Gujarat High Court
Shree Garida Milk Producers ... vs State Of Gujarat on 5 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9292/2024 ORDER DATED: 05/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9292 of 2024
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SHREE GARIDA MILK PRODUCERS COOPERATIVE SOCIETY LTD. &
ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2,3
MS POOJA ASHAR, AGP for the Respondent(s) No. 1
MR VC VAGHELA(1720) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/07/2024
ORAL ORDER
1. Heard Mr. B. T. Rao, the learned advocate appearing for the petitioners, Ms. Pooja Ashar, the learned AGP appearing for the respondent No.1 and Mr. V. C. Vaghela, the learned advocate appearing for the respondent No.3.
2. The petitioners herein have approached this Court invoking Article 226 of the Constitution of India with a direction to amend the election programme dated 19.6.2024 (Annexure-P) to the petition by providing reserved seat for Page 1 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined S.C./S.T. from Wadhwan Taluka as per talukawise alphabetical rotation as provided in the bye-laws of the respondent No.3.
3. The petitioners herein are milk producer cooperative societies registered under the Gujarat Cooperative Societies Act, 1961. The petitioners herein are members and office bearers of the respondent No.3 society - Surendranagar Jilla Sahakari Dudh Utpadak Sangh Ltd.
4. It is the case of the petitioners that the bye-laws of the respondent No.3 have been approved by the respondent No.2 in the year 1975. The bye-law No.17 provides for Board of Directors, copy of the same is duly produced at Annexure-B. The bye-law No.17.1.1 came to be amended with effect from 29.6.2007. It is the case of the petitioners that there are many societies belonging to S.C./S.T. community and they are Chairman and, therefore, the Chairman of the respondent No.3 has made such societies ineligible by misuse of powers and political influence by amending the bye-law No.17.1.1(3) on Page 2 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined 29.7.2007. The petitioners approached this Court by preferring the Special Civil Application No.8462 of 2024 seeking a direction qua respondents No.3 and 4 for providing reservation of one seat for S.C./S.T. by alphabetical rotation in Wadhwan Taluka while publishing notification for the election of Board of Directors of respondent no.5 for the term 2024-29. The said petition came to be disposed of by order dated 21.6.2024 on the ground that, at the time, when the petition was filed, no notification was issued for preparation of provisional voters' list for the election of the Managing Committee of the respondent No.3 i.e. Surendranagar Jilla Sahakari Dudh Utpadak Sangh Ltd, the Court was of the opinion that the grievance of the petitioner was premature in absence of any notification issued by the respondent No.1. At the time, when the order was pronounced, the notification was issued on 19.6.2024 which is subject matter of challenge by way of preferring the present petition. It was kept open for the petitioners to challenge the same. Page 3 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024
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5. The contentions are reiterated by Mr. Rao, the learned advocate appearing for the petitioners that while issuing the impugned notification which is duly produced at Annexure-P, that while exercising powers under Rule 3(A) of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982, the Collector was required to delimit the constituencies prior to the publication of the provisional voters' list under Rule 4 of the Rules.
6. It is submitted that the aforesaid impugned notification with respect to the constituencies for S.C./S.T. remains unnotified, though it is stated that one seat is to be reserved for S.C./S.T. community. The constituency is not specified and in view thereof the aforesaid is in violation of Section 74(1B) of the Gujarat Cooperative Societies Act, 1961.
7. It is submitted that the petitioners had preferred a representation to the Collector even prior to filing of the petition for reserving Wadhwan as S.C./S.T. constituency, Page 4 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined however the said representation paled into insignificance and the same is unanswered.
8. In light of the aforesaid, Mr. Rao, the learned advocate submitted that the impugned notification is required to be interfered with on the aforesaid grounds and the prayers as prayed for are required to be granted.
