Gujarat High Court
Chimanbhai Madhubhai Shekhra vs Director, Agricultural Marketing And ... on 26 October, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/16187/2023 ORDER DATED: 26/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.16187 of 2023
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CHIMANBHAI MADHUBHAI SHEKHRA
Versus
DIRECTOR, AGRICULTURAL MARKETING AND RURAL FINANCE
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Appearance :
MR BHARAT T RAO for the Petitioner.
for the Respondent(s) No. 16,18,31,50,56
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER ASSISTED BY MR JAY
TRIVEDI, AGP for the Respondent No.1.
MR VC VAGHELA for the Respondent
Nos.12,13,14,15,16,17,19,20,21,22,23,24,26,27,28,29,30,31,32,33,34,35,36,37,3
9,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,6,60,61,62,63,6
4,65,66,7,8,9
NOTICE SERVED for the Respondent Nos.38,59
NOTICE SERVED BY DS for the Respondent Nos.1,11,18,2,25,3
NOTICE UNSERVED for the Respondent Nos.10
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 26/10/2023
ORAL ORDER
1. With the consent of the parties, the matter was heard finally on 17.10.2023. Thereafter, the matter was listed for dictation of judgment at 14.30 hours on 18.10.2023. But due to paucity of time, order / judgment could not be dictated and, therefore, on 18.10.2023, the matter was directed to be listed for orders on today i.e. 26.10.2023.
2. By way of this petition, the petitioner has challenged the order dated 6.9.2023 passed by the respondent No.2 - Authorized Officer & Cooperative Officer (Market), District Registrar of Cooperative Societies, Amreli whereby objection raised by the petitioner in respect of inclusion of 60 voters in the voters' list was rejected.
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3. Heard Mr. B. T. Rao, learned advocate for the petitioner, Ms. Manisha Lavkumar, learned Government Pleader appearing for respondent Nos.1 to 3 and learned advocate Mr. V. C. Vaghela appearing for respondent Nos.4 to 66.
4. The brief facts giving rise to the present petition are stated as under :-
4.1 Pursuant to declaration of election program by the Director, Agriculture Produce and Rural Economy, Gujarat State, Gandhinagar, the election programme of APMC Savarkundla was published on 2.8.2023. The Authorized Officer published preliminary voter list on 19.8.2023. The petitioner raised objection in respect of inclusion of 63 persons i.e. private respondents herein in the preliminary voters list in respect of Traders constituency vide objection dated 28.8.2023.
4.2 Pursuant to the aforesaid objection, the respondent No.3 issued notices to all the persons named by the petitioner in the objection dated 28.8.2023 and even the petitioner also appeared on 1.9.2023 before the Authorized Officer and has given written submissions to the Authorized Officer and thereby raised his objection once again.
4.3 Upon hearing the parties, the Authorized Officer vide order dated 6.9.2023 considered the objections raised by the petitioner and rejected it in respect of 60 members who were included in the voters' list and as 3 members did not appear before the Authorized Officer, he ordered deletion of their names from the voters' list.Page 2 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023
NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined 4.4 Being aggrieved by the aforesaid order dated 6.9.2023, the petitioner has preferred this petition.
5. Pursuant to the issuance of notice by this Court, private respondents appeared and most of the private respondents have filed their respective replies in the present petition.
6. Mr. B. T. Rao, learned advocate for the petitioner has submitted that though specific objections were raised by the petitioner that the respondents who are included in the voters' list are not the traders as some of them are residing in Canada, some of them are having license of other APMCs and, therefore, they are not the Traders and, therefore, their inclusion in the voters' list is erroneous. He further submitted that the private respondents have not produced the documents like their yearly turnover, yearly accounts, income tax returns, GST number, Bank account details, place of business, evidence related to their trading etc. and have produced merely receipts of the market cess paid by them and, therefore, their names could not have been included in the voters' list only on the basis of production of limited documents like receipt of the market cess paid by the private respondents. He relied upon the decision of the Division Bench of this Court in the case of Pransli Seva Sahakari Mandali Limited and others v. State of Gujarat and others, Special Civil Application No.4189 of 2014 decided on 10.4.2014. By relying upon paragraphs 6.3 and 6.4 of the said judgment, he submitted that under Rule 7, Sub-Rule (2), the Authorized Officer is duty bound to conduct an inquiry if he may deem fit necessary in respect of information provided by the Market Committee.
