Gujarat High Court
Joitabhai Magandas Patel vs State Of Gujarat on 2 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025
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Reserved On : 25/03/2025
Pronounced On : 02/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 382 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 2185 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 382 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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JOITABHAI MAGANDAS PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR.MIHIR JOSHI, LD. SENIOR ADVOCATE with MR DIPAN DESAI(2481)
for the Appellant(s) No. 1,10,11,2,3,4,5,6,7,8,9
MR.AAKASH CHHAYA, AGP for the Respondent(s) No. 1
MR BAIJU JOSHI(1207) for the Respondent(s) No. 5,6
MR.B.S.PATEL, LD. SENIOR ADVOCATE with MS ASHA D TIWARI(2983)
for the Respondent(s) No. 7
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
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NEUTRAL CITATION
C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025
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Date : 02/04/2025
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV)
1. This appeal under Clause 15 of the Letters Patent has been filed by the appellant challenging the oral judgement dated 14.03.2023 passed by the learned Single Judge. The learned Single Judge dismissed the petition of the appellants on the ground that the petitioners/appellants herein can avail an alternative efficacious remedy of filing an election petition/appeal under Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter to be referred to as 'the Rules' for short).
2. Facts in brief as set out by the learned Single Judge which we reproduce so as to avoid the reiteration thereof read as under: Page 2 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025
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"3. The brief facts leading to filing of the present writ petition are as under :
3.1 The Vajapur Seva Sahakari Mandali Limited-Respondent no.7 is a cooperative society and is registered as a Cooperative Society under the Gujarat Cooperative Societies Act, 1961 (the Act). The election of the APMC, Vijapur came to be declared on 17.08.2022 by the respondent No.2-
Director, Agriculture Marketing and Rural Finance and accordingly, the election program dated 17.08.2022 was published. 3.2 The preliminary voters list was published on 02.09.2022. It is the case of the petitioners that the name of the society was included in the voters list in the capacity as members of the Managing Committee and the names of the petitioner Nos.1 to 10 were included in the voters list. There was an objection raised by one Shri Jayantibhai Ambalal Patel against the inclusion of the name of the petitioner Nos.1 Page 3 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined to 10 in the voters list. It was also requested by him that the names of the newly elected Committee of the Society may be included in the voters list by deleting the names of the petitioner Nos.1 to 10.
3.3 The Authorised Officer, after hearing the objectors as well as the Committee of the Society vide order dated 22.09.2022 rejected the names of the objectors and continued the names of the petitioner Nos.1 to 10 in the voters list. The provisional voters list was published on 22.09.2022 and the names of the petitioner Nos.1 to 10 were continued in the voters list at Serial No.154 to 164. 3.4 The final voters list was published on 03.10.2022, wherein the names of the APMC and the members of the Managing Committee of the APMC were shown, which included the names of the petitioner Nos.1 to 10. Because of the declaration of the election of the Legislative Assembly, the election of the APMC were suspended and stopped and only after the declaration of the result of the Legislative Page 4 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Assembly elections, the election process of the APMC was commenced from the stage where it was stopped and accordingly, the respondent No.2-Director vide order dated 17.01.2023 issued the election program of the APMC for the remaining stages and according to which, the voting was to take place on 03.02.2023. It is the case of the petitioners that when the voting for the election commenced on 03.02.2023 and the petitioner Nos.1 to 10 went to vote at about 11:30 a.m., the respondent No.4-Presiding Officer restrained the petitioner Nos.1 to 10 from voting on the ground that the respondent No.5-Jayantibhai Girdharbhai Patel has raised the objections against permitting the petitioner Nos.1 to 10 from voting. 3.5 It appears that upon the insistence of the petitioners, the Presiding Officer passed the impugned order dated 03.02.2023. It is the case of the petitioners that the said order dated 03.02.2023 has been supplied to the petitioners at about 4:45 p.m. just minutes before completion of the voting."
