Important Point – Election officer would assume power, authority or jurisdiction under Rule 23 only when there is a disqualification.

C.L. SONI, J.

1. With the consent of the learned Advocates appearing for the parties, the matter is taken up for final hearing and disposal. Hence, Rule. Learned A.G.P. Mr. Patel appearing for respondent No.1 and 2 waives service of rule for respondent no.1 and 2. Learned Advocate Mr. Siddharth Dave appearing for respondent No.3 waives service of rule for respondent No.3.

2. The challenge made in this petition filed under Article 226 of the Constitution of India is against the action of respondent No.2 Election Officer of rejecting the nomination papers of the petitioner for the election of the Managing Committee of Mehsana District Coop. Milk Producers’ Union Ltd. (“the Union”). When the petition was moved in the vacation, the order passed by the Election Officer rejecting the nomination papers of the petitioner was not annexed. However, copy of the order was made available on 11.11.2015 and the matter was considered for grant of ad-interim relief.

3. Rejection of the nomination papers of the petitioner is on the ground that the member society which the petitioner represents i.e. Vaghasar Milk Producers’ Cooperative Society Ltd., Taluka Saraswati Saraswati is audited in Class-C in the last audit for the year 2014- 2015 and as per bye-law 48(2)(A)(h) of the bye-law of the Union, Audit Class-C is considered to be the disqualification to be elected as Member of the Board of Directors.

4. As per the case of the petitioner, Voters list was prepared by taking the position of the members as on 31st March, 2014. As per the audit carried out for the year ending on 31st March, 2014, the society of the petitioner was given Audit Class-A & B.

5. It appears that after the Voters list was finalized taking the members’ position as on 31st March, 2014, the Election Program was notified on 22.10.2015 as per which, the nomination papers were to be submitted between 28.10.2015 to 4.11.2015 and the date of scrutiny of the nomination papers was fixed on 6.11.2015.

6. It appears that on 6.11.2015, respondent No.3 raised objection against the nomination papers of the petitioner on the ground that the society of the petitioner was given Audit Class-C and as per byelaw 48(2)(A)(h), the nomination papers of the petitioner were required to be rejected. Such objection has come to be accepted which has culminated into the impugned order.

7. Learned Senior Advocate Mr. Mihir Thakore appearing with learned Advocate Mr. P.S. Champaneri for the petitioner submitted that the Voters List was finalized on 21.10.2015 of the members inducted till 31st March, 2014 based on which, the election program is issued for the election of the Managing Committee of the Union. Mr. Thakore submitted that the last audit to be considered for the purpose of eligibility to contest the election would be relatable to the finalization of the Voters list of the members as on 31.3.2014 and if such interpretation is not given to bye-law 48(2)(A)(h), not only the purpose of finalization of the Voters list shall be frustrated but there will be no end to uncertainty being created for holding the election. Mr. Thakore submitted that bye law No. 48(2)(A)(h) cannot override the provisions of the Act where-under class-C audit of the society is not included as disqualification. Mr. Thakore submitted that bye-law No. 48(2)(A)(h) has been in existence since the inception of the Union and in view of the Amending Provisions of 2015, such bye-laws cannot be now considered so as to take away right of the member already included in the Voters list to contest the election as not falling within the disqualifications provided in the provisions of the Act. Referring to section 27(3) of the Gujarat Cooperative Societies Act, 1961 (“the Act”), Mr. Thakore submitted that by amendment, the legislature has intended that the society having Audit Class A,B and C shall be eligible to exercise right of vote and even right to contest the election. He also referred to section 76B of the Act to point out that the