Gujarat High Court
The Uva Doodh Utpadak Sahakari Mandli ... vs State Of Gujarat on 4 March, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2348 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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THE UVA DOODH UTPADAK SAHAKARI MANDLI LTD. & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR RS SANJANWALA SENIOR ADVOCATE FOR MR BAIJU JOSHI(1207)
for the Petitioner(s) No. 1,2,3
MR JAY TRIVEDI AGP for the Respondent(s) No. 1,2,3,4,5
MR BS PATEL SENIOR ADVOCATE FOR MR CHIRAG B PATEL(3679) for
the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/03/2024
ORAL JUDGMENT
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1. RULE. Mr.Trivedi, learned Assistant Government Pleader
waives service of notice of rule on behalf of respondents No.1 to
5 and Mr. Patel, learned counsel waives service of notice of rule
on behalf of respondent No.6 - Society.
2. With the consent of learned counsel appearing for the
respective parties, the present petitions are taken up for final
hearing.
3. By way of present petition, the petitioners have prayed for
the following reliefs:-
"(A) This Hon'ble Court be pleased to issue a writ of
mandamus and/or any other appropriate writ, order or
direction, and thereby quash and set aside the election
program published by respondent No.5 dated 2.2.2024
produced at Annexure - B Collectively and further be
pleased to issue necessary direction and/or order, directing
the respondents to publish the fresh election program of
the Bardoli constituency of the respondent No.6 society in
consonance with the provision of the Act and the Rules
made thereunder and the Election Rules, 1982.
(B) During the pendency hearing and final disposal of this
petition, this Hon'ble Court be pleased to stay the
implementation, execution and operation of the election
program published by respondent No.5 dated 2.2.2024
produced at Annexure - B Collectively.
(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."
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4. Brief facts of the present petitions are that the petitioners
are the societies registered under the provisions of the Gujarat
Cooperative Societies Act, 1961 (hereinafter be referred to as
"the Act") read with Rules framed thereunder and the
petitioners are the member societies of respondent No.6 - Surat
Tapi District Cooperative Milk Producers' Union Limited which is
known as "Sumul". It is the case of the petitioners that
respondent No.6 is a specified society within the meaning of
Section 74C of the Act which is a federal society and election of
respondent No.6 is to be held under Chapter - XI of the Act read
with the Gujarat Specified Cooperative Societies Elections of
Committees Rules, 1982 (hereinafter be referred to as "the
Election Rules"). It is also the case of the petitioners that last
election of respondent No.6 was held in August 2020 and the
Board of Directors / Managing Committee came to be constituted
and on 15th October 2022, one of the directors had tendered the
resignation which had been accepted on the same date. That
since the resignation was tendered within a period of two and
half years from commencement of the term, fresh election was
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to be held for the Bardoli constituency of respondent No.6. As no
such election was held by the respondents, petitioner No.1 had
preferred Special Civil Application No.6392 of 2023 before thsi
Court which came to be allowed vide order dated 4 th August
2023 and the said order is attained finality and not challenged.
The respondents must hold the election of Bardoli constituency
of respondent No.6 in consonance with the provision of Chapter 0
XI of the Act r/w. The Election Rules. It is also the case of the
petitioners that the election process though was directed to be
commenced within a period of two weeks from the dare of
receipt of the order passed by this Court at a very belated stage
only in past i.e. on 2nd February 2024 respondent No.5 has
declared the election program of respondent No.6. It is
contended that such election program which is published in
sheer violation of the provisions of the Act and the Rules and the
Election Rules which has compelled the petitioners to file these
petitions.
5. Heard Mr. R. S. Sanjanwala, learned senior counsel with
Mr.Baiju Joshi, learned counsel for the petitioners, Mr.Jay Trivedi,
learned Assistant Government Pleader appearing for respondent
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No.1 to 5 and Mr. B. S. Patel, learned senior counsel for Mr.Chirag
Patel, learned counsel appearing for respondent No.6.
6. Mr. R. S. Sanjanwala, learned senior counsel with Mr.Baiju
Joshi, learned counsel for the petitioners has submitted the same
facts which are narrated in the memo of petition and has
submitted that Rule 3(a) of the Election Rules has not followed
by the respondents and only on such ground, the declaration of
election program deserves to be quashed and set aside. He has
submitted that neither copy of provisional list was displayed on
notice board of society nor the same was sent to member/s of
the society and, therefore, under Rule 3(a)(4) of the Election
Rules, no objection could be raised against any of the society. It
is also submitted by learned senior counsel that the member of
the Bardoli constituency would not know any omission or error in
the name, address and particulars shown in the provisional list
under Rule 3(a) and, therefore, there is an apparent error. He
has submitted that neither respondent No.6 nor the Collector nor
the District Registrar has complied with the mandatory provision
of Rule 4(2) to Rule 4(5) of the Election Rules. He has submitted
that as per the election program, the provisional voters list was
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published on 12th February 2024 and the objections thereof were
to be raised on 16th February 2024 and final voters list was to be
published on 17th February 2024. He has submitted that so far as
Rule 4 of the Election Rules is concerned, no such exercise is
undertaken as prescribed under Rule 4(1) to 4(5) of the Election
Rules and such mandatory provision is not followed. He has
submitted that considering the election program, such period of
seven days has not been given which is a statutory mandate
and, therefore, election program is faulty and in violation of Rule
6(2) of the Election Rules. He has submitted that after a period of
seven days from which the objections can be raised before the
Collector, the Collector has to decide within a period of ten days
and, therefore, there is violation of Rule 6 of the Election Rules.
He has submitted that there are two different stages after
declaration of publication of voters list i.e. provisional voters list
and final voters list and, thereafter, under Rule 16 of the Election
Rules, the second stage of the election is to be declared whereby
the other stages of election has been prescribed. It is submitted
that as per Rule 16 of the Election Rules, the last date, time and
place of making nominations should not be later than fifteen
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days from the date of order of the Collector, but the Collector
ordered to hold the election on 2 nd February 2024 and the second
part of the election program published under Rule 16 of the
Election Rules is erroneous. Mr.Sanjanwala, learned senior
counsel has submitted that under Rule 17 of the Election Rules, it
is incumbent upon the Collector to send a copy of the order
made under Rule 16 of the Election Rules if the number of voters
are not more than 500 and so far as Bardoli constituency of the
respondent - society is concerned, there are only 57 societies
who are voters and Rule 17(c) of the Election Rules has not been
complied with and, therefore, the election program is required to
be quashed and set aside. He has submitted that the election is
a highly technical subject wherein at every stage, the provision
of the statute and the Rules is to be adhered to and followed
strictly. He has submitted that so many lapses and errors are
committed while issuing the election program which would
clearly violated the provision of the Act and the Rules and,
therefore, the same would cause great prejudice to the
petitioners and others belong to the Bardoli constituency. He has
submitted that the petitioners are ready and willing to
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participate and eager to contest the election and even if the
present election is to be held, the same would cause great
prejudice to the petitioners. Mr.Sanjanwala, learned senior
counsel has urged that the present petition deserves to be
allowed and the election program published by respondent No.6
deserves to be quashed and set aside.
