Election Officer And Deputy Collector

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7750 of 2012 For Approval and Signature:

HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE G.B.SHAH ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of 4 law as 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 ?

====================================== ARVINDBHAI SINGHABHAI GAMIT Versus ELECTION OFFICER AND DEPUTY COLLECTOR AND ANOTHER ====================================== Appearance :

MR BS PATEL with MR UMANG OZA for Petitioner. MR NIRAJ ASHAR, AGP for Respondent No.1.

MR RR MARSHALL, Senior Advocate with MR ARPIT A KAPADIA for Respondent No.2.

====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date : 24/07/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)

1. Invoking Articles 14, 19 and 226 of the Constitution, the petitioner, chairman of a primary level cooperative society, has sought to challenge order dated 7.6.2012 of the Election Officer and Deputy Collector, City Prant Surat, whereby his nomination for election to the Committee of Surat District Cooperative Milk Producers Union Limited (“SUMUL” for short) has been rejected on the basis of objections raised by respondent no.2 herein, a rival candidate. SUMUL is a 'specified society' under Section 74­C of the Gujarat Cooperative Societies Act, 1961 (for short, “the Act”), and therefore, election of members of its committee is governed by the provisions of Chapter XI­A of the Act and has to be conducted in the manner laid down by or under that Chapter. Chapter XI­A of the Act consists of Section 145­A to Section 145­Z of the Act and in exercise of the powers conferred by Section 145­Y the State Government has made the Gujarat Specified Cooperative Societies Election to Committees Rules, 1982 (for short, “the Rules”), to provide for and to regulate matters relating to various stages of the election.

2. According to the petition, the petitioner being the Chairman of Shri Pipalkuva Milk Producers Cooperative Society Limited, he was authorized by that society by passing a resolution to cast his vote and contest the election for the committee of SUMUL. He accordingly submitted his nomination papers, for receiving which the appointed date under the election programme published under Rule 16 was from 29.5.2012 to 4.6.2012. The date for publication of list of nomination forms received was 5.6.2012; and the date for scrutiny of nomination form was 7.6.2012, from 12 p.m. The date for publishing list of approved nomination forms was also 7.6.2012, after the procedure for checking was over. The dates for withdrawal of nomination forms were from 8.6.2012 to 14.6.2012.

2.1 According to the petition itself, a candidate was required to have deposited milk in the respective society for 200 days, twice on each day, and he must not be a defaulter in repaying his debt to the society. According to the petitioner, he had complied with both the conditions and documents in that regard were produced before the Returning Officer in the form of duly signed certificate of SUMUL and the primary society of which he was the Chairman.

2.2 It transpires from the affidavit of respondent no.2, the objector and rival candidate, that he had submitted his objections against acceptance of nomination of the petitioner on 4.6.2012, one of which was in respect of the petitioner being a debtor of the primary society and the other was for not having supplied milk for 200 days. He has clearly stated on oath that on the day of scrutiny i.e. 5.6.2012, he had submitted another objection stating that as per record of the primary society, the petitioner was not made any payment for the milk supplied; and also stated that, after submission of his objection on 4.6.2012, the petitioner had tampered the computer records of the society and got entered his name as a milk supplier in place of his son at Code No.0189. He had produced certified copy of the list of milk suppliers of the primary society, before the Returning Officer and even a certificate of Secretary of that society stating that the petitioner had not supplied milk during the entire year from 1.4.2011 to 31.3.2012. According to respondent no.2, the certificates relied upon by the petitioner were forged or concocted after tampering with the record. As against such allegations, the petitioner has, by filing an affidavit in rejoinder stated that the objection dated 4.6.2012 of the respondent itself revealed that the amount shown to be outstanding against the petitioner were as on 31st March 2011 and not as on 31st March 2012 as alleged in paragraph 3 of the affidavit of respondent no.2. As for the record of supplying milk, it is alleged by the petitioner that the respondent has concocted and produced the computerized record with the support of the secretary, who has been missing. It is also alleged on oath that, in fact respondent no.2, with a view to being elected uncontested, manipulated the record with the help of secretary of the society who is not available in the village for a number of days. It is also alleged that the genuine document and certificate issued by the secretary in his own handwriting were totally ignored by the election officer to manipulate democratic process of election. Thus, in short, the genuineness and authenticity of the documents produced before the returning officer have been seriously disputed by the rival candidates.

