Gujarat High Court
M/S. Jani Enterprises & 29 vs State Of Gujarat Through The Secretary & ... on 15 May, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/8561/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8561 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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M/S. JANI ENTERPRISES & 29....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & 4....Respondent(s)
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Appearance:
MR DAXAY D PATEL, ADVOCATE for the Petitioner(s) No. 1 30
MS MALTI BHARAT RAO, ADVOCATE for the Petitioner(s) No. 1 30
MR. UTKARSH SHARMA ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1 3
MR DIPEN DESAI, ADVOCATE for the Respondent(s) No. 4 5
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 15/05/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] RULE. Shri Utkarsh Sharma, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent Nos.1 to 3 and Shri Dipen Desai, learned Advocate waives service of notice of Rule on behalf of respondent Nos.4 and 5 (newly added parties).
Page 1 of 42HC-NIC Page 1 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT In the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, present petition is taken up for final hearing today.
[2.0] By way of this petition under Article 226 of the Constitution of India petitioners have prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 17.04.2017 passed by the Authorized Officer rejecting the representations of the petitioners against noninclusion of their names in the Preliminary Voters List for the Traders Constituency in the election of APMC, Kalavad (hereinafter referred to as "Market Committee") and consequently to direct the Authorized Officer to include their names in the final voters list of Traders Constituency for the election of Market Committee.
[3.0] At the outset it is required to be noted that as inclusion and/or noninclusion of the names of the petitioners in the voters list of Traders Constituency is on interpretation of the earlier orders passed by the Division Bench of this Court in Letters Patent Appeal No.462/2014 and/or has direct bearing on the earlier decision of the Division Bench of this Court in Letters Patent Appeal No.462/2014, the learned Single Judge has referred the matter to the Division Bench either for clarification and/or for an appropriate order on merits and that is how after obtaining the order from Hon'ble The Chief Justice, the present petition is placed before this Court.
[4.0] That the case has a checkered history right from 2011. Facts Page 2 of 42 HC-NIC Page 2 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT leading to the present petition in nutshell are as under:
[4.1] That the term of the elected body of the Market Committee had expired on 24.06.2011. That the then Chairman of Market Committee preferred petition before this Court being Special Civil Application No.2872/2011, seeking prayer to extend the term of the Market Committee under Section 11(4)(a) of the Gujarat Agricultural Produce Market Committee Act, 1963 (hereinafter referred to as "APMC Act"). That this Court vide order dated 13.07.2011 directed the State Government to decide the case of the extension of the term of the Market Committee in accordance with the provisions of law. The State Government instead of extending the term of the Market Committee, appointed Administrator to take charge of the Market Committee till the elections are held. That the then Chairman of the Market Committee, preferred Special Civil Application No.9704/2011 and one another petition being Special Civil Application No.9019/2011 came to be preferred challenging the action of the Government in appointing the Administrator and not extending the term of the Market Committee. The Division Bench of this Court disposed of the said Special Civil Application vide order dated 30.08.2011 directing the Government to hold the election of the Market Committee within 3 months. It appears that as despite the order dated 30.08.2011 passed by the Division Bench of this Court in Special Civil Application No.9704/2011 directing the State to hold the election within a period of 3 months, no election was held within the time granted by this Court and therefore, the original petitioners of Special Civil Application No.9704/2011 filed a Contempt Petition before the Division Bench Page 3 of 42 HC-NIC Page 3 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT of this Court being Miscellaneous Civil Application No.2403/2011 making a grievance with respect to noncompliance of the order dated 30.08.2011 passed by the Division Bench of this Court in Special Civil Application No.9704/2011. One another grievance which was raised before the Division Bench was that certain societies are registered after 30.08.2011 and the publication of the election programme was delayed or differed in order to see that office bearers of such society/ societies can be included as voters in the concerned constituency at the ensuing election. A statement was made on behalf of the State that those societies which are registered after 30.08.2011 shall not be treated as eligible to be included in the voters list and consequently their officer bearers will not be included in the voters list and all the necessary instructions will be forwarded to the Authorized Officer who is to prepare the voters list. According to the above statement and the statement that election programme shall be declared forthwith, the Division Bench by order dated 23.09.2011 disposed of the said contempt petition.
At this stage it is required to be noted that one another grievance was also raised before the Division Bench in respect of certain traders and/or Marketing Cooperative Societies. To that the Division Bench did not express any opinion leaving it to the parties to resort to appropriate proceedings if such additional rights are conferred or there is any deprivation of the rights.
[4.2] That thereafter the State Government declared the election programme on 19.09.2011. The Authorized Officer published the election Preliminary Voters List on 05.10.2011. While preparing the Page 4 of 42 HC-NIC Page 4 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Preliminary Voters List, the Authorized Officer did not include the names of certain societies in the voters list of the agriculturist constituency. Therefore, those societies approached this Court by way of filing Special Civil Application No.16249/2011 and other allied special civil applications. That by judgment and order dated 09.12.2011 the Division Bench of this Court allowed the said special civil applications and directed the Authorized Officer to include the names of the members of the Managing Committee of the said societies in the voters list for agriculturist constituency.
