Gujarat High Court
Rathod Thakarshibhai Bhuraji vs State Of Gujarat on 21 August, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11904 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11907 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11909 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11919 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11922 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11924 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11926 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11927 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11928 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11930 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11932 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11934 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11935 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 11936 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
===================================================================================
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 or any order made thereunder ?
========================================================================================
RATHOD THAKARSHIBHAI BHURAJI & 4 other(s)
Versus
STATE OF GUJARAT
========================================================================================
Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2,3,4
MR SAAHIL TRIVEDI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3
MR VC VAGHELA for the Respondent(s)
MR ANIL H PATEL For the Respondent(s)
=====================================================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 21/08/2023
Page 1 of 41
Downloaded on : Sun Sep 17 01:55:33 IST 2023
NEUTRAL CITATION
C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023
undefined
COMMON ORAL JUDGMENT
1. Heard learned Advocate Mr Dipen Desai on behalf of the petitioners, learned Assistant Government Pleader Mr. Saahil Trivedi on behalf of the respondent no.1 to 3 and learned Advocate Mr. V.C. Vaghela on behalf of private respondents. Issue Rule returnable forthwith in Special Civil Applications No. 11904, 11907, 11909, 11919, 11922, 11924, 11926, 11930, 11932, 11934, 11935 and 11936 of 2023, learned Advocates would waive for the concerned respondents. With the consent of the parties, the petitions are taken up for final disposal.
2. The petitioners by way of these petitions inter alia question the decision of the respondent no. 4 herein whereby objections by the petitioners against inclusion of members in the managing committee of the private respondent societies have been rejected.
3. The facts as far as are necessary for the purpose of the present petitions are narrated hereinbelow:
3.1 It appears that the petitioners are agriculturists having agriculture land in their respective villages and whereas they are also voters in the agriculturist constituency in the Agriculture Produce Market Committee, Bhabhar ( herein after refereed to as 'APMC, Bhabhar'). It would appear that elections of the APMC, Bhabhar was held on 02.12.2020 and after the results were declared, and managing committee had been constituted, one elected member from the agriculturist constituency namely Shri Shankarbhai Gangarambhai Page 2 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined Chaudhary had expired on 25.05.2021. It appears that upon the seat getting vacant on account of demise of the member concerned, the petitioners had made representations for holding elections to the vacant seat and since the representations did not yield desired result, the petitioners had approached this Court against the Director, Agricultural Marketing and Rural Finance, Gujarat State and whereas vide an order dated 02.05.2023 based on statement on behalf of the State that election would be held at the earliest, the petitions were disposed of as withdrawn.
3.2 It appears that pursuant to such a statement, the elections were declared on 24.05.2023 by the respondent no. 2 -Director and whereas according to election programme, preliminary voters list was to be published on 14.06.2023, provisional voters list was to be published on or before 01.07.2023, and final voters list was to be published on 13.07.2023 and whereas election is to be held on 24.08.2023. It would appear that the provisional voters list had been published on 14.06.2023 in which list while the names of the petitioners had figured as voters in the agriculturist constituency, yet, the petitioners had also noticed that names of members of the managing committee of the respondent society had also been published. The petitioners had submitted their objection against inclusion of members in the voters list of the agriculturist constituency vide their objections dated 27.06.2023. It would appear that after giving an opportunity to the persons whose name were objected to by the petitioners as well as the petitioners themselves, vide order dated 01.07.2023, the respondent no. 4 had rejected the objections of the present petitioners.Page 3 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023
NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined
4. At this stage, it would be relevant to mention that the above facts, are the facts which would broadly be applicable to each of the petitions and whereas this Court would now record the submissions made by the petitioners petition wise.
5. It is further observed that since mainly three different submissions were canvassed by the learned Advocate appearing for the petitioners, more particularly such submissions being petition wise, the same are being noted petition wise as hereinbelow.
Submissions insofar as Special Civil Application No. 11904, 11907, 11909, 11919, 11922, 11924, 11926, 11927 and 11928 of 2023.
[1] Learned Advocate Mr. Dipen Desai on behalf of the petitioners would submit that the facts as well as the objections raised and the submissions to be made in the present petitions are near about similar. At this stage, it is noted that since all aspects are common, facts of Special Civil Application No. 11904 of 2023 is being referred to by this Court insofar as the group of petitions referred to hereinabove.
[2] According to learned Advocate Mr. Desai, the respondent no.5 society had passed a resolution in its general body dated 28.05.2023 whereby it was resolved to amend the bye-laws increasing the number of members in the managing committee from 11 to 21. Learned Advocate would submit that even before the said amendment was approved by the District Registrar, vide a meeting of the managing Page 4 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined committee a committee of 21 persons had been constituted. Learned Advocate would submit that the said committee had also called for a meeting of the general body of the society on 24.06.2023. Learned Advocate would submit that the scheme of the Gujarat Co-operative Society Act, 1961 inter alia envisages that amendment of bye law of a society, would become valid and operative only after the same is registered under the said Act by the Registrar. It is submitted by learned Advocate Mr. Desai that the Registrar had approved amendment in the bye law, whereby it was decided to inter alia increase the number of members in the managing committee from 11 to 21 on 30.05.2023. It is submitted that even before the bye law had been registered, the Respondent no.5 society had constituted managing committee of 21 persons. Learned Advocate would submit that in the interregnum, the respondent no.2 Director Agriculture Market and Rural Finance had published election programme under Rule 4 of the Gujarat Agriculture Produce Market Rule 1965. Learned Advocate would further point out that the preliminary voters list had been prepared by the respondent no.4 authorized officer on 14.06.2023 which included the names of 21 members of the managing committee of the respondent no.5 society. Learned Advocate would further draw the attention of this Court to minutes of meeting of the general body of the society dated 24.06.2023 and whereas it is emphasized that the members present decided to hold election to the managing committee of the society and whereas since forms of only 21 persons were received therefore, such 21 persons were declared elected unopposed. Learned Advocate would submit that the said minutes would point out to a very important aspect namely 21 forms were received and secondly, there was no election which had been Page 5 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined held on the said date before the managing committee had been selected.
