IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1106 of 2003 In CIVIL APPLICATION NO. 7111 of 2003 In SPECIAL CIVIL APPLICATION NO. 13985 of 2003 With CIVIL APPLICATION NO. 7657 of 2003 In LETTERS PATENT APPEAL NO. 1106 of 2003 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law as NO to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ================================================================ AHMEDABAD DISTRICT CO. OP. BANK LTD Appellant(s) Versus RASIKLAL SOMNATH PATEL & 4 Respondent(s) ================================================================ Appearance:
MR KETAN D SHAH, ADVOCATE for the Appellant(s) No. 1 MR TUSHAR MEHTA, ADVOCATE for the Appellant(s) No. 1 DELETED for the Respondent(s) No. 1 , 3 MS CM SHAH, AGP for the Respondent(s) No. 2 , 4 - 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 11/12/2012 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. The present Letters Patent Appeal has been preferred by the appellant-original applicant in Civil Application No. 7111/2003 in Special Civil Application No. 13985/2003 challenging the impugned order passed by the learned Single Judge dated 08/10/2003 in Civil Application No. 7111/2003 by which the learned Single Judge while disposing of the said application made certain observation and issued direction directing the State Government to not only examine the matter but also directed to submit the compliance report within two months as to what steps the Government is proposing to take.
2. The facts leading to the present Letters Patent Appeal in a nutshell are as under;
2.1. One Shri Rasiklal Somnath Patel preferred Special Civil Application No. 13985/2003 before the learned Single Judge challenging the final voters list in connection with the election of the Board of Directors of the appellant Bank-Ahmedabad District Co-operative Bank Ltd. In the said Special Civil Application, the appellant Bank-original applicant-Ahmedabad District Co-operative Bank Ltd. submitted Civil Application No. 7111/2003 permitting it to be impleaded as party respondent in the Special Civil Application. However, when the aforesaid Civil Application came to be heard by the learned Single Judge, the learned advocate appearing on behalf of the applicant requested the learned Single Judge to permit him to withdraw the Civil Application by submitting that as the main Special Civil Application was being withdrawn the said Civil Application does not survive. The learned Single Judge while disposing of the said Civil Application made certain observations with respect to participating in the proceedings by the concerned Society/Bank/market committee and misusing the fund for litigation in the Court of law. The learned Single Judge observed that the body/market committee/society and/or Bank does not have any locus to participate in the election proceedings, which is either between two individuals and/or where the dispute by an individual is against the authority/authorities conducting the election. While disposing of the said Civil Application, the learned Single Judge in paragraph nos. 1 to 5 observed as under;
“1. In a matter of election of a statutory body, may be Dist.Coop.Bank, Market Committee, any other Local Self-Govt like Gram Panchayat, Taluka Panchayat or Dist.Panchayat or any such statutory body, the election is to be held by the election officer or the authority constituted for such purpose. In the matter where it is a primary level cooperative society or the society other than specified cooperative society the election is to be held by the general body or the election officer who would be the officer of the society itself then situation may be different. However, so far as specified cooperative societies, agricultural produce market committees and other local self-Govt bodies are concerned, the election is being conducted and regulated by the authority constituted under the statutory provisions of either Act or Rules. It is obligatory on the part of such statutory authorities to see that the election is conducted in a free, fair and democratic manner and to follow the statutory provisions provided for regulating such election. It is wellknown that during the course when the elections are being conducted by such statutory authorities, there are likely to be disputes by either voters or by the persons who are contesting the elections or other persons who are unhappy with election or who are dissatisfied with the action of the election officer. In all such bodies, the election officer is an officer of the Government and to be more specific so far as the election of the Specified Coop. Societies are concerned, it is the Dy. Collector who is holding the election. So far as Market Committees are concerned, it is the authorised officer or the District Registrar and Assistant or Deputy Director of Agricultural Marketing under the control of Director of Agricultural Marketing and Rural Finance who is holding the election and in the matter of Gram, Taluka and District Panchayats it is the State Election Commission which is holding the election.
2. Whenever any dispute is being raised pertaining to any action of the election authority it is essentially a dispute between the person who is aggrieved by the action of the election authority, at the most, additionally person who is an objector or who has filed objections can be said to be a necessary or proper party but so far as the body whose election is being held would not be directly connected with such dispute because the election is under full control of election authority and in court or before the higher authority it would be the duty of the election authority to defend the action. The presence of such body may be required only in extraordinary circumstances that if the election authority is not having sufficient record to defend its own action. I am inclined to observe as such because if in every election dispute the body whose election is being held is impleaded either by the person who is raising the dispute as party or if the institution or body moves for being impleaded as party it may result into saddling the institution itself with heavy cost of litigation and such can never be the purpose of holding the election through the election officer.
