Gujarat High Court
Mehsana District Cooperative Milk ... vs State Of Gujarat & 5 on 17 April, 2015
Equivalent citations: AIR 2015 (NOC) 1074 (GUJ.)
Author: M.R. Shah
Bench: M.R. Shah, G.B.Shah
C/SCA/1611/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1611 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1642 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1645 of 2015
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE G.B.SHAH Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see Yes
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 ?
=============================================
MEHSANA DISTRICT COOPERATIVE MILK PRODUCERS UNION
LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
=============================================
Appearance:
SCA No.1611/2015
Shri Mihir Joshi, Sr. Advocate with Mr. Dipen Desai for the Petitioner
Shri Prakash K. Jani, Additional Advocate General with Shri Dhawan Jayswal, AGP for
Respondent(s) No.15
Shri B.S. Patel, Advocate for Shri Chirag B. Patel, Advocate for Respondent(s) No.6
SCA No.1642/2015
Shri S.N. Shelat, Sr. Advocate with Shri V.C. Vaghela for the petitioner
Shri Prakash K. Jani, Additional Advocate General with Shri Dhawan Jayswal, AGP for
Respondent(s) No.15
Respondent(s) No. 6 is served
Shri B.S. Patel, Advocate for Shri Chirag B. Patel, Advocate for the newly added Respondent(s)
SCA No.1645/2015
Shri Mihir Joshi, Sr. Advocate with Mr. Dipen Desai for the Petitioner
Shri Prakash K. Jani, Additional Advocate General with Shri Dhawan Jayswal, AGP for
Page 1 of 66
1 of 69
C/SCA/1611/2015 CAV JUDGMENT
Respondent(s) No.15
Shri B.S. Patel, Advocate for Shri Chirag B. Patel, Advocate for newly added Respondent.
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 17/04/2015
COMMON CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
[1.0] As common question of law and facts arise in this group of
petitions and are as such with respect to the election of the Managing
Committee of Mehsana District Cooperative Milk Producers' Union
Limited, all these petitions are heard, decided and disposed of together
by this common judgment and order.
Special Civil Application No.1611/2015
[2.0] By way of this petition under Article 226 of the Constitution of
India, the petitioner - Mehsana District Cooperative Milk Producers'
Union Limited (hereinafter referred to as "Milk Producers' Union")
through its authorized representative has prayed for an appropriate writ,
direction and order to quash and set aside the impugned order dated
17.01.2015 passed by the respondent No.4 herein - Election Officer of
the Milk Producers' Union and Prant Officer, Mehsana (AnnexureA) by
which the Election Officer and the Prant Officer, Mehsana has in exercise
of powers under Rules 3A(9) of the Gujarat Specified Cooperative
Societies Election to Committee Rules, 1982 (hereinafter referred to as
"Election Rules, 1982") has delimited the constituencies for the election
of the members of the Managing Committee of the Milk Producers'
Union.
It is also further prayed for an appropriate writ, direction and
order directing the respondent No.4 - Election Officer to conduct the
Page 2 of 66
2 of 69
C/SCA/1611/2015 CAV JUDGMENT
election of the members of the Managing Committee of the Milk
Producers' Union by preparing / delimiting the constituencies as per the
proposal dated 02.01.2015 submitted by the petitioner Milk Producers'
Union i.e. for 18 seats.
Special Civil Application No.1642/2015
[2.1] By way of this petition being Special Civil Application
No.1642/2015, the petitioner - Shree Arbudanagar (Basna) Mahila
Dudh Utpadak Sahakari Mandali Limited through its authorized
representative has prayed for an appropriate writ, direction and order to
quash and set aside the impugned order dated 17.01.2015 passed by the
respondent No.4 - Election Officer of the Milk Producers' Union and the
Prant Officer, Mehsana by which the Election Officer has delimited the
constituencies for the ensuing election of the members of the Managing
Committee of the Milk Producers' Union insofar as reservation of two
seats for women have been altered from one constituency to two
different zones i.e. Mehsana and Chanasma. It is also further prayed to
provide for two seats for women as provided under Section 74(1B)(i) of
the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as
"Act, 1961") and to direct to have all the affiliated Milk Producers'
Cooperative Societies of the respondent No.6 - Union as voters for the
two seats reserved for women.
Special Civil Application No.1645/2015
[2.2] By way of this petition under Article 226 of the Constitution of
India, the petitioner - Harij Taluka Sahakari Kharid Vechan Sangh Ltd.
through its authorized representative has prayed for an appropriate writ,
direction and order to quash and set aside the impugned order dated
17.01.2015 passed by the respondent No.4 - Election Officer of the Milk
Producers' Union and Prant Officer, Mehsana (AnnexureA) by which the
Page 3 of 66
3 of 69
C/SCA/1611/2015 CAV JUDGMENT
Election Officer in exercise of powers under Rule 3A(9) of the Election
Rules, 1982 has delimited the constituencies, insofar as it affects the
rights of the delegates of other societies.
It is also further prayed for an appropriate writ, direction and
order directing the respondent No.4 - Election Officer to conduct
elections of the Milk Producers' Union by preparing constituencies as per
the proposal dated 02.01.2015 submitted by the Milk Producers' Union.
[3.0] Facts leading to the present Special Civil Applications in nutshell
are as under:
[3.1] That the petitioner - Milk Producers' Union is a cooperative
society registered under the provisions of the Act, 1961 and is also a
specified society within the meaning of section 74C of the Act, 1961 and
therefore, the election of the petitioner Society is to be held as per the
provisions of Chapter XI of the Act, 1961 read with Election Rules, 1982.
That the last election of the members of the Managing Committee
of the Milk Producers' Union was held in March 2011 and the first
meeting was held on 02.05.2011. The term of the members of the
Managing Committee is three years from the first meeting of the newly
elected members i.e. in the present case three years from 02.05.2011.
Therefore, the term of the members of the Managing Committee has
expired in the month of May, 2014. It appears that because of the
amendment in the Act, 1961, being brought about because of the 97th
Constitutional Amendment and in view of the disputes with respect to
the interpretation of Rules 3A(8) and 3A(9) of the Election Rules,
1982, the election of the Specified Societies were not being held. The
controversy was whether the byelaws of the specified society would
prevail or the statutory Rules more particularly Rules 3A(8) and 3A(9)
of the Election Rules, 1982 would prevail. That the Full Bench of this
Page 4 of 66
4 of 69
C/SCA/1611/2015 CAV JUDGMENT
Court vide its judgment and order dated 04.07.2013 passed in Special
Civil Application No.12067/2012 and other Special Civil Applications in
the case of Narendrabhai Mahijibhai Patel Ors. vs. State of Gujarat
and Ors. decided the issue with regard to the interpretation of Rules 3
A(8) and 3A(9) of the Election Rules, 1982 and directed that the
election of the specified societies are to be conducted by delimiting the
constituencies in accordance with Rules 3A(8) and 3A(9) of the
Election Rules, 1982 and byelaws if any contrary to the said
provisions / statutory provisions have to be ignored. That the decision of
the Full Bench of this Court rendered in aforesaid Special Civil
Application No.12067/2012 was challenged before the Hon'ble Supreme
Court by way of Civil Appeal No.10392/2014 and other allied matters to
which, the petitioner - Milk Producers' Union was also a party, who
preferred Civil Appeal No.10420/2014. All the Civil Appeals against the
decision of the Full Bench of this Court in Special Civil Application
No.12067/2012 came to be dismissed by the Hon'ble Supreme Court
vide its judgment and order dated 19.11.2014 and consequently the
interim orders passed therein also came to be vacated.
Therefore, the issue with regard to the interpretation of Rules 3
A(8) and 3A(9) of the Election Rules, 1982 and the powers of the
Collector under Rules 3A(8) and 3A(9) of the Election Rules, 1982 has
been put at rest. As regards the amendment to the Act, 1961 is
concerned, the State Legislature by way of Gujarat Cooperative Societies
(Amendment) Act, 2013 inserted various provisions in the parent Act
and has amended the Act, 1961 bringing it to be in conformity with the
Constitutional Amendment made by way of 97th Constitutional
Amendment Act. Therefore, even the issue with regard to the
amendment of the Act in conformity with the 97th Constitutional
Amendment has also been put at rest.
Page 5 of 66
5 of 69
C/SCA/1611/2015 CAV JUDGMENT
[3.2] That during the pendency of the Special Leave Petitions before the
Hon'ble Supreme Court against the decision of the Full Bench of this
Court in Special Civil Application No.12067/2012, since the term of the
Board of Directors of the Milk Producers' Union expired and the elections
were to be held, the Milk Producers' Union called for resolutions from its
member societies by way of public notice dated 16.05.2014. It also
appears that thereafter by way of proposal dated 07.07.2014, the
petitioner - Milk Producers' Union submitted its proposal to the
respondent No.5 herein - District Registrar, Cooperative Societies,
Mehsana with a copy marked to the Collector, Mehsana - respondent
No.3 herein and the Prant Officer and Election Officer - respondent No.4
herein. It appears that in the said proposal, the petitioner - Milk
Producers' Union proposed four alternative measures by which the
election can be conducted, however subject to the final outcome of the
pending Special Leave Petitions before the Hon'ble Supreme Court.
Relevant Byelaws of the Union
[3.3] It appears that as per the byelaws of the Milk Producers' Union,
the area of operation of the Milk Producers' Union is erstwhile Mehsana
District, which includes entire Mehsana District, five Talukas of Patan
District and two Talukas of Gandhinagar District. It appears that as per
byelaw No.6(a), the membership of the Milk Producers' Union shall be
of Milk Producers' Cooperative Societies registered within the
jurisdictional area of the Milk Producers' Union, any cooperative
societies registered within the jurisdictional area relating to agricultural
activities other than the Milk Producers' Union and also the notified
members.
As per byelaw No.6(a)(ii), the representatives of the cooperative
societies other than the Milk Producers' Societies shall elect its Directors
in a manner that one representative out of such 10 members or 10% of
Page 6 of 66
6 of 69
C/SCA/1611/2015 CAV JUDGMENT
the representatives of the Milk Producers' Union whichever is less shall
have one voting right.
Byelaw No.6(a)(iii) provides that patron members who were
members of the Society which were existing prior to the registration of
the Sangh (Milk Producers' Union) shall have voting right in the
proportion of 1:25 i.e. for every 25 patron members, there shall be one
vote.
That there are 17 other Milk Producers' Societies (Itar Societies)
and 98 individual patron members and 1132 affiliated Milk Producers'
Cooperative Societies affiliated with the petitioner - Milk Producers'
Union.
That as per byelaw No.35, the Board of Directors shall be of 21
members which includes 11 seats distributed as per talukawise zones
containing one Director each, four seats to be decided by the Board of
Directors considering the quantity of milk supply talukawise, one
Director to be elected by the delegates who have been elected from other
cooperative societies and individual patron members as per byelaw
Nos.6(a)(ii) and 6(a)(iii).
The byelaw No.35 further provides that out of 11 seats of
Director to be elected from taluka zones, three seats shall be reserved for
women which shall be changed as per the rotation as per 11 taluka
zones notified as per byelaw No.35(a)(i).
That as per byelaw No.46, there shall be two different voters'
constituencies, one containing affiliated Milk Producers' Societies and
other containing elected delegates of individual patron members and
other (Itar) societies (Byelaws of the petitioner Milk Producers' Union is
produced at AnnexureF to the petition).
[3.4] It appears that as the proceedings were pending before the
Hon'ble Supreme court with respect to the delimitation of the
Page 7 of 66
7 of 69
C/SCA/1611/2015 CAV JUDGMENT
constituencies and power of the Collector to delimit the constituencies in
exercise of powers under Rules 3A(8) and 3A(9) of the Election Rules,
1982, no further steps were taken by the Collector and/or the Election
Officer and/or even the Registrar, on the proposal of the Milk Producers'
Union dated 07.07.2014. However, it appears that as regards the
election of the delegates of the other societies and individual patron
members, as the said election was required to be held by the petitioner -
Milk Producers' Union itself and therefore, vide order dated 15.05.2014,
the petitioner - Milk Producers' Union appointed the Chief Election
Officer to conduct the elections for electing delegates of other (Itar)
societies and individual patron members. It appears that thereafter the
said Chief Election Officer published Election Programme on 19.05.2014
for conducting the election of the delegates of other (Itar) societies and
individual patron members. It appears that voters' list to elect the
delegates came to be published. At this stage it is required to be noted
that as per the byelaw No.6(a)(ii), as far as other (Itar) societies are
concerned, for every 10 societies there shall be one vote and so far as
individual patron members are concerned, for every 25 individual
members, there shall be one vote. Accordingly, for 70 other (Itar)
societies, 7 delegates were to be elected, whereas, for 98 individual
patron members, 4 delegates were to be elected. Therefore, the election,
if any, was required to be conducted for 11 delegates [7 of other (Itar)
societies and 4 of individual patron members]. However, according to
the petitioner - Milk Producers' Union, only 11 nominations remained
and therefore, all the said 11 delegates were declared uncontested and
the result came to be declared on 02.06.2014. At this stage it is required
to be noted that as per the byelaws, the said 11 delegates are required
to elect one amongst themselves as a Director in the Board of Directors
in the Milk Producers' Union, more particularly as per byelaw No.35(1)
(b) of the Byelaws.
Page 8 of 66
8 of 69
C/SCA/1611/2015 CAV JUDGMENT
[3.5] That as observed herein above vide judgment and order dated
19.11.2014, the Hon'ble Supreme Court dismissed the Appeals / Special
Leave Petitions against the decision of the Full Bench of this Court in
Special Civil Application No.12067/2012 and held that the powers of the
Collector to delimit the constituencies as provided under Rules 3A(8)
and 3A(9) of the Election Rules, 1982 are independent powers and if it
is found that the byelaws of the society/specified society are not in
conformity with the statutory provisions more particularly the Election
Rules, 1982, the statutory Rules would prevail and the byelaws which
are found to be in conflict with the statutory Rules are to be ignored.