[4.3] It appears that feeling aggrieved and dissatisfied with the judgment and order dated 09.12.2011 passed by the Division Bench of this Court in Special Civil Application No.16249/2011 and other allied special civil applications, the State and others approached the Hon'ble Supreme Court. The Hon'ble Supreme Court vide interim order dated 15.12.2011 stayed the entire election. It appears that thereafter the Market Committee (Administrator) preferred Miscellaneous Civil Application No.1116/2012 in Special Civil Application No.9704/2011 for permitting the Market Committee to renew / grant the license to the traders of the Market Committee. However, by order dated 10.05.2012 the Division Bench of this Court dismissed the said application by observing that the same was not the dispute before the Court in Special Civil Application No.9704/2011 and therefore, for the dispute which was not there, the Court cannot pass any order in the application. That thereafter the Administrator was in process of grant of new licenses for the AY 201213 and therefore, vide order dated 02.06.2012, the Inspector of the Market Page 5 of 42 HC-NIC Page 5 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Committee was asked to make scrutiny in respect of the applications made for licenses and to submit his report. At that stage the ExChairman of the Market Committee who was also the petitioner of Special Civil Application No.9704/2011 approached this Court and by way of another petition being Special Civil Application No.8955/2012 seeking to set aside the action on the part of the Administrator of the Market Committee in initiating process of grant of new licenses for the year 201213 and to quash and set aside the order dated 02.06.2012 by which the Inspector, Market Committee was asked to make scrutiny in respect of the applications made for licenses and to submit his report. The said petitioner also prayed to issue a writ of prohibition restraining the Administrator from taking any policy decision in the management and affairs of the Market Committee. That the learned Single Judge of this Court vide his judgment and order dated 12.08.2013 dismissed the said special civil application, however recording the statement on oath of the Administrator and so stated in the affidavit in reply in the said special civil application that the issuance of new licenses or renewal of the licenses will not make the concerned license holders entitled to be treated as voters for the election in the Market Committee for which the Court has directed to hold the election. A statement was also made by the learned Advocate appearing on behalf of the Administrator that provision shall be made by way of incorporating condition in the license itself that new licenses shall not be treated as voters for election in the ensuing election.
[4.4] Feeling aggrieved and dissatisfied with the judgment and Page 6 of 42 HC-NIC Page 6 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT order dated 12.08.2013 passed by the learned Single Judge in Special Civil Application No.8955/2012, the original petitioner - ExChairman of the Market Committee preferred Letters Patent Appeal before the Division Bench of this Court and the Division Bench of this Court vide order dated 05.12.2014 dismissed the said Letters Patent Appeal considering the observations made by the learned Single Judge recording the statement on oath of the Administrator that new license holder shall not be treated as voters for the ensuing elections and that if any licenses are issued after 30.08.2011, in that case, specific condition shall be incorporated in the license itself that those new license holder shall not be treated as voters for the ensuing election.
[4.5] That thereafter the APMC Act came to be amended more particularly section 11 of the APMC Act came to be amended by which the eligibility criteria for becoming the voters as agriculturist in agriculturist constituency and for becoming voter in the Traders' Constituency came to be amended (the aforesaid shall be dealt with and considered hereinafter).
[4.6] It appears that therefore in view of the amendment in the APMC Act, which came into effect with effect from 10.04.2015, the election which was stayed by the Hon'ble Supreme Court earlier vide order dated 15.12.2011, was required to be hold as per the amended APMC Act and therefore, the State withdrew the Special Leave Petitions / Special Leave to Appeal which were filed against the judgment and order dated 09.12.2011 passed by the Division Bench of this Court in Special Civil Application No.16249/2011 and Page 7 of 42 HC-NIC Page 7 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT other allied special civil applications. It appears that the Hon'ble Supreme Court vide order dated 22.01.2016 dismissed the said Special Leave Petitions preferred by the State as not pressed, recording the statement of the learned Counsel for the State that the petitions are not pressed in view of the intervening developments leading to the amendment of the legislation and since the election is to be conducted in terms of the amended provision. By the said order the Hon'ble Supreme Court also dismissed other Special Leave Petitions which were preferred against the judgment and order passed by the Division Bench of this Court dated 09.12.2011 in Special Civil Application No.16249/2011 and other allied petitions (which were filed by the private parties) by observing that as now the State proposes to conduct the election in light of the amended provision, it is not necessary to go into the merit of the cases and therefore, dismissed the Special Leave Petitions leaving the question of law open.