6. Based upon the above learned Advocate Mr. Desai would make following submissions:
[1] It is submitted that the election programme had been declared on 24.05.2023. It is submitted that for the purpose of preparing of voters list, the same is a crucial date inasmuch as according to learned Advocate, the process of elections, would be stated to have commenced from the said date and whereas no person who gets eligibility after such date, could be included in the voters list. Learned Advocate would submit that an amendment to the bye-law as per Section 13 of the Co-operative Societies Act, would get validity only after the same is approved and registered by the Registrar. Learned Advocate would submit that in the instant case, the elections being declared on 24.05.2023 and whereas amendment in the bye-law increasing the members of the managing committee from 11 to 21, came to be approved on 30.05.2023 i.e. after the date of the election process having commenced. Learned Advocate would in this regard submit that since the election process as deemed to have started on 24.06.2023 and whereas the amendment in the bye-laws increasing the number of members in the managing committee from 11 to 21 being approved thereafter, even if upon the amendment in bye-law being approved by the Sub-Registrar and the members of the private respondent co-operative society acquiring eligibility after the said date, yet, the same would not ennure in favour of the respondents, since as per the law, any person acquiring eligibility after the process Page 6 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined of election had commenced, is not entitled to have his name included in the voters list for the said constituency.
[2] Learned Advocate Mr. Desai would refer to decision of Division Bench of this Court in case of Kalubhai Ranabhai Akabari vs. State of Gujarat reported in 2007(3) GLH 57 and decision of Division Bench of this Court in case of Dolatbhai Prabhubhai Demaniya vs. Director, Agriculture Marketing and Rural Finance reported in 2013 (2) GLH 157 in support of the above contention.
[3] Learned Advocate would further submit that apart from the above aspect, it would also appear that the members of the managing committee were not validly appointed. It is submitted by the learned Advocate that while the amendment in the bye law had been approved on 30.05.2023, and whereas it would appear that even before the amendment had been registered, the names of 21 members of the managing committee, which could have been formed only after the amendment had been allowed, had been forwarded to the authorized officer for inclusion in voters list for election of APMC, Bhabhar. Learned Advocate would submit that as such, from the facts it has been pointed out that on 24.06.2023, a meeting of general body was conducted where 21 members were selected as members of the managing committee and whereas in the minutes it is specifically mentioned that since it was decided to hold elections on the said date, therefore names had been called for and since only 21 forms have been received, all the 21 members had been elected unopposed. It is submitted by learned Advocate that even before Page 7 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined 24.06.2023, when 21 members of the managing committee had been shown to be selected, the list of 21 persons had been sent to the authorized officer for inclusion as members of the managing committee of the respondent society in question. Learned Advocate would submit that in addition to the fact that the 21 members could not have been included in the voters list since they derived eligibility after the election programme had been declared, even otherwise, the names of the said 21 members had been sent to the authorized officer even before they have been selected. According to learned Advocate Mr. Desai, the same being a grave lacuna, the authorized officer was required to interfere and direct deletion of names of 21 members who are members of the managing committee of respondent no.5 society.
[4] Learned Advocate would further submit that as per the requirement of Section 74 (1A)(i) of the Gujarat Co-operative Societies Act, 1961 the members of the managing committee are required to be elected whereas in the instant case, it is clear that the members have been selected and whereas selected members, ought not to have been included in the voters' list that the objections not being accepted by the authorized officer interference of this Court is requested for.
[5] Learned Advocate Mr. Desai for the petitioners in the above referred petitions, would submit that in case of the respondent no.5 society in the present petitions, in the main election of the APMC, Bhabhar, the authorized officer vide order dated 02.03.2020 had not included the names of the members of the managing committee of Page 8 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined the respondent no. 5 society more particularly on the ground that no election had taken placed for the constitution of the managing committee. According to learned Advocate, the said exclusion had been questioned by the respondent no.5 by preferring Special Civil Applications No. 6470 of 2020 and 6461 of 2020 and whereas learned Single Judge had while issuing Rule permitted the members of the respondent no. 5 society to cast their votes and whereas it was further directed that such vote shall be kept separately in a sealed cover and whereas there was no stay against the result of the elections to be declared. Learned Advocate would submit that while the petitioners had submitted their objections against inclusion of the very same members of the managing committee of respondent no. 5 society on the ground that election had not been held, and whereas it would appear that the authorized officer, inspite of the fact that in the main elections, the members of respondent no. 5 society were permitted to cast their votes and the votes are directed not to be counted by order of this Court, more particularly on account of the challenge to the exclusion of the said members by authorized officer as election had not taken place, yet, the present authorized officer had decided not to follow the view taken by the authorized officer during the main elections. Learned Advocate would submit that since it is clear that no election had taken place for electing members of the managing committee of respondent no. 5 society in Special Civil Application No. 11927 of 2023 and 11928 of 2023, therefore, the names of the members of the managing committee of the said society could not have included in the voters list. Thus submitting learned Advocate has requested interference of this Court.
Page 9 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined
Submission insofar as Special Civil Application No. 11930, 11932, 11934, 11935, 11936 of 2023 [1] It is the submission on part of the learned Advocate that in all these petitions, insofar as the respondent no. 5 society in the said petitions are concerned, their managing committee, had been constituted without holding any election rather by way of selection and therefore interference of this Court is requested. Learned Advocate Mr. Desai would submit that the only difference between the present group of petitions and the earlier two petitions being in the main election in APMC, Bhabhar, the members of managing committee of the Respondent no.5 society had been disqualified on the ground of the members of the Managing Committee not being elected and whereas such decision of disqualification had been challenged before this Court whereas in case of the present respondent no. 5 societies, the authorized officer had not excluded the said persons from the voters list in the main election.
[2] In addition to the jugements referred to hereinabove, learned Advocate Mr.Desai would rely upon decision of Hon'ble Division Bench of this Court in case of Mahendra Maganbhai Patel vs. State of Gujarat in Special Civil Application No. 126 of 2014, in case of Mandropur (Fatehpur) Youth Seva Sahkari Mandli Limited vs. State of Gujarat reported in 2017(2) GLR 1495.
7. These petitions are vehemently objected to by learned Assistant Government Pleader Mr. Saahil Trivedi on behalf of the Page 10 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined respondent- State. Learned AGP Mr. Trivedi would submit that Rule 28 of the Gujarat Agriculture Produce Market Committee Rules, 1965 ( hereinafter referred to as "the Rules") inter alia offers an alternative and efficacious remedy to the petitioners to challenge the rejection of objection by the authorized officer before the Director or the State Government as the case may be and whereas learned Advocate would submit that in view of the alternative remedy which has been held to be efficacious by various decisions, the present petitions may not be entertained by this Court. Learned AGP would rely upon decision of a Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorized Officer and Co-operative Officer ( Marketing) reported in 2006 (1) GCD 211 wherein it has been inter alia held that a person whose name is not included in the voters list can avail benefits of Rule 28 by filing Election Petition and whereas under Rule 28 an authority has wide power to cancel, confirm, amend and even direct holding of fresh election and whereas under such circumstances, remedy under Rule 28 is an efficacious remedy. Learned AGP would further submit that exclusion or inclusion of names in the voters list could not be terms as an extraordinary circumstance warranting interference of this Court under Article 226 of the Constitution of India. Learned AGP would submit that in view of the law laid down by Full Bench of this Court, this Court may not entertain the present set of petitions and may direct the petitioners to avail the remedy available under Rule 28. Learned AGP in support of his contention would also rely upon decision of Hon'ble Division Bench in case of Mohmed Javid Abdulmutlib Pirzada vs. State of Gujarat in Letters Patent Appeal No. 555 of 2022 dated 06.02.2023 and decision of learned Co-
Page 11 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined
ordinate Bench of this Court in case of Trivedi Arvindbhai hargovanbhai vs. State of Gujarat in Special Civil Application No. 10863 of 2020 and allied matters dated 25.09.2020 . Learned AGP would submit that the law laid down by the Full Bench has been followed and reiterated in the other decisions and whereas it is submitted that considering the same, this Court may not entertain the present writ petitions.
