Gujarat High Court
Jitendrabhai Arjanbhai Roy vs The Director Of Agricultural Marketing ... on 5 May, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/7776/2022 ORDER DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7776 of 2022
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JITENDRABHAI ARJANBHAI ROY
Versus
THE DIRECTOR OF AGRICULTURAL MARKETING AND RURAL FINANCE
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Appearance:
for the Petitioner(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,4,5,6,7,8,9
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1,2
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/05/2022
ORAL ORDER
1. The present writ application has been filed under Article 226 of the Constitution of India, seeking the following reliefs:-
"(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned order dated April 09, 2022, - Annexure-G, rejecting the objection raised by the petitioner and direct that the objection raised by the petitioner be accepted and names of the respondent nos.5 to 9 herein be directed to be deleted from the list of voters of Traders Constituency of the respondent Committee;
(B) Pending admission and final disposal of the present
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petition, be pleased to stay the implementation,
execution and operation of the impugned judgment and order dated April 09, 2022, Annexure-G, and direct that the respondent nos.5 to 9 be not permitted to take part in the election process of the respondent Committee; (C) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. The brief facts giving rise to the present writ application, which read thus:-
2.1 By way of present writ-application the writ-applicant herein has challenged the legality, validity and propriety of the action of the respondent no.3 of rejecting the objection raised by the writ-applicant, by order dated 9.4.2022 on the ground that the respondent no.3 has no power, authority or competence to decide with regard to the licence issued in favour of respondent Nos.5 to 9 by the Committee and the objections raised by the writ-applicant against inclusion of the names of the said respondents No.5 to 9 in the list of voters;
whereas the name of the writ-applicant came to be deleted Page 2 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 from the list of voters on the ground that the writ-applicant was not holding license in the financial year 2020-21 is that the said order passed by the respondent no.3 is ex-facie malicious and recorded self-contradictory order and, therefore, same is violative of Articles 14 and 19 of the Constitution of India. Being aggrieved by the impugned order dated 9.4.2022 the writ-applicant is constrained to approach this Court. 2.2 The Director - respondent No.1 in exercise of powers conferred upon him declared the election programme dated 2.3.2022 and appointed the respondent No.3 as authorised officer and the respondent No.2 as the election authority. As per the election programme the election has been declared on 8.3.2022. 16.3.2022 came to be fixed for the date on which the Authorized Officer was supposed to be provided with the preliminary voters' list. 21.3.2022 was fixed for publication of the first preliminary voters' list. The objections were to be accepted till 4.4.2022. The revised preliminary list of voters was to be published on 9.4.2022. The objection thereto were invited till 16.4.2022 and publication of the final voters' list Page 3 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 came to be fixed on 22.4.2022. The nomination of the same came to be fixed on 21.5.2022. The date of voting is fixed on 2.6.2022 and counting of votes has been fixed on 3.6.2022. Copy of the election programme is duly produced at Annexure- D.
3. Mr. B. M. Mangukiya, the learned advocate submitted that the preliminary list of voters of the Traders constituency contained 12 names. The name of the writ-applicant appears in the said list of voters at Sr. No.6 and the names of the respondent nos.5 to 9 appeared at Sr. Nos.8 to 12 in the said preliminary list of voters. The said list is duly produced at page-32.
