Ramansinh Narsinh Rathod vs State Of Gujarat & 19 on 21 July, 2017

[Cites 15, Cited by 23]

Gujarat High Court

Ramansinh Narsinh Rathod vs State Of Gujarat & 19 on 21 July, 2017

========================================================== RAMANSINH NARSINH RATHOD....Petitioner(s) Versus STATE OF GUJARAT & 19....Respondent(s) ========================================================== Appearance:

MR DIPEN DESAI, ADVOCATE for the Petitioner(s) VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 - 3 MR VC VAGHELA, ADVOCATE for the Respondent(s) No. 5 - 20 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 21-25/07/2017 ORAL COMMON JUDGMENT Page 1 of 20 HC-NIC Page 1 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT

1. Both the petitions pertain to the orders passed by the authorized officer in respect of the election of Agriculture Produce Market Committee, Rajpipla (hereinafter referred to as "the APMC, Rajpipla"), and therefore, are being decided by this common judgement. The petitions were heard finally at the admission stage with the consent of the learned advocates for the parties.

2. The petitioner in SCA No.11586 of 2017 has challenged the impugned order dated 8.6.2017 passed by the respondent Authorized Officer at Annexure-A, holding the respondent Nos.5 to 20 eligible traders for participating in the election of APMC, Rajpipla from the Traders' Constituency as per Section 11(1)(ii) of the Gujarat Agriculture Produce Market Act, 1963 (hereinafter referred to as "the said Act").

3. The petitioner in SCA No.11593 of 2017 has challenged the legality and validity of the order dated 8.6.2017 passed by the respondent authorized officer (Annexure-A), holding the members of the managing committee of the respondent Nos.5 to 10 Societies eligible for participating in the said election from the Cooperative Marketing Societies' Constituency as per Section 11(1)(iii) of the said Act. Both the orders have been assailed on the ground of being arbitrary and tainted by mala fide and colourable exercise of powers.

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4. The factual matrix in both the petitions may be summarized as under:-

4.1 As per the case of the petitioner in SCA No.11586 of 2017, the election of the APMC, Rajpipla was declared by the respondent No.2 Director on 5.5.2017 and the election programme was published on 8.5.2017 (Annexure-B). The respondent No.4 having been appointed as the authorized officer, he had published the preliminary list of voters for the traders' constituency. The petitioner, who was the trader and the Chairman of the Rajpipla Anaj Kariyana Vepari Association had raised the objections against the inclusion of the names of the respondent Nos.5 to 20 and others in the said voters' list of traders. According to him, some of the respondents were dealing in fruits and vegetable, some were dealing in fertilizer and some were dealing in sugarcane, which were not the regulated items. It was also alleged that some of the respondents were the distributors and some were running fair-price shop, who could not be said to be the traders and could not be included in the voters' list. The respondent No.4, rejected the said objections vide the impugned order holding without assigning any reasons that the respondent Nos.5 to 20 were eligible to be included in the voters' list of the traders' constituency as per Section 11(1)

(ii) of the said Act.

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HC-NIC Page 3 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT 4.2 The petitioner in SCA No.11593 of 2017 is the member of the managing committee of Rajuvadiya Telibiya Utpadak Sahakari Mandali Limited and he is included in the voters' list of the cooperative marketing societies' constituency for election of APMC, Rajpipla. The respondent No.4 having been appointed as the authorized officer had published the preliminary voters' list of the cooperative marketing societies' constituency on 21.5.2017. The petitioner had raised the objections against inclusion of the members of the managing committee of the respondent Nos.5 to 10 societies on the ground that the said societies being not the cooperative marketing societies, were not eligible to be included in the said voters' list. However, the said objections were rejected by the respondent No.4 vide the impugned order dated 8.6.2017 by holding without assigning any reasons that the said respondent societies were eligible to be included in the voters' list of the cooperative marketing societies' constituency as per Section 11 (1) (iii) of the said Act.

4.3 Both the petitions were resisted by the respondents by filing their respective replies. The concerned private respondents had initially filed their common reply, however, the Court having taken serious view in the matter, some of the respondents filed their individual replies along with the documents in support of their respective contentions that they were eligible Page 4 of 20 HC-NIC Page 4 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT traders/cooperative marketing societies as per Section 11(1) of the said Act.

5. The learned Advocate Mr.Dipen Desai for the petitioner, taking the Court to the affidavits filed on behalf of the respondents, submitted that the respondent Nos.9, 13, 14 and 17 in SCA No.11586 of 2017 and the respondent Nos.8 and 10 in SCA No.11593 of 2017 have not filed their respective affidavits-in-reply, and therefore, an adverse inference is required to be drawn against them that they were not qualified for being included in the voters' lists of the traders' constituency or/and in the cooperative society constituency. He vehemently submitted that though the petitioner had filed the detailed objections against the said respondents, the respondent authorized officer without considering the said objections and without assigning any reasons had rejected the same. According to him, the respondent authorized officer had made false statements in the impugned orders with regard to the perusal of amended bye-laws of the concerned societies inasmuch as undisputedly the respondent Nos.8 and 10 had neither amended their bye-laws, nor produced any such amended bye-laws before him.

