Gujarat High Court
Vanrajbhai Bhavanbhai Parmar vs State Of Gujarat on 5 August, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/12300/2022 ORDER DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12300 of 2022
WITH
R/SPECIAL CIVIL APPLICATION NO. 12305 of 2022
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VANRAJBHAI BHAVANBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR PS CHAMPANERI(214) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
MS. NIDHI VYAS, AGP for the Respondent(s) No. 13
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 12
MR VC VAGHELA(1720) for the Respondent(s) No. 10,6,8
MS ASHA D TIWARI(2983) for the Respondent(s) No. 11
NOTICE SERVED BY DS for the Respondent(s) No. ,2,3,4,5,7,9
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/08/2022
COMMON ORAL ORDER
1. Both the petitions are identical and both the petitions are challenging the selfsame order of even date i.e. dated 10.06.2022 and 22.06.2022. Both the petitions also challenge the impugned Preliminary Voters' list published on 23.05.2022, Revised Draft Voters' list published on 11.06.2022 and Final Voters' list published on 23.06.2022 of the election Page 1 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 of the Agriculture Produce Market Committee (APMC), Wadhwan qua inclusion of the respondent nos. 3, 5, 6, 8, 9 and 10 societies (as far as Special Civil Application No. 12300 of 2022 is concerned) and qua inclusion of the respondent nos. 1 to 6 society in the voters' list (as far as Special Civil Application No. 12305 of 2022 is concerned). Both the petitions seek deletion of names of the respondent societies and its managing committee members from the final voters' list of APMC, Wadhwan. In both the petitions, facts are identical and same, and therefore, no separate facts are narrated qua Special Civil Application No. 12305 of 2022. The composite prayers are prayed for against the separate societies in both the petitions. The prayers of Special Civil Application No. 12300 of 2022 reads thus:
"(A) To admit and allow the present petition;
(B)To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned Preliminary voters list published on 23.05.2022, Revised draft voters list published on 11.06.2022 and final voters list published on 23.06.2022 of the elections of Agriculture Produce Markets Committee, Wadhwan, qua the inclusion of Page 2 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 respondent no. 3, 5, 6 and 8 to 10 societies in voters list.; and further be pleased to delete the names of the respondent nos.3, 5, 6 and 8 to 10 societies and it's managing committee members from the final list of voters of Agricultural Produce Market Committee, Wadhwan;
(C) To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned orders dated 10.06.2022 and 22.06.2022 qua respondent no.
3, 5, 6 and 8 to 10 societies, at Annexure-B to the petition.
(D) Be pleased to issue a writ of certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to restrain the members Executive Committee of respondent no. 3, 5, 6 and 8 to 10 societies from participating in the election of Agriculture Produce Market committee, Wadhwan in all and any manner; (E) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned final voters list so far as it includes respondent no. 3, 5, 6 and 8 to 10 societies and it's managing committee members respectively;
(F) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned orders dated 10.06.2022 and 22.06.2022 so far as it includes respondent no. 3, 5, 6 and 8 to 10 societies, At Annexure-B to the petition;
(G) Be pleased to pass such other and further orders as Page 3 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 may be deemed fit and proper."
2. The prayers of Special Civil Application No. 12305 of 2022 reads thus:
"(A) To admit and allow the present petition;
(B) To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned Preliminary voters list published on 23.05.2022, Revised draft voters list published on 11.06.2022 and final voters list published on 23.06.2022 of the elections of Agriculture Produce Markets Committee, Wadhwan, qua the inclusion of respondent no. 1 to 6 societies in voters list.; and further be pleased to delete the names of the respondent nos. 1 to 6 societies and it's managing committee members from the final list of voters of Agricultural Produce Market Committee, Wadhwan;
(C) To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned orders dated 10.06.2022 and 22.06.2022 at Annexure-B colly to the present petition.
(D) Be pleased to issue a writ of certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to restrain the members Executive Committee of respondent no. 1 to 6 societies from participating in the election of Agriculture Produce Market committee, Wadhwan in all and any manner;
(E) Pending admission and final disposal of the present Page 4 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 petition, be pleased to stay the implementation, operation and execution of the impugned final voters list so far as it includes respondent no. 1 to 6 societies and it's managing committee members respectively;
(F) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned orders dated 10.06.2022 and 22.06.2022 At Annexure-B to the petition;
(G) Be pleased to pass such other and further orders as may be deemed fit and proper."
