Siyanagar Dudhutpadakl Sahakari ... vs Election Officer And Director on 12 September, 2018

[Cites 8, Cited by 1]

Gujarat High Court

Siyanagar Dudhutpadakl Sahakari ... vs Election Officer And Director on 12 September, 2018

Bench: Bela M. Trivedi

        C/SCA/12731/2018                               JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 12731 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS.JUSTICE BELA M. TRIVEDI                  Sd/-

====================================================

1    Whether Reporters of Local Papers may be allowed         YES
     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     YES
     the judgment ?

4    Whether this case involves a substantial question of     YES
     law as to the interpretation of the Constitution of
     India or any order made thereunder ?

====================================================
  SIYANAGAR DUDHUTPADAKL SAHAKARI MANDLI LIMITED
                              Versus
              ELECTION OFFICER AND DIRECTOR
====================================================
Appearance:
MR B.S. PATEL, ADVOCATE with MR CHIRAG B PATEL(3679) for the
PETITIONER(s) No. 1,10,11,12,13,2,3,4,5,6,7,8,9
MR TIRTHRAJ PANDYA, AGP for the RESPONDENT(s) No. 1,2,3
====================================================

CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
                  Date : 12/09/2018
ORAL JUDGMENT

1. Initially 13 petitioners had filed the present petition challenging the order dated 10.08.2018 Page 1 of 12 C/SCA/12731/2018 JUDGMENT (AnnexureA) passed by the respondent no.1 and sought directions against the respondent no.1 to include the names of the petitioner nos.1 to 9 in the voters' list and permit the petitioner nos.1 to 12 to participate in the election of Managing Committee of the Botad Cooperative Milk Producers Union Ltd. (hereinafter referred to as "the Botad Dairy"). After filing of the petition, the petition was sought to be amended by deleting the names of the petitioner nos.2, 3, 9 and 10 from the array of petitioners and also by incorporating the prayer Clause (BB) in para no.9 praying to set aside the order passed by the respondent no.2 on the report of the respondent no.3 giving audit classification "D" to the petitioner nos.1 to 9 and audit classification "C" to the petitioner nos.10 to

12.

2. As per the case of the petitioners, the petitioners are the milk producers societies and are affiliated with the Botad Dairy, which is a specified society as per the provisions contained in Section 74(C) of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act"). As per the provision contained in the said Act, the elections of the specified society have to be conducted under Chapter XIA of the said Act as well as under the Gujarat Cooperative Specified Societies Elections to Committees Rules, 1982 Page 2 of 12 C/SCA/12731/2018 JUDGMENT (hereinafter referred to as "the said Rules"). The respondent no.1 as an Election Officer had issued a press note on 04.07.2018 inviting claims and objections against the publication of the provisional voters' list prepared by the Botad Dairy showing the position as on 31.03.2018 and published on 04.07.2018 in respect of the election of the Managing Committee of the Botad Dairy, so as to reach such claims and objections to him on or before 13.07.2018 (AnnexureC).

3. According to the petitioners, the petitioner no.1 and 5 had earlier approached this Court by filing Special Civil Application No.6138 of 2018 and Special Civil Application No.9062 of 2018 seeking appointment of custodian in the Botad Dairy. Special Civil Application No.6138 of 2018 was not pressed for by the learned Advocate for the petitioners with a view to make representation to the concerned respondents the collector and the District Registrar. The Special Civil Application No.9062 of 2018 was disposed of alongwith one another Special Civil Application being No.10995 of 2018 on the statement made by the learned AGP that the Collector has not constituted the constituencies as contemplated under sub Rule 9 of the Rule 3(A) of the Rules and that the Collector shall consider the objections raised by the objectors as regards the eligibility of the members shown Page 3 of 12 C/SCA/12731/2018 JUDGMENT in the provisional list of voters prepared for the Botad Dairy in accordance with law. In view of the said statement made by the learned AGP, the learned Advocate for the petitioners had not pressed for the said petitions reserving their rights to raise all contentions in future, if required to do so. Hence, the said two petitions also stood disposed of accordingly. It appears that thereafter respondent no.1 Election Officer after considering the objections raised by the objectors, passed the order dated 10.08.2018 directing to publish the final voters' list deleting the names of those societies which were classified in audit class "D" in view of Section 27(3) of the said Act, and to publish final voters' list including the names of only those societies who were eligible as per section 27 read with Rule 4, 5, 6 and 7 of the said Rules. Being aggrieved by the said order, the present petition is filed.

4. The petition has been resisted by the concerned respondents by filing their affidavits in reply, to which the petitioners have filed their affidavit in rejoinder.

