Gujarat High Court
The Uva Doodh Utpadak Sahakari ... vs State Of Gujarat on 4 August, 2023
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6392 of 2023
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THE UVA DOODH UTPADAK SAHAKARI MANDALI LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR BAIJU JOSHI(1207) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR JAY TRIVEDI, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 04/08/2023
ORAL ORDER
1. Heard learned advocate Mr. Baiju Joshi on behalf of the
petitioner, learned Assistant Government Pleader Mr. Jay
Trivedi on behalf of respondent nos. 1, 2 and 3 and learned
Senior Advocate Mr. B.S.Patel with learned advocate Mr.
Chirag Patel on behalf of respondent no.4.
2. By way of this petition, the petitioner has prayed for the
following prayers:-
"(A) This Hon'ble Court be pleased to issue a writ
of mandamus and/or any other appropriate writ,
order or direction, and thereby, issue necessary
directions to the respondents to hold the election of
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Bardoli Constituency of respondent no.4 society at
the earliest in consonance with the provision of
Chapter XI of the Act r/w the provision of the Gujarat
Cooperative Specified Society Election to Committee
Rules, 1982.
(AA) This Hon'ble Court be pleased to issue a writ
of mandamus and/or any other appropriate writ,
order or direction, preventing the respondents from
co-opting any person to fill up the vacant seat of
Bardoli constituency of respondent no.4 society.
(B) During the pendency hearing and final
disposal of this petition, this Hon'ble Court be
pleased to issue necessary directions directing the
respondents to initiate the proceedings for holding
the election of Bardoli Constituency of respondent
no.4 society forthwith, in consonance with the
provision of Chapter XI of the Act r/w the provision
of the Gujarat Cooperative Specified Society Election
to Committee Rules, 1982.
(BB) During the pendency hearing and final
disposal of this petition, this Hon'ble Court be
pleased to restrain the respondents from appointing
or co-opting any person to fill up the vacant seat of
Director from Bardoli constituency of respondent
no.4 society.
(C) Any other and further reliefs as deemed just
and proper looking to the facts of this case, may
kindly be granted in favour of the petitioner, in the
interest of justice."
2.1. It is the case of the petitioner that the petitioner is a
society registered under the provisions of Gujarat Cooperative
Societies Act, 1961 (hereinafter referred to as 'the Act') and
whereas, it is a member of the respondent no.4 society which
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is a Milk Producers Federation registered under the
provisions of the Act and Rules made thereunder and whereas
the respondent no.4 is a federal society as well as a specified
society under the provisions of Section 74(C) of the Act.
2.2. It is the case of the petitioner that the election of the
managing committee of respondent no.4 society had been
held in the year 2020 and whereas, the elected managing
committee were having a term of office of five years from
09.08.2020 to 08.08.2025. It is the case of the petitioner that
one Shri Ajitbhai Patel representing Kharvasa Muvathi Group
Milk and Vegetable Sales Cooperative Society Limited who
had contested and won the elections, had tendered his
resignation as a director in the month of October, 2022 and
whereas though the resignation had been accepted on
15.10.2022 and whereas since more than half of the tenure of
the managing committee was remaining, yet, the respondents
i.e. the respondent no.4 and the respondent State had not
filled in the vacancy by election.
3. Learned advocate Mr. Baiju Joshi on behalf of the
petitioner would submit that as per the provisions of Section
74(C)(2)(iii) of the Act read with Rule 73 of the Gujarat
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Specified Cooperative Societies Elections to Committees
Rules, 1982 (hereinafter referred to as 'the 1982 Rules'), upon
a casual vacancy occurring, the same shall be filled in by
election if more than half of the term remains, yet, the
respondents have not held the election for filling up of the
post. Learned advocate would submit that from the record, it
appears that after the elections were held for the managing
committee on 09.08.2020 and the above referred Ajitbhai
Patel who had won the elections had resigned, the in-charge
managing director of the respondent no.4 had accepted the
resignation vide communication dated 15.10.2022. It also
appears that the respondent no.4 had later intimated the fact
of the casual vacancy arising on account of the resignation of
a member to the District Registrar.
