Gujarat High Court
Ishwarbhai Sendhabhai Desai ... vs State Of Gujarat Through ... on 10 November, 2021
Bench: Sandeep N. Bhatt
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16698 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
=====================================================
1 Whether Reporters of Local Papers may YES
be allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a NO
substantial question of law as to the
interpretation of the Constitution of
India or any order made thereunder ?
=====================================================
ISHWARBHAI SENDHABHAI DESAI (DESAI)
Versus
STATE OF GUJARAT THROUGH SECRETARY,
=====================================================
Appearance:
MR JAY TRIVEDI for MR DIPEN DESAI(2481) for the
Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No.
1,2
MR PRAKASH JANI SENIOR ADVOCATE with MR SHIVANG P
JANI(8285) for the Respondent(s) No.
10,11,12,13,3,4,5,6,7,8,9
=====================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/11/2021
ORAL JUDGMENT
1. Heard the learned advocate Mr. Jay Trivedi for
Mr. Dipen Desai, learned advocate for the
petitioner and learned Assistant Government
Pleader Mr. Meet M. Thakkar for the respondent
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
Nos.1 and 2 and learned Senior Advocate Mr.
Prakash Jani for learned advocate Mr. Shivang P.
Jani for the respondent Nos.3 to 13.
2. This Hon'ble Court has issued the notice. The
advocate for the petitioner has filed the
present petition by praying following interim
reliefs i.e. mentioned in the paragraph No.6 of
the memo of the petition :-
"(A) The Hon'ble Court may be pleased
to issue a Writ of Certiorari or Writ in
the nature of Certiorari or any other
appropriate, writ, directing or order,
quashing and setting aside the impugned
order dated 18.10.2021 passed by the
respondent No.2-Election Officer, annexed
at Annexure-A to the petition.
(B) The Hon'ble Court may be
pleased to issue a Writ of Mandamus or
Writ in the nature of Mandamus or any
other appropriate, writ, directing or
order, directing that the respondent Nos.3
to 13 societies may be deleted from the
voters list for the elections of
Banaskantha District Central Co-operative
Bank Limited.
(C) Pending final hearing and disposal
of this petition, the Hon'ble Court be
pleased to stay the execution, operation
and implementation of the impugned order
dated 18.10.2021 passed by the respondent
No.2 - Election Officer, annexed at
Annexure - A to the petition.
(D) Pending final hearing and disposal
of this petition, the Hon'ble Court be
pleased to restrain the respondent Nos.3
to 13 societies from participating in the
elections of Banaskantha District Central
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
Co-operative Bank Limited.
(E) The Hon'ble Court be pleased
to grant such other and further relief in
the interest of justice."
3. The present petition has been filed by the
petitioner by challenging the election of
Banaskantha District Central Co-operative Bank
Limited and praying the reliefs as mentioned
herein above in the prayer clause. The
petitioner has submitted that in view of Section
27(iii) of the Co-operative Societies Act, which
provides that only society which has its last
accounts audited in Class "A", "B" or "C" can be
permitted to vote in the elections of the
federal Society and he further submits that none
of the respondent Nos.3 to 13 have its last
accounts audited in Class "A", "B" or "C". The
above requirements are mandatory requirement of
law which the Election Officer ought to have
verify before including any society in the
voters list and he further submits that the
basic requirement which Election Officer should
verify the said aspect and in the present case
the Election Officer has not verified the said
aspect and without proper application of mind,
the Election Officer has rejected the objections
of the petitioner. He has also submitted that
the election is to be held on 15.11.2021 of the
Bank and he is not praying to stay the election
process but he is praying to admit the matter
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
and grant interim relief by way of the direction
to keep the votes of respondent Nos.3 to 13 in
seal cover and it can be directed that the such
vote will be counted subject to the results of
the petition. He has also relied on the
judgments of this Hon'ble Court in the matter of
Siyanagar Dudh Utpadakl Sahakari Mandli Limited
Versus Election Officer reported in Special
Civil Application No.12731 of 2018 dated
12.09.2018 and another order of this Hon'ble
Court passed in Special Civil Application
No.15482 of 2020 dated 9.12.2020 in the matter
of Yogendrasinh Chhatrasinh Varnamiya Versus The
Election Officer, The Baroda Central Co-
operative Bank Limited and the Prant officer. He
has also relied on various following
decisions :-
(i) 2018 JX GUJ 150
(ii) 2014 JX GUJ 62
(iii) 2018 (1) GLR 647
(iv) SCA/10877/2020
(v) SCA/12151/2021
(vi) 2005 (7) SCC 181
4. Learned advocate Mr. Desai has also made
grievance that on the notice of hearing is not
served upon him for the hearing kept on
14.10.2021 which is at 11:00 O'clock and
therefore the said order is passed without
hearing him. Simultaneously, he has also
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
submitted that at 3:00 o'clock on 14.10.2021, he
went before the Election Officer and had tried
to submit his submissions but Election Officer
has not accepted his written submissions and
therefore order is bad in eye of law.
