Gujarat High Court
Anandi Fal Ane Shakbhaji Utpadakoni ... vs State Of Gujarat Through Registrar on 19 April, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/386/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 386 of 2018
In
SPECIAL CIVIL APPLICATION NO. 2666 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ANANDI FAL ANE SHAKBHAJI UTPADAKONI SAHKARI MANDLI LTD
Versus
STATE OF GUJARAT THROUGH REGISTRAR
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Appearance:
MR VC VAGHELA(1720) for the PETITIONER(s) No. 1,2,3,4,5,6,7
for the RESPONDENT(s) No. 2,3,4
MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
MR DIPAN DESAI(2481) for the RESPONDENT(s) No. 5
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 19/04/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) Page 1 of 29 C/LPA/386/2018 CAV JUDGMENT
1. By way of this appeal, which is filed under Clause 15 of the Letters Patent, the appellants original respondent Nos.5 to 11 have challenged the oral order dated 14.03.2018, rendered by the learned Single Judge in Special Civil Application No.2666 of 2018 by which the learned Single Judge has allowed the petition filed by present respondent No.5 - original petitioner.
2. The brief facts leading to the filing of this appeal are as under:
2.1 It is the case of the petitioner that he is a Member as well as Committee Member of Shinor Taluka Tuver Utpadakoni Kharid Vechan ane Processing Sahkari Mandali Limited. The said society is a cooperative marketing society holding general licence of Agricultural Produce Market Committee, Shinor (hereinafter referred to as "APMC"). The said society is involved in the activities of purchase and sale of agriculture produce in the market area. It is stated that the election of APMC, Shinor, was declared by respondent No.2 - Director on 03.01.2018. Preliminary Page 2 of 29 C/LPA/386/2018 CAV JUDGMENT voters' list was to be published on 17.01.2018, Provisional voters' list was to be published on 07.02.2018 and Final voters' list was to be published on 19.02.2018. The election was to be held on 05.04.2018. The petitioner has produced a copy of the election programme at AnnexureB with the compilation.
2.2 It is stated that Preliminary voters' list was published on 17.01.2018 in which the name of the petitioner has been included as a Committee Member of the aforesaid Sahakari Mandali Limited. Respondent No.4 Authorised Officer also included the names of original respondent Nos.5 to 11 - present appellants Societies in the voters' list though they are registered only on 30.09.2017 and have not got their accounts audited. The petitioner, therefore, submitted objections before the Authorised Officer on 31.01.2018 and pointed out that original respondent Nos.5 to 11 societies have not acquired the eligibility for being included in the voters' list, as per the provisions contained in Section 11(1)(iii) of the Gujarat Agricultural Produce Markets Act, 1963 Page 3 of 29 C/LPA/386/2018 CAV JUDGMENT (hereinafter referred to as "the Act").
2.3 It is further the case of the petitioner that the Authorised Officer passed an order dated 07.02.2018 and rejected the objections of the petitioner and continued respondent Nos.5 to 11 Societies in the Provisional voters' list published on 07.02.2018. The petitioner, therefore, filed the captioned petition in which the petitioner had prayed for the following reliefs:
"(A) This Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 07/02/2018 passed by the respondent No.4 - Authorised Officer at Annexure'A' to this petition and also be pleased to direct that the names of members of managing committee of respondent No.5 to 11 societies be excluded from the voters list of cooperative marketing constituency for the election of Agriculture Produce Market Committee, Shinor.
(B) Pending admission, hearing and final disposal of the petition, this Hon'ble Court be Page 4 of 29 C/LPA/386/2018 CAV JUDGMENT pleased to stay the execution, operation and implementation of the impugned order dated 07/02/2018 passed by the respondent No.4 Authorised Officer at Annexure'A' to the petition.
(C) Pending hearing and final disposal of this petition, the Hon'ble Court be pleased to restrain the members of managing committee of respondent No.5 to 11 societies from participating in the elections of Agriculture Produce Market Committee, Shinor from the cooperative marketing societies constituency.
(D) This Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."
2.4 The learned Single Judge by the impugned order dated 14.03.2018 allowed the petition and thereby the order dated 07.02.2018, passed by respondent No.4 Authorised Officer, is quashed and set aside. The names of original respondent Nos.5 to 11 - present appellants herein are directed to be deleted from the voters' list prepared by respondent No.4 for the constituency of the cooperative marketing societies. A direction is also given to respondent No.4 - Page 5 of 29 C/LPA/386/2018 CAV JUDGMENT Authorised Officer to publish voters' list of marketing cooperative societies afresh or amend the voters' list in accordance with law within the stipulated timelimit.
