Gujarat High Court
Sardar Vallabhbhai Patel vs State Of Gujarat & on 2 April, 2013
Author: Jayant Patel
Bench: Jayant Patel
SARDAR VALLABHBHAI PATEL....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/2525/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2525 of 2013 With SPECIAL CIVIL APPLICATION NO. 2526 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL ================================================================ 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 ? ================================================================ SARDAR VALLABHBHAI PATEL....Petitioner(s) Versus STATE OF GUJARAT & 4....Respondent(s) ================================================================ Appearance: MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 MR PK JANI GOVERNMENT PLEADER with MR DHAWAN M.JAYSWAL AGP for the Respondent(s) No. 1-4 MR BHARAT T RAO, ADVOCATE for the Respondent(s) No. 5 Mr.N.D.Nanavati, senior counsel appearing with Mr.Devang Vyas, ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 02/04/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) As in both the matters, common questions arise, they are being considered simultaneously.
The petitioner, by this petition, challenges an order dated 22.2.2013 passed by the Authorized Officer, respondent No.4 herein, to exclude the name of the petitioners from the voters list of Agriculture Constituency at the ensuing election of Agriculture Produce Market Committee, Botad (herein after referred to as the Market Committee ).
The short facts are that election of Market Committee had become due and therefore, the Director, respondent No.2, in exercise of powers under Rule 4 of the Gujarat Agriculture Produce Market Rules (herein after referred to as the Rules ) had declared election program and various stages of election were declared. As per election program, the process was to begin from 9.9.12. The second stage was for giving instructions by the Authorized Officer on 9.9.2012. So, third stage under Rule 7, to provide information to the Authorized Officer for the voters list was fixed on 18.9.2012. On 25.9.2012, the objections against the preliminary publication of the voters list were to be invited within 7 days as per Rule 7(2). Thereafter, on 8.10.2012, the objections against addition or alteration of the preliminary voters list as well as publication of the same was to be made as per Rule 8(1) [herein after referred to as First Voters List]. The process of election had continued up to that date but on 10.10.2012, on account of the election of legislative assembly, the election of Market Committee was postponed. It appears that thereafter, as the election of legislative assembly was over, once again, the Director, respondent No.2, in exercise of power under Rule 4 declared various stages of the election from the stage where it had stopped. As per the revised election program, the process begun from the stage of 11.2.2013 which was the date fixed for republication of the preliminary voters list. The objections against re-publication of the preliminary voters list [herein after referred to as Second Voters List] were to be submitted on or before 18.2.2013. The objections were filed against the inclusion of the names of the office bearers of the petitioners-Societies in the second voters list on the ground that one person has become Member in more than one Co-operative Society and he is also Member of the Managing Committee and as a result thereof, the names appear in the voters list on more than one time being the representatives of the respective Co-operative Society and therefore, their names should be excluded or deleted from the voters list. The Authorized Officer passed the impugned order; whereby, he found that if one is permitted to be included as the representative of more than one Co-operative Society, there may be artificial majority and therefore, he decided to accept the objections and the names of the office bearers of petitioners- Societies were excluded from the voters list of Agriculture Constituency. It is under these circumstances, the petitioners have approached to this Court by preferring these petitions.
We have heard Mr.Dipen Desai learned counsel appearing for both the petitioners. We have heard Mr.P.K.Jani, learned Government Pleader appearing for State Authorities including Authorized Officer. Mr.B.T.Rao appearing for respondent No.5 and Mr.N.D.Nanavati, learned senior counsel appearing with Mr.Devang Vyas, for the applicant in Civil Application Nos. 3718 and 3721 of 2013, who are stated to have filed their nominations for contesting at ensuing election of the Agriculture Constituency of the Market Committee and who are permitted to be impleaded as a party in the present special civil applications.
