(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1.0 Learned counsel Mr. B. T. Rao has appeared for respondent No. 5. The petitioner is stated to be the Member of the Managing Committee of Kisan Seva Sahakari Mandali Limited, which is a primary level cooperative society, registered under the Cooperative Societies Act, 1961 ('the Act' for short). His name has been forwarded to the Jasdan Taluka Sahakari Kharid Vechan Sangh Limited, which is a Specified Society to which the aforesaid primary society is affiliated. According to the petitioner, his name has already been entered in the Voters' List for the election of Managing Committee of the Specified Society and no objection is raised to such inclusion of the name of the petitioner in the Voters' List. Thereafter, he has filed his nomination for being elected to the Committee of the Specified Society and respondent No. 4 herein has objected to the nomination of the petitioner. That objection is decided by the impugned order dated 17th July 2012 of the Election Officer under the provisions of Rules 18 to 23 of the Gujarat Specified Cooperative Societies Election to Committees Rules, 1982 ('the Rules' for short). According to the impugned order, nomination of the petitioner is cancelled and rejected mainly on the ground that pursuant to an interim order of the Registrar's Board of Nominees, in Lavad Suit No. 182 of 2011, Managing Committee of the Primary Society to which the petitioner belongs, could not have functioned and could not have legally forwarded the name of its delegate. In fact, according to the objector, the Managing Committee of the primary society could not be said to have come into existence at all.
2.0 It was argued by learned counsel Mr. Mangukiya appearing for the petitioner that in fact, the interim order of the Board of Nominees was to the effect that the Annual General Meeting of the society could not be held outside the office of the society and no office bearers of the Primary Society could be elected thereat. It was also part of the interim order that the note of the result of the election of the Managing Committee may not be taken at such meeting. It was pointed out from an elaborate order dated 5th December 2011 of learned Single Judge of this Court in Special Civil Application No. 17200 of 2011 that after imposition of such order on the primary society, an attempt was made to appoint Custodian under the provision of Section 74D of the Act and such attempts at preventing the Managing Committee of the society from working have been deprecated in no uncertain terms. As observed in that order dated 5th December 2011:
"14. From the record, therefore, this Court prima facie cannot believe that respondent no.4 in his capacity as District Registrar was not aware about the fact that the election of the petitioner society had taken place and that the new Members have been elected....."
16. It is further worthwhile to note that even though statement was made before this Court in the earlier writ petition that the notices would be served, in fact, no notices have been served upon petitioner nos. 2 to 15 who are Members of the Managing Committee of petitioner no.1 Society. It transpires from the record that respondent no.4 - District Registrar issued Show Cause Notice dated 18.10.2011 and sent copies to the Secretary of the petitioner no.1 - Society. It further transpires from the record that vide communication dated 24.10.2011 addressed to respondent no. 4 by the Secretary of the Society, respondent no.4 - District Registrar was informed that old committee is not functioning since 17.6.2011 newly elected Members have started managing affairs of the Society and has returned notices without serving and it is further categorically stated that since 17.6.2011 newly elected Managing Committee is functioning. In spite of the same the order passed by respondent no.4 herein dated 12.11.2011 thus record the receipt of the said communication dated 24.10.2011. Still-however, the order of appointment of Custodian u/s. 74D of the Act is passed, which, in prima facie opinion of this Court, is illegal and the said order is passed in defiance to the order passed by this Court in Special Civil Application No. 6864 of 2011.
2.1 It was submitted on the basis of above observations that while the Managing Committee of the primary society was very much in place and functioning since 17th June 2011, the impugned order is based on an obviously incorrect premise that by virtue of an interim relief of the Board of Nominees, the Managing Committee could not have passed the Resolution selecting the petitioner as delegate of the Primary Society for contesting election of the Managing Committee of the Specified Society. It was further contended by Mr. Mangukiya that the respondents were apparently making one after the other attempts at nullifying the result of the election at which the petitioner was elected in the Managing Committee of the primary society and to prevent him from contesting further election in the Specified Society.
3.0 Learned counsel Mr. B. T. Rao appearing for respondent No. 5 submitted that there was some obvious anomaly in the matter of dates mentioned in the aforesaid order of this Court, although they are not decisive or conclusive. Learned Assistant Government Pleader submitted on instructions that the interim order made in Lavad Suit No. 182 of 2011 was by now, even confirmed by order dated 19th January 2012 of the Member of the Registrar's Board of Nominees, Rajkot, but the import and effect of the interim order in the aforesaid Lavad Suit No. 182 of 2011 appears to have been misunderstood by the authorities. However, in view of the clear finding recorded in the aforesaid order of the learned Single Judge of this Court and admission of learned advocate for the respondent No. 5 recorded therein, it could no longer be contended that the Managing Committee of the primary society was not in existence or not working. If that be so, the impugned order would lose its substratum and cannot be sustained.
4.0 Accordingly, the petition is allowed. The impugned order dated 17th July 2012 of the Election Officer, Jasdan Taluka Sahakari Kharid Vechan Sangh Limited and Mamlatdar, Jasdan is set aside. Rule is made absolute accordingly with no order as to costs. Consequently, the Nomination Form submitted by the petitioner shall be accepted in accordance with law.
4.1 This order is made in presence of the Election Officer and learned Assistant Government Pleader has undertaken to convey and give effect to this order.
[ D. H. Waghela, J. ] [ G. B. Shah, J. ] hiren Top