Gujarat High Court
Patan Proper Fal And Shak Bhaji Kharid ... vs Pali Shak Bhaji And Fal Ful Adi ... on 27 November, 1985
Equivalent citations: AIR1987GUJ33, AIR 1987 GUJARAT 33
JUDGMENT B.K. Mehta, J.
1. Since this group of seven Letters Patent Appeals relates to the elections of Agricultural Produce Market Committee, Patan, and a common question of law going to the root of the matter arises in these Letters Patent Appeals, we intend to dispose them of by this common judgment.
2. In order to appreciate the two broad contentions, which have been raised in each of the respective appeals, we may get out shortly a few facts relevant and material for our purposes so as to enable us to appreciate these contentions in proper perspective.
L. P. A. No. 382/85 :
3. Respondent No. 1. which is a Cooperative Marketing Society, moved this Court by Special Civil Application No. 5620/85 for appropriate writs, orders and directions enjoining the Authorised Officer respondent No. 2 herein, appointed for the purposes of elections of the Agricultural Produce Market Committee, Patan respondent No. 3 herein, to include the names of the members of the Managing Committee of the Petitioner-Society in the voters' list prepared for purposes of the said elections. It is common ground that the Petitioner Society was constituted on 31st August, 1985 and applied for inclusion of the members of its Managing Committee to the Authorised Officer-respondent No. 2 herein vide its application of September 24, 1985, and furnished the particulars in the pro forma prescribed in that behalf. It is also common ground that the Petitioner Society was issued licence for the years 1984-85 and 1985-86 by the Market Committee-respondent No. 3 herein on September 27,1985. There is some dispute as to precisely on what date the application was made for obtaining the licence by the Petitioner Society. It is also admitted on behalf of the Petitioner Society that the Managing Committee was constituted on September 15, 1985. Since the Petitioner Society was intimated by the Authorised Officer vide his letter of September 27, 1985 that in the pro forma application the particulars about the Petitioner Society having obtained the licence for 1984-85 have not been shown in the relevant column 7 thereof, the names of the members of the Managing Committee of the Petitioner Society were not included in the voters' list, the Petitioner Society moved this Court for appropriate writs, orders and directions for enjoining the Authorised Officer to include the names of the members of the Managing Committee in the voters' list as required under S. 11(i)(iii) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the Act").
4. Pursuant to the notice issued by this Court, another Co-operative Marketing Society, namely, Patan Proper Fal & Shak Bhaji Kharid Vechan Sahakari Mandli Limited - the appellant herein prayed vide its Civil Application No. 3966/85 to be joined as a party, which application was granted by the learned single Judge (Coram : N. H. Bhatt. J.) by his order of October 21, 1985, and directed that the said Society be joined as a party-respondent at its own costs and consequences. Unfortunately, however, by inadvertence, the name of the said Society was not added in the cause title in the original memo of the main petition. We have therefore, directed the learned Advocate for the appellant-Society to make proper addition in the cause title of the memo of the petition by showing the appellant-Society as respondent No. 3 in the main petition.
5. The appellant-Society, therefore, resisted the petition by filing reply affidavit of the Chairman one Shri Bhudarbhai Chhaganbhai Patel to which an affidavit in rejoinder of Shri Dahyabhai P. Patel has been filed on behalf of the original petitioner respondent No. 1 herein. It should be noted that no reply affidavit has been filed on behalf of the Authorised Officer or the Agricultural Produce Market Committee who were original respondents Nos. 1 and 2 in the main petition. The petition has been resisted on behalf of the appellant-Society, inter alia, on two grounds: Firstly, it was contended that the Court has to jurisdiction and/or in any case should not interfere at this stage when the election programme has been already declared since the Petitioner-respondent No. 1 could ventilate its grievances, if at all any, by resorting to the election petition under R. 28 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as "the Rules"). Secondly, it was contended that having regard to the fact that the Petitioner Society was registered on August 31, 1985, it could not have convened any meeting before September 17, 1985 and constituted the Managing Committee and could not have started functioning. It could not have, therefore, made an application for licence which it is claimed by the Petitioner Society to have been made on 2nd September, 1985, or for that matter on 17th September, 1985 with the result that the Market Committee could not have granted the licence on such application. Consequently, the application made by the Petitioner Society on September 24, 1985 to the Authorised Officer was incomplete and, therefore, defective inasmuch as the particulars of the licence were not furnished in the relevant column of the application as in the very nature of things it could not have furnished since admittedly the Market Committee granted the licence on September 27, 1985. Therefore, it is contended in this fact situation that the members of the Managing Committee of the Petitioner Society were not eligible to be enrolled as voters in the voters' list since they were not qualified on the qualifying date, namely 3rd September, 1985 by which date the Director had called upon all the concerned Market Societies to furnish the particulars of the members of their Managing Committees. On these two grounds, therefore, the appellant-Society contended that the respondent-Petitioner Society was not entitled to all or any of the reliefs prayed for in the petition.