Learned counsel for the petitioners mainly relied upon the decision of this Court in case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd. V/s. Authorized Officer & Co.Operative Officer Attached to the Market reported in 2012 (1) GLR 742 and contended that once the names were already included in the preliminary voters lists and in first voters list, the objections, if any, can be submitted only against new names included in second voters list. It was submitted that as per the scheme of Rule 8(1A), the Authorized Officer has no jurisdiction to exclude the name of the voters who are already included in the first voters list. It was submitted that first voters list was published on 25.9.2012 and thereafter, the second voters list was published on 8.10.2012 and the very list was published on 11.2.2013 and as the name of the representatives of the petitioners-Societies were already included in the first list as well as in the second list, the Authorized Officer has no jurisdiction to entertain the objections under Rule 8(1A) and to exclude the names of the representative of the petitioners-Societies. He submitted that the same view is taken by this Court in the aforesaid decision of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd.(supra). Learned counsel further submitted that the issue is already covered and decision of the Authorized Officer be set aside and relief, as prayed for, be granted.
Whereas on behalf of the respondent, it was submitted by Mr.N.D.Nanavati learned senior counsel appearing for the applicant in Civil Application Nos.3718 of 2013 and 3721 of 2013 that the Division Bench of this Court in case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd.(supra) had no occasion to consider the decision of Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited V/s. R.D.Rohit, Autho.Officer & Co. Operative Officer (Marketing) reported in 2006 (1) GCD Page 211 and while answering the reference at paragraph No.33(iii) the Full Bench has observed that the exclusion or inclusion of the names of 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 the Election Petition under Rule 28 of the Rules and therefore, this Court may not interfere at this stage and may relegate the petitioners to the remedy of the election petition under Rule 28 of the Rules. It was also submitted that considering the issue involved, if one person is permitted to become Member of more than one Co-operative Society, the election may be monopolized which will be against the democratic principles and therefore also, this Court may decline to entertain the petition at this stage.
Whereas, Mr.P.K.Jani, learned Government Pleader submitted on behalf of the respondents-Government Authorities that the bye-laws prohibit for becoming Members in more than one Primary Level Co-Operative Society and in-spite of the same, the representatives of the petitioners-Societies have got themselves admitted as a Member in the Society and therefore, they assumed the office as the office bearers of the Society illegally hence, such person should not be entrusted with the writ of this Court because if such person are entrusted with the writ of this Court, it would result into monopolization at the election of the Market Committee. It was submitted that the Authorized Officer keeping in view that one cannot be Member in more than one Co-operative Society has exercised the power which this Court may not interfere. It was submitted by learned counsel Mr.N.D.Nanavati as well as Mr.P.K.Jani, learned Government Pleader that the rights at the election are statutory rights and for ventilating grievance of the breach of such statutory right, the parties should be relegated to the election petition and this Court may not interfere in the election in exercise of the power under Article 226 of the Constitution. Mr.Jani in support of the said contention, did rely upon the decision of Full Bench in case of Daheda Group Seva Sahakari Mandli Limited (supra). It was submitted by learned counsel for respondents that the position of law is settled since the decision of the Apex Court in case of N. P. Ponnuswami v. Returning Officer, Namakhal Constituency, Namakkal, Salem Dist.
reported in AIR 1952 SC 64 and therefore, this Court may not interfere. It was also conceded by Mr.P.K.Jani, learned Government Pleader that if a person has become Member in more than one Co-operative Society for removal of him, as the Member, the proper procedure either under Section 28 or under Section 36 is required to be followed and till then, such person will continue to remain as the Member but in the submission of the learned Government Pleader, if bye-laws do not permit the admission as Member, such persons can be said as not entitled to invoke the equitable jurisdiction of this Court because of their own conduct and therefore, this Court may not entrust the writ to the petitioners.
Mr.B.T.Rao, learned counsel appearing for respondent No.5 submitted that there is a principle in the Co-operative Society that one Member one vote and one may not have more than one vote and on that principle, the names have been rightly excluded by the Authorized Officer. Mr.Rao also adopted the submissions made by Mr.Jani, learned Government Pleader as well as Mr.N.D.Nanavati, learned senior counsel.
