JUDGMENT K.M.THAKER 1. Heard the learned advocates. 2. With the consent of the learned advocates, the matter is heard and decided by this order. 3. The petitioner, a Co-operative Society registered under the Co-operative Societies Act, 1961 (hereinafter referred to as the Act) has, on the ground that the respondent no. 2-Election Officer has acted contrary to the provisions of Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 (hereinafter referred to as the 1982 Rules), challenged the order dated 16th July 2009 whereby its name has not been included in the voters list prepared for the ensuing election of the Board of Directors (hereinafter referred to as the election) of the respondent no. 4- Rajkot District Co-operative Bank Limited(hereinafter referred to as respondent No.4 Bank). 3.1 The said order dated 16th July 2009 has been challenged also on the ground that the final voters' list has been published without inviting and considering the objections under Rule 4 & Rule 5 of 1982 Rules and by disregarding the fact that the stay order granted earlier by the Board of Nominees, in the application preferred by respondent No.5, has been vacated. 4. The petitioners, however, claim that neither the list of voters has been prepared and published in accordance with Rules 4 to 7 of 1982 Rules nor cognizance of the order vacating earlier stay order has been taken in the order dated 16.07.2009 or in the list of voters which is declared to be the final list. 5. The factual matrix is as follows :- 5.1 The respondent no. 4 Bank is a specified society within the meaning of Section 74(c) of the Act and the petitioner is a member of respondent no. 4 Bank. The elections are due. Hence, the respondent no. 2 has been appointed as Election Officer to conduct the election. As per the provisions of the Act the election of the respondent no. 4-Bank is required to be held in accordance with the provisions contained in Chapter XI A of the Act. 5.2 By his letter dated 6th February 2009, the General Manager of the respondent No.4 Bank had asked the member societies, including the petitioner herein, to submit their respective resolutions on the basis of the situation prevailing as on 31st March 2009. The said instruction was objected to on the ground that the position prevailing as on 31.03.2009 should be the cut-off date. The said instruction was objected to on the ground that the position prevailing as on 31.03.2009 should be the cut-off date. Subsequently under Notice dated 25.05.2009 a list of voters was published by the office of respondent No.2 the Election Officer. Against the said list various objections were raised. 5.3 After hearing the objections, the Election Officer, passed order dated 5th June 2009 wherein the Election Officer made reference of the letter dated 03.06.2009 of the Joint Registrar instructing the respondent No.4 Bank to prepare the list of voters on the basis of the position obtaining on 31.03.2009. The Election Officer, citing the said letter dated 03.06.2009 of the Joint Registrar in his order dated 05.06.2009, directed the respondent No.4 Bank to do the needful as per the said letter dated 03.06.2009 and to also give effect to the decisions recorded in his order dated 05.06.2009. At this stage a writ petition being Special Civil Application No. 7260 of 2009 challenging the decision dated 23rd June 2009 was filed. The petition was subsequently withdrawn. 5.4 Subsequently, under the notice dated 6th June 2009 the Election Officer published list of voters declaring it to be the provisional list on 06.06.2009 and invited objections, if any, with regard to the said list. 5.5 It appears that after the above referred notice dated 6th June 2009 certain objections were raised claiming, inter alia, that the said voters list again did not reflect the factual position prevailing as on 31.01.2009 and several fictitious names were appearing in the said list. The claims and objections were heard by the competent authority on 18.06.2009. 5.6 So far as the petitioner society is concerned, it has claimed that it had resolved that Mr. Lalitbhai J. Vasoya would represent the petitioner society and the said resolution was forwarded to the respondent No.4 Bank. However, the respondent no. 5 herein had raised objection, vide his letter dated 12.06.2009, against the nomination of the said Mr. Vasoya as petitioner society's representative and he had also approached the Board of Nominees against the said resolution. 5.7 It appears that initially the said resolution was stayed by the Board of Nominees. However, it is claimed by the petitioner that by the order dated 24th June 2009 the Board of Nominees vacated the stay order. The decision of the Board of Nominees was challenged by the respondent no. 5.7 It appears that initially the said resolution was stayed by the Board of Nominees. However, it is claimed by the petitioner that by the order dated 24th June 2009 the Board of Nominees vacated the stay order. The decision of the Board of Nominees was challenged by the respondent no. 5 before the Tribunal, however, the resolution nominating Mr. Vasoya as the petitioner societies' representative was not disturbed or stayed. The petitioner has claimed that the order dated 24th June 2009 made by the Board of Nominees and the order dated 26th June 2009 made by the Tribunal were served on the respondent No.4-Bank. 5.8 On the other hand, after considering the objections on 18.06.2009, the respondent no. 2 passed an order dated 23rd June 2009 directing publication of provisional list of voters after giving effect to the decisions recorded in the aforesaid order dated 23.06.2009. 