The Hon'ble Supreme Court had also confirmed the view taken by the
Full Bench of this Court in Special Civil Application No.12067/2012 and
other allied Special Civil Applications and has held that in case it is
found that as per the byelaws the number of constituencies are not
equal to the number of seats, the Collector would have independent
powers to delimit the constituencies as per Rules 3A(8) and 3A(9) of
the Election Rules, 1982.
[3.6] It is the case on behalf of the petitioner - Milk Producers' Union
that after the decision of the Hon'ble Supreme Court dismissing the Civil
Appeals preferred against the judgment and order of the Full Bench of
this Court in Special Civil Application No.12067/2012 and thereafter
confirming the order of the Full Bench of this Court in Special Civil
Application No.12067/2012, it become clear that election is to be held
as per the directions issued by the Full Bench of this Court by providing
for constituencies as per Rules 3A(8) and 3A(9) of the Election Rules,
1982 and the petitioner - Milk Producers' Union was required to reserve
the seats of Directors as per the amended provisions of Sections 74(1B)
(i) and (ii) of the Act, 1961 and therefore, considering the judgment of
the Hon'ble Supreme Court and the provisions contained in the Act,
Page 9 of 66
9 of 69
C/SCA/1611/2015 CAV JUDGMENT
1961 and the Election Rules, 1982, the petitioner - Milk Producers'
Union made a proposal on 02.01.2015 to the respondent No.4 - Prant
Officer and the respondent No.5 - District Registrar, whereby it
proposed that there shall be 13 seats for 13 different taluka zones. That
the petitioner - Milk Producers' Union also proposed to have different
Directors (one each) for Kheralu Taluka, for Vadnagar Taluka and for
Satlasana Taluka, considering the average supply of milk of last 3 years,
as according to the petitioner - Milk Producers' Union, 1/5th was from
these three talukas and out of total societies affiliated with the petitioner
- Milk Producers' Union, 1/6th societies were from these three talukas.
That the petitioner - Milk Producers' Union also proposed that the
delegates of the individual patron members and other societies shall
elect from themselves one Director and that there shall be two seats
reserved for women as per section 74(1B)(i) of the Act, 1961. That the
petitioner - Milk Producers' Union also proposed that there shall be one
seat reserved for Schedule Caste as per Section 74(1B)(i) and one seat
reserved from small and marginal farmers as per Section 74(1B)(ii) of
the Act, 1961. That the petitioner - Milk Producers' Union also proposed
that the aforesaid four reserved seats shall be general i.e. the voters for
the aforesaid four reserved seats shall be from all the affiliated members
of the petitioner - Milk Producers' Union. Accordingly, the petitioner -
Milk Producers' Union proposed 13 seats from one taluka each, one
Director to be elected by delegates of individual patron members and
other (Itar) societies, two Directors reserved for women, one Director
reserved for Schedule Caste and one Director reserved for small and
marginal farmers.
[3.7] That by impugned order dated 17.01.2015 and in purported
exercise of powers under Rule 3A(9) of the Election Rules, 1982, the
respondent No.4 Election Officer and Prant Officer has delimited the
Page 10 of 66
10 of 69
C/SCA/1611/2015 CAV JUDGMENT
constituencies / changed/ altered the constituencies and even number of
seats and has provided that the elections for 16 seats shall be held by
reserving the seats of Schedule Caste, women within 16 seats and by
including other (Itar) societies' delegates and individual members
delegates within the 16 seats.
Thus, by impugned order dated 17.01.2015 in purported exercise
of powers under Rule 3A(9) of the Election Rules, 1982, the respondent
No.4 has delimited the constituencies into 16 constituencies which shall
include the reserved seats of Schedule Caste, women and even other
(Itar) Societies delegates and individual members delegates. That by
impugned order and delimiting the constituencies into 16 different
constituencies in purported exercise of powers under Rule 3A(9) of the
Election Rules, 1982, the respondent No.4 has provided that
Constituency No.7 shall be reserved for Schedule Caste and Constituency
No.16 shall be reserved for women. That by impugned order the
respondent No.4 has also provided that Constituency Nos.11 and 16
shall be reserved for women. That by impugned order and reserving
Constituency No.11 for women the respondent No.4 has also provided /
mentioned that for Constituency No.11 which is reserved for women, the
voters shall be 68 affiliated member cooperative societies + 3 delegates
and other (Itar) Societies + 2 delegates and individual patrons. That by
impugned order, with respect to Constituency Nos.9, 10, 12 and 13, the
voters shall be affiliated member societies + delegate of other (Itar)
Societies + delegates of individual patrons. That by impugned order and
in purported exercise of powers under Rule 3A(9) of the Election Rules,
1982, the respondent No.4 has delimited the constituencies and/or has
provided the constituencies / seats as under:
Page 11 of 66
11 of 69
C/SCA/1611/2015 CAV JUDGMENT
Sr. Name of Voter Society Strength of Voters' list No. of
No. Voter No. members
Societies to be
elected
1 Affiliated Cooperative Milk 67 Voters 01
Producers' Societies of Satlasana included
Taluka in voter
society
2 Affiliated Cooperative Milk 67 " " 01
Producers' Societies of Kheralu
Taluka
3 Affiliated Cooperative Milk 76 " " 01
Producers' Societies of Unjha
and Vadnagar Talukas
4 Affiliated Cooperative Milk 67 " " 01
Producers' Societies of Visnagar
Taluka
5 Affiliated Cooperative Milk 76 " " 01
Producers' Societies of Vijapur
Taluka
6 Affiliated Cooperative Milk 64 " " 01
Producers' Societies of Kadi
Taluka (Southern area)
(Dhoriya to Alusana, Sadra via
Kadi - area under SH 133)
7 Affiliated Cooperative Milk 64 " " 01 Sche
Producers' Societies of Jotana duled
Taluka and Kadi Taluka Caste
(Northern division) Reserved
8 Affiliated Cooperative Milk 53 " " 01
Producers' Societies of Becharaji
Taluka and Mehsana Taluka
(Area of Balol to Mitha of
Mehsana Taluka, Heduva Rajgar
to Panchot Circle thro Bypass,
Aloda of Becharaji Taluka)
9 Affiliated Cooperative Milk 80 " " 01
Producers' Societies of Mehsana + 1 Itar
Taluka (Eastern division) (Area society
of Mehsana Taluka other than representative
+ 2 person
the one shown in 8 above) representative
10 Affiliated Cooperative Milk 67 " " 01
Producers' Societies of Kalol
Taluka
11 Affiliated Cooperative Milk 68 " " 01 Women
Producers' Societies of Mansa + 3 Itar reserved
Taluka society
Page 12 of 66
12 of 69
C/SCA/1611/2015 CAV JUDGMENT
representative
+ 2 person
representative
12 Affiliated Cooperative Milk 86 " " 01
Producers' Societies of + 1 Itar
Patan/Vagdod Taluka (Area of society
Patan/Vagdod other than shown representative
in Sr.No.13)
13 Affiliated Cooperative Milk 63 " " 01
Producers' Societies of Harij + 1 Itar
Taluka and Patan Taluka society
(Southern Division) (Villages representative
going on road to Harij i.e.
Mithavavdi to Kotpur, Patan
Sajnipar, Rughnathpura, Kansa,
Kalodi to Shihori)
14 Affiliated Cooperative Milk 82 " " 01
Producers' Societies of Sami
Taluka
15 Affiliated Cooperative Milk 59 " " 01
Producers' Societies of Siddhpur
Taluka
16 Affiliated Cooperative Milk 54 " " 01 Women
Producers' Societies of reserved
Chanasma Taluka
1093+11 16
[3.8] Feeling aggrieved and dissatisfied with the impugned order dated
17.01.2015 of the respondent No.4 Election Officer/Prant Officer in
delimiting the constituencies / allocation of the seats in purported
exercise of powers under Rule 3A(9) of the Election Rules, 1982, the
respective petitioners have preferred the present Special Civil
Applications under Article 226 of the Constitution of India for the
aforesaid three different reliefs. Thus, Special Civil Application
No.1611/2015 is challenging the impugned order dated 17.01.2015
passed by the respondent No.4 of delimiting the constituencies in
purported exercise of powers under Rule 3A(9) of the Election Rules,
1982 i.e. with respect to delimitation of constituencies as well as
allocation of seats; providing the number of seats etc. and Special Civil
Application No.1642/2015 is challenging the impugned order dated
Page 13 of 66
13 of 69
C/SCA/1611/2015 CAV JUDGMENT
17.01.2015 providing reservation of two seats only for women and that
too contrary to the byelaws (with respect to rotation etc.) and Special
Civil Application No.1645/2015 is challenging the impugned order
dated 17.01.2015 passed by the respondent No.4 Prant Officer insofar as
with respect to taking away the rights of the delegates of the other (Itar)
Societies and individual patron members to elect one Director from and
amongst the delegates elected by them.
[4.0] Shri Mihir Joshi, learned Senior Advocate has appeared on behalf
of the respective petitioners in Special Civil Application Nos.1611/2015
and 1645/2015 and Shri S.N. Shelat, learned Senior Advocate has
appeared on behalf of the petitioner in Special Civil Application
No.1642/2015. Shri Prakash K. Jani, learned Additional Advocate
General has appeared on behalf of the respondent State authorities
including respondent no.4 - Prant Officer and Shri B.S. Patel, learned
advocate has appeared on behalf of the intervenor Society who is
permitted to be joined as an intervenor pursuant to the order passed by
this Court in Civil Application No.2410/2015 in Special Civil Application
No.1642/2015 and Civil Application No.2411/2015 in Special Civil
Application No.1645/2015.
Special Civil Application Nos.1611/2015 & 1645/2015
[5.0] Shri Mihir Joshi, learned Senior Advocate appearing on behalf of
the petitioner - Milk Producers' Union has vehemently submitted that
the impugned order / decision of the respondent No.4 Election Officer -
Prant Officer in purported exercise of powers under Rules 3A(8) and 3
A(9) of the Election Rules, 1982 is absolutely illegal, most arbitrary and
even contrary to the provisions of the Act, 1961 and the Election Rules,
1982. It is submitted that as such while passing the impugned order, the
respondent No.4 - Prant Officer has not only delimited the
Page 14 of 66
14 of 69
C/SCA/1611/2015 CAV JUDGMENT
constituencies but has also altered the number of seats/provided the
reservation/s and that too even contrary to the byelaws, the powers
which the Collector does not possess while exercise of powers under
Rules 3A(8) and 3A(9) of the Election Rules, 1982. It is submitted that
therefore the respondent No.4 by passing the impugned order has
exercised the jurisdiction not vested in it while exercising the powers
under Rules 3A(8) and 3A(9) of the Election Rules, 1982 and/or has
acted without jurisdiction and/or authority under the law.
[5.1] It is submitted by Shri Joshi, learned Senior Advocate that in the
present case even the Collector / respondent No.4 / Prant Officer has
materially erred in passing the impugned order by invoking Rule 3A(9)
of the Election Rules, 1982. It is submitted that Rule 3A(9) can be
invoked only when the society has not delimited the constituencies in
the manner contemplated under subRule (1) to (7) of Rule 3A of the
Election Rules, 1982, on account of the elections being scheduled before
the end of the accounting year, or under its byelaws.
[5.2] It is submitted that therefore when the constituencies are
specifically prescribed under the byelaws, and there is compliance with
Rule 3A(8), the provisions of Rule 3A(8) and 3A(9) shall have no
application. It is submitted that this is evident from Rule 4 which
provides for preparation of provisional voters' list constituencywise
where constituencies are provided in the byelaws.
[5.3] It is submitted that only in a case where the byelaws are in
conflict with Rule 3A(8) of the Election Rules, 1982 and the society has
not undertaken the exercise of delimitation in a manner that the number
of constituencies equal the number of seats as contemplated therein, a
power has been read in that the Collector to effectuate the intention of
the said Rule by undertaking delimitation of constituencies.
Page 15 of 66
15 of 69
C/SCA/1611/2015 CAV JUDGMENT
[5.4] It is submitted that even in a case where Rule 3A applies, the
words notwithstanding anything contained in the Rules and the byelaws
of the society cannot be read as conferring absolute power to the
Collector to undertake delimitation as per its absolute discretion. It is
submitted that such power can be exercised by overriding contrary
provisions in the Rules and the byelaws only to the extent necessary to
achieve the purpose for the exercise of power, which is to delimit the
constituencies to comply with the mandate of Rule 3A(8) and not by
ignoring the byelaws entirely.
[5.5] It is further submitted that Rule 3A(9) of the Election Rules, 1982
does not confer any supervisory or appellate jurisdiction on the Collector
over the delimitation of the constituencies by the Society, either in
accordance with law 3A(1) to 3A(7) or as prescribed under the bye
laws of the society. It is submitted that the correctness of the
delimitation by the society is not subject to scrutiny by the Collector. It is
submitted that once the total number of constituencies equals the total
number of seats, the Collector has no jurisdiction to undertake any
further inquiry in exercise of powers under Rule 3A(9) of the Election
Rules, 1982. It is submitted that the scheme of the Rules indicate that
the delimitation is undertaken by the society itself which is considered
final. It is submitted that such power cannot be implied. It is submitted
that this would entrench upon the autonomy of the cooperative societies
and bring in undesriable State control.
[5.6] It is further submitted that even in a case when the Collector seeks
to exercise powers under Rule 3A(9) of the Election Rules, 1982, it is
incumbent upon him to issue a showcause notice to the society
indicating the reasons why the power is sought to be exercised. It is
submitted that it is also necessary for him to indicate in such notice the
Page 16 of 66
16 of 69
C/SCA/1611/2015 CAV JUDGMENT
proposed list of constituencies and seek the response of the society to the
same.
