Gujarat High Court

Sherasiya Inayat Husainbhai vs State Of Gujarat on 15 February, 2023

Bench: Bhargav D. Karia

     C/SCA/2233/2023                             JUDGMENT DATED: 15/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2233 of 2023

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA

================================================================

1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy               NO
      of the judgment ?

4     Whether this case involves a substantial question               NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?


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                       SHERASIYA INAYAT HUSAINBHAI
                                  Versus
                           STATE OF GUJARAT
================================================================
Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2,3,4,5
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
================================================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 15/02/2023

                             ORAL JUDGMENT

1. Heard, learned advocate Mr. Bharat T. Rao for

the petitioners and learned Assistant Government

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

Pleader Mr. Dhawan Jayswal for the respondent

Nos. 1 and 2. Though served, no one appears for

respondent Nos. 3 and 4.

2. Rule. Learned Assistant Government Pleader

Mr. Dhawan Jayswal waives service of notice of

rule on behalf of the respondent Nos. 1 and 2.

Notice of rule is not required to be issued upon

respondent Nos. 3 and 4 as the issues involved in

this petition are purely of legal nature and

character and sufficient assistance is rendered

by the learned Assistant Government Pleader

Mr. Jayswal.

3. Having regard to the controversy in narrow

compass, with the consent of the learned

advocates for both the sides, the petition is

taken up for final hearing.

4. By this petition under Article 226 of the

Constitution of India, the petitioners have

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

prayed for the following reliefs:

"38(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by quashing and setting aside the Amendment Order of delimitation of constituencies passed by respondent No. 2 on 6.2.2023 (Annexure-K) and further be pleased to quash and set aside the final voter list published by the respondent No. 2 and order dated 6.2.2023 (Annexure-M) passed by respondent No. 2 publishing the further election programme and be pleased to declare that the delimitation of constituencies made vide order dated 19.1.2023 of the respondent No. 2 is final and direct the respondent No. 2 to start the election process from the stage of preparation of voter list for the reasons stated in the memo of the petition and in the interest of justice.

(C) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay the further proceedings for the election of Vankaner Taluka Kharid Vechan Sahakari Sangh Ltd. for the reasons stated in the memo of the petition and in the interest of justice."

5. Brief facts of the case are as under:

5.1 The petitioners are authorised

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

representatives of their respective primary

cooperative societies registered under the

Gujarat Cooperative Societies Act, 1961

(hereinafter, "the Act") since years. The

primary cooperative societies to which the

petitioners belong to are dispensing agriculture

credit to its members. The societies are

affiliated with The Wankaner Taluka Sahakari

Kharid Vechan Sangh Ltd. (hereinafter, "the

Sangh").

5.2 The Election of Managing Committee of the

Sangh was held in the year 2017 under the

provisions of the Gujarat Specified Cooperative

Societies (Elections to Committees) Rules, 1982

(hereinafter, "the Rules, 1982"). The petitioner

No. 4 is the elected Member and Chairman of the

Sangh. The term of the Managing Committee had

expired on 23.01.2023. The Sangh called its

Annual General Meeting (AGM) on 17.09.2022,

Agenda of which, came to be circulated on

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06.09.2022 in due compliance with the provisions

of the Agenda was with regard to delimitation of

constituencies as per bye-law No. 29 of the bye-

laws of the Sangh.

5.3 In the meeting held on 17.09.2022 in which

all 47 Members of the General Board were present,

12 constituencies came to be made of which, each

constituency got four primary cooperative

societies which are affiliated to the Sangh. Out

of 47 Members, 04 members had objected such

delimitation made by the General Board. Such

objection was overruled keeping in view the bye-

laws of the Sangh by majority decision.

5.4 On 18.09.2022, the proceedings of the AGM was

published on the Notice Board of the Sangh,

however, as required under the Rules, 1982,

nobody raised any objection against the

delimitation of the constituencies.

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

5.5 On 14.11.2022, the Sangh forwarded a proposal

to the District Registrar, Cooperative Societies,

Morbi as required for the purpose of holding the

election of the Managing Committee, copy thereof,

came to be forwarded to the Collector, Morbi and

the Deputy Collector, Vankaner.

