Gujarat High Court
Aranitimba Seva Sahakari Mandali ... vs State Of Gujarat & 2 on 25 July, 2017
Equivalent citations: AIR 2017 (NOC) 1068 (GUJ.)
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/8546/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8546 of 2017
With
SPECIAL CIVIL APPLICATION NO. 8547 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of YES India or any order made thereunder ?
========================================================== ARANITIMBA SEVA SAHAKARI MANDALI LIMITED....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR DAXAY D PATEL, ADVOCATE for the Petitioner(s) No. 1 MS MALTI BHARAT RAO, ADVOCATE for the Petitioner(s) No. 1 MR PK JANI, ADDITIONAL ADVOCATE GENERAL with MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 - 3 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2 Page 1 of 26 HC-NIC Page 1 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 25/07/2017 COMMON CAV JUDGMENT
1. Both the petitions, involving similar questions of law and facts, were heard together and are being decided by this common judgement.
2. The petitioner Shree Aranitimba Seva Sahakari Mandali Limited of both the Special Civil Application Nos.8546 and 8547 of 2017, is the Society registered under the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act"), affiliated to the Wankaner Taluka Sahakari Vechan Sangh Limited (hereinafter referred to as "the Sangh"), and also to the Wankaner Taluka Cooperative Processing Society Limited (hereinafter referred to as "the Processing Society"), both specified societies, as per Section 74C of the said Act.
3. The petitioner Society in both the petitions has challenged the orders dated 12.4.2017 passed by the Deputy Collector, Wankaner delimiting the constituencies of the said two specified societies, in exercise of the powers conferred under Rule 3A(9) of the Gujarat Specified Cooperative Societies Elections to Committees Rules of 1982 (hereinafter referred to as "the Page 2 of 26 HC-NIC Page 2 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT said Rules").
4. The factual matrix of both the petitions may be stated as under:-
4.1 So far as SCA No.8546 of 2017 is concerned, it is averred and alleged inter alia that the election of the managing committee of the Sangh was held on 31.8.2013 under the provisions contained in the said Rules and the term of the said committee had expired on 31.8.2016. On 4.1.2016, the Sangh received a letter from the District Registrar, Morbi calling upon it to furnish the voters' list of its affiliated societies. The Sangh had forwarded the details/proposal to the District Registrar and to the Collector vide the letter dated 6.5.2016. The District Registrar vide letter dated 11.5.2016 directed the Sangh to comply with certain lapses as mentioned therein. Again vide the letter dated 17.5.2016, the District Registrar directed the Sangh to delimit its constituencies as per the directions given by the High Court and the Supreme Court. According to the petitioner Society, the managing committee of the Sangh had delimited its constituencies as per the Resolution passed in the meeting held on 25.5.2016 (Annexure-E) and forwarded to the District Registrar vide the letter dated 31.5.2016 - (Annexure-F).
4.2 On 7.6.2016, District Registrar, Morbi Page 3 of 26 HC-NIC Page 3 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT wrote a letter to the Collector, Morbi to hold election of the Sangh as per the provisions contained in the said Act and the said Rules.
The Additional Collector, Morbi vide the letter dated 14.6.2016 authorized the Prant Officer, Wankaner Taluka to carry out the proceedings of the election of the Sangh as per the provisions contained in the said Act and Rules, and keeping in mind the guidelines issued by the High Court and the Supreme Court. Thereafter it appears that an order came to be passed by the District Registrar on 27.9.2016 proposing to appoint custodian in the Sangh under the provisions contained in Section 74D of the said Act. The Sangh challenged the said order dated 27.9.2016 by preferring SCA No.16839 of 2016 before this Court. The said petition came to be disposed of by this Court, on the learned Additional Advocate General making a statement to the effect that the said order/communication dated 27.9.2016 shall be withdrawn and appropriate fresh communication/order shall be passed.