8. Learned AGP Mr. Saahil Trivedi would further submit that as such, the inquiry as contemplated under the Rules, by the authorized officer, is a summary inquiry more particularly Rule 16 of the Gujarat Agriculture Produce Market Committee Rules, 1965 itself contemplating the same and whereas in terms of the summary inquiry, the authorized officer was not required to hold a detailed inquiry as submitted by the petitioners more particularly as regards the aspect of whether the members of the managing committee of the respondent societies were validly appointed as members i.e after holding of an election or into the question whether the members of the respondent managing committee could be included in the voters' list after the date of the declaration of the election programme. Learned AGP would reiterate that all these aspects could be gone into by the Election Officer under Rule 28 of the Gujarat Agriculture Produce Market Committee Rules, 1965 and whereas under such circumstances also it is requested that this Court may not interfere.
9. Learned AGP would conclude by submitting that the present is not a case where the petitioners are questioning their exclusion from the voters' list rather the petitioners are questioning the Page 12 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined inclusion of private respondents in the voters' list and whereas since there is no right of the petitioners which is getting violated, this Court may not exercise extraordinary jurisdiction and whereas this Court may direct the petitioners to avail the alternative remedy available under Rule 28. Thus submitting learned AGP would request to reject the present petitions.
10. Learned Advocate Mr. V.C. Vaghela on behalf of the private respondents- Society would reiterate the submission made by learned AGP and would submit that the authorized officer was well within his rights, to reject the objection made by the present petitioners and whereas since the petitioners have an efficacious remedy in form of questioning the decision of the authorized officer and whereas under
such circumstances, it is requested that this Court may not entertain the present petitions.
11. Heard learned Advocates for the respective parties and perused the record.
12. At the outset since a question with regard to entertaining the present group of petitions has been raised by the learned AGP as well as learned Advocate Mr. Vaghela for the private respondents, before deciding on the issue on merits, this Court deems it appropriate to decide on the aspect of entertainibility.
13. It appears that Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited Vs. R.D. Rohit - 2006(1) GCD 211 was considering conflicting views of Division Benchs of this Page 13 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined Court, and had upon reference by a Division Bench, was called upon to answer whether exclusion in the voters' list would entail invoking provisions of Rule 28 of the Gujarat Agriculture Produce market Committee Rules, 1965 by filing Election Petition, whether remedy under Rule 28 could be termed to be an efficacious remedy and whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the election officer, including or excluding names of voters list in voters' list. The Full Bench, had answered the reference by holding that a person whose name is not included in the voterss list can avail benefit of provisions of Rule 28 of Gujarat Agriculture Produce Market Rules, 1965 by filing Election Petition, that the authority under Rule 28 has got wide power to cancel, confirm and amend election and also to direct holding of fresh election in case the election is set aside. Hence the remedy under Rule 28 is an efficacious remedy. The Full Bench had also observed that petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available and whereas such powers are to be exercised in case of extraordinary or special circumstances. The Full Bench also held that exclusion and inclusion of names in the voters' list could not be termed as extraordinary circumstances warranting interference of this Court under Article 226 of the Constitution of India and whereas such questions were to be decided in an Election Petition under Rule 28 of the Rules.
14. It appears that the law laid down by the Full Bench as above had been explained in a later decision of this Court. A Division Bench of this Court in case of Shrutbandhu H. Popat vs. State of Gujarat Page 14 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined reported in 2007(3) GLR 1942 , was considering a challenge to a resolution passed by Agricultural Produce Market Committee, Kalavad for granting traders licence, to 293 persons, which would have the effect of including such traders in the voters' list for the constituency concerned namely traders holding general license under Section 11(1)(ii) of the Gujarat Agricultural Produce Market Committee Act, 1963.
14.1. It also appears that the said resolution had been challenged in context of the licenses being issued after the Director, Agriculture Marketing and Rural Finance, Gujarat State had declared the election programme to the said APMC. The Hon'ble Division Bench had examined and explained the law laid down by the Hon'ble Division Bench. Paragraphs Nos. 25, 26, 27, 28 and 29 of the said decision, being relevant for the present purpose are reproduced hereinbelow for benefit:
"[25] In Election Commission of India vs. Ashok kumar, (2000) 8 SCC 216, the Apex Court has laid down the following principles in paragraphs 28 and 32 of the judgment :-
"28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :-
1) If an election, (the term 'election' being widely interpreted so as to Page 15 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings.
The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
(emphasis supplied) [26]. The present case certainly falls in the category of extraordinary situations wherein the writ jurisdiction will have to be exercised for the welfare of the constituency of the traders and for strengthening the democracy. The Resolution dated 20-01-2007 was a clear attempt to subvert the fair election process and, therefore, this Court merely proposes to correct the progress of the election proceedings by removing the attempt of the outgoing office bearers of the APMC to subvert the election process by Page 16 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined creating an artificial majority in the constituency of traders holding general licences under clause (ii) of sub-section (1) of Section 11 of the APMC Act.
[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.
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 Page 17 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined 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 Co-urt 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."
15 . Considering the observations of the Hon'ble Division Bench, it would appear that the Division Bench had explained the decision of the Full Bench more particularly whereby the Hon'ble Full Bench had inter alia observed that while in normal circumstances inclusion or exclusion from the voters' list could be challenged in an Election Petition under Rule 28 of the Rules after the elections are held yet, the Page 18 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined powers under Article 226 of the Constitution of India could be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and and /or ex facie without jurisdiction.
16. It is also observed that the Full Bench had followed the principles laid down by the Apex Court in case of Election Commission of India vs. Ashok Kumar reported in 2000 (8) SCC 216 and Manda Jaganath vs. K.S. Rathnam reported in AIR 2004 SC 3600 whereby the Hon'ble Apex Court had inter alia laid down that any decision in the election process is open to judicial review on ground of malafide or arbitrary exercise of powers and the 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.
