Parshottambhai Ranchhodbhai Patel vs State Of Gujarat & 8 on 12 February, 2014

[Cites 29, Cited by 2]

Gujarat High Court

Parshottambhai Ranchhodbhai Patel vs State Of Gujarat & 8 on 12 February, 2014

Bench: M.R. Shah, R.P.Dholaria

            C/SCA/344/2014                                           CAV JUDGMENT



                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    SPECIAL CIVIL APPLICATION  NO. 344 of 2014

FOR APPROVAL AND SIGNATURE: 
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA  sd/
=============================================

       1.    Whether   Reporters   of   Local   Papers   may   be         YES
             allowed to see the judgment ?
       2.    To be referred to the Reporter or not ?                      YES

       3.    Whether their Lordships wish to see the fair copy             NO
             of the judgment ?

       4.    Whether this case involves a substantial question             NO

of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5. Whether it is to be circulated to the civil judge ? NO ============================================= PARSHOTTAMBHAI RANCHHODBHAI PATEL....Petitioner(s) Versus STATE OF GUJARAT & 8....Respondent(s) ============================================= Appearance:

MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 MR. PRAKASH K JANI GOVERNMENT PLEADER WITH SHRI JAYSWAL, ASSIT, GOVERNMENT PLEADER for the Respondent(s) No. 1 MR. N.D. NANAVATY, LEARNED SR. ADVOCATE FOR MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 5 9 NOTICE SERVED BY DS for the Respondent(s) No. 1 4 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 12/02/2014 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Rule. Shri Dhawan Jayswal, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent State and Shri Mitul Shelat, learned advocate waives service of notice of Rule Page 1 of 56 C/SCA/344/2014 CAV JUDGMENT on behalf of respondent nos. 5 to 9. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

2.0. By way of this petition under Article 226 of the Constitution of India, the petitioner who is elected Director of the Agriculture Produce Market Committee, Hansot (hereinafter referred to as the "APMC") and is member of the Managing Committee of one Shri Yashwantrai Joshi Cooperative Agriculture Produce, Processing and Marketing Society Limited which is a Cooperative Marketing Society having its area of operation in market area of APMC, Hansot, District Bharuch and who was also having general license for operating in the market area has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 4.1.2014 passed by the respondent no.4 authorized officer rejecting the objection raised by the petitioner against the inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 society in the voter's list of Cooperative Marketing Society Constituency of APMC and thereby to exclude their names from the voter's list of the Cooperative Marketing Constituency of APMC.

3.0. The facts leading to the present Special Civil Application in nutshell are as under:

3.1. That according to the petitioner, the society of the petitioner applied for license from the Market Committee, but the market committee was intentionally not considering the application for license and therefore, the society of the petitioner approached respondent no.2 by way of Appeal No. 44 of 2013 under Section 47 Gujarat Agriculture Produce Markets Act, 1963 (hereinafter referred to Page 2 of 56 C/SCA/344/2014 CAV JUDGMENT as the APMC Act) seeking direction to grant license to the society of the petitioner. That during the pendency of the said appeal, the APMC by way of resolution dated 12.12.2013 resolved to grant license to the society of the petitioner and therefore, by order dated 16.12.2013, Director of Agricultural Marketing and Rural Finance (hereinafter referred to as the "Director") passed an order directing the Marketing Committee to issue license to the society of the petitioner.

3.2. That the term of APMC, Hansot was to expire and therefore, election programme of the APMC, Hansot was declared by the respondent no.2 Director by way of notice published under Rule 10(2) of the Gujarat Agricultural Produce Market Rules, 1965 (hereinafter referred to as the "Rules"). According to the petitioner, the said notice was issued on 17.11.2013 and the same has been published in a daily newspaper "Sandesh" on 21.11.2013. That the election programme came to be declared on 21.11.2013 by respondent no.2 Director. That the election programme declared by the Director for the election of APMC, Hansot is as under:

   Sr.No                      Details of Programme                             Date
   1.      The date for declaration of election programme                   21.11.2013

2. The date for instruction by Authorized Officer for 21.11.2013 preparation of voters' list 2(a). The date for APMC to send the list of voters to the 29.11.2013 Authorized Officer [Rule 7]

3. The date for publication of preliminary voters' list 05.12.2013 within seven days from the date of sending voters' list [Rule 7(2)]

4. The date for submitting applications, objections against 18.12.2013 preliminary voters' list (within 14 days from publication of preliminary voters' list) [Rule 8(1)] 4(a). The date for publication of revised preliminary voters' 23.12.2013 list after submission of objections against preliminary voters' list along with the notice regarding submission of objections Page 3 of 56 C/SCA/344/2014 CAV JUDGMENT 4(b). The last date for submission of objections/alterations in 30.12.2013 revised preliminary voters' list [Rule 8(1)(a)]

5. The date of publication of final voters' list 07.01.2014

6. The date for submission of nomination forms [Rule 10.02.2014 10(2)]

7. The date for preliminary publication of nomination 10.02.2014 forms [Rule 14]

8. The date for scrutiny of nomination forms [Rule 15] 11.02.2014

9. The date for withdrawal of nomination forms [Rule 14.02.2014 17(1)]

10. The date for publication of final list of candidates [Rule 14.02.2014 17(2)]

11. The date of election 25.02.2014

12. The date of counting 26.02.2014

13. The date of result of election [Rule 21] Immediately after the completion of counting 3.3. It is the case on behalf of the petitioner that even prior thereto the Director had in exercise of powers under Rule 4 of the Rules declared election of the APMC, Hansot on 16.11.2013 and therefore, according to the petitioner, election process had started on exercise of powers under Rule 4 on 16.11.2013.

3.4. It is the case on behalf of the petitioner that as soon as present office bearers came to know about the election / election programme and came to know about that the election is being declared, the market committee issued license to the private respondents herein i.e. respondent nos. 5 to 9 society and other 53 traders for the year 201314 by way of resolution no.3 dated 20.11.2013 passed in the meeting of the license subcommittee. It is the case on behalf of the petitioner that said licenses have been issued / granted with the sole intention to inflate the voters' list so as to see that the supporters of the Page 4 of 56 C/SCA/344/2014 CAV JUDGMENT present office bearers are included in the voters' list of Cooperative Marketing constituency.

3.5. It is the case on behalf of the petitioner that petitioner being member of the license sub committee, raised objection against grant of license to respondent nos. 5 to 9 by stating that the said societies have not paid any market fess since last three years and were not holding any license and only when the elections are declared, the societies have applied for license and have paid market cess. It is the case on behalf of the petitioner that despite the above objection of the petitioner, license sub committee granted license to respondent nos. 5 to 9 on 20.11.2013 i.e. after the declaration of the election and after the Director passed order under Rule 10 of the Rules publishing / declaring election of Director.

3.6. It is the case on behalf of the petitioner that thereafter members of the managing committee of the said 5 societies i.e. respondent nos. 5 to 9 have been included in the preliminary voters' list published on 05.12.2013 at serial no.16 to 90, published under Rule 7 of the Rules. It is the case on behalf of the petitioner that prior to 20.11.2013 there was only one Cooperative Marketing Society which was granted license and therefore, election would have been held for only one seat. However, on 20.11.2013 five societies have been granted licenses so that 75 new voters' are inducted and thereby election for two seats is held.

3.7. It is the case on behalf of the petitioner that thereafter the general meeting of the market committee was held on 12.12.2013 and in that general meeting also, 9 elected members of the Market Committee including petitioner raised objection against the proceedings of the Page 5 of 56 C/SCA/344/2014 CAV JUDGMENT license subcommittee dated 20.11.2013, whereby fresh licenses have been granted to the respondent nos. 5 to 9 and other 53 traders.

