Gujarat High Court
The Uva Doodh Utpadak Sahakari Mandali ... vs State Of Gujarat on 4 August, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/6392/2023 ORDER DATED: 04/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6392 of 2023
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THE UVA DOODH UTPADAK SAHAKARI MANDALI LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR BAIJU JOSHI(1207) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR JAY TRIVEDI, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 04/08/2023
ORAL ORDER
1. Heard learned advocate Mr. Baiju Joshi on behalf of the petitioner, learned Assistant Government Pleader Mr. Jay Trivedi on behalf of respondent nos. 1, 2 and 3 and learned Senior Advocate Mr. B.S.Patel with learned advocate Mr. Chirag Patel on behalf of respondent no.4.
2. By way of this petition, the petitioner has prayed for the following prayers:-
"(A) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, and thereby, issue necessary directions to the respondents to hold the election of Page 1 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Bardoli Constituency of respondent no.4 society at the earliest in consonance with the provision of Chapter XI of the Act r/w the provision of the Gujarat Cooperative Specified Society Election to Committee Rules, 1982.
(AA) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, preventing the respondents from co-opting any person to fill up the vacant seat of Bardoli constituency of respondent no.4 society.
(B) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to issue necessary directions directing the respondents to initiate the proceedings for holding the election of Bardoli Constituency of respondent no.4 society forthwith, in consonance with the provision of Chapter XI of the Act r/w the provision of the Gujarat Cooperative Specified Society Election to Committee Rules, 1982.
(BB) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondents from appointing or co-opting any person to fill up the vacant seat of Director from Bardoli constituency of respondent no.4 society.
(C) Any other and further reliefs as deemed just and proper looking to the facts of this case, may kindly be granted in favour of the petitioner, in the interest of justice."
2.1. It is the case of the petitioner that the petitioner is a society registered under the provisions of Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as 'the Act') and whereas, it is a member of the respondent no.4 society which Page 2 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined is a Milk Producers Federation registered under the provisions of the Act and Rules made thereunder and whereas the respondent no.4 is a federal society as well as a specified society under the provisions of Section 74(C) of the Act. 2.2. It is the case of the petitioner that the election of the managing committee of respondent no.4 society had been held in the year 2020 and whereas, the elected managing committee were having a term of office of five years from 09.08.2020 to 08.08.2025. It is the case of the petitioner that one Shri Ajitbhai Patel representing Kharvasa Muvathi Group Milk and Vegetable Sales Cooperative Society Limited who had contested and won the elections, had tendered his resignation as a director in the month of October, 2022 and whereas though the resignation had been accepted on 15.10.2022 and whereas since more than half of the tenure of the managing committee was remaining, yet, the respondents i.e. the respondent no.4 and the respondent State had not filled in the vacancy by election.
3. Learned advocate Mr. Baiju Joshi on behalf of the petitioner would submit that as per the provisions of Section 74(C)(2)(iii) of the Act read with Rule 73 of the Gujarat Page 3 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Specified Cooperative Societies Elections to Committees Rules, 1982 (hereinafter referred to as 'the 1982 Rules'), upon a casual vacancy occurring, the same shall be filled in by election if more than half of the term remains, yet, the respondents have not held the election for filling up of the post. Learned advocate would submit that from the record, it appears that after the elections were held for the managing committee on 09.08.2020 and the above referred Ajitbhai Patel who had won the elections had resigned, the in-charge managing director of the respondent no.4 had accepted the resignation vide communication dated 15.10.2022. It also appears that the respondent no.4 had later intimated the fact of the casual vacancy arising on account of the resignation of a member to the District Registrar.