16.1 It appears that the said proposition has been followed in later decisions of this Court in case of Kalubhai Ranabhai Akabari (supra) and in case of Mahendra Maganbhai Patel (supra), It would further appear that in case of Mahendra Maganbhai Patel (supra), after discussing the law laid down by the Hon'ble Division Bench in case of Shrutbandhu H. Popat (supra), the Hon'ble Division Bench, had also relied upon observations of a Division Bench of this Court in case of Vasundra Samudayik Kheti Sahakari Mandali Limited vs. State of Gujarat in Special Civil Application No. 16249 of 2011 and allied matters and whereas before restating the conclusions, the Hon'ble Division Bench had relied upon paragraph nos. 22 to 30 of the Division Bench of the decision in case of Vasundra Samudayik Page 19 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined Kheti Sahakari Mandali Limited vs. State of Gujarat which this Court deems also appropriate to reproduce hereinbelow:
"22. Under the circumstances, the question would be, should we refrain from exercising writ jurisdiction and relegate the petitioners to alternative remedy of filing an election petition once the elections are concluded on the basis of voters list prepared by respondent No.4.
23. From the days of Ponnuswami, AIR 1952 SC 64, Courts are loathe to interfere with election process once the same is set in motion. Subsequently, however, the Apex Court in the case of Ashok Kumar (supra) after taking note of the decision in Ponnuswami, and other decisions in the field recognized a small area where despite availability of alternative remedy and in particular in the field of election, interference from the court in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution would still be open. The observations of the Apex Court in this regard may be noted.
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :- (1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings,judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or Page 20 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." Later on, in the case of Pundlik (supra), the Apex Court once again, finding that the decision of the Collector was wholly erroneous and contrary to rule 5(2) of the Maharashtra Specified Cooperative Societies (Election to Committees) Rules, found that interference in exercise of writ jurisdiction was justified. The Apex Court also took note of the fact that the petitioners therein had approached the High Court soon after the exclusion from the voters list. In this background, distinguishing its previous judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakarii Dugdha Utpadak Sanstha v.
State of Maharashtra,(2001) 8 SCC 509, the Apex Court observed as under:
"13. We see considerable force in the contention of the learned counsel for the appellant. Bare reading of R. 5(2) makes it abundantly clear that the society which has communicated the name of its delegate can change the name of such delegate within the period stipulated therein. It was, therefore, open to respondent-Sangh to exercise the said power in accordance with R. 5(2) which has been done. It was the case of respondent No. 2-Collector that in the list of subjects of the meeting convened on June 9, 2005, there was no subject for sending the name of representative for the election of the Maha Sangh and yet the representative was changed which was not proper. But the learned counsel for the appellant has rightly referred to the proceedings dated June 9, 2005, and in particular Resolution No. 7. It is further clear from agenda notice dated June 2, 2005, in which it was stated that the meeting of Board of Directors of respondent-Sangh would be held on June 9, 2005 for discussing various subjects and subject No. 7 related to the fax message received from the Collector, Mumbai, respondent No. 2 in connection with the election of respondent No. 3-Maha Sangh. Pursuant to the above agenda notice, a meeting was held, subject No. 7 was taken for consideration and Resolution No. 7 was passed. By the said resolution, it was decided that instead of name of respondent No. 7, name of appellant will be sent as delegate and representative of respondent-Sangh and the said Page 21 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined resolution was forwarded to respondent No. 2- Collector. He was, therefore, under obligation to effect change under R. 5(2) of the Rules. By not acting on the resolution, the respondent No. 2- Collector has acted contrary to law and the appellant was wholly justified in making complaint before the High Court and praying for exercise of writ jurisdiction under Art. 226 of the Constitution." A Full Bench of this Court also in the case of Daheda Group Seva Sahakari Mandli Ltd. (supra) while holding that exclusion or inclusion of names from the voters list cannot be termed extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution, recognized that in exceptional cases, the court can exercise powers of judicial review, which is the basic structure. It was observed that ordinarily court would not like to exercise its powers under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing electoral roll. The Bench observed :
"32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll."
24. Thus, even in the Full Bench decision, in the case of Deheda Group Seva Sahakari Mandli Ltd (supra), the Bench recognized exceptional circumstances where writ jurisdiction would still be exercised. Later decisions of this Court pointed out by the respondents more or less have followed the Full Bench view in the aforesaid case.
25. On the other hand, there are certain judgments of the Division Bench of this Court which have, in extraordinary circumstances, in exercise of writ jurisdiction, given directions to ensure conduct of elections in fair manner. In the case of S.H. Popad (supra), a Division Bench observed as under:
"21. In view of the above material on record and in view of the fact that the meeting of the licence sub-committee was convened on 20.1.2007 Page 22 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined after the Dy. Director for Agricultural Marketing and Rural Finance had sent a communication dated 10.1.2007 for fixing the date of election and the Director of Agricultural Marketing and Rural Finance had already declared the election program on 17/18th January 2007 (which program was subsequently merely varied by postponing the date of polling and the other stages of election) and having examined the scheme of the Act and the Rules, we have no manner of doubt in holding that the resolution dated 20.1.2007 of the licence sub-committee for granting as many as 293 licences (269 fresh licences) was not only illegal but also a fraud on the election process. As held by the Hon'ble Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216, without granting stay on the election process, this Court can intervene for the purpose of strengthening the democracy and for removing the obstacles to the fair election process. In our view, therefore, this is an extraordinary situation justifying our intervention for the purpose of striking down the resolution dated 20.1.2007 of the licence sub- committee and to direct the respondent-authorities not to permit the persons granted licences pursuant to the said resolution to participate in the elections to APMC Kalavad, Dist. Jamnagar.
In the case of Gujarat State Cooperative Bank (supra), a Division Bench of this court observed as under :
"14. Similar preliminary contention raised in another petition under Article 226 of the Constitution challenging the voters' list was rejected by a Division Bench of this Court to which one of us was a party. In Shrutbabdhu H. Popat v. State, 2007(3) GLR 1942, the preliminary contention was rejected on the ground that after the decision of the Full Bench decision rendered on 27.4.2005, in the subsequent decision dated 25.8.2005 of the Apex Court, in the case of Pundlik v. State of Maharashtra reported in 2005(7) SCC 181, the Apex Court has held that though preparation of the voters list is one of the integral process of election and that normally the High Court should not interfere in exercise of powers under Article 226 of the Constitution, but such action must be in accordance with law. In Pundlik's case, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami's case, 2001 (8) SCC 509 in which objections against publication of the provisional electoral roll of the society were considered by the Collector and dispose 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 voters' list. It was in the background of the said facts that the Apex Court held in Shri Santi Sadguru case that the High Court should not stay continuation of the election process Page 23 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined even if there may be some breach of Rules while preparing the electoral roll. Just as in the Pundlik's case, in the instant case the petitioner has taken action for challenging the inclusion of respondent Nos. 11 to 15 in the final voters' list immediately after publication of the voters' list."