However, no decision was taken in the said general meeting either to approve the minutes of the license sub committee or to reject the same. However, on the other hand, the market committee issued license to respondent nos. 5 to 9 on the basis of decision of the subcommittee because of which the names were entered in the preliminary voters' list prepared and published under Rule 7 of the Rules.

3.8. It is the case on behalf of the petitioner that at the relevant time when preliminary voters' list was published by the authorized officer including the names of the members of the managing committee respondent nos. 5 to 9 society as such the society of the petitioner was not granted license and since the society of the petitioner was granted license on 12.12.2013 the petitioner could not raise / submit any objection against the inclusion of the names of the members of the managing committee of respondent nos. 5 to 9 in the preliminary voters' list published under Rule 7 of the Rules. It is the case on behalf of the petitioner that as such and since the society of the petitioner was granted license on 12.12.2013 and as per the direction of the Director dated 16.12.2013, the market committee was directed to issue license to the society of the petitioner, the name of the society of the petitioner and the members of the managing committee of respondents no. 5 to 9 are included in the provisional voters' list published under Rule 8 of the Rules and from serial no. 16 to 90 and the petitioner's name is included at serial no.96 in the provisional voters' list. It is the case on behalf of the petitioner that as names of members of the managing committee of respondent nos. 5 to 9 were also included in the provisional voters' list published on 23.12.2013, against the inclusion of the names of the members of the Managing Committee of the respondent nos. 5 to 9 in Page 6 of 56 C/SCA/344/2014 CAV JUDGMENT the Cooperative Marketing constituency, petitioner submitted the objection on the ground that said respondent nos. 5 to 9 have been granted licenses illegally after the election programme is declared and therefore, the members of the managing committee of respondent nos. 5 to 9 societies be excluded from the voters' list which are at Serial No. 16 to 90. It is the case on behalf of the petitioner that authorized officer however, did not consider the said issue proper prospective and had rejected the objection by impugned order dated 4.1.2014 solely on the ground that once the names of the members of the managing committee were included in the preliminary voters' list and provisional voters' list, their names cannot be excluded from the final voters' list. That thereafter, the authorized officer has included the name of the members of the Managing Committee of respondent nos. 5 to 9 society and the final voters' list has been published on 07.01.2014.

3.9. Hence, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs.

4.0. Shri Dipan Desai, learned advocate for the petitioner has vehemently submitted that impugned order of authorized officer is clearly in breach of settled legal position and against/ contrary to the democratic principles. It is submitted by Shri Dipan Desai, learned advocate for the petitioner that authorized officer has not at all considered the legal position that any license granted / issued after declaration of the election or on the eve of declaration of the election are not entitled to be included in the voters' list.

4.1. It is further submitted by Shri Desai, learned advocate for the petitioner that authorized officer ought to have considered the fact that Page 7 of 56 C/SCA/344/2014 CAV JUDGMENT in the year 201213, there only one Cooperative Marketing Society which was granted license whereas after the elections are declared and / or on the eve of declaration of the election, 58 new licenses have been granted, sp that 75 new voters' are inducted and their names are included in the voters' list of Cooperative Marketing Society, which clearly shows that intention is to tilt the balance in favour of the office bearers. It is submitted that while considering the objection raised by the petitioner against the inclusion of the names of members of the managing committee of respondent nos. 5 to 9 society in the voters' list of Cooperative Marketing Society, the authorized officer has not properly considered the aforesaid facts and therefore, has failed to perform his duty as Authorized Officer. It is further submitted by Shri Desai, learned advocate for the petitioner that as such the authorized officer is not required to act as a postman only. It is submitted that as such a greater duty is cast upon the Authorized Officer to see that there is no violation of the democratic principles and any attempt to inflate the voters', only with a view to create artificial majority is stopped and curbed. It is submitted by Shri Desai, learned advocate for the petitioner that as per sub Rule (2) of Rule 7 of the Rules and even before preparing and / or publishing the preliminary list of voters', a duty is cast upon the Authorized Officer to make such inquiry as he may deem fit. It is submitted that the Authorized Officer is not bound and required to mechanically include the names of those voters' / traders / Cooperative Marketing Society and others send by the market committee. It is submitted that as observed by the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari vs. State of Gujarat & Others reported in 2007(3) GLH 57, the relevant date for determining the eligibility of a person for inclusion in the voters' list would be the date on which the Authorized Officer is to be communicated the names as indicated in subrule (1) of Rule 7 of the Rules and before that date if Page 8 of 56 C/SCA/344/2014 CAV JUDGMENT a Cooperative Marketing Society who has been granted license by the APMC, is found to have commenced the business as a trader then and then only the name of such Cooperative Marketing Society who is having license issued by the APMC, is required to be included in the voters' list. It is submitted by Shri Desai, learned advocate for the petitioner that in the present case the licenses have been issued to the respondent nos. 5 to 9 after declaration of the election programme and even which is one day prior to preparation and publication of the preliminary voters' list under Rule 7 of the Rules i.e. in the meeting of the license sub committee held on 20.11.2013. It is submitted that as such respondents applied for license on 11.11.2013 and 19.11.2013 respectively. It is submitted that therefore, the aforesaid speaks for itself and is suggestive that only with a view to create artificial majority and inflate the voters' list which is against the democratic principles.

4.2. Shri Desai, learned advocate appearing on behalf of the petitioner has vehemently submitted that any such attempt to issue the licenses either after the declaration of the election by the Director under Rule 10 and/or on the eve of the declaration of the election has been deprecated time and again by this Court in catena of decisions. It is submitted that any attempt to inflate the voters' list and/or create the artificial majority by issuing such traders licenses / licenses after the declaration of the election programme and/or on the eve of declaration of election is held to be in violation of democratic principles and the inclusion of the names of such persons in the voters' list is held to be illegal, malafide and has been set aside by this Court in catena of decisions. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that in the case of Kalubhai Ranabhai Akabari (Supra), considering the entire scheme of the election under the Rules, the Division Bench has held as under:

Page 9 of 56 C/SCA/344/2014 CAV JUDGMENT

"I. that the "relevant date" for determining the eligibility of a person for inclusion in the voters' list for election to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in subRule (1) of Rule 7 of the Rules, that is to say, before that date

(i) a cooperative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.

(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.

(iii) a cooperative marketing society registered as such under the Cooperative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.

II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters', has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters' relates.

III. To be eligible for inclusion in the list of voters' for elections to APMC, (i) A cooperative society must have obtained registration under the Co operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).

(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.

Page 10 of 56 C/SCA/344/2014 CAV JUDGMENT

(iii) A cooperative marketing society must have obtained its registration under the Cooperative Societies Act and a general license from APMC before the date of declaration of elections.

IV. Challenge to the legality and validity of registration of a society under the Cooperative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Cooperative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.

V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.

VI. The question whether a cooperative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a cooperative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions."

4.3. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that in the case of The Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. & Anr. vs. State of Gujarat & Ors. reported in 2009(3) GLH 380, it is held that relevant date for determining the eligibility for inclusion in the voters' list for election to APMC is the date on which the Authorized Officer is to be Page 11 of 56 C/SCA/344/2014 CAV JUDGMENT communicated the names under subRule (1) of Rule 7 of the Rules. It is submitted that in the case of Kalubhai Ranabhai Akabari (Supra) and in the case of the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. (Supra), the Division Bench has held that large scale grant of the licenses after the declaration of the election programme would not only be illegal but also a fraud on the election process.

4.4. It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that a similar view has been taken by the Division Bench of this Court in the case of Shrutbandhu H. Popat vs. State of Gujarat & Ors. reported in 2008(1) GLH 575.

