Gujarat High Court
Nilesh Gordhandas Thakker vs State Of Gujarat Thro on 21 March, 2013
Author: Jayant Patel
Bench: Jayant Patel
NILESH GORDHANDAS THAKKERV/SSTATE OF GUJARAT THRO SECRETARY
C/SCA/2179/2013
JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL
APPLICATION NO. 2179 of 2013
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
and
HONOURABLE
MR.JUSTICE MOHINDER PAL Sd/-
===========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
1 : YES; 2 to
5 NO
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NILESH GORDHANDAS THAKKER
& 1....Petitioner(s)
Versus
STATE OF GUJARAT THRO
SECRETARY & 153....Respondent(s)
================================================================
Appearance:
MR
DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR
DHAWAN M JAYSWAL AGP for the Respondent(s) No. 1-4
MR
ASHISH H SHAH, ADVOCATE for the Respondent(s) No. 5
MR
YV VAGHELA, ADVOCATE for the Respondent(s) No. 14 - 15 , 52 , 64 , 74
, 87 , 100 , 111 , 152 , 154
NOTICE
SERVED BY DS for the Respondent(s) No. 1 - 4 , 9 , 16 - 18 , 34 , 73
, 91 - 99 , 101 - 102 , 104 - 105 , 108 - 109 , 114 - 115
NOTICE
UNSERVED for the Respondent(s) No. 6 , 8 , 12 - 13 , 24 , 26 , 29 -
32 , 71 , 77 - 78 , 82 , 86 , 88 , 90 , 103 , 107 , 110 , 112 - 113 ,
124 - 125 , 132 - 138 , 140 - 141 , 144 - 146 , 149
UNSERVED-REFUSED
(N) for the Respondent(s) No. 7 , 10 - 11 , 19 - 23 , 25 , 27 - 28 ,
33 , 35 - 48 , 50 - 51 , 53 - 63 , 65 - 70 , 72 , 75 - 76 , 79 - 81 ,
83 - 85 , 89 , 106 , 116 - 123 , 126 - 131 , 139 , 142 - 143 , 147 -
148 , 150 - 151 , 153
================================================================
CORAM:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE MOHINDER PAL
Date : 21/03/2013
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present petition is preferred for the following relief:
(A) The Hon ble Court may be pleased to admit and allow this Special Civil Application;
(B) The Hon ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order of the respondent No.4-authorized officer in continuing the names of the respondent Nos.6 to 154 in the voters list of traders constituency and thereby be pleased to direct the respondent No.4 to exclude the names of the respondent Nos.6 to 154 from the voters list of the traders constituency for the election of APMC, Bhuj;
(C) Pending final hearing and final disposal of the application, the Hon ble Court be pleased to restrain the respondents No.6 to 154 from participating in the elections of traders constituency of APMC, Bhuj;
(D) The Hon ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon ble Court in the interest of justice