6.1 Mr. R. S. Sanjanwala, learned senior counsel with Mr.Baiju
Joshi, learned counsel for the petitioners has relied upon the
following decisions:
(1) Pundlik Vs. State of Maharashtra and others, (2005) 7 SCC
181;
(2) Khokhra Mehemdavad Seva Sahkari Mandli Ltd and others
Vs. State of Gujarat through Secretary and others, 2010
(1) GLH 550;
(3) Gangadharan Nair P. Vs. Bhaskaran M., (2017) 13 SCC
573;
(4) Union Territory of Ladakh Vs. Jammu and Kashmir National
Conference, 2023 JX (SC) 848;
(5) The Sabarkantha Jilla Sahkari Dudh Utpadak Sangh
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Limited Vs. The Vasana (Khed) Dudh Utpadak Sahkari
Mandali Limited through Chairman and others dated
23.02.2024 rendered in Letters Patent Appeal No.196 of
2024 and allied appeals;
7. In the case of Pundlik (supra), the Hon'ble Supreme Court
has held and observed in paras 7, 13, 14, 15, 17 and 18 as
under:-
"7. Having heard the learned counsel for the parties, in
our opinion, the appeal deserves to be allowed. So far as
the preliminary objection to the maintainability of
proceeding before this Court is concerned, it is no doubt
true, as submitted by the learned counsel for respondent
no. 7 that the members of the Managing Committee of the
Sangh have approached the High Court of Bombay,
Aurangabad Bench by instituting a writ petition which is
pending. But, it is equally true and is not disputed by
respondent no. 7 that the appellant had filed a petition in
the High Court of Bombay on 30.06.2005, i.e. prior to the
petition filed by seven members of the managing
Committee before Aurangabad Bench. Moreover, the
appellant is not a party to the said petition. So even if it is
assumed that the appellant was aware of filing of the writ
petition and pendency thereof, it was open to him to
approach this Court against a decision of the High Court
after his petition was dismissed. When the appellant
approached this Court by filing special leave petition on
21.07.2005, the petition at Aurangabad Bench was
pending and is still pending. It, however, cannot prevent
the appellant in approaching this Court. In our considered
opinion, non-disclosure of fact of filing a writ petition by
members of Managing Committee of respondent Sangh in
the Special Leave Petition in this Court cannot be said to
be material or vital so as to deprive the appellant to the
relief to which he is otherwise entitled. It cannot be said
that the appellant has not come with clean hands. Since
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the name of representative of respondent Sangh was not
changed as per the resolution, dated 9.06.2005, the
members were aggrieved and accordingly, they had
initiated proceedings in the High Court of Bombay,
Aurangabad Bench. Similarly, the appellant was aggrieved
since his name was not substituted for the name of
respondent no. 7 which is a distinct, separate and
independent cause of action. It was, therefore, open to him
to take proceedings against such decision and accordingly,
he had approached the High Court in June, 2005 and on
dismissal of the petition, he is in this Court. The
preliminary objection, therefore, is not well founded and
the appeal cannot be dismissed on that count.
13. We see considerable force in the contention of the
learned counsel for the appellant. Bare reading of R. 5(2)
makes it abundantly clear that the society which has
communicated the name of its delegate can change the
name of such delegate within the period stipulated therein.
It was, therefore, open to respondent Sangh to exercise
the said power in accordance with R. 5(2) which has been
done. It was the case of respondent no. 2 - Collector that in
the list of subjects of the meeting convened on 9.06.2005,
there was no subject for sending the name of
representative for the election of the Maha Sangh and yet
the representative was changed which was not proper. But
the learned counsel for the appellant has rightly referred to
the proceedings dated 9.06.2005, and in particular
Resolution no. 7. It is further clear from agenda notice
dated 2.06.2005, in which it was stated that the meeting of
Board of Directors of respondent Sangh would be held on
9.06.2005 for discussing various subjects and subject no. 7
related to the fax message received from the Collector,
Mumbai, respondent no. 2 in connection with the election
of respondent no. 3 Maha Sangh. Pursuant to the above
agenda notice, a meeting was held, subject no. 7 was
taken for consideration and Resolution no. 7 was passed.
By the said resolution, it was decided that instead of name
of respondent no. 7, name of appellant will be sent as
delegate and representative of respondent - Sangh and the
said resolution was forwarded to respondent no. 2 -
Collector. He was, therefore, under obligation to effect
change under R. 5(2) of the Rules. By not acting on the
resolution, the respondent no. 2 Collector has acted
contrary to law and the appellant was wholly justified in
making complaint before the High Court and praying for
exercise of writ jurisdiction under Art. 226 of the
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Constitution of India.
14. In our considered opinion, the ratio laid down in Sant
Sadguru Janardhan Swami does not apply to the facts of
the case. In that case, objections against publication of
provisional electoral roll of the society were filed which
were considered by the Collector and disposed of. Final
electoral roll was published on 2.07.1999. Election
programme was drawn by him on 21.10.1999. Thereafter,
the petitioner filed a petition under Art. 226 of the
Constitution of India in the High Court. A prayer was made
in the petition that the order passed by the Collector on
21.10.1999 was required to be set aside. Obviously,
therefore, the election process was already in motion and
prayer of the petitioner was for quashing of Schedule for
holding election. In the light of the factual position before
the court, the petition was dismissed and it was held that
the only remedy available to the aggrieved petitioner was
to file election petition after the election is over in
accordance with R. 81 of the Rules.
15. The Court stated :
"In view of our finding that preparation of the electoral roll
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 appellants to challenge the election of the returned
candidate, if aggrieved by means of an election petition
before the Election Tribunal."
17. In our opinion, the learned counsel for the appellant
is also right in submitting that if the order passed by
respondent no. 2 is upheld, the provisions of sub-r. (2) of R.
5 will become nugatory and otiose. When the rule making
authority conferred power on the Sangh to change the
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name of its representative/delegate by expressly
permitting the change of representative/delegate and
intimating the said fact to the Collector, such right cannot
be taken away or interfered with. Since the last date as per
the communication of the respondent no. 2 - Collector was
10.06.2005, the action of respondent - Sangh was within
the four corners of R. 5(2). The High Court was, therefore,
in error in not allowing the petition and granting the relief
to the appellant.
18. We are also supported in taking this view by a recent
three-Judge Bench decision in Ahmednagar Zilla S.D.V. & P.
Sangh Ltd. & Another V/s. State of Maharashtra & others.
In that case, election roll was prepared on the basis of bye
laws which were held to be illegal. When the action was
challenged it was contended that the court could not
interfere with the list of voters prepared in accordance with
the provisions of the Rules and the only remedy available
to the aggrieved party was to file election petition after the
election was over. Reliance was placed on Sant Sadguru
Janardan Swami. The Court, however, distinguished Sant
Sadguru Janardan Swami and held that where the voters'
list had been prepared on the basis of non-existent Rules,
it would be illegal and the court could interfere under Art.
226 of the Constitution of India."
7.1 In the case of Khokhra Mehemdavad Seva Sahkari
Mandli Limited (supra), the Division Bench of this Court has
held and observed in para 7, 8, 13, 14, 16, 16 and 20 as under:-
"7. In the submission of Mr. Joshi, in respect of the
ensuing election of the Board, every possible effort is
made to benefit the persons in power. In the
circumstances, the election process, though set in motion,
requires to be stayed. In support of his submissions Mr.
Joshi has relied upon the judgments in the matters of
Siddhpur Taluka Cooperative Purchase & Sales Union &
Ors. V/s. State of Guj. & Ors. [2002(2) GLR 1357] and of
Bhavnagar District Cooperative Bank Limited & Ors. V/s.
State of Guj. & Ors. [2006 (2) GLH 545].
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8. The petitions are contested by the Bank. Learned
Addl. Advocate General Mr. Mehta has appeared for the
Bank. He has submitted that the election process once set
in motion should not be stalled. Mr. Mehta has submitted
that Chapter XIA of the Act of 1961 provides a complete
machinery for election of the Committees of specified
societies. Sec. 145U provides for reference of disputes
relating to election to the Tribunal. The present petitioners
also, if they have any grievance in respect of the ensuing
election, shall have the statutory remedy of petition before
the Tribunal. The present petitions under Art. 226 of the
Constitution of India are, therefore, not maintainable. He
has submitted that it is now well settled that the election
programme once set in motion shall not be interfered with
or stalled and should be allowed to complete as
scheduled."
13. Sec. 22 of the Act of 1961 provides for the person
who may become member. sub-sec. (1) thereof provides,
inter alia, "no person shall be admitted as a member of a
society except the following." The categories which can be
accepted as member of the society are enumerated in
clauses (a) to (f) thereof. The Government of Guj. has
amended the aforesaid Sec. 22 by the Guj. Act No. 1 of
2008 published in the Government Gazette on 23rd
January, 2008. By the said amendment, after the aforesaid
clauses (a) to (f), clause (g) has been added to include, "a
group or the individuals eligible under clauses (a) -
whether incorporated or not and whether established or
not." In the submission of Mr. Mehta, the aforesaid
amendment has been made in furtherance of the policy of
the Government of India to advance financial assistance to
the unorganized individuals. In view of the said
amendment, the Cooperative Societies in the State of Guj.
are now permitted to admit the Self Help Groups to their
membership. The Bank proposed to amend its Bye-Law 8
(1) [4] in furtherance of the aforesaid policy, in consonance
with Sec. 22 [1] (g) of the Act of 1961. Pursuant to the
amendment to Bye-Law 8 (1) (4) the Bank has been able to
admit as many as 743 Self Help Groups to its membership.