3.1 Mr. B. M. Mangukiya, the learned advocate submitted that the writ-applicant raised objection against the respondents No.5 to 9 who appears at Sr. No.8 to 12 in the said list and pointed out that the said persons were not holding license in the year 2020-21 and have not carried out any activities in the financial year 2020-21. Since they have been given license on Page 4 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 11.2.2022 and their name cannot be included in the list of voters'. The respondent No.3 by impugned order dated 9.4.2022 which is duly produced at Annexure-D rejected the objections raised by the writ-applicant against the inclusion of name of the respondents No.5 to 9 by recording that the action taken by the Committee under Sections 27, 47 and 48 of the Act cannot be adjudicated by the Authorised Officer i.e. respondent No.3 and, therefore, the objections raised by the writ-applicant are not sustainable. Being aggrieved by the said order passed by the respondent No.3 the writ-applicant has approached this Court by filing the present writ-application. 3.2 Mr. B. M. Mangukiya, the learned advocate submitted that the respondent No.3 has acted maliciously while not applying the same criteria while considering the objections raised against the writ-applicant wherein the writ-applicant's name from the voters' list came to be deleted by accepting the objections raised against the writ-applicant under the provisions of Section 11(1)(2) of the Act that the writ-applicant was not holding license for the previous year 2020-21 and, Page 5 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 therefore, the writ-applicant was disqualified as per Section 11(1)(2) of the Act.
3.3 Mr. B. M. Mangukiya, the learned advocate submitted that the respondents No.5 to 9 obtained license wrongly and that the issue raised by the writ-applicant that they have not worked for full financial year and that they are not eligible and their names should not have been included in the voters list was not decided by the respondent No.3 while deciding the objections raised by the writ-applicant against the issuance of license to the respondents No.5 to 9.
4. Mr. Ishan Joshi, the learned AGP appearing for the respondent authority submitted that the order passed by the respondent authority is just and proper in holding that the license which was issued to the respondents No.5 to 9 came to be issued on the basis of resolution passed by the Market Committee. The said resolution was duly produced at Mark-5. He further submitted that since the respondent authority rightly stated that since the respondents No.5 to 9 have Page 6 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 produced valid license, it is incumbent for the respondent authority to accept the same. It was not open for the respondent authority to question the action undertaken by the Market Committee under Sections 27, 47 and 48 of the Act and consequently the objections raised by the writ-applicant were not accepted. The names of the respondents No.5 to 9 as included at Mark-8 to 12 in the preliminary voters' list duly produced on 23.12.2021 were rightly continued.
5. Mr. Tushar Sheth, the learned advocate appearing for the respondents No.5 to 9 has relied on the affidavit-in-reply. Paragraphs 4 to 8 reads thus :-
"4. I say and submit that the Resp. No.3 has rightly turned down the objection raised by the petitioner against the inclusion of names of the private respondents in the voters' list. While rejecting the objection, the Resp. No.3 has considered the fact that the Resp. No. 5 to 9 who are at Sr. No. 8 to 12 in the voters' list are having license dated 11.02.2022 and also considered the fact that the secretary has filed his written submission stating that agenda dated 03.02.2022 was declared and as per the Resolution No.3 passed Page 7 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 in the General Meeting dated 11.02.2022, commission agent license was issued to the Resp. Nos. 5 to 9. The Resp. No.3 has rightly held that he has no power to go into the proceedings undertaken by the market committee u/s. 27, 47 and 48 of the Act. I say and submit that the petitioner has not approached appropriate authority challenging the issuance of the license in favour of Resp. Nos.5 to 9.
5. I say and submit that the present petition is not maintainable on the ground of having alternative efficacious remedy under Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965.
6. I say and submit that the group of petitions have been referred to the Larger Bench of this Hon'ble Court, which was decided vide the judgement dated 27.07.2005 rendered in case of Daheda Group Seva Sahakari Mandali Vs. R D Rohit, reported in 2006 1 GCD 211. The Larger Bench was called upon to answer three questions viz. (I) Whether a person whose name is not included in the voters' list can avail provisions of the Rules by filing Election Petition? (II) Whether Page 8 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 the remedy under Rule 28 can be termed to be efficacious remedy and (III) Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the voters' list?.
7. In para 33 of the said decision, the Larger Bench has answered the reference which is reproduced as under;
33. In view of the above discussion, we answer the Reference as under:
A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the
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Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.
8. I say and submit that while answering the reference the Hon'ble Larger Bench in para 30 has held as under;
The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit. Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition Page 10 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 under Rule 28 and, therefore, in an election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter or right that he is entitled to invoke the jurisdiction of this court."
