Gujarat High Court
Khareda Mahila Dudh Utpadak Sahakari ... vs District Collector & 3 on 30 October, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/17877/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17877 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 ? No
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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KHAREDA MAHILA DUDH UTPADAK SAHAKARI MANDALI LTD
Versus
DISTRICT COLLECTOR & 3
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Appearance:
MRS SANGEETA PAHWA for THAKKAR AND PAHWA, ADVOCATES,
ADVOCATE for the Petitioner(s) No. 1
MR NEERAJ ASHAR, ASSTT GOVT PLEADER for Respondent Nos.1,2 & 4
DS AFF.NOT FILED (N) for the Respondent(s) No. 1 , 4
MR RASESH H PARIKH, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 30/10/2015
ORAL JUDGMENT
1. The matter is taken up for final hearing and disposal. Hence, RULE. Learned Assistant Government Pleader Mr. Neeraj Ashar for respondent Nos.1, 2 and 4 and learned advocate Mr. Parikh for respondent No.3 waive service of Rule.
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2. Following are the prayers made in the present petition filed by the petitioner under Article 226 of the Constitution of India:-
"(A) Your Lordships be pleased to admit and alow the present Writ Petition;
(B) Your Lordships maybe pleased to issue a writ of mandamus or anyother appropriate writ, order or direction to quash and set aside the order dated 3.10.2015 (Annexure-A) passed by the respondent no.2; and further be pleased to direct the respondent No.2 to carry out delimitation of the respondent No.3- Union as per the bye-law No.35.
(C) Your Lordships may be pleased to quash and set aside all the consequential steps taken by the respondent No.2 on the basis of the order dated 3.10.2015 (Annexure-A); and be further pleased to quash and set aside the voters' list dated 21.10.2015 (Annexure-E) prepared as per the order dated
3.10.2015 passed by the respondent No.2;
(D) Your Lordships may be pleased to quash and set aside the election programme published on 22.10.2015 (Annexure-F) by the respondent No.2 on the basis of the order dated 3.10.2015; and further be pleased to direct the respondent Nos.1 and 2 to not to take any steps pursuant to the order passed by the respondent No.2 dated 3.10.2015;
(E) .....
(F) .....
(G) .....
(H) .....
(I) ....."
3. It appears that there is no dispute on the aspect that for election to 11 seats, taluka-wise constituencies are provided in Bye- law No.35, One constituency earmarked for Patan and Bagdod Taluka was amongst the other constituencies, provided in Bye-law No.35.
4. As per the definition of Section 2(b) of the Gujarat Specified Co- operative Societies Election to Committees Rules, 1982 ('the Rules') , constituency means an electoral division, if any, specified in the bye- laws of the specified society. Since there are more than one Taluka for the area of operation of respondent No.3 Society, number of constituencies were provided to equal number of seats Taluka-wise.
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5. It appears that there is no dispute about the fact that so far as the petitioner society is concerned, it was within the limits of Patan Taluka before the impugned order for delimitation of the constituency was passed. It further appears that now on account of bifurcation of the talukas, Saraswati Taluka is formed in place of Bagdod Taluka and separated from Patan Taluka.
6. However, by the impugned order dated 3.10.2015 passed for delimitation of the constituency, the petitioner society and other 31 societies are grouped in Siddhpur Taluka by removing them from the constituency of Patan Taluka. Names of the villages wherein such societies are situated, including the petitioner society, for their inclusion in Siddhpur Taluka, are mentioned in Annexure-5_ to the impugned order.
7. Learned advocate Mrs. Pahwa for the petitioner submitted that the Election Officer while delimiting the constituencies could have made change within the constituency and it was not open to him to remove the societies from the limits of particular taluka, which is earmarked as constituency to altogether different taluka. Mrs. Pahwa submitted that in the present case, there is no dispute that the petitioner society is situated within the limits of Patan Taluka even after formation of Saraswati Taluka. Mrs. Pahwa submitted that it would have been a different matter if the petitioner and other societies are included in the constituency of Saraswati Taluka which is formed in place of Bagdod Taluka, which was otherwise considered as joint constituency with Patan Taluka.