In the case of Patel Chandrakant Thakorbhai (supra), a Division Bench taking note of the decisions of the Supreme Court in the case of Pundlik (supra) and Ashok Kumar (supra), while allowing the writ petition with respect to preparation of voters list observed as under:
"19. In the facts and circumstances of the case, we have no manner of doubt that the principles laid down by two Division Benches of this Court in Shrutbandhu H. Popat (supra) and in Kalubhai Ranabhai Akabari (supra) must be held to prevail over the principle that the authorized officer would not entertain the objections against the inclusion of names of persons in the provisional voters' list, who were already included in the preliminary voters' list."
26. From the above noted decisions, following aspects emerge.
27. Availability of alternative remedy though may persuade the Court not to exercise writ jurisdiction under Article 226 of the Constitution, the same is never considered a total bar. It is more a matter of self-imposed restraint by the court rather than a question of lack of jurisdiction. This is so because judicial review is considered as a basic feature of the Constitution. Exercise of writ jurisdiction under Article 226 is a constitutional guarantee. We may refer to the following decisions at this stage.
27.1 In the case of Amrik Singh Lyallpuri v. Union of Inida, (2011) 6 SCC 535, the Apex Court observed as follows : "17. In a subsequent Constitution Bench decision of this Court in L.Chandra Kumar v. Union of India, Ahmadi, C.J. After an analysis of different decisions of this Court affirmatively held that judicial review is one of the basic features of our Constitution. Such a finding of this Court, obviously means that there cannot be an administrative review of a decision taken by a judicial or a quasi-judicial authority which has the trappings of a court. Since judicial review has been considered an intrinsic part of constutionalism, any statutory provision which provides for administrative review of a decision taken by a judicial or a quasi-judicial body is, therefore, inconsistent with the aforesaid postulate and is unconstitutional."
27.2 In the case of M. Nagaraj v. Union of Inida, (2006) 8 SCC 212, the Apex Court observed as under:
Page 24 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined "31. At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice, both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State Legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by courts of justice. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our Constitution because it is necessary to give effect to the distribution of legislative power between Parliament and State Legislatures, and is also necessary to give practicable content to the objectives of the Constitution embodied in PartIII and in several other Articles of our Constitution."
28. Despite availability of such wide powers of issuance of various writs under Article 226 of the Constitution, Courts have always frowned upon interfering with the election process once the same is set in motion. Such self-imposed restriction is maintained particularly when any writ or order would have the effect of either arresting or derailing or delaying the election. The paramount consideration before the Court always is not to delay, detract or arrest the election process which is already set in motion. However, if it is found that the decision of the Authorized officer is malafide, arbitrary, in breach of law or opposed to the principles of natural justice, the courts have recognized the power to interfere and often interfered with even before the completion of the election to give suitable direction without delaying, derailing or arresting the election process which has already commenced.
Page 25 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined
Such interference is viewed as one in furtherance of holding free and fair election rather than to arrest or delay the election process.
29. Under the circumstances, we are of the opinion that though ordinarily court would not interfere once the election process is commenced, and particularly with respect to preparation of voters list which process is recognized as part of election process, and would ordinarily leave the parties toraise all disputes post election in an election petition, there would be instances where the interference of the court looking to the peculiar and rare circumstances would be called for. In the present cases, as we have already held, the decision of the Authorized Officer is contrary to the law laid down by this court in two decisions in case of Husseinbhai (supra) and Jagdishbhai Ranchhodbhai (supra). No contrary decisions have been cited before us. View of this Court is thus consistent and unambiguous. Such pronouncement was made by learned Single Judge in case of Husseinbhai (supra) way back in 1979. Such view was reiterated by Division Bench more recently in case of Jagdishbhai Ranchhodbhai (supra). As noted, petitioners have stated that in election of other APMC's, voters' lists are prepared accordingly. Permitting such order to survive would only result into perpetuating palpable illegality. At the end of election also, if an election petition is filed, the authority would have no alternative but to follow the ratio laid down by this Court in the case of Husseinbhai (supra) and in the case of Jagdishbhai Ranchhodbhai (supra). We are therefore of the opinion that by giving suitable directions if such injustice can be remedied without delaying the election or arresting the election process, writ jurisdiction in facts of the present case should be exercised.
30. Before closing, we would like to clarify that interference in election process particularly in preparation of voters list would be in extremely rare circumstances. We should not mean to have suggested that such interference could be ordinarily done merely because the petitioners make out a prima facie case of some illegality or irregularity."
17. The Hon'ble Division Bench in case of Mahendrabhai Maganbhai Patel (supra), after referring to the above observations, had laid down the areas of interference in case where an alternative remedy is available under Rule 28 of the Rules. The observations of the Hon'ble Division Bench at paragraphs no. 8.7 and 8.8 in case of Mahendrabhai Maganbhai Patel (supra) being relevant for the present Page 26 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined purpose is reproduced hereinbelow for benefit:
"[8.7] The sum and substance of the aforesaid discussion would be that whenever it is found by the Court that an extraordinary case is made out and it is found that there is an attempt to create an artificial majority and the action is found to be not only illegal but also fraud on election process and the intervention of the court is warranted, the Court can certainly entertain the petition under Article 226 of the Constitution of India and grant the relief and/or issue writ in exercise of powers under Article 226 of the Constitution of India.
[8.8] It is required to be noted that as such a remedy available under Article 226 would be a constitutional remedy and nobody can take away such right. Therefore, as such to say that in view of the alternative remedy under Rule 28 of the Rules of filing an election petition, a petition under Article 226 of the Constitution of India would not be maintainable, cannot be accepted. As such it cannot be said that a petition under Article 226 of the Constitution of India in view of the alternative remedy would not be maintainable. There is a distinction between the maintainability and entertainability of the petition under Article 226 of the Constitution of India. In an appropriate case though the petition under Article 226 of the Constitution of India would be maintainable, still the Court may refuse to entertain the petition under Article 226 of the Constitution of India and Rules to grant any relief and/or issue writ in exercise of powers under Article 226 of the Constitution of India in view of the alternative efficacious statutory remedy available. At the same time and as observed hereinabove an extraordinary case being made out to maintain the democratic principles, even with respect to election related disputes, however, without in any way affecting the further election programme, a petition under Article 226 of the Constitution of India can be entertained and writ can be issued in an appropriate case."
