Gujarat High Court
Kalubhai Ishrabhai Patel vs State Of Gujarat & 43 on 3 September, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/8717/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8717 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
made thereunder ?
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KALUBHAI ISHRABHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 43....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MRS MANISHA LAVKUMAR SHAH, GP assisted by MR DHAWAN JAYSWAL, AGP for the
Respondent(s) No. 1 to 4
DS AFF.NOT FILED (R) for the Respondent(s) No. 1 - 44
MR ANSHIN H. DESAI, ADVOCATE with MR ANAND V THAKKAR, ADVOCATE for the
Respondent(s) No. 5 - 44
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 03/09/2015
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner has challenged an order dated Page 1 of 32 HC-NIC Page 1 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT 08.05.2015, at Annexure-A to the petition, rejecting petitioner's objection to as many as 40 traders, whose names were included in the voters list in the traders constituency for the election to the Agriculture Produces Market Committee, Pathavada, Dist. Banaskantha. The litigation has long history.
2. Brief facts are as under:-
2.1 On 10.12.2014, the Director of Agricultural Marketing and Rural Finance Department, Government of Gujarat ("the Director" for short), published election programme for electing members to the said APMC. After completion of various stages, as per this notification, the election would be conducted on 10.03.2015, counting of the votes would take place on 11.03.2015, followed by declaration of the results of the elections. On the ground that revenue area of three villages, Pasavada, Satarvada and Rampura (Pasavada) were added within the geographical limits of the APMC, election programme was cancelled by issuing notification dated 13.02.2015, inviting objections to inclusion of these three villages within the APMC.
2.2 On 20.02.2015, agenda for the meeting to be convened on 28.02.2015 of APMC was circulated. One of the subjects was for consideration of the applications Page 2 of 32 HC-NIC Page 2 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT for grant of licences made on 06.12.2014. On 28.02.2015, the Committee granted new licences to 20 applicants.
2.3 In the meantime, on 22.02.2015, SCA No.3041 of 2015 came to be filed by this very petitioner for a direction for setting aside the decision of the Director dated 13.02.2015 to postpone the election of the APMC.
Consequential direction prayed for was that the election may continue as previously announced. This petition came to be disposed of by Division Bench by order dated 23.02.2015. The contention of the Government Pleader was that the proceedings for altering the existing market area of APMC to include the said three villages has already been initiated vide notification dated 31.01.2015 and the Director has already invited objections and suggestions against the said proposed inclusion. It was stated before the Court after considering objections and suggestions, final decision would be taken by the Director and thereafter election for the Market Committee could be held as early as possible. Upon which, the Court held and observed as under:-
"4. Heard, the learned advocates appearing for the respective parties. At the outset it is required to be noted that the Director respondent No. 2 herein, has already initiated the proceedings for alteration of the existing market area of APMC, Panthawada vide Notification dated 31/01/2015 and it is proposed to include three villages viz. Paswal, Shatarwada and Page 3 of 32 HC-NIC Page 3 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT Rampura (Paswal) into the existing market area of APMC, Panthawada and the objections / suggestions are invited against the aforesaid proposed action, as provided under Section 5 and 6 of the Act. As per the provisions of the Act, more particularly, Sections 5 and 6, 30 days time is required to be given for submitting the objections / suggestions against inclusion of the aforesaid three villages into the existing market area of APMC, Panthawada and thereafter, the election of newly constituted market area / market committee is required to be held. The apprehension on the part of the petitioners that the Director will take considerable time in concluding the proceedings for alteration of the existing market area i.e. inclusion of aforesaid three villages in the existing market area of APMC, Panthawada and that considerable time will be taken by the Director in holding the election of the newly constituted marker area / market committee, is not well-founded and/or it is only an apprehension. There is no reason for the Director not to complete the proceedings of alteration of the limits of the existing market area of APMC, Panthawada and not to hold the election of the newly constituted market area / market committee at the earliest. It is hoped that the Director, the respondent No. 2 herein, shall conclude the proceedings for alteration of the existing market area of APMC, Panthawada for which the Notification has been issued on 31/01/2015 (inviting the objections / suggestions) and shall hold the election of the newly constituted market area / market committee as early as possible and preferably within a period of three months from 1st March 2015.
