IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12508 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG HON'BLE MR.JUSTICE RAVI R.TRIPATHI ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== CHELABHAI KALUBHAI UPLANA (PATEL) - Petitioner(s) Versus DEPUTY COLLECTOR (MIDDAY MEALSSCHEME) AND ELECTION OFFICER & 2 - Respondent(s) ============================================================== Appearance : MR TUSHAR MEHTA FOR MR KETAN D SHAH for Petitioner MS.PAUROMI SHETH, AGP for Respondent No(s).: 1. DS AFF.NOT FILED (R) for Respondent No(s).: 1. MR SN THAKKAR for Respondent No. 2. RULE SERVED BY DS for Respondent No(s).: 3. MR PRAKASH K JANI for Respondent No(s).: 3. ============================================================== CORAM :HONOURABLE MR.JUSTICE R.S.GARG HON'BLE MR.JUSTICE RAVI R.TRIPATHI Date : 13/07/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.S.GARG) 1- C-SCA-12508-2005-Y-3 1.By this writ application under Article 226 of the Constitution of India, the petitioner challenges the order dated 22.6.2005 (Annexure:A) passed by the Election Officer-cum-Deputy Collector (Mid Day Meals), Banaskantha, Palanpur, under which the name of the petitioner, which was included in the provisional list of the voters was ordered to be deleted. It is submitted in the writ application that the petitioner is a primary member of Adrana Dudh Utpadak Sahkari Mandali Ltd. (hereinafter to be referred to as “the primary society”). It is submitted by the petitioner that one of the member of the Managing Committee namely, Patel Karsanbhai Daljibhai tendered his resignation from the post of the member of the Managing Committee on 25th October, 2004, a meeting of the Managing Committee of the said Society was convened on 29th October, 2004 to consider the said resignation. In the said meeting Resolution No.6 was taken to accept the resignation. As a consequence, a vacancy was caused and as general elections of the Managing Committee were to take place after some time, Managing Committee in its meeting on 5th November, 2004 resolved for appointment/co-option of the petitioner as a member of the Managing Committee. His submission is that immediately thereafter, the 2- C-SCA-12508-2005-Y-3 petitioner assumed charge and continued to be a member of the Managing Committee. His further submission is that the general body meeting was convened on 24th May, 2005 for purposes of electing the new Managing Committee, the elections were held in the said meting and the petitioner came to be elected along with other persons as member of the Managing Committee for a tenure of three years i.e., for the period between 2005-06 to 2007-08. 2.It is submitted by the petitioner that challenging the appointment/co-option of the petitioner, one Patel Galbabhai Raisangbhai (respondent no.3) filed Lavad Suit No. 289 of 2005 before the Member, Board of Nominee, and also prayed for ad-interim injunction. The learned Nominee by its order dated 14th June, 2005 granted interim injunction to the effect that the resolution dated 5.11.2004 should not be given any effect. Against the said order, the present petitioner filed Revision No. 198 of 2005 before the Revisional Tribunal. The Tribunal allowed the revision by its order dated 20th June, 2005 and vacated the injunction, but however, directed the learned Member, Board of Nominee that after giving due opportunity of hearing and too lead evidence, the learned Nominee should dispose of the matter finally within a period of 3- C-SCA-12508-2005-Y-3 three months from the date of appearance of the parties. 3.It is submitted that after the petitioner was appointed/co-opted as member of the Managing Committee of the primary society in accordance with the Rules, name of the petitioner was referred to the Apex Society namely, Banaskantha District Cooperative Milk Producers' Union Limited (Respondent No.2) for its inclusion in the Voters' List. His further submission is that the petitioner's name was included in the preliminary list of voters and if the same could continue in the Voters' List, the petitioner could contest election or at least, could cast his vote. It is also submitted that in accordance with Rule-6 of the Gujarat Specified Cooperative Societies Elections to Committee Rules, 1982, objections were invited by the Election Officer, in response to which, the respondent no.3 submitted his written objections. Though the parties have not filed th copy of the objections, but the Election Officer, who had passed the impugned order has produced the copy of the said objections for our perusal. We will refer to the objections at a later stage. The further submission is that the Election Officer upheld the objections and directed deletion of the name of the petitioner from the Voters' List. Grievance of