Gujarat High Court
Vaghasar Seva Sahakari Mandli Limited vs The Mehsana District Cooperative Milk ... on 7 January, 2022
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 311 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15478 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 311 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed to YES
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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VAGHASAR SEVA SAHAKARI MANDLI LIMITED
Versus
THE MEHSANA DISTRICT COOPERATIVE MILK PRODUCERS UNION
LIMITED
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Appearance:
MR PK JANI SENIOR COUNSEL WITH MR SHIVANG P JANI(8285) for the
Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,8,9
MR MIHIR JOSHI SENIOR COUNSEL WITH MR DIPEN DESAI(2481) for the
Respondent(s) No. 4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/01/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful original respondent No.1 of a writ application filed by the respondents Nos.4 to 9 herein (original writ applicants) and is directed against the judgement and order passed by a learned Single Judge of this Court dated 10th February 2021 in the Special Civil Application No.15478 of 2020, whereby the learned Single Judge allowed the writ application holding that the Lavad Suit instituted by the appellant herein before the Board of Nominees is not maintainable as the Board of Nominees has no jurisdiction to try such a suit in view of the specific bar of Section 145U of the Gujarat Cooperative Societies Act, 1961 (for short, "the Act, 1961").
2 The facts giving rise to the present appeal may be summarized as under:
3 The appellant herein instituted the Lavad (Arbitration) Case No.183 of 2020 in the Court of the Board of Nominees at Mehsana under Section 96 of the Act, 1961. The original plaint reads thus:
"Plaintiff:- (1) Vaghasar Service Co-Operative Society Limited, at Vaghasar, Post Kansa, Taluka Saraswati, District: Patan.
Versus.
Defendants:- (1) The Mehsana District Co-operative Milk Producers Union Limited, Address: Mehsana Dudh Sagar Dairy, Highway, Page 2 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Mehsana-384 002.
(2) The Managing Director, The Mehsana District Co-operative Milk Producers Union Limited, Address: Mehsana Dudh Sagar Dairy, Highway, Mehsana-384 002.
Dispute under Section 96 of the Gujarat Co-operative Societies Act, 1961.
The version of the plaintiff is that:
1. Defendant No. 1 The Mehsana District Co-operative Milk Producers Union is a milk producers union registered under the Co-
operative law, which is registered at Serial No. Se/1 on 8-11-1960 (which has hereafter been referred to as "the Union"). The Union has registered its Bye-laws. The office-bears of the Union are responsible and bound to run the administration in accordance with the Act, law and bye-laws. Applicant (Defendant) No. 2 is the managing director of the Union; and the plaintiff is the member of defendant No. 1 Union.
2. As per Bye-law 35 of the Bye-laws of defendant No. 1 Union, the board of the Union comprises of 21 members. Rule 35(1) of the Bye- laws of the Union is as under:
"Rule 35(1) of the Bye-laws.
The Board of directors of 21 members will comprise as stated hereunder:
(A) 15 representatives of the affiliated societies as per sub-
rule (6)(A)(1) who are elected as per Bye-laws, out of which 3 seats will be reserved for female representative.
(1) 11 seats will be as per following Taluka wise:
1. Kadi-one.
2. Kaloll and Gozaria-one.
3. Kheralu, Vadnagar and Satlasana-one.
4. Chanasma and Bahuraji-one.
5. Patan and Vagdod-one.
6. Mehsana-one.
7. Mansa-one.
8. Vijapur-one.
9. Visnagar-one.Page 3 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
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10. Sami and Harij-one.
11. Siddhpur and Unjha-one.
Out of the aforesaid 11 seats, 3 seats will be reserved for female representatives, which 3 seats will get changed every time in the election year as per the above serial order.
(2) 4 seats will be as decided by the Board of Directors in existence at the relevant time by its resolution for allotting the seats Taluka wise mentioned at serial No. 1 above having regard to the average stock of milk of three years preceding the election year.
(B) One representative of the other societies and individual members as per Bye-law 6(A)(2) and 6(A)(3) who is elected as per the Bye-laws.
(C) One representative appointed by the Registrar, Co-operative Societies.
(D) One representative of the financial institutions such as N.D.D.B. and one representative of the Mehsana District Central Bank if loan is taken from it till the same is repaid, thus total two representatives who can be changed every year.
(E) Managing Director of the Union Ex-officio member.
(F) One representative of Gujarat Co-operative Milk Marketing Federation."
Thus, there is a provision for constituting a Board of 21 members as aforesaid as per Rule 35 of the Bye-laws of the Union.
3. A Notification regarding electorate for election process of the Union for the years from 2020-21 to 2025-26 was published by defendant No. 2 on 14-3-2020; and it was stated therein that if anybody has any objection against the said Notification, he may submit objection in writing within 15 days from the date of its publication. I humbly say that even though I had submitted objections in writing against the Notification published on 14-3-2020, defendant No. 2 has published the agenda of electorate without taking the said objections into consideration, which is ab-initio wrong, illegal and void.
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4. I humbly say that I, the plaintiff, had given written objection on 6-7-2020 against the Notification of electorate published by defendant No. 2 on on 14-3-2020; and it was clearly stated therein that I am included at Serial No. 3 in the electorate of the members elected from other societies and individual members as per By-law 35(1)(b) of the Milk Union. In all 168 members are included in the agenda of electorate published by you, in which I am included at Serial No. 163. In the said electorate, right to vote is given to one representative out of 10 members of the other societies as per Bye-law 6(A)(2) of the Milk Union and one representative out of 25 individual members as per Bye- law 6(A)(3). In my electorate, there are about 70 other societies; and accordingly, voting right is available to 7 representatives as per Bye- law 6(A)(2); and there are about 98 individual members; and accordingly voting right is available 4 representatives as per Bye-law 5(A)(3). But, the age of the individual members who had become members in the year 1960 when the Milk Union was established was more than 21 years. Therefore, after 60 years, as on to-day more than 90 percent of those members have died. Hence, if the electorate agenda is published after getting the existence of individual members verified, only 1 member will get right of vote instead of 4 members out of individual members in my electorate as per Bye-law 6(A)(3) of the Milk Union on account of removal of the deceased members. Therefore, it is stated that I have objection against my electorate agenda published without getting the existence of individual members verified; and objection was also given against enrolling individual members by violating Bye-laws 6(A)(3), 12(A) and 19 of the Milk Union. Despite that, the Notification of the final electorate has been published on 8-7- 2020 without considering the said objections, against which I have given objections to defendant No. 2 on 16-7-2020.
5. It is my say that I had given written objection to defendant No. Page 5 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 2 against the Notification dated 14-3-2020. But, since he had refused to accept the objections, I had sent the objections through E-mail to him; and I had also given intimation about it to the District Registrar, Mehsana and registered my objection; and had made representation to take necessary action. A copy of the said objection is enclosed herewith.
6. It is my humble say that I had addressed a letter to defendant No. 2 on 6-7-2020; and stated therein that I am included at Serial No. 3 of the electorate of the members elected from other societies and individual members as per Bye-law 35(1)(b) of the Milk Union, in the Notification of election of defendant No. 1 Union published on 14-3- 2020. Looking to the list, there are 168 members and my name appears at Serial No 163. The other societies and individual members included in the said electorate do not come in direct or routine contact with the Milk Union. Therefore, my request is to publish an advertisement in a daily news paper for vide publicity of the detailed program for the election of the representatives of this electorate under the supervision of the representative of the Government. Apart from this, it was also stated that I have strong objection against holding of election of the representatives. Thus, even though I had taken the said objections, the final agenda of electorate is published on 8-7-2020 without considering any of the objections of the plaintiff and without giving any opportunity of making a representation in that behalf, in which 38 societies are admitted; and 109 societies are shown as voter societies. Thus, the objections taken by me are not considered; nor any verification is undertaken. Thus, the said Notification is void-ab-initio, illegal and bad in law.
7. It is my humble say that despite the objections taken by me against the Notification published by defendant No. 2 on 14-3-2020, final Notification of the electorate was published on 8-7-2020 without Page 6 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 considering the said objections, about which I have written letter to defendant No. 2 on 16-7-2020; and since the Notification published on 8-7-2020 was wrong and illegal and was prejudicial to the member societies, I had requested him to immediately cancel the said process and to initiate entire process afresh for the election of defendant No. 1 Union. A copy thereof is enclosed herewith.
8. It is my humble say that Rule 19 of the Bye-laws of the Union is as under:
"It will be open to any member to transfer his share or shares to another member after one year with the permission of the Board of Directors. But, the amount of the individual member towards share will be refunded to the heir of the deceased member. The share will not be deemed to have been transferred unless and until the name of the transferee is entered in the share transfer register and fee of one rupee for each share for transfer is paid."
Thus, as per the said provision, even though there is a provision that the amount of share of the person will be refunded to his heir in case of death of any individual member, after the death of deceased Motibhai Chaudhari, Vipulbhai Chaudhari, Gitaben Vipulbai Chaudhari and his wife Monghiben Motibhai Chaudhari are enrolled as member, which is contrary to the provisions of the Bye-laws; and, therefore also, the Notification published by defendant No. 2 on 8-7-2020 is required to be cancelled.
9. It is my humble say that out of total 98 individual members of defendant No. 1 Union, 49 individual members have died, copy of the list of which is produced by me. Despite that, 98 individual members are shown in the Notification published on 8-7-2020. Thus, before publishing the said Notification, verification of the deceased individual members is not done; and the final Notification produced by defendant Page 7 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 No. 2 on 8-7-2020 is ab-intio wrong and illegal; and, therefore also, no election process can be undertaken as per the said Notification; and the Notification published on 8-7-2020 requires to be cancelled.
10. It is my humble say that as per Bye-law 6(a)(3), at the time of the establishment of the Union, before its registration, sympathizer individual members are enrolled. Even though there is a clear provision that henceforth no sympathizer individual members will be enrolled, Shri Vipulbhai M. Chaudhari at serial No. 14 and Shri Gitaben Vipulbhai Chaudhar at serial No. 15 of the election agenda published on 8-7-2020 are wrongly enrolled as individual members, which is illegal and liable to be cancelled. Moreover, since majority members out of the individual members from the present list l of individual members of the Board of Directors of the Union dated 8-7-2020 have died, the Notification by which the list of the individual members and other societies of the electorate published on 8-7-2020 is ab-initio wrong and illegal; and is in violation of the law and Bye-laws. Therefore, it is contrary to law and it requires to be cancelled.
11. I humbly say that even though as per Bye-law 48(1)(a), there is a provision to the effect that if any society is not affiliated with the Union on 31st of March, prior to the election, its name will not be included in the voters list, 38 societies have been admitted by the Union subsequent to 31-3-2019; and those societies have also been included in the Notification. Therefore, the Notification published by defendant No. 2 on 8-7-2020 is liable to be cancelled.
12. Thus, if the election is held by the voter societies as per the Notification published by defendant No. 2 herein, the election can not be held lawfully; and provisions of the Bye-laws are likely to be clearly violated; and, therefore also it is absolutely necessary in the interest of Page 8 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 justice to cancel the final Notification published by defendant No. 2 on 8-7-2020.
13. Thus, if the election is held by the voter societies as per the Notification published by defendant No. 2 herein, the election can not be held lawfully; and provisions of the Bye-laws are likely to be clearly violated.