6. The learned single Judge, on consideration of the relevant pleadings and after hearing the learned Advocates for the parties at the notice stage disposed of the petition on merits with the consent of the parties. The learned single Judge was of the opinion that on the true interpretation of the relevant rules, inter alia, rules 7 and 8 of the Rules, the qualifying date for purposes of determining the eligibility of a person to be enrolled as a voter should be considered the date on which the final voters' list is published under the rules and, therefore, the Petitioner Society was well within bounds and entitled to enrolment of its members of the Managing Committee as voters in the voters' list for purposes of the elections to the Market Committee. He ruled out the objection raised on behalf of the appellant Society that the Petitioner Society can have recourse to the election petition as provided in Rule 28 and the Court should not arrest or interfere with the programme of election at that stage since in his opinion It can not be said as a rule of law and it is more in the nature of rule of discretion which the Court should observe since the election is a costly process and should be allowed to have its own operation uninterrupted by any outside agency. He, therefore, allowed the petition and directed the Authorised Officer to include the names of the members of the Petitioner's Managing Committee as voters and made the Rule absolute. It is this order of the learned single Judge which is the subject-matter of appeal before us.
L. P. A. No. 430/85 :
7. This appeal is preferred by the original petitioners of Special Civil Application No. 5812/85 who are admittedly voters on the voters' list published for purposes of election to the Agricultural Produce Market Committee, Patan. It pertains to the traders' constituency under S. 11(1)(ii) of the Act which prescribes four members to be elected from amongst themselves by the traders holding general licences for carrying on the trade in the market area of the Agricultural Produce Market Committee, Patan. The Petitioners had by their application of September 24, 1985 raised objection against Inclusion of certain persons as voters in the said voters' list on the ground that they were not genuine traders. The grievance of the petitioners was that these persons against whom they were raising objections were either doctors or rickshaw drivers or Government employees or agriculturists and some of them Hamals and, therefore, they could not be genuine traders. These objections were overruled by the Authorised Officer by his order of September 27, 1985 virtually on the ground that the information supplied by the concerned Market Committee is binding on him and. therefore he has no option but to include their names in the voters' list'. In effect, he overruled this objection without any inquiry worth the name. The Petitioners, therefore, moved this Court for appropriate writs, orders and directions to quash and set aside the said decision of the Authorised Officer and for enjoining him to hold an inquiry and decide the objections on merits.
8. It appears that Bhudarbhai Chhaganbhai Patel was not originally joined as a party to the petition. However, he was directed to be joined as a party vide the order of the learned single Judge dated November 1, 1985 on the application made by him being Civil Application No. 4180/85. The said respondent No. 3 filed his reply affidavit to which original petitioner No. 3 filed affidavit in rejoinder.
9. The petition was resisted by the said respondent No. 3 Shri Bhudarbhai Chhaganbhai Patel, inter alia, on the ground that the Court should not arrest or interfere with the election programme which has been declared which objection found favour with the learned single Judge who by his common order of November 5, 1985 rejected the petition on the short ground that he should not interfere with the election process. It is this order which is the subject-matter of this appeal.
L. P. A. No. 431/8510. This appeal is preferred by the original petitioners of Special Civil Application No. 5813/85 who claimed that they ought to have been included in the voters' list prepared for the constituency of agriculturists under S. 11(1)(i) of the Act which prescribes that eight agriculturists shall be elected by the members of the Managing Committees of the Co-operative Societies dispensing agricultural credit in the market area. The Petitioners claimed in effect that their names should be substituted in place of the erstwhile members of the Managing Committee of the respective Co-operative Credit Societies. The applications were made on 10th and 11th October, 1985. The grievance of the Petitioners was that no reply was given by the authorised Officer, and the final voters' lists were published without modifications as prayed for.
11. The Petition has been resisted, inter alia, on the ground that the Court should not interfere with or arrest the election programme which has been set in motion which objection found favour with the learned single Judge who by his common order of November 5,1985dismissed this petition also along with Special Civil Application No. 5812/85 as stated above.
L. P. A. No. 442/85:
12. This appeal relates to the traders' constituency for the election to the Agricultural Produce Market Committee, Patan under S. 11(1)(ii) of the Act. The appeal is preferred by the Market Committee. Four traders who are respondents Nos. 1 to 4 herein moved this Court for a writ of mandamus or a writ in the nature of mandamus directing the Agricultural Produce Market Committee, Patan; the Director of Agricultural Marketing and Rural Finance, and the District Registrar Election Officer for the election to the Market Committee, who are appellant and respondents Nos. 5 and 6, respectively, "to allow the persons, those who have applied for the renewal of licence for the year 1985- 86 within time........... to vote or to take part in the election as if their names are shown in the voters' list". They also prayed for interim relief in the nature of injunction enjoining, inter alia, the Election Authorities to treat all the applications for renewal of licences made before September 30 1985 before the Market Committee to have been granted and the licences be treated to have been renewed for purposes of the election scheduled to be held on November 30 1985, and restraining the Director of Agricultural Marketing and Rural Finance from interfering with their right of franchise to contest and vote at the ensuing election merely on the ground that their licenceshave not been renewed by the Market, Committee.