18. From the above observations of the Hon'ble Division Bench, it would clearly appear that the Hon'ble Division Bench has considered the distinction between maintainability and entertainibility of a petition under Article 226 of the Constitution of India. As per the law laid down by the Hon'ble Division Bench, while a writ petition would be maintainable even in case of an alternative remedy and whereas the Court exercising jurisdiction under Article 226 of the Constitution of India, would be well justified not to entertain a petition in view of an alternative remedy but at the same time, a proposition that in view of an alternative remedy, a writ petition Page 27 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined could not be maintainable was not accepted. From the observations of the Division Bench it appears to this Court that while in extraordinary cases more particularly with regard to maintaining democratic principles, even in respect of an election related disputes, without effecting the further election programme, a petition under Article 226 of the Constitution of India can be entertained and the writ can be issued in appropriate case.
19. From the above law laid down by Division Benches of this Court, more particularly explaining the decision of the Hon'ble Full Bench in case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorised Officer and Co-operative Officer (Marketing), it would appear that the proposition that in view of an alternative remedy available, writ petition under Article 226 of the Constitution of India would not be maintainable, had been explained by observing that in view of availability of an alternative remedy a writ petition may not be entertained but it could not be stated that in view of availability of alternative remedy a writ petition could not be maintainable. It also appears that in addition to the exceptions to the self imposed restraint of not entertaining petitions in view of alternative remedy, i.e. where the writ is sought for for enforcement of fundamental right, that a violation of principles of natural justice is alleged, or the order or proceedings are wholly without jurisdiction and the vires of a legislation being challenged, the election matters, an exception is further carved out where it is held that in extraordinary situations without effecting the further election programme and more particularly in furtherance of free and fair, a writ under Article 226 of Constitution of India could be entertained.
Page 28 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined 19.1 Thus the issue which requires consideration for deciding
whether a writ petition where an election related dispute is called into question, apart from the well recognized principles which are an exception to the self imposed restraint of not entertaining writ petitions under Article 226 of Constitution of India on ground of availability of alternative remedy, the Court would also look into the aspect whether the extraordinary case for protecting democratic principles more particularly in furtherance of election programme is made out or not.
20. Having regard to the above issue, it would appear that in the present petition three issues have been raised by the petitioners, more particularly questioning the decision of the authorized officer being (1) The members of managing committee of the respondent no.5 - Co-operative Societies, acquired eligibility after the date of the declaration of the election programme and hence their names could not have figured in the voters' list.
(2a) The amendment to the bye laws increasing the numbers of members of the managing committee from 11 to 21, was validated and approved by the Registrar as per the scheme of the Gujarat Co- operative Societies Act on 30.05.2023, whereas the names of the petitioners as members of the managing committee had been referred to the authorized officer even before the said date, which is illegal.
(2b) That the fraud has been committed in the election process
Page 29 of 41
Downloaded on : Sun Sep 17 01:55:33 IST 2023
NEUTRAL CITATION
C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023
undefined
more particularly since in some of the cases, the meeting of the general body had been held after the date of validation of the bye-law and whereas the members of the managing committee had been selected on the said date yet, even before the date of selection, their names had been communicated to the authorized officer which is according to the petitioner s fraudulent practice and (3) That the members of the managing committee of respondent no. 5- Society are selected whereas the law requires to be elected.
21. Insofar as the aspect of a person who acquires eligibility after declaration of election, it would appear that the said issue is no more res integra. It would appear that in case of Kalubhai Ranabhai Akabari vs. State of Gujarat, the Division Bench at paragraph no. 31 while summing up had inter alia observed that the relevant date for determining the eligibility of a person for inclusion in the voters' list for election to APMC is date on which the authorized officer is to be communicated the names as indicated in Sub-Rule 7 of the APMC Rules. It would appear that the said aspect came to be explained further by Division Bench in case of Dolatabai Prabhubhai Dumaniya vs. Director Agricultural Marketing and Rural Finance reported in 2013(2) GLH 157 whereby the Hon'ble Division Bench was considering about the relevant date from which the process of election could be stated to have started i.e the date on which the Director published the election programme as per Rule 4(1) of the APMC Rules or the date fixed by the Director for the stages of election under Section 10 (2) of the said Rules. Paragraphs no. 14, 15, 16, 17, 18, 19 of the said decision being relevant for the present Page 30 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined purpose are being reproduced hereinbelow for benefit:
"14. Therefore, we will have to examine as to which will be the date to be treated as the declaration of the election and incidentally the question also will have to be examined about the sanctity to be maintained of the election so as to uphold the democratic principles in a free and fair manner.
15. Learned counsel appearing for the petitioners did contend that once a declaration is made by the Director by fixation of various dates of election and he has passed an order under Rule 4 of the Rules for such purpose, such will be the date to be termed as the declaration of the elections. Whereas the learned counsel appearing for the respondents contended that the correct date will be the date for beginning of various stages under Rule 10(1), which in the present case is 21.01.2013 and it cannot be said to have commenced from 09.01.2013 when the Director exercised powers under Rule 4 for fixation of various stages of the election.
16. As observed in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. (supra), the process of election can be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and all stages of elections are so conjoint with the manner and mode of holding of the election, it is not possible for us to find that the process of election cannot be said to have commenced after exercise of powers under Rule 4 of the Rules. There are three reasons for which we are inclined to take the aforesaid view. The first is that Part III of the Rules under the Head "Election of Market Committee" begins with Rule 4 providing for the power with Director to pass the order in writing for fixation of the dates of the election and for publication of such order passed by him by affixing the copy in market committee as well as at the conspicuous place in the principal market yard. Therefore, it appears that the intention of the legislature to begin with the process of commencement of election is from the stage of Rule 4. The second reason is that all stages, including that of Rules 7 and 10, would be only after the power is exercised under Rule 4 by the Director. Therefore, in absence of any exercise of powers under Rule 4, it cannot be said that the process of election has commenced or that the subsequent stages of the elections, including that of Rules 7 and 10 would accrue. The third reason is that when the Court is to interpret any provisions of statute, it would make a purposive interpretation so as to maintain the sanctity of election. If the interpretation is made that the process of election has not commenced after exercise of powers by the Director under Rule 4, such would leave room for a large number of manipulations to be made at the ensuing election of any market committee. After the declaration of the election programme by exercise of powers by the Page 31 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined Director under Rule 4, one can easily tinker with the sanctity of election. e.g. In the case of the Agriculturists' Constituency where the co-operative societies dispensing agricultural credit and their representatives are the voters, new societies can be formed so as to create an artificial majority or minority as may be convenient to the ruling party. If certain societies are created and the show is made as that of functioning by such societies by dispensing agricultural credit, those societies would get themselves included in the voters' list and consequently, a situation may be created which would materially affect the representation to be made from such voters' constituency of agriculturists. Similarly, even in the case of Traders' Constituency, if after publication of the election programme by exercise of powers by the Director under Rule 4, new licences may be issued by the members of the market committee, who are in power so as to create an artificial majority at the ensuing election and a situation may be created which would materially affect the representation to be made from such voters' constituency of Traders. In the same manner, in the case of co-operative societies' constituency, new societies may be formed and or the market committee may issue licences so as to make eligible such societies to be included in the voters' list even after the election is declared.
