BIREN VAISHNAV,J. -
(1.) In Special Civil Application No. 14668 of 2020 filed under Article 226 of the Constitution of India, the prayers of the petitioner are to quash and set aside the impugned order dated 25.08.2020 passed by the Deputy Collector and Election Officer and the impugned order dated 29.10.2020 passed by the Registrar, Nominees Court below Ex. 6 in Lavad Case No. 158 of 2020 and also to direct the respondents no. 1 and 2 to start the election process for holding the election of petitioner no. 1 - Siddhpur Taluka Sahakari Kharid Vechan Sangh Limited from the stage where it was postponed.
1.1 Special Civil Application No. 15372 of 2020 is filed challenging the order dated 13.11.2020 passed in Misc. Application No. 19 of 2020 by the respondent no. 1 in Regular Appeal No. 56 of 2020 by which the Additional Registrar, Appeals has condoned the delay of 750 days in an application for condonation of delay filed by respondents no. 3 and 4 of the present petition who are the same respondents of the Lavad Suit No. 158 of 2020 - respondents no. 4 and 5 of Special Civil Application No. 14668 of 2020.
(2.) Facts in brief are as under (As recorded in Special Civil Application No. 14668 of 2020):
2.1 The petitioner no. 1 - Siddhpur Taluka Kharid Vechan Sangh Limited is a taluka level co-operative society. It has primary co- operative societies as also individual persons as members. The managing committee of the petitioner no. 1 Sangh consists of 17 members. Out of these 17 members, 11 members are to be elected by agricultural cooperative societies, 1 member from the other cooperative society, 3 delegates are individual members, 1 is a representative of the government department and 1 is a representative of the District Cooperative Bank. It is the case of the petitioner that on 18.06.2018, it gave public notice for the information of the delegates and the primary societies that an annual general meeting will take place on 01.07.2018. The case of the petitioner is that a unanimous resolution was passed for amending bye-laws 1 to 54 in the annual general meeting. The resolution was sent for approval to the District Registrar who in turn approved the amendment to the bye-laws on 27.07.2018. At the outset, it may be pointed out that the challenge to the amendment to the bye laws is a subject matter of Special Civil Application No. 15372 of 2020.
2.2 The case of the petitioner society is that since its term was for 5 years from 22.08.2015, the Sangh gave a registered notice to all its members on 12.03.2020. The notice was issued under Rule 3A of the Gujarat Specified Co-operative Societies Elections to Committee Rules, 1982 (for short 'the Rules') for the purposes of determination of constituencies of all the seats. The objections were invited for such determination of constituencies on or before 27.03.2020. A provisional constituency's list was published on 12.03.2020 by which 11 zones came to be determined for Primary Agricultural Cooperative Societies. For the other cooperative societies, one seat was identified and the same was notified. For individual members, 3 seats and the names of the delegates who were elected from individual members were published for zones 13, 14 and 15.
2.3 In view of the intervening pandemic, the State issued a notice on 24.03.2020 not to hold any elections. On 30.06.2020, a modification was made that the election process may start from the stage where it had stopped. Accordingly, the petitioner Sangh issued an advertisement in the newspaper on 01.07.2020 that it had resumed the process of determining constituencies in accordance with the public notice dated 12.03.2020 and it invited objections from all concerned on or before 07.07.2020 for a hearing to take place on 08.07.2020. On 08.07.2020, the petitioner no. 1 - cooperative society addressed a letter to all its members wherein it was informed that for the purpose of preparing a voters' list of the ensuing elections, the members are requested to send the names of their representatives on or before 20.07.2020. Since the petitioner no. 1 society did not receive any objections to the constituencies/zones as determined, the same came to be determined as constituencies by the order of the Manager of the petitioner no. 1 on 08.07.2020.
2.4 At some stage on 27.07.2020, one Ramnagar cooperative Society engaged in growing of potatoes and millets raised an objection before the Deputy Collector regarding determination of the zones. No objections were raised before the Taluka Cooperative Sangh especially respondents no. 4 and 5 herein. In August 2020, one Lalsinh Thakore also made an application to the Deputy Collector to stall the elections because he had no opportunity to raise objections. An application was also made by one Samoda Fruit and Vegetable Utpadak Vechan Sangh - respondent no. 4 on 24.08.2020. Certain societies also enrolled themselves by showing their willingness to pay subscription including respondent no. 5 Mandali in order to enroll itself as a voter.
2.5 In other words, once the petitioner society had initiated the process of holding elections in accordance with the Rules, the Deputy Collector and the Election Officer published an election programme on 24.08.2020 of the first stage by publishing the stages of voters list, for inviting objections, for the date of determining the objections and for the publication of final voters list. The election programme with complete details of constituencies and names of the members of society falling in the respective zones was published.
2.6 At this stage, two events happened at the hands of the respondents no. 4 and 5 societies. Firstly, on 24.08.2020, these societies i.e. respondents no. 4 and 5 filed an appeal under Section 153 with application for condonation of delay wherein they challenged the amendment to the bye laws dated 27.07.2018 before the Registrar, Cooperative societies. Those proceedings are a matter under consideration in Special Civil Application No. 15372 of 2020.
