SCA/9399/2006 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9399 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= AMTHABHAI VARVABHAI RABARI & 4 - Petitioner(s) Versus PRAHLADJI VALAJI RAJPUT & 15 - Respondent(s) ========================================================= Appearance : MR PS CHAMPANERI for Petitioners MR BS PATEL for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 29/04/2006 ORAL JUDGMENT (Per : HONOURABLE MS.JUSTICE H.N.DEVANI) 1. By this petition under Article 226 and 227 of the Constitution of India the petitioners SCA/9399/2006 2/29 JUDGMENT challenge the judgment and order dated 15th April 2006 passed by the Gujarat State Co- operative Tribunal, Ahmedabad (hereinafter referred to as the Tribunal) whereby the Tribunal has allowed the Election petition filed by the respondents No.1 to 11 herein and held that the nomination papers of the respondents No.1 to 11 have been wrongly rejected; that the decision declaring the opponents No.2 to 9 in the Election Petition, (namely, the petitioners and 3 others) as having been elected uncontested on 26/7/2005 was not in consonance with the provisions of law and the election rules and has set aside the election of the 11 candidates of the agriculturists' constituency of the respondent No.16, Siddhpur Taluka Co-operative Purchase and Sales Union Limited, Siddhpur (hereinafter referred to as the respondent Union) who had been declared elected uncontested. 2. The facts as emerging from the record of the case are that the respondent Union is a specified co-operative society within the meaning of section 74C(1)(iv)(b) of the Gujarat Co-operative Societies Act, 1961 (the Act). Accordingly, the election of the members of the managing committee and of the officers by the committee of the said society is subject to the provisions of Chapter XI-A of the Act and is required to be conducted in the manner laid SCA/9399/2006 3/29 JUDGMENT down by or under that Chapter. The Government of Gujarat has in the exercise of powers under section 168 read with sub-section (2) of section 145G, sub-section (4) of section 145U and section 145Y of the Act, framed rules called the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 (hereinafter referred to as the Rules), which govern the elections of Committees of specified societies. 3. Byelaw No.28(1) of the Byelaws of the respondent Union provides for the constitution of a Managing committee consisting of 17 members, out of which 11 belong to the agriculturists constituency. The term of the Managing committee of the respondent Union was expiring in 2005, hence election of the new Managing committee was required to be held. Accordingly, the Election Officer and Mamlatdar Siddhpur, respondent No.12 herein, declared the election programme for election of the members of the managing committee of the said society. As per the voters list declared by the Election Officer the respondent Union had 45 voters. The names of the petitioners as well as the respondents No.1 to 11 were included in the said voters list. The dispute involved in the present petition pertains to the election of 11 members of the agriculturists’ constituency of the respondent Union. SCA/9399/2006 4/29 JUDGMENT 4. In all 22 candidates presented their nomination papers for the said election. Scrutiny of the nomination papers was carried out on 21st July 2005. It appears that no information regarding nomination papers having been rejected was conveyed to the candidates till the completion of office hours on 21st July 2005. It was only when the petitioners and respondents No. 13 to 15 were declared as elected uncontested, that the respondents No.1 to 11 came to know that the respondent No.12, had rejected their nomination papers. Thereafter the respondents No.1 to 11 called upon the Election Officer to supply a copy of the order rejecting their nomination papers, whereupon they were informed by the Election Officer that their nomination papers were not in consonance with Rule 5(2) of the Election Rules of the respondent Union, hence, the same had been rejected. It was the case of the respondents No.1 to 11 that the nomination papers of the opponents No.2 to 9 who had been declared as elected also suffered from the same deficiency as was pointed out in their nomination papers. Being aggrieved by the aforesaid rejection of their nomination papers as well as the declaration that the opponents No.2 to 9 had been elected uncontested, the respondents No.1 to 11 approached this Court by way of a writ petition being Special Civil Application No.15645 of 2005. This Court by an SCA/9399/2006 5/29 JUDGMENT order dated 2nd June, 2005 relegated the petitioners therein, to the alternative remedy before the Tribunal by way of an election petition. Accordingly, the respondents No.1 to 11 filed an election petition before the Tribunal under the provisions of section 145U of the Act. 5. Before the Tribunal it was the case of the respondents No.1 to 11 (hereinafter referred to as the election petitioners) that the respondent Union had been established in 1972; that its election Rules were approved on 22.2.1973; that the Gujarat Specified Co- operative Societies Elections to Committees Rules, 1982 were enacted and brought into force in 1982, hence, thereafter, the Election Rules of the respondent Union ceased to exist. That the Election Officer has disregarded the provisions of section 74C of the Act. That despite the fact that it is mandatory to conduct the election of the members