Gujarat High Court
Maniar Kalpakbhai Arvindbhai vs Co-Operative Election Authority on 14 November, 2024
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15711 of 2024
================================================================
MANIAR KALPAKBHAI ARVINDBHAI
Versus
CO-OPERATIVE ELECTION AUTHORITY & ORS.
================================================================
Appearance:
MR PS CHAMPANERI(214) for the Petitioner(s) No. 1
Mr. G.H. Virk GOVERNMENT PLEADER for the Respondent(s) No. 2
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
MR DIPAN DESAI(2481) for the Respondent(s) No. 5
SHIVANG P JANI(8285) for the Respondent(s) No. 3,4
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 14/11/2024
ORAL ORDER
1. By way of the present petition filed under Article 226 of
the Constitution of India, the petitioner has prayed for the
following reliefs;
"8. The petitioner therefore prays that,
(A) That this Hon'ble Court may kindly be pleased to admit and
allow the present petition;
(B) That this Hon'ble Court may kindly be pleased to issue a writ
of mandamus or any other appropriate writ, order or direction in
the nature of same and be pleased to quash and set aside the
impugned order passed by the respondent no. 2 authority on
09.11.2024, at Annexure A to the present petition in the interest of
justice;
(C) That this Hon'ble Court may kindly be pleased to issue a writ
of mandamus or any other appropriate writ, order or direction in
the nature of same and be pleased to direct the respondent no. 2
to include the name of petitioner in the list of contesting
candidates for the Elections to the Board of Rajkot Nagarik
Sahakari Bank Ltd.;
(D) Pending hearing till final disposal of the present petition, this
Hon'ble Court may kindly be pleased to stay the operation of
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
order impugned and further be pleased to permit the petitioner to
participate in the process of election to the Board of Rajkot
Nagarik Sahakari Bank Ltd as a contesting candidate.
(E) That this Hon'ble Court will be pleased to pass such other and
further order as the nature and circumstances of the case may
require."
2. Heard learned Senior Counsel Mr. Harin Raval with
learned advocate Mr. P.S. Champaneri for the petitioner, learned
Government Pleader Mr. G.H. Virk assisted by learned AGP
Dharitri Pancholi for respondent No.2, learned advocate Mr.
Siddarth Dave for learned advocate Mr. Devang Vyas for
respondent No.1, learned advocate Mr. Dhaval D. Vyas for
learned advocate Mr. Shivang Jani for respondent Nos.3 and 4
and learned Senior advocate Mr. Jal S. Unwalla with learned
advocate Mr. Dipen Desai for respondent No.5.
3. Brief facts of the case are as under:-
3.1. An election of the Board of Directors of the Rajkot Nagrik
Sahakari Limited-respondent No.5 is scheduled to be on
17.11.2024. A provisional voters list was prepared by
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
respondent No.2. Name of the petitioner appears in the voters
list. Petitioner filed his nomination to contest the election of the
Board. Respondent No.3 and 4 raised objections against the
nomination of the petitioner. The objection raised by respondent
No.3 was that as the petitioner was ineligible to be the member
of the Board and to contest the election as the petitioner is
Director of the Bank since 1992. Respondent No.4 raised the
objections to the effect that petitioner is also a member of other
Multi-State Co-operative Banks and as per the by-laws,
petitioner cannot contest election. Respondent No.2 in the
capacity of Election Officer, rejected the nomination form of the
petitioner on 09.11.2024. Being aggrieved and dissatisfied with
the impugned order, the present petitioner is before this Court.
4. A preliminary objection is raised by learned Government
Pleader Mr. G.H. Virk assisted by learned AGP Dharitri
Pancholi for respondent No.2 and learned Senior advocate Mr.
Jal S. Unwalla for respondent No.5 have raised a preliminary
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
objection regarding maintainability of the present petition. Upon
joint request and with the consent of respective counsels, the
present petition is taken up for final hearing on the ground of
maintainability.