3. The Special Civil Application No. 12300 of 2022 be treated as a lead matter and the facts are narrated from the said petition.
4. The elections to the Agriculture Produce Market Committee, Wadhwan came to be declared on 06.05.2022. The Preliminary voters' list came to be published on 23.05.2022. The petitioners herein filed objections to the said list qua respondent Nos. 3, 5, 6, 8, 9 and 10 societies.
5. It is the case of the petitioners that the respondent No.2 rejected the objections filed by the petitioners by the impugned order dated 10.06.2022. It is further the case of the Page 5 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 petitioners that the said order came to be passed by the respondent No.13 without following the principles of natural justice and the said order dated 10.06.2022 was not communicated to the petitioners.
6. It was when the revised voters' list came to be published on 11.06.2022, the petitioners came to know that the objections which were taken by the petitioners have been rejected by the respondent No.13. The petitioners therefore subsequently approached the respondent No.13 by preferring an application by filing objections for the second time, which also came to be rejected on the ground that the voters' list is a continuation of the preliminary voters' list and, therefore, the second objections which were filed by the petitioners were not maintainable. It appears that it was further stated that only new names were added to the revised voters' list then and then the second objections would be maintainable against the new voters' whose names were included in the voters' list.
7. Being aggrieved and dissatisfied by the Page 6 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 communication addressed by the respondent No.13 dated 22.06.2022 rejecting the objections taken by the petitioners against the respondents No.3, 5, 6, 8, 9 and 10 societies, the petitioners are constrained to approach this Court by filing the present writ-petitions.
8. Heard Mr. P. S. Champaneri, learned counsel appearing for the petitioners. Mr. Champaneri, learned counsel vehemently submitted that the respondents-Mandali cannot be said to be Primary Agriculture Credit Cooperative Society, as defined under Section 11(i) of the Act.
8.1. Mr. Champaneri, learned counsel relied on Section 11(i) of the Act fortifying the aforesaid submissions submitted that only the members of the Managing Committee of Primary Agriculture Credit Cooperative Society dispensing agriculture credit in the market area can be said to be voters' and though the Primary Agriculture Credit Cooperative Society indicates that being the Cooperative Society has right to be included in the voters' list, inasmuch Section 2 (7A) of the Gujarat Page 7 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 Cooperative Societies Act defines the cooperative credit structure. The Primary Agriculture Credit Cooperative Society only are in the cooperative credit structure in the three tire system as defined.
8.2. Mr. Champaneri, learned counsel submitted that the powers of the Committee are provided under Section 44A of the Act. Relying on the same Mr. Champaneri, learned counsel submitted that the provisions contained in Section 11(1-i) of the APMC Act, after its amendment under the aforesaid provision, the Agriculture Credit Cooperative Society have to be of cooperative credit structure. It must be borrowing finance for the disbursement to the agriculturist received through three tire structure system and not in any other manner. It was submitted that the respondent societies did not get the credit approved from the District Central Bank and the society have not disbursed any finance by borrowing from the Central Cooperative Bank from the credit cooperative structure, therefore the respondent credit society cannot be said to be Page 8 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 Primary Agriculture Cooperative Society dispensing agriculture credit and, therefore, the respondent No.13 could not have included the names of the members of the Managing Committee of the respondent society in the voters' list. 8.3. Mr. Champaneri, learned counsel further placed reliance on the AIR 2019 CC 1644 in the case of Mahervad Para Vistar Cooperative Service Society Ltd. vs. State of Gujarat in the Special Civil Application No.4555 of 2019 and allied matters. It was submitted that while deciding the objections the respondent No.13 being quasi-judicial authority and, therefore, is required to follow the basic procedure and principles following the principles of natural justice. Undisputedly the petitioners were never heard else the petitioners would have rebutted to the submissions advanced by the respondents. However, no such procedure was undertaken by the respondent authority. Relying on such submissions, it was submitted that both the impugned orders dated 10.06.2022 and 22.06.2022 qua the respondents No.3, 5, Page 9 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 6, 8, 9 and 10 passed by the respondent No.13 are required to be quashed and set aside and the names of the respondent societies are required to be deleted from the voters' list. 8.4. Mr. Champaneri, learned counsel also submitted that all the three voters' list i.e. preliminary list published on 23.05.2022 (at page-22) revised draft voters' list published on 11.06.2022 (at page-48) and final voters' list published on 23.06.2022 of the election of the Wadhwan APMC qua the deletion of names of the respondents- societies from aforesaid the voters' list.
