Gujarat High Court
Shekhpur Seva Sahakari Mandali Ltd & 14 vs State Of Gujarat & 3 on 2 March, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/2336/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2336 of 2017
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SHEKHPUR SEVA SAHAKARI MANDALI LTD & 14....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PS CHAMPANERI, ADVOCATE with MR KP CHAMPANERI, ADVOCATE
for the Petitioner(s) No. 1 - 15
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with
MR UTKARSH SHARMA, AGP for the Respondent No.1-2
MR DIPEN DESAI, ADVOCATE for the Respondent(s) No. 3-4
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 02/03/2017
ORAL ORDER
1. The petitioner Societies have filed the present petition, challenging the legality and validity of the order dated 6.2.2017 passed by the respondent No.2 - the Authorized Officer, deleting the names of the members of the managing committees of the petitioner Societies from the voters' list published for the election of the Agriculturists' constituency of the Agricultural Produce Market Committee, Mangrol.
2. As per the case of the petitioners, the election of Agricultural Produce Market Committee, Mangrol was declared by the respondent No.1 by issuing the order Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER dated 2.1.2017, declaring the stages of election programme. As per the provisional voters' list published on 21.1.2017, the names of the members of the managing committees of the petitioner Societies were included, however, the respondent Nos.3 and 4 having raised the objection against such inclusion as per the application dated 3.2.2017, the respondent No.2 passed the impugned order deleting the names of the members of the managing committees of petitioner Societies, from the final voters' list vide the order dated 6.2.2017 (Annexure-G). Being aggrieved by the said order, the petitioners have filed the present petition.
3. It is sought to be submitted by the learned Advocate Mr.Champaneri for the petitioners that the impugned order passed by the respondent No.2 is ex facie arbitrary and in violation of the principles of natural justice, inasmuch as the respondent No.2 had not granted any opportunity of hearing to the petitioners before deleting the names of the petitioner Societies from the voters' list. According to Mr.Champaneri, the respondent No.2 had travelled beyond the scope of inquiry as contemplated under Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as "the said Rules") and the order being without jurisdiction and authority, the same deserves to be set aside. Mr.Champaneri has relied upon the decision of the Supreme Court in case of Election Commission of India thro. Secretary Vs. Ashok Kumar and Ors., reported in (2000) 8 SCC Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER 216, and of this Court in case of Sardar Vallabhbhai Patel Vs. State of Gujarat, reported in 2013(2) GCD 1339 to submit that the Court can interfere with the process of election in extraordinary circumstance when the order is ex facie without jurisdiction. Lastly he submitted placing reliance on the decision of the Supreme Court in case of Vineshkumar Mavjibhai Parmar Vs. Dethali Gopalak Vividh Karyakari Sahakari Mandali Ltd., reported in AIR 2016 SC 5246, that the phrase "Cooperative Societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the said Act is only descriptive of the purpose for which the Societies are established and that there was no incessant obligation of dispensing agricultural credit in order to enable the members of the managing committee of Credit Societies to participate in election to the market committee.
4. However, the learned Government Pleader Ms.Manisha Shah for the respondent Nos.1 and 2 and the learned Advocate Mr.Dipen Desai for the respondent Nos.3 and 4 have relied upon the various judgements of the Supreme Court and of this Court to submit that the election process having already commenced by issuance of the notification of election programme, the only remedy available to the petitioners would be to approach the concerned authority under Rule 28 of the said Rules. Ms.Shah also submitted that the authorized officer has taken into consideration the documents produced by the petitioners themselves along with the application filed under Rule 5, however the petitioners having failed to produce any Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER documents to show that the petitioner Societies were the Primary Agricultural Credit Cooperative Societies dispensing agricultural credits in the market area as contemplated in Section 11 (1) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the said Act"), the respondent No.2 had rightly deleted the names of the petitioners from the voters' list. She also submitted that whether the petitioners were dispensing agricultural credits or not would be disputed questions of facts, which could not be gone into by this Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
5. After having heard the learned Advocates for the parties and considering the documents on record, as also the various decisions of this Court and the Supreme Court, the Court is of the opinion that the position of law is well settled that the preparation of electoral rolls is part of election process and the High Court exercising the jurisdiction under Article 226 of the Constitution should not interfere with the same. The Supreme Court in case of Election Commission of India thro. Secretary Vs. Ashok Kumar and Ors. (supra) has very succinctly clarified the position of law in this regard, in paragraph 32 which reads as under :-
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER then adding by clarifying what follows therefrom in view of the analysis made by us herein above:
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 exerciseof 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 Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER 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 or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence byfiling 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."
