Gujarat High Court
Trivedi Arvindbhai Hargovanbhai vs State Of Gujarat on 13 October, 2020
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/685/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 685 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 10865 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 685 of 2020
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R/LETTERS PATENT APPEAL NO. 687 of 2020
In SPECIAL CIVIL APPLICATION NO. 10869 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 687 of 2020
In SPECIAL CIVIL APPLICATION NO. 10869 of 2020
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R/LETTERS PATENT APPEAL NO. 689 of 2020
In SPECIAL CIVIL APPLICATION NO. 10871 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 689 of 2020
In SPECIAL CIVIL APPLICATION NO. 10871 of 2020
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R/LETTERS PATENT APPEAL NO. 690 of 2020
In SPECIAL CIVIL APPLICATION NO. 10863 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 690 of 2020
In SPECIAL CIVIL APPLICATION NO. 10863 of 2020
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R/LETTERS PATENT APPEAL NO. 704 of 2020
In SPECIAL CIVIL APPLICATION NO. 10874 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 704 of 2020
In SPECIAL CIVIL APPLICATION NO. 10874 of 2020
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R/LETTERS PATENT APPEAL NO. 705 of 2020
In SPECIAL CIVIL APPLICATION NO. 10872 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 705 of 2020
In SPECIAL CIVIL APPLICATION NO. 10872 of 2020
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R/LETTERS PATENT APPEAL NO. 706 of 2020
In SPECIAL CIVIL APPLICATION NO. 10870 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 706 of 2020
In SPECIAL CIVIL APPLICATION NO. 10870 of 2020
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R/LETTERS PATENT APPEAL NO. 707 of 2020
In SPECIAL CIVIL APPLICATION NO. 10868 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 707 of 2020
In SPECIAL CIVIL APPLICATION NO. 10868 of 2020
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C/LPA/685/2020 ORDER
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R/LETTERS PATENT APPEAL NO. 708 of 2020
In SPECIAL CIVIL APPLICATION NO. 10866 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 708 of 2020
In SPECIAL CIVIL APPLICATION NO. 10866 of 2020
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R/LETTERS PATENT APPEAL NO. 709 of 2020
In SPECIAL CIVIL APPLICATION NO. 10864 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 709 of 2020
In SPECIAL CIVIL APPLICATION NO. 10864 of 2020
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R/LETTERS PATENT APPEAL NO. 710 of 2020
In SPECIAL CIVIL APPLICATION NO. 10875 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 710 of 2020
In SPECIAL CIVIL APPLICATION NO. 10875 of 2020
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R/LETTERS PATENT APPEAL NO. 714 of 2020
In SPECIAL CIVIL APPLICATION NO. 10867 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 714 of 2020
In SPECIAL CIVIL APPLICATION NO. 10867 of 2020
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R/LETTERS PATENT APPEAL NO. 681 of 2020
In SPECIAL CIVIL APPLICATION NO. 10876 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 681 of 2020
In SPECIAL CIVIL APPLICATION NO. 10876 of 2020
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TRIVEDI ARVINDBHAI HARGOVANBHAI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MIHIR JOSHI, SR. ADVOCATE WITH MR DIPEN DESAI (2481) for the
Appellant(s) No. 1,2,3
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MS
AISHVARYA GUPTA, AGP for the Respondent(s) No. 1,2,3,4
MR VC VAGHELA for the Respondent(s) No. 5
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 13/10/2020
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) Page 2 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER LETTERS PATENT APPEALS 1 We have heard Shri Mihir Joshi, the learned Senior Advocate assisted by Shri Dipen Desai, the learned counsel appearing for the appellants, Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Ms. Aishvarya Gupta, the learned Assistant Government Pleader appearing for the State - respondent and Shri V.C.Vaghela, the learned counsel appearing for the respondent societies.
2 As the issues raised in all the captioned appeals are the same and the challenge in all the appeals is also to the self same order passed by the learned Single Judge of this Court, those were taken up for hearing analogously.
3 For the sake of convenience the Letters Patent Appeal No.685 of 2020 in the Special Civil Application No.10865 of 2020 is treated as the lead matter.
4 This appeal under Clause 15 of the Letters Patent is at the instance of unsuccessful writ applicants of a writ application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 25.09.2020 in the Special Civil Application No.10865 of 2020 by which the learned Single Judge declined to entertain the writ application on the ground that the original writ applicants have an alternative remedy of filing an election petition under Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 (for short, the Rules, 1965).
Page 3 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER5 The facts giving rise to this appeal may be summarized as under.
5.1 The appellants herein are the original writ applicants. They came before this Court by filing the Special Civil Application No.10865 of 2020 being aggrieved and dissatisfied with the order passed by the respondent No.4 herein - authorized officer dated 21.08.2020 whereby the respondent No.4 rejected the objections raised by the writ applicants against the inclusion of the names of the members of the Managing Committee of the respondent No.5 - Society in the voters list of the Agricultural Constituency for the election of the Agricultural Produce Market Committee, Deodar (for short APMC, Deodar).