3.1. Learned advocate would submit that as far as the
petitioner is concerned, after the resignation of the director,
the societies of Bardoli Constituency including the petitioner
in which constituency the resigning director had been elected,
had vide their communication dated 13.03.2023 requested the
District Registrar, Cooperative Societies to hold the election
at the earliest. Learned advocate would submit that while the
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Bardoli Constituency consists of total 57 societies, the
communication referred to herein above had been supported
by 42 societies from the said constituency. Learned advocate
would further submit that since the respondents did not hold
the election and since the petitioner appreciated that the
respondents would fill up the vacancy by nomination, the
petitioner had preferred the present petition.
3.2. Learned advocate would take this Court through Section
74(C)(2)(iii) of the Act and would submit that the said section
inter alia mandates that upon a casual vacancy occurring, the
managing committee should fill up the vacancy within sixty
days, failing which, the State Government shall have the
power to fill up the casual vacancy out of the same class of
category of members in respect of which the casual vacancy
had arisen.
3.3. Learned advocate would further draw the attention of
this Court to Rule 73 of the Gujarat Specified Co-operative
Societies Election to Committees Rules, 1982 (hereinafter
referred to as 'the 1982 Rules') and submit that the said rule
also lays down that in case of a vacancy occurring amongst
other reasons on account of resignation of a member, the
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chairman of the society is required to forthwith communicate
the occurrence to the Registrar in case of a society like the
present and whereas, the vacancy is required to be filled in as
soon as convenient by holding bye-election to fill the seat and
that the provisions of the Rules would apply mutatis mutandis
to the bye-election. Learned advocate would submit that the
said rule also clarifies that a person so elected shall hold
office as a member of the committee as long as the term
would have been available to the member in whose place the
person concerned had been elected. Learned advocate would
submit that there are two exceptions to the holding of
elections; one found in the Act and one found in the Rules.
According to learned advocate, the exception as occurring in
the Act specifies that the vacancy shall not be filled in if the
remaining term of the office of the managing committee is
less than half of its original term. Learned advocate would
further submits that as far as the 1982 Rules are concerned,
Rule 73 inter alia makes an exception to the requirement of
holding election by laying down that if the vacancy had
occurred during the six months preceding the date on which
the term of the committee expires, then the vacancy shall not
be filled.
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3.4. Learned advocate would submit that while the
contingency in the Rules had not yet occurred, insofar as the
contingency in the Act is concerned, that is with regard to the
non-requirement of holding election if the term of the
managing committee is less than half of its original term,
would also not be applicable in the instant case more
particularly since the said exception is corelatable to the date
of the casual vacancy i.e. the date on which the resignation
had been accepted.
3.5. Learned advocate Mr. Joshi, in support of his
submissions would rely upon the decision of Hon'ble Apex
Court in case of Pramod Laxman Gudadhe vs. Election
Commission of India, reported in (2018) 7 SCC 550. Learned
advocate relying upon the law laid down by the Hon'ble Apex
Court would submit that since the vacancy is stated to occur
on the date when the resignation had been accepted and
whereas since on the date when the resignation had been
accepted, more than half of the term of the managing
committee was remaining, therefore, irrespective of whether
such term had been reduced later on, the vacancy is directed
to be required to be filled in by the elections.
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4. This petition is vehemently opposed by learned Assistant
Government Pleader Mr. Jay Trivedi on behalf of the
respondent nos. 1, 2 and 3 who would submit that the petition
is required to be dismissed preliminarily on two counts i.e. on
the ground of acquiescence and on the ground of non-joinder
of necessary party. Learned AGP would submit that the
petitioner had submitted his first representation even after
the period of two and a half years of the term of society had
expired and whereas, since the Act mandates no elections
after the said period, the petition itself may not be
entertained.