2. As interim relief was not granted in the present petition, the matter is now heard and considered for final disposal.
3. Short facts are that, on 28.12.2012, Director of Agriculture Marketing and Rural Finance, respondent No.2 herein, in exercise of the power under Rule 4, decided to hold election of Agriculture Produce Market Committee, Bhuj. Pursuant thereto, he declared the date of election and published the election programme and also made appointment of Authorized Officer. The election programme is published at Annexure-B and, as per the said programme, the process of giving information for preparation of voters list etc. begins from 08.01.2013 and the date of election is fixed on 06.04.2013, counting is on 07.04.2013 and result is to be declared on the same date, i.e. 07.04.2013. It appears that, thereafter on 31.12.2012, office bearers of the Market Committee, after declaration of the election programme, granted new licences to the so-called traders who are joined as respondents No.93 to 154, i.e. total 62 persons together with other persons. However, as the petitioner in the present petition has challenged inclusion of those persons, who are respondents No.93 to 154 (total 62), we are not concerned with the other persons in the present petition, since no challenge is brought before this Court. It appears that thereafter voters list was prepared and respondents No.6 to 154 are included in the voters list. So far as respondents No.6 to 92 are concerned, the grievance on the part of the petitioner is that, though they were issued licences prior to commencement of the process of election on 28.12.2012, their names could not have been included in the voters list since they were not doing any business on such licences. Further as those respondents No.6 to 92 were not even eligible for licence since they were retailers and even if they were issued licence, their names could not have been included in the voters list. However, so far as respondents No.93 to 154 are concerned, the grievance of the petitioner is that their names in any case, they could not have been included, since they have acquired eligibility only on 31.12.2012 after commencement of the process of election. Learned counsel for the petitioner relied upon decision of this Court dated 12/13.3.2013 in case of Dolatbhai Prabhubhai Dumaniya v. Director, Agriculture Marketing & Rural Finance and others in SCA No.1890 of 2013 for contending that any person who has acquired eligibility to be included in the voters list after commencement of election process by order of the Director under Rule 4, such person would not be entitled to be included in the voters list of the respective constituency nor the Authorized Officer will have jurisdiction or competence to include them in the voters list. As per the petitioner, objections were filed before the Authorized Officer. However, the Authorized Officer, without properly considering the objections, has rejected the objections and under this circumstance, the present petition.
We have heard learned counsel Mr.Dipen Desai, appearing for the petitoiner; Mr.Jayswal, AGP for respondents No.1 to 4; Mr.Ashish Shah for respondent No.5 and Mr.Vaghela for some of the private respondents, who were granted licences prior to commencement of the election programme and for some of the respondents who were granted licences after commencement of the election programme. The other respondents have been served by public notice, but they have not appeared.
Learned AGP, during the course of hearing, has produced order dated 28.12.2012 passed by the Director in exercise of power under Rule 4 for fixation of the date of election and for various stages of election and appointment of Authorized Officer. The said document is taken on record.
6. In our view, as such the following facts are not in dispute:
(i) Director of Agriculture Marketing and Rural Finance, respondent No.2 herein, has exercised the power under Rule 4 on 28.12.2012. He has fixed different stages of election on that day. He has also directed for publication of election programme and has made appointment of Authorized Officer. On 31.12.2012, respondents No.93 to 154 have been granted liicences and, therefore, it can be said that they have acquired capacity as traders holding general licence only on 31.12.2012.
Respondents No.6 to 76 have been granted licences by the Market Committee on 02.07.2012, whereas respondents No.77 to 92 have been granted licences by the Market Committee on 01.10.2012. Hence, it can be said that respondents No.6 to 92 were already granted licences prior to commencement of election process on 28.12.2012.
7. In our view, two points are required to be considered and examined:
whether respondents No.6 to 92 could be said to have been wrongly included in the voters list or not; and
(ii) whether it can be said that the Authorized Officer has power, authority or jurisdiction to include the names of respondents No.93 to 154 in the voters list or not.
8. We find it proper to decide the second point at the first instance. In our view, this issue is already covered by the decision of this Court in case of Dolatbhai Prabhubhai Dumaniya (supra). In the said decision, it was observed in para 8 to 27 as under:
8. The only point to be considered and decided in the present group of petitions is about the relevant date from which the process of election could be said to have started, whether the date on which the Director published the election programme as per Rule 4(1) of the Rules or the date fixed by the Director for the stages of election under Section 10(2) i.e. 21.01.2013.
9.
Since on facts, the publication of election programme by the Director on 09.01.2013 and for publication of one of the stages of the election under Rule 10(2) on 21.01.2013, there is no dispute and such being an admitted position, we need not discuss the said aspect in detail.
10. In order to further consider the controversy as to which could be the relevant date on which the election process can be said to have commenced, we may refer to certain provisions of the Act. Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as 'the Act') provides for constitution of the market committee. It also provides for various constituencies, number of representatives to be elected amongst the voters. Elaborate procedure for holding of the election has been prescribed by the Rules. Part III of the Rules provides for election of the market committees. Rule 4 provides for fixation of the date of election. The same reads as under :
4.
