Gujarat High Court
Rana Anvarbhai Vajesinh & 25 vs State Of Gujarat & 4 on 1 September, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/14210/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14210 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of YES
India or any order made thereunder ?
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RANA ANVARBHAI VAJESINH & 25....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR GAURAV H PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 26
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1 - 26
MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1 - 26
MR SHREY H DAVE, ADVOCATE for the Petitioner(s) No. 1 - 26
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR PK JANI, ADDL. ADVOCATE GENERAL with MR VENUGOPAL PATEL,
AGP for the Respondents
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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Date : 01/09/2017
ORAL JUDGMENT
1. "Can the petitioners or their lawyer be permitted to choose the wrong forum and misuse the process of law by making misleading statements in the petition and then blame the Court for passing ad- interim order in their favour?", is the precise question for consideration in the present petition. The facts germane for deciding the petition are as under.
2. The petitioners, by way of the present petition filed under Article 226 of the Constitution of India, have challenged the legality and validity of the order dated 24.7.2017 passed by the respondent No.3 authorized officer, whereby the respondent No.3 has rejected the objections raised by the petitioners against the non- inclusion of their names in the preliminary voters' list published on 3.7.2017 under Rule 7(2) of the Gujarat Agriculture Produce Markets Rules,1965 (hereinafter referred to as "the said Rules") for the Traders' Constituency of the Agriculture Produce Market Committee, Savli (hereinafter referred to as "the APMC, Savli"). However, the prayer clause of the petition reads as under:-
"40 (A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order, or direction to quash and set aside the Page 2 of 16 HC-NIC Page 2 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT impugned orders passed by the respondent No.3 dated July 24, 2017 cancelling the licenses of the petitioners."
3. It appears from the record of the petition that the petition was presented in the office on 28.7.2017 and a request was made to the coordinate Bench taking up non-service matters, for urgent circulation of three petitions on 31.7.2017 with office objections, if any. As transpiring from the check-list, there were number of office objections, including the objection that no annexures were filed. It further appears that on 31.7.2017 the petition was adjourned to 1.8.2017, however, no order appears to have been passed on 1.8.2017. Thereafter, on 4.8.2017, again a request was made by the learned Advocate for the petitioners, seeking urgent circulation at 2.30 p.m., of three Civil Applications in the said three Special Civil Applications, before the Coordinate Bench, which did not have the roster to hear the election matters. In the Civil Application No.10216 of 2017 filed in the present Special Civil Application following prayer was made:-
"11(A) Pending admission, hearing and final disposal of present application as well as above numbered Special Civil Application, this Honourable Court would be pleased to stay the implementation, execution and operation of the impugned order passed by the respondent No.3 dated July 7, 2017 cancelling the licenses of the applicants, in the interest of justice and equity; and further be pleased to direct the Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT respondent No.3 to include the names of the applicants in the list of voters;"
4. It is pertinent to note that no such order dated 7.7.2017 was on record either of the main petition or of the civil application, and no such relief was sought in the main prayer clause for inclusion of the names of the petitioners in the voters' list.
5. The Coordinate Bench passed the following order on 4.8.2017 in Civil Application No.10216 of 2017 filed in the present petition:-
" Notice returnable on 29.08.2017.
Heard learned advocate Mr. B. M. Mangukiya for the applicants. Considering the facts and circumstances emerging from record, at this stage, let there be a direction to the respondents not to delete the names of the petitioners from the concerned list. Thereby, they will remain in the list of voters. It is disclosed that election is to be conducted in the month of September, it is made clear that, if further order is not passed before the date of election, then though petitioners are permitted to take part in election process, their votes shall be separately kept in sealed cover, which would be subject to result of this petition.
Direct service TODAY is permitted."
6. When the main petition was listed on 24.8.2017, the Coordinate Bench passed the following order:-
" Registry shall verify the pleadings and prayers in the petition, and do the needful Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT to see that whether this petition is to be listed before this Court or before the Court, which has to deal with the election matters. Registry shall do it as at the earliest."