13. The petition was resisted by the Market Committee and affidavit in reply of the Secretary of the Committee was filed. It was pointed out in the reply affidavit that the licence of respondent No. 1 herein who was Petitioner No. 1 was renewed for 1985-86 and the question of the grant of the licences to respondents Nos. 2, 3 and 4 herein who were petitioners Nos. 2 to 4 was under consideration before the Market Committee. The contention that the Court should not interfere with or arrest the programme of election since the remedy of election petition is available under R. 28 of the Rules was also raised.
14. The learned single Judge (Coram : A. P. Ravani, J.) by his order of November 19, 1985 dismissed the petition since in his opinion on the true interpretation and effect of R. 6 of the Rules, the capacity of the licensed trader is not lost till his application for renewal of licence is finally rejected and inasmuch as the applications of respondents Nos. 2,3and 4 who were petitioners Nos. 2 to 4 for renewal of their licences for 1985-86 were admittedly pending before the Market Committee, the apprehension of the said petitioners was unfounded that they would not be allowed to vote and to contest the election. It should be noted that these petitioners were allowed to file nominations under the order of the Court without prejudice to the rights and contentions of the parties, and accordingly their nominations have been accepted under the orders of the Court. It is this order which is the subject-matter of appeal at the instance of the Agricultural Produce Market Committee.
15. It should be noted that the original petitioners also feel themselves aggrieved by the order of the learned single Judge and they have accordingly preferred Letters Patent Appeal No. 445/85. Their grievance is that when the learned single Judge held that the capacity of the petitioners is not lost, he ought to have granted the relief in terms of the prayer made in relief Clause (A).
L. P. A. 443/85:
16. This is also an appeal by the Market Committee and it pertains to the constituency of the Marketing Society under S. 11(1)(iii) of the Act which provides that two representatives of the Co-operative Marketing Society situate in the market area and holding general licences are to be elected from amongst the members of such society by the members of the Managing Committee of the Society. It appears that the licence of respondent No. 1-Society for the year 1984-85 expired on September 30, 1985. It applied for renewal of the licence by its application of September 21, 1985. The said application is under consideration of the Market Society. It further appears that Bhudarbhai Chhaganbhai Patel who happens to be the Chairman of the said Society is seeking election from this constituency to the Market Committee. The Market Committee kept the application for renewal of the licence under consideration since some traders objected to the genuineness of the society. In the circumstances, respondent No. 1 -Society moved the Court for appropriate writs, orders and directions enjoining the Market and directions enjoining the Market Committee and the Election Officer to allow respondent No. 1-Society to take part in the ensuing election as if their application for renewal of the licence for 1985-86 has been granted and for that matter the licence is duly renewed. An interim relief has also been prayed for in the nature of injunction enjoining the respondents and the Election Authorities to treat all applications for renewal of licences made before September 30, 1985 before the Market Committee to have been granted and to treat such applicants as persons having valid licences for the purposes of the election scheduled to be held on November 30, 1985.
17. Pursuant to the notice issued by this Court, the appellant Society filed a reply affidavit of its Secretary opposing the admission of the petition. One of the contentions raised in this petition was that the Court should not interfere with or arrest the programme of election which has been set in motion since the petitioners had remedy of election petition under R. 28 of the Rules. The teamed Judge (Ravani J.) by common order of November 19, 1985 for the self-same reasons which we have stated above on construction of R. 6 held that the capacity of respondent No. 1-Society which was the petitioner was not lost since for all purposes it would be when the application for renewal of licence is finally rejected. It is this order which is the subject-matter of this appeal. It should be noted that the Petitioner-Society also being aggrieved by this order filed Letters Patent Appeal No. 446/85 on the very ground on which Letters Patent Appeal No. 445/85 has been preferred.
18. Broadly the following two questions arise in Letters Patent Appeals Nos. 382/85 and 431/85 :
1. Whether this Court has jurisdiction and/or can interfere in exercise of such jurisdiction under Art. 226 of the Constitution of India, anti consequently arrest the programme of election which has been declared in connection with the election of the Market Committee in question since the special right of being voters conferred on the eligible persons under the said Act can be enforced by the special remedy of election petition under R. 28 of the Rules.
