Surjitsinh Amarsinh Mangrola vs N R Prajapati,Election Authority ...
2021 Latest Caselaw 7861 Guj

     C/SCA/9458/2021                               JUDGMENT DATED: 06/07/2021


             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9458 of 2021
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 9460 of 2021
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 9461 of 2021
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 9463 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                              No

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                  No

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                No
      of India or any order made thereunder ?

==========================================================
               SURJITSINH AMARSINH MANGROLA
                           Versus
N R PRAJAPATI,ELECTION AUTHORITY BHARUCH DISTRICT CENTRAL
       COOPERATIVE BANK LTD AND DEPUTY COLLECTOR
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MS
AISHWARYA GUPTA, AGP (99) for the Respondent(s) No. 1
MR ND NANAVATY, SR. ADVOCATE WITH MR DIPEN DESAI, ADVOCATE
for the Respondent(s) No. 2
MR VC VAGHELA, ADVOCATE for Respondent(s) No. 3
==========================================================
    CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                           Date : 06/07/2021

                          COMMON ORAL JUDGMENT

As common facts and similar issues are involved in all the four Special Civil Applications, they were heard together and are being treated for

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disposal by this Court.

2. All the petitioners are aggrieved because their nomination paper for the elections to the Managing Committee of Bharuch District, Central Co- operative Bank Limited came to be rejected. They have challenged order dated 29th June, 2021, in all the cases, of the election officer - respondent No.1 herein, whereby, accepting the objections raised to the nominations, rejected the same.

3. The Bharuch District Central Co-operative Bank Limited is a specified society as under Section 74C of the Gujarat Co-operative Societies Act, 1961. The term of the Managing Committee of the said specified society was expired, however on account of situation arising out of COVID-19 pandemic, the elections could not be immediately held. The elections came to be notified as per the election programme dated 17th July, 2021. As per the said programme, the dates for obtaining the nominations were from 18th June, 2021 to 21st June, 2021. The last date for accepting the nominations was fixed as 28 th June, 2021. The list of nominations issued was to be published during 18th June, 2021 till 28th June, 2021. The date of scrutiny was 29th June, 2021. The list of validly nominaed candidates was to be published on 30th June, 2021. The nomination papers could be withdrawn upto 3.00 p.m. on 05th July, 2021. The list of contesting candidates is scheduled to be published on 06th July, 2021. The date of polling, if necessary, would be 16th July, 2021 and the counting would take

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place on 17th July, 2021 at the place and during the time indicated. The results are provided to be declared on the same date. Prior to the publication of the election programme, the election officer had undertaken the process of publication of list of voters.

3.1 While the petitioners filled up and submitted their nomination forms on 29th June, 2021, an application to be given to the election officer by objector, pointed out that in the nomination forms, details filled in were incomplete, inter alia that the petitioners did not sign below the verification giving the details as to the category of Scheduled Castes or Scheduled Tribes and small and marginal farmers. The said objection came to be upheld by the election officer and the impugned order dated 29th June, 2021 came to be passed in cases of each of the petitioners rejecting respective nominations.

3.2 As could be seen from the contents of the impugned order, while rejecting the nomination papers, what was observed by the election officer that the petitioners did not sign in the Ekrar of the form required in relation to Scheduled Caste, Scheduled Tribe, Small & Marginal Farmers. It was secondly mentioned that the nomination papers were not duly completed as per Form 2 under Rule 18(2) read with Rule 19 of the Gujarat Specified Co- operative Societies Election to Committee Rules, 1982. It was thirdly mentioned that the petitioners have not put their signature at one place out of

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three places in the nomination papers. As per the case of the petitioners before the Returning Officer, such grounds were not valid for rejecting the nomination papers, however the election officer noticed and found the above defects in the nomination papers of the petitioners to reject the same.

