Gujarat High Court
The Bamni Dudh Utpadak Sahakari Mandli ... vs State Of Gujarat on 4 March, 2024
NEUTRAL CITATION
C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2823 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE BAMNI DUDH UTPADAK SAHAKARI MANDLI LIMITED & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
MS DHARITRI PANCHOLI AGP for the Respondent(s) No. 1,2
MR KR NANAVATY FOR MR CHIRAG B PATEL(3679) for the Respondent
No. 3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/03/2024
ORAL JUDGMENT
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1. RULE. Ms.Pancholi, learned Assistant Government Pleader waives service of notice of rule on behalf of respondents No.1 and 2 and Mr.Nanavaty, learned counsel waives service of notice of rule on behalf of respondent No.3 - Society.
2. With the consent of learned counsel appearing for the respective parties, the present petitions are taken up for final hearing.
3. By way of present petition, the petitioners have prayed for the following reliefs:-
"(A) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, quashing and setting aside the provisional voters' list published by the respondent no.2 - election Officer of Surat Tapi District Cooperative Milk Produces' Union Limited dated 12.2.2024 insofar as the same is published considering the position as on 31.3.2022 and not 31.03.2023.
(B) This Hon'ble Court be pleased to issue a writ of mandamus or writ I the nature of mandamus, directing the respondent no.2 - Election Officer of Surat Tapi District Cooperative Milk Producers' Union Limited to publish the voters' list for the bye-election of the vacant seat of Bardoli Constituency of respondent no.3 - Union considering the position as on 31.03.2023 and thereby include the petitioners who are eligible to be included in the voters' list as on 31.03.2023.
(BB) The Hon'ble Court be pleased to issue writ of certiorari or writ in the nature of certiorari, quashing and setting aside the impugned order dated 16.02.2024 passed Page 2 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined by the Election Officer to this petition and also be pleased to quash and set aside the final voters list published by the Election Officer on 17.02.2024 and be pleased to hold that the action of the Election Officer in holding the election considering the relevant date to be 31.03.2022 is illegal and contrary to Rule 4 of The Gujarat Specified Cooperative Societies Elections to Committee Rules, 1982.
(C) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be pleased to stay the further process pursuant to the publication of the provisional the voters' list dated 12.02.2024.
(CC) Pending admission, hearing and final disposal of the petition, the Hon'ble Court be pleased to stay the execution operation and implementation of the order dated 16.02.2024 passed by the Election Officer.
(CCC) Pending admission, hearing and final disposal of the petition, the Hon'ble Court be pleased to stay the further process of election of the Respondent no.3 - Surat -
Tapi District Cooperative Milk Producers Union Limited.
4. Brief facts of the present petitions are that the respondent no.3 - Surat - Tapi District Cooperative Milk Producers' Union Limited is a specified society within a meaning of Section 74C of Gujarat Comparative Societies Act, 1961 (hereinafter be referred to as "the Act). The election of the respondent no.3 is to be held as per the provisions of Chapter-XI of the Act read with the provisions of Gujarat Specified Cooperative Societies Elections to Committees Rules, 1982 (hereinafter to be referred to as "the Election Rules"). The last elections of the respondent no.3 Page 3 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined Union was held in 2020 and the Managing Committee came to be elected for a term from 2020 to 2025. Shri Ajitbhai Patel who was elected as a member of the Managing Committee has tendered his resignation in the month of October, 2022, which was accepted on 15.10.2022 and, therefore, a seat had fallen vacant.
Since, the Managing Committee did not fill up the vacancy within a period of 60 days, the State Government empowered to fill up the vacancy, however, the same was not done. The petition was filed before this Hon'ble Court by the Uva Dudh Cooperative Society Limited which came to be allowed by this Hon'ble Court vide judgment and order dated 04.08.2023 whereby the Election Officer was directed to take appropriate steps for filling up the casual vacancy by holding bye-elections.
4.1 In spite of the directions issued by this Court, the State Authorities has not complied with the same and has not initiated the process of holding the bye-elections. The respondent no.2 -
Deputy Collector, Bardoli, vide notice dated 02.02.2024 published the election program for the purpose of publishing provisional voters' list, inviting objections and publishing final Page 4 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined voters' list and also on the same day published election program.
The said election program did not specify that the voters' list will be published considering the position as on 31.03.2022.
However, when the provisional voters' list was published by the Election Officer on 12.02.2024 considering position as on 31.03.2022 and the name of the petitioners is not included in the said list. Therefore, 31.03.2023 would be the relevant date and the voters' list has to be published considering the position as on 31.03.2023. However, the Election Officer has published the voters' list as on 31.03.2022. The petitioners submitted objection before the Election Officer on 15.02.2024 and requested the Election Officer that the voters' list should be published as on 31.03.2023 and newly qualified societies as on that date are required to be included. As per the election program, the final voters' list was to be published on 17.02.2024 and the nomination was to be filled up on 19.02.2024. Being aggrieved by the said program, the present petition is filed.
5. Heard Mr.Dipen Desai, learned counsel appearing for the petitioners, Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for respondents No.1 and 2 and Mr.Kirtikant Page 5 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined Nanavaty, learned counsel for Mr.Chirag learned counsel appearing for respondent No.3.
6. Mr.Dipen Desai, learned counsel appearing for the petitioners has submitted the same facts which are narrated in the memo of petition and has submitted that election of respondent No.3 is to be held as per Chapter XI of the Gujarat Cooperative Societies Act, 1961 (hereinafter be referred to as "the Act") read with the provisions of the Gujarat Specified Cooperative Societies elections to Committees Rules, 1982 (hereinafter be referred to as "the Election Rules") and last election of respondent No.3 was held in 2020 and elected Managing Committee for a term from 2020 t0 2025. He has submitted that one of the member Shri Ajitbhai Jagubhai Patel has given resignation as member of the Committee in October 2022, which came to be accepted on 15.10.2022 and, therefore, one seat was vacant. He has submitted that as per Section 74C (2)(iii) of the Act, the Managing Committee shall fill up the casual vacancy within a period of 60 days from the date of such vacancy and since Committee did not fill up the vacancy, the State Government has empowered to fill up the same, however, Page 6 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined the same was not done, the Uva Dudh Utpadak Sahakari Mandali Limited preferred Special Civil Application No.6392 of 2023 whereby this Court directed the respondent No.2 to take such steps for filling up the vacancy by holding bye-elections. He has submitted that despite of such direction, the State Authorities has not complied with the direction and not initiated the process of holding the bye-elections. He has submitted that the respondent No.2 - Deputy Collector, Bardoli published notice on 02.02.2024 for the purpose of publishing provisional voters' list inviting objections and final voters' and on very same day, published election program. He has submitted that the provisional voters' list was published by the Election Officer on 12.02.2024 without considering the position as on 31.03.2022 and the name of the petitioner is not included in the said list and, therefore, the said process is completely in violation of Rule 4 of the Election Rules. He has submitted that as per Rule 73 of the Election Rules, bye-election is required to be held to fill up the vacant seat and the Election Rules shall mutatis mutandis apply for the elections of the vacant seat. He has submitted that the date i.e. 31.03.2023 is relevant and voters' list has to be Page 7 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined published considering the position as on 31.03.2023, but the same was published as on 31.03.2022 and because inaction on the part of the Election Officer, the petitioners have not been included in the voters' list. He has submitted that if the Election Officer would follow the mandate of Rule 4 and prepare the voters' list as on 31.03.2023, the petitioners have become eligible for being included in the voters' list. He has submitted that the petitioners have submitted objection before the Election Officer on 15.02.2024 and requested them to publish voters' list as on 31.03.2023 and newly qualified societies as on that date are required to be included. Mr.Desai, learned counsel has submitted that as per the election program, the final voters' list published on 19.02.2024 and, therefore, the petitioners have preferred the present petition for quashing and setting aside the election program.
