Gujarat High Court
The Balram Prakrutik Kheti Sahakari ... vs State Of Gujarat on 13 June, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/9406/2023 ORDER DATED: 13/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9406 of 2023
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THE BALRAM PRAKRUTIK KHETI SAHAKARI MANDLI LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR. ARCHIT P JANI(7304) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,4,5,6,7
MR JAY TRIVEDI, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 13/06/2023
ORAL ORDER
1. Heard learned advocate Mr. Archit Jani on behalf of the petitioners and learned Assistant Government Pleader Mr. Jay Trivedi on behalf of the respondent - State.
2. By way of this petition, the petitioner challenges an order dated 19.05.2023 passed by the District Registrar, Mahisagar whereby the objections against inclusion of the names of the petitioner societies in the voters' list for election to the Agriculture Produce Market Committee, Khanpur, Taluka: Khanpur, District: Mahisagar for the year 2023 has been upheld.
3. At the outset, learned advocate Mr. Jani on behalf of the petitioners would submit that while the law with regard to this Page 1 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined Court not interfering in a dispute where an alternative remedy is provided by the statute itself is well settled, but, according to the learned advocate, the present is a case where inspite of an alternative remedy being provided, the same may not be efficacious and whereas, according to learned advocate, the impugned decision is such that the jurisdiction exercised by the officer concerned was wholly erroneous and whereas, according to learned advocate, under such circumstances the petition may be entertained by this Court, inspite of existence of alternative remedy.
3.1. Learned advocate Mr. Jani in support of the above submission would rely upon the decision of the Hon'ble Division Bench of this Court in case of Ishwarbhai Narayanbhai Patel vs. State of Gujarat rendered in Letters Patent Appeal No. 1822 of 2019; decided on 22.11.2021, more particularly, paragraph no. 79 thereof, whereby the Hon'ble Division Bench has held thus:-
"79 Thus, in a case where the statutory authority has not acted in accordance with the provisions of law or acted in defiance of the fundamental principles of judicial procedure, or has resorted to invoke provisions which are repealed, or where an order has been passed in violation of the principles of natural justice, then, in such circumstances, the Writ Court Page 2 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined should not hesitate to entertain the writ application despite the fact that the aggrieved person has an efficacious alternative remedy available in law. In the case on hand, as discussed above, the authorized officer has completely misread Section 11 of the Act, 1963, and the entire impugned order is based on such misinterpretation of Section 11 of the Act, 1963."
3.2. Learned advocate would submit that the impugned order is passed completely misreading Section 11 of the Gujarat Agriculture Produce Market Committee Act, 1963 and whereas as observed by the Hon'ble Division Bench, since the order is based on such a misinterpretation, therefore, inspite of availability of an alternative remedy, this Court may interfere and set aside the said order.
3.3. Learned advocate Mr. Jani, to make good his submissions would take this Court to the impugned order, more particularly, the discussions with regard to the petitioners being declared as not being eligible to be part of the voters' list and whereas, learned advocate would submit that as far as the petitioner no.1 is concerned, the concerned authority has come to a conclusion that as per Section 11(1)(i) of the Gujarat Agriculture Produce Market Committee Act, 1963 only a PACS (Primary Agricultural Credit Cooperative Page 3 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined Society) would be eligible to be included in the voters' list and whereas since the petitioner no.1 is not a PACS, therefore, the name of the said petitioner could not be included in the voters' list.
3.4. Insofar as the petitioner no.2 is concerned, it is observed by the Registrar concerned that the said society has advanced loans to the tune of Rs. 75,000/- in the year 2023-24 and whereas according to the order impugned, while the notification for election in the Khanpur Seva Agriculture Produce Market Committee was published on 18.04.2023, the advancing of credit was after the said date and whereas, according to the impugned order, such advancement of loan would be hit by the code of conduct as declared in the judgment of this Court.
