{"id":9462,"date":"2008-06-13T00:00:00","date_gmt":"2008-06-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ahmedabad-vs-state-on-13-june-2008"},"modified":"2016-10-22T08:44:40","modified_gmt":"2016-10-22T03:14:40","slug":"ahmedabad-vs-state-on-13-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ahmedabad-vs-state-on-13-june-2008","title":{"rendered":"Ahmedabad vs State on 13 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ahmedabad vs State on 13 June, 2008<\/div>\n
Bench: K.M.Thaker<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nSCA\/8063\/2008\t 9\/ 11\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8063 of 2008\n \n\n \n=========================================================\n\n \n\nAHMEDABAD\nDISTRICT CO OPERATIVE BANK LTD - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 3 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nTUSHAR MEHTA for\nPetitioner(s) : 1, \nGOVERNMENT PLEADER for Respondent(s) : 1, \nDS\nAFF.NOT FILED (N) for Respondent(s) : 1 - 3. \nHL PATEL ADVOCATES\nfor Respondent(s) :\n4, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/06\/2008 \n\n \n\nORAL\nORDER<\/pre>\n
1.\tIn
\nthis petition, notice was issued on 5\/6\/2008 and on 6\/6\/2008, order
\ngiving certain directions was passed. Then reply affidavit is filed
\nby the respondent No.4. Considering the issues, petition requires to
\nbe considered. Hence, RULE.\n<\/p>\n
Upon request of the advocates for respective parties and with their
\nconsent, petition is taken up for hearing and final disposal today.\n<\/p>\n
2.\tThe
\npetitioner is co-operative bank registered under the provisions of
\nThe Gujarat Co-operative Societies Act, 1961 (hereinafter referred to
\nas ‘the Act’) and is also ‘Central Bank’ within the meaning of
\nSection 2(3) of the Act. The petitioner has, by way of this petition
\nunder Article 226 of the Constitution of India, approaches this Court
\nwith a prayer for direction to respondent No.3 to publish provisional
\nlist of voters as contemplated under Rules 4, 5 and 6 of the Gujarat
\nSpecified Co-operative Societies Election to Committees Rules, 1982
\n(hereinafter referred to as ‘the Rules, 1982’) as per the list
\nsupplied by respondent No.3 on 2nd June 2008.\n<\/p>\n
3.\tSo
\nas to appreciate the purport of the said prayer and the reason as to
\nwhy the petitioner has come out with prayer for such a relief, it is
\nnecessary to consider factual background in which the petition is
\npreferred.\n<\/p>\n
4.\tIt
\nis the case of the petitioner that the elections for respondent No.4
\n\u00fd  Corporation are due and therefore, as per the Rules 4, 5 and 6 of
\nthe Rules, 1982, it was necessary to publish the provisional list of
\nvoters.  The petitioner has stated that there are about the 6109
\nCo-operative Societies which are member of respondent No.4 \u00fd
\nCorporation. The petitioner has also stated that at the relevant
\npoint of time, the respondent No.4 was under control of the
\nadministrator appointed by the respondent No.2. At present also the
\nsaid respondent No.4 \u00fd  Corporation is, since April 2004, under
\ncharge of custodian appointed by respondent No.2. The petitioner has
\nfurther stated that the provisions of Section 74-C are attracted in
\nthe present case and therefore, the election of the Managing
\nCommittee is required to be held in accordance with Chapter \u00fd  XI-A
\nof the Act r\/w. relevant provisions under the 1982 Rules by
\nrespondent No.3 and so as to facilitate the said process, the
\nrespondent No.4 had, on 27.11.2007, forwarded a provisional list of
\nvoters to the respondent No.3 through District Registrar. The said
\nlist, the petitioner claims, was notified on 28th March
\n2008 as provisional list of voters and proposed detailed programme
\n(Page 81) was published and the said Notification Contained Programme
\nfor hearing of the objections regarding said voters list and also the
\nprogramme for election.\n<\/p>\n
5.\tIt
\nis asserted by the petitioner that after the publication of the said
\nprovisional list of voters, several complains about the errors and
\ninaccuracy in the said list were received and even respondent No.3
\nalso received more than hundred objections. The objections, it is
\nclaimed, were based on various grounds; one of which was that it
\ncontained names of voters\/representatives who were either not members
\nor had died.\n<\/p>\n
6.\tIt
\nis further case of the petitioner that these aspects were brought to
\nthe notice of respondent No.3 and it was represented that instead of
\nindividually in forming the member societies to send the names of
\ntheir delegates the respondent No.4 had merely published a small
\nadvertisement by which the respondent No.4 sought response from the
\nmember societies. In short, the case of the petitioner is that the
\nprovisional list which was forwarded was prepared on the basis of
\ndetails existing on the record of respondent No.4 as on 1997-98 and
\nthat therefore, it did not reflect the correct and complete position
\nas it should in 2008 i.e. when the election is scheduled to be held.
