Gujarat High Court
Mahendra Maganbhai Patel vs State Of Gujarat & 6 on 11 February, 2014
Bench: M.R. Shah, R.P.Dholaria
C/SCA/126/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 126 of 2014
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/
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1. Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether their Lordships wish to see the fair copy of the No
judgment ?
4. Whether this case involves a substantial question of law as to No
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ? No
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MAHENDRA MAGANBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 61....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MR PRAKASH K JANI, GOVERNMENT PLEADER with MR DHAWAN JAYSWAL, ASSTT.
GOVERNMENT PLEADER for the Respondent(s) No. 1 4
MR ND NANAVATY, SR. ADVOCATE with MR MITUL K SHELAT, ADVOCATE for Respondent(s)
No. 5 9 , 11 , 13 16 , 18 30 , 33 35 , 37 41 , 44 58 , 61
NOTICE SERVED BY DS for the Respondent(s) No. 10 , 12 , 17 , 31 32 , 36 , 42 43 , 59 , 62
UNSERVEDREFUSED (N) for the Respondent(s) No. 60
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 11/02/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] RULE. Shri Mitul Shelat, learned advocate waives service of notice of Rule on behalf of respondent Nos.5 to 62 and Shri Dhawan Jayswal, learned Assistant Government Pleader waives service of notice Page 1 of 57 C/SCA/126/2014 CAV JUDGMENT of Rule on behalf of respondent Nos.1 to 4.
In the facts and circumstances of the case and with the consent of learned advocate appearing on behalf of respective parties, present special civil application is taken up for final hearing today and learned advocate appearing on behalf of respective parties are heard at length for final hearing.
[1.1] At the outset it is required to be noted that the present petition is one another example of issuing license by the Licensing Committee after the election process for the Agriculture Produce Market Committee, Hansot [hereinafter referred to as "APMC" for convenience] in an arbitrary and malafide manner with the sole purpose to get artificial majority and playing a fraud on the election process.
[2.0] By way of present petition under Article 226 of the Constitution of India, petitioner, who is a trader operating in market area of APMC and is having general license for operating in a market area since more than 7 years has prayed for an appropriate writ, direction, order quashing and setting aside the impugned order dated 21.11.2013 passed by the respondent No.4 - Authorized Officer [AnnexureA] and thereby to exclude the names of respondent Nos.5 to 62 from the voters' list of Traders Constituency of APMC, Hansot.
[3.0] Facts leading to the present special civil application in nutshell are as under:
[3.1] That the term of the APMC, Hansot was to expire and therefore, election programme of the APMC, Hansot was declared by the respondent No.2 - Director by way of notice published under Rule 10(2) of the Gujarat Agriculture Produce Markets Rules, 1965 [hereinafter referred to as "Rules"]. According to the petitioner, the said notice was Page 2 of 57 C/SCA/126/2014 CAV JUDGMENT issued on 17.11.2013 and the same has been published in a daily newspaper "Sandesh" on 21.11.2013. That the election programme came to be declared on 21.11.2013 by the respondent No.2 Director. That the election programme declared by the Director for the election of APMC, Hansot is as under:
Sr.No Details of Programme Date 1. The date for declaration of election programme 21.11.2013
2. The date for instruction by Authorized Officer for 21.11.2013 preparation of voters' list 2(a). The date for APMC to send the list of voters to the 29.11.2013 Authorized Officer [Rule 7]
3. The date for publication of preliminary voters' list 05.12.2013 within seven days from the date of sending voters' list [Rule 7(2)]
4. The date for submitting applications, objections against 18.12.2013 preliminary voters' list (within 14 days from publication of preliminary voters' list) [Rule 8(1)] 4(a). The date for publication of revised preliminary voters' 23.12.2013 list after submission of objections against preliminary voters' list along with the notice regarding submission of objections 4(b). The last date for submission of objections/alterations in 30.12.2013 revised preliminary voters' list [Rule 8(1)(a)]
5. The date of publication of final voters' list 07.01.2014
6. The date for submission of nomination forms [Rule 10.02.2014 10(2)]
7. The date for preliminary publication of nomination 10.02.2014 forms [Rule 14]
8. The date for scrutiny of nomination forms [Rule 15] 11.02.2014
9. The date for withdrawal of nomination forms [Rule 14.02.2014 17(1)]
10. The date for publication of final list of candidates [Rule 14.02.2014 17(2)]
11. The date of election 25.02.2014
12. The date of counting 26.02.2014
13. The date of result of election [Rule 21] Immediately after the completion of counting Page 3 of 57 C/SCA/126/2014 CAV JUDGMENT [3.2] It is the case on behalf of the petitioner that as soon as the present office bearers came to know about the election/election programme and came to know that the election is being declared, the License Sub Committee of the APMC, Hansot in its meeting held on 21.11.2013, by Resolution No.3 granted the licenses to 58 private respondents herein illegally and malafidely with the sole purpose to give/get artificial majority to outgoing office bearers of the market committee. It is further submitted that as such there were only 48 traders who were having the licenses and by the Resolution No.3 dated 20.11.2013, the License SubCommittee granted licenses to 58 private respondents herein with the sole intention to inflate the voters' list so as to see that the supporters of the present office bearers are included in the voters' list of the Traders Constituency which is in violation of the democratic principles and only with a view to tilt the balance in favour of the office bearers of the market committee in the ensuing election. That the names of the private respondents herein - 58 persons who were granted the licenses for the year 201314 by way of Resolution No.3 dated 20.11.2013 were included in the preliminary voters' list prepared under Rule 7 of the Rules, published on 05.12.2013.
[3.3] It is the case on behalf of the petitioner that the general meeting of the market committee was to be held on 12.12.2013. In that general meeting, 9 elected members of the market committee raised objections against the proceedings of the License SubCommittee dated 20.11.2013, whereby fresh licenses were granted to the aforesaid 58 respondents, however, no decision was taken by the general meeting of the market committee either to approve the minutes of the License Sub Committee meeting or to reject the same, but on the other hand, the market committee issued licenses to the aforesaid 58 persons on the basis of the decision of the License SubCommittee because of which Page 4 of 57 C/SCA/126/2014 CAV JUDGMENT their names were entered in the preliminary voters' list prepared and published under Rule 7 of the Rules.
[3.4] According to the petitioner, the petitioner raised objections on 16.12.2013 against the inclusion of the aforesaid 58 persons in the preliminary voters' list of the Traders Constituency on the ground that the said respondents/persons have been granted licenses illegally and malafidely after the election programme is declared and therefore, it was requested to delete/exclude their names from the voters' list of Traders Constituency.
[3.5] It is the case on behalf of the petitioner that the Authorized Officer however did not consider the said issue/objections in proper perspective and has rejected the objections of the petitioner by impugned order / communication dated 21.12.2013 on the ground that as the licenses have been granted by the market committee and therefore, names of the said persons have been included in the voters' list. That thereafter the Authorized Officer has published the provisional voters' list on 23.12.2013 as per Rule 8(1) of the Rules and the names of the private respondents herein have been included / continued to be included. Hence, the petitioner has preferred the present special civil application under Article 226 of the Constitution of India for the aforesaid reliefs.
[4.0] Shri Dipen Desai, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order of the Authorized Officer is clearly in breach of the settled legal position and against/contrary to the democratic principles. It is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that Authorized Officer has not at all considered the legal position that any traders who are granted licenses after the declaration of the election or Page 5 of 57 C/SCA/126/2014 CAV JUDGMENT on the eve of declaration of election are not entitled to be included in the voters' list.
[4.1] It is submitted that Authorized Officer ought to have considered the fact that in the year 201213, there were only 48 licenses whereas after the elections are declared and/or on the eve of declaration of the election, 58 new licenses have been granted, which clearly shows that the intention is to tilt the balance in favour of the office bearers. It is submitted that while considering the objections raised by the petitioner against the inclusion of the names of private respondents herein in the voters' list of Traders Constituency dated 16.12.2013, the Authorized Officer has not properly considered the aforesaid facts and therefore, has failed to perform his duty as an Authorized Officer.