5.9 In pursuance of the Election Officer's aforesaid order dated 23.06.2009, the General Manager of the respondent no. 4-Bank, vide his letter dated 24.06.2009 invited resolutions from the member societies on the basis of the position as on 31st March 2009 so as to reach the respondent no. 4- Bank on or before 4th July 2009. 5.10 The petitioner society has claimed that pursuant to the said communication dated 24.6.2009 sent by the respondent No. 4- Bank, about 807 societies submitted, before or on 4-7-2009, fresh resolutions on the basis of the position prevailing in the respective societies as on 31st March 2009. 5.11 It is also stated that the respondent No. 4-Bank, after receipt of the resolutions from almost 807 societies, forwarded a list, under its covering letter dated 4-7-2009, to the election officer. It is also alleged that by the impugned order dated 16.07.2009 the Election Officer has, without inviting the objections with regard to the voters list prepared pursuant to the order dated 23rd June 2009, declared that the list forwarded by the respondent No.4 bank on 04.07.2009 shall be the final list of voters under Rule 7, which is contrary to 1982 Rules. It is claimed that the list of voters prepared by the respondent No.4 Bank has to be treated as provisional list and objections, as contemplated under Rule 6, must be invited before publishing final list of voters. 6. It is claimed that the list of voters prepared by the respondent No.4 Bank has to be treated as provisional list and objections, as contemplated under Rule 6, must be invited before publishing final list of voters. 6. According to the petitioner-society after the receipt of fresh resolutions on 4th July 2009, a provisional list of voters as per Rule 4 & Rule 5 of 1982 Rules must be published and objections must be invited and the final list of voters contemplated in Rule 7 can be published only after considering and after ironing-out the objections. However, the respondent-Bank forwarded the list (prepared on the basis of resolutions received, pursuant to the communication dated 24.6.2009 between 24.6.2009 and 4.7.2009) to the Election Officer on 4.7.2009 branding it as final list of voters and in view of said communication dated 4.7.2009, the Election Officer has, arbitrarily and without application of mind passed impugned order dated 16.07.2009 publishing, under Rule 7 of 1982 Rules, the list forwarded by the respondent No. 4-Bank on 4.7.2009, as the final list of voters. 6.1 The petitioner has also raised challenge against the action of the respondent No.2 in not including name of its representative and consequently wrongly deleting its name from the voters list. 7. The petition is opposed by respondent no. 4 Bank who has filed the reply affidavit claiming, inter alia, that the petitioner society had not submitted any objections pursuant to the publication of the voters list by the Election Officer on 6th June 2009. It is also claimed that by the letter dated 6th February 2009 the Bank had called the petitioner society to send the resolution, however petitioner had not sent any resolution. It is also claimed that out of 11 members of petitioner's Managing Committee, 5 members had tendered resignations and in February 2009 another 5 members had tendered resignations. Subsequently 5 members withdrew their resignations and have continued as members. 7.1 The respondent no. 4 Bank has also made reference of the order passed by the Board of Nominees. On the basis of the allegations by respondent no. 5, the respondent no. 4 Bank has stated in its affidavit that though the petitioner society claims to have passed resolution in its meeting held on 30th June 2009 nominating Mr. 7.1 The respondent no. 4 Bank has also made reference of the order passed by the Board of Nominees. On the basis of the allegations by respondent no. 5, the respondent no. 4 Bank has stated in its affidavit that though the petitioner society claims to have passed resolution in its meeting held on 30th June 2009 nominating Mr. Vasoya as its representative actually no meeting in accordance with the prescribed procedure was held on 30th June 2009 and the resolution purportedly passed on 30th June 2009 is bogus and fabricated. 8. The respondent no. 2-Election Officer has also placed his affidavit on record of this petition wherein it has been, inter-alia, stated that provisional list of voters was published and objections were also invited and after hearing the objections the decision dated 23rd June 2009 was taken, thus the list forwarded by respondent No.4 Bank on 04.07.2009 is final list and there is no illegality in order dated 16.07.2009. 