He has submitted that the Self-Help Groups are informal
groups of unorganized individuals. The purpose of
inducting them as members of the Bank is to advance
financial assistance to such unorganized groups. Besides,
the Government of India also gives grant for advancing
financial assistance to such groups. Unless the Bye-Laws
were suitably amended and implemented before the year
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end, the Bank would have lost the amount of such grant to
the extent of Rupees 80 Crores. Since amendment to the
Bye-Laws, by 31st Mar. 2009 the Bank has admitted as
many as 743 such groups to its membership. He has also
submitted that a bare perusal of the amendment
sanctioned by the Registrar reveals that the proposed
amendment was not sanctioned for asking. Certain
amendments were sanctioned as proposed and certain
others were sanctioned with modification. Thus, it is
apparent that the sanction was accorded after proper
application of mind. In the submission of Mr. Mehta, there
is nothing suspicious or irregular about the election
process. The election process, having been set into motion,
should not be stayed. In support of his submissions, Mr.
Mehta has relied upon the judgments of the Hon'ble
Supreme Court in the matters of Shri Sant Sadguru
Janardan Swami [Moingiri Maharaj] Sahakari Dugdha
Utpadak Sansthan & Ors. V/s. State of Maharashtra & Anr.
[(2001) 8 SCC 509]; of M.S Madhusoodhanan & Anr. V/s.
Kerala Kaumudi (P) & Ors.[(2004) 9 SCC 204]; of Pundlik V/
s. State of Maharashtra & Ors. [AIR 2005 SC 3746]; of
Vadodara District Cooperative Sugarcane Producers' Union
Limited V/s. Chandrakantbhai Thakorebhai Patel & Ors.,
[(2005) 11 SCC 523], and of this Court, in the matters of
and of Valsad District Central Cooperative Bank Limited
V/s. State of Guj. V.H Shah, IAS or His Successor & Ors.
[2003 (2) GLH 459]; and of Siddhpur Taluka Cooperative
Purchase & Sales Union & Ors. V/s. State of Guj. & Ors.
[2002 (2) GLR 1357].
14. Learned Advocate General Mr. Trivedi has appeared
for the State Government. He has contested the petitions
on the principle that the election process having been set-
in-motion, need not be stalled. He admits that two days'
time was announced for receipt of the objections against
the provisional voters' list and for publication of final
voters' list. However, the final voters' list was published on
21st September, 2009 after statutory period of seven days.
Thus, in the submission of Mr. Trivedi, there was a
substantial compliance with the statutory requirement
under Rule 6 [2] of the Rules of 1982. He has relied upon
the judgment of the Full Bench of this Court in the matter
of Daheda Group Seva Sahakari Mandli Limited V/s. R.D
Rohit, Authorized Officer & Cooperative Officer [Marketing],
{2006 (1) GCD 211 (Guj.)FB].
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15. The contention requires to be rejected outright. The
Election Officer has evidently failed to perform his
statutory duty in accordance with the statutory mandate.
Sub-Rule (2) of Rule 6 of the Rules of 1982 expressly
allows seven days' time to a person to make claim or to
raise objection against the provisional list of voters. The
Election Officer could not have, at his own will, reduced the
said time to two days, as has been done in the present
case. This laxity in the functioning of the Election Officer
alone is sufficient to set-aside the final voter' list published
on 21st Sep. 2009 and the ensuing election.
16. We are conscious that the election of the Board of
Directors of the Bank has already been set into motion; the
final voters' list has also been published; Nomination
papers have been filed and the polling is scheduled on
14th Oct. 2009. Normally, the Courts do not interfere in the
election process once set in motion. In the present case,
however, this Court interferes with the election process for
the following reasons :
([1] Prima facie, we are not satisfied with the argument
that the expansion of the boundaries of the Ahmedabad
Municipal Corporation in exercise of powers conferred by
the Act of 1959 and the Constitution does not affect the
revenue limits of the Village Panchayats or Taluka
Panchayats or Municipalities or that the alteration does not
affect the constituencies of the Bank.)"
Subsequently, against the said order, the petitioners have
preferred appeal before the Hon'ble Supreme Court, which is still
pending and the Hon'ble Supreme Court has stayed order and
since then the election is not held.
7.2 In the case of Gangadharan Nair P., the Hon'ble Supreme
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Court has held and observed in para 3, 4, 5 and 6 as under:-
"3. On the previous occasions also, the people who
participated in the election were only few. In the years
2003 to 2008, of the 15001 voters, only 858 participated
and in the years 2009 to 2014, of the 13249 voters, only
1375 participated. But the fact remains is that there is no
proper compliance of the publication of the election
schedule. The publication was only in two vernacular
dailies, which have only a circulation of around 3000.
4. In the above circumstances, there shall be a direction
to the State Cooperative Election Commission to conduct
election afresh to the 4th respondent-society. The election
schedule shall be published in Kasaragod Page in Kannur
Edition of 'Malayala Manorama' and 'Mathrubhumi'.
5. Till the election, as above, is conducted, the Managing
Committee which has been in office pursuant to the election
which has been set aside now, will continue as an adhoc
committee.
6. The State Cooperative Election Commission shall
conclude the process of election expeditiously and in any
case, within six months from today."
7.3 In the case of Union Territory of Ladakh (supra), the
Hon'ble Supreme Court has held and observed in para 14, 16,
19, 31, 32, 35, 37 and 39 as under:-
"14. The relevant Paragraphs of the 1968 Order, attention
to which was drawn by the learned ASG and the learned
counsel for R1, are set out below:
"9. Restriction on the allotment of Symbols reserved for
State parties in States where such parties are not
recognised.- A symbol reserved for a State party in any
State-
(a) shall not be included in the list of free symbols for any
other State or Union territory, and
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(b) shall not be reserved for any other party which
subsequently becomes eligible, on fulfilment of the
conditions specified in paragraph 6, for recognition as a
State party in any other State:
Provided that nothing contained in clause (b) shall apply in
relation to a political party, for which the Commission has,
immediately before the commencement of the Election
Symbols (Reservation and Allotment) (Amendment) Order,
1997, already reserved the same symbol which it has also
reserved for some other State party or parties in any other
State or States.
10. Concessions to candidates set up by a State party at
elections in other States or Union territories.- If a political
party, which is recognised as a State party in some State
or States, sets up a candidate at an election in a
constituency in any other State in which it is not a
recognised State party, then such candidate may, to the
exclusion of all other candidates in the constituency, be
allotted the symbol reserved for that party in the State or
States in which it is a recognised State Party,
notwithstanding that such symbol is not specified in the list
of free symbols for such other State or Union territory, on
the fulfilment of each of the following conditions, namely:-
(a) that an application is made to the Commission by the
said party for exclusive allotment of that symbol to the
candidate set up by it, not later than the third day after the
publication in the Official Gazette of the notification calling
the election;
(b) that the said candidate has made a declaration in his
nomination paper that he has been set up by that party at
the election and that the party has also fulfilled the
requirements of clauses (b), (c), (d) and (e) of paragraph
13 read with paragraph 13A in respect of such candidate;
and
(c) that in the opinion of the Commission there is no
reasonable ground for refusing the application for such
allotment: Provided that nothing contained in this
paragraph shall apply to a candidate set up by a State
party at an election in any constituency in a State in which
that party is not a State Party and where the same symbol
is already reserved for some other State Party in that
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State.
10A. Concession to candidates set up by an unrecognized
party which was earlier recognized as a National or State
party.- If a political party, which is unrecognized at present
but was a recognized National or State party in any State
or Union territory not earlier than six years from the date
of notification of the election, sets up a candidate at an
election in a constituency in any State or Union territory,
whether such party was earlier recognized in that State or
Union territory or not, then such candidate may, to the
exclusion of all other candidates in the constituency, be
allotted the symbol reserved earlier for that party when it
was a recognized National or State party, notwithstanding
that such symbol is not specified in the list of free symbols
for such State or Union territory, on the fulfillment of each
of the following conditions, namely:-
(a) that an application is made to the Commission by the
said party for the exclusive allotment of that symbol to the
candidate set up by it, not later than the third day after the
publication in the Official Gazette of the notification calling
the election;
(b) that the said candidate has made a declaration in his
nomination paper that he has been set up by that party at
the election and that the party has also fulfilled the
requirements of clauses (b), (c), (d) and (e) of paragraph
13 read with paragraph 13A in respect of such candidate;
and
(c) that in the opinion of the Commission there is no
reasonable ground for refusing the application for such
allotment:
Provided that nothing contained in this paragraph shall
apply to a candidate set up by the said party at an election
in any constituency in a State or Union territory where the
same symbol is already reserved for some other National
or State party in that State or Union Territory.