[4.2] It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that as such the Authorized Officer is not required to act as a postman only. It is submitted that as such a greater duty is cast upon the Authorized Officer to see that there is no violation of the democratic principles and any attempt to inflate the voters, only with a view to create artificial majority is stopped and curbed. It is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that as per subRule (2) of Rule 7 of the Rules and even before preparing and/or publishing the preliminary list of voters', a duty is cast upon the Authorized Officer to make such inquiry as he may deem fit. It is submitted that the Authorized Officer is not bound to and is not required to mechanically include the names of those voters' / traders and others send by the market committee. It is submitted that as observed by the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari vs. State of Gujarat and Ors. reported in 2007(3) GLH 57, the relevant date for determining the eligibility of a person for Page 6 of 57 C/SCA/126/2014 CAV JUDGMENT inclusion in the voters' list would be the date on which the Authorized Officer is to be communicated the names as indicated in subrule (1) of Rule 7 of the Rules and before that date if a trader who has been granted license by the APMC to carry on the business as a trader in the market area, is found to have commenced the business as a trader then and then only the name of such trader who is having a license issued by the APMC, is required to be included in the voters' list. It is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that in the present case and even according to the private respondents herein, though the agenda for the meeting of the License SubCommittee of the market committee was issued on 11.11.2013 to consider the issue of the traders license for the meeting to be held on 20.11.2013, most of the private respondents even applied for the licenses on 19.11.2013 i.e. only one day prior to the meeting of the License SubCommittee. It is submitted that therefore most of the private respondents have even submitted the applications for traders licenses after the declaration of the election by the respondent No.2 and declaring the election programme under Rule 10(2) of the Rules. It is submitted that as such before the grant of the traders license, the market committee is required to hold necessary inquiry and only thereafter the traders licenses are required to be issued. It is submitted that in the present case most of the private respondents even submitted the applications for traders license on 19.11.2013 and on the very next day i.e. on 20.11.2013, 58 traders licenses have been issued. It is submitted that therefore there was hardly any time with the market committee to hold the inquiry. It is submitted that therefore as such it can be seen that the licenses have been issued to the private respondents herein only with a view to get their names included in the voters' list for Traders Constituency and thereby to inflate the voters' list. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that even in most Page 7 of 57 C/SCA/126/2014 CAV JUDGMENT of the cases, the concerned private respondents who are issued the traders licenses on 20.11.2013 for the year 201314, were not holding the licenses in the preceding last 2 to 3 years and all of a sudden applied for the licenses in the month of November 2013 and obviously only with a view to get their names included in the voters' list. It is submitted that as such the relevant year starts from 01.04.2013. Therefore, if the private respondents herein, who are granted the traders licenses in the meeting held on 20.11.2013, are the genuine traders in that case, they would have submitted the applications for traders licenses at the commencement of the year 201314. It is submitted that the fact that the private respondents herein have submitted the applications for traders licenses for the year 201314 only in the month of November 2013 and in most of the cases on 19.11.2013, speaks for itself and is suggestive that only with a view to create artificial majority and inflate the voters' list which is against the democratic principles. It is submitted that therefore while considering the objections raised by the petitioner against the inclusion of the names of the private respondents in the preliminary voters' list of the Traders Constituency, the Authorized Officer was required to hold necessary inquiry to the aforesaid extent. It is submitted that therefore as such the Authorized Officer has failed to perform his duty cast while preparing and publishing the preliminary voters' list/voters' list.
[4.3] Shri Desai, learned advocate appearing on behalf of the petitioner has vehemently submitted that any such attempt to issue the licenses either after the declaration of the election by the Director under Rule 10 and/or on the eve of the declaration of the election has been deprecated time and again by this Court in catena of decisions. It is submitted that any attempt to inflate the voters' list and/or create the artificial majority by issuing such traders licenses / licenses after the declaration of the Page 8 of 57 C/SCA/126/2014 CAV JUDGMENT election programme and/or on the eve of declaration of election is held to be in violation of democratic principles and the inclusion of the names of such persons in the voters' list is held to be illegal, malafide and has been set aside by this Court in catena of decisions. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that in the case of Kalubhai Ranabhai Akabari (Supra), considering the entire scheme of the election under the Rules, the Division Bench has held as under:
"I. that the "relevant date" for determining the eligibility of a person for inclusion in the voters' list for election to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in subRule (1) of Rule 7 of the Rules, that is to say, before that date
(i) a cooperative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a cooperative marketing society registered as such under the Cooperative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters', has Page 9 of 57 C/SCA/126/2014 CAV JUDGMENT ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters' relates.
III. To be eligible for inclusion in the list of voters' for elections to APMC,
(i) A cooperative society must have obtained registration under the Cooperative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.
(iii) A cooperative marketing society must have obtained its registration under the Cooperative Societies Act and a general license from APMC before the date of declaration of elections.
IV. Challenge to the legality and validity of registration of a society under the Cooperative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Cooperative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.
Page 10 of 57 C/SCA/126/2014 CAV JUDGMENTVI. The question whether a cooperative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a cooperative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions."
It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that in the case of The Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. & Anr. vs. State of Gujarat & Ors. reported in 2009(3) GLH 380, it is held that relevant date for determining the eligibility for inclusion in the voters' list for election to APMC is the date on which the Authorized Officer is to be communicated the names under subRule (1) of Rule 7 of the Rules. It is submitted that in the case of Kalubhai Ranabhai Akabari (Supra) and in the case of the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. (Supra), the Division Bench has held that large scale grant of the licenses after the declaration of the election programme would not only be illegal but also a fraud on the election process.
[4.4] It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that a similar view has been taken by the Division Bench of this Court in the case of Shrutbandhu H. Popat vs. State of Gujarat & Ors. reported in 2008(1) GLH 575.
[4.5] Shri Desai, learned advocate appearing on behalf of the petitioner has also heavily relied upon unreported decisions of the Division Bench of this Court in the case of Chandrakant Manibhai Patel vs. State of Page 11 of 57 C/SCA/126/2014 CAV JUDGMENT Gujarat & Ors. rendered in Special Civil Application No.9965/2013 dated 01 & 05.08.2013 by which it is held by the Division Bench of this Court that if the licenses are granted on the eve of elections, then such license holders are not entitled to be included in the voters' list.
It is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that therefore, not only the inclusion of the names of the persons in the voters' list of Traders Constituency who are issued the licenses after the declaration of the election programme by the Director under subRule (2) of Rule 10 but even with respect to the traders licenses issued on the eve of the declaration of the election programme and their inclusion of the names in the voters' list is held to be illegal and their names have been directed to be excluded from the voters' list.
Making above submissions and relying upon above decisions, it is requested to allow the present petition and to direct that the names of the private respondents herein be excluded form the voters' list of Traders Constituency.
[5.0] Present petition is opposed by Shri N.D. Nanavaty, learned Senior Advocate appearing with Shri Mitul Shelat, learned advocate appearing on behalf of the contesting private respondents whose names are alleged to have been wrongly included in the voters' list of Traders Constituency. [5.1] Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents has vehemently submitted that the present petition filed under Article 226 of the Constitution of India seeking exclusion of names of the members of the managing committee of respondent Nos.5 to 62 from the voters' list of the Traders Constituency is not maintainable in law in view of the remedy available to the petitioner under Rule 28 of the Rules. In support of his above submission, he has heavily relied upon the decision of the Full Bench of Page 12 of 57 C/SCA/126/2014 CAV JUDGMENT this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorised Officer and Co.Operative Officer (Marketing) reported in 2006(1) GCD 211. It is submitted that in the aforesaid Full Bench decision, Rule 28 of the Rules came to be considered and it is held that a writ petition under Article 226 of the Constitution of India is not maintainable for seeking exclusion and/or inclusion of the name in the voters' list. He has heavily relied upon paras 21, 22, 33, 52 to 55 of the said decision. It is submitted that despite the aforesaid binding Full Bench decision, the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra) had taken a contrary view and has held that even a petition seeking exclusion and/or inclusion of the name in the voters' list would be maintainable, which is not permissible. It is submitted that as such the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) was binding to the Division Bench and therefore, a contrary decision could not have been taken by the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra). It is submitted that even after the decision of the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra), another Division Bench did not agree with the view taken by the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra) and relying upon the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), has specifically held that in view of Rule 28 of the Rules, for the dispute with respect to inclusion and/or exclusion of name in the voters' list, petition under Article 226 of the Constitution of India would not be maintainable.
[5.2] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that it is true that even subsequently in number of matters different Division Benches have entertained the petitions under Article 226 of the Constitution of Page 13 of 57 C/SCA/126/2014 CAV JUDGMENT India even with respect to dispute with respect to inclusion and/or exclusion of the voters', however, in view of the binding decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the same is not permissible. Therefore, it is requested not to grant the relief in the present petition as prayed for in exercise of powers under Article 226 of the Constitution of India.
[5.3] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that the present petition is required to be dismissed on the ground of nonjoinder of proper and necessary parties. It is submitted that the petitioner has contended that the licenses have been issued by the market committee to create a majority and even the allegations have been made against the office bearers of the market committee. It is submitted that despite the above and having made the allegations against the market committee and the office bearers of the market committee, the petitioner has not impleaded the market committee or the members of the market committee. It is submitted that therefore the petition suffers from vice of nonjoinder of the necessary party and is, therefore, required to be rejected as such.
[5.4] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that as such the name of the private respondents were included in the preliminary voters' list published by the Authorized Officer on 05.12.2013. The petitioner raised objection against the said inclusion on 16.12.2013. The said objections were considered by the Authorized Officer and Authorized Officer thereafter overruled the said objections and the names of the petitioners were included in the revised draft voters' list. It is submitted that petitioner thereafter did not question the validity of the Page 14 of 57 C/SCA/126/2014 CAV JUDGMENT draft voters' list. It is submitted that after the said list has become final and has culminated into final voters' list, the petitioner has sought to assail the same by contending that Authorized Officer has erred in including the name of the private respondents in the final voters' list. It is submitted that as such the decision of the Authorized Officer is in accordance with the Rules. It is submitted that it is not permissible for the Authorized Officer to exercise any powers as is sought to be contended by the petitioner. It is submitted that as held by the Division Bench of this Court rendered in Special Civil Application Nos.6587/2010 and 6596/2010 in the case of Vibhapar Seva Sahakari Mandali Ltd. vs. State of Gujarat and in the case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd. vs. Authorized Officer & Cooperative Officer attached to Market reported in 2012(1) GLR 742, once the objections filed have been rejected, the second objection to the provisional voters' list was not maintainable. It is submitted that in the aforesaid decision it is held that once the objections have been disposed of by not accepting the same, there is no occasion for the Authorized Officer to exercise any further power. It is submitted that therefore when the Authorized Officer is not authorized to consider any objections after the publication of the draft voters' list and/or the final voters' list, Authorized Officer has rightly rejected the objections submitted by the petitioner. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that if the contention on behalf of the petitioner is accepted that even if the petitioner is not entitled to raise the objections, this Court may examine the objections and consider the illegality regarding inclusion of the names in the voters' list, in that case, it would amount to granting of relief in breach of statutory rules. It is submitted that entire election process is regulated in accordance with the Rules. The rules prescribe the stages relating to the raising of the objections. The Rules do not Page 15 of 57 C/SCA/126/2014 CAV JUDGMENT permit objections to be raised regarding inclusion in the preliminary voters' at the stage of culmination in the final list. Therefore, accepting the contention would amount to interjecting the statutory limitation and interfering with the process of election. It is submitted that in case of State of W.B. vs. Subhas Kumar Chatterjee reported in (2010)11 SCC 694, it is held by the Hon'ble Supreme Court that no Court can issue mandamus directing the authorized authorities to act in contravention of rules as it would amount to compelling the authorities to violate the law. It is observed that such directions may result in destruction of Rule of Law.
