SCA/8032/2008 7/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8032 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHAILESHBHAI GOVINDBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR DILIP B RANA for Petitioner(s) : 1, MS TRUSHA PATEL AGP for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR TUSHAR MEHTA for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/06/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
Rule.
Ms.Patel, learned AGP waives service of notice of Rule for
respondents No.1 and 2 and Mr.Mehta, learned Counsel waives service
of notice of rule for respondent No.3. With the consent of the
learned Counsel appearing for both the sides, the matter is finally
heard.
The
petitioner has preferred the petition for the relief, inter alia, to
quash and set aside the decision dated 27.5.2008 ý Annexure ýSAýý
of the Election Officer and it is also prayed that the Election
Officer be directed to prepare voters’ list as per the bye-laws and
the rules for different constituencies as referred to in the memo of
the petition.
Mr.Shelat,
learned Sr. Counsel appearing with Mr.Rana for the petitioner, at
the outset, declared before the Court that the petitioner is
pressing the present petition only for the purpose of maintaining
the challenge that the voters’ list are required to be prepared as
per the constituencies provided in the bye-laws of specified Society
since it provides for two separate constituencies of Utpadak-Members
and General Members (Non-Utpadak-Members).
He also declared before the Court that so far as the other grounds
stated in the petition pertaining to the inclusion or non-inclusion
of certain persons as Utpadak-Members
or as Non-Utpadak-Members
in the voters’ list are concerned, the petitioner, if so advised,
may challenge such action of the election authority after the
election is over as per the remedy provided under Section 145U of
the Gujarat Coop. Societies Act (hereinafter referred to as ýSthe
Actýý) read with the relevant Rules.
We
have heard Mr.Shelat, learned Sr. Counsel with Mr.Rana for the
petitioner and Ms.Patel, learned AGP for the State Authorities
including the Election Officer and Mr.Mehta, learned Counsel for
respondent No.3.
The
principal grievance, on the part of the petitioner, appears to be
that even as per the Rule 4 of the Gujarat Specified Cooperative
Societies Elections to Committees Rules, 1982 (hereinafter referred
to as ýSthe Rulesýý) and more particularly Sub-Rule (1) read with
the other relevant Rules for finalization of the voters’ list, the
voters’ list of a specified Society, whose election is to be held,
is required to be prepared as provided in the bye-laws and the said
aspect in the submission of the learned Counsel for the petitioner
is apparent from the language of the Rule.
It
appears that the learned Counsel for the respondent Society has also
not disputed the requirement of preparation of the voters’ list as
per the constituencies provided in the bye-laws. Even on behalf of
the election officer, the learned AGP is not in a position to
dispute the requirement for preparation of the voters’ list as per
the constituencies provided in the bye-laws.
It
deserves to be recorded that as per Rule 4, the provisional list is
required to be prepared and the language used in Sub-Rule (1) of
Rule 4, relevant of which reads as under:-
ýSIf
different constituencies are provided in the bye-laws, the names of
voters shall be arranged constituency-wise as laid down in the
bye-laws.ýý
The
perusal of the bye-law No.5 providing for membership speaks for two
types of membership; one for Utpadak Membership and another
for General Membership (Non-Utpadak Membership). Bye-law
No.21 provides that the Managing Committee shall be comprising of
total 25 members, out of which 15 representatives shall be from
amongst the members holding Utpadak shares as provided under
Bye-law No.5(a) and one representative shall be from amongst the
Members as provided under Bye-law No.5(b) being General
Members/Non-Utpadak Members.
Therefore,
on conjoint reading of bye-law 5 read with bye-law No.21(a) and (b),
there is considerable force in the submission of the learned Counsel
for the petitioner and as the said aspect is not disputed by the
learned Counsel for the respondent Society, nor on behalf of the
Election Officer, and no other legal position is brought to the
notice of this Court, we find that it may not be necessary for this
Court to further elaborate the reasons on such aspects. Suffice it
to state that as per the Scheme of the relevant Rules read with the
bye-laws, constituencies are required to be prepared of the voters
separately and accordingly the representatives are also required to
be elected from the respective constituencies of the voters’ list.
It
is an admitted position that the Election Officer as such prepared
the voters’ list separately for both the categories of Utpadak
members and General members, however, it appears that the stand of
the Election Officer, as per the impugned order was that the voters
of both the constituencies shall be entitled to cast their vote in
respect of the members to be elected holding Utpadak shares
as well as holding non-Utpadak shares. If the bye-law
provides for separate constituencies and the representation of the
members in the Managing Committee from amongst the voters of
separate constituencies, as a normal principle, only such voters
shall be entitled to elect their representative as per their
constituency. We are inclined to take the aforesaid view since
there is no other provision in the bye-laws brought to our notice,
extending the rights of all the voters in respect of all the
constituencies or enabling them to cast their vote in respect of
election of all the members of the Managing Committee.
The
aforesaid is coupled with the circumstances that even in the past,
the election of the respondent No.3 Society was being held
constituency-wise and the representatives were elected
constituency-wise from amongst the voters of such constituency
separately.
It
is well settled that if without disturbing the election, this Court,
in exercise of its power under Article 226 of the Constitution of
India, is in a position to render justice, such power can be
exercised. As the voting is to take place on 23.6.2008 and as the
voters’ list is already separately prepared by the Election Officer
and as it is an admitted position that the nominations as well as
the candidates, who are to contest election, are separate namely;
from amongst Utpadak-Members and from amongst
Non-Utpadak-Members, if direction is given to the Election
Officer to hold the election constituency-wise for casting the vote
by such members, included in the respective constituencies, it would
not result into arresting the election process and holding of such
election would, on the contrary, result into in accordance with the
statutory Rules read with the Bye-laws.
Hence,
the following orders:-
(a) The
Election Officer shall hold the election of respondent No.3 Society
as per the election programme, copy whereof is produced at Annexure
ýSFýý, keeping in view the observations made hereinabove and shall
permit casting of vote by the voters, included in the respective
constituencies, qua candidates to be elected in that respective
constituencies.
The
learned AGP, on behalf of the Election Officer, has also declared
before the Court that accordingly the election shall be held on
23.6.2008.
It
is clarified that this Court has not gone into the aspect of
genuineness of the respective voters to be included in the
respective constituencies of Utpadak-Members or
Non-Utpadak-Members, as the case may be, since, in any case,
for such question or dispute, there is an express remedy provided
under Section 145U of the Act, after the election is over.
In
view of the above, the impugned order ý Annexure ý A shall stand
modified to the aforesaid extent.
The
petition is partly allowed to the aforesaid extent. Rule made
absolute accordingly. No order as to costs.
(Jayant Patel, J.) 18.6.2008 (Akil Kureshi, J.) vinod