SCA/1345320/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13453 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH AND HONOURABLE MS.JUSTICE H.N.DEVANI ================================================= 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 ? ================================================= HIRABHAI JESANGBHAI KHASOR - Petitioner(s) Versus ELECTION OFFICER & DY COLLECTOR & 2 - Respondent(s) ================================================= Appearance : MR SP MAJMUDAR for Petitioner(s) : 1, MS SANDHYA NATHANI, AGP for Respondent(s) : 1. MR NARESH CHAUDHARY for Respondent(s) : 2. ================================================= CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 14/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) Rule. Ms Sandhya Nathani, learned AGP waives service of Rule for respondent No. 1. Mr Naresh Chaudhary waives service of Rule for respondent No. 2. In the facts and circumstances of the case, the petition is taken up for final disposal today. SCA/1345320/2008 2/6 JUDGMENT 2. This petition is filed by Megal Dudh Utpadak Sahakari Mandali, a co-operative society (hereinafter referred to as "the petitioner - society") and Hirabhai Jesangbhai Khasor, who was nominated by the co-operative society as its delegate to participate in the elections to the members of the Executive Committee of Banaskantha District Co-operative Mills Producers' Union Ltd.. 3. Earlier the petitioner - society had sent to the Election Officer a copy of its resolution dated 18.5.2008 by which respondent No. 2 - Meghrajbhai Devjibhai Karen was nominated as a delegate to participate in the elections to the members of the Executive Committee of Banaskantha District Co-operative Mills Producers' Union Ltd.. On the basis of the said resolution, the Election Officer & Deputy Collector included the name of respondent No. 2 in the provisional list of voters for the concerned constituency which list was published on 3.10.2008. Objections were also invited against the said provisional voters' list. The Chairman of the petitioner - society thereupon submitted objections and contended that by resolution No. 4 dated 8.10.2008, the petitioner - society had cancelled the membership of respondent No. 2 and had nominated petitioner No. 1 - Hirabhai Jesangbhai Kashor as the delegate of the petitioner - society for participating in the above elections. The Election Officer considered the said objections, but ultimately did not accept the same and by impugned order dated 21.10.2008 at Annexure "F" to the petition decided to continue the name of respondent No. 2 in the list of voters. 4. In the petition which was originally filed by Hirabhai Jesangbhai Khasor, the Megal Dudh Utpadak Sahakari Mandali applied for being transposed as petitioner No. 2 which application has been granted by a separate order passed today. 5. Mr SP Majmudar, learned counsel for the petitioners has submitted that the petitioner - society has right to nominate its SCA/1345320/2008 3/6 JUDGMENT delegate for participating in the election process and that though initially by resolution dated 18.5.2008, respondent No. 2 was nominated as a delegate by the petitioner - society, subsequently by resolution dated 8.10.2008, petitioner No. 1 has been nominated as a delegate in place of respondent No. 2. It is also submitted that in view of the provisions of Rule 5(2) of the Gujarat Specified Co- operative Societies Elections to Committees Rules, 1982 (hereinafter referred to as "the Election Rules"), the petitioner - society has the right to change its nominee six days prior to the date of filing nomination forms. 12th November, 2008 was the date for filing nomination forms. Therefore, it was open to the petitioner - society to change its nominee till 6.11.2008. As a matter of fact, it was as far back as on 10.10.2008 that the petitioner - society had delivered the letter dated 8.10.2008 informing the Election Officer about the resolution passed on 8.10.2008 nominating petitioner No. 1 in place of respondent No. 2 as a delegate of the petitioner - society. Mr Majmudar relies on our decision dated 13.11.2008 in Special Civil Application No. 13408 of 2008. 6. On the other hand, Mr Naresh Chaudhary for respondent No. 2 submits that the decision of the petitioner - society cancelling his membership was not in accordance with law and, therefore, the Election Officer has rightly refused to accept the objections of the petitioners. Mr Chaudhary also relies on the decision of the Full Bench of this Court in Daheda Group Seva Sahakari Mandli Ltd. vs. R.D. Rohit, 2006 (1) GCD 211 (Guj.) (FB) in support of his contention that the writ petition is not maintainable challenging the decision of the Election Authority including or excluding a name in the voters' list. 7. The learned AGP states, under instructions of Mr PM Patel, Deputy Mamlatdar, who is present before the Court, that the final voters' list is already published on 1.11.2008 and submits that, therefore, no interference of this Court is called for at this stage SCA/1345320/2008 4/6 JUDGMENT with the election process. 