[5.5] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that even on merits also, the petitioner has no case. It is submitted that petitioner is not right in contending that the inclusion of the names in the voters' list was without jurisdiction and/or authority under the law. It is submitted that as such the private respondents were possessing the license in the previous year. They had applied for a renewal prior to the date of publication of the election programme. The licenses were granted on 20.11.2013. Therefore, when the preliminary voters' list was published, all the respondents were meeting with the qualifications set out in Rule 7(1) of the Rules and consequently, they were entitled to be included in the voters' list. It is submitted that therefore the Authorized Officer was justified in including the names of the respondents in the voters' list.
[5.6] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that as such the petitioner has not challenged the issuance of the license in favour of the respondents. It is submitted that right to be included in the voters' list is on the existence of the license. It is submitted that in view thereof Page 16 of 57 C/SCA/126/2014 CAV JUDGMENT the petitioner is not entitled to maintain challenge to the inclusion of name in the voters' list despite acceding to the validity regarding issuance of license in favour of the respondent society. It is submitted that as such it is an attempt on the part of the petitioner to seek "political relief" by seeking exclusion of the persons who are otherwise qualified and whose qualification is not challenged.
[5.7] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that petitioner is not right in contending that the licenses have been issued after the election process has commenced. It is submitted that on a plain reading of Rule 7, the relevant date for determining the eligibility of a person for inclusion in the voters' list would be the date by which the Authorized Officer is to be communicated the names as indicated in subRule (1) of Rule 7 of the Rules, that is to say before that date (i) a cooperative society registered under the Cooperative Societies Act for dispensing agricultural credit must have been registered as a cooperative society and must also have commenced the activity of dispensing agricultural credit; (ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader; (iii) a cooperative marketing society registered as such under the Cooperative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
[5.8] It is submitted that in the present case the relevant date as per the election programme would be 29.11.2013. It is submitted that in the present case the contesting respondents have been issued the licenses on 20.11.2013 and were meeting with the qualification set out above and consequently their names were submitted by the market committee Page 17 of 57 C/SCA/126/2014 CAV JUDGMENT which have been included by the Authorized Officer in the voters' list. It is submitted that aforesaid view has been taken by this Court in the case of the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. & Anr. reported in 2009(3) GLH 380 [Paras 7, 33 and 34].
[5.9] It is submitted that the petitioner is not right in contending that the Authorized Officer has not acted in accordance with Rule 7 of the Rules. It is submitted that the scope of the inquiry of the Authorized Officer in relation to preparation of the voters' list has been considered by this Court in the case of Vibhaniya Seva Sahakari Mandali Ltd. and Ors. reported in 2012(1) GLH 575 [Paras 7 and 7.3]; in the case of Shrutbandhu Himmatlal Popat vs. State of Gujarat rendered in Special Civil Application No.16246/2011 dated 13.12.2011 [Paras 7.1, 7.2 and 7.3].
[5.10] It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that the reliance placed upon the decisions by the learned advocate appearing on behalf of the petitioner with respect to the maintainability of the present petition under Article 226 of the Constitution of India more particularly the decisions in Special Civil Application No.1890/2013; Special Civil Application No.2179/2013; Special Civil Application No.9965/2013 is concerned, it is submitted that all the above judgments are contrary to the law laid down by the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (Supra). It is submitted that in the above judgments, the decision of the Division Bench of this Court in the case of Patel Talshabhai Purabhai (Supra) and the judgment rendered in Special Civil Application No.10940/2011 dated 15.09.2011 in the case of Upleta Taluka Fal Ane Shak Bhaji Utpadak Sahakar Mandli Ltd. vs. State of Gujarat have been not considered. It is submitted that therefore Page 18 of 57 C/SCA/126/2014 CAV JUDGMENT the petitioner having accepted the issuance of the license cannot seek the relief regarding exclusion from the voters' list.
[5.11]It is submitted that as such the petitioner is not right in contending that since there is no prohibition contained in Rule 28, the remedy under Article 226 of the Constitution of India would be available despite the availability of the statutory remedy. It is submitted that as such a similar rule came up for consideration before the Hon'ble Supreme Court in the case of Gujarat University vs. N.U. Rajguru reported in 1987 Supp SCC 512 [Page 515] and it is held that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. It is submitted that it is further observed by the Hon'ble Supreme Court in the said decision that while considering the election dispute, it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental nor a common law right, instead it is a statutory right regulated by the statutory provisions and therefore, it is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India bypassing the machinery designated by the act for determination of the election dispute. It is submitted that as such the above decision was followed in the Full Bench judgment delivered in the matter of Daheda Group Seva Sahakari Mandli Limited (Supra) while examining the maintainability of writ petition for challenging the inclusion and exclusion from the voters' list and it has been held that writ petition seeking such a relief should not be entertained.
Making above submissions and relying upon above decisions, it is requested to dismiss the present petition.
Page 19 of 57 C/SCA/126/2014 CAV JUDGMENT[6.0] Shri Prakash K. Jani, learned Government Pleader has appeared with Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the Authorized Officer and the State.
[6.1] Now, with respect to the maintainability of the present petition under Article 226 of the Constitution of India and for the reliefs sought in the present petition, Shri Jani, learned GP has submitted the list of the various decisions of this Court by which petitions under Article 226 of the Constitution of India for somewhat similar reliefs have been entertained by this Court. He has also furnished the details of the decisions of this Court by which even the petitions are not entertained by this Court. List of the judgments in which petitions under Article 226 of the Constitution of India are entertained and petitions under Article 226 are not entertained as under:
A. Petitions entertained by Division Bench
1. Chaudhary Rameshbhai Dalsangbhai & Ors. vs. Director, Agriculture Produce Marketing & Rural Finance & Anr.
1996(2) GLR 165
2. Prahaladbhai Shivrambhai Patel & Ors. vs. Director of Agriculture Produce Marketing & Rural Finance & Anr. 1998(1) GLH 95
1998(1) GLH 170
4. Shrutbandhu H. Popat vs. State of Gujarat & Ors.
2007(3) GLH 1942
5. Kalubhai Ranabhai Akabari vs. State of Gujarat & Ors.
2007(3) GLH 57
6. Vibhapar Seva Sahakari Mandali Ltd. vs. State of Gujarat & Ors.
2009(3) GLH 343 Page 20 of 57 C/SCA/126/2014 CAV JUDGMENT
7. Vibhaniya Seva Sahakari Mandali Ltd. & Ors. vs. State of Gujarat 2012(1) GLH 575
8. Dolatbhai Prabhubhai Dumaniya Vs. Director, Agriculture Marketing and Rural Finance 2013(2) GLH 157
9. Nilesh Gordhandas Thakker & Anr. vs. State of Gujarat & Ors.
Special Civil Application No.2179/2013
10. Chandrakant Manibhai Patel vs. State of Gujarat Special Civil Application No.9965/2013
11. Sardar Vallabhbhai Patel vs. State of Gujarat Special Civil Application No.2525/2013 B. Petitions not entertained by Division Bench
2. Mehsana District Co.op. Sales & Purchase Union Ltd. & Anr. vs. State of Gujarat & Ors.
1988(2) GLR 1060
3. Patel Talshabhai Purabhai vs. Authorized Officer and Auditor General Grade1 Cooperative Societies 2011(4) GLR 3544
4. Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorised Officer and Co.Operative Officer (Marketing) 2006(1) GCD 211
5. N. P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & others AIR 1952 SC 64 It is further submitted by Shri Jani, learned GP that even in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Full Bench has not ruled that in no case with respect to the election dispute Page 21 of 57 C/SCA/126/2014 CAV JUDGMENT the petition under Article 226 would be maintainable at all. It is further submitted that in a given case when on the face of it it is found that the licenses are issued illegally with malafide intention to create artificial majority and against the democratic principles and without affecting the further election programme, the petition under Article 226 of the Constitution of India can be entertained and the relief under Article 226 of the Constitution of India can be granted. It is submitted that therefore there is no absolute bar in not entertaining the petition under Article 226 of the Constitution of India. It is submitted whenever to maintain the democratic principles and whenever required, the petition under Article 226 of the Constitution of India can be entertained and the relief can be granted under Article 226, however, without affecting the further election programme.