5. He has also relied upon the various above
decisions and prayed that the interim relief as
indicated by him. He has also relied on the
judgments delivered in Special Civil Application
No.14425 of 2011 dated 23.11.2011 in the matter
of Mukeshbhai Basilal Patel and AnotherS versus
Election Officer and Dy. Collector and others
and order passed in Letters Patent Appeal No.505
of 2020 and cognet matters dated 08.09.2020 in
the case of Shri Pratapgarh Seva Sahakari
Mandali Limited Versus The Director,
Agricultural Marketing and Rural Finance and
prayed that the votes cast by the present
respondent Nos.3 to 13 may be directed to kept
in separately in a seal cover with respect to
the election of the Banaskantha District Central
Co-operative Bank Limited and the results of the
such election shall not be declared till the
further order passed by this Hon'ble Court.
Therefore, he has prayed to grant interim relief
in the above terms and he has also submitted on
merits of petition also.
6. Learned Senior advocate for the respondent Nos.3
to 13 Mr. Prakash Jani appearing with learned
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
advocate Mr. Shivang P. Jani has raised the
preliminary objections to the petition by
submitting that in view of the averments made in
the memo of the petition and more particularly
paragraph No.2.1 of the petition whereby the
petitioner is submitting that he is the
representative of the Nana Kapra Seva Sahkari
Mandli Limited, who is member of the Banaskantha
District Central Co-operative Bank Limited.
7. Learned advocate for the respondent Nos.3 to 13
Mr. Prakash Jani has pointed out from the
Annexure-F, the list of the society and
representative of the Bank where the nowhere the
name of the Nana Kapra Seva Sahkari Mandli
Limited is mentioned neither the name of the
present petitioner who is in the individual
capacity as Ishwarbhai Sendhabhai Desai is also
mentioned and therefore, he submitted that the
present petitioner has no locus to file the
present petition by challenging the election of
the Banaskantha District Central Co-operative
Bank Limited. Learned senior advocate Mr. Jani
has further raised the objections by pointing
out the objections filed by the present
petitioner dated 11.10.2020 where the present
petitioner has nowhere stated about the last
accounted audits in Class 'A', 'B' or C of
society. He has also submitted that in view of
the provisions of Co-operative Societies Act and
more particularly Section 145(U) read with Rule
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
82 of the Gujarat Specified Co-operative
Societies Elections to Committees Rules (1982),
the petitioner or any other contesting candidate
may have alternative remedy by way of
challenging the result of such election. He has
further pointed out that the Election Officer
has published the notification dated 5.10.2021
for the election of the above Banaskantha
District Central Co-operative Bank Limited where
it is specifically mentioned that such
objections against such voters list should be
submitted on or before 11.10.2021 before 15:00
hours and therefore, also since the petitioner
has failed to comply with the necessary
procedure in precribed time, the petitioner has
no right to challenge the process of election.
Learned Senior Advocate Mr. Jani has submitted
that in the same set of circumstances the
another petitions i.e. Special Civil Application
Nos.16110, 16111 and 16115 of 2021, regarding
another bank are filed and since the learned
Court is not inclined to entertain the petitions
and which are withdrawn in view of the
provisions of alternative remedy available under
the Gujarat Co-operative Societies Act.
8. He has also relied on the judgment reported in
1952 (0) AIJEL-SC 18767 in the case of N.P.
