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SCA/820/2010 6/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 820 of 2010
==================================================================
DAMOR
DIPAKBHAI JAGDISHCHANDRA - Petitioner(s)
Versus
STATE
OF GUJARAT, THROUGH DEPUTY COLLECTOR & ELECTION OFFICR & 2 -
Respondent(s)
=========================================================
Appearance
:
MR
KV SHELAT for
Petitioner(s) : 1,
MR PK JANI GOVERNMENT PLEADER with MS JIRGA
JHAVERI ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
MR
KM PATEL for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 05/02/2010
09/02/2010
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
Heard
the learned advocates. With the consent of the learned advocates, the
petition is heard and decided today.
This
petition under Article 226 of the Constitution is filed by one
Dipakbhai Jagdishchandra Damor against the decision of the authorised
officer in upholding the objection raised by the respondent no. 3 and
in rejecting the nomination filed by the petitioner for contesting
election to the Board of Directors of Sabarkantha District
Co-operative Bank Limited-the respondent no. 2 (hereinafter referred
to as the Bank ).
The
petitioner is a member of the managing committee of one Dhandhasan
Group Seva Sahkari Mandali Limited (hereinafter referred to as the
Dhandhasan Society ), a Primary Co-operative Society registered
under the Gujarat Co-operative Societies Act, 1961 (hereinafter
referred to as the Act ). The Bank is a specified society
within the meaning of Section 74-C read with Section 145-B of the
Act.
Pursuant
to the election programme declared by the authorised officer, the
petitioner filed his nomination for contesting election to the Board
of Directors of the the Bank. The petitioner’s name had been included
in the preliminary list of voters at serial no. 25 as Damor
Dipakbhai Jagdishchandra . The respondent no. 3 raised objection
against the nomination filed by the petitioner. Pursuant to the said
objection the authorised officer by his order dated 27th
January 2010 rejected the nomination of the petitioner. According to
the authorised officer, the nomination of the petitioner was in
contravention of the election rules 3(1); 3(4); 3(16); 3(18). Feeling
aggrieved the petitioner has preferred the present petition.
Mr.
Shelat has taken us through the record, counter affidavits and the
rejoinder. He has referred to the election rules of the Bank,
particularly the rules under which the petitioner has been
disqualified. Mr. Shelat has submitted that the petitioner answered
all the requirements for contesting election to the Board of
Directors of the Bank. He has submitted that the petitioner is a
member of the Managing Committee of the Dhandhasan Society. The
Dhandhasan Society is a member of the Bank. The petitioner is,
therefore, eligible to contest the election. He has submitted that
the petitioner’s original name was Damor Naileshkumar
Jagdishchandra which he had changed to Damor Dipakkuamr
Jagdishchandra as early as in the year 2002. The Notification to
that effect was published in the Gujarat Government Gazette on 29th
August 2002. The petitioner had also produced evidence that the
petitioner was a member of the Dhandhasan Society for last 10 years.
The Dhandhasan Society had passed resolution to nominate the
petitioner to vote for and to contest the election to the Board of
Directors of the Bank; that the Dhandhasan Society had no pending
claim against the petitioner; that the petitioner had no outstanding
dues to the Bank. The petitioner’s name was proposed by one
Manharbhai Hotha . The said Manharbhai Hotha is a member
of one Ritoda Thuravas Group Seva Sahakari Mandali Limited, a member
Primary Co-operative Society. The said Ritoda society had passed
resolution permitting the said Manharbhai Hotha to propose the name
of the petitioner for election to the Board of Directors of the Bank.