5. The learned AGP has placed on record the letter dated 12.09.2018 of the respondent no.1Election Page 4 of 12 C/SCA/12731/2018 JUDGMENT Officer showing the latest position that only ten members had filled up the nomination forms for contesting the election.

6. It is sought to be submitted by learned Advocate Mr.B.S.Patel for the petitioners that the respondent no.1 after receiving the notice from this Court had issued Election programme on 31.08.2018 under Rule 16 of the said Rules, (AnnexureR1 to the affidavit in rejoinder), according to which, the last date for filing the nomination forms was 11.09.2018. As per the today's position, only 10 nomination forms have been filled up for the 13 seats. He vehemently submitted that the names of the petitioners have been deleted by the respondent no.1 from the final voters' list as per the impugned order dated 10.08.2018 relying upon the audit classification only with a view to see that other members, who have filled up the nomination forms may be declared successful uncontested. Mr.Patel taking the Court to the audit notes and the audit reports as also to the guidelines issued by the Government for the purpose of allotting marks under different heads while giving class "A", "B", "C" and "D", submitted that the respondent no.3 had given marks arbitrarily to the petitioners with a view to disqualify the petitioners from being included in the voters list. He also submitted that the impugned order was passed by the respondent no.1 Page 5 of 12 C/SCA/12731/2018 JUDGMENT in utter violation of the principles of natural justice inasmuch as the respondent no.1 had not given any opportunity of hearing to the petitioners before deleting the names of the petitioners from the final voters' list.

7. He further submitted that the allegations made by the petitioners in the petition with regard to the audit classification given by the respondent no.3 having not been denied by the respondent no.3, they are deemed to have been admitted in view of the decision of this Court in the case of Patel Kodarbhai Jivabhai Vs. State of Gujarat reported in 1983 (1) GLR 325. Relying upon the decision of this Court in the case of Mahesana District Cooperative Purchase and Sales Union Ltd. Vs. Dhadusan Beej Utpadak Rupantar and Vechan karnari Sahkari Mandali Ltd. reported in 1998 (1) GLH 170, learned Advocate Mr.Patel submitted that the impugned order having been passed without providing an opportunity of hearing to the petitioners, the same deserves to be set aside. Mr. Patel has also placed reliance upon the decision of the Supreme Court in the case of Siemens Aktiengeselischaft and Siemens Ltd. Vs. Delhi Metro Rail Corporation Ltd. and Ors., reported in (2014) 11 SCC 288 to submit that any action taken by the respondent pending the petition would be subject to outcome of the petition. According to him in the instant case, the Page 6 of 12 C/SCA/12731/2018 JUDGMENT respondent no.1 having declared the election programme on 31.08.2018 after the receipt of the notice from this Court, the entire election process may be made subject to the outcome of the present petition.

8. However, learned AGP Mr.Tirthraj Pandya while pressing into service the proviso to section 27(3) of the said Act submitted that only those societies who have their last accounts audited in Class "A", "B" or "C" are eligible to exercise their right to vote and take part in the election of the members of the Committee of the specified society. Admittedly, the petitioners Nos.1 to 9 were classified in Class "D" and therefore, their names have been deleted from the final voters' list by the respondent no.1. He further submitted that whether the petitioners should have been given a particular class or not would be a disputed question of fact, which should not be gone into by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. Mr.Pandya also submitted that the petitioners being not qualified or eligible to be the voters as per section 27(3) of the said Act, the question of giving them opportunity of hearing before deleting their names from the final voters' list did not arise, as the respondent no.1 Election Officer could not go into the issue as to whether the petitioners were rightly Page 7 of 12 C/SCA/12731/2018 JUDGMENT classified in audit class "C" or "D" as the case may be, by the respondent no.3.

9. Before adverting to the rival contentions raised by the learned advocates for the parties, it would be beneficial to refer to the relevant provisions contained in the said Act and the Rules. Section 27(3) of the said Act reads as under:

"27. Right to vote: (1) xxx xxx xxx (2) xxx xxx xxx (3) No person shall exercise the right to vote at an election of a member of a committee in a financial year unless he is member of the society for the whole of the financial year preceding the financial year in which the election is being held:

Provide that no member society of a federal society shall exercise the right to vote at an election of a member of a committee unless such society has its last accounts audited in class A, B or C."

10. As per Section 74(C) of the said Act, the election of the members of the Committees and of the officers by the committee of the Specified Societies would be subject to the provisions contained in Chapter XIA of the said Act. The said Rules of 1982 have been framed in exercise of powers conferred by section 168 read with Section 145G (2), section 145U(4) and Section 145Y contained in Chapter XIA of the said Act.