7. Accordingly, the matter was placed before this Court having the roster to hear the matters pertaining to the Elections. On the specific query put by the Court to the learned Advocate Mr.Mangukiya for the petitioners as to why the matter was mentioned for urgent circulation before the Court, which did not have the roster to hear the election matter and as to why misleading statement was made in the main prayer clause giving an impression that the impugned order was pertaining to the cancellation of the licences of the petitioners, when the impugned order was with regard to non-inclusion of the names of the petitioners in the preliminary voters' list of the traders' constituency of the election of APMC, Savli, Mr.Mangukiya had no answer, except that it was a typographical mistake committed by his stenographer while typing the prayer clause. When the Court asked Mr.Mangukiya as to why an attention of the coordinate Bench was not drawn that it was the matter pertaining to elections and the Court could not hear the same as per the roster, Mr.Mangukiya stated that from the order dated 4.8.2017, it clearly emerges that the Court was aware that it was the matter pertaining to the election.
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8. The Court is unable to accept the said
explanation. As transpiring from the record,
there was specific request made before the
Coordinate Bench for urgent circulation of this petition along with the other two petitions by the learned Advocate for the petitioners on 31.7.2017, though all the petitions were pertaining to the election of APMC, Savli and not pertaining to the cancellation of the licences. Not only that, again on 4.8.2017, similar request was made to the said Coordinate Bench for urgent circulation at 2.30 p.m., on the same day, of three Civil Applications in the said petitions.
9. Mr.Mangukiya, who is an experienced Advocate and who is appearing in many election matters, knew fully well about the roster of the Benches, however, sought urgent circulation of matters from the Court which did not have the jurisdiction to hear as per the roster fixed by the Hon'ble Chief Justice. According to him, the coordinate Bench while passing the order was very much aware about the subject matter of the petition, and therefore, had passed the order in the Civil Application on 4.8.2017. In the opinion of the Court, such an impudent submission made by Mr.Mangukiya deserves to be strongly deprecated. Instead of expressing regret for committing serious mistakes by filing necessary affidavits of his colleague or the stenographer, Mr.Mangukiya has an audacity to blame the coordinate Bench for passing the order on Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT 4.8.2017. Since the main prayer clause contained in the petition was for quashing and setting aside of the order dated 24.7.2017 cancelling the licences of the petitioners, which was absolutely a misleading statement, not only the Registry and the Court must have been misled by such statement, but by seeking urgent circulation on the same day, the office and the Court probably did not have the time to verify about the real subject matter of the petition. There being a deliberate and conscious attempt made on the part of the learned Advocate Mr.Mangukiya and his office to mislead the Registry and the Court, the present petition deserves to be dismissed on that ground alone, without any further consideration on merits.
10. At this juncture, it is necessary to reproduce the observations made by the Supreme Court in case of State of Rajasthan Vs. Prakash Chand and Ors., reported in (1998) 1 SCC 1, relied upon by Mr.P.K. Jani, learned Additional Advocate General appearing with Mr.Venugopal Patel, learned AGP for the respondents:-
"12. In State vs. Devi Dayal, AIR 1959 Allahabad 421, a Division Bench of the Allahabad High court considered the scope and powers of the Chief Justice under the Constitution with particular reference to Rule 1 Chapter V of the Rules of that Court (Which is in pari materia with Rule 54 of The Rajasthan High Court Rules, 1952) and held: per Mukherji, J.:Page 7 of 16
HC-NIC Page 7 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT " ..... It is clear to me, on a careful consideration of the constitutional position, that it is only the Chief Justice who has the right and the power to decide which Judge is to sit alone and which cases such Judge can decide; further it is again for the Chief Justice to determine which Judges shall constitutes Division Benches and what work those Benches shall do. Under the Rules of this Courtly, the rule that I have quoted above, it is for the Chief Justice to allot work to Judges and Judges can do only such work as is allotted to them.
It is not, in my view, open to a Judge to make an order which could be called an appropriate order . Unless and until the case in which he makes the order has been placed before him for orders either by the Chief Justice or in accordance with his directions. Any order which a Bench or a single Judge may choose to make in a case that is not placed before them or him by the chief Justice or in accordance with his directions is an order which, in my opinion. If made, is without jurisdiction."
In his separate but concurring opinion H.P. Asthana, J. observed:
"Rule 1, Chapter V, of the Rules of this Court, provides that Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions.
It will appear from a perusal of the above provisions that the high court as a whole consisting of the Chief Justice and his companion Judges has got the Page 8 of 16 HC-NIC Page 8 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT jurisdiction to entertain any case either on the original side or on the appellate or on the revisional side for decision and that the other Judges can hear only those matters which have been allotted to them by the Chief Justice or under his directions. It, therefore, follows that the Judges do not have any general jurisdiction over all the cases which the High court as a whole is competent to hear and that theirs jurisdiction is limited only to such cases as are allotted to them by the Chief Justice or under his directions."