3.1. Learned advocate would submit that as far as the petitioner is concerned, after the resignation of the director, the societies of Bardoli Constituency including the petitioner in which constituency the resigning director had been elected, had vide their communication dated 13.03.2023 requested the District Registrar, Cooperative Societies to hold the election at the earliest. Learned advocate would submit that while the Page 4 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Bardoli Constituency consists of total 57 societies, the communication referred to herein above had been supported by 42 societies from the said constituency. Learned advocate would further submit that since the respondents did not hold the election and since the petitioner appreciated that the respondents would fill up the vacancy by nomination, the petitioner had preferred the present petition. 3.2. Learned advocate would take this Court through Section 74(C)(2)(iii) of the Act and would submit that the said section inter alia mandates that upon a casual vacancy occurring, the managing committee should fill up the vacancy within sixty days, failing which, the State Government shall have the power to fill up the casual vacancy out of the same class of category of members in respect of which the casual vacancy had arisen.
3.3. Learned advocate would further draw the attention of this Court to Rule 73 of the Gujarat Specified Co-operative Societies Election to Committees Rules, 1982 (hereinafter referred to as 'the 1982 Rules') and submit that the said rule also lays down that in case of a vacancy occurring amongst other reasons on account of resignation of a member, the Page 5 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined chairman of the society is required to forthwith communicate the occurrence to the Registrar in case of a society like the present and whereas, the vacancy is required to be filled in as soon as convenient by holding bye-election to fill the seat and that the provisions of the Rules would apply mutatis mutandis to the bye-election. Learned advocate would submit that the said rule also clarifies that a person so elected shall hold office as a member of the committee as long as the term would have been available to the member in whose place the person concerned had been elected. Learned advocate would submit that there are two exceptions to the holding of elections; one found in the Act and one found in the Rules. According to learned advocate, the exception as occurring in the Act specifies that the vacancy shall not be filled in if the remaining term of the office of the managing committee is less than half of its original term. Learned advocate would further submits that as far as the 1982 Rules are concerned, Rule 73 inter alia makes an exception to the requirement of holding election by laying down that if the vacancy had occurred during the six months preceding the date on which the term of the committee expires, then the vacancy shall not be filled.
Page 6 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023
NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined 3.4. Learned advocate would submit that while the contingency in the Rules had not yet occurred, insofar as the contingency in the Act is concerned, that is with regard to the non-requirement of holding election if the term of the managing committee is less than half of its original term, would also not be applicable in the instant case more particularly since the said exception is corelatable to the date of the casual vacancy i.e. the date on which the resignation had been accepted.
3.5. Learned advocate Mr. Joshi, in support of his submissions would rely upon the decision of Hon'ble Apex Court in case of Pramod Laxman Gudadhe vs. Election Commission of India, reported in (2018) 7 SCC 550. Learned advocate relying upon the law laid down by the Hon'ble Apex Court would submit that since the vacancy is stated to occur on the date when the resignation had been accepted and whereas since on the date when the resignation had been accepted, more than half of the term of the managing committee was remaining, therefore, irrespective of whether such term had been reduced later on, the vacancy is directed to be required to be filled in by the elections. Page 7 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023
NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined
4. This petition is vehemently opposed by learned Assistant Government Pleader Mr. Jay Trivedi on behalf of the respondent nos. 1, 2 and 3 who would submit that the petition is required to be dismissed preliminarily on two counts i.e. on the ground of acquiescence and on the ground of non-joinder of necessary party. Learned AGP would submit that the petitioner had submitted his first representation even after the period of two and a half years of the term of society had expired and whereas, since the Act mandates no elections after the said period, the petition itself may not be entertained.
4.1. Learned AGP would further submit that since the direction to hold election would be required to be issued to the Collector who is the statutory authority for holding of election and whereas since the Collector has not been made a party to the proceedings, the petition may be dismissed on the score of non-joinder of the necessary party. Learned AGP would further submit that as such, since the Election Commission of India had vide Notification dated 10.11.2022 issue code of conduct for holding of the election to the State Legislature, the elections to the causal vacancy could not be Page 8 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined held at the relevant point of time. It is further submitted by learned AGP that since the right of the petitioner for grant of a prayer is corelatable to the date of filing of the petition on which date admittedly the period of two and a half years had expired and therefore, the petitioner is not entitled for any relief.
