Back
Gujarat High Court
Judgename :K.M.MEHTA
NATWARLAL PITAMBARDAR PATEL - Appellant
Versus
A.B.TRIVEDI - Respondent
S.C.A. 15345 of 2004
Decided On : 03/17/2005
Election to the post of chairman - Nomination - Rejection - Ground of - Sustainability - Finding of.
Head Note :
Gujarat Co-operative Act, 1961 - Sections 32, 74C, 80, 110(h), 145 and 148 - Bye Laws 32, 32(1), 32(7), 33, 33(1) and 34(3) - Gujarat Co-operative Societies Rules, 1965 - Rule 78 - Gujarat Specified Cooperative Societies Election to Committees Rules, 1982 - Rules 9, 10, 13, 15 to 17 19, 23 and 31 - [Indian] Penal Code, 1860 (Central Act 45 of 1860) - Sections 406, 420 and 114 - Constitution of India, 1950 - Articles 233, 234 and 235 - Election to the post of Chairman - Nomination - Rejection - Ground of - Sustainability - Finding of - Considering the provisions of Rules and Act the agenda issued by bank which provides that election of the president and vice president only among the elected members of the committee to be held not valid - It over looks the fact that petitioner is nominated member of the Apex Bank and, therefore, he can also be considered to be elected member - So far notice with regard due of Visnagar Nagrik Sahakari Bank Ltd. is concerned petitioner has not stood as guarantor and on the contrary an inquiry had been held under Section 86 of the Act and petitioner has been exonerated - Petitioner does have the alternative remedy if the order of authority is found to have been passed on extraneous ground - Apprehension of petitioner that appeal to State Government would be illusory is not unjustified - That apart bank has filed the affidavit wherein it has been averred that petitioner can participate and contest election of Chairman and Vice Chairman of the bank since he has been nominated on the Board of Directors of the Bank by Gujarat State Co-operative Bank Ltd. - The presiding officer of the meeting to be held for election of Chairman and Vice Chairman of the bank is to simply conduct the election and nothing more than that - He cannot deny the right of the petitioner to contest the election - However, Court cannot grant the mandatory relief because selection of Chairman is in the hands of member of the society to convene meeting and decide - Petition is also accordingly and to the extent indicated.
Held :
In view of the aforesaid provisions of the rule and Act, the agenda issued by the bank which provides that only election of the President among elected members of the committee and also election of Vice President among elected members of the committee is not correct. The agenda overlooked the fact that the petitioner is nominated member of the Apex Bank and, therefore, he can also be considered to be elected member. The fact that the authority has not considered him as elected member in bad in law. [Para 7.4]
It was further held that regarding the dues of Visnagar Nagarik Sahakari Bank Ltd., the petitioner states that the petitioner has not stood as guarantor and on the contrary an inquiry had been held under Section 86 of the Act and the petitioner has been exonerated. [Para 7.5]
The Bank has filed the affidavit of Shri Ambalal S. Patel, Manager of the Bank, dated 29.12.2004. He has averred in the affidavit that, as per byelaw No.32 (1)(A), the petitioner can participate and contest the election of Chairman and Vice Chairman of the Bank, since he has been nominated on the Board of Directors of the Bank by the Gujarat State Cooperative Bank Limited. The constitution of the Board of Directors, as per the byelaws, provides for nomination of State Cooperative Bank as one of its members. The Board of Nominees Court passed an order under which the petitioner was entitled to participate at the election of Chairman and Vice-Chairman of the Bank. The Presiding Officer of the meeting to be held for the election of Chairman and Vice Chairman of the Bank is not an elected member of the Board of Directors and, as per Section 145Z, the duty of the person on the chair under Section 145Z is to simply conduct the election and nothing more than that. He cannot deny the right of the petitioner to contest the election on any ground whatsoever since it is for the meeting either to elect or not to elect the petitioner as Chairman if he contests for one of the posts. [Para 7.9]
Court can exercise writ jurisdiction in the present case. It cannot be said that the petitioner has an alternative efficacious remedy, because, in the present case, the authority has acted contrary to the provisions of the byelaws and the mandate given under Section 145Z of the Act. Section 145Z is very clear and does not confer any power, authority or jurisdiction on the Collector or his nominee to give any decision on the qualification and/or entitlement of one of the members of the Board of Directors, who comes forward to contest the election of Chairman and Vice Chairman of the Bank. Thus, he cannot debar a contestant from contesting the election of Chairman and Vice Chairman of the Bank, since he is a member of the Board of Directors as per the byelaws of the bank. The mandate under Section 145Z is to hold the election as per the provisions of the Rules for holding election of the Board of Directors cannot be relied upon in the present case. The order and decision taken by the Respondent No.1 is required to be quashed and set aside. [Para 7.10]
Law Laid Down :
Where authority has acted contrary to the provisions of bye laws and mandate given in Section 145 of the Act, it cannot be pleaded that petitioner has an alternative remedy.