5.6 On 12.12.2022, the District Registrar,

Cooperative Societies, Morbi forwarded the

proposal of holding election of Managing

Committee of the Sangh to the Collector, Morbi.

5.7 On 19.01.2023, the Deputy Collector, passed

the order of delimitation of constituencies under

Rule 3(A)(9) of the Rules, 1982.

5.8 On 20.01.2023, provisional Voters' List was

published on the notice board of the Sangh and

the panchnama was also prepared.

5.9 The respondent No. 3 - Society submitted

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objections against publication of provisional

Voters' List on 27.01.2023 and also submitted

revised delimitation of considerations on its

own. The respondent No. 4 also raised objection,

without giving a copy to the Sangh, the

respondent No. 4 directly supplied the copy of

objection to the Deputy Collector.

5.10 On 30.01.2023, the respondent No. 2 - Deputy

Collector issued a notice to the objectors giving

its copy to the Sangh and fixed hearing on

01.02.2023. The Sangh submitted reply on

31.01.2023, 02.02.2023 and 05.02.2023.

5.11 On 06.02.2023, the respondent No. 2 passed

the Amendment Order of delimitation of

constituencies thereby, entirely changing the

delimitation and passed the order of delimitation

as suggested by respondent No. 3. On the same

day, the respondent No. 2 also published the

final Voters' List and published further election

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

programme. Being aggrieved, the petitioners have

preferred this petition with aforesaid prayers.

6. Mr. Bharat T. Rao, learned advocate for the

petitioners submitted that by the impugned order

dated 06.02.2023, the respondent No. 2 has sat as

appellate authority over his own order dated

19.01.2023 by treating the order dated 19.01.2023

passed under Rule 3(A)(9) of the Rules, 1982 as a

provisional order for delimitation.

6.1 It was submitted that there is nothing like

provisional delimitation order which could be

passed under the provisions of the Act and Rules,

1982.

6.2 Reliance was placed upon the decision of the

Hon'ble Supreme Court in the case of Rajkot

District Cooperative Bank Ltd. v. State of

Gujarat and Others, (2015) 13 SCC 401, to submit

that the Collector is required to exercise the

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power of delimitation of constituency or

constituencies prior to the publication of the

Voters' List or at the best simultaneously with

the publication of the Voters' List. It was

pointed out that in the facts of the case, the

order dated 19.01.2023 was issued for

delimitation of the constituencies of the Sangh

along with the provisional Voters' List and

therefore, subsequently on receipt any of

objections to the Voters' List, the Deputy

Collector who has already passed the order on

19.01.2023, could not have treated the said order

as provisional order for delimitation and could

not have passed an amended order of delimitation

on 06.02.2023.

6.3 It was further submitted that by passing an

amended order of delimitation, the entire

composition of the constituencies is changed and

thereby, the petitioners and other persons who

are desirous to contest the election, are

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

deprived of their support base of voters.

6.4 It was submitted that as per the provisions

of Rule 3(A)(8) read with Rule 3(A)(9) of the

Rules, 1982, the Collector or his delegated

authority i.e. Deputy Collector can pass an order

of delimitation prior to or at the best

simultaneously with the publication of the

Voters' List and once an order of delimitation is

passed, the authority becomes functus officio and

cannot re-look into it.

7. On the other hand, learned Assistant

Government Pleader Mr. Jayswal for the respondent

Nos. 1 and 2 referred to and relied upon the

averments made in the affidavit-in-reply filed on

behalf of the respondent No. 2 - Deputy Collector

and Election Officer and submitted that the order

dated 06.02.2023 is passed in consonance with the

directions issued in Full Bench decision of this

Court in the case of Narendrabhai Mahijibhai

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

Patel & 7 v. State of Gujarat & 5, passed in

Special Civil Application No. 12067 of 2015 and

cognate matters on 04.07.2013.