8. Learned Assistant Government Pleader Mr. Neeraj Ashar on the other hand submitted that the impugned order is passed by the Election Officer on account of formation of the new Talukas and since Saraswati Taluka is formed in place of Bagdod Taluka, delimitation of the constituency was required considering the geographical situation Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT of the societies. Mr. Ashar submitted that since the Election Officer was to consider the issue about giving of equal representation to the societies, the petitioner and other 31 societies are grouped in Siddhpur Taluka and such is not contrary to the law and even the bye-laws but is in consonance with the law declared by Hon'ble Supreme Court for giving equal representation. Mr. Ashar however could not dispute that the petitioner and other 31 societies shown in Annexure-5 are situated within the limits of Patan Taluka and their inclusion in the constituency of Siddhpur Taluka will change the geographical limits of the petitioner society and other societies.
9. Learned advocate Mr. Dipen Desai, who has though not filed any application for joining party, but stated that if the impugned order is interfered with, entire election program will be required to be reshuffled and therefore, sought permission to assist the Court. He was, therefore, permitted to argue on purely law points on the aspect whether the Election Officer could have legally changed the constituencies based on formation of new talukas.
10. Mr. Desai submitted that on account of formation of Saraswati Taluka in place of Bagdod Taluka, it was required of the Election Officer to make change in the constituencies considering the geographical situation of the societies. Mr. Desai submitted that the petitioner is the only society which has come with the present petition and that the petitioner society shall not be affected of its right to vote on account of delimitation of the constituency under the impugned order. Mr. Desai submitted that earlier, Bagdod Taluka was with Patan Taluka and for both the Talukas, one constituency was provided in the bye-law. However, on account of bifurcation of the Taluka and formation of new Saraswati Taluka, delimitation process was required to be undertaken and while undertaking such process, the Election Officer rightly considered the aspect of equal representation to the society and therefore, this Court may not interfere with the impugned order.
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11. Having heard learned advocates for the parties, it appears that there is no dispute on the aspect that the petitioner and other 31 societies were being part of Patan and Bagdod Taluka constituency, which was one of the constituencies provided in Bye-law No.35. There is also no dispute on the aspect that on formation of new Saraswati Taluka in place of Bagdod Taluka, there was no change in the limits of Patan Taluka wherein the petitioner and other 31 societies are situated. It is required to note that after formation of Saraswati Taluka in place of Bagdod Taluka, which was jointly with Patan Taluka as one constituency, for one seat, the petitioner and other 31 societies are not included in Saraswati Taluka but are included within the constituency of Siddhpur Taluka. Such would amount to totally change the limits of constituencies wherein the petitioner and other 31 societies were situated. Learned Assistant Government Pleader Mr. Ashar when was asked specifically whether on bifurcation of the Talukas, the petitioner and other 31 societies would stand removed from the limits of Patan Taluka, he under the instructions of the Election Officer present in the Court, could not dispute that the petitioner and 31 societies will remain within the limits of Patan Taluka. There is no dispute on the aspect that Patan Taluka is also treated as separate constituency. In such view of the matter, there appears to be no justification for including the petitioner and other 31 societies as mentioned in Annexure-5 to include within the constituency of Siddhpur Taluka. While passing the impugned order of delimitation, what is just considered is about giving of equal representation to societies for election of members of the Committee of respondent No.3 Specified Society. However, just to give equal representation to the societies, basis of constituency provided under the bye-law as per the limits of Talukas could not be changed. The Court, therefore, finds that the order impugned in the present petition cannot stand scrutiny of law and is required to be quashed and set aside insofar as delimitation provided for Siddhpur Taluka is Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT concerned.