[4.7] That it appears that thereafter the State initiated the proceedings for holding the election of the Market Committee. That a fresh election programme came to be published for holding the election of the Market Committee as per the amended APMC Act on 14.03.2017. That therefore as such de novo / fresh election process was commenced by the State to hold the election of the Market Committee as per the amended APMC Act. That in the notification dated 14.03.2017 the State / Director determined the cutoff date for sending the list of voters to the Authorized Officer as on 24.03.2017 and also appointed the Authorized Officer for the purpose of finalization of the voters list. That thereafter the Page 8 of 42 HC-NIC Page 8 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Authorized Officer published the Preliminary Voters List on 30.03.2017. However, in the said Preliminary Voters List of Traders Constituency though the respective petitioners herein were holding the Traders licenses, their names are not included by the Authorized Officer considering the earlier orders passed by this Court more particularly the order 05.12.2014 passed by the Division Bench of this Court in Letters Patent Appeal No.462/2014 that those traders who are issued / granted the licenses after 30.08.2011, shall not be entitled to be considered as voters in the Traders' Constituency in the ensuing election, the Authorized Officer has not included the names of the petitioners in the Preliminary Voters List in the Traders' Constituency. That the respective petitioners raised the objections against the non inclusion of their names in the Preliminary Voters List of Traders' Constituency by objections dated 11.04.2017 / 15.04.2017. That the Authorized Officer has rejected the representations of the petitioners quoting para 16 of the judgment and order passed by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014.
[4.8] Hence, the petitioners have preferred the present Special Civil Application for the aforesaid reliefs.
[5.0] Present Special Civil Application came up for hearing before the learned Single Judge on 04.05.2017. The learned Single Judge was of the opinion that the order passed by this Court in Special Civil Application No.8955/2012 and the order passed by the Division Bench of this Court in Letters Patent Appeal No.462/2014 Page 9 of 42 HC-NIC Page 9 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT would have a direct bearing on the question with respect to inclusion and/or noninclusion of the names of the petitioners in the voters list of the Traders' Constituency and therefore, the learned Single Judge by order dated 04.05.2017 has referred the matter to the Division Bench and as one of us was a party to the order passed in Letters Patent Appeal No.462/2014 pursuant to the order passed by Hon'ble The Chief Justice present petition is placed before us.
[6.0] We have heard Shri Bharat T. Rao, learned Advocate appearing on behalf of the petitioners, Shri Utkarsh Sharma, learned Assistant Government Pleader appearing on behalf of the respondent Authorities more particularly the Authorized Officer and Shri Dipen Desai, learned Advocate appearing on behalf of the respondent Nos.4 and 5 (newly added parties) who are objecting to the names of the petitioners being included in the Preliminary Voters' List of the Traders' Constituency.
[7.0] Shri Bharat T. Rao, learned Advocate appearing on behalf of the petitioners has vehemently submitted that the Authorized Officer has materially erred in not including and/or excluding the names of the petitioners in the voters' list of Traders' Constituency.
[7.1] Shri Rao, learned Advocate appearing on behalf of the petitioners has vehemently submitted that the Authorized Officer has materially erred in not including the names of the petitioners in the Voters' List of Traders' Constituency relying upon and/or considering the observations made by this Court in Special Civil Page 10 of 42 HC-NIC Page 10 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Application No.8955/2012 as well as Letters Patent Appeal No.462/2014.
[7.2] It is vehemently submitted by Shri Rao, learned Advocate appearing on behalf of the petitioners that after the order was passed by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014, much water has flown. It is submitted that the observations were made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014 were with respect to the election which commenced in the year 2011 and which could not be held thereafter because of the interim order dated 15.12.2011 passed by the Hon'ble Supreme Court. It is submitted that thereafter section 11 of the APMC Act has been amended and the eligibility criteria of becoming voters in the Traders' Constituency have been changed materially. It is submitted that therefore, when the Hon'ble Supreme Court permitted the State to hold the election as per the amended APMC Act in the year 2016 and thereafter when the fresh election process has begun, the eligibility criteria of agriculturists / traders is required to be considered as per the amended APMC Act and therefore, the earlier order passed by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 shall not be a bar to include names of the petitioners in the voters' list of Traders' Constituency, however subject to fulfilling the eligibility criteria as per the amended Act, 2015.
[7.3] It is further submitted by Shri Rao, learned Advocate appearing on behalf of the petitioners that even the Hon'ble Page 11 of 42 HC-NIC Page 11 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Supreme Court also recorded the statement on behalf of the State that the State proposes to conduct the election in the light of the amended provision. It is submitted that even the Hon'ble Supreme Court dismissed the Special Leave Petitions preferred by the private parties by observing that as the State proposes to conduct the election in light of the amended provision, it is not necessary to go into the merit of the cases. It is submitted that therefore when the Hon'ble Supreme Court passed the order dated 22.01.2016 it was brought to the notice of the Hon'ble Supreme Court of the amended provision. It is submitted that therefore the election of the Market Committee is required to be held and conducted in light of the amended provision. It is submitted that therefore whatever the observations made earlier while disposing of Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 may not operate for all time to come and more particularly despite the fact that the fresh de novo election process has started to hold the election of the Market Committee as per the amended provision. It is submitted by Shri Rao, learned Advocate appearing on behalf of the petitioners that even the Authorized Officer has prepared the voters list with respect to other constituencies as per the amended provision. However, though the petitioners are holding the traders' licenses and are fulfilling the eligibility criteria to become a voter in the Traders' Constituency as per the amended provision, their names are not included by the Authorized Officer solely considering the observations made by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 to the effect that all those traders who are granted the licenses after 30.08.2011 shall not be eligible to become the Page 12 of 42 HC-NIC Page 12 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT voters in the ensuing election. It is submitted that ensuing election was required to be construed only with respect to the election which was the subject matter before the Court earlier i.e. 2011 election.