14. I have a strong prima facie case; balance of convenience is in favour of the plaintiff. If the injunction order as prayed for by me is passed, the defendants are not likely to suffer any loss. Nevertheless, purpose of justice will be served. If the orders prayed for by me are not passed, I am likely to suffer irreparable loss which cannot be compensated in terms of money; and I am likely to be deprived of my lawful rights; and several complications and multiplicity of proceedings are likely to take place; and, therefore and also for the reasons of urgency, it is absolutely necessary to pass orders as prayed for by me immediately.
15. The cause of action for filing this suit has arisen as stated above and specially when the final Notification of the electorate was published on 8-7-2020 without considering the written objections submitted by me on 6-7-2020 and without affording any opportunity to me of being heard or making a representation against the Notification of the electorate published on 14-3-2020 and when an advertisement was published in daily news paper Dainik Bhaskar on 10-7-2020 calling for the Resolution of the representatives of the concerned societies; and the same is within time.
16. It is, therefore, prayed that:
A. Be pleased to issue a permanent injunction restraining Page 9 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 defendant No. 2 from holding election of the Board of Directors of defendant No. 1 Union for the years from 2020-21 to 2025-26 as per Bye-law 36(1)(a) of the Union only so far as other societies and individual members are concerned as per the preliminary Notification of electorate published on 14-3-2020 and final Notification of electorate published on 8-7-2020 by defendant No. 2;
B. Be pleased to declare that defendant No. 2 is not entitled to include other societies which had entered in defendant No. 1 Union subsequent to 31-3-2019 in the voters list of the election of defendant No. 1 for the years from 2020-21 to 2025-26;
C. Be pleased to pass other order as may be deemed proper and reasonable to the Honorable Court, having regard to the merits of this suit;
D. Be pleased to award costs of this suit from the defendants.
17. This suit involves a dispute between a member and a society as per Section 96 of the Co-operative Societies Act."
4 It appears that along with the plaint, an application seeking injunction was also filed at Exhibit : 6. The Board of Nominees, Mehsana, passed the following interim order dated 17th November 2020:
"Temporary injunction order and show cause notice.
The aforesaid plaintiff has given injunction application at Exh. 6 after filing the suit in this Court. In the said application, this Court passed the following order:
In accordance with paragraph 15(A) of injunction application Exh. 6 of the plaintiff, a temporary injunction is issued till 27-11-2020 restraining defendant No. 2 from holding election of the Board of Directors of defendant No. 1 Union for the years from 2020-21 to 2025- 26 as per Bye-law 36(1)(a) of the Union only so far as other societies and individual members are concerned as per the preliminary Notification of electorate published on 14-3-2020 and final Notification Page 10 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 of electorate published on 8-7-2020 by defendant No. 2.
In accordance with paragraph 15(B) of injunction application Exh. 6 of the plaintiff, a temporary injunction is issued till 27-11-2020 restraining defendant No. 2 herein from holding election of the Board of Directors of defendant No. 1 Union by including other societies which had entered in defendant No. 1 Union subsequent to 31-3-2019 in the voters list of the election of defendant No. 1 Union for the years from 2020-21 to 2025-26.
Further, by this show cause notice, the defendants are called upon to show cause as to why the temporary injunction already issued should not be confirmed? And to appear before Court No. (3) on 27-11- 2020 at 11-30 a.m. without fail for filing reply of the suit and injunction application of the plaintiff. On failure to appear as stated above, appropriate order will be passed.
Place: Mehsana (Camp at Ahmedabad).
Date: 17-11-2020.
Sd/- Illegible.
(I/C.) Joint Registrr and Member, Board of Nominees, Mehsana Division, Mehsana."
5 The plain reading of the averments made in the plaint referred to above would indicate that the appellant - plaintiff herein raised issues relating to the election of delegates and violation of the bye-laws in that regard. According to the appellant herein, the delegates came to be elected and included in the provisional voters list contrary to the bye- laws of the Mehsana District Cooperative Milk Producers' Union Limited
- the respondent No.1 herein (original defendant No.1). The election of delegates is held by the Union in accordance with its own procedure and consistent with its bye-laws. All those, who are elected as delegates, would cast their votes for one particular seat only. Their names are Page 11 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 forwarded by the Managing Director of the Union to the office of the Collector, and thereafter, are included in the provisional voters list in accordance with the Gujarat Specified Cooperative Societies Elections to Committees Rules, 1982 (for short, "the Rules 1982"). It also appears from the averments made in the plaint that the District Collector, in his capacity, as the Election Officer, does not hold the election of delegates. The District Collector is an Election Officer for holding the election of the members of the committee of the specified Cooperative Societies. In such circumstances, the Chapter XIA of the Act would not be applicable to the election of delegates. As the issues relating to the breach or violation of the bye-laws of the society came to be raised by the appellant - plaintiff and those could be adjudicated only by the Board of Nominees, a dispute came to be raised under Section 96 of the Act, 1961 in the form of a Lavad case.
6 It appears that the original writ applicants were not even parties in the suit proceedings. However, on the ground that the Lavad Suit itself was not maintainable before the Board of Nominees in view of the bar of Section 145U of the Act and the interim order passed by the Board of Nominees was causing serious prejudice to the original writ applicants, they thought fit to directly come to this High Court by filing the Special Civil Application No.15478 of 2020 invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution. In the writ application, the writ applicants prayed for the following reliefs:
"(A) The Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the proceedings of Lavad Suit No.183 of 2020 preferred by the respondent no.1 before the Board of Nominees, Mehsana, and also be pleased to quash and set aside the order dated 17.11.2020 passed by the Board of Nominees, in Lavad Suit No.183 of 2020 both annexed at Annexure:A colly, to the present petition.Page 12 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 (B) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay further execution, operation and implementation of the order dated 17l.11.2020 passed in Lavad Suit No.183 of 2020.
(C) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the further proceedings of Lavad Suit No.183 of 2020 preferred before the Board of Nominees, Mehsana.
(D) Such other prayer as may be deemed just and proper may be granted in the facts of present case."
7 The writ application came to be adjudicated by the learned Single Judge and vide the impugned judgement and order allowed the same by issuing a writ of certiorarified prohibition. By issuing such a writ, the learned Single Judge first declared that the Board of Nominees has no jurisdiction to try the Lavad Suit in view of the express bar of Section 145U of the Act, 1961, and consequently, set aside the interim order passed by the Board of Nominees.
8 Being dissatisfied with the impugned judgement and order passed by the learned Single Judge, the appellant (original respondent No.1) is here before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT: 9 Mr. P. K. Jani, the learned Senior Counsel assisted by Mr. Shivang
P. Jani, the learned counsel appearing for the appellant tendered the following written submissions:
"3. It is case of the appellant, who is plaintiff in Lavad Case no. 183 of 2020, that Mehsana District Co-operative Milk Producers' Union Limited who is Opponent No. 1 in the Letters Patent Appeal is registered as Co-operative Society by the order of Registrar dated 8th November 1960. The area of operation of Opponent No. 1- Mehsana District Co-operative Milk Producers' Union Limited is undivided district of Mehsana.Page 13 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
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4. It is the further case of the plaintiff that Mehsana District Co- operative Milk Producers' Union Limited has its Bye-laws which are approved by the Registrar. The Bye-laws nos. 3 to 5 define member of society which would mean the member society as defined under Bye- laws No. 6(A)(1) and Bye-laws No. 6(1)(2). The Bye-laws no. 6(A)(2) and 6(A)(3) are relevant as the controversy centres around one seat of managing committee of Mehsana District Co-operative Milk Producers' Union Limited, which is created on the basis of Bye-laws no. 6(A)(1), 6(2) and 6(3). That, it is submitted that under Bye-laws no. 35, the members of the managing committee are 21 who are elected as well as nominated persons. Bye-laws no. 35(1)(b) makes provision of one seat which is elected by the agricultural co-operative societies, other than Milk Producers' Co-operative Societies and all individual members. That, under bye-laws no. 46, the voters list is to be prepared of the individual members and for agricultural co-operative Societies who are termed as other societies.
5. That, it is submitted that Mehsana District Co-operative Milk Producers' Union Limited-Opponent No. 1 herein is a federal society within the meaning section 2(9) of the Gujarat Co-operative Societies Act, 1961. Additionally, Mehsana District Co-operative Milk Producers' Union Limited is specified Co-operative Society within the meaning of section 74(C)(vi-a) of the Gujarat Co-operative Societies Act, 1961. That, it is submitted that the composite reading of bye-laws shows that the Mehsana District Co-operative Milk Producers' Union Limited have three categories of membership, which is as under:
I. Primary Milk Producers' Co-operative Society functioning in different villages. These primary milk producers' co-operatives Society Limited which are functioning at village level elect 15 members in the Managing Committee of Mehsana District Co- operative Milk Producers' Union Limited. These primary milk producers' co-operative societies at village level are grouped in different constituencies. There are 15 constituencies and out of 15 constituencies, the primary Milk Producers' Co-operative Societies situated and placed in those constituencies will elect one member each in the committee.
II. Individual (living members) III. Other agricultural co-operative societies functioning in villages of the area of Mehsana district are also members.
6. That, it is stated that one seat in Managing Committee is earmarked for individual members along with other agricultural co-operative societies who are members of Mehsana District Co-operative Milk Producers' Union Ltd. However, all individual members and all other Page 14 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 agricultural co-operative societies do not have right to elect one committee member directly. These individual members elect the delegates so also, other agricultural co-operative societies. These elected delegates elect one person who becomes member of committee.
7. That, it is submitted that individual (living persons) will first elect delegate member amongst themselves. 25 living persons who are members, will elect one delegate. Ten agricultural co-operative societies who are members will elect one delegate. As stated earlier, it is submitted that all individual members (living persons) and agricultural co-operative societies who are members of Mehsana District Co- operative Milk Producers' Union Limited don't become voters even though they are members of Mehsana District Co-operative Milk Producers' Union Limited. That, it is submitted that from amongst above two categories, the delegates in the above manner and proportion are elected and elected delegates become voters. These elected delegates are voters for electing one seat.
8. That, it is submitted that election of delegates is required to be held by Mehsana District Co-operative Milk Producers' Union Limited as per its own procedure and consistent with its bye-laws. That, it is submitted that those persons who are elected as delegates are the voters of one seat only. Their names are sent by Managing Director of Mehsana District Co-operative Milk Producers Union Ltd. to the office of Collector and they are shown as voters in the provisional voters list as per election rules, which are referred to as the Gujarat Specified Co- operative Societies Elections to Committees Rules, 1982. That, it is submitted that the Managing Director of Mehsana District Co-operative Milk Producers' Union Limited, by virtue of power conferred to him under the bye-laws, holds the election of delegates. That, it is submitted that the Managing Director of the Mehsana District Co-operative Milk Producers' Union Limited issued notice to all individual members and all member agricultural co-operative societies who fall into category of other agricultural co-operative societies as per bye-laws no. 6(A)(3) for taking steps for holding elections of delegates.
