Gujarat High Court
Shankerbhai Jesangbhai Chaudhari vs State Of Gujarat & 2 on 24 November, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/19046/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19046 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SHANKERBHAI JESANGBHAI CHAUDHARI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR. MIHIR THAKORE, SENIOR ADVOCATE WITH MR PS CHAMPANERI,
ADVOCATE for the Petitioner(s) No. 1
MR. RAKESH PATEL, AGP for the Respondent No. 1 - 2
MR. S.I. NANAVATI SENIOR ADVOCATE WITH MR SIDDHARTH H DAVE,
ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 24/11/2015
ORAL JUDGMENT
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1. With the consent of the learned Advocates appearing for the parties, the matter is taken up for final hearing and disposal. Hence, Rule. Learned A.G.P. Mr. Patel appearing for respondent No.1 and 2 waives service of rule for respondent no.1 and 2. Learned Advocate Mr. Siddharth Dave appearing for respondent No.3 waives service of rule for respondent No.3.
2. The challenge made in this petition filed under Article 226 of the Constitution of India is against the action of respondent No.2 Election Officer of rejecting the nomination papers of the petitioner for the election of the Managing Committee of Mehsana District Coop. Milk Producers' Union Ltd. ("the Union"). When the petition was moved in the vacation, the order passed by the Election Officer rejecting the nomination papers of the petitioner was not annexed. However, copy of the order was made available on 11.11.2015 and the matter was considered for grant of ad-interim relief.
3. Rejection of the nomination papers of the petitioner is on the ground that the member society which the petitioner represents i.e. Vaghasar Milk Producers' Cooperative Society Ltd., Taluka Saraswati Saraswati is audited in Class-C in the last audit for the year 2014- 2015 and as per bye-law 48(2)(A)(h) of the bye-law of the Union, Audit Class-C is considered to be the disqualification to be elected as Member of the Board of Directors.
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4. As per the case of the petitioner, Voters list was prepared by taking the position of the members as on 31st March, 2014. As per the audit carried out for the year ending on 31 st March, 2014, the society of the petitioner was given Audit Class-A & B.
5. It appears that after the Voters list was finalized taking the members' position as on 31st March, 2014, the Election Program was notified on 22.10.2015 as per which, the nomination papers were to be submitted between 28.10.2015 to 4.11.2015 and the date of scrutiny of the nomination papers was fixed on 6.11.2015.
6. It appears that on 6.11.2015, respondent No.3 raised objection against the nomination papers of the petitioner on the ground that the society of the petitioner was given Audit Class-C and as per bye- law 48(2)(A)(h), the nomination papers of the petitioner were required to be rejected. Such objection has come to be accepted which has culminated into the impugned order.
7. Learned Senior Advocate Mr. Mihir Thakore appearing with learned Advocate Mr. P.S. Champaneri for the petitioner submitted that the Voters List was finalized on 21.10.2015 of the members inducted till 31st March, 2014 based on which, the election program is issued for the election of the Managing Committee of the Union. Mr. Thakore submitted that the last audit to be considered for the purpose of eligibility to contest the election would be relatable to the Page 3 of 14 HC-NIC Page 3 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT finalization of the Voters list of the members as on 31.3.2014 and if such interpretation is not given to bye-law 48(2)(A)(h), not only the purpose of finalization of the Voters list shall be frustrated but there will be no end to uncertainty being created for holding the election. Mr. Thakore submitted that bye law No. 48(2)(A)(h) cannot override the provisions of the Act where-under class-C audit of the society is not included as disqualification. Mr. Thakore submitted that bye-law No. 48(2)(A)(h) has been in existence since the inception of the Union and in view of the Amending Provisions of 2015, such bye-laws cannot be now considered so as to take away right of the member already included in the Voters list to contest the election as not falling within the disqualifications provided in the provisions of the Act. Referring to section 27(3) of the Gujarat Cooperative Societies Act, 1961 ("the Act"), Mr. Thakore submitted that by amendment, the legislature has intended that the society having Audit Class A,B and C shall be eligible to exercise right of vote and even right to contest the election. He also referred to section 76B of the Act to point out that the disqualification for removal of the officer is also under the provisions of the Act and not under bye laws and therefore, only those disqualifications provided in section 145F are required to be considered to debar the member included in the Voters list from contesting the election. Mr. Thakore thus submitted that the provisions made in bye-law 48(2)(A)(h) for disqualification since contrary to the provisions of the Act cannot be relied for rejection of the nomination papers. Mr. Thakore submitted that when the Page 4 of 14 HC-NIC Page 4 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT election program was declared, the society of the petitioner was not disqualified and what is relevant is the date of nomination for such purpose. Mr. Thakore submitted that the date for finalization of the audit was 23rd October, 2015 and the report for classification was shown to be of 4.11.2015 whereas the recommendation for such classification is stated to be 5.11.2015, therefore, it appears that the report was placed before the election officer with ulterior consideration and such report should not have been considered by the election officer.