6. The learned AGP Mr.Venugopal Patel for the respondent authorized officer producing the original register with regard to the payment of fees and other material submitted that the Page 5 of 20 HC-NIC Page 5 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT concerned respondents in the traders' constituency had paid up the fees for the trading done by them in the previous financial year. According to him, most of the said respondents had paid up fees on the last day i.e. 31.03.2017, however such payment was not prohibited. He further submitted that relying upon the material placed before him, the respondent authorized officer had found the concerned respondents eligible for being included in the voters' lists of the traders' constituency or cooperative marketing society constituency, as the case may be.

7. Mr.V. C. Vaghela, learned Advocate appearing for the private respondents in both the petitions had fairly submitted that some of the respondents in both the petitions had not filed their affidavits-in-reply to dispel the allegations made against them, however, according to him the other respondents were qualified to be included in the voters' lists. He also submitted that an alternative remedy of approaching the competent authority under Rule 28 of the said Rules being available to the petitioners, and the inclusion or exclusion of the names in the voters' list being not an extraordinary circumstance, the Court may not interfere with the impugned orders, while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India.

8. Having thoroughly considered the submissions and Page 6 of 20 HC-NIC Page 6 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT the material placed on record, it appears that the impugned orders, passed by the authorized officer including the names of the concerned respondents in the voters' list of traders' constituency / the cooperative marketing societies' constituency, have been challenged by the petitioners mainly on the ground that the said orders have been passed dehors the record and in arbitrary and mala fide exercise of powers conferred upon the authorized officer. The law as regards the scope of judicial review in the matter of election is quite well settled, however, the same may be regurgitated in order to appreciate the rival contentions raised by the learned Advocates for the parties.

9. The Full Bench in case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing) reported in 2006 GCD 211 (SCA No.2489 of 2005 dt. 27.4.2005) has held that the exclusion or inclusion of names in the voters' list can not be termed as an extraordinary circumstances warranting interference by High Court under Article 226 of the Constitution of India. The relevant findings be reproduced as under :-

"33. In view of the above discussion, we answer the Reference as under:

i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Page 7 of 20 HC-NIC Page 7 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT Election Petition.

ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.

iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."

10. The Supreme Court in case of Election Commission of India Vs. Ashokkumar, reported in (2000) 8 SCC 216, after considering various judgements, held inter alia that the Court must guard against any attempt at retarding, interrupting, protracting or stalling of election proceedings. Care has to be taken to see that there is no attempt to utilize the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. However, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of Page 8 of 20 HC-NIC Page 8 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. In case of Pundlik Vs. State of Maharashtra and Ors., reported in (2005) 7 SCC 181, also Supreme Court observed inter alia that though preparation of voters' list is integral part of election process and normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution of India at the stage of preparation of the voters' list, but such action must be in accordance with law.

11. The Court at this juncture also finds it necessary to reproduce the relevant provisions of the Act and the Rules. Section 11 of the said Act deals with the constitution of the market committee. The relevant part thereof as amended by the Gujarat Act No. 14/2015 is reproduced as under:-

"11. Constitution of market committee. (1) Every Market Committee shall consist of the following members, namely : [i] eight agriculturists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area, shall be elected by the members of managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area.";

(ii) four members to be elected in the prescribed manner from amongst themselves by Page 9 of 20 HC-NIC Page 9 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT the traders holding general licenses, who have traded in full conformity with the terms and conditions of the licence in the previous financial year and the fees payable by them has not remained unpaid;

(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 cooperative marketing societies so situate does not exceed two, only one representative shall be so elected; ... "

12. Some of the relevant definition clauses as contained in Section 2 also may be reproduced, as under :-

"2. Definitions. In this Act, unless the context otherwise requires

(i) "agricultural produce" means all produce, whether processed or not, of "agriculture and horticulture specified in the Schedule."

......................

(v) "cooperative marketing society" means a society registered or deemed to be registered as such under the Gujarat Cooperative Societies Act, 1961 (Guj. X of 1962), and engaged in the business of buying or selling of agricultural produce or of possessing of agricultural produce and holding a licence.


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                C/SCA/11586/2017                                                     JUDGMENT




                     .......................

(ix) "licence" means a licence granted under section 6 or, as the case may be, a general or special licence granted under Section 27.

........................

(xiii) "market area" means any area declared or deemed to be declared to be a market area under this Act.