11. The Supreme Court in the afore-stated case after discussing many cases, concluded inter alia that the Chief Justice is the master of the roster and the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions; and that no Judge or Judges can give directions to the Registry for listing any case before him or them, which runs counter to the directions given by the Chief Justice.
12. In view of the above, the order passed by the coordinate Bench on 4.8.2017 being without jurisdiction would be nonest in the eye of law. However, since the Court has heard the learned Advocates for the parties on merits of the petition, the petition is being decided on merits also.
13. As transpiring from the averments made in the petition, the programme of election of APMC, Savli was published by the respondent No.2 Director on 16.6.2017 (Annexure-M). The Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT preliminary voters' list under Rule 7(2) of the said Act was published on 3.7.2017. The petitioners claiming to be the traders eligible to vote in the said election from the traders' constituency having not been included in the said preliminary voters' list, had raised the objections as contained in the letter dated 17.7.2017 (Annexure-N). The said objections were rejected by the respondent No.3 authorized officer maintaining non-inclusion of petitioners' names in the voters' list, as per the impugned order dated 24.7.2017 (Annexure-U), on the ground that the licences of the petitioners were already cancelled by the APMC, Savli against which the petitioners had not moved any appeal or revision before the competent authority. It was also observed in the impugned order that though as per the submission made by the petitioners, a petition before the High Court was filed by them, challenging the order of the APMC, Savli cancelling their licences, no stay order was granted by the High Court in the said petition.
14. The said order of the respondent No.3 has been assailed by Mr.Mangukiya on various grounds, more particularly on the ground that the said order was passed arbitrarily and under the political pressure of the respondent No.5, who was an MLA. According to him, the order passed by the APMC, Savli cancelling the licences of the petitioners was challenged by the petitioners by filing the Special Civil Application No.13325 of Page 10 of 16 HC-NIC Page 10 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT 2017, in which the Court had passed the order on 18.7.2017 directing the respondents not to initiate any further proceedings in any manner in respect of the impugned order, and though the respondent No.3 authorized officer was aware about the said order, he had misinterpreted the said order by holding that no stay of the said order was granted by the High Court.
15. Mr.Mangukiya, relying upon the decisions of the Supreme Court in case of K. Shantharaj and Anr. Vs. M.L. Nagaraj and Ors., reported in (1997) 6 SCC 37; in case of Jt. Registrar of Cooperative Societies, Kerala Vs. T. A. Kuttappan and Ors., reported (2000) 6 SCC 127 submitted that the statutory authorities are required to function in democratic manner and in accordance with law. He also relied upon the decisions in case of Election Commission of India through Secretary Vs. Ashok Kumar and Ors., reported in (2000) 8 SCC 216; as also the judgements of the Division Bench of this Court in case of Shrutbandhu H. Popat Vs. State of Gujarat & Ors., reported in 2007(3) GLR 1942 and in case of Mahedevbhai Veljibhai Cahudhari Vs. State of Gujarat & Ors., reported in 2016 (1) GLR 519, to submit that any decision in the election process is open to judicial review, if found to have been taken arbitrarily or under colourable exercise of powers. According to him, licences of the petitioners were cancelled by the concerned competent authority arbitrarily for which the Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT petitioners have filed Special Civil Application No.13325 of 2016, and the said petition being pending, the respondent No.3 authorized officer should have included the names of the petitioners in the voters' list.
16. The Court does not find any substance in any of the submissions made by Mr.Mangukiya for the petitioners.
17. So far as the Special Civil Application No.13325 of 2017 filed by the petitioners, challenging the order passed by the APMC, Savli cancelling their licences is concerned, it is pertinent to note that though the said order was passed way back in May 2017, the same was sought to be challenged by the petitioners on 17.7.2017 before the Coordinate Bench and the Coordinate Bench had passed the order on 18.7.2017 (Annexure-O) as under:-
" Notice returnable on 20.7.2017. Ms.Asmita Patel, learned AGP waives service of notice on behalf of the respondent Nos.1 & 2. Mr.V. C. Vaghela, learned Advocate waives service of notice on behalf of the respondent Nos.3 & 4.
