Gujarat High Court
Trivedi Arvindbhai Hargovanbhai vs State Of Gujarat on 25 September, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/10863/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10863 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10865 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10866 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10867 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10868 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10869 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10871 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10872 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10874 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10875 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10876 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10864 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10870 of 2020
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TRIVEDI ARVINDBHAI HARGOVANBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2,3
MS MANISHA LAVKUMAR, GP WITH MS JYOTI BHATT, AGP FOR THE
RESPONDENT STATE
for the Respondent(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 25/09/2020
ORAL ORDER
1. All the petitions, being filed by the same petitioners, challenging the similar orders passed by the respondent No.4 - Authorized Officer, they were heard together and are being disposed of by this common order. The SCA Page 1 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER No.10865 of 2020, being the lead matter, as requested by the learned Advocate Mr. Dipen Desai for the petitioners, the facts of the said petition are taken into consideration.
2. The petitioners by way of the present petition have challenged the impugned order dated 21.8.2020 passed by the respondent No.4 - Authorized Officer (Annexure-A), whereby the respondent No.4 has rejected the objections raised by the petitioners against the inclusion of the names of the members of Managing Committee of the respondent No.5 Society in the voters' list of Agriculturist Constituency for the election of Agriculture Produce Market Committee, Deodar (hereinafter referred to as the "APMC, Deodar").
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 Page 2 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER raised the objections against the inclusion of the 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 Section 74 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.
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 Page 3 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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 Page 4 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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 was 4.9.2020. 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 on 4.9.2020.
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 Page 5 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER (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. 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 a fresh 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 India, and such question could be decided in the Election Petition, which may be 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 2005 dated 27.4.2005), has specifically held in paragraph 33 as under : -
Page 6 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER
"33. In view of the above discussion, we an- swer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provi- sions 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 elec- tion 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 Article 226 of the Constitution of India is main-
tainable 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 jurisdic- tion. The exclusion or inclusion of names in the voters' list cannot be termed as extra- ordinary circumstances warranting interfer- ence 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."
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 availability of alternative, efficacious remedy under Rules 28 of the said Rules, relying on the afore- Page 7 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER stated 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 afore- stated 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 Article 226 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 & Page 8 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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 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 Page 9 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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.5 Society 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 Page 10 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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 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 Page 11 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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 Page 12 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021 C/SCA/10863/2020 ORDER 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.
14. In that view of the matter, the Court does not find any merit in the present petitions, and the same are dismissed accordingly.
(BELA M. TRIVEDI, J) SINDHU NAIR / vinod Page 13 of 13 Downloaded on : Sat Feb 27 17:02:58 IST 2021