We may record that following positions are undisputed.
The names of the office bearers of the petitioners-Societies were included in the first voters list prepared on 25.9.2012.
The objections against inclusion or exclusion of the persons in the first voters list were to be submitted on or before 8.10.2012 but no such objections were submitted by the objector i.e. respondent No.5 herein, at the relevant point of time.
The election came to be stayed on account of election of legislative assembly by the State Government vide order dated 10.10.2012 and copy of the order is also produced by the learned Government Pleader during the course of the hearing appearing on behalf of the Authorized Officer. The Director, respondent No.2, subsequently vide order dated 17.1.2013 directed to proceed further with the election from the stage where it was postponed and the different stages of the election were fixed.
As per the fresh program of election, on 11.2.2013, was the date fixed for publication of the second voters list.
The objections against republication of the second voters list were to be submitted on or before 18.2.2013 as per Rule 8(1A).
The objections were submitted by respondent No.5 against inclusion of the names in the voters list in second list on 16.2.2013.
The Authorized Officer vide order dated 22.2.2013 has passed the impugned order accepting the objections and consequently has deleted the names of the office bearers of the petitioners-Societies from the second voters list.
10. The aforesaid factual aspects clearly shows three positions.
(A) The names of the petitioners were there in the first voters list but no objections were filed against inclusion of their names in the voters list.
(B) The names of the petitioners were continued in the second voters list when published.
(C) The objections were filed after publication of the second voters list under Rule 8(1A) and those objections are accepted and the names of the office bearers of the petitioners-Societies are excluded.
11.The only point to be considered in the present petitions is whether the Authorized Officer had any power, competence or jurisdiction to entertain the objections against continuation of the names of the office bearers of the petitioners-Societies in the second publication or not or whether he had the limited jurisdiction to entertain the objections against the new names of any voter included for the first time in the second list only. Rule 8 for ready reference, reads as under:
8. Provisional and final publication of lists of voters. - (1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorized officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorized officer for an amendment of the list of voters.
(1-A) After receiving applications if any, under sub-rule (1) a revised draft list of voters shall be published by the authorized officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principle market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorized officer for an amendment in the revised draft list of voters.
If any application is received under [sub-rule (1-A)], the authorized officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election .
The aforesaid shows that as per Rule 8(1A), the objections could be raised and entertained against any new names entered in the second list. To say in other words, the objections against the names of the persons, whose names were already there in the first list and continued in the second list, cannot be filed or entertained after publication of the second list but if any voter is included in the second list for the first time and whose names did not exist in the first list, the objections could be filed under Rule 8(1A) and that appears to be scope and ambit of filing of objections and entertainment thereof by the Authorized Officer under Rule 8(1A).
At this stage, in the recent decision of this Court in case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd.(supra); wherein, the Division Bench of this Court after considering the earlier decision of this Court in case of Mehsana District Co-Operative Purchase And Sales Union Ltd. V/s. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahakari Mandli Ltd. reported in 1998 (2) GLR 1479 observed at paragraph No.7 as under:
7. The question raised by learned counsel for the petitioners had been decided by a Division Bench of this Court in Mehsana District Co-operative Purchase and Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahakari Mandli Ltd. & others, 1998(1) GLH 170, wherein this Court has held in paragraph 5 as under :-
5.The Scheme of the preparation of the voters' list is provided under Rule 8. The Authorized Officer, who is appointed for conduct of the general election of the Market Committee, has to publish the voters' list prepared under Rule 5, by affixing a copy thereof at the office of the Market Committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the Authorized officer for an amendment of the list of voters. In the instant case, such preliminary voters' list was published on 24-10-
1997. The petitioners, in these Special Civil Applications, did not file any objection nor any other person filed any petition regarding the inclusion of their names in the preliminary voters' list. After the publication of preliminary voters' list, the Authorized officer published the revised draft list, as provided under Rule 8(1-A) on 12-11-1997. In the revised draft list also, the petitioners' names were included. The interpretation of Rule 8 (1-A) assumes some importance. It is as follows:
After receiving applications, if any, under sub-rule (1) a revised draft list of voters shall be published by the authorized officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the Authorized Officer for an amendment in the revised draft list of voters." (Emphasis supplied) .
