SCA/8032/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8032 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SHAILESHBHAI GOVINDBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR DILIP B RANA for Petitioner(s) : 1, MS TRUSHA PATEL AGP for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR TUSHAR MEHTA for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/06/2008 SCA/8032/2008 2/9 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. Rule. Ms.Patel, learned AGP waives service of notice of Rule for respondents No.1 and 2 and Mr.Mehta, learned Counsel waives service of notice of rule for respondent No.3. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard. 2. The petitioner has preferred the petition for the relief, inter alia, to quash and set aside the decision dated 27.5.2008 – Annexure “A” of the Election Officer and it is also prayed that the Election Officer be directed to prepare voters' list as per the bye-laws and the rules for different constituencies as referred to in the memo of the petition. 3. Mr.Shelat, learned Sr. Counsel appearing with Mr.Rana for the petitioner, at the outset, declared before the Court that the petitioner is pressing the present petition only for the purpose of maintaining the challenge that the voters' list are required to be prepared as per the constituencies provided in the bye-laws of SCA/8032/2008 3/9 JUDGMENT specified Society since it provides for two separate constituencies of Utpadak-Members and General Members (Non-Utpadak-Members). He also declared before the Court that so far as the other grounds stated in the petition pertaining to the inclusion or non-inclusion of certain persons as Utpadak-Members or as Non-Utpadak- Members in the voters' list are concerned, the petitioner, if so advised, may challenge such action of the election authority after the election is over as per the remedy provided under Section 145U of the Gujarat Coop. Societies Act (hereinafter referred to as “the Act”) read with the relevant Rules. 4. We have heard Mr.Shelat, learned Sr. Counsel with Mr.Rana for the petitioner and Ms.Patel, learned AGP for the State Authorities including the Election Officer and Mr.Mehta, learned Counsel for respondent No.3. 5. The principal grievance, on the part of the petitioner, appears to be that even as per the Rule 4 of the Gujarat Specified Cooperative Societies Elections to Committees Rules, 1982 SCA/8032/2008 4/9 JUDGMENT (hereinafter referred to as “the Rules”) and more particularly Sub-Rule (1) read with the other relevant Rules for finalization of the voters' list, the voters' list of a specified Society, whose election is to be held, is required to be prepared as provided in the bye- laws and the said aspect in the submission of the learned Counsel for the petitioner is apparent from the language of the Rule. 6. It appears that the learned Counsel for the respondent Society has also not disputed the requirement of preparation of the voters' list as per the constituencies provided in the bye- laws. Even on behalf of the election officer, the learned AGP is not in a position to dispute the requirement for preparation of the voters' list as per the constituencies provided in the bye-laws. 7. It deserves to be recorded that as per Rule 4, the provisional list is required to be prepared and the language used in Sub-Rule (1) of Rule 4, relevant of which reads as under:- “If different constituencies are provided in SCA/8032/2008 5/9 JUDGMENT the bye-laws, the names of voters shall be arranged constituency-wise as laid down in the bye-laws.” 8. The perusal of the bye-law No.5 providing for membership speaks for two types of membership; one for Utpadak Membership and another for General Membership (Non-Utpadak Membership). Bye-law No.21 provides that the Managing Committee shall be comprising of total 25 members, out of which 15 representatives shall be from amongst the members holding Utpadak shares as provided under Bye-law No.5(a) and one representative shall be from amongst the Members as provided under Bye-law No.5(b) being General Members/Non-Utpadak Members. 9. Therefore, on conjoint reading of bye-law 5 read with bye-law No.21(a) and (b), there is considerable force in the submission of the learned Counsel for the petitioner and as the said aspect is not disputed by the learned Counsel for the respondent Society, nor on behalf of the Election Officer, and no other legal position is brought to the notice of this SCA/8032/2008 6/9 JUDGMENT Court, we find that it may not be necessary for this Court to further elaborate the reasons on such aspects. Suffice it to state that as per the Scheme of the relevant Rules read with the bye-laws, constituencies are required to be prepared of the voters separately and accordingly the representatives are also required to be elected from the respective constituencies of the voters' list. 10.It is an admitted position that the Election Officer as such prepared the voters' list separately for both the categories of Utpadak members and General members, however, it appears that the stand of the Election Officer, as per the impugned order was that the voters of both the constituencies shall be entitled to cast their vote in respect of the members to be elected holding Utpadak shares as well as holding non-Utpadak shares. If the bye-law provides for separate constituencies and the representation of the members in the Managing Committee from amongst the voters of separate constituencies, as a normal principle, only such SCA/8032/2008 7/9 JUDGMENT voters shall be entitled to elect their representative as per their constituency. We are inclined to take the aforesaid view since there is no other provision in the bye-laws brought to our notice, extending the rights of all the voters in respect of all the constituencies or enabling them to cast their vote in respect of election of all the members of the Managing Committee. 11.The aforesaid is coupled with the circumstances that even in the past, the election of the respondent No.3 Society was being held constituency-wise and the representatives were elected constituency-wise from amongst the voters of such constituency separately. 12.It is well settled that if without disturbing the election, this Court, in exercise of its power under Article 226 of the Constitution of India, is in a position to render justice, such power can be exercised. As the voting is to take place on 23.6.2008 and as the voters' list is already separately prepared by the Election Officer and as it is an admitted position that SCA/8032/2008 8/9 JUDGMENT the nominations as well as the candidates, who are to contest election, are separate namely; from amongst Utpadak-Members and from amongst Non-Utpadak-Members, if direction is given to the Election Officer to hold the election constituency-wise for casting the vote by such members, included in the respective constituencies, it would not result into arresting the election process and holding of such election would, on the contrary, result into in accordance with the statutory Rules read with the Bye-laws. 13.Hence, the following orders:- (a) The Election Officer shall hold the election of respondent No.3 Society as per the election programme, copy whereof is produced at Annexure “F”, keeping in view the observations made hereinabove and shall permit casting of vote by the voters, included in the respective constituencies, qua candidates to be elected in that respective constituencies. 14.The learned AGP, on behalf of the Election Officer, has also declared before the Court that SCA/8032/2008 9/9 JUDGMENT accordingly the election shall be held on 23.6.2008. 15.It is clarified that this Court has not gone into the aspect of genuineness of the respective voters to be included in the respective constituencies of Utpadak-Members or Non- Utpadak-Members, as the case may be, since, in any case, for such question or dispute, there is an express remedy provided under Section 145U of the Act, after the election is over. 16.In view of the above, the impugned order – Annexure – A shall stand modified to the aforesaid extent. 17.The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. (Jayant Patel, J.) 18.6.2008 (Akil Kureshi, J.) vinod