6.1 Mr. Dipen Desai, learned counsel appearing for the petitioners has relied upon the following decisions:
(1) Lilabhai Ranabhai Desai Vs. Pirabhai Valabhai Desai, 2002 (3) GLR 2560;Page 8 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024
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(3) Gangadharan Nair P. Vs. Bhaskaran M., (2017) 13 SCC 573;
(4) Union Territory of Ladakh Vs. Jammu and Kashmir National Conference, 2023 JX (SC) 848;
(5) Maganbhai Amthabhai Chaudhry Vs. State of Gujarat and others rendered in Special Civil Application No.4360 of 2011 dated 22.04.2011;
7. In the case of Lilabhai Ranabhai Desai (supra), the Hon'ble Supreme Court has held and observed in paras 3, 4 and 5 as under:-
"3. Instant petition under Art. 226 of the Constitution of India is directed against the judgment and order dated 25.1.2002, passed by the Gujarat State Cooperative Tribunal, Ahmedabad, in Election Petition No. 1 of 2001, under sec. 145-U. of the Gujarat Co-operative Societies Act, 1961, (hereinafter called `the Act'), between Lilabhai Ranabhai Desai and others and the Election Officer and Assistant Collector, Deesa & others, whereby the election of the petitioners to the Managing Committee of the Deesa Taluka Kharid Vechan Sangh Limited, a Taluka Union, registered under the Act, has been set aside, in exercise of the powers under Rule 82 of the Gujarat Specified Co- operative Societies Elections to Committees Rules, 1982, (hereinafter called `the Rules').Page 9 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024
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4. Sub-Rule (1) of Rule 75 of the Rules provides that an election petition calling in question any election may be presented by any candidate or any voter within two months from the date of declaration of the result of the election. Thus, except the candidate or any voter, no one has a right to maintain an election petition, calling in question any election governed by the Act and the Rules.
5. Mr. Barot, learned counsel representing the respondents Nos. 1, 2 and 3 herein, and the election- petitioners before the Tribunal, very fairly concedes that respondents Nos. 1,2 and 3 were neither candidates at the election in question nor were voters, as visualised by the Rules."
7.1 In the case of Surendranagar District Co-operative Bank Limited (supra), the Division Bench of this Court has held and observed in para 17, 20 and 21 as under:-
"17. Secondly the Apex Court was interpreting the said expression in the context of the provisions of the Maharashtra Specified Co-operative Societies Elections To Committee Rules, 1971 (hereinafter referred to as "the Maharashtra Election Rules"). The language of Rule 4(1) of the said Rules is different from the language of Rule 4(1) of the Gujarat Election Rules.
17.1 Rule 4(1) of the Maharashtra Rules reads as under :-
"4. Provisional list of Voters.- (1) A provisional list of voters shall be prepared by every society for the year in which general election is due to be held. [The persons who have completed minimum period of two years as members from the date of their enrolment before ] the 30th June of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye-laws; the names of voters shall be arranged constituency wise as laid down in the bye-laws:
Provided that, if in any case the preparation of the Page 10 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined provisional list of voters falls due after the expiry of a period of six months from the 30th June, the Collector may, in consultation with the Registrar in respect of the societies of the categories mentioned in clause (i), (v), (vii) of sub- section (1) of section 73G, and in consultation with the District Deputy Registrar in respect of the societies of the other categories mentioned in sub-section (1) of section 73G, by order change the date of the 30th June and subsequent dates and fix revised dates for the purposes of these rules."
17.2 As against the above Maharashtra Rule, Rule 4(1) of the Gujarat Election Rules reads as under:
"4. Provisional list of voters.- (1) a provisional list of voters shall be prepared in Gujarat by every society for the year in which general election is due to be held. Persons who are members as on the date of drawing up the accounts of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of voters shall be arranged constituency wise as laid down in the bye-laws.
20. It was in the background of the above facts that the Apex Court was called upon to interpret the provisions of Rule 4(1) of the Maharashtra Election Rules. The Court held that the election was due in December 1991 and, therefore, the election was required to be held on the basis of the list of voters as on 30th June, 1991. The Court further held that as per the proviso to Rule 4(1), the question of preparing the voters list as on June 30, 1992 did not arise in a case where provisional voters list was published within six months from 30th June, 1991. Since the final list of voters was published on December 3, 1991, the same was done within six months from 30th June, 1991, and, therefore, there was no question of changing the basis from 30th June, 1991 to 30th June, 1992. The Apex Court noted that fraud was played by respondent Nos. 5 to 7 after respondent No. 5 as the Chairman of the society had got enrolled 2000 members after December 17, 1991. In view of the above factual background and the statutory rule which was different from the Rule in the Gujarat Election Rules, the findings given by the Apex Court and the interpretation placed on the relevant Rule cannot be mechanically applied to Rule 4(1) of the Gujarat Election Rules.Page 11 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024
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21. We are, therefore, of the view that the election programme already declared by the Election Officer in compliance with the order dated 19th December, 2008 of another Division Bench of this Court cannot be allowed to be interfered with on the basis of the interpretation placed by the petitioners on Rule 4(1)of the Gujarat Election Rules, when the petitioners are unable to overcome the statutory bar against defaulters created by Section 27(2) of the Act. The petitioners were found to be defaulters when the list of members was sent by petitioner No.1 Bank to the Election Officer in February/March 2008. The petitioners were admitted by defaulters for a period of one year as contemplated by Section 27(2) of the Act. We do not find any infirmity in the decision of the Election Officer in not including the names of petitioners Nos. 2 to 5 in the provisional list of voters published on 05.03.2008 or the final voters' list published on 01.04.2008."
7.2 In the case of Union Territory of Ladakh (supra), the Hon'ble Supreme Court has held and observed in para 37 and 39 as under:-
"37. We would indicate that the restraint, self-imposed, by the Courts as a general principle, laid out in some detail in some of the decisions supra, in election matters to the extent that once a notification is issued and the election process starts, the Constitutional Courts, under normal circumstances are loath to interfere, is not a contentious issue. But where issues crop up, indicating unjust executive action or an attempt to disturb a level-playing field between candidates and/or political parties with no justifiable or intelligible basis, the Constitutional Courts are required, nay they are duty-bound, to step in. The reason that the Courts have usually maintained a hands-off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof. In the context of providing appropriate succour to the aggrieved litigant at the appropriate time [10] , the learned Single Judge acted Page 12 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined rightly. In all fairness, we must note that the learned ASG, during the course of arguments, did not contest the power per se of the High Court to issue the directions it did, except that the same amounted to denying the Appellants their discretion. As stated hereinbefore, we are satisfied that in view of the 1968 Order, the Appellants discretion was not unbridled, and rather, it was guided by the 1968 Order.
[10] B S Hari Commandant v Union of India, 2023 SCC OnLine SC 413 @ Paragraph 50.
39. This case constrains the Court to take note of the broader aspect of the lurking danger of authorities concerned using their powers relating to elections arbitrarily and thereafter, being complacent, rather over- confident, that the Courts would not interfere. The misconceived notion being that in the ultimate eventuate, after elections are over, when such decisions/actions are challenged, by sheer passage of time, irreversible consequences would have occurred, and no substantive relief could be fashioned is just that - misconceived. However, conduct by authorities as exhibited herein may seriously compel the Court to have a comprehensive re- think, as to whether the selfimposed restrictions may need a more liberal interpretation, to ensure that justice is not only done but also seen to be done, and done in time to nip in the bud any attempted misadventure. We refrain from further comment on the Appellants, noting the pendency of the contempt proceeding."