8. On the other hand, learned Senior Advocate Mr. S.I. Nanavati appearing with learned advocate Mr. Siddharth Dave for respondent No.3 submitted that there is no prayer made in the petition to declare bye-law 48(2)(A)(h) to be inconsistent with or contrary to the provisions of the Act. Mr. Nanavati submitted that for the purpose of election of the specified society, the provisions made in Chapter 11-A of the Act and the Rules. Mr. Nanavati submitted that it is provided in Rule 23 of the Gujarat Specified Cooperative Societies Election Rules, 1982 ("the Rules") that the election officer is mandated to reject the nomination papers if he finds that the candidate nominated has incurred any of the disqualifications under the provisions of the Act, Rules and also the bye-laws. Mr. Nanavati submitted that since such provisions for disqualification made in the bye-law has formed part of the statutory rules, it cannot be said that the nomination papers could be rejected only on the disqualification provided in section 145F Page 5 of 14 HC-NIC Page 5 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT of the Act. Mr. Nanavati submitted that the right to vote and right to contest election are different and what is provided in section 27 of the Act as regards audit classification of the membership of the society is only for exercise of right to vote by such society and it cannot be read so as to include therein the right to contest the election. Mr. Nanavati submitted the election officer while exercising powers of scrutinizing of the nomination papers is to act as per rule 23 of the Rules and he cannot ignore the provisions for disqualification made in the bye-laws. Mr. Nanavati submitted that what is relevant for the purpose of considering disqualification for election is the date when the scrutiny of nomination papers is made by the election officer. Mr. Nanavati submitted that before the scrutiny of nomination papers is made, there was no question of considering the disqualification of the candidate aspiring for election but on the date of scrutiny of nomination papers, if it is brought to his notice that the candidate though is included in the Voters list but is not qualified to contest the election, he can certainly be debarred from contesting the election by rejection of nomination papers. As regards the provisions for disqualification made in bye-law No. 48(2) (A)(h), Mr. Nanavati submitted that when there is specific provision made for disqualification of a member society which is given Class C or D audit in last audit, the last audit before the election held is required to be considered. Mr. Nanavati submitted that in the case on hand, the last audit was for the year commencing from 1.4.2014 to 41.3.2015 and in such last audit, since the society of the petitioner Page 6 of 14 HC-NIC Page 6 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT got Audit Class-C, the society of the petitioner incurred disqualification to contest the election. Mr. Nanavati submitted that the audit was completed as on 23rd October, 2015 and therefore, and Class C audit given to the society could be said to be before the election program issued and at least before the scrutiny of the nomination papers was done. Mr. Nanavati therefore submitted that as on the date of scrutiny of the nomination papers, since as per the last audit, society of the petitioner was given Audit Class C, the election officer committed no error in rejecting the nomination papers of the petitioner on the ground that the society of the petitioner has incurred disqualification to contest the election.
9. Learned A.G.P. Mr. Patel appearing for respondent Nos. 1 and 2 submitted that from the provisions of Rule 18 and 19 of the Rules, it appears that the legislature intended to consider the aspect about the disqualification on the date of scrutiny of the nomination papers. Mr. Patel submitted that as per the bye-law No. 48(2)(A)(h), audit class shown in the last audit is to be considered for deciding the question of disqualification on the date of scrutiny of nomination papers and the election officer has considered such disqualification on the date of scrutiny of nomination papers. Mr. Patel has adopted other arguments advanced by the learned Senior Advocate Mr. S.I. Nanavati.