Page 3 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023 NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined 6.1 He further submitted that though specific objections
were raised by the petitioner in respect of private respondents that the private respondents are actually not the Traders, some of them are residing in Canada and some of them are the members of other APMCs, despite that no proper inquiry was carried out by the Authorized Officer and the objections of the petitioner are rejected. By making the aforesaid submissions, Mr. Rao prayed to quash and set aside the impugned order dated 6.9.2023 passed by the Authorized Officer, APMC, Amreli.
7. Ms. Manisha Lavkumar, learned Government Pleader appearing with Mr. Jay Trivedi, learned Assistant Government Pleader for the respondent Nos.1 to 3 opposed the petition and submitted that the petitioner has an alternative remedy of preferring an election petition as provided in Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 and the dispute related to inclusion and exclusion of members should not be entertained by this Court in the writ petition under Article 226 of the Constitution of India. He further submitted that the objections of the petitioner were considered by the Authorized Officer and pursuant to that, the private respondents were summoned on 1.9.2023 and even the petitioner was also given an opportunity to participate in those proceedings and on that day also, the petitioner submitted his objections as can be seen from the averments made in the petition itself in paragraph 13 and those submissions are also annexed to the petition at Annexure E. She further submitted that the Authorized Officer has passed a detailed order and details of 60 traders were produced by the Secretary of the APMC and, therefore, by considering the overall material produced before the Authorized Officer, he has passed the impugned order which is based on factual material and, therefore, considering the fact that Page 4 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023 NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined the Authorized Officer has after carrying out due inquiry, the impugned order was passed and hence, the said order is not open for judicial scrutiny by this Court under Article 226 of the Constitution of India as the order has been passed by the Authorized Officer upon appreciation of material produced before the authority by the objector as well as private respondents. She further submitted that this Court may not entertain this petition as the petitioner if aggrieved by the outcome of the election can always file election petition and challenge the election.
7.2 Learned Government Pleader relied upon the decision of the Division Bench of this Court in the case of Patel Natwarbhai Manibhai and others v. State of Gujarat and others, decided on 20.3.2015 in Special Civil Application Nos.4893 and 4897 of 2015. She further relied upon the decision of this Court in the case of Mohmed Javid Abdulmutlib Pirzada v. State of Gujarat, rendered on 6.2.2023 in Letters Patent Appeal No.555 of 2022 and reiterated the submission that even as per the latest decision of Division Bench of this Court, if the petitioner is aggrieved by the decision taken by the Authorized Officer, the appropriate remedy would be to file an election petition under Rule 28 of the Rules and the present petition under extraordinary jurisdiction under Article 226 cannot be entertained.
By making the aforesaid submissions, she prayed for dismissal of the petition.
8. Mr. V. C. Vaghela, learned advocate appearing for private respondents drew attention of this Court to the various affidavits filed by the private respondents and submitted that all Page 5 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023 NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined the private respondents have placed on record the details about the cess paid by them in the year 2022 - 23 and other necessary details. He further submitted that each of the private respondents have filed affidavit-in-reply before the Authorized Officer on 1.9.2023 and produced the material to indicate that they are the traders. He further submitted that definition of 'trader' as defined in Section 2 (xxiii) does not speak about any particular trading volume or any turnover or business of any particular agriculture produce while defining a trader and, therefore, it is a matter of subjective satisfaction of the Authorized Officer based upon the material produced before the Authorized Officer to consider whether a person can be said to be a trader or not.
8.1 Mr. Vaghela further submitted that this Court may not exercise extraordinary writ jurisdiction under Article 226 of the Constitution of India in respect of the challenge made in the petition as the same would amount to re-appreciation of evidence which has already been considered by the Authorized officer and therefore, once the procedure as prescribed under Rule 7 is followed by the Authorized Officer and, therefore, the material produced before the Authorized Officer and the decision based upon that material is not open to judicial scrutiny by way of fact finding inquiry under Article 226 of the Constitution of India.
