Rajasthan High Court - Jodhpur

Lunas Gram Seva Sahkari Samiti Ltd vs State Of Rajasthan on 14 February, 2023

Bench: Pushpendra Singh Bhati

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       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       JODHPUR

                S.B. Civil Writ Petition No. 2473/2023

Lunas Gram Seva Sahkari Samiti Ltd. & Ors.
                                                                  ----Petitioners
                                   Versus
State Of Rajasthan & Ors.
                                                                ----Respondents
                             Connected With

                S.B. Civil Writ Petition No. 2733/2023

Jaswantpura Gram Seva Sahkari Samiti & Ors.

----Petitioners Versus State Of Rajasthan & Ors.

                                                                ----Respondents


For Petitioner(s)        :     Mr. RS Choudhary.
For Respondent(s)        :     Mr. Rajesh Joshi, Sr. Adv. assisted by
                               Ms. Kamini Joshi.
                               Mr. Saransh Vij for Mr. Sudheer Tak,
                               AAG.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reserved on 13/02/2023

Pronounced on 14/02/2023

1. On 13.02.2023, the arguments were heard on the stay

applications.

2. The prayer made in the stay applications read as under:

It is, therefore, most humbly and respectfully prayed that during the pendency of the writ petition, effect and operation of the order dated 28.04.2014 (Ann.2) may kindly be directed stayed and the respondents may kindly be directed to permit the petitioners for

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casting the votes and contesting the election of the Taranagar Kray Vikray Sahkari Samiti Limited and Rajgarh Kray Vikray Sahkari Samiti Ltd., Rajgarh and in alternate the election of the said Samitis, may kindly be stayed till final disposal of the writ petitions.

Thus, both the stay applications have been preferred against the

order dated 28.04.2014 (Annexure-2) passed by the Registrar,

Cooperative Society, Sahkar Bhawan, Jaipur.

2.1 For the purpose of the deciding the stay applications, the facts are

being taken from S.B. Civil Writ Petition No.2473/2003, while treating

the same as a lead case.

3. Briefly put, the facts of the case, as placed before this Court

by learned counsel for the petitioners, are that the Registrar,

Cooperative Societies issued a notification dated 09.04.2014 while

amending the Bye-laws No.10 of the Sahkari Samiti in question.

As per the said Bye-laws, 6 members shall be elected amongst the

Chairman of Sahkari Samiti, 1 member from the primary

wholesale consumer bhandar and 5 members from amongst the

delegates from the personal agriculturist members of the Sahkari

Samiti.

3.1. The petitioner further averred in the petition that the

respondent no. 3 has framed the Bye-laws, amended time to time.

However, since the Bye-laws were amended in the year 2013,

therefore, the Deputy Registrar (Rules) of Rajasthan Cooperative

Societies, Jaipur has sent a communication to the Dy./Asstt.

Registrars of the Cooperative Societies for the election of the

Samiti in question.

3.2. Thereafter the respondent no. 2 vide the impugned order

dated 28.04.2014, whereby two conditions were imposed for the

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membership of the Sahkari Samiti; the first condition imposed on

the personal members is that unless they has done the business

of Rs.5,000/-, in the last financial year, with the Samiti, they

would not be able to exercise their related rights; secondly,

unless the members of the co-operative society has done the

business of Rs.50,000/-, in the last financial year, with the Samiti,

they would not be able to exercise their related rights. Aggrieved

whereby, the petitions have sought the interim directions, as

mentioned in the stay applications.

4. Learned counsel for the petitioners submitted that the action

of respondents vide impugned order in debarring the petitioners

from the election of the Samitis in question, is a clear violation of

their fundamental rights.

5. Learned counsel for the petitioners further submitted that

the petitioners fulfill the previous conditions of business with the

Kray Vikray Sahkari Samiti mentioned in Bye-laws No.10, and

therefore the impugned action of the respondents is unsustainable

in the eye of law.

6. Mr. Rajesh Joshi, learned Senior Counsel assisted by

Ms.Kamini Joshi; Mr. Saransh Vij for Mr.Sudheer Tak, AAG;

representing the respondents submitted that the State

Government has power to revise its notification and amend the

Bye-laws, including the Bye-laws in question, and the Cooperative

Societies and the like Samitis, have to follow them, in its true

letter and spirit. In support of such submissions, reliance has been

placed upon the judgment rendered by a Division Bench of this

Hon'ble Court in the case of Jai Singh Vs State of Rajasthan

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and Ors. (D.B. Civil Writ Petition No. 17993 of 2019) decided

on 13.12.2019.