7.3 In the case of Maganbhai Amthabhai Chaudhry (supra), the Division Bench of this Court has held and observed in para 7 to 12 as under:-
"7. Analyzing the facts brought on record as above, few important factors stand out as remarkable and undisputable. Firstly, the overwhelming number of members of the Executive Committee of the Society have repeatedly stated on oath that the petitioner was nominated to be its representative for inclusion in the Page 13 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined voters' list of the Sangh, by resolution dated 20.01.2011, and the second resolution dated 22.01.2011 nominating respondent No.7 was not passed at a duly held meeting. The respondent's case that the petitioner and an officer of the Sangh took away record of the Society and wrote down resolutions therein is sought to be propped up by the respondent by referring to the letter, complaint and statement of the Secretary of the Society. Photocopies of the letter addressed to the District Registrar and dated 19.01.2011, the complaint to the Police Inspector and the statement dated 21.01.2011 - all signed by the Secretary - are produced by the respondent. Perusing them, it was seen that the date in the letter to the District Registrar is in different handwriting and the column for date in the complaint to the Police Inspector is left blank on all the pages of the complaint written under the letter-head of the Society; the date of 19.01.2011 is superadded at the bottom. And his statement dated 21.01.2011 is in tune with the statements of respondent Nos.6 and 7 dated 21.01.2011. The Secretary has, in short, signed the first as well as the second resolution and the complaint as well as all the subsequent resolutions and even the objections filed by the petitioner before the Election Officer. Therefore, signatures of the Secretary could not lend credibility or authenticity to any document. The other remarkable fact is that the District Registrar has very promptly initiated his proceedings and sent in his record and opinion to the Collector urgently on 01.02.2011. The District Registrar has also sent in his opinion and legal remarks to the Election Officer by letter dated 29.03.2011, which has been heavily relied upon by the Election Officer in his impugned order dated 30.03.2011. These facts lead to the conclusion that the petitioner has all throughout been supported by an overwhelming majority of members of the Managing Committee of the Society, the second resolution dated 22.1.2011 is not duly passed or supported by majority and the District Registrar has taken prompt and decisive interest in propping up the case of respondent Nos.6 and 7 by going to the extent of removing all the members of the Executive Committee by exercising his extraordinary powers.
8. With the above backdrop of facts and the conclusions based thereon, the impugned order substituting in the voters' list the name of the petitioner by the name of respondent No.7 clearly appears to be perverse, biased and influenced by extraneous material. In spite of the Page 14 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined representation dated 29.3.2011 of the Society which was signed by 12 members of its Committee as well as the Secretary and the affidavits in support thereof, the Election Officer has, in the impugned order, relied mainly on the fact that the first resolution was not signed by the Chairman and the second resolution was so signed. Heavily relying upon the representation of the District Registrar, the Election Officer has jumped to the conclusion that, although neither of the resolutions of the Society were cancelled, the later resolution in favour of respondent No.7 was required to be relied upon because it was delivered in time to the Sangh, and the District Registrar was confirming that respondent No.6 continued to be the Chairman of the Society. It is expressly observed in concluding part of the impugned order that in view of the written opinion of the District Registrar, there was no alternative but to enter into the voters' list the name of respondent No.7. And, surprisingly, such conclusion is drawn in the name of upholding democratic values and strengthening democracy in the co-operative sector.
9. . In the peculiar facts and circumstances leading to the conclusions as discussed hereinabove, the respondents have resorted to legal objections against maintainability of the petition and relied upon availability of alternative remedy provided by legal provisions, of which the relevant parts are reproduced as under:
"THE GUJARAT CO-OPERATIVE SOCIETIES ACT, 1961 S.145-U Disputes relating to election 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 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 petition within the said period.Page 15 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024
NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined (3) In exercising the functions conferred on it by or under this Chapter, the Tribunal shall have the same powers as are vested in a Court in respect of:
(a) proofs 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 Tribunal in this behalf may administer the oath to the deponent.
(4) Subject to any regulation made by the Tribunal in this behalf, any such petition shall be heard and disposed of by the Tribunal as expeditiously as possible. An order made by the Tribunal on such petition shall be final and conclusive and shall not be called in question in any Court.
S.145-Y Power 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 my 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).
THE GUJARAT SPECIFIED CO-OPERATIVE SOCIETIES ELECTIONS TO COMMITTEES RULES, 1982 R.2 Definitions:- In these rules, unless the context otherwise requires-
(ia) "Society" means a society specified under sub-section (1) of Section 74-C. R.4 Provisional list of voters-
(1) A provisional list of voters shall be prepared in Gujarat by every society for the year in which general election is due to be held. Persons who are members as on the date Page 16 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined of drawing up the accounts of the year immediately preceding the year in which such election is due, shall be included in the provisional list. If different constituencies re provided in the bye-laws, the names of voters shall be arranged constituency wise as laid down in the bye-laws.
(2) .... .... ....
(3) .... .... ....
(4) .... .... ....
(5) .... .... ....
R.5 Particulars to be included in provisional list of voters:
(1) .... .... ....
(2) Where a society is a member of a specified society, the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of the affiliated society, so as to reach it within ten days next after the date of drawing up the accounts. While communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society, the affiliated society shall enclose a copy of the resolution of the society or its committee under which the delegate is so authorised. The specified society shall include in the list of voters the names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. In addition to the names of the delegates, the list shall contain the names of the affiliated societies, their registration numbers and addresses and the names of constituencies, if any, to which they belong. A society which has communicated the name of its delegate shall by like resolution be permitted to change the name of its delegates upto the sixth day before the date appointed by the Collector under Rule 16 of said rules for making nominations.
R.6 Claims and objections to provisional list of voters-
(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 Page 17 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society.
(2) Every person making a claim or raising an objection shall do so by a separate petition, which shall be presented to the Collector during office hours within seven days from the date on which the provisional list of voters is displayed on the notice board under sub-rule (2) or (5) of Rule 4, as the case may be.
(3) Every claim or objection shall be prepared in writing and state the grounds on which the claim is based or the objection is raised, as the case may be.
(4) The Collector shall, after considering each claim or objection, give his decision thereon in writing to the person concerned within ten days from the date of receipt of the claim or objection under sub-rule (2) and take steps to correct the provisional list whenever necessary. The list as finalized by the Collector after deciding all claims and objections shall be the final list of voters.
R.74 Election petitions -
No election shall be called in question, except by an election petition presented to the Government in accordance with the provisions of Sec.145-U and these rules.
R.75 Presentation of election petition-
(1) An election petition calling in question any election may be presented by any candidate or any voter within two months from the date of declaration of the result of the election.
(2) .... .... ....
R.82 Grounds for declaring election to be void -
If the Government is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under these rules; or
(b) that any corrupt practice has been committed by a Page 18 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined returned candidate or his Election Agent or by any other person with the consent of a returned candidate or his Election Agent; or
(c) that any nomination paper has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his Election Agent; or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or
(iv) by any non-compliance with the provisions of the Act or any rules made thereunder, the Government shall declare the election of the returned candidate to be void."
10. Besides the above statutory provisions canvassed by the respondent as appropriate alternative remedy, the observations of the Apex Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra and Others [(2001) 8 SCC 509], were also relied to submit that preparation of electoral roll for election of managing committee of specified society was an intermediate stage in the process of election and the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll; and there being alternative remedy, writ petition deserves to be dismissed.
11. As against the above legal objections, the petitioner relied upon three-Judge bench decision of the Apex Court in Election Commission of India v. Ashok Kumar and Others [(2000) 8 SCC 216] and particularly the conclusions summarized in para 32 thereof, with the submission that the present petition could in no way interrupt, obstruct or protract the process of election but instead intervention was necessary in furtherance of proper election proceeding. Later decision of the Apex Court in Pundlik v.
Page 19 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined State of Maharashtra and others [(2005) 7 SCC 181] , in which Shri Sant Sadguru Janardan Swami (supra) is referred, was relied upon for the following proposition in particular:
"9. We are unable to uphold the contention. In Sant Sadguru Janardan Swami, this Court had an occasion to consider the relevant provisions of the Act and the Rules. Referring to Section 144-X of the Act, the Court observed that preparation of list of voters is one of the stages of election. It is true that according to this Court, normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters but such action must be in accordance with law."
