advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, January 13, 2015

Gujarat Cooperative Societies Act of 1961 -Prior to the amendment, the election of the managing committee was to be conducted by the society itself as per its registered bye-laws. So far as the societies included as specified societies under Section 74C(1) of the Act are concerned, a separate mode of conducting election was provided and the power of conducting such election was given to the Collector notwithstanding anything contained in the bye-laws of such societies. - The constitutional validity of the amended provisions of the Act of 1982 was challenged before the High Court= CIVIL APPEAL NO.10392 OF 2014 (Arising out of SLP(C) No. 26017 Of 2013) RAJKOT DISTT COOPERATIVE BANK LTD. .........APPELLANT Vs. STATE OF GUJARAT & ORS. .........RESPONDENTS

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.10392 OF 2014
                  (Arising out of SLP(C) No. 26017 Of 2013)

RAJKOT DISTT COOPERATIVE BANK LTD.  .........APPELLANT

                                     Vs.

   STATE OF GUJARAT & ORS.            .........RESPONDENTS

                                    WITH
                     CIVIL APPEAL NOS.10393-10394 OF 2014
              (Arising out of SLP (C)Nos. 13201-13202 Of 2012),
                     CIVIL APPEAL NOS.10395-10398 OF 2014
               (Arising out of SLP (C)Nos.12219-12222 Of 2012),
                        CIVIL APPEAL NO.10399 OF 2014
                 (Arising out of SLP (C) No. 29726 Of 2013),
                        CIVIL APPEAL NO.10400 OF 2014
 (Arising out of SLP (C) No. 27573 Of 2013),
                        CIVIL APPEAL NO.10401 OF 2014
 (Arising out of SLP (C) No. 29727 Of 2013)
                                     And
                       CIVIL APPEAL NO. 10402 OF 2014
                  (Arising out of SLP (C) No. 29728 Of 2013

                               J U D G M E N T

V.GOPALA GOWDA, J.

