Gujarat High Court
Rajeshbhai Vaghjibhai Chaudhari & vs State Of Gujarat & on 14 June, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/8041/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8041 of 2016
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RAJESHBHAI VAGHJIBHAI CHAUDHARI & 1....Petitioner(s) Versus STATE OF GUJARAT & 100....Respondent(s) ========================================================== Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 2 MS MANISHA LAVKUMAR, GOVERNMENT PLEADER for the Respondent(s) No. 1 MR BHARAT T RAO, ADVOCATE for the Respondent(s) No. 5 MR N P CHAUDHARY, ADVOCATE for the Respondent(s) No. 8 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4 , 18 , 40 - 41 , 59 - 63 , 65 , 68 UNSERVED-REFUSED (N) for the Respondent(s) No. 6 - 7 , 9 - 17 , 19 - 39 , 42 - 58 , 64 , 66 - 67 , 69 - 101 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 14/06/2016 CAV ORDER Heard learned advocate Mr.Dipen Desai for the petitioners, learned Government Pleader Ms.Manisha Lavkumar for respondent Nos.1 to 4, learned advocate Mr.B.T. Rao for respondent No.5 and learned advocate Mr.N.P. Chaudhary for respondent No.8. Respondent Nos.2-4, 18, 40-41, 59-63, 65 and 68 are served. The rest of the respondents refused the notice.
2. By filing this petition under Article 226 of the Constitution, the petitioners have prayed for a direction to quash and set aside the impugned order Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed Jun 15 02:43:38 IST 2016 C/SCA/8041/2016 CAV ORDER dated 03rd May, 2016 passed by the fourth respondent- Authorised Officer so far it does not allow the objections entirely and so far as it retains names of respondent Nos.06 to 101 in the voters list of traders constituency for the election to Agriculture Produce Market Committee, Kheralu. A further prayer is made for a direction against the fourth respondent to delete names of respondent Nos.06 to 1010 from the voters' list of traders constituency.
3. The election programme for the general elections to the Agriculture Produce Market Committee, Kheralu, District Mehsana, was published on 22nd March, 2016. As per the time-table of election announced thereunder under Section 10(2) of the Agriculture Produce Market Committee Act, the elections were announced on 29th March, 2016, list of voters was prepared as per the programme and the preliminary list of voters was published on 13th April, 2016, objections to the preliminary list of voters were invited on 27th April, 2016 to be submitted within 14 days, revised list of voters after consideration of objections was published on 03rd May, 2016, further objections to the revised list could be submitted upto 10th May, 2016. Filing of nominations started from 13th June, 2016 and scrutiny is to take place on 14th June, 2016. The final list of voters is fixed to be published on 17th June, 2016 and the date of voting would be 28th June, 2016.
3.1 It is the case of the petitioners that preliminary list of voters were published on 13th April, 2016 wherein names were included of the persons Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Jun 15 02:43:38 IST 2016 C/SCA/8041/2016 CAV ORDER who were not, according to the petitioners, eligible since they were granted licences only in the year 2015-16. It is the case of the petitioners that those persons to whom licences were granted at the fag end and immediately before the election, could not have been included in the list of voters for the traders constituency as they cannot be said to be qualified traders to become the voters. The petitioners have therefore raised objection against the claimed wrongful inclusion of respondent Nos.06 to 101.
4. Learned advocate for the petitioners submitted that as on 31st March, 2015 there were only 41 licences. He submitted that as per Section 11(1)
(ii) the requirements of law is that only those traders who have traded in the previous fianncial year shall have right to be included in the list of voters. Accordingly it is submitted that only those traders who are holding licence in the previous financial year would be entitled to vote in the election to APMC.