2.4 On 23.03.2015, agenda for the meeting to be
held on 31.03.2015 was circulated. One of the agenda
items was to considered applications for grant of
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licences filed on 28.02.2015. Second subject to be
transacted was renewal of the licences previously
granted. On 31.03.2015, the Market Committee granted
additional new licences and renewed the existing
licences.
2.5 Since the elections for the APMC were not
announced and the time limit envisaged in the High Court order dated 23.02.2015 had expired, the petitioner filed yet another petition being SCA No.5378 of 2015 and prayed for a direction for declaration of the election programme immediately as provided by the High Court in the order dated 23.03.2015 in SCA No.3041 of 2015. Said petition came to be disposed of by Division Bench by order dated 27.03.2015 in following manner:-
"2. On advanced copy being served upon the office of the Government Pleader, Shri Prakash K. Jani, learned Additional Advocate General with Shri Jaiswal, learned AGP appeared on behalf of respondent Nos.1 to 3. Shri Jani, learned Additional Advocate General has stated at bar that election programme for the election of APMC, Pathavada shall be declared on or before 10.4.2015, however, same programme shall be declared as shall be declared in the case of APMC, Dhanera. He has also stated at bar that appropriate authority is conscious of direction issued by this Court in the judgment and order dated 23.2.2015 passed in Special Civil Application No.3041 of 2015 issued in para 4, by which the Division Bench of this Court has directed to hold the election of the newly constituted market area/market committee as early as possible and preferably within a period of three months from 1.3.2015.
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3. In view of the above, Shri Vaghela, learned advocate for the petitioners seeks permission to withdraw the present petition, as the cause does not survive. Permission is granted. The petition is dismissed as withdrawn."
2.6 On 03.04.2015, the Director issued a fresh election programme. As per this programme, declaration of election would be on 06.04.2015, which is also the date of intimation to the authorized officer for preparation of the voters list. After completion of the various stages, final publication of the voters list would take place on 22.05.2015, followed by nominations. Election would be conducted on 06.07.2015, counting of the votes would be on 07.07.2015 followed immediately by declaration of the results.
2.7 In furtherance of the said election programme, preliminary voters list for traders constituency was published by the authorised officer on 17.04.2015. On the ground that respondents No.5 to 44, whose names were included in the voters list, were newly granted licences, the petitioner objected to their inclusion in the said list. Such objection was filed on 01.05.2015 primarily on the ground that these persons were granted licences at the last moment only to inflate the voters list and tilt the balance in favour of the Chairman of the APMC. The authorized officer by his impugned order dated 08.05.2015 rejected such objections primarily on the ground that he Page 6 of 32 HC-NIC Page 6 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT cannot go behind the licences granted. All contentions with respect to the manner and method in which the licences were granted were not accepted. 2.8 At that stage, the petitioner filed the present petition, challenged the order of the authorized officer dated 08.05.2015 and further prayed for restraint order against the said respondents No.5 to 44 from voting in the election of the APMC in the traders constituency. The Division Bench of this Court in interim order dated 15.06.2015, noticed that out of the 40 persons with whom the petitioner had objected, 13 were the cases of renewal of licences already previously granted. Only 27 licences were granted in two lots by passing resolutions on 28.02.2015 and 31.03.2015. Referring to a detailed order dated 04.05.2015 passed in case of this very APMC pertaining to the agriculture constituency, the Division Bench was prima facie of the opinion that induction of 27 voters by issuance of licences at a late stage was done on the eve of the elections. Resultantly, while admitting the petition, the Division Bench, by way of interim order, stayed the decision of the authorized officer to include the names of the respondents No.5 to 31, i.e. 27 persons, whose names were included in the voters list of traders constituency in the ensuing elections of APMC.