4. Heard learned advocate Mr.B.M. Mangukiya for the petitioners in all the petitions, learned Government Pleader Ms.Manisha Lavkumar assisted by learned Assistant Government Pleader Ms.Aishwarya Gupta for respondent No.1 - Election Officer and Deputy Collector, Bharuch and learned senior advocate Mr.N.D. Nanavaty with learned advocate Mr.Dipen Desai for private respondents - objectors as well as learned advocate Mr.V.C. Vaghela for the respondent - Bharuch District Central District Co-operative Bank.

4.1 Learned advocate for the petitioners in all the petitions was quite vehement in submitting that the respective impugned orders of rejection of nomination papers were based entirely on non-germane and unacceptable grounds. It was submitted that Section 74B of the Gujarat Co-operative Societies Act, 1961 which dealt with the reservation of seats on committees of certain societies for Scheduled Castes and Tribes and small and marginal farmers, came to be deleted from the statute book by Gujarat Act No.17 of 2013. It was therefore submitted that it was not required for the petitioners to put a signature below the Ekrarnama in that regard as the same was not relevant, rather was rendered redundant.

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It was submitted that when the statutory provision itself was taken out from the Act, the part of the nomination paper with reference to the same was of no consequence and could not have been a ground to reject the nomination papers.

4.2 It was submitted that sub-rule (3) of Rule 19 of the Rules of 1982 was misread by the election officer. He termed it to be fraud on statute submitting that no seat is reserved for Scheduled Caste or Scheduled Tribe category or for Small and Marginal Farmers after deletion of Section 74B from the Act. Learned advocate for the petitioners next submitted that the rejection of nomination papers was politically motivated and mala fide in nature. It was submitted that the impugned decision was clearly against democratic principles and arbitrary requiring interference of this Court in exercise of powers under Article 226 of the Constitution.

4.3 Learned Government Pleader at the outset submitted that the elections are already underway. Inviting attention to the stages in the election programme, she submitted that 06th July, 2021 is the date when the list of contesting candidates could be published. It was submitted that the election process has reached at an advance stage, which cannot be interfered with in exercise of writ jurisdiction. It was submitted that petitioners have their remedy for filing election petition under Section 145U of the Gujarat Co-operative Societies Act. In furtherance, it was submitted that Rule 82 of the 1982 Rules

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mentions the grounds for declaring the election to be void which may be raised in the election petition and that one of the grounds specifically mentioned in the Rule is that the nomination paper has been improperly rejected.

4.4 Learned Government Pleader defended the decision of rejecting the nomination papers even otherwise to submit that the nomination form of none of the petitioner was duly completed in terms of Rule 18(2) read with Rule 19(1) and 19(3) of the Rules, taking the Court through the said Rules. She further submitted that in any case the inquiry to be conducted by the election officer at the stage of examining the nomination papers was summary inquiry. For this proposition, she relied on decision of this Court in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance [2004 (3) GLR 2718], more particularly para-6.2 and 7 thereof, as well as another decision in Arvindbhai Singabhai Gamit v. Election Officer & Deputy Collector [2012 (3) GLH 81], more particularly relying on paras-6 and 7 thereof. It was stated that 11 seats to be filled in amongst member primary credit societies, 22 nominations have been received. It was submitted by producing one of the nomination papers that all were in order and other contesting candidates have put their signature at all places as may be required including below the Ekrarnama, however nomination papers of the petitioners were incomplete as rightly recorded by the election officer and that they were liable to be rejected.

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4.5 Learned senior advocate for the private respondents out-rightly refuted the contention on behalf of the petitioners about the effect of deletion of Section 74B of the Act. In that regard, he submitted that sub-sections (1A) to (1C) came to be inserted in Section 74 of the Act by Gujarat Act No.12 of 2015 dated 07th April, 2015 and that it is provided in sub-section (1B) that there shall be reserved one seat for Scheduled Caste or the Scheduled Tribe and two seats for women in the managing committee of every society; one seat is provided to be reserved for the persons who are small farmers and marginal farmers as defined in the Explanation. He submitted that though Section 74B is deleted, the provisions for reservation in the Act could not be said to have been omitted or discarded. What was thereby sought to be conveyed by learned senior advocate was that the concept of reservation of seats of the Scheduled Caste and Tribe and that in the category of farmers is not altogether omitted, much less become irrelevant, to permit the petitioners to validly contend that the signature below the Ekrarnama on that score was not necessary.