Ponnuswami Versus Returning Officer, Namakkal
Constituency. He has also relied on another
judgment reported in 2000 (0) AIJEL-SC 8507 in
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
the case of Election Commission of India Through
Secretary Versus Ashok Kumar and he has also
relied on the judgment of the Division Bench
reported in 1985 (0) AIJEL-HC 209142 and has
submitted that the present petitioner has no
right to challenge the inclusion of the present
respondents No.3 to 13 in the voters list and
therefore, he submitted that the petition may be
dismissed and no interim relief should be
granted at this stage.
9. Mr. Meet Thakkar, learned AGP has also supported
the contentions raised by Senior advocate Mr.
Prakash Jani and has submitted by relying on
various judgments i.e. reported in 2005 SCC
Online Gujarat 586 i.e. Daheda Group Seva
Sahkari Mandli Limited Versus R.D. Rohit and
another judgments 2001 (8) SCC 509, 2016 (4) SCC
429, order passed in SCA No.6941 of 2011 and
order passed in SCA No.14617 to 14620 of 2020 on
23.12.2020 by this Hon'ble Court and has
submitted that since election process is already
commenced and also the alternative remedy is
available to the petitioner and therefore, he
has submitted that no interim relief or final
relief can be granted as election procedure
should not be stalled at the instance of the
present petitioner.
10. I have gone through the various judgments
cited at bar and is fruitful to refer some of
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
the judgments. In the case of Daheda Group Seva
Sahakari Mandli Limited Versus R.D. Rohit, the
Hob'ble Court has observed in paragraph No.33
which reproduced as under :-
"Provisions of rule 28 of the rules are
otherwise independent of the provisions of
rule 6 and are not in any manner,
controlled by rule 6 and provide for
remedy for resolution of all kind of
election disputes. If the provisions of
rule 6 and rule 28 are not interpreted in
the wider spectrum and in light of the
intent of the legislature as discussed
hereinabove, the same would create two
classes i.e. (1) one which can challenge
the wrong inclusion only by way of
election petition, and (ii) the other
which can challenge the non-inclusion i.e.
exclusion by way of writ petition only.
This could never have been intended by the
legislation. When remedy of election
petition is deemed fit and is provided as
a statutory remedy then every election
dispute should be raised before the forum
competent to decide the same."
11. In the case of Election Commission of India
Through Secretary Versus Ashok Kumar, the
Hob'ble Apex Court has observed in paragraph
No.32 which reproduced as under:-
"For convenience sake we would now
generally sum up our conclusions by partly
restating what the two Constitution
Benches have already said and then adding
by clarifying what follows therefrom in
view of the analysis made by us
hereinabove:-
1) If an election, (the term election
being widely interpreted so as to include
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
all steps and entire proceedings
commencing from the date of notification
of election till the date of declaration
of result) is to be called in question and
which questioning may have the effect of
interrupting, obstructing or protracting
the election proceedings in any manner,
the invoking of judicial remedy has to be
postponed till after the completing of
proceedings in elections.
2) Any decision sought and rendered will
not amount to calling in question an
election if it subserves the progress of
the election and facilitates the
completion of the election. Anything done
towards completing or in furtherance of
the election proceedings cannot be
described as questioning the election.
3) Subject to the above, the action taken
or orders issued by Election Commission
are open to judicial review on the well-
settled parameters which enable judicial
review of decisions of statutory bodies
such as on a case of mala fide or
arbitrary exercise of power being made out
or the statutory body being shown to have
acted in breach of law.
4) Without interrupting, obstructing or
delaying the progress of the election
proceedings, judicial intervention is
available if assistance of the Court has
been sought for merely to correct or
smoothen the progress of the election
proceedings, to remove the obstacles
therein, or to preserve a vital piece of
evidence if the same would be lost or
destroyed or rendered irretrievable by the
time the results are declared and stage is
set for invoking the jurisdiction of the
Court. 5) The Court must be very
circumspect and act with caution while
entertaining any election dispute though
not hit by the bar of Article 329(b) but
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
brought to it during the pendency of
election proceedings. The Court must guard
against any attempt at retarding,
interrupting, protracting or stalling of
the election proceedings. Care has to be
taken to see that there is no attempt to
utilise the courts indulgence by filing a
petition outwardly innocuous but
essentially a subterfuge or pretext for
achieving an ulterior or hidden end.