9. That, it is submitted that the District Collector who is election officer for holding election of the specified co-operative societies does not hold election of delegates. Aforesaid position is crystal clear by reading certain provisions of the Gujarat Co-operative Societies Act, 1961. That, it is submitted that voting powers to members is referred in Section 28 which is reproduced herein below:
"28. Voting Powers of members.-
(1) No member of any society shall have more than one vote in its affairs:Page 15 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Provided that in the case of an equality of votes the Chairman shall have a casting vote....
...(8) The voting rights of individual members of a federal society shall be such as may be regulated by the rules and by the bye-laws of the society."
10. That, it is submitted that under Section 28(8) of the Gujarat Co- operative Societies Act, 1961, voting rights of individual members are to be regulated by rules and bye-laws of co-operative societies.
11. That, it is submitted that under Rule 15 of the Gujarat Co-operative Societies Rules, 1965, voting rights of individual members in federal society is prescribed. The aforesaid rule makes it clear that election of delegates is required to be held in accordance with the provision of the bye-laws. Rule 15 reads as under:
"15- Voting rights of individual member in a federal society.-
(1) In the case of Federal Societies, other than the Gujarat State Co-operative Land Development Bank and such other societies, as the Registrar, may be general or special order, direct, the voting rights of individual members (which term shall include [group of individuals whether incorporated or not and whether established or not by or under any law] a firm, company or body Corporate, society, registered under the Societies Registration Act, 1860 and the State Government, but shall not include a society) shall be regulated as follows:-
(a) Immediately after the date of drawing up of the account of the societies as prescribed in Rule 36 and as soon as possible before the annual general meeting, individual members admitted to membership upto the date of drawing up of the accounts of the societies (hereinafter referred to as "the relevant date") shall elect delegates equal one tenth of the number of societies admitted to membership up to the relevant date or one delegate for every twenty five individual members (fraction being neglected), whichever is less. The delegates so elected shall continue in office till their successors are elected after the next date of drawing up of the accounts:
Provided that where the total number of individual members is less than twenty five, they shall elect one delegate...."
That, it is submitted that conjoint reading of section 28(8) of the Gujarat Co-operative Societies Act, 1961 and Rule 15(1) of the Gujarat Co-operative Societies Rules, 1965 show that election of delegates in co-operative society is regulated by the rules and bye-laws of society.Page 16 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 This election of delegates is not covered under Chapter XI of the Gujarat Co-operative Societies Act, 1961 which is in relation to holding of election of members of the committee of specified co-operative societies. In holding the election of delegates, Chapter XI of the Gujarat Co-operative Societies Act, 1961 which is for holding election of specified co-operative societies and the Gujarat Co-operative Societies Elections to Committees Rules, 1982 do not have any application.
12. That, it is submitted that state legislature has made provisions under Chapter XI of the Gujarat Co-operative Societies Act, 1961 for holding election of officers of certain societies. That, it is submitted election is defined under Section 145B(b) which reads as under:
"CHAPTER XI ELECTIONS OF COMMITTEES AND OFFICERS OF CERTAIN SOCIETIES 145B. In this Chapter, unless the context otherwise requires,--
(a) "Collector" means the Collector having jurisdiction over area in which the registered office of the society concerned is situated and includes the Additional Collector, and also any officer not below the rank of Deputy Collector appointed by the State Government to exercise the powers and perform the duties of the Collector under this Chapter;
(b) "election" means election of a member or members of the committee of a specified society;
(c) "specified society" means a society belonging to any of the categories specified in section 74-C."
13. That, it is submitted that in section 2(5) of the Gujarat Co-operative Societies Act, 1961, the committee is defined which reads as under:
"2 Definitions.- In this Act, unless the context otherwise requires.
...(5) "committee" means the Managing Committee or other governing body of a society to which the direction and control of the management of the affairs of a society is entrusted to;..."
That, it is submitted that the conjoint reading of aforesaid provisions would make it clear that election of delegates will not come within Chapter XI of the Gujarat Co-operative Societies Act, 1961 which is in relation to election of committee members of specified societies.
14. That, it is submitted that under Rule 3(a) of the Gujarat Specified Page 17 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Co-operative Societies Elections to Committees Rules, 1982, in every society, where there are more than one constituencies, the Secretary or CEO of such society is required to prepare provisional list of constituency. He is further required to describe limits of each constituency and he is further required to display provisional list on the notice board of the society. That, it is submitted that he is further required to call for objections and suggestions in respect of provisional list. It is submitted that the detailed procedure is prescribed as to how objections shall be dealt with. Rule 3A of the Gujarat Co-operative Societies Elections to Committees Rules, 1982 is reproduced herein below:
"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 preceding 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 sub-office of the society. A copy of such provisional list alongwith the notice shall also be sent to the Registrar and to the Collector.
(3) A copy of such list alongwith notice shall also be sent to every member of the society by registered post.
(4) The notice referred to in sub-rule (2) and (3) shall clearly lay 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 therefor 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.Page 18 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 (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 or sub-office 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 sub-section (1) of section 74-B. (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."
That, it is submitted that the appellant-plaintiff had challenged the order of Managing Director by which constituency was determined under Rule 3(A)(1) and the voters of one seat were shown. The appellant-plaintiff had raised the objection about the eligibility of those members to elect the delegates. The dispute raised by the appellant- plaintiff was, thus, outside the scope and ambit of Chapter XI of the Gujarat Co-operative Societies Act, 1961 which is in relation to the election of specified co-operative societies. The appellant-plaintiff further contends that the disputes raised by the appellant-plaintiff did not fall under the jurisdiction of the Collector who is the election officer under the scheme of the Gujarat Co-operative Societies Act, 1961.
15. That, it is submitted that under the scheme of the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 read with section 28(8) and Rule 15 of the Gujarat Co-operative Societies Rules, 1965, it is the Managing Director of a co-operative society who will hold the election of delegates. These delegates would find their names into the provisional voters list which will be submitted by the Managing Director to the Collector under Rule 4 and Rule 5 of the Gujarat Co- operative Societies Elections to Committees Rules, 1982.
16. That, it is submitted that once, this list is received, the Collector has very limited role to make any changes except as referred to under Rule 6(1) of the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982. Rule 6(1) is reproduced below:
"6. Claims and objections to provisional list of voters.-Page 19 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 (1) When any provisional list of voters is published for inviting claims and objections, any omission or error in respect of the name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society...."
That, it is submitted that bare reading of the above rule clearly shows that Collector while preparing final list of voters is required to invite claims and objections to provisional list of voters. However, the scope of inviting claims and objections by Collector is very limited. It is submitted that Collector will have scope of finding out any omission in the name or error in respect of names or addresses. Collector has no power to look into correctness, legality of the election of delegates whose names are shown in the provisional voters list. Thus, it is outside the powers of the Collector to go into such claim of objections.
17. That, it is submitted that having regard to scheme of Rule 6(1) of the Gujarat Specified Co-operative Societies Elections to Committee Rules, 1982, it is not within the competence of the Collector to go into the legality and correctness of the names sent by Managing Director who are to be shown in the provisional voters list.
18. That, it is submitted that there is no role of the Collector as the election officer under provisions of the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 in holding the election of the delegates or in determining the legality and correctness of the delegates so elected under the supervision of the Managing Director of a co-operative society. In that view of the matter, so far as election of delegates is concerned, the correctness and legality of the voters list in electing the delegates can only be gone into by the Registrar, Nominees' Court under section 96 of the Gujarat Co-operative Societies Act, 1961.
19. That, it is submitted that in the facts of the present case, the appellant-plaintiff has shown by placing death certificates of as many as 49 individual members that these individual members have died and therefore, a detailed survey about the existence of living individual members be made. Similarly, the appellant-plaintiff has averred in the plaint that other agricultural co-operative societies who have become members after 31st March, 2019 are not eligible to be included into the list of voters of the election which was due in the year 2020. That, it is submitted that those societies who had become members after 31st March, 2019 were not required to be shown as voters for the purpose of electing delegates.
20. That, the Registrar, Nominees Court has passed ex-parte ad-interim injunction. Even bi-parte hearing of the application for ad-interim injunction had not taken place. It was required on the part of defendant Page 20 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 nos. 1 and 2 to move the application stating that suit is not maintainable. That, it was open to respondent nos. 4 to 9 to move an application for impleadment and seek vacation of ex-parte ad-interim order by impleading themselves as parties to the suit. That, it is submitted that instead of undertaking the procedure as indicated hereinabove, the original petitioners straightaway filed writ petition before this Hon'ble High Court, which in the submission of the appellant, was not maintainable. That, the writ petitioners have sought the relief of writ of certiorari to quash the proceedings of the Registrar, Nominees Court. That, it is submitted that writ of certiorari, in the facts of the present case, was not maintainable and therefore, learned Single Judge has erred in granting writ of certiorari by quashing the ex-parte ad-interim order. That, the original petitioners have not prayed for writ of prohibition. That, in the absence of any relief claimed by the petitioners seeking writ of prohibition, the judgment of learned Single Judge quashing the proceedings of Lavad Suit is erroneous. For the foregoing reasons, the judgment and order of the learned Single Judge is erroneous and it deserves to be quashed and set-aside by this Hon'ble Court.
21. That, learned Single Judge has further erred in not appreciating that the dispute raised by the appellant-plaintiff was between member and Mehsana District Co-operative Milk Producers Union Ltd.-a co- operative society and therefore, it would squarely fall within the parameters of section 96 of the Gujarat Co-operative Societies Act, 1961.
22. That, learned Single Judge failed to consider that the controversy raised by the appellant-plaintiff and the question of facts and law raised in the memo of plaint were only capable of adjudication by Registrar, Nominees Court under section 96 of the Gujarat Co-operative Societies Act, 1961.
23. That, it is submitted that question of facts and question of law raised in Lavad Suit were incapable of being adjudicated by the Gujarat State Co-operative Tribunal before the result of the election or even after the results of the elections.
24. That, none of the forum except Registrar, Nominees Court under section 96 was competent to grant the relief to the appellant-plaintiff.
25. That, while determining the jurisdiction of Registrar, Nominees Court under section 96 of the Gujarat Co-operative Societies Act, 1961, it was required to be viewed purely from the point of view of jurisdiction and not by reference to conduct of any of the parties to the suit or other similarly placed parties."
Page 21 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 10 In such circumstances referred to above, Mr. Jani prayed that
there being merit in his appeal, the same be allowed and the impugned judgement and order passed by the learned Single Judge be set aside. Mr. Jani further prayed that the Lavad Suit No.183 of 2020 be restored to its original file before the Nominees Court at Mehsana along with the ex parte interim order dated 17th November 2020.
SUBMISSIONS ON BEHALF OF THE ORIGINAL WRIT APPLICANTS (RESPONDENTS NOS.4 TO 9 RESPECTIVELY):
11 This appeal came to be vehemently opposed by Mr. Mihir Joshi, the learned Senior Counsel assisted by Mr. Dipan Desai, the learned counsel appearing for the original writ applicants. Mr. Joshi put forward the following submissions:
"3. The respondents submit that as per Section 145U of the Act, notwithstanding anything contained in Section 96 of the Act, any dispute relating to election of a specified society shall be referred to the Gujarat State Cooperative Tribunal by preferring an Election Petition after the final result of the election is declared. Section 145U reads as under :-
SECTION 145U : Disputes relating to elections to be submitted to the [Tribunal] (1) Notwithstanding anything contained In section 96 or any other provisions of this Act, any dispute relating to an election shall be referred to the (Tribunal].