2.5 Original respondent Nos.5 to 11 - present appellants, being aggrieved and dissatisfied with the said order, preferred the present appeal.
3. Heard learned advocate Mr.V.C. Vaghela for the appellants - original respondent Nos.5 to 11, learned advocate Mr.Dipan Desai for present respondent No.5 - original petitioner and learned Assistant Government Pleader for the respondent authorities.
4. Learned advocate Mr.Vaghela, at the outset, submitted that the petition filed by the original petitioner challenging inclusion of names of original respondent Nos.5 to 11 societies in the voters' list was not maintainable under Article 226 of the Constitution of India as the petitioner is having an alternative remedy of filing Election Petition under Rule 28 of the Gujarat Agricultural Produce Markets Page 6 of 29 C/LPA/386/2018 CAV JUDGMENT Rules, 1965 (hereinafter referred to as "the Rules"). Thus, the learned Single Judge ought not to have interfered with the order dated 07.02.2018 passed by the Authorised Officer by which the objections raised by the petitioner were rejected. At this stage, it is contended that inclusion or exclusion of the names in the voters' list cannot be termed as an extraordinary circumstance warranting interference by the learned Single Judge in a petition under Article 226 of the Constitution of India and such questions ought to have been left open to be decided in the Election Petition under Rule 28 of the Rules. He, therefore, urged that the order passed by the learned Single Judge be set aside only on this ground.
4.1 In support of this submission, learned advocate Mr.Vaghela has placed reliance upon the order dated 22.07.2016, passed by the Division Bench of this Court, in Letters Patent Appeal No.201 of 2016 and order dated 21.08.2017 passed by this Court in Letters Patent Appeal No.1249 of 2017. 4.2 Learned advocate Mr.Vaghela would further Page 7 of 29 C/LPA/386/2018 CAV JUDGMENT contend that the original respondents societies were registered in September, 2017 and, therefore, the requirement of Section 11(1)(iii) of the Act with regard to audit of accounts in ClassA, B or C do not apply to the newly registered societies. It is submitted that when the auditor carries out the audit of the society, he grants A, B, C or D Class to the society considering the performance and functioning of the society. ClassD is given to those societies which have become defunct or dormant or which are making heavy losses. Thus, the object of Section 11(1)(iii) of the Act was to exclude such societies falling in ClassD. 4.3 It is submitted that the learned Single Judge has failed to appreciate the fact that the amended provisions made in Section 11(1)(iii) of the Act provides that the society's last account has to be audited in Class A, B or C and if the society is given D audit classification, then the said society cannot take part in the elections. Such amendment is made in the section with a view to see that non functional or defunct societies may not be allowed to Page 8 of 29 C/LPA/386/2018 CAV JUDGMENT take part in the election of APMCs. The said provision would not be in any case applicable to newly registered societies whose statutory time for getting accounts audited is not completed. It is, therefore, urged that the impugned order passed by the learned Single Judge be set aside.
5. On the other hand, learned advocate Mr.Dipan Desai, appearing for present respondent No.5 - original petitioner, has supported the reasons recorded by the learned Single Judge and submitted that when the objections raised by the petitioner are not dealt with by the Authorised Officer after making proper inquiry as per the Rules, the petition filed by the petitioner challenging the inclusion of the cooperative societies in the provisional voters' list is rightly interfered with by the learned Single Judge and, therefore, the petition under Article 226 of the Constitution of India was maintainable and no error is committed by the learned Single Judge while exercising powers under Article 226 of the Constitution of India.
Page 9 of 29 C/LPA/386/2018 CAV JUDGMENT 5.1 Learned advocate Mr.Desai for the original petitioner further contends that the Authorised Officer had misused his powers by including the names of respondent Nos.5 to 11 societies, which were not eligible to be included in the voters' list as such societies have not their last accounts audited in Class A, B or C, as per the provisions contained in Section 11(1)(iii) of the Act, which is mandatory in nature.