9. As per Rule 4 of 1982 Rules, a provisional list of voters has to be prepared by every society for the year in which general election is to be held and in such list only those members can be included who stands as a member on the date when accounts of the previous year are drawn. A list of members disqualified to vote is also to be prepared. According to the Rule 5(2) in case where a society is a member of the specified society (as in present case) the specified society (respondent No.4 in present case) must call for the names of delegates of affiliated/member society (i.e. who is duly authorized by affiliated/member society's resolution to vote on its behalf) and the affiliated/member society has to forward the name of its delegate/representative within 10 days after the accounts are drawn. Rule 6 of 1982 Rules, provides that after the publication of provisional list of voters, objections have to be invited in respect of any omission or error in the names or addresses or other particulars and under Sub-rule (4) of said Rule 6, the competent authority is required to take decision in respect of the claims or objections by voter or delegate authorized to vote. The voters list which would be prepared after the claims or objections are decided by the competent authority, after giving effect to the decision(s) regarding objections so as to correct the provisional list wherever necessary, shall be the final list of voters. Then under Rule 7, such list shall be published as final list of voters. Thus, before treating any list of voters as final and publishing it as such under Rule 7, the process of deciding claims or objections and correction of voters list has to be undertaken. 10. In present case, so far as the petitioner's submission regarding deletion of its name and/or the decision to exclude the name of petitioner's delegate/representative Mr. Vasoya is concerned, it is pertinent that there is no denial of the fact that the petitioner society had forwarded its resolution nominating Mr. Vasoya as its delegate/representative. After the resolution nominating Mr. Vasoya as the delegate/representative (to vote on behalf of petitioner society) was passed, the respondent No.5 initiated the proceedings before the Board of Nominees and on that premise (i.e. on the basis that proceedings are pending before Board of Nominees) filed objection, vide his letter dated 12.06.2009, against the voters list. However by order dated 24th June 2009 the stay order, which was initially granted by the Board of Nominees against the resolution (nominating Mr.Vasoya), was vacated. The petitioner claims that the said fact was conveyed to the respondent No.2 and the respondent No.4. This is the junction where the ways part and dispute arise. Though the respondent No.4 has not expressly denied said assertion of the petitioner, the respondent No.2 has, however, stated in his affidavit that :- ....last final voting list was published on 16-07-2009 but petitioner has not informed the order of the board of nominees and co-operative tribunal before the publication of final voters list on 04-07-2009 letter of bank final voters list was sent to district register. 11. Obviously, the order dated 24.06.2009 by the Board of Nominees would relate back to the date of the resolution more particularly because either after the initiation of proceedings against the resolution and/or after the initial stay order against the resolution the society did not change the name of its delegate and continued with its original nomination. 12. 11. Obviously, the order dated 24.06.2009 by the Board of Nominees would relate back to the date of the resolution more particularly because either after the initiation of proceedings against the resolution and/or after the initial stay order against the resolution the society did not change the name of its delegate and continued with its original nomination. 12. However, in view of the denial by the respondent No.4 stating to the effect that the petitioner had not given any intimation about the learned Tribunal's subsequent order vacating the initial stay order, the order dated 23.06.2009 passed by the Election Officer and the subsequent letter dated 24.06.2009 addressed by the General Manager of the respondent No.4 Bank (in pursuance of the aforesaid order dated 23.06.2009 by the Election Officer) becomes crucial and acquires relevance. It deserves to be recalled that by letter dated 24.6.2009 the General Manager of the respondent No.4 Bank expressly intimated all member societies that each one of them must again offer resolutions on the basis of the position prevailing as on 31.03.2009 and that such fresh resolutions must reach the respondent No.4 Bank before or on 04.07.2009. Be it noted that in its affidavit the respondent No.4 Bank itself has admitted that after the said communication dated 24.06.2009 by its General Manager, the petitioner had passed a resolution in its meeting held on 30.06.2009 and the Chairman of the petitioner society had forwarded the resolution (passed in the meeting held on 30.06.2009) to the respondent No.4 Bank under his letter dated 01.07.2009 which was received by the respondent No.4 Bank on 03.07.2009. Thus, it emerges from the affidavit of respondent No.4 Bank that pursuant to its letter dated 24.06.2009, the petitioner had passed fresh resolution (in compliance with the instructions of respondent No.4 Bank) in the meeting on 30.06.2009 and forwarded the said resolution to respondent No.4 Bank which was received by it on 03.07.2009 i.e. before the 04.07.2009, which was specified date by which the resolutions were to reach the respondent No.4 Bank. It is another matter as to whether the resolution passed in the meeting dated 30.06.2009 was properly passed or not and/or whether the meeting of 30.06.2009 was properly convened or held or not. It is another matter as to whether the resolution passed in the meeting dated 30.06.2009 was properly passed or not and/or whether the meeting of 30.06.2009 was properly convened or held or