[7.4] It is further submitted by Shri Rao, learned Advocate appearing on behalf of the petitioners that if the case on behalf of the Authorized Officer and respondent Nos.4 and 5 herein is accepted and though the petitioners are as such eligible to become the voters as per the amended provision, giving effect to the order passed by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 would tantamount to nullifying the amended provision. It is submitted that therefore cases of the petitioners are required to be considered as per the amended provision and the observations made by this Court while disposing of Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 shall not come in the way of the petitioners to become the voters in the Traders' Constituency with respect to the election which is to be held and conducted in the year 2017 for which a de novo and fresh election process has begun. It is submitted that for the election to be conducted in the year 2017 as per the fresh election programme dated 14.03.2017 and the same cannot be said to be in continuance of the earlier election programme and/or the election to be conducted in the year 2011. It is submitted that in any case thereafter much water has flown even after the order passed by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 and even section 11 of the APMC Act has been amended and the Page 13 of 42 HC-NIC Page 13 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT eligibility criteria for Traders as voters has been changed substantially.
Making above submissions it is requested to allow the present petition and quash and set aside the impugned decision of the Authorized Officer in not including the names of the petitioners in the voters list of Traders' Constituency which is solely based upon the observations made by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 and to direct the Authorized Officer to include the names of the petitioners in the Voters List of Traders' Constituency, subject to fulfilling the eligibility criteria as per the amended provision.
[8.0] Shri Utkarsh Sharma, learned Assistant Government Pleader appearing on behalf of the State / Authorized Officer has submitted that as such the impugned decision / action of the Authorized Officer in not including the names of the petitioners in the Voters' List of Traders' Constituency is bonafide and considering the observations made by this Court while disposing of the Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014. It is submitted that as, while disposing of the Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014, it was observed that those traders who are granted the licenses after 30.08.2011 shall not be entitled to become the voters in the ensuing election and therefore, after 2011, for the first time the election is being held in the year 2017, the same can be said to be ensuing election and therefore, the petitioners who are granted the traders licenses after 30.08.2011, their names are not included in the Voters' List for Traders' Constituency. However has Page 14 of 42 HC-NIC Page 14 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT fairly conceded that a statement was made before the Hon'ble Supreme Court that the State proposes to hold the fresh election as per the amended provision. Therefore he has requested to pass appropriate order which this Court deems fit. He has also fairly conceded that with respect to other constituencies more particularly agriculturist constituency the eligibility criteria as per the amended provision has been made applicable and the names of the petitioners are not included in the Voters List of Traders' Constituency solely considering the observations made while disposing of Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014.
[9.0] Present petition is vehemently opposed by Shri Dipen Desai, learned Advocate appearing on behalf of the respondent Nos.4 and
5. It is submitted that as in case of the respective petitioners the traders' licenses are issued after 30.08.2011, considering the observations made by this Court while disposing of Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 to the effect that all those traders who are granted the licenses after 30.08.2011 shall not be considered as voters in the ensuing election and the election to be held and conducted in the year 2017 can be said to be "ensuing election", the Authorized Officer is justified in not including the names of the petitioners in the Voters' List of Traders' Constituency.
[9.1] It is further submitted by Shri Desai, learned Advocate appearing on behalf of the respondent Nos.4 and 5 that if the names of the petitioners are directed to be included in the Voters' Page 15 of 42 HC-NIC Page 15 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT List of Traders' Constituency, in that case, it would be nullifying the orders passed by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014. It is submitted that the order passed by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 have as such attained finality and therefore, the petitioners who are granted traders' licenses after 30.08.2011 are not entitled to become the voters in the ensuing election. It is submitted that by granting such relief petitioners shall be conferred the rights which are denied by this Court while disposing of Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014.
[9.2] It is further submitted by Shri Desai, learned Advocate appearing on behalf of the respondent Nos.4 and 5 that as such the Authorized Officer while preparing the voters list in question had considered the eligibility criteria as per the amended provision with respect to traders, however the petitioners' names are not required to be included in the voters' list as they have been granted the traders' licenses after 30.08.2011 i.e. after the Administrator was appointed.
[9.3] Shri Desai, learned Advocate appearing on behalf of the respondent Nos.4 and 5 has requested not to entertain the present petition against noninclusion of the names of the petitioners in the voters' list of Traders' Constituency, on the ground that the petitioners shall have the alternative statutory remedy available by preferring the election petition under Rule 28 of the APMC Rules. It is submitted that as observed by the Division Bench of this Court in Page 16 of 42 HC-NIC Page 16 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited vs. State of Gujarat reported in 2016 JX (Guj) 1045 the dispute with respect to the inclusion and/or noninclusion of the names in the voters' list can be considered in the election petition under Rule 28 of the APMC Rules and therefore, the petition under Article 226 of the Constitution of India challenging the action of the Authorized Officer in including and/or non including the names in the voters' list shall not be maintainable. It is submitted that the Special Leave Petition against the said decision has been dismissed by the Hon'ble Supreme Court. It is therefore submitted by Shri Desai, learned Advocate appearing on behalf of the respondent Nos.4 and 5 that the present petition as per the decision of the Division Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited (Supra) shall not be maintainable and therefore, the present petition be dismissed relegating the petitioners to avail alternative statutory remedy available under Rule 28 of the APMC Rules by way of election petition.