10. Having heard the learned advocates for the parties, it appears Page 7 of 14 HC-NIC Page 7 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT that for the election of the managing committee of the Union, the Voters list was finalized on 21.10.2015.Such Voters list was finalized taking the position of the members of the society as on 31.3.2014. There is no dispute on the aspect that as on 31.3.2014, the society of the petitioner was holding Audit Class A,B. After finalization of the Voters list, the election program was notified on 22.10.2015,copy whereof is placed at Annexure A as per which the date for acceptance of the nomination papers was fixed between 28.10.2014 to 4.11.2015 and the date of scrutiny of nomination papers was fixed on 6.11.2015. As stated above, on 6.11.2015, respondent No.3 raised objection against the nomination of the petitioner on the ground that the society of the petitioner was given Audit Class-C which was disqualification as per bye-law No. 48(2)(A)(h) of the bye laws. Considering such objection of respondent no.3, nomination papers of the petitioner were rejected by the impugned order.
11. As per rule 23 of the Rules, the election officer is required to examine the nomination papers and decide all the objections and may, either on such objection or on his own motion, after such summary inquiry as deems necessary, reject the nomination papers on any of the grounds mentioned therein including the one that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or bye-laws.
12. The Rules are framed in exercise of the powers conferred by Page 8 of 14 HC-NIC Page 8 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT section 168, read with sub section (2) of section 145-G, sub section (4) of section 145-U and Section 145-Y of the Act. Chapter XI-A of the Act is for the elections of Committees and officers of specified societies. Section 145F under this Chapter provides for disqualification for membership of the managing committee. Though this section provides for disqualifications over and above the other disqualifications provided by or under any other provision of the Act for being elected as member of the committee, in absence of any specific provisions for ignoring the consideration of disqualification provided in bye-laws for rejection of nomination papers by the election officer under rule 23 of the Rules, it cannot be said that the disqualification provided in bye-law No. 48(2)(A)(h) of the bye laws of the Union cannot be considered for the purpose of scrutiny of the nomination papers to decide whether the candidate nominated is disqualified or not. It is required to note that though there is amendment made in section 145F so as to add the defaulter society in the Central Cooperative Bank and the State Cooperative Bank as disqualification, there is no amendment in Rule 23 to take out bye laws therefrom. Thus, the legislature also intended rejection of nomination for the disqualification provided in the bye laws of the Union and, therefore, it is so provided in Rule 23 of the Rules and made it mandatory for the election officer to reject the nomination paper of the candidate who is disqualified for being chosen to fill the seat by or under the Act, Rules or the bye laws. Before section 27 was amended, there was no restriction provided for eligibility of member Page 9 of 14 HC-NIC Page 9 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT society to exercise right to vote on the ground of audit classification. However, by amendment brought in the year 2015, right to vote is available to only those member societies which are given audit class A,B and C. Right to vote and Right to contest are different and, therefore, even if the member is included in the voters list and becomes eligible to vote but could be debarred from contesting the election if disqualified under the Act and the Rules. The Rules would take in its sweep the provisions made in the bye laws by virtue of rule 23 of the Rules. The contention that the disqualification provided in the bye laws of the Union would run contrary to the provisions of the Act cannot be accepted in view of the provisions made in section 145- F (e) as per which a person shall be disqualified if he is also disqualified by or under any of the provisions of the Act. The words "by or under any of the provisions of the Act" would include the provisions made in the Rules as the Rules are framed in exercise of the powers under the provisions of the Act and it cannot be read separately to disassociate the disqualification provided under the bye laws of the Union.
13. In the case of Hasmukhbhai Karamsinhbhai Gambhava versus State of Gujarat, reported in 2015(2) GCD 865, relied on by Mr. Thakore, the challenge was against the inclusion of the names of the members of managing committee of respondent No.5 -15 in the list of voters for the purpose of election of the specified society. While examining such challenge in the context of rule 4 of the Rules, the Page 10 of 14 HC-NIC Page 10 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT Court held and observed in para 13 as under:
"13. Therefore, when it is held that right to vote will have to be on basis of provision of Rules 1982 and as provided in Rule 4(1) of the Rules, only those persons who are members of the specified society on the date of drawing up accounts of the year immediately preceding the year, in which, election is due are entitled to included in the provisional list, as the villages in which, respondent nos. 5 to 15 are operating were as such in the Jodiya Taluka as on 31.3.2013 and in Jamnagar District as on 31.3.2013 and they were members of the concerned Bank as on 31.3.2013, considering Rule 4(1) of the Rules, no error has been committed by the Election Officer in including names of respondent nos. 5 to 15 in the provisional list of voters of Jodiya Taluka Constituency.