17. The aforesaid are only some of the examples of tinkering with the sanctity of election, but there could be number of instances of such types. It is hardly required to be stated that once the election programme is published, the sanctity of the election process must be maintained by all concerned. Any attempt to tinker with the sanctity of the election would adversely affect the maintenance of the democratic principles to be observed in a free and fair manner for holding of the election. Once an election programme is published by fixing various stages of election, it would be known to all concerned that the process of election has already commenced and they should not enter into any act which may result into adversely affecting the process of the election and the smooth course of holding election by maintenance of the democratic principles.
18. In view of aforesaid observations and discussion, we find that it is not possible to accept the contention of the respondents that the election process could not be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and has fixed the various stages of the election and has published the same.
19. Once the process of election has commenced from 09.01.2013, any person getting eligibility after such date can be termed as not entitled to be included in the voters' list. In the same manner, the Authorised Officer will Page 32 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined have no authority or competence or jurisdiction to include the names of such voters who have acquired eligibility after 09.01.2013. If the facts of the present case are examined further, in Special Civil Application No.1890 of 2013, the respondent Nos.4, 5 and 6 have obtained licences from the market committee on 11.01.2013. Therefore, the eligibility for inclusion of their names in the voters' list of co-operative societies' constituency could be said to have acquired only on 11.01.2013, which is later to 09.01.2013. Therefore, the eligibility could be said to have acquired for inclusion of their names in the co-operative societies' constituency after the commencement of the process of election."
22. From the above observation it would appear that the Division Bench, has inter alia laid down that the process of election would be commenced from the date when the Director had published the election programme and whereas the Hon'ble Division Bench had also gone further to hold that any person getting eligibility after such date can be termed as not entitled to be included in the voters list. The Hon'ble Division Bench has further observed that "in the same manner the authorized officer will have no authority or competence or jurisdiction to include the names of such voters who have acquired eligibility after 09.01.2013 I.e in the facts of the said case after the date when the election programme had been published. It appears that the proposition as laid down in Kalubhai Ranabhai Akabari and further explained in Dolatabai Prabhubhai Dumaniya vs. Director Agricultural Marketing and Rural Finance, had been followed by the Division Bench in case of Mahendrabhai Maganbhai Patel (supra) and whereas at paragraph no. 9.1, the Hon'ble Division Bench has has observed thus:
"9.1 Identical question came to be considered by the Division Bench recently in the decision dated 1/5.08.2013 rendered in Special Civil Application No.9965/2013 and after considering Page 33 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined the aforesaid decisions as well as other decisions in the case of Dolatbhai Prabhubhai Dumaniya Vs. Director, Agriculture Marketing and Rural Finance, decided on 13.3.2013, reported in 2013 (0) GLHELHC, 229249 that fixation of date of election as per Rule 4 of the Rules can be said to be the starting point of initiation of the process for commencement of the election and if the traders licenses are granted thereafter and/or even on the eve of such a fixation of the date of election [under Rule 4], the same would be illegal only with a view to create an artificial majority and would be a fraud on the election process and therefore, names of those license holders are not required to be included in the voters' list. The contention on behalf of the private respondents that relevant date for the purpose of commencement of election can be publication of the election programme in the local newspaper, in the present case on 21.11.2013, and in the present case traders license have been issued to them on 20.11.2013 i.e. prior to the publication of the election programme in the local newspaper and therefore, their names are required to be included in the voters' list cannot be accepted. In the present case, as such as stated herein above, the declaration of the election was on 16.11.2013, the election programme was prepared on 17.11.2013 which was send to the press/committee on the very day and it has been published on 21.11.2013. Even in the case of Chandrakant Manibhai Patel vs. State of Gujarat & Ors. rendered in Special Civil Application No.9965/2013, the licenses were granted on the eve of the declaration of the election programme [under Rule 4], the same is held to be illegal."
22.1 From the law laid down by the Hon'ble Division Benches, it requires no further explanation that the date of publication of the election process by the Director would be the relevant date when the process of election could be stated to be have commenced.
Page 34 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined
23. It is needs to be reiterated that as per the law laid down any person who has acquired eligibility after the date of publication of the election process, could not be included in the voters' list. Considering the facts situation from the touchstone of the law laid down by the Division Benches of this Court, as above, it would appear that in the instant case, the law has been observed in its breach. It would appear that as per Section 13 of the Gujarat Co-operative Societies Act, a bye-law of a society would be valid only after the same is registered under the Act. The registration of the amendment to bye law as contemplated under the Act is to be done by the Registrar and whereas it is only upon registration and certification by the Registrar, the same would be a valid bye-law. In the instant case, the bye-law had been registered by the District Registrar on 30.05.2023. The society concerned i.e. respondent no.5 society could have acted upon bye-law only after it was registered i.e. on 30.05.2023 and whereas in the instant case it would appear that the declaration of the election preceded the registration by the Registrar. Thus it would appear that the respondent no.5 societies who have enhanced the strength of their member of the managing committee from 11 to 21, only after the bye-law had been registered and whereas in the present cases it would appear that even before the amendment was approved, the respondent no.5 societies, had constituted in their meeting of general body a managing committee of 21 members. It would thus appear that in Special Civil Applications No. 11904, 11907, 11909, 11919, 11922, 11924 and 11926 of 2023, the naming of 21 members in the general body had preceded the registration by Registrar and whereas it appears that the said names had been forwarded as voters of the said society to the authorized officer and whereas it is under such Page 35 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined circumstance that the names of such persons appeared in the preliminary voters list. It would thus be clearly held that the names of the members of the respondent no.5 societies were not entitled to be included in the voters' list.