Fixation of date of election.-
Wherever a general election to a market committee or a bye election under section 15 is to be held, the Director shall, by an order in writing, fix a date of such election and publish such order by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area.
Rule 5 provides for different lists of voters. The same reads as under :
5.
Different lists of voters.-
For the purposes of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely:-
(1)under clause (i) of sub-section (1) of section 11 of the Act, a list of members of managing committees of Co-operative Societies (other than Co-operative Marketing Societies) dispensing agricultural credit in the market area;(2)
under clause (ii) of sub-section (1) of section 11 of the Act a list of traders holding general licenses in the market area;(3)
under clause (iii) of sub-section (1) of section 11 of the Act, a list of members of managing committees of Co-operative Marketing Societies situated in the market area holding general licenses.
Rule 7 provides for preparation of list of voters. The same reads as under :
7.
Preparation of list of voters for general election.-(1) Whenever a general election to market committee is to be held :-
(i) every Co-operative society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing committee together with the place of residence of each members;
(ii) the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader; and
(iii) every 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.
to the authorised officer before such date as the Director may by order fix in that behalf :
Provided that the date to be so fixed shall not be later than sixty days before the date of the general election.(2)
The authorised officer shall within seven days from the date fixed under sub-rule (1) cause to be prepared the lists 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.
Every list of voters shall show the full name, place of residence and the serial number of each voter.
Rule 10 provides for various stages of the election and the same reads as under :
10.
Fixing stages of election.-(1) An election shall be held between such hours and on such date and at such places as may be fixed by the Director.
(2)Not less than 40 days before the date fixed for the election under rule 4, the Director shall publish in Gujarati a notice stating :-
(a) the number of persons to be elected by the respective electorate.
(b) the date on which, the place at which and the hours between which nomination papers shall be presented to the Election Officer, such date not being earlier than 14 days from the date of the publication of the notice.
(c) the date on which, the place at which and the hours between which the nomination papers shall be scrutinised.
(d) the date on which, the place at which and the hours between which the votes shall be taken.
(e) the date on which, the place at which and the hours between which the votes shall be counted. (Emphasis supplied appropriately)
11.
The aforesaid shows that the process for holding of the election begins from the procedure to be followed from Rule 4 onwards. The preparation of the voters' list has to begin only after the date is fixed by the Director for holding of the election. At this stage, we may refer to certain observations from the decision of this Court in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd., Patan v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahakari Mandli Ltd., Mehsana and others, reported in 1986 GLH 430 and more particularly, the observations made at paragraph 28, the relevant of which reads as under :
28.
The effect of the conjoint reading of Section 11(1) of the Act with Rules 4, 5, 7, 8 and 10 of the Rules is that there is no escape from the conclusion that the prescribed authorities have to carry out their obligations within the time schedule which is related to the actual date of polling. On plain reading of Rule 4, which is the first provision in the Chapter in Part III of the Rules pertaining to the election of Market Committee, the Director is obliged to fix the date of election. This is necessary because the preparation of the preliminary lists of voters for the different constituencies as envisaged under Section 11 (1)(i) to (iii) for the purposes of such a general election to a Market Committee is linked up clearly with the date of election. To recapitulate, after the date of election is fixed by the Director under Rule 4, the Director has to fix a date before which the particulars as specified in Rule 7 for preparation of primary voters' list in respect of the three constituencies as envisaged under Section 11(1)(i) to (iii) are to be furnished to the Authorised Officer, and such date is not to be later than 60 days before the date of general election. The Authorised Officer is thereafter required to publish the primary list within seven days from the date fixed as aforesaid by the Director. The persons seeking modifications of the voters' list so published have to file their objections within 4 days from the date of the notice publishing the primary voters' list inviting objections in that behalf. The final list prepared on consideration of these objections is also linked up with the date fixed for the nomination of the candidates for the election. The date of nomination in turn cannot be earlier than 14 days from the date of publication of the notice declaring the stages of election. The election programme which is to be declared under Rule 10 specifying the number of persons to be elected by the respective constituencies, the date on which the nominations to be filed, the date of scrutiny of the nominations, and the time, date and place or places at which polling would be held and the votes cast therein would be counted, are to be fixed by the Director by publishing a notice in Gujarati which should be not less than 40 days before the date fixed for election. The conspectus of these rules shows that the entire process of election under the scheme of election of the Market Committee in the Rules is so integrated and revolves round the date of election that it is difficult to agree with the view canvassed on behalf of the petitioners seeking modification of the electoral rolls that the preparation of the electoral rolls is not a part of the election, and the election commences only with the declaration of the programme of election. To state it at the cost of repetition, the first stage contemplated under the scheme of election is the declaration of the date of election by the Director, and having regard to the detailed scheme which we have referred to above, it cannot be otherwise since all the different stages of election have been linked up with the date of election. In that view of the scheme of the Act, we are of the opinion that the preparation of electoral roll is an integral part of the process of election. ...