3.5. Learned advocate would submit that as far as the petitioner no.1 society is concerned, the finding of the authority concerned does not reflect any reason for coming to the said conclusion. Learned advocate would further submit that the Registrar, Cooperative Societies, Gujarat State has vide order dated 23.08.2022 classified Organic/Natural Agriculture Cooperative Societies as Primary Cooperative Page 4 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined Societies and whereas the petitioner no.1 falling under the said category, the Registrar ought not to have excluded the petitioner from the voters' list.
3.6. Learned advocate would further submit that as far as the petitioner no.2 Society is concerned, while the notification with regard election for the Khanpur Agriculture Cooperative Societies is, according to the Registrar, published on 18.04.2023 whereas, according to learned advocate, a decision had been taken on 18.04.2023 and whereas the actual election program was to come into effect only from 21.04.2023. Learned advocate would submit that since the election program starts from 21.04.2023 and whereas the code of conduct would start with effect from 21.04.2023 rather than 18.04.2023, when the election program was declared, therefore also, the impugned order deserves interference.
3.7. Learned advocate would submit that it is under such circumstances that the petitioners have preferred this petitioner, more particularly, requesting this Court to exercise jurisdiction under Article 226 of the Constitution of India inspite of availability of alternative remedy, more particularly, Page 5 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined relying upon the observations of the Hon'ble Division Bench as above.
4. This application is vehemently objected to by learned Assistant Government Pleader Mr. Jay Trivedi on behalf of the respondents. Learned AGP would submit that the petitioners have an alternative remedy under Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 and whereas, learned advocate would submit that, as such, even the aspect on which the petitioners have submitted that there has been a misinterpretation of the Rules, is also not correct. 4.1. Learned AGP in support of his submission would rely upon a decision of the learned Coordinate Bench of this Court in case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited vs. State of Gujarat rendered in Special Civil Application No. 2000 of 2016 and allied matters; decided on 15.03.2016.
4.2. Learned AGP would submit that the issue for consideration before learned Coordinate Bench was as to which cooperative society could be said to be a Primary Agricultural Credit Cooperative Society or what meaning Page 6 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined could be assigned to the term 'Primary Agriculture Credit Society'. Learned AGP would draw the attention of this Court to the observation of the learned Coordinate Bench at Paragraph Nos. 28 and 29 of the judgment in question and would submit that the learned Coordinate Bench has inter alia given a finding that as per Section 11(1)(i) only Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area and the prime object of the Primary Agricultural Credit Cooperative Society being to provide agricultural credit would only be eligible to be included in the voters' list. Learned AGP would submit that the law laid down by the learned Coordinate Bench has been confirmed by a Hon'ble Division Bench of this Court in Letters Patent Appeal No. 230 of 2016.
4.3. Insofar as the petitioner no.2 society is concerned, learned AGP would submit that while the notification for election with regard to respondent no.4 society would come into effect from 21.04.2023 and whereas the same had been published on 18.04.2023 and whereas, according to learned AGP, the election program itself had been published on 18.04.2023 and whereas the loan also had been disbursed on Page 7 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined the said date and whereas, according to learned advocate, it is the proximity of time which has been taken into consideration by the District Registrar, Mahisagar. Learned AGP would further submit that while the learned advocate for the petitioners had submitted that misinterpretation of Section 11(1)(i) of the Act gives the petitioners right to directly approach this Court inspite of having an alternative remedy and whereas, the above aspect of respondent no.2 society having extended credit on the date of declaration of the election program and whether the election program could be stated to have commenced from 18.04.2023 or 21.04.2023 would not be an aspect, with which this Court may concern itself, more particularly, the said issue does not involve any misinterpretation whatsoever of Section 11(1)(i) of the Act in question. Learned AGP would therefore submit that the petitioner having an alternative efficacious remedy under Section 28 of the Gujarat Agricultural Produce Markets Rules, 1965, therefore, this Court may not interfere with the present petition.
5. Heard learned advocates for the respective parties. The only aspect which requires consideration of this Court at this Page 8 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined stage is whether the petitioners have been able to make out a case for exercise of extraordinary jurisdiction of this Court, more particularly, whether this Court should exercise extraordinary jurisdiction under Article 226 of the Constitution of India on face of an alternative and efficacious remedy being available to the petitioners in the nature of filing Election Petition under Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965.
