Ahmedabad vs State on 13 June, 2008

Gujarat High Court
Ahmedabad vs State on 13 June, 2008
Bench: K.M.Thaker
  
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 

SCA/8063/2008	 9/ 11	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CIVIL APPLICATION No. 8063 of 2008
 

 
=========================================================

 

AHMEDABAD
DISTRICT CO OPERATIVE BANK LTD - Petitioner(s)
 

Versus
 

STATE
OF GUJARAT & 3 - Respondent(s)
 

=========================================================
 
Appearance
: 
MR
TUSHAR MEHTA for
Petitioner(s) : 1, 
GOVERNMENT PLEADER for Respondent(s) : 1, 
DS
AFF.NOT FILED (N) for Respondent(s) : 1 - 3. 
HL PATEL ADVOCATES
for Respondent(s) :
4, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE K.M.THAKER
		
	

 

 
 


 

Date
: 13/06/2008 

 

ORAL
ORDER

1. In
this petition, notice was issued on 5/6/2008 and on 6/6/2008, order
giving certain directions was passed. Then reply affidavit is filed
by the respondent No.4. Considering the issues, petition requires to
be considered. Hence, RULE.

Upon request of the advocates for respective parties and with their
consent, petition is taken up for hearing and final disposal today.

2. The
petitioner is co-operative bank registered under the provisions of
The Gujarat Co-operative Societies Act, 1961 (hereinafter referred to
as ‘the Act’) and is also ‘Central Bank’ within the meaning of
Section 2(3) of the Act. The petitioner has, by way of this petition
under Article 226 of the Constitution of India, approaches this Court
with a prayer for direction to respondent No.3 to publish provisional
list of voters as contemplated under Rules 4, 5 and 6 of the Gujarat
Specified Co-operative Societies Election to Committees Rules, 1982
(hereinafter referred to as ‘the Rules, 1982’) as per the list
supplied by respondent No.3 on 2nd June 2008.

3. So
as to appreciate the purport of the said prayer and the reason as to
why the petitioner has come out with prayer for such a relief, it is
necessary to consider factual background in which the petition is
preferred.

4. It
is the case of the petitioner that the elections for respondent No.4
ý Corporation are due and therefore, as per the Rules 4, 5 and 6 of
the Rules, 1982, it was necessary to publish the provisional list of
voters. The petitioner has stated that there are about the 6109
Co-operative Societies which are member of respondent No.4 ý
Corporation. The petitioner has also stated that at the relevant
point of time, the respondent No.4 was under control of the
administrator appointed by the respondent No.2. At present also the
said respondent No.4 ý Corporation is, since April 2004, under
charge of custodian appointed by respondent No.2. The petitioner has
further stated that the provisions of Section 74-C are attracted in
the present case and therefore, the election of the Managing
Committee is required to be held in accordance with Chapter ý XI-A
of the Act r/w. relevant provisions under the 1982 Rules by
respondent No.3 and so as to facilitate the said process, the
respondent No.4 had, on 27.11.2007, forwarded a provisional list of
voters to the respondent No.3 through District Registrar. The said
list, the petitioner claims, was notified on 28th March
2008 as provisional list of voters and proposed detailed programme
(Page 81) was published and the said Notification Contained Programme
for hearing of the objections regarding said voters list and also the
programme for election.

5. It
is asserted by the petitioner that after the publication of the said
provisional list of voters, several complains about the errors and
inaccuracy in the said list were received and even respondent No.3
also received more than hundred objections. The objections, it is
claimed, were based on various grounds; one of which was that it
contained names of voters/representatives who were either not members
or had died.

6. It
is further case of the petitioner that these aspects were brought to
the notice of respondent No.3 and it was represented that instead of
individually in forming the member societies to send the names of
their delegates the respondent No.4 had merely published a small
advertisement by which the respondent No.4 sought response from the
member societies. In short, the case of the petitioner is that the
provisional list which was forwarded was prepared on the basis of
details existing on the record of respondent No.4 as on 1997-98 and
that therefore, it did not reflect the correct and complete position
as it should in 2008 i.e. when the election is scheduled to be held.
The petitioner has emphasised that errors in the list were so
obvious, apparent and serious that even the respondent No.3 had taken
note and conveyed that it was not possible to prepare the final list
on basis of such list/details and then an order dated 11th
April 2008 came to be passed by him expressly stating therein that it
was not possible to publish the final voters’ list in view of the
discrepancies and errors.