(Emphasis Supplied)
12. The aforesaid shows that as per the view expressed by the Division Bench of this Court various actions for initiation of process of election begin from the exercise of powers under Rule 4 of the Rules, which in the present case has commenced from 09.01.2013. In the case of Kalubhai Ranabhai Akabari v. State of Gujarat and others, reported in 2007 (3) GLH 57, the Division Bench of this Court had once again an occasion to consider for examining as to which date would be relevant date for the purpose of inclusion of the name of the person in the voters' list. At paragraph 35, it was summed up as under :
35.
To sum up then, our conclusions are as under :-
I. The relevant date for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in sub-rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date -
(i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II.
The only exception to the above general rule is to be found in Rule
6. Hence, if a person, whose name was entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates.
III.
To be eligible for inclusion in the list of voters for elections to APMC, -
(i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.
(iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections.
IV.
Challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Cooperative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.
The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions.
O R D E R Since the respondent-societies were granted registration under the Cooperative Societies Act after the declaration of election program and after the relevant date as discussed in the judgment, the office bearers of these societies were not eligible to be included in the voters' list and, therefore, cannot be permitted to vote at the ensuing elections to APMC, Junagadh.
It is, however, clarified that we have not gone into the merits of the controversy about challenge to registrations granted in favour of the respondent-societies and we have decided the matter on the basis that the respondent-societies were registered under the Cooperative Societies Act on 21.4.2007. The petitions are accordingly allowed. The respondent-authorities shall not permit the members of the managing committees of the three respondent-societies i.e. (i) Sardar Patel Seva Sahakari Mandali Ltd., Village Choki (Sorath), Taluka & Dist. Junagadh, (ii) Sardar Patel Seva Sahakari Mandali Ltd., Village Mandalik, Taluka & Dist. Junagadh and (iii) Sardar Patel Seva Sahakari Mandali Ltd., Village Nana Mota -Avatadia Taluka & Dist. Junagadh, to vote at the ensuing elections to APMC, Junagadh scheduled to be held tomorrow. Rule is made absolute to the aforesaid extent.
At this stage, Mr Mangukia for respondent No.5-societies prays for suspending the operation of this order. In the facts and circumstances of this case, the request is rejected. Direct service is permitted today.
The aforesaid shows that as per the above referred conclusion of the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (supra), to be eligible for inclusion of the name in the voters' list for elections to Agricultural Produce Market Committees, if a society, it should have obtained the registration on the date of declaration of the election. If a person holding general licence for traders, he must have licence on the date of declaration of the election and if a co-operative marketing society, the society should have obtained registration and should have obtained general licence of the market committee on the date of declaration of the election.
Therefore, we will have to examine as to which will be the date to be treated as the declaration of the election and incidentally the question also will have to be examined about the sanctity to be maintained of the election so as to uphold the democratic principles in a free and fair manner.