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2.9 Two more developments took place after this
order was passed. First is that SCA No.7157 of 2015
pertaining to the election of the members in agriculture constituency in the same APMC came to be withdrawn as having become infractuous on 08.07.2015. Second was that the elections as scheduled were held on 06.07.2015, of course, the 27 disputed voters not being allowed to vote. It is not necessary to take detailed note of the number of votes polled by 8 contestants. Suffice it to record that 27 votes, if allowed to cast, would have potential of materially effecting the results.
3. In background of such facts, learned Counsel Shri Dipen Desai for the petitioner submitted that at all stages, the design and intention on part of the Chairman and his supporters in the APMC to induct voters at the last minute to affect the outcome of the election is manifested. He would contend that the previous election programme once declared was called off on the pretext that new areas of three villages are required to be added in the APMC when the Revenue Department had already added the villages way back in the year 2009. Thus, this factor was used only as a rouse to cancel the election once programme was already declared by the Director. In the meantime, process was undertaken to grant new licences, which would enable the licence holders to be Page 8 of 32 HC-NIC Page 8 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT included in the voters list. Even the directions issued by the High Court in its order dated 23.02.2015 to complete the election within the stipulated time were not carried out. Only when the petitioner filed fresh petition, a statement came to be made that the election programme will be declared latest by 10.04.2015. In the meantime, in two lots, APMC on 28.02.2015 and 31.03.2015 granted as many as 27 licences. Even though these licences were granted, names of the licence holders could not have been included in the voters list had the authority adhered to the time frame provided by the High Court in its order dated 23.02.2015 and declared the election programme accordingly. He therefore submitted that the concept of induction of new voters on the eve of election only to convert minority in the majority should be applied in the present case.
4. Counsel relied on following decisions:-
I. In case of Kalubhai Ranabhai Akabari Vs. State of Gujarat & Ors., reported in 2007 (3) GLH, page No.57, in which the Division Bench held that the relevant date for determining eligibility of a person for inclusion in the voters list would be the date on which the authorized officer is to be communicated the names as indicated in Page 9 of 32 HC-NIC Page 9 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT sub-rule (1) of Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter to be referred as "the said Rules").
II. In case of Shrutbandhu H.Popat Vs. State of Gujarat & Ors., reported in 2008 (1) GLH, page No.575, in which the Court found that large number of licences were granted in arbitrary and malafide manner with a sole purpose to give artificial majority to outgoing office bearers of the Market Committee. It was held that the resolution of the Market Committee to grant fresh licences was not only illegal but also fraud on election process. In this background, referring to the decision of the Supreme Court in case of Election Commission of India Vs. Ashok Kumar, 2000 (8) SCC 216, the Court held that intervention in the election even after the election process had commenced would be justified. The Bench also expressed an opinion that remedy provided under Rule 28 of the Rules concerning the disputes to the election before the Election Tribunal Page 10 of 32 HC-NIC Page 10 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT would be limited to the extent that Election Officer and the Election Tribunal will only examine the challenge to exclusion or inclusion of certain persons in the voters list with a limited aspect whether they were holding general licences. The Election Tribunal is not vested with any jurisdiction to examine whether the licence was granted in accordance with the relevant provisions of the Act and the Rules. The matter is to be decided only by the APMC and the Director under sub-sections (4) and (5) of Section 27 of the Gujarat Agricultural Produce Markets Act, 1963 ("the Act" for short).
III. In case of Chandrakant Manibhai Patel Vs. State of Gujarat & Ors., reported in 2013 (3) GLH, page No.778, where the Court found that in the traders constituency of the concerned APMC, as against 300 to 400 persons holding licences and who would be eligible to be included in the voters list, on 01.05.2013, office bearers of the Market Committee had granted fresh Page 11 of 32 HC-NIC Page 11 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT licences to 1164 new traders. The election of the Market Committee was announced on 03.05.2013. In such background, the Division Bench observed that elections should be held in free and fair manner and none should be allowed tinker with the sanctity of election in a manner which may either result into artificial majority or otherwise consequently affect the democratic principles. It was further observed that the appropriateness of inclusion of the voters may also be in certain cases examined by the Court, particular when serious allegations of bias are made.