[6.2] Now, with respect to the duties of the Authorized Officer while preparing and publishing the voters' list it is submitted that it is consistent stand on behalf of the State Government that Authorized Officer can hold the necessary inquiry and/or has jurisdiction to consider the objections at any stage. However, has fairly conceded that it is held by the Division Bench in catena of decisions that Authorized Officer has no jurisdiction and/or authority to consider the legality of the names forwarded by the market committee and/or the dispute with respect to the legality of the license issued. It is submitted that as such under the statute there is no specific provision under which a duty is cast upon the Authorized Officer while preparing and/or publishing the preliminary voters' list / voters' list.
[6.3] It is submitted that in the present case, concerned private respondents herein were granted license by the market committee and as such they were holding the license issued by the market committee on Page 22 of 57 C/SCA/126/2014 CAV JUDGMENT the date of preparation of the preliminary voters' list and their names were sent by the market committee, the Authorized Officer has rightly rejected the objections raised by the petitioner and has rightly included the names of the private respondents in the voters' list.
[7.0] In reply to the submissions made by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents, Shri Desai, learned advocate appearing on behalf of the petitioner has submitted that as such the present petition is not required to be dismissed on the ground of nonjoinder of proper parties i.e. market committee and/or the license committee. It is submitted that as such the petitioner is challenging the action of the Authorized Officer in including the names of the private respondents herein in the voters' list of the Traders Constituency and therefore, when all the parties likely to be affected i.e. private respondents herein are joined, the present petition is not required to be dismissed on the ground that proper and necessary parties are not joined. It is submitted that as such all the necessary and proper parties are joined.
[7.1] Now, so far as the contention on behalf of the private respondents with respect to the maintainability of the present petition under Article 226 of the Constitution of India with respect to the inclusion of the names of the private respondents in the Traders Constituency and reliance placed upon the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), it is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that as such even in the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), it is not held that in no case and with respect to election dispute the petition under Article 226 of the Constitution of India would be maintainable. It is submitted that Page 23 of 57 C/SCA/126/2014 CAV JUDGMENT as such the aforesaid decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) came to be considered by the Division Bench in the subsequent decision in the case of Shrutbandhu H. Popat vs. State of Gujarat & Ors. reported in 2008(1) GLH 575 and relying upon the decisions of the Hon'ble Supreme Court in the case of Election Commission of India vs. Ashok Kumar reported in (2000)8 SCC 216 and in the case of Pundlik vs. State of Maharashtra reported in (2005)7 SCC 181 it has been held that in appropriate case even with respect to the inclusion and/or exclusion of the names in the voters' list petition under Article 226 of the Constitution of India would be maintainable and can be entertained.
[7.2] Now, so far as the decision of the Division Bench in the case of Patel Talshabhai Purabhai vs. Authorized Officer and Auditor General Grade1 Cooperative Societies reported in 2011(4) GLH 3544 relied upon by Shri Nanavaty, learned Counsel appearing on behalf of the private respondents submitting that in the said decision the Division Bench after considering the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) has specifically held that with respect to the dispute with respect to the addition, alteration in the voters' list for election of market committee, alternative efficacious remedy under Rule 28 of the Rules would be available and therefore, the High Court would not exercise the extraordinary jurisdiction under Article 226 is concerned, it is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that as such in the subsequent decision in the case of Shrutbandhu H. Popat (Supra) rendered in Special Civil Application No.16246/2011 decided on 13.12.2011 and even after considering the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Division Bench in which even one of the member to the Bench was the Page 24 of 57 C/SCA/126/2014 CAV JUDGMENT learned Judge who delivered the judgment in the case of Patel Talshabhai Purabhai (Supra) taking a contrary view, has infact taken a view that in an appropriate case and even with respect to the dispute of deleting the names from the list of voters a petition under Article 226 of the Constitution of India would be maintainable and can be entertained and a relief can be granted.
[7.3] Shri Desai, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Division Bench of this Court in the case of Vasundra Samudayik Kheti Sahakari Kheti Sahakari Mandali Limited vs. State of Gujarat & Ors. rendered in Special Civil Application No.16249/2011 [paras 22 to 29] by submitting that in the said decision after considering the decision of the Hon'ble Supreme Court in the case of Ashok Kumar (Supra) it is held that despite the availability of alternative remedy and in particular in the field of election, interference of the Court in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India still will be open. It is submitted that in the said decision the Division Bench after considering the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) has observed that even in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Full Bench while holding that exclusion or inclusion of the names from the voters' list cannot be termed as extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution of India, has recognized that in exceptional cases, the Court can exercise powers of judicial review, which is the basic structure. It is, therefore, submitted that in the present case when there is a glaring illegality on the face of it and inclusion of the names of the private respondents herein in the voters' list of Traders Constituency is on the face of it malafide and with a view to create an artificial majority, which will be Page 25 of 57 C/SCA/126/2014 CAV JUDGMENT against the democratic principles, the interference of this High Court in exercise of powers under Article 226 of the Constitution of India at this stage itself is warranted. Therefore, it is requested to entertain the present petition and grant the reliefs as prayed for while exercising the powers under Article 226 of the Constitution of India, more particularly, when the election programme is not likely to be affected.
[7.4] Now, so far as the submission made by Shri Nanavaty, learned Counsel appearing on behalf of the private respondents that the moment it is found that the private respondents are traders having the licenses issued by the market committee may be after the declaration of the election programme and/or even on the eve of the declaration of election programme but at the time of preparation of the voters' list, Authorized Officer is bound to include their names in the voters' list and there is no further duty cast upon the Authorized Officer is concerned, Shri Desai, learned advocate appearing on behalf of the petitioner has submitted that as such even under subRule (2) of Rule 7 of the Rules, a duty is cast upon the Authorized Officer for making such inquiry as he may deem fit. It is submitted that as such in the case of Kalubhai Ranabhai Akabari (Supra), it is held that mere registration of a society as a cooperative society for dispensing with agricultural credit cannot confer a right upon the members of its managing committee to participate in the election when no activity of dispensing agricultural credit has commenced. It is submitted that similar would be applicable with respect to the trader who has been granted the license by the APMC. It is submitted that as such only the trader who has been granted license by the APMC to carry on a business as a trader in the market area, who has actually commenced the business as a trader is entitled to vote and his name is required to be included in the voters' list. It is submitted that otherwise anybody only with a view to get his Page 26 of 57 C/SCA/126/2014 CAV JUDGMENT name included in the voters' list will get the license by paying the license fee and may contend that as he is holding a traders license his name is required to be included in the voters' list. It is submitted that if that is permitted in that case it would frustrate the object of democratic process and it will be against the basic principles of democracy. It is submitted that therefore at the stage of Rule 7 of the Rules, the Authorized Officer may hold a limited inquiry whether infact such traders who have been granted the license by the APMC and/or marketing society, who have obtained a general license from APMC, have commenced its business of marketing or not and whether they have been granted the licenses only with a view to create artificial majority or not.
Making above submissions, it is requested to allow the present petition.
[8.0] Heard learned advocate appearing on behalf of the respective parties at length.
At the outset it is required to be noted that present is one another glaring example of issuing the traders licenses only with a view to create an artificial majority and the licenses have been issued to as many as 58 cooperative societies after it was decided by the Director to hold the election. What is challenged in the present petition is the inclusion of the names of the private respondents in the voters' list of Traders Constituency and rejecting the objection raised by the petitioner against the inclusion of the names of the private respondents in the preliminary voters' list of Traders Constituency.
[8.1] Before considering the present petition on merits, relevant provisions of the Gujarat Agricultural Produce Markets Act, 1963 [hereinafter referred to as "Act"] and Rules are required to be considered, which are as under:
Page 27 of 57 C/SCA/126/2014 CAV JUDGMENTS.2(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 co operative society, joint family or an association of persons, whether incorporated or not, which carries on such business;
S.11 Constitution of market committee.(1) Every market committee shall consist of the following members, namely:
(i) eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than cooperative marketing societies) dispensing agricultural credit in the market area:
R.4. Fixation of date of election. 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 in the office of the market committee and at a conspicuous place in the principal market yard in the market area.
R.5. Different lists of voters. For the purposes of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely: [(1) under clause (i) of subsection (1) of section 11 of the Act, a list of members of managing committees of Co operative Societies (other than Cooperative Marketing Societies) dispensing agricultural credit in the market area;] (2) under clause (ii) of subsection (1) of section 11 of the Act a list of traders holding general licenses in the market area;
(3) under clause (iii) of subsection (1) of section 11 of the Act, a list of members of managing committees of Co operative Marketing Societies situated in the market area [holding general licenses.] R.6. Persons qualified to vote. A person whose name is entered in a 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.
R.7. Preparation of list of voters for general election. (1) Whenever a general election to market committee is to be held: Page 28 of 57 C/SCA/126/2014 CAV JUDGMENT
(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;
(ii) the market committee shall communicate the full names of the traders holding general licenses 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 residence of each such member to the authorized 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 authorised officer shall within seven days from the date fixed under subrule (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.
R.8. Provisional and final publication of lists of voters. (1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.
1[(1A) After receiving applications, if any, under sub rule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication Page 29 of 57 C/SCA/126/2014 CAV JUDGMENT of this notice to the authorised officer for an amendment in the revised draft list of voters.] (2) If any application is received under 1[subrule (1 A)], the authorised officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at atleast thirty days before the date fixed for the nomination of candidates for the election.