12. Bare perusal of the statutory provisions reproduced hereinabove would clearly show that the petitioner's name having been deleted from the voters' list, an election petition may not be maintainable at his instance and he was already deprived of his right to file his nomination for contesting election for the Managing Committee of the Sangh. The Sangh had already violated the time-limits set by the rules for preparation of final voters' list and somehow the preparation of voters' list and further process for election of members of the Committee of the Sangh were timed and arranged back to back. Thus, although the impugned order was perverse and illegal, the petitioner would have no legal remedy worth the name. Under such extraordinary and exceptional circumstances, denial of recourse to the petitioner under Article 226 of the Constitution would amount to denying justice and indirectly putting seal of approval on effective implementation of an illegal order. Unfortunately, in the facts of this case, the District Registrar has played a pivotal role in advancing the cause of a leader and a nominee of the Society even though they did not have the support of the members of the Managing Committee of the Society; and the Election Officer has invited and relied upon the remarks of his partisan opinion in making the impugned order deleting from the voters' list the name of the petitioner. Therefore, the following order is already made on 15.4.2011 in the interest of justice and the above reasons are recorded later, within a week:
"Since the order dated 30.03.2011 of the Election Officer, respondent No. 3 herein, is challenged in the petition and Page 20 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined the petitioner's name was removed from the voters' list by that order, after the petition being partly heard, it was admitted on 11.04.2011 and the respondent concerned were directed to accept nomination of the petitioner, if it were presented in proper order. The interim direction was issued in view of the submissions at the bar that the petitioner was sought to be unlawfully ousted from the democratic process of election and the last date for filing of the nomination was 11.04.2011. Accordingly, the nomination papers of the petitioner are stated to have been accepted subject to final result of the petition.
Thereafter, the petition was heard for final disposal on
13.04.2011 and the hearing has spilled over to today. Learned counsel for all the parties are heard in extenso and a detailed judgment is required to be delivered. However, according to the election programme, the last date for preparing and publishing the list of accepted nominees is today i.e. 15.04.2011 at 13.00 hours. Therefore, in short, no time is left for dictating an elaborate judgment discussing the contentions of learned counsel. Under the circumstances, the following order is made for its immediate effect and implementation.
The petition is partly allowed, the impugned order dated 30.03.2011 of respondent No. 3 is set aside and name of the petitioner is ordered to be placed at serial No. 842 in the final voters' list in place of the name of respondent No.7. Consequently, the nomination of respondent No. 7 shall not be considered to be valid and the election process shall be carried on accordingly. Detailed reasons for this order shall be recorded later on in the petition. Direct service today".
8. Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent - State Authorities has submitted that the election is at an advance stage and under Rule 7 of the Election Rules, the final voters list came to be published on 17.02.2024 and election program is declared on 19.02.2024 as Page 21 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined per Rule 16 of the Election Rules. She has submitted that at the behest of one member, the entire voter list cannot be set aside when the election program under Rule 16 of the Election Rules has already commenced and grant of such relief would tantamount to setting aside the entire election. She has submitted that the impugned order is passed on preliminary ground based on provision of Rule 6 and since the objection was rejected on preliminary ground itself, the respondent cannot consider other grounds such as applicability of relevant date i.e. 31.03.2023 and not 31.02.2022. She has submitted that the provisional voter list is prepared by respondent - Union under Rule 4 of the Election Rules, who has tested the eligibility criteria of the petitioner as a voter and mere applicability of the relevant date i.e. 31.03.2023 would not ipso facto entitle the petitioners to be included in the voters list. She has submitted that no interference is required to be called for in the present petition and the same being meritless deserves to be dismissed. She has referred to and relied upon the decision of this Court in the case of Daheda Group Seva Sahakari Mandli Limited Versus R.D.Rohit, Authorised Officer And Co Operative Officer Page 22 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined (Marketing) reported in 2006 (1) GCD 211 and submitted that thereafter in catena of decisions, inclusion exclusion of names in voters list does not amount to extra ordinary circumstances which warrants interference by this Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India. She has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Shaji K Joseph Vs. V. Viswanath and others reported in (2016) 4 SCC 429 wherein the Hon'ble Supreme Court has held and observed in para - 14, 15 and 16 as under:-
"13. We have heard the learned counsel for the parties at length and have considered the provisions of the Act and the judgments referred to hereinabove.
14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with Page 23 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.
15. This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra)."
8.1 Ms.Pancholi, learned AGP has also referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri) Maharaj Sahakari Dugdha Utpadak Sanstha Vs. State of Maharashtra reported in (2001) 8 SCC 509 and has submitted that if there is breach of Rules in preparation of electoral roll, the same can be called in question after declaration of result by means of an election petition. In the case of Shri Sant Sadguru Janardan Swami (Moingiri) Maharaj Sahakari Dugdha Utpadak Sanstha (supra), relied upon by the learned AGP, the Hon'ble Supreme Court has held and observed in para Page 24 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined 7, 9 and 12 as under:-
"7. Claims and objections to provisional list of voters.-
(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 Society concerned who is a voter or any delegate authorised to vote on behalf of such Society.
(2) Every person making a claim or raising on objection shall do so by a separate petition, which shall be presented to the Collector on or before the 31st July, during office hours.
(3) Every claim or objection shall be preferred in writing and state the grounds on which the claim is based or the objection is raised, as the case may be.
(4) xxx xxxx (5) Notwithstanding anything contained in sub-rule (4) any person who is a member of the Society as on the 30th day of June of the year immediately preceding the year in which such election is due or on such subsequent date as may be fixed by the Collector under sub-rule (1) of Rule 4 and whose name is not included in the final list of voters prepared by the Collector under sub-rule (4) and who is desirous of being registered as a voter may apply in writing to the Collector in Form A within a period of fifteen days from the date of display of the final list of voters under Rule 7.
(6) Every such application received by the Collector shall be forwarded by him within three days of the date of receipt by him to the District Deputy Registrar for enquiry.
The District Deputy Registrar shall cause an enquiry to be made into the application and submit his report to the Collector along with his recommendations within seven days from the date of receipt of the application by him from the Collector.
(7) The Collector shall after considering the application and the report of the District Deputy Registrar give his decision Page 25 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined in writing to the person concerned, before the first date fixed for making nominations. If the Collector decides that the name of the applicant should be registered as a voter, he shall accordingly modify the list finalised by him earlier under sub-rule (4) and the list so modified shall then be treated as the final list of voters.
(7) Final list of voters.-Copies of the final list of voters of every Society shall be displayed on the notice board of offices of the Collector, the District Deputy Registrar and the Society.
(8) Power to Collector to alter dates for list of voters -
Notwithstanding anything contained in the foregoing rules, the Collector may, in the case of all or any of the societies of the categories mentioned in clauses (i), (v), (vi) and (vii) of sub-sec. (1) of Section 73G in consultation with the Registrar, and in the case of all or any of the societies of the categories mentioned in other clauses of sub-sec. (1) of Section 73G in consultation with the District Deputy Registrar, by general or special order, alter all or any of the dates prescribed therein and appoint such revised dates as he deems fit.
(8) Appointment of Returning Officers.
The Collector shall whenever necessary appoint a Returning Officer for one or more constituencies of a Society as specified in its bye-laws:
Provided that, in case where no other person is appointed as a Returning Officer, the Collector himself shall be deemed to be the Returning Officer and shall perform all the functions of a Returning Officer under these rules."
(7) In the light of the aforestated provisions of Chapter XIA of the Act and the Rules, we will examine as to whether preparation of electoral rolls is an intermediates stage in the process of election. The provisions referred to above shows that Chapter XIA was enacted and the rules were framed specially to deal with the election of the specified societies under Section 73G of the Act. Section 144X provides that 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, there is no reason to hold that the Page 26 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined preparation of the electoral roll is not an intermediate stage in the process of the election of a specified Society.