[5.7] It is further submitted that in the event the Collector finds that
there is a conflict between the byelaws of the society and the provisions
of the Rule 3A(8), the exercise of power should be proportionate to the
extent of conflict. It is submitted that in other words intervention only to
the extent required to resolve the conflict should be undertaken and it
should not be taken as a blanket charter to chop. It is submitted that any
other interpretation would render Rule 3A(9) illegal and/or even ultra
vires to the provisions of the Act, 1961.
[5.8] It is submitted that in the present case the proposal of the Milk
Producers' Union dated 02.01.2015 was absolutely in conformity with
the requirement of Rule 3A(8) of the Election Rules, 1982 and
therefore, ought to have been accepted by the respondent No.4.
[5.9] It is submitted that in any event even the byelaws of the Society
are in conformity with the Rule 3A(8) of the Election Rules, 1982 and
therefore, as such Rule 3A(8) of the Election Rules, 1982 does not apply
at all. It is submitted that there is a separate constituency for each seat.
It is submitted that the fact that one member votes in more than one
capacity is not foreign to the scheme of the Act, 1961 and Election Rules,
1982 which is evident from Rule 3B of the Election Rules, 1982.
[5.10] It is further submitted that assuming that the proposal of
the society did not merit acceptance, the Collector could not have
substituted the constituencies overlooking the byelaws of the society.
[5.11] It is submitted that in the present case the petitioner society
was never called upon to showcause why byelaws should be considered
Page 17 of 66
17 of 69
C/SCA/1611/2015 CAV JUDGMENT
to be in conflict with Rule 3A(8) of the Election Rules, 1982 or that its
proposal was likely to be rejected and was also not called upon to submit
its objections/comments on the proposed delimitation of the
constituencies.
[5.12] It is further submitted that assuming that the overlap of
members in byelaw No.35(1)(A)(1) and (2) was impermissible, the
members falling in the later byelaw ought to have been excluded from
the former, in keeping with the principle of minimal and proportionate
interference. It is submitted that it would not be permissible for the
Collector to extinguish the constituency of class of members and deny
them the representation in the committee as provided in the byelaws of
the society.
[5.13] It is submitted that similarly it was impermissible for the
Collector to extinguish the constituency of other (Itar) societies and
individual members and deny them the representation from amongst
themselves in the committee, as provided in the byelaws.
[5.14] It is further submitted that even the action of the Collector
by the impugned order increasing the number of constituencies and
seats from 11 + 4 (15 under the byelaws) to 16, which is
impermissible.
[5.15] It is further submitted that even the seat reserved for
Schedule Caste and Schedule Tribe under Section 74(1B)(i) is in
addition to the seats for which the constituencies have been delimited
and therefore, it was impermissible for the Collector to reserve a
particular constituency for the purpose. It is submitted that in any case
there is no justification for reserving the particular constituency.
Page 18 of 66
18 of 69
C/SCA/1611/2015 CAV JUDGMENT
[5.16] It is further submitted that even the reservation of seats for
women is contemplated to be by rotation under the byelaws which has
not been followed. It is submitted that there is no rationale for reserving
the particular constituencies for women. It is further submitted that
moreover the reservation for women of more seats than that the
prescribed under the Act, 1961, does not render the byelaws invalid. It
is submitted that reservation of this nature is prescription of the
minimum requirement.
[5.17] It is further submitted that even otherwise the order does
not spell out the reasons or justification and therefore, it is
impermissible for the Collector to support the order by filing the
affidavit. It is submitted that even the affidavit in reply discloses that the
Collector has clearly overstepped its jurisdiction.
[5.18] It is submitted that in the facts and circumstances of the
case the Collector ought to have allowed the proposal of the society
dated 02.01.2015 or directed the society to proceed in accordance with
the byelaws, notwithstanding the fact that the proposal of the society
was not in conformity with the same, taking into account the fact that
the society had earlier offered to proceed as per its byelaws. It is further
submitted by Shri Joshi, learned Senior Advocate that by impugned
order the Prant Officer in exercise of powers under Rule 3A(9) of the
Election Rules, 1982 has even taken away the rights of the delegates
elected by the other (Itar) societies and individual patron members to
elect the Director from amongst the delegates elected by them, which is
highly impermissible. It is submitted that Rule 3A(9) of the Election
Rules, 1982 does not confer any such powers upon the Collector.
[5.19] It is further submitted by Shri Joshi, learned Senior
Page 19 of 66
19 of 69
C/SCA/1611/2015 CAV JUDGMENT
Advocate that by impugned order and by delimiting the constituencies
and providing number of voters, the principle of One Person One Vote
shall be violated. It is submitted that for example in the Constituency
Nos.9, 12 and 14, there shall be 80, 86 and 82 voters respectively,
however in Constituency Nos.8, 15 and 16, there shall be 53, 59 and 54
voters respectively who shall elect one Director. It is submitted that
therefore on the aforesaid ground also the impugned order deserves to
be quashed and set aside. In support of his above submissions, he has
heavily relied upon the decision of the Division Bench of this Court in
the case of Kaira District Cooperative Milk Producers Union vs. State
of Gujarat and Ors. rendered in Special Civil Application
No.293/2015.
[5.20] Shri Joshi, learned Senior Advocate appearing on behalf of
the petitioner has vehemently submitted that the controversy before the
Full Bench of this Court and thereafter before the Hon'ble Supreme
Court against the decision of the Full Bench of this Court in Special Civil
Application No.12067/2012 was with respect to the powers of the
Collector under Rules 3A(8) and 3A(9) of the Election Rules, 1982, in
a case where it is found that the byelaws of the society are not in
conformity with the Act, 1961 and the Election Rules, 1982 more
particularly Rule 3A(8) of the Election Rules, 1982 and to that it is held
that when there is any conflict between the byelaws of the society and
the statutory Rules, the statutory Rules shall prevail and such byelaws
are to be ignored and in such a case the Collector would have
independent power of delimitation of the constituencies as per Rule 3
A(9) of the Election Rules, 1982. It is submitted that neither before the
Full Bench nor before the Hon'ble Supreme Court against the decision of
the Full Bench, there was any issue how and in what manner the
Collector can exercise the powers under Rule 3A(9) of the Election
Page 20 of 66
20 of 69
C/SCA/1611/2015 CAV JUDGMENT
Rules, 1982. It is submitted that such an issue with respect to manner
and the method in which the Collector is to exercise the power under
Rule 3A(9) of the Election Rules, 1982 is arising for the first time. It is
submitted that therefore, neither the decision of the Full Bench nor the
decision of the Hon'ble Supreme Court against the decision of the Full
Bench shall come in the way in deciding the questions/issues arising in
the present petitions. It is submitted that even if the powers of the
Collector of delimiting the constituencies under Rule 3A(9) of the
Election Rules, 1982 are conceded in light of the decision of the Full
Bench as well as Hon'ble Supreme Court, in that case also, the impugned
order and the exercise of powers by the Collector - respondent No.4 in
exercise of powers under Rule 3A(9) of the Election Rules, 1982 is
absolutely illegal, most arbitrary and without jurisdiction and/or
exercising the powers not vested in it while exercising the powers under
Rules 3A(9) of the Election Rules, 1982.
Making above submissions, it is requested to allow the present
Special Civil Applications and quash and set aside the impugned order
passed by the respondent No.4 - Prant Officer and to direct the Prant
Officer to delimit the constituencies as per the proposal of the petitioner
- Milk Producers' Union dated 02.01.2015.
Special Civil Application No.1642/2015
[6.0] Shri S.N. Shelat, learned Senior Advocate appearing on behalf of
the petitioner in Special Civil Application No.1642/2015 has vehemently
submitted that the impugned order dated 17.01.2015 passed by the
respondent No.4 herein providing reservation of only two seats for
women though the byelaws provide for reservation of 3 seats for
women, is absolutely illegal and wholly without jurisdiction. It is
submitted that even the allocation of the reservation of two seats for
women from one constituency to two different zones i.e. Mansa and
Page 21 of 66
21 of 69
C/SCA/1611/2015 CAV JUDGMENT
Chanasma is also absolutely illegal and beyond the scope and ambit of
Rule 3A(9) of the Election Rules, 1982.
[6.1] It is further submitted by Shri Shelat, learned Senior Advocate
appearing on behalf of the petitioner that in the case of Rajkot District
Cooperative Bank Ltd. vs. State of Gujarat and Ors. now reported in
AIR 2015 SC 489 which was against the decision of the Full Bench of
this Court, the Hon'ble Supreme Court has interpreted Rules 3A(8) and
3A)9) of the Election Rules, 1982. It is submitted that in the aforesaid
decision the Hon'ble Supreme Court has observed and held that the
Collector can exercise his powers under subRule (9) of Rule 3A only if
the society has not delimited its constituencies in accordance with Rules
3A(8) and 3A(9) of the Election Rules, 1982 applies provided byelaws
of the society are inconsistent with Rule 3A(8) of the Election Rules,
1982. It is further submitted by Shri Shelat, learned Senior Advocate
appearing on behalf of the petitioner that in the present case byelaw
No.35(1)(A) provides reservation of 3 seats for women to be allotted in
rotation. It is submitted that the provision / byelaw reserving 3 seats
for women representatives, is not in conflict or inconsistent with the
provisions of Section 74(1B)(i) of the Act, 1961. It is submitted that
section 74(1B)(i) of the Act, 1961 provides that "there shall be two seats
for women in the Managing Committee of every society consisting of
individuals as members and having members from such class or category
of persons". It is submitted that if wherever legislature desire that
number of members shall not exceed then the prescribed, the legislature
has provided that such number shall not exceed. It is submitted that
section 74(1B)(a) proviso provides that not more than 2 members can be
coopted. It is submitted that in section 74(1B)(i), there is no such
provision (not exceeding). It is submitted that though the said section
does not provide that two seats are minimum, if the members of the
Page 22 of 66
22 of 69
C/SCA/1611/2015 CAV JUDGMENT
society are desirous of providing more representations to the women,
providing reservation for more than two members cannot be said to be
inconsistent with the provisions of section 74(1B)(i) of the Act, 1961. It
is submitted that therefore provision of 3 seats for women in the bye
laws cannot be considered to be inconsistent or in conflict with section
74(1B)(i) of the Act, 1961 which provides reservation for two seats for
women. In support of his above submissions, Shri Shelat, learned Senior
Advocate has heavily relied upon the decision of the Hon'ble Supreme
Court in the case of U.P. Cooperative Cane Unions Federation vs. West
U.P. Sugar Mills Association and Ors. reported in AIR 2004 SC 3697
(Paras 139 and 142) as well as the decision of the Hon'ble Supreme
Court in the case of Zoroastrian Cooperative Housing Society Ltd. vs.
District Registrar Cooperative Societies (Urban) and Ors. reported in
AIR 2005 SC 2306 (Para 15). It is submitted that therefore when the
members having agreed to reservation of 3 seats for women, the said
byelaws cannot be said to be in conflict or inconsistent with section
74(1B)(i) of the Act, 1961. Shri Shelat, learned Senior Advocate has also
relied upon the decision of the Madhya Pradesh High Court in the case
of Ramachandra Reddy and Anr. vs. State of A.P. reported in AIR 2010
MP 64.
[6.2] Shri Shelat, learned Senior Advocate appearing on behalf of the
petitioner has also relied upon the decision of the Hon'ble Supreme
Court in the case of Toguru Sudhakar Reddy vs. Government of
Andhra Pradesh reported in AIR 1994 SC 544 and has submitted that in
the aforesaid decision the Hon'ble Supreme Court has held that the total
reservation for women cannot go beyond 50% and the Hon'ble Supreme
Court has upheld the decision of the High Court that the reservation can
go upto 50%.
Page 23 of 66
23 of 69
C/SCA/1611/2015 CAV JUDGMENT
[6.3] Shri Shelat, learned Senior Advocate appearing on behalf of the
petitioner has also relied upon the decision of the Hon'ble Supreme
Court in the case of Dr. Preeti Srivastava vs. State of Madhya Pradesh
reported in AIR 1999 SC 2894. It is submitted that in the aforesaid
decision the Hon'ble Supreme Court has observed and held that there
can be Rules for admission which are consistent with and do not affect
adversely the standards of education prescribed by the Union. It is
submitted that in the aforesaid decision it is held that the State can lay
down qualifications in addition to those prescribed by the Central
Government and it would be consistent with permitting higher standard.
It is submitted that in the case S. Satyapal Reddy vs. Government of
Andhra Pradesh reported in (1994)4 SCC 391, the Hon'ble Supreme
Court has held that the Rules which prescribe higher qualifications are
not repugnant to Central Rules.
[6.4] It is further submitted by Shri Shelat, learned Senior Advocate
appearing on behalf of the petitioner that though the Hon'ble Supreme
Court in the case of Rajkot District Cooperative Bank Ltd. (Supra) has
held that the power of the Collector under Rule 3A(9) of the Election
Rules, 1982 is absolute, the Collector/competent authority has
power/jurisdiction under Rules 3A(8) and 3A(9) of the Election Rules,
1982 only on the ground; 1) that the constituencies are made equal to
total number of available seats, 2) delimitation of the constituency is to
be undertaken provided the society has not complied with the
requirement in the byelaws. It is submitted that save and except
delimitation of the constituencies the Collector/competent authority
cannot travel beyond adjusting the boundaries. It is submitted that even
in para 20, the Hon'ble Supreme Court in the case of Rajkot District
Cooperative Bank Ltd. (Supra) has observed that the Collector in
exercise of his power may bifurcate the constituencies so as to make
Page 24 of 66
24 of 69
C/SCA/1611/2015 CAV JUDGMENT
them equal the total number of seats. It is submitted that even in para 16
the Hon'ble Supreme Court has observed and held that the provision of
Rule 3A(9) of the Election Rules, 1982 are aimed at geographical i.e.
territory or zone wise bifurcation of division. It is submitted that
therefore in the present case the respondent No.4 - Prant Officer is not
right in changing the roster, according to his own considerations and not
continuing the roster as provided in the byelaws. It is submitted that
therefore the entire exercise is arbitrary and without jurisdiction.