15. Learned counsel appearing for the petitioners did contend that once a declaration is made by the Director by fixation of various dates of election and he has passed an order under Rule 4 of the Rules for such purpose, such will be the date to be termed as the declaration of the elections. Whereas the learned counsel appearing for the respondents contended that the correct date will be the date for beginning of various stages under Rule 10(1), which in the present case is 21.01.2013 and it cannot be said to have commenced from 09.01.2013 when the Director exercised powers under Rule 4 for fixation of various stages of the election.
16. As observed in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. (supra), the process of election can be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and all stages of elections are so conjoint with the manner and mode of holding of the election, it is not possible for us to find that the process of election cannot be said to have commenced after exercise of powers under Rule 4 of the Rules. There are three reasons for which we are inclined to take the aforesaid view. The first is that Part III of the Rules under the Head Election of Market Committee begins with Rule 4 providing for the power with Director to pass the order in writing for fixation of the dates of the election and for publication of such order passed by him by affixing the copy in market committee as well as at the conspicuous place in the principal market yard. Therefore, it appears that the intention of the legislature to begin with the process of commencement of election is from the stage of Rule 4. The second reason is that all stages, including that of Rules 7 and 10, would be only after the power is exercised under Rule 4 by the Director. Therefore, in absence of any exercise of powers under Rule 4, it cannot be said that the process of election has commenced or that the subsequent stages of the elections, including that of Rules 7 and 10 would accrue. The third reason is that when the Court is to interpret any provisions of statute, it would make a purposive interpretation so as to maintain the sanctity of election. If the interpretation is made that the process of election has not commenced after exercise of powers by the Director under Rule 4, such would leave room for a large number of manipulations to be made at the ensuing election of any market committee. After the declaration of the election programme by exercise of powers by the Director under Rule 4, one can easily tinker with the sanctity of election. e.g. In the case of the Agriculturists' Constituency where the co-operative societies dispensing agricultural credit and their representatives are the voters, new societies can be formed so as to create an artificial majority or minority as may be convenient to the ruling party. If certain societies are created and the show is made as that of functioning by such societies by dispensing agricultural credit, those societies would get themselves included in the voters' list and consequently, a situation may be created which would materially affect the representation to be made from such voters' constituency of agriculturists. Similarly, even in the case of Traders' Constituency, if after publication of the election programme by exercise of powers by the Director under Rule 4, new licences may be issued by the members of the market committee, who are in power so as to create an artificial majority at the ensuing election and a situation may be created which would materially affect the representation to be made from such voters' constituency of Traders. In the same manner, in the case of co-operative societies' constituency, new societies may be formed and or the market committee may issue licences so as to make eligible such societies to be included in the voters' list even after the election is declared.
The aforesaid are only some of the examples of tinkering with the sanctity of election, but there could be number of instances of such types. It is hardly required to be stated that once the election programme is published, the sanctity of the election process must be maintained by all concerned. Any attempt to tinker with the sanctity of the election would adversely affect the maintenance of the democratic principles to be observed in a free and fair manner for holding of the election. Once an election programme is published by fixing various stages of election, it would be known to all concerned that the process of election has already commenced and they should not enter into any act which may result into adversely affecting the process of the election and the smooth course of holding election by maintenance of the democratic principles.
18. In view of aforesaid observations and discussion, we find that it is not possible to accept the contention of the respondents that the election process could not be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and has fixed the various stages of the election and has published the same.
19. Once the process of election has commenced from 09.01.2013, any person getting eligibility after such date can be termed as not entitled to be included in the voters' list. In the same manner, the Authorised Officer will have no authority or competence or jurisdiction to include the names of such voters who have acquired eligibility after 09.01.2013. If the facts of the present case are examined further, in Special Civil Application No.1890 of 2013, the respondent Nos.4, 5 and 6 have obtained licences from the market committee on 11.01.2013. Therefore, the eligibility for inclusion of their names in the voters' list of co-operative societies' constituency could be said to have acquired only on 11.01.2013, which is later to 09.01.2013. Therefore, the eligibility could be said to have acquired for inclusion of their names in the co-operative societies' constituency after the commencement of the process of election.
