Champakbhai Rupji Vasava vs N R Prajapati, Deputy Collector ...
2021 Latest Caselaw 8124 Guj

      C/SCA/9855/2021                             ORDER DATED: 09/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 9855 of 2021
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                   CHAMPAKBHAI RUPJI VASAVA
                              Versus
       N R PRAJAPATI, DEPUTY COLLECTOR AND SUB DIVISIONAL
                MAGISTRATE BHARUCH SUB DIVISION
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,2,3,4
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1,2,3,4
 for the Respondent(s) No. 2
MS. MANISHA LUVKUMAR, GP, WITH MS. AISHVARYA GUPTA, AGP (99)
for the Respondent(s) No. 1
MR. DILIP RANA, ADVOCATE, for Respondent No.2
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 09/07/2021
                               ORAL ORDER

By filling this petition under Article 226 of the Constitution, the petitioners have prayed to set aside the election programme declared by the respondent No.1-the Deputy Collector and the Election Officer dated 17.6.2021. It is further prayed to quash the action undertaken by respondent No.1 in pursuance of the said election programme. The next prayer seeks a direction to the respondent No.1 to carry out the election process afresh after following the procedure prescribed under section 74 of the Gujarat Co-operative Societies Act, 1961, providing for reservation of three seats in the individual members constituency and one more seat for the said category.

1.1 In another words, the petitioners have challenge the legality and validity of the election programme which is declared by the competent authority for conducting elections to the Managing Committee of the Bharuch District Central Co-operative Bank Ltd. alleging that the said on-going elections, is contrary to the provisions of section 74 of the Gujarat Co-operative Societies Act, 1961.

C/SCA/9855/2021 ORDER DATED: 09/07/2021

2. The petitioners are the members of the Executive Committee of the Primary Co-operative Societies affiliated with the Bharuch District Central Co-operative Bank Ltd..

3. The Bharuch District Central Co-operative Bank Limited is a specified society 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 June, 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 18 th 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 30 th June, 2021. The nomination papers could be withdrawn upto 3.00 p.m. on 05 th July, 2021. The list of contesting candidates is scheduled to be published on 06 th July, 2021. The date of polling, if necessary, would be 16 th July, 2021 and the counting would take 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.

4. Heard learned advocate Mr. B. M.Mangukiya for the petitioners, learned Government Pleader Ms. Manisha Luvkumar assisted by learned Assistant Government Pleader Ms. Aishvarya Gupta for respondent No. 1

- the Election Officer and learned advocate Mr. Dilip Rana for

C/SCA/9855/2021 ORDER DATED: 09/07/2021

respondent No.2 Bharuch District Central Co-operative Bank Ltd..

4.1 It was fairly submitted by learned advocate appearing for the petitioners that in a group of petitions being Special Civil Application No. 9458 of 2021 and three others, the very elections to the said specified Co-operative Society were under challenge. As in that case, the petitioners had challenged the rejection of their nomination forms for their seeking contest to the Managing Committee, the court refused to interfere with the election process and the order of the Returning Officer rejecting nominations papers, to hold on the well settled principles that the election process, since underway, could not be interjected or interfered with in the writ jurisdiction as the petitioners had the remedy of filling election petition under section 145U of the Gujarat Co-operative Societies Act read with Gujarat Co-operative Societies (Eelections to Committees) Rules, 1982,

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 Reiterating that relief to the petitioners should not be granted in writ jurisdiction, learned Government Pleader for respondent No.1 as well as learned advocate for respondent Bank submitted that principle of

C/SCA/9855/2021 ORDER DATED: 09/07/2021

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. Section 145U of the Co-operative Societies Act is 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, (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.'

C/SCA/9855/2021 ORDER DATED: 09/07/2021

5.1 The above is the remedy of election petition available to challenge the elections to be exhausted in accordance with law after the elections are over. The aforementioend rules of 1982 inter alia deal with the grounds which may be rested upon in the election petition to get the elections set aside. One of the grounds is that the result of the elections insofar as it concerns returned candidate has been materially affected by non-compliance with the provisions of the act or rules made thereunder. In the present case, the contention of the petitioners has been that the elections have been held contrary to provisions contained in section 74 of the Act.

5.2 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 16 th 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.

5.3 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.

5.4             In Shri Sant Sagduru Janardan Swami (Moingiri
Maharaj)        Sahakari    Dugdha     Utpadak      Sanstha      v.    State       of





       C/SCA/9855/2021                                       ORDER DATED: 09/07/2021

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)

5.5 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 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)

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

C/SCA/9855/2021 ORDER DATED: 09/07/2021

"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."

5.7 It is thus well settled principle oft reiterated 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. For the above discussion and the reasons recorded, this Court is not inclined to entertain the present writ petition 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.

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

7. The petition accordingly fails. It is summarily dismissed.

(N.V.ANJARIA, J) C.M. JOSHI