5.2 Learned advocate Mr.Desai has referred the provisions contained in Section 11(1)(iii) of the Act and submitted that in order to become eligible for being included in the voters' list of cooperative marketing societies' constituency, a society must have to fulfill four requirements i.e. (1) the society must be situated in market area, (2) the society must be holding general licence, (3) society must be engaged in the business in conformity with its respective object and (4) society must have got its last account audited in ClassA, B or C. It is contended that all the four requirements are mandatory and if any of the above four requirements Page 10 of 29 C/LPA/386/2018 CAV JUDGMENT is not fulfilled, such society does not become eligible for inclusion in the voters' list. It is submitted that when respondent Nos.5 to 11 Societies were registered on 30.09.2017 and got licence on 05.10.2017 from APMC, as such societies have not completed one year and, therefore, their audit has not been undertaken. Hence, such societies are not required to be included in the voters' list. In spite of that, respondent No.4 Authorised Officer has included the names of such societies in the voters' list, without making necessary inquiry. Thus, when specific objections were raised by the petitioner, learned Single Judge has rightly quashed and set aside the order dated 07.02.2018, passed by the Authorised Officer as the said order was not in accordance with law and was passed without following the due procedure.
5.3 Learned advocate Mr.Desai has placed reliance upon the decisions rendered in the case of Kalubhai Ranabhai Akabari v. State of Gujarat & Ors., reported in 2007(3) GLH 57 and in the case of Dolatbhai Prabhubhai Dumaniya v. Director Agricultural Page 11 of 29 C/LPA/386/2018 CAV JUDGMENT Marketing and Rural Finance and Ors., reported in 2013(2) GLH 157.
5.4 Learned advocate Mr.Desai has, therefore, urged that no error is committed by the learned Single Judge by allowing the petition and, therefore, this appeal be dismissed.
6. Having heard learned advocates for the parties and having gone through the material produced on record, it has emerged that the election of APMC, Shinor, was declared on 03.01.2018. Preliminary voters' list was to be published on 17.01.2018, Provisional voters' list was to be published on 07.02.2018 and Final voters' list was to be published on 19.02.2018. The election was to be held on 05.04.2018. A copy of the election programme is produced at AnnexureB with the petition. In the Preliminary voters' list, which was to be published on 17.01.2018, names of original respondent Nos.5 to 11 societies were included. It is the grievance of the petitioner that the said societies are registered only on 30.09.2017 and such societies have not got Page 12 of 29 C/LPA/386/2018 CAV JUDGMENT their accounts audited. The petitioner has, therefore, submitted objections before the Authorised Officer on 31.01.2018 and pointed out that respondent Nos.5 to 11 societies have not acquired eligibility for being included in the voters' list as per the provisions contained in Section 11(1)(iii) of the Act. In spite of such objections taken by the petitioner, the Authorised Officer has passed order dated 07.02.2018 and rejected such objections and continued respondent Nos.5 to 11 societies in the provisional voters' list published on 07.02.2018.
7. The learned Single Judge has allowed the petition and quashed and set aside the order dated 07.02.2018 passed by the Authorised Officer and directed the Authorised Officer to delete the names of respondent Nos.5 to 11 from the voters' list from the constituency of cooperative marketing societies.
8. The appellants - original respondent Nos.5 to 11 have contended that the original petitioner is having an alternative remedy of filing an Election Petition under Rule 28 of the Rules and, therefore, the Page 13 of 29 C/LPA/386/2018 CAV JUDGMENT learned Single Judge ought not to have entertained the petition under Article 226 of the Constitution of India and the inclusion and exclusion of the names in the voters' list cannot be termed as an 'extraordinary circumstance' warranting interference by the learned Single Judge under Article 226 of the Constitution of India. Reliance is placed on the decision dated 22.07.2016 rendered by the Division Bench of this Court in Letters Patent Appeal No.201 of 2016. However, it is required to be noted that in the facts and circumstances of the present case, the said decision would not be applicable. This Court in the aforesaid order dated 22.07.2016, observed in Paragraph15 as under:
"15. Thus, in the present case, when the Authorized Officer has, after holding an inquiry, included the names of the present appellants in the final voters' list, the said decision of the Authorized Officer can be challenged under Rule 28 of the Rules by filing election petition before the appropriate authority. Thus, the learned Single Judge has wrongly exercised the powers under Article 226 of the Constitution of India by quashing and setting aside the order dated 05.03.2016 passed Page 14 of 29 C/LPA/386/2018 CAV JUDGMENT by the Authorized Officer by which the names of the present appellants were included."
9. At this stage, it is further required to be noted that in the order dated 22.07.2016 passed in Letters Patent Appeal No.201 of 2016, this Court has also reproduced the relevant paragraphs of another decision rendered on 01.07.2016 in Letters Patent Appeal No.569 of 2016. In Paragraphs10 and 11 of the order dated 01.07.2016 in Letters Patent Appeal No.569 of 2016, this Court observed as under:
"10. As it is not in dispute that precisely it is the case of the appellant in this case that their names were wrongly excluded is certainly a ground which can be agitated by way of election petition under Rule 28 of the Rules.