The contention on behalf of the petitioner that the aforesaid would be contrary to bye-law no.30(1)(a) (8) is concerned, it is required to be noted that bye law cannot overrule the statutory rules. In the aforesaid decision in the case of Bhavnagar District Cooperative Bank Limited and Ors (supra), the Division Bench has specifically observed that right to vote at the election to the Managing Committee of the specified society is not governed by contract between the specified society and its members, but is governed by statutory Rules of 1982 and as provided in Rule 4(1) of the Rules."
14. In the said case, the bye laws were not considered to be part of the statutory rules. The decision therefore shall have no application to the facts of the present case.
15. However, the question needs to be considered is what meaning is to be ascribed to the words "last audit" used in bye law No. 48(2) (A)(h). As per the provisions made in this bye law, member society placed in audit Class C or D at the time of last audit shall not be qualified to be elected as member of the Managing Committee (Board Page 11 of 14 HC-NIC Page 11 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT of Directors). The voters list was finalized on 21.10.2015. Therefore, for the purpose of election, if last audit is considered for the year from 1.4.2014 to 31.3.2015, the petitioner may be said to have incurred disqualification. However, the last audit of the earlier year is considered, the petitioner is not be considered to have incurred disqualification. Rule 4 of the Rules provides for provisional list of voters in the society for the year in which the general election is due to be held. Persons who are members as on the date of drawing up the accounts of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye laws, the names of voters shall be arranged constituency wise as laid down in the bye laws. As per rule 3 of the Rules, the District Registrar shall every year within ninety days before drawing up the accounts report to the Collector the names and addresses of the societies in his District in which the elections are to be held and there are other steps provided for finalization of the voters list. Reading the above said provisions of the Rules with section 27 of the Act which provides for right to vote, it could be said that the right to contest the election is relatable to finalization of the voters list though right to vote and right to contest the election are two different things. Thus, for the purpose of deciding the disqualification, it has to be relatable to the time of finalization of voters list especially for the member society. When as per the proviso to sub section (3) of section 27 of the Act, no member society shall exercise their right to vote at election of member of a committee Page 12 of 14 HC-NIC Page 12 of 14 Created On Sat Nov 28 00:43:06 IST 2015 C/SCA/19046/2015 JUDGMENT unless such society has its last accounts audited in Class A,B and C, the right to contest could be relatable only to the classification given when voters list is finalized. In that context, audit report of the society is to be considered. Therefore, class of audit given in the last audit done for the year for which the voters list is finalized is to be considered. Undisputably, in the present case, the voters list finalized was for the year ended with 31.3.2014 and the year ending with this date is the relevant year for considering the last audit for the purpose of deciding the question of disqualification. When the voters list was finalized i.e. on 21.10.2015, the society of the petitioner was not rendered disqualified since it was already having Audit Class A and B and thereafter, election program was issued, therefore, classification of audit held by the society of the petitioner as on 31.3.2014 was the relevant audit classification for the purpose of deciding on the aspect of disqualification under bye law No. 48(2)(A)(h) of the Union. The petitioner, therefore, cannot be said to have incurred any disqualification to contest the election of the managing committee of the union. The election officer would assume power, authority or jurisdiction under rule 23 only when there is a disqualification but if there is no disqualification and there are no other grounds for rejection of the nomination,then, he can be said to have no jurisdiction to reject the nomination of the petitioner. Rejection of nomination of the petitioner by the Election Officer by order dated 9.11.2015 is therefore, invalid and bad in law and is required to be quashed and set aside.
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16. This Court vide order dated 11.11.2015 directed that subject to further orders which may be passed in the petition and without prejudice to the rights and contentions of the parties in the present petition, name of the petitioner shall be included in the list of contesting candidate.
17. Now when the order impugned is being set aside, the nomination of the petitioner shall be considered to be valid in the eye of law.
18. For the reasons stated above, the petition is allowed. Impugned order dated 9.11.2015 of the election officer rejecting the nomination paper of the petitioner is quashed and set aside. Rule is made absolute.
Sd/-
(C.L.SONI, J.) anvyas Page 14 of 14 HC-NIC Page 14 of 14 Created On Sat Nov 28 00:43:06 IST 2015