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SCA/11424/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11424 of 2008
=========================================================
SAYAR
VIVIDH KARYAKARI SHAHKARI MANDALI LIMITED & 8 - Petitioner(s)
Versus
STATE
OF GUJARAT & 8 - Respondent(s)
=========================================================
Appearance
:
MR
TUSHAR MEHTA, Sr Advocate with Mr VC VAGHELA for
Petitioners
MS ARCHANA RAVAL AGP for Respondent(s) : 1-4
MR ND
NANAVATI Sr Advocate with Mr DILIP B RANA for Respondents
5-9.
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CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE 24th September, 2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M. DOSHIT)
Rule
returnable today. Learned advocates Ms. Archana Raval and Mr.
Dilip B. Rana appear for and waive service of rule on behalf of the
concerned respondents.
This
petition under Article 226 of the Constitution has been
preferred by the nine societies [hereinafter referred to as, the
Societies ] which are members of the Karjan Cooperative
Cotton Sales, Ginning & Pressing Society Limited, a specified
society within the meaning of Section 145-B [c] read with
Section 74-C of the Gujarat Cooperative Societies Act, 1961
[hereinafter referred to as, the Act ].
Pursuant
to the election programme declared for the aforesaid Karjan Society,
the Societies had sent names of their delegates to be included in the
electorate. The said names were accepted by the Election Officer. The
names of the said delegates were included in the provisional list of
voters. Feeling aggrieved, the respondents nos. 5 to 9 lodged
objection against inclusion of the delegates of the Societies in the
list of voters. The said objections were considered by the Election
Officer. By impugned order dated 5th September,
2008, the said objections were upheld. The delegates of the
petitioner-Societies have been ordered to be removed from the voters’
list. Feeling aggrieved, the Societies have preferred the present
petition.
It
appears that in respect of the Societies, by Orders made by the
competent authority, the concerned managing committees have been
superseded and an administrator has been appointed as envisaged by
Section 81 of the Act. The grievance of the objectors was that the
delegates sponsored by the Societies were selected by the managing
committees which are superseded. The said delegation was, therefore,
not legal and valid. Such delegates could not have been included in
the voters’ list.
It
is not in dispute that the concerned managing committees have been
superseded and an administrator has been appointed. It is also not in
dispute that except for the petitioner no. 8-Malod Vividh Karyakari
Sahakari Mandali Limited, the names of the delegates were selected by
the managing committee of the concerned society. The said action of
the managing committee of the concerned society was later on ratified
by the general body by its resolution passed in the month of June,
2008.
Mr.
Mehta has appeared for the petitioners. He has submitted that 19th
May, 2008 was the last date for sending the names of the delegates of
the member-societies. He has relied upon rule 5 of the Gujarat
Cooperative Societies Election to Committees Rules, 1982. In the
submission of Mr. Mehta, the said rule 5 allows a member society to
change the name of its delegate upto the sixth day before the date
appointed for making nominations. The action of the managing
committees of the Societies having been ratified by the general body,
upto the sixth day before the date appointed for making nominations,
the delegation made by the Societies was valid. The names of such
delegates ought to be included in the voters’ list.
Mr.
Nanavati has contested the petition. He has referred to certain
resolutions and the information submitted by the Societies. He has
pointed out the discrepancies in the alleged dates of the meetings
of the managing committees of the societies, the dates of the
resolutions, etc. He has submitted that such discrepancies make the
genuineness of these resolutions doubtful.
It is not in dispute that the names of the delegates were
selected by the managing committees which are superseded by order of
the competent authority. Such managing committees are, therefore,
non-est in eye of law. Any action taken by such managing
committees are equally non-est. The delegation made by the
managing committees of the Societies was without the authority of law
and was non-est in the eye of law. Subsequent ratification of
such decision by the general body would not legalize the illegal
action of the managing committees. The said lacuna could not
have been filled-in by resorting to the power to change the names of
the delegates conferred by the aforesaid Rule 5. We are, therefore,
of the opinion that the impugned decision of the Election
Officer does not warrant interference; except for the petitioner no.
8-Malod Vivid Karyakari Sahakari Mandali Limited.
For the aforesaid reasons, the petition is partly
allowed. The impugned order dated 5th September,
2008 passed by the Election Officer is set-aside in respect of
the petitioner No.8-Malod Vividh Karyakari Sahakari Mandali Limited.
For the rest of the petitioner-Societies, the said order is
confirmed.
Rule
is made absolute in the above terms. It is clarified that this order
shall not preclude any of the parties from challenging the election,
if need be, on available grounds.
{Miss
R.M Doshit, J.}
{Sharad
D. Dave, J.}
Prakash*
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