11. From reading of the provision under Section 11 (1)(i) of the Act read with Rule 8 of the Rules, it is also clear that as per the provision under Section 11(1)(i) of the Act, only members of the managing committee of primary agricultural credit cooperative society dispensing agricultural credit in market area alone are eligible for inclusion for holding elections to the agriculturist constituency of the market committee. Further from the reading Page 15 of 29 C/LPA/386/2018 CAV JUDGMENT of Rule 8 of the Rules, it is also clear that when objections are filed under Rule 8(1) of the Rules, it is always open for the authorized officer to hold an inquiry that whether such proposed members of the managing committee are the members of primary agricultural credit cooperative society or not and whether such primary agricultural credit cooperative society is involved in dispensing of agricultural credit in the market area or not. The authorized officer may not conduct indepth enquiry elaborately, but so as to consider that such nominated members of the particular agricultural society fit into the electorate as contemplated under Section 11(1)(i) of the Act, can make summary inquiry into it. There cannot be any straitjacket formula on the scope of inquiry under Rule 8(2) of the Act with reference to eligibility of the electorate under Section 11(1)(i) of the Act, but it is a matter to be decided by the election officer having regard to the facts of each case. When it is an objection of the objector that the appellant society is not dispensing agricultural credit in the market area, limited inquiry is always permissible by authorized officer under Rule 8(2) of the Rules to that limited extent. Further when electrotate under Section 11 (1)(i) of the Act are members of the primary agricultural credit cooperative society dispensing agricultural credit in the market area, it is also open for the authorized Page 16 of 29 C/LPA/386/2018 CAV JUDGMENT officer to examine whether such societies are primary agricultural credit cooperative societies or not which are involved in dispensation of agricultural credit in the market area. While we are in agreement with the view taken by the earlier Division Bench on the restricted scope of inquiry in the case of Shrutbandhu Himatlal Popat (supra), we hold that such finding in the inquiry is to be recorded on the basis of the material placed before the authorized officer having regard to the facts of each case. Such order which is passed by considering the material placed before the authorized officer, cannot be said to be an order passed without jurisdiction or extraordinary circumstances as held by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra), so as to entertain the petition under Article 226 of the Constitution of India in view of the remedy available under Rule 28 of the Rules. ......"
10. Thus, from the aforesaid decision, it is revealed that the Authorised Officer has to make necessary inquiry and has to record the finding on the basis of the material placed before him. When such order is passed by considering the material placed before the Authorised Officer, it cannot be Page 17 of 29 C/LPA/386/2018 CAV JUDGMENT said to be an order without jurisdiction or extraordinary circumstance as held by the Full Bench of this Court in the case of Daheda Group Seva Sahkari Mandali Limited v. R.D. Doshit, reported in 2006 (1) GCD 211. This Court has, therefore, observed that when the Authorised Officer, after holding an inquiry, included the names of the concerned appellants in the final voters' list, the said decision of the Authorised Officer can be challenged under Rule 28 of the Rules by filing Election Petition.
11. However, in the present case, as discussed hereinabove, when the specific objections are raised by the petitioner before the Atuhorised Officer pointing out the fact that respondent Nos.5 to 11 societies are registered on 30.09.2017 and such societies have not got their accounts audited and, therefore, such societies have not acquired eligibility being included in the voters' list. As per the provisions contained in Rules, it is a duty of the Authorised Officer to make necessary inquiry with regard to such objection and to give findings. Page 18 of 29 C/LPA/386/2018 CAV JUDGMENT
12. In the case of Dolatbhai Prabhubhai Dumaniya v. Director Agricultural Marketing and Rural Finance and Ors. (supra), a Division Bench of this Court observed in Paragraphs24 and 25 as under:
"24. The attempt was made by the learned counsel appearing for the respondent to contend that once the process of election has begun, this Court in exercise of powers under Section 226 of the Constitution may not interfere with the election and the petitioners may have the remedy, if available, after the election is over as per Rule 28 of the Rules. In our view, the said contention is answered in the decision of this Court in the case of Kalubhai Ranabhai Akbari (supra) and more particularly, the observations made in paragraph 32 of the said decision. We may also refer to another decision of this Court in the case of Shrutbandhu H. Popat v. State of Gujarat and others, reported in 2007 (3) GLR 1942 and the observations made at paragraphs 27 to 29, which read as under :
"27. We may now deal with the decision of the Full Bench heavily relied upon by Mr. B. S. Patel for the APMC in Daheda Group Seva Sahakari Mandali Limited (supra) decided on 27.4.2005. The following questions were referred to the Full Bench in the context of elections to the APMCs and the scope of Rule 28 of the APMC Rules constituting the Election Tribunal for Page 19 of 29 C/LPA/386/2018 CAV JUDGMENT deciding disputes relating to elections to APMCs:
I. Whether a person whose name is not included in the Voters' List can avail provisions of Rule 28 of the rules by filing election petition?
