Jamnagar District Cooperative ... vs State Of Gujarat
2021 Latest Caselaw 69 Guj

         C/LPA/975/2020                                    ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 975 of 2020

         In R/SPECIAL CIVIL APPLICATION NO. 13298 of 2020

                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 975 of 2020
                               With
             R/LETTERS PATENT APPEAL NO. 980 of 2020
                                In
            SPECIAL CIVIL APPLICATION NO. 13286 of 2020
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 980 of 2020
                                In
            SPECIAL CIVIL APPLICATION NO. 13286 of 2020
==========================================================
           JAMNAGAR DISTRICT COOPERATIVE BANK LTD
                            Versus
                     STATE OF GUJARAT
==========================================================
Appearance:
MR DAXAY D PATEL(6633) for the Appellant(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3,4,5,6,7
==========================================================

 CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MR. JUSTICE ILESH J. VORA

                      Date : 05/01/2021
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. Since the issues raised in both the captioned appeals are the same; the challenge in both the appeals is also to a common judgment and order passed by a learned Single Judge of this Court and the parties are also the same, those were taken up for hearing analogously.

C/LPA/975/2020 ORDER

2. The Letters Patent Appeal No.975 of 2020 is at the instance of the original writ­applicant of the Special Civil Application No.13298 of 2020 viz.The Jamnagar District Cooperative Bank Ltd., whereas, The Letters Patent Appeal No.980 of 2020 is at the instance of the original writ­ applicants of the Special Civil Application No.13286 of 2020 i.e.the 12 Primary Cooperative Societies.

3. In the Special Civil Application No.13298 of 2020, the following reliefs have been prayed for:­

(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 14.10.2020 passed by the Election Officer and Prant officer, Jamnagar (City)­ respondent no.3 (Annexure­DD) for the reasons stated in the memo of the petition, in the interest of justice;

(B) Pending admission, hearing and final disposal of the above Special Civil Application, Your Lordships may be pleased to stay the operation, implementation and execution of the impugned order dated 14.10.2020 passed by the Election Officer and Prant officer, Jamnagar (City)­ respondent no.3 (Annexure­DD) for the reasons stated in the memo of the petition, in the interest of justice; (C) To grant ad­interim relief in terms of Para 46(B) hereinabove for the reasons stated in the Memo of Petition.

(D) ................

4. In the Special Civil Application No.13286 of 2020, the following reliefs have been prayed for:­

"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 14.10.2020 passed by the Election Officer and Prant Officer, Jamnagar (City)­ respondent no.3 (Annexure­Z) for the reasons stated in the memo of the petition, in the interest of justice;

(B) Pending admission, hearing and final disposal of the above Special Civil Application, Your Lordships may be pleased to stay the operation, implementation and execution of the impugned order dated 14.10.2020 passed by the Election Officer and Prant Officer, Jamnagar (City)­ respondent no.3 (Annexure­Z), for the reasons stated in the memo of the petition, in the interest of justice;

C/LPA/975/2020 ORDER

(C) To grant ad­interim relief in terms of Para.50 (B) hereinabove for the reasons stated in the Memo of Petition.

(D) The Hon ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.

"50­BB. Your Lordships may be pleased to issue appropriate writ, order or directions and be pleased to quash and set aside the election programme and also to quash and set aside the provisional voters list published by the Deputy Collector and Election Officer, respondent no.3 herein dated 23.11.2020 and all further consequential orders / steps, as the same is illegal, erroneous and against the provisions of law, for the reasons stated in the memo of the petition and in the interest of justice;

50­CC Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the election programme and also the provisional voters list published by the Deputy Collector and Election Officer, respondent no.3 herein dated 23.11.2020 and all further Consequential orders / steps, as the same is illegal, erroneous and against the provisions of law, for the reasons stated in the memo of the petition and in the interest of justice."

