Point of Law - Question as to whether the resolution as alleged by the petitioner was passed or not or any new members in the Managing Committee were included or excluded are the substantial questions of facts, which cannot be decided in the petition under Article 226 of the Constitution of India.

ORDER :

1. Heard, learned Advocate Mr. V.C. Vaghela appearing for the petitioner and the learned Advocate Mr. Pankaj S. Chaudhary for Respondent No.2 and learned Assistant Government Pleader Ms. Asmita Patel for Respondent No.1.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“7. …

A. YOUR LORDSHIPS may be pleased to admit and allow this petition;

B. YOUR LORDSHIPS may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside order dated 21.09.2020 and further be pleased to direct the respondent No.1 to include the name of the petitioner in final voters list and allow the petitioner to take part in the election of the District Union to be held on 19.10.2020.

C. ...”

3. The brief facts of the case are that the petitioner is a Primary Level Cooperative Milk Producing Society which is registered under the Gujarat Cooperative Societies Act, 1961 (hereinafter, ‘Act of 1961’) is represented by its Chairman, Shankarbhai Khemabhai Patel.

3.1 It is the case of the petitioner that as per Rule 3(A) of the Gujarat Specified Cooperative Societies Elections to Committees Rules, 1982 (hereinafter ‘Rules of 1982’), names of the representatives of the society were called by the District Union and accordingly the name of Shankarbhai Khemabhai Patel as the Chairman was sent and was included in the Preliminary Voters’ List, as per Resolution dated 30th June, 2020.

3.2 Respondent No.1 was appointed as Election Officer vide order dated 25th August, 2020 and Respondent No.1 published the notification of Preliminary Voters’ list on 26th August, 2020 and thereby, objections were invited against the inclusion or exclusion of any name.

3.3 Respondent No.2 filed objections against the inclusion of name of Shankarbhai Khemabhai Patel which was sent by the Petitioner-Society for the election of the District Union as represtative of the Petitioner-Society.

3.4 The petitioner appeared before Respondent No.1 and filed reply contending inter alia that in the Annual General Meeting of the Petitioner-Society held on 17th June, 2020 it was decided to remove two Directors who had abstained from attending three consecutive meetings of the Managing Committee of the Petitioner-Society, including Respondent No.2- Arjanbhai Khetabhai Patel. It was also pointed out that none of them challenged Resolution No.4 dated 17th June, 2020 before the Board of Nominee under Section 96 of the Act of 1961. It was therefore pointed out that Respondent No.1 had not power or authority to decide the validity of the resolution passed by the Petitioner-Society.

3.5 Respondent No.1 declared the election programme of the District Union by notification dated 18th September, 2020. Then, by order dated 21st September, 2020 Respondent No.1 ordered to delete the name of Shankarbhai Khemabhai Patel and instead included the name of Respondent No.2 – Arjanbhai Khetabhai Patel in the Final Voters’ List.

3.6 The Petitioner-Society has therefore approached this Court by way of this petition seeking the reliefs as referred to herein above.

4. At the outset, learned Advocate Mr. Vaghela appearing for the Petitioner-Society submitted that in the election of the District Union, the candidate has been elected uncontested and therefore neither Shankarbhai Khemabhai Patel nor Respondent No.2 had any occasion to vote in the election and as such this petition has become infructuos. However, it was submitted that by the impugned order as the name of Respondent No.2 is ordered to be included in the Final Voters’ List by Respondent No.1 on the ground that members of the original Executive Committee without following any procedure or giving an opportunity of hearing admitted new member as the representative of the Petitioner-Society and on considering the affidavits filed by the members of the Petitioner-Society the majority members were with Respondent No.2, the na