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3. What therefore is evident from the narration of facts is that for the purposes of election of the APMC, Vijapur, a preliminary voters' list was published on 02.09.2023. According to the appellants, the name of the society i.e. Vajapur Seva Sahakari Mandli Limited was included in the voters' list in the capacity of members of the Managing Committee and the names of the appellants were included in the voters' list. On one Jayantibhai Patel lodging an objection against the inclusion of the appellants on the ground that the newly elected committee be included by deleting the name of the appellants, the objections were rejected and the provisional voters' list was published on 22.09.2023. A final voters' list was published on 03.10.2023. Briefly, the election program was suspended due to covid and thereafter, after an order of the director Page 6 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined dated 17.01.2023, voting commenced on 03.02.2023 and when the petitioners-appellants had gone to vote, they were restrained to cast their votes on the ground that their qualification as voters under Rule 6 of the Rules were not satisfied, the Presiding Officer passed the impugned order dated 03.02.2023 restraining from casting their votes. That order was a subject matter of challenge in the captioned petition.
4. Mr.Mihir Joshi learned Senior Advocate with Mr.Dipen Desai made the following submissions:
4.1 Mr.Joshi would submit that the judgment of the learned Single Judge dismissing the petition on the ground that the petitioner had an alternative remedy of filing an election petition was clearly erroneous. He would submit that a Page 7 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Presiding Officer of a booth had no authority under the law to prevent the voters from casting their votes and therefore the order being without jurisdiction, a writ under Article 226 ought to have been entertained.
4.2 Mr.Joshi learned Senior Advocate would submit that under the scheme of the Rules, the Presiding Officer was only concerned with the supervision of elections and he could not adopt the role of an adjudicating authority to decide the qualification of a voter.
4.3 Inviting our attention to Rule 21 of the Rules, Mr.Joshi would submit that reading of the Rules would indicate that an Election Officer under the Rules has to look after the arrangements for holding of elections. Such arrangements include fixing of polling stations, Page 8 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined appointment of Returning/Presiding and Polling Officers and such other arrangements as may be necessary for holding and supervision of election. 4.4 Inviting our attention to the definition of the term 'Authorized Officer and Election Officer' under the Rules, Mr.Joshi would submit that under the Scheme of the Rules, it is only the Authorized Officer who is vested with the duty of preparation of list of voters after making an inquiry. As far as Election Officers are concerned under Rule 11 thereof, they have to accept the nomination papers and verify the names and under Rule 15 scrutinize such nomination papers and deal with objections if any and either reject or accept such objections in context of the nomination papers. In other words, the adjudicatory role of deciding objections with regard to the qualification of the Page 9 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined voter lies with the Authorized Officer and that with regard to nominations lies with the Election Officer. Once that stage of a decision making process is crossed, a Presiding Officer of a booth cannot under the guise of supervising election, adjudicate upon the qualification of a voter and his eligibility to vote.
4.5 Reading Section 11 of the APMC Act, Mr.Joshi would submit that under the provisions of Section 11, a market committee is constituted consisting of members as set out in the section in the facts of the present case, the petitioners under Section 11(1)(i) are elected members of the Managing Committee and were therefore qualified to be voters. Under Section 11(4) the term of office was for a period of five years.
Reading Rule 7(2) of the Rules, Mr.Joshi would therefore submit that in accordance with the Page 10 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined provisions of Section 11(1)(i), the names of the appellants were communicated to the Authorized Officer on the basis of the fact that they were voters as being members of the Managing Committee. In other words, on the cut-off date, i.e. the cut-off date being 18.08.2022, when the elections were declared, the fact that the objectors were elected post that date on 21.08.2022, would not make them members of the Managing Committee to be on the voters' list which was prepared in accordance with the schedule. The objectors therefore were not entitled to be included as voters. 4.6 Inviting our attention to page 204A of the paper-book, Mr.Joshi would submit that it was the case of the objectors that they had become newly elected members on 21.08.2022 whereas the preliminary voters' list was published Page 11 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined thereafter on 02.09.2022 and therefore they are entitled to vote was an objection which was rightly rejected by the Authorized Officer. 4.7 Inviting our attention to the order of the Authorized Officer dated 22.09.2023, Mr.Joshi would submit that the Authorized Officer had opined that the notification for the election was made on 18.08.2022 on which date the appellants-petitioners who were admittedly members of the Managing Committee and were voters. The preliminary list was published on 02.09.2022. The submission of the objectors that since they were elected with the new committee on 21.08.2022 and therefore their names be included in the voters' list were misconceived as they became members of the Managing Committee on 28.08.2022 i.e. after declaration of the election program.