12. In the case of Rajkot Distt Co-operative Bank Ltd. Vs. State of Gujarat & Ors. Reported in AIR 2015 SC 489, Hon'ble Supreme Court in the context of Rule 3(8) and (9) of the Rules has held and observed in para 16 to 22 as under:-
16. On a careful examination of Rule 3-A (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 3-A 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 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 3-A, 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 sub-rule (8) is read along with sub-rule (9) of Rule 3-A, 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 3-A 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 3-A, 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 Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT 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 bye-laws. 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 bye-laws in conformity with the provisions of the Rules and more particularly Rule 3-A (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 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 Co-
operative 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 Co-operative Societies Act cannot be permitted to prevail over the statutory Rule 3-A (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 Co-operative Societies Act cannot be disregard as it would defeat the purpose of Section 243ZK of the Constitution of India (Ninety-Seventh Amendment) Act 2011, inserted as per Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT 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 Co- operative 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 Co-operative 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 Kuldip Nayar's case (supra), this Court after referring to various Constitutional Bench judgments and other judgments of this Court for the purpose of interpretation made by this Court in relation to phrases used in the Preamble of the Constitution of India such as "sovereign democratic republic" and "Parliamentary democracy" as the basic feature of the Constitution of India, held as under:-
"101. In the same case (Indira Nehru Gandhi case, reported in 1975 Supp SCC 1), Chandrachud, J. in para 691 of his separate judgment ruled as under: (SCC pp. 261-62) "Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution, and (2) it must not offend against the provisions of Articles 13(1) and (2) of the Constitution. 'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features'-this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution."
XXX XXX XXX
142. Article 80(4) prescribes the manner of voting and election of the representatives of States for the Council of States in the following terms: "80. (4) The representatives of each State in the Council of States shall be elected by the elected Members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote."
XXX XXX XXX
336. In the words of Jaganmohan Reddy, J.(Kesavananda Bharati case reported in (1973) 4 SCC 225) in his separate judgment, the 1"elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution" and the "edifice of our Constitution is built upon and stands on several props" which, if removed would result in the Constitution collapsing and which include the principles of Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT "sovereign democratic republic" and "parliamentary democracy", a polity which is "based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them"
341. Some of the important holdings were set down in para 92 of the aforementioned (Mohinder Singh Gill v. Chief Election Commr. reported in (1978) 1 SCC 405) judgment "for convenience" and to "synopsise the formulations". The holdings included the following: (SCC p. 452) "92. (2)(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order viz. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication."
343. The case Kihoto Hollohan v. Zachillhu (reported in (1992 Supp (2) SCC 651) also resulted in similar views being reiterated by this Court in the following words: (SCC p. 741, para 179) "179. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority."
(emphasis laid by this Court) In Rameshwar Prasad (VI) v. Union of India[9], this Court has held as under:-
"229. Lord Greene said in 1948 in the famous Wednesbury case (reported in (1948) 1 KB 223) that when a statute gave discretion to an administrator to take a decision, the scope of Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken.......
257. Therefore, the well-recognised position in law is that purity in the electoral process and the conduct of the elected representatives cannot be isolated from the constitutional requirements. "Democracy" and "free and fair election" are inseparable twins. There is almost an inseverable umbilical cord joining them. In a democracy the little man-voter has overwhelming [pic]importance and cannot be hijacked from the course of free and fair elections......".
(emphasis laid by this Court) In Mohinder Singh Gill v. Chief Election Commr.[10], this Court has held as under:-
"2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless, words:
"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."
13. In light of the above and for the reasons stated above, the impugned order insofar as inclusion of the petitioner society in Siddhpur Taluka constituency is quashed and set aside. Respondent No.2- the Election Officer shall now undertake the process of delimitation of the constituencies afresh in consonance with the Rules.
14. One of the grievances made by the petitioner in the present petition is as regards non-consideration of the objections of the petitioner while preparing the voter list. Now, since the order for delimitation of constituencies is being quashed and when the Election Officer shall be required to be undertake fresh process for delimitation of the constituencies, it will be open to the Election Officer to consider the objections raised by the petitioner against the Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Oct 31 00:54:34 IST 2015 C/SCA/17877/2015 JUDGMENT voter list.
15. The petition is allowed in part. Rule is made absolute to the aforesaid extent Sd/-
(C.L.SONI, J.) Omkar Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Oct 31 00:54:34 IST 2015