[10.0] In rejoinder and insofar as the submission on behalf of the respondent Nos.4 and 5 that the present petition shall not be maintainable as the petitioners would have statutory remedy available under Rule 28 of the APMC Rules and the submission on behalf of the respondent Nos.4 and 5 that against the decision of the Authorized Officer in including and/or not including the names in the voters' list, a petition under Article 226 of the Constitution of India shall not be maintainable is concerned, Shri Rao, learned Advocate appearing on behalf of the petitioners has heavily relied Page 17 of 42 HC-NIC Page 17 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT upon the decision of the Division Bench of this Court in the case of Daheda Group Seva Sahkari Mandali Limited vs. R.D.Doshit reported 2006(1) GCD 211, by which, the Division Bench has held that in exceptional case if made out, the Court can interfere with the decision of the Authorized Officer in preparing the voters' list. It is submitted that decision of this Court in the case of Daheda Group Seva Sahkari Mandali Limited (Supra) has also been confirmed by the Hon'ble Supreme Court.
[10.1] It is further submitted by Shri Rao, learned Advocate appearing on behalf of the petitioners that even otherwise so far as the present case is concerned, names of petitioners are not included in the Voters' List of Traders' Constituency solely relying upon and/or considering the observations made by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 and the question shall be with respect to the interpretation of the observations / orders passed by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 and therefore, the election petition under Rule 28 of the APMC Rules cannot be said to be efficacious alternative remedy, as the Director and/or Appropriate Authority under Rule 28 of the APMC Rules shall not have any authority and/or jurisdiction to interpret and/or make any comments on the observations made by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014. It is submitted that therefore the question in the present petition being solely with respect to the observations made by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal Page 18 of 42 HC-NIC Page 18 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT No.462/2014 and even the learned Single Judge in the order dated 04.05.2017 has also observed that the observations made by this Court in Special Civil Application No.8955/2012 and Letters Patent Appeal No.462/2014 shall have direct bearing on the decision of the Authorized Officer in not including the names of the petitioners in the Voters' List of Traders' Constituency, it is requested to consider the petition on merits.
[11]. Heard the learned advocates for the respective parties at length.
[12]. At the outset, it is required to be noted that the respective petitioners claim to be holding the Traders license since last more than 5 to 7 years. The election for the APMC, Kalavad has been declared in the month of March 2017 and the election programme has been published on 14.03.2017. The Authorized Officer has not included the names of the petitioners in the voters list of Traders Constituency solely considering the observations made by this Court in Special Civil Application No. 8955 of 2012 as well as Letters Patent Appeal No.462 of 2014, by which, when the question before this Court was with respect to the election of the APMC, Kalavad which was declared in the year 2011 and as the election could not be held despite the term of the market committee had expired and the Administrator was appointed and at that time and stage, it was apprehended that the Administrator may grant / renew the Traders licenses only with a view to inflate the numbers of voters and therefore, at that stage a statement was made on behalf of the State, more particularly, Administrator of the Market Page 19 of 42 HC-NIC Page 19 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Committee that those Traders who are issued the Traders license after 30.08.2011, they shall not be considered eligible for voters in the "ensuing election" and therefore, and/or those circumstances, the learned Single Judge as well as Division Bench of this Court in Special Civil Application No. 8955 of 2012 as well as Letters Patent Appeal No.462 of 2014 respectively passed an order that those Traders who are granted the Trades license after 30.08.2011 shall not be considered as voters in the ensuing election. Therefore, considering the above observations and the order now when the election of the APMC, Kalavad has been declared in the month of March 2017 and the election is to be held now which is to be held for the first time after 2011, names of the petitioners are not included in the voters list of Traders Constituency. Therefore, the short question which is posed for the consideration of this Court is whether in the facts and circumstances of the case, the Authorized Officer is justified in not including the names of the petitioners in the voters list of Traders Constituency or not ?
[13]. The objection is raised by the learned Advocate for the respondent nos. 4 and 5 that as the dispute is with respect to voters list and therefore, as per the decision of the Division Bench of this court in the case of Bhesavahi Groupn Vividh Karyakari Seva Saharkari Mandali Limited (Supra), by which, relying upon and considering the earlier decision of the Full Bench of this Court in the case of Daheda Group Seva Sahkari Mandali Limited vs. R.D.Doshit reported 2006(1) GCD 211, the Division Bench has held that in view of the statutory remedy available under Rule 28 of the Rules by way of Election Petition, the petition under Article 226 of Page 20 of 42 HC-NIC Page 20 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT the Constitution of India with respect to voters list shall not be maintainable and therefore, it is requested to dismiss the present petition on the ground of statutory alternative remedy to the petitioners by way of Election Petition under Rule 28 of the Rules.