9. Reliance is placed on the ratio as laid down in the case of Nathabhai Devabhai Zala And Anr. Versus State Of Gujarat, reported in 2012 (1) GLH 789, wherein it is held that, "in the facts related to panchayat elections, one seat be reserved for S.C./S.T. candidate prior to holding elections". It is submitted that the aforesaid is given a go-bye by the respondent authority and also the respondent No.3. The amended bye-law is against the spirit of Section 74(1B) of the Act.
10. Ms. Pooja Ashar, the learned AGP is appearing for the respondent - State. Ms. Ashar, the learned AGP at the outset Page 5 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined relied upon the affidavit filed by the respondent No.2 and submitted that the amended bye-law No.17.1.1(3) provides for rotation of one seat reserved for S.C./S.T. category. 10.1 In light of the aforesaid, it would be ensured that one seat for S.C./S.T. category is reserved in ensuing election, however the petitioners have no right to seek a mandate that it should be Wadhwan constituency which should be reserved in S.C./S.T. category in alphabetical manner. 10.2 It is submitted that the bye-laws are in force since 29.6.2019, however the same remained unchallenged and are sanctioned by the respondent - State upon due consideration. In view thereof, they are in force. The respondent has acted in accordance with the bye-laws and the bye-laws are in consonance with the Scheme of Section 74(1B) of the Act. 10.3 Preliminary objection is taken by Ms. Ashar, the learned AGP that the petitioners herein are members of the respondent No.3 society and in view thereof any grievance of the Page 6 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined petitioners has to be espoused through the society and the petitioners have no individual right to approach this Court, more particularly in view of the fact that the petitioners have been signatory to the resolution passed by the respondent No.3 society from time to time having not raised any grievance till filing of the Special Civil Application No.8462 of 2024. 10.4 To substantiate her submissions, Ms. Ashar, the learned AGP placed reliance on the following decisions :-
(1) In the case of Daman Singh vs. State of Punjab & Haryana, reported in 1985(2) SCC 670.
(2) In the case of Vishwanath Pratapsinh vs. Election Commission of India, SLP(C) 13.3.2022.
(3) In the case of Sonalba Vaghela vs. State of Gujarat, reported in 2021(3) GLH 216.
(4) In the case of Dineshbhai Manorbhai Bariya vs. State of Gujarat, reported in 2020 (0) JX (Guj.) 430.
Placing reliance on the aforesaid, it is submitted that the Page 7 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined respondent herein has acted in accordance with law and no interference is called for in the present petition.
11. Mr. V. C. Vaghela, the learned advocate appearing for the respondent No.3 submitted that the petitioners herein have no locus for seeking a mandatory direction that Wadhwan should be the constituency, that the rotation of seat for S.C./S.T., should be Wadhwan constituency, since earlier it was Chotila by way of alphabetical order. The petitioners are not the members of the S.C./S.T. community and therefore the petitioners have failed to show as to how they are affected if one seat is retained for Limbdi constituency or rotated to Wadhwan constituency. No fundamental rights of the petitioners are affected by the impugned action undertaken by the respondent No.3 as also the State.
