Gujarat High Court
Shree Vanthali Taluka Co.Operative ... vs State Of Gujarat & 5 on 23 March, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/4501/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4501 of 2017
With
SPECIAL CIVIL APPLICATION NO. 4502 of 2017
With
SPECIAL CIVIL APPLICATION NO. 4503 of 2017
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SHREE VANTHALI TALUKA CO.OPERATIVE PURCHASE AND SALE UNION
LTD.....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR. ZALAK B PIPALIA, ADVOCATE for the Petitioner(s) No. 1
MR. UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR ASHISH H SHAH, ADVOCATE for the Respondent(s) No. 5
MR JINESH H KAPADIA, ADVOCATE for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 23/03/2017
COMMON ORAL ORDER
1. Draft amendment as prayed for is granted. Learned counsel for the petitioner is directed to carry out the amendment forthwith.
2. All the three petitions having similar issues, were heard together and are being decided by this common order. For the sake of convenience, the facts of Special Civil Application No. 4501 of 2017 are referred.
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3. By way of present petitions, the petitioner who is the same in all the three petitions, has challenged the impugned order dated 20.02.2017 passed by the respondent No. 4 rejecting the objections raised by the petitioner against the inclusion of the names of the members of the respondent No. 6 Society in the provisional voters' list for the election of Agricultural Market Product Committee, Vanthali.
4. During the pendency of the petitions, the respondent No. 4 - Authorized Officer having published the final voters' list on 03.03.2017, wherein the names of members of Managing Committee of the respondent No. 6 Society have been included, the petitioner had sought amendment in the prayer clause.
5. The short facts are that the Director - respondent No. 2 had issued the notification on 21.01.2017, declaring the election programme for the three constituencies i.e. Agricultural Constituency, Traders Constituency and Cooperative Marketing Society, of the Agricultural Market Produce Committee, Vanthali. Pursuant to the said notification, the petitioner Society had written a communication dated 24.01.2017 to the Election Officer, informing about the names of the members of Managing Committee of the petitioner Society so as to include their names in the voters' list. The provisional voters' list was prepared on 02.02.2017 under the provisions contained in the Gujarat Agricultural Produce Market Rules, 1965 Page 2 of 9 HC-NIC Page 2 of 9 Created On Mon Aug 14 01:16:37 IST 2017 C/SCA/4501/2017 ORDER (hereinafter referred to as 'the said Rules'), however, the names of members of Managing Committee of the petitioner Society were not included and the names of the members of Managing Committee of the respondent No. 6 Society were included. The petitioner Society therefore raised objections against the said provisional list by sending the communication dated 13.02.2017 to the Authorized Officer, alleging inter alia that the Chairman of the respondent No. 6 Society had misused his powers in granting the licences to his own society. The Authorized Officer thereafter granted opportunity of hearing to the petitioner Society and rejected the said objections raised by the petitioner vide the impugned order, and therefore, the petitioner has filed the present petitions.
6. It is sought to be submitted by the learned counsel Mr. Zalak Pipaliya for the petitioner that the respondent No. 6 society was registered on 28.03.2016 and had called the ordinary meeting on 29.03.2016 which was not in consonance with bye-laws of the society. He also submitted that the said society was issued the licence within very short time of 2-3 days of its registration as the Chairman of the respondent No. 6 Society was also the Chairman of APMC. According to Mr. Pipaliya, the licence for the year 2015-16 was granted to the respondent No. 6 Society on 31.03.2016 and that licence of year 2016-17 was issued on 01.06.2016, and that the licence was denied to the petitioner Society. Placing heavy reliance on the Page 3 of 9 HC-NIC Page 3 of 9 Created On Mon Aug 14 01:16:37 IST 2017 C/SCA/4501/2017 ORDER decision of the Supreme Court in the case of Election Commission of India v. Ashok Kumar and others, reported in 2000 (8) SCC 216, he submitted that when the statutory body like APMC acts in mala fide and arbitrary manner in issuing licences to the respondent No. 6, the same should be inquired into by the authorized officer before publishing the preliminary and final voters' list. Mr. Pipaliya also relied upon the decision of this Court in the case of Shrutbandhu H. Popat versus State of Gujarat reported in 2008 (1) GLH 575 in support of his submission that the cancellation of licence of respondent No. 6 would take long time, and therefore, the present petition challenging the action of the Authorized Officer would be maintainable. However, the learned advocate Mr. Ashish S Shah appearing for the respondent No. 5 and the learned advocate Mr Jinesh H. Kapadia appearing for the respondent No. 6 have supported the decision of the Authorized Officer rejecting the objections raised by the petitioner and submitted that the petitioner had never challenged the licences issued to the respondent No.6. The learned advocate relied upon the decision of Division Bench of this Court in the case of Patel Narendrakumar Kanjibhai versus State of Gujarat and others decided on 10.12.2014 in Special Civil Application No. 6415 of 2014 to submit that the Authorized Officer while preparing the voters' list, has no authority / jurisdiction to decide about the legality and validity of the licences issued by the market committee.
