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2020 Supreme(Guj) 837
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
MAVJIBHAI MAGANBHAI DESAI - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION NO. 11866 of 2020
Decided On : 05-10-2020
For the Appellant : MR VC VAGHELA
For the Respondent: MR DHAWAH JAYWSAL, AGP
Point of Law: once the election process starts, it would not be proper for the courts to interfere with the election process
Headnote:
Constitution of India-Article 226- Election notification – C on-going Executive Committee is exempted from the provision under Section- 74(C)(2)(iv) of the Gujarat Co-operative Societies Act, 1961 and the tenure of such Executive Committee is extended onduct of election
Facts of the case:
Notification issued by the respondent – State for declaring election programme of the Banaskantha District Co-operative Milk Producers Union Ltd. has brought under question. It is the case of the petitioner who is the Chairman of Shree Baivada Dudh Udpadak Sahakari Mandali Limited and elected Member of Managing Committee of Banaskantha District Co-operative Milk Producers Union Ltd. and is also Vice President of the society is challenging the declaration of the election
Finding of the Court:
Court is not inclined to interfere with the on-going election process either on the issue of Section-74(C) (2) read with Section-145(C) or on the count of Notification issued by the State Government in connection with the Covid-19 pandemic situation- considering the provision of Rule-16 of the Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982, more particularly Column-V providing for date by which the candidature may be withdrawn. Notification issued under Rule-16 bearing reference No.MBHY/B.KA.JI.D.U.SANGH/CHUTNI/VASHI/4479/2020, dated 18-09-2020, in Column No.6, date 08-10-2020 is to be substituted by date 07-10-2020. To aforesaid extent only, the petition is allowed
Result: Petition is allowed
JUDGMENT :
1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state.
2. This petition under Article 226 of the Constitution of India is filed with the prayers, which are as under:
“A. Your Lordships may be pleased to admit and allow this Petition.
B. Your Lordships may be pleased to issue a writ of mandamus or writ in nature of mandamus or any other appropriate writ order or direction quashing and setting aside the election notification dated 18.09.2020 issued by respondent N o. 1 declaring various stages of election as being against the Order dated 11.09.2020 passed in Special Civil Application No. 11193 of 2020 and in violation of Section 74(C)(2)(i) of the Act.
C. Pending admission and final disposal of this Petition, Your Lordships may be pleased to stay the operation, execution and implementation of notification dated 18.09.2020.
D. Any other and further relief/s that may be deem, just and proper may kindly granted in the interest of justice;”
3. By the present petition, the Notification dated 18-09-2020 issued by the respondent – State for declaring election programme of the Banaskantha District Co-operative Milk Producers Union Ltd. has brought under question. It is the case of the petitioner who is the Chairman of Shree Baivada Dudh Udpadak Sahakari Mandali Limited and elected Member of Managing Committee of Banaskantha District Co-operative Milk Producers Union Ltd. and is also Vice President of the society is challenging the declaration of the election.
4. Learned Advocate for the petitioner submitted that earlier the petitioner had filed Special Civil Application No.11193 of 2020 before this Court, which came to be disposed of considering the same as pre-mature. However, this Court had proceeded to observe that the State Authorities shall abide by the Notification dated 25-08-2020 and or other Notification which may have been issued subsequent to Notification dated 25-08-2020. Learned Advocate therefore, draws attention of this Court to the Notification dated 25-08-2020 and submitted that under the said Notification, the term of Executive Committee has been extended till 31-12-2020 and therefore, the declaration of election programme is not only against the directions of the High Court, but also against the spirit of the Notification made in this regard.
5. It is submitted that the State Government being concerned about the existing situation of Pandemic due to Covid-19, has time and again issued the Notification with regard to conduct of election. He refers to the first Notification dated 24-03-2020 which indicates that on-going Executive Committee is exempted from the provision under Section- 74(C)(2)(iv) of the Gujarat Co-operative Societies Act, 1961 and the tenure of such Executive Committee is extended upto 31-07-2020. It is submitted that thereafter on 30-06-2020, another Notification was issued on account of Unlock-1 declared by the Central Government and permission was thereafter granted to conduct the Election. Attention is thereafter drawn to Notification dated 04-07-2020 to the effect that all these societies are to conduct the elections as per the guidelines under Unlock-2 and only with the permission of the District Collector. It is submitted that it was declared by the Collector, District of Banaskantha himself that Covid-19 situation has worsena, as a result of which 174 areas of Banaskantha District were declared as containment zone and therefore, also practically prevailing situation is not conducive for holding of election.
6. It is submitted that therefore, all the while, it was an attempt on the part of the State Government to avoid conducting of election with due regard to Covid-19 situation and especially such Notification dated 25-08-2020, which has extended the tenure of Committee till 31-12-2020 and therefore, declaration of Election programme by the respondent is not in consonance with the Notification issued from time to time and directions issued by th