2. Whether the original petitioners are entitled to be enrolled as voters.
19. Similarly the following two questions arise in Letters Patent Appeal No. 430/85:
1. Whether this Court has jurisdiction and/or can interfere in exercise of such jurisdiction under Art. 226 of the Constitution of India, and consequently arrest the programme of election which has been declared in connection with the election of the Market Committee in question since the special right of objecting to the inclusion of the names of persons as voters conferred under the Act can be enforced by the special remedy of election petition under R. 28 of the Rules.
2. Whether the Authorised Officer committed an error of law in overruling the objections raised by the original petitioners that the information supplied by the concerned Market Committee is binding on him and, therefore. he had no option but to include their names in the voters' list without holding any sort of inquiry which he was obliged to under the Rules.
20. Similarly the following two questions arise in Letters Patent Appeals Nos. 442, 443, 445 and 446 of 1985 :
1. Whether this Court has jurisdiction and/or can interfere in exercise of such jurisdiction under Art. 226 of the Constitution of India, and consequently arrest the programme of election which has been declared in connection with election of the Market Committee in question since the fight to vote conferred under the Rules on all qualified persons can be enforced by the special remedy of election petition under R. 28 of the Rules.
2. Whether the original petitioners are entitled to seek appropriate writs, orders and directions that they should be treated for all purposes as qualified voters merely because their applications for renewal of licences for the year 1985-86 before the Market Committee were pending after the expiry of their respective licences for the year 1984-85.
21. Since the first question in all these appeals as formulated heremabove is common question, we will take it up for consideration in all these appeals and decide the same in the first instance because, if it is answered in the negative, the Court may not be required to go into the second question of each of these appeals. Before we take up for consideration, this question, it would be profitable to shortly refer to the material provisions which are relevant for purposes of appreciating the various facets of the first question.
22. Section 11(1) of the Act prescribes the nature and the composition of the Market Committee. Shortly stated, the Market Committee comprises of :
(i) 8 agriculturist members
(ii) 4 trader-members
(iii) 1 or 2 representatives of the Cooperative marketing societies in the market area
(iv) 1 member representing the local authority and
(v) 2 members nominated by the State Government.
The first three categories of the members are to be elected by their respective constituencies to wit (1) agriculturist members to be elected by the Members of the Managing Committees of the co-operative credit societies; (2) trader members to be elected by the traders holding general licences, and (3) the representatives of the co-operative marketing societies to be elected from amongst the members of such societies by members of the Managing Committees thereof. It should be noted that in these appeals, we are concerned with all the aforesaid three constituencies. It should also be noted at this stage that in respect of the third category of the co-operative marketing societies' representatives, the number of the representatives depends upon the number of the co-operative marketing societies functioning in the market area. If the number of such societies does not exceed two, only one representative is prescribed. But if it exceeds two, two representatives are provided for. The Act Las left it to the State Government under S. 59 to frame Rules particularly in the matters specified in sub-section (2) which, inter alia, includes the preparation and revision of list of voters for the purpose of any election under S. 11, determination of disputes arising in such election and payment of expenditure in connection with or incidental to such election. The material rules which are relevant for our purposes are Rules 4, 5, 6, 7, 8, 10, 11 and 28. Rule 4 provides for fixation of date of election. It enjoins the Director, whenever a general election to a Market Committee is to be held under S. 15. to fix 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. Under R. 5. three voters' lists are to be prepared in respect of the aforesaid three constituencies prescribed under S. 11(1)(i) to (iii) of the Act. R. 6 which is important since it has come for interpretation in the special civil applications out of which Letters Patent Appeals Nos. 442 443, 445 and 446 of 1985 arise. It reads as under :
"6. Persons qualified to vote. - A person whose name is entered in a list of voters shall be qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list."
Rules 7 and 8 are important Rules which have a bearing in all these appeals and therefore, they are set out in extenso :-
"7. Preparation of list of voters for general election. - (1) Whenever general election to a 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 member:
(ii) the market committee shall communicate the full names of the traders holding general licences in the market area together with the place of 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 subrule (1) cause to be prepared the lists of voters as required by R. 5 on the basis of the information received under sub-r. (1 and if necessary, after making such inquiry as he may deem fit.
(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
8. Provisional and final publication of lists of voters-
(1) As soon as a list of voters is prepared under R. 5, it shall be published by the Authorised 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 authorised officer for an amendment of the list of voters.
(2) If any application is received under subrule (1), the Authorised 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 fist shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election.
(3) Copies of the final list of voters prepared under this rule shall be kept open for public inspection at the office of the Authorised Officer and at the office of the Market Committee."
Rule 10 provides for fixation of stages of election. Sub-r. (1) thereof provides that an election shall be held between such hours and on such dates and at such place or places as may be fixed by the Director. Sub-r. (2) again is important and, therefore. it has been set out hereinbelow :
"(2) Not less than 40 days before the date fixed for the election under R. 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 or places 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."