Case Law Analysis :
Rasiklal vs. Kailasgauri, 1971 (12) GLR 355 [Para 3.1];; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. vs. State of Maharashtra & Ors., 2001 (8) SCC 509 [Para 6.2];; Manda Jaganath vs. K.S. Rathnam, AIR 2004 SC 3600 [Para 6.4];; Bhikhabhai Keshavlal Patel vs. Election Officer, District Central Co-operative Bank Ltd., Mehsana & Ors., 2002(1) GLR 552 [Para 7.6];; Surendrasinhaji Jorawarasinhaji Jhala vs. Chief Election Officer, AIR 1969 Guj. 292 [Para 7.6];; Kanjibhai Babaldas Patel vs. Election Officer of A.P.M.C., Visnagar, 2001(1) GLR 259 [Para 7.6];; Election Commission Of India vs. Ashok Kumar & Ors., 2000 (8) SCC 216 [Para 7.7];; Chimanbhai P. Trivedi vs. B.R. Katara, 37(1) GLR 512 [Para 7.8];; Deoraj vs. State of Maharashtra, AIR 2004 SC 1975 [Para 7.8A].- Relied on
Conclusion :
The order passed by Respondent No. 1 dated 25.11.2004 rejecting the nomination paper of the petitioner is not sustainable - Same is quashed and set aside.
Decided in Favour of :
Petitioner
Petition Allowed
( 1 ) NATWARLAL Pitambardas Patel, petitioner, has filed this petition with a prayer that this Court may issue a writ of mandamus or any other appropriate writ, order, or direction quashing and setting aside the order passed by respondent No. 1 dated 25. 11. 2004, rejecting the nomination paper of the petitioner as per the proceedings at Annexure-A to the petition and direct respondent No. 1 i. e. Election Officer and Deputy collector to declare the petitioner as elected Chairman of respondent No. 2 bank i. e. Mehsana District Central co-operative Bank Ltd. , Mehsana. 1. 1 the petition was filed on 29. 11. 2004. This Court (Coram: Jayant Patel, J) issued notice on 2. 12. 2004. Pursuant to the said notice on behalf of respondent No. 1 Mr. A. D. Oza, learned Government Pleader appears. Mr. S. K. Jhaveri, learned sr. advocate, appears on behalf of respondent No. 2 and Mr. P. K. Jani, learned advocate, appears on behalf of respondent No. 3 i. e. Shri Nitinbhai Ratilal Patel. On the joint request of the learned counsel for the parties, I have taken up the matter for hearing. Hence Rule. The learned counsel for the respondents waive service of Rule.
( 2 ) THE facts giving rise to the petition are as under:2. 1 the petitioner is a leading cooperative worker. The petitioner is connected with many other cooperative societies right from the village level to national level. It is the case of the petitioner that a criminal complaint had been filed in Visnagar Police Station by the Visnagar Nagrik Sahakari Bank Ltd. against one shakalchand Castor Complex Co-operative Society. The petitioner was the director of the said society. So the petitioner had also been shown as an accused. After thorough investigation the police submitted the charge-sheet and made the report to the learned Judicial magistrate First Class, Visnagar that the petitioner is not directly involved either in conspiracy or in any other offences but as the petitioner was directed and had not prevented other directors in mismanaging the affairs of the society, hence the petitioner has also been prosecuted for the offences punishable under Sections 406, 420, and 114 of the I. P. C. 2. 2 it is the case of the petitioner that (Nitinbhai ratilal Patel), respondent No. 3 sent an application on 12. 10. 2004 to the Election Officer and Deputy Collector, mehsana District, (respondent No. 1) informing him to get the petitioner arrested at the time of filing of nomination paper by the petitioner, failing which, respondent No. 1 shall be held responsible. 2. 3 it is the case of the petitioner that respondent no. 1 has rejected the nomination paper of the petitioner on the ground that the petitioner has been served with the notice under Section 110 (h) of the Act by the liquidator of the Visnagar Nagrik Sahakari Bank Ltd. While in fact, the notice has been issued to the society and guarantors and copy of the same has been forwarded to the petitioner as a director but, till today, the liquidator has not determined any amount against anyone. 2. 4 being aggrieved and dissatisfied with the said action, the petitioner approached this Court by filing special Civil Application being Special Civil Application no. 14146 of 2004 challenging the rejection of nomination paper. This Court (Coram: M. R. Shah, J) rejected the Special Civil Application on 26. 10. 2004 on the ground that the petitioner has alternative efficacious remedy provided under law by way of filing election Petition under Section 145u of the Act which provides disputes relating to elections to be submitted to the Tribunal. 2. 5 it is the case of the petitioner that the petitioner has also been nominated as director in respondent No. 2 bank by the Gujarat State Co-operative bank Ltd. and under the provisions of bye-law 32 read with bye-law 33, the petitioner is entitled to vote and contest the election for the post of Chairman and Vice chairman of respondent No. 2 bank. 2. 6 it is the case of the petitioner that res
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