4.1. Learned AGP would further submit that since the
direction to hold election would be required to be issued to
the Collector who is the statutory authority for holding of
election and whereas since the Collector has not been made a
party to the proceedings, the petition may be dismissed on the
score of non-joinder of the necessary party. Learned AGP
would further submit that as such, since the Election
Commission of India had vide Notification dated 10.11.2022
issue code of conduct for holding of the election to the State
Legislature, the elections to the causal vacancy could not be
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held at the relevant point of time. It is further submitted by
learned AGP that since the right of the petitioner for grant of
a prayer is corelatable to the date of filing of the petition on
which date admittedly the period of two and a half years had
expired and therefore, the petitioner is not entitled for any
relief.
4.2. Learned AGP would submit that the Rules i.e. Rule 74(C)
(2)(iii) and Rule 73 of the 1982 Rules have to be interpreted
harmoniously. Learned AGP would submit that the
interpretation has to be in light of the judgment of the High
Court of Bombay in case of Sandeep Yashwantrao Sarode vs.
Election Commission of India, reported in 2019 MHLJ 5 pg.
722 where the High Court has inter alia held that the
remaining term as found in the statute is required to be
counted from the date of declaration of result of a bye-
election. Learned AGP would submit that as per the law laid
down by the High Court of Bombay, upon a casual vacancy
arising and is sought to be filled in by way of election, then
the remaining term of the managing committee is required to
be construed from the date when the results of the bye-
election would be declared. Learned AGP would submit that in
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the instant case, since it is apparent that the term of the
managing committee is now less than half of the term or was
less than half of the term even when the petition was
preferred, therefore as a natural consequence thereof, even if
a bye-election were to be declared and a candidate would get
elected, such candidate would get elected when the term of
the managing committee would be less than half and
therefore, the mandate of Section 74(C)(2)(iii) gets violated.
4.3. Learned AGP would relying upon the said decision,
submit that the contention of the petitioner may not be
accepted and this Court may reject the writ petition.
5. Learned Senior Advocate Mr. B.S.Patel with learned
advocate Mr.C.B.Patel would submit that while Section 74(C)
(2)(iii) read with Rule 73 of the 1982 Rules clearly specifies
that the vacancy is required to be filled in by election, yet,
since the term of the managing committee is less than half of
the remaining term, therefore, even if elections are held now,
the tenure of the elected person would be less than half of the
term and would be in violation of the spirit of Section 74(C)(2)
(iii). In any case, it has been submitted by learned senior
advocate that since Section 74(C)(2)(iii) requires the seat to
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be filled in by the same constituency, so if the seat is filled in,
otherwise then by way of election, no prejudice would be
caused to the petitioner. Thus submitting, learned senior
advocate would request this Court to reject the present
petition.
6. Heard learned advocates for the respective parties and
perused the documents on record.
6.1. Considering the submissions made by learned advocates,
it appears that the parties are ad idem as regards the
mandate of Section 74(C)(2)(iii) of the Act read with Rule 73
of the 1982 Rules, that in case of a casual vacancy arising, the
same has to be filled in by way of election subject to the
condition that the remaining term of the managing committee
should not be less than half of its original term. Thus, the only
question that arises for consideration of this Court is whether
the remaining term of office of the managing committee is to
be corelatable to the date when the causal vacancy had arisen
or the date when the petitioner had made their representation
or had preferred this petition.
7. Section 74(C)(2)(iii) of the Act and Rule 73 of the 1982
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Rules being relevant for the present purpose are reproduced
herein below for the benefit:-
"Section 74(C)(2)(iii)- The managing committee
shall fill up a casual vacancy within a period of sixty
days from the date of such vacancy, failing which the
State Government shall have the power to fill up such
casual vacancy out of the same, class of categories of
members in respect of which the casual vacancy has
arisen if the remaining term of office of the managing
committee is less than half of its original term.
Rule 73- Casual Vacancies how to be filled in.- In
the event of a vacancy occurring on account of death,
resignation, disqualification or removal of a member
of a society or through such a member becoming
incapable of acting previous to the expiry of his term
of office or otherwise, the Chairman of the Society
shall forthwith communicate the occurrence to the
Registrar (in the case of Societies falling under
Section 74-C(1)(i) and to the District Registrar, in
case of other Societies), and the vacancy shall be
filled as soon as conveniently, by holding bye-election
to fill the seat, and the provisions of these Rules shall
thereupon mutatis mutandis apply accordingly. The
person so elected shall hold office so long only as the
member of the Committee in whose place he is
elected would have held it, if the vacancy had not
occurred:
Provided that, if the vacancy occurs, within six
months, preceding the date on which the term of the
committee expires, the vacancy shall not be filled."