    The applications for impleadment filed  in  the  SLP(C)  Nos.  29726  of
2013, 29727 of 2013 and 29728 of 2013 are allowed. Leave granted in all  the
special leave petitions.
2.    The appellants before this Court have filed these appeals  questioning
the correctness of the impugned orders dated 15.11.2011,  30.1.2012  (passed
by the Division Bench) and  common impugned order dated  04.07.2013  (passed
by the full Bench) of the High Court of Gujarat at Ahmedabad.
3.    Since all the appeals are identical in nature, we would refer  to  the
facts of the case arising out of Civil Appeal @ SLP(C)  NO.  26017  of  2013
for the sake of convenience and brevity and for examining  the  rival  legal
contentions urged in these appeals.
4.    The State of Gujarat enacted and put  on  the  statute  book,  Gujarat
Cooperative Societies  Act  of  1961  (in  short  "the  Act")  in  order  to
consolidate and amend the laws relating to the cooperative societies in  the
State of Gujarat. Thereafter, the Act  was  amended  by  the  Act  of  1982.
Initially, as per the Act  of  1961,  the  Managing  Committee  of  the  Co-
operative Society was to be constituted in accordance with  the  Act,  Rules
and bye-laws. By the Act of 1982, the proviso was  inserted  by  way  of  an
amendment to the effect that so far as the committee of  a  society  falling
in the category of Section 74C(1) of the Act is concerned, the rotation  for
retirement, if provided by the bye-laws of a particular  number  of  members
of the Managing Committee shall cease to remain in force.
5.    Further, as per the Act of 1982, Section 74C together with  the  other
provisions of the amending Act  was  brought  on  the  statute  book,  which
provided that the election of the members of the   Managing  Committee/Board
and the office bearers on the committees of such specified  societies  shall
be conducted in the manner laid down by or under Chapter XI-A  of  the  Act,
which was also simultaneously inserted by way of amendment Act of 1982,  for
conducting elections  to  the  committees  and  office  bearers  of  certain
societies which are so specified under Section 74C(1) of  the  Act.  As  per
the scheme of the said chapter, the election of such specified societies  is
required to be held on such date or dates as the  Collector  may  fix  under
his  control.   Prior  to  the  amendment,  the  election  of  the  managing
committee was to be conducted by the society itself as  per  its  registered
bye-laws. So far as the societies  included  as  specified  societies  under
Section 74C(1)  of the Act are concerned,  a  separate  mode  of  conducting
election was provided and the power of conducting such  election  was  given
to the Collector notwithstanding anything contained in the bye-laws of  such
societies.  The said aspect was made clear under the provisions  of  Section
74(C) (2) and (3) of the Act which were inserted by way of amending  Act  of
1982.  Chapter XI-A of the Act provides for separate mode for  deciding  the
election dispute by Election Tribunal. Section 145(U) of  the  Act  provided
the State Government with rule making power and to regulate all  or  any  of
the other matters relating to the  various  stages  of  elections  including
preparation of the list of voters.
6.    In exercise of the powers conferred upon the  State  Government  under
Section 168  read  with  Sections  145(A),  145(U)  and  145(Y),  the  State
Government of Gujarat framed the Gujarat  Specified  Co-operative  Societies
Election to Committee Rules of 1982 (in  short  "the  Rules").  These  Rules
provide for various stages of election from the preparation  of  the  voters
list till the result is declared  and  further  consequential  steps  to  be
taken in the process.  In the year 1987, Rules 3-A and 3-B were inserted  in
the Rules of 1982 by  the  Rule  Making      Authority  which  provided  for
delimitation of the constituencies in the respective society/societies,  for
the purpose of conducting election of the Managing Committee Members  and  a
separate procedure was provided for election of  members  reserved  in  sub-
section (1) of Section 74B of the Act.
7.    The constitutional validity of the amended provisions of  the  Act  of
1982 was challenged before the High Court in the case of Amreli District Co-
operative Sale and Purchase Union Ltd. v. State of Gujarat[1]. The  Division
Bench of the High Court declared Sections 17(A), 24, 51(2), 69 and also  the
proviso to  Section  74  as  ultra  vires  the  Constitution.  However,  the
provisions of Sections 74A, 74B, 74C, 74D, 76A, 76B, 80(A)  and  80(2)  were
upheld. The said matters were carried before this  Court,  but  subsequently
came to be withdrawn.  Therefore, the decision of the Gujarat High Court  in
the aforesaid case became final and has been operating since.
8.    Subsequently, certain provisions were  deleted  but  Section  74C  and
other provisions in relation to the conduct of election,  including  Chapter
XI A and  the  Rules,  remained  in  the  statute  book.   Therefore,  legal
position remained as per the original Act even after the  Amendment  Act  of
1982. The election of the Managing Committee  members  of  a  society  other