This matter can be examined from another angle. A perusal of the Rules discloses 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 finalising the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and Rules, the preparation of voters' list must be held to be part of the election process of constituting Managing Committee of a specified Society. In Someshwar Sahakari Sakhar Karkhana Ltd.
Someshwarnagar V/s. Shriniwas Patil, Collector, Pune, 1992 Maha. L J 833, it was held that in the scheme of the provisions of the Act and the Rules, the preparation of the list of voters for election to the Managing Committee of a specified Society is an intermediate stage in the process of the election. Similar view was taken in Shivnarayan Amarchand Paliwal v.. Vasantrao Vithalrao Gurjar, 1992 Mah LJ 1052. However, in Karbhari Maruti Agawan V/s. State of Maharashtra 1994 Mah L J 1527, although it was held that the preparation of the list of voters is an intermediate stage in the process of election, but that does not debar the High Court to entertain a petition under Art. 226 of the Constitution challenging the validity do the electoral roll. It appears that the consistent view of the Bombay High Court on the interpretation of Chapter XIA of the Act and the Rules framed thereunder is that the preparation of electoral roll is an intermediate stage of the election process of the specified societies. This being the consistent view of the High Court on the interpretation of provisions of a State Act, the same is not required to be disturbed unless it is shown that such a view of the High Court is palpably wrong or ceased to be good law in view of amendment in the Act or any subsequent declaration of law. We are, therefore, of the view that the preparation of the electoral roll for election of the specified Society under Chapter XIA and the Rules framed thereunder, is an intermediate stage in the process of election for constituting Managing Committee of a specified Society.
Page 27 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined
9. If the contention of the appellant is that if there was a breach of rule or certain mandatory provisions of the rules were not complied with while preparing of the electoral roll, the same could be challenged under Rule 81
(d)(iv) of the Rules by means of an election petition. In view that, the preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal.
12. In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal."
9. Mr. Kirtikant Nanavaty, learned counsel with Mr. Chirag Patel, learned counsel appearing for respondent No.3 has submitted that the election process has already started, in that event, in view of provision of Section 145U of the Act alternative remedy is available to the petitioners after the election is over.
He has referred to and relied upon the affidavit-in-reply and has submitted that the present petition may not be entertained and if the prayer as sought for by the petitioners is granted then it would amount to disturbing and affecting the election process.
Page 28 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined He has submitted that the vacancy on the seat of Bardoli Constituency felt vacant in the A.Y 2022-2023 and as per the Election Rules and upon legal advice, the voters' list have been prepared on 31.03.2022. He has submitted that the seat fall vacant long back and once the process has been started for filling up the vacancies, no stay may be granted in favour of the petitioners. He has submitted that the petition being meritless deserves to be dismissed.
9.1 Mr.Nanavaty, learned counsel appearing for respondent No.3 has relied upon the decision of the Division Bench of this Court in the case of Shri Savant Khet Utpadan Kharid Vechan Sahakari Mandali Ltd and others Vs. State of Gujarat and others reported in 2015 SCC OnLine Guj 2392 wherein the Division Bench of this Court has held and observed in para 19, 20 and 22 as under:-
"19. Even, there is also a direct decision of the Division Bench of this Court on the point. In the case of Bhavnagar District Cooperative Bank Limited (supra), after considering the provision of Rule 4 of the Rules 1982, it is specifically observed and held that right to vote will have to be determined on the basis of provision of Rule. It is further held that only those persons who are members of the specified society on the date of drawing up the accounts of the year immediately preceding the year, in which, such election is due, are entitled to be included in the Page 29 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined provisional list of voters. In the case before the Division Bench the position was reversed. In the case before the Division Bench, the villages in which, the concerned societies were operating, were included in the taluka subsequent to the date of drawing up the accounts of the year immediately preceding the year, in which, such election was due and it was contended on their behalf that they have right to participated in the election as on the date of election they were within the taluka and the same came to be negatived by the Division Bench by observing in para 8 to 11 as under:
"8. In Siddhpur Taluka Cooperative Purchase and Sales Union (supra), under the bifurcation made by the Revenue Department of the State Government, a new District Patan was created carving out some villages from Mehsana District. The State Government also excluded some of the villages forming part of Siddhpur Revenue Taluka and included them in newly formed Unjha Taluka. As a result of this bifurcation, 27 primary societies affiliated to Siddhpur Taluka Cooperative Society fell within the territorial area of Unjha Taluka. The Election Officer-cum-Prant Officer of Patan Taluka issued two election programmes for completing the process of election separately for Siddhpur and Patan Taluka Cooperative Sale & Purchase Union Limited. The election programme commenced on December 21, 2001 in the case of Siddhpur and on December 11, 2001 in the case of Patan Taluka Cooperative Unions with the preparation of provisional Voters' Lists. The election was over with declaration of result on January 21, 2002 for Patan Cooperative Union and was to end on February 4, 2002 for Siddhpur Cooperative Union. The Taluka Sale and Purchase Cooperative Unions at Siddhpur and Patan are specified cooperative societies under Section 74C of the Act and the elections to these cooperative societies were required to be held in accordance with the provisions contained in Sections 145A to 145Y under Chapter XIA of the Act and the Rules. The action taken by the Election Officer in excluding from the Voters' List 27 member cooperative societies out of total 65 member cooperative societies, which were affiliated to the Siddhpur Taluka Specified Cooperative Society, was challenged before the High Court in the writ petition filed under Article 226 of the Constitution. It was argued on behalf of the petitioners that merely on change of revenue areas of Patan and Siddhpur Talukas, the membership of the Federal Societies in those Talukas would not change Page 30 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined unless the societies themselves amend their bye-laws under Section 13 of the Act and, therefore, 27 member cooperative societies, which were affiliated to Siddhpur Taluka Specified Cooperative Society could not have been excluded from the Voters' List. It was maintained before the Division Bench that 'Siddhpur Taluka' as used in the bye- laws should mean 'Siddhpur Taluka' as it existed prior to the year 1997, i.e. before areas of Taluka were changed and some parts of the Village with primary societies therein were excluded and, therefore, the names of the societies could not have been excluded from the Voters' List by the Election Officer. After surveying the scheme of the Act and the Rules, the Division Bench of this High Court has held in paragraphs 15, 17, 18 and 19 of the reported decision as under:
15. Having thus briefly surveyed the scheme of the Act on the provisions of the Act and the Rules mentioned above, what we discover is that the structure of the cooperative societies from State level down to Taluka level is based on the revenue areas. A District and Taluka cooperative society is required to have its membership within the District and Taluka. Elections to societies, federal or otherwise, are required to be conducted by the District Collector on the basis of the revenue areas of Taluka or District concerned. It is, therefore, not possible to accept the contention advanced on behalf of the petitioners that revenue area of Taluka or District has no relationship with the holding of elections to cooperative society of District or Taluka level. It is true that in the Gujarat Act, there are no parallel provisions as to be found in Section 18C of the Maharashtra Act to take care of the change in structure of cooperative societies in the event of change of area of Taluka or District. But for that reason alone, it cannot be held that under the Gujarat Act and the Rules framed thereunder, regardless of the change of the area of Taluka or District and without amending its bye-laws, a cooperative society of primary level can send its members for vote or election to a federal society at Taluka level when such societies do not fall within the revenue area of that Taluka. In the absence of a provision analogous to Section 18C of the Maharashtra Act, to enable its members to exercise right of vote and contest from primary societies to federal society, it is incumbent on the society to amend its bye-laws to restrict its election to the area of Taluka or District in accordance with Sec. 13 of the Act. The Registrar can also invoke its authority for effecting corresponding Page 31 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined change in the bye-laws under Sec.14 of the Act to restrict election to members within the Taluka and District. There is great force in the submission made on behalf of the respondents that the right of a member to vote or contest as member of a primary society for election to federal society is to be regulated by the concerned bye-laws of the federal society and if the bye-laws restrict the membership to affiliated societies which fall within the Taluka, societies which fall outside the Taluka cannot claim right of vote and contest through their members or delegates. In this respect bye-law no. 7(1) of Siddhpur Taluka Federal Cooperative Society and Patan Taluka Federal Cooperative Society are required to be seen, the copies of which were passed on to us in the course of hearing. Bye-law No. 7(1) in both the Taluka level federal societies at Patan and Siddhpur prescribe eligibility qualification for a member to be an individual or society existing and operating within the Taluka concerned. If that is the position of the bye-law, any member society or individual, who is not within the Taluka, merely by continuance of its membership on the register with primary society can claim no right to participate in election to the federal societies.