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NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Mr.Joshi would submit that once the objections were rejected on the very same ground by the Authorized Officer, it was not open for the Presiding Officer to play a second innings once the election programe was declared and the preliminary voters' list became final, the names of the appellants figured, it was not open for the Presiding Officer under the guise of Rule 6 to prevent the appellants from voting when Rule 6 was only an intervening provision which could not be operated or relied upon at the stage of voting.
4.8 Mr.Joshi relying on the provisions of Sections 24 to 28 of the Representation of the People Act, 1951 would submit that these sections chalk out the duties of the Returning Officer whereas Section 27 chalks out a duty of Page 13 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined the Presiding Officer. All these provisions would indicate that they pertained to the machinery for conduct of election. Under Section 27 it is the general duty of the Presiding Officer at a polling station to keep order and to see that the poll is fairly taken. Therefore, under the guise of supervision of election, the Presiding Officer cannot fall back on deciding the question of qualification of a voter under Rule 6 when the stage has already gone by.
4.9 Mr.Joshi learned Senior Counsel appearing with Mr.Dipan Desai would further submit that the Presiding Officer sought guidance from the Election Officer when the objectors raised the issue of qualification of the appellants as voters and under a misconceived interpretation of the 1965 Guidelines which provide for conduct of elections, the impugned order has been passed. Page 14 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025
NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Inviting our attention to paras 11 and 12 of the affidavit in reply of the Presiding Officer, he would submit that the contention of the respondent Government that the guidelines authorized a Presiding Officer to decide objections is misconceived. The guidelines provided that it is open for the Presiding Officer to verity the identity of the voters when he comes to the booth for election inasmuch as whether there is no impersonation etc. The guideline cannot be misconstrued to authorize a Presiding Officer to disqualify the voters under the guise of operating Rule 6, particularly when the very same objection which the objectors had taken but rejected by the Authorised Officer. 4.10 Mr.Joshi would invite our attention to para 2.12 to 2.16 of the petition to submit that the Presiding Officer had acted with a mala-fide Page 15 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined intention so that the panel backed by the ruling party gets elected. There was therefore a mala- fide exercise of powers and a writ petition would lie.
4.11 In support of his submission that the learned Single Judge had misconceived his finding of the petition being not maintainable, Mr.Joshi would cite the decision of the Division Bench in the case of Vasundra Samudayik Kheti Sahakari Mandli Limited v. State of Gujarat reported in 2011 JX (Guj) 1358. Mr.Joshi would submit that considering the issue of alternative remedy of Rule 28 of the Rules, and referring to the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited v. R.D.Rohit Authorized Officer and Cooperative Officer (Marketing) reported in 2006 (1) GCD 211, the Division Bench had held Page 16 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined that though the Court may ordinarily not interfere with the election process but when circumstances are exceptional and which the full bench also recognized, a writ petition would be maintainable. Relying on a decision in case of Union Territory of Ladakh v. Jammu and Kashmir National Conference reported in 2023 (12) SCR 68, Mr.Joshi would submit that as held by the Supreme Court, no litigant can be rendered helpless and in the case at hand admittedly when the exercise of powers by the Presiding Officer was without authority of law, a writ petition under Article 226 ought to have been entertained. He would also rely upon a decision of the Division Bench in case of Shree Kanaiya Khet Utpadan Kharid Vechan Sahakari Mandali Limited Throu Chairman/ Secretary & Ors. Versus Arshibhai Devabhai Duva & Ors. rendered in LETTERS PATENT Page 17 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined APPEAL NO.1139 of 2022 and allied matters. Para 25 was pressed into service to submit that in the facts of the case, obviously this was an extraordinary circumstance where a writ petition ought to have been entertained.
