The Nagvasan Dudh Utpadak Sahkari ... vs State Of Gujarat
2021 Latest Caselaw 17 Guj

         C/SCA/16888/2020                                         ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 16888 of 2020

                               With
           R/SPECIAL CIVIL APPLICATION NO. 16922 of 2020
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    THE DASAVA EKTA MAHILA DUDH UTPADAK SAHKARI MANDLI LTD
                             Versus
                     THE STATE OF GUJARAT
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Appearance:
DR VENUGOPAL PATEL(7411) for the Petitioner(s) No. 1
MR. HARIN RAVAL, SENIOR COUNSEL WITH MR DIPEN DESAI(2481) for
the Petitioner(s) No. 1
MS. MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MS. NIDHI
VYAS, AGP , for the Respondent(s) No. 1,2,3,4,5
MR. PRAKASH JANI, SENOR COUNSEL WITH SHIVANG P JANI(8285) for
the Respondent(s) No. 6
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 CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 04/01/2021

                                ORAL ORDER

1 Heard Mr.Harin Raval, learned Senior Counsel with

Mr.Dipen Desai, learned advocate for the petitioners,

Ms.Manisha Lavkumar, learned Government Pleader with

Ms.Nidhi Vyas, learned AGP for the State and Mr.Prakash

Jani, learned Senior Counsel with Mr.Shivang Jani, learned

advocate for respondent No.6.

2 In both these petitions under Article 226 of the

Constitution of India, the orders under challenge i.e. dated

C/SCA/16888/2020 ORDER

22.12.2020 are orders, by which, the nominations for the

delegate of the petitioners' society to stand for elections to the

Board of the Mehsana District Co-Operative Milk Producers

Union Limited have been rejected.

3 As far as Special Civil Application No. 16888 of 2020 is

concerned, there is another order placed on record by the

respondent - Election Officer of 22.12.2020, by which, the

additional ground rejecting the nomination of the petitioner is

rejected. The purported ground is that the delegate of the

petitioner was a member only from 15.06.2019 which was less

than two years as stipulated under the relevant bye law 48.

4 In Special Civil Application No. 16922 of 2020, the order

of rejection of nomination is based on the petitioner society

being classified as class "C". The government would rely on

bye law 48(2)(A)(h) and submit that in accordance with the

bye law, since the society is downgraded to audit Class "C', it

no longer can either contest the elections or vote.

5 Mr.Harin Raval, learned Senior Counsel, would draw the

attention of the Court in submitting that the timing of the

downgrading is relevant and done purportedly with a view to

C/SCA/16888/2020 ORDER

oust the nomination of the petitioner society. He would invite

the attention of the Court to pages 20(A) and 20(B) to submit

that, though the Audit Report at page 170 bears the date

08.12.2020, the date of passing as per the postal stamp was

19.12.2020. He would dispute the date of certificate as

01.12.2020 on the ground that the government stand that the

petitioner was aware on 14.11.2020 is misconceived in view of

the documents at pages 139 to 159 that would show the date

of print as 28.11.2020. Reliance was placed on Section 84 as

well as Rule 38(B) of the Societies Rules on the question of

the mode of audit.

6 Ms.Manisha Lavkumar, learned Government Pleader,

would rely on the affidavits filed, which would indicate that

apart from the preliminary objections that this was a

sponsored litigation and since the nominee has not come forth

before this Court, the petition was not maintainable, she

would draw the attention of the Court on the procedural

aspect of the affidavit to show that the audit report was well

served and since it was for the period from 01.04.2019 to

31.03.2020, it cannot be said that the communication and the

exercise of audit was engineered so as to oust the delegate of

the petitioner society. It is submitted that, it is not the

C/SCA/16888/2020 ORDER

petitioners who have been singled out, but 61 or odd societies

have been dispatched the service of audit.

7 As far as Special Civil Application No. 16888 of 2020 is

concerned, here also the primary contention of Shri Raval,

learned Senior Counsel, would be that the audit report of the

certificate of 14.12.2020 has been engineered so as to oust

the delegate of the petitioner society to contest from the

elections to the Board of the Mehsana District Co-Operative

Milk Producers Union Limited.

8 Ms.Manisha Lavkumar, learned Government Pleader,

would rely on the affidavit and the audit and submit from the

dates that it was the petitioners, who sought time though the

society was aware as early as on 19.11.2020. She would also

submit that as far as an alternative ground of rejection of the

nomination paper on not possessing the qualification is

concerned, even otherwise that order was also dated

22.12.2020 and was served at 07:20 p.m. The petitioner has

suppressed the material fact and the second objection which

was upheld by the election officer and if the Court even

otherwise was not to accept submission of rejection of

nomination on the ground of the audit classification, the other

C/SCA/16888/2020 ORDER

order of 22.12.2020 (page 183) would suffice to oust the

petitioner.

9 Mr.Raval, learned Senior Counsel, would place reliance

on Rule 23 to submit that the Election Officer has to deal with

all objections at one stage.

10 The petitioners have placed extensive reliance on an

interim order passed by this Court, wherein, the contentions

raised by the contesting counsels were raised i.e. the modus

operandi of audit classification being used and the preliminary

objection of the respective counsel for the respondents with

regard to the maintainability of the petition on the ground of

alternative remedy under Section 153, 155 of the Gujarat Co-

operative Societies Act and also with regard to Section 145 U

of filing an election petition.