6. Learned advocate Mr. Jani has relied upon the decision of Hon'ble Division Bench of this Court in case of Ishwarbhai Narayanbhai Patel (supra) to submit that in case the authorized officer has misread or misinterpreted Section 11 of the Act, as held by the Hon'ble Division Bench, then inspite of availability of an alternative remedy, this Court should not hesitate to entertain the writ petition.
7. The issue which would go to the root of the matter is whether there has been any misreading or misinterpretation of Section 11 of the Act of 1963. In this regard paragraph nos. 28 and 29 of the decision of learned Coordinate Bench in Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra) are reproduced hereinbelow for profit:- Page 9 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023
NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined "28. When sec. 11(1)(i) now requires only primary agricultural credit cooperative societies dispensing credit in the market area to elect 8 agriculturists for the purpose of constitution of market area, it is in furtherance of the object of the Act and, therefore, only those societies with prime object of providing agricultural credit could be said to be eligible to be included in the voters list. It is therefore not possible to accept the argument of the learned advocates for the petitioners societies that the Amendment Act 2015 has widened horizon to include all agricultural cooperative societies dispensing agricultural credits.
If all societies with one of the objects of dispensing agricultural credit are intended to be included without any exception, there was no need to incorporate the words" primary, agricultural, credit"
before the words "cooperative societies" in section 11(1)(i) of the Act. The words "primary agriculture credit" therefore do not meant to be read as a simple adjective noun without any meaning. The legislature do not amend the laws just to beautify the language. Use of the words "agriculture credit" once again while amending section 11(1)(i) of the Act by Amendment Act of 2015, and prefixing word "primary" before the words, "agricultural credit"
makes the intention of the legislature more clear to give unequivocal indication that none except the societies which have prime object to do principal business of advancing finance for agricultural purpose and for the purposes connected with the agriculture activities could be included in the voters' list for first constituency.
29. In view of the above, the Court finds that that considering the phrase used by the legislature while amending section 11(1)(i) of the Act, only those societies which have their main object to do business of advancing agricultural credit activities would be considered to be the primary agricultural credit cooperative societies for the purpose of section 11(1)
(i) of the Act. "
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NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined 7.1. In the considered opinion of this Court, more particularly, in view of the law laid down by the learned Coordinate Bench of this Court in case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali Limited (supra) that the Amendment Act, 2015 in the Gujarat Agricultural Produce Markets Act, 1963 has brought about a change in the societies which could be included in the voters' list for election to a market committee. According to the learned Coordinate Bench, inclusion of the words "Primary Agricultural Credit Cooperative Society dispensing Agricultural Credit in the market area" could only have one meaning i.e. such societies who have their main object to do the business of advancing agricultural credit activity in the market area would only be considered to be the Primary Agricultural Credit Cooperative Societies for the purpose of Section 11(1)(i) of the Act. It appears that the law laid down by the learned Coordinate Bench has also been confirmed by the Hon'ble Division Bench in Letters Patent Appeal No. 230 of 2016.
8. This Court has also perused the bylaws of the petitioner no.1 society which has been produced on record by way of an Page 11 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined additional affidavit. Bylaw-4 which specifies the purpose of forming of the committee, gives a list of 17 different objectives for which the society is required to function. It would appear on a plain reading of objective 17 that dispensing of agricultural credit is not the primary objective of the committee in question rather it would appear that the primary objective of the committee is to ensure that farmers are encouraged to take up natural/organic farming and increase their produce.
8.1. It would be required to be mentioned here that while the bylaws inter alia specify granting of credit as one of the objects of the society, but, in the considered opinion of this Court, in view of the law laid down by the learned Coordinate Bench as confirmed in appeal, it would not appear from reading of the objects in the bylaws that advancing agricultural credit activities would be the main object or business of the society in question. It would also appear that the impugned order by the District Registrar, Mahisagar, inter alia states that only Primary Agricultural Credit Cooperative Societies could be included in the voters' list and whereas since the petitioner no.1 is not a Primary Agricultural Page 12 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined Credit Cooperative Society, the said society could not be included in the voters' list.
