Gujarat High Court
Kaira District Cooperative Milk ... vs State Of Gujarat & 4 on 22 April, 2015
Author: Jayant Patel
Bench: Jayant Patel, G.B.Shah
C/SCA/6416/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6416 of 2015
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KAIRA DISTRICT COOPERATIVE MILK PRODUCERS UNION
LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR PS CHAMPANERI, ADVOCATE for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 22/04/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The petitioner by this petition is seeking appropriate direction to declare that the decision of the delimitation of the constituencies by the Managing Director is not a decision of the Society and consequently be pleased to order and direct the Collector to delimit the constituencies as per the delimitation carried out by the Managing Director of the petitioner Society. The petitioner has also prayed to quash and set aside impugned decision dated 13-3-2015 at Annexure-G whereby the delimitation of the constituencies are made by the Collector.
2. We have heard Mr.Champaneri, learned counsel for the petitioner.
3. Mr.Champaneri, at the outset, submitted that the election Page 1 of 7 C/SCA/6416/2015 ORDER programme of the petitioner society is already declared and therefore, the cause for delimitation has met its own fate subject to the right of an aggrieved party to approach before the Election Tribunal after the election is over.
4. As such, neither the Managing Director nor the society can be said to have been aggrieved by delimitation on the ground as sought to be canvassed as, in any case, the election programme is already declared and the delimitation has lived its life, the cause cannot be now examined.
5. Apart from the above, we may also record that for challenging the very order of the District Collector dated 13- 3-2015 for delimitation of the constituency at the ensuing election of the petitioner society, Special Civil Application No.4899 of 2015 was preferred by Mr.Champaneri only and this Court in the said petition has observed thus:
" [1] Draft amendment is granted.
[2] The petitioners by this petition challenge the order dated 13.03.2015 passed by the District Collector, in exercise of the power under Rule 3A of the Gujarat Specified Cooperative Societies (Election to Committees) Rules, 1982 (hereinafter referred to as "the Rules") whereby he has delimited the constituency for the ensuing election of the Kheda District Cooperative Milk Producers Union Limited.
[3] We have heard Mr.P. S. Champaneri, learned advocate appearing on behalf of the petitioners.
[4] The contention raised by the learned advocate for the petitioners is that after delimitation of the constituency the objections are required to be invited and, thereafter, only delimitation of the constituency can be finalized. He submitted that while delimiting the constituency, the geographical location of the residence of the respective voters and the society is required to be considered and there can not be pick and chose method. He submitted that the powers exercised by the Collector, while passing the impugned order at Annexure - A is in a mechanical manner and he did not take care to verify the internal details and composition. In his submissions, the fact that Page 2 of 7 C/SCA/6416/2015 ORDER subsequently, the Collector had to issue corrigendum brought on record by draft amendment, goes to show that there were apparent mistakes in the order at Annexure- E and hence, the impugned order at Annexure - E can also be said to be erroneous on the face of it. He submitted that there is right with the members to get respective constituency of the parent society to be delimited in accordance with law. If delimitation has not been properly made after following procedure as provided by the law, the members would be justified in approaching before this Court. He also contended that as such, the Collector will have power to delimit the constituency only under Rule 3A(9) of the Rules when the election is to be held immediately before the end of the Accounting Year and if the election is to be held after the Accounting Year, such power under Rule 3A(9) would not be attracted. In his submissions, the Collector has no power to delimit the constituency and hence, the order can be said to be void and illegal.
[5] In our view, so far as the scope and ambit of the power under Rule 3A(9) read with Rule 3A(8) is concerned, it is already covered by the earlier Full Bench decision of this Court in Special Civil Application No.12067 of 2012 and allied matters decided on 04.07.2013 wherein the Full Bench at paragraph No.25 concluded as under:
"25. In view of the aforesaid observations and discussions, we find that the issues referred to us can be answered 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 constituencies are required to be made by the Collector.
(2) The scheme of the Rules of 1982 do permit specified societies having single constituency, Page 3 of 7 C/SCA/6416/2015 ORDER 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."
The aforesaid shows that it has been held by the Full Bench of this Court that the Collector has power to pass an order for delimitation of the constituencies even in absence of any proceedings undertaken in accordance with Section 14 of the Act for amendment to the bye-laws. It has been further held that delimitation of the constituencies can be based upon objects and activities of the societies or 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.
[6] The perusal of the impugned order passed by the Collector shows that after considering the Full Bench decision of this Court, the powers are exercised for delimitation of the constituency since the number of constituencies were 12, the voters located in the concerned villages and societies of the respective area for adjacent areas are included in the voters list by delimitation of the constituency. Further, it appears that broadly, the ratio of the members of the voters has been considered in each constituency since it would be practically impossible to maintain the same members of the voters in each constituency.