It would be appropriate for the respondents not initiate any further proceedings in any manner in respect of the impugned order.
Direct service for respondent No.5 is permitted today."
18. From the said order it clearly transpires that Page 12 of 16 HC-NIC Page 12 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT the Court had not stayed the implementation of the order cancelling licences. The only order passed was that it would be appropriate for the respondents not to initiate any further proceedings in respect of the impugned order. In this regard, it is pertinent to note that as per the election programme, the preliminary voters' list was already published on 3.7.2017 and the last date for raising the objections against the preliminary voters' list was 17.7.2017. The petitioners had raised the objections before the respondent No.3 authorized officer on 17.7.2017. It is admitted by the learned Advocate Mr.Mangukiya for the petitioners that the authorized officer was not the party respondent in Special Civil Application No.13325 of 2017, and therefore, there was no question of serving the said order dated 18.7.2017 passed in the said petition to the respondent No.3 authorized officer. Apart from the fact that the respondent No.3 authorized officer was not the party respondent in the said petition, there was no action initiated by the respondent No.3 authorized officer pursuant to the impugned order of the said petition i.e. cancelling the licences of the petitioners. The licences of the petitioners were already cancelled by the orders passed in May 2017, as a result of which their names were not included in the preliminary voters' list published on 3.7.2017. Till the last date of filing of the objections against the Page 13 of 16 HC-NIC Page 13 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT publication of the said preliminary voters' list i.e. 17.7.2017, the said order cancelling the licences of the petitioners had remained unchallenged at the instance of the petitioners.
19. Under the circumstances, the respondent No.3 authorized officer had rightly rejected the objections raised by the petitioners against non- inclusion of their names in the preliminary voters' list. Admittedly, even as on today, the order cancelling the licences of the petitioners have not been set aside, meaning thereby none of the petitioners hold valid licences, and therefore, could not be said to be qualified traders as contemplated under Section 11(1)(ii) of the Gujarat Agricultural Produce Markets Act, 1963. When the matter was sub judice, the respondent No.3 could not be expected to include the names of the petitioners in the preliminary voters' list, presuming that their petition being SCA No.13325 of 2017 would be allowed and the order cancelling the licences would be set aside.
20. In that view of the matter, by no stretch of imagination, could it be said that the respondent No.3 had acted arbitrarily or illegally in rejecting the objections raised by the petitioners against the non-inclusion of their names in the preliminary voters' list.
21. Even otherwise, as rightly submitted by the learned Additional Advocate General Mr.P.K. Jani, Page 14 of 16 HC-NIC Page 14 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT election process having already started, and the exclusion or inclusion of names in the voters' list being not an extraordinary circumstance as held by the Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Co-operative Officer (Marketing), reported in 2006 GCD 211 (SCA No.2489 of 2005 dt. 27.4.2005), the interference of this Court is not warranted. The Division Bench of this Court has also, recently in case of Dilip Mesur Gojiya & Ors. Vs. Chavda Ramdebhai Hamirbhai & Ors., in Letters Patent Appeal No.201 of 2016 decided on 22.7.2016 and in case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Ltd. Vs. State of Gujarat & Ors., in Letters Patent Appeal No.569 of 2016 decided on 1.7.2016, declined to interfere in similar cases.
22. Though the learned Advocate Mr.Mangukiya had vehemently submitted that the whole election process is required to be conducted in a very democratic manner and the Court should interfere when the authorized officer or the election officer acts in arbitrary or mala fide manner, the said submission has no substance. This is not the case where the Court's interference is warranted. On the contrary, as stated herein above the Court has found that the petitioners had tried to misuse the process of law by making mis-statements in the prayer clause of the petition and by misleading the office and the Page 15 of 16 HC-NIC Page 15 of 16 Created On Sat Sep 09 18:53:52 IST 2017 C/SCA/14210/2017 JUDGMENT Court for obtaining ex parte interim order, and therefore, the present petition deserves to be dismissed with cost.
23. In that view of the matter, the petition is dismissed with cost of Rs.50,000/- to be deposited by the petitioners in this Court within ten days from today. The ad-interim relief stands vacated forthwith. The office is directed to list the matter in case of non-compliance.
(BELA M. TRIVEDI, J.) vinod Page 16 of 16 HC-NIC Page 16 of 16 Created On Sat Sep 09 18:53:52 IST 2017