........................

(xxiii) "trader" means any person, who carries on the business of buying or selling of agricultural produce or of processing of agricultural produce for sale and includes a cooperative society, joint family or an association of persons, whether incorporated or not, which carries on such business.

13. So far as the Gujarat Agricultural Produce Market Rules 1965 framed under the Act are concerned, Rule 5 thereof envisages preparation of three separate lists of voters for the purpose of Section 11. Rule 7 deals with the preparation of the list of voters for general election, which reads as under: "7. Preparation of list of voters for general election. (1) Whenever a general election to market committee is to be held:

(i) every cooperative society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing committee together with the place of residence of each members.




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(ii)the market committee shall communicate the full names of the traders holding general licences in the market area together with the place of or residence of each such trader; and

(iii) every cooperative marketing society shall communicate the full names of the members of its managing committee together with the place of or residence of each such member.

to the authorised officer before such date as the Director may by order fix in that behalf;

Provided that the date to be so fixed shall not be later than sixty days before the date of the general election.

(2) The authorized officer shall within seven days from the date fixed under sub rule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the information received under subrule (1) and, if necessary, after making such inquiry as he may deem fit.

(3) Every list of voters shall show the full name, place of residence and the serial number of each voter."

14. At this juncture it is required to be noted that Section 11 was amended in the year 2015 by Gujarat Act No.14 of 2015, however, the corresponding amendments in the Rules and more particularly in the Rule 7 have not been made. As a result thereof, the requisite particulars and information as regards the eligibility of the voters as per the amended provisions of Section 11 are not being provided to the authorized Page 12 of 20 HC-NIC Page 12 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT officer before the preparation of the voters' lists of the three constituencies under - 7 of the Rules. Non amendment in the Rules in conformity with the amended provision of Section 11 leads to the passing of arbitrary orders at the instance of the authorized officer as regards the inclusion or exclusion of the persons in the respective voters' lists. The Court in the instant petitions, having prima facie smacked of arbitrary exercise of powers by the respondent authorized officer, had directed the learned AGP to produce the original record of the proceedings for the perusal of the Court. On the perusal of the original register maintained by the APMC with regard to the payment of fees by the traders and other material, the Court had found substance in the allegations made by the petitioners that some of the respondents had not paid up the fees and had not traded in the previous financial year, to become eligible for voting in the election in question.

15. So far as the preparation of the voters' list for Traders' Constituency was concerned, the authorized officer was required to satisfy himself that the concerned persons were the traders as defined under Section 2(xxiii) of the said Act; that they were holding the general licence; that they had traded in full conformity with the terms and conditions of the licence in the previous financial year and that the fees payable by them had not remained unpaid. When the Page 13 of 20 HC-NIC Page 13 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT objections were raised by the petitioner of petition being SCA No.11586 of 2017, the respondent authorized officer without considering the said objections and without assigning any reasons had rejected the same by holding that the concerned respondents were eligible traders as per Section 11(1) (ii) of the said Act. It is pertinent to note that though other respondents in Special Civil Application No.11586 of 2017 have filed their respective replies, the respondent Nos. 9, 13, 14 and 17 have chosen not to file their replies refuting the allegations made in the petition.

16. Similarly so far as the cooperative marketing constituency was concerned, the respondent authorized officer was required to verify as to whether the concerned societies were the cooperative marketing societies as contemplated in Section 2(v) of the said Act; whether they were holding general licence; whether they were engaged in the business in conformity with their respective objects and whether they had their last accounts audited in Class A, B, or C as the case may be, as contemplated in Section 11 (1)

(iii) of the said Act. The respondent authorized officer without verifying such particulars, had prepared the voters' list for the said constituency of cooperative marketing societies. The petitioner of the petition being SCA No.11593 of 2017 having raised the objections against some of such societies including the concerned Page 14 of 20 HC-NIC Page 14 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT respondent societies, the said objections were rejected by the authorized officer by simply holding that the said respondents were eligible voters of the Cooperative Marketing Societies' Constituency under Section 11(1)(iii) of the said Act. It is pertinent to note that though other respondents of Special Civil Application No. 11593 of 2017 have filed their respective replies in the petition, the respondent Nos. 8 and 10 societies have chosen not to file their replies, refuting the allegations made in the petition.

17. Non-filing of the replies by the said respondents had vindicated the stand of the petitioners that the said respondents were not qualified and eligible for being included in the voters' list of the Traders' Constituency and/or the Cooperative Marketing Societies' Constituency. Mr. Vaghela was also not in a position to show as to how the respondent Nos. 8 and 10 societies were the cooperative marketing societies within the meaning of Section 2(v) of the said Act. He also failed to show that bye- laws of the said societies were amended so as to bring in conformity with the said definition contained in the Act.