5. It appears from the materials on record that the writ­applicants of the Special Civil Application No.13286 of 2020 are the primary cooperative societies affiliated with the Jamnagar District Cooperative Bank Limited [for short 'the Bank'] and claim to be its members past 50 years. These primary societies were originally registered being part of the Jodiya Taluka falling within the revenue limits of the District of Jamnagar. These societies avail financial assistance from the Bank like the KCCC, small term loan, medium term loan, long terms loan etc.,

6. It further appears that the Government of Gujarat vide Notification dated 15th August 2013 excluded certain Talukas from the Jamnagar District, Rajkot District and Surendranagar District respectively to form a part of the newly constituted district viz.the Morbi District. The record reveals that 12 villages, which were earlier forming part of the Jodiya Taluka have now been included in the Morbi District. The effect of the same is that the 12 primary cooperative societies

C/LPA/975/2020 ORDER

referred to above are now included in the Morbi District.

7. The last election of the managing committee of the bank was held in the year 2015. At the relevant point of time, the 12 primary societies referred to above were falling within the revenue area of the Jodiya Taluka and the Jodiya Taluka was a part of the Jamnagar District. According to the bye­laws of the bank, the management/affairs of the bank is to be entrusted to the Board of Directors, which shall consist of 18 members, excluding the State Government nominees. The bye­laws provide for the list of Ten Directors representing the taluka­wise agricultural credit, multipurpose and service cooperative societies. At Sr. No.8 of the bye­law no.30(I)(a), the following has been stated. "One Director from such affiliated societies falling under the revenue area of Jodiya Taluka". Thus, in 2015 all the 12 primary societies were included in the voters­list and they were eligible to cast their votes in the election, which was held in 2015.

8. The statutory term of the specified society i.e. the bank came to an end on 28.04.2020. It appears that on account of the COVID­19 pandemic situation, the election could not be held within the time period as prescribed in law. The State Government thought fit to extend the term of the managing committee by issuing notification dated 24.03.2020 and thereafter, a further notification came to be issued in July 2020. The record further reveals that by way of further notification issued in July 2020, the term of the managing committee has been extended upto 31.12.2020.

9. The election programme came to be declared and published. The election is to be held on 13.01.2021. All legal formalities have been completed for the purpose of conducting the election.

C/LPA/975/2020 ORDER

10. The grievance of the bank and the 12 primary cooperative societies is common. We may clarify at this stage that the bank has a grievance to redress with respect to bifurcation and exclusion of the districts, more particularly, the Jodiya Taluka, now not being a part of the Jamnagar District, but included in the Morbi District. Out of 70 primary societies, 12 are here before this Court, whereas, the remaining 58 primary societies have not taken up this issue of they not being included in the voters­list. It is the bank who is coming forward before this Court saying that all the 70 primary societies, have a right to vote in the election scheduled to be held on 13.01.2021.

11. Mr. B.S.Patel, the learned senior counsel assisted by Mr. B.T. Rao, the learned counsel appearing for the bank as well as the 12 primary societies submitted that the learned Single Judge committed a serious error in rejecting both the writ­applications on the ground that the writ­ applicants have an alternative efficacious remedy of going before the Election Tribunal constituted under Section­145U of the Act 1961, if they believe that they have a right to vote and they have been wrongly not included in the voters­list. According to the learned senior counsel, there is no such remedy available to the writ­applicants. It is argued that if the writ­applicants are not to be treated as voters, then they cannot file any petition before the Election Tribunal. Relying on a division bench decision of this Court in the case of Lilabhai Ranabhai Desai Vs. Pirabhai Valabhai Desai, reported in 2002 (3) GLR 2560 it is submitted that an election petition calling in question any election may be presented under Sub­Rule (1) of Rule 75 of the Gujarat Specified Cooperative Societies Elections to Committees Rules, 1982 (for short 'the Rules, 1982') only by any candidate or any voter. In other words, it is argued that except the candidate or any voter, no one has a right to

C/LPA/975/2020 ORDER

maintain an election petition, calling in question any election governed by the Act and the Rules. The learned senior counsel would submit that the learned Single Judge has failed to consider that if the primary societies are not to be treated as voters, then they cannot file any election petition under the Rules. Therefore, according to the learned senior counsel, the learned single judge committed an error in holding that there is an alternative efficacious remedy available to the writ­ applicants, more particularly, the primary societies.