20. In Special Civil Application No.1891 of 2013, the respondent Nos.4 to 9 have come into existence only on 10.01.2013 since they are registered on 10.01.2013. The said date of registration is also later to the commencement of the process of the election. Under the circumstances, they have acquired eligibility after commencement of the process of election.
21. In Special Civil Application No.1897 of 2013, the respondent Nos.4 to 8 are registered only on 10.01.2013 and the licences have been granted by the market committee on 11.01.2013. As both the dates are later to the commencement of the process of election i.e. 09.01.2013, it could be said that they have acquired the status only after the commencement of the process of election.
As all the aforesaid societies have acquired eligibility after commencement of the process of election i.e. after 09.01.2013, their names or the names of members of the representative of the societies could not have been included in the voters' list by the Authorised Officer. The action of the Authorised Officer, in our view, can be said as wholly without jurisdiction.
We may also record that there are allegations made by the petitioners in the petitions that after commencement of the process of election only with a view to have artificial majority, the group which is in power in the market committee, has got such societies registered and or the licences have been issued by the market committee by circular resolution though not warranted under Rule 35. It was submitted that such procedure for circular resolution for issuance of licence is unknown to Rule 35 of the Rules. In our view, once there was no jurisdiction with the Authorised Officer to include the names of those persons who acquire eligibility after the election programme was declared, we need not examine the allegation further, except observing that be it the group having majority in the market committee or be it the group having minority in the market committee, none can be permitted to tinker with the sanctity of the election and/or to frustrate democratic principles to be observed in a fair and free manner at the election.
The attempt was made by the learned counsel appearing for the respondent to contend that once the process of election has begun, this Court in exercise of powers under Section 226 of the Constitution may not interfere with the election and the petitioners may have the remedy, if available, after the election is over as per Rule 28 of the Rules. In our view, the said contention is answered in the decision of this Court in the case of Kalubhai Ranabhai Akbari (supra) and more particularly, the observations made in paragraph 32 of the said decision. We may also refer to another decision of this Court in the case of Shrutbandhu H. Popat v. State of Gujarat and others, reported in 2007 (3) GLR 1942 and the observations made at paragraphs 27 to 29, which read as under :
27.
We may now deal with the decision of the Full Bench heavily relied upon by Mr. B. S. Patel for the APMC in Daheda Group Seva Sahakari Mandali Limited (supra) decided on 27.4.2005. The following questions were referred to the Full Bench in the context of elections to the APMCs and the scope of Rule 28 of the APMC Rules constituting the Election Tribunal for deciding disputes relating to elections to APMCs:
I. Whether a person whose name is not included in the Voters' List can avail provisions of Rule 28 of the rules by filing election petition?
Whether the remedy under Rule 28 can be termed to be efficacious remedy?
Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the Voters' List? After considering various decisions of the Apex Court and also the decisions of various Benches of this Court, the Full Bench answered the Reference as under:
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.
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. Reading the entire decision of the Full Bench reveals that the question in the context of which the Full Bench was called upon to consider the controversy about maintainability of the petition was whether a member of the Managing Committee of a particular cooperative society was entitled to vote in his capacity as a member of the managing committee of such cooperative society and not merely by virtue of inclusion or deletion of his name in/from the voters list. The contention of the authorities in the said case was that the election petition under Rule 28 provides remedy for resolution of all facets of the dispute as to whether the name of a person being the member of the Managing Committee of a particular cooperative society should be permitted to participate in the election if he ceases to hold the post on the date of the election program. Similarly the question whether a particular cooperative society is dispensing agricultural credit or not would be ordinarily be a disputed question of fact. There cannot, therefore, be any dispute with the proposition that ordinarily the exclusion or inclusion of names from/in the voters' list can be challenged in an election petition under Rule 28 of the Rules, after the elections are held. But the Full Bench also held that the powers of this Court under Article 226 of the Constitution may be exercised in case of extraordinary or special circumstance such as where the order is ultra vires or nullity and/or exfacie without jurisdiction. The Full Bench also followed the principles laid down by the Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216 and Manda Jaganath vs. K S Rathnam, AIR 2004 SC 3600 laying down that any decision in the election process is open to judicial review on the ground of mala fide or arbitrary exercise of powers and that special situation justifying exercise of writ jurisdiction would mean correcting an error having the effect of interfering in the free flow of the scheduled election or error having the effect of hindering the progress of election.
