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2009 DIGILAW 526 (GUJ)

Vankanerda Dudh Utpadak Sahakari Mandali Ltd. v. Election Officer & Deputy Collector

2009-07-31

K.M.THAKER, M.S.SHAH

body2009
Judgment Mohit S. Shah, J.—Rule. Mrs. V.S. Pathak, learned AGP for Respondent No. 1 and Mr BS Patel for Respondent No. 2 waive service of rule. 2. In this petition under Article 226 of the Constitution, the petitioner Co-operative Society has challenged the order dated 23.7.2009 (Annexure H) passed by the Prant Officer, Gandhinagar who is also the Election Officer for elections to the Board of Directors of Gandhinagar District Co-operative Milk Producers Union Ltd.- Respondent No. 2 herein. In the said communication, the Election Officer held that the application made by the petitioner society nominating Pravinsinh Shakaraji Thakore as its delegate could not be accepted because the same was made after publication of the final voters’ list on 25.6.2009 and after declaration of the election program on 20.7.2009. 3. Mr. Prakash K Jani, learned Counsel for the petitioner pointed out at the preliminary hearing on 28.7.2009 that earlier the petitioner society had sent the name of Prahaladji Pratapji Thakore as its delegate but unfortunately, the said Prahaladji Pratapji Thakore expired on 12.7.2009 and on 21/23.7.2009, the petitioner society had sent the name of Pravinsinh Shakaraji Thakore as its delegate. It was also submitted that since Rule 5 of the Gujarat Specified Co-operative Societies (Elections to Committees) Rules, 1982 (hereinafter referred to as “the Election Rules”) permit change of the delegate six days prior to the date of filing nomination forms, in the facts of the present case, 30.7.2009 being the last date for filing the nomination, the respondents were bound to permit the petitioner society to change its delegate upto 24.7.2009 and therefore, the Election Officer had erred in passing the impugned order. Reliance was also placed on the decision of the Apex Court in Pundalik vs. State of Maharashtra, 2005 (7) SCC 181 dealing with a case involving almost identical rule. The Apex Court observed therein as under :— “17. In our opinion, the learned Counsel for the appellant is also right in submitting that if the order passed by Respondent 2 is upheld, the provisions of Sub-rule (2) of Rule 5 will become nugatory and otiose. When the rule-making authority conferred power on the Sangh to change the name of its representative/delegate by expressly permitting the change of representative/delegate and intimating the said fact to the Collector, such right cannot be taken away or interfered with. When the rule-making authority conferred power on the Sangh to change the name of its representative/delegate by expressly permitting the change of representative/delegate and intimating the said fact to the Collector, such right cannot be taken away or interfered with. Since the last date as per the communication of Respondent 2 the Collector was 10.6.2005, the action of the respondent Sangh was within the four corners of Rule 5(2). The High Court was, therefore, in error in not allowing the petition and granting relief to the appellant.” 4. In view of the above submissions and in view of the decision of the Apex Court in Pundalik vs. State of Maharashtra, 2005 (7) SCC 181 , we had granted ex-parte ad-interim relief staying the operation of the impugned order of the Election Officer and we had also directed the Election Officer to include the name of Pravinsinh Shakaraji Thakore in place of Prahaladji Pratapji Thakore. 5. On the returnable date i.e. yesterday, while the Election Officer reiterated his stand, Mr. B.S. Patel, learned Counsel for Respondent No. 2 Union opposed the petition and the grant of any interim relief on the ground that, as pointed out in the affidavit in reply dated 31.7.2009 of the Managing Director of Gandhinagar Dairy, Pravinsinh Shakaraji Thakore is not at all eligible even to be a member of the petitioner society as he is resident of Village Pundrasan, which is at the distance of 30 kms. from Village Vankanerda, where the petitioner society is situate and as per the bye-laws of the petitioner society only a person residing in village Vankanerda can become a member of the petitioner society. It was also contended that as per the last audit report of the petitioner society, Pravinsinh Shakaraji Thakore was not a member of the petitioner society on 31.3.2009. Hence, even the factum of membership of Pravinsinh Shakaraji Thakore in the petitioner society prior to 31.3.2009 cannot be accepted. It is submitted that in view of the above, Pravinsinh Shakaraji Thakore cannot be permitted to be accepted as a delegate of the petitioner society for elections to the Board of Directors of the federal union of Milk Producing Co-operative Societies in Gandhinagar District. 