R.10. Fixing stages of election. (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 or places at which and the hours between which the votes shall be taken.
(e) the date on which, the place at which and the hours between which the votes shall be counted.
R.27. Publication of the names of elected and nominated members of the Market Committee. The names of the elected and nominated members of the market committee shall be published in the Official Gazette by the Director as soon as conveniently may be after their election and nomination.
R.28. Determination of validity of election. (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing:
(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the Page 30 of 57 C/SCA/126/2014 CAV JUDGMENT 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 subrule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.
R.56. Licensed traders and general commission agents. (1) Any person desiring to do business as a trader or a general commission agent in agricultural produce in any maket area or part thereof shall make a written application in such form as the market committee may determine to the market committee and shall pay such fees as may be determined by the market committee subject to a maximum of Rs.200;
Provided that a person residing outside the market area and desiring to operate in a market area or any part thereof only for a specific transaction or transactions which may not exceed four in a year may be granted a special licence on payment of such fee as may be determined by the market committee subject to a maximum of Rs.20.
(2) On receipt of such application together with the proper amount of the fee, the market committee may, after making such inquiries, as may be considered necessary and on the applicant agreeing to abide by the provisions of the Act; rules and byelaws and such other conditions as may be laid down by the market committee for holding such licence grant to him the licence applied for.
(3) Notwithstanding anything contained in subrule (2) the market committee may refuse to grant or renew a licence to any person who in its opinion is not solvent or whose operations in the market area are not likely to further efficient working of the market or are likely to impede the smooth working of the market under the control of the market committee.
(4) The licence shall be granted for a period of one year after which it may be renewed on a written application in such form as may be determined by the market committee, Page 31 of 57 C/SCA/126/2014 CAV JUDGMENT and after such inquiries as are referred to in subrule (2) as may be considered necessary and on payment of full fees as payable for fresh licence:
Provided that all licences shall remain in force from the date of issue till 30th September following unless suspended or cancelled earlier.
(5) The names of all such licensed traders and general commission agents shall be entered in a register to be maintained for the purpose.
(6) No person shall be entitled to do business other than that for which he holds a licence.
Considering the aforesaid provisions of the Rules, it appears that Rule 4 provides that whenever a general election to a market committee is to be held, the Director of Agriculture Market and Rural Finance [hereinafter referred to as "Director"] shall by a written order fix the date of such election and publish such order by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area.
Rule 5 provides for three separate list of voters for three separate constituencies.
(i) the list of voters comprising of the names of the members of the managing committees of the cooperative societies dispensing agricultural credit within the market area of the concerned APMC - these voters elect eight constituencies;
(ii) the list of voters comprising of traders holding general licenses - these voters elect four candidates out of themselves;
(iii) the list of voters comprising of the members of the managing committees of the cooperative market societies in the market area and holding general licenses - these voters elect two representatives out of themselves.
SubRule (1) of Rule 7 provides that a Director shall fix a specific date by which date the market committee shall communicate the list of Page 32 of 57 C/SCA/126/2014 CAV JUDGMENT traders holding general licenses and every cooperative society dispense with agricultural credit in the market area or every cooperative market society in the market area holding a general license shall communicate the names of the members of its managing committee.
SubRule (2) of Rule 7 further provides that the Authorized Officer shall within 7 days from the date fixed under subRule (1) caused to be prepared the list of voters as required by Rule 5 on the basis of the information received under subRule (1), if necessary, making such inquiry as he may deem fit. Thus, after the market committee communicates the list of traders holding general licenses and/or any information is received from the concerned cooperative society dispensing agricultural credit in the market area or every cooperative society in the market area holding a general license, the names of the members of its managing committee, the Authorized Officers will be having a clear 7 days for preparation of the voters' list as per subRule (2) of Rule 7 and thus he would have a clear 7 days of making such inquiry as he may deem fit. The scope and ambit of the inquiry by the Authorized Officer while preparing the preliminary voters' list under Rule 7 shall be dealt with hereinafter.
[8.2] The dispute in the present case is about the list of voters for the Traders Constituency and inclusion of the names of the private respondents herein in the preliminary list of voters of the Traders Constituency.
In the present case the Director issued an order in writing fixing the date of election of the members of the managing committee of the APMC, Hansot as required under Rule 4 of the Rules on 16.11.2013. It also appears that even the election programme fixing the stages of election as per Rule 10(2) of the Rules dated 17.11.2013 came to be published in the local newspapers "Sandesh" on 21.11.2013. It is Page 33 of 57 C/SCA/126/2014 CAV JUDGMENT required to be noted that as such the election programme fixing stages of election under Rule 10(2) of the Rules was send to the Deputy Director (Information), Bharuch on 16/17.11.2013. The election programme declared by the Director is reproduced hereinabove [8.3] In the present case traders license to the private respondents herein have been issued and granted by the License SubCommittee in its meeting held on 20.11.2013. At this stage it is required to be noted and even according to the private respondents herein the agenda for the meeting of the License SubCommittee to be held on 20.11.2013 was issued on 11.11.2013. From the statement produced by the private respondents herein along with additional affidavit on behalf of respondent No.5 dated 28.01.2014 out of 34 traders whose particulars are given, 25 traders submitted the application for license even after the agenda notice dated 11.11.2013 and as such on 18/19.11.2013 i.e. just one or two days prior to the meeting of the License SubCommittee. It also appears from the said statement that even some of the traders were not holding the traders licenses since last many years and they applied for the licenses after the declaration of the election by the Director under Rule 4 i.e. after 16.11.2013. At this stage it is required to be noted that as such the relevant year would be between 01.04.2013 to 31.03.2014 and in the present case the applications have been made in the month of November 2013 and that too after the declaration under Rule 4 of the Rules. As stated herein above and even while granting the licenses, the market committee is required to hold necessary inquiry and only thereafter traders licenses are required to be issued. When in most of the cases the applications were submitted on 18/19.11.2013 and the licenses have been issued/granted on 20.11.2013, there was hardly any time with the market committee / License SubCommittee to hold inquiry with respect to the genuineness of those persons to become the Page 34 of 57 C/SCA/126/2014 CAV JUDGMENT traders. The aforesaid aspect is required to be considered while considering the allegation on behalf of the petitioner that those private respondents herein who are issued the licenses on 20.11.2013 are issued the licenses only with a view to create an artificial majority and as such they cannot be said to be traders actually carrying on business. At this stage even section 2(xxiii) is required to be considered. As per section 2(xxiii) of the Act, "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.
[8.4] It is the case on behalf of the private respondents herein that as they have been granted the traders license by the market committee and they were holding the traders licenses issued by the market committee, the day on which the Authorized Officer prepared and published the preliminary voters list and so long as their traders license is continued, their names are required to be included in the voters' list. Identical question came to be considered by the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (Supra). After considering various provisions of Act and the Rules, in para 15, it is observed and held as under:
"15. The persons eligible to vote are members of the managing committee of a cooperative society dispensing agricultural credit. Hence, mere registration of a cooperative society is not sufficient to make its managing committee members eligible to vote at the elections. Such cooperative society must also have undertaken the activity of dispensing agricultural credit. Hence, such activity of dispensing agricultural credit must have actually commenced before the date on which the cooperative society is required to communicate the names of its managing committee members. After its registration and before commencing the activity of dispensing agricultural credit, the cooperative society would have to obtain the finance from District Central Cooperative Bank or any other financing agency. Hence, a period of about one month is bound to elapse Page 35 of 57 C/SCA/126/2014 CAV JUDGMENT between the date of registration as a cooperative society and its obtaining finance and then dispensing it for agricultural credit."
Under the circumstances, merely because the private respondents herein are holding the general traders licenses issued/granted by the License SubCommittee pursuant to the resolution of the License Sub committee dated 20.11.2013, their names are not required to be included in the preliminary voters list of the Traders Constituency. From the aforesaid facts and circumstances, it appears that as such the grant of traders license to the private respondents herein is as such malafide exercise of powers with a view to see that their names are included in the voters' list for the ensuing election and to create an artificial majority and the same is not only illegal but also fraud on election process and against the principles of democracy. As stated herein above as such though the agenda for meeting of the License SubCommittee to be held on 20.11.2013 was issued/published on 11.11.2013, the private respondents herein who have been granted the licenses pursuant to the resolution dated 20.11.2013 of the License SubCommittee, they submitted the applications for traders licenses even subsequently and in most of the cases on 18.11.2013 and 19.11.2013. As stated herein above in most of the cases since last many years and/or in preceding years the concerned private respondents were not even holding any traders licenses. Therefore, the only conclusion can be that they applied for the traders licenses by paying the necessary fees and got the licenses only with a malafide intention and keeping in mind the ensuing election. In backdrop of the above facts and circumstances of the case, the present petition is required to be considered and even submission on behalf of the private respondents not to entertain the present petition under Article 226 of the Constitution of India in view of the alternative remedy available under Rule 28 of the Rules is required to be considered.