5. Mr.Aakash Chhaya learned AGP appearing for the respondent no.1 would make the following submissions:
5.1 Taking us through the notification declaring the election which was dated 18.08.2022, Mr.Chhaya would submit that in accordance with Rule 6 of the Rules, in order to be eligible in the voters' list, he has to be a member of the Managing Committee. It is the case of the objectors that the term of the Managing Committee was expired before the notification was issued. He would therefore submit that the Page 18 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined appellant petitioners were not qualified to be voters on the date of the notification and Authorized Officer had therefore committed an error in holding that the objectors' right to inclusion in the list of voters and the deletion of the appellants was not required as the objectors were elected post the notification. 5.2 Mr.Chhaya would take us through the affidavit-in-reply filed by the Presiding Officer and also to that of the Committee. Reading the affidavit of the Presiding Officer, Mr.Chhaya would submit that the appellants had ceased to hold the capacity of being members on 21.08.2022 and it was accordingly brought to the notice of the Presiding Officer that on the day of the election they were not qualified to be in the list of voters and therefore the guidelines which were invoked also authorized the Presiding Page 19 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Officer to go into the question of the voters' qualification.
6. Mr.Baiju Joshi learned advocate appearing for respondent nos.5 and 6 would make the following submissions:
6.1 Mr.Joshi would submit that indisputably the Managing Committee of the Vajapur Seva Sahakari Mandli was to hold office for a period of five years. This he would submit in light of the provisions of Sections 74(1C)(i) and 74(1C)(ii) of the Act. He would submit that the term of the elected member of the Managing Committee was for a period of five years. Clause (ii) would provide that on the expiry of five years, the elected members of the Managing Committee shall cease to hold office. The elections of the Committee were held in the year 2017. The term Page 20 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined of the Committee therefore expired on 30.06.2022. In accordance with Rule 6 of the Rules, the appellants ceased to hold the capacity in which their names ought to have been entered in the voters' list and therefore, their inclusion in the voters' list and the election was vitiated and therefore, an election petition was filed by the aggrieved objectors and the learned Single Judge committed no error in dismissing the petition.
He would also submit that having ceased to hold office, the petitioners also could not have filed the petition. As far as the guidelines are concerned, he would submit that even under the guidelines, the Presiding Officer is empowered to look into the qualification of the voter.
7. Mr.B.S.Patel learned Senior Advocate appearing with Ms.Asha Tiwari learned advocate for respondent No.7 would make the following Page 21 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined submissions:
7.1 Mr.Patel would submit that the learned Single Judge has committed no error in dismissing the petition on the ground of alternative remedy. He would submit that the learned Single Judge has not touched the question of who is qualified, because the whole question is at large in an election petition.
Inviting our attention to the observation of the learned Single Judge where the learned Single Judge has held that a direction cannot be issued by allowing the petitioners to cast votes as such a relief can be sought in an election petition. Mr.Patel would submit that when the prayers in the petition are examined, it would apparent that the appellant has sought a writ of certiorari and a writ of mandamus against the Presiding Officer and a direction that the names of the appellants be included and counted in the results. They had Page 22 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined further prayed for quashing and setting aside the election of the respondent no.6, all the issues as rightly held by the learned Single Judge could only be gone into in an election petition. 7.2 Mr.Patel would submit that a right to vote is not conferred on an individual. Eligibility has to be seen in light of the scheme of Section 11. The Authorized Officer has wrongly considered the judgement in context of the cut-off date. That was not the issue before the Authorized Officer. The Authorized Officer had to see whether on the date of the voting he was a member or not. When Rule 6 is read as a whole, what is evident is that in order to be on the voters' list one has to have the capacity and if the capacity to vote has ceased, which in case of the appellants it did, as their term was over on 30.06.2022, the Rule 6 was rightly operated. He would invite our Page 23 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined attention to a decision in case of Prahladbhai Shivram Patel and others v. Director of Agriculture Marketing and Rural Finance & Ors. reported in 1998 1 GLH 95. Inviting our attention to para 15 of the decision, Mr.Patel would submit that the Court had specifically held that if one ceases to be a member of the Committee, then right to vote evaporates. The decision so rendered was confirmed by the Division Bench.