Needless to say that in the very nature of
the things the Court would act with
reluctance and shall not act except on a
clear and strong case for its intervention
having been made out by raising the pleas
with particulars and precision and
supporting the same by necessary
material."
12. I have heard the parties at length and
perused there case of the petition. It is worth
considering to discuss the some of the judgments
cited at bar regarding the scope of powers to be
exercised under Article 226 of the Constitution
of India. In the case of Shri Pratapgarh Seva
Sahakari Mandali Limited Versus The Director,
Agricultural Marketing and Rural Finance and
more particularly observation made in paragraph
Nos.7.7 to 7.13 of the judgment which reproduced
as under :-
"[7.7] Before dealing with the provisions
of law as also the precedents cited by the
learned advocates for the appearing
parties, it would be necessary to examine
the findings recorded by the Authorized
Officer on conclusion of hearing. The
findings, which are in favour of the
petitioner - Society need not be referred
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
at all. However, on reading by-law no.34
of the petitioner - Society, it is clear
that there would be a Managing Committee
of 11 Members, who would be elected by
secret ballet as provided under Schedule A
and the terms of the Members would be of
three years. Citing the said by-laws, it
is concluded by the Authorized Officer
that in a General Body Meeting dated
20.06.2017, without holding an election,
though it is provided under the by-law
no.34 as also Section 74(1A) of the Act,
1961, appointed the Members of the
Managing Committee. Thus, it was concluded
that there was no election held for
electing the Members of the Managing
Committee in accordance with by-law no.34
and Section 74(1A) of the Act, 1961. The
Authorized Officer further concluded that
though it is claimed by the Society, the
Members of the Managing Committee were
elected vide Resolution No.8 in the
General Body Meeting dated 20.06.2017,
however, the agenda notes contained only
10 issues whereas Resolution book contains
12 Resolutions. It is further observed
that agenda no.8 is interpolated
/overwritten to make a show that the
Managing Committee is elected. However, if
at all the Members of the Managing
Committee is elected, there appears no
election of even office bearers of the
Managing Committee and no such Resolution
is finding place in the Resolution book of
the Managing Committee also. Thus, it is
concluded that the agenda note no.8
appears to have been created subsequently
by interpolation and the petitioner -
Society has failed to produce the
particulars with regard to the Members,
who were present in the General Body
Meeting and their signatures evidencing
the same, though demanded. It is next
concluded by the Authorized Officer that
the Secretary of the petitioner - Society
remained present at the time of hearing
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
and admitted that though according to him
11 Members of Managing Committee is
elected on 20.06.2017 in a General Body
Meeting but no such procedure of election
as provided under the law is conducted for
appointing the Managing Committee.
[7.8] The submission of Shri Patel,
learned Senior advocate, the conclusion
that there is breach of by-law no.34 and
of Section 74(1A) of the Act, 1961, and
therefore, the Authorized Officer has
adjudicated upon the election of the
petitioner - Society, which he is not
authorized to do the same not only in view
of Section 96 of the Act, 1961 as also the
decision of this Court in the case of
Pransli Seva Sahakari Mandali Ltd.
(Supra), cannot be accepted. The said
submission is made on incorrect reading of
findings recorded by the Authorized
Officer. There is no finding that the
election is in breach of by-law no.34 or
under Section 74 (1A) of the Act, 1961 but
in substance it is recorded that without
conducting the election at all as provided
in by-law no. 34 and Section 74(1A) of the
Act, 1961, the Managing Committee is
straightaway appointed. The said finding
is also supported by the documentary
evidence produced by the petitioner -
Society itself to the Authorized Officer.
Though the petitioner had not produced any
contemporaneous record to assert that the
Members of the Managing Committee are
elected as provided under by-laws as also
Act, 1961, the respondent no.3, after
obtaining it through RTI, has produced the
same at page nos.50 and 51 alongwith
affidavit-in-reply. The agenda of the
petitioner - Society for a meeting dated
20.06.2017 is seen, which is at page no.50
at Serial No.8. After erasing certain
words something is overwritten on it. Not
only that, Resolution No.8, which is at
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
page 53, it is very clearly mentioned in
it that there was an appointment of new
Committee as on that date three years term
of the said Committee was over. However,
if the Resolution is seen in place of
earlier Managing Committee Members, the
list of Members shown below it, they have
been appointed as Members of the Managing
Committee for a period of five years.