23.1 Furthermore, in the considered opinion of this Court, while it is true that Rule 16 of Rules contemplates only a summary inquiry but at the same time, an inquiry, which does not require a deep delving into the facts and where the dates are undisputed as available on record, more particularly whereby it would be discernible that office bearers of the respondent societies in writ petitions numbered hereinabove did not acquire eligibility as such till 30.05.2023. Such acquiring of eligibility being after the date when the election programme had been published which would not be permissible in terms of the law laid down by this Court. In the considered opinion of this Court, such inclusion in the voters' list, would be against the democratic principles and whereas the same in an extraordinary situation, which ought to have been rectified by the authorized officer and having not done so, interference of this Court is warranted.
24. It also requires to be mentioned here that the members of the managing committee of respondent no.5 societies, were selected as such in a meeting of the general body dated 24.06.2023 whereas it would also appear on perusal of the minutes of the said meeting that the members were selected as there was no other member who had filled up the form for contesting the election to the managing committee of the society concerned. The question here is, if the members of the managing committee had been selected on 24.06.2023, Page 36 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined then their names could not have been reflected in the preliminary voters list before 14.06.2023. Thus it would appear that while the election programme was published on 24.05.2023, the bye-laws by which the strength of the members of the managing committee had been enhanced from 11 to 21, had been approved by the District Registrar on 30.05.2023 and whereas it is on strength of the said approval that the managing committee which constited of 11 members to enhance 21 members and whereas the members of the managing committee had been selected on 24.06.2023 yet their names figured in a preliminary voters list which was 10 days earlier than their selection. This aspects would clearly show that the present was an extraordinary situation, where democratic principles had not been followed and whereas this is fit case where authorized officer should have interfered and have removed the ineligible persons from the voters list and whereas since the same does not appear to have been done, therefore this Court deems it appropriate to interfere .
Special Civil Applications No. 11927 and 11928 of 2023 In this set of petitions, as would have been noticed hereinabove, the petitioner has raised a grievance as regards the members of the managing committee not being elected which is a primary requirement for the purpose of constitution of the managing committee. It would also appear that insofar as Special Civil Applications No. 11927 and 11928 of 2023, in the main elections to the APMC, Bhabar, the members of the managing committee of the respondent no. 5 society were excluded from the voters list on the ground that no election had taken place for the purpose of constitution of the managing committee and whereas this Court had not granted Page 37 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined any interim relief in a challenge by managing committee concerned i.e respondent no. 5 herein. It is the case of the petitioners that the situation remaining as such that is the members who were sought to be included in the voters' list had been selected which was questioning the main election, yet, the authorized officer had not disqaulified a very same members. In the considered opinion of this Court, the facts of the present two petitions also rereflect an extraordinary situation inasmuch as while the members of the managing committee had been disqualified in the main election to the Bhabar APMC on the ground that the members were selected and not elected and whereas the said order had not been interfered with by this Court, whereas the members i.e the members of the managing committee of the respondent no.5 society were permitted to cast their votes but their votes were kept in sealed cover subject to final outcome of the petitions. In the considered opinion of this Court, the authorized officer having taken such a stand in the main election, could not have taken a contrary stand in the by- election more particularly since his order had not been interfered with by this Court. Under such circumstances, from the present two petitions also, in the considered opinion of this Court, interference is warranted.
Special Civil Application Nos. 11930, 11932, 11934, 11935, and 11936 of 2023.
Insofar as present group of petitions is concerned, the primary submission is that members of the managing committee were not elected and whereas the managing committee had been constituted through a selection which is in violation of Section 74( 1A)(ii).
Page 38 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined
25. Having heard the submissions of learned Advocates on this issue, it would appear to this Court that no extraordinary situation is presented insofar as the present five cases are concerned, more particularly since consideration of such an issue, would have entailed that the authorized officer, would be required to hold a detailed inquiry rather than a summary inquiry which is as contemplated under Rules. In any case it would appear that the issue of whether the managing committee could be constituted only through election etc. is pending consideration of this Court in Letters Patent Appeal No. 685 of 2020. Thus whether legal issue was being considered by a Division Bench of this Court and where as noted above it would appear that deciding the issue would have entailed an inquiry beyond the summary inquiry as contemplated under the Rules, therefore, in the considered opinion of this Court, the Authorized Officer has rightly not interfered insofar as the said issue is concerned.
26. Under such circumstances, while this Court deems it appropriate to interfere insofar as Special Civil Applications No. 11904, 11907, 11909, 11919, 11922, 11924, 11926, 11927 and 11928 of 2023 and whereas in Special Civil Applications No. 11930, 11932, 11934, 11935, and 11936 of 2023, this Court deems it appropriate not to interfere. In view of the above discussion, observations and conclusions, the following directions are passed:
[1] Special Civil Application No. 11904, 11907, 11909, 11919, 11922, 11924, 11926 of 2023 are allowed.
Page 39 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined [2] Insofar as the Special Civil Application No. 11904,
11907, 11909, 11919, 11922, 11924, 11926 of 2023, are concerned, respondent no.4 is directed to delete the names of the members of the respondent 5 societies from the final voters list for election to APMC, Bhabhar which had been published on 13.07.2023.
[3] It is further directed that after the deletion of names of the members of the managing committee of respondent no.5 societies in the above numbered petitions, the election process shall be conducted further as per the schedule of the election.
[4] Insofar as Special Civil Application No. 11927 and 11928 of of 2023, issue Rule. Further by way of interim relief it is directed that members of the managing committee of the respondent no.5 societies in the said writ petitions,shall be permitted to cast vote and whereas their votes shall be kept in a sealed cover which would be subject to final result of the said writ petitions as well as which would be subject to final outcome of Special Civil Application No. 6470 of 2020 and allied matters. The present writ petitions are directed to be tagged along with Special Civil Application No. 6470 of 2020 and allied matters .
[5] Insofar as Special Civil Applications No. 11930, 11932, 11934, 11935, and 11936 of 2023, the said petitions are rejected with liberty reserved in favour of the petitioners to approach the competent authority under Rule 28 of the Rules by preferring an Election Petition.
Page 40 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023 NEUTRAL CITATION C/SCA/11904/2023 JUDGMENT DATED: 21/08/2023 undefined [6] Insofar as the above writ petitions are concerned, this
Court clarifies that this Court has not gone into the merits of the matter and whereas if the petitioners prefer an election petition, the same shall be decided by the competent authority on its own merits strictly in accordance with law.
27. With these observations and directions, Special Civil Application No. 11904, 11907, 11909, 11919, 11922, 11924, 11926 of 2023 are disposed of as allowed. Rule is made absolute to the aforesaid extent.
28. Special Civil Applications No. 11930, 11932, 11934, 11935, and 11936 of 2023, are rejected with the liberty as reserved hereinabove. Rule is discharged.
Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 41 of 41 Downloaded on : Sun Sep 17 01:55:33 IST 2023