6. Heard Mr. B. M. Mangukiya, the learned advocate appearing for the writ-applicant, Mr. Ishan Joshi, the learned AGP appearing for the respondent - State and Mr. Tushar Sheth, the learned advocate appearing for the respondents No.5 to 9.
Position of Law :-
7. The law as regards judicial review in the matters pertaining to election is well settled.
(a) The Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorised Officer and Cooperative Officer (Marketing), reported in 2006 Page 11 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 (1) GCD 211 held that the inclusion or exclusion of name in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India. Paragraphs 31, 32 and 33 reads thus :-
"31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India and Ors. (18 GLR 714) where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.
31.1. In the case of Mehsana Dist. Coop. Sales and Purchase
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Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR 308), the Court have noted the observations made by the Hon'ble Apex Court as under:-
"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies".
In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration."
In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.
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32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/ or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll. 32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the Page 14 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. Page 15 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022
C/SCA/7776/2022 ORDER DATED: 05/05/2022 The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
(b) The ratio laid down by the Division Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Ltd., vs. State of Gujarat and Others, reported in 2017(2) GLR 902, paragraphs 13 to 16 read thus :-
"13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorised officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorised officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming Page 16 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorised officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.
14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in Page 17 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all. 14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.
15. However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of election, it can approach the competent authority by raising an election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the findings recorded either by the learned single Judge or by this Court in this appeal.
16. Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of."
8. In view of the ratio as laid down by the Full Bench of Page 18 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 this Court the writ-applicant can avail statutory remedy of filing a Election Petition after the election is concluded under Rule 28 of the Rules, 1965. Rule 28 of the Rules 1965 reads thus :-
"28. Determination of validity of election .- (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing-
(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and
(b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and Page 19 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 after making such inquiry as he or it as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member."
9. The writ-applicant herein is aggrieved by the impugned order dated 9.4.2022 passed by the respondent No.3. The respondent No.3 by the impugned order dated 9.4.2022 rejected the objections filed by the writ-applicant by passing an order including the names of the respondents No.5 to 9 in the preliminary voters' list. The said order was passed after issuance of notice and hearing both the parties. The Authorised Officer by the impugned order held that in view of the fact that the respondents No.5 to 9 were holding the valid license duly issued by the Committee, it was ordered that the names of the respondents No.5 to 9 were included in the preliminary voters' list. It appears that the respondent No.3 relied on Page 20 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 Clause 11(1)(2) of the Act while deciding the said application.
10. The election programme came to be published on 5.3.2022. It can be said that the election is set to be in motion. In view of the ratio as referred to above once the process of election has been set in motion this Court under Article 226 of the Constitution of India would not interfere in the election process. Accordingly this Court is not inclined to interfere with the impugned order passed by the respondent No.3 and relegate the writ-applicant to avail statutory remedy by filing election petition under Rule 28. The inclusion of name of the respondents No.5 to 9 in the preliminary voters' list results in inclusion of name of the respondents No.5 to 9 in the voters' list. In view of the ratio as laid down by the Full Bench of this Court as referred above, the writ-applicant can avail the benefit of provisions of Rule 28 of the Rules by filing the election petition. The authority under Rule 28 has wide power to cancel and, confirm and amend the election and also to direct to hold fresh election in case the election is set aside and the remedy under Rule 28 is an efficacious Page 21 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022 C/SCA/7776/2022 ORDER DATED: 05/05/2022 remedy.
11. In view of above, this Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and in view of this Court no extraordinary circumstances warrant interference by this Court.
12. It is clarified that this Court has not opined on the merits of the matter, since this Court has relegated the writ-applicant to avail statutory alternative remedy.
13. In view of above, the present writ application fails and the same stands dismissed.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 22 of 22 Downloaded on : Fri May 06 20:55:39 IST 2022