(2) Such reference may be made by an aggrieved party by presenting an election petition to the [Tribunal]:
Provided that no such petition shall be made till after the final result of the election Is declared and where any such petition Is made It shall not be admitted by the [Tribunal) unless It Is made within two months from the date of such declaration:
Provided further that, the 137 [Tribunal] may admit any petition after the expiry of that period. If the petitioner satisfies the [Tribunal] that he had sufficient cause for not preferring the Page 22 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 petition within the said period.
(3) In exercising the functions conferred on It by or under this Chapter, the 138 [Tribunal] shall have the same powers as are vested In a Court In respect of-
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any person and examining him on oath:
(c) compelling discovery or the production of documents, and
(d) Issuing commissions for the examination of witnesses. In the case of any such affidavit, an officer appointed by the 139 [Tribunal] in this behalf may administer the oath to the deponent.
(4) 140 [Subject to any regulations) made by the 141 [Tribunal] In this behalf, any such petition shall be heard and disposed of by the 142 [Tribunal] as expeditiously as possible. An order made by the 143 [Tribunal] on such petition shall be final and conclusive and shall not be called in question In any Court.
4. Hence, any dispute relating to election of a specified society can only be entertained by the Gujarat State Cooperative Tribunal and therefore, the suit preferred by the appellant is therefore completely barred and the Board of Nominees has no jurisdiction to entertain the suit.
5. The main issue that arises for consideration of the Hon'ble Court is that "Is the process of electing delegates who would be voters in the election of Director, not a process in relation to election". The appellant-plaintiff contends before the Hon'ble Court that the process of electing delegates who would then be voters for electing the Director cannot be said to be process in relation to election of the managing committee of the Sangh.
6. The said contention of the appellant-plaintiff is completely flawed. The entire process right from electing delegates to the delegates so elected becoming voters for the election of one seat of Director is integrally and closely connected for the ultimate election of one seat of Director of the present constituency which is called the constituency of miscellaneous societies and individual members.
7. It is submitted that Section 145U of the Act provides that any dispute relating to election shall be referred to the Tribunal. Therefore, it is a wider term and would include everything which is connected with or is related to election.
8. The delegates who would be elected from amongst the individual members or miscellaneous societies would form part of the provisional Page 23 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 voters list to be published by the election officer under Rule 4 of the Gujarat Specified Co-operative Societies Election to Committee Rules, 1982. Therefore, any dispute in relation to the election of delegates would clearly be a dispute which is in relation to a dispute of one seat of Director of the said constituency.
9. At this juncture, attention of the Hon'ble Court is drawn to Annexure-J Page 205, a Notification dated 01.12.2020 issued by the Election Officer, whereby as far as the election for one seat of the constituency of miscellaneous societies and individual members is concerned, because of the stay granted by the Board of Nominees in the suit preferred by the appellant-plaintiff, election for the said seat has not been declared. Therefore, because of the order passed in the suit preferred by the petitioner-plaintiff, the election of the said seat of one Director has not been declared. Hence, the election of the said constituency has been directly affected and till date no Director from the said constituency has been elected and there is no representation from the said constituency in the Board of Director. Hence, there is a direct impact on the election because of the suit preferred by the appellant-plaintiff and the interim order passed therein. Hence, it cannot be said that the suit is not in relation to election.
10. It is submitted that as stated above, the provisional voters list published under Rule 4 of the Rules would include the names of delegates who are elected/selected from amongst the individual members and miscellaneous society. Therefore, if any dispute or issue arises with respect to election of such delegates, the same can very well be raised by way of an objection under Rule 6 before the election officer.
11. The appellant-plaintiff can very well raise objection under Rule 6 against a delegate by stating that the delegate could not have been so included in the voters list and actually a lesser number of delegates should be in the voters list or that the process of selecting/electing is flawed. Therefore, the appellant-plaintiff is not without any remedy and can raise such objection before the election officer under Rule 6.
12. It is submitted that Rule 6 encompasses an objection with regards to voter in the list i.e. present case with regards to delegate can be raised. It is submitted that harmonious and purposive interpretation will be required to be given to Rule 6 so as to include within its scope such kind of objection to be raised before the election officer.
13. If the election officer does not entertain such objections, in appropriate matter jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India can be invoked against the order of the election officer. Therefore, the appellant-plaintiff is not without any remedy even prior to the holding of election and declaration of result.
Page 24 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022
14. In the present case what is challenged in the Lavad Suit are the notifications dated 14.03.2020 and 08.07.2020 published by the Mehsana District Co-operative Milk Producers Union Ltd. (the specified society) for delimitation of constituencies. The said power to delimit the constituencies is available to the specified society under Rule 3A(1) to 3A(7) of the Gujarat Specified Co-operative Societies Rules, 1982 (hereinafter referred to as "the 1982 Rules")
15. The said 1982 Rules are framed in exercise of powers under section 145Y of the Act. Section 145Y reads as under :-
SECTION 145Y : Powers to make rules for purposes of this Chapter Without prejudice to any other power to make rules contained elsewhere In this Act, the State Government may make rules consistent with this Act generally to provide for and to regulate all or any of the other matters relating to the various stages of the elections (Including preparation of the list of voters).
Emphasis supplied..
16. Hence, the 1982 Rules are framed to provide for and to regulate all or any of the other matters relating to the various stages of elections of specified society.
17. Rule 3A of the 1982 Rules reads as under :-
RULE 3A : Delimitation of constituencies for purpose of election 2 (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 preceding 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 sub-office of the society. A copy of such provisional list alongwith the notice shall also be sent to the Registrar and to the Collector.
(3) A copy of such list alongwith notice shall also be sent to every member of the society by registered post.
Page 25 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 (4) The notice referred to in sub-rule (2) and (3) shall clearly lay 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 or sub- office 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 sub-section (1) of section 74-B. (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.
18. As the heading of the Rule 3A clearly suggest, the provision is with regards to delimitation of constituencies for the purpose of election of specified society. The notifications dated 14.03.2020 and 08.07.2020 which are subject matter of challenge before the Board of Nominees are in exercise of Rule 3A(1) to 3A(7) of the 1982 Rules.
19. Hence, the exercise of power of delimitation of constituencies is for the purpose of election of the specified society and hence any dispute about the said notification would be clearly a dispute relating to the election of the specified society as contemplated in section 145U of the Act. Therefore, such a dispute can only be raised before the Tribunal and the Board of Nominees will not have any jurisdiction to entertain Page 26 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 such a dispute.
20. The plaintiff-appellant contends that it is only the Collector or his delegate who is to undertake the election of a specified society and only the actions undertaken by the Collector or his delegate would be election related and any dispute prior thereto would not be considered as a dispute relating to elections. The said submission has inherent fallacy in it. The said submission ignores the important aspect that only after the specified society delimits the constituencies as per rule 3A(1) to (7), the Collector comes in picture and the powers under Rule 3A(8) and 3A(9) are exercised by the Collector only after the specified society sends the list of constituencies. Hence, the power of the specified society to prepare the list of constituencies under Rule 3A(1) to 3A(7) cannot be segregated and separated from the election process. It is a part and parcel of entire election process and it is an intrinsic part of the election process.
21. If what the plaintiff contends is accepted that it would mean that exercise of powers by the society under Rule 3A (1) to (7) are not related to election whereas exercise of powers by the Collector under Rule 3A(8) and 3A(9) would be related to election. Such dissection of Rule 3A into different parts would not be permissible.
22. Therefore, the dispute raised by the appellant is clearly a dispute relating to election of the specified society and hence, cannot be entertained by the Board of Nominees.
23. Further, the reliefs claimed in the suit viz. not to declare the elections of the constituency of individual members and other societies would directly come within the purview of dispute relating to election of the specified society. Further, the order dated 17.11.2020 passed by the Board of Nominees directly restrains holding of election of the said constituency which shows that the dispute is directly about the election of one constituency of specified society.
24. As stated above, Rule 3(A) provides for delimitation of constituencies for the purpose of election. Rule 3A(5) onwards provides for preparation of voters list at the stage of the society. Rule 3A(9) provides delimitation to be made by the Collector. Rule 4 provides for constituency wise voters list to be prepared. For the present constituency of individual members and other societies, the voters would be the names of the delegates that are elected/selected from amongst the individual members and other societies in the ratio prescribed. Therefore, any objection against names of delegates can be raised under Rule 6. From the above, it becomes clear that the entire process right from Rule 3A to Rule 6 and onwards is intrinsically and closely connected to the election of one seat of Director. The same cannot be divided into two parts as is sought to be done by the Page 27 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 appellant.
25. Therefore, the present issue is clearly in relation to election and hence, Section 145U is attracted and Section 96 is barred.
26. Further, attention of the Hon'ble Court is drawn to grounds for declaring election to be void provided in Rule 82 of the Election to Committee Rules, 1982. One of the grounds on which election can be declared to be void is as provided under Rule 82(d)(iii) i.e. improper reception, refusal or rejection of any vote or reception of any vote which is void. Therefore, any dispute that a delegate could not have voted was wrongly included in the voters list can be considered in an election petition under Section 145U and election can be declared to be void on that ground. Therefore, once the election petition under 145U is maintainable on this ground, the jurisdiction of the Board of Nominees under Section 96 is clearly ousted.
27. It is submitted that suit of the appellant in substance is a suit raising a dispute regarding who shall in the provisional voters list prepared under Rule 4 for the purpose of electing one Director of the constituency of other societies and individual members. Hence, it is clearly a dispute in relation to election.
28. The respondent-original petitioner relies upon on the judgment of the learned Single Judge produced at page 226 reported in 1996(1) GLH 212. Relevant paragraphs Nos.14 to 16, wherein the learned Single Judge holds that a dispute in relation to election of a primary society can be raised before the Board of Nominees and the dispute with regards to specified society is prohibited to be brought before the Board of Nominees as per Section 145U of the Act.
29. The respondent further relies upon the judgment of the Hon'ble Supreme Court in the case of N.P.Ponnuswami v/s. Returning Officer, reported in Air 1952 SC 64, relevant paragraphs 6, 7 and 9 which has interpreted and given meaning to the word "election". The Hon'ble Supreme Court has held that the word "election" has to be given wider sense which would include the entire procedure to return a candidate and the election would also include a stage even prior to the declaration of election and would include entire process. It is further provided that if the election is reasonably imminent and if the process is reasonably connected with the election, the said dispute is in connection with election. The Hon'ble Supreme Court in paragraph No.9 has held that there cannot be two attacks in matters connected with election, one during the process of election and after the election is held. Therefore, the provision of Section 96 and 145U may be interpreted in consonance with the aforesaid judicial pronouncement.
30. With respect to non-obstante clause provided in Section 145U, the Page 28 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 respondent relies upon the judgment of the Hon'ble Supreme Court reported in (1985) 4 SCC 590. Paragraph Nos.22 and 23.
31. With regards to the phrase of "in relation to", the respondent relies upon the judgment of the Hon'ble Supreme Court reported in 2004(5) SCC 632, paragraph Nos.47 and 48 which holds that the said phrase is of widest amplitude and therefore, considering the aforesaid judgment the same would include any dispute in relation to election.