4.2. Learned AGP would submit that the Rules i.e. Rule 74(C) (2)(iii) and Rule 73 of the 1982 Rules have to be interpreted harmoniously. Learned AGP would submit that the interpretation has to be in light of the judgment of the High Court of Bombay in case of Sandeep Yashwantrao Sarode vs. Election Commission of India, reported in 2019 MHLJ 5 pg. 722 where the High Court has inter alia held that the remaining term as found in the statute is required to be counted from the date of declaration of result of a bye- election. Learned AGP would submit that as per the law laid down by the High Court of Bombay, upon a casual vacancy arising and is sought to be filled in by way of election, then the remaining term of the managing committee is required to be construed from the date when the results of the bye- election would be declared. Learned AGP would submit that in Page 9 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined the instant case, since it is apparent that the term of the managing committee is now less than half of the term or was less than half of the term even when the petition was preferred, therefore as a natural consequence thereof, even if a bye-election were to be declared and a candidate would get elected, such candidate would get elected when the term of the managing committee would be less than half and therefore, the mandate of Section 74(C)(2)(iii) gets violated. 4.3. Learned AGP would relying upon the said decision, submit that the contention of the petitioner may not be accepted and this Court may reject the writ petition.
5. Learned Senior Advocate Mr. B.S.Patel with learned advocate Mr.C.B.Patel would submit that while Section 74(C) (2)(iii) read with Rule 73 of the 1982 Rules clearly specifies that the vacancy is required to be filled in by election, yet, since the term of the managing committee is less than half of the remaining term, therefore, even if elections are held now, the tenure of the elected person would be less than half of the term and would be in violation of the spirit of Section 74(C)(2)
(iii). In any case, it has been submitted by learned senior advocate that since Section 74(C)(2)(iii) requires the seat to Page 10 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined be filled in by the same constituency, so if the seat is filled in, otherwise then by way of election, no prejudice would be caused to the petitioner. Thus submitting, learned senior advocate would request this Court to reject the present petition.
6. Heard learned advocates for the respective parties and perused the documents on record.
6.1. Considering the submissions made by learned advocates, it appears that the parties are ad idem as regards the mandate of Section 74(C)(2)(iii) of the Act read with Rule 73 of the 1982 Rules, that in case of a casual vacancy arising, the same has to be filled in by way of election subject to the condition that the remaining term of the managing committee should not be less than half of its original term. Thus, the only question that arises for consideration of this Court is whether the remaining term of office of the managing committee is to be corelatable to the date when the causal vacancy had arisen or the date when the petitioner had made their representation or had preferred this petition.
7. Section 74(C)(2)(iii) of the Act and Rule 73 of the 1982 Page 11 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Rules being relevant for the present purpose are reproduced herein below for the benefit:-
"Section 74(C)(2)(iii)- The managing committee shall fill up a casual vacancy within a period of sixty days from the date of such vacancy, failing which the State Government shall have the power to fill up such casual vacancy out of the same, class of categories of members in respect of which the casual vacancy has arisen if the remaining term of office of the managing committee is less than half of its original term.
Rule 73- Casual Vacancies how to be filled in.- In the event of a vacancy occurring on account of death, resignation, disqualification or removal of a member of a society or through such a member becoming incapable of acting previous to the expiry of his term of office or otherwise, the Chairman of the Society shall forthwith communicate the occurrence to the Registrar (in the case of Societies falling under Section 74-C(1)(i) and to the District Registrar, in case of other Societies), and the vacancy shall be filled as soon as conveniently, by holding bye-election to fill the seat, and the provisions of these Rules shall thereupon mutatis mutandis apply accordingly. The person so elected shall hold office so long only as the member of the Committee in whose place he is elected would have held it, if the vacancy had not occurred:
Provided that, if the vacancy occurs, within six months, preceding the date on which the term of the committee expires, the vacancy shall not be filled."