5.2 The learned Single Judge while rejecting the writ application observed thus:
"3. The short facts giving rise to the present petition are that the petitioners are the agriculturists and they being the members of the managing committee of their respective societies, their names have been included in the voters' list for the agriculturist constituency for the election of APMC, Deodar. They had raised the objections against the inclusion oft he members of the Managing Committee of the respondent No.5 Society on the ground that the said members were not elected members of the Managing Committee as contemplated under Section74 of the Gujarat Cooperative Societies Act(hereinafter referred to as 'the Societies Act')and therefore, could not be included in the voters' list. The said objections have been rejected by the respondent No.4 - Authorized Officer vide the impugned order.Page 4 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER
4. Learned Advocate Mr. Dipen Desai for the petitioners, pressing into service the provisions contained in Section 74(1A)(i) of the Societies Act vehemently submitted that the members of the Managing Committee have to be elected members and the members of the managing committee of the respondent No. 5 - Society having not been elected and have been only appointed, they could not be permitted to be included in the voters' list for agriculturist constituency. Relying upon the provisions contained in Section 11(1)(i) of the Gujarat Agriculture Produce Market Committee Act(hereinafter referred to as 'the APMC Act') and upon the judgment of the Single Bench in case of Mandropur (Fatehpur) Jutth Seva Sahakari Mandli Limited Vs. State of Gujarat, reported in 2017(2) GLR 1495, he submitted that as per the Section 11(1) of the APMC Act, only the elected members of the Managing Committee of a particular Society are required to be included in the voters' list of Agriculturist Constituency. Assailing the impugned order passed by the respondent No.4 - APMC, Deodar, he submitted that the respondent No.4 had failed to take into consideration the objections raised by the petitioners in the right perspective, and had also failed to take into consideration the provisions contained in the Societies Act and the APMC Act as also the Rules framed under the APMC Act.
5. At the outset, it may be noted that by the time,the present petition was filed, the process of election of APMC, Deodar had already started,inasmuch as the last date for receiving objections against the preliminary voters' list was 14.8.2020, the provisional voters' list was to be published on 21.8.2020 and the last date for publication of the final voters' list was4.9.2020. The present petition was filed by the petitioners on 2nd day of September, 2020, which came to be adjourned from time to time and was heard on 24.9.2020. Hence, pending the present petition, the final voters' list has already been published by the Authorized Officer on4.9.2020.Page 5 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER
6. At this juncture, it would be appropriate to refer to Rule 28 of the Rules framed under the APMC Act, which read as under:
"28. Determination of validity of election -
(I) 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 function of an Election Officer, and
(b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under sub-rule(1), the Director, 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. 1f 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 afresh election for filling up the vacancy of such member."
7. Now it is well settled proposition of law that the inclusion or exclusion of names in the voters' list cannot be termed as an extraordinary circumstance warranting interference of the High Court in exercise of the jurisdiction under Article 226 of the Constitution of Page 6 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER India, and such question could be decided in the Election Petition, which maybe tried under Rule 28 of the said Rules. The Full Bench in case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing),reported in 2006 GCD 211 (SCA No.2489 of 2005dated 27.4.2005), has specifically held in paragraph 33 as under :
"33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing 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 side, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article226 of the Constitution of India is maintainable though alternative remedy is avail-able, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extra-ordinary 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 Rule28 of the Rules."
8. It is also pertinent to note that the Division Bench of this Court in a group of petitions filed by the petitioner
- Patel Talshabhai Purabhai Vs. Authorized Officer and Auditor Grade-I, being SCA No.2302 of 2011 and others had also vide the order dated 9.3.2011 dismissed the said petitions on the ground of Page 7 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER availability of alternative, efficacious remedy under Rules 28 of the said Rules, relying on the aforestated ratio laid down by the Full Bench.
9. In the instant case, the petitioners have challenged the impugned order passed by the respondent No.4 Authorized Officer as the objections raised by the petitioners against the inclusion of the names of the members of the Managing Committee of the respondent No.5 Society in the voters' list have been rejected by the respondent No. 4. The Court, therefore is of the opinion that in view of the aforestated ratio laid down by the Full Bench, the alternative remedy for filing election petition under Rule28 of the said Rules being available to the petitioners, all the petitions deserve to be dismissed on the said ground alone.
10. It is also axiomatic that normally the High Court exercising the jurisdiction under Article226 of the Constitution of India should not interfere with the process of election once the same has already commenced. Beneficial reference of the decisions of the Supreme Court in case of Nanhoo Mal and Others Vs. Hiramal & Ors., reported in (1976) 3 SCC 211; in case of Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra and others reported in 2001(8) SCC,509; and in case of Election Commission of India Vs. Ashok Kumar & Ors., reported in 2000(8) SCC 216 may be made in this regard. In the instance case the election process has already begun and the final voters' list is also published. The present petitioners are not even the contestants in the election. It appears that they had tried to obstruct the election process, by virtue of their being members of the Managing Committee,by raising objections before the respondent No.4, which have not been accepted by the respondent No.4 by passing a detailed order. The present petitions filed after the commencement of the election process and with a view to stall the election therefore could not be entertained,more particularly when an alternative Page 8 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER efficacious remedy of filing the election petition under Rule 28 of the said Rules is available to them.
11. So far as the impugned order is concerned, the respondent No.4 Authorized Officer has observed that the members of the Managing Committee of the respondent Jo.5 Society, whose names have been included in the voters' list, were appointed as such unanimously in the Annual General Meeting of the respondent No.5 Society,and nobody had raised any objection so far. Merely because the election of the Managing Committee was not held, the said members who have been unanimously appointed as the members of the Managing Committee of the respondent No.5Society could not be deleted from the voters' list of the Agriculturist Constituency. The Court does not find any illegality in the said observations / findings arrived at by the respondent No. 4. Though much reliance has been placed by the petitioners on the decision of the Single Bench in case of Mandropur (Fatehpur) Jutth Seva Sahakari Mandli Limited Vs. State of Gujarat (Supra), it may be noted that in the said case, the issue was whether the Authorized Officer could have made summary inquiry as to whether only elected members could be the eligible voters to be included in the list of voters. In this regard, the Single Bench observed in paragraph 8 as under:-
"8. Whether inquiry undertaken in a particular case is summary or not or within the ambit of powers of the Authorized Officer or not is a question of fact to be ascertained in light of the peculiar facts and aspects of each case. It is the concept of 'summary inquiry' and not the factual contents of the summary nature which may be inflexible in law. It has to be judged from case to case whether in light of the attendant subject facts, the inquiry undertaken by the authorized officer is summary or not. When in the present case,the order of exclusion of names from the list of voters is based on the factum noticed that there Page 9 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER was no election held to the Managing Committee, the decision can be said to be based on summary inquiry only. What can be more 'summary' than to ask whether the persons named to be the voters are elected members and whether election was held of the Managing Committee of which they are shown to be the elected members."