IV. In case of Mahendra Maganbhai Patel Vs. State of Gujarat, reported in 2014(0) GLHEL-HC 230715, in which the election programme for the APMC was declared by the Director by issuing notice on 17.11.2013, which was published in the local newspaper on 21.11.2013. In its meeting dated 20.11.2013, the APMC granted new licences to 58 traders, which according to the petitioner was done solely with a view to Page 12 of 32 HC-NIC Page 12 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT secure artificial majority by the outgoing officer bearers. The Court noted that minus 58 new licence holders, there are only 48 traders who had licences. In this background, the Court observed that "The only conclusion of the above can be that it is nothing but a malafide exercise of powers so as to make them eligible for inclusion in the voters list of Traders Constituency, to create an artificial majority which would not only be illegal but would be a fraud on the election process and against democratic principles".
V. Reliance was also placed on decision of
Division Bench dated 09.12.2011 in SCA
No.16249 of 2011 in case of Vasundra
Samudayik Kheti Sahakari Mandali Limited
Vs. State of Gujarat & Ors. in support of the contention that in rare and exceptional cases of extraordinary situation, the Court's intervention under Article 226 of the Constitution of India, even after election programme is declared would be permissible.
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5. On the other hand, learned Government Pleader Mrs.Manisha Shah opposed the petition contending that by virtue of the decision of Full Bench of this Court in case of Daheda Group Seva Sahakari Mandali Limited Vs. R.D.Rohit, Autho. Officer & Co. Operative Officer (Marketing), reported in 2006 (1) GCD, page No.211, scope of interference in an election matter of local authorities once the election process has commenced would be extremely narrow. She submitted that licences were granted long before the election programme was declared. Prior to granting of such licences, there were as many as 166 traders who held the licences. Majority of the business was transacted by the Market Committee in its meeting dated 31.03.2015 for granting renewals. In any case, working of Market Committee cannot be paralyzed by putting any artificial fetters not flowing from the statutory provisions on the discharge of its powers and functions. Counsel also relied on a decision of Division Bench of this Court dated 10.12.2014 in SCA No.6415 of 2014 in case of Patel Narendrakumar Kanjibhai Vs. State of Gujarat & Ors., where the petitioner had raised grievance about large number of licences being cancelled to tilt the majority, held and observed as under:-
"10. Considering the fact that the licenses were renewed / granted in the month of March, April and June 2010 and the election came to be Page 14 of 32 HC-NIC Page 14 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT declared only in the month of September 2010, it cannot be said that the licenses were renewed / granted only with a view to create artificial majority and / or to inflate the voters, which may fall within the parameters laid down by the Division Bench of this Court in the case of Mahendra Maganbhai Patel (supra)."
6. Learned Advocate Shri Anshin Desai appearing for respondents No.5 to 44 pointed out that 13 out of 40 licence holders had merely been granted renewals. He pointed out that the Division Bench in its interim order dated 15.06.2015 therefore drew clear distinction in their cases and permitted them to vote in the elections. With respect to remaining 27 licence holders, Counsel pointed out that the licences were granted by the Market Committee long before the election programme was declared by the Director. Cut-off date envisaged by Division Bench in case of Kalubhai Ranabhai Akabari (supra) cannot be stretched to include the cases of the present respondents. The petitioner does not dispute the genuineness of the traders and the decision of the Market Committee to grant them licences to trade within the market area. Drawing our attention to the various developments leading to filing of the present petition, Counsel would strongly urge that the present case does not fall within the category of induction of new members on the eve of election to tilt the balance in favour of the outgoing office bearers of the Market Committee. He Page 15 of 32 HC-NIC Page 15 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT submitted that democratically elected committee must be allowed to function, preserving its autonomy. He also urged that interference in the election programme once the election is declared would be rare and exceptional and cannot be made without strong facts on record. In this context, he placed heavy reliance on the Full Bench decision in case of Daheda Group Seva Sahakari Mandali Limited (supra). Reliance was also placed on the decision of the Supreme Court in case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. Vs. State of Maharashtra & Ors., reported in (2001) 8 SCC, page No.509.
