Gujarat High Court
The Kurali Vividh Karyakari Sahkari ... vs Authorized Officer And Co-Operative ... on 27 June, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/11813/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11813 of 2017
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THE KURALI VIVIDH KARYAKARI SAHKARI MANDALI LTD.....Petitioner(s)
Versus
AUTHORIZED OFFICER AND CO-OPERATIVE OFFICER &
1....Respondent(s)
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Appearance:
MR DILIP B RANA, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR VENUGOPAL PATEL, AGP for the Respondent No.1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 27/06/2017
ORAL ORDER
1. The petitioner society, by way of the present petition, has challenged the impugned order dated 16.6.2017 passed by the respondent Authorized Officer for not including the name of the petitioner Society in the voters' list of the agriculturists constituency published on 16.6.2017 in respect of the election of Agriculture Produce Market Committee, Karjan (hereinafter referred to as "the APMC, Karjan").
2. It is the case of the petitioner society that it was registered on 19.5.1925 and had participated in various elections of APMC, Karjan. The last Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Aug 20 05:02:16 IST 2017 C/SCA/11813/2017 ORDER election of APMC, Karjan was held in 2013. The Director, in exercise of the powers conferred under Rule 4 of the Agricultural Produce Markets Rules, 1965 (hereinafter referred to as "the said Rules") had declared the election programme of the APMC, Karjan on 12.5.2017 as per Annexure-B. Though the petitioner society had supplied the requisite information and documents for inclusion of the names of the Committee members of the petitioner society for the agriculturist constituency, the names of the Committee members of the petitioner society were not included in the preliminary voters' list published on 26.5.2017. The petitioner society, therefore, submitted a representation to the authorized officer on 9.6.2017 to include the names of the Committee members of the petitioner society in the voters' list, however, the authorized officer passed the impugned order rejecting the representation of the petitioner society. The petitioner, therefore, has challenged the said order of the authorized officer by way of the present petition.
3. The petition has been resisted by the respondents by filing the affidavit-in-replies contending inter alia that the petitioner society was not qualifying as per the criteria laid down in Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the said Act"), as there was no evidence to show that the petitioner society had dispensed the Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Aug 20 05:02:16 IST 2017 C/SCA/11813/2017 ORDER agricultural credit as contemplated in Section 11(1)(i) of the said Act. It is also stated that the impugned order has been passed by the authorized officer after following the principles of natural justice and in accordance with law, and therefore may not be interfered with.
4. The learned Advocate Mr.Dilip Rana for the petitioner submitted that the authorized officer has acted arbitrarily by not including the names of the committee members of the petitioner society on the alleged ground that the petitioner society had not dispensed agricultural credit, ignoring the documents produced by the petitioner to show that there was a recovery made by the petitioner society towards the loan amount already advanced to the members of the society during the period 2016-17. Placing reliance on the decision of the Division Bench of this Court in case of Varsada Vividh Karyakari Sahakari Mandali Ltd. Vs. State of Gujarat thro. Secretary, Director, Election Officer and District Registrar, Authorized Officer and the Cooperative Officer (Legal), reported in 2013 GLHEL-HC 229017, he submitted that the dispensation of credit would include the action of recovery of the loan already granted.
5. However, the learned AGP Mr.Venugopal Patel for the respondent No.2 submitted that as per the audit report of the petitioner society, there was no agricultural credit dispensed by the Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Aug 20 05:02:16 IST 2017 C/SCA/11813/2017 ORDER petitioner society. According to him, the auditor had observed that the dispensation of the credit activities was completely closed down and as per the bye-laws of the petitioner society, if the dispensation of the credit activities was not started, corrective measures would be taken by the competent authority. If there was no dispensation of credit since last seven years, alleged recovery shown by the petitioner society was not genuine. Mr.Patel has relied upon the judgement of 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 dt. 27.4.2005) to submit that once the election process has started, the Court normally should not interfere with the same.
6. Having regard to the submissions made by the learned Advocates for the parties and to the documents on record, it appears that the name of the petitioner society and its members of the managing committee have not been included in the voters' list of agriculturists constituency by the authorized officer mainly on the ground that the petitioner society had not dispensed agricultural credit since last six to seven years in the market area as contemplated under Section 11(1)(i) of the said Act. Though it is sought to be submitted by the learned Advocate for the petitioner that the petitioner society had made Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Aug 20 05:02:16 IST 2017 C/SCA/11813/2017 ORDER recovery of the loan amount already granted to its members, the said recovery has been disputed by the learned Advocates for the respondents on the ground of being not genuine recovery. The Court, under the circumstances, is not inclined to interfere with such disputed questions of facts. Suffice is to say that the authorized officer has recorded that there was no actual dispensation of agricultural credit by the petitioner society since last five years, and that the petitioner society had not carried out activities as required under Section 11(1)(i) of the said Act. It is needless to say that the inclusion or exclusion of the names in the voters' list would be a disputed question, which can be agitated by the petitioner society by filing appropriate proceedings before the Director as contemplated in Rule 28 of the said Rules. At this juncture, a very pertinent observations made by the Full Bench in case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing)(supra) are also required to be reproduced :-
"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 Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Aug 20 05:02:16 IST 2017 C/SCA/11813/2017 ORDER 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."
7. In view of the above, the petition being devoid of merits is dismissed.
(BELA M. TRIVEDI, J.) vinod Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Aug 20 05:02:16 IST 2017