5. Learned Senior advocate Mr. Harin Raval for the
petitioner submitted that a revised election programme dated
17.10.2024 was published and as per the revised election
programme, scrutiny of revised nomination forms was
scheduled on 09.11.2024, publication of final list of contesting
candidates was scheduled on 11.11.2024 and the date of polling
is scheduled on 17.11.2024. Petitioner is fielding a nomination
form for the aforesaid election. Respondent No.3 and 4 filed
objections and the objections were upheld and respondent No.2
rejected the nomination form of the petitioner. The reasons
assigned in the impugned order dated 09.11.2024 are two fold;
namely, that as per sub-rule 13(a)(b)(6) of the Rajkot Nagrik
Co-operative Bank Limited petitioner looses membership and
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
pursuant to the breach of sub-rule 24(a)(1) petitioner was held to
be not qualified to contest the election. It is contented by learned
senior advocate for the petitioner that respondent No.2 had acted
beyond the scope and ambit of the power vested in him. It is
further contented that the order impugned is without
jurisdiction. It is further submitted that when the challenge is
made with regard to the jurisdiction of respondent No.2 in
passing the impugned order, even if an alternative remedy as
contemplated under Section 84 is available, a petition under
Article 226 of the Constitution is maintainable.
6. Learned Senior advocate for the petitioner has placed
reliance upon the following decisions;
(1) Benedict Denis Kinny Versus Tulip Brian Miranda with Prachi
Prasad Parab Versus State Of Maharashtra reported in 2021 12 SCC 780
(2) Laxmibai Versus Collector, Nanded And ors. reported in 2020 12
SCC 186
(3) Ramansinh Narsinh Rathod Versus State Of Gujarat reported in
2017 (0) AIJEL-HC 238108
(4) Union Territory Of Ladakh Versus Jammu And Kashmir
National Conference reported in 2023 (0) AIJEL-SC 72284
(5) Election Commission Of India Through Secretary Versus Ashok
Kumar reported in 2000 (0) AIJEL-SC 8507
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
7. Learned Government Pleader Mr. G.H. Virk for
respondent No.2 has vehemently submitted that the present
petition is not maintainable as an alternative remedy is available.
Learned Government Pleader has relied upon Section 84(2)(c)
of the Multi-State Co-operative Societies Act, 2002 (hereinafter
referred to as "the Act"). The same is reproduced hereunder;
84. Reference of disputes
(1) *****
(2) For the purposes of sub-section (1), the following shall be
deemed to be disputes touching the constitution, management or
business of a multi-state cooperative society, namely:-
(a) *****
(b) *****
(c) any dispute arising in connection with the election of any
officer of a multi-state cooperative society.
7.1. By relying upon the aforesaid provision, learned
Government Pleader has submitted that since the dispute arising
is in connection with the election of the officers of a Multi-State
Co-operative Society, the dispute shall be referred to the
arbitrator as contemplated under Sub-Section 1 of Section 84 of
the Act. It is submitted that in all total five nomination forms of
different candidates, including the present petitioner and the
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
petitioner of Special Civil Application No.15712 of 2024 were
rejected by respondent No.2 and the present petitioner and
petitioner of Special Civil Application No.15712 of 2024 have
challenged the order impugned before this Court. It is further
submitted that a nomination form of one Shri Zadafiya
Vallabhbhai Gandabhai came to be rejected by respondent No.2
on 09.11.2024 and said Shri Zadafiya Vallabhbhai Gandabhai
has availed the efficacious alternative remedy contemplated
under Section 84 of the Act by making an application to the
Central Registrar, Office of the Central Registrar of Co-
operative Societies, New Delhi by appointment of Arbitrator to
resolve the dispute of rejection of his nomination form by
respondent No.2. It is further submitted that the undisputed fact
which can be seen from the memo of petition that the petitioner
is a member of another multi-state co-operative bank and the
petitioner is not eligible to contest the election as per the by-
laws of respondent No.5.
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
7.2. In support of his contention, learned Government Pleader
has relied upon the decision in the case of Shaji K.Joseph
Versus V.Viswanath & Ors reported in 2016 (0) AIJEL-SC
57978.