12. It is further required to be noted that in paragraph 10 thereof, the Court held that a summary inquiry cannot be equated with final adjudication of facts or issues on merits, and therefore, the petitioners, if so advised, may avail alternative remedy of filing election petition under Rule 28 of the said Rules. Against the said decision of the Single Bench,an Letters Patent Appeal being No.541 of 2016 was preferred by the said petitioner before the Division Bench, and the Division Bench on 22.7.2016 had dismissed the same, without adverting to the issue as to whether only those members who are elected could be the members of the Managing Committee for the purpose of including their names in voters' list of the Agriculturists Constituency under Section 11(1)(i) of the said Act. It was further observed that the petitioners could avail of an alternative remedy of filing the election petition.
13. At this juncture, it is also required to be noted that the dispute as to whether the members of the Managing Committee of a particular the Cooperative Society were the elected members or not, could be raised by the aggrieved member before the Board of Nominees under the provisions contained in the Cooperative Societies Act. No such dispute has ever been raised by any of the members of the respondent No. 5 Society. The objections raised by the petitioners with regard to the inclusion of the members of the Managing Committee of the respondent No.5 Society in the voters' list of Agriculturists Constituency, on the ground that they were not elected members, have been rightly rejected by the respondent No.4 Authorized Officer.
Page 10 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER14. In that view of the matter, the Court does not find any merit in the present petitions, and the same are dismissed accordingly."
5.3 It appears on plain reading of the impugned judgment and order passed by the learned Single Judge that the writ application came to be rejected not only on the ground of alternative efficacious remedy available to the writ applicants, but the learned Single Judge also went into the merits of the impugned order passed by the Authorized Officer overruling the objections raised by the writ applicants as regards the inclusion of the names of the members of the Managing Committee of the respondent No.5 - society.
6 Mr. Mihir Joshi, the learned Senior Counsel assisted by Mr. Dipen Desai, the learned counsel appearing for the appellants has a serious grievance to redress as regards the approach of the learned Single Judge. Mr. Joshi would submit that if the learned Single Judge was not inclined to entertain the writ application on the ground that his clients have an alternative efficacious remedy of filing an election petition under Rule 28 of the Rules, 1965, then the learned Single Judge ought not to have observed anything on the merits of the order passed by the Authorized Officer.
6.1 The second submission of Mr. Joshi is that the Authorized Officer in its order dated 21.08.2020 has observed thus:
"It is a fact that the society (respondent No.5) has Page 11 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER adopted the Election Rules. However, the members of the Managing Committee of the said society came to be appointed unanimously in an Annual General Meeting of the society. In such circumstances, if the members of the Managing Committee of the society have been appointed unanimously in the Annual General Meeting and as there was no election for the purpose of the members of the Managing Committee, it cannot be said that their names are liable to be deleted or struck off from the voters list".
6.2 Mr. Joshi submitted that the afore quoted finding of the Authorized Officer makes it abundantly clear that the members of the Managing Committee of the respondent No.5 society could not be said to have been duly elected so as to entitle them to be included in the voters list. According to Mr. Joshi, unanimous appointment in an Annual General Meeting of the members of the Managing Committee of the Society is not sufficient and the constitution of the Managing Committee cannot be said to be legal and in accordance with the provisions of the Act and the Rules, 1965.
6.3 Mr. Joshi would submit that there are conflicting judgments of this Court on the said issue. Mr. Joshi invited our attention to a decision rendered by a learned Single Judge of this Court dated 27.04.2016 in the Special Civil Application No.3267 of 2016 wherein the Court has observed in para 10 as under:
"10. The Court, having heard the learned advocates for the parties, finds that the authorized officer has though Page 12 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER found that the petitioner society is dispensing agricultural credit,however, only on the ground that the formation of the managing committee of the petitioner in its annual general meeting dated 31.5.2015 was not in consonance with the bye laws of the petitioner society, he passed the impugned order. It is settled position of law that the authorized officer is not to test or HC-NIC Page 4 of 6 Created On Fri Apr 29 02:52:22 IST 2016 C/SCA/3267/2016 ORDER examine the legality or otherwise of the election of the members of the managing committee of a co-operative society. It is required to note that the authorized officer is to consider whether the petitioner society is dispensing agricultural credit and whether the names of the members of its managing committee sent to the authorized officer to be included in the voters' list are elected members or not. The authorized officer would not go into the aspects of legality or otherwise of the election of the members of the managing committee of the cooperative society. However, in the present case, the authorized officer has observed that the formation of the managing committee in the meeting of the society is not as per the bye-laws. Such consideration by the authorized officer is beyond his jurisdiction. The impugned order of the authorized officer is, therefore, required to be quashed and set aside."
6.4 Mr. Joshi pointed out that quite contrary to the aforesaid decision of the learned Single Judge, there is one another judgment of this Court rendered in the case of Mandropur (Fatehpur) Juth Seva Sahkar Mandali Limited vs. State of Gujarat reported in 2017(2) GLR 1495 wherein the learned Single Judge has observed in para 5 as under:
"5. Travelling to root after gathering the controversy Page 13 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER and the contentions canvassed by both the sides, in the general elections to the APMC, the societies dispensing agriculture credit would have its Managing Committee members as the voters to be included in the list of voters. Under the Gujarat Cooperative Societies Act as per Section 74(1)(a),members of the Managing Committee are to be elected. The members of the Managing Committee of cooperative society would become voters in the APMC elections and would be those one who are elected ones. Therefore, from the above statutory requirement it is manifest that the members of Managing Committee to figure in the list of voters would be the persons elected as members."