32. The respondent relies upon the judgment of the Hon'ble Supreme Court reported in 1983 GLH, paragraph Nos.1,4 and 8, wherein though dispute was with regards to election of delegate, the Hon'ble Court has held that the remedy is to prefer election petition under Section 145U.
33. From the above, it becomes clear that the learned Single Judge was perfectly justified in allowing the petition and no interference may be made.
34. Further, the conduct of the plaintiff-appellant also needs to be considered. It is submitted that in the last elections which were held in the year 2015, a similar suit was preferred before the Board of Nominees, Mehsana being Lavad Suit No. 182 of 2015 (pages 171 to
179) raising similar issues and contentions that are raised in the present suit in question filed by the appellant viz. death of various individual members etc. The said suit also came to be entertained and interim injunction was given staying the elections of the specified society. The said order of the Board of Nominees was challenged before this Hon'ble Court by way of Special Civil Application No. 18357 of 2015. In the said petition, vide order dated 30.10.2015 (pages 161-163), this Hon'ble Court has admitted the petition and has granted stay by specifically observing that the Board of Nominees has no jurisdiction to entertain the suit in view of Section 145U of the Act. Hence, similar kind of suit preferred in the year 2015 and the order passed thereon came to be stayed by this Hon'ble Court vide above referred order by specifically observing that the Board of Nominees has no jurisdiction to entertain the suit.
35. It is submitted that the said suit came to be preferred by Lakshmipura (Khara) Seva Sahakari Mandli Ltd. It is submitted that even this time also when the elections of the union were due in the year 2020, the very plaintiff i.e. Lakshmipura (Khara) Seva Sahakari Mandli Ltd. has preferred Lavad Suit No. 156 of 2020 (pages 186 to 194) again raising similar contentions regarding death of various individual members and also raising contentions regarding eligibility to vote of certain itar societies. The said suit was preferred by suppressing the order of this Hon'ble Court passed on 30.10.2015 . In the said suit, the Board of Nominees had initially granted interim injuction, however, various societies had applied for joining as party and pointed out the Page 29 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 order of this Hon'ble Court dated 30.10.2015 prima facie observing that the Board of Nominees has no jurisdiction.
36. The said suit therefore, came to be withdrawn by the said plaintiff Lakshmipura (Khara) Seva Sahakari Mandli Ltd. on 10.11.2020 (pages 203 and 204). Thereafter, the appellant on 13.11.2020 (within 3 days) has preferred the suit in question being Lavad Suit No. 183 of 2020, raising verbatim same contentions and averments that were raised in Lavad Suit No. 156 of 2020 preferred by Lakshmipura (Khara) Seva Sahakari Mandli Ltd. Interestingly the lawyer for both the plaintiffs of both the above referred suit is the same.
37. If both the said suits are compared, the Hon'ble Court would be satisfied that both the suits are identical and verbatim same. Therefore, to avoid the contention of suppression of material fact, the suit preferred by Lakshmipura (Khara) came to be withdrawn and immediately the suit in question is preferred by the appellant but in the said suit also no mention is made about the order passed by this Hon'ble Court in Special Civil Application No. 18357 of 2015. The same shows the conduct of the appellant.
38. Therefore, the suit was nothing but abuse of process of law and therefore, also righty set aside by the learned Single Judge. From the above, it is clear that the Hon'ble Court is satisfied that the order of the learned Single Judge is perfectly legal and proper and does not deserve to be interfered. The present appeal therefore, be dismissed."
12 In such circumstances referred to above, Mr. Joshi prayed that there being no merit in the present appeal, the same may be dismissed.
ANALYSIS: 13 Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned judgement and order.
14 Before we advert to the rival submissions canvassed on either side, we must look into the line of reasoning adopted by the learned Single Judge in its impugned judgement. We quote as under:
Page 30 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 "6.1 Reading the provisions of Section 145U would indicate that the heading would suggest that disputes relating to elections are submitted to the Tribunal. The section begins with the word "Notwithstanding" saying that "Notwithstanding anything contained in Section 96 or any other provisions of this Act, any dispute relating to an election shall be referred to the Tribunal".
6.2 Reading the averments in the plaint together with the prayer, what is under challenge before the Board of Nominees in the Lavad Suit are the notifications dated 14.03.2020 and 08.07.2020 for delimitation of constituencies. The power to de-limit the constituencies is available to the Society under the provisions of Rule 3A of the Specified Societies Rules. The heading of the rule itself suggests that the de - limitation of constituencies is for the purposes of election. Apparently when therefore the provisions of Rule 3A are read in context of Section 145U, the language would indicate that there is a similarity of the intention inasmuch as, the dispute relating to an election under Section 145U of the Act would take within its fold the purpose of election i.e the de-limitation of constituencies for the purposes of election. It is under Chapter 11A that Section 145Y which provides for power to make rules for the purposes of this Chapter finds its place. Section 145Y also would suggest that the power to make rules is given to the State Government to provide for and to regulate all or any of the matters relating to the various stages of election, including the preparation of the list of voters. Therefore, Shri Jani's submission that the purpose of filing the Lavad Suit is an indirect way of challenging the medium of election of voters who would be delegates for the Managing Committee is misconceived. Essentially what is under challenge in the Lavad Suit is not only a dispute relating to an election or for the purposes of election, but is a challenge to stage of election. Admittedly therefore, it would not fall within the purview of Section 96 of the Co-operative Societies Act. This conclusion is evident on reading the provisions of Section 145U, 145Y r/w. Rule 3A of the Specified Societies Rules.
6.3 Even from the conduct of respondent No.1 as demonstrated by Shri Joshi, learned Senior Advocate, it is evident that once a lavad suit was filed in the year 2015 raising similar issues and contentions and subject matter of that suit is at large before this Court in Special Civil Application No. 18357 of 2015 wherein the Court has stayed the proceedings of the lavad suit, and in addition thereto by comparing the pleadings of Lavad Suit No. 156 of 2020 which was withdrawn with that of the present suit, namely, Lavad Suit No. 183 of 2020, it is apparent that similar submissions and contentions are raised in the present suit as compared to lavad suit No. 156 of 2020 which was withdrawn by the Laxmipura Seva Sahakari Mandali Limited. This Page 31 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 was particularly done to avoid suppression and bringing to the notice of the Court, which ought to have been done that the suit was not maintainable when the exercise of jurisdiction at the hands of the Board of Nominees in the earlier suit of 2015 was stayed by this Court.
7 The fact that the elections to the other societies proceeded forth except for the constituencies in which the lavad suit is a subject matter of challenge at the hands of the Deputy Collector itself also would suggest that the dispute relates to an election dispute."
15 Thus, according to the learned Single Judge, as the appellant herein raised issues relating to election (may be that of the delegates) before the Board of Nominees in the form of a dispute under Section 96 of the Act, 1961, the provisions of Section 145U of the Act would immediately come into play and the same would make such a suit not maintainable in law before the Board of Nominees. According to the learned Single Judge, the challenge can only be by way of an election petition to be filed before the election Tribunal in accordance with Rule 74 of the Rules, 1982.
BYE-LAWS OF THE SOCIETY: 16 We must also look into few relevant bye-laws of the Union. We quote as follows:
"3(2) "Managing Committee" means a committee appointed as per the provisions of these bye laws.
3(5) "Member Society" means any milk producers' co-operative society affiliated with this Co-operative Union or any co-operative society mentioned in bye-laws nos. 6(a)(1) and 6(a)(2) mentioned hereafter.
6(A) Membership of the Co-operative Union shall be as follows:
...(2) Co-operative societies registered within the area of Page 32 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 operation of District Co-operative Union and those Co-operative Societies who are engaged in agricultural related activities but, which is not included in Bye-Laws No. 6(a)(1), can become member after acquiring shares. Any one representative out of such ten members co-operative societies shall have voting right. Such representative shall be elected as per Bye-Laws No. 6(a)(2) to above by member co-operative societies.
6(A)(3) Patron individual members who were members of the Co- operative Union prior to registration of this co-operative union will continue to be members of the co-operative union. Henceforth, new patron members shall not be enrolled. Existing individual patron members shall have right of voting in the proportion of 1:25. 25 patron members will elect one delegate. Such delegates shall be elected by individual members. Number of such individual delegates shall not exceed 10% of milk producers co-operative societies representatives.
28(E). Delegates of other co-operative societies and delegates of individual members as per Bye-Laws Nos. 6(a)(2) and 6(a)(3) shall be entitled to vote in the election.
35 . There shall be 21 members in the managing committee.
(a) 15 members to be elected as per Bye- Laws 6(a)(1) who will be elected by milk producers' co-operative societies of their respective constituency. Out of 15, 3 seats will be reserved for women.
(1) Election seats are earmarked as per following Talukas:-
1. Kadi -One
2. Kalol and Gozaria -One
3. Kheralu, Vadnagar and Satlasna -One
4. Chanasma and Bahucharaji -One Page 33 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022
5. Patan and Vagdod -One
6. Mehsana -One
7. Mansa -One
8. Vijapur -One
9. Visnagar -One
10. Sami and Harij -One
11. Siddhpur and Unjha -One Out of the above eleven seats, three seats will be reserved for women which will be changed in every election.
Note:- As number 1 to 3 is completed, new member will be counted onwards from No. 4.
(2) Four seats are earmarked by the Managing Committee considering quantity of milk supplied by Taluka wise to Co-operative Union.
(b) One seat is earmarked falling in two categories of other agricultural co-operative society and from individual members through their delegates who are elected as per Bye Laws No. 6(a)(2) and Bye Laws No. 6(a)(3).
(c) One person shall be nominated by the Registrar.
(d) One person will be from Financial Institutions such as NDDB. Another representative will be from Mehsana District Central Co- operative Bank, if finance is availed from Representative. Two Representatives will be changed every year.
(e) Managing Director of the co-operative union will be ex-officio member.
(f) One representative shall be from Gujarat Co-operative Milk Page 34 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Marketing Federation.
(2) 50 percent of members shall make quorum for the meeting of Board of Directors.
(3) The Board of Directors shall be elected for three years or the same shall be working till the next election. 16 members shall be as follows:-
12 representatives from affiliated milk producers' co-operative societies (3 reserved for women) representative shall make the total of 15 members.
One member will be elected from delegates from other co- operative societies/individual members as per Bye-Laws No. 35(1)(b). If any seat becomes vacant on account of death of the member or for other reasons, then the same shall be filled with any eligible member by co-option and duration of such co-option shall be effective till the next election of the Board of Director. Such director will be retired and is eligible to be elected again.
(4) If turn comes for election of women representative from respective Talukas, and if there are less than three candidates from such Talukas, then Board of Directors shall co-opt any eligible women member from such Talukas Group for the remaining period. If she retires, she will be entitled to be re-elected.
(5) Any Board of Director constituted as above shall elect Chairman and Vice Chairman.
(6) Representatives nominated by Registrar, Co-operative Societies, Financial Institutions, Managing Director of this co-operative union, representatives from Federation/ NDDB shall not be entitled to become candidates for President or Vice President.
Page 35 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 41(23). The election of delegates from individual members and delegates from other agricultural co-operative societies shall be held every 3 years. As far as possible, the election of delegates shall be held earlier. Election be held at the earliest every three years of delegates from individual members and from other co-operative societies.