than the specified societies was required to be held as per the bye laws  of
such societies. Whereas, so  far  as  the  specified  societies  covered  by
Section 74C(1) of the Act are concerned, the election  was  required  to  be
held as per Chapter XI A read with the Rules of 1982.
9.    A legal question for interpretation to  Rule  3-A  (8)  and  also  the
validity of bye-laws clause  No.  35(1)(A)  of  Sabarkantha  Milk  Producers
Union Ltd. arose before the  High  Court  in  the  case  of  Antakampa  Milk
Producers Co-operative Society Limited v. Sabarkantha Milk  Producers  Union
Ltd.[2]. The learned Single Judge of the High Court in the  said  case  held
that Section 74C sub Section (3) of the Act, has  an  overriding  effect  on
any other bye-laws of such society. It was also found that as per  Rule  3-A
(8), the number of constituencies have to be equal to the  total  number  of
seats excluding two reserved seats as provided  under  Section  74B  of  the
Act. The learned Single Judge in the said case found that the  bye  law  No.
35(1)(A), provided seats for more than one person for each constituency  and
therefore, the bye laws were not in conformity with  Rule  3-A  (8)  of  the
Rules  and  found  that  the  bye-laws  can  operate  to  the  extent  of  7
representatives to be elected from 7 separate constituencies of a  Specified
Cooperative Society and therefore, the High Court has held the  Rule  3-A(8)
of the Rules as valid to that extent only.
10.   In the meanwhile, the Division Bench of the Gujarat High Court in  the
case of Shri  Sadwadar  Seva  Sahkari  Mandali  Ltd.  &  Ors.  v.  State  of
Gujarat[3], went into the case once again with regard to the holding of  the
election to the Managing Committee of the Bank in accordance with  Rule  3-A
(8) of the Rules.  The Division Bench found that when Rule 3-A (8) and  Rule
43  are  examined  in  juxtaposition,  it  has  held  that  the  object  and
intendment of the said Rules and the field of the operation of the said  two
provisions are different inasmuch as the former deals with  "constituencies"
bifurcated  on  the  "territorial/zone  basis".   The  Division  Bench   did
consider the view taken by the learned Single Judge of  Gujarat  High  Court
in the  case  of  Antakampa  Milk  Producers  Co-operative  Society  Limited
(supra) and found that in the said case, the constituencies were  bifurcated
zone or territory wise.
11.   Again the question for consideration of the  provisions  of  Rule  3-A
(8) read with Section 74C of the Act arose in  the  case  of  Khanodar  Milk
Producers Co-operative Societies Ltd. and Others  v.  State  of  Gujarat[4].
The second Division  Bench  of  the  High  Court  found  that  the  bye  law
providing more than one representative  to  be  elected  in  more  than  one
constituency would be in contravention of Rule 3-A (8) and it is held  that,
in the case of Sadvadar Sahkari (supra), the members  of  the  society  were
comprised of various classes of societies, whereas in the case of  Antakampa
Milk  Producers  Cooperative   Society   Ltd.,   the   members   constituted
homogeneous group and  not  heterogeneous  group.  Therefore,  adopting  the
decision of the case Antakampa Milk Producers Cooperative Society Ltd.,  the
Division Bench set aside the bye laws clause No. 35 (1) of the said  Society
which provides for voting right for more than one seat in one constituency.
12.   Further, the constitutional validity of Rule 3-A (8) of the Rules  was
again  challenged  before  the  High  Court  of  Gujarat,  in  the  case  of
Banaskantha District Cooperative Milk  Producers  Union  Ltd.  v.  State  of
Gujarat[5], wherein the Division Bench of the High Court held  that  if  any
of the Rules are lawfully  framed  under  the  provisions  of  the  Act  and
restrictions were imposed in relation to the subject matter of  any  of  the
clauses of the registered bye laws of the Society,  such  restrictions  must
be adhered to by it and  any  such  clause  in  the  bye-laws  which  is  in
violation of the restriction imposed by the Rules should be deleted. It  was
further  held  that  the  State  Government  while  framing   the   impugned
provisions of the Rules has  not  deviated  from  the  principles  mentioned
under Section 74C (3) of the Act, but it has  only  created  a  position  by
making provisions of the election of members  from  the  General  Body.  The
Division Bench of the High Court held that Rule 3-A  (8)  of  the  Rules  is
neither in conflict with any of the provisions of the Act nor  was  it  held
to be bad in law  for  want  of  Authority  of  the  delegated  legislation.
Therefore, Rule 3-A(8) of the Rules was held to be legal and  valid  by  the
High Court by giving its reasons.
13.   Similar questions regarding the legality and validity of  Rule  3-A(8)
of the Rules arose when the present group of appeals were listed before  the
High Court. The Division Bench of the High Court  formulated  the  following
legal issues and referred the same to the full Bench:
Whether Rule 3-A of the Rules introduced by the amendment  dated  10.08.1987
could be applied to the  societies  bye-laws  which  provide  for  a  single
constituency?

