KADIVAR RAHIMBHAI MAMADBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition under Articles 14, 19 and 226 of the Constitution of India has been filed by the petitioners challenging the impugned order dated 18.11.2010 passed by respondent No.1-the Director, Agricultural Marketing and Rural Finance, Gujarat State, Gandhinagar. We have heard the learned counsel for the parties.

(2.) PETITIONERS are the elected members from the agriculturist constituency of Wankaner Agricultural Produce Market Committee. On 9.6.2009, the Agricultural Produce Market Committee (for short, 'the APMC') was superseded by the competent officer and the District Registrar, Cooperative Societies, Rajkot. Election Officer-respondent No.2 was appointed as Administrator of the said APMC, Wankaner. Hence elections were due to be held. On 6.5.2010, respondent No.1 issued an order fixing 4.8.2010 as the date of election of the APMC, Wankaner and appointed the District Registrar, Cooperative Societies-respondent No.2 as the Election Officer and also issued the programme with various stages of election. For the purpose of preparation of the provisional list of voters, the Authorized officer had called for names of the members of the Executive Committee of the Cooperative Societies. On 11.5.2010, Rajkot District Cooperative Bank Ltd. had also forwarded names of its representatives for the purpose of preparation of provisional list of voters. On 25.5.2010, provisional list of voters was published. Objections were raised before the Authorised Officer against the provisional list of voters and thereafter the objectors were heard, objections were decided and the final list of voters was prepared and published. On 22.7.2010, Nomination Forms were filed by the petitioners. After scrutiny, objections came to be considered and decided and nomination forms of the petitioners were accepted as valid. On 4.8.2010, voting took place and on 5.8.2010 result was declared.

(3.) LEARNED AGP Mr Rakesh Patel and learned counsel Mr Dipen Desai appearing for respondents submitted that election of APMC, Wankaner came to be declared by way of election programme which was published on 6.5.2010 and thus the date of election was declared to be on 4.8.2010. In the case, there are various Cooperative Societies present dispensing agricultural credit which were to be included in the voters list of Agriculturist Constituency. He submitted that as per the bye-laws of the said society, one representative of the bank from whom the credit is availed by the said society is required to be included in the Manging Committee of the said society, and thereby one representative of Rajkot District Cooperative Bank Ltd. was to be inducted in the Managing Committee. He stated that vide order dated 11.5.2010 the Rajkot District Cooperative Bank changed the nomination and appointed some of the petitioners and similar other persons who had political backing and who were interested in the APMC as nominee members of the Bank. That order was passed on 11.5.2010 and therefore, clearly after the election of APMC, Wankaner came to be declared and thus it was illegal as it would directly interfere with the election process which had already started. Learned counsel further stated that the same persons are appointed as nominees in more than five to ten societies. The aforesaid fact clearly shows that the persons who had contested the election have been appointed as bank's representative after the declaration of the election only with a view to influence the voters. The said appointment can never be in pursuance of the bye-laws of the societies inasmuch as the intention of the appointment to see that the representative of the bank has a say in the Managing Committee of the societies to protect the interest of the bank and therefore, independent persons like Branch Managers were appointed. Only with a view to inflate the voters' list the nominations have been changed after the declaration of the election. According to him, another illegality committed by the Election Officer is inclusion of two societies. Those societies were included in the voters' list of Agriculturist Constituency in spite of the fact that those societies were not dispensing agricultural credit to its members. The respondent had produced audit report before the Director of those societies wherein the auditor has also recorded that those societies were not functioning and were not carrying on any operation for which they were registered and that they were not dispensing agricultural credit to its members. He submitted that because of the change in the representative of the Rajkot District Bank, 32 votes have been cast by the new nominees which was absolutely illegal and 30 votes have been cast by the aforesaid two societies which were not dispensing agricultural credit. Therefore, 62 votes have been illegally permitted to be cast whereas difference between last elected candidates and the losing candidate is 57 votes and thereby election is materially affected and therefore the Director was absolutely justified in setting aside the election of Agriculturist Constituency. He submitted that persons with tainted background ought not to have been allowed to again contest the election and therefore the action on the part of the Election Officer in allowing the said persons to contest was illegal and required to be quashed and set aside. He also submitted that majority of the elected Directors were Directors of earlier term of the Market Committee which came to an end vide order dated 9.6.2009 passed by the State Government under section 46 of the Act whereby the Market Committee came to be superseded by the State Government on the ground of irregularities committed by the Directors of the Committee and therefore, they ought not to have been allowed to contest the elections as they have been guilty of misusing and abusing their office/position as members of the Managing Committee of the APMC. Therefore, also the said action of the Election Officer in allowing the said persons to contest the election was illegal. He finally submitted that the petition may be dismissed.