3. Even otherwise also, the election is being held by the authority and once when the election is on or the election process is on the body in power whose statutory term is over is only a care taker until the election is held and until newly elected body is allowed to assume the office In a matter where elections of legislative assemblies and parliament are declared, the Government in power is not in a position to take any policy decision because of the directives of the Election Commission. Similarly, there is no reason as to why such analogy should not be applied in a matter the aforesaid societies, market committees or Panchayats where elections are more or less at par with the elections of legislative assemblies and Parliament. So far as Gram Panchayats, Taluka Panchayats and Dist. Panchayats are concerned the elections are being held by the State Election Commission and they are at 100% par with the elections of Legislative Assemblies and Parliament. So far as the specified societies are concerned after the amendment of 1982 read with statutory rules the election of Managing Committee of such societies is placed more or less at par with the elections of legislative assemblies and Parliament. So far as the Market Committees are concerned such elections are being held under the direct control and supervision of the Director of Agricultural Market and Rural Finance which is a statutory authority. In any event, those who are facing the election after the expiry of statutory term or on the verge of expiry of statutory term should not be allowed to use the funds of the body with a view to see that convenient atmosphere is created at the ensuing election.
4. Even otherwise also, whether to get impleaded in a litigation which is pending before the competent court or whether the litigation should be filed or not are largely and essentially the policy decision which normally the care taking body should not take decision unless it is extremely required.
5. This court while exercising power under Article 226 of the Constitution of India may not streamline such attempt on the part of the outgoing elected body and such policy decision on the part of care taking body which is facing the election, but it would be for the Secretary, State Government in consultation with the Registrar, Cooperative Societies or in consultation with the Director of Agricultural Marketing & Rural Financing and it would be for the Secretary, Panchayats Department in consultation with the Development Commissioner to formulate and lay down the policy or guidelines so that such outgoing elected bodies are not allowed to misuse the fund for litigation in the court of law with which it is not directly concerned and it is only the concern of the election officer.
Hence, the State Government should examine the matter and report to this court within two months from today as to what steps the Government is proposing to take with a view to see that those who are facing election and/or are only care taker of the aforesaid bodies are not in a position to misapply or misuse the fund or even use the fund for policy matters in respect of litigation which essentially is to be defended by the election officer or election authority.”
2.2. By observing the above, the learned Single judge directed that the State Government should examine the matter and report to this Court within two months as to what steps the government is proposing to take with a view to see that those who are facing election and/or are only care taker of the aforesaid bodies are not in a position to misuse the fund for policy matters in respect of the litigation which essentially is to be defended by the Election Officer and/or Election authority. The learned Single Judge also directed the Registry to send the writ to the Secretary, Cooperative Department and the Secretary, Panchayat Department for compliance of the said order. Being aggrieved and dissatisfied with the impugned order, more particularly, the directions issued by the learned Single Judge in operative portion of the order, the appellant- original applicant has preferred the present Letters Patent Appeal.
3. Shri N.D. Nanavati, learned Senior advocate appearing on behalf of the appellant has submitted that as such the learned Single Judge has materially erred in issuing the directions to the State Government to submit the compliance report within two months, more particularly, in an application, which was as such withdrawn by the applicant. It is submitted that even if such observations are made by the learned Single Judge and such directions are issued, in that case, before issuing such directions, the learned Single Judge ought to have given an opportunity to the applicant. It is submitted that therefore the observations and/or directions issued by the learned Single Judge in the impugned order are absolutely unwarranted and/or beyond the scope of the application. It is further submitted that such an observation and/or direction could have been issued provided the learned Single Judge was called upon to decide the application on merits and while dismissing the application, the learned Single Judge could have made such an observations and/or directions. It is submitted that the application was only required to be disposed of as not pressed, in view of withdrawal of the main Special Civil Application. In the alternative, it is submitted by Shri Nanavati, learned Senior dvocate appearing on behalf of the appellant that even if whatsoever is observed by the learned Single Judge is treated to be and/or considered to be his views and the observations, no direction could have been issued directing the State Government to consider the same and submit the compliance report within two months.
4. Having heard Shri Nanavati, learned Senior advocate appearing on behalf of the appellant and Ms. C.M. Shah, learned AGP appearing on behalf of the respondent-State and considering the impugned order passed by the learned Single Judge, we suggested that we may dispose of the present Letters Patent Appeal by observing that whatsoever is observed by the learned Single judge in the impugned order be treated as his own views and observation and it is for the State Government to consider the same in accordance with law and on its own merits and whatsoever is observed by the learned Single Judge may not be treated as a direction.
Shri Nanavati, learned Senior Advocate appearing on behalf of the appellant has submitted that he has no objection if the present Letters Patent Appeal is disposed of accordingly.
6. Even otherwise, on considering the entire order, it appears to the Court that as such the learned Single Judge has made the observations as stated hereinabove and has directed the State Government to examine the matter and report to this Court within two months from today as to what steps the Government is proposing to take with a view to see that those who are facing the election and/or care taker of the concerned bodies may not misapply or misuse the fund and/or use the fund for policy matters in respect of the litigation which essentially is to be defended by the Election Officer or Election authority. From the aforesaid, it appears that as such the learned Single Judge has not directed the State Government to evolve a particular policy. The learned Single Judge has only directed to examine the matter and submit the report.
7. Under the circumstances, the present Letters Patent Appeal is disposed of by observing that whatsoever observations are made by the learned Single Judge in the impugned order be treated as an observation made by the learned Single Judge and the same may not be construed as a direction and/or the concerned authority, considering the observations, to take appropriate decision in accordance with law and on its own merits.
8. With this, the present Letters Patent Appeal is disposed of. No costs.
CIVIL APPLICATION No. 7657/2003
In view of the order passed in the Letters Patent Appeal, no order in the Civil Application.
(M.R.SHAH, J.)
(S.H.VORA, J.)
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