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Hasmukhbhai Jugatram Raval Vs. the Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Trusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1301
AppellantHasmukhbhai Jugatram Raval
RespondentThe Collector and ors.
Cases ReferredA.K.M. Hassan Uzzaman and Ors. v. Union of India and Ors.
Excerpt:
- - reported in (1982)2scc218 .in that case it is clearly held that where election is imminent......no. 4. the prayer is that the collector, respondent no. 1 may be directed to take over the election process from respondent no. 4 and hold the election of the delegates after including all members who have been enrolled and admitted upto 31st december, 1982. another prayer is to direct respondent no. 1 to hold the entire election including that of the delegates in accordance with the provisions of section 145d of the gujarat co-operative societies act, 1961 (herein-after referred to as the act).2. now the learned advocate shri joshi who appeared on behalf of the petitioner mainly urged two grounds in support of his prayers. the first ground is that the persons who became entitled to vote on 1-7-1981 and thereafter were not included in the voters' list. the second ground is that.....
Judgment:

S.L. Talati, J.

1. This petition is filed by one of the Shareholders and delegates of the Gujarat Industrial Co-operative Bank Limited which is joined as respondent No. 4. The prayer is that the Collector, respondent No. 1 may be directed to take over the election process from respondent No. 4 and hold the election of the delegates after including all members who have been enrolled and admitted upto 31st December, 1982. Another prayer is to direct respondent No. 1 to hold the entire election including that of the delegates in accordance with the provisions of Section 145D of the Gujarat Co-operative Societies Act, 1961 (herein-after referred to as the Act).

2. Now the learned advocate Shri Joshi who appeared on behalf of the petitioner mainly urged two grounds in support of his prayers. The first ground is that the persons who became entitled to vote on 1-7-1981 and thereafter were not included in the voters' list. The second ground is that the first respondent, the Collector is the only person entitled to hold the election. These are the only two submissions or the points raised which are required to be answered for the purpose of deciding this petition.

3. It is an admitted position that this election was to be held for the year 1980-81. It is also an admitted position that a Co-operative year ends on 3Cth June every year and normally and under the bye-laws the elections are required to be held within a period of three months i. e. by 30th September because before that date a general meeting is required to be held. Now, therefore, the elections were required to be completed by 30th September, 1981 and those elections would be in accordance with the list of voters which existed on 30th June, 1981.

4. Now it appears that somehow the election could not take place and the Government had the power to extend that period and that period was extended upto 30th June, 1982 and, therefore the election programme was drawn out which began on 22-4-1982 and now, therefore, naturally on that day the voters' list would be the list which was in existence on 30th June, 1981. There is no dispute that all persons who were members on that day were included in the voters' list. There-after it appears that stay was obtained in regard to this election from the Registrar's Nominee. That stay was ex parte obtained on 3-5-1981 which was ultimately vacated on 13-12-1982. Again thereafter new election programme was drawn up and the Board of Directors meeting was held on 28-12-1982 and the resolution was adpoted and, therefore, by new programme the process of election started on 15-1-1983 and which was to be completed by 30-1-1983. On 17-1-1983 this petition came to be filed. However, the election process was allowed to continue because a limited stay was granted and the stay was to the extent that though voting may take place in regard to the delegates who were ultimately to elect the Directors the result may not be declared. Now, therefore, during the pendency of this petition the voting his taken place. Oily the result is required to be declared in regard to the delegates and those delegates-will ultimately elect the Directors. Now the grievance is that during all this period 1030 persons came to be enrolled as members and thus as against original members on 30th June, 1981 the number of which came to 6143 on 30th June, 1982 the number came to 7173. The argument advanced is that these persons who became members subsequent to 1-7-1981 were not allowed to exercise their franchise and, therefore, the delegates who would be elected would not represent the total number and they will be electing the Directors. Section 74C(2) of the Act provides:

74C(2). When the election of all th3 members of the committee of any such society is held at the sans time, the members elected on the committee at such general election shall hold the office for a period of there years from the date on which the first masting is held and shall continue in office until immediately before the first meeting of the members of the new Committee.