4.5 Shri Desai, learned advocate appearing on behalf of the petitioner has also heavily relied upon unreported decisions of the Division Bench of this Court in the case of Chandrakant Manibhai Patel vs. State of Gujarat & Ors. rendered in Special Civil Application No.9965/2013 dated 01 & 05.08.2013 by which it is held by the Division Bench of this Court that if the licenses are granted on the eve of elections, then such license holders are not entitled to be included in the voters' list.

4.6. It is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that therefore, not only the inclusion of the names of the persons in the voters' list of Traders Constituency who are issued the licenses after the declaration of the election programme by the Director under subRule (2) of Rule 10 but even with respect to the traders licenses issued on the eve of the declaration of the election programme and their inclusion of the names in the voters' list is held to be illegal and their names have been directed to be excluded from the voters'' list.

Page 12 of 56 C/SCA/344/2014 CAV JUDGMENT

4.7. Making above submissions and relying upon above decisions, it is requested to allow the present petition and to direct that the names of the private respondents herein be excluded form the voters'' list of Cooperative Marketing Society Constituency.

5.0. Present petition is opposed by Shri N.D. Nanavaty, learned Senior Advocate appearing with Shri Mitul Shelat, learned advocate appearing on behalf of the contesting private respondents whose names are alleged to have been wrongly included in the voters'' list of Cooperative Marketing Society Constituency.

5.1. Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents has vehemently submitted that the present petition filed under Article 226 of the Constitution of India seeking exclusion of names of the members of the managing committee of respondent Nos.5 to 9 from the voters' list of the Cooperative Marketing Society Constituency is not maintainable in law in view of the remedy available to the petitioner under Rule 28 of the Rules. In support of his above submission, he has heavily relied upon the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorised Officer and Co.Operative Officer (Marketing) reported in 2006(1) GCD 211. It is submitted that in the aforesaid Full Bench decision, Rule 28 of the Rules came to be considered and it is held that a writ petition under Article 226 of the Constitution of India is not maintainable for seeking exclusion and/or inclusion of the name in the voters' list. He has heavily relied upon paras 21, 22, 33, 52 to 55 of the said decision. It is submitted that despite the aforesaid binding Full Bench decision, the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra) had taken a contrary view and has held that even a petition seeking exclusion and/or Page 13 of 56 C/SCA/344/2014 CAV JUDGMENT inclusion of the name in the voters' list would be maintainable, which is not permissible. It is submitted that as such the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) was binding to the Division Bench and therefore, a contrary decision could not have been taken by the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra). It is submitted that even after the decision of the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra), another Division Bench did not agree with the view taken by the Division Bench in the case of Kalubhai Ranabhai Akabari (Supra) and relying upon the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), has specifically held that in view of Rule 28 of the Rules, for the dispute with respect to inclusion and/or exclusion of name in the voters'' list, petition under Article 226 of the Constitution of India would not be maintainable.

5.2. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that it is true that even subsequently in number of matters different Division Benches have entertained the petitions under Article 226 of the Constitution of India even with respect to dispute with respect to inclusion and/or exclusion of the voters', however, in view of the binding decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the same is not permissible. Therefore, it is requested not to grant the relief in the present petition as prayed for in exercise of powers under Article 226 of the Constitution of India.

5.3. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that the present petition is required to be dismissed on the ground of nonjoinder of proper and necessary parties. It is submitted that the petitioner has Page 14 of 56 C/SCA/344/2014 CAV JUDGMENT contended that the licenses have been issued by the market committee to create a majority and even the allegations have been made against the office bearers of the market committee. It is submitted that despite the above and having made the allegations against the market committee and the office bearers of the market committee, the petitioner has not impleaded the market committee or the members of the market committee. It is submitted that therefore the petition suffers from vice of nonjoinder of the necessary party and is, therefore, required to be rejected as such.

5.4. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that as such the name of the private respondents were included in the preliminary voter's list published by the authorized officer on 5.12.2013 (published under Rule 7 of the Rules). It is submitted that as such no objections were raised against the inclusion of the names of the members of the Managing Committee of the private respondents in the preliminary voter's list. It is submitted that thereafter the Authorized Officer declared / published the provisional voter's list including the names of the members of the Managing Committee of respondent nos. 5 to 9 society, under Rule 8 of the Rules and at that stage the petitioner for the first time had raised an objection against the inclusion of the names of the members of the Managing Committee of the respondent nos. 5 to 9 society in the provisional voter's list published under Rule 8 of the Rules. It is submitted that therefore, when no objection was raised against the inclusion of the names of the members of the Managing Committee of the respondent nos. 5 to 9 society in the preliminary voter's list thereafter at the stage of publishing the provisional voters'' list including the names in the voter's list which were already included in the preliminary voter's list, the Authorized Officer has rightly overruled / Page 15 of 56 C/SCA/344/2014 CAV JUDGMENT rejected the objection submitted by the petitioner which was submitted against the inclusion of the names of members of Cooperative Marketing Society Constituency in the provisional water list. It is submitted that as such and as held by the Division Bench of this Court in the case of Mehsana District Co.Op. Produce & Sales Union Ltd vs. Dhadhusan Beej Utpadak Rupantar & Vechan Karnari Sahakari Mandali Ltd. & Ors reported in 1998 (1) GLH 170 after the preliminary voter's list is published as per Rule 8(i)(a) an objection can be raised with respect to those voter's who are included in the voter's list after the preliminary voter's list is published under Rule 7 of the Rules. In support of his above submission, Shri Nanavaty, learned Senior Advocate for the contesting private respondents has also relied upon the decision of the Division Bench of this Court dated 15.07.2010 rendered in Special Civil Application No.6587 of 2010 and 6596 of 2010 as well as decision of the Division Bench in the case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd. vs. Authorized Officer & Cooperative Officer attached to Market reported in 2012(1) GLR 742. It is submitted that therefore, as such the Authorized Officer has not committed any error and illegality in rejecting the the objection submitted by the petitioner which was submitted for the first time at the time of preparing / publishing the revised draft list / provisional voters' list under Rule 8(ai) of the Rules.

5.5. It is further submitted by Shri N.D. Nanavaty, learned Senior Advocate for the contesting private respondents that even on merits also the petitioner has no case. It is submitted that petitioner is not right in contending that the inclusion of the names of the members of Managing Committee of respondent nos. 5 to 9 society in the voters' list was without jurisdiction and authority of law. It is submitted that as such private respondents were possessing the license in previous years.

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They applied for renewal prior to the publication of the election programme and the licenses were granted on 20.11.2013. Therefore, when preliminary voters' list was published all the private respondents were meeting with the qualification set out in Rule 7 of the Rules and they were holding license and consequently, they were entitled to be included in the voters'' list. It is further submitted by Shri Nanavaty, learned Senior Advocate for the contesting private respondents that as such the petitioner has not challenged the issuance of license in favour of the respondents. It is submitted that right to be included in the voters'' list is on the existence of the license. It is submitted that in view thereof the petitioner is not entitled to maintain challenge to the inclusion of name in the voters'' list despite acceding to the validity regarding issuance of license in favour of the respondent society.

5.6. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that petitioner is not right in contending that the licenses have been issued after the election process has commenced. It is submitted that a plain reading of Rule 7, the relevant date for determining the eligibility of a person for inclusion in the voters'' list would be the date by which the Authorized Officer is to be communicated the names as indicated in subRule (1) of Rule 7 of the Rules, that is to say before that date (i) a cooperative society registered under the Cooperative Societies Act for dispensing agricultural credit must have been registered as a cooperative society and must also have commenced the activity of dispensing agricultural credit; (ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader; (iii) a cooperative marketing society registered as such under the Cooperative Societies Act and having obtained a general license from APMC must also have commenced its business of Page 17 of 56 C/SCA/344/2014 CAV JUDGMENT marketing.

