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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, J.
Vipulbhai Narvatbhai Rathod - Appellant
Versus
Election Officer - Respondent
R/Special Civil Application No. 14617, 4492, 4495, 4621, 4618, 4615, 4620 of 2020
Decided on : 23-12-2020
Gujarat Cooperative Societies Act, 1961 - Section 74C, 145U and 22(2- A) - Gujarat Specified Cooperative Societies Rules, 1982 - Rules 6 to 8 - Constitution of India, 1950 - Article 226 - Petition and be pleased to restrain respondent No.2 from participating in elections - Petition and be pleased to direct that name of respondent No.2 be deleted from voters list for elections - Petitioner has prayed to issue writ of certiorari or writ in nature of certiorari any other appropriate writ, order or direction, quashing and setting aside impugned order - Petitioner is a delegate of Sheer - Society in which petitioner is a delegate is a member society - Elections of Union are to be held as per Chapter XI of Act of 1961 and the Rules framed hereunder - Member society of Union - It is pointed out from record that election programme of Union was declared and thereafter voters’ list was published - In said voters’ list, name of respondent No.2 was included. When petitioner came to know about inclusion of name of respondent No.2, he filed objections in which it was pointed out to the respondent No.1 that respondent No.2 is a member of Managing Committee he is not resident of that particular village where his society has area of operation and therefore by virtue of bye-laws of the society, he is not eligible as delegate and therefore his name is wrongly included in voters’ list. It is submitted that respondent No.1, by way of impugned order rejected objections raised by petitioner and therefore petitioner has filed present petition –
Finding of the Court:
Court is of the view that though the petition is maintainable under Article 226 of the Constitution of India, in spite of the alternative remedy is available to the concerned petitioners, powers are to be exercised in case of extraordinary or special circumstances such as, whether the order is ultravires, nullity and/or ex-facie without jurisdiction. Exclusion or inclusion of the names in the voters’ list does not warrant interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an election petition. Here, the petitioner is having alternative remedy and, these petitions are not entertained and rejected accordingly. However, if the petitioner is aggrieved by the result of the election, he can approach the competent Election Tribunal by raising an election dispute as contemplated - If the election petition is filed, it shall be considered by the competent authority independently and uninfluenced by the findings recorded by this Court in the present case. Notice is discharged, in each case –
Result: Order Accordingly
ORDER :
1. In all these petitions, as the issue raised by the concerned petitioner is similar, learned advocate appearing for the parties jointly requested that all these petitions be heard and decided together.
2. For the sake of convenience, the facts narrated in Special Civil Application No.14617 of 2020 are considered:
2.1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following main relief/s:
(B) Pending final hearing and disposal of this petition, the Hon’ble Court be pleased to stay the execution, operation and implementation of the impugned order dated 03.10.2020 passed by the respondent No.1 at Annexure-A to the petition and be pleased to restrain the respondent No.2 from participating in the elections of Vadodara District Cooperative Milk Producers’ Union Limited.
3. Heard learned advocate Mr. Padmraj K. Jadeja for the petitioners, learned Assistant Government Pleader Mr. Meet Thakkar for the respondent No.1 and learned advocate Mr. V.C.Vaghela for the respondent No.2.
4. Learned advocate for the petitioner submitted that petitioner is a delegate of Sheer Na Muvada Doodh Utpadak Sahakari Mandali Ltd. The society in which the petitioner is a delegate is a member society of Vadodara District Cooperative Milk Producers’ Union Ltd. (the Union). The said Union is a specified society within the meaning of Section 74C of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as ‘the Act of 1961’). The elections of the Union are to be held as per Chapter XI of the Act of 1961 and the Rules framed thereunder. It is submitted that Manipur Doodh Utpadak Sahakari Mandli is also a member society of the Union. It is pointed out from the record that election programme of the Union was declared and thereafter voters’ list was published. In the said voters’ list, name of the respondent No.2 was included. When the petitioner came to know about the inclusion of the name of the respondent No.2, he filed objections on 01.10.2020 in which it was pointed out to the respondent No.1 that respondent No.2 is a member of the Managing Committee of Amrapur Doodh Utpadak Sahkari Mandli Ltd. However, he is not the resident of that particular village where his society has area of operation and therefore by virtue of the bye-laws of the society, he is not eligible as delegate and therefore his name is wrongly included in the voters’ list. It is submitted that the respondent No.1, by way of impugned order dated 03.10.2020, rejected the objections raised by the petitioner and therefore petitioner has filed the present petition.
5. Learned advocate Mr. Jadeja, at the outset, referred Rules 6 to 8 of the Gujarat Specified Cooperative Societies (Election to Committees) Rules, 1982. It is submitted that as per the provisions contained in the said Rules, the respondent No.1 was required to make summary inquiry. However, without making summary inquiry, the objections raised by the petitioner came to be rejected by the respondent No.1. Learned advocate Mr. Jadeja has placed reliance upon the decision rendered by the Hon’ble Supreme Court in the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC 216, and more particularly, referred paragraph 32 thereof. It is submitted that in view of the aforesaid decision, the action taken on orders issued by the Election Commission are open to judicial review on the well settled parameters such as case of mala fide or arbitrary exercise of powers being mad
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