Now the argument is that if these persons who are now to be declared elected, if the process is allowed to continue, would be the delegates for the purpose of electing new Directors and those new directors would hold the office for a period of three years from today and, therefore, they would continue to held the office upto 1986 and, therefore, the parsons who became voters on 1-7-1982 would be debarred from voting till 1986 and, therefore, the right which they had is taken away for a period which consists of more than three years and the same argument according to the learned advocate Mr. Joshi will apply to the delegates. It is conveniently here forgotten that the persons who are now delegates or who are now Directors will continue 10 hold the office for a period of more than three years though their term is over because this particular election is not allowed to take place for one or the other reason. Now, therefore, on one side there are elected persons who continue for a period which is more than due to expire and if the election process is stopped in the middle for one reason or the other the result would be that the persons who are in power would always see that the elections are either held in such a manner that they should be stopped in between so that either by connivance or by active help they can continue for ever without holding election and to end an eventuality. Section 145 of the Act provides an effective machinery to raise any dispute in relation to an election before the Co-operative Tribunal within a period of two months from the date of the decision of the election. This revision is meant to see that no person is elected in violation of any law and if he gets himself so elected his election could be challenged and set at naught under Section 145 of the Act. Put in no democratic institution the process of election should be stopped in between otherwise it would lead to an absurd result and, therefore, whenever in any law there is a provision for election the Legislature has seen to it that as soon as the election process starts no court stops that election process though of course the court has enough powers to declare the election of a particular individual 'and even of all individuals invalid if the election is not held in accordance with law. But that is the machinery which is resorted to after the election is over.

5. The second point that the Collector is the only person entitled to hold the election has absolutely no substance. The reason is that the Collector has been given that power for the purpose of holding the election of a committee. That is provided by Section 45A. That section is contained in Chapter XIA of the Act and it applies to the elections of the committees of the society and committee is defined by Section 2, Clause (5) of the Act which runs as under:

2. (5) 'Committee' means the Committee of management, or other directing body, to which the management of the affairs of a society is entrusted.

Therefore, when the directors are required to be elected they are required to be elected by the Collector. Here the directors are not elected. Here only delegates are elected from amongst the members who are going to elect the Directors. Therefore, it was not the function of the Collector to hold the election of the delegates who were to elect directors.

6. The another thing which is required to be stated is that 124 delegates are declared elected uncontested and they are not made parties to this petition. No order, therefore, can be passed which could affect them in a petition when they are not parties.

7. For the proposition that the election machinery is not required to be stopped in the middle there is a clear decision in the case of A.K.M. Hassan Uzzaman and Ors. v. Union of India and Ors. reported in : (1982)2SCC218 . In that case it is clearly held that where election is imminent. High Court must be very cautious and slow to interfere under and to pass orders or directions postponing the election. Now, therefore, it is clear that here not only the election is imminent but it is practically completed upto the voting stage and 124 delegates are already declared elected uncontested. The only imminent thing is required to be done is counting and that thereafter they will be electing the directors. This process now at this stage cannot be stopped. It would be open however, for an aggrieved person who may have right to contest the election to challenge the election before the Co-operative Tribunal under Section 145 of the Act but that is entirely a different matter.

8. Here one more thing is required to be stated that the learned Assistant Government Pleader appearing on behalf of respondents Nos. 1 to 3 also supported the view that the election cannot be stopped in the middle and also supported the view that it is not the function of the first respondent to hold the election of the delegates.

9. So far as this petition is concerned it may be stated that there is no merit and, therefore, it is required to be dismissed. The petition is dismissed with no order as to costs. The interim relief is vacated.

Ballot boxes are in the custody of respondent No. 1 and respondent No. 1 is directed to band over the ballot boxes to respondent No. 4 so that the counting may be completed.

At this stage the learned advocate Shri S.J. Joshi appearing for the petitioner withdraws this petition.


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