5.7. It is submitted that in the present case the relevant date as per the election programme is 29.11.2013. It is submitted that in the present case the contesting respondents were issued the license on 20.11.2013 and were meeting with the qualification set out above and consequently their names were submitted by the market committee which have been included by the Authorized Officer in the voters'' list. It is submitted that aforesaid view has been taken by this Court in the case of the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. & Anr. reported in 2009(3) GLH 380 [Paras 7, 33 and 34].

5.8. It is submitted that the petitioner is not right in contending that the Authorized Officer has not acted in accordance with Rule 7 of the Rules. It is submitted that the scope of the authority of the Authorized Officer in relation to preparation of the voters'' list has been considered by this Court in the case of Vibhaniya Seva Sahakari Mandali Ltd. and Ors. reported in 2012(1) GLH 575 [Paras 7 and 7.3]; in the case of Shrutbandhu Himmatlal Popat vs. State of Gujarat rendered in Special Civil Application No.16246/2011 dated 13.12.2011 [Paras 7.1, 7.2 and 7.3].

5.9. It is further submitted by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents that the reliance placed upon the decisions by the learned advocate appearing on behalf of the petitioner with respect to the maintainability of the present petition under Article 226 of the Constitution of India more particularly the decisions in Special Civil Application No.1890/2013; Special Civil Application No.2179/2013; Special Civil Application No.9965/2013 is concerned, it is submitted that all the above judgments are contrary to the law laid down by the Full Bench of this Court in the case of Daheda Page 18 of 56 C/SCA/344/2014 CAV JUDGMENT Group Seva Sahakari Mandli Limited (Supra). It is submitted that in the above judgments, the decision of the Division Bench of this Court in the case of Patel Talshabhai Purabhai (Supra) and the judgment rendered in Special Civil Application No.10940/2011 dated 15.09.2011 in the case of Upleta Taluka Fal Ane Shak Bhaji Utpadak Sahakar Mandli Ltd. vs. State of Gujarat have been not considered. It is submitted that therefore the petitioner having accepted the issuance of the license cannot seek the relief regarding exclusion from the voters'' list.

5.10. It is submitted that as such the petitioner is not right in contending that since there is no prohibition contained in Rule 28, the remedy under Article 226 of the Constitution of India would be available despite the availability of the statutory remedy. It is submitted that as such a similar rule came up for consideration before the Hon'ble Supreme Court in the case of Gujarat University vs. N.U. Rajguru reported in 1987 Supp SCC 512 [Page 515] and it is held that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. It is submitted that it is further observed by the Hon'ble Supreme Court in the said decision that while considering the election dispute, it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental nor a common law right, instead it is a statutory right regulated by the statutory provisions and therefore, it is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India bypassing the machinery designated by the act for determination of the election dispute. It is submitted that as such the above decision was followed in the Full Bench judgment delivered in the matter of Daheda Group Seva Sahakari Mandli Limited (Supra) while examining Page 19 of 56 C/SCA/344/2014 CAV JUDGMENT the maintainability of writ petition for challenging the inclusion and exclusion from the voters'' list and it has been held that writ petition seeking such a relief should not be entertained.

Making above submissions and relying upon above decisions, it is requested to dismiss the present petition.

6.0. Shri Prakash K. Jani, learned Government Pleader has appeared with Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the Authorized Officer and the State.

6.1. Now, with respect to the maintainability of the present petition under Article 226 of the Constitution of India and for the reliefs sought in the present petition, Shri Jani, learned GP has submitted the list of the various decisions of this Court by which petitions under Article 226 of the Constitution of India for somewhat similar reliefs have been entertained by this Court. He has also furnished the details of the decisions of this Court by which even the petitions are not entertained by this Court. List of the judgments in which petitions under Article 226 of the Constitution of India are entertained and petitions under Article 226 are not entertained as under:

A. Petitions entertained by Division Bench

1. Chaudhary Rameshbhai Dalsangbhai & Ors. vs. Director, Agriculture Produce Marketing & Rural Finance & Anr.

1996(2) GLR 165

2. Prahaladbhai Shivrambhai Patel & Ors. vs. Director of Agriculture Produce Marketing & Rural Finance & Anr. 1998(1) GLH 95

3. Mehsana District Co.Op. Produce & Sales Union Ltd. vs. Dhadhusan Beej Utpadak Rupantar & Vechan Karnari Sahakari Mandali Ltd. & Ors.

1998(1) GLH 170

4. Shrutbandhu H. Popat vs. State of Gujarat & Ors.

2007(3) GLH 1942 Page 20 of 56 C/SCA/344/2014 CAV JUDGMENT

5. Kalubhai Ranabhai Akabari vs. State of Gujarat & Ors.

2007(3) GLH 57

6. Vibhapar Seva Sahakari Mandali Ltd. vs. State of Gujarat & Ors.

2009(3) GLH 343

7. Vibhaniya Seva Sahakari Mandali Ltd. & Ors. vs. State of Gujarat 2012(1) GLH 575

8. Dolatbhai Prabhubhai Dumaniya Vs. Director, Agriculture Marketing and Rural Finance 2013(2) GLH 157

9. Nilesh Gordhandas Thakker & Anr. vs. State of Gujarat & Ors.

Special Civil Application No.2179/2013

10. Chandrakant Manibhai Patel vs. State of Gujarat Special Civil Application No.9965/2013

11. Sardar Vallabhbhai Patel vs. State of Gujarat Special Civil Application No.2525/2013 B. Petitions not entertained by Division Bench

1. Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandali Ltd., Patan vs. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Sahakari Mandali Ltd., Mehsana 1986 GLH 430

2. Mehsana District Co.op. Sales & Purchase Union Ltd. & Anr. vs. State of Gujarat & Ors.

1988(2) GLR 1060

3. Patel Talshabhai Purabhai vs. Authorized Officer and Auditor General Grade1 Cooperative Societies 2011(4) GLR 3544

4. Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorised Officer and Co.Operative Officer (Marketing) 2006(1) GCD 211

5. N. P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & others Page 21 of 56 C/SCA/344/2014 CAV JUDGMENT AIR 1952 SC 64 6.2. It is further submitted by Shri Jani, learned GP that even in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Full Bench has not ruled that in no case with respect to the election dispute the petition under Article 226 is not maintainable at all. It is further submitted that in a given case when on the face of it it is found that the licenses are issued illegally with malafide intention to create artificial majority and against the democratic principles and without effecting the further election programme, the petition under Article 226 of the Constitution of India can be entertained and the relief under Article 226 of the Constitution of India can be granted. It is submitted that therefore there is no absolute bar in not entertaining the petition under Article 226 of the Constitution of India. It is submitted whenever to maintain the democratic principles and whenever required, the petition under Article 226 of the Constitution of India can be entertained and the relief can be granted under Article 226, however, without effecting the further election programme.

6.3. Now, with respect to the duties of the Authorized Officer while preparing and publishing the voters' list it is submitted that it is consistent stand on behalf of the State Government that Authorized Officer can hold the necessary inquiry and/or has jurisdiction to consider the objections at any stage. However, as fairly conceded that it is held by the Division Bench in catena of decisions that Authorized Officer has no jurisdiction and/or authority to consider the legality of the names is not by the market committee and/or the dispute with respect to the legality of the license issued. It is submitted that as such under the statute there is no specific provision under which a duty is cast upon the Authorized Officer while preparing and/or publishing the preliminary Page 22 of 56 C/SCA/344/2014 CAV JUDGMENT voters'' list / voters' list.

6.4. It is submitted by Shri Jani, learned Government Pleader for the respondent State that in the present case when no objection was raised against the inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 Cooperative Society in the preliminary voters' list published under Rule 7 of the Rules and the objection against the inclusion of their names was raised for the first time at the time when the draft revised list / provisional voter's list has been published and the names of the members of the Managing Committee of respondent nos. 5 to 9 was already included in the preliminary voters' list, the Authorized Officer has rightly rejected the objection raised by the petitioner and has rightly included the name of the members of the Managing Committee of respondent nos. 5 to 9 society.