2.3 Shri Pathak Biren Harvilas, respondent no.1, the Returning Officer has filed his affidavit to, inter alia, state that the petitioner had filed his nomination papers on 31st May 2012, pursuant to which two different objections were received on 4.6.2012 from respondent no.2. Again on 5.6.2012, respondent no.2 had submitted his objection, which was received by his office on 6.6.2012. He admitted to have written a letter dated 4.6.2012 to SUMUL to verify whether the petitioner had supplied milk for 200 days and whether there was any outstanding which was due from the petitioner. He has clearly deposed;

“I respectfully say and submit that a perusal of the aforesaid letter makes it clear that the office of the deponent has sought information regarding the correctness of the objection filed by the respondent no.2 and therefore, the contention of the petitioner that the office of the deponent has entrusted the inquiry to the SUMUL is not correct.”

2.4 He has further stated on oath as under:

“7. I say and submit that, as per the election programme which was declared an (sic) the date of the scrutiny i.e. 07.06.2012, the respondent no.2 has appeared before the office of the deponent along with two persons namely Babubhai Chemabhai Gamit, who is the Secretary of the Pipalkuva Milk Co­operative Society and Gurji Khalpabhai Gamit, who is the Director of the said society. That at that time, the respondent no.2 has produced the original records of the said society and has submitted that the name of the petitioner does not appeared in the monthly payment sheet of the society for the period of 01.06.2011 to 28.02.2012. I say that the deponent as (sic) also verified personally the original records produced by the respondent no.2 and after verifying the aforesaid original records, the deponent has not found the name of the petitioner in the monthly payment sheet which was produced by the respondent no.2. I say that after sometime, the petitioner himself has came to the office of the deponent and hence, the deponent has inquired regarding the validity of the objections filed by the respondent no.2 herein. That the deponent has specifically informed to the petitioner that he should verify whether his name is there in the original record which was produced before the deponent by the respondent no.2 and the Secretary as well as Director of the said society. That upon the inquiry, the petitioner has reply to the deponent that his name is not appearing in the original record, which was produced. It is pertinent to note here that the petitioner has also not challenged the legality and validity of the aforesaid original record by disputing its genuineness. That the deponent has specifically declared to the petitioner that if his name is not appearing in the original record, in that event, the deponent would be left with no other alternative remedy (sic) but to reject the nomination paper. That, despite the aforesaid, the petitioner has failed to produced any document to prove that the said record produced by the respondent no.2 is not original and genuineness (sic) as well as the fact that the objections received by the respondent no.2 are not true. That in view of the aforesaid facts and circumstances, the deponent was left with no other alternative but to reject the nomination paper of the petitioner.

“8. I say and submit that, it is true that in the order impugned, the deponent has not mentioned the fact that the respondent no.2 has appeared along with Secretary namely Babu Chema Gamit and the Director of the said society namely Gurji Khalpabhai Gamit but by this affidavit, the deponent is willing to declare before this Hon'ble High Court that at that relevant point of time, the respondent no.2 has appeared before me with the Secretary and the Director of the said society. I say that the said original record which was produced before me is till date in my custody.”