4.1 On the other hand, side of the respondents supported the impugned order by highlighting factual aspects that earlier there was a joint Market committee of APMC Visnagar, Kheralu and Satlasana. By Notification dated 30th May, 2014, Market Committee was bifurcated and separate Market Committee of APMC, Kheralu was created and Administrator was appointed. It was therefore sought to be submitted that it was natural that for APMC, Kheralu nobody would have such licence to show that they had traded with reference to the licence of AMPC, Kheralu in the previous year as Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Jun 15 02:43:38 IST 2016 C/SCA/8041/2016 CAV ORDER there was no Market Committee in the previous year and the Market Committee, Kheralu was a newly created body.
4.2 Respondent No.5-AMPC, Kheralu, by filing affidavit-in-reply through is Secretary, has reiterated the same stand in support of the impugned order.
"10.1 ... ... as the market committee has been constituted for the very first time on 09.06.2014 and administrator has been appointed, there is no business in APMC. Therefore, the administrator through staff collected cess from the retail shop holders who have been given licenses, therefore, as per the Government policy, the Government has decided to develop Taluka-wise APMC provide a platform to the agriculturists to sell their agricultural produces in the market area, so that they can get the better price.
11.1 ... ... under Section 9 of the APMC Act, the market has been established and for the purpose of administration instead of committee, the administrator has been appointed under Section 11(5).
13.1 ... ... when the market committee itself has set up on 09.06.2014, to make it functional, the license is reuqierd to be issued because earlier also though there was joint APMC, a Sub Yard of Kheralu was not operational, though it is set up, therefore, the Government has directed the Director of APMC to make all efforts to see that market area become functional and agriculturists can get better facility for selling their agriculture products."
4.3 It is stated that the Administrator has undertaken all the steps and issued licences to various traders. There were only 27 small traders having licences earlier. Thereafter on 09th June, 2014 after new Market Committee of Kheralu was set up, Administrator took up steps to cover maximum traders under the umbrella of APMC, therefore, licences have been given. It was stated that in the year 2014-15 Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Jun 15 02:43:38 IST 2016 C/SCA/8041/2016 CAV ORDER Administrator of APMC, Kheralu had issued licences to 143 traders who are operating in the market area. It was stated further that there was no business in the Kheralu Market Committee during 2014-15 and 2015-16 and traders who were having licences were small traders operating in the Kheralu Taluka who has paid ad hoc cess.
5. Having considered the controversy and the contentions, the Court has not considered appropriate to go into the contentions on merits of the parties at this stage in view of the fact that election process is already underway. As noted above, programme to the election of Agriculture Produce Market Committee, Kheralu were published on 22nd March, 2016 and the said programme in its stages have travelled at an advanced stage when nomination papers are to be scrutinised tomorrow. The date for filing nominations has already passed-by. The process of election therefore has progressed to be at the above advance stage. Undisputedly, a remedy in form of filing election petition under Rule 28 of the Agriculture Produce Market Rules which provides for determination of legality and validity of election is available to the petitioner to be resorted to and after elections are over, and within seven days from the date of declaration of the result of the election. Election programme and the stages in any election has its own significance and cannot be lightly interfered with. 5.1 It is trite that all elections being democratic process, has to be allowed to be completed unimpeded as per the election schedule. All the Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Jun 15 02:43:38 IST 2016 C/SCA/8041/2016 CAV ORDER disputes and allegations of irregularities and illegalities for their resolution have to be postponed till and after completion of elections to be dealt with and decided in accordance with machinery provided under the statute for determination of such election dispute. Rule 28 is the remedy available to the petitioner.
5.2 No exceptional circumstances were pointed out which would justify the use of extra-ordinary writ jurisdiction of this Court and interfere with the election process to upset the entire election programme at this stage.
6. Therefore, leaving the petitioner at liberty to resort to the remedy by filing election petition after elections are over under Rule 28 of the Agriculture Produce Market Rules, if advised.
7. Without expressing any opinion on the merits of the case of the petitioner, the present petition is hereby dismissed. Notice is discharged.
(N.V.ANJARIA, J.) Anup Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Jun 15 02:43:38 IST 2016