Page 36 of 57 C/SCA/126/2014 CAV JUDGMENT[8.5] Now so far as the reliance placed upon the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) and even the subsequent decision of Division Bench of this Court in the case of Patel Talshabhai Purabhai (Supra) by Shri Nanavaty, learned Counsel appearing on behalf of the respondents herein and his submission that in view of the alternative remedy available under Rule 28 of the Rules, the dispute with respect to the addition and/or alteration in the voters' list and/or with respect to inclusion and/or exclusion of the names in the voters' list, a petition under Article 226 of the Constitution of India would not be maintainable and therefore, no relief as prayed for in the present petition may be granted in exercise of powers under Article 226 of the Constitution of India is concerned, at the outset it is required to be noted that even in the decision in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Full Bench while holding that exclusion or inclusion of the names from the voters' list cannot be termed extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution of India, has recognized that in exceptional cases, the Court can exercise the powers of judicial review, which is the basic structure. The aforesaid Full Bench decision in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) came to be considered by the Division Bench in the case of Shrutbandhu H. Popat (Supra) [2008(1) GLH 575] and in paras 25 to 27, the Division Bench as observed and held as under:
"25. In Election Commission of India vs. Ashok kumar, (2000) 8 SCC 216, the Apex Court has laid down the following principles in paragraphs 28 and 32 of the judgment : "28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the Page 37 of 57 C/SCA/126/2014 CAV JUDGMENT constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :
1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the wellsettled parameters which enable judicial review of 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.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court Page 38 of 57 C/SCA/126/2014 CAV JUDGMENT must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
(emphasis supplied)
26. The present case certainly falls in the category of extraordinary situations wherein the writ jurisdiction will have to be exercised for the welfare of the constituency of the traders and for strengthening the democracy. The Resolution dated 20012007 was a clear attempt to subvert the fair election process and, therefore, this Court merely proposes to correct the progress of the election proceedings by removing the attempt of the outgoing office bearers of the APMC to subvert the election process by creating an artificial majority in the constituency of traders holding general licences under clause (ii) of subsection (1) of Section 11 of the APMC Act.
27. We may now deal with the decision of the Full Bench heavily relied upon by Mr. B. S. Patel for the APMC in Daheda Group Seva Sahakari Mandali Limited (supra) decided on 27.4.2005. The following questions were referred to the Full Bench in the context of elections to the APMCs and the scope of Rule 28 of the APMC Rules constituting the Election Tribunal for deciding disputes relating to elections to APMCs:
I. Whether a person whose name is not included in the Voters' List can avail provisions of Rule 28 of the rules by filing election petition?
II. Whether the remedy under Rule 28 can be termed to be efficacious remedy?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the Voters' List?
After considering various decisions of the Apex Court and also the decisions of various Benches of this Court, the Full Bench answered the Reference as under:Page 39 of 57 C/SCA/126/2014 CAV JUDGMENT
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 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."
It is required to be noted that even subsequently and consistently this Court in number of cases as and when required to maintain the democratic process and whenever it was found that there is an attempt to subvert the fair election process and the grant of relief is not likely to ultimately affect the election programme, the powers are exercised under Article 226 of the Constitution of India. The decision in which this Court has entertained the petitions under Article 226 of the Constitution of India and granted such reliefs are already stated herein above in para 6.1.
[8.6] Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of Patel Talshabhai Purabhai (Supra) reported in 2011(4) GLH 3544 taking the view that with respect to dispute of addition, alteration of voters' list, an alternative efficacious remedy under Rule 28 of the Rules is available and therefore, the High Court would not exercise extraordinary jurisdiction is concerned, it is required to be noted that as such in an another decision headed by the Page 40 of 57 C/SCA/126/2014 CAV JUDGMENT same learned Judge in the case of Patel Talshabhai Purabhai (Supra) has in the case of Shrutbandhu H. Popat (Supra) rendered in Special Civil Application No.16246/2011 dated 13.12.2011 taken a contrary view and even after considering the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) and after considering the decision of the Hon'ble Supreme Court in the case of Ashok Kumar (Supra); in the case of Pundlik (Supra) and other decisions and even considering the decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trademarks reported in (1998)8 SCC 1 has held that in an appropriate case being made out, a writ petition under Article 226 of the Constitution of India would be maintainable and a relief can be granted in exercise of powers under Article 226 of the Constitution of India.
In the recent decision the Division Bench of this Court in the case of Vasundra Samudayik Kheti Sahakari Kheti Sahakari Mandali Limited (Supra) rendered in Special Civil Application No.16249/2011 and other allied petitions had considered in detail the powers of the High Court to be exercised under Article 226 of the Constitution of India more particularly in a dispute related to election. In paras 22 to 30, the Division Bench has observed and held as under:
"22. Under the circumstances, the question would be, should we refrain from exercising writ jurisdiction and relegate the petitioners to alternative remedy of filing an election petition once the elections are concluded on the basis of voters list prepared by respondent No.4.
23. From the days of Ponnuswami, AIR 1952 SC 64, Courts are loathe to interfere with election process once the same is set in motion. Subsequently, however, the Apex Court in the case of Ashok Kumar (supra) after taking note of the decision in Ponnuswami, and other decisions in the field recognized a small area where despite availability of alternative remedy and in particular in the field of election, interference from the court in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution would still be open. The observations of the Apex Court in this regard may be noted.Page 41 of 57 C/SCA/126/2014 CAV JUDGMENT
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove : (1)If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the wellsettled parameters which enable judicial review of 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.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings,judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding,interrupting, protracting Page 42 of 57 C/SCA/126/2014 CAV JUDGMENT or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
Later on, in the case of Pundlik (supra), the Apex Court once again, finding that the decision of the Collector was wholly erroneous and contrary to rule 5(2) of the Maharashtra Specified Cooperative Societies (Election to Committees) Rules, found that interference in exercise of writ jurisdiction was justified. The Apex Court also took note of the fact that the petitioners therein had approached the High Court soon after the exclusion from the voters list. In this background, distinguishing its previous judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakarii Dugdha Utpadak Sanstha v. State of Maharashtra,(2001) 8 SCC 509, the Apex Court observed as under:
"13. We see considerable force in the contention of the learned counsel for the appellant. Bare reading of R. 5(2) makes it abundantly clear that the society which has communicated the name of its delegate can change the name of such delegate within the period stipulated therein. It was, therefore, open to respondentSangh to exercise the said power in accordance with R. 5(2) which has been done. It was the case of respondent No.2 Collector that in the list of subjects of the meeting convened on June 9, 2005, there was no subject for sending the name of representative for the election of the Maha Sangh and yet the representative was changed which was not proper. But the learned counsel for the appellant has rightly referred to the proceedings dated June 9, 2005, and in particular Resolution No.
7. It is further clear from agenda notice dated June 2, 2005, in which it was stated that the meeting of Board of Directors of respondentSangh would be held on June 9, 2005 for discussing various subjects and subject No. 7 related to the fax message received from the Collector, Mumbai, respondent No. 2 in connection with the election of respondent No. 3Maha Sangh. Pursuant to the above agenda notice, a meeting was held, subject No. 7 was taken for consideration and Resolution No. 7 was passed. By the said resolution, it was decided that instead of name of respondent No. 7, name of appellant will be sent as delegate and representative of respondentSangh and the said resolution was forwarded to respondent No. 2 Collector. He was, Page 43 of 57 C/SCA/126/2014 CAV JUDGMENT therefore, under obligation to effect change under R. 5(2) of the Rules. By not acting on the resolution, the respondent No.2 Collector has acted contrary to law and the appellant was wholly justified in making complaint before the High Court and praying for exercise of writ jurisdiction under Art. 226 of the Constitution."
A Full Bench of this Court also in the case of Daheda Group Seva Sahakari Mandli Ltd. (supra) while holding that exclusion or inclusion of names from the voters list cannot be termed extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution, recognized that in exceptional cases, the court can exercise powers of judicial review, which is the basic structure. It was observed that ordinarily court would not like to exercise its powers under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing electoral roll. The Bench observed :
"32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll."
24. Thus, even in the Full Bench decision, in the case of Deheda Group Seva Sahakari Mandli Ltd (supra), the Bench recognized exceptional circumstances where writ jurisdiction would still be exercised. Later decisions of this Court pointed out by the respondents more or less have followed the Full Bench view in the aforesaid case.
25. On the other hand, there are certain judgments of the Division Bench of this Court which have, in extraordinary circumstances, in exercise of writ jurisdiction, given directions to ensure conduct of elections in fair manner. In the case of S.H. Popad (supra), a Division Bench observed as under:
"21. In view of the above material on record and in view of the Page 44 of 57 C/SCA/126/2014 CAV JUDGMENT fact that the meeting of the licence subcommittee was convened on 20.1.2007 after the Dy. Director for Agricultural Marketing and Rural Finance had sent a communication dated 10.1.2007 for fixing the date of election and the Director of Agricultural Marketing and Rural Finance had already declared the election program on 17/18th January 2007 (which program was subsequently merely varied by postponing the date of polling and the other stages of election) and having examined the scheme of the Act and the Rules, we have no manner of doubt in holding that the resolution dated 20.1.2007 of the licence subcommittee for granting as many as 293 licences (269 fresh licences) was not only illegal but also a fraud on the election process. As held by the Hon'ble Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216, without granting stay on the election process, this Court can intervene for the purpose of strengthening the democracy and for removing the obstacles to the fair election process. In our view, therefore, this is an extraordinary situation justifying our intervention for the purpose of striking down the resolution dated 20.1.2007 of the licence subcommittee and to direct the respondentauthorities not to permit the persons granted licences pursuant to the said resolution to participate in the elections to APMC Kalavad, Dist. Jamnagar.