[6.5] It is further submitted by Shri Shelat, learned Senior Advocate
appearing on behalf of the petitioner that Rule 3A(8)/ 3A(9) of the
Election Rules, 1982 provide for delimitation of constituencies by the
Collector and that too when the byelaws of the society are inconsistent
with the statutory Rules i.e. the constituencies provided under the bye
laws are not equal to the number of seats. Relying upon the decision of
the Andhra Pradesh High Court in the case of Ramachandra Reddy
(Supra), it is submitted that "delimit" means "to mark out as a
boundary; to bound to mark or determine the limits of; to define as a
limit or boundary". It is submitted that in the aforesaid decision the
Andhra Pradesh High Court has held that the word "delimit" is used in
the sense of adjusting or demarketing the boundaries between two
entities belonging to two different persons or countries or bodies. It is
submitted that therefore assuming that the Collector would have
absolute power of delimitation of constituencies under Rule 3A(9) of
the Rules, 1982, the competent authority / Collector cannot travel
beyond delimitation. It is submitted that therefore the Prant Officer is
not right in changing the roster according to his own considerations and
not continuing the roster as provided in the byelaws. It is submitted that
therefore the entire exercise is arbitrary and without jurisdiction.
Page 25 of 66
25 of 69
C/SCA/1611/2015 CAV JUDGMENT
[6.6] It is further submitted by Shri Shelat, learned Senior Advocate
appearing on behalf of the petitioner that in the present case two seats
for women should have been allotted to Vijapur and Visnagar (in
continuance), while the respondent No.4 - Prant Officer has provided
the seats for Mansa Taluka and Chanasma Taluka overlooking that the
seats for Mansa Taluka is being repeated for women. It is submitted that
there is a logic in providing reservation as per the roster prepared by the
byelaws. It is submitted that it would have been rationale if the roster
were continued and the seats should have been allotted in accordance
with the roster to Vijapur and Visnagar.
[6.7] Now, so far as the contention on behalf of the petitioner that
while exercising powers under Rule 3A(9) of the Election Rules, 1982,
the Collector/Deputy Collector ought to have observed the principles of
natural justice and ought to have been given an opportunity of being
heard, it is submitted that unless a statutory provision, either specifically
or by necessary implication excludes the application of principles of
natural justice, because in that event the Court would not exclude the
legislative mandate, the requirement of giving reasonable opportunity of
being heard before the order is made, is generally read into the
provisions of a Statute, particularly when the order has adverse civil
consequences which obviously cover infra action of property, personal
rights and material deprivations for the party affected. It is submitted
that aforesaid principle holds good irrespective of whether the power
conferred on a statutory body or Tribunal is administrative or quasi
judicial. In support of his above submissions, he has heavily relied upon
the decisions of the Hon'ble Supreme Court in the case of Automative
Tyre Manufacturers Association vs. The Designated Authority & Ors.
reported in (2011)2 SCC 258.
Page 26 of 66
26 of 69
C/SCA/1611/2015 CAV JUDGMENT
[6.8] It is submitted that therefore the principles of natural justice are
required to be read into the provisions more particularly Rules 3A(8)
and 3A(9) of the Election Rules, 1982, which affect the delimitation of
the constituencies. It is submitted that therefore, it was the duty of the
respondent No.4 Prant Officer to seek objections against proposed
constituencies. It is submitted that even Delimitation Act, 2002 has also
provided for invitation of objections and suggestions. It is submitted that
providing hearing on the manner and method of delimitation of
constituencies or allotment of seats for reserved candidate would be in
conformity with the law, if hearing if provided. It is submitted that in the
facts of the case, continuity of roster or roster according to the
alphabetical order would have been provided for if the objections were
called for. Shri Shelat, learned Senior Advocate appearing on behalf of
the petitioner has submitted that if the proposal sent by the society for
delimitation of constituencies was not accepted by the Collector in that
case while exercising the powers under Rule 3A(9) of the Election
Rules, 1982, the hearing was required to be given to the Society.
[6.9] In the alternative it is further submitted by Shri Shelat, learned
Senior Advocate appearing on behalf of the petitioner that in any case
the number of seats reserved for women may be two seats for women as
provided under Section 74(1B)(i) of the Act, 1961, however the
allocation of seats shall be as per the roster as provided under the bye
laws i.e. rotationwise.
Making above submissions and relying upon above decisions, it is
requested to allow the present Special Civil Application and grant the
reliefs as prayed for in the present petition.
[7.0] Shri P.K. Jani, learned Additional Advocate General appearing on
behalf of the State authorities has vehemently opposed the present
Page 27 of 66
27 of 69
C/SCA/1611/2015 CAV JUDGMENT
petitions. It is vehemently submitted that as such the election of the
members of the Managing Committee of the Milk Federations Union is
due since long and as such the term of the present body has expired as
back as in the month of May, 2014, however on one ground or the other
the elections are not held / not permitted to be held and therefore, the
present body whose term has already expired has been continued.
Therefore, it is requested to permit the respondent No.4 / respondents to
proceed further with the election of the members of the Managing
Committee and all disputes in relation to the delimitation and all other
disputes which are raised in the present petitions may be allowed to be
raised after the election is completed.
[7.1] It is further submitted by Shri Jani, learned Additional Advocate
General that the decision taken by the respondent No.4 in the impugned
order dated 17.01.2015 is absolutely in accordance with the provisions
of the Act, 1961, Election Rules, 1982 and Gujarat Cooperative Societies
Rules, 1965.
[7.2] It is further submitted by Shri Jani, learned Additional Advocate
General that as such there is no illegality and/or irregularity in decision
making process and the decision arrived at by the respondent No.4 is
just and proper and the same is in the larger interest of the Milk
Federation Union having around 4,85,000 members of the primary milk
societies.
[7.3] It is submitted by Shri Jani, learned Additional Advocate General
that the Hon'ble Supreme Court in the case of Rajkot District
Cooperative Bank Ltd. (Supra) has held that the powers of the Collector
of delimitation of constituencies conferred under Rule 3A(9) of the
Election Rules, 1982 are absolute and independent. It is submitted that
in the present case the byelaws of the society are found to be not in
Page 28 of 66
28 of 69
C/SCA/1611/2015 CAV JUDGMENT
conformity with the statutory Rules more particularly Rule 3A(8) of the
Election Rules, 1982 and therefore, the respondent No.4 has rightly
exercised the powers under Rule 3A(9) of the Election Rules, 1982 and
has rightly passed the impugned order dated 17.01.2015.
[7.4] It is further submitted by Shri Jani, learned Additional Advocate
General appearing for the State / State authorities more particularly
respondent No.4 that in the present case and even it is admitted by the
learned Counsel appearing on behalf of the petitioner that the proposal
made by the Milk Federation Union dated 02.01.2015 (Page 182 of the
petition) was absolutely and just contrary to even byelaw No.35 and
even otherwise number of constituencies suggested was not equal to the
number of seats, and therefore, in such a fact situation, exercise of
powers by the respondent No.4 under Rule 3A(9) is absolutely
justifiable and in accordance with the legislative intent of Election Rules,
1982.
[7.5] It is further submitted by Shri Jani, learned Additional Advocate
General that the formation of milk cooperative societies came into force
under the advice of Late Shri Sardar Vallabhbhai Patel and Late Shri
Tribhovandas Patel of Kheda District to start the milk cooperative
societies in opposition to foreign companies like Polson engaged in
manufacturing milk produce. It is submitted that in the State of Gujarat
in Kheda District Late Shri Tribhovandas and Late Shri V. Kurean had
started movement in the field of milk cooperative movement. It is
submitted that the District of Mehsana was traditionally agriculture
oriented District in the year 195060 wherein the families in town and
villages belonging to communities that would keep milk animals like
cows and buffalo and these animals would satisfy their day to day
requirements and also of their families and relatives as the excess
Page 29 of 66
29 of 69
C/SCA/1611/2015 CAV JUDGMENT
produce in the form of milk or ghee was given to the shopkeeper. It is
submitted that in these circumstances, with the scarce and limited
resources the idea of forming the milk union in the District of Mehsana
was initiated and Milk Federations Union was registered on 08.11.1960
under Section 10 of the Bombay Cooperative Societies Act, 1925 and at
that time there was no primary milk cooperative society and the State
participant was also limited and there was acute shortage. It is submitted
that therefore pioneers of the Milk Producers' Union thought it was
appropriate to bring any individuals who can contribute to the share
capital and also other (Itar) cooperative societies who can contribute to
the share capital and provision in the byelaws came to be made and
amended from time to time from 1961 til date. It is submitted that in the
year 1961 the area of operation of the Union was within Mehsana
District having around 104 number of villages and around 13 members
of talukas and thereafter vide notification dated 24.09.1997, Mehsana
District has been bifurcated and the Patan District has been formed
wherein 7 talukas were included in the Patan District and 6 talukas
remained in Mehsana District and thereafter vide notification dated
31.12.1997 it was resolved that earlier vide notification dated
15.10.1997, the Vijapur Taluka of Mehsana District was bifurcated and
Mansa Taluka was formed and the same has been included in the
Gandhinagar District and therefore, it was further resolved to include
some villages from Vijapur and Kalol talukas.
[7.6] It is submitted that at the time of registration of the Milk
Producers' Union there were 32 individual members and 14 from the
other (Itar) cooperative societies and with the passage of time the Milk
cooperative societies with primary level became more and more
vibrant / active and there was no necessity to increase share capital,
however later on certain individual members were given membership on
Page 30 of 66
30 of 69
C/SCA/1611/2015 CAV JUDGMENT
payment of Rs.100/ and as on date there are 97 individual members
and 70 other (Itar) cooperative societies. It is submitted that it was
found that since last 30 years the Chairman were elected from delegates
of such individual members. It was also found that even such individual
members are residing at different places and even the other (Itar)
cooperative societies are also found at different places.
It is submitted that as such thousands and thousands of families
which are spread over in different villages of Mehsana, Patan and
Gandhinagar Districts are contributing to the growth of the Milk
Producers' Union. It was found that there has not been any significant
contribution of the individual as they were not directly involved in dairy
activity and had no stake into the Milk Producers Cooperative Society. It
is submitted that the respondent No.4 has found that one seat
earmarked from the constituency of the individual members and other
cooperative societies is contrary to the provisions of the Act, 1961 and
the Election Rules, 1982 and fulfillment of cooperative movement. It is
submitted that if the functioning of the other (Itar) cooperative societies
who are the members with the District Union is considered then they
also stand on the same footing with the individual members. It is
submitted that record of six other (Itar) cooperative societies including
their annual report would show that there has not been any significant
transactions of these cooperative (Itar) societies in the District Milk
Union. It is submitted that they should go to show that a combined
constituencies of other (Itar) cooperative societies and individual
members who elect one person out of total number of 1093 managing
committee's persons, the contribution of these constituencies is
negligible and not in anyway contributing to the growth, progress and
prosperity of the cooperative movement. It is submitted that therefore it
was found that the combination of two constituencies in the form of
individual and in the form of other (Itar) cooperative societies which
Page 31 of 66
31 of 69
C/SCA/1611/2015 CAV JUDGMENT
together elect one person has been completely negligible. It is submitted
that even in case of some seven other (Itar) cooperative societies except
holding the share of the District Milk Union, they are not at all in any
manner concerned with the affairs of the District Milk Union. It is
submitted that therefore the creation of independent distinct one for
these two class of people who had nothing to do with the cooperative
movement of Mehsana Cooperative Milk Producers' Union was found not
to be consistent with the spread of the cooperative movement. It is
submitted that under these circumstances the respondent No.4 had
taken a decision to merge the delegates from other cooperative societies'
members and also delegates who represent from the individual members
and has placed along with voters, depending upon his residential area. It
is submitted that their right as a voter and right to elect a person are not
taken away. It is submitted that now the individual members and other
(Itar) cooperative societies are now put at par with other (Itar) Milk
Producers Cooperative Societies to bring in uniformity.
[7.7] It is submitted that in the present case as it was found that the
byelaws of the Milk Federations Union were found not to be in
conformity with the provisions of the Act, 1961 and the Election Rules,
1982 and even the proposal of the delimitation of the constituencies by
the petitioner - Milk Producers' Union were found to be not in
conformity with the provisions of the Act, 1961 and the Election Rules,
1982, considering the decision of the Full Bench of this Court rendered
in Special Civil Application No.12067/2012 which has been confirmed
by the Hon'ble Supreme Court, the respondent No.4 has rightly exercised
the powers of delimitation of constituencies under Rules 3A(9) of the
Election Rules, 1982.
[7.8] It is further submitted that vide judgment dated 04.07.2013 the
Page 32 of 66
32 of 69
C/SCA/1611/2015 CAV JUDGMENT
Full Bench of this Court has decided the issue with regards to the
interpretation of Rule 3A(8) of the Election Rules, 1982 and has
directed that the election of the specified societies are to be conducted
by drawing constituencies in accordance with Rule 3A(8) and byelaws
if contrary to the said provisions have to be ignored. It is submitted that
the Full Bench has decided the following issues.
"1. Rule 3A of the Election Rules, 1982 could be applied to the
societies byelaws which provides for a single constituency
because Rule 3A is essentially for delimitation of the
Constituencies and preparation of the voters' list. But we clarify
that subrule (1) to subrule (7) would apply in case of all
specified societies, whether byelaws provide for a single
constituency or more than one constituency. Subrule (8) would
apply to all specified societies having byelaws for single
constituency only if its area of operation is in more than one
village. Subrule (9) would apply to all specified societies where
delimitation of the constituencies are required to be made by the
Collector.
2. The scheme of the Election Rules, 1982 do permit specified
societies having single constituency, provided the area of
operation is limited to one village and in those circumstances,
more than one seat may be provided under the byelaws for one
constituency. The member of such societies can legally be
permitted to vote for more than one seat.
3. The Collector has the power to pass an order for
delimitation of the constituency, even in absence of any
proceedings undertaken in accordance with section 14 of the Act,
1961.