Page 8 of 12

C/SCA/12731/2018 JUDGMENT Rule3A of the said Rules pertains to Delimitation of constituencies for the purpose of election. Sub Rule 9 of Rule 3A thereof being relevant is reproduced as under:

"3A. Delimitation of constituencies for purpose of election:-

(1) xxx xxx xxx to (8) xxx xxx xxx (9) Notwithstanding anything contained in these rules and the bye-laws of the society, where the elections to the members of any Committee are scheduled to be held before the ending of the according year of the society, the delimitation of the constituencies shall be made by the Collector prior to the publication of the list of voters."

11. Rule 4 of the said Rules pertains to the preparation of the provisional list of voters by the specified society and the display thereof by the Collector. Rule 5 pertains to the particulars to be included in the provisional list of voters, and Rule 6 pertains to the claims and objections to the provisional list of voters. Sub Rule (4) of Rule 6, reads as under:

"6. Claims and objections to provisional list of voters:-

(1) xxx xxx xxx to (3) xxx xxx xxx (4) The Collector shall, after considering each claim or objection give his decision thereon in writing to the person concerned within ten days from the date of receipt of the Page 9 of 12 C/SCA/12731/2018 JUDGMENT claim or objection under sub-rule (2) and take steps to correct the provisional list wherever necessary. The list as finalised by the Collector after deciding all claims and objections shall be final list of voters."

12. In the instant case, it appears that the Collector having not constituted the constituencies as contemplated in Rule 3A(9) of the said Rules, the learned AGP had made statement in Special Civil Application No.10995 of 2018 and Special Civil Application No.9062 of 2018 to the effect that the Collector shall consider the objections raised by the objectors as regards the eligibility of the members shown in the provisional list of voters and that the Collector shall constitute constituencies before publication of the list of voters as per Rule 3 A(9) of the said Rules. Accordingly, the respondent no.1 while preparing the list of voters appears to have taken into consideration the eligibility of the voters and deleted the names of those societies including the petitioners nos.1 to 9, who were classified in Class "D" by the respondent no.3. Under the circumstances, the petitioners having not qualified themselves as the voters, in view of the proviso to Section 27(3) of the said Act, their names were deleted by the respondent no.1 from the final voters' list.

13. Though, learned Advocate Mr.B.S.Patel has vehemently submitted that the petitioners have Page 10 of 12 C/SCA/12731/2018 JUDGMENT been wrongly classified in Class "D" with a view to eliminate them from the final voters' list, the said submission cannot be accepted. As per the guidelines for audit classification issued by the Government, the auditor is required to give head subhead wise marks, and the society which obtains marks below 40 would be covered under Class "D" and the society which obtains marks between 40 and 49, would be covered under Class "C". In the instant case, the audit notes of the petitioner no.1 have been placed on record, from which it transpires that the petitioner no.1 has been allotted 39 marks by the respondent no.3 and accordingly, it has been placed in Class "D" as per the certificate issued on 09.11.2017/ 02.07.2018 for the year ending on 31.03.2017 and as per the certificate issued on 02.07.2018 for the year ending on 31.03.2018. It is pertinent to note that petitioners have not produced the audit notes or other materials in respect of the other petitions. Whether the petitioners have been allotted proper marks under different heads as per the said guidelines or not, and whether the petitioners have been given proper class or not, though are highly disputed questions of facts, the Court had ventured to go into the same at the request of Mr.Patel, however, Mr.Patel had failed to point out as to how the petitioners were given wrong audit classification.

Page 11 of 12

C/SCA/12731/2018 JUDGMENT

14. Though, the Court finds some substance in the submission made by learned Advocate Mr.Patel for the petitioners that the petitioners should have been given an opportunity of hearing by the respondent no.1 before deleting their names from the final voters' list, the said submissions pales into insignificance in view of the fact that the petitioner nos.1 to 9 had failed to get their last accounts audited in Class "A", "B" or "C" as required under the proviso to Section 27(3) of the said Act. As rightly submitted by learned AGP Mr.Pandya, the respondent no.1 could not go into the issue as to whether the audit classification was proper or not. It is not disputed that petitioner nos.10 to 12 have been given audit class "C" and therefore their names have been included in the voters' list. It is also not disputed that only those societies who have got their last accounts audited in Class "A" or "B" could contest the election for the Managing Committee of the specified society Botad Dairy. The Court therefore does not find any error or illegality in the list of voters published by the respondent no.1.

15. In that view of the matter, the petition being devoid of merits, is dismissed.

Sd/ (BELA M. TRIVEDI, J) TUVAR Page 12 of 12

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