the 4- C-SCA-12508-2005-Y-3 petitioner is that the order passed by the Deputy Collector/Election Officer is per se illegal, is in fact, to help and oblige the objector and shows absolute and utter non-application of mind and also shows that even in absence of any material, he had passed such order violating every norm known to the law. 4.In reply to the petition, the Election Officer has filed his personal affidavit. He has submitted that the petitioner has come out with half truth. His submissions are that the action taken in fact, was absolutely correct, he was also justified in not including the name of the petitioner in the Voters' List as the matter relating to the co-option of the petitioner was pending consideration in the Lavad Suit and he was entitled to delete the name of the petitioner in view of the authority conferred upon him. He has also observed that in light of the reported and unreported judgments of this Court, he was justified in observing that no cooperative society has authority to fill in the vacancy either by co-opting, appointing or nominating any person. His further statement in the affidavit is that the petitioner's co-option was not approved in the general body and as such, he had no authority to take part in the elections. It is also 5- C-SCA-12508-2005-Y-3 submitted by him that though injunction order was vacated by the Revisional Tribunal, but the matter is yet pending and has not been disposed of, therefore, he was justified in granting prayer of the objector. He has also referred to Rule 28-(d) to contend that the Rule does not specifically refer to co-opted members therefore a co- opted member of the primary society would not be entitled to be included in the Voters' List. 5.Respondent No.3 has not challenged the material submissions made by the petitioner but in his affidavit dated 11th July, 2005, has submitted, inter alia, that the petitioner was co-opted on 5th November, 2004 in contravention of Bye-law No.30(13) of the Primary Cooperative Society. It is submitted by him that the petitioner was not qualified to be a member of the Managing Committee as he had not supplied 700 liters milk or in the alternative, did not supply the milk for minimum period of 180 days in the preceding year. He has also submitted that the petitioner started supplying milk from 1st September, 2004, therefore, as on 31st March, 2005, the petitioner could not be said to be qualified to be a member of the Managing Committee. 6.Learned counsel for the petitioner, in support of the 6- C-SCA-12508-2005-Y-3 petition submitted that a perusal of the order passed by the Election Officer would make it clear that he was relying upon the letter dated 3.6.2005 to hold that co- option of the petitioner was not approved in the general body meeting, therefore, he has lost his right. 7.The Election Officer has observed that the Board of Nominee, by its order dated 14.6.2005 issued an order that the petitioner could not be co-opted, therefore, on 19.4.2005, the petitioner's name could not be referred. Even at this stage, we must express our shock and surprise to the understanding of the Election Officer. We asked Ms. Sheth to seek instructions from the Election Officer, who is present in the Court, to justify these observations. It is to be seen that the name of the petitioner was forwarded by the Primary Cooperative Society on 19.4.2005 and on that day, nobody knew that some dispute would be filed on some future date and on some future date, the Board of Nominee would issue an order of injunction. 8.Though alive to the order passed by the Revisional Tribunal on 20th June, 2005, whereunder injunction order was vacated, the Election Officer still says that the matter was remitted to the Board of Nominee for its final disposal within a period of three months and as the matter 7- C-SCA-12508-2005-Y-3 is still pending and is sub-judice, the petitioner's name could not included. The Election Officer has observed that no person can be co-opted to the Managing Committee, therefore also, the petitioner could not be co-opted as member of the Managing Committee. 