of the managing committee of specified societies in accordance with the provisions of the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982, the Election Officer has applied the provisions of Rule 5(2) of the Election Rules of the respondent Union, which is not legal. It was submitted that the provisions of Rule 28(2) of the Rules has not been taken into consideration. It was pointed SCA/9399/2006 6/29 JUDGMENT out that in case of some of the candidates nomination papers had been accepted despite the fact that even in their case there was duplication of proposer and seconder. It was contended that there were in all 22 candidates and a total of 45 voters, hence, it was not practically possible for each candidate to have a different proposer and seconder. Attention was drawn to the provisions of Rule 19(5) of the Rules to submit that the candidates were not informed regarding the rejection of their nomination papers and it was only on the next day when the final voters list was declared that they came to know of the rejection of their nomination papers. It was submitted that their nomination papers had wrongly been cancelled and the opponents No.2 to 9 had wrongly been declared as elected uncontested. 6. Pursuant to the issuance of summons by the Tribunal, the petitioners as well as the Election Officer put in their appearance. The respondent Union which was originally not joined as a party was subsequently impleaded as opponent No.10 in the proceedings before the Tribunal. 7. It was the case of the Election Officer that in all 22 nomination papers had been received. That scrutiny was fixed on 21.7.2005. It was further submitted that by a communication dated SCA/9399/2006 7/29 JUDGMENT 19th July, 2005 it had been informed that the election shall be held in accordance with the procedure laid down under Rule 18 and 19 of the Rules. That Rule 18 and 19 provided that if the byelaws provide for any disqualification the same should be taken into consideration. That the suggestions and objections received were taken into consideration. That under the provisions of Rule 23(2) of the Rules read with Rule 5(2) of the Election Rules of the respondent Union, a voter could propose and second only one candidate. Accordingly, those papers which were received prior in point of time were kept in view while taking a decision to accept or reject the nomination papers. That the nomination papers which were not in consonance with law, namely where there was duplication of the proposer and seconder, were rejected. Accordingly the nomination papers of the 11 election petitioners were rejected. 8. On behalf of the petitioners oral evidence was led by examining witnesses, whereas the election petitioners sought to rely upon the record of the case. On behalf of the petitioners, it was contended that the requisite Court fees had not been paid. That it was the society which was the member of the respondent Union; that the Election Petition had not been filed on behalf of the Society nor was any resolution produced in that regard, SCA/9399/2006 8/29 JUDGMENT hence the petition was required to be rejected. It was submitted that the election rules of the respondent Union had been approved by the District Registrar and had the force of law. That merely because of the framing and coming into force of the Rules of 1982, the election rules of the respondent Union do not cease to exist. That if the nomination papers of opponents No.2 to 9 have been wrongly accepted, it is not necessary to set aside the entire elections. 9. The Tribunal after taking into consideration the rival contentions and considering the scheme of the Act and the Rules found that the nomination papers of the election petitioners were wrongly rejected and held that decision dated 26th July, 2005, whereby the opponents No.2 to 9 had been declared as elected uncontested was not in consonance with the Act and the Rules. Accordingly, the Tribunal vide its impugned order dated 15th April, 2006 set aside the election of 11 members of the Agriculturists’ constituency of the respondent Union. 10. Being aggrieved by the aforesaid order dated 15th April 2006, the petitioners who were opponents No.2, 7, 5, 3 and 8 respectively in the Election Petition have challenged the same by way of the present petition. SCA/9399/2006 9/29 JUDGMENT 11. Heard Mr. P.S. Champaneri, learned Advocate for the petitioners and Mr. B.S. Patel learned Advocate for the respondents No.1 to 11. 12. Learned Advocate. Mr. Champaneri submitted that the Tribunal had committed an error in entertaining the election petition which was not in consonance with the provisions of section 145V read with Rule 75 and 76 of the Rules. Drawing attention to the provisions of section 145 V it was submitted that the election petitioners had not paid the deposit amount as required under the said section. It was submitted that initially the election petitioners had deposited only Rs.500/- despite the fact that there were eleven election petitioners; that the Tribunal ought to have rejected the petition on that count alone instead of directing that Rs.5000/ be paid towards the cost of hearing at the time of final hearing of the petition. That the election petition was therefore, not presented in accordance with the provisions of section 145V and was required to be rejected on that count alone. 13. It was submitted that the Tribunal has erred in setting aside the election of 11 returned candidates of the agriculturists' constituency of the respondent Union in the absence of all SCA/9399/2006 10/29 JUDGMENT returned candidates being parties to the petition. 