17. After examining the scheme of the Act and the relevant bye-laws, the contention advanced on behalf of the petitioners, although attractive, is not acceptable. As we have stated above, the qualification, constitution and structure of the societies from State level down to Taluka level are based on the territorial revenue areas of District and Taluka. The Collector who is the Revenue Head of the District is empowered to hold the elections and his jurisdiction is limited to the District. Similarly, the Officers and Authorities on whom powers are conferred by the Collector for conducting elections have also territorial jurisdiction restricted to Talukas in which they are exercising the powers on behalf of the Collector. It is rightly pointed out on behalf of the respondents that if 27 primary cooperative societies, which no longer form part of Siddhpur Taluka and may seek affiliation to Unjha Taluka Federal Society, are allowed to vote and contest for election to Siddhpur Taluka, an imbalance would be created, adversely affecting the Federal Societies now falling in Unjha Taluka.
18. Keeping in view the envisaged structure of the Federal Societies in the Act, elections to them are required to be held only on the basis of existing revenue areas. It is also Page 32 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined argued on behalf of the petitioners that merely by change of territorial area of Talukas, membership of primary societies or federal society would not automatically cease under any provision of the Act. It is also submitted that the area of operation and business activities of a federal society has no direct connection with the revenue areas of a Taluka or District. In this respect, it is further contended that rights of individuals and societies as members of primary and federal societies cannot be adversely affected contrary to their rights provided in the bye-laws only because of change of territorial area of the Talukas under the Bombay Land Revenue Code.
19. On the last argument, we may clarify that a member validly admitted to a primary or federal society has several rights qua member. By virtue of membership or as a share holder, he has a right to get advantage of his membership in the trade and business of the society. He has also other rights as member to have business transactions with the society. But in our considered opinion, his rights in society qua member to vote and contest are dependent upon his being a member (individual or society) residing or having its operations within a particular territorial jurisdiction of Revenue Taluka. If a society as a member or an individual as member ceases to belong to a Revenue Taluka, they cannot claim right to vote or contest as member of that society, in election of Federal Society of that Taluka. The bye-law No. 7(1) of Taluka Federal Society have to be applied on the situation obtaining on the date of election. The contention advanced on behalf of the petitioners cannot be accepted that the word "Siddhpur Taluka"
mentioned therein should be read to mean "Siddhpur Taluka" as it existed on the date of framing of bye-law No. 7(1) and prior to delimitation of Taluka in the year 1997. In our opinion, such a construction and interpretation of the provisions of the Act and the bye-laws would be destructive of the structure of cooperative societies based on revenue areas from apex down to district and taluka levels. Such interpretation will also adversely affect the elections to the federal society of other Talukas like Unjha within whose territorial area now the 27 cooperative societies fall. In the absence of an analogous provision as to be found in Maharashtra Act, on delimitation or change of area of Revenue Talukas, it is incumbent on the concerned societies to amend their bye-laws or for the Registrar to take suitable corrective or coercive action under Section
14. Page 33 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined
9. A perusal of the abovereferred to observations made by the Division Bench of this Court makes it evident that the structure of the cooperative societies from State level down to Taluka level is based on the revenue areas. A District and Taluka Cooperative Society is required to have its membership within the District & Taluka. The elections to the societies, federal or otherwise, are required to be conducted by the District Collector on the basis of the revenue areas of Taluka or District concerned. While interpreting the provisions of Sections 4 and 6 of the Cooperative Societies Act, 1912, the Supreme Court in Apex Cooperative Bank of Urban Bank of Maharashtra and Goa Limited v. Maharashtra State Cooperative Bank Limited, (2003) 11 SCC 66, has held that: ýSin order to give societies a corporate existence without resort to the Companies Act, the Cooperative Societies Act, 1912 was enacted. Sections 4 and 6 thereof show that the Act essentially dealt with societies whose members were residing in the same town or village or group of villages or whose members were from the same tribe, class, caste or occupation. The object of the society had to be the promotion of interest of its members. This shows that the Cooperative Societies Act, 1912 was enacted for local societies.
The abovequoted principles would be applicable to the provisions of Section 6 of the Act which, inter alia, provide that no society with unlimited liability shall be registered unless all the persons forming the society reside in the same town or village or in the same group of villages. Therefore, it is clear that the structure of cooperative societies from the State level to Taluka level is based on the revenue areas. Under the circumstances, it is not possible for this Court to accept the contention advanced on behalf of the petitioners that the revenue areas of Taluka and District have no relationships with the holding of elections to cooperative society of District or Taluka level. Rule 4 of the Rules provides preparation of provisional list constituency wise as provided in the bye-laws of the societies. It is not possible for this Court to hold that regardless of the change of the area of Taluka or District and without amending its bye-laws, a cooperative society of primary level can send its members for vote or election to a federal society at Taluka Level when such societies do not fall within the revenue area of that Taluka. A member validly admitted to a primary or federal society has several Page 34 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined right qua member. By virtue of membership or as a shareholder, he has a right to get advantage of his membership in the trade and business of the society. He has also other rights as member to have business transactions with the society. However, his rights in society qua member to vote and contest are dependent upon his being a member (individual or society) residing or having its operations within a particular territorial jurisdiction of Revenue Taluka. If a society as a member or an individual as a member ceases to belong to a Revenue Taluka, it/he cannot claim right to vote or contest as member of that society in election of Federal Society of that Taluka.
10. The contention that in view of the provisions of Section 28(3) of the Act, the names of the societies situate within Savarkundla Revenue Taluka could not have been excluded, has no merits. The provisions of Section 28 subsection (3) of the Act will have to be read subject to the provisions of the Rules. Section 28(3) of the Act provides that a society which has invested any part of its funds in the shares of another society, may appoint one of its members to vote on its behalf in the affairs of that society, and accordingly such member shall have the right to vote on behalf of the first society. However, there is no manner of doubt that the right to vote will have to be determined on the basis of the provisions of the Rules and as the primary cooperative societies situate within Savarkundla Revenue Taluka were not the members of the Specified Society as on March 31, 2005 in terms of Rule 4(1) of the Rules, they have no right to vote at the elections to the committees of the Specified Society.