9.Mr. Tushar Mehta, learned counsel for the petitioner submits that the judgment of this Court reported in 2004 (1) GLR 310 on which the respondents are placing reliance is not in relation to the Primary Cooperative Society, but is referring to Section 74-C(3) of the Gujarat Cooperative Societies Act, 1961, which governs the rights and authorities of the specified cooperative societies. His submission is that co-option is not foreign to the Managing Committee and from Section 74-B, it would clearly appear that in case, reserved seats cannot be filled by election, then, reserved seats can be filled by appointment/co-option. His further submission is that co- option under the bye-laws of the Society is not required to be approved in the general body meeting and the respondent no.3, to mislead the Election Officer and to create a state of confusion submitted the certificate dated 3.6.2005 to obtain a favourable order. His submission is that the certificate dated 3.6.2005 has been 8- C-SCA-12508-2005-Y-3 drafted to convey a sense that co-option dated 5.11.2005 has not been approved by the general body and therefore, it must be presumed that co-option has come to an end. His submission is that co-option could continue only up to the election of the Managing Committee and as on 24.5.2005, general body had elected a Managing Committee, there was no reason to consider the question of co-option. His submission is that the certificate, in fact, was obtained to play fraud upon the Election Officer. His further submission is that the Election Officer, without even looking to the Bye-laws of the Primary Cooperative Society, simply referred to the certificate and without application of his mind, observed that the petitioner's co-option was not approved. The submission is that a document of present nature could not be relied upon unless foundational facts were available. His further submission is that for the primary level cooperative societies, their Managing Committees are to be constituted in accordance with Rule 5(2) of the Gujarat Cooperative Societies Rules, 1965, under the bye-laws to be framed by them from time to time. Referring to Clause-(2) of Rule 5, he submits that a Primary Cooperative Society is entitled to make bye-laws relating to its constitution and the election. His 9- C-SCA-12508-2005-Y-3 submission is that in accordance with the powers conferred under Rule-5 of the Rules, the Primary Cooperative Society has framed bye-laws and in accordance with law. Bye-law No.35 provides that in case of a vacancy occasioning on death or for any other reason, Managing Committee would be entitled to appoint any person to fill in the vacancy. His further submission is that the present is a case where fraud has been played upon the Statute and the Election Officer, for the reasons best known to him, not only supported the respondent no.3 in upholding the objections, but is also supporting the respondent no.3 even in these proceedings. 10.Ms. Sheth, learned counsel for the Election Officer, when was confronted with this fact, sought further instructions from the Election Officer. It is submitted by her that there is no reference to the letter dated 3.6.2005 in the body of the objections, she however submits that once objections were filed and the documents were appended to it, the Election Officer was justified in considering every objection. When we asked her that whether the Election Officer made any inquiry into the bye-laws of the Primary Cooperative Society that whether the co-option was required to be approved in the general 10- C-SCA-12508-2005-Y-3 body, after seeking instructions, she submitted that the Election Officer did not seek any instructions. When we asked her to justify the stand taken by the Election Officer that though injunction had been vacated, but as the matter is still sub-judice, the petitioner would not be entitled to be registered as a voter, she submitted that the approach of the Election Officer was patently illegal. When we inquired from her that the judgment of this Court reported in 2004 (1) GLR 310 in the matter of Antakampa Milk Producers' Co-op. Society Ltd. Vs. Sabarkantha District Co-op. Milk Producers' Union Ltd., if was simply referring to the specified societies and Rule- 5 of the Rules provides for making of the bye-laws for constitution and conduction of the election etc., how could the said judgment be applied to the facts of the present case, she submitted that the Election Officer committed a mistake in not understanding the distinction between a specified society referred in Section 74-C and an ordinary primary level cooperative society. She however submitted that present is a case where the Election Officer did not act mala fide, but was exercising the rights and authority conferred upon him under the law. 11.Mr. P.K. Jani, learned counsel for the respondent no.3 11- C-SCA-12508-2005-Y-3 submitted that the Election Officer was absolutely justified in not including the name of the petitioner in the final list of voters. His submission is that the petitioner could be appointed a member of the Managing Committee of the Primary Cooperative Society provided he fulfilled the requirement of bye-law no.13 that within one cooperative year, the member had supplied milk for 180 days or had supplied 700 litres milk. His submission is that on 5.11.2004, the petitioner was not fulfilling the said conditions, because, he had not supplied milk for 180 days by that time nor he had supplied 700 litres milk from the date of the supply till the date of his co-option, therefore, he could not be co-opted and if he could not be co-opted, his name could not be forwarded and as such the Election Officer was absolutely justified in not including the name of the petitioner. 