Relevant portion of the said judgment, as relied upon, reads as

under:

"59. The issues pertaining to the factual matrix of the guidelines and the representations /recommendations/consideration made by the Sub Committee are of factual matrix, and by virtue of Article 243-O of the Constitution read with Section 101 of the Act of 1994, there is a bar in the interference by this Court, after the result of the delimitation was notified. Admittedly, in all the present writ petitions under adjudication before this Court, the final notification had been issued on 15/16.11.2019.

60. This Court also finds that the bar under Article 243-O of the Constitution of India is completely fortified by the precedent law of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) and Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors. (supra).

61. In light of the aforesaid judgments, this Court is not inclined to travel beyond the bar created under Article 243-O of the Constitution of India, and while maintaining the sanctity of the same, deems it appropriate to uphold all the proceedings upto the notification dated 15/16.11.2019.

62. In State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra), the Hon'ble Supreme Court has already held that although Clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including questioning of the validity of any law relating to delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the question of the validity of the delimitation of the constituencies and also the allotment of seats to them, cannot be gone into.

63. However, this Court is perturbed to see that the sanctity of the constitutional provision of Section 243-O of the

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Constitution of India read with Section 101 of the Act of 1994 has been breached by the State in an arbitrary, rash and negligent manner, and it is not palpable that number of notifications could be made for continuing the delimitation exercise regarding gram panchayats and panchayat samitis beyond the iron curtain of the final notification issued on 15- 16.11.2019.

64. This Court further finds that the changes in the notification can be accepted only to the extent that it is in the shape of corrigendum to deal with the typographical errors, but making fresh consideration/reconsideration/changing of the notification dated 15/16.11.2019 substantially by changing the recommendations and making fresh delimitation, amounts to crossing the constitutionally religious bar of Article 243-O of the Constitution of India.

65. Section 101 of the Act of 1994, on a careful examination, gives power to the State Government for making alteration in the limits of a Panchayati Raj Institution, after one month's notice to be published in the prescribed manner, either on its own motion, or at the request made on its behalf, and in this case, adequate opportunity of hearing and the first notice were in place for the final notification on 15-16.11.2019. But thereafter, the State could not have carried on the delimitation as a continuing process by issuing further notifications.

66. This Court further finds that since the first notice dated 12.06.2019 an exhaustive exercise was conducted, which resulted into a notification in the official gazette on 15/16.11.2019, and thus, the proceedings under Section 101 of the Act of 1994 came to an end. The mandate of Section 101 of the Act of 1994 does not permit the State Government to have multiple delimitation exercises in a continued form after the final notification is issued. 67. As noted above, on 23.11.2019, notification No.3085 and 3086 were issued making corrections in the error which were purely in the shape of a corrigendum. Thereafter, notifications Number 3095 to 3116 were issued on 01.12.2019/02.12.2019 making amendments in the earlier notification of 15-16.11.2019. On 01.12.2019 itself, the State Government again issued notifications Number 3117 including Gram Panchayats which

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were left out in the original notification of 15-16.11.2019 and also on the same date issued notification No.3118 whereby the original notification of 15-16.11.2019 was altered and left out Panchayat Samitis were also included. Thus, the subsequent notifications, except the one issued for rectification of typographical error, are required to be quashed.

68. The legislative intention behind the constitutional mandate under Articles 243-O, 243-K read with the statutory mandate of Sections 101 and 117 of the Act of 1994 was the reason why this Court is inclined not to permit the State of Rajasthan to itself breach the forbidden area of delimitation after the final notification was issued on 15-16.11.2019.

69. This Court is of the opinion that Section 15 of the Rajasthan General Clauses Act is merely a power to the State to revise its own orders, and such revision as a normal administrative exercise should be acceptable; but Section 15 itself carves out an exception whereby if there is a provision to the contrary, that means, if there is a bar to revision, the same cannot be taken shelter of by the State to demolish the constitutional and statutory bar. Here the exercise is governed by the Constitution and the Act of 1994, and once a clear bar and procedure have been laid down for judicial review, the violation thereof, in the name of revision, could not be permitted.