Note:- Earlier i.e prior to 7th April, 2015, the term of the members of the Managing Committee was three years from the date on which first meeting is held. By the amendment of the Gujarat Act No. 12 of 2015, section 74C(2)(i) is substituted and now, the term of elected members of the Managing Committee is 5 years from the date of the election.
45. For preparing voters list:
On 31st March of every year, two separate voters list will be prepared. One list would be of the voters consisting of other agricultural co-operative societies and individual members. Second list of voters would be of all milk producers' co-operative societies. Both the voters list would be prepared separately. Those members who are admitted after 31st March will not be eligible to participate in the election of that year.
46. There will be two separate constituencies and two separate voters list will be prepared. One voters list is to be prepared constituency were to elect 15 members of the Managing Committee. This voters list will be given no. 1 voters list. Second voters list will be from the category of other agricultural co-operative societies and from individual members of delegates. This list will be voters list no. 2.
46(A). Voters list no. 1 will consist of all milk producers' co- operative societies limited who are members of Mehsana District Co- operative Milk Producers' Co-operative Union Limited. In this voters Page 36 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 list, the names of the representative authorized by primary co-operative societies, name of co-operative societies and its address will be shown.
46(B). In voters list no. 2, the names of elected delegates from individual members and elected delegates from other agricultural co- operative societies will be there.
47. The voters as shown in voters list no. 1 and voters as shown in voter's list no. 2 will elect the member of committee every 3 years when their seats fall vacant.
Note:- Earlier i.e prior to 7th April, 2015, the term of the members of the Managing Committee was three years from the date on which first meeting is held. By the amendment of the Gujarat Act No. 12 of 2015, section 74C(2)(i) is substituted and now, the term of elected members of the Managing Committee is 5 years from the date of the election.
17 The entire controversy revolves around the applicability of the non obstante clause contained in Section 145U of the Act, 1961. To put it in other words, what meaning should be ascribed to the expression "any dispute relating to an election" contained in Section 145U falling in the Chapter XIA of the Act. The learned Single Judge says that in view of the non obstante clause, the suit could not have been instituted before the Board of Nominees as the Board of Nominees could be said to be having no jurisdiction to entertain such a suit.
NON-OBSTANTE CLAUSE: 18 As regards the non-obstante clause, this Court deems it fit to consider few decisions :
(i) In State of West Bengal v. Union of India, AIR 1963 SC 1241, it is Page 37 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 observed as under:
"The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."
(ii) In Union of India v. Maj I.C. Lala, AIR 1973 SC 2204, the Supreme Court held that non-obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions to that they are harmonious.
(iii) In Union of India v. G.M. Kokil, AIR 1984 SC 1022, the Supreme Court, at Paragraph 10, held as follows:
"It is well-known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."
(iv) In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, [1986] 4 SCC 447, at Paragraph 67, the Supreme Court held as follows:
"67. A clause beginning with the expression "notwithstanding any thing contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the nonobstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P.) Ltd., v. The Secretary, Board of Page 38 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215-[1964] 4 SCR
280."
(v) In Vishin N. Kanchandani v. Vidya Lachmandas Khanchandani, AIR 2000 SC 2747, at paragraph 11, the Supreme Court held that, "There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind."
(vi) In ICICI Bank Ltd. v. SIDCO Leathers Ltd., [2006] 67 SCL 383 (SC), the Supreme Court, at Paragraphs 34, 36 and 37, held as follows:
"34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted....
36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy....
37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same."
(vii) The Supreme Court, in the case of Central Bank of India v. State of Kerala, [2009] 4 SCC 94, at Paragraphs 103 to 107, considered many cases on non-obstate clause, which are extracted, "103. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in Page 39 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 which the non obstante clause is used. This rule of interpretation has been applied in several decisions.
104. In State Bank of West Bengal v. Union of India, [(1964) 1 SCR 371], it was observed that:
"68... the Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."
105. In Madhav Rao Jivaji Rao Scindia v. Union of India and another [(1971) 1 SCC 85], Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not.
106. In R.S. Raghunath v. State of Karnataka and another [(1992) 1 SCC 335], a three-Judge Bench referred to the earlier judgments in Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596], Union of India v. G.M. Kokil [1984 (Supp.) SCC 196], Chandravarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] and observed:
"... The non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co- extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules."
107. In A.G. Varadarajulu v. State of Tamil Nadu [(1998) 4 SCC 231], this Court relied on Aswini Kumar Ghose's case. The Court while interpreting non obstante clause contained in Section 21-A of Tamil Page 40 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held :-
"It is well settled that while dealing with a non-obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Patanjali Sastri, J. observed:
"The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;""
19 A non-obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provisions or Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs. [See 'Principles of Statutory Interpretation', 9 th Edition by Justice G.P. Singh Chapter V, Synopsis IV at pages 318 & 319] 20 Normally the use of the phrase by the Legislature in a statutory provision like 'notwithstanding anything to the contrary contained in this Act' is equivalent to saying that the Act shall be no impediment to the measure [See Law Lexicon words 'notwithstanding anything in this Act to the contrary']. Use of such expression is another way of saying that the provision in which the non-obstante clause occurs usually would prevail over the other provisions in the Act. Thus, the non-obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, Page 41 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principle enacting provision to which the non-obstante clause is attached. [See Bipathumma & Ors. v. Mariam Bibi; 1966(1) Mysore Law Journal page 162, at page 165].
WRIT OF PROHIBITION: 21 Before adverting to the submissions canvassed on either side, it is
relevant to extract few judgments of the Supreme Court, as to when a Writ of Prohibition could be issued by the High Courts. A writ of prohibition is issued only when a patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like the Certiorari, Prohibition and Mandamus in the United Kingdom, yet the basic principles and norms apply to the writ must be kept in view, as observed by the Supreme Court of India in T. C. Basappa vs. Nagappa reported in AIR 1954 SC 440.
22 A writ of prohibition and a writ of certiorari are two complementary writs. A writ of certiorari is issued requiring that the record of the proceedings in some cause or matter pending before an inferior Court be transmitted to the superior Court to be dealt with, for rectifying an order of proceeding. A writ of prohibition is issued for preventing a Tribunal from continuing a proceeding pending in it on the ground that it has no jurisdiction to hold the proceeding. A writ of certiorari is remedial where as writ of prohibition is preventive.
23 In Short and Mellor's Practice of the Crown Office, 2 nd Edition, a writ of prohibition is explained as being a judicial writ or process issuing out of a Court of superior jurisdiction, directed to an inferior Court of Page 42 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 superior jurisdiction, directed to an inferior Court for the purposes of preventing the inferior Court from usurping a jurisdiction with which ti is not legally invested or to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction.
24 In M/s. East India Commercial Company Ltd. Calcutta v. Collector of Customs, Calcutta [AIR 1962 SC 1893 at 1898 (paragraph 26), following Mackonochie v. Lord Penzance (1881) 6 Appeal Cases 424, it was held by the Supreme Court that a "writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise."
25 In S. Govindan Menon vs. Union of India reported in AIR 1967 SC 1274, the Supreme Court held that the jurisdiction for grant of Writ of Prohibition is primarily supervisory and object of the Writ is to restrain courts or inferior Tribunals from exercising jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine the Court or Tribunals of inferior or limited jurisdiction within their bounds. The writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice. But the Writ does not lie to correct the course, practice or procedure of an inferior Tribunal or a wrong decision on the merits of the proceedings. The writ cannot be issued to a court or an inferior Tribunal for an error of law unless the error makes it go outside its jurisdiction. A clear distinction has therefore, to be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction than the matter is coarum non judice and a writ of prohibition will lie to the Court or inferior Tribunal forbidding it to Page 43 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 continue proceedings therein in excess of jurisdiction. This view was taken following the decision of Regina Versus Controller General of Patents and Designs reported in (1953) 2 WLR 760.
26 In A. V. Venkateswaran v. Wadhwani [1961 AIR 1506], the Supreme Court while referring to the bar to entertainment of a writ petition in the presence of an alternative remedy existing, laid down:
" .....................The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non-est. In all other cases, he submitted, Courts should not entertain petitions under Article
226..........................The passages in the Judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive., and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the relief to the petitioner notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."
27 Again in Isha Beevi v. Tax Recovery Officer [1975 AIR 2135], the Supreme Court while dealing with the existence of alternative remedy and the issue of a writ of prohibition held:
"The existence of an alternate remedy is not generally a bar to the issuance of a writ of prohibition. But in order to substantiate a right to obtain a writ of prohibition from a High Court or the Supreme Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or the authority complained Page 44 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 against........................."
28 The Supreme Court in M. V. S. Prasada Rao v. State of A. P. [1985 Lab. I. C. 438], while explaining the scope and effect of a writ of prohibition, laid down:
"Writ of prohibition is an order directing the inferior Tribunal or authority forbidding to continue the proceedings on the premise that it is in excess of the jurisdiction or without authority of law. In other words, it is one of supervisory power to keep the authorities within the confines of law or jurisdiction."
29 In Thirumala Tirupathi Devasthanam and another vs. Thallappaka Ananthacharyulu and another (2003) 8 SCC 134 at paragraph 14, the Supreme Court held as follows:
"On the basis of the authorities it is clear' that the Supreme Court and the High Court have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior. Court or Tribunal (a) proceeds to act' without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice,
(c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental right. The principal which govern exercise of such power must be strictly observed. A Writ of Prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction.
An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used ''as a cloak of an appeal disguise''. Lax use of such a power would impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequence. It would undermine the confidence of the subordinate Court. It was not even argued that there was total lack of jurisdiction in the civil Court. It could not be denied that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on question of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the Page 45 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 jurisdiction of the civil Court to decide these questions. In the impugned Judgment no reason, much less a cogent or strong reason, has been given as to why civil Court could not be allowed to decide these questions. The impugned judgment does not state that the civil Court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the civil Court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil Court be not allowed to decide whether the suit was barred by virtue of Section 14 of the said Act or on principal of res judicata/estoppel. To be remembered that no fundamental right is being violated when a Court of competent jurisdiction is deciding rightly or wrongly matters before it."
30 Thus, the Supreme Court sounded a note of caution that unless there are some very cogent or strong reasons, the High Court should not prevent the competent Forum from deciding the various questions raised before it including the question of "want of jurisdiction". It is also stated that allowing a Court of competent jurisdiction to proceed with the case and decide the same rightly or wrongly, would not result in violation of any Fundamental Rights.
31 In our opinion, the net result of the authorities discussed above is as follows:
(a) The writs of mandamus, certiorari and' prohibition, and for the matter of that, all high prerogative writs, are ordinarily not issued where there exists an alternative remedy equally efficient and adequate.
(b) But there is no inflexible rule that such writs cannot be issued where the Court thinks it just and convenient to do so. The fact that it ordinarily does not do so is a question not of want of jurisdiction but of expediency.Page 46 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
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(c) Whether the alternative remedy is equally efficacious or adequate is a question of fact to be decided in each case.
(d) Where a complaint is made against any act done or purported to be done under any statutory provision, the fact that there exists in the Statute itself a possible remedy, is an important fact, to be taken into consideration. Where such provisions exist the Court will be extremely reluctant to interfere by way of high prerogative writs and especially so if the applicant has actually taken recourse to his remedy under the Statute.