8. Learned senior Counsel Mr. Jal S. Unwalla has submitted
that respondent No.5 is covered under the banking Regulation
Act and has relied upon by laws of respondent No.5 which are
produced at page No.66 of the compilation. Learned Senior
Counsel has referred by law No.13(b)(6) of the by-laws of
respondent No.5 and contended that to be eligible for the
admission as a member of the bank unless a person is not a
member of other multi-state co-operative society or co-operative
societies of the same class as that of the Bank or has been
granted permission from Central Registrar for such other
membership. Learned Senior advocate has further relied upon
by-laws No.24(a)(1) and submitted that to be eligible to contest
election to the Board, a member of general body who has
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
complied with all the conditions of the membership and who is
entitled to exercise the right to vote at a general meeting as per
the Act and Rules and by-laws of the bank and who is otherwise
not disqualified of being or to be elected as Director as per the
provisions of the Act and rules and by-laws. It is further pointed
out by learned Senior Counsel that when the challenge is made
with respect to the rejection of the nomination form of the
petitioner in connection with the election of the Board of
Directors, an alternative efficacious remedy is available to the
petitioner as provided under Section 84 of the Act.
8.1. In support of his submissions, learned Senior Counsel for
respondent No.5 has relied upon the following two decisions;
(i) Raghubhai Munjibhai Mungra Versus Jamnagar District Co-operative
Bank Ltd.Notice To Be Served Through The Manager & 1 2021 (0)
AIJEL-HC 242769;
(ii) Jayeshkumar Mangabhai Patel & 1 Versus Central Registrar,
Department of Agriculture & Co-Opeation & 2 delivered by the Hon'ble
Division Bench of this Court in Letters Patent Appeal No. 685 of 2016 in
Special Civil Application No. 12624 of 2016.
9. Learned Senior Advocate Mr. Dhaval Vyas for respondent
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
No.3 and 4 has adopted the submission canvassed by
Government Pleader and learned Senior advocate Mr. Jal S.
Unwalla and also contended that the present petition deserves to
be dismissed as not maintainable.
10. I have considered rival submissions of learned advocates
for the respective parties and also perused material placed on
record together with an affidavit-in-reply filed by respondent
No.2. A limited question which is required to be answered is
with regard to the maintainability of the petition. As I am
limiting my observations only with regard to the maintainability
of petition, I am not delving into the merits and demerits of the
facts involved in the present petition. To answer the issue of
maintainability of the present petition, it would be necessary to
consider few undisputed facts. The election of the post of
Directors, as per the revised election programme, is scheduled
on 17.11.2024 and before that a publication of final list of
contesting candidates was to be pronounced to be on
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
11.11.2024. Respondent No.2 being the Election Officer was
entrusted the work of scrutiny of revised nomination forms.
Petitioner fielding his nomination form for the said election.
Respondent Nos.3 and 4 raised objections against the
nomination form of the petitioner. The objections were upheld
by respondent No.2 and rejected the nomination form of the
petitioner vide order dated 09.11.2024 on the ground that the
petitioner is a member of the co-operative bank of Rajkot and
hence, looses the qualification of membership as per the by-laws
13(a)(b)(6) and resultantly, as the petitioner has not complied
with all the conditions envisaged in by-laws 24(a)(1), petitioner
was disqualified for the election of the Board of Directors.
11. At this stage, it would be profitable to refer section 84(1),
(2)(c) of the Act.
84. Reference of disputes
(1) Notwithstanding anything contained in any other law for the time
being in force, if any dispute [other than a dispute regarding disciplinary
action taken by a multi-state cooperative society against its paid employee
or an industrial dispute as defined in clause (k) of section 2 of the
Industrial Disputes Act, 1947 (14 of 1947)] touching the constitution,
management or business of a multi-state cooperative society arises-
(a) among members, past members and persons claiming through
members, past members and deceased members, or
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
(b) between a member, past members and persons claiming through a
member, past member or deceased member and the multi-state
cooperative society, its board or any officer, agent or employee of the
multi-state cooperative society or liquidator, past or present, or
(c) between the multi-state cooperative society or its board and any past
board, any officer, agent or employee, or any past officer, past agent or
past employee, heirs or legal representatives of any deceased officer,
deceased agent or deceased employee of the multi-state cooperative
society, or
(d) between the multi-state cooperative society and any other multistate
cooperative society, between a multi-state cooperative society and
liquidator of another multi-state cooperative society or between the
liquidator of one multi-state cooperative society and the liquidator of
another multi-state cooperative society,
such dispute shall be referred to arbitration.