\nThe petitioner has emphasised that errors in the list were so
\nobvious, apparent and serious that even the respondent No.3 had taken
\nnote and conveyed that it was not possible to prepare the final list
\non basis of such list\/details and then an order dated 11th
\nApril 2008 came to be passed by him expressly stating therein that it
\nwas not possible to publish the final voters’ list in view of the
\ndiscrepancies and errors.\n<\/p>\n
7.\tIt
\nappears that the said order dated 11th April 2008 was
\nchallenged by one Shri R.T. Shah by way of a petition being Special
\nCivil Application No.6445 of 2008, wherein, the respondent No.4 \u00fd
\nCorporation was not joined. In the said proceedings, the petitioner
\nhad preferred a Civil Application and ultimately, on the basis of the
\nreply affidavit filed by respondent No.3 in order dated 17th
\nApril 2008 was passed. What is relevant in present petitioner is that
\nin the said reply affidavit, respondent No.3 had stipulated as under
\n:\n<\/p>\n
\u00fdSI
\nsay and submit that the present deponent will wait till 31.05.2008
\nfor clarification from the Managing Director of the Gujarat State
\nCo-operative Housing Finance Corporation Ltd. If any
\nreply\/clarification comes from the concerned society he will take
\ndecisions after considering the clarification, if any
\nreply\/clarification not received by them the final voter list will be
\nnotified considering available records and materials on or before
\n07.06.2008. Then after he will proceed with the election program as
\nper the rules. The present deponent has shown his bonafide and
\nprepared a proposed election program as per the Rule 16 of Gujarat
\nSpecified Co-operative Societies Election to Committee Rules, 1982
\nand he will conduct the election on dated 10.07.2008 as per the
\nproposed election program. The copy of the proposed election program
\nis annexed and marked as Annexure R V in this reply.\u00fd\u00fd<\/p>\n
8.\tThe
\npetitioner has stated that after the aforesaid development, it was
\nnecessary for respondent No.4 to immediately forward a revised
\nvoters’ list to the respondent No.3. For the said purpose and after
\nrealising that the small advertisement, which was published by it
\nearlier would not serve any purpose, the respondent No.4 sent
\nindividual communications, as required under Rules 5(2) of the Rules,
\n1982, to the member societies seeking their resolutions appointing,
\ntheir delegates.\n<\/p>\n
9.\tIn
\nthis background, the respondent No.3 had again forwarded a
\ncommunication dated 15th April 2008 to respondent No.4 and
\ninvited duly verified voters list so as to enable him to take further
\nsteps for election.\n<\/p>\n
10.\tThe
\nrespondent No.4 has filed reply affidavit in present petition,
\nwherein, the respondent No.4 has stated in Para 5 and 6 which are
\nquoted as under :\n<\/p>\n
\u00fdS5.\n<\/p>\n
I say that the respondent No.4 after following the requirements as
\nprescribed in \u00fdSThe Gujarat Specified Co-Op. Societies Elections to
\nCommittees Rules, 1982,\u00fd\u00fd (for short Rules, 1982) prepared the
\nprovisional list of voters again  and second time, the same is sent
\nto the respondent No.3 on 2nd June 2008. I say the
\ncontention of the petitioner that the earlier list of voters was
\nprepared by the respondent No.4 without intimating its member
\nsocieties about sending of their delegates is not correct. In fact,
\nthe respondent No.4 by way of public notice published in newspaper
\ndaily \u00fdSDivya Bhaskar\u00fd\u00fd in its issue dated 27\/11\/2007 intimated its
\nmember societies to submit the name of their delegates for purpose of
\nthe election of the respondent No.4. I say that whole process of
\npreparation of the provisional list of voters of the respondent No.4
\nis provided and carried out, out with a view to ensure the election
\non the basis of scrutinized list of voters so as to remove any error
\nin the provisional list.\n<\/p>\n
6.