12.At this stage, we asked Mr. Jani that the question raised by him is not the ground on which the petitioner's name was rejected by the Election Officer, then, how could such argument be raised in support of the order passed by the Election Officer, to this, Mr. Jani submitted that the respondent no.3 is free to support the order on any other ground on the material available to the respondent no.3. 12- C-SCA-12508-2005-Y-3 It is to be seen that in the counter affidavit filed by respondent no.3, but for this ground, no other question has been raised. 13.We asked Mr. Jani to go through the objections filed by respondent no.3 and inform us that whether objector had taken objection that the petitioner's co-option approved on 5.11.2004 and was not approved in the general body meeting. We also asked him that in accordance with the bye-laws of the Primary Cooperative Society, whether co- option was required to be approved, Mr. Jani submitted that under the bye-laws of the primary level cooperative society, authority to co-opt/appoint vested in the Managing Committee and the resolution passed by the Managing Committee was not required to be approved by the general body. He also admitted that in the meeting dated 24th May, 2005, the petitioner was elected as member of the Managing Committee. When we asked him that why such a certificate that co-option was not approved in the general body meting was filed before the Election Officer, most innocuous reply came from Mr. Jani that the respondent no.3 being an innocent man and ignorant of law thought that such document should have been produced. Mr. Jani, however, submits that present is a case where election 13- C-SCA-12508-2005-Y-3 process has begun and at this stage, this Court should not interfere. When we asked Mr. Jani that whether judgment of this Court in the matter of Antakampa Milk Producers' Co- op. Society Ltd., would apply to the primary level cooperative societies,Mr. Jani fairly conceded that the said judgment simply considers Section 74-C of the Gujarat Cooperative Societies Act and it does not refer to the authority of a primary level cooperative society to co-opt a member. He also conceded that in accordance with the bye-laws, Managing Committee was entitled to co-opt a member. 14.We asked Mr. Jani that if respondent no.3 had already gone to the cooperative court i.e., the Board of Nominee for redressal of his grievances and injunction had been vacated by the Revisional Tribunal with a finding that the submission of the present petitioner appear to be just, then, how could the respondent no.3 still file affidavit in this Court that the present petitioner did not supply the milk and as such, he was not entitled to be co-opted a member of the Managing Committee. We also asked him that what was the material with the respondent no.3 to make an assertion that the present petitioner did not supply milk for 180 days or he did not supply 700 litres milk. During 14- C-SCA-12508-2005-Y-3 the recess period, Mr. Jani sought further instructions from his client and made submission to this Court that the respondent no.3 had no material with him. He submits that he made repeated requests to the primary cooperative society for supply of the details relating to supply of the milk by the petitioner, but the primary cooperative society did not supply the details, therefore, he had to approach the Consumer Forum. When we asked him that if particular material was produced by the present petitioner in the revision before the Revisional Tribunal and the Revisional Tribunal had made an observation that the present petitioner did supply the milk, then, how could such an affidavit be sworn by the respondent no.3, to this, Mr. Jani says that this being the case of the respondent no.3 right from the beginning, such affidavit has been submitted. 