(2) For the purposes of sub-section (1), the following shall be deemed to
be disputes touching the constitution, management or business of a multi-
state cooperative society, namely:-
(a) a claim by the multi-state cooperative society for any debt or demand
due to it from a member or the nominee, heirs or legal representatives of a
deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor where the multistate
cooperative society has recovered from the surety any amount in respect
of any debt or demand due to it from the principal debtor as a result of the
default of the principal debtor, whether such debt or demand is admitted
or not;
(c) any dispute arising in connection with the election of any officer of a
multi-state cooperative society.
12. Undisputedly, the dispute is in connection with the
election of the Officers of the Bank and hence, it would not be
out of the scope to hold that the petitioner has an alternative
efficacious remedy available. Moreover, undisputedly the
process has been started and has reached to its final destination.
As per the revised election programme, the date of polling is
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
scheduled on 17.11.2024 and the counting of votes are
scheduled on 19.11.2024. When only the two stages of the
election are left out, it would not be profitable to stall the entire
election. If at this stage, the impugned order dated 09.11.2024 is
set aside, it would amount to circumventing the statutory
provisions contemplated under the Act and the provisions of
Section 84 of the Act, in the present set of facts, would be
meaningless. The intention of the Legislature is loud and clear
by giving a person a right to agitate any dispute in connection
with the election of the officers of the Multi-State Co-operative
Society Limited.
13. The decisions relied upon by the learned Senior Counsel
for the petitioner are not germane to the issue which is required
to be answered by this Court for the reason that I do not find any
substantiate cause or explanation as to how respondent No.2 has
no jurisdiction to reject the nomination form of the petitioner. It
is the function of the respondent No.2 either to accept or reject
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
the nomination form of the candidate by having a summary
inquiry. A person who is aggrieved by the decision of
respondent No.2 is not remediless. Respondent No.2, in the
present case, has observed in his order dated 09.11.2024 that
section 120B of the Multi-State Co-operative Societies Act,
2002 has been inserted on 03.08.2023, whereas the decisions
which have been relied upon by the petitioner in Special Civil
Application No.12986 of 2023 by Co-ordinate Bench of this
Court is dated 02.08.2023. Section 120B of the Act is
reproduced hereunder;
120B. Application of Banking Regulation Act, 1949.--
The provisions of this Act shall apply to a multi-State co-operative
society in respect of matters relating to incorporation, regulation and
winding up:
Provided that in case of a multi-State co-operative society carrying on
the business of banking, the provisions of the Banking Regulation Act,
1949 (10 of 1949) shall also apply.
14. The proviso to the said provision mandates that a multi-
state co-operative societies carrying on the business of Banking,
provisions of Banking Regulation Act, 1949 shall also apply.
When the decision in Special Civil Application No.12986 of
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
2023 was rendered on 02.08.2023, the aforesaid Section 120B of
the Act was not inserted in the Act. Thus, in view of the above
discussion when there is no jurisdictional error committed by
respondent No.2, the present is not maintainable as petitioner is
having an equally efficacious remedy to agitate his grievances
and moreover, the other candidate has already resorted to the
efficacious remedy contemplated under the Act, the petitioner, if
so advised, is at liberty to raise his grievance by resorting to the
efficacious remedy available under the Act. It would be needless
to observe that as I have not ventured into allegations and
counter-allegations voiced out by respective parties, all the
contentions of all the parties are kept open.
