(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr. G.M. Joshi, learned counsel appearing for the petitioner and Mr. P.C. Kavina, learned Senior counsel assisted by Mr. Biren Vaishnav appearing for respondent Nos.1 & 2. Mr. Kavina states that since a legal question is involved, the respondents do not propose to file any affidavit-in-reply. Therefore, we have proceeded to take up the writ petition for final hearing with the consent of learned counsel for the parties.
2. This writ petition has been filed challenging the order dated 11.10.2012 passed by the District Election Officer, Bharuch – respondent No.2 herein by which the respondent No.2 has called upon the employees of Gujarat Narmada Valley Fertilizers and Chemical Company Limited (for short 'the Company') to perform the election duties.
3. Learned counsel for the petitioner has urged that the Company is not a State within the meaning of Article 12 of the Constitution of India as held by the Full Bench of this Court in Rambhai Ishwarbhai Paetl v. Gujarat State Fertilizers & Chemicals Limited, decided on 11.4.2011 passed in Special Civil Application No.6677 of 2009 connected with other writ petitions. The Full Bench has further held that the Government has no control over the Company and it is not a Government Company. Relevant paragraphs 21 & 22 of the Full Bench decision is extracted below :-
“21. In the present case, there is nothing on record to suggest that the State Government has any share in Gujarat Narmada Valley Fertilizers Company Limited as no specific evidence is brought on record. Gujarat State Fertilizers and Chemicals Limited , which has 19.80% share, is not a `State' within the meaning of Article 12 of the Constitution of India. The State of Gujarat has taken a specific plea that as it has no deep and pervasive administrative, functional and financial control and the respondent-Company is an entity managed by its Board of Directors.
22. We have noticed that G.N.F.C. has been constituted under the Companies Act and not by any State Act. The State Government has no role in the matter of functioning of the Company. It does not exercise any financial, functional or administrative control over the Company. Acquisition of shares and other matters pertaining to management and affairs of the Company are governed under the Companies Act. The business and other activities of the Company are purely commercial in nature. It does not perform any public function nor any public duty. The Company do not carry on any business for the benefit of public. Thus, as the cumulative effect together shows that Gujarat Narmada Valley Fertilizers Company Limited is not an instrumentality of the `State'.”
4. Learned Senior Counsel Mr. P.C. Kavina appearing for the respondents has placed reliance on Section 159 (2) of the Representation of the People Act, 1951 and has urged that in view of clause (iv) of sub-section (2) to Section 159, the Company is substantially financed by the State Government and, therefore, it could be treated to be controlled by the State Government and, therefore, its employees could be directed by the District Election Officer to perform the election duties. Section 159 of the Representation of the People Act, 1951 is extracted as under :-
“159. Staff of certain authorities to be made available for election work :-
(1) The authorities specified in sub-section (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of Article 324 or the Chief Electoral Officer of the State, make available to any returning officer such staff as may be necessary for the performance of any duties in connection with an election.
(2) The following shall be the authorities for the purpose of sub-section (1), namely :-
(i) every local authority;
(ii) every university established or incorporated by or under a Central, Provincial or State Act;
(iii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government]”
5. We are not in agreement with the argument of learned counsel for the respondents in view of the fact that in Full Bench decision in paragraph 21, it has been mentioned that the share of the Government is only 19.80%. Even assuming that the share of the Government has increased to about 22%, even then it will not become a Government Company or a State within the meaning of Article 12 of the Constitution of India or it can be treated to be substantially financed and controlled by the State Government. Therefore, the District Election Officer could not have called on the employees of the Company to perform the election duties.
6. For the reasons given above, this writ petition succeeds and is allowed. The impugned order dated 11.10.2012 passed by the District Election Officer, Bharuch – respondent No.2 (Annexure C to the writ petition) and any other subsequent communications are quashed. A writ of mandamus is issued to the respondents not to call on the employees of the Gujarat Narmada Valley Fertilizers and Chemical Company Limited to perform the election duties. Parties shall bear their own costs. Direct service today is permitted.
[V.M. SAHAI, J.] [G. B. SHAH, J.] Savariya