7.1. Having regard to the limited controversy which the Court is required to deal with in the instant case, from the perusal of Section 74(C)(2)(iii), the following aspects become Page 12 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined very clear. (A) Upon a casual vacancy occurring, the managing committee is under a mandate to fill up the causal vacancy within a period of sixty days from the date of such vacancy, and (B) If the term of the managing committee is less than half of its original term, in a situation where the casual vacancy is not filled up by the managing committee within a period of sixty days, the State Government is empowered to fill up such casual vacancy from the same class of categories in respect of which the casual vacancy has arisen i.e. through co-opting as compared to the requirement of filling the vacancy through election.
7.2. While, prima facie, it would appear that the statute is silent as regards the position which would happen if the managing committee does not fill up the casual vacancy within a period of sixty days and on the other hand, the managing committee has more than half of its original term remaining. While on first blush, more particularly, on a casual reading of Section 74(C)(2)(iii), the above could be a possibly noticeable interpretation but, in the considered opinion of this Court, a careful reading of the said provision reveals otherwise. It would appear that keeping in mind the fact that Page 13 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Section 74(C) provides for conducting of elections of committees and officers of certain societies and term of office of members of committees and whereas, upon a purposive interpretation of the provision, it would appear that upon the managing committee not complying with the mandate as referred to herein above at the first instance, the State is empowered to fill up the vacancy and in case, the term of the managing committee is less than half of its original term, then the State is empowered to fill up the vacancy out of the same class of categories of members in respect of which the casual vacancy has arisen.
7.3. Reading Section 74(C)(2)(iii) with Rule 73 of the 1982 Rules would clarify the issue even further. While Rule 73 inter alia requires the chairman of the society to forthwith communicate the occurrence of a vacancy to the Registrar in case the society is apex society, and in case of other societies including societies like the present, to the District Registrar. The section also further requires the vacancy to be filled in at the earliest by holding a bye-election.
7.4. Now, reading Section 74(C)(2)(iii) in context of the explanation insofar as the present issue is concerned of Rule Page 14 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined 73, it would appear that in addition to (A) and (B) above, the following would be the third aspect of the ambit of the concerned provision i.e. (C) Upon the managing committee failing to take steps to fill up the casual vacancy within sixty days of its occurrence, the State Government is empowered to fill up the casual vacancy through bye-election and in case the term of the managing committee is less than half of its original term, then the State Government is empowered to fill up the vacancy out of the same class of categories of members in respect of which the casual vacancy has arisen, without holding any bye-election.
8. Having appreciated the scope and ambit of Section 74(C) (2)(iii), now the Court will examine when would the power of the State Government to fill up a vacancy through co-opting take effect from.
8.1. From the explanation as above of Section 74(C)(2)(iii), it would clearly appear that the statute has emphasized the 'date of such vacancy as being a crucial date.' such an intent becomes clear when one considers that the mandate upon the managing committee is to fill up the casual vacancy within sixty days from the date of such vacancy and upon sixty days Page 15 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined elapsing from the date of the vacancy, the responsibility shifts to the State Government to fill up the said vacancy subject to the condition that in case if the remaining term of the managing committee is less than half, then the State Government could fill up the vacancy by co-opting from the same class of persons in which the vacancy had arisen. At this stage, it would also be relevant to refer to Rule 73 of the 1982 Rules which inter alia envisages that the managing committee would forthwith communicate about the vacancy occurring to the Registrar or the Distract Registrar as the case may be and whereas, the vacancy is required to be filled in as soon as convenient.