4. The delimitation of constituency under Rule 3A of the
Election Rules, 1982 can also be territorywise. The delimitation of
Page 33 of 66
33 of 69
C/SCA/1611/2015 CAV JUDGMENT
the constituencies can be based upon the objects and activities of
the societies for the classes of individual members since each
classes of individual members since each electorate is to represent
the respective members of a particular area or a particular class,
as the case may be."
[7.9] It is further submitted that even the very petitioner / Milk
Producers' Union carried the judgment of the Full Bench of this Court
before the Hon'ble Supreme Court by preferring Civil Appeal
No.10402/2014 whereby by judgment and order dated 19.11.2014, the
Hon'ble Supreme Court has been pleased to confirm the judgment
passed by the Full Bench. It is submitted that pursuant to the judgment
and order passed by the Hon'ble Supreme Court, on 02.01.2015, the
petitioner - Milk Producers' Union submitted the proposal for
delimitation of the constituencies whereby it was proposed that there
shall be 13 seats for 13 different taluka zones and one seat from Director
to be elected by the delegates of the individual patron members and
other (Itar) societies, two Directors reserved for women and one Director
reserved for schedule caste and one Director reserved for small and
marginal farmers i.e. in all total 18 seats. It is submitted that on perusing
the proposal, it was found unequal representation as in the Mehsana
Taluka it has 111 representatives and in Vadnagar Taluka 42
representatives / voters and therefore, as 16 seats provided in the bye
laws and as per the byelaws, 16 seats were provided wherein in the
proposal of the union it provided for 18 seats and the byelaws also
provided that the Managing Committee of the Union shall consist
maximum of 21 seats and therefore, to bring equal representation, the
respondent No.4 vide impugned order dated 17.01.2015 had formed 16
constituencies by considering geographical area of all the three districts
and to bring equal representation in all the constituencies.
Page 34 of 66
34 of 69
C/SCA/1611/2015 CAV JUDGMENT
[7.10] It is further submitted by Shri Jani, learned Additional
Advocate General that earlier there was no provision of seats to be
decided by the Board of Directors considering the quantity of milk
supplied talukawise which was subsequently added by making
amendment for the first time in the year 1995 and when the said fact
had come to the notice of the respondent No.4 and it was found not in
conformity with the object and purpose of the Act, 1961, more
particularly in light of the decision of the Full Bench of this Court
confirmed by the Hon'ble Supreme Court inasmuch as it created separate
class and resulted into unequal treatment to the members of the other
cooperative milk producers' societies and after holding necessary inquiry
with regard to other Milk Producers' Union wherein neither seats for
supplying higher quantity of milk was provided nor for any individual
members, the respondent No.4 has not accepted the proposal made by
the petitioner - Milk Producers' Union.
[7.11] It is further submitted by Shri Jani, learned Additional
Advocate General that so far as one seat reserved for small farmers and
marginal farmers is concerned, it is submitted that section 74(1B)(ii) of
the Act, 1961 does not provide to reserve the seat compulsorily for small
and marginal farmers.
[7.12] It is submitted that even with respect to three seats reserved
for women as per the byelaws is concerned, it is submitted that as per
the provisions of the Act, 1961 more particularly section 74(1B)(i) of the
Act, 1961 which has been brought on statute considering the
Constitutional Amendment (97th Amendment) and Articles 234HZ,
234ZE, there shall be two seats reserved for women. It is submitted that
therefore when in the byelaw of petitioner - Milk Producers' Union, it
provided reservation of three seats for women, the same is not in
Page 35 of 66
35 of 69
C/SCA/1611/2015 CAV JUDGMENT
conformity with the provisions of Act, 1961 i.e. section 74(1B)(i) of the
Act, 1961. It is submitted that section 74(1B)(i) provides that there shall
be reserved two seats for women in the managing committee of every
society. It is submitted that it does not provide minimum two seats. It is
submitted that it is a cardinal principle of Interpretation of Statute that
while interpreting a particular statute, the Court cannot add anything
and/or read into anything which is not there in the statute. It is
submitted that the statute and/or a particular provision is required to be
read as it is. It is submitted that therefore on plain reading of section
74(1B)(i) of the Act, 1961, there cannot be any reservation for women
more than what is provided under Section 74(1B)(i) of the Act, 1961.
[7.13] It is submitted that the delimitation of the constituencies by
the respondent No.4 by the impugned order dated 17.01.2015 is
absolutely in consonance with the decision of the Full Bench of this
Court confirmed by the Hon'ble Supreme Court and in consonance with
the provisions of the Act, 1961 and the Election Rules, 1982 more
particularly section 74 and Rules 3A(8) and 3A(9) of the Election
Rules, 1982, which in the facts and circumstances of the case, is not
required to be interfered with by this Court in exercise of powers under
Article 226 of the Constitution of India. It is submitted that as such the
term of the present body had already expired as far as back in May, 2014
and for one reason or the other fresh election has not been held and/or
permitted to be held and therefore, it is requested to dismiss the present
petition and permit the respondent No.4/Authorized Officer / Election
Officer to proceed further with the election of the members of the
managing committee of the petitioner - Milk Producers' Union as per the
delimitation of the constituency by impugned order dated 17.01.2015.
[7.14] Now, so far as the contention on behalf of the petitioners
Page 36 of 66
36 of 69
C/SCA/1611/2015 CAV JUDGMENT
that before exercising the powers under Rules 3A(8) / 3A(9) of the
Election Rules, 1982 by the Collector of delimitation of constituencies,
an opportunity of hearing is required to be given to the concerned
society and the submission of learned advocates appearing for respective
petitioners that the impugned decision dated 17.01.2015 is in breach of
principles of natural justice is concerned, it is vehemently submitted by
Shri Jani, learned Additional Advocate General that the statute/Rules
does not provide any such hearing either before and/or while exercising
the powers under Rule 3A(9) of the Election Rules, 1982. It is
submitted that even while considering the provisions of Rules 3A(8)
and 3A(9) of the Election Rules, 1982 by the Hon'ble Supreme Court as
well as the Full Bench of this Court, no such requirement is read into. It
is submitted that the Hon'ble Supreme Court as well as the Full Bench of
this Court while recognizing the actual and independent powers of the
Collector of delimitation of constituencies under Rule 3A(9) of the
Election Rules, 1982, have not observed anything with respect to any
hearing to be given to the society by the Collector before exercising the
powers under Rule 3A(9) of the Election Rules, 1982. It is submitted
that when the statute does not provide any such requirement and even
the Hon'ble Supreme Court as well as Full Bench of this Court have not
observed anything with respect to such requirement, it is submitted that
the impugned decision dated 17.01.2015 cannot be said to be in breach
of principles of natural justice and/or it is not required to be quashed
and set aside on the ground that the same is in breach of principles of
natural justice.
[7.15] It is further submitted that even otherwise as observed by
the Hon'ble Supreme Court as well as the Full Bench of this Court when
it is found that the byelaws of the society are not in conformity with the
Act, 1961 and/or the Election Rules, 1982, more particularly Rule 3
Page 37 of 66
37 of 69
C/SCA/1611/2015 CAV JUDGMENT
A(8) of the Election Rules, 1982 and on the eventuality as
mentioned/provided in Rule 3A(9) of the Election Rules, 1982, the
Collector is conferred with the power / authority to exercise the power
under Rule 3A(9) of the Election Rules, 1982. It is submitted that
therefore where the powers are conferred upon the Collector in the
eventuality as observed by the Hon'ble Supreme Court as well as Full
Bench of this Court and if it is found that such eventualities have taken
place then and then only the Collector will exercise powers under Rule
3A(9) of the Election Rules, 1982. It is submitted that therefore when
the statute/Election Rules, 1982 do not provide any such requirement of
hearing, the same may not be read into.
Making above submissions, it is requested to dismiss the present
petitions.
[8.0] Shri B.S. Patel, learned advocate appearing on behalf of the
intervenor has vehemently submitted that the prayer of the petitioner in
terms of para 6(C) directing the respondent No.4 to delimit the
constituencies as per the proposal dated 02.01.2015 cannot be granted.
It is submitted that the proposal dated 02.01.2015 is by the Board of
Directors and not by the General Board. It is submitted that even
otherwise the same is contrary to the sanctioned byelaws. It is
submitted that therefore no such relief can be granted directing the
respondent No.4 to delimit the constituencies as per the proposal of the
society dated 02.01.2015.
[8.1] It is further submitted by Shri Patel, learned advocate appearing
on behalf of the intervenor that the reservation for three seats for
women as provided under the byelaws is to be implemented in absence
of any contrary provision either in the Act, 1961 or the Election Rules,
1982. It is submitted that in the Act, 1961 or the Election Rules, 1982,
Page 38 of 66
38 of 69
C/SCA/1611/2015 CAV JUDGMENT
there is no specific provision that there cannot be any reservation for
women more than the reservation provided under Section 74(1B)(i) of
the Act, 1961.
[8.2] Shri Patel, learned advocate appearing on behalf of the intervenor
has also relied upon the decision of the Hon'ble Supreme Court in the
case of Ziley Singh vs. Registrar, Cane Cooperative Societies (Cane
Commissioner), Lucknow reported in AIR 1972 SC 758 (Paras 10 &
11) with respect to the four seats allotted for individuals and other (Itar)
Cooperative Societies. He has also relied upon para 31 of the decision of
the Hon'ble Supreme Court.
[9.0] In reply, Shri Joshi, learned Counsel appearing on behalf of the
petitioner has vehemently submitted that neither before the Full Bench
nor before the Hon'ble Supreme Court there was any issue with respect
to how the power to be exercised by the Collector under Rules 3A(8)
and 3A(9) of the Election Rules, 1982. It is submitted that the only
controversy before the Full Bench and the Hon'ble Supreme Court was
with respect to the conflict between the byelaws of the society and the
provisions of the Act, 1961 and the Election Rules, 1982. It is submitted
that the main controversy before the Full Bench of this Court as well as
the Hon'ble Supreme Court was that in case the byelaws are found to be
not in conformity with the provisions of the Act, 1961 and the Election
Rules, 1982, whether such byelaws would prevail or the provisions of
the Act, 1961 and the Election Rules, 1982? It is further submitted that
in exercise of powers under Rules 3A(9) of the Election Rules, 1982
even it is conceded that in the present case the Collector/respondent
No.4 has rightly exercised the powers under Rule 3A(9) of the Election
Rules, 1982, in that case also, the manner in which the powers are
exercised, cannot be sustained. It is submitted that the Collector is
Page 39 of 66
39 of 69
C/SCA/1611/2015 CAV JUDGMENT
required to exercise the powers of delimitation of the constituencies
within four corners of Rule 3A(9) of the Election Rules, 1982. It is
submitted that in exercise of the powers under Rule 3A(9) of the
Election Rules, 1982, the Collector is required to delimit the
constituencies only and while delimiting the constituencies, the Collector
has to consider the byelaws of the society with respect to allocation of
seats to class/class of persons and even rotation of seats. It is submitted
that while exercising the powers under Rule 3A(9) of the Election
Rules, 1982, while delimiting the constituencies, the Collector cannot be
permitted to ignore the byelaws in its entirety.
[10.0] Relying upon the decision of the Andhra Pradesh High
Court in the case of V. Ramachandra Reddy and Anr. vs. State of A.P.
represented by the Secretary Panchayat Raj, Hyderabad and others
reported in AIR 1965 AP 40 and the provisions of Delimitation of the
Constituencies Act, 2002, it is submitted by Shri Shelat, learned Senior
Advocate appearing on behalf of the petitioner of Special Civil
Application No.1642/2015 has submitted that what is meant by
delimitation of the constituency would be "geographically dividing the
constituencies/electoral division". It is submitted that exercising the
powers under Rule 3A(9) of the Election Rules, 1982 and delimiting the
constituencies, the Collector is required to geographically divide the
electoral divisions and constitute the electoral divisions. However has no
jurisdiction to change the number of seats or allocation of seats for a
class/class of persons, ignoring the byelaws of the society. It is
submitted that in the present case by the impugned order dated
17.01.2015, the respondent No.4 while exercising the powers under
Rule 3A(9) of the Election Rules, 1982 and while delimiting the
constituencies has acted beyond the scope and ambit of Rule 3A(9) of
the Election Rules, 1982 and has changed the number of seats and even
Page 40 of 66
40 of 69
C/SCA/1611/2015 CAV JUDGMENT
allocation of seats for class / class of persons and even has also not
provided the rotation of seats reserved for women and has just ignored
the byelaws of the society which is not permissible.
Making above submissions, it is requested to allow the present
Special Civil Applications and grant the reliefs as prayed for.
[11.0] Heard the learned advocates appearing on behalf of
respective parties at length.
At the outset it is required to be noted that what is challenged in
the present Special Civil Applications is the impugned order passed by
the respondent No.4 in exercise of powers under Rules 3A(9) of the
Election Rules, 1982. What is challenged in the present Special Civil
Applications is the manner and method in which the respondent No.4
has exercised the powers under Rule 3A(9) of the Election Rules, 1982
while delimiting the constituencies for the election of the members of
the Managing Committee of the Milk Producers' Union. One another
question which is posed for consideration of this Court is whether bye
law of the society can provide the reservation of the seats dehors and/or
contrary to section 74(1B)(i) of the Act, 1961, in the present case
reservation of seats for women?
[11.1] While considering the rival submissions made by the
Counsel for respective parties and while considering the issues/questions
raised in the present Special Civil Applications, the relevant provisions of
the Act, 1961, Election Rules, 1982 and the byelaws of the society
which are necessary for determination of the questions which arise in
the present Special Civil Applications are required to be referred to,
which are as under:
Gujarat Cooperative Societies Act, 1961
"74. Committee, its powers and functions. [(1)] The management
Page 41 of 66
41 of 69
C/SCA/1611/2015 CAV JUDGMENT
of every society shall vest in a committee, constituted in accordance
with this Act, the rules and bye laws, which shall exercise such powers
and perform such duties as may be conferred or imposed on it
respectively by this Act, the rules and the bye laws:
[Provided that a Committee of a society falling in any of the
categories mentioned in subsection (1) of Section 74C shall not be so
constituted as to require a certain part or number, of its members to
periodically retire by rotation and any byelaw of such society
containing such provision shall with effect on and from the
commencement of Section 2 of the Gujarat Cooperative Societies
(Amendment) Act, 1981 (6 of 1981) cease to be in force.]