From Rule 8(1-A), it is clear that, after the publication of the revised draft list, the authorized Officer shall publish a notice stating that any person who wishes to raise any objection against any new name entered in the list, may apply within seven days from the date of publication of the notice to the authorized Officer for an amendment in the revised draft list of voters. From Rule 8(1-A), it is clear that, objection could be raised by any person only regarding the entry of any new name in the revised draft list. If the names were already in the preliminary list as well as in the revised draft list, no person can raise any objection regarding that. If any new name was entered in the revised draft list, objection could be raised and the authorized Officer has to decide whether such entry or entries shall be deleted or not. Therefore, it is clear that the authorized Officer illegally omitted the names of the petitioners from the final voters' list and it is contrary to Rule 8(1-A).
The aforesaid decision squarely applies to the facts of the instant case.
Thereafter, at paragraph No.9, it was further observed, inter-alia, as under:
9. Once the objection filed by the respondent No.2 had been rejected on 05.07.2011, the second objection to the provisional voters' list was not maintainable. We have gone through both the objections. Both the objections are same except that they have been couched by giving different expression. Therefore, the order dated 17.07.2011 passed by the Authorized Officer cannot be maintained as in view of Rule 8 (1-A), the petitioners name could not be deleted from the provisional voters' list as it was not a new name which could be challenged by the respondent No.2. The deletion of petitioner's name from the final voter list was illegal and beyond the powers of the Authorized Officer provided in Rule 8 (1-A) of the Rules. The deletion of petitioners Societies names from the final list of voters was without any authority of law and the order passed by the Authorized Officer was completely destructive of the democratic process and a fraud on the elections.
The aforesaid shows that in the aforesaid decision, this Court found that the petitioners name could not be deleted from the provisional voters list as it was not a new name which could be challenged and the deletion of the name from the final voters list was illegal and beyond the power of the Authorized Officer provided under Rule 8(1A) of the Rules. It was also observed that the deletion of the petitioners-Societies names from the final voters list was without any Authority of law and the order passed by the Authorized Officer was completely destructive of democratic process and fraud of elections. Ultimately, this Court in the said decision, set aside the order of the Authorized Officer for deletion of the names of the petitioners therein from the final voters list and restored the names in the final voters list with the observation that they shall be permitted to participate and contest the elections of the said Market Committee.
In our view, when the matter is already considered by this Court in above referred two decisions, one in case of Mehsana District Co-Operative Purchase And Sales Union Ltd.(supra) and another in case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd.(supra) on the true scope and ambit of the provisions of Rule 8(1A) of the Rules, no further discussion may be required. Consequently, it can be said that action of the Authorized Officer of entertaining the objections and the decision to delete the names of the office bearers of the petitioners-Societies in the final voters list is ultra vires to his power under Rule 8(1A) and void.
The contention raised by the learned counsel for the respondent that once the process of election has begun, this Court may not interfere in the process of election under Article 226 of the Constitution and may relegate the party to the election petition after the election is over, is considered by this Court in the recent decision in case of Dolatbhai Prabhubhai Dumaniya V/s. Director, Agriculture Marketing and Rural Finance in Special Civil Application No.1890 of 2013 and allied matters decided on 12-13/3/2013 and this Court observed, inter-alia, at paragraph Nos.24 to 25 as under:
24. 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?
II. Whether the remedy under Rule 28 can be termed to be efficacious remedy?
III. 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:
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.
28. 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 ex- facie 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.
29. 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.
It may be recorded that the decision of the Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited (supra) was also considered in the above referred decision and thereafter, the aforesaid view has been expressed.