7.0 In reply to the submissions made by Shri Nanavaty, learned Counsel appearing on behalf of the contesting private respondents, Shri Desai, learned advocate appearing on behalf of the petitioner has submitted that as such the present petition is not required to be dismissed on the ground of nonjoinder of proper parties i.e. market committee and/or the license committee. It is submitted that as such the petitioner is challenging the action of the Authorized Officer in including the names of the private respondents herein in the voters' list of the Cooperative Marketing Society Constituency and therefore, when all the parties likely to be affected i.e. private respondents herein are joined, the present petition is not required to be dismissed on the ground that proper and necessary parties are not joined. It is submitted that as such all the necessary and proper parties are joined.

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7.1. Now, so far as the contention on behalf of the private respondents with respect to the maintainability of the present petition under Article 226 of the Constitution of India with respect to the inclusion of the names of the private respondents in the Cooperative Marketing Society Constituency and reliance placed upon the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), it is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that as such even in the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), it is specifically held that in no case and with respect to election dispute the petition under Article 226 of the Constitution of India would not be maintainable. It is submitted that as such the aforesaid decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) came to be considered by the Division Bench in the subsequent decision in the case of Shrutbandhu H. Popat vs. State of Gujarat & Ors. reported in 2008(1) GLH 575 and after the decisions of the Hon'ble Supreme Court in the case of Election Commission of India vs. Ashok Kumar reported in (2000)8 SCC 216 and in the case of Pundlik vs. State of Maharashtra reported in (2005)7 SCC 181 has held that in appropriate case even with respect to the inclusion and/or exclusion of the names in the voters' list petition under Article 226 of the Constitution of India would be maintainable and can be entertained.

7.2. Now, so far as the decision of the Division Bench in the case of Patel Talshabhai Purabhai vs. Authorized Officer and Auditor General Grade1 Cooperative Societies reported in 2011(4) GLH 3544 relied upon by Shri Nanavaty, learned Counsel appearing on behalf of the private respondents submitting that in the said decision the Division Bench after considering the decision of the Full Bench in the case of Page 24 of 56 C/SCA/344/2014 CAV JUDGMENT Daheda Group Seva Sahakari Mandli Limited (Supra) has specifically held that the dispute with respect to the addition, alteration in the voters' list for election of market committee, alternative efficacious remedy under Rule 28 of the Rules would be available and therefore, the High Court would not exercise the extraordinary jurisdiction under Article 226 is concerned, it is submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that as such in the subsequent decision in the case of Shrutbandhu H. Popat (Supra) rendered in Special Civil Application No.16246/2011 decided on 13.12.2011 and even after considering the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Division Bench in which even one of the member to the Bench was the learned Judge who delivered the judgment in the case of Patel Talshabhai Purabhai (Supra) taking a contrary view, has infact taken a view that in an appropriate case and even with respect to the dispute of deleting the names from the list of voters a petition under Article 226 of the Constitution of India would be maintainable and can be entertained and a relief can be granted.

7.3 Shri Desai, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Division Bench of this Court in the case of Vasundra Samudayik Kheti Sahakari Kheti Sahakari Mandali Limited vs. State of Gujarat & Ors. rendered in Special Civil Application No.16249/2011 [paras 22 to 29] by submitting that in the said decision after considering the decision of the Hon'ble Supreme Court in the case of Ashok Kumar (Supra) has held that despite the 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 of India still will be open. It is submitted that in the said decision the Division Bench after Page 25 of 56 C/SCA/344/2014 CAV JUDGMENT considering the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) has observed that even in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Full Bench while holding that exclusion or inclusion of the names from the voters' list cannot be termed as extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution of India, recognized that in exceptional cases, the Court can exercise powers of judicial review, which is the basic structure. It is, therefore, submitted that in the present case when there is a glaring illegality on the face of it and inclusion of the names of the private respondents herein in the voters' list of Cooperative Marketing Society Constituency is on the face of it malafide and with a view to create an artificial majority, which will be against the democratic principles, the interference of this High Court in exercise of powers under Article 226 of the Constitution of India at this stage itself is warranted. Therefore, it is requested to entertain the present petition and grant the reliefs as prayed for while exercising the powers under Article 226 of the Constitution of India, more particularly, when the election programme is not likely to be affected.

7.4. Now, so far as the submission made by Shri Nanavaty, learned Counsel appearing on behalf of the private respondents that the moment it is found that the private respondents are Cooperative Marketing Society having the licenses issued by the market committee may be after the declaration of the election programme and/or even on the eve of the declaration of election programme but at the time of preparation of the voters' list, Authorized Officer is bound to include their names in the voters' list and there is no further duty cast upon the Authorized Officer is concerned, Shri Desai, learned advocate appearing on behalf of the petitioner is submitted that as such even under subRule Page 26 of 56 C/SCA/344/2014 CAV JUDGMENT (2) of Rule 7 of the Rules, a duty is cast upon the Authorized Officer for making such inquiry as he may deem fit. It is submitted that as such in the case of Kalubhai Ranabhai Akabari (Supra), it is held that mere registration of a society as a cooperative society for dispensing with agricultural credit cannot confer a right upon the members of its managing committee to participate in the election when no activity of dispensing agricultural credit has commenced. It is submitted that similar would be applicable with respect to the trader who has been granted the license by the APMC. It is submitted that as such only the trader who has been granted license by the APMC to carry on a business as a trader in the market area who has actually commenced the business as a trader is entitled to vote and his name is required to be included in the voters' list. It is submitted that otherwise anybody only with a view to get his name included in the voters' list will get the license by paying the license fee and may contend that as he is holding a traders license his name is required to be included in the voters' list. It is submitted that if that is permitted in that case it would frustrate the object of democratic process and it will be against the basic principles of democracy. It is submitted that therefore at the stage of Rule 7 of the Rules, the Authorized Officer may hold a limited inquiry whether infact such traders who have been granted the license by the APMC and/or marketing society, who have obtained a general license from APMC, have commenced its business of marketing or not and whether they have been granted the licenses only with a view to create artificial majority or not.

Making above submissions, it is requested to allow the present petition.

8.0. Now, so far as the contention on behalf of the contesting private respondents that as the petitioner has not challenged the Page 27 of 56 C/SCA/344/2014 CAV JUDGMENT issuance of the license to respondent nos. 5 to 9 society and therefore, when the private respondents are having the license the day on which the preliminary voters' list was published and therefore, their names are required to be included in the voters' list is concerned, it is submitted by Shri Desai, learned advocate for the petitioner that as such licenses have been issued / granted by the license sub committee only which is one day prior to preparation and publication of the preliminary voters' list under Rule 7 i.e. 20.11.2013 there is hardly any time left so that the petitioner can challenge the same. It is submitted that as such even if grant / issuance of license is not challenged in that case also, what is required to be considered as challenge to the inclusion of the names in the voters' list of such persons / cooperative society who are granted licenses either after the declaration of the election/ election programme and / or on the eve of declaration of election / election programme. It is submitted that as such aforesaid aspect has been considered by the Division Bench of this Court in the case of Shrutbandhu H. Popat (supra). Now so far as the contention on behalf of the private respondents that as no objection was raised against the inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 society in the preliminary voters' list / published under Rule 7 of the Rules and objection has been raised for the first time at the time of publication of the provisional voters' list / revised draft list / final voters' list and therefore, the objection raised by the petitioner is rightly rejected by the Authorized Officer is concerned, it is submitted by Shri Desai, learned advocate for the petitioner that even as such at the time when the preliminary voters' list was published society of the petitioner was not granted even the license and the license was granted subsequently but before the publication of the provisional voters' list and therefore, subsequently name of the petitioner as managing committee of the society came to be included in the preliminary voters' list and Page 28 of 56 C/SCA/344/2014 CAV JUDGMENT therefore, as such petitioner had no occasion to raise any objection against the inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 society in the preliminary voters' list. Therefore, it is requested to allow the present petition and grant the reliefs as prayed for. Shri Desai, learned advocate for the petitioner has relied upon the decision in the case of Chandrakant Manibhai Patel (supra) and has submitted that even in the said decision objections were raised after the names were included in the preliminary voter's list, this Court entertained the petition and allowed the same and considering the objection directed to exclude the names of those persons. By making above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Application.

