Shri Mahervad Para Vistar Cooperative ... vs The State Of Gujarat on 1 March, 2019

[Cites 18, Cited by 1]

Gujarat High Court

Shri Mahervad Para Vistar Cooperative ... vs The State Of Gujarat on 1 March, 2019

1. The questions of facts and law involved in all the five petitions being similar, they were heard together with the consent of learned advocates for the parties and are being disposed of by this common judgment.

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C/SCA/4555/2019 JUDGMENT

2. In all the five petitions, the respective petitioners have challenged the impugned orders dated 15.02.2019 passed by the respondent - Authorized Officer deleting the names of the managing committee of the members of the petitioner - societies from the voters' list prepared for the Agriculturalists' Constituency for election of APMC, Unjha.

3. For the sake of convenience, the facts of Special Civil Application No. 4555 of 2019 are taken into consideration. As per the case of the petitioner of the said petition, the petitioner society was incorporated in the year 2004 and was dispensing agricultural credit in the market area. The election of APMC, Unjha was earlier held in the year 2015 and the petitioner was one of the eligible voter in the list prepared for the agriculturalists' constituency as per Section 11(1)(i) of the Gujarat Agricultural Produce Market Act (hereinafter referred to as 'the APMC Act'). The objections having been raised against the inclusion of the names of the members of the managing committee of the petitioner society at the relevant time, the said objections were overruled by the Authorized Officer vide the order dated 12.01.2015. It is further case of the petitioner that now the programme for election of the APMC, Unjha has been declared Page 3 of 13 C/SCA/4555/2019 JUDGMENT vide notification dated 07.01.2019, and the provisional list of voters was published on 29.01.2019, in which the names of the members of the managing committee of the petitioner society were included. However, the respondent No. 4 having objected against such inclusion, the petitioner was called upon to submits its reply to the said objections, which reply was submitted before the respondent - Authorized Officer. The Authorized Officer after considering the objections and the reply, vide the impugned order dated 15.02.2019, allowed the said objections and deleted the names of the members of the petitioner's managing committee from the voters' list of the agricultural constituency of the APMC, Unjha. Similar objections were filed against Unjha Kamaniyapura Cooperative Service Society Ltd., Unjha Kalyanpara Vistar Cooperative Service Society Ltd., Khajuripol Cooperative Service Society Ltd., Gangapura Seva Cooperative Society Ltd. The respondent - Authorized Officer passed similar orders against the said societies also. Being aggrieved by the same, the present petitions have been filed.

4. The learned advocate Mr. Archit P. Jani for the petitioners vehemently submitted that though the petitioner society was included in the voters' list of agriculturalists' constituency in the elections held in the year 2015, despite Page 4 of 13 C/SCA/4555/2019 JUDGMENT the objections raised against the petitioners societies that they were not dispensing agricultural credit, this time in the impugned order passed by the respondent - Authorized Officer, it has been held that the petitioners were not dispensing agricultural credit as per three tier structure, and were not the primary agricultural societies. Relying upon the unreported decision of the Division Bench in the case of Vibhapar Seva Sahakari Mandali Ltd. versus State of Gujarat and others decided on 15.07.2010 in Special Civil Application No. 6587 of 2010 and others, and in the case of Shrutbandhu Himatlal Popat versus State of Gujarat through Secretary reported in 2011(0) GLHEL-HC 226207, he submitted that the respondent - Authorized Officer had no jurisdiction to make roving inquiry into the genuineness of the transaction of the agricultural credit dispensed by the petitioner society.

5. However, the learned Government Pleader Ms. Manisha Lavkumar Shah appearing for the respondent authorities submitted that the issues raised by the petitioner in the petitions are no more res integra in view of the decision of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited versus State of Gujarat and others decided on 28.06.2016 in Special Civil Application No. 2128 of 2016 and others, which has been confirmed by Page 5 of 13 C/SCA/4555/2019 JUDGMENT the Division Bench in Letters Patent Appeal No. 569 of 2016 and also by the Supreme Court in Special Leave to Appeal (C) No. 19103 of 2016. According to her, the petitioner society being not the primary agricultural credit society dispensing agricultural credit as contemplated under the amended Section 11(1)(i) of the APMC Act, the respondent - Authorised Officer has rightly deleted the names of the members of the petitioner society from the voters' list. She also submitted that the alternative remedy of filing the Election Petition being available to the petitioners under Rule 28 of the said APMC Rules, the present petitions should not be entertained.

