Khengarbhai Malabhai Chudasma vs Gujarat State Cooperative ...
2021 Latest Caselaw 15144 Guj

     C/SCA/13304/2021                                            ORDER DATED: 27/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13304 of 2021
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                    KHENGARBHAI MALABHAI CHUDASMA
                                 Versus
                  GUJARAT STATE COOPERATIVE TRIBUNAL
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Appearance:
MR MANISH S SHAH(5859) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4
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CORAM:           HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                         Date : 27/09/2021
                          ORAL ORDER

1. Heard, learned Advocate Mr. Nilay H. Patel for learned Advocate Mr. Manish S. Shah for the petitioner.

2. By this petition under Articles 226 and 227 of the Constitution of India the petitioner has prayed for the following reliefs:

"10. ...

A.The Hon'ble Court be pleased to admit and allow this petition;

B.The Hon'ble Court be pleased to issue a writ of certiorari of any other appropriate writ, order or direction quashing and setting aside the impugned judgment and order dated 12.10.2020 passed by the learned learned Board of Nominee below Exhibit-4 as well as judgment and order dated 08.01.2021 passed by the respondent No.1, i.e. Gujarat State Cooperative Tribunal in Revision Application No. 45 of 2020 below Exh. 13 and further be pleased to direct Learned Board of

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Nominee at Rajkot to appoint Court Commissioner to recount vote qua Scheduled Castes seat not taking into account vote which have not put (x) mark against the name of the candidate and strictly in accordance with the bylaws of the society;

C.Pending admission, hearing and final disposal of this petition, be pleased to stay the execution, implementation and operation of the impugned judgment dated dated 12.10.2020 passed by the learned learned Board of Nominee below Exhibit-4 as well as judgment and order dated 08.01.2021 passed by the respondent No.1, i.e. Gujarat State Cooperative Tribunal and further be pleased to restrain the respondent No.4 from acting as committee member of the respondent no.2 society;

D.Ad-interim relief in terms of para-C above be granted;

E. ..."

3. The brief facts of this case are that the petitioner is one of the contestant in the election of Respondent No.2-Society constituted under the provisions of the Gujarat Cooperative Societies Act, 1961 (herein after referred to as the 'Act of 1961').

3.1 As per the Election Programme of Respondent No.2-Society for the year 2021-2025, voting was held on 20th September, 2020, and the counting of the votes

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as well as declaration of the results were kept on 21st September, 2020.

3.2 As per the Election Rules provided under the bylaws of Respondent No.2-Society on declaration of the result if an appeal is to be preferred before the Registrar Cooperative Societies, the same is to be done within one day from the date of voting.

3.3 According to the petitioner there is a dispute about two votes between the petitioner and Respondent No.4 with regard to the election of the candidates of Scheduled Castes seats. There were total 1268 votes which were casted and out of them 20 votes were canceled. Resultant, there were only 1266 valid votes. Since, there were equal votes between the petitioner and Respondent No.4 an application was given by the petitioner to the Election Officer to not to declare the results and accordingly the results were not declared. The petitioner thereafter approached the Registrar Cooperative Societies who passed an order on 22nd September, 2020, directing the Election Officer to act in accordance with election rules and further directed the petitioner to approach the Board of Nominee under Section 96 of the Act of 1961.

3.4 Respondent No.4 who is opposite to the petitioner also gave an application to take appropriate decision about the un-decided votes.

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3.5 It appears that the petitioner also filed an application on 23rd September, 2020 before the Election Officer with a request not to declare the results till the Board of Nominee decides the Suit and keep the ballet papers in a safe custody. However, the Election Officer-Respondent No.3 did not consider the representation of the petitioner and declared that the petitioner received total 632 votes whereas Respondent No.4 received 633 votes and further declared that the two votes which were in dispute be kept in a separate voter's box.