6.5 Mr. Joshi pointed out that the stance of the Government in the afore quoted decision supports the proposition of law he seeks to canvass in the present case. Our attention has been invited to para 4.3 of the afore quoted judgment wherein the learned Single Judge has noted the submission of the Government Pleader. Para 4.3 reads thus:
"4.3 On the other hand, learned Government Pleader Ms. Manisha Lavkumar defended the impugned order to submit that the Authorized Officer has acted within his bounds of jurisdiction so as to undertaken minimal inquiry necessary in the facts of the case to find out whether the names of the persons send by the petitioner society could have been inserted in the voters' list treating them eligible voters for the purpose of general elections to the APMC, Kheralu. She emphasized that the eligible voters in the list have to be 'elected members' of the Managing Committee. Learned Government Pleader pressed into service the very decision in Thumthal Seva Sahakari Mandli(supra) and further referred to and relied on another Division Bench decision in Mahendra Maganbhai Patel Vs State of Page 14 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER Gujarat & 61 being Special Civil Application No.126 of 2014 decided as per judgment dated 11th February, 2014. Countering the contention of the petitioner that initially in the list of voters,names were included and finally in exercise of power under Rule 8 they came to be excluded by the fourth respondent, learned Government Pleader relied on observations in paragraph 11 of the decision in Mahendra Maganbhai Patel (supra)".
6.6 Mr. Joshi brought to our notice that the decision of the learned Single Judge in the case of Mandropur (Fatehpur) Juth Seva Sahkar Mandali Limited (supra) has been affirmed in appeal vide the judgment and order dated 22.07.2016 passed in the Letters Patent Appeal No.541 of 2016. Mr. Joshi invited our attention to the observations made by the appeal court as contained in paras 14 to 16, which read thus:
"14. Thus, when recently this Court has taken the aforesaid view, in the facts of the present case, we are of the opinion that the authorized officer has not committed any jurisdictional error while making inquiry under rule 8(2) of the Rules and thereby excluded the names of the committee members of the petitioner- society. However, as observed hereinabove, dispute with regard to the inclusion or exclusion of names in the voters' list can be gone into in the election petition filed under Rule 28 of the Rules.
15. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.
16. However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of Page 15 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER election, it can approach the competent authority by raising an election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the findings recorded either by the learned Single Judge or by this Court in this appeal."
6.7 According to Mr. Joshi the scope and true purport of Rules 7 and 8 respectively of the Rules, 1965 will have to be looked into by this Court and the same needs interpretation accordingly. According to Mr. Joshi, the Authorized Officer is wrong in law in saying that he has no jurisdiction to go into the question of the legality and validity of the appointment of the members of the Managing Committee of a cooperative society. Mr. Joshi also invited our attention to Section 74 of the Gujarat Cooperative Societies Act, 1961 (for short, the Act, 1961). Mr. Joshi has laid much emphasis on subsection (1A)(i). Mr. Joshi would submit that in view of Section 74(1A)(i), the Managing Committee of a cooperative society shall consist of, among others, such number of elected members not exceeding twenty-one. The emphasis is on the words "elected members". He also invited our attention to Section 74(1A)(ii) which provides that only the elected members shall be entitled to be the office bearers of the Managing Committee. Here again the emphasis put is on the words "elected members".
6.8 The principal argument of Mr. Joshi is that as the Members of the Managing Committee of the respondent No.5 were not duly elected, they cannot be said to be validly appointed members of the Managing Committee, and Page 16 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER therefore, are dis-entitled to be included in the voters list of the APMC.
6.9 Mr. Joshi in the last submitted that the decision of this High Court in the case of Mandropur (Fatehpur) Juth Seva Sahkar Mandali Limited (supra) rendered by the learned Single Judge and affirmed in the appeal could be said to be binding to the Authorized Officer. He could not have declined to look into and follow the settled position of law while overruling the objections raised by his client. Mr. Joshi would submit that in Mandropur (Fatehpur) Juth Seva Sahkar Mandali Limited (supra) this Court has observed in so many words that in the general elections to the APMC, the societies dispensing agriculture credit would have its Managing Committee members as the voters to be included in the list of voters. The Court has further observed according to Mr. Joshi that under Section 74(1A) of the Act, 1961, the members of the Managing Committee are to be elected. The members of the Managing Committee of the Cooperative Society would become voters in the APMC elections and would be those one who are elected ones. Mr. Joshi submitted that in no uncertain terms, this Court has held that the members of the Managing Committee to figure in the list of voters would be the persons elected as members.
6.10 Mr. Joshi has placed reliance on two decisions in support of his submissions. He has relied on the judgment delivered by a Division Bench of the Madhya Pradesh High Court in the case of State of Madhya Pradesh vs. Sanjay Nagayach reported in (2013) 7 SCC 25 and the Division Page 17 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER Bench of this High Court in the case of Amreli District Co Operative Sale and Purchase Union Limited vs. State of Gujarat reported in 1984(2) GLR 1244.
6.11 In such circumstances referred to above, Mr. Joshi prays that there being merit in his appeal, the same may be admitted and appropriate relief may be granted.
7 On the other hand, this appeal has been vehemently opposed by Mr. V.C.Vaghela, the learned counsel appearing for the respondent No.5 - society and Ms. Manisha Lavkumar Shah, the learned Government Pleader appearing for the State respondents. Both the learned counsel would submit that this Court may not disturb the impugned judgment and order passed by the learned Single Judge as the issue as on the date is with regard to the inclusion of the names of the members of the Managing Committee of the respondent No.5 - society. According to both the learned counsel assuming for the moment without admitting that their names have been wrongly included, at this point of time, as the election process is on the way this Court may not go into such issues as the determination of the validity of the election can be gone into under Rule 28 of the Rules, 1965. According to both the learned counsel the Authorized Officer could not be said to have committed any error much less an error of law in overruling the objections raised by the appellants herein and in such circumstances the learned Single Judge rightly declined to interfere with the order passed by the Authorized Officer. In such circumstances referred to above, both the learned counsel Page 18 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER pray that there being no merit in this appeal, the same may be dismissed.