4.6 Learned senior advocate for the objectors furthered the submission of learned Government Pleader that under Rule 18(2) of the Rules of 1982, the mandate is that every nomination paper presented under Rule 19 shall be completed in Form II, and that the said Form contain the Ekrarnama to be signed below it by the candidate seeking to get himself nominated for contesting the election. An additional

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argument was raised with reference to the Proviso to sub-rule (2) of Rule 18 that under the said Proviso it is mentioned that a failure to complete or a defect in completing the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of Rule 23(3) of the Rules, implying thereby that all other defects would amount to defects of substantial character. It was submitted, therefore the defect found in the nomination papers of the petitioners could hardly be viewed as insignificant or non- substantial. Learned senior advocate summed up his submissions by saying that in any case, all these aspects and issues need to be tried in the election petition under Section 145U of the Act which is the only remedy available to the petitioners.

4.7 Reiterating that relief to the petitioners should not be granted in writ jurisdiction, learned Government Pleader for respondent No.1, learned senior advocate for the objectors as well as learned advocate for respondent Bank submitted that principle of non-interference so as not to upset the election process is emphatically established by the Supreme Court right from the decision in N.P. Ponnuswami v. Returning Officer [AIR 1952 SC 64] to more recent decision in Shaji K. Joseph v. V. Vishwanath [(2016) 4 SCC 429].

5. The submission canvassed on behalf of the respondents that the nature of inquiry to be undertaken by the Returning Officer at the time of

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scrutinising of the nomination forms, is summary in nature, has not only substance but finds support from the decision of Kanubhai Chhaganbhai Patel (supra) and Arvindbhai Singabhai Gamit (supra). Decision in Arvindbhai Singabhai Gamit (supra) was a Division Bench decision in which the Court discussed the provisions of the Act and the Rules in that regard to notice the integrated scheme, to hold that the nature of scrutiny of nomination paper is a restricted scrutiny to be undertaken in expeditious and it was stated and observed that Returning Officer shall not have jurisdiction and authority in law to go into the aspect of the right of the nominee to stand for election if his name already figures in the list of voters.

5.1 In Arvindbhai Singabhai Gamit (supra), the Division Bench made these observations,

"6. That leads to the inescapable conclusion that the authority of the returning officer in examining nomination papers and deciding all objections is restricted to only making a summary enquiry, if any, as to whether the candidate has incurred any disqualification for being elected and whether the nomination was in order and complying with the relevant Rules. As the title and language of Rule 23 clearly suggests, it is the scrutiny of nomination papers and, by no stretch, an adjudication of disqualification of the candidate that falls within statutory duty of the returning officer."

5.1.1 It was further stated,

"6. ... ... ... If he transgresses that limit and enters into the area of accepting or collecting evidence regarding alleged disqualification of a candidate and indulges in exercise of weighing evidence, without any means or power to decide upon genuineness or reliability of any evidence, the minimum requirement of compliance with the

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principles of natural justice would arise. However, clear operative words in the Rule being 'summary inquiry' and not an adjudication, the returning officer would obviously be required to decide the issue of disqualification or rejection or acceptance of the nomination paper only on the basis of material placed before him;"

5.1.2 The above view is eminently acceptable having regard to the functions to be performed by the election officer in dealing with the nomination forms. He has to undertake scrutiny of several nomination forms within short duration. He is not supposed to act as adjudicator, but would take summary inquiry whether the details in the nomination papers are duly completed as per the prescribed form. The validity of nomination form at that stage has to be judged in that light and not by undertaking a detailed analytical examination.

6. While learned advocate for the respective parties have raised their contentions which were allowed to be raised in detail, this Court does not find it necessary to delve into them and deal with them on merits, once the provision of Section 145U of the Gujarat Co-operative Societies Act and the law in relation to the exercise of writ jurisdiction vis-a- vis availability of remedy of election petition, is noticed.