3. It is clear from rival pleadings, as above, that the petitioner and the respondents have accepted that supply of milk for 200 days, twice a day, and not being a defaulter in repaying debt to the society were crucial for disqualification of the petitioner to fill the seat on the committee of the specified society. The Returning Officer had accepted objections in that regard from respondent no.2, even before the date of publication of list of nomination forms received. The scrutiny of and enquiry into nomination form had also started even before that date; and even before the date of scrutiny, a reply from SUMUL was already received by the election officer. Disregarding that reply of SUMUL, earlier scrutiny carried out for inclusion of the petitioner in the list of voters under Rules 4 to 7 and the statutory presumption provided in Rule 23 (7), the election officer had accepted evidence from extraneous source on the date of scrutiny i.e. on 7.6.2012 behind the back of the petitioner and decided to reject the nomination of the petitioner without affording to him an opportunity to rebut the objection or even supplying him a copy of objections dated 4.6.2012 and 5.6.2012. Under such circumstances, while admitting the petition on 21.6.2012, ad­interim relief staying operation of the impugned order was granted after hearing learned counsel for the respondent. On the next date of hearing, it was orally agreed among learned counsel that, while the petitioner's nomination is accepted subject to further order of this Court and voting for the election was to take place on 26.6.2012, the petitioner would withdraw the petition if the votes cast in his favour were less than those cast in favour of respondent no.2. However, as it turned out, the petitioner was found to be winning the election upon counting of the votes. Therefore, and thereafter the respondent has pressed for deciding the petition on merits and to prevent the petitioner in the meantime from exercising any right as elected member of the committee.

4. As noted earlier, SUMUL is a specified society under Section 74­C of the Act and election of members of its committees are subject to the provisions of Chapter XI­A and have to be conducted in the manner laid down by or under that Chapter. According to the provisions of Section 145­D (2), where a society has to send a nominee as a member of the committee of the specified society, the election of such nominee has to be conducted under the control of the Deputy Collector of the District in which the registered office of the society sending the nominee is situated. As per Section 145­Y, the State Government may make Rules consistent with the Act generally to provide for and to regulate all or any of the other matters relating to various stages of the election, including preparation of the list of voters. Pursuant thereto, the State Government has made the Rules.

5. “Society” for the purpose of the Rules is defines as a society specified under Sub­section (1) of Section 74­C of the Act. The provisions for preparation of provisional list of voters, as prescribed in Rule 4, inter alia, provides that a provisional list of voters shall be prepared by every society for the year in which general election is due to be held. Under the provisions of Rule 5 (2) where a society is a member of a specified society, the specified society shall call for name of the delegate duly authorized to vote at an election on behalf of affiliated society so as to reach it within ten days next after the date of drawing up the accounts. While communicating name of its delegate to the specified society, the affiliated society shall include a copy of the resolution of the society or its committee under which the delegate is so authorized. The specified society shall include in the list of voters names of all such delegates as have been communicated to it before the date fixed for publication of provisional list.

5.1 Under Rule 6 of the Rules, when any provisional list of voters is published for inviting claims and objections, any omission or error in respect of name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorized to vote on behalf of such society. The Collector shall after considering each claim or objection give his decision thereon in writing to the person concerned within ten days from the date of receipt of claim or objection and take steps to correct provisional list wherever necessary. The list so finalized by the Collector after deciding all claims and objections shall be final list of voters. Under Rule 9, the Collector shall, if necessary, appoint a returning officer for one or more constituencies as specified in its bye­laws. According to Rule 11, it shall be the general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided in the Act, Rules and bye­laws made thereunder.

5.2 Rule 16 provides that the Collector, in consultation with the Registrar, in the case of societies falling under Clause (1) of Section 74­C (1), and in consultation with the District Registrar concerned in case of societies falling under other clauses of Section 74­C (1), shall draw the schedule for election and by order in Form I appoint the dates for making nominations, publication of nominations, scrutiny of nominations, publication of the list of valid nominees, date for withdrawal of candidature, date for publication of final list of contesting candidates and dates for polling, for counting of votes and for declaring the result of voting. Rule 18 provides that, any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Act, Rules and bye­laws and his name is entered in the list of voters; provided that where a society sends the candidate to stand at an election, such society shall pass a resolution in its managing committee authorizing such candidature and the nomination form of such candidate shall be accompanied by certified copy of such resolution. Under Rule 19, on or before the date appointed under Rule 16, each candidate shall either in person or by his proposer deliver to the returning officer during the time and at the place specified in the order made under Rule 16, a nomination paper completed as provided by Rule 18 and signed by the candidate and by two voters of his constituency, one of whom shall be proposer and the other as a seconder. Under Rule 22, the returning officer shall, on receiving the nomination paper under Rule 19, give a receipt thereof and inform the person or persons delivering the same of date, time and place fixed for scrutiny of nominations.