7. Having thus heard learned Counsel for the parties and having perused documents on record, a short controversy, which is not possible of an equally short answer, is whether in facts of the present case, it can be stated that granting 27 new licences to the traders by the Market Committee was on the eve of the election and aimed solely at artificially securing majority for the outgoing office bearers. Before adverting to various judicial pronouncements of this Court on this issue, we may refer to some of the statutory provisions. The said Act was enacted to consolidate and amend the law relating to the regulation of buying and selling of agricultural produce and the establishment of markets for agricultural Page 16 of 32 HC-NIC Page 16 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT produce in the State of Gujarat. Section 11 of the Act pertains to constitution of market committee. We notice that this Section has undergone major amendments by virtue of Amending Act 14 of 2015. However, we are concerned with the unamended provisions and we would refer to such provisions in this order. Sub-section (1) of Section 11 provides that every market committee shall consist of the following members, which includes four members to be elected in the prescribed manner from amongst those traders holding general licences. Sub- section (4)(a) of Section 11 provides that the term of the office of a market committee shall, save as otherwise provided in the Act, be four years from the date of the first general meeting. As per Clause-(b) of sub-section (4) of Section 11, the term of the office members of the market committee shall be coextensive with the term of the market committee.
8. Detailed procedures for election of the members of the market committee are contained in the said Rules. Part-III thereof pertains to election of market committee. Rule-4 pertains to fixation of date of election and reads as under:-
"4. Wherever a general election to a market committee or a bye election under section 15 is to be held, the Director shall, by an order in writing, fix a date of such election and publish such order by affixing a copy thereof Page 17 of 32 HC-NIC Page 17 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT in the office of the market committee and at a conspicuous place in the principal market yard in the market area."
9. Rule 5 envisages preparation of different lists of voters. Rule 6 provides that a person whose name is entered in and list of voters shall be qualified to vote at an election to which the list of voters relates unless he has ceased to hold the capacity in which his name was entered in such list. Rule 7 pertains to preparation of list of voters for general elections. Rule 8 envisages provisional and final publication of list of voters. Rule 10 pertains to fixing stages of election and reads as under:-
"10. (1) An election shall be held between such hours and on such date and at such places as may be fixed by the Director.
(2) Not less than 40 days before the date fixed for the election under rule 4, the Director shall publish in Gujarati a notice stating:-
(a) the number of persons to be elected by the respective electorate,
(b) the date on which, the place at which and the hours between which nomination papers shall be presented to the Election Officer, such date not being earlier than 14 days from the date of the publication of the notice.
(c) the date on which, the place at which and the hours between which the nomination papers shall be scrutinised.
(d) the date on which, the place at which and the hours between which the votes shall be taken.Page 18 of 32
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(e) the date on which, the place at which and the hours between which the votes shall be counted.
10. Rule 11 pertains to nominations. Rule 13 pertains to verification of nominations objected by the Election Officer. Rules 14 to 17 provide for different stages for publication of list and nominations, withdrawal of candidature. Rule 18 pertains to procedure and election and reads as under:-
"(1) If the number of candidates who are duly nominated and who have not withdrawn their candidature under sub-rule (1) of rule 17 exceeds that of the vacancies to be filled, a poll shall be taken and election shall be by ballot.
(2) If the number of such candidates is equal to the number of vacancies, all such candidates shall be declared to be duly elected.
(3) If the number of such candidates is less than the number of vacancies, all such candidates shall be declar3ed to be duly elected, and the remaining vacancy or vacancies shall be filled in accordance with the provision of sub-section (3) of section 11.
11. Rule 23 provides that if during an election, there is equality of votes between any two candidates, the successful candidate would be selected by drawing of lots. Rule 28 pertains to determination of validity of election and reads as under-
"28. (1) If the validity of any election of a member of the Market Committee is brought in Page 19 of 32 HC-NIC Page 19 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT question by any person qualified either to be elected or the 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, of 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 of 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 fresh election for filling up the vacancy of such member.