Thus, it is clear that according to the
petitioner - Society itself, the General
Body resolved to appoint them as Members
of the Managing Committee. The contention
of the learned Senior Advocate for the
respective petitioners that the word
"varni" means election as also selection
according to bhagwadromandal the abstract
of which is produced at Annexure R1 page
88 in the rejoinder affidavit of the
petitioner cannot be countenanced for the
simple reason that from their own
contemporaneous record it is established
that no election electing the Members of
the Managing Committee of the petitioner -
Society is ever conducted and instead of
that straightaway they have selected 11
Members to the Managing Committee.
[7.9] The reliance placed on the
decision in the case of Pransli Seva
Sahakari Mandali Ltd. (Supra) to submit
that the Authorized Officer has no
jurisdiction and /or authority to enter
into the question with respect to legality
and validity of the election of the
Members of the Managing Committee of the
petitioner - Society is of no help to the
petitioner - Society as on verification of
the documents produced by the petitioner -
Society, a conclusion is reached that
there was no election held at all. By such
conclusion it can never be said that the
Authorized Officer has entered into the
question with respect to the legality and
validity of the election. There is a huge
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
difference between nonconducting of
election at all and the legality and
validity of election. As provided in the
Act, 1961, the Managing Committee of a
petitioner - Society shall consist of
elected Members. It further provides that
only the elected Members shall be entitled
to be the office bearers of the Managing
Committee, and therefore, the Act does not
recognize any Managing Committee, who is
not elected at all. Even for constituting
Managing Committee uncontested there has
to be an election process undergone. At
any rate, the Act, 1961 does not permit
selection of Members of Managing Committee
at the sweet will of certain persons at
the helms in a democratic set up.
[7.10] Even accepting the contention
of the learned Senior Advocate for the
petitioner that though the decision in the
case of Pransli Seva Sahakari Mandali Ltd.
(Supra) was at the stage of preparation of
voters list under Rule 7 of the Gujarat
Agricultural Produce Markets Rules, 1965
where inquiry, though limited, by the
Authorized Officer as to the full names,
addresses of the Committee Members, the
ratio of the judgment does not permit the
Authorized Officer to enter into legality
and validity of election and the same
would not only be applicable so far as
preparation of voters list it may be at
the stage prior to preliminary voters list
during provisional list and preparing
final list of voters, it is of no help to
the petitioner. In the case of Pransli
Seva Sahakari Mandali Ltd. (Supra), the
Division Bench of this Court was concerned
with the stage prior to publication of
preliminary voters list where the
Authorized Officer was entitled to have
necessary inquiry in respect of names of
Members of Managing Committee and place of
their residence so as to include their
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
names in preliminary list of voters. In
that case, the Authorized Officer refused
to include the names of Members of the
Managing Committee, that too, at the stage
when he was to assess and verify full
names of the Members of the Managing
Committee and their place of residence, on
the ground that though the petitioner -
Society was informed not to conduct the
election of Managing Committee in view of
Circular dated 22.03.2013 because of
pendency of amendment in Act, 1961, and
the Society did not hold the election of
Members of Managing Committee as per
circular dated 15.07.2013, their names
were refused to be included even in the
preliminary list of voters. Considering
the powers and authority of the Authorized
Officer, at the stage of preparation of
preliminary voters list, the Division
Bench of this Court in the aforesaid case
held that at the stage of Rule 7, the
Authorized Officer was concerned with full
names and addresses of the Members of the
Managing Committee and nothing more. The
authority to conduct inquiry as per that
Rule is said to be limited to that extent
only whereas refusal of Authorized Officer
to include those names in preliminary list
of voters even before its publication on
the ground that though they were informed
not to conduct election it was conducted
and again it is not conducted as per
Circular dated 15.07.2013. The Division
Bench of this Court held that the
Authorized Officer has entered into the
issue of legality and validity of the
election. In any case, there was no
dispute in the said decision that there
was no election at all of the Members of
the Managing Committee. Even applying the
said yardstick as contended by the learned
Senior Advocate for the petitioner that at
the stage Rule 8 of the Gujarat
Agricultural Produce Markets Rules, 1965
also Authorized Officer is not supposed to
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
enter into the legality and validity of
the election, in the present case, it has
been concluded that no election of the
Members of the Managing Committee is held
at all. By that conclusion, he has not
questioned the legality and validity of
the election but he has recorded that no
election at all was conducted as provided
under its by-law no.34 and the provisions
made under the Act, 1961. In contrast with
limited inquiry under Rule 7 under Rule 8
of the Gujarat Agricultural Produce
Markets Rules 1965, the Authorized Officer
is authorized to hear the objections
raised with regard to non-inclusion of the
names in the list of voters or wrong
inclusion thereof and empowered to decide
the said objection.