5.3 The provisions of Rule 23 being material for the present purpose, relevant parts thereof may be quoted verbatim as under:

“23. Scrutiny of nomination papers.­

(1) On the date fixed for the scrutiny of nomination papers under Rule 16, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at the time and place appointed in this behalf under Rule 16, and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates, which have been delivered as required by Rule 19.

(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be to any nomination and may either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, that is to say:

“(a) that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or bye­laws.

(b) ..................

(c) ..................

(d) ..................

(3) ..............

(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

(5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Rule 16 and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by cause beyond his control:

Provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection.

(7) For the purpose of this rule, the production of certified copy of an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified.”

(underlines added)

5.4 The above scheme of the statutory provisions would clearly show that where a society is a member of a specified society, name of its delegate duly authorized to vote on behalf of the affiliated society has to be sent with the resolution and the specified society has to include in the list of voters, names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. If any claim or objection is raised against such nomination, the Collector has to consider such claim or objection and give his decision thereon and then correct the provisional list of voters, if necessary. The list so finalized by the Collector, after deciding all claims and objections, shall be final list of voters under Rule 6 (4). The procedure for making nominations for election to a committee of the specified society, under Rule 16 commences thereafter. When the nomination of candidates for the election are duly presented, the detailed provisions in respect of scrutiny of nomination papers under Rule 23 shall apply. It is clear from bare reading of the provisions of Rule 23 that examination of nomination papers is restricted to the candidates, their agents, one proposer and one authorized person with each candidate and no other person is allowed to attend, when the returning officer examines the nomination papers. All objections, which may be to any nomination, have to be decided after such summary enquiry, if any, as the returning officer may think necessary; but rejection of any nomination could only be based on any of the four grounds mentioned in Rule 23 (2). The first among such grounds is that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or bye­laws. Therefore, the disqualification for being chosen to fill the seat has to be based on any provision of the Act or the Rules and bye­laws applicable to the specified society. If such disqualification is pointed out or comes to the notice of the returning officer on the basis of some authenticated and reliable material, he would be required to hold scrutiny on the date appointed in that behalf under Rule 16 and the candidate concerned may be allowed time of one day to rebut the objection; and then the returning officer has to record his decision by way of endorsement on the nomination paper. In case the decision is to reject the nomination, he has to record in writing brief statement of his reasons for such rejection. The provision of Sub­rule (7) of Rule 23 clearly stipulates that production of certified copy of an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified. Therefore, inclusion in the list of voters has to be accepted as conclusive evidence of right of such voter to stand for election and the only exception that could be made is in case of the candidate being disqualified for being chosen to fill the seat; and, as seen earlier, the basis for disqualification of such voter has to be found in the Act itself or the Rules and bye­laws applicable to the specified society. Such provision in the Rules clearly refers to and it is consistent with the provisions of Section 145­F of the Act, the relevant part of which reads as under:

“145­F Disqualification for membership­

(1) A person shall be disqualified for being elected, as, and for being a member of the committee of any specified society­

(a) if he is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he holds or is appointed to the office of a Managing Director or any other office under the society declared by the State Government by general or special order not to disqualify its holder;

(b) if he has been convicted of an offence punishable under Section 153­A or Section 171­E or Section 171­F or sub­section (2) or sub­section (3) of Section 505 of the Indian Penal Code, 1860 (XLV of 1860), or under Section 145­R or clause (a) of sub­section (2) of Section 145­S of this Act, unless a period of six years has elapsed since the date of his conviction;

(c) if he has been convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years, unless a period of five years has elapsed since his release;

(d) if he is found guilty of corrupt practice under this Chapter by the State Government unless a period of six years has elapsed since the date on which the decision of the State Government takes effect;

(e) if he is also disqualified by or under any other provision of this Act.

[(1­A) ..................................

(2) ...............................