12. It can thus be seen that in order to ensure free and fair elections for constitution of a market committee, whose elected members would hold their positions for the full term of four years of the life of the market committee, detailed provisions have been made in the said Rules. The Rules envisage different stages through which once the Director declares the election programme, the conduct of the election would pass, ultimately culminating into counting of votes and declaration of result of the election.
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13. The Rules do not expressly provide for non-
inclusion of any person in the voters list who has been granted licence by the market committee after a particular date. However, the Courts are always alive to a situation where by last minute manipulation attempt is made by the committee's outgoing office bearers, who may often times also have blessings from the official machinery to perpetuate the power. It was in this context therefore that the Division Bench of this Court in case of Kalubhai Ranabhai Akabari (supra) related the eligibility of a person for inclusion in the voters list with the date by which the authorised officer is to be communicated the names as indicated in sub-rule (1) of Rule 7 of the said Rules. Shortly thereafter, in case of Shrutbandhu H.Popat (supra), the Division Bench noticed rather glaring facts. It was noticed that the Deputy Director of Agricultural Marketing and Rural Finance had sent a communication on 10.01.2007 for fixing the date of election and the Director had also declared the election programme on 17/18.01.2007. Meeting of the licence committee of the APMC was convened on 20.01.2007, i.e. after the said two events, during which as many as 269 fresh licences were issued. It was in this background the Division Bench concluded that such action was not only illegal but was also a fraud on election process.
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This gave rise to an extraordinary situation, justifying intervention of the Court for the purpose of striking down the resolution dated 20.01.2007. It was directed that the authorities would not permit such persons to vote at the ensuing elections. Thus, in fact situation, the Court advanced the date for disqualifying a person newly granted licence from voting to the date of publication of the election programme by the Director. In this context, the Court also expressed an opinion that in such situation, remedy provided by Rule 28 of the Rules for election petition would not be efficacious. It was observed that such remedy is limited to the extent that Election Officer and the Election Tribunal will only examine the challenge to exclusion or inclusion of certain persons in the voters list with a limited aspect whether they were holding general licences. The Election Tribunal is not vested with any jurisdiction to examine whether the licence was granted in accordance with the relevant provisions of the Act and the Rules. The matter is to be decided only by the APMC and the Director under sub-sections (4) and (5) of Section 27 of the Act. The Court observed as under:-
"13. We find considerable force in the submissions of Mr Mihir Joshi, learned Additional Advocate General and the learned counsel for the petitioners that the remedy provided by Rule 28 of the Rules is limited to the extent that election officer and the Page 22 of 32 HC-NIC Page 22 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT Election Tribunal will only examine the challenge to exclusion or inclusion of certain persons in the list of voters for the constituency of traders holding general licences under clause (ii) of sub-section (1) of Section 11 of the Act only with the limited aspect whether they were traders holding general licences. The Election Tribunal is not vested with any jurisdiction to examine whether the licence was granted in accordance with the relevant provisions of the Act and the Rules. On the contrary, the matter is to be decided only by the APMC and the Director under the provisions of sub-sections (4) and (5) of Section 27 of the Act. In the election petition under Rule 28, there cannot be any collateral challenge to the grant, renewal, refusal, cancellation or suspension of general licences of traders."
14. The quest of the Courts for ensuring elections, often referred to as free and fair elections to a democratic institution like APMC, which otherwise enjoys a statutory status, did not end here nor extraordinary situations every once in a while presenting themselves before the Court ceased. As noted, in case of Chandrakant Manibhai Patel, the Court noticed that previously there were only 300 to 400 licence holders. On 03.05.2013, the Director had appointed Election and Autthorised Officers in terms of Rule 4 of the said Rules. He also declared various stages for holding election. Shortly before that, on 01.05.2013, the Market Committee had granted as many as 1164 new licences to the traders. It was in this background, the Court applied the principle of artificial inflation of majority by Page 23 of 32 HC-NIC Page 23 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT inducting favourable voters on the eve of elections. The Court applied the principle of real bias, fraud on the statute and also considered the question whether such exercise can be tested on the ground of not only legality but also propriety.