7.3 He would rely on the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (supra). He would submit that the Full Bench had considered the question of a remedy in context of inclusion and a deletion of a name of voter and had specifically answered that by holding that a person whose name is not included in the voters' list can avail Page 24 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined the benefit of Rule 28. He would submit that an election petition is filed and pending by persons/ objectors whose names were not included in the voters' list and therefore any decision in this petition would directly affect the outcome thereof and therefore the learned Single Judge has rightly restrained from exercising jurisdiction under Article 226. 7.4 Mr.Patel would also rely on the decision in case of Mohmed Javid Abdul Mutlib Pirzada and Ors. v. State of Gujarat and others reported in 2023 (3) GLR 1755, in case of Shaji K. Joseph v. V. Viswanath and others reported in (2016) 4 SCC 429 and in case of Gujarat University v. N.U. Rajguru and others reported in 1987 (Supp) SCC 512, to support his submission that since right to election is a statutory right, when an alternative Page 25 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined remedy of an election petition is available, the petition was rightly dismissed. The 1965 policy guidelines is in consonance with Rule 6.
8. In rejoinder, Mr.Mihir Joshi learned Senior Advocate would submit that the question before this Court is not that of inclusion and exclusion of voters' list, but whether the booth officer had the jurisdiction to prevent voters from voting. Can he inquire into the qualification and whether it is in his province to pass an order. He would submit that the cooperative societies has no interconnection. Once the final voters' list is out, it is the cut-off date which becomes relevant, otherwise, entire voters could be deleted by a Presiding Officer once the list has become final. A booth officer cannot override a final voters' list. With regard to the objection that the objectors had not been made a party, Mr.Joshi Page 26 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined would submit that there was only one objector who was party to the proceedings.
9. Having considered the submissions made by learned counsels for the respective parties, the question before this Court is whether the learned Single Judge committed any error in not entertaining the petition on the ground that the appellants could avail of an efficacious alternative remedy of filing a petition.
10. From the sequence of facts and dates, what is evident is that the elections of APMC Vijapur, were declared on 17.08.2022. The notification is dated 18.08.2022. In accordance with the scheme of the APMC Rules, wherever a general election to a Market Committee is to be held, in accordance with Rule 5 of the Rules, 3 separate lists of voters has to be prepared. If we fall back Page 27 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined on Section 11 of the Act, the voters' constituency consist of 10 agriculturists whose names are enlisted in the voters' list and who are elected by the members of the Managing Committee, traders' list etc. Under Rule 6 of the Rules, a person whose name is entered in the list of voter, shall be qualified to vote unless he has ceased to hold the capacity in which his name was entered in such list. Rule 6 therefore is the threshold for a voter to cross so as to be eligible to be able to vote at an election. It is only if this primary requirement is satisfied i.e. the voters still continues to hold the capacity to vote, can his name be included in accordance with the provisions of Rule 7 to 9 in a voters' list. True it is that once the elections were notified on 18.08.2022 and the exercise of preparing a preliminary voters' list was completed on 02.09.2022 and the petitioners/appellants were Page 28 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined continued to find their name in the final voters' list on 03.10.2022, the question before us is whether the appellants could at all be persons qualified to vote.
11. When we, in this context, see the objections raised by one of the objectors, it was his case that the elections of the Market Committee were held in 2017. The appellants' term as members of the Managing Committee was expired on 30.06.2022 and though the elections of new committee were held and the objectors were so elected on 21.08.2022, the appellants could not be qualified as voters as they had ceased in their capacity of being members of the Managing Committee.
12. The Authorized Officer by the order dated 22.09.2022 had rejected the objections of the Page 29 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined objectors. In other words, the objection of the appellants' inclusion in the voters' list and the exclusion of the objectors was a dispute that was decided in favour of the appellants and against the objectors. Aggrieved by this, the objectors had filed an election petition which is at large before the Director.
13. We have perused the memo of the election petition at page 217 of the paper-book. The pleadings in the election petition and the grounds indicate that the appellants-petitioners should not have been on the list of voters as their term as members of the Managing Committee was expired on 30.06.2022.
14. The contention of the learned Senior Advocate Mr.Joshi that the Presiding Officer by the impugned order was trying to play a second Page 30 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined innings, is a submission which has not to be accepted. Here is a case where the objectors had lodged an objection of inclusion in the voters' list the names of the appellants. The ground for that objection was that having ceased to be a member of the Managing Committee, they had disqualified themselves to be voters as Rule 6 specifically provided that a voter shall be qualified to vote unless he has ceased to hold the capacity in which his name was entered in such list. The appellants' term having ended in June 2022, they had no right to have their name on the voters' list. The question whether their names were rightly included in the voters' list and/or whether the names of the new committee members were rightly or wrongly excluded, was a decision taken by an authorized officer which is at large in an election petition before the Director.
