Thasra Taluka Co Operative Fruit and Vegetables Growers and Another vs Election Officer Gujarat State Co Op Marketing and Another

D.H. Waghela, J.—Rule of which notice is waived by learned Counsel for Respondents and learned Assistant Government Pleader.

Petitioners are aggrieved by order dated 04.04.2011 of the Election Officer and City Deputy Collector, Ahmedabad whereby the objection to inclusion of Petitioner No. 2 in the voters list has been upheld and the name of Petitioner No. 2 has been removed from the provisional voters list, prepared for election for the Board of Directors of the Gujarat State Cooperative Marketing Federation Limited, which is a specified society u/s 74-C of the Gujarat Co-operative Societies Act, 1961 (for short ''the Act''). The impugned order is assailed mainly on the ground that it is made without application of mind, relying only on letter dated 03.04.2011 of the District Registrar and on the basis of the order dated 06.01.2007 of the District Registrar which was made without jurisdiction.

The facts as far as relevant for the purposes of the present petition are that the name of Petitioner No. 2 was included in the preliminary voters'' list as representative of the Petitioner No. 1. But an objection was raised by Respondent No. 2 on the basis that Petitioner No. 2 was, by order dated 06.01.2007 of the District Registrar, Co-operative Societies, Nadiad, disqualified from holding any post in any Cooperative Institution. That order was made in purported exercise of power under Rule 32 of the Gujarat Co-operative Societies Rules, 1965 (for short ''the Rules''), after an order being made under the provisions of Section 93 of the Act. Since that order amounted to permanent disqualification of the Petitioner concerned and there was a subsequent decision dated 19.10.2010 of Division Bench of this Court in Letters Patent Appeal No. 1191 of 2002, even the District Registrar opined in his letter dated 03.04.2011 that the disqualification could continue at the most for four years. Relying upon the opinion of the District Registrar, as immediately rendered by him by his letter dated 03.04.2011, the Election Officer ordered removal of name of Petitioner No. 2 from the voters list by the impugned order dated 04.04.2011.

Defending the impugned order, learned Counsel Mr. Dipen Desai appearing for Respondent No. 2 submitted that till the order dated 06.01.2007 disqualifying the Petitioner No. 2 from holding any post was annulled, he could not hold any post in the Petitioner No. 1 Society and, therefore, he could not represent that society by inclusion of his name in the voters'' list.

Learned Assistant Government Pleader appearing for Respondent No. 1, Election Officer, submitted that, by now, final voter''s lists were published, although election programme was as yet not declared.

In view of the clear propositions of law laid down in decision dated 19.10.2010 of Division Bench of this Court in Letters Patent Appeal No. 1191 of 2002, the order dated 06.01.2007 disqualifying Petitioner No. 2 from holding any post in any Cooperative Institution was not only illegal, but wholly without jurisdiction and could not be given effect for any purpose. Inspite of that, District Registrar advised Election Officer and the Election Officer accepted that opinion for removing the name of Petitioner No. 2 from the voters'' list. Therefore, the impugned order dated 04.04.2011 is found to be ex-facie illegal, without application of mind and unbecoming of an Officer entrusted with the task of ensuring fair process of election. Since the election programme is as yet not even declared, a direction to include the name of the Petitioner concerned in the final voters'' list will not in any way impede or disrupt the process of election. Instead, inclusion of the name of Petitioner No. 2 as a rightful voter would subserve the process of fair election. Therefore, following guiding principles laid down by the Apex Court in Election Commission of India Through Secretary Vs. Ashok Kumar and Others, the petition is required to be entertained and allowed. Accordingly, the petition is allowed and rule is made absolute with the direction that the impugned order shall stand quashed and name of Petitioner No. 2 shall be included in the final voters'' list prepared for the forthcoming election of the Board of Directors of the Gujarat State Cooperative Marketing Federation Limited.