8 Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that there are many larger issues involved in this litigation, which need to be addressed. The appeals do not deserve to be dismissed at the threshold. We need to examine the following issues:
[a] Whether the decisions rendered by this Court referred to above are in conflict with each other so far as the scope and ambit of inquiry by the Authorized Officer under Rule 7 of the Rules, 1965 is concerned.
[b] The true purport and meaning of the words "elected members" as they figure in Section 74(1A)(i) of the Act, 1961.
8.1 The decisions relied on by Mr. Joshi in the cases of Sanjay Nagayach (supra) and Amreli District Co Operative Sale and Purchase Union Limited (supra) shall be looked into while deciding the main appeals finally.
9 In view of the above, Admit all appeals. No separate notice be issued to the respondents as Mr. Vaghela has entered his appearance on behalf of respondent No.5 in all the appeals and Ms. Aishvarya Gupta, the learned Assistant Government Pleader has entered her appearance on behalf of the State respondents in all the appeals.Page 19 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER
CIVIL APPLICATIONS 1 By this Civil Application, the applicants (original appellants) have prayed for the following reliefs:
"[A] YOUR LORDSHIP may be pleased to admit and grant this Civil Application.
[B] Pending final hearing and disposal of the Letters Patent Appeal, the Hon'ble Court be pleased to restrain the members of the Managing Committee of the opponent No.5 - society from participating in the elections of Agriculture Produce Market Committee, Deodar, by staying the further operation and implementation of the order dated 21.08.2020 passed by the respondent no.4-Authorized Officer at Annexure- A to the Special Civil Application."
2 While admitting the appeals, we have given more than a fair idea as regards the disputes between the parties and also the legal issues arising in this litigation. Although we have thought fit to admit the appeals as few important questions of law need to be decided, yet it is difficult for this Court to grant any interim relief as prayed for by the applicants for the reasons we shall record herein below.
3 It is not in dispute that the election process is at the fag end. Polling is to take place tomorrow i.e. on 14.10.2020. The names of the members of the Managing Committee of the respondent No.5 - society have been included in the voters list. We are of the view that the members of the Managing Committee of the respondent No.5 - society should be permitted to vote, but at the same Page 20 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER time, the complete account / details of their votes shall be maintained separately so as to avoid any confusion in future. In other words, we are of the view that although the members of the Managing Committee of the respondent No.5 should be permitted to cast their votes yet the details regarding the same should be maintained separately.
4 We have handful of precedents so far as the subject matter of this litigation is concerned for the purpose of declining grant of interim relief as prayed for by the applicants. The applicants want this Court to restrain the members of the Managing Committee of the respondent No.5 - society from casting their votes in the election scheduled to be held on 14.10.2020. In other words, the applicants want this Court to exclude the names of the members of the Managing Committee of the cooperative society from the voters list.
5 In the aforesaid context, we may refer to a decision rendered by a coordinate Bench of this Court in the case of Pransli Seva Sahakari Mandali Ltd & Ors. vs. State of Gujarat & Ors. in the Special Civil Application No.4189 of 2014 decided on 10.04.2014 wherein the coordinate Bench had the occasion to consider the very same provisions of the Act and Rules. We quote the relevant observations made in paras 6.3 to 6.6, which read thus:
"[6.3] The scope and ambit of inquiry by the Authorized Officer while preparing the preliminary voters' list under Rule 7 came to be considered by the Division Bench of Page 21 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER this Court in the case of Vibhapar Seva Sahakari Mandali Ltd. (Supra) and on considering the various provisions of the Act, 1961 and the Rules, 1965, it is observed and held that "under Rule 5 of the Rules, 1965, for the purpose of Section11(1)(I) of the Act, 1961, a list of members of the managing committee of the cooperative society dispensing agricultural credit in the market area is required to be prepared and sent by such cooperative society to the Authorized Officer. Under Rule 7 of the Rules, 1965, more particularly sub-rule (2) thereof, the Authorized Officer has to, within 7 days from the date fixed under sub-rule (1) of Rule 7, prepare the list of voters as stipulated by Rule 5 on the basis of the information received from each cooperative society. Sub-Rule(2) of rule 7 of the Rules states in the latter part after making such inquiry as the Authorized Officer may deem fit, if necessary. However, such inquiry cannot be treated to be extending beyond ascertainment of the details submitted by the co-operative society and testing the veracity thereof, namely whether a particular person whose name has been included by the co-operative society in the lists a member of the Managing Committee or not, or whether he resides at the place stated in the list by the co-operative society or not. Once the stage of that inquiry is over, rule 8(1) of the Rules indicates that the Authorized Officer is duty bound to publish the list of voters prepared under rule 5 read with rule 7 of the Rules."
[6.4] The scope and ambit of the inquiry by the Authorized Officer while preparing the voters' list also came to be considered by the Division Bench of this Court in the recent decision in the case of Mahendra Maganbhai Patel (Supra) and in para 10, this Court has tried to expand the scope and ambit of the inquiry under Rule 7(2) of the Rules, 1965. Para 10 of the aforesaid decision is as under:
"[10.0] Now, the next question which is posed for consideration of this Court is the duty of the Page 22 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER 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. Sub-Rule (2) of Rule 7 of the Rules provides that the Authorized Officer shall, within 7 days from the date fixed under sub-Rule (1) is to prepare the list of voters as required by Rule 5 on the basis of the information received under sub-Rule (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 sub-Rule (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 sub-Rule (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 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 Page 23 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER 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 sub-Rule (2) of Rule 7 of the Rules, which provides that the Authorized Officer shall within seven days from the date fixed under sub- rule (1) prepare the list of voters as required by rule 5 on the basis of the information received under sub-rule (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 Page 24 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER inquiry under sub-rule (2) 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 sub-Rule (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."