[(1A) Except as otherwise provided herein, the Managing
Committee of a society shall consist of such number of members as
may be provided in the byelaws but not exceeding twentyone
members.
(1B)(i) There shall be reserved one seat for the Scheduled
Castes or the Scheduled Tribes and two seats for Women in the
managing committee of every society consisting of individuals as
members and having members from such class or category of persons.
(ii) One seat may be reserved for the persons who are small
farmers and marginal farmers.
Explanation. The expressions "marginal farmer" and "small
farmer" shall have the meanings respectively assigned to them in
clauses (g) and (p) of section 2 of the Gujarat Rural Debtors Relief
Act, 1976 (President's Act No.35 of 1976)]."
Gujarat Specified Cooperative Societies Election to Committee
Rules, 1982
"3A. Delimitation of constituencies for purpose of election.(1) In every
society where there are more than one constituencies, the Secretary or
where there is no post of Secretary, the Chief Executive Officer of every
such society shall, in the year in which election to the Committee is
scheduled to be held, prepare a provisional list of the constituencies.
(2) Such list shall describe the limits of each constituency. A copy of
the provisional list shall be displayed with a notice to be signed by the
Secretary or where there is no post of Secretary, the Chief Executive
Officer of the society on the notice board of every office or suboffice of
the society. A copy of such provisional list along with the notice shall
also be sent to the Registrar and to the Collector.
(3) A copy of such list along with notice shall also be sent to every
member of the society by registered post.
(4) The notice referred to in subrules (2) and (3) shall clearly lay
Page 42 of 66
42 of 69
C/SCA/1611/2015 CAV JUDGMENT
down that any objections or suggestions in respect of the provisional
list may be sent by any person to the Secretary or where there is no
post of Secretary to the Chief Executive Officer of the society within a
period of 15 days from the date on which the provisional list is
displayed on the notice board of the office of the society.
(5) Any member of the society may bring to the notice of the society
any omission or error in respect of the name or address or other
particulars shown in the provisional list.
(6) Any person raising any objection or making a suggestion shall
send such objection or suggestion with grounds therefore in writing
within 15 days from the date on which the provisional list is displayed
on the notice board of the office of the society.
(7) The society shall after considering every objection, suggestion or
any error in the provisional list indicated by any member under sub
rule (5), prepare the final list. The final list shall be displayed on the
notice board of the office of suboffice of the society and a copy of such
final list shall be sent to the Registrar and also to the Collector.
(8) Where the area of operation of a society is in more than one
village, the number of constituencies shall be equal to the total number
of seats excluding two seats reserved under subsection (1) of Section
74B.
(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
accounting year of the society, the delimitation of the constituencies
shall be made by the Collector prior to the publication of the list of
voters.
3B. Procedure for election of members reserved under subsection
(1) of Section 74B. Where the election of the members of the
Committee is to be held at the general meeting of the members of the
society, all the members of the society shall be entitled to vote for the
election of two seats reserved under subsection (1) of Section 74B.]"
Byelaws of the Society
"Membership
6. (A) Membership of the Constituency will be as under.
(1) Any registered milk producers cooperative society in the
area of operation of the Constituency as mentioned in
Section3 can become member by purchasing shares.
Page 43 of 66
43 of 69
C/SCA/1611/2015 CAV JUDGMENT
(2) Any agricultural utilization cooperative society or
organization registered as mentioned in section3 of the
area of operation of the Constituency, which are not
included as per sub section 6 (A) (1), can become a member
by purchasing shares. Out of the representatives of one for
each ten members of the representatives of these members or
10 percent of the number of representatives of the Milk
Producers Cooperative Societies, whichever is less, shall have
voting right. These representatives shall be elected by the
representatives of the organizations and societies, which
have become member as per 6 (A) (2).
(3) Individual patron members who have become members
before the registration of the Union, will be continued as
members. Now onwards, new individual patron members
will not be taken. The present individual patron members
will have voting right as per one against 25 members. These
representatives shall be elected by all the individual
members. The number of representatives of the individual
members shall not exceed ten percent of the number of
representatives of the Milk Producer Cooperative Societies.
(B) Entry fee of Rs. 1/ shall have to paid to become a
member of the Union.
(35) (1) Board of Directors of 21 members shall be formed as
under:
(A) 15 representatives of joint societies as per sub section
(6) (A) (1) elected as per Sub Law, wherein three
seats will be reserved for women representatives, out
of which,
(1) eleven seats shall be comprised of the
following talukas.
1. Kadi One 2. Kalol and Gozaria One, 3.
Kheralu, Vadnagar and Satlasana One, 4.
Chanasma and Bahucharaji One, 5. Patan and
Vagdod One, 6. Mahesana One, 7. Mansa One, 8.
Vijapur One, 9. Visnagar One, 10. Sami and
Harij One, 11. Siddhpur and Unja One.
Out of the above stated eleven seats, three
seats will be reserved for women representatives.
The same three seats shall rotate every time as
per above serial number during election year.
Note: As the first turn of one to three is over,
now onwards calculation will be made
alphabetically serialwise from number 4.
Page 44 of 66
44 of 69
C/SCA/1611/2015 CAV JUDGMENT
2. Four seats will be allotted to groups of the
talukas mentioned in the above no.1 by the
Board of Directors of the respective time with a
resolution by taking into consideration the
average milk collection of three years prior to the
election year.
(B) One representative of the other societies and personal
members as per sub section 6 (A) (2) and (6) (A) (3)
elected as per Sub Law.
(C) One representative appointed by the Registrar of
Cooperative Societies.
(D) One representative of financial institutions such as
NDDB and if loan is availed from Mahesana District
Central Cooperative Bank, then one representative of
the same till the repayment of loan; thus total two
representatives which can be changed every year.
(E) The Managing Director of the Union shall be the ex
officio member.
(F) One representative of the Gujarat Cooperative Milk
Marketing Federation."
[11.2] While considering the issues/questions which arise in the
present Special Civil Applications and the powers conferred upon the
Collector under Rules 3A(8) / 3A(9) of the Election Rules, 1982, the
decisions of the Full Bench of this Court in the case of Narendra
Mahijibhai Patel (Supra) rendered in Special Civil Application
No.12067/2012 and other allied Special Civil Applications and the
decision of the Hon'ble Supreme Court against the decision of the Full
Bench of this Court are also required to be referred to. Before the Full
Bench of this Court in the case of Narendrabhai Mahijibhai Patel
(Supra), the following legal issues were formulated and referred to the
Larger Bench.
"(1) Whether Rule 3A of the Rules introduced by the
Amendment dated 10.8.1987, could be applied to the Societies
Page 45 of 66
45 of 69
C/SCA/1611/2015 CAV JUDGMENT
byelaws of which provide for a single constituency?
(2) Whether the scheme of the Rules permits the specified
Societies having a single constituency, more than one seat for
one constituency; and whether members of such society can
legally be permitted to vote for more than one seat?
(3) Whether Collector has jurisdiction to make an order for
delimitation of the constituencies, in absence of any
proceeding undertaken in accordance with Section 14 of the
Act?
(4) Whether delimitation of the constituencies under Rule 3A
of the Rules can only be territorywise and/or whether
delimitation of the constituencies can be based upon objects
and activities of the member societies or classes of individual
members?"
While considering the aforesaid legal issues and after considering
the various provisions of the Act, 1961 and the Election Rules, 1982,
ultimately the Full Bench concluded as under:
"(1) Rule 3A of Rules of 1982 could be applied to the societies
byelaws which provides for a single constituency because Rule
3A is essentially for delimitation of the constituencies and
preparation of the voters' list. But we clarify that subrule(1) to
subrule(7) would apply in case of all specified societies,
whether byelaws provide for a single constituency or more
than one constituency. Subrule(8) would apply to all specified
societies having byelaws for single constituency only if its area
of operation is in more than one village. Subrule(9) would
apply to all specified societies where delimitation of the
Page 46 of 66
46 of 69
C/SCA/1611/2015 CAV JUDGMENT
constituencies are required to be made by the Collector.
(2) The scheme of the Rules of 1982 do permit specified
societies having single constituency, provided the area of
operation is limited to one village and in those circumstances,
more than one seat may be provided under the byelaws for
one constituency. The members of such societies can legally be
permitted to vote for more than one seat.
(3) The Collector has the power to pass an order for
delimitation of the constituency,even in absence of any
proceedings undertaken in accordance with section 14 of the
Act.
(4) The delimitation of constituency under Rule 3A of the
Rules can also be territorywise. The delimitation of the
constituencies can be based upon the objects and activities of
the societies for the classes of individual members since each
electorate is to represent the respective members of a
particular area or a particular class, as the case may be."
That against the said decision of the Full Bench of this Court in
the case of Narendrabhai Mahijibhai Patel (Supra), the matter went to
the Hon'ble Supreme Court and while confirming the decision of the Full
Bench of this Court in the case of Narendrabhai Mahijibhai Patel
(Supra), the Hon'ble Supreme Court in paras 16 to 21 and in para 22
had observed as under:
"16. On a careful examination of Rule 3A (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 3A 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
Page 47 of 66
47 of 69
C/SCA/1611/2015 CAV JUDGMENT
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 3A, 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 subrule (8) is read along with subrule (9) of Rule 3A,
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 3A and thereafter, the process for
publication of the voters' list is to be given effect to.
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 3A, 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 byelaws. 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 byelaws in conformity with the provisions of the
Rules and more particularly Rule 3A (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
Page 48 of 66
48 of 69
C/SCA/1611/2015 CAV JUDGMENT
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 Cooperative
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
Cooperative Societies Act cannot be permitted to prevail over the
statutory Rule 3A (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.
22. Further, the elections to either the Managing Committee or Board must
be held democratically by giving representation to all its members, as
stated in the preamble of our Constitution, which is held to be the basic
feature of the Constitution by the constitutional Bench of this Court in the
cases of Kesavananda Bharati Sripadagalvaru v. State of Kerala[7] and
Kuldip Nayar v. Union of India[8]. Under Article 13 (2) of the Constitution
of India, Rules are also regarded as laws. However, the Rules and laws
framed by the State Legislatures and the appropriate government cannot
run parallel with the principles of the Constitution and the statutory objects
of the Cooperative Societies Act cannot be disregard as it would defeat the
purpose of Section 243ZK of the Constitution of India (NinetySeventh
Amendment) Act 2011, inserted as per the 97th Constitutional
Amendment, which provides for election of the members of the Managing
Committee or Board. If the rules provide that not more than 7
representatives can be elected from a specified Cooperative Society to the
Board or Management Committee, then it is the duty of the societies to
adhere to it and not exceed the specified number. Thus, the bye laws of a
Cooperative Society, in order to achieve the constitutional object, must
be brought at par with the laws and statutory provisions of the Societies
Act. They cannot override the provisions of State or Central laws.
"...In view of the law laid down by this Court in the aforesaid cases, we
have to hold that the sub rules (8) & (9) of Rule 3A are applicable to
the appellant society/Societies as the area of operation is more than one
village and therefore the orders passed by the Collector for the
delimitation of the constituency/constituencies cannot be said to be
illegal. Further, we hold that there will be no proper representation of the
voters to their respective specified societies for electing representatives
of their area which would materially affect the result of the election and
the impugned provisions and Rules are legally justifiable."
[11.3] Applying the ratio laid down by the Hon'ble Supreme Court
in the aforesaid decision as well as the decision of the Full Bench of this
Page 49 of 66
49 of 69
C/SCA/1611/2015 CAV JUDGMENT
Court in the case of Narendrabhai Mahijibhai Patel (Supra) to the facts
of the case on hand, it cannot be said that the respondent No.4 has
committed any error and/or illegality in exercising the powers under
Rules 3A(8)/3A(9) of the Election Rules, 1982. It is an admitted
position that the area of operation of the petitioner - Milk Producers'
Union / society is exceeding one village. It also appears that the number
of constituencies provided under the byelaws are not in conformity with
Rule 3A(8) of the Election Rules, 1982 inasmuch as the number of
constituencies are not equal to the number of seats as required under
Rule 3A(8) of the Election Rules, 1982. It is also not in dispute that
even the proposal made by the society dated 02.01.2015 for delimitation
of the constituencies was not in conformity with the provisions of the
Act, 1961 and the Election Rules, 1982 and even was contrary to its own
byelaws. In such a situation the respondent No.4 is justified in
exercising the powers under Rules 3A(9) of the Election Rules, 1982 for
delimitation of constituencies. It is required to be noted that even the
very petitioner - Milk Producers' Union was party to the proceedings
before the Hon'ble Supreme Court and the Hon'ble Supreme Court
directed the Collector to hold the election as per subRule (8) and (9) of
Rule 3A of the Election Rules, 1982. Under the circumstances, it cannot
be said that the respondent No.4 has committed any error and/or
illegality in exercising the powers under Rule 3A(8) / 3A(9) of the
Election Rules, 1982. At this stage it is required to be noted that the
Collector has power to exercise the powers under Rule 3A(9) of the
Election Rules, 1982 where the election to the members of any
committee are scheduled to be held before the end of the accounting
year of the society. In the present case, therefore both the
conditions/requirements as provided under Rules 3A(8) and 3A(9) of
the Election Rules, 1982 are satisfied and in such a situation and as per
the decisions of the Hon'ble Supreme Court as well as Full Bench of this
Page 50 of 66
50 of 69
C/SCA/1611/2015 CAV JUDGMENT
Court where it is held that the Collector would have independent and
absolute power of delimitation of constituencies under Rule 3A(9) of
the Election Rules, 1982, it cannot be said that the respondent No.4 has
committed any error and/or illegality in exercising the powers under
Rule 3A(9) of the Election Rules, 1982.