11 Albeit the order is an interim order but it certainly has

pursuasive value of this Court, essentially because the court

in extensive dealing with the questions of law has given its

findings with regard to negating contention of alternative

remedy. Para 44 .4 of the same reads as under:

"44.4 It is correct to say on the part of the respondent that the decision of the said member to contest or not to

C/SCA/16888/2020 ORDER

contest the election while representing his primary co- operative society is upon him and the said society cannot insist upon the member to contest the election or to become a proposer or seconder to anybody in the election. However, it is incorrect to say that member/nominee exercising the discretion and the primary co-operative society has no control thereon. Since the member/representative/nominee has no independent right other than being a member of the society and therefore, even if the nominee/representative is aggrieved by the class given to the society, it cannot challenge such classification as the classification is given to the society and not to the member. It is an unacceptable proposition put-forth by the State that the petitioner Society under the guise of the present petition seeks to represent the so-called interest of the third party/ member /nominee / representative officer, who is not before the Court. If the representative independent of the society would have chosen to approach this Court questioning and challenging the classification given to the society, the same could not have been sustained, if there would have been no challenge by the co-operative society itself."

12 Considering the fact and the dates, what is evident is

that the action of the respondents - State while issuing a

Certificate of 14.12.2020 in case of both the petitioners of

downgrading the audit to Class "C', when seen with the

proximity of the dates, election programme cannot deter this

Court from applying its mind in concluding prima facie that

the exercise was entirely malafide exercise of power. Notice

under Rule 6 for publication of the voters list was given on

01.12.2020. The list was finalized on 11.12.2020 for the

period from 01.04.2019 to 31.03.2020. Wisdom dawned on the

auditor to carry out an audit from 01.10.2019 to 31.03.2020 in

C/SCA/16888/2020 ORDER

November 2020 in both societies. From the pleadings it is

apparent that the State was conscious that the elections were

due and were postponed due to Covid-19. That eventuality has

been accepted by the respondent-State in engineering an

audit classification "C" in case of both the petitioner societies

in support of the bye law of the Society. This Court in the case

of Shankerbhai Jesangbhai Chaudhari vs. State of

Gujarat., in Special Civil Application No. 19046 of 2015, vide

judgment dated 04.11.2015 has categorically observed that a

bye law as such cannot go beyond the proviso to sub-section 3

of section 27 of the Act. It disqualifies a society to vote or

contest elections. Para 15 of the judgment reads as under:

"15. However, the question needs to be considered is what meaning is to be ascribed to the words "last audit"

used in bye law No. 48(2) (A)(h). As per the provisions made in this bye law, member society placed in audit Class C or D at the time of last audit shall not be qualified to be elected as member of the Managing Committee (Board of Directors). The voters list was finalized on 21.10.2015. Therefore, for the purpose of election, if last audit is considered for the year from 1.4.2014 to 31.3.2015, the petitioner may be said to have incurred disqualification. However, the last audit of the earlier year is considered, the petitioner is not be considered to have incurred disqualification. Rule 4 of the Rules provides for provisional list of voters in the society for the year in which the general election is due to be held. Persons who are members as on the date of drawing up the accounts of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye laws, the names of voters shall be arranged constituency wise as laid down in the bye laws. As per rule 3 of the Rules, the

C/SCA/16888/2020 ORDER

District Registrar shall every year within ninety days before drawing up the accounts report to the Collector the names and addresses of the societies in his District in which the elections are to be held and there are other steps provided for finalization of the voters list. Reading the above said provisions of the Rules with section 27 of the Act which provides for right to vote, it could be said that the right to contest the election is relatable to finalization of the voters list though right to vote and right to contest the election are two different things. Thus, for the purpose of deciding the disqualification, it has to be relatable to the time of finalization of voters list especially for the member society. When as per the proviso to sub section (3) of section 27 of the Act, no member society shall exercise their right to vote at election of member of a committee unless such society has its last accounts audited in Class A,B and C, the right to contest could be relatable only to the classification given when voters list is finalized. In that context, audit report of the society is to be considered. Therefore, class of audit given in the last audit done for the year for which the voters list is finalized is to be considered. Undisputably, in the present case, the voters list finalized was for the year ended with 31.3.2014 and the year ending with this date is the relevant year for considering the last audit for the purpose of deciding the question of disqualification. When the voters list was finalized i.e. on 21.10.2015, the society of the petitioner was not rendered disqualified since it was already having Audit Class A and B and thereafter, election program was issued, therefore, classification of audit held by the society of the petitioner as on 31.3.2014 was the relevant audit classification for the purpose of deciding on the aspect of disqualification under bye law No. 48(2)(A)(h) of the Union. The petitioner, therefore, cannot be said to have incurred any disqualification to contest the election of the managing committee of the union. The election officer would assume power, authority or jurisdiction under rule 23 only when there is a disqualification but if there is no disqualification and there are no other grounds for rejection of the nomination,then, he can be said to have no jurisdiction to reject the nomination of the petitioner. Rejection of nomination of the petitioner by the Election Officer by order dated 9.11.2015 is therefore, invalid and bad in law and is required to be quashed and set aside."

           C/SCA/16888/2020                                  ORDER



13       Considering these issues, Rule. Learned counsels

appearing for the respective parties waive service of rule on

behalf of the respective respondents. There shall be interim

relief in terms of paras 6(C), 6(CC) and 6(D) in both matters.

Learned Government Pleader has requested to

communicate the compliance of the order passed today to the

concerned authorities.

It is needless to say that the elections that may be

held, shall be subject to the final outcome of these petitions.

To be heard with Special Civil Application No. 16464 of 2020.

(BIREN VAISHNAV, J) BIMAL B CHAKRAVARTY