4.3 It appears that thereafter certain correspondences ensued between the Sangh, District Registrar and the Prant Officer, whereby the Prant Officer directed the Sangh to clarify as to whether the delimitation of the constituencies was made as per the guidelines issued by the High Court and whether the Sangh had amended its bye-laws or not. The Sangh replied to the Prant Officer that the Page 4 of 26 HC-NIC Page 4 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT delimitation was made as per the guidelines of the High Court and as per the decision taken by the managing committee in its meeting held on 25.5.2016, and that the bye-laws were also amended. The District Registrar thereafter by the letter dated 25.1.2017 directed the Sangh to make fresh proposal for the election as per the provision contained in Sub-rules (1) to (7) of the Rule 3A of the said Rules, after taking necessary action for the delimitation of the constituencies. The Sangh thereafter in the letter dated 27.2.2017 requested the District Registrar to hold the election stating that the Sangh had taken necessary action as per the Sub- rules (1) to (7) of Rule 3A of the said Rules.
4.4 According to the petitioner, the Sangh had also published the voters' list as per the letter dated 23.2.2017 addressed to the District Registrar. However the District Registrar issued the show-cause notice dated 2.3.2017 calling upon the Sangh as to why the custodian should not be appointed, the Sangh having not carried out the proceedings as per Sub-rules (1) to (7) of Rule 3A of the said Rules. Though the Sangh submitted the reply on 10.3.2017, the District Registrar appointed the custodian in the Sangh. Again the said order came to be challenged by one Pratapgadh Seva Sahakari Mandali Limited by filing SCA 5646 of 2017. The said petition came to be disposed of by this Court on 23.3.2017, on the learned Additional Advocate General making a Page 5 of 26 HC-NIC Page 5 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT statement that the respondent shall take necessary endeavour to see that the election of the Sangh was held in accordance with the Rules so as to complete the entire process on or before 30.6.2017. It was directed by the Court in the said order that for the said purpose, the Deputy Collector will carry out the exercise of delimitation of constitution as per the guidelines issued by the Supreme Court in case of Rajkot District Cooperative Bank Limited Vs. State of Gujarat, reported in AIR 2015 SC 489 - (Annexure-S).
4.5 The Deputy Collector thereafter wrote a letter dated 12.4.2017 to the Sangh along with the order delimiting the constituencies of the Sangh, and directing the Sangh to prepare and send the provisional voters' list as per the said constituencies through the District Registrar. The said letter along with the order dated 12.4.2017 produced at Annexure-T is under challenge in the present petition. It appears that during the pendency of the petitions, some persons claiming to be the voters of Sangh submitted an objection application before the Deputy Collector against the delimitation of the constituencies, however, the Deputy Collector vide the order dated 3.5.2017 rejected the said objections (Annexure-Y). The said order dated 3.5.2017 has also been challenged by the petitioner by amending the present petition.
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5. So far as the Special Civil Application No.8547 of 2017 is concerned, the petitioner society has alleged and averred as under:-
5.1 The petitioner Society is affiliated with the Processing Society. The election of the managing committee of the Processing Society was held on 31.8.2013 and the term of the said committee had expired on 31.8.2016. On 30.4.2016 the Processing Society had received the letter from the District Registrar, Morbi calling upon the society to furnish the voters' list of its affiliated societies. The Processing Society therefore, had forwarded the details as per the letter dated 1.6.2016. The District Registrar, Morbi requested the Collector, Morbi to hold the election of the Processing Society as per the provisions contained in the said Act and the Rules. The Collector authorized the Prant Officer Wankaner to hold the election of the Processing Society as per the said Act and Rules.
5.2 On 27.9.2016, the District Registrar passed an order proposing to appoint custodian in the Processing Society as per the provisions contained in Section 74D of the said Act. The said order came to be challenged by the Processing Society by filing SCA No.16840 of 2016. The said petition came to be disposed of vide the order dated 3.10.2016 on the learned Additional Advocate General making a statement that the said impugned order dated 27.9.2016 Page 7 of 26 HC-NIC Page 7 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT shall be withdrawn and appropriate fresh orders shall be passed.
5.3 It appears that thereafter the correspondences ensued between the Prant Officer, District Registrar and the Processing Society, whereby the Prant Officer had called upon the processing society by the letter dated 13.10.2016 to explain as to whether the delimitation of the constituencies was made as per the guidelines issued by the High Court and the Supreme Court and whether the delimitation was made as per the bye-law No.28(1) or not. The processing society replied to the Prant Officer vide the letter dated 14.10.2016 clarifying inter alia that in the light of the judgements of High Court and Supreme Court, the delimitation of twelve constituencies were made as per the resolution No.3 dated 26.5.2016 of the Society, and that there was no delimitation made at the time of election in 2013, and that it was being done for the first time.