II. Whether the remedy under Rule 28 can be termed to be efficacious remedy?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the Voters' List? After considering various decisions of the Apex Court and also the decisions of various Benches of this Court, the Full Bench answered 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 Page 20 of 29 C/LPA/386/2018 CAV JUDGMENT Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.
28. Reading the entire decision of the Full Bench reveals that the question in the context of which the Full Bench was called upon to consider the controversy about maintainability of the petition was whether a member of the Managing Committee of a particular cooperative society was entitled to vote in his capacity as a member of the managing committee of such cooperative society and not merely by virtue of inclusion or deletion of his name in/from the voters list. The contention of the authorities in the said case was that the election petition under Rule 28 provides remedy for resolution of all facets of the dispute as to whether the name of a person being the member of the Managing Committee of a particular cooperative society should be permitted to participate in the election if he ceases to hold the post on the date of the election program. Similarly the question whether a particular cooperative society is dispensing agricultural credit or not would be ordinarily be a disputed question of fact. There cannot, therefore, be any dispute with the proposition that ordinarily the exclusion or inclusion of names from/in the voters' list can be challenged in an election petition under Rule 28 of the Rules, after the elections are held. But the Full Bench also held that the powers of this Court under Article 226 of the Constitution may be exercised in case of extraordinary or special circumstance such as where the order is ultra vires or nullity and/or exfacie without jurisdiction. The Full Bench also followed the principles laid down by the Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216 and Manda Jaganath vs. K S Rathnam, AIR 2004 SC 3600 laying Page 21 of 29 C/LPA/386/2018 CAV JUDGMENT down that any decision in the election process is open to judicial review on the ground of mala fide or arbitrary exercise of powers and that special situation justifying exercise of writ jurisdiction would mean correcting an error having the effect of interfering in the free flow of the scheduled election or error having the effect of hindering the progress of election.
29. After the above decision of the Full Bench rendered on 27.4.2005, in Pundlik vs. State of Maharashtra, decided on 25.8.2005 and reported at 2005 (7) SCC 181, the Apex Court held that though preparation of list of voters is one of the stages of election and that normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters, but such action must be in accordance with law. In the said decision, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Santha vs. State of Maharashtra, 2001 (8) SCC 509. In Shri Sant Sadguru's case objections against publication of provisional electoral roll of the Society were filed which were considered by the Collector and disposed of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the election program and the Apex Court held that the High Court should not stay continuation of the election process even though there may be some alleged irregularity or breach of the Rules while preparing the electoral roll. However, in the Pundlik case, the original petitioner had taken immediate action on receiving the fax message from the Collector."Page 22 of 29 C/LPA/386/2018 CAV JUDGMENT
25. Hence, when the action is ultra vires to the power or nullity or exfacie without jurisdiction, which is in the present case as that of Authorised Officer, we find that it would be an extraordinary or special circumstance which would call for interference in exercise of powers under Section 226 of the Constitution to maintain sanctity of the election and more particularly, for maintenance of sanctity of the election to be held, by upholding the democratic principles in a free and fair manner."
13. At this stage, it is required to be noted that the Hon'ble Supreme Court in the decision rendered in Management of Narendra & Company Private LImited v. Workmen of Nrendra & Company, reported in (2016) 3 SCC 340, discussed about the scope while dealing with intracourt appeal. It is held that in intracourt appeal, on a finding of fact, unless Appellate Bench concludes that findings of learned Single Judge were perverse, it shall not disturb the same. Merely because another or better view is possible, order of the learned Single Judge should not be interfered with.