(3) ”

(underlines added)

6. Perusal of the above relevant provisions clearly reveal an integrated scheme providing for a very limited, restricted and expeditious scrutiny of the nomination papers by the returning officer, leaving for him only the simple task of deciding upon rejection or acceptance of nominations only on the basis of apparent or reliable and authenticated proof of disqualification incurred by a candidate under Section 145­F of the Act. He shall have no jurisdiction or legal authority to delve into the right of the nominee to stand for election if he is already on the voters list and not disqualified, as aforesaid, under the provisions of Section 145­F of the Act. Of course, there are three other formal grounds enumerated in Rule 23 (2) (b), (c) and (d), on which any nomination could be rejected, after affording to the candidate concerned an opportunity to rebut, latest by the next day from the date of scrutiny, the material appearing against him. The provisions of Section 145­Y authorizes the State Government to make Rules generally to provide for and regulate all or any of the other matters relating to various stages of the elections, but such Rules are expressly required to be consistent with the Act. Therefore, when express provisions of Section 145­F prescribe disqualifications for being member of the committee of any specified society, it is questionable whether the State Government can indirectly amend the provisions of Section 145­F by prescribing additional grounds of disqualification in the Rules by including disqualifications prescribed in the bye­laws of the society. Even as the validity of the Rules and the bye­laws is not challenged in the petition, they could be invoked at proper stage when the list of voters is finalized under Rule­6, so as to impart full meaning and effect to Rule 23 (7). That leads to the inescapable conclusion that the authority of the returning officer in examining nomination papers and deciding all objections is restricted to only making a summary enquiry, if any, as to whether the candidate has incurred any disqualification for being elected and whether the nomination was in order and complying with the relevant Rules. As the title and language of Rule 23 clearly suggests, it is the scrutiny of nomination papers and, by no stretch, an adjudication of disqualification of the candidate that falls within statutory duty of the returning officer. If he transgresses that limit and enters into the area of accepting or collecting evidence regarding alleged disqualification of a candidate and indulges in exercise of weighing evidence, without any means or power to decide upon genuineness or reliability of any evidence, the minimum requirement of compliance with the principles of natural justice would arise. However, clear operative words in the Rule being 'summary inquiry' and not an adjudication, the returning officer would obviously be required to decide the issue of disqualification or rejection or acceptance of the nomination paper only on the basis of material placed before him; and having regard to the provisions of Rule 5, 6 and 23 (7) it would require authentic and genuine documentary evidence about disqualification of the candidate for rejecting his nomination after giving him an opportunity to rebut such evidence. In order to ensure proper, upright and impartial approach of the officers involved in such elections, specific provisions are made in Chapter XI­A of the Act, including the provisions as under in Section 145­L.

“145­L – Officers etc. at election not to act for candidates or to influence voting.­

(1) No person who is a Returning Officer or an Assistant Returning Officer or a Presiding or a Polling Officer at an election or an officer or clerk, appointed by the Returning Officer or the Presiding Officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospect of the election of a candidate.

(2) ...............

(3) Any person who contravenes the provisions of sub­ section (1) or sub­section (2) shall, on conviction, be punished with imprisonment which may extend to six months or with fine or with both.

(4) An offence punishable under sub­section (3) shall be cognizable offence.”

7. As seen earlier, in the facts of the present case, admittedly respondent no.1, the election officer had accepted the objections from respondent no.2 and sent written enquiry to SUMUL and received their response, even before the date of scrutiny of nomination papers. He had also permitted, in clear violation of the provisions of Rule 23 (1), two persons posing as secretary and director of the primary society to attend the scrutiny and allowed production of the alleged original record of that society, for respondent no.2 to substantiate that name of the petitioner did not appear in the monthly payment sheet of the society for the period from 1.6.2011 to 28.2.2012. The monthly payment sheets for a part of the year, even if genuine, may not be conclusive proof of non­ supply of milk by the petitioner insofar as payments for milk supplied by him were claimed to have been received on his behalf by his son, whose name was reflected against his code number. As recorded in the impugned order and the affidavit of respondent no.1, after some time, the petitioner was shown such record to show his name in the payment sheets; and then it is deposed that the petitioner had failed to produce any document to prove that the record produced by respondent no.2 was not original and genuine, due to which he was left with no alternative but to reject nomination of the petitioner. As against that, it is the specific case of the petitioner that copies of written objections submitted by respondent no.2 were never supplied to the petitioner. Even as authentic certificates issued by his society and SUMUL in favour of the petitioner, annexed to the petition as Annexure D, E and F, clearly reveal that he had supplied milk as required and he was not a defaulter in respect of any outstanding amount, those documents were totally ignored by the Returning Officer.