7.1 It was submitted that after issuance of the

order dated 19.01.2023, objections were received

by the respondent No. 2 and considering such

objections in the light of the observations made

by the Full Bench, the respondent No. 2 treated

the order dated 19.01.2023 as provisional

delimitation order and passed a fresh order on

06.02.2023 and therefore, the said order is legal

and tenable in law.

7.2 It was further submitted that election

declared by respondent No. 2 is already under

process and date for voting is fixed on

22.02.2023. It was, therefore, submitted that

this petition should not be entertained at this

stage and the petitioners should avail the remedy

of election petition if they are aggrieved by the

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

impugned order dated 06.02.2023.

7.3 In support of his submissions, the learned

Assistant Government Pleader has referred to and

relied upon following averments made in the

affidavit-in-reply filed by the respondent No. 2:

"3. It is respectfully submitted that the present petition under Article 226 of the Constitution of India is not maintainable for the following reasons:

a. That no fundamental rights and legal rights of the petitioners are infringed in any manner.

b. That the decision taken by the answering respondent is in accordance with provisions of Gujarat Cooperative Societies Act, 1961 and the Election to Committee Rules 1982 and the Gujarat Cooperative Societies Rules, 1965.

c. That there is no illegal or irregularities in decision making process, the decision arrived at by the answering respondent is just and proper.

d. That the petitioners in the petition have raised disputed question of facts, and the election of the Shree Vankaner Taluka

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Sahakari Kharid Vechan Sangh Ltd. is due to be held as the earlier term of the Members of the Board of Directors of the Society was expired on 23.01.2023. The Election program dated 06.02.2023 was published in accordance with law after following the provisions of the Gujarat Cooperative Societies Act, 1961 (Act of 1961) and the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982 (Rules of 1982) and in consonance with the Judgment passed by this Hon'ble Court and Hon'ble Supreme Court and accordingly Election procedure started and therefore also, the answering respondent prays before this Hon'ble Court that this petition may not entertained.

e. That present petition is also not maintainable for non-joinder of the necessary party as the petitioners have not joined the concerned Society as a party respondent in the present petition.

f. That in view of the aforesaid the answering respondent be allowed to proceed further with the steps in the direction of holding of free and fair election as all disputes which are raised in the present petition may be allowed to be raised after the election is completed.

4. That in view of the aforesaid present writ petition under Article 226 of the Constitution of India is not maintainable, more particularly the term

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

of the present Managing Committee expired on 23.01.2023 and therefore, all the issues raised in the writ petition may be allowed to be raised after the election is complete as provided under Section 145U of the Gujarat Cooperative Societies Act 1961 and in view of Rule 74 of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982.

            5. It    is   submitted    that   once   the
            election     process     has      commenced,

ordinarily the Hon'ble Courts may not exercise writ jurisdiction under Article 226 of the Constitution of India. The settled principle of law is laid down by Full Bench of this Hon'ble Court in Daheda Group Seva Sahakari Mandli Limited V. R. D. Rohit reported in 2006 (1) GCD 11 have held that 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. Thus, once the process of election is set in motion, the present petition invoking writ jurisdiction at this stage may be dismissed limine."

6. It is most humbly and respectfully submitted that the term of the Society was expired on 23.01.2023 and in view of the issue as decided by the Larger Bench of this Hon'ble Court and thereafter the Hon'ble Apex Court the election the State Authority has initiated the procedure for election of the Committee

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

members of the Society...."

7.4 Relying upon the above submissions on factual

aspects it was further referred to and rely upon

the following averments:

"13.I further say and submit that pursuant to the provisional Voters' List dated 19.01.2023, two objections were raised, one by respondent No. 4 herein i.e. Kadivar Ismail Fatemamad who had raised objection on 24.01.2023 and one by respondent No. 3 herein i.e. by Shree Kotada Nayani Seva Sahakari Mandli Ltd. on 27.01.2023. The copy of the objections dated 24.01.2023 and 27.01.2023 are annexed herewith and marked as Annexure-R2 Collectively.

