Jayeshbhai Chimanbhai Patel vs State Of Gujarat
2022 Latest Caselaw 909 Guj

      C/SCA/1624/2022                                ORDER DATED: 28/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 1624 of 2022
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                         JAYESHBHAI CHIMANBHAI PATEL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
MR.BHARAT PATEL, SENIOR ADVOCATE with ISHAN JOSHI, AGP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,4
MR MOUSAM R YAGNIK(3689) for the Respondent(s) No. 3
MR NIRAD D BUCH(4000) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                  Date : 28/01/2022
                   ORAL ORDER

[1] This writ application is filed under Article 226 of the Constitution of India challenging the order dated 18.01.2022 passed by the respondent no.2 Election Officer and Deputy Collector, whereby the respondent no.2 has rejected the nomination form of the writ applicant for the election of Kapadvanj Constituency seat for the elections of Kheda District Central Co-operative Bank Limited.

[2] The brief facts leading to the filing present writ application are that the writ applicant is a resident of Village - Dana, Taluka - Kapadvanj, District - Kheda. It is stated that Kheda District Central Cooperative Bank Limited is a specified society within the meaning of Section 74C of the Gujarat Cooperative Societies Act and the election of the said society is to be conducted by the respondent no.2 Election Officer and Deputy Collector in consonance with the provisions of Chapter XI of the Gujarat Cooperative Societies Act, 1961 r/w.

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Provision of Gujarat Specified Cooperative Societies Election to Committee Rules, 1982 (for short "Rules 1982"). It is further submitted that the elections of Kheda District Central Co-operative Bank Limited become were due and the respondent no.2 Election Officer and Deputy Collector vide public notice dated 24.12.2021 published provisional voter's list for the elections of Kheda District Central Co-operative Bank Limited and the name of the writ applicant was included as delegate of the respondent no.5 society.

[2.1] It is stated that the writ applicant had become the member of Dana Seva Sahkari Mandali Limited on 19.06.2019 and the said membership of the writ applicant was not challenged by any person. It is stated that the respondent no.3 raised objection with regard to membership of the writ applicant in Dana Seva Sahkari Mandali Limited before the District Registrar and pursuant to the said objection, the Election Officer by the order dated 10.01.2022 allowed the objection and deleted name of the writ applicant from the voters' list on the basis of the order dated 30.12.2021.

[3] In view of the above, the writ applicant approached this Court by filing Special Civil Application No.925 of 2022 and this Court by the order dated 17.01.2022 issued notice and by way of ad interim relief stayed the order dated 30.12.2021 passed by the Deputy Registrar. Pursuant to the order passed by this Court on 17.01.2022, the Election Officer included the name of the writ applicant in the nomination form and the said nomination

C/SCA/1624/2022 ORDER DATED: 28/01/2022

form signed by the respondent no.4 Kantibhai Becharbhai Patel as a seconder. On 18.01.2022, the respondent no.4 addressed the letter to the Election Officer stating that he is wanting to withdraw his name as seconder and the Election Officer accepted the said communication and permitted him to withdraw his name as seconder. Consequently, the Election Officer by the order dated 18.01.2022, rejected the nomination form of the writ applicant by holding that since the seconder has withdrawn his name as seconder, nomination form of the writ applicant is required to be rejected.

[4] The action of the Election Officer rejecting the nomination of the writ applicant by order dated 18.01.2022 constrained the writ applicant to approach before this Court seeking the following reliefs:-

"(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the impugned order dated 18.01.2022 passed by the respondent no.2 Election Officer and Deputy Collector, annexted at Annexure A to this petition and be pleased to pert the petitioner to contest the elections from the Kapadvanj Constituency seat of Kheda District Central Co- operative Bank Limited.

(B) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay further execution, operation and implementation of the impugned order dated 18.01.2022 passed by the respondent no.2 Election Officer and Deputy

C/SCA/1624/2022 ORDER DATED: 28/01/2022

Collector, annexed at Annexure A to this petition."

[5] The operative part of the impugned order dated 18.01.2022 reads thus:-

"As discussed above, the objection application of applicant Shri Jashubhai Ravchandbhai Patel is rejected and the objection application of applicant Shri Kantibhai Becharbhai Patel is allowed. It is hereby ordered to reject the nomination form filed by Jayeshbhai Chimanbhai Patel in electoral ward - 1, Kapadvanj, Kathlal voters' union for the election-2021 of members of the Managing Committee of The Kheda District Central Co-operative Bank Ltd.

Further, as discussed above, the name of Shri Jayeshbhai Chimanbhai Patel as a representative of Dana Seva Sahkari Mandali, Kapadvanj is entered in the electoral roll of Part - 1 Kapadvanj, Kathlal in Kapadvanj Taluka as per the judgment of the Hon'ble High Court."

[6] Learned advocate Mr.Dipen Desai appearing for the writ applicant submitted that the Election Officer could not have rejected the nomination of the writ applicant on the ground of seconder withdrawn his name as seconder. He submitted that the nomination form can be rejected only on four grounds as specified in Rule 23(2) of the Gujarat Specified Cooperative Societies Election to Committee rules, 1982, which read thus:-

(a) That the candidate is disqualified for being chosen to fill the seat by or under the Act, rules or by-laws;

(b) That the proposer or seconder is disqualified from subscribing a nomination paper;

(C) That there has been a failure to comply with

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any of the provisions of Rule 19 or 21;

(D) That the signature of the candidate or the proposer on the nomination paper is not genuine;

[6.1] Learned advocate Mr.Dipen Desai submitted that the case of the writ applicant does not fall under the above referred grounds and therefore, the Election Officer committed gross error in rejecting the nomination form of the writ applicant.