9.0. Heard the learned advocates for the respective parties at length.

10. At the outset, it is required to be noted that in the present petition the petitioner has challenged the order passed by the Authorized Officer rejecting the / overruling the objection raised by the petitioner against the inclusion of the names of the members of the Managing Committee of the respondent nos. 5 to 9 society in the preliminary voter's list. From the order passed by the Authorized Officer, it appears that the Authorized Officer has rejected the objection submitted by the petitioner on the ground that the names of the members of the Managing Committee of the respondent nos. 5 to 9 society were already there in the preliminary list of voters' and no objection was raised at that stage and therefore, objection raised for the first time at the stage of provisional voter's list cannot be entertained. It is required to be noted that as such the names of members of the Managing Committee of the respondent nos. 5 to 9 society were already Page 29 of 56 C/SCA/344/2014 CAV JUDGMENT included in the preliminary voter's list of Cooperative Marketing Society Constituency prepared and published under Rule 7 of the Rules.

11. Before considering the present petition on merits, relevant provisions of the Gujarat Agricultural Produce Markets Act, 1963 [hereinafter referred to as "Act"] and Rules are required to be considered, which are as under:

4. Fixation of date of election. Wherever a general election to a market committee or a bye election under section 15 is to be held, the Director shall, by an order in writing, fix a date of such election and publish such order by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area.

5.Different lists of voters. For the purposes of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely: [(1) under clause (i) of subsection (1) of section 11 of the Act, a list of members of managing committees of Cooperative Societies (other than Cooperative Marketing Societies) dispensing agricultural credit in the market area;] (2) under clause (ii) of subsection (1) of section 11 of the Act a list of traders holding general licenses in the market area;

(3) under clause (iii) of subsection (1) of section 11 of the Act, a list of members of managing committees of Cooperative Marketing Societies situated in the market area [holding general licenses.]

6. Persons qualified to vote. A person whose name is entered in a list of voters shall be qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list.

7. Preparation of list of voters for general election. (1) Whenever a general election to market committee is to be held:

(i) every Cooperative society dispensing agricultural credit in the market area shall communicate the full names of Page 30 of 56 C/SCA/344/2014 CAV JUDGMENT the members of its managing committee together with the place of residence of each members;

(ii) the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader; and

(iii) every Cooperative Marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member to the authorized officer before such date as the Director may by order fix in that behalf:

Provided that the date to be so fixed shall not be later than sixty days before the date of the general election. (2) The authorised officer shall within seven days from the date fixed under subrule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the information received under subrule (1) and, if necessary, after making such inquiry as he may deem fit.

(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.

8. Provisional and final publication of lists of voters. (1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.

[(1A) After receiving applications, if any, under subrule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for an amendment in the revised draft list of voters.] Page 31 of 56 C/SCA/344/2014 CAV JUDGMENT (2) If any application is received under 1[subrule (1A)], the authorised officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at atleast thirty days before the date fixed for the nomination of candidates for the election.

10. Fixing stages of election. (1) An election shall be held between such hours and on such date and at such places as may be fixed by the Director.

(2) Not less than 40 days before the date fixed for the election under rule 4, the Director shall publish in Gujarati a notice stating:

(a) the number of persons to be elected by the respective electorate.

(b) the date on which, the place at which and the hours between which nomination papers shall be presented to the Election Officer, such date not being earlier than 14 days from the date of the publication of the notice.

(d) the date on which, the place or places at which and the hours between which the votes shall be taken.

(e) the date on which, the place at which and the hours between which the votes shall be counted.

27. Publication of the names of elected and nominated members of the Market Committee. The names of the elected and nominated members of the market committee shall be published in the Official Gazette by the Director as soon as conveniently may be after their election and nomination.

28. Determination of validity of election. (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing:

(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and

(b) to the State Government if the election has been Page 32 of 56 C/SCA/344/2014 CAV JUDGMENT conducted by the Director as an Election Officer and (2) On receipt of an application under subrule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.

11.1 Considering the aforesaid provisions of the Rules, it appears that Rule 4 provides that whenever a general election to a market committee is to be held, the Director of Agriculture Market and Rural Finance [hereinafter referred to as "Director"] shall by a written order fix the date of such election and publish such order by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area.

11.2. Rule 5 provides for three separate list of voters for three separate constituencies.

(i) the list of voters comprising of the names of the members of the managing committees of the cooperative societies dispensing agricultural credit within the market area of the concerned APMC - these voters elect eight constituencies;

(ii) the list of voters comprising of traders holding general licenses - these voters elect four candidates out of themselves;

(iii) the list of voters comprising of the members of the managing committees of the cooperative market societies in the market area and holding general licenses - these voters elect two representatives out of themselves.

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11.3. SubRule (1) of Rule 7 provides that a Director shall fix a specific date by which date the market committee shall communicate the list of traders holding general licenses and every cooperative society dispense with agricultural credit in the market area or every cooperative market society in the market area holding a general license shall communicate the names of the members of its managing committee.

11.4. SubRule (2) of Rule 7 further provides that the Authorized Officer shall within 7 days from the date fixed under subRule (1) caused to be prepared the list of voters as required by Rule 5 on the basis of the information received under subRule (1), if necessary, making such inquiry as he may deem fit. Thus, after the market committee communicates that list of traders holding general licenses and/or any information is received from the concerned cooperative society dispensing agricultural credit in the market area or every cooperative society in the market area holding a general license, the names of the members of its managing committee, the Authorized Officers will be having a clear 7 days for preparation of the voters' list as per subRule (2) of Rule 7 and thus he would have a clear 7 days of making such inquiry as he may deem fit. The scope and ambit of the inquiry by the Authorized Officer while preparing the preliminary voters' list under Rule 7 shall be dealt with hereinafter.

11.5. As soon as the voters' list prepared under Rule 5, it shall be published by the Authorized Officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly Page 34 of 56 C/SCA/344/2014 CAV JUDGMENT entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.

11.6. Sub Rule (1A) of Rule 8 provides after receiving applications, if any, under subrule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for an amendment in the revised draft list of voters.

11.7. As per sub Rule 2 of Rule 8 if any application is received under 1[subrule (1A)], the authorised officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application and the final list shall be prepared at atleast thirty days before the date fixed for the nomination of candidates for the election.

11.8. Thus, the scheme preparation of voters' list is provided under Rule 8. Therefore, any objection against the inclusion and / or exclusion of the names in the voters' list, in the preliminary list of voters' (is prepared under Rule 5 and published under Rule 7) objection is required to be raised at that stage and after considering the objection a revised draft list of voters' is required to be published by the Authorized Officer as per Rule (8)(1A) and at that stage and / or thereafter an objection can be raised against any new name entered in the said list.

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12. In backdrop of the above scheme, challenge to the decision of the Authorized Officer rejecting the objection submitted by the petitioner is required to be considered.