The said proposal was seconded by one Gameti Chunilal Manjibhai. The
said Gameti Chunilal Manjibhai is a member of one Merawada (Khari)
Seva Sahakari Mandali Limited a Primary Co-operative Society and a
member of the Bank. The said Merawada Society had passed resolution
permitting the aforesaid Gameti Chunilal Manjibhai to second the name
of the petitioner for contesting election to the Board of Director of
the Bank. In the submission of Mr. Shelat not only the petitioner is
eligible for contesting the forthcoming election but he has completed
all the formalities. The rejection of the nomination of the
petitioner is illegal and is made on the ground legally not
sustainable. Not only the nomination does not suffer from the
infirmities referred to in the impugned communication, but the
petitioner answers all requirements. Therefore, there should not be
any reason not to accept the nomination filed by the petitioner. In
support of his submission Mr. Shelat has relied upon the judgment of
the Hon’ble Supreme Court in the matter of Election Commission of
India vs. Ashok Kumar & others [2000 (8) SCC 216] and of this
Court in the matter of Ukabhai Jivabhai Kanjaria vs. State of
Gujarat & ors [2007(2) GLH 242].
In
response to the notice issued by this Court, the petition is
contested by the authorised officer through learned Government
Pleader Mr. P.K. Jani and by the objector through learned advocate
Mr. K.M. Patel.
At
the outset, Mr. P.K. Jani has submitted that the petition is not
maintainable. He has submitted that the petitioner’s name was not
properly proposed or seconded by an appropriate resolution passed by
the concerned society. He has questioned veracity of the resolution
produced by the petitioner. Mr. Jani has relied upon the election
rules. In the submission of
Mr. Jani the resolution purportedly passed by the Merawada Society
is a mere letter and does not comply with the requirement under rule
16 of the election rules. He has submitted that though
the petitioner has changed his name from Naileshkumar to that
of Dipakkumar , he is also known as Dilipkumar . Thus the
petitioner does not have reliable identity nor can he be permitted to
contest the election. Nor the aforesaid Chunilal Gameti was
authorized to second the nomination of the petitioner. In support of
his submission Mr. Jani has relied upon the judgment in the matter of
Gujarat State Co-operative Bank Limited & anr vs. State of
Gujarat & ors [2009 (1) GLH 371].
Learned
advocate Mr. K.M. Patel has appeared for the respondent no. 3- the
objector. He has contested the petition and has supported the
impugned order made by the authorized officer.
Mr.
K.M. Patel has submitted that the impugned order is erroneous in so
far as reference is made to election rule 3(4). He has relied upon
election rules and submitted that the petitioner is not disqualified
under election rule 3(4) but under rule 3(3). He has also relied upon
the prevalent bye-laws of the Bank. He has submitted that the
prevalent bye-laws require that if the society which the contestant
represents is indebted to
the Bank or any other society affiliated to the Bank, such member is
disqualified from contesting election. He has submitted that the
Dhandhasan Society is indebted to one Shamlaji Vibhagiya Sahakari
Kharid Vechan Sangh Limited. Hence, the petitioner who represents the
Dhandhasan Society is disqualified to contest election to the Board
of Directors of the Bank. He has also challenged the veracity of the
resolution purportedly passed by the Merawada Society. He has
submitted that the Merawada Society had not met on 22nd
January 2010, nor the aforesaid Gameti Chunilal Manjibhai was
authorized to second the nomination of the petitioner.
9/2/2010
As
the seconding of the petitioner’s nomination by the aforesaid Gameti
Chunilal Manjibhai is seriously in dispute, we had given opportunity
to the petitioner to produce the original resolution before the
Court. Learned advocate Mr. Shelat has failed to produce the original
resolution.
In
the aforesaid fact situation, we do not examine larger issue whether
the petitioner is disqualified on account of Dhandhasan Society being
indebted to the aforesaid Shamlaji Vibhagiya Sahakari Kharid Vechan
Sangh Limited. We hold that the petitioner’s name was not properly
seconded by a person duly authorized by the society, which he
represents. Unless the petitioner’s name was properly proposed and
seconded, his nomination could not have been accepted. The decision
of the authorized officer to reject the nomination of the petitioner
does not warrant interference.
For
the aforesaid reasons, we dismiss the petition. Notice is discharged.
(Ms.
R.M. Doshit,J.)
(K.M.Thaker,J.)
Suresh*
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