5.4 The District Registrar thereafter appears to have issued show-cause notice dated 2.3.2017 proposing to appoint the custodian in the processing society under Section 74D of the Act, and appointed the custodian as per the order dated 10.3.2017. The said order came to be challenged by one Jetparda Juth Seva Sahakari Mandali Limited by filing SCA No.5647 of 2017.
The said SCA came to be disposed of by the order Page 8 of 26 HC-NIC Page 8 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT dated 23.3.2017 on the learned Additional Advocate General making a statement to the effect that the respondent shall take necessary endeavour to see that the election of the processing society was held in accordance with the said Rules so as to complete the entire process on or before 30.6.2017. It was directed by the Court that for the purpose, the Deputy Collector will carry out the exercise of delimitation of constituencies as per the guidelines issued by the Supreme Court in case of Rajkot District Cooperative Bank Ltd. Vs. State of Gujarat (supra).
5.5 The Deputy Collector, Wankaner thereafter directed the processing society vide the letter dated 12.4.2017 to publish the provisional voters' list as per the delimitation of the constituencies made in the enclosed order (Annexure-Q). The said order has been challenged by the petitioner in the present petition. Pending the petition, the Deputy Collector and Prant Officer, Wankaner vide the order dated 18.4.2017 amended the delimitation of the Kankot Constituency No.9. The petitioner along with others had also raised the objections against the delimitation of constituencies made by the Deputy Collector, however, the Deputy Collector vide the order dated 3.5.2017 rejected the said objections (Annexure-W). Hence, the said order dated 3.5.2017 has also been challenged by the petitioner by amending the present petition.
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6. The learned Advocate Mr.B.T. Rao for the petitioner in both the petitions relying upon various provisions of the said Act and Rules and more particularly the Rule 3A of the said Rules submitted that the Collector or the Deputy Collector did not have the power to delimit the constituencies of the Sangh and the Processing Society, when the said Societies had delimited their respective constituencies as per the provisions contained in the said Act and in Rule Nos.1 to 8 of the Rule 3A of the said Rules. According to Mr.Rao, both the specified Societies i.e. Sangh and the Processing Society had also amended their respective bye-laws so as to comply with the provisions contained in the Rule 3A(8) of the said Rules and keeping in mind the guidelines issued by the High Court and the Supreme Court as regards the geographical homogeneity. Placing reliance upon various decisions of the Division Bench of this Court, he submitted that the power of the Collector conferred under Rule 3A(9) will come into play only if the specified society had delimited the constituencies with oblique motive or ulterior consideration, however, in the instant case both the specified societies having delimited their constituencies after amending their bye-laws in conformity with the provisions contained in the said Act and the Rules, the impugned orders passed by the Deputy Collector delimiting the constituencies were without any authority of law Page 10 of 26 HC-NIC Page 10 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT and deserves to be set aside. He has also relied upon the observations made by the Supreme Court in case of Rajkot District Cooperative Bank Ltd. Vs. State of Gujarat (supra) and by the Full Bench of this Court in case of Narendrabhai Mahijibhai Patel & Ors. Vs. State of Gujarat and Ors., in SCA No.12067 of 2012 and others decided on 4.7.2013 to submit that the constituencies have to be delimited with a view to see that proper representation of the voters was made, however, the Deputy Collector having not delimited the constituencies accordingly, the objections were filed, which have been turned down by the Deputy Collector arbitrarily.
7. Per contra, the learned Additional Advocate General Mr.Prakash K. Jani for the respondents, placing heavy reliance on the same decision of the Supreme Court in case of Rajkot District Cooperative Bank Limited Vs. State of Gujarat (supra), on which Mr.Rao had also placed reliance, submitted that the powers conferred with the Collector for delimitation of the constituencies under Sub-rule (9) of the Rule 3A of the said Rules are independent and separate, and such powers could be exercised notwithstanding anything contained in the bye- laws of the society. According to Mr.Jani, the so-called amendments in the bye-laws of the said Sangh and the Processing Society were made by the then managing committee, and not by the general body of the said Societies, and therefore such Page 11 of 26 HC-NIC Page 11 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT amendments could not be said to be legal and proper. Even otherwise, there was nothing on record to suggest that the said amended bye-laws were approved by the District Registrar as per the provision contained in the Act. He also submitted that the said Sangh and the Processing Society having not amended their bye-laws after following the procedure as prescribed under Section 13 or Section 14 of the said Act, and having not amended keeping in view the guidelines laid down by the High Court and the Supreme Court, the Deputy Collector had passed the orders delimiting the constituencies, exercising powers under Rule 3A(9) of the said Rules, and as per the direction given by High Court in SCA No.5646 of 2017 and No.5647 of 2017.