It was held by the Constitution Bench of the Apex Court way back in the year 1954 in Durga Shankar Mehta v. Raghuraj Singh and Others [AIR 1954 SC 520], in the context of similar provisions of the Representation of the People Act, as under:

“8. ........................... the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. .................. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer ”

It was also observed in a different context in Virindar Kumar Satyawadi v. The State of Punjab [AIR 1956 SC 153 (1)] that under Section 36 (2) (of the Representation of the People Act), the returning officer has to examine the nomination paper and decide all objections which may be made thereto. This power is undoubtedly judicial in character. But in exercising this power, he is authorized to come to a decision “after such summary enquiry, if any, as he thinks necessary”. That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under Section 36.

8. It is also alleged in the petition that the impugned order was mala fide and based on extraneous grounds. It was argued for the petitioner that while secretary of the society of which the petitioner was chairman was missing and not available for number of days before and after the date of scrutiny of nomination paper, it could be presumed that he was influenced and overpowered to produce some concocted documents before the Returning Officer in order to support the objections of respondent no.2. Be that as it may, the Returning Officer had clearly violated express provisions of Rule 23 and travelled far beyond his authority in adjudicating upon and deciding the question of fact as to whether the petitioner had supplied milk for 200 days to the primary society. It was on that basis also submitted that respondent no.1 had committed a cognizable offence under Section 145­L for which he was required to be prosecuted.

8.1 Respondent no.2 has sought to produce before this Court evidence regarding supply of milk by the petitioner and alleged that computer records of Pipalkuva Milk Producers Society have been tampered. Since there are allegations of forgery and production of concocted evidence by rival candidates, it would be improper to come to any finding of fact on the basis of such documents, while the whole factual controversy is irrelevant for deciding the legal issues involved in this litigation.

9. This Court having come to the conclusion, on the basis of admissions on oath of respondent no.1, the election officer, that the impugned order dated 7.6.2012 was made in flagrant violation of the provisions of Rule 23 as also the principles of natural justice and without having legal authority to adjudicate upon the issue as to whether the candidate had incurred any of the disqualifications, it has to be set aside. It is also found that respondent no.1 entrusted with the duties of election officer and otherwise a Deputy Collector could not be ignorant of the provisions of Rule 23 and acting impartially could not have accepted the objections in advance and could not have also initiated an enquiry in advance even before the date of scrutiny of nomination papers. But, in the facts of the case, he went out of the way in allowing presence of impermissible persons and production of documentary evidence behind the back of the petitioner at the time of scrutiny in violation of the clear prohibition contained in Rule 23 (1) and the principles of natural justice. By disregarding the documents submitted with nomination papers and the relevant provisions of the Rules, prima facie, respondent no.1 appear to have acted for furtherance of the prospect of election of respondent no.2 without a contest. Therefore, appropriate proceedings under Section 145­L as well as departmental action are required to be initiated by the Collector, City Prant, Surat, in order to ensure that such deviations by the public servants do not degenerate into denting the democracy itself. With these observations, the petition is allowed, the impugned order dated 7.6.2012 of the election officer rejecting nomination of the petitioner is set aside and Rule is made absolute accordingly with no order as to costs. Even as the petition stands disposed by this order, it shall be listed before this Court after four weeks for submission of an “action taken report” by Collector, Surat, in respect of actions required to be taken, as aforesaid. Further order may be issued on such date, if necessary. A copy of this order shall be served upon Collector, Surat, for necessary compliance and learned Government Pleader is requested to see that this order is conveyed to Collector, Surat, at the earliest.

(D.H.Waghela, J.) (G.B.Shah, J.) Upon the judgment being pronounced today, learned counsel, Mr.Kapadia, appearing for respondent no.2 prayed for staying operation of the order for a period of six weeks. There being no justification for granting such relief, the request is rejected.

(D.H.Waghela, J.) *malek (G.B.Shah, J.)