However, it is required to be noted that identical question came to be considered by the another Division Bench of this Court in the case of Parshottambhai Ranchhodbhai Patel vs. State of Gujarat & Ors reported 2014(5) GLR 4310 and considering the observations made by the Full Bench in the case of Daheda Group Seva Sahkari Mandali Limited (supra) and the subsequent decision of the Division Bench after the decision of the Full Bench in the case of Daheda Group Seva Sahkari Mandali Limited (supra), it is observed and held that in exceptional case being made out and without disturbing the election programme, the Court may entertain the petition under Article 226 of the Constitution of India. In paragraph 13, 13.3, 13.4 and 13.5, the Division Bench has observed and held as under:
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 Page 21 of 42 HC-NIC Page 21 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 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 Page 22 of 42 HC-NIC Page 22 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 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 Page 23 of 42 HC-NIC Page 23 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Act.
27. We may now deal with the decision of the Full Bench heavily relied upon by Mr. B. S. Patel for the APMC in Daheda Group Seva Sahakari Mandali Limited (supra) decided on 27.4.2005. The following questions were referred to the Full Bench in the context of elections to the APMCs and the scope of Rule 28 of the APMC Rules constituting the Election Tribunal for deciding disputes relating to elections to APMCs:
I. Whether a person whose name is not included in the Voters' List can avail provisions of Rule 28 of the rules by filing election petition?
II. Whether the remedy under Rule 28 can be termed to be efficacious remedy?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the Voters' List?
After considering various decisions of the Apex Court and also the decisions of various Benches of this Court, the Full Bench answered the Reference as under:
I. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
II. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
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."Page 24 of 42
HC-NIC Page 24 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 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.
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 Page 25 of 42 HC-NIC Page 25 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 be lost or destroyed or rendered Page 26 of 42 HC-NIC Page 26 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 Page 27 of 42 HC-NIC Page 27 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 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 Page 28 of 42 HC-NIC Page 28 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll."
24. Thus, even in the Full Bench decision, in the case of Deheda Group Seva Sahakari Mandli Ltd (supra), the Bench recognized exceptional circumstances where writ jurisdiction would still be exercised. Later decisions of this Court pointed out by the respondents more or less have followed the Full Bench view in the aforesaid case.
25. On the other hand, there are certain judgments of the Division Bench of this Court which have, in extraordinary circumstances, in exercise of writ jurisdiction, given directions to ensure conduct of elections in fair manner. In the case of S.H. Popad (supra), a Division Bench observed as under:
"21. In view of the above material on record and in view of the fact that the meeting of the licence 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 :Page 29 of 42
HC-NIC Page 29 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT "14. Similar preliminary contention raised in another petition under Article 226 of the Constitution challenging the voters' list was rejected by a Division Bench of this Court to which one of us was a party. In Shrutbabdhu H. Popat v. State, 2007(3) GLR 1942, the preliminary contention was rejected on the ground that after the decision of the Full Bench decision rendered on 27.4.2005, in the subsequent decision dated 25.8.2005 of the Apex Court, in the case of Pundlik v. State of Maharashtra reported in 2005(7) SCC 181, the Apex Court has held that though preparation of the voters list is one of the integral process of election and that normally the High Court should not interfere in exercise of powers under Article 226 of the Constitution, but such action must be in accordance with law. In Pundlik's case, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami's case, 2001 (8) SCC 509 in which objections against publication of the provisional electoral roll of the society were considered by the Collector and dispose of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the voters' list. It was in the background of the said facts that the Apex Court held in Shri Santi Sadguru case that the High Court should not stay continuation of the election process 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' Page 30 of 42 HC-NIC Page 30 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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 selfimposed restraint by the court rather than a question of lack of jurisdiction. This is so because judicial review is considered as a basic feature of the Constitution. Exercise of writ jurisdiction under Article 226 is a constitutional guarantee. We may refer to the following decisions at this stage.
27.1 In the case of Amrik Singh Lyallpuri v. Union of Inida, (2011) 6 SCC 535, the Apex Court observed as follows :
"17. In a subsequent Constitution Bench decision of this Court in L.Chandra Kumar v. Union of India, Ahmadi, C.J. After an analysis of different decisions of this Court affirmatively held that judicial review is one of the basic features of our Constitution. Such a finding of this Court, obviously means that there cannot be an administrative review of a decision taken by a judicial or a 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, Page 31 of 42 HC-NIC Page 31 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice, both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State Legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by courts of justice. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our Constitution because it is necessary to give effect to the distribution of legislative power between Parliament and State Legislatures, and is also necessary to give practicable content to the objectives of the Constitution embodied in PartIII and in several other Articles of our Constitution."
28. Despite availability of such wide powers of issuance of various writs under Article 226 of the Constitution, Courts have always frowned upon interfering with the election process once the same is set in motion. Such 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.
Page 32 of 42HC-NIC Page 32 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT
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 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 Page 33 of 42 HC-NIC Page 33 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT 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.
It is reported that the aforesaid decision has also been confirmed by the Hon'ble Supreme Court.