9.1. Heard Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the respondent no.13 - Authorized Officer.
9.2. Ms. Nidhi Vyas, learned AGP at the outset submitted that that the present petition is not maintainable on the ground of availability of alternative efficacious remedy under Rule 28 of the Agriculture Produce Market Rules, 1965 (hereinafter referred to as 'The APMC Rules' for short). Ms, Page 10 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 Vyas, learned AGP submitted that Rule-28 provides for challenging the validity of election of the market committee by way of an election petition and petitioners would have liberty to take all the contentions including those averred in the present petition before the appropriate forum and the same will be adjudicated in accordance with Rule-28 of the APMC Rules. In view of above, this Court may not exercise its extraordinary jurisdiction under Article- 226 of the Constitution of India and relegate the petitioners to avail the alternative efficacious remedy by filing Appeal under Rule-28 of the APMC Rules. Ms. Vyas, learned AGP relied on the decision in the case of Daheda Group Seva Sahakari Mandali Ltd. v/s. R.D. Rohit reported in 2006 (1) GCD 211 (para-33). Ms. Vyas, learned AGP submitted that main challenge in the petition is the order dated 10.06.2022 (revised draft list) based on which the subsequent order dated 22.06.2022 (final voters' list) was passed. Ms. Vyas, learned AGP submitted that the main order dated 10.06.2022 has now been merged with the order dated 22.06.2022 with regard to final voters' list and that the order Page 11 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 dated 10.06.2022 cannot be challenged, more particularly, on merits. The order dated 10.06.2022 was not challenged before the appropriate forum, at the relevant point of time. 9.3. In view of aforesaid submissions, Ms. Vyas, learned counsel submitted that the present petition challenging the final voters' list may not be entertained, on this ground alone and the petition be dismissed in limine.
9.4. Ms. Vyas, learned AGP further submitted that Section 11(1)(i) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as 'The APMC Act' for short) provides for constitution of the market committee with 10 agriculturists who shall be dispensing agricultural credit. Relying on Section 11(1)(i) of the APMC Act, Ms. Vyas, learned AGP submitted that any society to become eligible as a primary credit cooperative society, the main criteria are that the society must dispense agricultural credit in the market area and to decide the eligibility criteria of the primary agricultural credit cooperative societies, more particularly, for the purpose Page 12 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 of elections, the criteria are dispensation of agricultural credit and not three-tier credit cooperative structure. Ms. Vyas, learned AGP submitted that upon conjoint reading of Section 11(1)(i) of the Act r/w. Rule 7 of the APMC Rules, the criteria to decide the eligibility of agricultural societies is dispensation of agricultural credit as there should be nexus to agricultural activity. Ms. Vyas, learned AGP submitted that the Authorized Officer after issuance of notice to the aggrieved respondents- societies sought 10 types of documents from such aggrieved societies to satisfy the authority with regard to the objections raised by the petitioners. Upon receipt of such documents, the Authorized Officer has granted an opportunity of hearing on 08.06.2022, verified all the documents including bye-laws, bank-books, account file, shaak-patrak, charge created under Sections 48 and 49 of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the Act, 1961" for short), balance-sheet, etc. and upon conducting summary inquiry, the Authorized Officer have prima-facie reached to a conclusion that the respondent societies are dispensing agricultural credit Page 13 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 in consonance with bye-laws, and therefore, the objections raised by the petitioners came to be rejected. The Authorized Officer verified the shakh-patrak, karikhat, charge created, its effect on 7/12 records, etc. to ensure that the transactions are genuine. Ms. Vyas, learned AGP submitted that the Authorized Officer also found that objections raised in respect of 3 societies to be correct, wherein, 2 societies did not remain present and remaining society could not provide sufficient documents. All 3 societies had failed to discharge their burden and substantiate their dispensation of agricultural credit with support of documents, and therefore, the Authorized Officer found that names of 3 societies being respondent nos. 2, 4 and 7 where required to be deleted. Ms. Vyas, learned AGP also submitted that the impugned orders dated 22.06.2022 are passed as per Rule 8(1-A) of the APMC Rules. Ms. Vyas, learned AGP submitted that in the facts of the present case, objections raised by the petitioners for the respondent societies were not new names and their names were continued in provisional voters' list as well as revised draft list, and Page 14 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 therefore, any objections pertaining to such societies cannot be entertained under Rule 8 (1-A) of the APMC Rules. The powers of Authorized Officer under Rule-8(1-A) are very limited and it only lies against the new name, more particularly, when earlier the objections were rejected.