15. In the case of Shaji A. Joseph (supra) in paragraph No.15,
the Apex Court has observed hereunder:-
15. In our opinion, the High Court was not right in interfering with the
process of election especially when the process of election had started
upon publication of the election program on 27th January, 2011 and
more particularly when an alternative statutory remedy was available
to Respondent no.1 by way of referring the dispute to the Central
Government as per the provisions of Section 5 of the Act read with
Regulation 20 of the Regulations. So far as the issue with regard to
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
eligibility of Respondent no.1 for contesting the election is concerned,
though prima facie it appears that Respondent no.1 could contest the
election, we do not propose to go into the said issue because, in our
opinion, as per the settled law, the High Court should not have
interfered with the election after the process of election had
commenced. The judgments referred to hereinabove clearly show the
settled position of law to the effect that whenever the process of
election starts, normally courts should not interfere with the process
of election for the simple reason that if the process of election is
interfered with by the courts, possibly no election would be completed
without court's order. Very often, for frivolous reasons candidates or
others approach the courts and by virtue of interim orders passed by
courts, the election is delayed or cancelled and in such a case the
basic purpose of having election and getting an elected body to run
the administration is frustrated. For the aforestated reasons, this
Court has taken a view that all disputes with regard to election should
be dealt with only after completion of the election.
16. In the case of Raghubhai Munjibhai Mungra (supra), the
Hon'ble Division Bench of this Court, in the paragraph Nos.5
and 6 has observed hereunder:-
5. On the aspect canvassed about the nature of inquiry to be
undertaken by the Returning Officer while scrutinising the
nomination form, learned Single Judge has rightly taken a view that
the inquiry envisaged in law to be conducted by the Returning Officer
was of summary nature. Relying on the decision of this Court in
Arvindbhai Singabhai Gamit v. Election Officer & Deputy Collector
[2012 (3) GLH 81], it was so concluded by learned Single Judge. In
Arvindbhai Singabhai Gamit (supra), the Division Bench discussed
the relevant provisions of the Act and the Rules to notice the
integrated scheme, to hold that the nature of scrutiny of nomination
paper to be undertaken by the Scrutinising Officer is restricted and
expeditious in nature. It was observed that the Returning Officer shall
not have jurisdiction or legal authority to delve into the aspect of
right of the nominee to stand for election if his name is already in the
list of voters.
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
5.1 The Division Bench held that the Returning Officer makes only a
summary inquiry, observing thus,
"6. That leads to the inescapable conclusion that the authority of the
returning officer in examining nomination papers and deciding all
objections is restricted to only making a summary enquiry, if any, as
to whether the candidate has incurred any disqualification for being
elected and whether the nomination was in order and complying with
the relevant Rules. As the title and language of Rule 23 clearly
suggests, it is the scrutiny of nomination papers and, by no stretch, an
adjudication of disqualification of the candidate that falls within
statutory duty of the returning officer."
5.1.1 It was further stated,
"6. . . . If he transgresses that limit and enters into the area of
accepting or collecting evidence regarding alleged disqualification of
a candidate and indulges in exercise of weighing evidence, without
any means or power to decide upon genuineness or reliability of any
evidence, the minimum requirement of compliance with the
principles of natural justice would arise. However, clear operative
words in the Rule being 'summary inquiry' and not an adjudication,
the returning officer would obviously be required to decide the issue
of disqualification or rejection or acceptance of the nomination paper
only on the basis of material placed before him;"
5.2 As rightly held, at the stage of scrutinising the nomination papers,
detailed examination of aspects forming part of rival stand would not
be undertaken. In accepting or rejecting the nomination paper, the
Returning Officer is not expected to take a posture of or to act as an
adjudicator. The Returning Officer will have to examine several
nomination forms within short time. His function stands restricted to
undertake the summary inquiry in relation to validity of a nomination
paper.
5.3 By following the law laid down by Division Bench decision in
Arvindbhai Singabhai Gamit (supra), when learned Single Judge has
reiterated the nature of inquiry by the Returning Officer to be
summary in nature, we are entirely in agreement with the said
proposition. It was on the basis of such summary inquiry which the
Returning Officer was expected in law to undertake, he has accepted
the nomination of respondent No.5, rejecting the objection of the
petitioner. It was indeed not the stage of a detail inquiry. We rest,
recording thus, without going into or expressing anything on the
merit part with regard to the acceptance of nomination form.
5.4 Learned Single Judge refused to entertain the petition resting on
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
the ground that the elections were at advance stage. As already
noticed, the petition was affirmed on 24th December, 2020. Seen in
the context of the election schedule, it was the day when the election
programme was already underway on 24th December, 2020 and the
stage had reached to be that of publication of list of validly
nominated candidates. When learned Single Judge rendered his
decision on 11th January, 2021 the only stage left in the already
ticking election clock was the date of polling and counting, which
were to take place on 13th January, 2021 and 15th January, 2021
respectively. Learned Single Judge held that the petitioner has the
remedy of filing election petition and that interjecting in the midst of
the election process will not be in the interest of the elections
themselves.