14. I say and submit that after providing opportunity of hearing to all the concerned, and after verifying the actual geographical position of all the constituencies, the answering respondent had passed amended order on 06.02.2023 for delimitation of the constituencies by considering the area of the operation of the Specified Society and as per provisions of Section 3(A)(9) of the Election Rules, 1982. And further published the final voter list on 06.02.2023 by publishing the election program by fixing the further stages of election of the managing committee of the concerned Specified Society by fixing the date of election on

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22.02.2023. The copy of the amended order of delimitation dated 06.02.2023 is annexed at page no. 68 and the election program is annexed at page no. 76 with the memo of the petition.

15. I say and submit that keeping in mind the specific objection with regards to the delimitation of the constituencies and therefore the answering respondent respectfully submit that the verification of delimitation of the constituencies were carried out and after considering the geographical area of operation and situation of the all the constituencies and member primary societies, the answering respondent as per power conferred under Section 145(B) of the Act of 1961 and as per the provisions of Rules 3(A)(8) and (9) of the Election Rules of 1982 had passed order on 06.02.2023 of delimitation of the Constituencies of the concerned Specified Society. The chart showing the position as on 19.01.2023 and 06.02.2023 is placed at page no. 70 with the memo of the petition. I crave leave to rely upon the color map of the delimitation of 12 constituencies at the time of hearing of the present petition.

16. I say and submit that the election process has already commenced, with the election program being notified on 06.02.2023 and the Final Voters' List was published on 06.02.2023 and as per the different stages of the Election program, the stages of accepting and withdrawing of Nomination Form was over and name of contesting candidates will be published on 13.02.2023."

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7.5 Referring the above submissions made in the

affidavit-in-reply, it was submitted that the

respondent No. 2, after considering the

objections raised after publication of the

Voters' List, has passed the impugned order in

accordance with the observations made by the Full

Bench of this Court in the aforesaid decision.

8. Having heard the learned advocates for the

respective parties and having considered the

material on record, it appears that Rule 3(A)9 of

the Rules, 1982 confers powers upon the Collector

with regard to the delimitation of the

constituencies for the purpose of election. Rule

3(A)(9) of the Rules, 1982 reads as under:

"3A.Delimitation of constituencies for purpose of election.-(1) In every society where there are more than one constituencies, the Secretary or where there is a post of Secretary, the Chief Executive Officer of every such society shall, in the year preceding the year in which election to the Committee is scheduled to be held, prepare a

C/SCA/2233/2023 JUDGMENT DATED: 15/02/2023

provisional list of constituencies.

(2) Such list shall describe the limits of each constituency. A copy of the provisional list shall be displayed with a notice to be signed by the Secretary or where there is no post of Secretary, the Chief Executive Officer of the society on the notice board of every office or sub-office of the society. A copy of such provisional list along with the notice shall also be sent to the Registrar and to the Collector.

(3) A copy of such list along with notice shall also be sent to every member of the society by registered post.

(4) The notice referred to in sub-rule (2) and (3) shall clearly lay down that any objections or suggestions in respect of the provisional list may be sent by any person to the Secretary or where there is no post of Secretary, to the Chief Executive Officer of the society within a period of 15 days from the date on which the provisional list is displayed on the notice board of the office of the society.

(5) Any member of the society may bring to the notice of the society any omission or error in respect of the name or address or other particulars shown in the provisional list.

(6) Any person raising any objection or making a suggestion shall send such objection or suggestion with grounds therefor in writing within 15 days from

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the date on which the provisional list is displayed on the notice board of the office of the society.

(7) The society shall after considering every objection, suggestion or any error in the provisional list indicated by any member under sub-rule (5), prepare the final list. The final list shall be displayed on the notice board of the office or sub-office of the society and a copy of such final list shall be sent to the Registrar and also to the Collector.

(8) Where the area of operation of a society is in more than one village, the number of constituencies shall be equal to the total number of seats excluding two seats reserved under sub-section (1) of section 74-B.

(9) Notwithstanding anything contained in these rules and the bye-laws of the society, where the elections to the members of any Committee are scheduled to be held before the ending of the accounting year of the society, the delimitation of the constituencies shall be made by the Collector prior to the publication of the list of voters."