Whether the scheme of the Rules permit  the  specified  societies  having  a
single constituency, more than one seat for  one  constituency  and  whether
members of such society can legally be permitted to vote for more  than  one
seat?

Whether Collector has jurisdiction to make an order for delimitation of  the
constituencies, in absence of any proceeding undertaken in  accordance  with
Section 14 of the Act?

Whether delimitation of the constituencies under Rule 3-A of the  Rules  can
only be territory-wise and/or whether  delimitation  of  the  constituencies
can be based upon objects and activities of the member societies or  classes
of individual members?

After hearing the learned counsel for both sides,  the  full  Bench  of  the
High Court answered the legal questions against the  appellant-societies  by
passing the impugned judgment and  orders  which  are  challenged  in  these
appeals before this Court urging various legal grounds.
14. We have heard the learned counsel on both the sides. It is contended  by
the learned Senior Counsel for the appellants that the findings and  reasons
recorded in the impugned judgment while answering the questions  of  law  on
the points referred to the Full  Bench  are  not  only  erroneous  but  also
suffers from error in law. Reliance was placed by them upon the judgment  of
this Court  in  the  case  of  Ziley  Singh  v. Registrar  Cane  Cooperative
Societies Lucknow[6]. It is contented that the Rule 3-A (8) of the Rules  is
contrary to the  bye-laws  of  the  appellant-Societies  and  the  statutory
provisions of the Act. The Act provides  for  amendments  of  the  bye  laws
without allowing the societies to get their bye  laws  amended  as  per  the
procedure laid under the provisions of  the  Act  and  without  laying  down
certain guidelines in the Rules for the amendment of  the  relevant  clauses
of the registered bye-laws of the appellant-Societies. Rule  3-A  (8)  takes
away the vested rights conferred  upon  the  members  of  the  society.  The
conferment of power upon the Collector for carving out  delimitations  of  a
Specified Co-operative Society/Societies is contrary to  the  provisions  of
the Act and Rules and asking the Chief  Executive  Officer  to  prepare  the
draft constituencies by dividing the area of societies  into  constituencies
would amount to taking away the right of its members to exercise their  vote
in favour of  all  the  candidates  who  contest  from  the  constituencies.
Therefore, the interpretation given to Section 3-A  (8)  of  the  Rules  and
upholding the constitutional validity in  conferring  such  power  upon  the
Collector to demark the constituencies of appellant societies infringes  the
rights of the members of the societies. Hence,  it  is  contended  that  the
impugned judgment is liable to be set aside.
15. The State Government has filed  its  counter  affidavit  justifying  the
impugned judgment contending that the findings and reasons recorded  by  the
full Bench of the Gujarat High Court by answering the questions referred  to
it are in accordance with law and the same are on proper  interpretation  of
the relevant Rules 3-A (8) and (9) and Rule 43 of the  Rules  which  are  in
conformity with Chapter XI-A of the Act.
16.   On a careful examination of Rule 3-A (8) of the Rules  by  us,  it  is
made clear that the said provision is aimed at geographical  i.e.  territory
or zone wise bifurcation or division.  A salient feature of the Rule 3-A  is
the  delimitation  of  the  constituencies  which  includes  all   specified
cooperative societies. Once the area of operation of  any  society  is  more
than one village, Sub rule (8) would come into play and the  requirement  of
the number of constituencies would be equal to the total  number  of  seats,
excluding two seats reserved for the categories as  provided  under  section
74 B of the Act.
17.   Further, the language of sub rule (9) of  Rule  3-A,  makes  it  clear
that the Rule Making Authority has graced the Collector with  the  power  to
delimit the constituency/constituencies prior  to  the  publication  of  the
voters list. The delimitation of the constituency/constituencies  should  be
prior  to  the  preparation  of  the  voters'  list  and/or  in   any   case
simultaneous with the preparation of voters' list but the  voters  list  has
to be as per the delimitation of the constituencies.  The same is  the  case
when the delimitation of the constituency is required  to  be  made  by  the
Collector prior to the publication of the list of voters.
18.   Thus, when sub-rule (8) is read along with sub-rule (9) of  Rule  3-A,
where the society has the area of operation exceeding one village,  even  if
the bye laws provide for single constituency, the seats provided by the  bye
laws has to be  equal  to  the  number  of  constituency/constituencies  and
therefore, for each seat, a separate constituency would be  required  to  be
delimited and if not so delimited by the society, of its own,  it  would  be
required for the Collector to exercise his power under sub rule (9) of  Rule
3-A of the Rules for the delimitation  of  the  constituency  in  accordance