not. So long as any objection, raised in accordance with law, against the resolution passed in the meeting on 30.06.2009 was not submitted to the competent authority, the respondent No.4 Bank had no authority to ignore the fresh resolution forwarded by the petitioner in pursuance of the instructions given by the respondent No.4 Bank vide letter dated 24.06.2009 by its General Manager. Likewise, in absence of any duly raised objection against the resolution passed in the meeting held on 30.06.2009, the Election Officer also had no authority to decide the legality and propriety of the proceedings of the meeting held on 30.06.2009 and/or the resolution passed in the said meeting and/or to decide to not to include the name of the petitioner society and its delegate/representative in the list of voters. It is pertinent that it was the respondent No.4 who, in pursuance of the order dated 23.06.2009 passed by the Election Officer, instructed all the member societies to pass fresh resolutions and to send the resolutions to it before or on 04.07.2009. It is also pertinent that it was in pursuance of such instructions that the petitioner society passed fresh resolutions in its meeting held on 30.06.2009 and forwarded the same to the respondent No.4 Bank. It is equally relevant that according to respondent No.4 Bank's admission, the petitioner had reached the respondent No.4 Bank on 03.07.2009. No less relevant is the fact that there is absence of duly raised objections against the resolution passed in the meeting held on 30.06.2009. In this backdrop of facts, in our view, there is no justification in not acknowledging the petitioner society's resolution passed in the meeting held on 30.06.2009 nominating Mr. Vasoya as its delegate/representative, at least until any objection is raised in accordance with law against the resolution and/or the nomination. 13. Hence, the decision of not including name of Mr. In this backdrop of facts, in our view, there is no justification in not acknowledging the petitioner society's resolution passed in the meeting held on 30.06.2009 nominating Mr. Vasoya as its delegate/representative, at least until any objection is raised in accordance with law against the resolution and/or the nomination. 13. Hence, the decision of not including name of Mr. Vasoya in the list of voters based on the position prevailing as on 31.03.2009, despite the fact that by order dated 24.06.2009 the Board of Nominees had vacated the stay order against the resolution nominating Mr.Vasoya and the Tribunal did not interfere with the final decision of the Board of Nominees, is bad in law and without justification. 14. Now, so far as the contention against treating the list of voters prepared by respondent No.4 bank on 04.07.2009 as the final list is concerned, it needs to be noted that from the order dated 5.6.2009 by the Election Officer it comes out that earlier a list was published, as a provisional list, under Notice dated 25.5.2009 however in view of the dispute regarding the cut-off date, instruction to prepare the list on the basis of the position prevailing on 31.03.2009 was issued. On the other hand it also comes out from order dated 5.6.2009 that the said order contained a reference to an order dated 3.6.2009 passed by Joint Registrar. Besides, the election officer also directed by the said order that the respondent No.4 Bank should forward the list of voters based on position prevailing on 31.03.2009, after giving effect to the direction by Joint Registrar in his letter dated 03.06.2009 directing the respondent No.4 bank to send the provisional list prepared on the basis of the position as on 31.3.2009 and after including the left-out societies. Hence, after the said order dated 05.06.2009 a list of voters was published on 6.6.2009 and objections were invited. 15. Thereafter the competent authority heard the objections on 18th June 2009 with regard to the said provisional list and rendered his decision on 23rd June 2009 whereby certain objections were accepted and some were rejected. 16. On the basis of the order dated 23.06.2009 it is claimed by the petitioner that by his said order dated 23.06.2009 the election officer, directed that the list should be prepared on the basis of position prevailing on 31.03.2009. 17. 16. On the basis of the order dated 23.06.2009 it is claimed by the petitioner that by his said order dated 23.06.2009 the election officer, directed that the list should be prepared on the basis of position prevailing on 31.03.2009. 17. It also comes out that pursuant to the said order dated 23.6.2009 the general manager or respondent No.-4 also, vide his letter dated 24.6.2009 instructed the member societies to send their respective resolutions before or on 04.07.2009. 18. The communication dated 24th June 2009 expressly stated that even those societies who might have earlier forwarded their resolutions shall have to forward fresh resolutions, notwithstanding that there may not be any change in the delegate/representative, on the basis of position prevailing on 31st March 2009 and that such resolutions should have been made after 31st March 2009. 19. In light of the aforesaid facts and events particularly from respondent No.4 Bank's letter dated 24.06.2009 it seems that the respondent No.4-Bank has also proceeded with the same understanding and perception in connection with the Election Officer's order dated 23.06.2009 and that therefore the general manager of respondent No. 4 issued the aforesaid instructions vide his letter dated 24.6.2009 to the member societies. 