8. Before dealing with the rival contentions raised by the learned Advocates for the parties, it would be beneficial to refer to certain provisions of the said Act and Rules. It is not disputed that both the Sangh and the Processing Society are the specified Societies as contemplated in Section 74C of the said Act, and that the election of the members of the Committees and of the officers of the committees of the said societies is subject to the provisions contained in Chapter XI of the said Act, and has to be conducted in the manner laid down by and under Chapter VII of the said Act.
9. Section 145Y falling under Chapter-XI empowers Page 12 of 26 HC-NIC Page 12 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT the State Government to make Rules consistent with the Act to provide for and to regulate the matters relating to various stages of elections of the specified societies and accordingly the said Rules have been framed by the State Government. Rule 3A of the said Rules pertains to delimitation of the constituencies for the purpose of election, which reads as under:-
"3A. Delimitation of constituencies for purpose of election. (1) In every society where there are more than one constituencies, the Secretary or where there is no post of Secretary, the Chief Executive Officer of every such society shall, in the year in which election to the Committee is scheduled to be held, prepare a provisional list of the constituencies.
(2) Such list shall describe the limits of each constituency. A copy of the provisional list shall be displayed with a notice to be signed by the Secretary or where there is no post of Secretary, the Chief Executive Officer of the society on the notice board of every office or suboffice of the society. A copy of such provisional list along with the notice shall also be sent to the Registrar and to the Collector.
(3) A copy of such list along with notice shall also be sent to every member of the society by registered post.
(4) The notice referred to in subrules (2) and (3) shall clearly lay down that any objections or suggestions in respect of the provisional list may be sent by any person to the Secretary or where there is no post of Secretary to the Chief Executive Officer Page 13 of 26 HC-NIC Page 13 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT of the society within a period of 15 days from the date on which the provisional list is displayed on the notice board of the office of the society.
(5) Any member of the society may bring to the notice of the society any omission or error in respect of the name or address or other particulars shown in the provisional list.
(6) Any person raising any objection or making a suggestion shall send such objection or suggestion with grounds therefore in writing within 15 days from the date on which the provisional list is displayed on the notice board of the office of the society.
(7) The society shall after considering every objection, suggestion or any error in the provisional list indicated by any member under subrule (5), prepare the final list.
The final list shall be displayed on the notice board of the office of suboffice of the society and a copy of such final list shall be sent to the Registrar and also to the Collector.
(8) Where the area of operation of a society is in more than one village, the number of constituencies shall be equal to the total number of seats excluding two seats reserved under subsection (1) of Section 74B.
(9) Notwithstanding anything contained in these rules and the byelaws of the society, where the elections to the members of any Committee are scheduled to be held before the ending of the accounting year of the society, the delimitation of the constituencies shall be made by the Collector prior to the publication of the list of voters."
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10. It may be noted that the issue with regard to the powers of the Collector under Rule 3A(9) was being raised from time to time before this Court and there being contradictory views expressed by the two Division Benches, following issues were referred to the Full Bench in case of Narendrabhai Mahijibhai Patel & Ors. Vs. State of Gujarat and Ors., in SCA No.12067 of 2012 and others.
(1) Whether Rule 3A of the Rules introduced by the Amendment dated 10.8.1987, could be applied to the Societies byelaws of which provide for a single constituency?
(2) Whether the scheme of the Rules permits the specified Societies having a single constituency, more than one seat for one constituency; and whether members of such society can legally be permitted to vote for more than one seat?
(3) Whether Collector has jurisdiction to make an order for delimitation of the constituencies, in absence of any proceeding undertaken in accordance with Section 14 of the Act?
(4) Whether delimitation of the constituencies under Rule 3A of the Rules can only be territorywise and/or whether delimitation of the constituencies can be based upon objects and activities of the member societies or classes of individual members?