Xxx
12. Choice of symbols by other candidates and allotment
thereof.-(1) Any candidate at an election in a constituency
in any State or Union territory, other than-
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(a) a candidate set up by a National Party; or
(b) a candidate set up by a political party which is a State
Party in that State; or
(c) a candidate referred to in paragraph 10 or paragraph
10A;
shall choose, and shall be allotted, in accordance with the
provisions hereafter set out in this paragraph, one of the
symbols specified as free symbols for that State or Union
territory by notification under paragraph 17.
(2) Where any free symbol has been chosen by only one
candidate at such election, the returning officer shall allot
that symbol to that candidate and to no one else.
(3) Where the same free symbol has been chosen by
several candidates at such election, then-
(a) if of those several candidates, only one is a candidate
set up by an unrecognised political party and all the rest
are independent candidates, the returning officer shall allot
that free symbol to the candidate set up by the
unrecognised political party, and to no one else; and, if,
those several candidates, two or more are set up by
different unrecognised political parties and the rest are
independent candidates, the returning officer shall decide
by lot to which of the two or more candidates set up by the
different unrecognised political parties that free symbol
shall be allotted, and allot that free symbol to the
candidate on whom the lot falls, and to no one else:
Provided that where of the two or more such candidates
set up by such different unrecognized political parties, only
one is, or was, immediately before such election, a sitting
member of the House of the People, or, as the case may
be, of the Legislative Assembly (irrespective of the fact as
to whether he was allotted that free symbol or any other
symbol at the previous election when he was chosen as
such member), the returning officer shall allot that free
symbol to that candidate, and to no one else;
(b) if, of those several candidates, no one is set up by any
unrecognised political party and all the independent
candidates, but one of the independent candidates is, or
was, immediately before such election a sitting member of
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the House of the People, or, as the case may be, of the
legislative Assembly, and was allotted that free symbol at
the previous election when he was chosen as such
member, the Returning Officer shall allot that free symbol
to that candidate, and to no one else; and
(c) if, of those several candidates, being all independent
candidates, no one is, or was, a sitting member as
aforesaid, the returning officer shall decide by lot to which
of those independent candidates that free symbol shall be
allotted, and allot that free symbol to the candidates on
whom the lot falls, and to no one else."
16. It requires no reiteration that the powers of this Court
and the High Courts vested under the Constitution cannot
be abridged, excluded or taken away, being part of the
Basic Structure of our Constitution. Reference need only be
made to decisions in His Holiness Kesavananda Bharati
Sripadagalvaru v State of Kerala, (1973) 4 SCC 225 ; Indira
Nehru Gandhi v Raj Narain, 1975 Supp SCC 1 ; Minerva
Mills Ltd. v Union of India, (1980) 3 SCC 625 ; L Chandra
Kumar v Union of India, (1997) 3 SCC 261 and more
recently, to Kalpana Mehta v Union of India, (2018) 7 SCC
1 and Rojer Mathew v South Indian Bank Limited, (2020)
6 SCC 1 , all of which were rendered by a Bench of 5 or
more learned Judges. Section 12 of the 1997 Act need not
detain us. Insofar as Section 13 of the 1997 Act is
concerned, it is by now too well-settled that the availability
of alternative efficacious remedy is no bar to the exercise
of high prerogative writ jurisdiction, in the light of various
decisions, including but not limited to, State of Uttar
Pradesh v Mohammad Nooh, 1958 SCR 595 ; Madhya
Pradesh State Agro Industries Development Corporation
Ltd. v Jahan Khan, (2007) 10 SCC 88 ; Maharashtra Chess
Association v Union of India, (2020) 13 SCC 285 . Even on
the anvil of Radha Krishan Industries v State of Himachal
Pradesh, (2021) 6 SCC 771 , Section 13 of the 1997 Act
does not, and cannot, impede a Constitutional Court from
proceeding further. We do not wish to multiply established
authorities on the point but would add the very
recent Godrej Sara Lee Ltd. v Excise and Taxation Officer-
cum-Assessing Authority, 2023 SCC OnLine SC 95 to the
list enumerated above.
19. The observations adore-referred are in perfect sync
with what is expected of Constitutional Courts. They are
not restricted only to Articles 32 or 226 of the Constitution
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but lay down a talisman of sorts.
31. Another major issue canvassed by the learned ASG
on behalf of the Appellants, to the effect that no relief be
granted to R1 due to the election process having reached
the penultimate stage, unfortunately, has also to be noted
to be rejected. Having chosen, with eyes open, to not
comply with successive orders of the learned Single Judge
and the learned Division Bench, both of which were passed
well in time, such as not to stall/delay the notified election
schedule, the Appellants cannot be permitted to plead that
interference by us at this late juncture should not be
forthcoming.
32. The Court would categorically emphasize that no
litigant should have even an iota of doubt or an impression
(rather, a misimpression) that just because of systemic
delay or the matter not being taken up by the Courts
resulting in efflux of time the cause would be defeated,
and the Court would be rendered helpless to ensure justice
to the party concerned. It would not be out of place to
mention that this Court can even turn the clock back, if the
situation warrants such dire measures. The powers of this
Court, if need be, to even restore status quo ante are not
in the realm of any doubt. The relief(s) granted in the lead
opinion by Hon. Khehar, J. (as the learned Chief Justice
then was), concurred with by the other 4 learned Judges,
in Nabam Rebia and Bamang Felix v Deputy Speaker,
Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 is
enough on this aspect. We know full well that a 5-Judge
Bench in Subhash Desai v Principal Secretary, Governor of
Maharashtra, 2023 SCC OnLine SC 607 has referred
Nabam Rebia (supra) to a Larger Bench. However, the
questions referred to the Larger Bench do not detract from
the power to bring back status quo ante. That apart, it is
settled that mere reference to a larger Bench does not
unsettle declared law. In Harbhajan Singh v State of
Punjab, (2009) 13 SCC 608 , a 2-Judge Bench said:
"15. Even if what is contended by the learned counsel is
correct, it is not for us to go into the said question at this
stage; herein cross-examination of the witnesses had
taken place. The Court had taken into consideration the
materials available to it for the purpose of arriving at a
satisfaction that a case for exercise of jurisdiction under
Section 319 of the Code was made out. Only because the
correctness of a portion of the judgment in Mohd. Shafi
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[(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR
1023 : (2007) 5 Scale 611] has been doubted by another
Bench, the same would not mean that we should wait for
the decision of the larger Bench, particularly when the
same instead of assisting the appellants runs counter to
their contention." (emphasis supplied)
35. We are seeing before us judgments and orders by
High Courts not deciding cases on the ground that the
leading judgment of this Court on this subject is either
referred to a larger Bench or a review petition relating
thereto is pending. We have also come across examples of
High Courts refusing deference to judgments of this Court
on the score that a later Coordinate Bench has doubted its
correctness. In this regard, we lay down the position in law.
We make it absolutely clear that the High Courts will
proceed to decide matters on the basis of the law as it
stands. It is not open, unless specifically directed by this
Court, to await an outcome of a reference or a review
petition, as the case may be. It is also not open to a High
Court to refuse to follow a judgment by stating that it has
been doubted by a later Coordinate Bench. In any case,
when faced with conflicting judgments by Benches of equal
strength of this Court, it is the earlier one which is to be
followed by the High Courts, as held by a 5-Judge Bench
in National Insurance Company Limited v Pranay Sethi,
(2017) 16 SCC 680 [5] . The High Courts, of course, will do
so with careful regard to the facts and circumstances of
the case before it.
[5] See Paragraphs 27 and 28 in the report on this point.