[6.5] Under the circumstances and even considering the aforesaid two decisions of the Division Bench of this Court, it can safely be concluded and held that while preparing and publishing the preliminary voters' list under Rule 7 of the Rules, 1965, the Authorized Officer has no jurisdiction and/or authority to enter into the question with respect to the legality and validity of the election of the members of the managing committee of the concerned cooperative societies and the inquiry by the Authorized Officer while preparing the preliminary voters' list under Rule 7 of the Rules, 1965 would be limited to the extent observed herein above and as per the decisions in the case of Vibhapar Seva Sahakari Mandali Ltd. (Supra) and Mahendra Maganbhai Patel (Supra).Under the circumstances, it appears that the impugned communication /decision of the respondent No.4 - Authorized Officer in not including the names of the members of the managing committee of the petitioners is absolutely illegal and without authority under the law and the scope and ambit of the inquiry to be conducted while preparing the voters' list under Rule 7 of the Rules, 1965.
Page 25 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER[6.6] At this stage, it is also required to be noted that while passing the impugned communication/order while not including the names of the members of the managing committee of the petitioners, the Authorized Officer has observed that the election of the managing committee of the petitioners has not been held in pursuance to the circular dated15.07.2013 and the order of this Court dated 10.07.2013 passed in Special Civil Application No.10155/2013. It is required to be noted that as such nothing is on record that the communication/circular dated 15.07.2013 was ever send to the petitioners cooperative societies. It is also required to be noted that even the petitioners societies were not party to the Special Civil Application No.10155/2013. In any case and it is an admitted position that as such nobody has challenged till date continuance of the members of the managing committee of the petitioners whose names have been send to the Authorized Officer. Under the circumstances, the impugned decision of the respondent No.4in not including the names of the members of the managing committee of the petitioners in the preliminary voters' list of the Agriculturist Constituency of the APMC, Keshod cannot be sustained and the same deserves to be quashed and set aside and respondent No.4 - Authorized Officer is required to be directed to include the names of the members of the managing committee of the petitioners in the voters' list of Agriculturist Constituency of the APMC, Keshod after holding the limited inquiry as observed herein above and to the extent stated in the decision of the Division Bench in the case of Vibhapar Seva Sahakari Mandali Ltd. (Supra) and Mahendra Maganbhai Patel (Supra)."
5.1 Thus, in the afore quoted decision of this Court, the view taken is that while preparing and publishing the preliminary voters list under Rule 7 of the Rules, 1965, the Authorized Officer has no jurisdiction and/or the authority to enter into the question with respect to the legality and Page 26 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER validity of the election of the members of the Managing Committee of the concerned cooperative society and the inquiry by the Authorized Officer while preparing the preliminary voters list under Rule 7 of the Rules, 1965 would be restricted to the extent observed in the decision of this Court in the case of Vibhapar Seva Sahakari Mandali Ltd. vs. State of Gujarat reported in 2010(0) GLHEL-HC 223660, wherein this Court took the view that the inquiry would not extent beyond ascertainment of the details submitted by the co-operative society and testing the veracity thereof, namely whether a particular person whose name has been included by the co-operative society in the list is a member of the Managing Committee or not, or whether he resides at the place stated in the list by the co- operative society or not. Once the stage of that inquiry is over, Rule 8(1) of the Rules mandates the Authorized Officer to publish the list of voters prepared under Rule 5 read with Rule 7 of the Rules.
5.2 However, as observed by us, while admitting the appeal, the issue deserves to be re-visited and the same shall be looked into at the time of final hearing of the main appeals.
5.3 The co-ordinate Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited vs. State of Gujarat & Ors. in Letters Patent Appeal No.569 of 2016 decided on 01.07.2016 on the very same subject matter held as under:
Page 27 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER"11. From reading of the provision under Section 11 (1)
(i) of the Act read with Rule 8 of the Rules, it is also clear that as per the provision under Section 11(1)(i) of the Act, only members of the managing committee of primary agricultural credit cooperative society dispensing agricultural credit in market area alone are eligible for inclusion for holding elections to the agriculturist constituency of the market committee.
Further from the reading of Rule 8 of the Rules, it is also clear that when objections are filed under Rule 8(1) of the Rules, it is always open for the authorized officer to hold an inquiry that whether such proposed members of the managing committee are the members of primary agricultural credit cooperative society or not and whether such primary agricultural credit cooperative society is involved in dispensing of agricultural credit in the market area or not. The authorized officer may not conduct in-depth enquiry elaborately, but so as to consider that such nominated members of the particular agricultural society fit into the electorate as contemplated under Section 11(1)(i) of the Act, can make summary inquiry into it. There cannot be any straitjacket formula on the scope of inquiry under Rule 8(2) of the Act with reference to eligibility of the electorate under Section 11(1)(i) of the Act, but it is a matter to be decided by the election officer having regard to the facts of each case. When it is an objection of the objector that the appellant society is not dispensing agricultural credit in the market area,limited inquiry is always permissible by authorized officer under Rule8(2) of the Rules to that limited extent. Further when electrotate under Section 11 (1)(i) of the Act are members of the primary agricultural credit cooperative society dispensing agricultural credit in the market area, it is also open for the authorized officer to examine whether such societies are primary agricultural credit cooperative societies or not which are involved in dispensation of agricultural credit in the market area. While we are in agreement with the view taken by the earlier Division Bench on the restricted scope of inquiry in the case of Shrutbandhu Himatlal Popat (supra), we Page 28 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER hold that such finding in the inquiry is to be recorded on the basis of the material placed before the authorized officer having regard to the facts of each case. Such order which is passed by considering the material placed before the authorized officer, cannot be said to be an order passed without jurisdiction or extraordinary circumstances as held by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra), so as to entertain the petition under Article 226 of the Constitution of India in view of the remedy available under Rule28 of the Rules. Further, in the judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha vs. State of Maharashtra and others,reported in (2001) 8 SCC 509, the Hon'ble Supreme Court held that breach of or non-compliance of mandatory provisions with rules during the preparation of electorate roll can be challenged in an election petition under the provisions of the Maharashtra Cooperative Societies Act. In the aforesaid decision, it is held that where election process has started, dispute has to be agitated by way of election petition only. It is further held that preparation of voters list is a part of election process for constituting a managing committee of the specified society and such dispute can be resolved by way of election petition. In recent judgment, while considering the validity of rejection of nomination paper under Dental Council (Election)Regulations, 1952 and Dentists Act, 1948 in the case of Shaji K.Joseph v. V.Viswanath & Ors, reported in 2016 (0) AIJ-SC 57978, the Hon'ble Supreme Court held that all disputes with regard to election should be dealt with only after completion of the election by seeking resolution of dispute as per the regulations.