with the mandate of sub rule (8) of Rule 3-A  and  thereafter,  the  process
for publication of the voters' list is to be given effect to.
19.   The power conferred with the Collector for  the  delimitation  of  the
constituency under sub  rule  (9)  is  independent  and  separate  and  only
applicable in the case when the election of the members  of  any  Management
Committee of  specified  society  is  scheduled  to  be  held.  Further,  as
specified in the sub rule (9) of Rule 3-A, such powers are to  be  exercised
by the Collector, notwithstanding anything contained  in  the  bye  laws  of
such society. The Collector has to exercise the power  for  delimitation  of
the constituencies prior to the publication of the list of voters.  Further,
as rightly stated by the High Court in the impugned  judgment  that  when  a
specific power is  conferred  in  a  specific  contingency  to  a  different
authority, such power has to be read in addition to the  general  power  for
the amendment in the bye-laws. Thus, the bye laws of any society have to  be
in conformity with the provisions of the Act and the Rules.
20.   It is obligatory on the part of any specified society to  bring  about
the amendment in its  registered  bye-laws  in  conformity  with         the
provisions of the Rules and more        particularly Rule 3-A (8)  and  (9).
But if the society/societies have not amended their bye laws, the  same  has
to be in conformity with the said Rules by  getting  suitably  amended;  the
effect of the Rule  would  not  stand  nullified  or  inoperable.  For  this
purpose sub rule (9) gives  the  power  to  the  Collector  to  delimit  the
constituency/constituencies of a society. Thus, once the area  of  operation
of any society exceeds more than one  village  as  per  sub  rule  (8),  the
number of constituencies is required to be bifurcated by  the  Collector  in
exercise of his power, so as to make it equal to the total number  of  seats
to see that effective representation is given to the members of the  society
for  giving  fair  representation  to  its  members  to  elect  their   true
representatives to participate in the affairs of the Society as part of  the
Managing Committee Members, as  the  society  must  be  represented  by  its
elected representatives in a democratic process to effectively represent  in
the  Managing  Committee  which  is  an  indispensible  parameter  for   the
democratic institutions to  achieve  the  laudable  object  of  Co-operative
movement  in  the  country,  which  is  the  constitutional  philosophy   as
enshrined in Chapter XI A of the Constitution, which has been  inserted   by
way of constitutional amendment.
21.   Thus, the bye laws of any specified society under  the  provisions  of
the Co-operative Societies Act cannot  be  permitted  to  prevail  over  the
statutory Rule 3-A (8) & (9) of the Rules. The moment the area of  operation
of any specified society exceeds one village, sub rule (8) would  come  into
play, irrespective  of  the  fact  that  whether  members  of  such  society
constitute homogenous group or heterogeneous group.
22.   Further, the elections to either the Managing Committee or Board  must
be held democratically by giving  representation  to  all  its  members,  as
stated in the preamble of our Constitution, which is held to  be  the  basic
feature of the Constitution by the constitutional Bench  of  this  Court  in
the cases of Kesavananda Bharati Sripadagalvaru v. State  of  Kerala[7]  and
Kuldip Nayar v. Union of India[8]. Under Article 13 (2) of the  Constitution
of India, Rules are also regarded as  laws.  However,  the  Rules  and  laws
framed by the State Legislatures and the appropriate government  cannot  run
parallel with the principles of the Constitution and the  statutory  objects
of the Co-operative Societies Act cannot be disregard  as  it  would  defeat
the purpose of Section 243ZK of the Constitution  of  India  (Ninety-Seventh
Amendment) Act 2011, inserted as  per  the  97th  Constitutional  Amendment,
which provides for election of the members  of  the  Managing  Committee  or
Board. If the rules provide
that not more than 7 representatives can be elected  from  a  specified  Co-
operative Society to the Board or Management Committee, then it is the  duty
of the societies to adhere to it and not exceed the specified number.  Thus,
the  bye  laws  of  a  Co-operative  Society,  in  order  to   achieve   the
constitutional object, must be brought at par with the  laws  and  statutory
provisions of the Societies Act. They  cannot  override  the  provisions  of
State or Central laws. In Kuldip Nayar's  case  (supra),  this  Court  after
referring to various Constitutional Bench judgments and other  judgments  of
this Court for the purpose of interpretation made by this Court in  relation
to phrases used in the  Preamble  of  the  Constitution  of  India  such  as
"sovereign democratic republic" and "Parliamentary democracy" as  the  basic
feature of the Constitution of India, held as under:-
"101. In the same case (Indira Nehru Gandhi case, reported in 1975 Supp  SCC
1), Chandrachud, J. in para 691 of his separate  judgment  ruled  as  under:
(SCC pp. 261-62)