37. We would indicate that the restraint, self-imposed, by
the Courts as a general principle, laid out in some detail in
some of the decisions supra, in election matters to the
extent that once a notification is issued and the election
process starts, the Constitutional Courts, under normal
circumstances are loath to interfere, is not a contentious
issue. But where issues crop up, indicating unjust
executive action or an attempt to disturb a level-playing
field between candidates and/or political parties with no
justifiable or intelligible basis, the Constitutional Courts are
required, nay they are duty-bound, to step in. The reason
that the Courts have usually maintained a hands-off
approach is with the sole salutary objective of ensuring
that the elections, which are a manifestation of the will of
the people, are taken to their logical conclusion, without
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delay or dilution thereof. In the context of providing
appropriate succour to the aggrieved litigant at the
appropriate time [10] , the learned Single Judge acted
rightly. In all fairness, we must note that the learned ASG,
during the course of arguments, did not contest the power
per se of the High Court to issue the directions it did,
except that the same amounted to denying the Appellants
their discretion. As stated hereinbefore, we are satisfied
that in view of the 1968 Order, the Appellants discretion
was not unbridled, and rather, it was guided by the 1968
Order.
[10] B S Hari Commandant v Union of India, 2023 SCC
OnLine SC 413 @ Paragraph 50.
39. This case constrains the Court to take note of the
broader aspect of the lurking danger of authorities
concerned using their powers relating to elections
arbitrarily and thereafter, being complacent, rather over-
confident, that the Courts would not interfere. The
misconceived notion being that in the ultimate eventuate,
after elections are over, when such decisions/actions are
challenged, by sheer passage of time, irreversible
consequences would have occurred, and no substantive
relief could be fashioned is just that - misconceived.
However, conduct by authorities as exhibited herein may
seriously compel the Court to have a comprehensive re-
think, as to whether the selfimposed restrictions may need
a more liberal interpretation, to ensure that justice is not
only done but also seen to be done, and done in time to
nip in the bud any attempted misadventure. We refrain
from further comment on the Appellants, noting the
pendency of the contempt proceeding."
7.4 In the case of The Sabarkantha Jilla Sahkari Dudh
Utpadak Sangh Limited (supra), the Division Bench of this
Court has held and observed in para 19, 20 and 29 as under:-
"19. Having heard learned counsels for the parties and
perused the record, the question as posed by us, noted
above to be addressed by us by considering two issues;
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firstly are as to what would be the date of commencement
of the election process and secondly, whether it was open
for the Returning Officer to decide that the election would
be held as per the amended bye-laws, if it is found that the
process has already commenced prior to 09.02.2024, i.e.
the date of declaration of the schedule of the Election
Programme.
20. To answer the said issues, we may go through the
provisions of the Rules, 1982 which apply to the elections
to the Committees of Specified Societies as per the Rule
1(3) of the Rules' 1982. Rule 3 mandates the District
Registrar to send a report to the Collector, before drawing
up the accounts, the details of the Societies in his District
along with the two copies of the bye-laws of each of the
such Societies. Rule 3A deals with the process of
delimitation of constituencies in every society in which the
election to the Committee is scheduled to be held. Rule 4
pertains to preparation of provisional list of voters for the
year in which general election is due to be held, also
incorporating the persons who are members on the date of
drawing up the accounts of the year in which such election
is due. It talks of preparation of constituencies as per the
bye-laws. Sub-rule (3) of Rule 4 states that while sending
the provisional list of voters, every society shall send in
writing to the Collector, a list of members, who are
disqualified to vote as per the provisions of the Act Rule or
its bye-laws.
We do not find any substance in the submission of the
learned Senior Counsels for the appellants that in
entertaining the writ petition, the learned Single Judge has
made any effort in interfering with the process of election.
Rather, it seems to us that the learned Single Judge by
passing the order impugned has ensured that the rule of
law is followed and the elections are conducted strictly in
accordance with the provisions of the Rules' 1982 and as
per the applicable bye-laws of the Society as on the date of
commencement of the election process. We are in
complete agreement with the finding of the learned Single
Judge that the preparation of the provisional voters list is
an integral part of the election process and the entire
process of election beginning from the stage of preparation
of the provisional voters list, finalization of electoral rolls,
holding of elections and declaration of the result of the
elections shall have to be conducted in view of the scheme
of the Act and Rules' 1982 and the unamended (existing)
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byelaws applicable to the Society. We are in sync with the
observation of the learned Single Judge that the amended
byelaws cannot be given retrospective effect and is to be
treated as prospective."
8. Mr.Jay Trivedi, learned Assistant Government Pleader
appearing for the respondent - State Authorities has submitted
that respondent No.6 is a specified society as per Section 74C of
the Act and the petitioners are the members of respondent No.6
and election of respondent No.6 came to be held on 9 th August
2020 and the terms of which has been expired on 8 th August
2025 and on 15th October 2022, one of the Direct Mr.Ajitbhai
Patel, who was elected had given his resignation and
consequently, the seat came to be vacant. He has submitted that
to fill up the casual vacancy, as per Section 74C(2)(ii) of the Act
read with Rule 73 of the Election Rules, the elections were
required to be held and the writ petition came to be filed being
Special Civil Application No.6392 of 2023 whereby this Court
directed the respondents to hold the elections. He has submitted
that the petition is not maintainable on the ground of availability
of alternative remedy under Section 145U of Chapter - XI of the
Act r/w. Rule 74 of the Rules. It is submitted by the learned AGP
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that the election process has already commenced and election
program as per Rule 16 was commence from 19.02.2024 and,
therefore, once the election process has started would amount to
interfering with the election process. He has referred to and
relied upon the decision of the Hon'ble Supreme Court in the
case of Shri Sant Sadguru Janardan Swami (Moingiri)
Maharaj Sahakari Dugdha Utpadak Sanstha Vs. State of
Maharashtra reported in (2001) 8 SCC 509 and has submitted
that if there is breach of Election Rules in preparation of electoral
roll, the same can be called in question after declaration of result
by means of an election petition. He has submitted that there are
56 societies in the Bardoli constituency and out of 56 members,
the present petitioners have aggrieved by the election program
and respondent No.6, whose seat is to be filled by election, is
also not aggrieved by election program and thus, only at the
behest of the present petitioners, the election program cannot
be quashed. He has submitted that as per Rule 3A will not be
required to conduct the procedure since the bye-elections are
pertaining to only one constituency. It is submitted by the
learned AGP that respondent - union submitted provisional voter
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list of Bardoli Taluka Constituency prepared as per Rule 4 of the
Election Rules on 16.10.2023 and the voter list is published on
12.02.2024 to the office of the Election Officer, Deputy Collector,
Bardoli and the District Registrar, Surat. In the case of Shri
Sant Sadguru Janardan Swami (Moingiri) Maharaj
Sahakari Dugdha Utpadak Sanstha (supra), relied upon by
the learned AGP, the Hon'ble Supreme Court has held and
observed in para 4, 7, 9 and 12 as under:-
"4. On the arguments raised by the learned counsel for
the parties the questions that arise for consideration are :
(1) whether the preparation of the electoral roll for electing
members to the Managing committee of a specified
Society under the provision of the Act and rules framed
thereunder is an intermediate stage in the process of
election; and (2) If the answer to the first question is in the
affirmative, whether the High Court should interfere with
the preparation of an electoral roll in a petition under
Art.226 of the Constitution or decline to interfere in the
matter leaving the parties to get the matter adjudicated by
the tribunal by filing an election petition after declaration
of result of the election.
7. Claims and objections to provisional list of voters.-
(1) When any provisional list of voters is published for
inviting claims and objections, any omission or error in
respect of the name or address or other particulars in the
list may be brought to the notice of the Collector by any
member of Society concerned who is a voter or any
delegate authorised to vote on behalf of such Society.
(2) Every person making a claim or raising on objection
shall do so by a separate petition, which shall be presented
to the Collector on or before the 31st July, during office
hours.
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(3) Every claim or objection shall be preferred in writing
and state the grounds on which the claim is based or the
objection is raised, as the case may be.
(4) xxx xxxx
(5) Notwithstanding anything contained in sub-rule (4) any
person who is a member of the Society as on the 30th day
of June of the year immediately preceding the year in
which such election is due or on such subsequent date as
may be fixed by the Collector under sub-rule (1) of Rule 4
and whose name is not included in the final list of voters
prepared by the Collector under sub-rule (4) and who is
desirous of being registered as a voter may apply in writing
to the Collector in Form A within a period of fifteen days
from the date of display of the final list of voters under
Rule 7.
(6) Every such application received by the Collector shall
be forwarded by him within three days of the date of
receipt by him to the District Deputy Registrar for enquiry.
The District Deputy Registrar shall cause an enquiry to be
made into the application and submit his report to the
Collector along with his recommendations within seven
days from the date of receipt of the application by him
from the Collector.