9.5. Ms. Vyas, learned AGP submitted that, in case of Kuber Bhandarreshwar Kheti Piyat Sahkari Mandali Limited v/s. Authorized Officer reported in 2012(1) GLR 742 has reiterated that the Authorized Officer can exercise powers under Rule-8 (1-A) to entertain objections against new names in voters' list and cannot delete the names of such voters' from provisional list, once such objections are rejected. 9.6. Ms. Vyas, learned AGP relied on Rule-7 and Rule-8 of the APMC Rules and submitted that there is no mandate under the APMC Rules to grant opportunity of personal hearing to the objectors. The intent of legislature behind purposeful non-inclusion of provision of personal hearing is to ensure that the election programme is completed as per its time bound Page 15 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 structure/ schedule. However, principles of natural justice would be required to be followed for the persons who can be aggrieved by the order or action of the authority. Ms. Vyas, learned AGP submitted that petitioners were mere objectors and grant or non-grant of objections would not affect the voting rights of the objectors.
9.7. Ms. Vyas, learned AGP submitted that the order which was passed was duly placed on the notice board of the society, and therefore, the procedure as contemplated under the Act has been duly followed. Ms. Vyas, learned AGP has also placed on record the Registered Post A.D. slips to demonstrate that the order dated 10.06.2022 was duly communicated to the respective parties and the RPAD receipts were also received by the authority latest by 16.06.2022 i.e. on the date of second objections. Placing reliance on the aforesaid RPAD slips, Ms. Vyas, learned AGP submitted that the petitioners herein received the orders within the time frame and contrary to the averment made in para-3.11 and Page 16 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 3.12 of the petition.
9.8. In view of the aforesaid submissions, Ms. Vyas, learned AGP reiterated that there is no violation of the principles of natural justice as alleged by the petitioners and to substantiate the said contention, Ms. Vyas, learned AGP relied on SCA No. 9885 of 2015 in the case of Sanjaykumar Amarsing Parmar v/s. State of Gujarat.
9.9. Ms. Vyas, learned AGP lastly submitted that the impugned orders dated 10.06.2022 and 22.06.2022 are detailed reasoned order passed by the respondent- Authorized Officer, after conducting the summary inquiry, in accordance with law. In view of above, the orders passed by the Authorized Officer therefore be upheld. Ms. Vyas, learned AGP submitted that mere allegation contending mala-fide against the Authorized Officer, who is discharging his official duties, be depricated and allowing the present petition would be jeopardized and the remaining stages of election will be rendered futile. Page 17 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022
C/SCA/12300/2022 ORDER DATED: 05/08/2022 9.10. In view of above, Ms. Vyas, learned AGP submitted that the present petition be dismissed and the petitioners be relegated before the statutory authority by filing Appeal under the Rules.
10.1. Heard Mr. V.C. Vaghela, learned counsel appearing for the private respondent nos. 6, 8 and 10.
10.2. Mr. Vaghela, learned counsel has relied on the affidavit in reply filed for and on behalf of the respondent nos. 6, 8 and 10. Mr. Vaghela, learned counsel adopted the submissions advanced by Ms. Vyas, learned AGP and submitted that the petitioners may be relegated to the alternative remedy by filing Election Petition under Rule-28 of the APMC Rules. 10.3. Mr. Vaghela, learned counsel relied upon the following judgments:
(1) 2006(1)GCD 211 (2) 2016(4)SCC 429 (3) 2001(8)SCC 509 (4) SCA No.2302 of 2011 with allied matters (5) SCA No.4893 of 2015.Page 18 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022
C/SCA/12300/2022 ORDER DATED: 05/08/2022 10.4. Mr. Vaghela, learned counsel submitted that the petition is required to be dismissed on the ground of delay and latches. Mr. Vaghela, learned counsel submitted that the petition is required to be dismissed on the ground that on 06.06.2022 the objection has been filed, which has been dismissed on merits. The petitioners have raised objections on 16.06.2022 and the petition was held to be not maintainable and objections against such order would not be maintainable.