[7] The attempt to contend that the geographical location is to be considered and there is pick and chose method is on non-existent premise inasmuch as there is no mandatory provisions to consider geographical aspects and considering the map produced at Exhibit 132 by the petitioner and the delimitation of the constituency, if Page 4 of 7 C/SCA/6416/2015 ORDER considered, it cannot be said that any pick and chose method has been applied. On the contrary, the adjacent areas of adjoining Taluka and other societies located, are included while delimiting the constituency in order to maintain more or less same ratio of voters. Hence, contention cannot be accepted.
[8] The attempt made by the learned advocate for the petitioners to contend that there was a mechanical exercise of power and the same supported by subsequent corrigendum by way of draft amendment also cannot be countenanced because the fact that the corrigendum issued goes to show that the Collector has corrected his own mistake. Merely because the correction has been made in any order, it cannot be said that there was mechanical exercise of power. In any case, when the mistake has been corrected, resultant effect would be that the order would be with correction and, therefore, it cannot be said that the order would be rendered erroneous as sought to be canvassed.
[9] It is hardly required to be stated that in election matter, the broad aspects are to be considered as to whether the election is vitiated or not. When the mistake is already corrected, it cannot be said that there was no application of mind by the Collector, more particularly when the mistake is already corrected.
[10] The attempt to content that as per the scheme of Rule 3A, it should be first delimitation of the constituency and the objections are to be invited and delimitation is finalized, can also not be countenanced because after delimitation of the constituency and after preparation of the provisional voters list, the objections are to be invited and, if any, person has been wrongly included or excluded the said aspect can be considered. Further, the contention raised by the learned advocate for the petitioners that it is only in case of election to be held at the end of the Accounting Year, the power can be exercised under Sub-Rule (9) of Rule 3A is without any substance inasmuch as Rule 3A and its applicability is also interpreted by the Full Bench of this Court in above referred decision. This Court in the above referred decision of Full Bench of this Court inter alia observed at para-18, the relevant of which reads as under:
"Subrule (9) of Rule 3A again would independently apply in contradiction to subrule (1) to subrule (8). The language of subrule (9) is clear inasmuch as the Page 5 of 7 C/SCA/6416/2015 ORDER rule making authority has clothed the Collector with the power to delimit the constituencies prior to the publication of the list of voters. It is true that the question of delimitation of the constituencies would arise only in a case where there is more than one constituency, but at the same time, while exercising the power under subrule (9), the Collector has to keep in mind the provisions of subrule (8) inasmuch as in a case where the area of operation of any society is 'more than one village', the number of constituencies has to be equal to the total number of seats. In our view, the delimitation of the constituency would be prior to the preparation of the voters' list and/or in any case simultaneous with the preparation of preliminary voters' list but the final voters' list has to be as per the delimitation of the constituencies. It would be fair and proper for conducting the election, if the delimitation of the constituencies takes place prior to the preparation of the preliminary voters' list. Once it is found that the delimitation of the constituencies has to proceed prior to the preparation of the preliminary or final voters list, subrule (9), though provided at the end of Rule 3A, has to be complied with in the beginning of the process for preparation of the voters' list. Be that as it may, from express language of subrule (9) it is clear that when the election of any specified society is scheduled to be held, the delimitation of the constituency is required to be made by the Collector prior to the publication of the list of voters."
[11] It may also be recorded that after the decision of the Full Bench, the matter is carried before the Apex Court and the Apex Court in its decision in the case of Rajkot District Cooperative Bank limited Vs. State of Gujarat and others, reported in AIR 2015 SC 489 has not interfered with the decision of the Full Bench of this Court and has issued further following directions at paragraph No.23 which reads as under:
"The members of the specified societies in the State have a right to elect their true representatives to represent them as Managing Committee or Board members of the district Cooperative Societies and other allied societies after de-limitation of the constituency/ constituencies and therefore, we direct them to see that the impugned provisions and Rules must be implemented forthwith without further delay and submit compliance report within 8 weeks from Page 6 of 7 C/SCA/6416/2015 ORDER the date of report of the copy of this order."
The aforesaid can be said as mandate issued by the Apex Court to hold the election after delimitation of the constituency at the earliest.
[12] Mr.Dhawan Jayswal, learned Assistant Government Pleader for the respondent - State of Gujarat is appearing on advance copy has brought to the notice of the Court that the regular terms of the present elected body - Kheda District Cooperative Milk Producers Union Limited, is over on 27.08.2012 and election are to be held. This shows that more than two and half years is already passed after the expiry of regular terms of the elected body in the office.
[13] If the aforesaid fact situation is considered in light of above referred observations and directions issued by the Apex Court, it would be just and proper to hold election at the earliest and no interference should make to the process of election so as to enable the voters to elect their true representatives in the elected body.
[14] In view of the aforesaid observations and discussions, we do not find any case for interference. Hence, the petition is dismissed."
6. In view of the above, on both count namely, that the challenge to the delimitation of the constituency was not accepted by the Court and that the election programme is already declared and delimitation has lived its life, the present petition that too at the instance of the society, whose election is being held, does not deserve to be entertained and the challenge in any case is meritless. Hence, the petition is dismissed.
(JAYANT PATEL, J.) (G.B.SHAH, J.) RADHAN Page 7 of 7