(7) The Collector shall after considering the application and
the report of the District Deputy Registrar give his decision
in writing to the person concerned, before the first date
fixed for making nominations. If the Collector decides that
the name of the applicant should be registered as a voter,
he shall accordingly modify the list finalised by him earlier
under sub-rule (4) and the list so modified shall then be
treated as the final list of voters.
(7) Final list of voters.-Copies of the final list of voters of
every Society shall be displayed on the notice board of
offices of the Collector, the District Deputy Registrar and
the Society.
(8) Power to Collector to alter dates for list of voters -
Notwithstanding anything contained in the foregoing rules,
the Collector may, in the case of all or any of the societies
of the categories mentioned in clauses (i), (v), (vi) and (vii)
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of sub-sec. (1) of Section 73G in consultation with the
Registrar, and in the case of all or any of the societies of
the categories mentioned in other clauses of sub-sec. (1) of
Section 73G in consultation with the District Deputy
Registrar, by general or special order, alter all or any of the
dates prescribed therein and appoint such revised dates as
he deems fit.
(8) Appointment of Returning Officers.
The Collector shall whenever necessary appoint a
Returning Officer for one or more constituencies of a
Society as specified in its bye-laws:
Provided that, in case where no other person is appointed
as a Returning Officer, the Collector himself shall be
deemed to be the Returning Officer and shall perform all
the functions of a Returning Officer under these rules."
(7) In the light of the aforestated provisions of Chapter XIA
of the Act and the Rules, we will examine as to whether
preparation of electoral rolls is an intermediates stage in
the process of election. The provisions referred to above
shows that Chapter XIA was enacted and the rules were
framed specially to deal with the election of the specified
societies under Section 73G of the Act. Section 144X
provides that various stages of election shall also include
preparation of the list of voters. Once the statute provides
that the preparation of the voters' list shall be part of the
election process, there is no reason to hold that the
preparation of the electoral roll is not an intermediate
stage in the process of the election of a specified Society.
This matter can be examined from another angle. A
perusal of the Rules discloses that the preparation of
provisional list of voters, filing of objection against the
provisional list of voters, consideration of the objection by
the Collector and finalising the list of voters, all occur in
the Rules which cover the entire process of the election.
The Rules framed for election of specified societies are
complete code in itself providing for the entire process of
election beginning from the stage of preparation of the
provisional voters list, decision on the objection by the
Collector, finalisation of electoral rolls, holding of election
and declaration of result of the election. In view of the
scheme of the Act and Rules, the preparation of voters' list
must be held to be part of the election process of
constituting Managing Committee of a specified Society. In
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Someshwar Sahakari Sakhar Karkhana Ltd.
Someshwarnagar V/s. Shriniwas Patil, Collector, Pune, 1992
Maha. L J 833, it was held that in the scheme of the
provisions of the Act and the Rules, the preparation of the
list of voters for election to the Managing Committee of a
specified Society is an intermediate stage in the process of
the election. Similar view was taken in Shivnarayan
Amarchand Paliwal v.. Vasantrao Vithalrao Gurjar, 1992
Mah LJ 1052. However, in Karbhari Maruti Agawan V/s.
State of Maharashtra 1994 Mah L J 1527, although it was
held that the preparation of the list of voters is an
intermediate stage in the process of election, but that does
not debar the High Court to entertain a petition under Art.
226 of the Constitution challenging the validity do the
electoral roll. It appears that the consistent view of the
Bombay High Court on the interpretation of Chapter XIA of
the Act and the Rules framed thereunder is that the
preparation of electoral roll is an intermediate stage of the
election process of the specified societies. This being the
consistent view of the High Court on the interpretation of
provisions of a State Act, the same is not required to be
disturbed unless it is shown that such a view of the High
Court is palpably wrong or ceased to be good law in view of
amendment in the Act or any subsequent declaration of
law. We are, therefore, of the view that the preparation of
the electoral roll for election of the specified Society under
Chapter XIA and the Rules framed thereunder, is an
intermediate stage in the process of election for
constituting Managing Committee of a specified Society.
9. If the contention of the appellant is that if there was
a breach of rule or certain mandatory provisions of the
rules were not complied with while preparing of the
electoral roll, the same could be challenged under Rule 81
(d)(iv) of the Rules by means of an election petition. In
view that, the preparation of electoral roll is part of the
election process and if there is any breach of the rules in
preparing the electoral roll, the same can be called in
question after the declaration of the result of the election
by means of an election petition before the tribunal.
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
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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."
8.1 Learned Assistant Government Pleader has submitted that
the present petitioners have filed their objections against the
publication of the voters list on 16th February 2024 at the fag end
of preparing the voter list on the last date and the same was
decided by the Election Officer on the same date i.e. 16 th
February 2024. He has submitted that as per Rule 7 of the
Election Rules, the final voters list shall be published and no time
period is prescribed for such publication. He has submitted that
as per Rule 16 of the Election Rules, the last date, time and place
of making nominations shall not be later than 15 days from the
order of the Collector and the order of the Collector would imply
the date when the order under Rule 16 is passed i.e. not later
than 15 days from 2nd February 2024. He has submitted that the
respondent No.5 has complied with all the timelines as per the
Rules and the bye election program under Rules 4, 5 and 6 and
bye elections scheduled by respondent No.5 under Rule 16 is just
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and proper. Learned Assistant Government Pleader has referred
to and relied upon the affidavit-in-reply and has submitted that
the present petition being meritless deserves to be dismissed.
9. Mr. B. S. Patel, learned senior counsel with Mr. Chirag Patel,
learned counsel appearing for respondent No.6 has submitted
that the election process has already started, in that event, in
view of provision of Section 145U of the Act alternative remedy is
available to the petitioners after the election is over. So far as
the contention raised by the petitioners with regard to the fact
that respondent No.6 has not complied with the provisions of
Rule 3A(1) of the Election Rules is concerned, he has submitted
that the said rule is not applicable to respondent No.6 as it has
got area of more than one village. He has submitted that the
seat fall vacant long back and once the process has been started
for filling up the vacancies, no stay may be granted in favour of
the petitioners. He has submitted that the petition being
meritless deserves to be dismissed.
9.1 Mr.Patel, learned senior counsel appearing for respondent
No.6 has relied upon the following decisions.
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(1) Election Commission of India through Secretary Vs. Ashok
Kumar and others, (2000) 8 SCC 216;
(2) Vadodara District Cooperative Sugarcane Producers'
Union Ltd Vs. Chandrakantbhai Thakorebhai Patel and
others, (2005) 11 SCC 523;
(3) Chandrakantbhai Thakorbhai Patel Vs. J. R. Dodia or His
Successor in the Office dated 07.04.2005 rendered in
Special civil Application No.5476 of 2005;
10. In the case of Election Commission of India (supra), the
Hon'ble Supreme Court has held and observed in para 12, 13,
17, 18, 32 and 33 as under:-
"12. The issue arising for decision in these appeals is the
jurisdiction of the High Court to entertain petitions under
Art. 226 of the Constitution of India and to issue interim
directions after commencement of the electoral process.
13. Article 324 of the Constitution contemplates
constitution of the Election Commission in which shall vest
the superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of, all
elections to Parliament and to the Legislature of every
State and of elections to the offices of President and Vice-
President held under the Constitution. The words
"superintendence, direction and control" have a wide
connotation so as to include therein such powers which
though not specifically provided but are necessary to be
exercised for effectively accomplishing the task of holding
the elections to their completion. Art. 329 of the
Constitution provides as under :-
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329. Bar to interference by Courts in electoral matters.-
Notwithstanding anything in this Constitution.-
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies, made or purporting to be made under Art.
327 or Art. 328, shall not be called in question in any
Court;
(b) no election to either House of Parliament or to the
House or either House of the Legislature of a State shall be
called in question except by an election petition presented
by such authority and in such manner as may be provided
for by or under any law made by the appropriate
Legislature.
17. That the power of judicial review is a basic structure of
Constitution - is a concept which is no longer in issue.