7. It
appears that the said order dated 11th April 2008 was
challenged by one Shri R.T. Shah by way of a petition being Special
Civil Application No.6445 of 2008, wherein, the respondent No.4 ý
Corporation was not joined. In the said proceedings, the petitioner
had preferred a Civil Application and ultimately, on the basis of the
reply affidavit filed by respondent No.3 in order dated 17th
April 2008 was passed. What is relevant in present petitioner is that
in the said reply affidavit, respondent No.3 had stipulated as under
:

ýSI
say and submit that the present deponent will wait till 31.05.2008
for clarification from the Managing Director of the Gujarat State
Co-operative Housing Finance Corporation Ltd. If any
reply/clarification comes from the concerned society he will take
decisions after considering the clarification, if any
reply/clarification not received by them the final voter list will be
notified considering available records and materials on or before
07.06.2008. Then after he will proceed with the election program as
per the rules. The present deponent has shown his bonafide and
prepared a proposed election program as per the Rule 16 of Gujarat
Specified Co-operative Societies Election to Committee Rules, 1982
and he will conduct the election on dated 10.07.2008 as per the
proposed election program. The copy of the proposed election program
is annexed and marked as Annexure R V in this reply.ýý

8. The
petitioner has stated that after the aforesaid development, it was
necessary for respondent No.4 to immediately forward a revised
voters’ list to the respondent No.3. For the said purpose and after
realising that the small advertisement, which was published by it
earlier would not serve any purpose, the respondent No.4 sent
individual communications, as required under Rules 5(2) of the Rules,
1982, to the member societies seeking their resolutions appointing,
their delegates.

9. In
this background, the respondent No.3 had again forwarded a
communication dated 15th April 2008 to respondent No.4 and
invited duly verified voters list so as to enable him to take further
steps for election.

10. The
respondent No.4 has filed reply affidavit in present petition,
wherein, the respondent No.4 has stated in Para 5 and 6 which are
quoted as under :

ýS5.

I say that the respondent No.4 after following the requirements as
prescribed in ýSThe Gujarat Specified Co-Op. Societies Elections to
Committees Rules, 1982,ýý (for short Rules, 1982) prepared the
provisional list of voters again and second time, the same is sent
to the respondent No.3 on 2nd June 2008. I say the
contention of the petitioner that the earlier list of voters was
prepared by the respondent No.4 without intimating its member
societies about sending of their delegates is not correct. In fact,
the respondent No.4 by way of public notice published in newspaper
daily ýSDivya Bhaskarýý in its issue dated 27/11/2007 intimated its
member societies to submit the name of their delegates for purpose of
the election of the respondent No.4. I say that whole process of
preparation of the provisional list of voters of the respondent No.4
is provided and carried out, out with a view to ensure the election
on the basis of scrutinized list of voters so as to remove any error
in the provisional list.

6.
I, therefore, reiterate that apprehension of the petitioner that
the election of the respondent No.4 will be held on the basis of
first list of voters of 2007 is not correct. Of course, it is for the
respondent No.3 to make clarification for the same. I say that the
election of the respondent No.4 will be held on the basis of the
scrutinized list after following prescribed procedure given under the
Rules, 1982 prepared for the election of respondent No.4 and the same
is forwarded to respondent No.3 on 2nd June 2008.ýS

11. From
the said assertion of respondent No.4, it becomes clear that now the
respondent No.4 has forwarded to respondent No.3, the duly revised /
verified provisional list of voters on 2nd June 2008.

12. In
this background, the petitioner has now claimed that since the
provisional voters’ list which was forwarded earlier was infected
with errors, as a result which it became necessary to revise or
update the same, and since now that exercise has been undertaken and
a revised list has been forwarded by respondent No.4 to respondent
No.3 on 2nd June 2008, it is statutorily required that the
list received by respondent No.3 on 2nd June 2008 be
published as provisional list of voters and the procedure as required
by virtue of Rules 4, 5 and 6 may be commenced on the basis of the
said voters list by treating the same as provisional voters list.