20. It is pertinent that according to the contents of the respondent No.4 Bank's letter dated 24.06.2009 it was pursuant to the decision dated 23rd June 2009 of the Election Officer, that the respondent No. 4-Bank again called for the resolutions (from its member societies) based on position prevailing as on 31st March 2009 and the respondent No. 4-Bank also emphasized that even if at any earlier point of time such resolutions were forwarded and although there may not be any change in delegate the member societies should, nonetheless, forward resolutions passed after 31st March 2009 based on the position prevailing as on 31st March 2009. 21. It follows, as a corollary, from the said communication dated 24th June 2009, that the respondent No.4 Bank was required to prepare fresh list of voters after the receipt of the resolutions, (in response to its instructions vide General Manager's letter dated 24.06.2009) from the member societies. Accordingly, the respondent No.4 Bank appears to have prepared a list of voters on the basis of the resolutions received by it in pursuance of and after its letter dated 24.06.2009, on 04.07.2009. 22. Accordingly, the respondent No.4 Bank appears to have prepared a list of voters on the basis of the resolutions received by it in pursuance of and after its letter dated 24.06.2009, on 04.07.2009. 22. At this stage, it is necessary to note that from the affidavit of respondent No.4 Bank it emerges that pursuant to its letter dated 24.06.2009, the petitioner society through its Chairman i.e. under Chairman's covering letter dated 01.07.2009 forwarded a resolution passed in the meeting held on 30.06.2009 which was received by the respondent No.4 Bank on 03.07.2009. However, the respondent No.4 bank did not include the name of petitioner society and its delegate in the list prepared on 04.07.2009. 23. In the backdrop of these facts, it becomes clear that the Election Officer's order dated 23.06.2009 and respondent No.4 Bank's instruction vide its letter dated 24.06.2009 are very crucial for appreciating the petitioner's contention. Even if the lists prepared and published earlier i.e. after respondent No.4 bank's letter dated 06.02.2009 and/or on 25.05.2009 are to be ignored, there cannot be, and there is none, any dispute about the fact that the list prepared under the notice dated 06.06.2009 was the provisional list as contemplated under Sub-rule (2) of Rule 5 (or even Rule 4) of 1982 Rules. The claims and objection, as contemplated under Rule 6, were also invited. The competent authority heard (on 18.06.2009) and decided the claims and objections by his order dated 23.06.2009. Under the circumstances, ordinarily the list that may be prepared and published after the order dated 23.06.2009 would be the final list. However, in present case, the text and contents of the order dated 23.06.2009 and the letter dated 24.06.2009 as well as the subsequent events give a case-specific effect. As noted earlier, the respondent No.4 Bank instructed all member societies to send fresh resolutions on the basis of the position prevailing as on 31.03.2009 and cited the order dated 23.06.2009 as the base or source to support its instruction. It also specifically instructed to forward fresh resolutions notwithstanding the resolutions which might have been forwarded earlier and even if there may not be any change in the delegate's name. As many as 807 societies have forwarded fresh resolutions after the said instructions. 24. Hence, the list prepared on the basis of the details/resolutions received by the respondent no. It also specifically instructed to forward fresh resolutions notwithstanding the resolutions which might have been forwarded earlier and even if there may not be any change in the delegate's name. As many as 807 societies have forwarded fresh resolutions after the said instructions. 24. Hence, the list prepared on the basis of the details/resolutions received by the respondent no. 4-Bank after its own instructions vide letter dated 24th June 2009 would be, and in the facts of the case has to be considered as, the provisional list as contemplated under Rule 5(2) of the 1982 Rules. 25. Consequently, it would be obligatory, in view of Rule 6 read with Rule 5 of 1982 Rules, to invite objections in respect of the list prepared after 24th June 2009 i.e. the list prepared and forwarded to the Election Officer by the respondent No.4 on 4th July, 2009. On the basis of the resolutions received from the member societies pursuant to the instructions given vide the communication dated 24th June 2009) 26. Therefore the respondent no. 2 - Election Officer is not justified in declaring the list given by the respondent no. 4-Bank, as final list of voters under and for the purpose of Rule 7 of 1982 Rules. 27. For the aforesaid reasons, the petition is allowed. The impugned order dated 16th July 2009 made by the Election Officer and Deputy Collector, Rajkot is quashed and set-aside. The Election Officer will prepare and publish a preliminary list of voters as on 31st March 2009. The Election Officer will invite objections against such preliminary list of voters. After considering and deciding the objections received, a final list of voters as on 31st March 2009 will be prepared and published in accordance with Rule 7 of 1982 Rules.