2.7 As far as the present petition is concerned, the same respondents no. 4 and 5 filed Arbitration Suit/ Lavad Suit being Lavad Suit No. 158 of 2020 where the petitioners were joined as the defendants. The prayer in the suit was that the decision of creating zones by the petitioners vide order dated 08.07.2020 may not be implemented and the petitioners be restrained from acting on the same. The Registrar, Nominees Court by an order dated 20.08.2020 granted ex-parte ad-interim relief in terms of para 8(A) of the application Ex. 6.
2.8 Acting on the stay granted by the Nominees court, the Deputy Collector and the Election Officer passed an order on 25.08.2020 observing that since the Registrar, Nominees Court had granted stay, the election to the petitioner society needed to be postponed. The Registrar, Nominees Court after a bi-parte hearing, by an order dated 29.10.2020 granted the application till the final disposal of the Lavad Suit.
2.9 As is evident from the prayer in Special Civil Application No. 14668 of 2020, the order of the Deputy Collector dated 25.08.2020 postponing the elections to the petitioner society and the order of the Registrar, Nominees court below Ex. 6 dated 29.10.2020 are under challenge before this court.
(3.) Mr. P.K. Jani, learned Senior Advocate appearing with Mr. Shivang Jani, learned advocate for the petitioner, inviting the attention of the court to the pleadings in the Lavad Suit and the prayer made in the suit to set aside the order dated 08.07.2020 by which there was a decision of creating zones by the petitioner for the purposes of elections, would submit that once the election officer has published the schedule of elections notifying the dates and when the respondents no. 4 and 5 had not raised any objections to the determination of constituencies, the order of the Lavad Suit dated 29.10.2020 ought to be quashed and set aside.
3.1 Mr. Jani would invite the attention of the court to Section 145C and the provisions of Section 74C to submit that in accordance with these provisions of the Co-operative Societies Act, elections have to be held as far as possible one month before the date on which the term of the office of the members is due to expire. The term of the elected members of the Managing Committee is five years. The elected members of the Managing Committee ceased to hold office on the date of expiry of the term and the election of the Managing Committee shall be conducted before the expiry of its term so as to ensure that the newly elected members of the Committee assume office immediately on the expiry of the term of office of the members of the outgoing managing committee. He submitted, therefore, that it was the statutory duty of the election officer to see that the election process is completed and such an election process cannot be stalled on the basis of an interim injunction by the Registrar of the Nominees Court.
3.2 Mr. Jani would submit that the order passed in the Lavad Suit should in no way come in the way of the Deputy Collector and the Election Officer in finalising the voters' list as there was no order of the Registrar to restrain the Election Officer from preparing and finalizing the voters' list as per the notice issued on 24.08.2020.
3.3 Mr. Jani would also submit that the order of the Registrar, Nominees Court was without jurisdiction inasmuch as the dispute did not fall within the competence of the Nominees Court under Section 96 of the Gujarat Cooperative Societies Act. The issue involved, looking to the plaint, was directly or indirectly in respect of an election of a specified co-operative society. Admittedly, therefore, the only remedy that was available to the respondents no. 4 and 5 was that of approaching the Tribunal under Section 145U of the Cooperative Societies Act read with Rules 75 and 82 of the Rules. Mr. Jani would submit that the order of the Registrar, Nominees Court was without jurisdiction and therefore even a remedy by way of a revision was not an efficacious and alternative remedy.
3.4 Mr. Jani would invite the attention of the court to the relevant rules of the Rules namely Rules 3A, 4, 5 and 6 and submit that on reading Rule 3A it would be evident that the constitution or the creation of zones was in exercise of de-limitation of constituencies for the purpose of election and therefore when read in context of Section 145U of the Cooperative Societies Act, it was clear that notwithstanding anything contained in Section 95 or any other provisions of the Act if the dispute was relating to an election, then it shall be referred to the Tribunal. This being the position, he would submit that the order of the Registrar, Nominees Court in exercising powers under Section 96 of the Act was without authority of law. He would also invite the attention of the court to the provisions of Section 145B wherein the term 'elections' is defined.
3.5 Mr. Jani would submit that since what was in essence prayed for was to set aside an election and once the election process was on in accordance with the specified election rules, the jurisdiction of the Tribunal was clearly barred. On these grounds, he would submit that the court ought to interfere and reverse the order of the Registrar, Nominees Court and also direct the Deputy Collector and Election Officer to continue with the election process in accordance with the spirit of the statutory provisions of the Act.
3.6 In support of his submissions that the election has to be held in accordance with the scheme of the Act, Mr. Jani rleied on the decision in the case of Natwarlal Pitambardar Patel vs. A.B. Trivedi [2005(2) GLR 1453] and Manavadar Bantva Taluka Cooperative Purchase and Sales Union Limited vs. State of Gujarat [2004 JX (Guj) 1708]. ;