14. It was next contended that the election petition was required to be presented in accordance with the provisions of section 145W, however, the election petitioners failed to do so inasmuch as the petition was not verified in accordance with the provisions of clause (c) of sub-section (1) of section 145W of the Act. Attention was drawn to the provisions of Rule 74 of the Rules which provide that no election shall be called in question, except by an election petition presented to the Government in accordance with the provisions of section 145U and the said rules. Attention was also drawn to the provisions of sub-rule (2) of Rule 77 of the Rules which provides that the Government may dismiss an election petition which does not comply with the provisions of rule 75. It was pointed out that sub-rule (2) of rule 75 of the Rules provides that the every copy of the election petition shall be attested by the petitioner under his own signature to be a true copy of the petition. It was submitted that the said provisions had not been complied with; hence the election petition ought to have been dismissed for non-compliance with the provisions of rule 75 of the Rules. 15. It was further submitted that section 145-F SCA/9399/2006 11/29 JUDGMENT provides for disqualification for membership. That in view of the provisions of clause (e) of sub-section (1) of section 145-F, a person shall be disqualified for being elected as, and for being a member of the committee of any specified society if he is also disqualified by or under any other provision of this Act. That the election petitioners were disqualified under the provisions of Rule 5(2) of the Election Rules of the respondent Union, hence, under the provisions of section 145-F of the Act, the election petitioners were disqualified for being elected as members of the respondent Union. Hence, the nomination papers of the election petitioners had been rightly rejected and the Tribunal was wrong in setting aside the rejection of their nomination papers. 16. It was also submitted that the Tribunal has committed an error in interpreting the provisions of Rule 18, 19 and 23 of the Rules read with Rule 5(2) of the Election Rules of the respondent Union. It was submitted that the Election Rules of the respondent union had been approved by the District Registrar at the relevant time and that merely because the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 had come into force, the said Rules did not cease to exist. That the Election Officer had rightly taken into consideration the provisions of rule SCA/9399/2006 12/29 JUDGMENT 5(2) of the Election Rules of the respondent Union along with rule 18 and 19 of the Rules and rejected the nomination papers of the election petitioners. 17. Mr. B.S. Patel, learned Advocate for the election petitioners referred to the provisions of section 74C of the Act to point out that the election of members of the committees of specified societies were to be conducted in the manner laid down by or under Chapter XI-A of the Act. Mr. Patel pointed out the provisions of section 145-Y which provides for powers to make rules for the purposes of Chapter XI-A. Under the said section the State Government is empowered to make rules to regulate all or any of the matters relating to the various stages of the election. It was submitted that accordingly statutory rules being Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 have been framed to regulate the elections of specified co- operative societies. Reliance was placed upon a decision of this court rendered in the case of Ambalal Manilal Makwana v. Khambhat Taluka Sahkari Kharid Vechan Sangh Ltd., [1975] 16 GLR 382, to submit that any bye-law which was in contravention of the statutory rules was ultra vires and the grant of sanction by the Registrar to such bye-law does not make it valid. It was submitted that the election SCA/9399/2006 13/29 JUDGMENT officer could not have rejected the nomination papers for non-compliance with the provisions of rule 5(2) of the Election Rules of the respondent Union which were contrary to the statutory rules. That the Tribunal was justified in holding that the nomination papers of the election petitioners were wrongly rejected and setting aside the election of all the members of the agriculturists’ constituency. 18. At the outset it may be pertinent to refer to the various provisions of the Act and the Rules which fall for consideration. Section 74C of the Act which makes provision for conduct of elections of committees and officers of certain societies and term of office of members of committees, lays down that the election of members of the committees and of the officers by the committee, of the societies of the categories mentioned therein shall be subject to the provision of Chapter XI-A and shall be conducted in the manner laid down by or under that Chapter. One of the categories of societies mentioned therein at Clause (iv) (b) are “All Taluka Co-operative Sale and Purchase Organisations.” The respondent Union is a society falling under the said category, hence, the elections of the managing committee of the respondent Union is required to be conducted in the manner laid down under Chapter XI-A of the SCA/9399/2006 14/29 JUDGMENT Act. 19. Chapter XI-A of the Act makes provision for “Elections of Committees and Officers of Certain Societies” and consists