11.1 It is submitted that if the prayers as prayed for by the petitioners are considered, under such circumstances, the same would result in snatching away the representation granted to Page 8 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined the members of the S.C./S.T. community because there are only two Cooperative Milk Producing Society registered for S.C./S.T. community and both are situated in Limbdi Taluka. 11.2 Placing reliance on the bye-law No.17.1.1(3) it is submitted that for any person to contest the election for the Managing Committee, such person should be the Chairman of the society which he is representing and he should be the Chairman of such society since last 05 years. It is submitted that barring the two societies registered for S.T. community in Limbdi taluka, there are no other persons qualified to contest the election for the post of members of Managing Committee for S.C./S.T. and, therefore, there is no question of shifting the reserved seat from one constituency to other constituency as no candidates are available in the other constituency. It is submitted that if the nomination is to be made, it was made only for two societies and, therefore, the petitioners have failed to show as to how their fundamental rights are affected or how the said damage is caused to the petitioners. Page 9 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024
NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined 11.3 It is submitted that the petition is also required to be dismissed on the ground of alternative remedy available to the petitioners wherein upon completion of election the petitioners can file election petition under Section 145U of the Gujarat Cooperative Societies Act, 1961 after the election are over. It is submitted that the election officers are appointed and the election is set in motion by the election officer and the preliminary voters' was published by the election officer, final voters' list is to be published shortly. In view thereof, the present petition is also not maintainable. 11.4 It is submitted that the by-laws of any society can be amended under Section 13 of the Act read with Rule 6 of the Gujarat Cooperative Societies Rules, 1965. Since only two societies are registered for Scheduled Caste in the entire area of operation of deponent - Union, in view thereof, the seat for reserved category was remaining vacant and therefore, it was found necessary to bring about amendment in by-law Page 10 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined No.17.1.1(3) of the Act to provide representation to the S.C./S.T. community to bring in conformity with the legislative intent. Accordingly under Section 13 read with Rule 6 of the Act, Annual General Meeting was convened on 18.6.2019. The agenda was issued and the Annual General Meeting was held whereby vide Resolution No.8 the bye-law No.17.1.1(3) came to be amended and the same came to be approved by the respondent - State by an order dated 29.06.2019. 11.5 It was submitted that the petitioner No.1 was also present in the meeting, however never objected to the said bye-law. It is submitted that if any person is aggrieved by an order under Section 13 of the Act, the remedy lies by challenging the same by filing appeal under Section 153 of the Act.
11.6 It is reiterated that the petitioner No.1 was present in the meeting and consented to the amendment in the bye-laws. If at all the petitioner No.1 was aggrieved, the petitioner Page 11 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined would have filed appeal under Section 153 of the Act to set aside the by-law, however the petitioner has thought it fit not to challenge the same. It is submitted that the same issue was subject matter of challenge in the Special Civil Application No.8462 of 2024 wherein the said petition was disposed of as no notification was issued at the relevant point of time when the petition was filed, however pending the petition the respondent - State issued the notification. 11.7 It is submitted that the term of the committee is to expire on 30.7.2024 and the Collector has to conduct and complete on or before 30.7.2024. The District Registrar has forwarded the proposal to the Collector for holding the election on 20.04.2024 and the election officer is appointed. The preliminary voters list has been published. Now it is for the District Collector to begin the process for preparing the preliminary list and then finalizing the constituency and publishing the election program. It is also denied that the deponent is not granted NOC for registering new society for Page 12 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined S.C. and S.T. 11.8 It is submitted that, with regard to 10 primary societies having made representations on 23.4.2024 objecting to by-law No.17.1.1(3) is misleading because if at all any person or any member of the society is aggrieved by the by-law, appeal is provided to challenge the same under Section 153 of the Gujarat Cooperative Societies Act, 1961. The District Registrar cannot decide the validity of a registered by-law because the by-laws of the Union are to be amended by the State Registrar and the District Registrar cannot decide or sit in appeal over the decision of the State Registrar. 11.9 It is submitted that there are only two societies situated in Limbdi Taluka in the entire district, which are qualified to contest the election from S.C. reserved category. In absence of availability of any other society from any other taluka, after rotation it will remain in Limbdi taluka. The contention raised with regard to not registering the members is Page 13 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined incorrect. If a person is qualified to be admitted as Member, the Union is admitting such person as Member in the Union and such contention is raised only with a view to mislead the Court.
11.10 The Constitution has been amended to provide adequate representation to the members of the S.C. and S.T community, but if the contention of the petitioners is accepted then no seat would be available for the members of the S.C. and S.T community and in view thereof the same would be a negative relief which is claimed by the petitioners. 11.11 It is submitted that the reliance placed by the learned advocate appearing for the petitioners that there should be a reservation of one seat for S.C./S.T. category, the same is followed by the respondent society. In view thereof, the present petition be dismissed.