11. The plea that no cessation of the membership of the primary cooperative societies situate within Savarkundla Revenue Taluka has taken place in terms of Section 26 of the Act and, therefore, those societies could not have been prevented from exercising voting powers as conferred on them by Section 28 of the Act, also cannot be accepted. It is nobody's case nor the Election Officer has held that because primary cooperative societies situate within Savarkundla Revenue Taluka are not entitled to vote in the election to the Managing Committee of the Specified Society, they have ceased to be members of the Specified Society. As averred by the petitioners in the petitions, the primary societies situate within Savarkundla Revenue Taluka which are members of the specified society have continued to exercise other rights available to them as Page 35 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined members and enjoyed the benefits. However, right to vote at the election to the Managing Committee of the specified society is not governed by contract between the specified society and its members, but is governed by statutory Rules of 1982 and as provided in Rule 4(1) of the Rules, only those persons who are members of the specified society on the date of drawing up the accounts of the year immediately preceding the year in which election is due, are entitled to be included in the provisional list. The record shows that the petitioner No. 1 in Special Civil Application No. 5753 of 2006, i.e. Bhavnagar District Cooperative Bank Limited, itself had implemented the decision of the Division Bench of this Court in Siddhpur Taluka Cooperative Purchase & Sales Union (supra), and, therefore, the amendment of the bye-laws was moved to enable the cooperative societies situate within Savarkundla Revenue Taluka to exercise the right of voting at the election to the committee of the specified society. It is not the case of the petitioners in Special Civil Application No. 5753 of 2006, i.e. Bhavnagar District Cooperative Bank Limited, that the amendment made of the bye-laws pursuant to the decision rendered in Siddhpur Taluka Cooperative Purchase & Sales Union (supra), was illegal or contrary to the provisions of the Act or misconceived nor the record shows that any application was made by the petitioners in Special Civil Application No. 5753 of 2006 to any authority to cancel the amendment made of the bye-laws, which were approved in the General Meeting of the Specified Society held on October 26, 2005 nor the record shows that another amendment of the bye-laws was moved by the Specified Society to restore the position prevailing prior to the resolution dated October 26, 2005 passed in its general meeting of the Board after the registration of the amendment of the bye-laws by the Registrar of the Cooperative Societies. It is well settled proposition of law that the bye-laws framed by a cooperative society as amended from time to time, 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. In this case, the bye-laws of the Specified Society as amended by it in its General Board Meeting dated October 26, 2005 are in force as on today and the reliefs claimed by the specified society and its members, which are contrary to the bye-laws, cannot be granted. The conduct of the petitioners in Special Civil Application No. 5753 of 2006 is such, which disentitles them from claiming the reliefs prayed for in the petition. On bifurcation of Page 36 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined Districts and Talukas, the cooperative societies situate within Taluka cease to be members having rights to vote or contest as member of that society in election of the Specified Society. Therefore, the bye-laws were amended by the Specified Society, which came into force with effect from October 26, 2005. The primary cooperative societies situate in Savarkundla Revenue Taluka were not the members of Bhavnagar District Cooperative Bank Limited, which is a Federal Society for the purpose of claiming right to vote or contest as member of that society as on March 31, 2005 and, therefore, the decision taken by the Election Officer to exclude their names from the Voters' List, cannot be regarded as illegal so as to warrant interference of this Court in the instant petitions filed under Article 226 of the Constitution."
20. Therefore, when it is held that right to vote will have to be on basis of provision of Rules 1982 and as provided in Rule 4(1) of the Rules, only those persons who are members of the specified society on the date of drawing up accounts of the year immediately preceding the year, in which, election is due are entitled to be included in the provisional list of voters as representative of petitioner societies were not enrolled as member of the Bank as on 31.3.2013 considering Rule 4(1) of the Rules, no error has been committed by the Election Officer in not including names of petitioners in the provisional list of voters.
22. In view of the above and under the circumstances, when respective petitioners were not members of the Bank as on 31.3.2013 and the election of Bank was due in the year 2013, more particularly, in the month of June/July 2013 and the petitioners' society are enrolled as member of the Bank even after the election was due i.e. 29.07.2013, they have no right to participate in the election of the members of the Managing Committee of the Bank which was due in the month of June/July 2013, which was due before 2.7.2013 and therefore, their names are rightly not included in the provisional list of voters. Thus, the decision of the Election Officer in not including the names of the petitioner societies in the provisional list of voters is absolutely just and proper and in consonance with the provision of Rules 1982, more particularly, Rule 4."
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10. This Court has considered the submissions canvassed by the learned counsel appearing for the respective parties and perused the material on record. This Court has also gone through the decisions cited at the Bar and the relevant Act and Rules.
11. It is the case of the petitioners that last election was held in August 2020 and the Managing Committee was constituted from the elected members. It is the case of the petitioners that the objections were filed by the petitioners against the preliminary voters' list before the Election Officer whereby the Election Officer has rejected the same without application of mind and on very flimsy grounds, the non-speaking and reasoned order came to be passed by respondent No.2, which suggests that the same is passed in mechanical manner. It is also the case of the petitioners that the seat fall vacant as one of the directors has given resignation on 15.10.2022 and the same was accepted on the very same day and as per Rule 74(C)(ii) of the Act which provides that the Managing Committee shall fill up the casual vacancy within the period of 60 days which comes to 15.02.2022. So far as the contention of the petitioners is with Page 38 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined regard to subsequent amendment in Rule 4(1) of the Election Rules is concerned, the concerned authority has, without considering this aspect, interpreted that the preceding year is of 2023 as on that date, members who are in the voters list, are required to drawing up the account in the year in which such election is "due" instead of that in Rule 3A, the word is used as "schedule" and in Rule 4 the word is used as the date due for election and, therefore, the respondents has completely ignored and overlooked the provision of Rule 4 of the Election Rules.
Now, it is consistent view that once the election program is declare, the Court cannot interfere in such election process while exercising the powers under Articles 226 and 227 of the Constitution of India, however, the controversy involved in the present petition is that the specific objections has been raised by the petitioners with regard to the due date of the election and the date on which the seat fall vacant. Considering the Act and Election Rules, I am of the opinion that let the objections be re-
heard and re-decide the same by the competent authority.
12. It is worthwhile to refer to Section 145U of the Act as under:-
Page 39 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined "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 admited by the [Tribunal] unless it is made within two months from the date of such declaration:
Provided further that, the [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 petition within the said period.
(3) In exercising the functions conferred on it by or under this Chapter, the [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 [Tribunal] in this behalf may administer the oath to the deponent.
(4) [Subject to any regulations] made by the [Tribunal] in this behalf, any such petition shall be heard and disposed of by the [Tribunal] as expeditiously as possible. An order made by the [Tribunal] on such petition shall be final and conclusive and shall not be called in question in any Court."
13. It is also worthwhile to refer to the Rules 4, 6, 16, 73, 77 Page 40 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined and 82 as under:-
"4. Provisional list of voters.- (1) A provisional list of voters shall be prepared in Gujarati by every society for the year in which general election is due to be held. Persons who are members as on the date of drawing up the accounts of the year [In which such election is due] shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of voters shall be arranged constituencywise as laid down in the bye-laws.
(2) Four copies of the authenticated provisional list of voters shall be sent by every society to the Collector, through the District registrar so as to reach the collector within 15 days from the date of drawing up the accounts of the year in which the general election is due. Copies of the said list shall be displayed on the notice board of the society, the District Registrar concerned and the Collector withn 20 days, from the date of drawing up the accounts for inviting claims and objections.
(3) Simultaneously while sending of provisional list of voters under sub-clause (2) every society shall send in writing to the collector a list of members who are disqualified to vote as per the provisions of the Act, Rules or its Bye-laws and shall inform to the member who has been shown disqualified in the said list in writing, pointing out such disqualification incurred by him. The said list shall be treated as objection under sub-rule (3) of Rule 6.
(4) If any society fails to send copies of the provisional list of voters to the Collector through the District Registrar concerned within 15 days from the date of drawing up the accounts, the Collector shall himself or through any person authorised by him in this behalf prepare a provisional list of voters and the expenditure incurred therefor shall be recovered from the society as arrears of land revenue.
(5) In the event of the Collector taking action under sub-
rule (4) he shall also cause copies of the provisional list of voters to be displayed on his notice board and on the notice board of the district Registrar concerned and the society within 23 days from the date of drawing up the accounts, for inviting claims and objections.
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6. Claims and objections to provisional list of voters.- (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.
(2) Every person making a claim or raising an objection shall do so by a separate petition, which shall be presented to the Collector during office hours within seven days from the date on which the provisional list of voters is displayed on the notice board under sub-rule (2) or (5) of Rule 4,as the case may be.