of Sections 145A to 145Z. Section 145A provides that all sections of Chapter XI-A except section 145Z shall apply to elections to committees of societies belonging to the categories specified in section 74C. Clause (c) of section 145B defines “specified society” to mean a society belonging to any of the categories specified in section 74C. 20. Section 145W provides for the “Contents of petitions”. Part of section 145W of which breach is alleged reads as under: “(1)An election petition shall- (a) XXXXXXXX (b) XXXXXXXX (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings. XXXXXXX (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 21. Section 145Y which provides for powers to make rules for the purposes of Chapter XI-A reads as SCA/9399/2006 15/29 JUDGMENT under: “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 matters relating to the various stages of the elections (including preparation of list of voters.)” 22. In exercise of the powers conferred by section 168 read with sub-section (2) of section 145G, sub-section (4) of section 145U and section 145Y of the Act, the Government of Gujarat has framed rules called the “Gujarat Specified Co- operative Societies Elections to Committees Rules, 1982.” 23. Sub-rule (3) of Rule (1) makes the said rules applicable to the elections to the Committees of specified societies. Clause (b) of Rule 2 defines constituency to mean an electoral division, if any, as specified in the bye-laws of the specified society. 24. Rule 18 of the Rules insofar as the same is relevant for purpose of the present petition reads as under: “18. Nomination of candidates.- (1) Any person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Act, rules and bye-laws and his name is entered in the list of SCA/9399/2006 16/29 JUDGMENT voters: xxxxx (2) xxxxx (3) Any person whose name is entered in the list of voters may be a proposer or a seconder for nominating a candidate for election: Provided that, in the case of elections from the constituency of societies the proposer and the seconder shall be from the same constituency. (4)xxxxx (5)xxxxx 25. Rule 19 of the Rules as is relevant for the present purpose reads as under: “19. Presentation of nomination paper and requirements for valid nominations.- (1) On or before the date appointed under sub-rule (1) of rule 16, each candidate shall either in person or by his proposer deliver to the Returning Officer during the time and at the place specified in the order made under the said rule, a nomination paper completed as provided by rule 18 and signed by the candidate and by two voters of his constituency one of whom shall proposer and the other as seconder. (2) Any person who is not subject to any disqualification as a voter under the Act, rules or bye-laws and whose name is entered in the list of voters for the constituency for which the candidate is nominated, may subscribe as proposer and as seconder. (3) XXXXXXXX (4) On the presentation of a nomination paper the Returning Officer shall satisfy himself that the names and the numbers of the candidate and his proposer and seconder as entered in the nomination paper are the SCA/9399/2006 17/29 JUDGMENT same as those entered in the list of voters referred to in rule 7. If a nomination paper is rejected under this sub-rule, the Returning Officer shall record thereon his reasons for rejecting the same, and in that case, the candidate may deliver a fresh nomination paper subject, however, to all the provisions of this rule: XXXXXXXXXX 26. Rule 23 of the Rules as is relevant for the present purpose reads as under: “Scrutiny of nomination papers.- (1) on the date fixed for the scrutiny of nomination papers under rule 16, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at the time and place appointed in this behalf under rule 16 and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates, which have been delivered as required under rule 19. (2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, that is to say:- (a) that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or bye- laws; (b) that the proposer or seconder is disqualified from subscribing a nomination paper; (c) that there has been a failure to comply with any of the provisions SCA/9399/2006 18/29 JUDGMENT of rule 19 and 21; (d) that the signature of the candidate or the proposer on the nomination paper is not genuine. (3) XXXXXX (4) XXXXXX (5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under rule 16 and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by cause beyond his control; Provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. (6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same, and if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. (7) XXXXX. 27. The respondent Union being a specified society as envisaged under section 74C of the Act, the elections of its managing committee is required to be conducted under the provisions of Chapter XI-A of the Act. Chapter XI-A of the Act comprises of Sections 145A to 145Z. Section 145Y empowers the State Government to make rules to provide for and regulate all or any of the matters relating to the various stages of SCA/9399/2006 19/29 JUDGMENT the elections. Accordingly the State Government has framed the Gujarat Specified Co-operative Societies Elections of Committees Rules, 1982 which provide for the manner in which the elections to the committees of specified societies are to be conducted. 28. In the facts of the present case admittedly the petitioners, the election