"Ordinary laws have to answer two tests for  their  validity:  (1)  The  law
must be within the legislative competence of the legislature as defined  and
specified in Chapter I, Part XI of the Constitution, and  (2)  it  must  not
offend  against  the  provisions  of  Articles  13(1)   and   (2)   of   the
Constitution. 'Basic structure', by the majority judgment, is not a part  of
the fundamental rights nor indeed  a  provision  of  the  Constitution.  The
theory  of  basic  structure  is  woven  out  of  the  conspectus   of   the
Constitution and the amending power is subjected  to  it  because  it  is  a
constituent power. 'The power to amend  the  fundamental  instrument  cannot
carry with it the power to destroy its essential features'-this,  in  brief,
is the arch of the theory of basic structure. It is wholly out of  place  in
matters  relating  to  the  validity  of  ordinary  laws  made   under   the
Constitution."

   XXX           XXX              XXX

142. Article 80(4) prescribes the manner  of  voting  and  election  of  the
representatives of States for the Council of States in the following terms:
"80. (4) The representatives of each State in the Council  of  States  shall
be elected by the elected Members of the Legislative Assembly of  the  State
in accordance with the system of proportional  representation  by  means  of
the single transferable vote."

XXX         XXX             XXX

336. In the words of Jaganmohan Reddy, J.(Kesavananda Bharati case  reported
in (1973) 4 SCC 225) in his separate judgment, the 1"elements of  the  basic
structure are indicated in  the  Preamble  and  translated  in  the  various
provisions of the Constitution" and the  "edifice  of  our  Constitution  is
built upon and stands on several props" which, if removed  would  result  in
the Constitution collapsing and which include the principles  of  "sovereign
democratic republic"  and  "parliamentary  democracy",  a  polity  which  is
"based on a representative system in which people holding opposing  view  to
one another can be candidates and invite the electorate to  vote  for  them"
(SCC p. 638, para 1159).

341. Some of the important  holdings  were  set  down  in  para  92  of  the
aforementioned (Mohinder Singh Gill v. Chief  Election  Commr.  reported  in
(1978)  1  SCC  405)  judgment  "for  convenience"  and  to  "synopsise  the
formulations". The holdings included the following: (SCC p. 452)

[pic]"92. (2)(a) The Constitution contemplates  a   free  and  fair

election  and  vests  comprehensive  responsibilities  of   superintendence,
direction  and  control  of  the  conduct  of  elections  in  the   Election
Commission. This responsibility may cover powers, duties  and  functions  of
many sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are  laid  on  its  plenary  character  in  the
exercise thereof. Firstly, when Parliament  or  any  State  Legislature  has
made valid law relating to or in connection with elections, the  Commission,
shall act in conformity with, not  in  violation  of,  such  provisions  but
where such law is silent Article 324 is a reservoir of power to act for  the
avowed purpose of, not divorced  from,  pushing  forward  a  free  and  fair
election with expedition. Secondly, the Commission shall be  responsible  to
the rule of law, act bona fide and be  amenable  to  the  norms  of  natural
justice  insofar  as  conformance  to  such  canons   can   reasonably   and
realistically be required of it as fairplay-in-action in  a  most  important
area of the constitutional order viz. elections.  Fairness  does  import  an
obligation to see that no wrongdoer candidate benefits by his own wrong.  To
put the matter beyond doubt, natural justice enlivens  and  applies  to  the
specific case of order for total re-poll, although not in full  panoply  but
in flexible practicability. Whether it has been complied with is  left  open
for the Tribunal's adjudication."