Rule 11 provides for the nominations. Sub-r. (1) thereof provides for filing of the nomination papers on the date fixed in connection therewith before the Election Officer. Sub-r. 21 provides that such nomination paper is to be signed by the proposer and also by the candidate in token of his willingness to stand for election. How the nomination papers are to be endorsed and treated is prescribed in sub-rule (4). Sub-r. (5) prescribes that if the number of nominations signed by the same person as proposer exceeds the number of vacancies to be filled in, the nomination papers which have been received first in order of time up to the number of vacancies shall be deemed to be valid. Sub-r. (6) provides that the nomination papers received after the date and time fixed in that behalf would be rejected. R. 12 provides for the deposit to be made along with the nominations. R. 13 provides for verification of nominations by the Election Officer. R. 14 provides for the publication of the list of nominations by the Election Officer of the persons validly nominated. R. 15 provides for the scrutiny of the nominations on the date fixed in that behalf. R. 16 provides for disposal of objections and rejection of nomination papers. R. 17 provides for the withdrawal of candidature which should be made by the candidate by notice in writing subscribed by him and delivered either in person by the candidate himself or through his proposer to the Election Officer within three days of the date succeeding that fixed for the scrutiny of nominations. Sub-r. (2) of R. 17 provides that the Election Officer shall prepare a list of persons whose nominations are accepted and who have not withdrawn their candidature and the same is to be affixed in some conspicuous place in his office, and in the office of the Market Committee not less than seven days before the date fixed for the election. R. 18 provides for the procedure of election. R. 10 provides for the assignment of symbols. R. 20 provides for the form of voting paper. R. 21 provides for arrangements for the holding of election and R. 22 provides for the number of votes every voter has in connection with the election. Rule 23 provides for addition of one vote in favour of candidate selected by lot in case of equality of votes in favour of the candidates at the poll. R. 24 provides for procedure when there is a death of candidate before poll. Rule 25 provides for intimation of the name of the representatives of a local authority to the election Officer for purposes of S. 11(1)(iv). Rule 27 provides for publication of the names of elected and nominated members of the Market Committee. Rule 28 which provides for determination of validity of election has an important bearing on the question in all these appeals and it is therefore stated in extenso :
"28. Determination of validity of election-
(1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may, within seven days after the date of the declaration of the result of the election. apply in writing-
(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer and
(b) to the State Government if the election has been conducted by the Director as an Election Officer.
(2) On receipt of an application under subr. (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government, as the case may be, sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling Lip the vacancy of such member."
This is in short the scheme contained in the Actand the Rules in respect of the constitution and election of the Market Committee.
23. Before we discuss the legal position about the jurisdiction of the Court to interfere in election matters, we may shortly indicate the election programme as declared by the Director as well the dates prescribed and the steps taken by the Authorised Officer for preparation of the list of voters. Under R. 4, the Director has, by his order dated 30th July, 1985, fixed 30th November, 1985 as the date of election. Under R. 7, the Director by his order of August 24, 1985 called upon the concerned committees, namely, Co-operative Credit Societies, the Market Committees, and the Co-operative Marketing Societies to send the names of the members of the Managing Committee, the names of the traders holding general licences in the market area, and the names of the members of the Managing Committee, respectively, to the Authorised Officer, on or before September 3, 1985 for preparation of voters' list. The Authorised Officer, under sub-r. (2), on September 10, 1985 published the list of voters prepared by him on the basis of the information received from the different committees as aforesaid. Objections to the voters' list by the aggrieved persons were to be filed within 14 days, that is, before September 24,1985. The Authorised Officer published on September 27, 1985 the aforesaid primary voters' list after considering the objections, suggestions and amendments by the persons concerned and invited objections against finalisation of the primary voters' list, and fixed October 11, 1985 as the date on or before which such amendments, objections or suggestions were to be submitted by the concerned persons. Ultimately the final voters' list was published on October 16, 1985.
24. The stages of election fixed under sub-r. (2) of R. 10 were as under:
(see below for details) It is in this backdrop that we have to consider the first question.