13. In
support of the submissions, the petitioner has placed reliance of the
judgment reported in 2003 (2) GLH 459 in case of Valsad
District Central Co-operative Bank Ltd.,
wherein, the Hon’ble Court has observed as under :

ýS…In
my view the whole process of preparation of the provisional voters
list upto the stage of deciding the objections i.e. upto 8th
November 2001 is vitiated and if it is allowed to stand, it would
result into keeping away more than 50% of the voters from their legal
right to vote and participate at the election of the members of the
managing committee. If the action is found to be ab-initio void
of preparing the voters list and the finalisation of the objections
and is resulting into frustrating the basic principles of democracy,
it can hardly legitimately be contended that the process of
preparation of the voters list which continued upto 8-11-2001 should
be allowed to be continued further when this court ultimately in
view of the aforesaid discussion finds that the provisional voters
list will have to be prepared afresh by giving proper and legal
effect to the bye-laws as existing on 31-3-2001.ýS (emphasis
supplied)

14. In
the background of such facts and circumstances and after the
affidavit of respondent No.4, a consensus is arrived at between the
petitioner on one hand and the respondent No.1, 2 and 3 on the other
hand. However, it appears that the respondent No.3 finds himself in a
dilemma because in his view, once he received the provisional voters’
list, he is supposed to proceed further on that premise and he, on
his own, is not authorised to act upon the list forwarded by
respondent No.4 on 2nd June 2008 by treating the same as a
provisional list and to start the process again on that basis.

15. The
petitioner, therefore, has requested that in view of the consensus
arrived at between the all concerned parties i.e. the petitioner and
all respondents, appropriate directions to respondent No.3 may be
issued, so that, the list forwarded by respondent No.4 on 2nd
June 2008 may be acted upon.

16. From
the facts obtaining on record as of now, more particularly in light
of the order dated 11th April 2008 issued by respondent
No.3 and the communication dated 15th April 2008 issued by
respondent No.3, it appears that the provisional list of voters which
was forwarded earlier i.e. on 27.11.2007 on the basis of which the
notification dated 28.3.2008 was issued, was infected with error and
discrepancies and that therefore, it would not be justified or legal
to permit the process for election to proceed on the basis of the
said list or notification. Otherwise several members are likely to be
deprived of their right to vote and that would ultimately vitiate the
entire election. It would hardly be legal or justified to allow such
situation to arise. It is prudent to nip such error in the bud.

17. Since,
the programme of election which was published earlier was only a
provisional programme and since in view of respondent No.3 also, the
provisional list was erroneous and could not have been acted upon,
this case fits into the category of the rarest of the rare case,
wherein, the Court may intervene in the election process so as to
arrest any apparent irregularity or illegality, which, if not
arrested at this stage and allowed to exist, would, ultimately,
vitiate the election.

18. Under
the circumstances and in view of the rare and exceptional facts, I am
of the view that present case is eminently fit case to exercise the
jurisdiction under Article 226 of the Constitution of India, more
particularly in view of the consensus on the part of the petitioner
and all the respondents and also in light of the stipulation which
was made by respondent No.3 in his affidavit filed with the
proceedings relating to Special Civil Application No.6445 of 2008, to
direct the respondent No.3 to proceed to take all necessary steps and
action as may be necessary for holding election, by treating the list
of voters forwarded by respondent No.4 on 2nd June 2008 as
a list under Rule 4 of the 1982 Rules.

19. It
is also hoped that considering the delay which has already occurred,
it would be in fitness of things that further delay is not caused and
necessary actions for holding and completing the election, in
accordance with Rules, will be taken as expeditious as possible. In
light of the peculiar facts and in view of the aforesaid discussion,
the petition is allowed to the aforesaid extent and with aforesaid
directions. The earlier list dated 27.11.2007 is to be ignored. Rule
is made absolute to the said extent. Considering the facts, there is
no order for costs.

[K.M.

THAKER, J.]

#Dave

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