6.1 Looking at Section 145U of the Act read with Rule 82 of the Rules of 1982, Section read as under.

145U. Disputes relating to elections to be submitted to the Tribunal.-(1) Notwithstanding anything contained in Section 96 or any other provisions of this Act, any dispute relating to an election shall be referred to the Tribunal,

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(2) Such reference may be made by an aggrieved party by presenting an election petition to the Tribunal:

Provided that no such petition shall be made till after the final result of the election is declared and where any such petition is made it shall not be admitted by the Tribunal unless it is made within two months from the date of such declaration:

Provided further that, the Tribunal may admit any petition after the expiry of that period, if the petitioner satisfies the Tribunal that he had sufficient cause for not preferring the petition within the said period.

(3) In exercising the functions conferred on it by or under this Chapter, the Tribunal shall have the same powers as are vested in a Court in respect of-

(a) proof of facts by affidavit;

(b) summoning and enforcing the attendance of any person and examining him on oath;

(c) compelling discovery or the production of documents, and

(d) issuing commissions for the examination of witnesses.

In the case of any such affidavit, an officer appointed by the Tribunal in this behalf may administer the oath to the deponent.

(4) Subject to any regulations made by the Tribunal in this behalf, any such petition shall be heard and disposed of by the Tribunal as expeditiously as possible. An order made by the Tribunal on such petition shall be final and conclusive and shall not be called in question in any Court.

6.1.1 As the above Section provides for submission of dispute relating to election to the Tribunal, Rule 82 of 1982 Rules mentions the grounds for declaring the elections as void, extracted hereunder.

"Grounds for declaring election to be void.-If the Government is of opinion:-

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(a) that on the date of his election a returned candidate was not under these rules, or

(b) that any corrupt practice has been committed by a returned candidate or his Election Agent or by any other person with the consent of a returned candidate or his Election Agent, or

(c) that any nomination paper has been improperly rejected, or

(d) that the result of the election, in so far as it concerns as returned candidate, has been materially affected-

                    (i)   by the improper         acceptance        of     any
                          nomination, or

(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his Election Agent, or

(iii) by the improper reception, refusal or rejection of any Vote or the reception of any Vote which is void, or

(iv) by any non-compliance with the provisions of the Act or any rules made thereunder,

the Government shall declare the election of the returned candidate to be void."

6.1.2 Bare reading of the above Rule would show that one of the specific grounds for declaring the election to be void, is improper rejection or acceptance of nomination paper. It will be indeed possible for the petitioners to get adjudicate their case about the invalid rejection of their nomination papers, by challenging the impugned decision of respondent No.1 in an election petition in accordance with the statutory provisions, after the elections are over.

6.2 It is well settled principle oft reiterated

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that High Court will not, in all ordinary circumstances, interfere with the election process to interrupt, interfere or stall such democratic process and that all election disputes arising in the middle of the elections shall be postponed for their resolution until after the elections are over, to be dealt with in accordance with the machinery provided under the relevant statute.

6.2.1 The present elections are already at an advance stage. Today is the day when the list of contesting candidates is going to be published. The only stages left is of polling, if necessary, on 16th July, 2021 and the counting as scheduled. Interjecting at this stage in the midst of the election process would not be in the interest of elections themselves while the petitioners are not remediless even after the elections are over.

6.3 In Vitthodar Vividh Karyakari Seva Sahakari Mandli v. State of Gujarat being Special Civil Application No.16941 of 2016 decided on 19th October, 2016, in the context of Section 145U of the Gujarat Co-operative Societies Act read with Rule 128 of the Gujarat Agricultural Produce Markets Rules, 1965, this Court enunciated the law on the issue to observe that though the petition under Article 226 of the Constitution is maintainable, the powers are to be exercised only in extra-ordinary or special circumstances such as where the order is ultra vires or nullity or ex facie without jurisdiction. It cannot be said that the order of the election officer

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impugned in the present petitions is without jurisdiction. An order allegedly passed on wrong grounds, even if going on demurer, cannot be said to be one without jurisdiction. The decision reflected in the impugned order could certainly be challenged in the election petition in accordance with law.