12. Mr. Rao, the learned advocate appearing for the Page 14 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined petitioners in rejoinder reiterated the contentions raised in the petition and submitted that for delimiting the constituency it was required that by way of rotation in Wadhwan taluka was required to be incorporated qua the S.C./S.T. category. In view thereof, the exercise undertaken by the respondent State is required to be deprecated and set aside.
13. Having heard the learned advocates appearing for the respective parties, this is the second round of litigation. It is undisputed that the petitioners herein are members of the respondent No.4 society. By way of present petition the petitioners seek election programme dated 19.6.2024 be amended duly attached at Annexure-P by providing reserved seat for S.C./S.T. for Wadhwan taluka as per talukawise alphabetical rotation. To consider the aforesaid prayer as prayed for this Court deems it fit to produced Section 74(1B) of the Gujarat Cooperative Societies Act, 1961 which read thus:-
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NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined "Section 74(1B) in The Gujarat Co-Operative Societies Act, 1961 (1B) (i) There shall be reserved one seat for the Scheduled Castes or the Scheduled Tribes and two seats for Women in the managing committee of every society consisting of individuals as members and having members from such class or category of persons.
(ii) One seat may be reserved for the persons who are small farmers and marginal farmers.
Explanation. - The expressions "marginal farmer" and "small farmer" shall have the meanings respectively assigned to them in clauses (g) and (p) of section 2 of the Gujarat Rural Debtors Relief Act, 1976 (President's Act No. 35 of 1976);"
Upon harmonious reading of Section 74(1B) of the Act and bye-law 17.1.1(3) it reflect that Section 74(1B) of the Act provides one seat be reserved for the Scheduled Castes or the Scheduled Tribes. The amended bye-law 7.1.1(3) also provides for reservation of one seat in the aforesaid category.
The contention of the petitioners that Wadhwan Taluka should be notified in the election programme, in the opinion of this Court, is not forming part of amended bye-law 17.1.1(3). This Court is required to see that there is one seat reserved for S.C./S.T. category for the election to the members Page 16 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined of the Managing Committee in the ensuing election for which election programme is declared. The bye-law is duly ratified by the respondent - State and in view thereof the bye-law has been amended as permissible under Section 13 of the Act. The same is also ratified by the respondent - State and in effect since dated 16.8.2019. The impugned notification which is issued, provides for reservation of one S.C./S.T. seat, however the constituency is not notified in line with the bye-law 17.1.1(3).
14. The ratio as laid down in 1984 (2) SCC page-50 with respect to Panchayat election also provides that there should be reservation of one seat for S.C./S.T. category. This Court is also of the opinion that one seat is required to be reserved for S.C./S.T. category as provided under the Statute and which cannot be given a go-bye.
15. At this stage, it is apposite to refer to the position of law:-
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(a) In the case of Daman Singh Versus State Of Punjab And Haryana, reported in 1985 (2) SCC 670 paragraph-11 read thus:-
"11. The next submission of the learned counsel was that sec. 13(8), (9) and (10) did not make express provision for the issue of notice to the members of the concerned cooperative societies and were, therefore, violative of the principles of natural justice. He argued that in the absence of any provision, the rules of natural justice may be read into the provisions and notice to the members of the affected societies was imperative. Otherwise, he argued, members of one society would be formed against their will and without being heard to associate themselves with members of another society. We have no hesitation in rejecting this submission also. Once a person becomes a member of a cooperative society, he loses his individuality qua the society and he has no independent rights except those given to him by the statute and the by-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. So if the statute which authorises compulsory amalgamation of cooperative societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members. That is why sec. 13 (9) (a) provides for the issue of notice to the Page 18 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined societies and not to individual members. sec. 13(9)(b), however, provides the members also with an opportunity to be heard if they desire to be heard. Notice to individual members of a cooperative society, in our opinion, is opposed to the very status of a cooperative society as a body corporate and is, therefore, unnecessary. We do not consider it necessary to further elaborate the matter except to point out that a member who objects to the proposed amalgamation within the prescribed time is given, by sec. 31(11), the option to walk out, as it were, by withdrawing his share, deposits or loans as the case may be."