9. In view of the above discussion, this Court does not find any error as committed by the District Registrar, which would clarify as being termed as a misinterpretation of Section 11(1)
(i) of the Act or a misreading thereof. In the considered opinion of this Court, the law having been laid down by the Hon'ble Division Bench in case of Ishwarbhai Narayanbhai Patel (supra) while reiterating the exceptions to the rule of not entertaining petitions where an alternative efficacious remedy is available, had observed that if there were misreading or misinterpretation of Section 11 of the 1963 Act, then the writ Court should entertain the said petition in spite of the availability of the alternative remedy. As observed herein above, in the considered opinion of this Court, since there does not appear to be any misreading or misinterpretation of Section 11(1)(i), therefore, the present petition does not qualify as one which could be entertained inspite of there being an alternative remedy.
10. At this stage, it would be profitable to refer to the Page 13 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined contention of a Full Bench decision of this Court in Daheda Group Seva Sahakari Mandli Limited vs. R.D.Rohit, Autho. Officer & Co. Operative Officer (Marketing) reported in (2006) 1 GCD 211 (FB)/ 2005 SCC OnLine Guj
586. Paragraph no. 47 being the conclusion of the Full Bench is reproduced for benefit:-
"47. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Ors. v. State of Maharashtra & Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The Page 14 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined 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."
A perusal of the conclusion would reveal that the Full Bench had clearly laid down the law that while a petition under Article 226 of the Constitution of India would be maintainable even though an alternative remedy is available and whereas such exercise of powers could be under exceptional/extraordinary circumstances and whereas exclusion or inclusion in the voters' list would not qualify as an exceptional or extraordinary circumstance. 10.1. This Court also deems it appropriate to rely upon decision of a learned Coordinate Bench in case of Vitthodar Vividh Karyakari Seva Sahakari Mandali Limited vs. State of Gujarat reported in 2016 JX (Guj) 1669, Paragraph nos. 5.1 and 5.2 of the said judgment being relevant for the present purpose are quoted herein below for benefit:-
"5.1 It is trite that writ court would not interfere once the election process is underway. This dictum, well- settled by caravan of decisions of the Supreme Court as well as by this Court, is true whether it is elections to local body or elections of any democratic domestic Page 15 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023 NEUTRAL CITATION C/SCA/9406/2023 ORDER DATED: 13/06/2023 undefined body such as cooperative society. It is also well- settled that all election disputes relating to alleged irregularities or illegalities in course of the election have to be postponed for their solution, to be tried and settled after the elections are over in accordance with the machinery provided for resolution of such disputes.
5.2 The well-settled proposition that the Court should not interfere with the election process and the remedy could be availed only after the elections are over, has been holding the field right from the decision in N.P. Ponnuswami Vs Returning Officer [AIR 1952 SC 64] and caravan of other decisions, of which a more recent decision in Shaji K. Joseph Vs V. Viswanath [(2016) 4 SCC 429] may be referred to, which reiterated the principle in the following words.
"... as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect whenever the process of election starts, normally courts should not interfere with he process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without the court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. ... ... "
(Para 15)"
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11. Thus, it would appear that while the petitioners do not qualify to be categorized in the exception carved out by the Hon'ble Division Bench in case of Ishwarbhai Narayanbhai Patel (supra) and in view of the law laid down by the Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited (supra) and also considering the law laid down by the Hon'ble Apex Court in Shaji K. Joseph (supra), no case for interference is made out.
12. In view of the above discussion, more particularly, in view of the fact that the election program having already been declared and as of now the preliminary voting list having been republished, the election program having reached at a pretty advanced stage and whereas this Court would be loath to interfere in the present petition at this stage and whereas under such circumstances, in the considered opinion of this Court, availability of an alternative remedy dis-entitles the petitioners from invoking the writ jurisdiction of this Court. Hence, the petition is rejected leaving it open for the petitioner to avail alternative remedy under Rule 28 of the Rules, if so advised.
(NIKHIL S. KARIEL,J) Bhoomi Page 17 of 17 Downloaded on : Sat Sep 16 20:12:23 IST 2023