8.2. Again, it would also be relevant to reiterate that the ambit of the principle section i.e. Section 74(C) is with regard to laying down the categories of societies which require election to its managing committee of any other committee. Thus, it would appear that filling up of the vacancy by holding a bye-election is the rule and filling up of the vacancy from the same class of persons in which the vacancy had arisen without bye-election is exception to the general rule. It would appear that the statute inter alia envisages that every casual vacancy Page 16 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined in a cooperative society shall be filled in through election upon intimation by the managing committee or the State Government. Further, it is only upon the term of the managing committee being less than half of its original term that the State Government is empowered to do away with the holding of an election. The question therefore would be that whether an interpretation which sub-serves the intent of the statute or the one which would sub-serve the exceptions to the general rule, would be considered by the Court.
9. In the considered opinion of this Court, the issue may not be required to be taken to the extent as referred to herein above, more particularly, since it would appear that the intent of the legislature to fix the date of occurrence of the vacancy being the crucial date is clearly made out more particularly since the mandate upon the managing committee and the direction to the State Government are both corelatable to the date of occurrence of the vacancy. The managing committee being required to fill up the casual vacancy within a period of sixty days of occurrence of the vacancy and upon not doing so, the State Government being empowered to fill up the vacancy and since the exception to the requirement of the State Page 17 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Government to fill up the vacancy by election being that term of the managing committee should be less than half of its original term than the crucial date from which the term of the managing committee is to be calculated for deciding whether they have less than half their term or not, would also be necessarily, as a logical deduction of the above discussion, the date on which such vacancy had occurred.
9.1. Again, if the interpretation of the respondent State is accepted, then it would appear that the managing committee or the State Government as the case may be, is required not to take any steps for filling up of the vacancy and moment the term of the managing committee is reduced to less than half of its original term, then filling up the vacancy by a mode other than bye-election which, in the considered opinion of this Court would be going against the intent of the statute.
10. Furthermore, insofar as the aspect of considering the meaning of the term date of (occurrence) of vacancy, the same is dealt with in the decision of the Hon'ble Apex Court relied upon by learned advocate for the petitioner in case of Pramod Laxman Gudadhe (supra), where the Hon'ble Apex Court was considering an issue with regard to the Page 18 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Representation of the People Act more particularly Section 151A thereof, whereby it was mandated that while a bye- election for filling up of any vacancy shall be held within a period of six months from the date of occurrence of the vacancy and whereas the elections were not required to be held if the term of the member in relation to a vacancy is less than one year. In context of the dispute as above, the Hon'ble Apex Court has inter alia observed that 'The command of Secton 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual score depicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha ... ...' 10.1. In the considered opinion of this Court, though Section 74(C)(2)(iii) does not mandate that bye-election for filling of the vacancy is to be held within any particular period of time, yet, the relevancy of the occurrence of vacancy is in the context of considering the remaining term of the office of the managing committee. In the considered opinion of this Court, since a positive obligation is imposed upon the managing committee/chairman, upon a conjoint of the Act and the Rule as above, and thereafter upon the State Government, it would Page 19 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined be required to be held that the vacancy is deemed to occur more particularly in context of a resignation on the date when the resignation had been accepted. In the considered opinion of this Court, giving the provision any other meaning would be doing violence to the mandate of the Act more particularly since the Act as well as the Rule conjointly require positive acts to be done by the authorities concerned. 10.2. It is also required to be observed here that taking any other meaning of the term occurrence of vacancy would permit the managing committee/chairman and the State Government as the case may be not to do the positive act contemplated to be done by the Act itself. Furthermore, giving any other interpretation to the occurrence of vacancy would lead to the authorities concerned getting a premium for their inaction. The Act and the Rule read together, mandates that a casual vacancy is required to be filled in by way of bye- election as soon as convenient and whereas while the managing committee is under an obligation to fill it within sixty days of its occurrence, the State Government is under an obligation to fill it as soon as convenient.
