(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) Learned advocate Mr.B.S. Patel appearing for the contesting respondents has filed undertaking on affidavit to the effect that only required number of members of the Managing Committee, permissible under the by-laws of the respective society will be exercising their right to vote (franchise) and the members in excess of that number will not be casting their vote in the ensuing elections.
2. On this undertaking on affidavit having been filed the objection with regard to the same stands taken care of.
3. On request of learned senior advocate Mr.N.D. Nanavati appearing with Mr.Ketan Shah for the petitioners it is clarified that the objectors have not waived other objections, if any, raised by them with regard to the voters' list or any other aspect related to the election. It will be open for them to take recourse to the remedy available to them with regard to those objections, but so far as the objection of including more number of candidates in the voters' list (in excess to the number prescribed in the by-laws) is taken care of by those affidavits.
4. So far as Special Civil Application No.2914 of 2012 is concerned learned senior advocate Mr.Nanavati invited attention of the Court to the undertaking on affidavit, wherein the relevant part of para 1 reads as under:
" .. .. The decision is taken with the express consent of the one member, i.e. Becharbhai Vaghjibhai Thakor who is not going to cast their (sic., his) franchise and regarding another member, i.e. Rajubhai Babubhai Thakor is passed away on 13.1.2012. .. .."
5. The learned senior advocate submitted that when a member had passed away on 13th January 2012; how his name could have been forwarded and included in the voters' list. Besides, the learned senior advocate invited attention of the Court to the by-laws of the society, a copy of which is found at page 41, wherein item no.7 pertains to the 'Managing committee'. By-law 35A provides that, "Managing Committee of the society will consist of not less than five and not more than seven members."
(emphasis supplied) The learned senior advocate submitted that in light of the by-laws of the society only 7 members are entitled to vote in the ensuing elections.
To the aforesaid submission learned advocate Mr.B.S. Patel, on instructions from his client, states that he will be furnishing names of two members to the authorized officer, who will not be voting in the ensuing election and from Vishrampura Seva Sahkari Mandali only 7 members will vote. Learned advocate Mr.Patel at this juncture invited attention of the Court to item at serial no.21-Ardi Seva Sahkari Mandali Limited in the voters' list. Members of the Managing Committee of Ardi Seva Sahakari Mandali Limited are mentioned at serial nos.227 to 237, totalling to 11 members. Learned advocate Mr.Patel submitted that even Ardi Seva Sahakari Mandali Limited can have only 9 voters. Learned senior advocate Mr.Nanavati submitted that the law must prevail and only such number of members be permitted to vote as is permissible under the law.
Such lapses are indicative of the fact that the authorized officer has failed to notice such discrepancy. Learned advocate Mr.Maulik Nanavati appearing for the authorized officer states before this Court that the authorized officer will abide by the directions of this Court and will rectify such mistakes after close scrutiny of the voters' list keeping in mind the by-laws of respective Seva Sahkari Mandalis - societies, and in the event any such discrepancies are noticed the number of persons permissible under the by-laws of the respective society only will be permitted to vote. Order accordingly.
The authorized officer, who is personally present in the Court expressed his regret for the said lapses. He tendered unconditional apology for the same and stated that a written apology will be filed in this regard in a day or two.
6. With these observations these petitions are disposed of. At the request of the learned senior advocate it is again clarified that it will be open for the petitioners to pursue other objections in accordance with law. It goes without saying that the society will have right to reply to those objections according to law.
(RAVI R. TRIPATHI, J.) (G.B.
SHAH, J.) karim Top