8. Rule 5(2) of the Election Rules reads as under :- “5. Particulars to be included in provisional list of voters : [1] The provisional list of voters, in the case of individual share holders, shall contain the name, father's / husband's name, surname (if any) of every person entitled to be registered as a voter, with such other particulars as may be necessary to identify him. [2] Where a society is a member of a specified society, the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of the affiliated society, so as to reach it within ten days next after the date of drawing up the accounts. While communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society or its committee under which the delegate is so authorised. The specified society shall include in the list of voters the names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. In addition to the names of the delegates, the list shall contain the names of the affiliated societies, their registration numbers and addresses and the names of constituencies, if any, to which they belong. A society which has communicated the name of its delegate shall by like resolution be permitted to change the name of its delegates upto the sixth day before the date appointed by the Collector under Rule 16 of said Rules for making nominations.” (emphasis supplied) There is no dispute about the fact that the date appointed by the Collector under Rule 16 for making nominations was 12th November, 2008. Hence, it was open to the petitioner - society to change the name of its delegate upto 6th November, 2008. Admittedly, the petitioner society had submitted before the Election Officer in writing on 10th October, 2008 that by resolution dated 8th October, 2008, the Managing Committee of the petitioner - society had nominated petitioner No. 1 as its delegate and that the name of respondent No. 2 be deleted from the provisional list of voters and that the name of petitioner No. 1 be included in the list of voters. In view of the aforesaid provisions of the Election Rules, the SCA/1345320/2008 5/6 JUDGMENT right of the co-operative society to communicate the name of its delegates and to change the name of its delegates within the specified time limit cannot be defeated by the Election Authority or by the person who was initially nominated as the delegate of the petitioner - society. For whatever reason, the petitioner - society decided to change the name of its delegate, the Election Authority had no power to sit in judgment over any such decision or resolution of the society. The name of respondent No. 2 was initially communicated by the petitioner - society to the Election Officer as the delegate of the petitioner - society. As the petitioner - society decided to change the name of its delegate within the statutorily permissible time limit, the Election Officer had no authority to go into the dispute being raised against the second nomination. The question whether cancellation of membership of respondent No. 2 was in accordance with law or not may be the subject matter of another proceeding, but that issue cannot be decided by the Election Officer who is only required to prepare the voters' list in accordance with the provisions of the Election Rules, 1982. In view of the clear language of sub-rule (2) of Rule 5 which also came to be considered by the Apex Court in Pundlik vs. State of Maharashtra, (2005) 7 SCC 181 (paras 12, 13, 17 and 19) dealing with an identical controversy, we have no hesitation in allowing this petition. 9. We make it clear that this order shall not come in the way of respondent No. 2, in case respondent No. 2 challenges in any other proceeding the resolution of the petitioner - society cancelling his membership. We express no opinion on the merits of any such controversy. 10. In the result, the petition is allowed. The impugned order dated 21.10.2008 at Annexure "F" to the petition is quashed and set aside. Respondent No. 1 - Election Officer & Deputy Collector, District Banaskantha at Palanpur is directed to include the name of SCA/1345320/2008 6/6 JUDGMENT petitioner No. 1 - Hirabhai Jesangbhai Khasor (instead of respondent No. 2 - Meghrajbhai Devjibhai Karen) as the delegate of petitioner No. 2 - Megal Dudh Utpadak Sahakari Mandali, in the final list of voters of the concerned constituency for the ensuing elections of members of the Executive Committee of Banaskantha District Co-operative Mills Producers' Union Ltd. Rule is made absolute. Direct Service is permitted today. [M.S. SHAH, J.] [HARSHA DEVANI, J.] sundar/-