70. The State has been unable to answer the repeated queries of the Court as to how on one hand, they are pressing upon that the sanctity of the notification dated 15/16.11.2019 which is a culmination of the delimitation exercise after issuance of notice on 12.06.2019, which cannot be gone into in exercise of the judicial review in light of Article 243-O, and on the other hand, the State itself has breached the sanctity of the notification culminating arising out of Section 101 of the Act of 1994 after one month's notice by issuing subsequent notifications, and amending/recreating and conducting continuous exercise of delimitation in respect of number of gram panchayats and panchayat samitis.

71. In view of the aforesaid observations, while dismissing all the issues pertaining to non-consideration of representations/ non-consideration of recommendations/changes made in

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recommendations/changes made by the Sub Committee/changes not considered by the Sub Committee/not considered in the proposals/not considered by the District Collectors are held to be not maintainable, as this Court draws a strict line while adhering to the precedent laws of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) and Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors. (supra). This Court is conscious that it cannot cross the golden line, which reflects the mandate of the Constitution of India itself, as laid down under Article 243-O. Thus, the petitions are dismissed as far as the pre-proceedings to the notification dated 15/16.11.2019 are concerned. However, at the same time, this Court is of the considered opinion that such golden line prescribed by the Constitution of India read with Section 101 of the Act of 1994 cannot be crossed by the State as it will amount to abuse of process of law, as the delimitation exercise cannot be an ever continuing exercise, and the same has to be completed in one procedure, spanning between the initial notice which in this case was dated 12.06.2019 to the final notification which was 15/16.11.2019 and has to be brought to an end then and there. It cannot be an ever continuing exercise, as it shall jeopardize the sanctity of the mandate of the Constitution, and thus, all the notifications subsequent to the notification dated 15/16.11.2019, pertaining to the issue in question, stand quashed and set aside, except for the notifications which are purely rectifying the typographical errors.

72. All the cases stand disposed of accordingly. All pending applications also stand disposed of.

7. It has been submitted on behalf of the respondents that the

Cooperative Societies are governed by the Rajasthan Cooperative

Societies Act, 2001 and the Rules/Bye-laws framed thereunder,

and therefore, any amendment/revision can be made in the Bye-

laws by the State, and the same shall carry binding force; thus,

the eligibility criteria, as laid down in such Bye-laws, is required to

be followed and fulfilled, mandatorily, by all, including the present

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petitioners. In support of such submission, reliance has been

placed upon the order passed by a Division Bench of this Hon'ble

Court in the case of Laxman Singh Khor Vs State of Rajasthan

and Ors. (D.B. Spl. Appl. Writ No.757 of 2022) decided on

25.08.2022.

The said order reads as under:

"The instant intra-court appeal has been preferred by the appellant - writ petitioner Shri Laxman Singh for assailing the order dated 03.08.2022 passed by learned Single Bench admitting the writ petition of the petitioner and directing that the result of the election of the members of the Managing Committee of the respective Cooperative Societies shall remain subject to the final decision of the writ petition.

Shri Manish Sisodia, Sr. Counsel assisted by Shri Yogendra Singh urged that the respondents have amended the bylaws contrary to the provisions of the Cooperative Societies Act and as such, the learned Single Bench should have accepted the stay application filed by the petitioner in the terms prayed for and a direction ought to have been given that the elections would be held under the bylaws as they existed earlier.

We are of the firm view that this prayer made on behalf of the appellant is unacceptable. Suffice it to say that had the said prayer been accepted, it would virtually amount to extending final relief to the petitioner at the interim stage. Having heard and considered the submissions advanced by learned senior counsel and after going through the order under challenge, we find that the same does not suffer from any infirmity or error whatsoever warranting interference in this intra court appeal. Hence, the appeal fails and is dismissed as being devoid of merit".

7.1. Further reliance has been placed on the order passed by this

Hon'ble Court in the case of Naresh Dhakad & Ors. Vs State of

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Rajasthan and Ors. (S.B. Civil Writ Petition No. 8566 of

2022 and other connected matters) decided on 03.08.2022.

Relevant portion of the said order, as relied, reads as under:

"Learned counsel for the respondents has also invited my attention towards the notification issued by the Rajasthan State Co-operative Election Authority dated 31.07.2022, whereby, the election programme for elections of all the members of the managing committee of the societies has already been notified. Learned counsel has, therefore, submitted that once the elections have been notified, it would not be appropriate to stay the election. .....

...

After taking into consideration the fact that election have already been notified by the Rajasthan State Co-operative Election Authority, it would not be appropriate to stay the said election. However, the result of the election of the members of the managing committee of the respective co-operative societies shall remain subject to the final decision of this writ petition.