After the above decision of the Full Bench rendered on 27.4.2005, in Pundlik vs. State of Maharashtra, decided on 25.8.2005 and reported at 2005 (7) SCC 181, the Apex Court held that though preparation of list of voters is one of the stages of election and that normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters, but such action must be in accordance with law. In the said decision, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Santha vs. State of Maharashtra, 2001 (8) SCC 509. In Shri Sant Sadguru's case objections against publication of provisional electoral roll of the Society were filed which were considered by the Collector and disposed of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the election program and the Apex Court held that the High Court should not stay continuation of the election process even though there may be some alleged irregularity or breach of the Rules while preparing the electoral roll. However, in the Pundlik case, the original petitioner had taken immediate action on receiving the fax message from the Collector.
25. Hence, when the action is ultra vires to the power or nullity or ex-facie without jurisdiction, which is in the present case as that of Authorised Officer, we find that it would be an extraordinary or special circumstance which would call for interference in exercise of powers under Section 226 of the Constitution to maintain sanctity of the election and more particularly, for maintenance of sanctity of the election to be held, by upholding the democratic principles in a free and fair manner.
The attempt was made by the learned counsel for the respondent to rely upon another decision of this Court dated 08.10.2012 in Special Civil Application No.15038 of 2010 for contending that the relevant date should be 21.01.2013, which is the date for the first stage of election programme. The perusal of the said decision shows that it was the matter where the names of the members of the managing committee were to be altered, otherwise the societies were already there in the voters' list. Principally, the society would be the voter, but since it has to act through members of the managing committee, the members of the managing committee are to be included in the voters' list being the members of the managing committee of that society, which has obtained licence or which is entitled to be included in the voters' list. It was not a matter where the names were to be included of the society as well as of the members of the managing committee for the first time after declaration of the election programme in exercise of powers under Rule 4 of the Rules. Hence, the fact situation in the said case being different, the said decision would not be applicable to the facts of the present case.
27. In view the aforesaid observations and discussion, we find that the impugned action of inclusion of names of the aforesaid concerned societies in all the petitions, which have acquired the eligibility after declaration of the election programme on 09.01.2013, could be said as without authority, jurisdiction and ultra vires to the powers of the Authorised Officer. Hence, the said action of the Authorised Officer to include the names of such societies in the voters' list of the respective constituency is quashed and set aside with further clarification that as a consequence of the aforesaid direction, those persons who are included in the voters' list as members of the market committee of the aforesaid societies shall not be entitled to cast their votes at the ensuing election of Agricultural Produce Market Committee, Vadhwan. The petitions are allowed to the aforesaid extent. Considering the facts and circumstances of the case, no order as to costs. The learned Assistant Government Pleader has undertaken to convey the present order to the Authorised Officer.
9. If the facts of the present case are examined in light of the above-referred legal position, it is clear that the election process has commenced from 28.12.2012 and after commencement of the election programme, on 31.12.2012 licences have been granted by office bearers of the Market Committee to respondents No.93 to 154. Similar is the allegation in the present case that licences have been granted to create artificial majority at the ensuing election in the traders constituency by office bearers of the Market Committee with mala fide intention. It is also contended that if such action is permitted, may be at the instance of the Market Committee or by the action or inaction of the Authorized Officer, it would result into adversely affect the sanctity of the election and consequently would adversely affect the election to be held by upholding the democratic process in a free and fair manner. We, therefore, find that when respondents No.93 to 154 have acquired their status as licence-holders after commencement of the process of election, the action of the Authorized Officer to include the names of respondents No.93 to 154 would be ultra vires to his power, without authority and jurisdiction. Therefore, the said action deserves to be quashed and set aside, with the clarification that respondents No.93 to 154, whose names are included in the voters list in the traders constituency, shall not be entitled to cast their votes in the ensuing election of Agriculture Produce Market Committee, Bhuj.