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7. Having regard to the submissions made by the learned advocates for the parties and to the documents on record, it appears that the only objection raised by the petitioner against the inclusion of the names of the members of Managing Committee of the respondent No. 6 Society was that the Chairman of APMC was also the Chairman of respondent No. 6 - Society, who had misused his powers in issuing the licence to the respondent No. 6 Society for the years 2015-16 and 2016-17. In this regard, it will be pertinent to mention that APMC had issued the licence to the respondent No. 6 Society for the year 2015-16 on 31.03.2016 and for the year 2016-17 on 01.06.2016. The petitioner had sufficient time to challenge the said licences issued to the respondent No. 6 Society before the competent authority under the APMC Act, however, the petitioner has not challenged the same till this date. The election was declared by the Director on 17.01.2017 and after the publication of preliminary voters' list including the names of the members of Managing Committee of respondent No. 6 Society, the petitioner had raised the objection contending inter alia that the licences issued to the respondent No. 6 Society for the year 2015-16 and 2016-17 were not proper and the Chairman of the respondent No. 6 Society had misused his powers.
8. In the opinion of the Court, the issue whether the authorized officer could consider the legality of the licence issued to the society or not, is no more res integra in view of the various decisions of this Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Aug 14 01:16:37 IST 2017 C/SCA/4501/2017 ORDER Court. The Division Bench in the case of Patel Narendrakumar Kanjibhai, while relying upon the earlier decision in the case of Shrutbandhu H Popat (supra) and Kalubhai Ranabhai Akabari versus State of Gujarat and Ors. reported in 2007(3) GLH 57, has held that while preparing the voters' list, the Authorized Officer has no authority and/or jurisdiction to consider the legality and validity of the licences issued by the Market Committee. Under the circumstances, the respondent No. 4 - Authorized Officer has rightly rejected the objections raised by the petitioner on the issuance of licence of the respondent No.6.
9. It is pertinent to note that the Supreme Court in the case of Election Commission of India versus Ashok Kumar and others (supra), has laid down the guidelines in which it has been specifically observed that if an election which includes 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. Mr. Pipaliya has also failed to pointed out any mala fide or arbitrary exercise of powers at the instance of the respondent No. 4 - Authorized Officer.
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10. There is also one more reason with the Court for not entertaining the present petition. It is not disputed that there is an alternative efficacious remedy available to the petitioner under Rule 28 of the APMC Rules. 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 GCD-1-211) (Civil Application No.2489 of 2005 and Anr. dt. 27.4.2005) and the Full Bench had categorically answered the Reference 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 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 Page 7 of 9 HC-NIC Page 7 of 9 Created On Mon Aug 14 01:16:37 IST 2017 C/SCA/4501/2017 ORDER 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."
11. The Supreme Court in the case of Shaji K. Joseph versus V. Viswanath reported in (2016) 4 SCC 429, has held as under : -
"15. In our opinion, 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 programme on 27.1.2011 and more particularly when an alternative statutory remedy was available to Respondent 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. So far as the issue with regard to eligibility of Respondent 1 for contesting the election is concerned, though prima facie it appears that Respondent 1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that 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 the 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 Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Aug 14 01:16:37 IST 2017 C/SCA/4501/2017 ORDER 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."
12. In view of the aforestated legal position, the present petitions deserve to be dismissed and are accordingly dismissed.
(BELA M. TRIVEDI, J.) Amar Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Aug 14 01:16:37 IST 2017