12. Mr. Patel, the learned senior counsel next submitted that the learned single judge committed a serious error while interpreting Section­27(3) of the Act. Section­27(3) of the Act provides that 'no person shall exercise the right to vote at an election of a member of a committee in a financial year unless he is a member of the society for the whole of the financial year preceding the financial year in which the election is being held'. It appears that the respondents pointed out to the learned single judge that 58 primary societies came to be inducted as members of the specified societies only w.e.f. 19.08.2019. In other words, the learned single judge accepted the contention of the otherside that the 58 primary societies were not members of the specified society for the whole of the financial year preceding the financial year in which the election is to be held. In this regard, the argument of Mr. Patel is that the primary societies were nominal members of the specified society past couple of years and a "member" as defined under Section­2(13) of the Act includes a "nominal member". According to the learned senior counsel, this aspect has not been duly considered by the learned single judge. Mr. Patel next submitted that Section­161 of the Act empowers the State Government by general or special order to be published in the Official Gazette to exempt any society or class of societies from any of the provisions of this

C/LPA/975/2020 ORDER

Act, or may direct that such provisions shall apply to such society or class of societies with such modifications not affecting the substance thereof. Mr. Patel invited the attention of this Court in this regard to a letter of the Reserve Bank of India dated 7th June 2018 addressed to the bank. The same reads as under:­

RESERVE BANK OF INDIA

RCB.RFS.3449/04.22.001/2017­2018 June 07,2018

Main Executive Officer The Jamnagar District Cooperative Bank Ltd.

"Cooperative Society". Ranjeet Road, Jamnagar - 361 001

Respected Sir,

Issue of Banking License under Section 22 of B.R. Act, 1949 (AACS) ­ Amendment to the License

Please refer to the revised License issued to your bank vide License No.RPCD (AH) 16/2011­12 dated June 25, 2012 indicating specifically, the area of operation of your bank.

2. In this connection, following reorganization of districts by the State Government, the area of operation of your bank has undergone change.

3. Accordingly,. "The area of operation of the bank shall be confined only to the Jamnagar and Devbhumi Dwarka Districts and Utbet Shampar, Zinzuda, Rajpar, Fadsar, Bela, Rampar (Padabekar), Aamran, Kharachiya, Kerali, Fatsar, Jivapar, Badanpar (Aamran), Bhulkot, Koyli villages of Morbi Taluka of Morbi District of Gujarat State."

4. This letter is being issued to your bank, in amendment to the above­ mentioned License No.RPCD(AH) 16/2011­12 dated June 25, 2012 issued, to commence and carry on banking business subject to area of operation as mentioned above.

5. This letter or a certified copy thereof along with our License No.RPCD(AH) 16/2011­12 dated June 25.2012 or certified copy thereof shall be displayed at the registered office of the bank forthwith.

          C/LPA/975/2020                                      ORDER



      Your faithfully,
      sd/­
      (D. K. Nalband)
      Deputy Director

13. The argument is that if the Reserve Bank of India has extended the area of operation of the bank, then irrespective of the bifurcation of the district or in other words, assuming for the moment that the Jodiya Taluka is no longer a part of the Jamnagar District, the primary societies have a right to vote and they should be included in the voters­list. It is submitted by Mr. Patel that the area of operation of the bank is in the entire State of Gujarat by­virtue of the bye­laws which are on record.

14. Mr. Patel next invited the attention of this Court to Rule 3A(8) and (9) respectively of the Rules, 1982. Rule­3A is with respect to the delimitation of constituencies for the purpose of election. The argument of Mr. Patel is that the Collector transgressed his jurisdiction while exercising his power for delimitation. In other words, according to Mr. Patel, once the bye­law provides for the constituencies, the Collector has no power to decide anything under Rule 3A(8) and (9) respectively of the Rules. In this regard, reliance is sought to be placed on the decision of the Supreme Court in the case of Rajkot District Cooperative Bank Ltd. vs State Of Gujarat And Ors. reported in 2015 (13) SCC 401, wherein, the Supreme Court held that the society if on its own has not delimited, then only in such circumstances, the Collector may exercise his power under Sub­rule (9) of Rule 3A of the Rules for the delimitation of the constituency. In other words, it is argued that as the constituency has been provided in the bye­laws, the Collector could not have exercised his power under Rule­3A(8) and (9) respectively of the Rules and this aspect has not been considered by the learned single judge.