[14]. Now, applying decision of the Division Bench of this Court in the case of Parshottambhai Ranchodbhai Patel (supra) to the facts of the case on hand, we are of the opinion that the petition is not required to be dismissed on the ground of alternative statutory remedy available by way of Election Petition under Rule 28 of the Rules. It is true that normally in the election dispute and more particularly dispute with respect to the voters list, the Court would be very slow to interfere and entertain the petition under Article 226 of the Constitution of India and aggrieved party is to be relegated to avail the alternative remedy available of filing Election Petition. However, as per the cardinal principle of law and as per the catena of decisions of the Hon'ble Supreme Court as well as this Court such alternative remedy must be an efficacious alternative remedy. We are of the opinion that in the facts and circumstances of the case, the alternative statutory remedy available under Rule 28 of the Rules to file Election Petition cannot be said to be an efficacious alternative remedy available. In the present case, the question is with respect to interpretation and / or observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014. The Authorized Officer has not included the name of the petitioners in the voters list of Traders Constituency solely considering the observations made by Page 34 of 42 HC-NIC Page 34 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014. Therefore, whether the observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014 shall be applicable for all time to come in future election or the same shall be restricted to the election to be held in the year 2011, can be answered only by this Court and the Authority to decide the Election Petition under Rule 28 of the Rules may not be in a position to decide question either way. The question involved in the present petition can only be answered by this court. Even, learned Single Judge while referring the matter to the Division Bench has also observed that clarification is required from the Division Bench and therefore, the learned Single Judge has referred the matter to the Division Bench. Therefore, even the learned Single Judge is also of the opinion while referring the matter to the Division Bench that clarification is required by the Division Bench in light of the earlier observations made by this Court in Letters Patent Appeal No. 462 of 2014. Under the circumstances and in the peculiar facts and circumstances of the case and considering the same as exceptional case / special case, the petition is not required to be dismissed on the ground of availability of alternative statutory remedy available under Rule 28 of the Rules of filing Election Petition. Under the circumstances, the objection raised by the learned advocate for the private respondents is hereby overruled.
[15]. Now, so far as the main issue i.e. Whether the observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014, by which, it was Page 35 of 42 HC-NIC Page 35 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT observed that all those Traders who are issued the license after 30.08.2011 shall not be entitled to become voters in the "ensuing election", will come in way of the petitioners for becoming the voters in the Traders Constituency in the election which is to be held in the year 2017 ?
[15.1].It is required to be noted that as such more water has flown after the year 2011 and after order dated 05.12.2014 passed by the Division Bench passed in Letters Patent Appeal No. 462 of 2014 and now when the election has been declared in the month of March 2017. The eligibility criteria to become the voters in the Agriculturist Constituency and the Traders Constituency as per Section 11 of the APMC Act have been materially changed / altered. Section 11 of the APMC Act has been amended w.e.f. 10.04.2015. Section 11 of the APMC Act, 1963 preamended and post amended, read as under:
Section 11 (Preamended): Constitution of Market Committee:
(1).Every market committee shall consist of the following members, namely:
(i).eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than cooperative marketing societies and milk produce cooperative societies) dispensing agricultural credit in the market area;
(ii).four members to be elected in the prescribed manner from amongst themselves by the traders holding general licenses;
(iii) xxx
(iv) xxx
(v) xxx Section 11 (Postamended): Constitution of Market Committee:
(1).Every market committee shall consist of the following members, namely: Page 36 of 42 HC-NIC Page 36 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT
(i).eight agriculturists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area, shall be elected by the members of managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area;
(ii).four members to be elected in the prescribed manner from amongst themselves by the traders holding general license who have traded in full conformity with the terms and conditions of the licence in the previous financial year and the fees payable by them has not remained unpaid;
[15.2]. Thus, the eligibility criteria to become voters in the Agriculturist Constituency as well as Traders Constituency which were there in the year 2011/2014, were altogether different than today. Therefore, now when the fresh / denovo election is to be held and conducted in the year 2017, the same must be in conformity with the amended provision and the eligibility of voters in the Agriculturist Constituency and Traders Constituency is required to be considered as per the amended provision.
[15.3]. At this stage, it is required to be noted that when earlier the term of Market Committee expired in the year 2011 and thereafter the process to conduct the election of the Market Committee commenced in the year 2011/2012, the matter reached to the Hon'ble Supreme Court and thereafter the State withdrew the Special Leave Petitions before the Hon'ble Supreme Court by making the statement that State proposes to hold the election of the Market Committee as per the amended provision and the Hon'ble Supreme Court permitted the State to withdraw the Special Leave Petitions. The Hon'ble Supreme Court also dismissed the other Special Leave Petitions preferred by the private parties, Page 37 of 42 HC-NIC Page 37 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT by observing that now when the State proposes to hold election as per the amended provisions, matters are not required to be further considered on merits. Even attention of the Hon'ble Supreme Court was also drawn with respect to the amended provisions. Now, therefore, when fresh elections are to be held in the year 2017, for which, notification has been issued on 14.03.2017, the election of the Market Committee is required to be held as per the amended provisions and eligibility of the voters is required to be considered as per the amended provisions. As per the decision of the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari vs. State of Gujarat & Ors 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 notification declaring the election has been issued by the appropriate authority. Therefore, the eligibility of the petitioners to become the voters in the Traders Constituency is as such required to be considered accordingly and as per the amended provisions. Therefore, if the petitioners are otherwise found eligible to become the voters in the Traders Constituency as per the amended provisions, as such they cannot be debarred from becoming the voters in the Traders Constituency and / or to participate in the election. Denying such right would be contrary to the statutory provisions, which would be against the democratic process.