7.1. Having regard to the limited controversy which the
Court is required to deal with in the instant case, from the
perusal of Section 74(C)(2)(iii), the following aspects become
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very clear. (A) Upon a casual vacancy occurring, the
managing committee is under a mandate to fill up the causal
vacancy within a period of sixty days from the date of such
vacancy, and (B) If the term of the managing committee is less
than half of its original term, in a situation where the casual
vacancy is not filled up by the managing committee within a
period of sixty days, the State Government is empowered to
fill up such casual vacancy from the same class of categories
in respect of which the casual vacancy has arisen i.e. through
co-opting as compared to the requirement of filling the
vacancy through election.
7.2. While, prima facie, it would appear that the statute is
silent as regards the position which would happen if the
managing committee does not fill up the casual vacancy
within a period of sixty days and on the other hand, the
managing committee has more than half of its original term
remaining. While on first blush, more particularly, on a casual
reading of Section 74(C)(2)(iii), the above could be a possibly
noticeable interpretation but, in the considered opinion of this
Court, a careful reading of the said provision reveals
otherwise. It would appear that keeping in mind the fact that
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Section 74(C) provides for conducting of elections of
committees and officers of certain societies and term of office
of members of committees and whereas, upon a purposive
interpretation of the provision, it would appear that upon the
managing committee not complying with the mandate as
referred to herein above at the first instance, the State is
empowered to fill up the vacancy and in case, the term of the
managing committee is less than half of its original term, then
the State is empowered to fill up the vacancy out of the same
class of categories of members in respect of which the casual
vacancy has arisen.
7.3. Reading Section 74(C)(2)(iii) with Rule 73 of the 1982
Rules would clarify the issue even further. While Rule 73 inter
alia requires the chairman of the society to forthwith
communicate the occurrence of a vacancy to the Registrar in
case the society is apex society, and in case of other societies
including societies like the present, to the District Registrar.
The section also further requires the vacancy to be filled in at
the earliest by holding a bye-election.
7.4. Now, reading Section 74(C)(2)(iii) in context of the
explanation insofar as the present issue is concerned of Rule
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73, it would appear that in addition to (A) and (B) above, the
following would be the third aspect of the ambit of the
concerned provision i.e. (C) Upon the managing committee
failing to take steps to fill up the casual vacancy within sixty
days of its occurrence, the State Government is empowered to
fill up the casual vacancy through bye-election and in case the
term of the managing committee is less than half of its
original term, then the State Government is empowered to fill
up the vacancy out of the same class of categories of members
in respect of which the casual vacancy has arisen, without
holding any bye-election.
8. Having appreciated the scope and ambit of Section 74(C)
(2)(iii), now the Court will examine when would the power of
the State Government to fill up a vacancy through co-opting
take effect from.
8.1. From the explanation as above of Section 74(C)(2)(iii), it
would clearly appear that the statute has emphasized the
'date of such vacancy as being a crucial date.' such an intent
becomes clear when one considers that the mandate upon the
managing committee is to fill up the casual vacancy within
sixty days from the date of such vacancy and upon sixty days
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elapsing from the date of the vacancy, the responsibility shifts
to the State Government to fill up the said vacancy subject to
the condition that in case if the remaining term of the
managing committee is less than half, then the State
Government could fill up the vacancy by co-opting from the
same class of persons in which the vacancy had arisen. At this
stage, it would also be relevant to refer to Rule 73 of the 1982
Rules which inter alia envisages that the managing committee
would forthwith communicate about the vacancy occurring to
the Registrar or the Distract Registrar as the case may be and
whereas, the vacancy is required to be filled in as soon as
convenient.
8.2. Again, it would also be relevant to reiterate that the
ambit of the principle section i.e. Section 74(C) is with regard
to laying down the categories of societies which require
election to its managing committee of any other committee.