Further 9 different orders are the subject matter of the present petition by way of only single petition i.e. present petition which also cannot be permitted and on this ground alone, the present petition be dismissed.
10.5. Mr. Vaghela, learned counsel submitted that the respondent is registered as a Primary Agriculture Credit Cooperative Society. The bye-laws of the society provides for dispensing agricultural credit. The bye-law of the society also provides that the society can obtain deposits from members Page 19 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 and grant loans to its members. Mr. Vaghela, learned counsel has placed on record the bye-laws of the society to demonstrate that the main object of the society is to dispense the agricultural credit and the society can raise funds through different means.
10.6. Mr. Vaghela, learned counsel submitted that the society is dispensing agricultural credit every year to the members of the society. Mr. Vaghela, learned counsel referred to bye-law No. 4(1) of the bye-law which provides that the society can create funds from the below mentioned sources:
(a) from shares (1) from members (2) from Government
(b) from deposit (1) from members (2) from non members of the area of the operation
(c) from loans
(d) from gifts
(e) admission fee 10.7. Mr. Vaghela, learned counsel submitted that only contention raised by the petitioners in the present petition is that the respondent society has not availed the loans under Page 20 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 three tier system, and therefore, names of the respondents are required to be deleted from the voters' list. Placing reliance on Section 11(1)(i), Mr. Vaghela, learned counsel submitted that Section 11(1)(i) provides that the society should be dispensing agricultural credit and it nowhere provides that dispensation of agricultural credit should be through three tier system only, and therefore, the contentions raised by the petitioners in the present petition are not tenable in law, and therefore, the present petition be dismissed.
10.8. Mr. Vaghela, learned counsel submitted that the societies are registered as agricultural credit cooperative societies and whether they have dispensed agricultural credit or not has been assessed by the Authorized Officer and the Authorized Officer has reached to a conclusion that the societies are dispensing the agricultural credit, and therefore, the objections raised by the present petitioners were rejected. The respondent societies have been registered in the year 2019 and since then the respondent society has been dispensing Page 21 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 agricultural credit to its members. Since the District Cooperative Bank is not granting loans and sanctioning Sakh Patra to the respondent society, and therefore, the respondent society has obtained deposits from its members and after obtaining deposits from its members have granted the loan facility to its members. Mr. Vaghela, learned counsel submitted that the applications of the members were taken for obtaining loan and after following necessary procedure, the loan has been granted to its members. The loan has been granted to its members right from 2019 to 2022. Mr. Vaghela, learned counsel submitted that every year necessary formality has been completed by the society.
10.9. Mr. Vaghela, learned counsel submitted that the Boja / charge has been registered in the 7/12 extract of the revenue records of such agriculturist. The judgment relied on by the petitioners does not exclude dispensation of agricultural credit from other sources which are otherwise permitted to the society and therefore, the objections raised by the petitioners is Page 22 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 vague and without any basis, and therefore, the present petition be dismissed in limine.
10.10. Mr. Vaghela, learned counsel has relied on the copies of the statements as Annexure-II showing the dispensation of agricultural credit by the respondent-society. 10.11. In view of various representations made by the respondents to obtain agricultural credit from District Central Cooperative Bank Limited, but due to political reasons, the District Cooperative Bank has not dispensed agricultural credit to the respondents-societies. Therefore, the respondents- societies applied to the Gujarat State Cooperative Agriculture & Rural Development Bank Limited at Surendranagar for grant of loan to the society. The said bank has granted agricultural credit to the respondents-societies for the year 2021-2022, and therefore, the respondents-societies are dispensing agricultural credit through receiving deposits from its members as well as through Gujarat State Cooperative Agriculture & Rural Development Bank Limited. Therefore, the society is primary Page 23 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 agriculture cooperative society and is dispensing the agricultural credit as provided under the provisions of the Act, Rules and bye-laws.
10.12. In view of the aforesaid submissions, Mr. Vaghela, learned counsel submitted that the present petition being devoid of merits be dismissed as not maintainable and the present petitioners having challenged the orders passed in separate proceedings with regard to various cooperative societies by way of a single petition, the present petition may kindly be dismissed.