Page 23 of 29 C/LPA/386/2018 CAV JUDGMENT
14. Thus, keeping in view the aforesaid decision rendered by the Division Bench of this Court as well as the Hon'ble Supreme Court in the facts and circumstances of the present case, we are of the view that when the Authorised Officer, while passing the order dated 07.02.2018, had not properly dealt with the objections raised by the petitioner after making necessary inquiry as per the Rules and when the learned Single Judge has exercised jurisdiction under Article 226 of the Constitution of India by quashing the said order, we do not find any illegality in the said order. Thus, the decision dated 22.07.2016 rendered by the Division Bench of this Court in Letters Patent Appeal No.201 of 2016 would not render any assistance to the present appellants in the facts and circumstances of the present case.
15. At this stage, we would like to refer to the provisions contained in Section 11 (1)(iii) of the Act, which provides as under:
"11. Constitution of market committee. Page 24 of 29 C/LPA/386/2018 CAV JUDGMENT (1) Every market committee shall consist of the following members, namely:
(i) ..............
(ii) ..............
(iii) two representatives of the cooperative marketing societies situate in the market area, holding general licences, engaged in the business in conformity with their respective objects and have their last accounts audited in class A, B or C, as the case may be, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies :
Provided that where the number of co operative societies so situate does not exceed two, only one representative shall be so elected;"
16. The 'Cooperative Marketing Society' has been defined in Section 2(v) as under:
"2.(v) 'cooperative marketing society' means a society registered or deemed to be registered as such under the Gujarat Cooperative Societies Page 25 of 29 C/LPA/386/2018 CAV JUDGMENT Act, 1961 and engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce and holding a licence;"
17. Thus, from the combine reading of the aforesaid provisions, it is revealed that as per Section 11(i)
(iii) of the Act, for being eligible to elect two representatives of the cooperative marketing societies, four conditions have to be satisfied by such societies i.e. (1) the cooperative marketing societies must have been situated in the market area, (2) they must hold general licences, (3) they must be engaged in the business in conformity with their objects and (4) they must have their last accounts audited in Class A, B or C, as the case may be.
18. From the facts discussed hereinabove, it is clear that respondent Nos.5 to 11 are registered only on 30.09.2017 and they have not got their accounts audited. Thus, such societies are not having their accounts audited in Class A, B or C. Therefore, the contention raised by learned advocate Mr.Vaghela is misconceived. We are of the view that as per the Page 26 of 29 C/LPA/386/2018 CAV JUDGMENT conditions, societies must have got their accounts audited in Class A, B or C being mandatory in nature.
19. At this stage, we would like to refer to the affidavitinreply filed by respondent No.2 Director. It is stated in the said affidavit that it is incumbent upon the marketing societies to have their last accounts audited in Class A, B or C as the case may be. Respondent No.2 has referred the Circular dated 07.03.2018 wherein necessary guidelines to be followed by all District Registrars and designated officers for the preparation of voters' list in consonance with the directions issued by this Court in the order dated 25.07.2017 passed in Special Civil Application No.11586 of 2017 and Special Civil Application No.11593 of 2017. It is stated that so far as the issue with regard to the necessary amendment in the Rule is concerned, respondent No.2 has prepared the draft and sent for necessary approval to respondent No.1 to give effect to the amendment. The proposed draft is produced along with the affidavit at Page 168 of the compilation. Page 27 of 29 C/LPA/386/2018 CAV JUDGMENT
20. The decision dated 21.08.2017 rendered by this Court in Letters Patent Appeal No.1249 of 2017 would also not render any assistance to the present appellants as, in the said case, the learned Single Judge held that the Authorised Officer had not committed any error in not incorporating the name of the petitioner No.2 in the preliminary, revised or final voters' list. However, the learned Single Judge thereafter gave direction to the Authorised Officer to substitute the name of the concerned petitioner No.2 in place of petitioner No.1 and, therefore, this Court held that the learned Single Judge ought not to have issued the directions to substitute the name on the ground that petitioner No.1 has to go abroad. The said ground does not constitute 'extraordinary' or 'special circumstance' warranting interference under Article 226 of the Constitution of India. However, as discussed hereinabove, the facts of the present case are different.
21. At this stage, it is required to be noted that the date of the election was 05.04.2018 and the learned advocates concluded their arguments only on Page 28 of 29 C/LPA/386/2018 CAV JUDGMENT 03.04.2018. Thus, now the election is already over on 05.04.2018.
22. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are of the view that the learned Single Judge has not committed any error which requires any interference in the present appeal. Accordingly, the appeal is dismissed. Consequently, Civil Application does not survive and stands disposed of, accordingly.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) piyush Page 29 of 29