[7.11] The decision in the case of
Mandropur (Fatehpur) Juth Seva Sahakari
Mandali Limited (Supra) by the learned
Single Judge relied on by Shri Dipen
Desai, learned advocate for respondent
no.3 is squarely covering the issue. In
that case, the names of the Members of the
Managing Committee, where no election is
held and they were not elected Members of
the Managing Committee, the Authorized
Officer excluded their names from the list
of voters, the said action was held to be
finding out the basic constituent facts in
respect of Members as to whether they are
elected or not and whether the election
was held or not does not amount to
adjudication.
[7.12] I am in respectful agreement with
the said decision, and therefore, there is
no merit in the contention raised by the
learned Senior Advocate for the petitioner
that the Authorized Officer has entered
into the validity and legality of the
election of the petitioner - Society. The
decision in the case of Mandropur
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
(Fatehpur) Juth Seva Sahakari Mandali
Limited (Supra) of the learned Single
Judge is confirmed by the Division Bench
of this Court also.
[7.13] Not only that after
ascertaining the facts from the
contemporaneous record produced by the
petitioner - Society, the Authorized
Officer has reached to a conclusion that
there is some interpolation in the agenda
book as also the Resolution book. Not only
that, even the created and /or
interpolated Resolution or agenda reveals
factum of Members of Managing Committee of
the petitioner - Society, who are being
appointed /selected without undertaking
any exercise of election to those Members.
The law recognizes elected Members of the
Managing Committee only, and therefore,
the factum in finding out whether there
was any election conducted in respect of
Society whose list of Members of Managing
Committee is sent and finding place in a
preliminary list of voters cannot be said
to be touching upon the constitution of
the petitioner - Society or that finding
cannot be said to be without any authority
of law or jurisdiction, and therefore, a
writ petition under Article 226 of the
Constitution of India challenging the
order of the Authorized Officer excluding
the names of the Members of the Managing
Committee of the petitioner - Society
cannot be entertained, more particularly,
when there is an alternative remedy
available to the petitioner."
13. In the case of Shri Sant Sadguru Janardan
Swami Versus State of Maharashtra and others
reported in 2001 (8) SCC 509 where the Hon'ble
Apex Court has discussed the powers to be
exercised under Article 226 of the Constitution
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
of India and has observed in paragraph Nos.11
and 12 of the judgment which reads as under :-
"11. In the aforesaid case, this Court
held that a writ petition under Article
226 of the Constitution should not be
rejected on account of an alternative
remedy by way of election petition where,
firstly, the challenge is not a ground
under the Act or Rules for filing an
election petition and, secondly, where the
validity of a rule is challenged being
ultra vires and invalid. It is true that a
tribunal being a creature of an Act or the
Rules has a limited jurisdiction and it is
not open to a tribunal to decide the
validity of the Act and the Rules. But,
that is not the case here and, therefore,
the decision in the case of Bar Council of
India & Ors. vs. Surjeet Singh & Ors.
(supra) is of no help to the case of the
appellant. In the case of Ramchandra
Ganpat Shinde & Anr vs. State of
Maharashtra & Ors. (supra), the parties to
a writ petition obtained a collusive order
by applying fraud on the court and such an
order was made basis of the election. In
that context, it was held that so long as
the order of the High Court continues, the
tribunal would be bound by that order of
the High and, therefore, the writ petition
was maintainable and the same cannot be
thrown out on the ground of an alternative
remedy. Again, that is not the case of the
appellant and, therefore, the same is
distinguishable. In Shri Shreewant Kumar
Choudhary vs. Shri Baidyanath Panjiar
(supra), it was held that it was not open
to the tribunal to go behind the entry in
an electoral roll. This was in the context
of the provisions of Representation of
People Act, 1950 and 1951. It may be borne
in mind that there is a distinction
between the scheme of the provisions of
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
the Representation of People Act, 1950 and
the Representation of People Act, 1951.