C/LPA/975/2020 ORDER

15. Thus, according to Mr. B.S. Patel, there are many contentious issues arising in this litigation and the appeals deserve admission. It is submitted that a valuable right to cast vote in the forthcoming election scheduled to be held on 13.01.2021 has been taken away in a very high­ handed manner and contrary to the provisions of the Act and the Rules. Mr. Patel would submit that by way of interim relief, this Court may permit all the 70 primary societies to cast their votes in the forthcoming election, however, their votes may be kept separately in a sealed cover and they may not be counted or taken into consideration for the purpose of declaring the final result of the election. Mr. Patel would submit that this Court may pass an order that the election scheduled to be held on 13.01.2021 of the specified society shall be subject to the final out come of this litigation. He would further make a request that the voters should be put to notice of such order that may be passed by this Court.

16. On the other­hand, both the appeals have been vehemently opposed by Ms. Manisha L. Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned AGP appearing for the State and Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Dipen Desai, the learned counsel appearing for the five societies, which came to be impleaded as party respondents in the original writ­ applications and who are opposing the inclusion of the 70 primary societies in the voters­list.

17. Ms. Shah and Mr. Joshi jointly submitted that the main challenge in this litigation is to the order dated 14.10.2020 passed by the Election Officer and the Deputy Collector, Jamnagar, whereby, the Election Officer directed that the relevant date for the preparation of the voters­ list shall be 31.03.2019 and further directed that the 12 societies, which at one point of time were part of the Jodiya Taluka, should not be

C/LPA/975/2020 ORDER

included in the constituency for Jodiya Taluka as they no longer remain within the revenue limits of the Jodiya Taluka. It is further pointed out that by way of amendment, the writ­applicants also challenged the provisional voters­list published by the Election Officer and the Deputy Collector dated 23.11.2020.

18. It is argued that the writ­applications are not maintainable on the ground of availability of an alternative efficacious remedy by way of election petition under Section­145U of the Act, 1961. It is further argued that there is no merit in the contention canvassed on behalf of the appellants that the order passed by the Election Officer dated 14.10.2020 is without jurisdiction. The Election Officer is vested with independent statutory powers of delimiting the constituencies under Rule 3(A)(8) and Rule 3(A)(9) of the Rules, 1982. The said powers are distinct and independent powers of the Election Officer and the Election Officer is not bound to accept the constituencies prescribed by the specified society if it is found that the constituencies are not properly delimited in accordance with the Act and the Rules. It is argued that the decision of the Election Officer directing the bank to exclude the said societies from the list of constituency of Jodiya Taluka could be said to be absolutely well within the provisions of the Act and the Rules and this aspect has been well considered by the learned single judge while rejecting the writ­applications.

19. It is argued that the Supreme Court in Rajkot District Cooperative Bank Ltd. (supra) has in clear terms held that the power conferred with the Collector for the delimitation of the constituency under sub rule (9) is independent and distinct, notwithstanding done by the society or even prescribed in the bye­laws. It is argued that the learned single judge has rightly come to the conclusion that the

C/LPA/975/2020 ORDER

impugned order passed by the Collector is within the authority and jurisdiction and as per Rule­3A(8) and 3A(9) respectively of the Rules.

20. It is argued that the reliance placed on behalf of the appellants upon the bye­laws of the bank to contend that the area of operation of the bank is in the entire State of Gujarat is thoroughly misconceived. It is pointed out that in the application of the bank for registration, the area of operation of the bank has been shown to be the Jamnagar district. It is argued that it is a settled position of law that once a society is excluded from the revenue limits, it cannot assert any right to vote. The 12 primary societies now not only outside within the revenue area of the Jodiya Taluka, but are also out of the Jamnagar District revenue limits and now forming part of the Morbi district.

21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the picture that emerges may be summarized as under:­

There are two sets of primary societies before us in this litigation. One set of 58 primary societies still remain within the Jamnagar District, whereas, the remaining 12 primary societies are now outside the Jodiya Taluka. Jodiya Taluka is no longer within the Jamnagar District. We are drawing this distinction between the two sets of primary societies because the problem with the 58 primary societies is with respect to the Section­27(3) of the Act, whereas, the problem with the other 12 primary societies is with respect to the delimitation and being now not forming part of the Jamnagar District. It prima­facie appears that the argument that the 58 primary societies were nominal members past couple of years and therefore, they should be treated as members of the specified society was not canvassed before the learned single judge and the learned single judge had no occasion to consider on this issue. What