15.In the matter of Antakampa Milk Producers' Co-op. Society Ltd. (supra), the question before the Court was that could a specified society co-opt any member to the Managing Committee. Referring to the language of Section 74-C, the High Court observed that in view of the language employed in Section 74-C(3), there was no scope for co- option, but a specified society was obliged to constitute 15- C-SCA-12508-2005-Y-3 a Managing Committee through the process of elections. The observations made by the learned Single Judge in the said matter were:- “On a plain reading of Sec.74C(3), it transpires that (i) it will have overriding effect on any other bye-law of any such Society, (ii) it also provides that the committee of the management shall be elected by the general body of the Society, (iii) it also provides that all committees authorized by or under the bye-laws may be constituted by electing or appointing persons from amongst the persons who are members of the committee of management.” The learned Judge was not at all referring to primary level cooperative societies and in our opinion, rightly, because, the dispute before the learned Single Judge was in relation to the effect, impact and interpretation of Section 74-C. We are not looking into the correctness or otherwise of the said judgment of the learned Single Judge, but we are simply observing that whether the said judgment can be applied to the facts of the present case. 16- C-SCA-12508-2005-Y-3 16.The heading of Section 74C says that it provides provisions for conduct of election of committees and officers of certain societies and term of officers of members of the committee. Now, these societies have been detailed and enumerated in sub-section (1) of Section 74- C. A fair understanding of law would make it clear that provisions of law should be read in reference to a particular thing to which the provision of law refers. A provision of law cannot be applied out of the context, nor can it be mis-applied without looking to the facts. When the provision of law says that election of the members of the societies of the categories mentioned in sub-section (1) shall be subject to the provisions of Chapter XI-A and shall be conducted in the manner laid down by or under that Chapter and thereafter details of the societies are given, then, provisions of Section 74C would apply to those societies only, which have been so specified by sub-section (1) of Section 74C of the Act. It would be illegal to apply these provisions to the primary level cooperative societies. 17.So far as the primary level cooperative societies are concerned, they are entitled to make their own bye-laws under Rule 5 of the Gujarat Cooperative Societies Rules, 17- C-SCA-12508-2005-Y-3 1965. According to Rule 5 where a society has been registered, the bye-laws submitted under sub-section (1) of section 8 shall, subject to any modifications approved by the Registrar and adopted at a general meeting having a quorum by a majority of not less than one third of the members present and voting, become the bye-laws of the society. Sub-rule (2) of Rule 5 says that every society shall make bye-laws on the matters mentioned in sub-rule (2). Clause (n) of sub-rule (2) of Rule 5 refers to the constitution and election of the Managing Committee and its powers and duties. From Clause (2), it would clearly appear that primary level cooperative society is entitled to make its own bye-laws relating to the constitution and election of the Managing Committee and its powers and duties. It is not in dispute before us that Adrana Dudh Utpadak Sahkari Mandali Ltd., has made its bye-laws and the said bye-laws have been approved and registered by the Registrar. Bye-law 35 provides that either because of death or for any other reason, if any vacancy is caused in the Managing Committee, then, the said vacancy can be filled by the Managing Committee itself by appointing any member period till the next elections. Bye-law 35 gives un-fettered right to the Managing Committee of the primary 18- C-SCA-12508-2005-Y-3 level cooperative society to fill the vacancy and that power even cannot be challenged by any person except on the ground that a particular person could not be so appointed or co-opted for the disqualification suffered by him. The fact and the legal position even otherwise is not disputed by the counsel for the respondents. If that be so, then, co-option of the present petitioner could not be challenged by any person except in accordance with law by initiating proceedings before the competent forum. It is to be noted that in the present case, the respondent no.3 has already initiated proceedings and failed in obtaining an injunction order. At this stage, we must observe that the present petitioner is armed with a prima facie finding recorded by the competent Tribunal/Court that his co-option was in accordance with law. 18.If the co-option dated 5.11.2004 was not required to be approved, then, for what particular reason, this certificate dated 3.6.2005 was filed by the respondent no.3 is still a mystery, which the respondent no.3 is not ready to clarify. We repeatedly asked Mr. Jani representing the respondent no.3 that if the resolution dated 5.11.2004 was not required to be approved, then, why such certificate was obtained and filed before the 19- C-SCA-12508-2005-Y-3 Election Officer, the reply which we received was that the certificate was depicting a correct picture and