The attempt to contend that in all matters where the question is pertaining to exclusion or inclusion of Member from the voters list, cannot be entertained in a petition under Article 226 of the Constitution by treating as extraordinary circumstances, in our view cannot be countenanced for following reason.
(i) One is that the very decision of the Full Bench is subsequently considered by this Court in case of Shrutbandhu H.Popat V/s. State of Gujarat and others reported in 2007 (3) GLR 1942 and it was held by this Court that after the above referred decision of Full Bench, the Apex Court in case of Pundlik V/s. State of Maharashtra reported in 2005 (7) SCC 181 has observed that the High Court would not interfere in exercise of power under Article 226 of the Constitution at the stage of preparation of the voters list but such action must be in accordance with law. But the principle is that if the action is ultra vires to the power or ex-facie without jurisdiction and without disturbing the election process, the power under Article 226 of the Constitution can be exercised if the case is so made out. Therefore, we find that after considering the decision of the Full Bench, this Court in its subsequent decision has taken the view that where the case was made out for the action being ultra vires or the nullity, the interference under Article 226 of the Constitution could not be said as not warranted. If the action is ultra vires and nullity, such case can be termed as an extraordinary circumstance to exercise of the power under Article 226 of the Constitution.
The attempt made by the learned counsel appearing for the respondent to contend that if the Membership is not permitted in two Co-operative Societies simultaneously, as per bye-laws and if the persons concerned have become voter, they should not be allowed to invoke the equitable jurisdiction or that if such situation are permitted, it would result into monopolization of the election and would defeat the democratic process, cannot be countenanced in a case where the action is wholly without jurisdiction or competence in the process of election. If the contention is further considered for the sake of examination that one has become Member in more than one Co-operative Society then also until the said person is expelled or removed as a Member in the another Society, his right cannot be curtailed on the ground as sought to be canvassed. It is hardly required to be stated that in the process of election, the right, if any, flows from the statute and the right to participate in the election are statutory rights of the voters or the candidate as the case may be. If the person concerned is not expelled or removed as Member in any Co-operative Society, he would continue to enjoy the rights till the decision is taken for expulsion or removal as the Member. It is not a case of respondent No.5 nor at any point of time, it has come on record before the Authorized Officer that any action was taken for removal of the office bearers of the petitioners-Societies or for expulsion of the office bearers of the petitioners as the Member or even any action is initiated for such purpose. Therefore, until such action is initiated and concluded against the person concerned for removal or expulsion, it would be too far to curtail the rights of voters to participate in the election or to deprive such voters from their statutory rights at the election on the ground as sought to be canvassed. Under these circumstances, the contention cannot be accepted.
In view of the aforesaid observations and discussion, we find that the action of the Authorized Officer of entertaining the objections against the name of the office bearers of the petitioners-Societies under Rule 8(1A) of the Rule was wholly ultra vires to his powers and consequently, the order passed for removal of the names of the office bearers of the petitioners-Societies from the final voters list is also without any authority of law or ex-facie without jurisdiction. Therefore, it appears to us that it is a fit case for interference for exercise of the power under Article 226 of the Constitution.
Hence, the impugned order passed by the Authorized Officer for excluding the name of the office bearers of the petitioners-Societies in the final voters list is quashed and set aside with the further direction that the names of the office bearers of the petitioners-Societies shall stand restored in the final voters list and they shall be entitled to participate and contest the election of Agriculture Produce Market Committee, Botad in accordance with law. The petitions are allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
Mr.Jayswal, learned AGP declared before the Court that Authorized Officer is present and the order shall be communicated accordingly.
Mr.Divyeshwar, learned counsel appearing for the newly added party i.e. applicant in Civil Application Nos.3718 and 3721 of 2013 at this stage prayed that the operation of this order be suspended so as to enable his client to approach before the Higher Forum. Considering the facts and circumstances, the said request is declined.
Direct service is permitted.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) ashish Page 22 of 22