6. At the outset, it may be stated that the issue as to whether a society could be said to be a primary agricultural credit cooperative society dispensing the agricultural credit in the market area or not, has been extensively dealt with by this Court after considering the provisions contained in the Cooperative Societies Act and the amendment in Section 11(1)

(i) of the APMC Act in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited versus State of Gujarat and others (Supra). The Court has observed as under : -

"22. The main thrust of the arguments made by the learned Sr. Counsel Mr.Joshi is that the Authorized Officer had travelled beyond the scope of inquiry as Page 6 of 13 C/SCA/4555/2019 JUDGMENT contemplated in Rule 8 and had not implemented the directions of the order dated 9.12.2015 passed by this Court in the true letter and spirit, inasmuch as the impugned orders though passed separately, contained the same reasons for deleting the names of the members of the Managing Committees of the petitioner Societies. In the opinion of the Court, though the said submissions apparently sound impressive, have hardly any substance in view of the recent amendment made in Section 11(1)(i) of the APMC Act. It transpires from the impugned orders passed by the respondent No.4 that the first and foremost objection raised by the respondent No.5 before the respondent No.4 was that none of the petitioner Societies were the Primary Agricultural Credit Cooperative Societies within the meaning of the amended Section 11(1)(i) of the APMC Act and had not followed the procedure and norms of three-tier Cooperative Credit Structure while dispensing agricultural credits. Now, as per the said amendment, which has come into force w.e.f. 10.4.2015, the words "Cooperative Societies (other than Cooperative Marketing Societies and Milk Produce Cooperative Societies)" have been substituted by the words the "Primary Agricultural Credit Cooperative Societies" in Clause (i) of Sub-section (1) of Section 11. Hence, when the fresh election programme was declared by the respondent No.2 Director, the said amendment had already come into force, which required that the eight members from agriculturists constituency of the said Committee shall be elected by the members of the Managing Committee of the Primary Agricultural Credit Cooperative Societies, dispensing agricultural credit in the market area. Therefore, for the purposes of Section 11(1)(i), the Societies have to be Primary Agricultural Credit Cooperative Societies. Of course, the term 'Primary Agricultural Credit Cooperative Societies' has not been defined either under the APMC Act or under the Gujarat Cooperative Societies Page 7 of 13 C/SCA/4555/2019 JUDGMENT Act. However, it appears that by the Amendment Act 1 of 2008, which came into force w.e.f. 8.10.2007, certain provisions of the Gujarat Cooperative Societies Act were amended, and the provisions with regard to the Cooperative Credit Structure were incorporated therein. The Cooperative Credit Structure is defined in Section 2(7-A) of the said Societies Act as under:-

"Section 2(7A).- "Cooperative Credit Structure" means (i) the Primary Agricultural Credit Cooperative Societies; (ii) the Central Cooperative Banks; and (iii) the State Cooperative Bank;"

23. The said Societies Act was also amended by incorporating certain provisions for the Societies, which fall under the Cooperative Credit Structure, more particularly in respect of borrowings, investments, loans, etc. It is not disputed that the petitioner Societies being cooperative societies registered under the Gujarat Cooperative Societies Act, are governed by the provisions of the said Societies Act and the Rules made thereunder. A bird's eye- view of the provisions of the said Societies Act would reveal that Section 6 of the said Act lays down conditions of registration, and Sub-section (1-A) thereof provides that in case of the society in cooperative credit structure registered under Sub-section (1), the society shall have power to decide their respective area of operation without any restrictions. Section 12 of the said Act states that the Registrar may classify all the Societies in such manner, and into such classes as he thinks fit; and the classification of a society under any head of classification by the Registrar shall be final. Section 44A lays down the powers of the committee of the Society in the cooperative credit structure. Section 45(3) puts restrictions on the eligibility of persons to borrow from or make deposit in a Primary Agricultural Page 8 of 13 C/SCA/4555/2019 JUDGMENT Credit Cooperative Societies. Certain privileges and exemptions have also been granted to the Primary Agricultural Credit Cooperative Societies falling in Cooperative Credit Structure, as contained in Chapters VI and VII pertaining to the property, funds and management of Societies.

24. Now, coming back to the provisions contained in Section 11(1)(i) of the APMC Act, it appears that after the amendment in the said provision, the eligibility criteria of Cooperative Societies to participate in the election of Agriculturist Constituency has been confined to the Primary Agricultural Credit Cooperative Societies only. Therefore, it was incumbent on the part of the petitioner Societies to fall within the category of Primary Agricultural Credit Cooperative Societies dispensing agricultural credit, for being eligible to vote in the election of members for the agriculturist constituency of the Market Committee. The objector i.e. respondent No.5 had categorically raised the objections against all the petitioner Societies that they were not the Primary Agricultural Credit Cooperative Societies, dispensing agricultural credit as per the amended provisions of Section 11(1)(i) of the APMC Act and that the credit transactions shown in the books of accounts were not genuine and not as per the three-tier Cooperative Credit Structure. Though the petitioner Societies had submitted their respective replies giving details of the agricultural credit dispensed by them, they had significantly remained silent as to whether they were the Societies classified as the Primary Agricultural Credit Cooperative Societies within the Cooperative Credit Structure under the Gujarat Cooperative Societies Act or not. No such averments have been made by the petitioners in the present petitions also."