(e) But the fact that there exists a remedy under the Statute does not take away the jurisdiction of the Courts to issue the writs in appropriate cases.
(f) In the following cases it has been held that a writ of prohibition will be issued notwithstanding an alternative remedy, whether under a statutory provision or otherwise: -
(g) where an inferior tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it; (ii) where the proceedings complained of are against the principles of natural justice; and (iii) where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless.
PIVOTAL DISCUSSION: 32 We are posing a question for being answered by us whether at the
time of the institution of the Lavad Suit before the Board of Nominees was there any dispute relating to an election of a member or members of the Committee of a specified society as envisaged under Chapter XI-A of Page 47 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 the Act? The term "election" has been defined under Section 145B(b) of the Act and it means election of a member or members of the committee of a specified society. "A specified society" means a society belonging to any of the categories specified in Section 74C of the Act. Rule 15 of the Rules, 1965 referred to above lays down the procedure for electing the delegates equal to one tenth of the number of societies admitted to membership upto the relevant date or one delegate for every twenty five individual members (fraction being neglected), whichever is less. The delegates so elected shall continue in office till their successors are elected after the next date of drawing up of the accounts. The proviso to Rule 15(a) further provides that in the event the total number of individual members is less than twenty five, they shall elect one delegate. Rule 15(b) makes it clear that the election of delegates shall be held in accordance with the provisions of the bye-laws of the society. In the case of a federal society having its individual members, the voting right of such individual members is regulated by Rule 15 of the Rules, 1965 referred to above. One pertinent feature very much apparent on plain reading of Rule 15 is to give a representation to the individual members, but, such representation is through the delegates of the individual members, who may be elected from amongst the individual members. It is only at the stage when the election of a member of the Managing Committee takes place constituency - wise which, inter alia, may include the constituency of individual members, such delegates are to act as the voters when the election is to be held of the members of the Managing Committee as per the Section 74C of the Act read with Chapter XI-A of the Act with the relevant rules. It is only at the stage of the election of the members of the Managing Committee in accordance with the bye-laws that Rule 4 of the 1982 Rules would come into play along with the other procedure of the election as provided under Chapter XI-A of the Act.Page 48 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022
C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 33 The applicability of Rule 4 of the Rules, 1982 would come into
play when the election of the members of the Managing Committee is to take place and not at the time when the election of delegates is to be held from amongst the individual members.
34 Even in accordance with the Rule 4 of the Rules, 1982, the provisional list is to be prepared not only constituency - wise as provided in the bye-laws, but, the names of the voters are also to be arranged constituency - wise as laid down in the bye-laws. Therefore, the applicability of Rule 15 of the Rules 1965, more particularly, so far as it relates to holding of the election of delegates is concerned, would operate at a stage prior to the holding of the election of the members of the Managing Committee in accordance with Chapter XI.
35 So far as the case on hand is concerned, the election of the delegates takes place in accordance with the bye-law No.46 referred to above. Such election takes place from amongst the members of individual groups and other cooperative societies group. This election is held by the Managing Director of the society by virtue of the powers conferred to him under the bye-laws and the resolutions. It is not in dispute that it is the Managing Director, who, issues notice to all the individual members and to all the cooperative societies falling within the category of the other cooperative societies. The Managing Director holds the election of delegates from the individual members in the ratio of 25 :
1. The Managing Director also holds the election of delegates of the other cooperative societies on the basis of 10 societies per 1 delegate.
Once the Managing Director completes the election of delegates, the elected delegates would become the voters. All those elected delegates who become the voters, their names are forwarded to the District Page 49 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Collector and also to the District Registrar. The District Collector, in his capacity as the Election Officer, would publish their names as voters and would finalize their names in the final list of voters, and thereafter, proceed to hold the election for one seat.
36 In view of what has been observed above, one thing is clear that if there is any dispute as regards the election of delegates, the same would be outside the purview of the District Collector in his capacity as the Election Officer. Any dispute relating to the election of delegates has nothing to do with any dispute relating to the election of the members of the Committee. It is true that the delegates have a role to play in the conduct of the election of the members of a specified society but that by itself will not bring the dispute relating to election of the delegates within the chapter XI-A of the Act so as to attract Section 145-U of the Act.
37 What did the appellant - plaintiff pointed out to the Board of Nominees by instituting the suit? The appellant pointed out that out of total 98 individual members, 49 were dead and gone. Despite the same, all 98 were shown in the Notification dated 8th July 2020. The death certificates of all those individual members were placed on record in the form of documentary evidence with the plaint. The appellant - plaintiff pointed out that it had lodged written objections against the notification of Constituencies published by the Managing Director of the Union. It was further pointed out that in all 168 members were included in the notification declaring the Constituencies in which the appellant - plaintiff figured at Serial Number No.163. In the voters list, the right to vote is given to one representative out of 10 members of the other societies in accordance with the bye-law 6(A)(2) referred to above of the Milk Union and one representative out of 25 individual members in Page 50 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 accordance with the bye-law 6(A)(3). The appellant - plaintiff pointed out that that in its Constituency, there are about 70 other societies and accordingly, the voting right is available to 7 representatives in accordance with the bye-law 6(A)(2); and there are about 98 individual members; and accordingly, the voting right is available to 4 representatives in accordance with the bye-law 5(A)(3). Thus, the most vital thing that came to be highlighted by the appellant - plaintiff in the plaint was that the individual members were enrolled in the year 1960 i.e. at the time when the Milk Union was established. Almost 90% of those members had passed away. If the notification declaring the constituency and the voters list would have been published after appropriate inquiry as regards the existence of the individual members, then only 1 member would be entitled to vote instead of 4 members out of the individual members in the electorate of the appellant - society in accordance with the bye law 6(A)(3) of the Milk Union on account of removal of the names of the deceased members.
38 The second thing that was highlighted before the Board of Nominees by way of the Lavad Suit was that although the bye-law No.48(1)(a) provides that if any society is not affiliated with the Union on 31st March i.e. prior to the election, its name would not be included in the voters list, yet 38 societies were admitted by the Union upto 31 st March 2019, and all such societies were also included in the Notification issued by the Managing Director of the Union dated 8th July 2020.
39 Thus, the suit came to be instituted before the Board of Nominees pointing out that the delegates had not been elected in accordance with the bye-laws of the society duly approved by the District Registrar. In other words, the relevant bye-laws could be said to have been violated. Despite the same, the notification of the final voters list to elect the Page 51 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 delegates came to be published on 8 th July 2020 without considering the objections lodged by the appellant - society herein.
40 In view of the aforesaid, could it be said that the dispute is one relating to an election of the member or members of the Committee of a specified society? The learned Single Judge says that the heading of the Rule 3A would itself suggest that the delimitation of constituencies is for the purposes of election of members of the Committee of a specified society. The learned Single Judge says that Rule 3A of the Rules should be read in conjunction with Section 145-U of the Act. Ultimately, the learned Single Judge said that the dispute relating to an election under Section 145-U of the Act would take within its fold the purpose of election i.e the delimitation of constituencies for the purposes of election. To put it in other words, according to the learned Single Judge, the subject matter of challenge in the Lavad Suit before the Board of Nominees could be said to be only a dispute relating to an election or a challenge to an intermediate stage in the process of election, and, therefore, would not fall within the ambit of Section 96 of the Act. With all humility at our command, we are not in a position to agree with such a line of reasoning adopted by the learned Single Judge.
41 The election of a specified society is specifically governed by the Chapter XI-A of the Act and the Rules framed therein for such purpose. Once the revenue Taluka-wise constituencies are provided in the bye- laws subject to any change in such constituency, that may be approved by the Registrar, only the constituency, as provided in the existing bye- laws, are to be recognized for the purpose of holding election of the specified society. The constituency for the purpose of election of a specified society is an electoral division as specified in its bye-laws. The election has, therefore, to be held for the constituencies specified in the Page 52 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 bye-laws. It is well settled that the bye-laws framed by a cooperative society are binding on the society and its members and neither the society nor its members can be permitted to act contrary to the bye-laws adopted by the society. Rule 3A is just for the purpose of making the voters in the constituencies aware about the prescription of limits of each of the constituencies and about any change in the limits of the constituencies. The plain reading of Rule 3A of the Rules would indicate that it is only for describing the limit of each constituency by publishing the provisional list of constituency and inviting suggestions from the voters against any error in such provisional list of constituency so that the limits of each constituency described in the provisional list could be corrected before any further step is taken for publishing the provisional list of the voters.
42 Rule 3A(8) of the Rules is aimed at geographical i.e. territory or zone wise bifurcation or division. 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 the two seats reserved for the categories as provided under Section 74B of the Act.
43 Further, the language of sub-Rule (9) of Rule 3A makes it clear that the Rule Making Authority has conferred 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.
44 The provisions of chapter XI-A were enacted and the Rules were framed specially to deal with the election of the specified society under Page 53 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Section 74C of the Act. Section 145(Y) provides that the various stages of election shall also include preparation of the list of voters. Once the statute provides that the preparation of the voters list shall be part of the election process, it could be said that the preparation of the electoral roll is an intermediate stage in the process of the election of a specified society. The perusal of the rules would indicate that the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalizing the list of voters all occurred in the rules which covers entire process of the election. The rules framed for election of the specified society are a complete code in its proceedings for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalization of electoral roll holding of election and declaration of result of the election. The question is whether the election of delegates, in accordance with Rule 15 of the Rules, 1965 read with Section 28(8) of the Act, on the basis of which the delimitation of the constituency takes place under Rule 3A of the Rules, 1982 should also be held to be a part of the election process for constituting the Managing Committee of a specified society? It is this issue with which we are not in agreement with the view taken by the learned Single Judge. At the cost of repetition, the election of delegates does not fall within chapter XI-A of the Act. It is a dispute relating to the bye-laws of the society and only the Board of Nominees under Section 96 of the Act has the jurisdiction to go into such issues of the legality and validity of the election of delegates.
45 It is true that the delegates would vote for one particular seat, but, whether that by itself will make the dispute as raised in the plaint to be one relating to an election as defined under Section 145-B(b) of the Act so as to attract the express bar of Section 145-U of the Act, 1961? It Page 54 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 would be too much to say that no individual or any society can go to the Board of Nominees in the event of any dispute touching the constitution, management or business of a society even if such dispute is distantly or remotely related to the final election that may take place for electing the member or members of the Committee of a specified society. Once the dispute relates to breach or violation of the bye-laws of the society, the dispute would fall within the ambit of one touching the constitution, management or business of the society as expressed under Section 96 of the Act, 1961 and not relating to an election of the members of a specified society.
46 What was challenged by the appellant - plaintiff before the Board of Nominees by way of the Lavad Suit was the order passed by the Managing Director of the Union by which the constituency was determined under Rule 3(A)(1) and the voters of one seat were shown. The appellant - plaintiff raised objections about the eligibility of all those members to elect the delegates. In the scheme of the Rules, 1982 read with Section 28(8) of the Act and Rule 15 of the 1965 Rules, it is the Managing Director of a cooperative society who will hold the election of delegates. These delegates would find their names into the provisional voters list that may be submitted by the Managing Director to the Collector under Rules 4 and 5 respectively of the Rules, 1982. Upon receipt of such list, the Collector, thereafter, has a very limited role to play, except finding out any omission in the name or an error in respect of the names or addresses. The Collector has no jurisdiction to look into the correctness, legality of the election of delegates whose names are shown in the provisional voters list.
