before the expiration of the duration of five years' period as stipulated in Clause (9) of Article 243U of the Constitution and not yield to situations that may be created by vested interests to postpone elections beyond the stipulated time. The State Election Commission shall take steps to prepare the electoral rolls, by following due process of law, but that too, should be done in a timely manner and in no circumstances, shall the elections be delayed so as to cause gross violation of the mandatory provisions contained in Article 243U of the Constitution.
34. Further, while drawing a distinction between severe manmade calamities such as rioting, breakdown of law and order or natural calamities, which could distract the authorities from holding elections to the Municipality and other reasons for delay, this Court noted that the former are exceptional circumstances and under no other circumstance would the Election Commission be justified in delaying Page 16 of 19 HC-NIC Page 16 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT the process of election after consulting the State Government and other authorities. This Court laid significant emphasis on the independence of the State Election Commission and expected all other authorities to fully cooperate, and in default, granted liberty to the State Election Commission to approach the High Court and/or the Supreme Court, as the case may be for relief/directions. However, no final or timebound directions were issued, in the petition above referred, because election to the Ahmedabad Municipal Corporation in that case had already been held in the meanwhile.
35. Statutory or constitutional independence is a prerequisite to the proper functioning of such statutory bodies. Their appropriate constitution, in accordance with the provisions of the statute is mandatory. All concerned, including the Central and State Governments have the onus to discharge their duties and functions effectively and expeditiously, in coordination and within the time specified. No Court can permit any authority, much less the Central or State Government to frustrate the statutory requirements of a provision and also the very object of an Act."
[26] Learned advocate Mr. Champaneri for the petitioner has also relied on the judgment in the case of Jayantbhai Manubhai Patel and Ors. v/s. Arun Subodhbhai Mehta and Ors. reported in (1989) 2 SCC 484. In the said case, applicability of section 21 of the General Clauses Act was examined vizaviz powers to postpone meeting. The Hon'ble Supreme Court has held and observed in paragraph no.18 as under : "18. In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire's case (AIR 1988 SC 1665), as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Divison Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it Page 17 of 19 HC-NIC Page 17 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT appears that the Division Bench has not taken into account the provisions of S. 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem's case (AIR 1974 SC 1218).Had that been done, we feel that the Division Bench which decided the Chandrakant Khaire's case, might not have made the aforestated observations at all. In our view, the principles underlying S. 21 of the Bombay General Clauses Act would be clearly applicable in considering the scope of the powers of the Mayor of a Municipal Corporation set out in Cl. 1 of Chapter II of the said Schedule in the said Act and in particular, in subclause (c) of the said clause. We may point out that the rules in the Schedule have been framed under the statutory provisions of the said Act and S. 453 of the said Act provides that the rules in the shedule as amended from time to time shall be deemed to be part of that Act. In our view, the power of the Mayor conferred under Cl. 1 of Chapter II of the said Schedule must be regarded as a statutory power is distinguished from the powers of directors of a company which are derived strictly from the Articles of Association of the Company which are contractual in nature. There appears to be no reason to take the view that the principles underlying S. 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor. In our view, appellant No. 1, the Mayor of respondent No. 5, Corporation, had the power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on a later date. The question, however, whether he has exercised the power within its true ambit is a different question altogether. In this regard, in our opinion, although the Mayor had the power to cancel the notice convening the meeting' and to direct the secretary to issue a notice to that effect, the said power could be exercised only bona fide and for a purpose or purposes within the scope of the said Act. If the power was exercised mala fide or for a collateral purpose, the exercise of the power would certainly be bad. In the present case. There considerable factual controversy as to whether. even on the footing that appellant No. 1 had the power to cancel the notice convening the meeting that power was exercised bona fide for a purpose within the scope of the said Act or whether it was exercised for collateral or impermissible purposes. We remand the matter to the Gujarat High Court for the determination of that question. In view of the urgency of the matter, we would request the Gujarat High Court to dispose of the Writ Petition latest by 30 th April, 1989 as far as possible. The interim order granted by this Court on November 16. 1988 shall continue up to 5th May, 1989, subject to any orders which may be Page 18 of 19 HC-NIC Page 18 of 19 Created On Sat Nov 07 02:39:43 IST 2015 C/SCA/18504/2015 JUDGMENT passed hereafter by the Gujarat High Court. From that date, it will be for the parties to apply for appropriate interim orders to the Gujarat High Court till the case is finally disposed of by that Court."
[27] In light of above and for the reasons stated above, the petition is allowed. Impugned notification dated 27.10.2015 at AnnexureA is quashed and set aside. Respondent no.4 - Election Officer is directed to forthwith proceed to hold election of Vadodara District Cooperative Milk Producers' Union Limited from the stage he postponed taking further steps to hold election. Rule is made absolute accordingly. Direct service is permitted.
[28] At this stage, learned AGP Mr. Ashar requested to stay and suspend the present order. However, in the facts and circumstances of the case, the request is rejected.
(C.L.SONI, J.) satish Page 19 of 19 HC-NIC Page 19 of 19 Created On Sat Nov 07 02:39:43 IST 2015