8.1 On perusal of the aforesaid Rule 3(A), it is

clear that notice is required to be issued for

inviting objections and suggestions in respect of

the provisional list which may be published for

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the purpose of delimitation and after considering

such objections, order is required to be passed

under sub-rule (9) where the elections to the

members of any Committee are scheduled to be held

before the ending of the accounting year of the

society. Under sub-rule (9), the delimitation of

the constituencies shall be made by the Collector

prior to the publication of the list of voters.

Therefore, once the order dated 19.01.2023 is

passed by the respondent No. 2 under the

delegated power of Collector under sub-rule (9)

of Rule 3(A) of the Rules, 1982 prior to the

issuance of Voters' List, it is final order of

delimitation after objections are invited as per

prescribed procedure under Rule 3(A) of the

Rules, 1982.

8.2 Therefore, once an order is passed under Rule

3(A)(9) of the Rules, 1982, the same cannot be

considered as 'provisional order of delimitation'

as on bare perusal of the order dated 19.01.2023,

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it is not in dispute that the said order is

passed under Rule 3(A)(9) of the Rules, 1982

after compliance of Rule 3(A)(2) to 3(A)(8) of

the Rules, 1982.

8.3 In the facts and circumstances of the case,

following observations made by the Hon'ble

Supreme Court in the case of Rajkot District

Cooperative Bank Ltd. (supra) are relevant:

"17.On a careful examination of Rule 3-A (8) of the Rules by us, it is made clear that the said provision is aimed at geographical i.e. territory or zone wise bifurcation or division. A salient feature of the Rule 3-A is the delimitation of the constituencies which includes all specified cooperative societies. Once the area of operation of any society is more than one village, Sub rule (8) would come into play and the requirement of the number of constituencies would be equal to the total number of seats, excluding two seats reserved for the categories as provided under section 74-B of the Act.

18. Further, the language of sub rule (9) of Rule 3-A, makes it clear that the rule making authority has graced the Collector with the power to delimit the constituency/constituencies prior to the

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publication of the voters list. The delimitation of the constituency/ constituencies should be prior to the preparation of the voters' list and/or in any case simultaneous with the preparation of voters' list but the voters list has to be as per the delimitation of the constituencies. The same is the case when the delimitation of the constituency is required to be made by the Collector prior to the publication of the list of voters.

19. Thus, when sub-rule (8) is read along with sub-rule (9) of Rule 3-A, where the society has the area of operation exceeding one village, even if the bye laws provide for single constituency, the seats provided by the bye laws has to be equal to the number of constituency/constituencies and therefore, for each seat, a separate constituency would be required to be delimited and if not so delimited by the society, of its own, it would be required for the Collector to exercise his power under sub rule (9) of Rule 3-A of the Rules for the delimitation of the constituency in accordance with the mandate of sub rule (8) of Rule 3-A and thereafter, the process for publication of the voters' list is to be given effect to.

20. The power conferred with the Collector for the delimitation of the constituency under sub rule (9) is independent and separate and only applicable in the case when the election of the members of any Management Committee of specified society is

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scheduled to be held. Further, as specified in the sub rule (9) of Rule 3- A, such powers are to be exercised by the Collector, notwithstanding anything contained in the bye laws of such society. The Collector has to exercise the power for delimitation of the constituencies prior to the publication of the list of voters. Further, as rightly stated by the High Court in the impugned judgment that when a specific power is conferred in a specific contingency to a different authority, such power has to be read in addition to the general power for the amendment in the bye-laws. Thus, the bye-laws of any society have to be in conformity with the provisions of the Act and the Rules."

8.4 The Hon'ble Supreme Court, in paragraph 18 of

the aforesaid decision, has held that the

language of sub-rule (9) of Rule 3-A makes it

clear that the Collector is required to pass an

order of delimitation of the constituencies prior

to the publication of Voters' List or at least in

any case, simultaneously to the preparation of

the Voters' List. But Voters' List has to be as

per the delimitation of the constituencies.

Therefore, in view of the above settled legal

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position read with Rule 3(A) of the Rules, 1982,