15. Likewise, in case of Mahendra Maganbhai Patel (supra), the Division Bench noticed that there were existing 48 traders holding general licences. The APMC in its meeting dated 20.11.2013 granted 58 fresh licences. The election programme was declared by the Director on 17.11.2013, which was published in the newspaper on 21.11.2013. In this background, the Court opined that only conclusion possible was that the action is nothing but a malafide exercise of powers to make the new licence holders eligible for inclusion in the voters list to create an artificial majority. In the process, the Court also considered the contours of the powers of the Authorized Officer while preparing the voters list. The Court was of the opinion that even while preparing preliminary voters list, the Authorized Officer should be given certain particulars such as full names of the traders holding general licences along with place of residence. If such particulars are not provided, the Authorized Officer may call for relevant particulars to satisfy himself about the same. The Court was of the Page 24 of 32 HC-NIC Page 24 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT opinion that this would ensure maintenance of democratic principles.
16. In the present case, the real question is not whether the Court should interfere at an interim stage of conduct of election once the election programme has been declared and the election process has commenced. The Court has intervened and passed an interim order precluding certain licence holders from voting. The question is whether concept of induction of members on the eve of election to tamper with the democratic process can be applied. As noted, in different situations, the Courts have either chosen to or refused to interfere with induction of new members at a late stage shortly before conduct of the elections. Such restrictions were made on the ground of malafide exercise of powers or what was viewed as a complete fraud on the statute, on the grounds of bias or even impropriety. The common thread through all these judgments is the topmost anxiety of the Courts to ensure free and fair elections and to the possible extent eliminate manipulation and interference by the office bearers and the State machinery. To all these categories already mentioned by different Courts in different judgments noted above, we may add one more, viz. attempt on part of the committee's outgoing office bearers to perpetuate the power through unfair means by Page 25 of 32 HC-NIC Page 25 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT using official machinery and in some cases, with the aid of the State mechanism.
17. There is, however, thin line between deft political maneuvering and gross abuse of the official powers. The Court, while expressing its anxiety to ensure an election insulated from the external pressures, would also be acutely conscious of its respect for the democratic process of holding an election as per the statutory provisions. With this, we may revisit the facts. It is true that the election of the AMPC was delayed on ground which itself was not a fresh one. As noted, at one point, the Director announced election programme on 10.12.2014, which envisaged what the election would be completed by 11.03.2015. However, on the ground that areas of three new villages would have to be included in the market area, the election programme was abandoned midway. It is also true that addition of three new villages was not a recent phenomena. However, this by itself cannot be a ground to attribute malafide on behalf of the Director or the State authorities, that too in absence of any serious allegations in this respect. All that, therefore, have on record is that when the petitioner urged the Court to direct the respondents to continue the election programme undisturbed, the Court in its order dated 23.03.2015, did Page 26 of 32 HC-NIC Page 26 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT not accept such formula on the ground that when the possible addition of new villages, entire constitution of market area would undergo a change. While expecting the authorities to complete the process of inducting new villages in the market area expeditiously, the Court expressed a hope that the election shall he held for the market committee as early as possible, preferably within a period of three months from 01.03.2015. It is true that this time line was not scrupulously followed by the respondents. The petitioner was therefore forced to move yet another petition, in which a statement was made that election programme would be declared latest by 10.04.2015.
18. In the meantime, on an agenda circulated on 20.02.2015, through resolution dated 28.02.2015, some 20 new licences were granted. Few more licences were granted on 31.03.2015, for which agenda was circulated on 23.03.2015. The case of the petitioner is not that such licences were wrongly granted; that the licence holders were not genuine traders; that their applications for grating licences were incomplete. Counsel for the petitioner, in fact, clarified that the petitioner has not challenged the resolution of the market committee to grant such licences. We may also recall that there were previously 166 general licence holders in the traders Page 27 of 32 HC-NIC Page 27 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT constituency. 27 new licences have been granted during February and March 2015. The new election programme was declared on 03.04.2015. The facts of the present case do not suggest stretching concept of artificial induction of large number of voters to influence the outcome of the ensuing elections. Neither averments in the petition nor facts on record are strong enough to view the entire exercise by the market committee as one integrated attempt to first delay the election on wrong pretext and then to further delay declaration of new election till the Chairman successfully inducted new traders, who may be favourable to him. As noted, the line of distinction between deft political maneuvering and abuse of power is sometimes thin. In the anxiety to ensure fairness in election process, the Court would not take a view which would either limit the powers of elected autonomous body or to paralyze its functions long before the election is declared.