(3) Every claim or objection shall be prepared in writing and state the grounds on which the claim is based or the objection is raised, as the case may be.
(4) The Collector shall, after considering each claim or objection give his decision thereon in writing to the person concerned within ten days from the date of receipt of the claim or objection under sub-rule (2) and take steps to correct the provisional list wherever necessary. The list as finalised by the Collector after deciding all claims and objections shall be the final list of voters.
16. Appointment of dates, etc., for various stages of an election. - (1) (a) The collector, in consultation with the Registrar, in the case of societies falling under clause (i) of section 74-C(1), and in consultation with the District Registrar, concerned, in the cse of societies falling under other clauses of section 74-C(1), shall draw the schedule for elections, and by order in Form I appoint :-
(i) The last date, time and Not later than 15 days from place of making the date of order of the nominations. Collector.
(ii) The date of publication As and when received till
of nominations. the last date fixed for
making nominations.
(iii) Date time and place of Not later than 2 days after scrutiny of the last date for making nominations. nominations.Page 42 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024
NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined
(iv) Date of publication of Not later than 2 days after the list of valid the scrutiny.
nominations
(v) Date by which Within 6 days from the
candidature may be date of publication of the withdrawn. list of valid candidatures.
(vi) Date of publication of The day next succeeding final list of contesting the last date fixed for candidates withdrawal of candidates.
(vii) Date on which and the 10 days from the date of time during which poll publication of the final list shall be taken. of contesting candidates.
(viii) Date, time and place Not later than the third day of counting of votes. from the date on which the poll is taken.
(ix) Date of declaration of Immediately after counting the results of voting. of votes.
Explanation (1)(a) If the last date in reckoning dates as specified in the above cases is a public holiday, the next succeeding working day shall be fixed for the respective events.
(b) There shall be at least one polling station for every 1000 voters or more and the number and places of the polling stations shall be fixed in consultation with the Registrar / district Registrar and the Societies concerned calling objections and suggestions of the voters thereof. In case the poling stations are spread over either in the district or the town, the Collector shall make arrangements to get all the ballot boxes to the office of the Returning Officer or to the registered office of the societies as he deems fit. The date on which the ballot boxes should be so brought shall also be mentioned in the order in Form I :
Provided that the Collector may at his discretion specify the number of polling stations for a lesser number of voters with due regard to the convenience of the voters.
(c) Except with the previous approval of the registrar the dates fixed under this rule shall not be changed within 10 days of the date fixed for the poll :Page 43 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024
NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined Provided that if the Collector is of opinion that it is necessary in the public interest to modify the order and there is no sufficient time for obtaining the previous approval of the registrar to such modifications, the Collector may, for reasons to be recorded in writing, modify the order without the previous approval of the Registrar. In every such case the Collector shall forthwith send a copy of the modified order along with the reasons recorded by him for such modification to the Registrar.
(2) Nothing contained in this rule shall apply when fresh poll is taken under rule 52.
73. Casual vacancies how to be filled in. - In the event of a vacancy occurring on account of death, resignation, disqualification or removal of a member of a society or through such a member becoming incapable of acting previous to the expiry of his term of office or otherwise, the Chairman of the Society shall forthwith communicate the occurrence to the Registrar (in the case of Societies falling under Section 74-C(1) (i) and to the district Registrar, in case of other Societies), and the vacancy shall be filled as soon as conveniently, by holding bye-election to fill the seat, and the provisions of these Rules shall thereupon mutatis mutandis apply accordingly. The person so elected shall hold office so long only as the member of the Committee in whose place he is elected would have held it, if the vacancy had not occurred:
Provided that, if the vacancy occurs, within six months, preceding the date on which the term of the committee expires, they vacancy shall not be filled.
74. Election petitions - No election shall be called in question, except by an election petition presented to the Government in accordance with the provisions of Sec.145- U and these rules.
77. Trial of election petitions. - (1) Every election petition shall be tried by the [Tribunal]:
Provided that, the [Tribunal] shall have the discretion to refuse for reason to be recorded in writing, to examine any witness or witnesses if it is of the opinion that evidence of such witness or witnesses is not material for the decision of Page 44 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The Government may dismiss an election petition which does not comply with provisions of Rule 75.
(3) Any candidate not already a respondent shall, upon application made by him to the Government within fourteen days from the date of the commencement of the trial and subject to the provision of Rule 91, be entitled to be joined as a respondent.
(4) The Government may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
82. Grounds for declaring election to be void. - If the [Tribunal] is of opinion:-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under these rules; or
(b) that any corrupt practice has been committed by a returned candidate or his election Agent or by any other person with the consent of a returned candidate or his Election Agent; or
(c) that any nomination paper has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his Election Agent; or Page 45 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined
(iii) by the improper reception, refusal or rejection of any Vote or the reception of any vote which is void; or
(iv) by any non-compliance with the provisions of the Act or any rules made thereunder, the [Tribunal] shall declare the election of the returned candidate to be void.
14. Considering the said election program and the orders passed by the respondent - authorities, it appears that the respondent - Election Officer has completely overlooked and ignored statutory relevant Election Rules. So far as preparation of the preliminary voters list and final voters list is concerned, it appears that only five days time was granted and, thereafter, the Election Officer has even not granted sufficient time to complete the proceedings as per the mandatory and statutory Rules.
Considering the above-mentioned decisions of the Hon'ble Supreme Court, it appears that when there is clear breach of mandatory Rules, the Court can certainly interfere with the election program.
15. This Court is well aware that in normal circumstances, it is well settled that once the election program is declare, the Court cannot interfere in such election process while exercising the Page 46 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined powers under Articles 226 and 227 of the Constitution of India, however, it is not complete bar. It is the say of the respondents that since there is no any fundamental rights were violated of the petitioners and there is no any adverse order was passed as their names have been incorporated in the voters list and they have not been apprehended in participation in the election and, therefore, the petitioners have no any rights to agitate the grievance in the present petition as there is no fundamental rights and, therefore, the petition may not be entertained. In view of above submissions, normally, this Court cannot interfere in the election program once the election is in progress, but considering the factual aspects that though the seat was vacant from 15.10.2022, the election was not conducted by the respondents and, therefore, the petitioners have approached this Court by way of the said writ petition wherein this Court has specifically issued direction in light of the election program and in issuance of the election program, the Election Officer has completely overlooked and flouted the statutory mandatory rules framed under the statute and, therefore, under these circumstances, this Court is exercised jurisdiction under Articles Page 47 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined 226 and 227 of the Constitution of India.
16. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the election program declared by the respondent - Election Officer deserves to be quashed and set aside and the petition deserves to be allowed.
17. For the foregoing reasons, the petition is allowed. The election program published by the Election Officer dated 02.02.2024 is hereby quashed and set aside and after considering statutory rules, the respondent - Election Officer to declare and publish fresh election program in accordance with law after considering the objections. The impugned orders passed by the respondents are hereby quashed and set aside.
The competent authority is directed to reconsider the objections and decide the same in accordance with law and after giving full opportunity of hearing to the petitioners. Rule is made absolute.
Direct service is permitted. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) FURTHER ORDER After judgment is pronounced, Ms. Dharitri Pancholi, Page 48 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024 NEUTRAL CITATION C/SCA/2823/2024 JUDGMENT DATED: 04/03/2024 undefined learned Assistant Government Pleader would request this Court to stay operation of this order for some time. Considering the facts of the present case and the fact that as per the schedule issued by the Election Officer, the Election will be held on 05.03.2024 and therefore, request made by Ms. Pancholi, learned Assistant Government Pleader is not considered and the same is refused. It is open for the parties to convey the order passed in present petition to the Election Officer by way of appropriate communication.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 49 of 49 Downloaded on : Mon Mar 04 20:47:57 IST 2024