18. Is there any conflict between the jurisdiction conferred
on the High Courts by Art. 226 of the Constitution and the
embargoes created by Art. 329 and if so how would they
co-exist came up for the consideration of a Constitution
Bench of this Court in N.P. Ponnuswami V/s. The Returning
Officer, Namakkal Constituency, AIR 1952 SC 64. The law
enunciated in Ponnuswami was extensively dealt with, also
amplified, by another Constitution Bench in Mohinder Singh
Gill V/s. The Chief Election Commissioner, New Delhi, AIR
1978 SC 851. The plenary power of Art. 329 has been
stated by the Constitution Bench to be founded on two
principles : (1) The peremptory urgency of prompt
engineering of the whole election process without
intermediate interruptions by way of legal proceedings
challenging the steps and stages in between the
commencement and the conclusion; (2) The provision of
special jurisdiction which can be invoked by an aggrieved
party at the end of the election excludes other form, the
right and remedy being creatures of statutes and
controlled by the Constitution. On these principles the
conclusions arrived at in Ponnuswami's case were so
stated in Mohinder Singh Gill's case :-
"(1) Having regard to the important functions which the
Legislatures have to perform in democratic countries, it
has always been recognised to be a matter of first
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importance that elections should be concluded as early as
possible according to time schedule and all controversial
matters and all disputes arising out of elections should be
postponed till after the elections are over, so that the
election proceedings may not be unduly retarded or
protracted.
(2) In conformity with this principle, the scheme of the
election law in this country as well as in England is that no
significance should be attached to anything which does not
affect the "election"; and if any irregularities are
committed while it is in progress and they belong to the
category or class which under the law by which elections
are governed, would have the effect of vitiating the
"election" and enable the person affected to call it in
question, they should be brought up before a special
tribunal by means of an election petition and not be made
the subject of a dispute before any Court while the election
is in progress."
32. 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 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.
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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 Art. 329(b) but 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 Court's
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.
33. These conclusions, however, should not be construed
as a summary of our judgment. These have to be read
along with the earlier part of our Judgement wherein the
conclusions have been elaborately stated with reasons.
10.1 In the case of Vadodara District Cooperative
Sugarcane Producers' Union Ltd (supra), the Hon'ble
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Supreme Court has held and observed in para 6 and 7 as under:-
"6. The elections of the Managing Committee required to
be held as per Chapter XI-A of the Gujarat Co-operative
Societies Act, 1961 were in progress. In a writ petition
laying challenge to the legality of certain steps taken by
respondents Nos. 2 and 3 for the purpose of holing the
elections, the High Court interfered with the election
process midway, allowed the writ petition and set aside the
election programme & all steps taken in accordance
therewith. The order of the High Court was passed on 7th
April, 2005, while the elections were scheduled to be held
on 17th April, 2005. The aggrieved respondent No. 3 in the
High Court has filed this appeal by special leave.
7. Having heard the learned counsel for the parties, we
are satisfied that the High Court ought not to have stayed
the process of election midway. We feel that the writ
petition should have been heard on merits but without
staying the process of election and that would have met
the ends of justice."
10.2 In the case of Chandrakantbhai Thakorbhai Patel
(supra), the Division Bench of this Court has observed as under:-
"It is not in dispute before us that the respondent no.3-
Society was registered on 6.1.90 and immediately
thereafter, the elections were not held, therefore, the State
Government nominated a Body/Managing Committee for a
period of three years. The period of three years could be
extended upto five years, but despite the expiry of the said
period, the elections were not held. It appears that the
District Registrar, Cooperative Societies (Sugarcane),
Surat, by letter dated 14.3.2005, informed the Collector Mr.
B.V.Jha that Managing Committee of Vadodara District
Sugarcane Growers Union Ltd., Taluka-Karjan, District-
Vadodara was appointed by the State Government and its
time had already expired. It was also informed that the
said society being a specified society under the Act, its
election for the period between 2005 and 2008 was
required to be held. The Collector also informed that the
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society had sent proposal on 17.2.2005 to the Registrar of
Cooperative Societies, Surat and as such, the elections
were required to be held.
The petitioner says that non-observance of Rule 6 of 1982
Rules makes the entire election schedule/programme void
and no election can be conducted on basis of such illegal
programme. His further submission is that, in all, there are 6
constituencies and 12 persons are to be elected. According
to him, the respondent no.2 framed its own election rules
and referred the same to the Director for approval. The
submission is that the Director, Sugar, Gujarat State, under
his letter No. SRM/01/KH/304/2005, dated 15.3.2005,
despite holding that the elections are to be held in
accordance with the Specified Cooperative Societies
Elections to Committees Rules, 1982, directed that the
proposed election Rule no.5 be included in Rule 27 of the
Elections Rules. It is submitted by him that the Director
had no authority under the Act to amend the Election Rules
of 1982. On the last date of hearing, it was submitted on
behalf of the learned counsel for the State, so also by the
learned counsel for the private respondent no.4 that, these
two questions which are raised in this writ application can
be raised in an election petition duly submitted under Rule
82 of the 1982 Rules. It was submitted before us that Rule
6(2) of the Rules provides 7 days as the outer limit,
therefore, the Election Officer was justified under the
pressing circumstances to reduce seven days' limit to four
days. It was also submitted that to give proper
representation to each and every constituency and to
persons from each constituency, the respondent no.4 was
acting in furtherance of the goals and objects of the Act
and was not doing any wrong. It was submitted on behalf
of the Director, that the proposed election Rule-5, as
proposed by respondent no.3 could be included in the
statutory rules. Taking an exception to the manner in
which the elections are conducted and the conduct of the
officers, we required the Collector, Vadodara and the
Election Officer to file their affidavits, they have filed their
affidavits. Mr. Patel, learned counsel for the petitioner has
reiterated his arguments.
In our opinion, the argument is misconceived. Statutory
rules of 1982 have been framed by the State Government
in exercise of the powers conferred by Section 168 read
with sub-section (2) of Section 145-G, sub-section (4) of
Section 145-U and Section 145-Y of the Gujarat
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Cooperative Societies Act, 1961 and all other powers
enabling it in this behalf. If the Rules have been framed by
the State Government, then, no individual can amend the
rules. The State Government has exercised its various rule
making powers and has framed the rules. In the present
matter, the Director has simply observed that to achieve
the goal of proper representation of each and every
constituency, Rule-5 must be read in Rule-27. Rule-27 of
the statutory rules relates to publication of list of
contesting candidates. It has nothing to do with the
delimitation of the constituency or curtailing powers of a
particular member of the society from being elected from
any constituency.
11. It is the case of the petitioners that last election was held in
August 2020 and the Managing Committee was constituted from
the elected members. On 15th October 2022, one of the directors
has submitted the resignation and the same was accepted on
that very day and, therefore, from the said date, the seat was
vacant and since the respondents have not initiated any steps to
conduct the election for the vacant post, the petitioner No.1 has
approached this Court by way of filing Special Civil Application
No.6392 of 2023 which came to be allowed by this Court vide
order dated 4th August 2023. While allowing the said writ
petition, this Court has issued certain directions which reads as
under:-
"(i) The present petition is required to be allowed and the
same is allowed.
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(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
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."
In light of the aforesaid directions, respondent - Election
Officer issued election program on 2nd February 2024 and the
same was published in daily newspaper "Gujarat Samachar on 4 th
February 2024 in Surat edition.
12. It is worthwhile to refer to Section 145U of the Act as
under:-
"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]:
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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 admited by the [Tribunal]
unless it is made within two months from 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 [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 examination of witnesses.
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 as 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.
145Y. Powers to make rules for purposes of this
Chapter - Without prejudice to any other power to make
rules contained elsewhere in this Act, the State government
may make rules consistent with this Act generally to
provide for and to regulate all or any of the other matters
relating to the various stagse of the elections (including
preparation of the list of voters)."
13. It is also worthwhile to refer to the Rules 4, 6, 16, 73, 77
and 82 as under:-
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"4. Provisional list of voters.- (1) A provisional list of
voters shall be prepared in Gujarati by every society for
the year in which general election is due to be held.
Persons who are members as on the date of drawing up
the accounts of the year [In which such election is due]
shall be included in the provisional list. If different
constituencies are provided in the bye-laws, the names of
voters shall be arranged constituencywise as laid down in
the bye-laws.
(2) Four copies of the authenticated provisional list of
voters shall be sent by every society to the Collector,
through the District registrar so as to reach the collector
within 15 days from the date of drawing up the accounts of
the year in which the general election is due. Copies of the
said list shall be displayed on the notice board of the
society, the District Registrar concerned and the Collector
withn 20 days, from the date of drawing up the accounts
for inviting claims and objections.