47 The Rule 74 of the Rules, 1982 provides that no election shall be called in question except by an election petition presented to the Page 55 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Tribunal in accordance with the provisions of Section 145-U and the Rules. The proviso to Sub-section (2) of Section 145-U further provides that no election petition can be filed till the final result of the election is declared. Section 145-U read with Section 74 of the Rules, 1982 far from being having served some object has only led over a period of time to travesty of justice. When the legislature has thought fit to provide that any dispute relating to an election shall be referred to the Tribunal and an election petition can be filed only after the final result of the election is declared, it has turned a blind eye to a hard reality that by the time, the election petitions are adjudicated and decided the entire term of the member of the Committee whose election is challenged or the entire election if challenged would come to an end, and, thereafter, nothing would survive. It is high time the State legislature gives a thought to what we have observed. The State legislature may consider to provide a reasonable mandatory time period for the Tribunal to adjudicate the election petition and dispose of the same finally.
48 If we accept the submission canvassed on behalf of the original writ applicants and also subscribe to the view taken by the learned Single Judge, then it comes to saying that no individual or any society can question any illegality or irregularity alleged to have been committed even before any intermediate stage in the process of the election of a specified society. In other words, even the illegalities committed by the Managing Director of the Union so far as the election of delegates is concerned cannot be looked into till the final result of the election of a member or members of the Committee of a specified society attains finality. We do not subscribe to such a view.
49 In the aforesaid context, we must look into the decision of the Supreme Court in the case of Tamil Nadu Kalyana Mandapam Page 56 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Association vs. Union of India and others [(2004) 8 SCC 632], upon which strong reliance has been placed by the learned Senior Counsel appearing for the original writ applicants for the purpose of understanding the true purport and meaning of the expressions like "pertaining to", "in relation to" and "arising out of". We quote paras 47, 48 and 49 as under:
"47. The legislative competence of Parliament also does not depend upon whether in fact any services are made available by the Mandap- Keepers within the definition of taxable service contained in the Finance Act. Whether in the given case taxable services are rendered or not is a matter of interpretation of the statute and for adjudication under the provisions of the statute and does not affect the vires of the legislation and/or the legislative competence of Parliament. In fact, a wide range of services are included in the definition of taxable services as far as Mandap-Keepers are concerned. The said definition includes services provided "in relation to use of Mandap in any manner" and includes "the facilities provided to the client in relation to such use" and also the services "rendered as a caterer". The phrase "in relation to" has been construed by this Court to be of the widest amplitude. In M/s Doypack Systems Pvt. Ltd. vs. Union of India and Others (1988) 2 SCC 299 at 302, this Court observed as under:
"The expressions 'pertaining to', 'in relation to' and 'arising out of', used in the deeming provision, are used in the expansive sense. The expression 'arising out of' has been used in the sense that it comprises purchase of shares and lands from income arising out of the Kanpur Undertaking. The words "pertaining to"
and "in relation to" have the same wide meaning and have been used interchangeably for among other reasons, which may include avoidance of repetition of the same phrase in the same clause or sentence, a method followed in good drafting. The word 'pertain' is synonymous with the word 'relate'. The term 'relate' is also defined as meaning to bring into association or connection with. The expression 'in relation to' (so also 'pertaining to'), is a very broad expression which presupposes another subject matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context."
48. In Renusagar Power Co. Ltd. vs. General Electric Company and Another (1984) 4 SCC 679, this Court observed as under:
"Expressions such as "arising out of" or "in respect of" or "in Page 57 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 connection with" or "in relation to" or "in consequence of" or "concerning" or "relating to" the contract are of the widest amplitude and content and include even questions as to the existence validity and effect (scope) of the arbitration agreement."
49. In Thyssen Stahlunion GMBH vs. Steel Authority of India Ltd. (1999) 9 SCC 334, this Court observed as under:
"The phrase "in relation to arbitral proceedings" cannot be given a narrow meaning to mean only pendency of the arbitration proceedings before the arbitrator. It would cover not only proceedings pending before the arbitrator but would also cover the proceedings before the court and any proceedings which are required to be taken under the old Act for the award becoming a decree under Section 17 thereof and also appeal arising thereunder. The contention that if it is accepted that the expression "in relation to arbitral proceedings" would include proceedings for the enforcement of the award as well, the second limb of Section 85(2)(a) would become superfluous and cannot be accepted.""
50 Thus, the Supreme Court laid down as a proposition of law that the expressions referred to above should be construed as those of the widest amplitude and content. When we say that such expressions are of the widest amplitude and content, the same should be considered in the context of the object a particular enactment or a particular provision of law. In para 47 of the judgement of the Supreme Court referred to above, while considering the constitutional validity of Sections 66, 67(o) of the Finance Act, 1994 and Rule 2 (1)(d)(ix) of the Service Tax Rules, 1994, the Supreme Court said that whether in a give case, taxable services could be said to have been rendered or not would be a matter of interpretation of the statute and for adjudication under the provisions of the statute and the same would not affect the vires of the legislation. The Supreme Court proceeded to observe that a wide range of services may be included in the definition of taxable services as far as the Mandapmam - Keepers were concerned. In such circumstances, the Supreme Court said that the expression "in relation to" is a very broad Page 58 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 expression which presupposes another subject matter. In the same way, in Renusagar Power Co. Ltd. (supra), the Supreme Court said about such expressions in context with an arbitration agreement. The Supreme Court said that the various expressions in the contract could be said to be of the widest amplitude and context and would include even the questions as to the existence, validity and effect of the arbitration agreement.
51 We are of the view that it would be too much to say that the expression "in relation to an election" in Section 145-U of the Act would also include any dispute relating to breach / violation of the bye-laws of the society vis-a-vis the election of the delegates conducted by the Managing Director of the Milk Union to which neither Rule 4 or Rule 6 of the Rules, 1982 applies nor the entire chapter XI-A of the Act applies. It comes to saying that even if 90% of the individual members are reported to be dead and despite various illegalities and irregularities being highlighted with respect to the election of delegates, if, ultimately, a vote is cast for one seat of Director and the same affects the ultimate result of the election of any member or members of Committee of a specified society the same can be questioned only by filing an election petition before the Tribunal in accordance with Rule 74 read with Rule 82 of the Rules, 1982.
52 The learned Senior Counsel appearing for the original writ applicants also placed strong reliance on a decision rendered by a learned Single Judge of this High Court in the case of Hasmukhbhai Jugatram Raval vs. The Collector and others [(1983) 2 GLR 1301]. This judgement is relied upon to fortify the submission that even if there is any dispute as regards the election of delegates, the same can be questioned under Section 145A of the Act, as the same provides an Page 59 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 effective machinery to raise any dispute in relation to an election before the Tribunal within a period of two months from the date of the decision of the election.
53 Having regard to the view taken by us, as discussed above, we are not in agreement with the ratio of the decision rendered by the learned Single Judge in the case of Hasmukhbhai Jugatram Raval (supra). In the said case, the Court declined to entertain a writ application on the ground that not only the election was imminent but it was practically completed upto the voting stage and 124 delegates were already declared as uncontested. The only thing left was counting and thereafter, electing the Directors. We are not in agreement with the view taken therein that the process of election of delegates would be covered within the ambit of Section 145A of the Act. In other words, the view taken by the learned Single Judge is that even if something is wrong with the election of delegates, the same can be set right by filing an election petition before the Cooperative Tribunal.
54 The principal contention canvassed by Mr. Jani, the learned Senior Counsel appearing for the appellant that merits consideration is that the conjoint reading of Section 28(8) of the Act, 1961 read with Rule 15(1) of the Rules, 1965 would indicate that the election of delegates in a cooperative society is regulated by the Rules and bye-laws of society and further, such election of delegates is not covered under Chapter XI-A of the Act, 1961, which is in relation to holding of election of members of the Committee of specified cooperative societies. What was challenged before the Board of Nominees by instituting a Lavad Suit was the order of the Managing Director of the Milk Union with respect to delimitation of the constituencies under Rule 3(A)(1) of the Rules, 1982 and eligibility of the voters of one seat. In other words, the eligibility of Page 60 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022 C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 those members to elect the delegates. Such a decision, in our view, cannot be said to be in context with Chapter XI-A of the Act, 1961.
55 We sum up our final conclusion as under:
[1] In the case of a federal society of individual members, having representatives in the general body as well as in the Committee through their delegates, the election of delegates amongst the individual members is not an election, as defined under Section 145B(b) of the Act and the same is required to be conducted by the Managing Director of the society in accordance with the bye-laws and not by the Collector. If any dispute arises out of election of delegates, the same would not be covered under Section 145U of the Act and it can be referred to under Section 96 of the Act. The election petition before the Tribunal would lie only against the dispute relating to the election of Managing Committee. The role of the Collector, in the election process of a specified federal society, would start only after the election of the delegates from the individual members and passing of the resolutions by the affiliated society nominating their members. In the event of any dispute relating to this process, the same can be referred to the Board of Nominees under Section 96 and not to the Tribunal under Section 145U of the Act.
56 For all the foregoing reasons, we are of the view that the learned Single Judge should not have issued a writ of certiorarified prohibition.
57 In the result, this appeal succeeds and is hereby allowed. The impugned judgement and order passed by the learned Single Judge is set aside. We hold that the Lavad Suit before the Board of Nominees instituted by the appellant herein is maintainable in law.
Page 61 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 58 We clarify that we have otherwise not expressed any opinion on
the merits of the case put up by the appellant - plaintiff in the plaint. It is for the Board of Nominees to look into and consider all the relevant aspects of the matter as highlighted in the plaint. We also do not express any opinion on the interim order that was passed by the Board of Nominees in the Lavad Suit. It is always open for the original writ applicants to get themselves impleaded as party defendants in the Lavad Suit and contest the same on its own merits. If any such application for impleadment is filed, the Board of Nominees shall look into the same expeditiously and decide the same in accordance with law.
59 A lot has been said about the alleged dubious conduct of the appellant herein (plaintiff) in instituting a frivolous suit. We do not propose to go into this controversy also and leave it to the better discretion of the Board of Nominees to consider the same when it comes to grant of any discretionary or equitable relief.
60 Consequently, the connected Civil Application also stands disposed of.
(J. B. PARDIWALA, J) (NIRAL R. MEHTA,J) FURTHER ORDER After the judgement was pronounced, Mr. Mihir Joshi, the learned Senior Counsel appearing for the original writ applicants made a fervent request to stay the operation of this judgement for a period of four weeks.
Page 62 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022C/LPA/311/2021 CAV JUDGMENT DATED: 07/01/2022 Mr. Jani, the learned Senior Counsel appearing for the appellant (original plaintiff) makes a statement that his client would not proceed with the suit before the Board of Nominees for a period of four weeks from today.
In view of such statement being made by Mr. Jani, there is no need to stay the operation of the judgement and order pronounced by us today.
(J. B. PARDIWALA, J) (NIRAL R. MEHTA,J) CHANDRESH Page 63 of 63 Downloaded on : Wed Jan 12 17:57:10 IST 2022