11. The said issues were answered by the Full Bench as under in the common judgement dated 4.7.2013.
Page 15 of 26HC-NIC Page 15 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT (1) Rule 3A of Rules of 1982 could be applied to the societies byelaws which provides for a single constituency because Rule 3A is essentially for delimitation of the constituencies and preparation of the voters' list. But we clarify that sub rule(1) to subrule(7) would apply in case of all specified societies, whether byelaws provide for a single constituency or more than one constituency. Subrule(8) would apply to all specified societies having bye laws for single constituency only if its area of operation is in more than one village. Subrule(9) would apply to all specified societies where delimitation of the constituencies are required to be made by the Collector.
(2) The scheme of the Rules of 1982 do permit specified societies having single constituency, provided the area of operation is limited to one village and in those circumstances, more than one seat may be provided under the byelaws for one constituency. The members of such societies can legally be permitted to vote for more than one seat.
(3) The Collector has the power to pass an order for delimitation of the constituency, even in absence of any proceedings undertaken in accordance with section 14 of the Act.
(4) The delimitation of constituency under Rule 3A of the Rules can also be territory wise. The delimitation of the constituencies can be based upon the objects and activities of the societies for the classes of individual members since each electorate is to represent the respective members of a particular area or a particular class, as the case may be.
12. The said decision of the Full Bench was Page 16 of 26 HC-NIC Page 16 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT challenged before the Supreme Court in case of Rajkot District Cooperative Bank Ltd. (supra). The Supreme Court considering the other judgements of the High Court and the provisions contained in the said Act and the Rules, held as under:-
"17. On a careful examination of Rule 3 A (8) of the Rules by us, it is made clear that the said provision is aimed at geographical i.e. territory or zonewise bifurcation or division. A salient feature of the Rule 3A is the delimitation of the constituencies which includes all specified cooperative societies. Once the area of operation of any society is more than one village, Sub rule (8) would come into play and the requirement of the number of constituencies would be equal to the total number of seats, excluding two seats reserved for the categories as provided under section 74 B of the Act.
18. Further, the language of sub rule (9) of Rule 3A, makes it clear that the Rule Making Authority has graced the Collector with the power to delimit the constituency/constituencies prior to the publication of the voters list. The delimitation of the constituency/ constituencies should be prior to the preparation of the voters' list and/or in any case simultaneous with the preparation of voters' list but the voters list has to be as per the delimitation of the constituencies. The same is the case when the delimitation of the constituency is required to be made by the Collector prior to the publication of the list of voters.
19. Thus, when subrule (8) is read along with subrule (9) of Rule 3A, where the society has the area of operation Page 17 of 26 HC-NIC Page 17 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT exceeding one village, even if the bye laws provide for single constituency, the seats provided by the bye laws has to be equal to the number of constituency/constituencies and therefore, for each seat, a separate constituency would be required to be delimited and if not so delimited by the society, of its own, it would be required for the Collector to exercise his power under sub rule (9) of Rule 3A of the Rules for the delimitation of the constituency in accordance with the mandate of sub rule (8) of Rule 3A and thereafter, the process for publication of the voters' list is to be given effect to.
20. The power conferred with the Collector for the delimitation of the constituency under sub rule (9) is independent and separate and only applicable in the case when the election of the members of any Management Committee of specified society is scheduled to be held. Further, as specified in the sub rule (9) of Rule 3A, such powers are to be exercised by the Collector, notwithstanding anything contained in the bye laws of such society.
The Collector has to exercise the power for delimitation of the constituencies prior to the publication of the list of voters. Further, as rightly stated by the High Court in the impugned judgment that when a specific power is conferred in a specific contingency to a different authority, such power has to be read in addition to the general power for the amendment in the bye laws. Thus, the bye laws of any society have to be in conformity with the provisions of the Act and the Rules.
21. It is obligatory on the part of any specified society to bring about the amendment in its registered byelaws in conformity with the provisions of the Rules and more particularly Rule 3A (8) and (9). But if the society/societies have not Page 18 of 26 HC-NIC Page 18 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT amended their bye laws, the same has to be in conformity with the said Rules by getting suitably amended; the effect of the Rule would not stand nullified or inoperable. For this purpose sub rule (9) gives the power to the Collector to delimit the constituency/constituencies of a society. Thus, once the area of operation of any society exceeds more than one village as per sub rule (8), the number of constituencies is required to be bifurcated by the Collector in exercise of his power, so as to make it equal to the total number of seats to see that effective representation is given to the members of the society for giving fair representation to its members to elect their true representatives to participate in the affairs of the Society as part of the Managing Committee Members, as the society must be represented by its elected representatives in a democratic process to effectively represent in the Managing Committee which is an indispensable parameter for the democratic institutions to achieve the laudable object of Cooperative movement in the country, which is the constitutional philosophy as enshrined in Chapter XI A of the Constitution, which has been inserted by way of constitutional amendment.