[11.4] Now, so far as the contention on behalf of the petitioners
that the impugned order is in breach of principles of natural justice
inasmuch as neither before exercising the powers under Rule 3A(9) of
the Election Rules, 1982 nor while exercising the powers under Rule 3
A(9) of the Election Rules, 1982, any opportunity was given to the
petitioner - Milk Producers' Union is concerned, at the outset it is
required to be noted that as such there is no such requirement of giving
such opportunity to the society before or while exercising the power
under Rule 3A(9) of the Election Rules, 1982. Even the Hon'ble
Supreme Court while recognizing the powers of the Collector under Rule
3A(8) / 3A(9) of the Election Rules, 1982 has not observed anything
with respect to such opportunity. As observed and held by the Hon'ble
Supreme Court, once the area of operation of the society is more than
one village, subRule (8) would come into play. It is also further
observed by the Hon'ble Supreme Court that subRule (8) of Rule 3A
being independent in nature, it expressly provides that where area of
operation of any society is more than one village, the number of
constituencies shall be equal to the total number of constituencies
excluding two seats reserved under Section 74B of the Act, 1961. It is
further observed by the Hon'ble Supreme Court while interpreting Rule
3A(8) and 3A(9) of the Election Rules, 1982 that 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
Page 51 of 66
51 of 69
C/SCA/1611/2015 CAV JUDGMENT
heterogeneous group. Considering the aforesaid observations of the
Hon'ble Supreme Court made while interpreting Rules 3A(8) and 3
A(9) of the Election Rules, 1982, such a requirement of giving hearing to
the society before or while exercising the powers under Rule 3A(9) of
the Election Rules, 1982 is not required to be read into. It will be
providing one another stage which is not provided under the statute.
Under the circumstances, the contention on behalf of the petitioners that
the impugned order dated 17.01.2015 is in breach of principles of
natural justice cannot be accepted.
[11.5] Now, the next and foremost question which is posed for
consideration of this Court is with respect to the manner and method in
which the respondent No.4 has passed the impugned order dated
17.01.2015 in exercise of powers under Rule 3A(9) of the Election
Rules, 1982. At the outset it is required to be noted and it is not in
dispute that while passing the impugned order of delimitation of
constituencies the respondent No.4 has exercised the powers under Rule
3A(8) and 3A(9) of the Election Rules, 1982. It appears that while
passing the impugned order in the present case the respondent No.4
while delimiting the constituencies in exercise of powers under Rule 3
A(9) of the Election Rules, 1982 has not only delimited the
constituencies into 16 different constituencies which would include the
reservation of the seats for Schedule Caste / Schedule Tribe, women and
even seats allotted for the class of individuals and other (Itar)
cooperative societies. That while passing the impugned order even the
respondent No.4 has not only altered the number of seats but has also
changed the allocation of seats and the seats reserved for class of
persons provided as per byelaw No.35. It is required to be noted that as
per byelaw No.35, Board of Directors shall be 21 members which
include 11 seats distributed as per talukawise zones containing one
Page 52 of 66
52 of 69
C/SCA/1611/2015 CAV JUDGMENT
Director each, four seats to be decided by the Board of Directors
considering the quantity of milk supply talukawise, one Director to be
elected by the delegates who have been elected from other (Itar)
cooperative societies and individual patron members as per byelaw
No.6(a)(2) and 6(a)(3). As per the byelaws, out of 11 seats of Director
to be elected from taluka zones, three seats shall be reserved for women
which shall be changed as per the rotation as per 11 taluka zones
notified as per byelaw No.35(a)(i). That as per byelaw No.46, there
shall be two different voter constituencies, one containing affiliated Milk
Producers' Societies and other containing elected delegates of individual
patron members and other (Itar) societies. However, while passing the
impugned order dated 17.01.2015 in exercise of powers under Rule 3
A(9) of the Election Rules, 1982, the respondent No.4 not only has
changed / altered the constituencies and/or delimited the
constituencies, has even changed the number of seats, allocation of seats
for a particular class/ class of persons (individual members, delegates
and other societies delegates) and even the four seats which were
allocated to be decided by the Board of Directors of the talukas
supplying the highest milk produce. Not only that, the respondent No.4
has also provided that the election for 16 seats shall be held by reserving
the seats of Schedule Caste, women within 16 seats and as observed
herein above by including other (Itar) societies delegates and individual
members delegates within 16 seats. Thus, it appears that the respondent
No.4 has absolutely ignored the byelaws with respect to number of
seats, allocation of seats for a particular class / class of persons.
Therefore, the question which is posed for consideration of this Court is
whether while exercising the powers under Rules 3A(8) / 3A(9) of the
Election Rules, 1982, the Collector would have such absolute and
independent power so as to allow the Collector to change the number of
seats, allocation of seats for particular class / class of persons and even
Page 53 of 66
53 of 69
C/SCA/1611/2015 CAV JUDGMENT
to include the seats reserved for Schedule Caste / Schedule Tribe and
women with other seats and voters?
[11.6] While considering the aforesaid questions and while
considering the legality and validity of the impugned order dated
17.01.2015 passed by the respondent No.4 in exercise of powers under
Rule 3A(9) of the Election Rules, 1982, relevant provisions for the
delimitation of the constituencies for the purpose of election and the
circumstances under which Collector is cloathed with the power of
delimitation of constituencies is required to be considered. Rule 3A(1)
to Rule 3A(7) confers power upon the society of delimitation of the
constituencies, with which we are not concerned in the present petition.
As per Rule 3A(8) of the Election Rules, 1982 where an area of
operation of a society is in more than one village, the number of
constituencies shall be equal to the total number of seats excluding two
seats reserved under subsection (1) of Section 74B of the Act, 1961.
Rule 3A(9) of the Election Rules, 1982 provides that notwithstanding
anything contained in the Election Rules, 1982 and the byelaws of the
society, where the elections to the members of the Committee are
scheduled to be held before the ending of the accounting year of the
society, the delimitation of the constituencies shall be made by the
Collector prior to the publication of the list of voters. The powers of the
Collector of delimitation of the constituencies has been recognized
and/or upheld by the Hon'ble Supreme Court against the decision of the
Full Bench of this Court in the case of Narendrabhai Mahijibhai Patel
(Supra). As observed hereinabove while interpreting the Rules 3A(8)
and 3A(9) of the Election Rules, 1982, the Hon'ble Supreme Court as
well as the Full Bench of this Court has observed that where area of
operation of society is in more than one village, Rule 3A(8) would come
into play and therefore, if the byelaws are found to be not in conformity
Page 54 of 66
54 of 69
C/SCA/1611/2015 CAV JUDGMENT
with the Rule 3A(8) of the Election Rules, 1982 meaning thereby
number of constituencies as provided in the byelaws are not found to be
equal to the total number of seats excluding two seats reserved under
subsection (1) of section 74B of the Act, 1961 and where the election
to the members of any Committee are scheduled to be held before
ending of accounting year of the Society, the Collector would have an
absolute and independent power of delimitation of constituencies, to be
made by the Collector prior to the publication of list of voters. Therefore,
as such while exercising the powers under Rule 3A(9) of the Election
Rules, 1982, the Collector is required to exercise the powers of
delimitation of constituencies only. The Full Bench of this Court in the
case of Narendrabhai Mahijibhai Patel (Supra) against which the matter
went to the Hon'ble Supreme Court, had observed and concluded that
"1. The Collector has the power to pass an order for
delimitation of the constituency, even in absence of any
proceedings undertaken in accordance with section 14 of the Act,
1961;
2. The delimitation of the constituencies under Rule 3A of the
Election Rules, 1982 can also be territorywise. The delimitation of
the constituencies can be based upon the objects and activities of
the societies for the classes of individual members since each
electorate is to represent the respective members of a particular
area or a particular class, as the case may be."
At this stage it is required to be noted that one of the question
which was formulated by the Division Bench while referring matter to
the Full Bench was "Whether the delimitation of the constituencies
under Rule 3A of the Election Rules, 1982 can only be territorywise
and/or whether delimitation of the constituencies can be based upon the
objects and activities of the member society or classes of the individual
Page 55 of 66
55 of 69
C/SCA/1611/2015 CAV JUDGMENT
members?"
To that the Full Bench answered the aforesaid question as above.
That the Hon'ble Supreme Court while confirming the judgment and
order passed by the Full Bench of this Court in the case of Narendrabhai
Mahijibhai Patel (Supra) and while recognizing the powers of the
Collector of delimitation of constituencies under Rule 3A(9) of the
Election Rules, 1982 has made following observations.
"1. On a careful examination of Rule 3A(8) of the Rules by us,
it is made clear that the said provision is aimed as geographical
i.e. territory zone wise bifurcation or division. A salient feature of
the Rule 3A of the Election Rules, 1982 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,
subRule (8) would come into play and the requirement of
number of constituencies would be equal to the total number of
seats, excluding two seats reserved for the categories as provided
under Section 74B of the Act.
"2. Further, the language of subRule (9) of Rule 3A 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."
"3. Thus, when subRule (8) is read along with the subRule (9)
of Rule 3A, where the society has area of operation exceeding one
village, if the byelaws provide for single constituency, the seats
provided by the byelaws as to be equal to the number of
constituency/constituencies and therefore, for each seat, a
Page 56 of 66
56 of 69
C/SCA/1611/2015 CAV JUDGMENT
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 powers under subRule (9) of the Rule 3
A of the Rules for the delimitation of the constituency in
accordance with the mandate of subRule (8) of the Rule 3A and
thereafter the process for publication of voters' list is to be given
effect to.
"4. Thus, the byelaws of any specified society under the
provisions of the Cooperative Societies Act cannot be permitted to
prevail the statutory Rule 3A(8) and (9) of the Rules. The
moment of area of operation of any specified society exceeds one
village, subRule (8) would come into play irrespective of the fact
that whether members of such society constitute homogenous or
heterogeneous group".
Thus, considering the aforesaid observations made by the Hon'ble
Supreme Court as well as the Full Bench of this Court in the case of
Narendrabhai Mahijibhai Patel (Supra) and considering the provisions of
Rule 3A(8) and 3A(9) of the Election Rules, 1982 while exercising the
powers under Rule 3A(9) of the Election Rules, 1982, the Collector is
cloathed with the power of delimitation of constituencies while
considering the Rule 3A(8) of the Election Rules, 1982. Rule 3A(8) of
the Election Rules, 1982 provides that the number of constituencies shall
be equal to the number of seats excluding two seats reserved under sub
section (1) of section 74B of the Act, 1961. At this stage it is required to
be noted that subsection (1) of Section 74B has as such been deleted
and in place there is an amendment in section 74 itself and section
74(1B)(i) & (ii) have been inserted and section 74(1B)(i) provides that
there shall be reserved one seat for Schedule Caste or Schedule Tribe
and two seats for women in the managing committee of every society.
Page 57 of 66
57 of 69
C/SCA/1611/2015 CAV JUDGMENT
Therefore, as such the powers to be exercised by the Collector under
Rule 3A(9) would be restricted to the delimitation of constituencies and
while exercising such powers of delimitation of constituencies, the
Collector is required to provide the number of constituencies equal to
the total number of seats excluding two seats reserved. While delimiting
the constituencies, as observed and held by the Full Bench in para 25(4)
reproduced herein above, the delimitation of constituencies under Rule
3A of the Election Rules, 1982 can also be territorywise. The
delimitation of constituencies can be based upon the objects and
activities of the societies for the classes of individual members since each
electorate is to represent the respective members of a particular area or
a particular class, as the case may be. However, while delimiting the
constituencies in exercise of powers under Rule 3A(9) of the Election
Rules, 1982, the Collector has no authority and/or jurisdiction to alter
and/or change the number of seats as provided in the byelaws and/or
seats allocated for a particular class or class of persons. Rule 3A(8) of
the Election Rules, 1982 provides that number of constituencies shall be
equal to the number of seats (number of seats provided under the bye
laws) excluding two seats reserved under subsection (1) of section 74B
i.e. seats reserved for Schedule Caste, Schedule Tribe and marginal
farmers. In the present case by impugned order while exercising the
powers under Rule 3A(9) of the Election Rules, 1982, the respondent
No.4 has not only delimited the constituencies but has also
altered/changed the number of seats; allocation of the seats for a class
or class of persons and even merged the seats allocated for a class/class
of persons i.e. individuals/patrons and other (Itar) cooperative societies.
Even while allocating the seats reserved for women, the provision for
rotation as per the byelaws has also not been maintained and/or
considered. As observed herein above, as per the byelaws, the allocation
for reservation of seats for women shall be rotationwise. By impugned
Page 58 of 66
58 of 69
C/SCA/1611/2015 CAV JUDGMENT
order even the respondent No.4 has merged and/or altered the
allocation of seats to be decided by the Board of Directors (4 seats) on
the basis of the sale of milk produce. Not only that, even the Collector
while delimiting the constituencies for 16 seats, has included the
voters / merged the voters of all the classes in a particular
constituency/constituencies e.g. seat/constituency No.9 shall consist of
80 voters + one delegate of other (Itar) cooperative society and two
delegates of individuals. So far as seat/constituency No.9 is concerned, it
shall consist of 67 voters + one representative / delegate of other (Itar)
cooperative societies. Similarly, so far as seat/constituency No.11 is
concerned, it shall consist of 68 voters + 3 delegates of other (Itar)
societies + 2 delegates + representative of individuals. It is required to
be noted that as such the seat/constituency No.11 is reserved for
women. So far as seat/constituency No.12 is concerned, it shall consist
of 86 voters + one delegate of other (Itar) cooperative society. The
aforesaid is absolutely impermissible and just contrary to the byelaws
and beyond the scope and ambit of the powers conferred of delimitation
of constituency of Rule 3A(9) of the Election Rules, 1982. We are afraid
that Collector would have such powers to alter/change the number of
seats or allocation of the seats for a particular class or class of persons,
while delimiting the constituencies. If for any reason particular byelaw
providing seats for a particular class or class of persons is found by the
appropriate Authority not in the larger interest of society concerned or in
furtherance of the democratic process as suggested by the respondent
No.4 in the affidavit in reply i.e. with respect to the number of seats
allocated for the individuals, patrons or other (Itar) cooperative
societies, in that case, the same can be directed to be amended and/or
deleted in exercise of powers under Section 14 of the Act, 1961.