13. Now so far as the reliance placed upon the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) and even the subsequent decision of Division Bench of this Court in the case of Patel Talshabhai Purabhai (Supra) by Shri Nanavaty, learned Counsel appearing on behalf of the respondents herein and his submission that in view of the alternative remedy available under Rule 28 of the Rules, the dispute with respect to the addition and/or alteration in the voters' list and/or with respect to inclusion and/or exclusion of the names in the voters' list, a petition under Article 226 of the Constitution of India is not maintainable and therefore, no relief as prayed for in the present petition may be granted in exercise of powers under Article 226 of the Constitution of India is concerned, at the outset it is required to be noted that even in the decision in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), the Full Bench while holding that exclusion or inclusion of the names from the voters' list cannot be termed extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution of India, has recognized that in exceptional cases, the Court can exercise the powers of judicial review, which is the basic structure. The aforesaid Full Bench decision in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) came to be considered by the Division Bench in the case of Shrutbandhu H. Popat (Supra) [2008(1) GLH 575] and in paras 25 to 27, the Division Bench as observed and held as under:

"25. In Election Commission of India vs. Ashok kumar, (2000) 8 SCC 216, the Apex Court has laid down the following principles in Page 36 of 56 C/SCA/344/2014 CAV JUDGMENT 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 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 wellsettled 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 Page 37 of 56 C/SCA/344/2014 CAV JUDGMENT 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 20012007 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 creating an artificial majority in the constituency of traders holding general licences under clause (ii) of subsection (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 Page 38 of 56 C/SCA/344/2014 CAV JUDGMENT India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the Voters' List?

After considering various decisions of the Apex Court and also the decisions of various Benches of this Court, the Full Bench answered the Reference as under:

I. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.

II. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.

III. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in 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."

13.2. It is required to be noted that even subsequently and consistently this Court in number of cases as and when required to maintain the democratic process and whenever it was found that there is an attempt to subvert the fair election process and the ground of relief is not likely to ultimately affect the election process, the powers are exercised under Article 226 of the Constitution of India. The decision in which this Court has entertained the petitions under Article 226 of the Constitution of India and granted such reliefs are already stated herein above in para 6.1.

13.3. Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of Patel Talshabhai Purabhai (Supra) reported in 2011(4) GLH 3544 taking the view that with respect Page 39 of 56 C/SCA/344/2014 CAV JUDGMENT to dispute of addition, alteration of voters' list, an alternative efficacious remedy under Rule 28 of the Rules is available and therefore, the High Court would not exercise extraordinary jurisdiction is concerned, it is required to be noted that as such in an another decision headed by the same learned Judge in the case of Patel Talshabhai Purabhai (Supra) as held in the case of Shrutbandhu H. Popat (Supra) rendered in Special Civil Application No.16246/2011 dated 13.12.2011 has taken a contrary view and even after considering the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (Supra) after considering the decision of the Hon'ble Supreme Court in the case of Ashok Kumar (Supra); in the case of Pundlik (Supra) and other decisions and even considering the decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trademarks reported in (1998)8 SCC 1 has held that in an appropriate case being made out, a writ petition under Article 226 of the Constitution of India would be maintainable and a relief can be granted in exercise of powers under Article 226 of the Constitution of India.

13.4. In the recent decision of the Division Bench of this Court in the case of Vasundra Samudayik Kheti Sahakari Kheti Sahakari Mandali Limited (Supra) rendered in Special Civil Application No.16249/2011 and other allied petitions in which the Division Bench considered in detail the powers of the High Court to be exercised under Article 226 of the Constitution of India more particularly in a dispute related to election. In paras 22 to 30, the Division Bench has observed and held as under:

"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.

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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 wellsettled 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 Page 41 of 56 C/SCA/344/2014 CAV JUDGMENT 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."

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 respondentSangh 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 respondentSangh would be held on June 9, 2005 for discussing Page 42 of 56 C/SCA/344/2014 CAV JUDGMENT 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. 3Maha 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 respondentSangh and the said 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 Page 43 of 56 C/SCA/344/2014 CAV JUDGMENT 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 subcommittee was convened on 20.1.2007 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 subcommittee 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 subcommittee and to direct the respondentauthorities 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 Page 44 of 56 C/SCA/344/2014 CAV JUDGMENT 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 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 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 Page 45 of 56 C/SCA/344/2014 CAV JUDGMENT 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 quasijudicial 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 quasijudicial 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:

"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."

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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 selfimposed 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. 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 to raise 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 Page 47 of 56 C/SCA/344/2014 CAV JUDGMENT irregularity."

13.5. 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 required, 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.

13.6. It is required to be noted that as such a remedy available under Article 226 would be a constitutional remedy available 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 could 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 cannot be accepted. 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.

14. Now, so far as the contention on behalf of the private respondents that present petition is required to be dismissed on the Page 48 of 56 C/SCA/344/2014 CAV JUDGMENT ground of nonjoinder of proper parties i.e. nonjoinder of market committee and sublicense committee is concerned, at the outset it is required to be noted that in the present petition what is challenged is the decision of the Authorized Officer in rejecting the objection submission by the petitioner against the inclusion of the names of the private respondents herein in the preliminary voters' list of the Traders Constituency. Therefore, those persons/traders who are likely to be vacated are joined as party respondents. As such the decision of the market committee / sublicense committee in granting the license to the private respondents herein is as such not under challenged. The grievance which is voiced by the petitioner in the present petition is that as those private respondents herein have obtained the license on the eve of the election / after declaration of the election date by the Director, their names are not required to be included in the voters' list. Under the circumstances, as such the present petition is not required to be dismissed on the ground of nonjoinder of the proper/necessary party. As observed hereinabove, all those who are likely to be affected are joined as party respondents.

15.0. Now, question which is posed for consideration of this Court is whether in the facts and circumstances of the case the Authorized Officer is justified in rejecting the objection raised / submitted by the petitioner against inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 society in the provisional list, raised for the first time after publication of the provisional voters' list / revised draft list of voter's ? 15.1. From the order passed by the Authorized Officer, it appears that the Authorized Officer has rejected the objection raised by the petitioner on the ground that as the names of the members of the Managing Committee of respondent nos. 5 to 9 society were included in Page 49 of 56 C/SCA/344/2014 CAV JUDGMENT the provisional list of voters' / published under Rule 7 of the Rules and at that stage no objection was raised and thereafter when their names have been continued to be included / included in the provisional voters' list / revised draft list of voter's and the objection has been raised against the inclusion of their names in the provisional voters' list / revised draft list of voters' for the first time thereafter, such objection is not required to be entertained.

15.2. It is the case on behalf of the petitioner that as respondent nos. 5 to 9 society have obtained license after the declaration of date of election / election programme with a view to create artificial majority and it will be fraud on the election process, such objection which goes to the root of the matter can be considered at any stage, more particularly, even at the stage of preparation of the provisional voters' list / draft list of voters' as provided under Rule 8(1A) of the Rules. It is also the case on behalf of the petitioner that as at the relevant time when the preliminary list of voters' was published under Rule 7 whereby the names of the members of the Managing Committee of respondent nos. 5 to 9 society were included in the preliminary voters' list the society of the petitioner was not granted the license and therefore, the petitioner could not raise the objection and thereafter the society of the petitioner has been granted license and consequently the names of the petitioner has been included in the provisional voters' list under the direction of the Director, the objection of the petitioner is required to be considered and the objection submitted by the petitioner was not required to be rejected on the aforesaid ground.

15.3. On the other hand, it is the case on behalf of the private respondents that on plain reading of Rule 8, more particularly Rule 8(1 A) of the Rules makes it clear that objection which can be raised under Rule 8(1A) " against any new name entered in the preliminary voters' Page 50 of 56 C/SCA/344/2014 CAV JUDGMENT list" and therefore, the petitioner was not entitled to raise objection as was raised.