Thus, it would appear that filling up of the vacancy by holding
a bye-election is the rule and filling up of the vacancy from the
same class of persons in which the vacancy had arisen without
bye-election is exception to the general rule. It would appear
that the statute inter alia envisages that every casual vacancy
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in a cooperative society shall be filled in through election
upon intimation by the managing committee or the State
Government. Further, it is only upon the term of the managing
committee being less than half of its original term that the
State Government is empowered to do away with the holding
of an election. The question therefore would be that whether
an interpretation which sub-serves the intent of the statute or
the one which would sub-serve the exceptions to the general
rule, would be considered by the Court.
9. In the considered opinion of this Court, the issue may
not be required to be taken to the extent as referred to herein
above, more particularly, since it would appear that the intent
of the legislature to fix the date of occurrence of the vacancy
being the crucial date is clearly made out more particularly
since the mandate upon the managing committee and the
direction to the State Government are both corelatable to the
date of occurrence of the vacancy. The managing committee
being required to fill up the casual vacancy within a period of
sixty days of occurrence of the vacancy and upon not doing so,
the State Government being empowered to fill up the vacancy
and since the exception to the requirement of the State
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Government to fill up the vacancy by election being that term
of the managing committee should be less than half of its
original term than the crucial date from which the term of the
managing committee is to be calculated for deciding whether
they have less than half their term or not, would also be
necessarily, as a logical deduction of the above discussion, the
date on which such vacancy had occurred.
9.1. Again, if the interpretation of the respondent State is
accepted, then it would appear that the managing committee
or the State Government as the case may be, is required not
to take any steps for filling up of the vacancy and moment the
term of the managing committee is reduced to less than half
of its original term, then filling up the vacancy by a mode
other than bye-election which, in the considered opinion of
this Court would be going against the intent of the statute.
10. Furthermore, insofar as the aspect of considering the
meaning of the term date of (occurrence) of vacancy, the
same is dealt with in the decision of the Hon'ble Apex Court
relied upon by learned advocate for the petitioner in case of
Pramod Laxman Gudadhe (supra), where the Hon'ble Apex
Court was considering an issue with regard to the
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Representation of the People Act more particularly Section
151A thereof, whereby it was mandated that while a bye-
election for filling up of any vacancy shall be held within a
period of six months from the date of occurrence of the
vacancy and whereas the elections were not required to be
held if the term of the member in relation to a vacancy is less
than one year. In context of the dispute as above, the Hon'ble
Apex Court has inter alia observed that 'The command of
Secton 151A is to hold the election within a period of six
months from the date of occurrence of the vacancy. As the
factual score depicts, the vacancy occurred when the
resignation was accepted by the Speaker of Lok Sabha ... ...'
10.1. In the considered opinion of this Court, though Section
74(C)(2)(iii) does not mandate that bye-election for filling of
the vacancy is to be held within any particular period of time,
yet, the relevancy of the occurrence of vacancy is in the
context of considering the remaining term of the office of the
managing committee. In the considered opinion of this Court,
since a positive obligation is imposed upon the managing
committee/chairman, upon a conjoint of the Act and the Rule
as above, and thereafter upon the State Government, it would
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be required to be held that the vacancy is deemed to occur
more particularly in context of a resignation on the date when
the resignation had been accepted. In the considered opinion
of this Court, giving the provision any other meaning would be
doing violence to the mandate of the Act more particularly
since the Act as well as the Rule conjointly require positive
acts to be done by the authorities concerned.
10.2. It is also required to be observed here that taking any
other meaning of the term occurrence of vacancy would
permit the managing committee/chairman and the State
Government as the case may be not to do the positive act
contemplated to be done by the Act itself. Furthermore, giving
any other interpretation to the occurrence of vacancy would
lead to the authorities concerned getting a premium for their
inaction. The Act and the Rule read together, mandates that a
casual vacancy is required to be filled in by way of bye-
election as soon as convenient and whereas while the
managing committee is under an obligation to fill it within
sixty days of its occurrence, the State Government is under an
obligation to fill it as soon as convenient.