(3) Simultaneously while sending of provisional list of
voters under sub-clause (2) every society shall send in
writing to the collector a list of members who are
disqualified to vote as per the provisions of the Act, Rules
or its Bye-laws and shall inform to the member who has
been shown disqualified in the said list in writing, pointing
out such disqualification incurred by him. The said list shall
be treated as objection under sub-rule (3) of Rule 6.
(4) If any society fails to send copies of the provisional
list of voters to the Collector through the District Registrar
concerned within 15 days from the date of drawing up the
accounts, the Collector shall himself or through any person
authorised by him in this behalf prepare a provisional list of
voters and the expenditure incurred therefor shall be
recovered from the society as arrears of land revenue.
(5) In the event of the Collector taking action under sub-
rule (4) he shall also cause copies of the provisional list of
voters to be displayed on his notice board and on the
notice board of the district Registrar concerned and the
society within 23 days from the date of drawing up the
accounts, for inviting claims and objections.
6. Claims and objections to provisional list of
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voters.- (1) When any provisional list of voters is published
for inviting claims and objections, any omission or error in
respect of the name or address or other particulars in the
list may be brought to the notice of the Collector by any
member of the society concerned who is a voter or any
delegate authorised to vote on behalf of such society.
(2) Every person making a claim or raising an objection
shall do so by a separate petition, which shall be presented
to the Collector during office hours within seven days from
the date on which the provisional list of voters is displayed
on the notice board under sub-rule (2) or (5) of Rule 4,as
the case may be.
(3) Every claim or objection shall be prepared in writing
and state the grounds on which the claim is based or the
objection is raised, as the case may be.
(4) The Collector shall, after considering each claim or
objection give his decision thereon in writing to the person
concerned within ten days from the date of receipt of the
claim or objection under sub-rule (2) and take steps to
correct the provisional list wherever necessary. The list as
finalised by the Collector after deciding all claims and
objections shall be the final list of voters.
16. Appointment of dates, etc., for various stages of
an election. - (1) (a) The collector, in consultation with the
Registrar, in the case of societies falling under clause (i) of
section 74-C(1), and in consultation with the District
Registrar, concerned, in the cse of societies falling under
other clauses of section 74-C(1), shall draw the schedule
for elections, and by order in Form I appoint :-
(i) The last date, time and Not later than 15 days
place of making from the date of order of
nominations. the Collector.
(ii) The date of publication As and when received till
of nominations. the last date fixed for
making nominations.
(iii) Date time and place of Not later than 2 days after
scrutiny of the last date for making
nominations. nominations.
(iv) Date of publication of Not later than 2 days after
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the list of valid the scrutiny.
nominations
(v) Date by which Within 6 days from the
candidature may be date of publication of the
withdrawn. list of valid candidatures.
(vi) Date of publication of The day next succeeding
final list of contesting the last date fixed for
candidates withdrawal of candidates.
(vii) Date on which and the 10 days from the date of
time during which poll publication of the final list
shall be taken. of contesting candidates.
(viii) Date, time and place Not later than the third day
of counting of votes. from the date on which the
poll is taken.
(ix) Date of declaration of Immediately after counting
the results of voting. of votes.
Explanation (1)(a) If the last date in reckoning dates as
specified in the above cases is a public holiday, the next
succeeding working day shall be fixed for the respective
events.
(b) There shall be at least one polling station for every
1000 voters or more and the number and places of the
polling stations shall be fixed in consultation with the
Registrar / district Registrar and the Societies concerned
calling objections and suggestions of the voters thereof. In
case the poling stations are spread over either in the
district or the town, the Collector shall make arrangements
to get all the ballot boxes to the office of the Returning
Officer or to the registered office of the societies as he
deems fit. The date on which the ballot boxes should be so
brought shall also be mentioned in the order in Form I :
Provided that the Collector may at his discretion specify
the number of polling stations for a lesser number of voters
with due regard to the convenience of the voters.
(c) Except with the previous approval of the registrar the
dates fixed under this rule shall not be changed within 10
days of the date fixed for the poll :
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Provided that if the Collector is of opinion that it is
necessary in the public interest to modify the order and
there is no sufficient time for obtaining the previous
approval of the registrar to such modifications, the
Collector may, for reasons to be recorded in writing, modify
the order without the previous approval of the Registrar. In
every such case the Collector shall forthwith send a copy of
the modified order along with the reasons recorded by him
for such modification to the Registrar.
(2) Nothing contained in this rule shall apply when fresh
poll is taken under rule 52.
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, they vacancy shall not be filled.
77. Trial of election petitions. - (1) Every election
petition shall be tried by the [Tribunal]:
Provided that, the [Tribunal] shall have the discretion to
refuse for reason to be recorded in writing, to examine any
witness or witnesses if it is of the opinion that evidence of
such witness or witnesses is not material for the decision of
the petition or that the party tendering such witness or
witnesses is doing so on frivolous grounds or with a view to
delay the proceedings.
(2) The Government may dismiss an election petition
which does not comply with provisions of Rule 75.
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(3) Any candidate not already a respondent shall, upon
application made by him to the Government within
fourteen days from the date of the commencement of the
trial and subject to the provision of Rule 91, be entitled to
be joined as a respondent.
(4) The Government may, upon such terms as to costs
and otherwise as it may deem fit, allow the particulars of
any corrupt practice alleged in the petition to be amended
or amplified in such manner as may in its opinion be
necessary for ensuring a fair and effective trial of the
petition, but shall not allow any amendment of the petition
which will have the effect of introducing particulars of a
corrupt practice not previously alleged in the petition.
82. Grounds for declaring election to be void. - If the
[Tribunal] is of opinion:-
(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 a returned candidate or his
Election Agent; or
(c) that any nomination paper has been improperly
rejected; 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 agent 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 provisions of the Act
or any rules made thereunder,
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the [Tribunal] shall declare the election of the returned
candidate to be void.
14. Considering the said program, it appears that the
respondent - Election Officer has completely overlooked and
ignored statutory rules being Rule 4 and 6 r/w. Rule 16 of the
Election Rules. So far as preparation of the preliminary voters list
and final voters list is concerned, it appears that only five days
time was granted and, thereafter, the Election Officer has even
not granted sufficient time to complete the proceedings as per
the mandatory and statutory rules. Considering the above-
mentioned decisions of the Hon'ble Supreme Court, it appears
that when there is clear breach of mandatory rules, the Court
can certainly interfere with the election program.
15. This Court is well aware that in normal circumstances,it is
well settled that once the election program is declare, the Court
cannot interfere in such election process while exercising the
powers under Articles 226 and 227 of the Constitution of India,
however, it is not complete bar. It is the say of the respondents
that since there is no any fundamental rights were violated of
the petitioners and there is no any adverse order was passed as
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their names have been incorporated in the voters list and they
have not been apprehended in participation in the election and,
therefore, the petitioners have no any rights to agitate the
grievance in the present petition as there is no fundamental
rights and, therefore, the petition may not be entertained.
Normally, this Court cannot interfere in the election program
once the election is in progress, but considering the factual
aspects that though the seat was vacant from 15 th October 2022,
the election was not conducted by the respondents and,
therefore, the petitioners have approached this Court by way of
the said writ petition wherein this Court has specifically issued
direction in light of the election program and in issuance of the
election program, the Election Officer has completely overlooked
and flouted the statutory mandatory rules framed under the
statute and, therefore, under these circumstances, this Court is
exercised jurisdiction under Articles 226 and 227 of the
Constitution of India.
16. In view of the aforesaid facts and circumstances of the
case, I am of the opinion that the election program declared by
the respondent - Election Officer deserves to be quashed and set
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aside and the petition deserves to be allowed.
17. For the foregoing reasons, the petition is allowed. The
election program published by the Election Officer dated 2 nd
February 2024 is hereby quashed and set aside and after
considering statutory rules, the respondent - Election Officer to
declare and publish fresh election program in accordance with
law after considering the objections. Rule is made absolute.
Direct service is permitted. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J)
FURTHER ORDER
After judgment is pronounced, Mr. Jay Trivedi, learned
Assistant Government Pleader would request this Court to stay
operation of this order for some time. Considering the facts of
the present case and the fact that as per the schedule issued by
the Election Officer, the Election will be held on 05.03.2024 and
therefore, request made by Mr. Trivedi, learned Assistant
Government Pleader is not considered and the same is refused. It
is open for the parties to convey the order passed in present
petition to the Election Officer by way of appropriate
communication.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