11. Insofar as the decision of the High Court of Bombay Page 20 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined relied upon by learned AGP, it would appear that the Bombay High Court was considering an issue with regard to the tenure being available to a candidate who succeeds in a bye-election and whereas the issue under consideration was totally different than what is being considered by this Court. As noted herein above, while the issue was what would be the balance of term available to an in coming member who is declared elected for the remainder of the term upon occurrence of the vacancy, it is in this context that the High Court had observed that if the balance term were to be understood in relation to the member who resigns i.e. from the date on which his resignation is accepted, then anomalous situations are likely to occur. Again, it would be relevant to mention that the provisions under consideration are also not pari materia the same. Under such circumstances, in the considered opinion of this Court, the observations of the High Court of Bombay may not advance the cause of learned AGP. 11.1. Insofar as the preliminary objections made by learned AGP, since it has been observed by this Court herein above that the section mandates the managing committee and thereafter the State Government to hold elections, therefore, Page 21 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined neither the contention of acquiescence nor the contention that the petition not being required to be entertained since it is filed after a period of two and a half years of the term of the managing committee, could be countenanced. Furthermore, since it would appear that while the authority to conduct the election would be the Collector or the officers nominated by the Collector under Section 145(D) of the Act, yet, non-joinder of the Collector would not be fatal since the directions are sought against the State Government more particularly a positive direction is sought against the respondent authorities to act as per the mandate of the Act and the Rules and whereas the Collector being a consequential authority who is required to conduct the election as and when directed by the Registrar/State Government, therefore, the submission of non- joinder also would not advance the cause of learned AGP. 11.2. Thus, in the considered opinion of this Court, the date from which the term of the managing committee is to be counted for coming to a conclusion as to whether the exception to holding election would come into play or not, is the date when the vacancy had arisen. It is also clear that in the instance case, the vacancy had arisen upon the Page 22 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined resignation of the director referred to herein above was accepted i.e. on 15.10.2022. It would further appear that the vacancy had arisen two years and two months from the date of election of the managing committee and hence, on that date the managing committee had more than half of its original term of five years remaining. Thus, considered from the above angle, it would clearly appear that the vacancy was required to be filled in by holding an bye-election.
12. Having regard to the discussion, observation and conclusion as above, in the considered opinion of this Court, the following directions are required to be passed:-
(i) The present petition is required to be allowed and the same is allowed.
(ii) The respondents more particularly respondent no.2 is directed to take appropriate steps in consonance with Section 74(C)(2)(iii) of the Act read with Rule 73 of the 1982 Rules for filling up of the casual vacancy which has occurred in the respondent no.4 society by holding bye-election from the same constituency to which the resigning member had belonged.
(iii) The respondents more particularly, respondent no.3 is Page 23 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023 NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined directed to take appropriate steps as per the mandate of Section 74(C)(2)(iii) of the Act read with Rule 73 of the 1982 Rules for filling up of casual vacancy of respondent no.4 society by holding bye-election from the same constituency from which the resigning member had belonged.
(iv) The respondents shall start taking appropriate steps in accordance with the above within a period of two weeks from the date of receipt of this order.
With the above directions, the present petition is disposed of as allowed.
(NIKHIL S. KARIEL,J) FURTHER ORDER After the judgment is pronounced, learned AGP Mr.Jay Trivedi on behalf of respondent State would request this Court to stay operation of this order for some reasonable time for the State Government to challenge the same. This request is objected to by learned Advocate Mr.Baiju Joshi, more particularly stating that since respondent No.4 is a specified Society, the process of election would take minimum 78 days. Page 24 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023
NEUTRAL CITATION C/SCA/6392/2023 ORDER DATED: 04/08/2023 undefined Be that as it may, since in the considered opinion of this Court, some positive actions are required to be done by the respondents and further by the Collector for conducting of the election, let the order as above be stayed for a period of four weeks from the date this order is made available on the portal of the Gujarat High Court.
(NIKHIL S. KARIEL,J) Bhoomi Page 25 of 25 Downloaded on : Sun Sep 17 00:10:11 IST 2023