The Representation of People Act, 1950
provides for the delimitation of
constituencies and allocation of seats for
purposes of election to, the House of the
People and the Legislatures of States and
preparation of the electoral roll,
whereas, Representation of People Act,
1951 provides for conduct of election.
Under Section 100 of the Representation of
People Act, 1951 one of the grounds
amongst other is an election can be
challenged where there is non-compliance
of the provisions of the Constitution or
of the said Act and the rules or orders
made thereunder - meaning thereby that
breach of the Representation of People
Act, 1950 cannot be called in question in
an election petition filed under 1951 Act.
In that view of the matter, the decision
replied upon by the appellant is
distinguishable.
12. In view of our finding that
preparation of the electoral roll is 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 appellant to challenge the election of
returned candidate, if aggrieved, by means
of an election petition before the
election tribunal."
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
14. In the case of the Assistant Commissioner
of State Tax and others Versus M/s. Commercial
Steel Limited reported in 2021 (10) SCALE 665,
the Hon'ble Apex Court has observed in paragraph
Nos. 11 and 12 which reproduced as under :-
"11 The respondent had a statutory remedy
under section 107. Instead of availing of
the remedy, the respondent instituted a
petition under Article 226. The existence
of an alternate remedy is not an absolute
bar to the maintainability of a writ
petition under Article 226 of the
Constitution. But a writ petition can be
entertained in exceptional circumstances
where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of
natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the
statute or delegated legislation.
12 In the present case, none of the above
exceptions was established. There was, in
fact, no violation of the principles of
natural justice since a notice was served
on the person in charge of the conveyance.
In this backdrop, it was not appropriate
for the High Court to entertain a writ
petition. The assessment of facts would
have to be carried out by the appellate
authority. As a matter of fact, the High
Court has while doing this exercise
proceeded on the basis of surmises.
However, since we are inclined to relegate
the respondent to the pursuit of the
alternate statutory remedy under Section
107, this Court makes no observation on
the merits of the case of the respondent."
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
15. It is beneficial to reproduce here some of
the relevant provisions of the Gujarat Co-
operative Societies Act for consideration of
facts of present petition.
Section 22 :- Person who may become
member:-
(1) Subject to the provisions of section
25, no person shall be admitted as member
of a society except the following, that is
to say--
(a) an individual, who is competent to
contract under the Indian Contract Act,
1872;
(b) a firm, company, 3[or any other body
corporate constituted under any law for
the time being in force] or a society
registered, under the societies
Registration Act, 1860,
(c) a society registered, or deemed to be
registered, under this Act;
(d) the State Government;
[(e) a local authority;
(f) a public trust registered or deemed to
have been registered under Bombay Public
Trusts Act, 1950;]
[(g) a group of the individuals eligible
under clause (a), whether incorporated or
not and whether established or not by or
under any law:]
Provided that, the provisions of clause
(a) shall not apply to an individual
seeking admission to a society exclusively
formed for the benefit of students of a
school or college:
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Provided further that subject to such
terms and conditions as may be laid down
by general or special order 5[a firm or a
company or other body corporate
constituted under any law for the time
being in force] may be admitted as member
only of such society as may be prescribed.
[(2) Every person seeking admission as a
member of a society, if duly qualified for
membership of such society under the
provisions of this Act, the rules and the
bye-laws of the society, may make an
application to the society for membership.
The society shall take decision on the
application and shall communicate the
decision within a period of three months
from the dale of the receipt of the
application.]
[(2A) Any person aggrieved by the decision
of a society under sub-section (2), may
prefer an appeal to the Registrar within
sixty days of the date of communication of
the decision and such appeal shall be
decided by the Registrar within a period
of sixty days.]
(3) Notwithstanding anything contained in
sub-section (1), the State Government,
may, having regard to the fact that the
interest of any person or class of persons
engaged in or carrying on any profession,
business or employment conflicts or is
likely to conflict with the objects of any
society or class of societies by general
or special order published in the Official
Gazette, declare that person or such class
of persons shall be disqualified from
being admitted, or for continuing, as
member or members or shall be eligible for
membership only to a limited extent, of
any society or class of societies, so long
as such person or persons are engaged in
or carry on that profession, business, or
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
employment as the case may be.]