25. The legal position as to whether the Court has jurisdiction to interfere with the process of election in context of the elections to Municipalities and Panchayats in particular and the elections of other bodies in general, has been summed up by the Division Bench of this court in Ravjibhai v. Bilimora Nagar Palika, 1982 (1) 23 Guj LR 611 : (AIR 1982 Guj 163). In that case the elections of two municipalities, namely Bilimora Municipality and Bulsar Municipality were under challenge. Bilimora Municipality's election was challenged by the defeated candidates in the elections of Bilimora Municipality on the ground that amendments, deletions and additions were made in the voters' list only a day prior to the date of the poll. The election of Bulsar Municipality was challenged by two residents and tax-payers residing within the limits of the said municipality and, therefore, claiming to be entitled to be included in the voters' list for purposes of election held in October, 1980. The elections were challenged also on the ground that the voters' lists were not prepared according to the Election Rules of the Municipality concerned. In that context, the Division Bench considered the scope and amplitude of the jurisdiction of the High Court under Art. 226 of the Constitution, firstly, in the context of Art. 329 of the Constitution after referring to a number of decisions of the Supreme Court, viz. N. P. Ponnuswami v. Returning Officer, AIR 1952 SC 64; Hari Vishnu Kamath v. Ahmed Ishaque, AIR 1955 SC 233; Nanhoo Mat v. Hire, Mal, AIR 1975 SC 2140; K. K. Shrivastava v. Bhupendra Kumar Jain, AIR 1977 SC 1703 and Mohinder Singh Gill v. Chief Election Commr., New Delhi, AIR 1978 SC 851, and, secondly, after setting out the principles which have been enunciated that having regard to the important functions which the Legislature have to perform in democratic countries, it has always been recognised to be a matter of first importance that election should be conducted as early as possible according to the time schedule and all controversial matters and all disputes arising out of election should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. This was, as laid down in N. P. Ponnuswami's case, in conformity with this principle that the scheme of election law in India as well as in England is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the election and enable the person affected to call it in question. they should be brought up before a special tribunal by means of an election petition, and not be made the subject of a dispute before any Court while the election is in progress. This principle has been enunciated in N. P. Ponnuswami's case (supra) and approved in number of later decisions, of course, rendered in the context of Representation of the People Act read in the perspective of Art. 329(b) of the Constitution of India. The Division Bench, having noted this fact, rules that the principles enunciated and reiterated in those decisions have been projected by the Supreme Court in those cases where the validity of the elections to the Municipality or the Bar Council or Panchayat were challenged. After referring to Nanhoo Mal's case, Shrivastava's case (both supra) and Bar Council of Delhi v. Surjeet Singh, AIR 1980 SC 1612, and also the Full Bench decision of this Court in Ahmedabad Cotton Mfg. Co. Ltd. v. Union of India, (1977) 18 Guj LR 714 : (AIR 1977 Guj 113), the Division Bench summed up the principles emerging from these various authorities as under .
November 18,1985 Date for filing nominations under Section 10(2).
November 19,1985 Date of scrutiny.
November 22,1985 Date for withdrawal of the nominations.
November 22,1985 Publication of the list of validly nominated candidates.
November 30,1985 Date of election.
December 1, 1985 Counting of votes, and the publication of the result as soon as the counting was over.
"38. The following principles emerge from the various authorities cited above :
(1) Though the extraordinary jurisdiction of High Court under Articles 226 and 227 of the Constitution is very wide, the Court should be slow in exercising this said jurisdiction where an alternative efficacious remedy Linder the Act is available. However, if the impugned order is an ultra vires order, or is a nullity as being ex facie without jurisdiction, the question of exhausting the alternative remedy could hardly arise.
(2) It is well recognised on principle and in authority that where a right or liability is created by a statute which gives a special remedy for enforcing it, only the remedy provided by that statute must be availed of.
(3) The right to vote or stand as a candidate at the election is not a civil right but is a creature of a statute or a special law and must be subject to limitations imposed on it. If the legislature entrusts the determination of all matters relating to election to a special Tribunal, and invests it with a new and unknown jurisdiction, that special jurisdiction alone could be invoked for enforcement of that right.
(4) In matters of election disputes, the Court should refuse to exercise jurisdiction under Article 226 of the Constitution of India when the statute conferring fight to vote or stand at the election prescribes a statutory remedy embracing the disputes pertaining to all aspects of the entire process of election.
(5) Merely because the challenge is to the plurality of returned candidates or for that matter to the entire election, it is fallacious to urge that it can be only redressed by a writ petition.
(6) It is a well recognised principle and a matter of public importance that elections should be concluded as early as possible according to the time schedule and all controversial matters as well as all disputes arising out of the elections should be postponed till after the elections are over so as to avoid an impediment or hindrance in the election proceedings. In other words, there is a provisional finality in matters pertaining to the various stages of elections.
(7) The bar of estoppel cannot be pleaded against a person challenging the election merely because he takes part in the said election by standing as a candidate or by exercise of his right of franchise therein especially when the impugned election is patently illegal and void ab initio due to the fact such as it being held pursuant to an ultra vires provision in a statute or the Rules. There is no question of approbation and reprobation in case of a person standing or voting at the election, nor is there any bar of laches if he does not challenge such void election at the initial stage and approaches the Court after the said election is over.