(b) In the case of Vishwanath Pratap Singh vs. Election Commission of India & Anr., SLP(C) 13013 of 2022, which read thus :-
"We find that the Writ Detition before the High Court was entirely misconceived and so is the present special leave petition. The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. In Javed V. State of Haryana, (2003) 8 scc 369, this Court held that: -
22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right right Page 19 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.
23. Reiterating the law laid down in N.P. Ponnuswami v.
Returning officer, Namakkal Constituency [AIR 1952 SC 64 :
1952 SCR 218] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210: 1954 SCR 892] this Court held in Jyoti Basu V. Debi Ghosal [(1982) 1 scc 691] : (SCC p. 696, para 8) "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is E pure and simple, a statutory right.
So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation,"
In a later judgment reported as Rajbala v. State of Haryana, (2016) 2 SCC 445, this Court held that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament. It was held as under:Page 20 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024
NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined "39. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imp0sed by or under the Constitution. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the "appropriate legislature". The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by Parliament ."
Thus, the petitioner did not have any right to contest election to the Rajva sabha in terms of the law made by the Parliament. The Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. Therefore, an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
In view of the said fact. we dismiss the present special leave petition with cost of Rs.1, 00, 000/- (Rupees one lakh only). The said cost be paid to the Supreme Court Legal Aid Commit tee within four weeks.
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NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined Pending application (s), if any, stands disposed of."
(c) In the case of Sonalba Navalsinh vs. State of Gujarat, reported in 2022 (3) GLR 1882, paragraph-44 reads thus :-
"44. Before proceeding further to examine the merits of the argument addressed on behalf of the writ-applicant, it will be useful to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right. In England also it has never been recognised as a Common Law Right. In this connection, we may usefully refer to the following observations made in the case of Jyoti Basu and others vs. Debi Ghosal and others, reported in AIR 1982 SC 983 which read as under :
"The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P.Ponnuswani vs. Returning Officer, Namakkal Constituency, (1952) SCR 218 : AIR 1952 SC 64 and Jagan Nath vs. Jaswant Singh, AIR 1954 SC 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."
(d) In the case of Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Versus State Of Page 22 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined Maharashtra, reported in (2001) 8 SCC 509, wherein it is held and observed that the rules framed for the election of specified society are complete code itself providing for entire election process beginning from the stage of the preparation of provisional voters' list, decision of objection by the Collector, finalization of electoral rolls, holding of election and declaration of results of election. In view thereof, preparation of provisional voters' list would be an integral part of the election process. paragraph-7 of the said judgment reads thus :-
"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, Page 23 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined 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 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.Page 24 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024
NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined (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 preparation of the Page 25 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined 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 Page 26 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined 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.
16. Harmonious reading of the aforesaid, the facts of the present case, Section 74(1B) of the Act, bye-law No.17 as amended bye-law 17.1.1(3) and the position of law, as referred above, the prayers as prayed for are such that at the instance of the three members of the respondent No.3 society having not challenged the bye-laws under Section 153 of the Act, it cannot be mandated that the reserved seat for S.C./S.T. should be for Wadhwan Taluka as per talukawise alphabetical rotation. On perusal of the said bye-law it does not provide for talukawise alphabetical rotation and in view thereof such prayer as prayed for cannot be granted. The election Page 27 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/9292/2024 ORDER DATED: 05/07/2024 undefined programme is also declared on 19.6.2024. Once the election programme is declared, the election is also set in motion. In light of the aforesaid also this Court would not intervene once the election process having commenced. Liberty is reserved in favour of the petitioners herein to challenge the election by preferring the election petition once the election is over.
17. For the foregoing reasons, the present petition stands dismissed.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 28 of 28 Downloaded on : Thu Jul 11 20:39:00 IST 2024