11.1. Heard the learned counsels appearing for the respective parties.
11.2. By way of the present petition, the petitioners herein have challenged the impugned orders dated 10.06.2022 and 22.06.2202, wherein, the objections raised by the petitioners came to be rejected. The operative part of the said order dated 10.06.2022 reads thus:
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C/SCA/12300/2022 ORDER DATED: 05/08/2022 "Upon scrutinizing the same, the following details are found. (1) The society has been registered in 1970 and earlier, the society was in liquidation.
(2) The society has provided credit of Rs.3,25,000/- to 9 members in 2021-22.
(3) The society has provided agricultural credit by obtaining term deposits from the members.
(4) The copies of the credit related documents such as loan application, bond of credit, promissory note, surety bond, vouchers, continuing guarantee bond etc. submitted to the society have been produced.
(5) The society has created encumbrance for the credit given to its members on the lands of the concerned agriculturists. (6) The copies of village form No.8A, 7/12 for the agricultural lands of all the members having taken credit from the society have been filed.
(7) The credit statements for the members to whom the credit is given have been prepared in accordance with their agricultural lands and crop cultivation and approved in the meeting of the managing committee.
The main objective of the said society is to provide sufficient agricultural credit to its members. As stated by the society in its representation, the society was under liquidation earlier. But, it has started functioning as per its objectives for last two years. The society has undertaken task to accomplish its goals in 2021-22. As part of it, the society has provided agricultural credits to its members and the society will be trying to increase it gradually in coming times.
Thus, as per the facts mentioned above, the society has provided agricultural credit to the members as a part of its functioning according to its objectives from 2021-22 after a long delay following its revival. The procedure for providing an agricultural credit to the members has mostly been followed as per the co-operative credit structure. Thus, since the representation of the applicants does not appear appropriate, it is not accepted." 11.3. The operative part of the said order dated 22.06.2022 reads thus:
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C/SCA/12300/2022 ORDER DATED: 05/08/2022 "You had earlier made a representation vide your letter dated 06/06/2022 to delete the names of the members of the above mentioned societies, following which, a decision has been taken through my orders dated 10/06/2022 as per the rules and you have been informed about the same by a letter.
With respect to the above matter, it is to state that, the names of the members of the managing committee of the said society had been included in the draft list of voters of the farmers' constituency published on 23/05/2022 and a time limit till 06/06/2022 was given for submitting objections in this regard. After carrying out necessary changes considering the objections submitted within the prescribed time limit, the list of voters has been re-published on 11/06/2022. In this regard, Rule-8(1A) of the Gujarat Agricultural Produce Market Committee Rules, 1965 provides that, "Rule-8(1A) After receiving applications if any, under sub- rule (1) a revised draft list of voters shall be published by the authorized officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, alongwith a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorized officer for an amendment in the revised draft list of voters."
Thus, as per the above provision, the names of the members of the managing committees of the said societies had been included in the draft list of voters published on 23/05/2022 and the prescribed time limit for submitting objection in that regard was till 06/06/2022. As provided in Rule-8(1A) of the Gujarat Agricultural Produce Market Committee Rules, 1965, an objection can be raised only against the new names entered in the list of voters published on 11/06/2022. Thus, since your objection submitted vide your letter dated 16/06/2022 is not in conformity with the provision of the above mentioned rule and is submitted after expiry of the time limit, it is not accepted, which may kindly be noted.