10. The aforesaid shall take care of Point No.2 to be considered and decided in the present matter.
11. However, so far as Point No.1 is concerned, contention was raised by learned counsel for the petitioner that, as per the decision of this Court in the case of Kalubhai Rananbhai Akabari v. State of Gujarat reported in 2007 (3) GLH 57, and more particularly the observations made at para 35 which is also considered in the above-referred judgment. As per the petitioner, one who has been granted licence by APMC must show that he has commenced business as a trader. Therefore, it was submitted that even if it is considered that respondents No.6 to 92 were granted licence prior to commencement of the process of election, their names can be included in the voters list of traders constituency only if the Authorized Officer is satisfied that such traders had commenced business as traders and such commencement of business has to be prior to commencement of the process of election, i.e. 28.12.2012. On behalf of the Market Committee and such traders, it was submitted by learned counsel Mr.Ashish Shah and Mr.Vaghela that the Market Committee, after verifying all aspects, had granted licences and such licences were granted prior to commencement of the process of election. The traders had already commenced their business pursuant to the licences granted to them and, therefore, their names are rightly included in the voters list. It was also submitted that, after filing of objections, the petitioner did not remain present before the Authorized Officer and the Market Committee had submitted its report and after consideration of the said report of the Market Committee, the Authorized Officer has rejected the objections. Learned counsel Mr.Dipen Desai, appearing for the petitioner, contended that intimation is said to have been forwarded to the petitioner by the Authorized Officer, but uptill now such intimation is not received. Therefore, the person who had filed the objection, who is one of the petitioners, could not point out all the relevant aspects. He submitted that even if no one was present, it was obligatory on the part of the Authorized Officer to verify from the record whether commencement of business was prior to commencement of the process of election or not. But said verification is not made and, therefore, the Authorized Officer has committed error.
12. In our view, whether the person concerned had commenced his business immediately after obtaining licence or prior to commencement of the process of election or not would be essentially a question of fact which cannot be conveniently gone into by this Court in a petition under Article 226 of the Constitution. Further, for such disputes, proper remedy would be an election petition under Rule 28 after process of election is over. It is only in case where this Court finds that the action was ultra vires to the power on the admitted facts or facts by record, this Court may consider in a petition under Article 226 of the Constitution without disturbing the election process. Considering the controversies involved as regards eligibility of respondents No.6 to 92, we find that the same cannot be decided on the record available, and the petitioner, if so advised, may raise the dispute by appropriate election petition after the process of election is over.
13. In view of the aforesaid observations and discussion, the impugned action of the Authorized Officer, respondent No.4 herein, for inclusion of the names of respondents No.93 to 154 in the voters list at the ensuing election of APMC, Bhuj is quashed and set aside and the decision of the Authorized Officer in rejecting the objections to that extent is also quashed and set aside. It is also clarified that, as a consequence of the aforesaid direction, respondents No.93 to 154, whose names are included in the voters list as traders in the traders constituency of the Market Committee, shall not be entitled to cast votes in the ensuing election of APMC, Bhuj.
14. However, so far as inclusion of the names of respondents No.6 to 92 in the voters list is concerned, the petition is not entertained, but with the observation that the petitioner may resort to appropriate remedy of preferring an election petition after the process of election is over, if otherwise permissible in law.
15. The petition is partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. Learned AGP has undertaken to communicate this order to the Authorized Officer, who is present in the Court. Direct service is permitted.
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( JAYANT PATEL, J.) Sd/-
( MOHINDER PAL, J.) (KMGThilake) Page 25 of 25