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15. It is in this context that the learned Single Judge in paras 11 to 14 held as under:
"11. As mentioned herein above, the action of the authorised officers of refusing to include the names of the new members in the voters list of the new Committee has been questioned in the Election Petition being Appeal No.1 of 2023 before the Director of APMC, Gandhinagar, Gujarat State. Thus, there are two categories of the persons of the same Committee, one whose names were not included in the voters list and have challenged such non-inclusion in the election petition being Appeal No.1 of 2023, and the petitioners who are not allowed to cast their vote on the ground that they have seized to be the members of the Committee on 21.08.2022. It is the specific case of the appellants in the election petition that the names of the petitioners have been wrongly included in the voters list by the Authorized Officer and the Members of the newly formed Committee have been illegally barred from being entered in the voters list.
12. The prayers made in the Appeal No.1. of 2023 by new members are reads as under : -
(Translated from the original Gujarati).
"(A) Kindly admit the appeal. Kindly call for the record of the respondent no.(1) Electoral Officer and respondent no.(2) Authorized Officer, verify it and as the Page 32 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Electoral Officer and District Registrar, Mahesana has declared result of Agriculturist Division of Agriculture Produce Market Committee, Vijapur on 04/02/2023 without allowing 10 committee members of the applicant no.2 - society to vote, kindly grant the right to vote to the existing committee members of the society, take the same into account, hold counting afresh and declare the result;
Alternatively, (B) Kindly admit the appeal. Canceling the result of Agriculturist Division of Agriculture Produce Market Committee, Vijapur declared by the Electoral Officer and District Registrar, Mahesana on 04/02/2023 after calling for the record of the respondent no.(1) Electoral Officer and respondent no.(2) Authorized Officer and verifying it, kindly pass an order to hold the election of the Agriculturist Division of Agriculture Produce Market Committee, Vijapur again. "
13. Thus, the members of the new Committee which are 10 in numbers, have sought the prayers in the election petition that they may be given right to vote in the election and accordingly, new counting should be done and the result may be declared. Those candidates have availed the remedy of filing an election petition under Rule 28 of the Rules, which is incorporated as under:
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NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined "RULE 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 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 ."
14. The petitioners, instead of filing election petition under Rule 28 of the Rules, have Page 34 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined directly rushed to this Court and have filed the present writ petition. The Presiding officer, on the objection raised against them that they have no right to cast the vote since they have ceased to be members of the Committee, which was formed on 21.08.2022 did not allow them to cast their votes by observing that they do not qualify to be the voters as per Rule 6 of the Rules. Though various contentions are raised with regard to the violations of statutory Rules and the provisions of the Act, this Court is of the considered opinion that since any observation made by this Court will have direct impact on the election petition which is pending, I am not expressing opinion in this regard."
16. Reading of the paras would indicate that when there was before the learned Single Judge two categories of persons of the same committee, one whose names were not included and the other whose names were wrongly included and an election petition was pending at the hands of one category, the learned Single Judge in our opinion, was right in opining that any observation made in the petition at end will have Page 35 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined direct impact on the election petition which is pending.
17. As far as the guidelines are concerned which are relied upon by the Presiding Officer to exercise his power by passing the impugned order, reading of the guidelines clearly indicate that apart from a question of identity, the Presiding Officer did have the jurisdiction to get into the issue of whether the voter was qualified to vote.