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C/SCA/12300/2022 ORDER DATED: 05/08/2022 11.4. The elections of the APMC, Wadhwan came to be declared on 06.05.2022. The petitioners are aggrieved by the preliminary voters' list published on 23.05.2022. The revised draft voters' list was published on 11.06.2022 and the final voters' list published on 23.06.2022 of the elections of the APMC, Wadhwan qua the inclusion of the respondent nos. 3, 5, 6, 8, 9 and 10 societies in the voters' list. It appears that the petitioners filed objections with regard to the aforesaid societies before the respondent no.13 on the ground that the respondent societies are not primary agriculture credit society and that they are not dispensing agriculture credit under the provision of Section 11(1)(i) of the APMC Act, after its amendment in the said provision. The agricultural cooperative society has to be cooperative credit structure and it must be borrowed the finance to its members received through the three tier structure system and not in any other manner. The aforesaid objections came to be rejected by the Authorized Officer on 10.06.2022. The petitioners filed 2 nd objections Page 27 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 before the Authorized Officer on 16.06.2022 reiterating the objections that were taken by the petitioners on 06.06.2022, after the revised draft voters' list was published on 11.06.2022. The preliminary voters' list was published on 23.05.2022. The 1st objection was filed on 06.06.2022, hearing was took place on 08.06.2022 and accordingly order came to be passed on 10.06.2022. The revised voters' list was published on 11.06.2022, 2nd objection was raised on 16.06.2022 and impugned order was passed on 22.06.2022. That 2 nd objections objecting the preliminary voters' list on the ground that the respondent - Authorized Officer failed to provide an opportunity of hearing to the petitioners and published the revised draft voters' list. The petitioners having received the copy of the order dated 10.06.2022 accepting the objections qua respondent nos. 2, 4 and 6 and rejecting qua respondent nos. 3, 5, 6, 8, 9, 10 societies. The Authorized Officer considering the 2nd objections dated 16.06.2022 filed by the petitioners, declined to consider the objections on the ground that under Rule-8(1)(a) of the Election Rules, the objections Page 28 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 can be raised against newly included voters' only. The respondent societies' name continued from the preliminary voters' list to the revised draft voters' list and it was therefore not open for the Authorized Officer to consider the 2 nd objections raised by the petitioners against the inclusion of the respondent societies in the preliminary voters' list. The petitioners being aggrieved by the impugned orders dated 10.06.2022 and 22.06.2022 have constrained to approach this Court seeking the reliefs as stated above. The aforesaid election process is set in motion since 06.05.2022.
11.5. It is the case of the petitioners that the case of the petitioner falls under the exception caved out, as per the ratio laid down in the case of Daheda Group Seva Sahakari Mandali Limited v/s. R.D. Rohit, Authorized Officer and Cooperative Officer (Marketing) reported in 2006 (1) GCD 211. 11.6. In view of the fact that since the respondent societies are not dispensing agricultural credit under the three tier structure of the Act, it was not open for the Authorized Page 29 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 Officer to pass the impugned orders which are against the settled provision of law.
POSITION OF LAW :-
12.1. The law as regards judicial review in the matters pertaining to election is well settled.
12.2. 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 (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 Page 30 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 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 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.
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. Page 31 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022
C/SCA/12300/2022 ORDER DATED: 05/08/2022 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 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. 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."
12.3. In the case of Raghubhai Munjibhai Mungra v/s.
Jamnagar District Cooperative Bank Limited reported in AIR 2021 Guj. 185, relevant para-6 reads thus:
"6. It is a cardinal principle accepted, applied, reiterated and Page 32 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 followed that High Court will not, in all ordinary circumstances, interfere with the election process to interrupt, interfere or stall such democratic process and that all election disputes arising in the middle of the elections shall be postponed for their resolution until after the elections are over, to be dealt with in accordance with the machinery provided under the statute therefor.
6.1 In Vitthodar Vividh Karyakari Seva Sahakari Mandli (supra) relied on by the respondents in the context of Section 145U of the Gujarat Co-operative Societies Act read with Rule 128 of the Gujarat Agricultural Produce Markets Rules, 1965, this Court enunciated the law on the issue to observe that though the petition under Article 226 of the Constitution is maintainable, the powers are to be exercised only in extra-