However, so long as the byelaws which as such are approved by the
appropriate Authority are not deleted and/or amended, one has to go by
Page 59 of 66
59 of 69
C/SCA/1611/2015 CAV JUDGMENT
the number of seats provided under the byelaws including the
allocation of the seats for a particular class or class of persons. As
observed herein above, even the Full Bench of this Court in para 25(4)
has specifically observed that the delimitation of constituency of Rule 3
A of the Election Rules, 1982 can also be territorywise; the delimitation
of the constituency can be based upon the objects and activities of the
societies for classes of individual members since each electorate is to
represent the respective members of a particular area or a particular
class, as the case may be. Therefore, we are of the opinion that while
exercising the powers of delimitation of constituency under Rule 3A(9)
of the Election Rules, 1982, the Collector is required to delimit the
constituencies equal to the number of seats, meaning thereby the
number of seats provided under the byelaws, however excluding two
seats reserved under subsection (1) of section 74B. While exercising
the powers under Rule 3A(9) of the Election Rules, 1982 of delimiting
the constituencies, the Collector has no jurisdiction and/or authority to
alter and/or change the number of seats and/or alter/change the
allocation of seats for a particular class or class of persons, so long as the
byelaws which are approved are in existence, however subject to a rider
that the said byelaws are not in conflict with any of the provisions of the
Act, 1961 or the Election Rules, 1982.
[11.7] At this stage it is required to be noted that the powers
conferred under Rule 3A(9) of the Election Rules, 1982 upon the
Collector are with respect to the delimitation of the constituencies only,
in the event where the area of operation of a society is in more than one
village and where the election to the members of any committee are
scheduled to be held before the ending of the accounting year of the
society. As observed by the Andhra Pradesh High Court in the case of V.
Ramachandra Reddy and Anr. (Supra), the word "delimit" in its natural
Page 60 of 66
60 of 69
C/SCA/1611/2015 CAV JUDGMENT
sense means "to mark out as a boundary", to bound, to mark or
determine the limits of; to define as a limit or boundary". It is observed
that it is used in the sense of adjusting or demarketing the boundaries
between two entities belonging to different persons or countries or
bodies.
[11.8] Under the circumstances and while exercising the powers
under Rule 3A(9) of the Election Rules, 1982 delimiting the
constituencies, the Collector and/or Appropriate Authority has no
jurisdiction and/or authority to alter the number of seats and/or make
the change in allocation of seats with respect to a particular class or class
of persons / societies. Exercise of such power would be beyond the scope
and ambit of Rule 3A(9) of the Election Rules, 1982 of delimitation of
the constituencies.
[11.9] Similarly, the impugned order dated 17.01.2015 insofar as
not providing any reservation of one seat for marginal farmers is
concerned, same also cannot be sustained. In the affidavit in reply, the
respondent No.4 has tried to justify the order of not providing any
reservation of one seat for marginal farmers by submitting that section
74(1B(ii) of the Act, 1961 does not provide to reserve the seat
compulsorily for small and marginal farmers. The aforesaid cannot be
accepted. Once in the statute i.e. section 74(1B)(ii) of the Act, 1961
provides that one seat may be reserved for persons who are small
farmers and marginal farmers, meaning thereby the society in the bye
laws may provide for reservation of one seat for the persons who are
small farmers and marginal farmers. Once the byelaw which is
approved by the Appropriate Authority provide for reservation of one
seat for the persons who are small farmers and marginal farmers, in
exercise of power under Rule 3A(9) of the Election Rules, 1982 of
Page 61 of 66
61 of 69
C/SCA/1611/2015 CAV JUDGMENT
delimitation of constituencies, the Collector has no jurisdiction and/or
authority not to provide reservation of one seat for the persons who are
small farmers and marginal farmers. Providing the reservation of one
seat for the persons who are small farmers and marginal farmers is left
to the concerned society and therefore, the word "may" is used in section
74(1B)(ii) of the Act, 1961. Under the circumstances, the impugned
order not providing reservation of one seat for the marginal farmers
[though provided in the byelaw] cannot be sustained and the same
deserves to be quashed and set aside.
[11.10] Now, so far as the reservation of seats for women is
concerned, it is required to be noted that as per the byelaw, three seats
are reserved for women and as per the rotation [byelaw No.35(1)(a)].
However, it is required to be noted that while submitting the proposal
dated 02.01.2015, the society proposed reservation of two seats for
women. That by impugned order dated 17.01.2015, the respondent No.4
has provided reservation of 2 seats for women, however has not
maintained the rotation. It is the contention on behalf of the petitioner
of Special Civil Application No.1642/2015 that there can be a
reservation of more seats for women than provided under section 74
B(i) of the Act, 1961 and in support of the above submissions, Shri
Shelat, learned Counsel appearing on behalf of the petitioner has heavily
relied upon the decisions of Hon'ble Supreme Court in the case of Dr.
Preeti Srivastava (Supra) and U.P. Cooperative Cane Unions Federation
(Supra) as well as in the case of Toguru Sudhakar Reddy (Supra).
However, considering the provisions of section 74(1B)(i) of the Act,
1961, none of the aforesaid decisions shall be applicable to the facts of
the case on hand. In section 74(1B)(i) of the Act, 1961, the word used is
"shall" and it provides that there "shall be" reserved one seat for
Schedule Caste or Schedule Tribes and two seats for women in the
Page 62 of 66
62 of 69
C/SCA/1611/2015 CAV JUDGMENT
Managing Committee of every society. In all of the aforesaid decisions
which have been relied upon by the learned Counsel appearing on behalf
of the petitioner, the word used were "minimum". Once the legislature
in its wisdom has provided that there shall be reserved one seat for
Schedule Caste or Schedule Tribes and two seats for women, there
cannot be reservation of more seats than the prescribed under the
statute and more particularly when the word "shall" is used. Under the
circumstances, the contention on behalf of the petitioner of Special Civil
Application No.1642/2015 that there can be reservation of three seats
for women as per their byelaws, cannot be accepted. The reservation of
the seats as provided under Section 74(1B)(i) of the Act, 1961 shall be
strictly as provided under the Act, 1961 i.e. section 74(1B)(i) of the Act,
1961. While reserving the seats for women the society and/or the
Collector as the case may be, are also required to reserve the
constituency for women as per rotation and more particularly as
provided under the byelaws of the society. That while passing the
impugned order, the respondent No.4 has not reserved the
seat/constituency rotationwise, though the byelaw No.35(1)(a)
specifically provide that the reservation of seat for women shall be
rotationwise. Under the circumstances also, the impugned order even
with respect to the reservation of seats for women deserves to be quashd
and set aside.
[11.11] Even otherwise the impugned order of delimitation of
constituencies as per the impugned order cannot be sustained as it does
not provide equal representation of voters. For example in Constituency
No.8 there shall be 53 voters who shall elect one Director and in
Constituency No.9 there shall be 80 voters - cooperative societies + one
delegate of other (Itar) cooperative societies + 2 delegate /
representative of individuals who shall elect one Director. Similarly, as
Page 63 of 66
63 of 69
C/SCA/1611/2015 CAV JUDGMENT
per the impugned order with respect to Constituency No.12, there shall
be 86 voters - cooperative societies + one delegate of other (Itar)
cooperative society who shall elect one Director. Similar is the situation
with respect to other constituencies also and the number of voters -
cooperative societies vary from 53 (in one constituency) to 86. Thus,
there shall not be any equal representations. On the identical ground in
the case of Kaira District Cooperative Milk Producers Union (Supra)
rendered in Special Civil Application No.293/2015, the Division Bench
of this Court has quashed and set aside the order passed by the Collector
of delimitation of constituencies on the ground that it would create
unequal representation and would breach and/or violate principle of
One Man One Vote and/or equal representation. Under the
circumstances also, the impugned order dated 17.01.2015 cannot be
sustained and the same deserves to be quashed and set aside.
[12.0] In view of the above and for the reasons stated above, all
these petitions succeed. The impugned order dated 17.01.2015 passed
by the respondent No.4 in exercise of powers under Rule 3A(9) of the
Gujarat Specified Cooperative Societies Election to Committee Rules,
1982 is hereby quashed and set aside and it is held that the impugned
order passed by the respondent No.4 is beyond the scope and ambit of
the powers conferred under Rule 3A(9) of the Gujarat Specified
Cooperative Societies Election to Committee Rules, 1982. It is also held
that there cannot be any reservation of seats beyond the number of seats
as provided under Section 74(1B)(i) of the Act, 1961, meaning thereby
there shall be one seat reserved for Schedule Caste or Schedule Tribe
and two seats reserved for women and if the byelaws provide for one
seat reserved for small farmers and marginal farmers, in that case there
can be one seat reserved for marginal / small farmers. It is also held that
while exercising the powers under Rule 3A(9) of the Gujarat Specified
Page 64 of 66
64 of 69
C/SCA/1611/2015 CAV JUDGMENT
Cooperative Societies Election to Committee Rules, 1982, the Collector
shall have power to pass an order of delimitation of constituencies and
provide number of constituencies equal to the number of seats
(considering the number of seats provided under the byelaws only). It is
also observed and held that that delimitation of constituencies under
Rule 3A more particularly Rule 3A(9) of the Gujarat Specified
Cooperative Societies Election to Committee Rules, 1982 can also be
territorywise; delimitation of constituencies can be based upon the
objects and activities of the societies for the classes of individual
members since each electorate is to represent the respective members of
a particular area or a particular class, as the case may. That while
exercising the powers under Rule 3A(9) of the Gujarat Specified
Cooperative Societies Election to Committee Rules, 1982, the Collector
has no authority and/or jurisdiction to change and/or alter the number
of seats provided under the byelaws and/or alter/change the allocation
of seats for the class or class of persons/societies. That while exercising
the powers under Rule 3A(9) of the Gujarat Specified Cooperative
Societies Election to Committee Rules, 1982, the Collector would have
jurisdiction to provide the number of constituencies equal to the number
of seats (considering the number of seats as provided under the byelaws
of the society only). It is also observed and held that while exercising the
powers under Rule 3A(9) of the Gujarat Specified Cooperative Societies
Election to Committee Rules, 1982 of delimitation of constituencies and
providing the number of constituencies equal to the number of seats, the
Collector is required to consider the relevant byelaws which are already
approved, however so long as such byelaws are not in conflict with any
of the provisions of the Act, 1961 and/or the Gujarat Specified
Cooperative Societies Election to Committee Rules, 1982. It is also
observed and held that even while providing the reservation for women,
the constituency shall be as per the rotation, as provided under the bye
Page 65 of 66
65 of 69
C/SCA/1611/2015 CAV JUDGMENT
laws so that electorate of every constituency shall have a right to elect a
woman candidate rotationwise. The impugned decision dated
17.01.2015 passed by the respondent No.4 not providing any reservation
for the marginal farmers which is provided under the byelaws is also
hereby quashed and set aside. The impugned decision dated 17.01.2015
is also hereby quashed and set aside on the ground that it would create
unequal representation and would breach and/or violate principle of
One Man One Vote and/or equal representation. The respondent No.4 is
hereby directed to pass fresh order of delimitation of constituencies
afresh and after considering the observations made hereinabove,
However the same shall be completed within a period of four months
from today as the election of the members of the Managing Committee
of the petitioner - Milk Producers' Union which is due since May, 2014
can be held. Rule is made absolute to the aforesaid extent in each of the
petitions, however there shall be no order as to costs.
Sd/
(M.R. SHAH, J.)
Sd/
(G.B. SHAH, J.)
Ajay
Page 66 of 66
66 of 69
C/SCA/1611/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1611 of 2015
[On note for speaking to minutes of order dated 17/04/2015 in
C/SCA/1611/2015 ]
With
SPECIAL CIVIL APPLICATION NO. 1642 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1645 of 2015
==========================================================
MEHSANA DISTRICT COOPERATIVE MILK PRODUCERS UNION
LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
==========================================================
Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR CHIRAG B PATEL, ADVOCATE for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 5
==========================================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 08/05/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) The last eight lines of the Common CAV Judgement and Order dated 17/04/2015 passed by this Court in these petitions i.e."The respondent No.4 is hereby directed to pass fresh order of delimitation of constituencies Page 1 of 3 67 of 69 C/SCA/1611/2015 ORDER afresh and after considering the observations made hereinabove, However the same shall be completed within a period of four months from today as the election of the members of the Managing Committee of the petitioner - Milk Producers' Union which is due since May, 2014 can be held. Rule is made absolute to the aforesaid extent in each of the petitions, however there shall be no order as to costs." be read as under:-
"The respondent No.4 is hereby directed to pass fresh order of delimitation of constituencies afresh and after considering the observations made hereinabove, However within a period of seven weeks from today i.e. 17/04/2015 and the election of the members of the Managing Committee of the petitioner - Milk Producers' Union, shall be completed within a period of five months from today i.e. 17/04/2015, as the election of the members of the Managing Committee of the petitioner - Milk Producers' Union, which is due since May, 2014, can be held. Rule is made absolute to the aforesaid extent in each of the petitions, however there shall be no order as to costs."
Registry is directed to ISSUE FRESH WRIT accordingly. Present Note for Speaking to Minutes stands disposed of.
Sd/-
(M.R.SHAH, J.) Sd/-
Page 2 of 368 of 69 C/SCA/1611/2015 ORDER (G.B.SHAH, J.) Rafik..
Page 3 of 369 of 69