5.5 Section 145U of the Gujarat Co-operative Societies Act, 1961
read with Rule 82 of Gujarat Specified Co-operative Societies
Elections to Committee Rules, 1982, is the remedy available of filing
election petition. Section 145U reads 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: Provided that no such petition
shall be made till after the final result of the election is declared and
where any such petition is made it shall not be admitted by the
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
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
petition shall be final and conclusive and shall not be called in
question in any Court.
5.6 As the above Section provides for submission of dispute relating
to election to the Tribunal, Rule 82 of 1982 Rules mentions the
grounds for declaring the elections as void, extracted hereunder.
Grounds for declaring election to be void.-If the Government is of
opinion:-
(a) that on the date of his election a returned candidate was not 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 as 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, the Government shall declare the election of
the returned candidate to be void.
5.7 As could be immediately noticed, the improper rejection or
acceptance of nomination paper is one of the clear grounds
mentioned in the Rule for declaring the election to be void. It is
therefore permissible for the petitioner to get adjudicated his
objections to the acceptance of nomination of respondent No.5 and
challenging his election by filing the election petition, in view of the
above provisions of Section 145U read with Rule 82.
6.It is a cardinal principle accepted, applied, reiterated and followed
that High Court will not, in all ordinary circumstances, interfere with
the election process to interrupt, interfere or stall such democratic
process and that all election disputes arising in the middle of the
elections shall be postponed for their resolution until after the
elections are over, to be dealt with in accordance with the machinery
provided under the statute therefor.
6.1 In Vitthodar Vividh Karyakari Seva Sahakari Mandli (supra)
relied on by the respondents in the context of Section 145U of the
Gujarat Co-operative Societies Act read with Rule 128 of the Gujarat
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
Agricultural Produce Markets Rules, 1965, this Court enunciated the
law on the issue to observe that though the petition under Article 226
of the Constitution is maintainable, the powers are to be exercised
only in extra-ordinary or special circumstances such as where the
order is ultra vires or nullity or ex facie without jurisdiction. The
principles were reiterated in Mehsana Taluka Cooperative Purchase
& Sales Union (supra), which decision came to be confirmed in
Letters Patent Appeal No.1255 of 2016 and other cognate Appeals
decided on 29th November, 2016.
6.2 In yet another decision of Division Bench of this Court in
Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing &
Rural Finance [2004 (3) GLR 2718], which involved the issue of
rejection of nomination paper, after considering its earlier decisions
in Kanjibhai Babaldas Patel v. Election Officer, APMC Visnagar [42
(1) GLR 260], Mehsana District Sales & Purchase Union v. State of
Gujarat [1988 (2) GLR 1060] observed to hold that, "any interference
after the scrutiny of nominations would create a real possibility of the
election process being interrupted, obstructed or delayed. This is why
in the aforesaid four decisions of the Division Bench of this Court it
has been laid down that Rule 28 provides an efficacious remedy and
when the election process is started, Court would refuse to exercise
its extra-ordinary jurisdiction.". Reiterating the principle, the Court
refused to go into the nature of dispute, that is the objections raised
against the validity of nominations and did not examine whether Rule
is violated to find out whether the Scrutiny Officer had committed
any error in rejecting or accepting the nomination.
6.3 In Shri Sant Sagduru Janardan Swami (Moingiri Maharaj)
Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8
SCC 509], the Apex Court in the context of the Maharashtra Co-
operative Societies Act, 1960 read with Maharashtra Specified Co-
operative Societies Elections to Committees Rules, 1971 stated and
held,
"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
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
candidate. If aggrieved, by means of an election petition before the
Election Tribunal." (Para 12)
6.4 The trite proposition about non-interference in election process,
howsoever the ground canvassed may appear to be strong, and that
election disputes are to be gone into and settled after the elections are
over as per the machinery provided for resolution of such disputes,
has been holding the field right from the decision in N.P.