In the case of Gujarat State Cooperative Bank (supra), a Division Bench of this court observed as under :
"14. Similar preliminary contention raised in another petition under Article 226 of the Constitution challenging the voters' list was rejected by a Division Bench of this Court to which one of us was a party. In Shrutbabdhu H. Popat v. State, 2007(3) GLR 1942, the preliminary contention was rejected on the ground that after the decision of the Full Bench decision rendered on 27.4.2005, in the subsequent decision dated 25.8.2005 of the Apex Court, in the case of Pundlik v. State of Maharashtra reported in 2005(7) SCC 181, the Apex Court has held that though preparation of the voters list is one of the integral process of election and that normally the High Court should not interfere in exercise of powers under Article 226 of the Constitution, but such action must be in accordance with law. In Pundlik's case, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami's case, 2001 (8) SCC 509 in which objections against publication of the provisional electoral roll of the society were considered by the Collector and dispose of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the voters' list. It was in the background of the said facts that the Apex Court held in Page 45 of 57 C/SCA/126/2014 CAV JUDGMENT Shri Santi Sadguru case that the High Court should not stay continuation of the election process even if there may be some breach of Rules while preparing the electoral roll. Just as in the Pundlik's case, in the instant case the petitioner has taken action for challenging the inclusion of respondent Nos. 11 challenging the inclusion of respondent Nos. 11 to 15 in the final voters' list immediately after publication of the voters' list."
In the case of Patel Chandrakant Thakorbhai (supra), a Division Bench taking note of the decisions of the Supreme Court in the case of Pundlik (supra) and Ashok Kumar (supra), while allowing the writ petition with respect to preparation of voters list observed as under:
"19. In the facts and circumstances of the case, we have no manner of doubt that the principles laid down by two Division Benches of this Court in Shrutbandhu H. Popat (supra) and in Kalubhai Ranabhai Akabari (supra) must be held to prevail over the principle that the authorized officer would not entertain the objections against the inclusion of names of persons in the provisional voters' list, who were already included in the preliminary voters' list."
26. From the above noted decisions, following aspects emerge.
27. Availability of alternative remedy though may persuade the Court not to exercise writ jurisdiction under Article 226 of the Constitution, the same is never considered a total bar. It is more a matter of self imposed restraint by the court rather than a question of lack of jurisdiction. This is so because judicial review is considered as a basic feature of the Constitution. Exercise of writ jurisdiction under Article 226 is a constitutional guarantee. We may refer to the following decisions at this stage.
27.1 In the case of Amrik Singh Lyallpuri v. Union of Inida, (2011) 6 SCC 535, the Apex Court observed as follows :
"17. In a subsequent Constitution Bench decision of this Court in L.Chandra Kumar v. Union of India, Ahmadi, C.J. After an analysis of different decisions of this Court affirmatively held that judicial review is one of the basic features of our Constitution. Such a finding of this Court, obviously means that there cannot be an administrative review of a decision taken by a judicial or a quasijudicial authority which has the trappings of a court. Since judicial review has been considered an intrinsic part of constutionalism, any statutory provision which provides for administrative review of a decision taken by a judicial or a quasijudicial body is, therefore, inconsistent with the Page 46 of 57 C/SCA/126/2014 CAV JUDGMENT aforesaid postulate and is unconstitutional."
27.2 In the case of M. Nagaraj v. Union of Inida, (2006) 8 SCC 212, the Apex Court observed as under:
"31. At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice, both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State Legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by courts of justice. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our Constitution because it is necessary to give effect to the distribution of legislative power between Parliament and State Legislatures, and is also necessary to give practicable content to the objectives of the Constitution embodied in PartIII and in several other Articles of our Constitution."
28. Despite availability of such wide powers of issuance of various writs under Article 226 of the Constitution, Courts have always frowned upon interfering with the election process once the same is set in motion. Such selfimposed restriction is maintained particularly when any writ or order would have the effect of either arresting or derailing or delaying the election. The paramount consideration before the Court always is not to delay, detract or arrest the election process which is already set in motion. However, if it is found that the decision of the Authorized officer is malafide, arbitrary, in breach Page 47 of 57 C/SCA/126/2014 CAV JUDGMENT of law or opposed to the principles of natural justice, the courts have recognized the power to interfere and often interfered with even before the completion of the election to give suitable direction without delaying, derailing or arresting the election process which has already commenced. Such interference is viewed as one in furtherance of holding free and fair election rather than to arrest or delay the election process.
29. Under the circumstances, we are of the opinion that though ordinarily court would not interfere once the election process is commenced, and particularly with respect to preparation of voters list which process is recognized as part of election process, and would ordinarily leave the parties to raise all disputes post election in an election petition, there would be instances where the interference of the court looking to the peculiar and rare circumstances would be called for. In the present cases, as we have already held, the decision of the Authorized Officer is contrary to the law laid down by this court in two decisions in case of Husseinbhai (supra) and Jagdishbhai Ranchhodbhai (supra). No contrary decisions have been cited before us. View of this Court is thus consistent and unambiguous. Such pronouncement was made by learned Single Judge in case of Husseinbhai (supra) way back in 1979. Such view was reiterated by Division Bench more recently in case of Jagdishbhai Ranchhodbhai (supra). As noted, petitioners have stated that in election of other APMC's, voters' lists are prepared accordingly. Permitting such order to survive would only result into perpetuating palpable illegality. At the end of election also, if an election petition is filed, the authority would have no alternative but to follow the ratio laid down by this Court in the case of Husseinbhai (supra) and in the case of Jagdishbhai Ranchhodbhai (supra). We are therefore of the opinion that by giving suitable directions if such injustice can be remedied without delaying the election or arresting the election process, writ jurisdiction in facts of the present case should be exercised.
30. Before closing, we would like to clarify that interference in election process particularly in preparation of voters list would be in extremely rare circumstances. We should not mean to have suggested that such interference could be ordinarily done merely because the petitioners make out a prima facie case of some illegality or irregularity."
[8.7] The sum and substance of the aforesaid discussion would be that whenever it is found by the Court that an extraordinary case is made out and it is found that there is an attempt to create an artificial majority and the action is found to be not only illegal but also fraud on election Page 48 of 57 C/SCA/126/2014 CAV JUDGMENT process and the intervention of the court is warranted, the Court can certainly entertain the petition under Article 226 of the Constitution of India and grant the relief and/or issue writ in exercise of powers under Article 226 of the Constitution of India.
[8.8] It is required to be noted that as such a remedy available under Article 226 would be a constitutional remedy and nobody can take away such right. Therefore, as such to say that in view of the alternative remedy under Rule 28 of the Rules of filing an election petition, a petition under Article 226 of the Constitution of India would not be maintainable, cannot be accepted. As such it cannot be said that a petition under Article 226 of the Constitution of India in view of the alternative remedy would not be maintainable. There is a distinction between the maintainability and entertainability of the petition under Article 226 of the Constitution of India. In an appropriate case though the petition under Article 226 of the Constitution of India would be maintainable, still the Court may refuse to entertain the petition under Article 226 of the Constitution of India and Rules to grant any relief and/or issue writ in exercise of powers under Article 226 of the Constitution of India in view of the alternative efficacious statutory remedy available. At the same time and as observed hereinabove an extraordinary case being made out to maintain the democratic principles, even with respect to election related disputes, however, without in any way affecting the further election programme, a petition under Article 226 of the Constitution of India can be entertained and writ can be issued in an appropriate case.
[8.9] Considering the facts of the case on hand stated herein above and when it has been found that there is a systematic attempt on the part of the private respondents herein in getting their names included in the Traders Constituency after obtaining traders licenses after declaration of Page 49 of 57 C/SCA/126/2014 CAV JUDGMENT the election programme under Rule 10(2) of the Rules with a view to create an artificial majority and the same is not only illegal but also fraud in election process, this is an extraordinary situation justifying our intervention and grant the relief in exercise of powers under Article 226 of the Constitution of India. If despite the above, powers under Article 226 of the Constitution of India are not exercised and the petitioner is relegated to file the election petition under Rule 28 of the Rules, in that case, it would tantamount to closing the eyes and to continue such an illegality; permit those persons to cast their votes and thereafter to continue those persons who are declared elected on the basis of such voting, which would tantamount to perpetuating the illegality. Under the circumstances, the submission/contention on behalf of the private respondents to dismiss the present petition and not to grant any relief in the present petition under Article 226 of the Constitution of India, cannot be accepted.
[9.0] Now, next question which is posed for consideration of this Court is what would be the relevant date for a voter to become eligible to vote in the elections of a market committee? As such the aforesaid question is now not res integra in view of the decision of the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (Supra) as well as in the case of Shrutbandhu H. Popat (Supra) [2008(1) GLH 575] as well as in the case of the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. & Anr. [2009(3) GLH 380]. After considering the various provisions of the Act and the Rules, in the case of Kalubhai Ranabhai Akabari (Supra), the Division Bench in para 18 as held as under:
"18. In our view, therefore, the relevant date for determining the eligibility of a person for inclusion in the voters' list would be the date by which the Authorized Officer is to be communicated the names as indicated in subrule (1) of Rule 7, that is to say before that date Page 50 of 57 C/SCA/126/2014 CAV JUDGMENT
(i) a cooperative society registered under the Cooperative Societies Act for dispensing agricultural credit must have been registered as a cooperative society and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a cooperative marketing society registered as such under the Cooperative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
18A. The only exception to the above general rule is to be found in Rule 6 which reads as under :
6. Persons qualified to vote. A person whose name is entered in a 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."