343. The case Kihoto Hollohan v. Zachillhu (reported in (1992 Supp  (2)  SCC
651) also resulted in similar views being reiterated by this  Court  in  the
following words: (SCC p. 741, para 179)

"179. Democracy is a part of the basic structure of  our  Constitution;  and
rule of law, and free and fair elections are basic  features  of  democracy.
One  of  the  postulates  of  free  and  fair  elections  is  provision  for
resolution of election disputes as also adjudication  of  disputes  relating
to subsequent disqualifications by an independent authority."
                           (emphasis laid by this Court)
In Rameshwar Prasad (VI) v. Union  of  India[9],  this  Court  has  held  as
under:-
"229. Lord Greene said in 1948 in the famous Wednesbury  case  (reported  in
(1948) 1 KB 223) that when a statute gave discretion to an administrator  to
take a decision, the scope of judicial review would remain limited. He  said
that interference was not  permissible  unless  one  or  the  other  of  the
following conditions was satisfied, namely the order was  contrary  to  law,
or  relevant  factors  were  not  considered,  or  irrelevant  factors  were
considered; or the decision was one which no reasonable  person  could  have
taken.......
257. Therefore, the well-recognised position in law is that  purity  in  the
electoral process and the conduct of the elected representatives  cannot  be
isolated from the constitutional requirements.  "Democracy"  and  "free  and
fair election"  are  inseparable  twins.  There  is  almost  an  inseverable
umbilical cord joining  them.  In  a  democracy  the  little  man-voter  has
overwhelming [pic]importance and cannot be hijacked from the course of  free
and fair elections......".
                           (emphasis laid by this Court)
In Mohinder Singh Gill v. Chief Election Commr.[10], this Court has held  as
under:-
"2. Every significant case has an unwritten  legend  and  indelible  lesson.
This appeal is no exception, whatever its formal result. The message, as  we
will see at the end of the decision, relates to the pervasive philosophy  of
democratic elections which Sir  Winston  Churchill  vivified  in  matchless,
words:

"At the bottom of all tributes paid to democracy is the little man,  walking
into a little booth, with a little  pencil,  making  a  little  cross  on  a
little bit of paper - no amount of rhetoric  or  voluminous  discussion  can
possibly diminish the overwhelming importance of the point."

23. Democracy is government by the people. It is a  continual  participative
operation, not a cataclysmic, periodic exercise.  The  little  man,  in  his
multitude, marking his  vote  at  the  poll  does  a  social  audit  of  his
Parliament plus political choice of this proxy. Although the full flower  of
participative Government rarely blossoms, the minimum credential of  popular
Government is appeal to the  people  after  every  term  for  a  renewal  of
confidence.  So  we  have  adult  franchise   and   general   elections   as
constitutional compulsions. "The right of election is the  very  essence  of
the constitution" (Junius). It needs little argument to hold that the  heart
of the Parliamentary system is free and fair  elections  periodically  held,
based on adult franchise, although social and economic democracy may  demand
much more.
46. It is an interesting sidelight that in America it has been  held  to  be
but fundamental fairness that the right  to  an  administrative  hearing  is
given. Natural justice is being given access to the United  Nations.  It  is
notable that Mathew, J. observed in Indira Gandhi (p. 513, see p. 128,  para
303)(reported in 1975 Supp SCC 1):

"If the amending body  really  exercised  judicial  power,  that  power  was
exercised in violation of the principles of natural justice of audi  alteram
partem. Even if a power is given to  a  body  without  specifying  that  the
rules of natural justice should be observed in exercising it, the nature  of
the power would call for its observance............"

                           (emphasis laid by this Court)

In view of the law laid down by this Court in the aforesaid cases,  we  have
to hold that the sub rules (8) & (9) of  Rule  3-A  are  applicable  to  the
appellant society/Societies as the  area  of  operation  is  more  than  one
village  and  therefore  the  orders  passed  by  the  Collector   for   the
delimitation  of  the  constituency/constituencies  cannot  be  said  to  be
illegal. Further, we hold that there will be  no  proper  representation  of
the  voters  to  their   respective   specified   societies   for   electing
representatives of their area which would materially affect  the  result  of
the election and the impugned provisions and Rules are legally justifiable.

