Mukeshbhai Basilal Patel and Another vs Election Officer and Dy. Collector and Ors

Honourable Mr. Justice V. M. Sahai

We have heard Mr. D.B. Rana, learned Advocate for the petitioners, Mr. N.J. Shah, learned Assistant Govt. Pleader for the respondent No. 1 - State and Mr. V.C. Vaghela, learned Advocate for respondents No. 2 to 9.

Learned counsel for the petitioners has urged that along with the preliminary voters list, a list of defaulter members has been published. At page No.33 of the writ petition, the petitioners have filed a detailed list of the defaulters who are not eligible to participate in the election, as the suits are pending against them. All these objections were considered by the Election Officer and thereafter the objections have been rejected and they have been found to be valid voters. Learned Counsel for the petitioners have challenged the order dated 22nd September, 2011, passed by the Election Officer, by which, the Election Officer had held that they are valid members to participate in the election. A Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Autho. Officer & Cooperative Officer (Marketing), as reported in 2006 (1) GCD 211 (Guj) (FB), has held that inclusion or exclusion of names in the voters list cannot be gone into in a writ petition when the process of election has been set in motion and the only remedy is to file the election petition. Though, the said decision of the Full Bench was with regard to the Agricultural Market Produce Committee, but the same principle would apply in this case also as the election is of a specified cooperative society u/s 145 (u) of the Gujarat Cooperative Societies Act, 1961, the petitioners have an alternative remedy of filing an Election Petition.

Learned Counsel for the petitioner has placed reliance on a decision of this court in the case of Gujarat State Cooperative Bank Limited & Anr. vs. State of Gujarat & Ors., as reported in 2009 (1) GLH 371, wherein the Court has held that normally this court may not interfere in election matters where the election process has been set in motion, but, in a given case where malafide and arbitrary exercise of power, the court may interfere. We do not find that there is any allegation of malafide or arbitrary exercise of powers in this case. Therefore, this decision is not applicable to the facts of the present case.

In view of the aforesaid, the present petition stands dismissed on the ground of alternative remedy available to the petitioners. Rule is discharged. There shall be no order as to costs.