12. In view of the aforesaid judgments, we are of the view that the petition filed by the appellant is rightly held to be not maintainable by the learned single Judge in view of the that effective alternative remedy available under Rule 28 of the Rules.
Page 29 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorized officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorized officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorized officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.
14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all."
Page 30 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER5.4 The Supreme Court in the case of Shaji K. Joseph vs. V. Viswanath & Ors. reported in (2016)4 SCC 429 observed as under:
"Whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. In the present case, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations."
5.5 The Full Bench of this High Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D.Rohit, Autho. Officer & Co. Operative Officer (Marketing) reported in (2006)1 GCD 211 (FB) had occasion to consider Rule 28 of Rules, 1965. The Full Bench has observed in paras 31 to 47, which read as under:
"31. On a plain reading of rule 28 which provides Page 31 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER remedy to "any person qualified" either to be elected or to vote at the election to determine the validity of the election of the members of APMC. Since the expression "any person qualified" is not defined under the Act and the Rules, guidance is to be derived from rule 6 of the rules, dealing with "persons qualified to vote" - where the qualification criteria is to be taken into account which should be the capacity i.e. the post and not the factum of inclusion and exclusion of the names from the voters' list. We agree with the submissions of the learned Addl. Advocate General that with a view to give full effect to the provisions providing for remedy in the matter of resolution of election disputes as contained in the aforesaid Rule 28, the said provisions along with the provisions of Rule 6 should be given purposive interpretation in the widest amplitude so as to make the same more meaningful and effective. He has placed reliance of the decision in the case of D. Saibaba v. Bar Council of India, (2003) 6 SCC 186. While interpreting the Section 48-AA of the Advocates Act, 1961, the Hon'ble Supreme Court held as under:
"So far as the commencement of the period of limitation for filing the review petition is concerned, we are clearly of the opinion that the expression 'the date of that order' as occurring in section 48- AA has to be construed as meaning the date of communication or knowledge of the order to the review petition. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the Page 32 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart."
32. In view of the above, referring back to the present controversy, a person may be qualified to vote in any election, by virtue of his being a member of the Managing Committee of the particular Cooperative Society as per section 11(1) of the Act and not by virtue of the inclusion or deletion of his name from the voters' list. Inclusion or deletion of a name is only consequence of holding a capacity because if a person holds the post, his name should be included and if he ceases too hold the post on the date of election programme, then his name should be deleted, meaning thereby it is the holding of the capacity which is the relevant criterion and not the appearance of name in the voters' list which is only a consequence. Thus, even though a person's name is found entered into voters' list that alone would not qualify him to be a voter because it can be shown that he had ceased to hold the capacity in which his name was entered into the list, even though he had voted on the basis of inclusion of his name in the final voters' list but proof of his capacity having been ceased, the election could be set aside on the ground of improper reception of voters of an ineligible person. The context in which Rule 6 is framed by the Legislature cannot be read in isolation. While interpreting the same, it has to be kept in view that it also talks about cessation of the capacity in which name of a person was entered into the list. Therefore, it would be improper to construe Rule 6 as controlling the eligibility of a person entitled to file an election petition under Rule 28.
33. Provisions of rule 28 of the rules are otherwise independent of the provisions of rule 6 and are not in any manner, controlled by rule 6 and provide for Page 33 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER remedy for resolution of all kind of election disputes. If the provisions of rule 6 and rule 28 are not interpreted in the wider spectrum and in light of the intent of the legislature as discussed hereinabove, the same would create two classes i.e. (1) one which can challenge the wrong inclusion only by way of election petition, and (ii) the other which can challenge the non-inclusion i.e. exclusion by way of writ petition only. This could never have been intended by the legislation. When remedy of election petition is deemed fit and is provided as a statutory remedy then every election dispute should be raised before the forum competent to decide the same.
34. In view of the aforesaid provisions, which in our opinion, are self-contained and are to be interpreted without taking any external aid from other legislations like Gujarat Panchayats Act, 1993, Gujarat Cooperative Societies Act, 1961, Gujarat Municipalities Act, 1963 and the Representation of the People Act of 1950. We, therefore, see no merits in the submissions advanced by Mr Tushar Mehta.