[7] Learned Senior Advocate Mr.Bharat Patel appearing for the respondent no.1 submitted that this Court may not entertain this writ application mainly on the ground when the writ applicant has available efficacious statutory remedy under section 145(U) of the Act r/w. Rule 82 of the Rules 1982. He further submitted that if the seconder withdrawn his name as seconder, then the respondent no.1 was left no other option but to reject the nomination form of the writ applicant. He further submitted that the writ applicant can avail statutory remedy available under the Act once election process is over.

[8] In the course of hearing, learned Senior Advocate Mr.B.S.Patel submitted that the election is to be held on 30.01.2022.

Position of law:- the law of judicial review in the matter of election is well settled:-

(A) The Full Bench in the case of Daheda Group Seva

C/SCA/1624/2022 ORDER DATED: 28/01/2022

Sahkari Mandli Limited vs. R.D.Rohit, Authorised Officer and Co-operative Officer (Marketing) reported in 2006 GCD 211 (SCA No.2489 of 2005 dated 24.04.2005) has specifically held in Paragraphs 31,32 and 33 that:-

"31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India and Ors. (18 GLR 714) where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.

31.1. In the case of Mehsana Dist. Coop. Sales and Purchase Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR

308), the Court have noted the observations made by the Hon'ble Apex Court as under: "there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies". In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration." In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.

32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/ or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of

C/SCA/1624/2022 ORDER DATED: 28/01/2022

judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.

32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, 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 was held that the proper remedy is by way of election petition before the Election Tribunal.

33.In view of the above discussion, Reference as under:

i. A we answer the person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.

ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.

iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."

(B) While deciding the matter in the case of Mandropur (Fatehpur) Juth Seva Sahkar Mandali Limited vs. State of Gujarat reported in 2017 (2) GLR 1495, the Coordinate Bench has held thus:-

C/SCA/1624/2022 ORDER DATED: 28/01/2022

"5. Travelling to root after gathering the controversy and the contentions canvassed by both the sides, in the general elections to the APMC, the societies dispensing agriculture credit would have its Managing Committee members as the voters to be included in the list of voters. Under the Gujarat Cooperative Societies Act as per Section 74(1)(a),members of the Managing Committee are to be elected. The members of the Managing Committee of cooperative society would become voters in the APMC elections and would be those one who are elected ones. Therefore, from the above statutory requirement it is manifest that the members of Managing Committee to figure in the list of voters would be the persons elected as members."

Analysis:-

[9] The ratio as laid down by this Court as well as Supreme Court, this Court is not iinclined to interfere with regard to decision taken by the respondent no.1 cancelling the nomination form of the writ applicant. On withdrawal of nomination form by seconder as seconder to the writ applicant the Election Officer rejected the nomination form of the writ applicant.

No malafide, arbitrariness or any jurisdictional error is alleged by the writ-applicant against the respondent No.1 and, therefore, the impugned order by the respondent No.1 Election Officer does not call for any interference, since the same does not result into any extraordinary circumstances seeking interference by this Court. It is open for the writ applicant to avail statutory remedy under Rule 82 of the Rules, 1982. There is statutory remedy available to writ applicant under Section 145(U) of the Gujarat Cooperative Societies Act, 1961, which reads thus:-

"(1) Notwithstanding anything contained in section 96 or any other provisions of this Act, any dispute relating to an election

C/SCA/1624/2022 ORDER DATED: 28/01/2022

shall be referred to the [1] [Tribunal].

(2) Such reference may be made by an aggrieved party by presenting an election petition to the [1] [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 [1] [Tribunal] unless it is made within two months from the date of such declaration :

Provided further that, the [1] [Tribunal] may admit any petition after the expiry of that period, if the petitioner satisfies the [2][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 [1] [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 on oath;

(c) compelling discovery of 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 [1] [Tribunal] in this behalf may administer the oath to the deponent.

(4) Subject to any regulations] made by the [1] [Tribunal] in this behalf, any such petition shall be heard and disposed of by the [1] [Tribunal] as expeditiously as possible. An order made by the [1] [Tribunal] on such petition shall be final and conclusive and shall not be called in question in any Court."

Rule 82 of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982, reads thus:-

(a) That on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat 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 returned candidate or his election agent or;

(c) that any nomination paper has been improperly rejected

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or;

(d) that the result of the election, in so far as it concerns a 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 agency 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 provision of the Act or any rules made thereunder,

the (Tribunal) shall declare the election of the returned candidate to be void."

[10] In view of above, this Court is not inclined to entertain the present writ-application exercising its extraordinary discretion under Article 226 of the Constitution of India and no extraordinary circumstance warrant the interference by this Court even otherwise the election is to be held on 30.01.2022. Considering Rule 82 of the said Rules, improper rejection of any nomination paper can be a ground for declaring an election void in an election petition. Therefore, it is open for the writ applicant to avail efficacious remedy of filing the election petition. No interference of this Court under Article 226 of the Constitution of India will not render the writ applicant remediless.

[11] With the above observations, the present writ application fails and the same is dismissed. Notice discharged.

(VAIBHAVI D. NANAVATI,J) NABILA