TMI Blog2014 (11) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... re. For the reasons stated supra, we do not find any reasons whatsoever to interfere with the impugned judgment and orders of the High Court. It is needless to make observation that the State government and its officers could not give effect to the provisions of the Co-operative Societies Act and Rules for some time on account of which some of the societies have challenged the impugned provisions and Rules before the High Court, even after litigation was concluded by the Division Bench at one stage, the State and its officers have not implemented the impugned provisions and Rules without any valid reasons. The members of the specified societies in the State have a right to elect their true representatives to represent them as Managing Committee or Board members of the District Co-operative Societies and other allied societies after de-limitation of the constituency/ constituencies and therefore, we direct them to see that the impugned provisions and Rules must be implemented forthwith without further delay and submit compliance report within 8 weeks from the date of report of the copy of this order. - Decided against the appellants. - CIVIL APPEAL NO.10401, 10402, 10400, 10399 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the managing committee was to be conducted by the society itself as per its registered bye-laws. So far as the societies included as specified societies under Section 74C(1) of the Act are concerned, a separate mode of conducting election was provided and the power of conducting such election was given to the Collector notwithstanding anything contained in the bye-laws of such societies. The said aspect was made clear under the provisions of Section 74(C) (2) and (3) of the Act which were inserted by way of amending Act of 1982. Chapter XI-A of the Act provides for separate mode for deciding the election dispute by Election Tribunal. Section 145(U) of the Act provided the State Government with rule making power and to regulate all or any of the other matters relating to the various stages of elections including preparation of the list of voters. 6. In exercise of the powers conferred upon the State Government under Section 168 read with Sections 145(A), 145(U) and 145(Y), the State Government of Gujarat framed the Gujarat Specified Co-operative Societies Election to Committee Rules of 1982 (in short the Rules ). These Rules provide for various stages of election from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seats as provided under Section 74B of the Act. The learned Single Judge in the said case found that the bye law No. 35(1)(A), provided seats for more than one person for each constituency and therefore, the bye laws were not in conformity with Rule 3-A (8) of the Rules and found that the bye-laws can operate to the extent of 7 representatives to be elected from 7 separate constituencies of a Specified Cooperative Society and therefore, the High Court has held the Rule 3-A(8) of the Rules as valid to that extent only. 10. In the meanwhile, the Division Bench of the Gujarat High Court in the case of Shri Sadwadar Seva Sahkari Mandali Ltd. Ors. v. State of Gujarat[3], went into the case once again with regard to the holding of the election to the Managing Committee of the Bank in accordance with Rule 3-A (8) of the Rules. The Division Bench found that when Rule 3-A (8) and Rule 43 are examined in juxtaposition, it has held that the object and intendment of the said Rules and the field of the operation of the said two provisions are different inasmuch as the former deals with constituencies bifurcated on the territorial/zone basis . The Division Bench did consider the view ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving its reasons. 13. Similar questions regarding the legality and validity of Rule 3-A(8) of the Rules arose when the present group of appeals were listed before the High Court. The Division Bench of the High Court formulated the following legal issues and referred the same to the full Bench: Whether Rule 3-A of the Rules introduced by the amendment dated 10.08.1987 could be applied to the societies bye-laws which provide for a single constituency? Whether the scheme of the Rules permit the specified societies having a single constituency, more than one seat for one constituency and whether members of such society can legally be permitted to vote for more than one seat? Whether Collector has jurisdiction to make an order for delimitation of the constituencies, in absence of any proceeding undertaken in accordance with Section 14 of the Act? Whether delimitation of the constituencies under Rule 3-A of the Rules can only be territory-wise and/or whether delimitation of the constituencies can be based upon objects and activities of the member societies or classes of individual members? After hearing the learned counsel for both sides, the full Bench of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 16. On a careful examination of Rule 3-A (8) of the Rules by us, it is made clear that the said provision is aimed at geographical i.e. territory or zone wise bifurcation or division. A salient feature of the Rule 3-A is the delimitation of the constituencies which includes all specified cooperative societies. Once the area of operation of any society is more than one village, Sub rule (8) would come into play and the requirement of the number of constituencies would be equal to the total number of seats, excluding two seats reserved for the categories as provided under section 74 B of the Act. 17. Further, the language of sub rule (9) of Rule 3-A, makes it clear that the Rule Making Authority has graced the Collector with the power to delimit the constituency/constituencies prior to the publication of the voters list. The delimitation of the constituency/constituencies should be prior to the preparation of the voters' list and/or in any case simultaneous with the preparation of voters' list but the voters list has to be as per the delimitation of the constituencies. The same is the case when the delimitation of the constituency is required to be made by the Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be bifurcated by the Collector in exercise of his power, so as to make it equal to the total number of seats to see that effective representation is given to the members of the society for giving fair representation to its members to elect their true representatives to participate in the affairs of the Society as part of the Managing Committee Members, as the society must be represented by its elected representatives in a democratic process to effectively represent in the Managing Committee which is an indispensible parameter for the democratic institutions to achieve the laudable object of Co-operative movement in the country, which is the constitutional philosophy as enshrined in Chapter XI A of the Constitution, which has been inserted by way of constitutional amendment. 21. Thus, the bye laws of any specified society under the provisions of the Co-operative Societies Act cannot be permitted to prevail over the statutory Rule 3-A (8) (9) of the Rules. The moment the area of operation of any specified society exceeds one village, sub rule (8) would come into play, irrespective of the fact that whether members of such society constitute homogenous group or heterogeneous group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features'-this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution. XXX XXX XXX 142. Article 80(4) prescribes the manner of voting and election of the representatives of States for the Council of States in the following terms: 80. (4) The representatives of each State in the Council of States shall be elected by the elected Members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. XXX XXX XXX 336. In the words of Jaganmohan Reddy, J.(Kesavananda Bharati case reported in (1973) 4 SCC 225) in his separate judgment, the 1 elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution and the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. (emphasis laid by this Court) In Rameshwar Prasad (VI) v. Union of India[9], this Court has held as under:- 229. Lord Greene said in 1948 in the famous Wednesbury case (reported in (1948) 1 KB 223) that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken....... 257. Therefore, the well-recognised position in law is that purity in the electoral process and the conduct of the elected representatives cannot be isolated from the constitutional requirements. Democracy and free and fair election are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its observance............ (emphasis laid by this Court) In view of the law laid down by this Court in the aforesaid cases, we have to hold that the sub rules (8) (9) of Rule 3-A are applicable to the appellant society/Societies as the area of operation is more than one village and therefore the orders passed by the Collector for the delimitation of the constituency/constituencies cannot be said to be illegal. Further, we hold that there will be no proper representation of the voters to their respective specified societies for electing representatives of their area which would materially affect the result of the election and the impugned provisions and Rules are legally justifiable. For the reasons stated supra, no relief can be granted in favour of the appellant-societies by setting aside the election notification and the prayer for setting aside the impugned judgement and orders. Hence, they deserve to be dismissed. The respondents are directed to hold the election to the specified societies as per sub rule (8) and (9) of Rule 3-A of the Rules as are applicable to them under the Gujarat Co-operative Societies Act after the delimitation of the constituency/constituencies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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