35. As observed earlier, the Division Bench, in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Shak Bhaji and Fal Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana, 1986 GLH 430 (supra) and in the case of Mehsana District Coop. Sales and Purchase Union Ltd. and Anr. v. State of Gujarat, 1988(2) GLR 1060 (supra), have clearly laid down that rule 28 is a provision of widest amplitude where the validity of election can be challenged on any ground and further since the question as to whether a particular person is a voter or not, or continues to be a voter, or is entitled to be included in the voters' list, or entitled to object to the inclusion of the names of some persons, who according to the objector, are ineligible for being included, are questions which are pre-eminently fit to be decided by the competent election authorities and further if the voters' list is prepared on extraneous considerations Page 34 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER and not consistent with the requirements of the relevant rules, the forum created under Rule 28 of the rules would have jurisdiction and would be justified in looking into the same. We accordingly hold that the question that whether the voters' list is to be modified at the instance of some persons claiming to be voters or at the instance of persons objecting to the inclusion of the names of some persons in the voters' list is a matter relating to election. It is a right conferred under the Act for which remedy has been provided and therefore, this Court should not exercise its discretion in the matter. In our opinion, inclusion or exclusion of the names in the voters' list and all controversial matters as well as disputes arising out of the election including the right to vote or stand as a candidate should be postponed till after the elections are over so as to avoid impediment or hindrance in the election process. The Division Bench of this Court in the the case of Mehsana Dist.Coop.Purchase & Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. 1998 (1) GLH 170 (supra) could have referred the matter to the larger Bench especially in view of the earlier two decisions of two different Division Benches of this Court as stated above instead of taking a contrary view in the matter.
36. The Division Bench of this Court in a decision rendered in the case of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. 2004 (3) GLR 2718 (supra), rightly held that the decision rendered by the Division Bench in the case of Mehsana Dist.Coop.Purchase and Sales Union Ltd. (supra) (1998 (1) GLH 170, could have referred the matter to the Larger Bench if at all while taking a different view than the view expressed in the earlier two decisions of the Division Benches. The said Division Bench, though referred to those two decisions of the earlier Division Benches but took absolute contrary view than the view expressed by the earlier two decisions. (1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex Court in the case of Atma Ram v.
Page 35 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDERState of Punjab (AIR 1959 SC 519), observed that -
"where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger bench".
37. We may make it clear that by interpreting Rule 6 and 28 of the Rules, we are not enlarging the scope of the legislation or intention of the legislator nor recasting, rewriting or reframing the legislation. We are conscious of the fact that the Court has no power to legislate. Therefore, the decision rendered by the Hon'ble Apex Court in the case of State of Gujarat and Ors v. Dilipbhai Nathjibhai Patel and Ors., reported in AIR 1998 SC 1429 cited by Mr B S Patel will be of no assistance to him.
38. We accordingly do not approve the law laid down by the Division Bench of this Court in the case of Mehsana Dist.Coop.Purchase & Sales Union Ltd. (supra) 1998(1) GLH 170. In light of what is stated above, we approve the decisions rendered by the respective Division Benches in the following cases by holding that the same are good law:-
i. 1986 GLH 430 - Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Sahak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. and Ors. ii. 1988 (2) GLH 1060 - Mehsana Dist.Cooperative Sales and Purchase Union Ltd. and Anr. v. State of Gujarat and Ors.
iii. 2004 (3) GLR 2718 - Kanubhai Chhaganbhai Patel v.Director of Agricultural Marketing & Rural Finance, Gandhiniagar and Ors.Page 36 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER
39. In view of the above discussion, we see no merits in the first submission of Mr Patel that a person whose name is not included in the voters' list is not entitled to file election petition under Rule 28 of the Rules. We accordingly reject the submission that only such person can file the election petition who is either qualified to be elected or qualified to vote.
40. Turning now to the second contention namely; can remedy under Rule 28 can be termed to be efficacious remedy. Learned Counsel Mr Patel after inviting our attention to rule 28 submitted that even though the authority either can cancel or confirm and amend the declared result and can direct to hold fresh election in the event of setting aside the election, if the non- inclusion of the names in the voters' list has not materially affected, result of the election which is very difficult to establish then, the election cannot be set aside. In that event, the right under the statute to cast the vote shall not be available to the person whose name is wrongfully excluded from the voters' list. He submitted that even the Director or the competent authority under rule 28 cannot confer the right to vote. Under the provisions of rule 9 read with section 15 of the Act, the election is required to be held afresh. In that event, a person who has lost his right to vote remains the claimant for getting the right to vote but that right cannot be decided by the authority under the rules or provisions of the Act. He submitted that the voters' list is to be prepared for every election and the voters' list is not continued. If the voters' list is not continued, in that event, by no stretch of imagination, a person can get right to vote. By giving example, he submitted that if 50 voters have been excluded from the voters' list by wrongful order, in that event, in a petition by one member the right of other 49 cannot be decided. Under the circumstances, he submitted that the remedy under rule 28 cannot be termed as efficacious remedy. Finally he submitted that in absence of any right to appeal, the power conferred on authorised officer would lead to hazardous situation.
Page 37 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER41. The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit. Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter or right that he is entitled to invoke the jurisdiction of this court.
42. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India and Ors., 18 GLR 714 where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.
Page 38 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER43. In the case of Mehsana Dist. Coop. Sales and Purchase Union v. State of Gujarat, 1988 (2) GLR 1060, after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, 1988 (1) GLR 308, the Court have noted the observations made by the Hon'ble Apex Court as under:
"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies".
44. In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that-
"there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration."
45. In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.
46. 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 Page 39 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER 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.
47. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special Page 40 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020 C/LPA/685/2020 ORDER 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."
6 Thus in view of the aforesaid discussion, we have reached to the conclusion that no case is made out for grant of any interim relief. The members of the Managing Committee of the respondent No.5 society shall be permitted to vote in the APMC election scheduled to be held on 14.10.2020, but as observed the details of their votes shall be maintained separately. Their votes shall be counted for the purpose of declaring the final result. We are of the view that we should not stall or create any obstruction in the process of the election at this point of time more particularly when hardly 24 hours are left for the polling.
7 In view of the above, this Civil Application stands rejected.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) A. B. VAGHELA/P.SUBRAHMANYAM Page 41 of 41 Downloaded on : Tue Oct 13 23:47:59 IST 2020