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       C/SCA/4555/2019                                 JUDGMENT




7.          The         aforesaid   judgment    of   Single      Bench

having been challenged before the Division Bench in Letters Patent Appeal No. 569 of 2016, it was held as under while dismissing the same : -

"11. From reading of the provision under Section 11 (1)(i) of the Act read with Rule 8 of the Rules, it is also clear that as per the provision under Section 11(1)(i) of the Act, only members of the managing committee of primary agricultural credit cooperative society dispensing agricultural credit in market area alone are eligible for inclusion for holding elections to the agriculturist constituency of the market committee. Further from the reading of Rule 8 of the Rules, it is also clear that when objections are filed under Rule 8(1) of the Rules, it is always open for the authorized officer to hold an inquiry that whether such proposed members of the managing committee are the members of primary agricultural credit cooperative society or not and whether such primary agricultural credit cooperative society is involved in dispensing of agricultural credit in the market area or not. The authorized officer may not conduct in-depth enquiry elaborately, but so as to consider that such nominated members of the particular agricultural society fit into the electorate as contemplated under Section 11(1)(i) of the Act, can make summary inquiry into it. There cannot be any straitjacket formula on the scope of inquiry under Rule 8(2) of the Act with reference to eligibility of the electorate under Section 11(1)(i) of the Act, but it is a matter to be decided by the election officer having regard to the facts of each case. When it is an objection of the objector that the appellant society is not dispensing Page 10 of 13 C/SCA/4555/2019 JUDGMENT agricultural credit in the market area, limited inquiry is always permissible by authorized officer under Rule 8(2) of the Rules to that limited extent. Further when electrotate under Section 11 (1)(i) of the Act are members of the primary agricultural credit cooperative society dispensing agricultural credit in the market area, it is also open for the authorized officer to examine whether such societies are primary agricultural credit cooperative societies or not which are involved in dispensation of agricultural credit in the market area. While we are in agreement with the view taken by the earlier Division Bench on the restricted scope of inquiry in the case of Shrutbandhu Himatlal Popat (supra), we hold that such finding in the inquiry is to be recorded on the basis of the material placed before the authorized officer having regard to the facts of each case. Such order which is passed by considering the material placed before the authorized officer, cannot be said to be an order passed without jurisdiction or extraordinary circumstances as held by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra), so as to entertain the petition under Article 226 of the Constitution of India in view of the remedy available under Rule 28 of the Rules. Further, in the judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha vs. State of Maharashtra and others, reported in (2001) 8 SCC 509, the Honble Supreme Court held that breach of or non-compliance of mandatory provisions with rules during the preparation of electorate roll can be challenged in an election petition under the provisions of the Maharashtra Cooperative Societies Act. In the aforesaid decision, it is held that where election process has started, dispute has to be agitated by way of election petition only. It is further Page 11 of 13 C/SCA/4555/2019 JUDGMENT held that preparation of voters list is a part of election process for constituting a managing committee of the specified society and such dispute can be resolved by way of election petition. In recent judgment, while considering the validity of rejection of nomination paper under Dental Council (Election) Regulations, 1952 and Dentists Act, 1948 in the case of Shaji K. Joseph v. V.Viswanath & Ors, reported in 2016 (0) AIJ-SC 57978, the Honble Supreme Court held that all disputes with regard to election should be dealt with only after completion of the election by seeking resolution of dispute as per the regulations.

12. In view of the aforesaid judgments, we are of the view that the petition filed by the appellant is rightly held to be not maintainable by the learned single Judge in view of the that effective alternative remedy available under Rule 28 of the Rules."

8. The aforesaid decision of the Division Bench was carried before the Supreme Court by filing the Special Leave to Appeal (C) No. 19103 of 2016, however the same was dismissed by the Supreme Court as per the order dated 20.07.2016.

9. In view of the aforestated legal position, the Court does not find any illegality or infirmity in the impugned order passed by the respondent - Authorised Officer. Mr. Jani for the petitioner societies has not been able to show as to how the petitioner societies were dispensing agricultural credit as per the three tier credit structure so as to bring them within the purview of the primary agricultural credit Page 12 of 13 C/SCA/4555/2019 JUDGMENT societies. The reliance placed by Mr. Jani on the orders passed by the then Authorized Officer in January, 2015 for inclusion of the names of the petitioner societies in the voters' list of the agriculturalists constituence, is of no help to him, inasmuch as the provisions contained in Section 11(1)(i) have been amended w.e.f. 10.04.2015, and according to the said amended provision, the petitioner societies have to be primary agricultural credit societies dispensing agricultural credit.

10. Even otherwise as held by the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited versus R.D. Rohit, Authorized Officer and Cooperative Officer (Marketing) (2006 GCD-1-

211) (Civil Application No. 2489 of 2005 and Anr. Dated 27.04.2005), exclusion or inclusion of names in the voters' list could not be said to be an extraordinary circumstance warranting interference in Writ under Article 226 of the Constitution of India.

11. In view of the above, the Court does not find any substance in the present petitions and therefore, all the five petitions are dismissed.

Sd/-

(BELA M. TRIVEDI, J) AMAR SINGH Page 13 of 13

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