[16]. Now, so far as non inclusion of the names of the petitioners in the voters' list of the Traders' Constituency on the basis of observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal Page 38 of 42 HC-NIC Page 38 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT No.462/2014, by which, this Court observed that those Traders who are issued the licenses after 30.08.2011 shall not be considered as eligible for voters in the "ensuing election" is concerned, at the outset, it is required to be noted that the observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014 are required to be considered in the context, in which, they were made. It is required to be noted that the dispute before this Court was with respect to election which was declared in the year 2012, after term of the Market Committee has expired in the year 2011 and the Administrator was appointed and it was apprehended that the Administrator may renew / grant license to inflate the voters. To the aforesaid, the statement was made by the Administrator that those Traders who are issued the license after 30.08.2011 shall not be considered as eligible for voters in the ensuing election. Therefore, the "ensuing election" would be the election to be held after the term of the Market Committee has expired in the year 2011. Therefore, the same shall be construed and restricted to the election to be conducted / held pursuant to the election programme declared in the year 2012. The same cannot be made applicable for all time to come in future, more particularly, when the fresh election has been declared in the month of March 2017 and for which election programme has been declared in the month of March 2017. In the meantime, as observed herein above, even the eligibility criteria has been materially altered by amendment in Section 11 of the APMC Act and therefore, when the election is to be held in the year 2017 and fresh notification has been issued and even when a statement of the State Government that now State Page 39 of 42 HC-NIC Page 39 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT proposes to hold election as per the amended provisions came to be recorded by the Hon'ble Supreme Court in the order dated 22.01.2016, by permitting the State to withdrew the Special Leave Petitions, the election is required to be held as per the amended provisions and the eligibility of the petitioners to become the voters in the Traders' Constituency is required to be considered as per the amended provisions, however if otherwise they are found eligible to become voters in the Traders' Constituency as per the amended provisions, their cases are required to be considered accordingly. As observed herein above, the observations made by this Court in Letters Patent Appeal No. 462 of 2014 (to which one of us was party to the Bench) may not be made applicable for all time to come for future election, more particularly, when fresh election is to be held in the year 2017 and the said observations are to be construed and restricted to the election which was to be conducted and held after term of the Market Committee has expired in the year 2011 and the Administrator was appointed. At this stage, it is required to be noted that even the Division Bench vide order dated 30.08.2011 in Special Civil Application No. 9704 of 2011 directed the State to hold election within three months. However, because of the pending dispute, election could not be held for six years and now fresh election has been declared and notification has been issued to hold the election of the Market Committee as per the amended provisions. If the submissions on behalf of the respondent nos. 4 and 5 is accepted and considering the observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014, the names of the petitioners who may be otherwise eligible to become voters in the Traders Page 40 of 42 HC-NIC Page 40 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT Constituency as per the amended provisions, are excluded from the voters list, it may tantamount to taking away their rights to become the voters and / or to participate in the election. As observed herein above, the eligibility criteria is required to be considered as on the date on which notification for election has been issued. As observed herein above and it is not in dispute that Authorized Officer has not included the names of the petitioners in the voters list of Traders' Constituency solely on the basis of observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014. Under the circumstances and in light of the observations made herein above,the case of the petitioners to become the voters in the Traders Constituency is required to be considered as per the amended provisions and the observations made by this Court in Special Civil Application No.8955/2012 as well as Letters Patent Appeal No.462/2014 shall not come in the way of the petitioners to become the voters in the Traders' Constituency, if otherwise they are found eligible to become voters as per the amended provisions i.e. amended Section 11 of the APMC Act, 1963.
[17]. In view of the above and for the reasons stated above, the present petition succeeds. The impugned order passed by the Authorized Officer in not including the names of petitioners in voters' list of the Traders' Constituency is hereby quashed and set aside and the Authorized Officer is hereby directed to consider the case of the petitioners to include their names in the voters list of Traders Constituency as per the amended provisions i.e. amended Section 11 of the APMC Act, 1963 and if it is found that the Page 41 of 42 HC-NIC Page 41 of 42 Created On Mon May 15 23:57:16 IST 2017 C/SCA/8561/2017 CAV JUDGMENT respective petitioners are eligible to become voters in the Traders Constituency as per Section 11 of the Act as amended, the Authorized Officer to include their names in the voters list and permit them to participate in the election, for which, notification has been issued on 14.03.2017. Rule is made absolute to the aforesaid extent. No costs. D.S. Permitted.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 42 of 42 HC-NIC Page 42 of 42 Created On Mon May 15 23:57:16 IST 2017