      For the reasons stated supra, no relief can be granted  in  favour  of
the appellant-societies by setting aside the election notification  and  the
prayer for setting aside the impugned judgement  and  orders.   Hence,  they
deserve to be dismissed. The respondents are directed to hold  the  election
to the specified societies as per sub rule (8) and (9) of Rule  3-A  of  the
Rules as are applicable to them under  the  Gujarat  Co-operative  Societies
Act after  the  delimitation  of  the  constituency/constituencies  of  such
societies are made by the Collector as stated under sub-rule (9) of Rule  3-
A of the Rules.
23.   For the reasons stated supra, we do not find  any  reasons  whatsoever
to interfere with the impugned judgment and orders of the High Court. It  is
needless to make observation that the  State  government  and  its  officers
could not give effect to the provisions of the  Co-operative  Societies  Act
and Rules for some time on account of  which  some  of  the  societies  have
challenged the impugned provisions and Rules before  the  High  Court,  even
after litigation was concluded by the  Division  Bench  at  one  stage,  the
State and its officers have not  implemented  the  impugned  provisions  and
Rules without any valid reasons. The members of the specified  societies  in
the State have a right to elect  their  true  representatives  to  represent
them as Managing Committee or Board members  of  the  District  Co-operative
Societies  and  other  allied   societies   after   de-limitation   of   the
constituency/ constituencies and therefore, we direct them to see  that  the
impugned provisions and Rules must be implemented forthwith without  further
delay and submit compliance report within 8 weeks from the  date  of  report
of the copy of this order.
24. The appeals are dismissed. No Costs.



     .....................................................................J.

                        [V. GOPALA GOWDA]



     .....................................................................J.

    [ADARSH KUMAR GOEL]


New Delhi,
November 19, 2014

ITEM NO.1A-For Judgment      COURT NO.11               SECTION IX

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A.NO............/2014 ARISING FROM SLP(C) No(s).  26017/2013

RAJKOT DISTT COOPERATIVE BANK LTD                  Petitioner(s)

                                VERSUS

STATE OF GUJARAT AND ORS                           Respondent(s)
WITH
C.A.NO............/2014 ARISING FROM SLP(C) No. 13201-13202/2012
C.A.NO............/2014 ARISING FROM SLP(C) No. 12219-12222/2012
C.A.NO............/2014 ARISING FROM SLP(C) No. 29726/2013
C.A.NO............/2014 ARISING FROM SLP(C) No. 27573/2013
C.A.NO............/2014 ARISING FROM SLP(C) No. 29727/2013
C.A.NO............/2014 ARISING FROM SLP(C) No. 29728/2013

Date : 19/11/2014 These appeals was called on for JUDGMENT today.

For Petitioner(s)
                     Mr. Mohit D. Ram,Adv.

                     M/s. Khaitan & Co.

                     Mr. Devendra Singh,Adv.
                     Mr. Aniruddha P. Mayee,Adv.
                     Mr. Subramonium Prasad,Adv.

For Respondent(s)       Ms. Hemantika Wahi,Adv.
                     Ms. Pratibha Jain,Adv.

                     Mr. A. Venayagam Balan,Adv.
                     Mr. Vikash Singh,Adv.

            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship  and  Hon'ble  Mr.  Justice  Adarsh  Kumar
Goel.
            Leave granted.
            The appeals are dismissed in terms of the signed judgment.

    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)
-----------------------
[1]    (1984) 2 GLR 1244
[2]    (2004)1 GLR 310
[3]    (2010) 3 GLR 2154
[4]    (2012)1 GLH 245
[5]    (2012) 2 GLR 1522
[6]    (1972) 1 SCC 719
[7]     (1973) 4 SCC 225
[8]    (2006)7 SCC 1
[9]    (2006) 2 SCC 1

[10]   (1978) 1 SCC 405

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.