3.6 The petitioner thereafter preferred Lavad Suit No. 1 of 2020 before the Board of Nominee, Rajkot, on 25th September, 2020 along with an application for injunction praying that the election results of 2020 of Respondent No.2-Society should not be declared by the Election Officer-Respondent No.3 qua the seat of the Scheduled Castes committee member and that the defendant or any of his agent, servant should not do any act of appointing office bearer of Respondent No.2-Society by calling any kind of meeting and inter alia also prayed that the Court Commissioner be also appointed to recount the votes of the Scheduled Castes candidates for the election of Respondent No.2-Society .

3.7 The Board of Nominee vide impugned order dated 12th October, 2020 passed below Exhibit-4 rejected the application for granting interim injunction filed by the petitioner in Lavad Suit No. 1 of 2020 by a

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detailed order on the ground that Respondent No.4 has already been declared as elected and that without considering the oral and documentary evidences that may be led in the Suit prima facie it cannot be held that Respondent No.4 is wrongly declared as elected by the Election Officer-Respondent No.3. It was further held by the Board of Nominee that the result of the election was declared after considering the directions issued by the District Registrar and there is no dispute with regard to the casting of the votes and as such the dispute pertains to only one vote where instead of cross (x) mark thumb impression is made which is the subject-matter of Lavad Suit No.1 of 2020 which would require evidence to be led and accordingly the Board of Nominee did not grant any interim injunctions as the same would amount to allowing the suit at the interim stage.

3.8. The petitioner being aggrieved with the same preferred Revision Application No. 45 of 2020 before the Gujarat State Cooperative Tribunal-Respondent No.1 where the Tribunal after hearing both the sides vide order dated 08.01.2021 dismissed the Revision on the ground that the issue raised would require leading of oral as well as documentary evidence with regard to the consideration of the disputed vote due to which Respondent No.4 has been declared elected by the Election Officer-Respondent No.3 and therefore it did not interfere with the prima facie findings arrived at by the Board of Nominee.

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4. Learned Advocate Mr. Patel appearing for the petitioner submitted that the Election Officer- Respondent No.3 has considered the disputed vote in favour of Respondent No.4 which is contrary to the bylaws of Respondent No.2-Society as the vote in favour of Respondent No.4 is taken into consideration though there was no cross (X) mark put against the name of Respondent No.4 but instead thumb impression is placed due to which Respondent No.4 is declared elected.

4.1 It was submitted that during the pendency of the Lavad Suit No. 1 of 2020 if Respondent No.4 and other office bearers are permitted to function the petitioner shall be deprived of his status of elected member because in case of a tie it was required to be decided by way of draw of a chit between the petitioner and Respondent No.4 in the presence of the Election Officer-Respondent No.3. It was therefore submitted that Respondent No.4 though could not have been elected as per the by-laws of Respondent No.2- Society, the petitioner is wrongly deprived of his status as an elected member of Respondent No.2- Society.

4.2 It was further submitted that the Board of Nominee may not hear the Suit during the tenure of the Elected Body of Respondent No.2-Society and the Suit filed by the petitioner may become infructuos by efflux of time.

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5. Having heard the learned Advocate for the petitioner and having considered the submission made as well as the material produced on record it appears that the Board of Nominee is seized with the dispute / matter in Lavad Suit No. 1 of 2020 wherein the issue, with regard to the consideration of the vote by which Respondent No.4 is declared elected, is at large. It is also pertinent to note that if Respondent No.4 and other office bearers are restrained from discharging their duties though Respondent No.4 is declared elected, it would amount to allowing the Suit at interim stage.

5.1 In above view of the matter no interference is required to be made and the Board of Nominee is required to consider the contentions raised before it after both the sides are permitted to lead oral as well as documentary evidences in support of their case, as there is concurrent findings of facts this Court would not like to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India.

6. In that view of the matter without entering into the merits of the matter this petition is dismissed.

(BHARGAV D. KARIA, J) UMESH/-