Ponnuswami v. Returning Officer [AIR 1952 SC 64], which
statement of law found its further exposition in a more recent
decision in Shaji K. Joseph v. V. Vishwanath [(2016) 4 SCC 429],
"... as per the settled law, the High Court should not have interfered
with the election after the process of election had commenced. The
judgments referred to hereinabove clearly show the settled position of
law to the effect whenever the process of election starts, normally
courts should not interfere with he process of election for the simple
reason that if the process of election is interfered with by the courts,
possibly no election would be completed without the court's order.
Very often, for frivolous reasons, candidates or others approach the
courts and by virtue of interim orders passed by courts, the election is
delayed or cancelled and in such a case the basic purpose of having
election having election and getting an elected body to run the
administration is frustrated. For the aforestated reasons, this court has
taken a view that all disputes with regard to election should be dealt
with only after completion of the election. . . " (Para 15)
6.5 In Mehsana Taluka Co-operative Purchase & Sales Union (supra),
following were the observations made.
"5.1.2 The election jurisprudence, its principles and the applicability
of election laws have different delineations and dimensions. They
indeed operate, and has to be allowed to operate in their own way so
as to sub-serve a higher purpose. In the election which is a
democratic process, what is fundamental is the event of election.
Neither the right to vote or to participate in election as voter or as a
contesting candidate, is perceived to be a fundamental right. They are
the rights guarded by statutory framework and could be exercised
only in the manner the statute may provide. What is at stake is the
interest of whole body which goes to the democratic process of
elections. Election jurisprudence hardly emphasise rights of
individuals. Election rights are the democratic rights operating as a
whole and for collective end."
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
17. In the case of Jayeshkumar Mangabhai Patel & 1
(supra), the Hon'ble Division Bench has observed in paragraph
No.12, which is as under:-
12. It is not in dispute that the election process has been started
and the election programme has been published on 23.6.2016 in
the concerned newspaper which is produced at Annexure `A'
with the compilation. It is also the case of the petitioners that the
respondent no.3 has wrongly rejected the nomination papers of
177 candidates on the premises that their signatures are not
matching or they are in default. Thus, once the election process
has been initiated, such election programme is not required to be
haulted and after the election is over, the same can be
challenged before the appropriate forum as per the statutory
remedy available with the petitioners. In the case of Shaji K
Joseph (Supra), the Hon'ble Supreme Court has held in
paragraph 15 as under:
"15. In our opinion, the High Court was not right in interfering
with the process of election especially when the process of
election had started upon publication of the election programme
on 27-1-2011 and more particularly when an alternative
statutory remedy was available to Respondent 1 by way of
referring the dispute to the Central Government as per the
provisions of Section 5 of the Act read with Regulation 20 of the
Regulations. So far as the issue with regard to eligibility of
Respondent 1 for contesting the election is concerned, though
prima facie it appears that Respondent 1 could contest the
election, we do not propose to go into the said issue because, in
our opinion, as per the settled law, the High Court should not
have interfered with the election after the process of election had
commenced. The judgmets referred to hereinabove clearly show
the settled position of law to the effect that whenever the process
of election starts, normally courts should not interfere with the
process of election for the simple reason that if the process of
election is interfered with by the courts, possibly no election
would be completed without the court's order. Very often, for
frivolous reasons, candidates or others approach the courts by
virtue of interim orders passed by courts, the election is delayed
NEUTRAL CITATION
C/SCA/15711/2024 ORDER DATED: 14/11/2024
undefined
or cancelled and in such a case the basic purpose of having
election and getting an elected body to run the administration is
frustrated. For the aforestated reasons, this Court has taken a
view that all disputes with regard to election should be dealt
with only after completion of the election."
In view of the aforesaid decision rendered by the Hon'ble Apex
Court, we are of the opinion that once the election process is started
and when an alternative statutory remedy is available by way of
referring the dispute in connection with the election, the petition is
not required to be entertained. The dispute with regard to election
should be dealt with only after completion of the election.
18. In view of the above discussion and in view of the settled
principle of law, the present petition is dismissed as not
maintainable. Notice is discharged.
(D. M. DESAI,J)
RINKU MALI