19. Learned Counsel Shri Dipen Desai for the petitioner drew our attention to an order dated 23.09.2011 passed in Contempt Petition No.2403 of 2011 in case of Dilipbhai C.Nathwani Vs. State of Gujarat Through Secretary & Ors., where the Court took a strong objection to the Director not holding elections as directed by the Court and in the meantime, the market committee granting Page 28 of 32 HC-NIC Page 28 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT new licences. However, it is a case where the Court had given specific schedule and application for extension of time was refused, finding that the respondents were in clear contempt and in the meantime, had also inducted new members. In the present case, as noted, the Division Bench had not given a rigid time limit nor any directions to complete the elections before a certain last date. It is true that when the Court expresses a hope, the authorities are expected to carry out the wish of the Court. Nevertheless, expression of hope cannot be equated with issuance of direction. The Court also used the term "preferably", clearly indicating that there was no clear direction for completion of election before certain date without fail. The order permitted and the respondents are allowed a little degree of flexibility.
20. In case of Shrutbandhu H.Popat (supra), the Division Bench was of the opinion that the Election Tribunal and the Election Officer would not be able to decide whether licence granted was in accordance with relevant provisions of the Act and the Rules and such issues are to be decided only by the APMC and the Director in appeal. In case of Mahendra Maganbhai Patel (supra), the Division Bench interpreted the relevant Rules and expressed an opinion that if the Authorized Officer finds that the licences were issued after Page 29 of 32 HC-NIC Page 29 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT declaration of the election under Rule 4 or after the declaration of election programme under Rule 2 or on the eve of the declaration, in that case, considering the decision of the High Court, he may not include names of these persons in the voters list. In the present litigation, we need not thrash out this issue. We may, however, plant the seeds of doubt, which, in proper case, may have to be considered. While entrusting power to the Authorized Officer to apply principle of induction of voters on the eve of elections with malafide intention, whether, in order to eliminate one evil, would we not be opening the possibility of creating another one?
21. The petition would therefore have to be dismissed. Before closing, however, a tricky issue of restoring the position prior to passing of the interim order dated 15.06.2015 would have to be tackled. In the election conducted, in compliance with the interim directions of the High Court, two candidates polled equal number of votes. Out of four seats for traders constituency, the fourth had to be decided through drawing of lots. Counsel Shri Anshin Desai stated that unsuccessful candidate has filed an election petition which is pending. One possibility therefore is to vacate the interim order and allow the election petitioner to pursue his remedies with the aid of this judgment. The Page 30 of 32 HC-NIC Page 30 of 32 Created On Tue Sep 08 01:13:22 IST 2015 C/SCA/8717/2015 JUDGMENT second possibility would be to ensure re-election for all four seats in the traders constituency. Since the possible outcome, if 27 licence holders were allowed to vote, cannot be predicted, particularly looking to the number of votes polled by the four successful candidates. However, none of these four candidates are joined as respondents in this petition. Therefore, it would not be possible to pass any such order in their absence. We therefore adopt the first formula and allow the election petitioner to pursue his election petition on the basis of functioning of interim relief previously granted.
22. In the result, the writ petition is dismissed. Rule is discharged. Interim relief is vacated.
23. At this stage, learned Counsel Shri Dipen Desai requested for continuing the interim relief previously granted for a period of six weeks to enable the petitioner to approach the Supreme Court. Request was strongly opposed by the respondents. However, in view of the fact that elections are over and the interim relief is operating since long, this order shall stayed till 15.10.2015.
(AKIL KURESHI, J.)
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C/SCA/8717/2015 JUDGMENT
(MOHINDER PAL, J.)
SHITOLE
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