Decision of Member of Society To Contest or Not To Contest Election Rests Upon Him and Society Cannot Insist Member: Gujarat High Court

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Excerpt

In the present case, two petitions under Article 226 of the Constitution of India were filed where the orders under challenge, dated 22.12.2020 were such by which, the nominations for the delegate of petitioners’ society to contest elections were rejected.

Background

As far as the first application was concerned, there was another order by the Respondent -Election Officer, by which, the additional ground rejecting the nomination of the Petitioner was rejected on the purported ground that the delegate of the Petitioner was a member-only from 15.06.2019, i.e., for less than two years as required under the relevant bye-law 48. In the second application, the order of rejection of nomination was due to the fact that the Petitioner society was classified as class “C”, for which the government would rely upon bye-law 48(2)(A)(h) and as in its accordance, the society was downgraded to audit Class “C’, hence nor it could contest the elections neither vote. 

Submissions before the Court

Petitioner’s Submissions

Mr Harin Raval, the Learned Senior Counsel, drew the attention of the Court to the timing of the downgrading being relevant and done purportedly to take away the nomination of the Petitioner society, also by inviting Court’s attention to submit that the date of passing as per the postal stamp was 19.12.2020, but the date of the certificate was 01.12.2020.

He also relied on Rule 23, submitting that the Election Officer must have dealt with all objections at one stage. Extensive reliance was placed on an interim order of this Court, wherein contentions were raised by the contesting counsels and the preliminary objection of the counsel for the respondents regarding the maintainability of the petition on the ground of alternative remedy under Section 153, 155 of the Gujarat Co-operative Societies Act and under Section 145 U of filing an election petition.

Respondent’s Submissions

Ms Manisha Lavkumar, the learned Government Pleader, relied on affidavits filed, indicating that apart from the preliminary objections, this was a sponsored litigation and since the nominee had not come forward, hence the petition wasn’t maintainable. She would also draw the attention of the Court on the procedural aspect of the affidavit showing that the audit report was well served and it couldn’t be said that the audit was engineered to oust the member delegate of the Petitioner society.

The Petitioner had suppressed the material fact and the second objection upheld by the election officer, if the Court was not to accept submission of rejection of nomination on the ground of the audit classification, the other order would hence be sufficient to oust the Petitioner.

Consideration by Court

Even though the Court’s order was an interim order but it certainly had a persuasive value of this Court because it had given the findings with regard to negating a contention of alternative remedy. Hence, it found it appropriate to consider that the decision of the society’s member to contest or not to contest the election while representing his primary co-operative society, will rest upon him and that society can’t insist upon him to contest the election.

Considering the facts, the Court found the action of the Respondent -State evident, while issuing a Certificate on 14.12.2020, in case of the Petitioners to downgrade the audit to Class “C’, election programme could not but deter this Court from concluding that the exercise was a malafide exercise of power. From the dates and pleadings, it was apparent that the State was conscious that elections were postponed due to the prevailing pandemic of Covid-19. That eventuality was accepted by the respondent-State in engineering an audit classification “C” in case of both the petitioner societies and in support of its bye-law. 

The Court in the case of Shankerbhai Jesangbhai Chaudhari vs. the State of Gujarat. had observed that a bye-law cannot go beyond the proviso to sub-section 3 of Section 27 of the Act, which disqualifies a society to vote or to contest elections. As per the proviso to sub-section (3) of Section 27 of the Societies Registration Act, 1860, no society could exercise its right to vote at the election of a member of a committee unless such society had its previous accounts audited in Class A, B or C.

Court’s Directions

The learned counsels appearing for the respective parties had waived the service of the rule. The Court held that for now, there shall be an interim relief in both the above matters. Moreover, the elections might be held, subjected to the final decisions of the above two petitions.


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