18. Under the circumstances, it clearly emerges that though there was no material on record to show that the concerned respondent Nos.9, 13, 14, and 17 in SCA No.11586 of 2017 had traded in full conformity with the terms and conditions of the Page 15 of 20 HC-NIC Page 15 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT licence in the previous financial year and had paid the fees payable by them, the authorized officer had found them eligible to be included in the voters' list of Traders Constituency under Section 11(1)(ii) of the said Act. Similarly though there was nothing on record to suggest that the respondent Nos.8 and 10 in SCA No.11593 of 2017 were the cooperative marketing societies engaged in the business of buying or selling of agricultural produce or possessing agricultural produce, and had their last accounts audited in Class A, B, or C, the authorized officer had held that the said societies were eligible to be included in the voters' list of cooperative societies constituency under Section 11(1)(iii) of the said Act. It is also pertinent to note that though it has been mentioned in the impugned order that the said societies had produced their amended bye-laws, it was found by the Court that the said societies had neither amended their bye- laws, nor such alleged amended bye-laws of the said societies were produced before the authorized officer. The authorized officer therefore had made patently incorrect statements in the impugned order that the amended bye-laws were produced by the said societies. Such highly improper conduct of the authorized officer constrains the Court to hold that the impugned orders were passed by the authorized officer dehors the record, with oblique motive and for extraneous consideration.




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         19.         Having         regard          to         the    peculiar           facts         and

circumstance of the case, the Court has no option but to interfere with the election process as the Court cannot be oblivion to the ex facie illegalities committed by the authorized officer, while passing the impugned orders. The impugned orders therefore deserve to be set aside, and both the cases deserve to be remanded to be decided afresh by the officer, other than the authorized officer who had passed the impugned orders, as may be appointed by the Director.

20. Before concluding it is required to be noted that the Courts are flooded with cases on account of the arbitrary orders passed by the authorities and on account of the defective drafting of the Rules framed for the implementation of the Principal Act. In the matters of election of APMC also, the relevant Rules having not been amended in conformity with the amendments made in Section 11 of the said Act, the authorized officer keeps on passing arbitrary orders for exclusion and inclusion of persons in the voters' lists. It is therefore expected that the State Government shall look into the matter and amend the relevant Rules as expeditiously as possible so as to avoid the unwarranted litigations. However, till the Rules are amended, the Court thinks it proper to issue certain directions. It is quite well settled position of law that though the Court cannot give direction to amend the law or the rules, the Court can certainly issue directions Page 17 of 20 HC-NIC Page 17 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT to fill the vaccum or void for the proper implementation of the Act, till the suitable law is enacted or amended.

21. It is therefore directed that whenever a general election to market committee is to be held, for the purpose of preparing the three separate voters' lists under Rule 5 of the said Rules, the authorized officer shall be furnished with the following particulars/materials.

(1) So far as Clause (i) of subsection (1)of the Section 11 is concerned, the primary agricultural credit cooperative society dispensing agricultural credit in the market area shall, over and above furnishing the details of the full names of the members of its managing committee together with the place of residence of each member, shall also furnish the material to show that such society was in fact, dispensing agricultural credit in the market area;

(2) So far as Clause (ii) of subsection (1) of Section 11 is concerned, the marketing committee over and above communicating the full names of the traders holding general licences in the market area together with the place of residence of each such trader, shall also furnish particulars as to whether such traders had in fact traded in full conformity with the terms and conditions of the licence in the previous financial year and that fees payable by them had Page 18 of 20 HC-NIC Page 18 of 20 Created On Sun Aug 20 00:08:09 IST 2017 C/SCA/11586/2017 JUDGMENT not remained unpaid;

(3) So far as Clause (iii) of subsection (1) of Section 11 is concerned, the cooperative marketing society over and above communicating the full names of the members of its managing committee together with the place of residence of each such member, shall furnish the material to show that it was the cooperative marketing society within the meaning of Section 2(v) of the said Act; that it was engaged in the business in conformity with its objects and that it had its last accounts audited in Class A, B, or C as the case may be.

22. In that view of the matter, the impugned orders passed by the respondent authorized officer in both the petitions are set aside. Both the matters are remanded for being decided afresh by the officer other than the authorized officer, who had passed the impugned orders, to be appointed by the Director. Such officer shall decide the objections raised by the petitioners in both the petitions afresh and in accordance with law as expeditiously as possible, on the basis of the material already on record.

23. The petitions stand allowed to the aforesaid extent. Direct service is permitted.

24. The copy of the order be sent to the Chief Secretary and the Principal Secretary, Co-




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                 Operation           Department,           Sachivalaya,            Gandhinagar
                 for    implementation          of         the   directions             given          in
                 para 21 of this order.




                                                                        (BELA M. TRIVEDI, J.)
         vinod




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