6. In the above set of guidelines, it has been specifically observed by the Supreme Court that if an election is to be called in question and which questioning may have the effect of interrupting or obstructing or protracting the election proceedings in any manner, invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. The action taken or orders issued by Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER concerned authority are open to judicial review only on a very strong case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. In the instant case, Mr.Champaneri has failed to make out any such case which would require judicial intervention.
7. This Court while dealing with the similar issue in case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited Vs. State of Gujarat and Ors., decided on 28.6.2016 in Special Civil Application No.2128 of 2016 and others had observed at paragraphs 16 and 17 as under:-
"16. In view of the aforestated legal position, the Court cannot accept the submission of Mr.Joshi for the petitioners that the petitions could not be dismissed on the ground of existence of alternative remedy, once they are admitted. The Court also does not find substance in the submission made by Mr.Joshi that the remedy available under Rule 28 of the said Rules could not be said to be an alternative remedy, much less efficacious remedy. The very issue whether the person whose name is not included in the voters' list can avail of the benefits of the provisions contained in Rule 28 of the said Rules, by filing election petition or not, was referred to the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Cooperative Officer (Marketing) (2006 GCD1211) (Civil Application No.2489 of 2005 and Anr. dt. 27.4.2005) and the Full Bench had categorically answered the Reference as under: Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER
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 aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
17. In view of the aforestated legal position laid down by the Full Bench, the Court has no hesitation in holding that the decision of the respondent No.4 Authorized Officer to delete the names of the members of the Managing Committees of the petitioners from the voters' list should have been challenged by the petitioners by exhausting the alternative efficacious remedy by approaching the respondent No.2 Director under the provisions contained in Rule 28 of the said Rules, and that such exclusion could not be termed as an extraordinary circumstance warranting Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER interference of this Court under Article 226 of the Constitution of India. Such questions have to be decided in the election petition under Rule 28 of the said Rules. The Division Bench of this Court, in a group of petitions filed by Patel Talshabhai Purabhai & Ors. Vs. Authorized Officer and Auditor Grade1 and Ors., in Special Civil Application No.2302 of 2011 and others vide the order dated 9.3.2011 had dismissed the said petitions on the ground of availability of efficacious, alternative remedy under Rule 28 of the said Rules, following the aforestated ratio laid down by the Full Bench."
8. The said judgement has been confirmed by the Division Bench in the Letters Patent Appeal being No.569 of 2016 decided on 1.7.2016. The SLP being No.19103 of 2016 filed against the said judgement was also dismissed by the Supreme Court vide the order dated 20.7.2016.
9. Though much emphasis was given on the latest judgement of Supreme Court in case of Vineshkumar Mavjibhai Parmar (supra), the same is not helpful to the case of petitioner Societies. In the said case, the Credit Societies in question were temporarily debarred from dispensing agricultural credit by virtue of the operation of law, and by virtue of an interim order of winding up. There was a possibility of the Societies resuming their activity of dispensing agricultural credit. Under the circumstances, the Supreme Court observed inter alia that Section 11(1)(i) can not be construed as imposing an incessant obligation of 'dispensing Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Aug 13 16:25:57 IST 2017 C/SCA/2336/2017 ORDER agricultural credit' in order to enable the members of the managing committee of Credit Societies to participate in the election to the market committee. In the instant case, the petitioners have conveniently remained silent and have not made any averment in the petition that they are the primary Agricultural Credit Cooperative Societies dispensing agricultural credit, eligible to participate in the elections of the Agricultural Produce Market Committee, Mangrol, as per Section 11(1)(i) of the APMC Act.
10. In any case, the election process having already started and Mr.Champaneri having failed to make out any case, much less strong case of arbitrary or mala fide exercise of powers by the authorized officer, this Court is not inclined to interfere with the same, more particularly when the alternative efficacious, remedy under Rule 28 of the Rules is available to the petitioners.
11. In that view of the matter, the Court does not find any merit in the present petition, and therefore, the same is dismissed.
(BELA M. TRIVEDI, J.) vinod Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Aug 13 16:25:57 IST 2017