(8) Subject to the principle stated immediately hereinabove, if the entire conduct of a petitioner is so eloquent that he can be said to have acquiesced in the act which subsequently he has been complaining as a wrongful act, it maybe one of the factors which the Court exercising jurisdiction under Article 226 of the Constitution in a petition for a writ of quo warranto would bear in mind and may, in appropriate circumstances, refuse to exercise its extraordinary jurisdiction of granting a writ in the nature of quo warranto.
(9) The High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. is not required to examine the question when the election is challenged on the ground of it being vitiated at its inception due to the fact such as it being held in pursuance of or in accordance with an ultra vires provision of the statute or the Rules, as to whether the election of a returned candidate is materially affected at such election by operation of the ultra vires provision.
(10) Subject to the principles stated immediately hereinabove, in order to successfully challenge an election by a writ petition on the ground of breach of any mandatory provision contained in the Municipal Act or the Panchayat Act or the Rules thereunder, it must be established that the election of the returned candidate was materially affected thereby."
26. The Division Bench has recognised it on principle as well as in authority that where a right or a liability is created by a statute which gives a special remedy for enforcing it, only the remedy provided by that statute must be availed of, unless the impugned order is ultra vires or is a nullity as being ex facie without jurisdiction, and in matters of election dispute, the Court should refuse to exercise the jurisdiction under Article 226 of the Constitution when the statute conferring right to vote or stand at the election prescribes a statutory remedy embracing the disputes pertaining to all aspects of the entire process of election. The Division Bench also emphasised that it is a matter of public importance that elections should be concluded as earl\ as possible according to the time schedule and all controversial matters as well as all disputes arising out of the elections should be postponed till after the elections are over so as to avoid an impediment or hindrance in the election proceedings. The Court, therefore, recognised that there is a provisional finality in matters pertaining to the various stages of elections. It also ruled that merely because the challenge may be to the plurality of returned candidate or for that matter to the entire election, it cannot be urged successfully that this can be redressed only by a writ petition. It is in the light of this settled legal position that we have to consider whether this Court has jurisdiction and or should exercise such jurisdiction and consequently interfere and arrest the programme of election when the right, which is claimed in the petition, can be enforced by the special machinery provided in the Act.
27. We are afraid that having regard to the entire context of the challenge in these matters, the respective petitioners cannot successfully invoke the jurisdiction of the Court under Article 226 of the Constitution. The reasons are obvious. In all these petitions, what is claimed by the respective petitioners is either the right to be included in the voters' list and f or that matter right to vote or right to object to the inclusion of names of some persons as voters in the voters' list who, according to the objectors, are not qualified to be voters. It cannot be gainsaid that the right to vote and for that matter right to contest or right to object to the name of any person included in the voters' list is a right which is conferred on the members of the Committee comprising of different constituencies or of persons who are entitled to be voters such as the traders having general licences in the market area. This is right which is not recognised in common law but a right conferred by a special statute, and if this right pertains to election and consequently therefore to disputes arising pertaining to election, it can be ventilated and enforced by the machinery provided, if at all any, under that special Act. The process of election is a recognised concept commencing from the stage of preparation of election Rolls to the actual polling though the question as to whether it relates to the preparation of election rolls which was so far concluded by a seven Judges' Bench of the Supreme Court in N. P. Ponnuswami's case (AIR 1952 SC 64) (supra) in the context of the scheme of election contained in the Representation of People Acts, 1950 and 1951 is doubted to some extent by the latest decision of five Judges' Bench of the Supreme Court in Lakshmi Charan Sen v. A. K. M. Hassan Uzzaman, AIR 1985 SC 1233. The doubt was cast on the position established by the decision in N. P. Ponnuswami's case (supra) that the word "election" is used in Article 329(b) in the wide sense of covering the entire process culminating in the election of the candidate. The doubt was cast in Lakshmi Charan Sen's case (supra) since the five Judges' Bench took the view that the preparation and revision of electoral roll under the Representation of People Act, 1950 is a continuous process not connected with any particular election. The Bench, therefore, found it difficult consistently with that view to hold that the preparation and revision of electoral roll is a part of election within the meaning of Article 329(b). However, in the light of the conclusion recorded by the Beach that the petitioners before it have not made out any case for grant of the relief claimed by them, it was unnecessary for the Court to decide the, question whether the word "election" which, occurs in Article 329(b), comprehends the preparation and publication of the Electoral rolls. In other words, the question was kept open so far as it related to the meaning of the word, "election" in Article 329(b) of the Constitution. "Me Bench, however, expressed its opinion that when such a question arises in general, the facts of each individual case, may have to be considered for determining, the question whether any particular stage, can be said to be part of election process in' that case, and it would not be feasible to formulate a strait-jacket formula which would apply to all cases alike. In support of the view expressed as aforesaid, the Supreme Court relied on one of the passages digested from Halsbury's Laws of England, 2nd Edn. p. 227 which has been extracted and referred to in the judgment of Justice Fazal Ali in N. P. Ponnuswami's case (supra). In spite of our efforts, we have not been able to trace this precise passage in the later editions. The principle digested from Halsbury's Laws of England, (2nd Edition) which is to be found under the heading 'Commencement of Election' is in the following terms :
"It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is' reasonably imminent'. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion."