\nI, therefore, reiterate  that apprehension of the petitioner that
\nthe election of the respondent No.4 will be held on the basis of
\nfirst list of voters of 2007 is not correct. Of course, it is for the
\nrespondent No.3 to make clarification for the same. I say that the
\nelection of the respondent No.4 will be held on the basis of the
\nscrutinized list after following prescribed procedure given under the
\nRules, 1982 prepared for the election of respondent No.4 and the same
\nis forwarded to respondent No.3 on 2nd June 2008.\u00fdS<\/p>\n
11.\tFrom
\nthe said assertion of respondent No.4, it becomes clear that now the
\nrespondent No.4 has forwarded to respondent No.3, the duly revised \/
\nverified provisional list of voters on 2nd June 2008.\n<\/p>\n
12.\tIn
\nthis background, the petitioner has now claimed that since the
\nprovisional voters’ list which was forwarded earlier was infected
\nwith errors, as a result which it became necessary to revise or
\nupdate the same, and since now that exercise has been undertaken and
\na revised list has been forwarded by respondent No.4 to respondent
\nNo.3 on 2nd June 2008, it is statutorily required that the
\nlist received by respondent No.3 on 2nd June 2008 be
\npublished as provisional list of voters and the procedure as required
\nby virtue of Rules 4, 5 and 6 may be commenced on the basis of the
\nsaid voters list by treating the same as provisional voters list.\n<\/p>\n
13.\tIn
\nsupport of the submissions, the petitioner has placed reliance of the
\njudgment reported in 2003 (2) GLH 459 in case of Valsad
\nDistrict Central Co-operative Bank Ltd.,
\nwherein, the Hon’ble Court has observed as under :\n<\/p>\n
\u00fdS…In
\nmy view  the whole process of preparation of the provisional voters
\nlist upto the stage of deciding the objections i.e. upto 8th
\nNovember 2001  is vitiated and if it is allowed to stand, it would
\nresult into keeping away more than 50% of the voters from their legal
\nright to vote and participate at the election of the members of the
\nmanaging committee. If the action is found to be ab-initio void
\nof preparing the voters list and the finalisation of the objections
\nand is resulting into frustrating the basic principles of democracy,
\n it can hardly legitimately be contended that the process of
\npreparation of the voters list which continued upto 8-11-2001 should
\nbe allowed to be continued further when this court ultimately in
\nview of the aforesaid discussion finds that  the provisional voters
\nlist will have to be prepared afresh by giving proper and legal
\neffect to the bye-laws as existing on 31-3-2001.\u00fdS (emphasis
\nsupplied)<\/p>\n
14.\tIn
\nthe background of such facts and circumstances and after the
\naffidavit of respondent No.4, a consensus is arrived at between the
\npetitioner on one hand and the respondent No.1, 2 and 3 on the other
\nhand. However, it appears that the respondent No.3 finds himself in a
\ndilemma because in his view, once he received the provisional voters’
\nlist, he is supposed to proceed further on that premise and he, on
\nhis own, is not authorised to act upon the list forwarded by
\nrespondent No.4 on 2nd June 2008 by treating the same as a
\nprovisional list and to start the process again on that basis.\n<\/p>\n
15.\tThe
\npetitioner, therefore, has requested that in view of the consensus
\narrived at between the all concerned parties i.e. the petitioner and
\nall respondents, appropriate directions to respondent No.3 may be
\nissued, so that, the list forwarded by respondent No.4 on 2nd
\nJune 2008 may be acted upon.\n<\/p>\n
16.\tFrom
\nthe facts obtaining on record as of now, more particularly in light
\nof the order dated 11th April 2008 issued by respondent
\nNo.3 and the communication dated 15th April 2008 issued by
\nrespondent No.3, it appears that the provisional list of voters which
\nwas forwarded earlier i.e. on 27.11.2007 on the basis of which the
\nnotification dated 28.3.2008 was issued, was infected with error and
\ndiscrepancies and that therefore, it would not be justified or legal
\nto permit the process for election to proceed on the basis of the
\nsaid list or notification. Otherwise several members are likely to be
\ndeprived of their right to vote and that would ultimately vitiate the
\nentire election. It would hardly be legal or justified to allow such
\nsituation to arise. It is prudent to nip such error in the bud.\n<\/p>\n
17.\tSince,
\nthe programme of election which was published earlier was only a
\nprovisional programme and since in view of respondent No.3 also, the
\nprovisional list was erroneous and could not have been acted upon,
\nthis case fits into the category of the rarest of the rare case,
\nwherein, the Court may intervene in the election process so as to
\narrest any apparent irregularity or illegality, which, if not
\narrested at this stage and allowed to exist, would, ultimately,
\nvitiate the election.\n<\/p>\n
18.\tUnder
\nthe circumstances and in view of the rare and exceptional facts, I am
\nof the view that present case is eminently fit case to exercise the
\njurisdiction under Article 226 of the Constitution of India, more
\nparticularly in view of the consensus on the part of the petitioner
\nand all the respondents and also in light of the stipulation which
\nwas made by respondent No.3 in his affidavit filed with the
\nproceedings relating to Special Civil Application No.6445 of 2008, to
\ndirect the respondent No.3 to proceed to take all necessary steps and
\naction as may be necessary for holding election, by treating the list
\nof voters forwarded by respondent No.4 on 2nd June 2008 as
\na list under Rule 4 of the 1982 Rules.\n<\/p>\n
19.\t\tIt
\nis also hoped that considering the delay which has already occurred,
\nit would be in fitness of things that further delay is not caused and
\nnecessary actions for holding and completing the election, in
\naccordance with Rules, will be taken as expeditious as possible. In
\nlight of the peculiar facts and in view of the aforesaid discussion,
\nthe petition is allowed to the aforesaid extent and with aforesaid
\ndirections. The earlier list dated 27.11.2007 is to be ignored. Rule
\nis made absolute to the said extent. Considering the facts, there is
\nno order for costs.\n<\/p>\n
[K.M.\n<\/p>\n
THAKER, J.]<\/p>\n
#Dave<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-9462","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAhmedabad vs State on 13 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ahmedabad-vs-state-on-13-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ahmedabad vs State on 13 June, 2008 - 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