C/LPA/975/2020 ORDER

has happened in the present case is that the specified society i.e. the bank prepared a provisional voters­list and forwarded the same to the Election Officer and the Prant Officer, Jamnagar. When the provisional voters­list was perused by the authority concerned, it was revealed that the 70 primary societies, we are talking about, were included in the provisional voters­list. The Election Officer raised an objection saying that the 58 societies cannot be included in the voters­list by­virtue of Section­27(3) of the Act and the 12 primary societies cannot be included in the voters­list as they are now no longer within the revenue limits of the Jamnagar District as the Jodiya Taluka is now part of the Morbi District. In such circumstances, the Election Officer returned the provisional voters­list to the bank with a direction to alter the same in accordance with the above. This gave rise to the challenge to the order passed by the Election Officer dated 14/10/2020. One of the questions falling for out consideration is whether the Election Officer could have sent back the provisional voters­list to the specified society?

22. We may give a fair idea in this regard a little more elaborately. As per Rule 4 of the Rules 1982, a provisional list of voters has to be prepared in the vernacular by every society for the year in which the general election is due to be held. The persons who are members as on the date of drawing up the accounts of the year [in which such election is due] are entitled to be included in the provisional list. Four copies of the authenticated provisional list of the voters has to be sent by every society to the Collector through the District Registrar. As per Rule­5, certain particulars are to be included in the provisional list of voters. As per the Rule­6, the claims and objections to the provisional list of voters is to be invited and decided. As per the Rule­7, the final list of voters is to be prepared. In the case on hand as noted above, when the provisional list of voters was prepared and forwarded by the bank being

C/LPA/975/2020 ORDER

the specified society for the purpose of general election to the Election Officer [the competent authority under the Act] the same was objected to on account of the inclusion of the 70 primary societies in the said list of which were are talking about. The competent authority in turn directed the bank to delete all the 70 primary societies from the provisional voters­list and prepared a fresh voters­list in accordance with the directions issued by the competent authority. According to the appellants, this could not have been done by the Collector. It is argued that the provisional list forwarded by the bank should have been published under Rule­6 for the purpose of inviting the claims and objections. It is only if any claims or objections are put forward the Collector gets the jurisdiction to decide such claims or objections and takes steps to correct the provisional list where­ever necessary. Therefore, the grievance of the appellants is that the Collector being the competent authority under the Act transgressed his jurisdiction in this regard. On the other hand, the other­side seeks to rely upon Rule 3A(9) of the Rules, 1982 contending that the Collector has the power independent of Rule 6 referred to above.

23. We are of the view that the two appeals do not deserve to be dismissed in limine. There are many contentious and arguable issues to be looked into in the present two appeals and in such circumstances, we are of the view that we should admit both the appeals.

24. Both the appeals are ordered to be admitted.

ORDER IN CIVIL APPLICATIONS:­

1. We shall not proceed to consider whether any prima­facie case has been made out by the appellants for grant of the interim relief. We have already noted above that the election is scheduled to be held on

C/LPA/975/2020 ORDER

13.01.2021. The 70 primary societies are not included in the final voters­list. However, the prayer is that all these 70 primary societies may be permitted to cast their votes in the election scheduled to be held on 13.01.2021. However, it is suggested that their votes shall be kept separately in a sealed cover and they shall not be counted for the purpose of declaring the final result. Prima­facie, we are of the view that it will be too­much for this Court to pass such an interim order. As on date, when all the 70 primary societies are not there in the voters­list and the learned single judge has also taken the view that they have no right to cast their votes and the appeals are yet to be finally adjudicated, it will not be in the fitness of things to allow them to cast their votes even on the condition that their votes be kept separately in a sealed cover and shall not taken into consideration for the purpose of declaring the final result.

2. However, we are of the view that we should make the entire proceedings of the election along with the final result of the same subject to the final outcome of the two appeals. We direct that the election scheduled to be held on 13.01.2021 shall be subject to the final outcome of the two appeals. We direct the Election Officer to bring this fact to the notice of all the voters included in the final voters­list at the earliest.

3. Post both the appeals for final hearing on admission board in the 2nd week of March 2021. Hopefully, by that time, the physical functioning of the High Court may also commence.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J) A. B. VAGHELA