On behalf of those petitioners who were canvassing for the view that the Court can exercise jurisdiction under Article 226 of the Constitution in the matters which pertain to electoral roll, this decision in Lakshmi Charan Sen's case (supra) has been pressed into service, and it has been urged on the basis thereof that the preparation of electoral roll cannot necessarily be said to be a part of the election since to determine the question as to whether the Court has jurisdiction or that the Court should exercise the jurisdiction in such cases, we have to look to the scope and amplitude of the special remedy provided under the Act, namely, election petition. Now, rule 28 which we have set out above is a provision of a widest amplitude where the validity of the election can be challenged on any ground. The learned Advocate for the petitioners who were praying before the Court, for appropriate writs, orders and directions to amend the voters' list as claimed by them, has urged before us that the preparation of the voters' list cannot be said to be a part of the process of election as laid down in Lakshmi Charan Sen's case (supra). We do not think that Lakshmi Charan Sen's case lays down a general proposition of law as canvassed on behalf of the Petitioners seeking modification of the rolls. No doubt, the Supreme Court in Lakshmi Charan Sen's case (supra) found it difficult to hold consistently with the view which they have taken that preparation and revision of the electoral roll was a continuous process not connected with any particular election, that the preparation of electoral roll is a process of election. Even then, the Supreme Court kept that question open in the light of the conclusion reached on the other questions before it. The Supreme Court also expressed the view that when such a question crops up before the Court, it is a question of fact which is to be determined on the facts and in the circumstances of the case. We have, therefore, to examine in the first instance what is the scheme of the election of the Market Committee under die Act and the Rules.
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 primary 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 14 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 nomination, and accordingly the final list is to be prepared at least 30 days before 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 are 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 roll 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. If that is so, the question as to whether the roll should be modified at the instance of persons claiming to be voters or at the instance of persons objecting to the inclusion of the names of some persons in the voters' list is a matter relating to election, and having regard to the fact that it is a right conferred under the Act for which a special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finality in the matters pertaining to various stages of election and, therefore, having regard to the recognised principle in the matter of public importance that election should be concluded as early as possible according to the time schedule and all controversial matters as well as disputes arising out of die election including the right to vote or stand as a candidate should be postponed till after the elections are over so as to avoid impediment or hindrance in the election process, does not arise. In that view of the matter, therefore, we are of the opinion that this Court should not exercise the jurisdiction under Article 226 of the Constitution by interfering at this stage with the election process. In the view which we have taken on this first question, it is not necessary to go into the second question of each of these appeals.
29. We should be consistent with our view and reiterate that if the Court, on principle and authority, should not exercise the jurisdiction in such matters, pertaining to elections, it is proper not to express any opinion on the construction of a rule since the question as to whether a particular person is a voter or not, or continues to be a voter. or is entitled to be included in the voters' list, or entitled to object to inclusion of the names of some persons who, according to the objector, are ineligible for being included, are questions which are pre-eminently fit to be decided by the competent election authorities.
30. In that view of the matter we pass the following orders.
L.P.A. 382 85 For the reasons aforesaid, Letters Patent Appeal No. 382 of 1985 is allowed and the original petition being Special Civil Application No. 5620/85 is dismissed. There should be no order to costs in this appeal.
Interim relief granted by this Court is also vacated and the authorities shall take appropriate action in the n-utter in the light of this decision.
In view of the above, no order on Civil Application No. 4092/85 filed in this appeal.
L.P.A. Nos. 430 & 431 of 1985 For the reasons aforesaid, the appeals are dismissed and the orders of the learned Single Judge are confirmed. No order as to costs in these appeals. In view of the above, no orders on Civil Applications Nos. 4328 and 4327 of 1985 filed in these appeals, respectively.
L.P.A. Nos. 442, 443, 445 and 446 of 1985 For the reasons stated in this order, and not for the reasons which weighed with the learned Single Judge, the order of the learned Single Judge dismissing the main petitions being Special Civil Applications Nm 6212/85 and 6213/85 is confirmed. Interim relief granted is vacated and the election authorities may take appropriate action in the light of the decision rendered by us in these appeals.
Letters Patent Appeals Nos. 442 and 443 of 1985 are to that extent allowed with no order as to costs.
Letters Patent Appeals Nos. 445 and 440 of 1985 are accordingly dismissed with no order as to costs.
In view of the above, no orders on Civil Applications Nos. 4410 /84, 4417/85 and 4418/85.
31. Order accordingly