15.4. It is an admitted position that names of the members of the Managing Committee of respondent nos. 5 to 9 society were as such included in the preliminary voters' list published by the Authorized Officer published under Rule 7 of the Rules. Admittedly no objection was raised against the inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 society in the preliminary voters' list. That thereafter, the Authorized Officer has published the revised list of voters' / provisional voters' list under Rule 8(1A) of the Rules and the names of the members of the Managing Committee of respondent nos. 5 to 9 society are included / continued to be included in the provisional voters' list. Therefore, as such it is not the case where the names of the members of the Managing Committee of the respondent nos. 5 to 9 society came to be included for the first time in the provisional voters' list published under Rule 8(1A) of the Rules.

15.5. Identical question came to be considered by the Division Bench in the case of Mehsana District Co.Op. Produce & Sales Union Ltd (supra) wherein this Court has held in para 5 as under:

5. The Scheme of the preparation of the voters' list is provided under Rule 8. The authorised officer, who is appointed for conduct of the general election of the Market Committee, has to publish the voters' list prepared under Rule 5, by affixing a copy thereof at the office of the Market Committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters. In the instant case, such preliminary voters' list was Page 51 of 56 C/SCA/344/2014 CAV JUDGMENT published on 24101997. The petitioners, in these Special Civil Applications, did not file any objection nor any other person filed any petition regarding the inclusion of their names in the preliminary voters' list. After the publication of preliminary voters' list, the authorised officer published the revised draft list, as provided under Rule 8(1A) on 12111997. In the revised draft list also, the petitioners' names were included. The interpretation of Rule 8(1A) assumes some importance. It is as follows:

After receiving applications, if any, under subrule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for an amendment in the revised draft list of voters.(Emphasis supplied) From Rule 8(1 A), it is clear that, after the publication of the revised draft list, the authorised officer shall publish a notice stating that any person who wishes to raise any objection against any new name entered in the list, may apply within seven days from the date of publication of the notice to the authorised officer for an amendment in the revised draft list of voters. From Rule 8(1A), it is a clear that, objection could be raised by any person only regarding the entry of any new name in the revised draft list. If the names were already in the preliminary list as well as in the revised draft list, no person can raise any objection regarding that. If any new name was entered in the revised draft list, objection could be raised and the authorised officer has to decide whether such entry or entries shall be deleted or not. Therefore, it is clear that the authorised officer illegally omitted the names of the petitioners from the final voters' list and it is contrary to Rule 8(1A).

15.6. Even in the recent decision in the case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd (supra) as such the similar view has been taken by the Division Bench after relying upon the decision of the Division Bench in the case of Mehsana District Co.Op. Produce & Sales Union Ltd (supra).

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16.0. Considering the entire scheme of the election and the Rules reproduced herein above, more particularly, Rule 5, 7 and 8, we are in complete agreement with the view taken by the Division Bench in the case of Mehsana District Co.Op. Produce & Sales Union Ltd (supra). It cannot be disputed that entire election process is regulated under the Rules and in accordance with the Rules. Rules prescribed the various stages relating to raising of the objection against inclusion and / or exclusion of the names in the voters' list i.e. provisional voters' list / preliminary voters' list. None of the Rules permit objection to be raised for the first time at the stage of publishing provisional voters' list against the inclusion or exclusion of the names in the preliminary voters' list. As stated above, objection against the inclusion of the names in the preliminary voters' list is required to be raised as per subrule(1) of Rule 8 i.e. within 14 days from the date of publication of the notice published in the list of voters' prepared under Rule 5. After receiving the application / objection raised within 14 days of the publication of the notice, amendment of the list of voters in exercise of powers under Rule 8(1A) of the Rules revised draft list of voters is published an objection against "any new names" entered in the said list only, can be raised as provided under Rule (1A) and that too within 7 days from the date of publication of the said notice for amendment in the revised draft list of voters'. Therefore, once the name of the Members of Managing Committee of respondent nos. 5 to 9 are entered in the preliminary voters' list and within 14 days of such publication, no objection was raised against their inclusion in the voters' list, thereafter after publication of the draft revised list of voters' / provisional voters' list no objection can be raised against the inclusion in the voters' list. The position would have been different if objection are raised against the inclusion of the names in the voters' list in the preliminary voters' list, within 14 days from the date of publication of the notice as per Rule Page 53 of 56 C/SCA/344/2014 CAV JUDGMENT 8(1) and after rejecting the objection, the names have been included / continued to be included in the draft revised list. Therefore, as such Authorized Officer is justified in not entertaining and / or rejecting the objection submitted by the petitioner against inclusion of the names of the members of the managing committee of respondent nos. 5 to 9 society in the provisional voters' list / draft revised list of voters' published under Rule 8(1A) of the Rules. Considering the decision of this Court in the case of Mehsana District Co.Op. Produce & Sales Union Ltd (supra), if the Authorized Officer would have entertained such objection and deleted the names of the members of the managing committee of respondent nos. 5 to 9 society, in that case, it would have been an illegal act.

17.0. Now, so far as contention on behalf of the petitioner that at the relevant time when the preliminary voters' list was published including the name of members of the managing committee of respondent nos. 5 to 9 society, the society of the petitioner was not granted license and subsequently society of the petitioner was granted license and their names came to be included in the provisional list / draft revised list of voters' and therefore, objection raised by the petitioner against inclusion of the Members of Managing Committee of Respondent nos. 5 to 9 society in preliminary voters' list, at the stage of publication of the draft revised list / provisional list under Rule 8(1A) may be entertained, cannot be accepted. It is required to be noted that as such as per Rule 8(1) any person who thinks that the name of such other person has been wrongly entered therein or has not been correctly entered, may apply to the authorised officer for an amendment of the list of voters'. Therefore, at that stage any person inclusion of petitioner could have raised the objection which has not been raised.

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17.1. Now, so far as next contention on behalf of the petitioner that as it has been found that license has been issued in favour of the respondent nos. 5 to 9 society after the declaration of the election by the Director and / or after the declaration of election programme under Rule 10(2) and / or on the eve of the declaration of the election and with a mala fide intention to get artificial majority it would be fraud on the election process and against the democratic principle and therefore, this Court may entertain the petition and grant the relief in exercise of powers under Article 226 of the Constitution of India is concerned, as stated above the entire election is governed by the statutory rules and complete machinery is provided under the Rules. The scheme is discussed herein above. Therefore, despite the fact that no objection was raised against the inclusion of the names of the members of the Managing Committee of respondent nos. 5 to 9 society in the preliminary voters' list published under Rule 7 and objection came to be raised at the stage of Rule 8(1A) of the Rules any relief as prayed for, if it is granted in exercise of powers under Article 226 of the Constitution of India, the same would tantamount to passing an order contrary to the statutory rules, which is not permissible. Even in exercise of powers under Article 226 of the Constitution of India, no relief can be granted, which would be in contravention of the statutory provisions.

18.0. In view of the above and for the reasons stated above, though it is held that any election dispute in appropriate case under Constitution of India would be maintainable and can be maintainable and relief can be granted, in the facts and circumstances of the case, it cannot be said that the Authorized Officer has committed any error and / or illegality in not entertaining and / or rejecting the objection raised by the petitioner against the inclusion of the name of the members of the Managing Committee of respondent nos. 5 to 9 society Page 55 of 56 C/SCA/344/2014 CAV JUDGMENT which was raised for the first time at the stage / after the publication of the draft revised list / provisional voters' list.

19.0. In view of the above and for the reasons stated above, petition fails and same deserve to be dismissed and is accordingly dismissed. Rule is discharged. No costs.

sd/ (M.R.SHAH, J.) sd/ (R.P.DHOLARIA,J.) Kaushik Page 56 of 56

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Gujarat High Court

Parshottambhai Ranchhodbhai Patel vs State Of Gujarat & 8 on 12 February, 2014

Bench: M.R. Shah, R.P.Dholaria