22. Thus, the bye laws of any specified society under the provisions of the Co operative Societies Act cannot be permitted to prevail over the statutory Rule 3A (8) & (9) of the Rules. The moment the area of operation of any specified society exceeds one village, sub rule (8) would come into play, irrespective of the fact that whether members of such society constitute homogeneous group or heterogeneous group.
23. Further, the elections to either the Managing Committee or Board must be held democratically by giving representation to all its members, as stated in the preamble Page 19 of 26 HC-NIC Page 19 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT of our Constitution, which is held to be the basic feature of the Constitution by the constitutional Bench of this Court in the cases of Kesavananda Bharati Sripadagalvaru v. State of Kerala7 and Kuldip Nayar v. Union of India8. Under Article 13 (2) of the Constitution of India, Rules are also regarded as laws. However, the Rules and laws framed by the State Legislatures and the appropriate government cannot run parallel with the principles of the Constitution and the statutory objects of the Cooperative Societies Act cannot be disregard as it would defeat the purpose of Section 243ZK of the Constitution of India (NinetySeventh Amendment) Act 2011, inserted as per the 97th Constitutional Amendment, which provides for election of the members of the Managing Committee or Board. If the rules provide that not more than 7 representatives can be elected from a specified Cooperative Society to the Board or Management Committee, then it is the duty of the societies to adhere to it and not exceed the specified number. Thus, the bye laws of a Cooperative Society, in order to achieve the constitutional object, must be brought at par with the laws and statutory provisions of the Societies 7 (1973) 4 SCC 225 8 (2006)7 SCC 1 Act. They cannot override the provisions of State or Central laws."
13. In view of the afore-stated settled legal position, there remains hardly any doubt that when the Society has the area of operation exceeding one village, the number of constituencies has to be equal to the total number of seats in view of the Sub-rule (8) of Rule 3A. Now, the word "constituency" as defined in Rule 2(b) of Rules means an electoral division, if any, as specified in the bye-laws of Page 20 of 26 HC-NIC Page 20 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT the specified society. "Bye-laws" as defined under Section 2(2) of the Act means bye-laws registered under the Act and for the time being in force, and include registered amendments of such bye-laws. Section 13 of the Act pertains to the amendments in the bye-laws of the Societies, and Section 14 pertains to the power of the Registrar to direct the societies to amend the bye-laws.
14. In view of the afore-stated provisions, it is explicitly clear that it is obligatory on the part of the specified society to bring about the amendment in its registered bye-laws in conformity with the provisions of the Rules, more particularly Rules 3A(8) and that such amendment in the bye-laws has to be carried out in the manner provided under Section 13 and 14 as the case may be of the Act. If the bye-laws are not made or amended in conformity with sub-rule (8) of the Rules 3A, the sub-rule (9) thereof would come into play and the Collector could exercise the powers to delimit the constituencies of the society. Thus such powers could be exercised by the Collector under Sub-rule (9) of Rule 3A, notwithstanding anything contained in the bye- laws of the Society. Once the area of operation of any specified society exceeds more than one village, the number of constituencies is required to be bifurcated by the Collector, so as to make it equal to the total number of the seats, to see that the effective representation is given to the Page 21 of 26 HC-NIC Page 21 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT members of the society to elect their representatives to participate in the affairs of the society.
15. Though it is sought to be submitted by the learned Advocate MR.Rao that both the specified societies had delimited the constituencies by amending their bye-laws as per the Rules, the said position has been seriously disputed by the learned Additional Advocate General Mr.Jani. Now, so far as the Sangh is concerned, it appears that the managing committee of the Sangh, in its meeting held on 25.5.2016 had constituted 12 constituencies (Annexure-E), however, there is nothing to show that the bye-laws of the Sangh were amended accordingly. As stated earlier, "constituency" means an electoral division as specified in the bye-laws of the society. Bye- law 29(1) of the bye-laws of Sangh relied upon by Mr.Rao specifies that the number of elected representatives of Agricultural Cooperative Societies shall be twelve. Bye-law 29(4) provides that the election of managing committee shall be held every five years as per Section 74C of the said Act. However, Mr.Rao has failed to point out any amendment having been made in the bye-laws specifying the constituencies i.e. the electoral divisions made as per Rule 3A(8).
