Gujarat High Court
Sardar Seva Sahakari Mandali Limited vs State Of Gujarat & 4 on 16 June, 2015
Bench: Jayant Patel, Rajesh H.Shukla
C/SCA/9733/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9733 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9734 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9738 of 2015
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SARDAR SEVA SAHAKARI MANDALI LIMITED,
(UMRALA)....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR. R.D.KINARIWALA, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 16/06/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. We have heard Mr.Pipaliya, learned counsel for Mr.Kinariwala for the petitioner and Mr.Patel, learned AGP appearing for the State and its authorities upon advance copy and Mr. Rachh, learned counsel has tried to intervene in the proceedings by contending that he has instructions to appear for one of the voter Rambhai Akbari.
2. As such, this Court on 11.06.2015, in similar identical situation, in SCA Nos.8863/15 and allied matters, had passed the following order "1. We have heard Mr.Desai,, learned Counsel Page 1 of 5 C/SCA/9733/2015 ORDER for the petitioners, Ms.Manisha L. Shah, learned Government Pleader for the respondent State and Mr.Anshin Desai, learned Counsel for respondent No.5.
2. It prima facie appears that the authorized officer, while excluding the names, was guided by the consideration that the Societies did not take loan from the District Cooperative Bank or did not get sanction from the District Cooperative Bank for loan and, therefore, the transactions of agricultural credit are not believed.
3. As per the petitioners, the agricultural credit has been rendered in the earlier year, the accounts are audited, but the funds were generated from its own source, including the loan taken from the officer- bearers of the Societies. It was submitted that once the agricultural credit was rendered, the requirement for eligibility could be said as satisfied under the APMC Act read with the Rules for inclusion in the constituency as voters.
4. In our prima facie view, once the agricultural credit as per the Books of Accounts of the Societies is rendered, the authorized officer has no jurisdiction to go beyond the same for genuineness of the agricultural credit or for examining the aspect as to whether the funds were generated by the Societies rightly or not or whether the loan was taken or not. It is by now well settled that when the authority has gone beyond his jurisdiction, resulting into creating a situation that the right is foreclosed for all time to come, it would be an extraordinary case, which may call for interference in a petition under Article 226 of the Constitution. As on today, the names of the petitioner Societies are excluded from the voters list on the action taken by the authorized officer, which is prima facie beyond his jurisdiction and hence, we find that if the interference Page 2 of 5 C/SCA/9733/2015 ORDER is not made at this stage, the right will be lost for all time to come. At the same time, if the names are included in the voters list and the members of the managing committee of the petitioner societies are permitted to participate in the ensuing election, the same can be made, subject to the final decision of this Court in the present petitions, if ultimately found that the names were rightly excluded.
5. Hence, the following orders:-
(a) Rule returnable on 8.7.2015.
(b) By ad-interim order, operation of the order passed by the authorized officer, excluding the names of the respective petitioner Societies from the voters list at the ensuing election of APMC, Junagadh is stayed and suspended. It is clarified that consequently, the names of the members of the managing committee of the respective petitioner societies will be required to be included in the voters list and they would be entitled to participate in the election, subject to the final order, which may be passed by this Court in the present petitions at the time of final hearing."
3. In view of the aforesaid, as the facts are identical and even the impugned order which was subject matter of the above referred SCA No.8863/15 and allied matters, was also the same and identical, similar order deserves to be passed.
4. However, Mr.Rachh, learned counsel for one of the voter, as objector, contended that the respective petitioners did not challenge the order earlier and they were awaiting outcome of SCA No.8863/15 Page 3 of 5 C/SCA/9733/2015 ORDER and allied matters and therefore, it was submitted that this Court may not grant the relief.
5. Had it been a case where material stages of election had passed over, it might stand on different footing and different consideration, but on the contrary, the perusal of the election programme at AnnexureC shows that uptil now, the stage has reached only of the publication of the final voters list which is over on 19.05.2015 and the same was the fact situation when this Court passed the order on 11.06.2015 in SCA No.8863/15 and allied matters. The next stage in the election is for filing of the nomination papers is scheduled on 18.06.2015, which has not reached till today. Under these circumstances, we do not find that there is valid ground for departure or to take a different view than as was taken by this Court in SCA No.8863/15 and allied matters vide order dated 11.06.2015. We may also record that the main contesting party is the authorised officer who is also represented by the Asst. Govt. Pleader and the stand of the authorised officer is already reflected in the impugned order. Therefore also, no departure deserves to be made from the view taken earlier.
6. Hence, the following order
a) Rule returnable on 08.07.2015.
b) By ad interim order, the operation of the Page 4 of 5 C/SCA/9733/2015 ORDER order passed by the authorised officer, excluding the name of the respective petitioner societies from the voters list at the ensuing election of APMC, Junagadh is stayed and suspended. It is clarified that consequently, the names of the members of the managing committee of the respective petitioner societies will be required to be included in the voters list and they would be entitled to participate in the election, subject to the final order, which may be passed by this Court in the present petitions at the time of final hearing
7. D.S. permitted.
8. Mr. Patel, learned AGP states that the order will be conveyed by him to the concerned officer.
(JAYANT PATEL, J.) (RAJESH H.SHUKLA, J.) bjoy Page 5 of 5