18. Reliance on the decision by learned Senior Advocate Mr.Mihir Joshi in the case of Vasundra Samudayik Kheti Sahakari Mandli Limited (supra) to carve out an exception and submit that a petition was maintainable as there were exceptional circumstances, does not impress us as we have so discussed and so held by the decision of the Full Bench in case of Page 36 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Daheda Group Seva Sahakari Mandli Limited (supra) in para 21 to 23 thereof which read as under:
"21. In view of the conflicting decisions rendered by the different Division Benches of this Court, we have to consider the rival contentions advanced before us by the learned Counsel for the respective parties. On a plain reading of rule 28 which provides remedy to "any person qualified" either to be elected or to vote at the election to determine the validity of the election of the members of APMC. Since the expression "any person qualified" is not defined under the Act and the Rules, guidance is to be derived from rule 6 of the rules, dealing with "persons qualified to vote" - where the qualification criteria is to be taken into account which should be the capacity i.e. the post and not the factum of inclusion and exclusion of the names from the voters' list. We agree with the submissions of the learned Addl. Advocate General that with a view to give full effect to the provisions providing for remedy in the matter of resolution of election disputes as contained in the aforesaid Rule 28, the said provisions along with the provisions of Rule 6 should be given purposive interpretation in the widest amplitude so as to make the same more meaningful and effective. He has placed reliance of the decision in the case of D. Saibaba v. Bar Council of India and anr. (2003) 6 SCC 186. While interpreting the Page 37 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined Section 48-AA of the Advocates Act, 1961, the Hon'ble Supreme Court held as under:
"So far as the commencement of the period of limitation for filing the review petition is concerned, we are clearly of the opinion that the expression 'the date of that order' as occurring in section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petition. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart." In view of the above, referring back to the present controversy, a person may be qualified to vote in any election, by virtue of his being a member of the Managing Committee of the particular Cooperative Society as per section 11(1) of the Act and not by virtue of the inclusion or deletion of his name from the voters' list. Inclusion or deletion of a name is only consequence of holding a capacity because if a person holds the post, his name should be included and if he ceases too hold the post on the date of election programme, then his name should be deleted, meaning thereby it is the holding of the capacity which is the relevant Page 38 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined criterion and not the appearance of name in the voters' list which is only a consequence. Thus, even though a person's name is found entered into voters' list that alone would not qualify him to be a voter because it can be shown that he had ceased to hold the capacity in which his name was entered into the list, even though he had voted on the basis of inclusion of his name in the final voters' list but proof of his capacity having been ceased, the election could be set aside on the ground of improper reception of voters of an ineligible person. The context in which Rule 6 is framed by the Legislature cannot be read in isolation. While interpreting the same, it has to be kept in view that it also talks about cessation of the capacity in which name of a person was entered into the list. Therefore, it would be improper to construe Rule 6 as controleing the eligibility of a person entitled to file an election petition under Rule 28.
22. Provisions of rule 28 of the rules are otherwise independent of the provisions of rule 6 and are not in any manner, controleed by rule 6 and provide for remedy for resolution of all kind of election disputes. If the provisions of rule 6 and rule 28 are not interpreted in the wider spectrum and in light of the intent of the legislature as discussed hereinabove, the same would create two classes i.e. (1) one which can challenge the wrong inclusion only by way of election petition, and (ii) the other which can challenge the non-inclusion i.e. exclusion by way of writ petition only.Page 39 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025
NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined This could never have been intended by the legislation. When remedy of election petition is deemed fit and is provided as a statutory remedy then every election dispute should be raised before the forum competent to decide the same.
23. In view of the aforesaid provisions, which in our opinion, are self-contained and are to be interpreted without taking any external aid from other legislations like Gujarat Panchayats Act, 1993, Gujarat Cooperative Societies Act, 1961, Gujarat Municipalities Act, 1963 and the Representation of the People Act of 1950. We, therefore, see no merits in the submissions advanced by Mr Tushar Mehta."
19. In view of the above, we are of the view that here is a case where the root lies in deciding whether the petitioners/appellants had a statutory right to cast their votes in the elections so notified, when a clear question of their eligibility was at stake inasmuch as the issue whether they continued to hold their capacity in terms of Rule 6 of being included and / or excluded in the voter's list is also at large in the pending election petition and Page 40 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025 NEUTRAL CITATION C/LPA/382/2023 CAV JUDGMENT DATED: 02/04/2025 undefined therefore, any decision that the learned Single Judge would have rendered would have a direct bearing in the election petition.
20. We therefore find no reason to interfere with the decision of the learned Single Judge and the appeal therefore is dismissed.
21. In view of the disposal of the main appeal, Civil Application, if any, stands disposed of.
(BIREN VAISHNAV,ACJ) (HEMANT M. PRACHCHHAK,J) ANKIT SHAH Page 41 of 41 Uploaded by ANKIT SHAH(HC01063) on Wed Apr 02 2025 Downloaded on : Wed Apr 02 22:24:18 IST 2025