[(4) All the depositors having deposits of
rupees ten thousand or above for a minimum
period of one -year and the borrowers
shall be compulsorily made members in the
Primary Agricultural Credit Co-operative
Societies: Provided that the depositors
having deposits less than rupees ten
thousand shall be made nominal members.
(5) The State Government may by
notification in the Official Gazette,
alter the limit of rupees ten thousand
specified by subsection (4) and also
specify such amount of deposit as it deems
necessary for a class of society and
different amount may be specified for
different classes of societies. In the
case of borrowing members, the society
shall prescribe in its bye-laws, linking
shares subject to minimum of two and half
per cent, of the loan taken by the
borrowers.]
Section 27 [Right to vote] :-
[(1)] No person shall exercise the rights
of a member of a society, until he has
made such payment to the society in
respect of membership, or acquired such
interest in the society, as may be
prescribed by the rules, or the bye-laws
of such society.
[(2) The person who has committed a
default and remains as such defaulter in
making repayment of loan or interest
thereon for a period of one year from the
due date of repayment of such loan or
interest or installment shall not be
entitled to exorcise voting rights of a
member of a society till all such
repayments are made.]
[(3) No person shall exercise the right to
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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:
Provided that no member society of a
federal society shall exercise the right
to vote at an election of a member of a
committee unless such society has its last
accounts audited in class A, B or C.
(4) Nothing in sub-section (3) shall apply
to the first election of a committee to be
held immediately after the registration of
a society.]"
Section 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 form 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
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
[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
examinations of witness.
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 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."
It is needless to say that the Election
Officer has to follow necessary procedure
prescribed under law and remedy available
to the party by way of election petition
is also provided under the Act to
aggrieved party.
16. In my opinion, the present petitioner has
prima-facie failed to establish his locus to
challenge the election process as he is neither
a representative of any society or any member
of such voter society nor the society which is
named as Nana Kapra Seva Sahkari Mandli Limited
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
is shown as a voter in the voters list.
17. It is found from the order of the Election
Officer dated 18.10.2021 that the petitioner has
not remained present on the date of hearing
fixed i.e. 14.10.2021 at time of hearing and
when the such submissions are given after the
date of program fixed by the learned Election
Officer, the present petition has not remain
vigilant to submit his submissions within time
prescribed by the Election Officer. Moreover, on
perusal of the objections filed by the present
petitioner on 11.10.2021, it is found that
nowhere he has raised the specific contention
regarding the last accounts of the society have
been audited in Class 'A', 'B' or 'C'.
Therefore, this petition is nothing but an
attempt to delay the election process of the
Bank and therefore also requires to be
dismissed.
18. In my opinion, the present petitioner has
prima-facie failed to establish his locus to
challenge the election process, as neither he is
representative of any society nor member of any
voter society.
19. I have considered the various submissions
made at the bar and keeping in view the
aforesaid decisions rendered by the Hon'ble
Supreme Court as well as this Court, after the
facts of the present case is examined in
C/SCA/16698/2021 JUDGMENT DATED: 10/11/2021
totality I found that though the petition is
maintainable under Article 226 of the
Constitution of India in given case inspite of
the alternate remedy is available to the
concerned petitioners, powers are to be
exercised in case of extraordinary or special
circumstances such as; whether the order is
ultra viruse, nullity and/or ex-facie without
jurisdiction. Exclusion or inclusion of the
names in the voters list does not warrant
interference by this Court under Article 226 of
the Constitution of India and such questions are
to be decided in an election petition. Here,
there is alternative remedy provides under the
law and therefore, this petition is not
entertained on this count and is rejected
accordingly. However, if the affected party is
aggrieved by the result of the election and if
he can satisfy about his locus, he can approach
the appropriate Forum by filing appropriate
proceedings under the law. If such proceedings
is filed, it would be open for the Authority
concerned to decide the same, in accordance with
law. This petition is, therefore, required to be
dismissed.
20. In view of the above observations, the
present petition is dismissed.
(SANDEEP N. BHATT,J)
Pallavi