ordinary or special circumstances such as where the order is ultra vires or nullity or ex facie without jurisdiction. The principles were reiterated in Mehsana Taluka Cooperative Purchase & Sales Union (supra), which decision came to be confirmed in Letters Patent Appeal No.1255 of 2016 and other cognate Appeals decided on 29th November, 2016. 6.2 In yet another decision of Division Bench of this Court in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance [2004 (3) GLR 2718], which involved the issue of rejection of nomination paper, after considering its earlier decisions in Kanjibhai Babaldas Patel v. Election Officer, APMC Visnagar [42 (1) GLR 260], Mehsana District Sales & Purchase Union v. State of Gujarat [1988 (2) GLR 1060] observed to hold that, "any interference after the scrutiny of nominations would create a real possibility of the election process being interrupted, obstructed or delayed. This is why in the aforesaid four decisions of the Division Bench of this Court it has been laid down that Rule 28 provides an efficacious remedy and when the election process is started, Court would refuse to exercise its extra-ordinary jurisdiction.". Reiterating the principle, the Court refused to go into the nature of dispute, that is the objections raised against the validity of nominations and did not examine whether Rule is violated to find out whether the Scrutiny Officer had committed any error in rejecting or accepting the nomination. 6.3 In Shri Sant Sagduru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra Page 33 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 [(2001) 8 SCC 509], the Apex Court in the context of the Maharashtra Co-operative Societies Act, 1960 read with Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 stated and held, "In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that 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 is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate. If aggrieved, by means of an election petition before the Election Tribunal." (Para 12) 6.4 The trite proposition about non-interference in election process, howsoever the ground canvassed may appear to be strong, and that election disputes are to be gone into and settled after the elections are over as per the machinery provided for resolution of such disputes, has been holding the field right from the decision in N.P. Ponnuswami v. Returning Officer [AIR 1952 SC 64], which statement of law found its further exposition in a more recent decision in Shaji K. Joseph v. V. Vishwanath [(2016) 4 SCC 429], "... as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect whenever the process of election starts, normally courts should not interfere with he process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without the court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this court has taken a view that all disputes with regard to election should be dealt with only Page 34 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 after completion of the election. ... ... " (Para 15) 6.5 In Mehsana Taluka Co-operative Purchase & Sales Union (supra), following were the observations made.
"5.1.2 The election jurisprudence, its principles and the applicability of election laws have different delineations and dimensions. They indeed operate, and has to be allowed to operate in their own way so as to sub-serve a higher purpose. In the election which is a democratic process, what is fundamental is the event of election. Neither the right to vote or to participate in election as voter or as a contesting candidate, is perceived to be a fundamental right. They are the rights guarded by statutory framework and could be exercised only in the manner the statute may provide. What is at stake is the interest of whole body which goes to the democratic process of elections. Election jurisprudence hardly emphasise rights of individuals. Election rights are the democratic rights operating as a whole and for collective end."
12.4. In view of the ratio as laid down by this Court, the petitioners can avail statutory remedy by 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 Page 35 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 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 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."
13. This Court is not inclined to interfere with regard to the decision taken by the respondent No.13- Authorized Officer including the name of the respondents-societies, in view of the fact that it is open for the petitioners to avail the statutory remedy as available under Rule 28 of the Rules 1965. Further no mala-fide, arbitrariness or any jurisdictional error is alleged to have been committed by the respondent no.13 - Authorized Officer and the respondent no.13 has passed the reasoned order as referred above. Considering the submissions advanced by the respective parties and provisions of law, the Page 36 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 impugned orders dated 10.06.2022 and 22.06.2022 passed by the respondent no.13- Authorized Officer does not call for any interference, since the same does not result into any extraordinary circumstances seeking interference by this Court.
14. The resultant effect is inclusion of the voters in the voters' list, which can be said to be subject matter of the election petition.
15. In view of this Court, as such the present petition would be held to be non-maintainable, since multiple orders with regard to 9 societies are the subject matter of challenge by filing present petition and 6 societies in SCA No. 12305 of 2022. This Court would have otherwise dismissed the present petition, as having not been maintainable, however, since, this Court is relegating the present petitioners to avail the statutory remedy available under the law, this Court is not opining the maintainability of the present petition, which otherwise could be said to be non-maintainable, in view of the fact, admittedly, the petitioners have chosen to challenge the multiple orders with regard to 9 societies by filing a single Page 37 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022 C/SCA/12300/2022 ORDER DATED: 05/08/2022 petition i.e. present petition. This Court has otherwise not assessed the present petition on merits, and therefore, the reliance placed by the respective parties on the judgment passed by the Hon'ble Supreme Court as well as this Court are not dealt with. If the petitioners were to institute the election petition, the competent authority shall decide the same independently without being influenced by any observations made by this Court.
16. In view of above, this Court is not inclined to entertain the present writ-petition exercising its extraordinary discretion under Article 226 of the Constitution of India and no extraordinary circumstance warrant the interference by this Court.
17. With the above observations, both the present petitions i.e. Special Civil Application No. 12300 of 2022 and Special Civil Application No. 12305 of 2022 fail and the same are dismissed.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 38 of 38 Downloaded on : Sat Aug 06 20:32:27 IST 2022