By making the aforesaid submissions, he prayed for dismissal of the petition.
9. I have heard learned advocates appearing for the respective parties and perused the record. On perusal of the record, I found that though the petitioner has objected vide objection dated 28.8.2023 by raising three fold objections (i) that Page 6 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023 NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined the private respondents are not the Traders as they are not trading regularly, (ii) some of the private respondents are residing in Canada and (iii) some of the private respondents are also member of other APMCs.
10. Pursuant to the aforesaid objections, the Authorized Officer took note of the same and issued summons to the petitioner as well as private respondents. On 1.9.2023, the petitioner along with private respondents were heard. However, it seems that the petitioner though submitted objection once again on 1.9.2023, the same were general in nature. He did not produce any specific material against each of the private respondents. He did not provide any specific detail stating that why particular members' name should not be included in the voters' list whereas the Authorized Officer considered the material produced before it by the Secretary of APMC as well as private respondents and on appreciation of aforesaid material, he came to the conclusion that the respondents are rightly included in the voters' list in the Traders constituency.
11. Section 2 (xxiii) of the Act defines 'trader' which is as under :-
"trader" means a person who carries on the business of buying or selling of notified agricultural produce and includes a cooperative society, joint family or an association of persons whether incorporated or not which carries such business for the purpose of selling, processing, manufacturing, or for any other purpose, as the case may be, except for the purpose of domestic consumption by himself;"Page 7 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023
NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined
12. The aforesaid definition indicates that the definition does not contain any specific minimum transaction limit or turnover or any quantity of agriculture produce to fall within the definition of Trader. In absence of there being any specific requirement to be called trader, it is a matter of subjective satisfaction of the Authorized Officer. Therefore, when the Authorized Officer has already carried out an inquiry and has looked into the material which was produced before the Authorized Officer, and by appreciating the evidence in the form of material produced before the Authorized Officer, has come to the conclusion that the name of the private respondents are rightly included in the voters' list. Such decision of Authorized Officer is based on an inquiry provided under Rule 7 (2) of the Gujarat Agricultural Produce Markets Rules, 1965. That the conclusion arrived at by the Authorized Officer is based upon subjective satisfaction on the basis of material produced before the Authorized Officer. Therefore, this Court is of the view that the Authorized Officer has already acted as per the provisions of Rule 7 (2) of the Rules. Therefore, the decision in the case of Pransli Seva Sahakari Mandali Limited and others (Supra) will not help the petitioner.
13. As far as the maintainability or question as to what extent the Court can interfere with the decision taken by the Authorized Officer is concerned, this Court is of the view that the decision taken by the Authorized Officer is based on material on record and in absence of there being any parameters, like any number of financial transactions, quantity of trading of agriculture produce, any minimum financial requirement related to trading of commodity or any minimum turnover, the Authorized Officer has used his discretion on the basis of material available with him to ascertain whether the objections raised by the petitioner are legally Page 8 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023 NEUTRAL CITATION C/SCA/16187/2023 ORDER DATED: 26/10/2023 undefined tenable in the eyes of law or not. Therefore, the decision arrived at by the Authorized Officer which is based on factual aspects which has led to its subjective satisfaction are not open to judicial scrutiny in a writ petition under Article 226 of the Constitution of India.
14. The Court has already considered the fact that the Authorized Officer has already followed the procedure prescribed under the law. Even learned advocate appearing for the petitioner could not point out any flow or lacuna in the procedure adopted by the Authorized Officer while examining his objections. In absence of there being any procedural lacuna, the decision taken by the Authorized Officer cannot be said to be illegal as the same is based on material on record and arrived at by the Authorized Officer on the basis of his subjective satisfaction.
15. In view of the above, I do not see any error committed by the Authorized Officer in passing the order dated 6.9.2023 and, therefore, the petition is required to be dismissed and the same is accordingly dismissed. Notice is discharged. No order as to costs. However, dismissal of this petition will not come in the way of the petitioner in challenging the final outcome of the election by way of appropriate election petition under Rule 28 of the APMC Rules.
(NIRZAR S. DESAI,J) SAVARIYA Page 9 of 9 Downloaded on : Thu Oct 26 20:54:36 IST 2023