11. Insofar as the decision of the High Court of Bombay
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relied upon by learned AGP, it would appear that the Bombay
High Court was considering an issue with regard to the tenure
being available to a candidate who succeeds in a bye-election
and whereas the issue under consideration was totally
different than what is being considered by this Court. As
noted herein above, while the issue was what would be the
balance of term available to an in coming member who is
declared elected for the remainder of the term upon
occurrence of the vacancy, it is in this context that the High
Court had observed that if the balance term were to be
understood in relation to the member who resigns i.e. from
the date on which his resignation is accepted, then anomalous
situations are likely to occur. Again, it would be relevant to
mention that the provisions under consideration are also not
pari materia the same. Under such circumstances, in the
considered opinion of this Court, the observations of the High
Court of Bombay may not advance the cause of learned AGP.
11.1. Insofar as the preliminary objections made by learned
AGP, since it has been observed by this Court herein above
that the section mandates the managing committee and
thereafter the State Government to hold elections, therefore,
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neither the contention of acquiescence nor the contention that
the petition not being required to be entertained since it is
filed after a period of two and a half years of the term of the
managing committee, could be countenanced. Furthermore,
since it would appear that while the authority to conduct the
election would be the Collector or the officers nominated by
the Collector under Section 145(D) of the Act, yet, non-joinder
of the Collector would not be fatal since the directions are
sought against the State Government more particularly a
positive direction is sought against the respondent authorities
to act as per the mandate of the Act and the Rules and
whereas the Collector being a consequential authority who is
required to conduct the election as and when directed by the
Registrar/State Government, therefore, the submission of non-
joinder also would not advance the cause of learned AGP.
11.2. Thus, in the considered opinion of this Court, the date
from which the term of the managing committee is to be
counted for coming to a conclusion as to whether the
exception to holding election would come into play or not, is
the date when the vacancy had arisen. It is also clear that in
the instance case, the vacancy had arisen upon the
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resignation of the director referred to herein above was
accepted i.e. on 15.10.2022. It would further appear that the
vacancy had arisen two years and two months from the date of
election of the managing committee and hence, on that date
the managing committee had more than half of its original
term of five years remaining. Thus, considered from the above
angle, it would clearly appear that the vacancy was required
to be filled in by holding an bye-election.
12. Having regard to the discussion, observation and
conclusion as above, in the considered opinion of this Court,
the following directions are required to be passed:-
(i) The present petition is required to be allowed and the
same is allowed.
(ii) The respondents more particularly respondent no.2 is
directed to take appropriate steps in consonance with Section
74(C)(2)(iii) of the Act read with Rule 73 of the 1982 Rules for
filling up of the casual vacancy which has occurred in the
respondent no.4 society by holding bye-election from the same
constituency to which the resigning member had belonged.
(iii) The respondents more particularly, respondent no.3 is
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directed to take appropriate steps as per the mandate of
Section 74(C)(2)(iii) of the Act read with Rule 73 of the 1982
Rules for filling up of casual vacancy of respondent no.4
society by holding bye-election from the same constituency
from which the resigning member had belonged.
(iv) The respondents shall start taking appropriate steps in
accordance with the above within a period of two weeks from
the date of receipt of this order.
With the above directions, the present petition is
disposed of as allowed.
(NIKHIL S. KARIEL,J)
FURTHER ORDER
After the judgment is pronounced, learned AGP Mr.Jay
Trivedi on behalf of respondent State would request this Court
to stay operation of this order for some reasonable time for
the State Government to challenge the same. This request is
objected to by learned Advocate Mr.Baiju Joshi, more
particularly stating that since respondent No.4 is a specified
Society, the process of election would take minimum 78 days.
NEUTRAL CITATION
C/SCA/6392/2023 ORDER DATED: 04/08/2023
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Be that as it may, since in the considered opinion of this
Court, some positive actions are required to be done by the
respondents and further by the Collector for conducting of the
election, let the order as above be stayed for a period of four
weeks from the date this order is made available on the portal
of the Gujarat High Court.
(NIKHIL S. KARIEL,J)
Bhoomi