16. Even if it is accepted that the managing committee of the Sangh had delimited its constituencies in the meeting held on 25.5.2016, Page 22 of 26 HC-NIC Page 22 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT such decision was neither legal nor valid. The constituencies have to be specified in the bye- laws and such amendment, if any, made in the bye- laws have to be registered as per the provisions contained in the Act and the Rules. Further, it is pertinent to note that bye-law 52 of the said bye-laws provides that any change or amendment in the bye-laws has to be carried out in the General Body meeting or special meeting. Needless to say, the alleged amendment in the bye-laws proposed in the meeting held by the managing committee could not be said to be the amendment made as per the provisions contained in the bye-laws or as per Section 13 of the said Act.
17. Similarly, Mr.Rao has also failed to show that the processing society had carried out the exercise of delimitation of the constituencies so as to bring it in conformity with the provisions of the said Rules, or had amended the bye-laws incorporating such constituencies in the bye-laws and such amendment was made as per the procedure laid down under Section 13 of the said Act. On the contrary from the documents at Annexure-B, it appears that the resolution to delimit the constituencies was passed by the managing committee of the Society in its meeting held on 26.5.2016. Apart from the fact that the said decision was not taken by the General Body of the society, the said electoral divisions called constituencies do not appear to have been specified in the bye-laws of the society so as to Page 23 of 26 HC-NIC Page 23 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT fall within the meaning of constituencies as contemplated in Rule 2(b) of the said Rules, much less the amendment in the bye-laws to that effect has been registered under Section 13 of the said Act. Needless to say that the bye-laws registered under the Act or the amendment in the bye-laws registered under the Act, could be said to be bye-laws as per Section 2(2) of the said Act.
18. Despite repeated queries having been raised by the Registrar, the Prant Officer and Deputy Collect, both the societies had not made electoral divisions i.e. the constituencies as per Rule 3A(8), and therefore, the Deputy Collector was perfectly justified in exercising his powers under Sub-rule (9) of the Rule 3A, and in delimiting the constituencies as per the impugned orders. As held by the Supreme Court in case of Rajkot District Cooperative Bank Limited (supra), the said powers of the Collector/Deputy Collector are independent and separate, to be exercised notwithstanding anything contained in the bye-laws of the society. The bye-laws of the society have to be in conformity with the provisions of the Act and the Rules. It is obligatory on the part of the specified society to bring about the amendment in its registered bye-laws in conformity with the said Rules and more particularly Rules 3A(8) and (9).
19. The submission of Mr.Rao that that the Page 24 of 26 HC-NIC Page 24 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT delimitation made by the Deputy Collector was not in accordance with the observations made by the Supreme Court, inasmuch as there was no geographical homogeneity and the proportionate representation considered by the Deputy Collector, can not be accepted. It cannot be gainsaid that the election of the managing committee of the Cooperative Society has to be held democratically by giving proper representation to all its members and that the statutory objects of the said Act can not be disregarded. However, it is also pertinent to note that though right to vote is a valuable right, to demand uniform value of one's voting right through the process of delimitation can not be said to be a justifiable right. In absence of the geographical maps and other material of the specified societies on record, it is difficult to accept the said submission of Mr.Rao that the delimitation of constituencies made by the Deputy Collector is not as per the geographical homogeneity. Even otherwise, as per the settled legal position, the delimitation of the constituencies is the inter-wound function of the legislature and the executive, and not of the judiciary. Suffice is to say that the elections of the managing committee of the societies have to be held democratically and as far as possible by giving proper representation to all its members.
20. In that view of the matter, the Court does Page 25 of 26 HC-NIC Page 25 of 26 Created On Wed Aug 16 07:00:33 IST 2017 C/SCA/8546/2017 CAV JUDGMENT not find any merit in these petitions. Both the petitions, therefore, are dismissed.
(BELA M. TRIVEDI, J.) vinod Page 26 of 26 HC-NIC Page 26 of 26 Created On Wed Aug 16 07:00:33 IST 2017