6. It is submitted that in view of the above, Pravinsinh Shakaraji Thakore cannot be permitted to be accepted as a delegate of the petitioner society for elections to the Board of Directors of the federal union of Milk Producing Co-operative Societies in Gandhinagar District. 6. In view of the above affidavit which was filed only yesterday, Mr Jani for the petitioner had sought time to seek instructions in the matter as such an objection was never raised by the Election Officer or any other person. 7. Today, affidavit in rejoinder is filed by Pravinsinh Shakaraji Thakore to controvert the allegations made in the reply affidavit on behalf of Respondent No. 2. We are, however, not inclined to go into the disputed question about the eligibility of Pravinsinh Shakaraji Thakore to become a member of the petitioner society and therefore, about his eligibility to become Chairman of the petitioner society. However, there is no dispute about the fact that the petitioner society i.e. Vankanerda Dudh Utpadak Sahakari Mandli Limited is a co-operative society of members engaged in the business of producing milk and therefore, if Pravinsinh Shakaraji Thakore is not permitted to be nominated as a delegate of the petitioner society, the petitioner society would lose its right of representation and would lose its right to participate in the elections to the Board of Directors of the federal co-operative society. 8. In view of this extraordinary circumstance, where the Election Officer had not raised any objection about the eligibility of Pravinsinh Shakaraji Thakore, there is no other alternative but to invoke the decision of the Apex Court in Election Commission of India vs. Ashok Kumar, (2000) 8 SCC 216 , where the Apex Court has held that :— “28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.” Subject to the above basic perspective, the Apex Court has also held that any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. While the Apex Court has held that Writ Court should not interrupt, retard, obstruct or delay the election process, the Court is not without the power of judicial review where the assistance of the Court has been sought to correct or smoothen the progress of the election proceedings and to remove the obstacles therein. 9. In Vishnubhai K. Thaker vs. Upadhyay, District Registrar Sidhpur, 1996(2) GLR 288 , this Court observed as under :— “14. In view of the above discussion, it is clear that the rejection of nomination of the petitioner was patently illegal and since the mistake can be rectified at this stage without arresting the election process and without in any manner postponing the date of election which is scheduled to be held on 12th March 1996, the petition is entertained on merits, as even by allowing the petition, the Court does not arrest the election process nor does the Court postpone the holding of the elections. The petition, therefore, deserves to be allowed.” 10. Keeping the aforesaid principles in mind and since the Election Officer himself had not raised any objection about the eligibility of Pravinsinh Shakaraji Thakore and the said objection has been raised only now, we direct the Election Officer to permit the petitioner society to nominate another delegate by this evening, since 1.8.2009 is the date of scrutiny. Mr. Jani for the petitioner states that the petitioner society is nominating its Vice Chairman, Dharmendrasinh Badarji Thakore to participate in the election of Board of Directors of Gandhinagar dairy. Mr. Mr. Jani for the petitioner states that the petitioner society is nominating its Vice Chairman, Dharmendrasinh Badarji Thakore to participate in the election of Board of Directors of Gandhinagar dairy. Mr. B.S. Patel for Respondent No. 2 - Gandhinagar Jilla Sahakari Dudh Utpadak Sangh Limited has no objection to such a direction being given for the above-named member of the petitioner society. 11. Accordingly, this petition is allowed. The Election Officer, Respondent No. 1 herein shall permit Dharmendrasinh Badarji Thakore to file his nomination forms today till 6:00 p.m. and the Election Officer shall thereafter proceed to make scrutiny of nomination forms on 1.8.2009 as per the election program already declared earlier. 12. Rule is made absolute in the above terms. This judgment is dictated and pronounced in the presence of the learned AGP and the representative of the Election Officer. Direct service is also permitted today.