6.4 The principles were reiterated in Mehsana Taluka Co-operative Purchase & Sales Union v. Director [2017 (3) GLR 2692], which decision came to be confirmed in Letters Patent Appeal No.1255 of 2016 and other cognate Appeals decided on 29th November, 2016. It was held that interference in the on-going election process would not be permissible in the jurisdiction under Article 226 of the Constitution even on a presumably strong ground on merits, as the remedy of filing election petition is available after the completion of the elections under Section 145U of the Act.

6.5 The decision in Kanubhai Chhaganbhai Patel (supra) also involved the issue of rejection of nomination paper. The Court, after considering its earlier decisions in Kanjibhai Babaldas Patel v. Election Officer, APMC Visnagar [42 (1) GLR 260], Mehsana District Sales & Purchase Union v. State of Gujarat [1988 (2) GLR 1060], observed to hold that, "any interference after the scrutiny of nominations would create a real possibility of the election process being interrupted, obstructed or delayed. This is why in the aforesaid four decisions of the Division Bench of this Court it has been laid down

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that Rule 28 provides an efficacious remedy and when the election process is started, Court would refuse to exercise its extra-ordinary jurisdiction.". Reiterating the principle, the Court refused to go into the nature of dispute, that is the objections raised against the validity of nominations and did not examine whether Rule is violated to find out whether the Scrutiny Officer had committed any error in rejecting or accepting the nomination.

6.6 In Shri Sant Sagduru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509], the Apex Court in the context of the Maharashtra Co-operative Societies Act, 1960 read with Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 stated and held,

"In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate. If aggrieved, by means of an election petition before the Election Tribunal." (Para 12)

6.7 The proposition of law about non-

interference in the election process is well settled right from the decision in N.P. Ponnuswami (supra) and now further in Shaji K. Joseph (supra), in which

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the Supreme Court laid down thus,

"... as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect whenever the process of election starts, normally courts should not interfere with he process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without the court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. ... ... " (Para 15)

6.8 In Mehsana Taluka Co-operative Purchase & Sales Union (supra), it was stated,

"5.1.2 The election jurisprudence, its principles and the applicability of election laws have different delineations and dimensions. They indeed operate, and has to be allowed to operate in their own way so as to sub-serve a higher purpose. In the election which is a democratic process, what is fundamental is the event of election. Neither the right to vote or to participate in election as voter or as a contesting candidate, is perceived to be a fundamental right. They are the rights guarded by statutory framework and could be exercised only in the manner the statute may provide. What is at stake is the interest of whole body which goes to the democratic process of elections. Election jurisprudence hardly emphasise rights of individuals. Election rights are the democratic rights operating as a whole and for collective end."

6.9 All the above decisions and the law laid down therein were considered in detail in Raghubhai Munjibhai Mungra v. Jamnagar District Co-operative

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Bank Limited being Letters Patent Appeal No.68 of 2021 decided on 16th April, 2021 in which the decision of learned Single Judge dismissing the Special Civil Application No.16961 of 2020 was confirmed. The controversy in those proceedings was similar. The objection was raised against the nomination paper on the ground that the candidate was not eligible to contest as he was convicted. The Returning Officer had rejected the said objection, accepting the nomination form. The Court on the very principles enunciated above, refused to entertain the petition as well as the Letters Patent Appeal.

7. For the above discussion and the reasons recorded, this Court is not inclined to entertain the present writ petitions to grant any relief to the petitioners. It will be open for the petitioners to invoke the remedy of filing election petition in accordance with law.

8. It goes without saying that this Court has expressed any opinion on merits of the impugned decision of the election officer.

9. All the petitions accordingly fail. They are summarily dismissed. Notice in each of the petition stands discharged.

(N.V.ANJARIA, J) ANUP