In the case of Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. & Anr. (Supra), it is held that the date for determining the eligibility for including the voters' list for election of the APMC is the date on which the Authorized Officer is to be communicated the name.
[9.1] Identical question came to be considered by the Division Bench recently in the decision dated 1/5.08.2013 rendered in Special Civil Application No.9965/2013 and after considering the aforesaid decisions as well as other decisions in the case of Dolatbhai Prabhubhai Dumaniya Vs. Director, Agriculture Marketing and Rural Finance, decided on 13.3.2013, reported in 2013 (0) GLHELHC, 229249 that fixation of date of election as per Rule 4 of the Rules can be said to be the starting point of initiation of the process for commencement of the election and if the traders licenses are granted thereafter and/or even on the eve of such a fixation of the date of election [under Rule 4], the same would be illegal only with a view to create an artificial majority and would be a fraud on the election process and therefore, names of Page 51 of 57 C/SCA/126/2014 CAV JUDGMENT those license holders are not required to be included in the voters' list. The contention on behalf of the private respondents that relevant date for the purpose of commencement of election can be publication of the election programme in the local newspaper, in the present case on 21.11.2013, and in the present case traders license have been issued to them on 20.11.2013 i.e. prior to the publication of the election programme in the local newspaper and therefore, their names are required to be included in the voters' list cannot be accepted. In the present case, as such as stated herein above, the declaration of the election was on 16.11.2013, the election programme was prepared on 17.11.2013 which was send to the press/committee on the very day and it has been published on 21.11.2013. Even in the case of Chandrakant Manibhai Patel vs. State of Gujarat & Ors. rendered in Special Civil Application No.9965/2013, the licenses were granted on the eve of the declaration of the election programme [under Rule 4], the same is held to be illegal.
[9.2] Now, so far as the contention on behalf of the private respondents that present petition is required to be dismissed on the ground of non joinder of proper parties i.e. nonjoinder of market committee and License SubCommittee is concerned, at the outset it is required to be noted that in the present petition what is challenged is the decision of the Authorized Officer in rejecting the objection submission by the petitioner against the inclusion of the names of the private respondents herein in the preliminary voters' list of the Traders Constituency. Therefore, those persons/traders who are likely to be affected are joined as party respondents. As such the decision of the market committee / sublicense committee in granting the license to the private respondents herein is as such not under challenge. The grievance which is voiced by the petitioner in the present petition is that as those private respondents herein have obtained the license on the eve of the election / after declaration of the election by the Director, their names are not required Page 52 of 57 C/SCA/126/2014 CAV JUDGMENT to be included in the voters' list. Under the circumstances, as such the present petition is not required to be dismissed on the ground of non joinder of the proper/necessary party. As observed hereinabove, all those who are likely to be affect are joined as party respondents.
[10.0]Now, the next question which is posed for consideration of this Court is the duty of the Authorized Officer while preparing the preliminary voters' list and the contention on behalf of the private respondents that as they are holding the traders license issued by the market committee, the day on which the preliminary voters' list was prepared and published by the Authorized Officer [under Rule 7], their names are required to be included in the voters' list or not.
SubRule (2) of Rule 7 of the Rules provides that the Authorized Officer shall, within 7 days from the date fixed under subRule (1) is to prepare the list 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. Thus, a duty is cast upon the Authorized Officer to make such inquiry as he may deem fit while preparing the preliminary voters' list under subRule (2) of Rule 7 of the Rules. As stated herein above and even as held by the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (Supra), only that trader who has been granted license by the APMC to carry on business as a trader in the market area and who has commenced the business as a trader is entitled to be included in the preliminary voters' list. However, with a view to see that there is a fair election and no attempt is made to inflate the voters' list and create an artificial majority with malafide intention, a limited inquiry shall be read into while exercising powers under subRule (2) of Rule 7 that whether the names which are send by the market committee / concerned cooperative societies are issued the licenses after the declaration of the election by the Director under Rule 4 and/or even after the declaration of the election programme by the Director under Rule 10(2) of the Rules or on the eve of the declaration Page 53 of 57 C/SCA/126/2014 CAV JUDGMENT of the election and for that purpose as such the Authorized Officer as soon as receives the list of the voters/license holders from the market committee/concerned cooperative societies, he may call for the particulars with respect to each license holders whose names are to be included in the voters' list and the date of issuance of the licenses so that and if it is found that the licenses are issued after the declaration of the election under Rule 4 and/or after declaration of the election programme under Rule 10(2) or on the eve of the declaration of the election in that case considering the decisions of the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (Supra) and other decisions, the Authorized Officer may not include the names of those persons/license holders / members of the managing committee of those cooperative societies who have been issued licenses subsequently. If the aforesaid procedure is read into while considering subRule (2) of Rule 7 of the Rules, which provides that the Authorized Officer shall within seven days from the date fixed under subrule (1) prepare the list 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, the same would be in the fitness of things and to maintain democratic principles. Therefore, as such it is advisable that as such at the time of sending the names by the concerned cooperative societies dispensing agricultural credit; the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader and every Co operative Marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member shall also give the particulars with respect to the date of the grant of the licenses in favour of concerned cooperative society dispensing with agricultural credit; the traders licenses and grant of license in favour of cooperative marketing society. If the said particulars are not provided while holding the inquiry under subrule (2) Page 54 of 57 C/SCA/126/2014 CAV JUDGMENT of Rule 7 of the Rules, the Authorized Officer may call for the relevant particulars to satisfy himself about the above. If the aforesaid inquiry is read into, in that case and accordingly the preliminary voters' list is prepared, no prejudice shall be caused to anybody as after publishing the preliminary voters' list, the objections can be raised by any person as provided under subRule (1) of Rule 8 of the Rules.
In the present case, as stated herein above, the Authorized Officer has failed to perform his statutory duty and has materially erred in rejecting the objection submitted by the petitioner and has erred in including the names of the private respondents herein in the voters' list of the Traders Constituency.
[11.0] Now, so far as the next contention on behalf of the private respondents that once the provisional and final voters' list has been published under Rule 8 thereafter and the names of the private respondents are included in such provisional / final voters' list published under Rule 8, thereafter the Authorized Officer has no jurisdiction to delete their names and therefore, the petitioner cannot challenge the inclusion of the names of the private respondents herein in the voters' list thereafter is concerned, the aforesaid has no substance. It is required to be noted that in the present petition what is challenged is the inclusion of the names of the private respondents herein in the preliminary voters' list published under Rule 7(2) of the Rules. Immediately having come to know about the inclusion of the names of the private respondents in the preliminary voters' list published under Rule 7(2) of the Rules, the petitioner raised objection which came to be overruled / rejected by the Authorized Officer and thereafter published the provisional and final voters' list including the names of the private respondents herein in the voters' list, it cannot be said that thereafter and despite the fact that against the preliminary voters' list published under Rule 7(2) of the Rules including the names of the private respondents in the voters' list was raised, the petitioner cannot challenge Page 55 of 57 C/SCA/126/2014 CAV JUDGMENT it. In such a situation when an objection is raised against the inclusion of any person in the preliminary voters' list published under Rule 7(2) and thereafter such an objection is rejected and the name is continued and/or included while publishing the provisional and final list of voters under Rule 8, the challenge to the inclusion of the names in the voters' list is permissible otherwise the objector would be thereafter remedyless.
[12.0] Now, to sum up and considering the facts of the case on hand narrated hereinabove, it emerges that as such prior to 58 traders licenses were granted by the License SubCommittee vide resolution passed on 20.11.2013, there were only 48 traders who were having the licenses. Thus, equal number of trader licenses have been issued after the declaration of the election/election programme so as to make them eligible to be included in the voters' list of the Traders Constituency. As stated herein above the declaration of the election by the Director was dated 16.11.2013, the election programme was prepared on 17.11.2013. However, the same came to be published in the local newspaper on 21.11.2013 and in the meeting of the License SubCommittee held on 20.11.2013 for which the agenda was issued on 11.11.2013, 58 traders licenses are granted to those traders who infact applied for the licenses after the agenda was issued and in most of the cases on 18/19/11/2013. 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.
[13.0] In view of the above and for the reasons stated above, present special civil application succeeds. The action of the Authorized Officer in including the names of the private respondents herein in the voters' list of Traders Constituency of APMC, Hansot is hereby quashed and set aside and it is directed that the respondent Authority shall not Page 56 of 57 C/SCA/126/2014 CAV JUDGMENT permit the private respondents herein to vote at the ensuing elections to APMC, Hansot in the Traders Constituency scheduled to be held on 25 th February 2014. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R. SHAH, J.) Sd/ (R.P. DHOLARIA, J.) After the pronouncement of the judgment and order, Shri Shelat, learned advocate appearing on behalf of the private respondents has requested to stay the further implementation and operation of the present order so as to enable them to approach the Higher Forum.
In the facts and circumstances of the case and in view of our earlier findings and reasoning, the prayer is rejected.
Sd/ (M.R. SHAH, J.) Sd/ (R.P. DHOLARIA, J.) Ajay Page 57 of 57