Gujarat High Court
Dilipbhai Manibhai Patel & vs State Of Gujarat & on 30 July, 2013
Author: Jayant Patel
Bench: Jayant Patel
DILIPBHAI MANIBHAI PATELV/SSTATE OF GUJARAT C/SCA/10725/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10725 of 2013 ============================================================== DILIPBHAI MANIBHAI PATEL & 1....Petitioner(s) Versus STATE OF GUJARAT & 217....Respondent(s) ============================================================== Appearance: MR VC VAGHELA, ADVOCATE for the Petitioner(s) No. 1 - 2 MR HARDIK SONI, AGP for the Respondent(s) No. 1 MR KEYUR A VYAS, ADVOCATE for the Respondent(s) No. 97 - 100 , 102 - 118 , 121 - 124 , 126 , 128 - 129 , 132 - 135 , 137 - 139 , 141 - 145 , 147 - 148 , 165 , 167 - 181 , 184 , 186 - 193 , 195 , 197 - 198 , 201 - 207 , 209 MR. ARCHIT P JANI, ADVOCATE for the Respondent(s) No. 97 - 100 , 102 - 118 , 121 - 124 , 126 , 128 - 129 , 132 - 135 , 137 - 139 , 141 - 145 , 147 - 148 , 165 , 167 - 181 , 184 , 186 - 193 , 195 , 197 - 198 , 201 - 207 , 209 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 5 CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/07/2013 ORAL ORDER
(PER :
HONOURABLE MR.JUSTICE JAYANT PATEL) The petitioner has preferred the present petition for the appropriate writ to quash and set aside the names of respondents no.6 to 218 from the voters list published for the traders constituency for the election of Agriculture Market Produce Committee, Tarapur (hereinafter referred to as the market committee ).
Mr.Vaghela, learned counsel appearing for the petitioners at the outset submitted that he is not pressing the relief qua voters whose license came to be renewed and their names are upto Sl.no.94 and therefore, he prayed that the petition may be restricted qua respondents no.95 to 218 who are represented by Mr.Jani as well as Mr.Keyur Vyas.
The short facts of the case are that on 28.05.2013, the Director exercised the power under Rule 4 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as the Rules ) for declaration of the election of the market committee. On the same day, there was also meeting of the market committee for grant of license. As per the Secretary of the market committee, after the meeting was over, the Inspector of the market committee issued receipt for the application as if received for licenses of 125 persons and as per the Secretary of the market committee, after the proceeding of the meeting was over, unauthorisedly, the names were included of those persons as if licenses granted to them. As per the Chairman of the market committee, the Secretary had no authority to make such noting in the minutes book. Thereafter, it appears that information was supplied by the marketing committee of all the traders holding licenses including the aforesaid 126 new licensees and their names were included in the voters list for traders constituency. The petitioners when came to know about the inclusion of the aforesaid persons who were said to have been granted licenses in the voters list of traders constituency, they raised objection on 25.06.2013. Such objections were decided by the authorised officer and they were not accepted. Under the circumstances, the present petition.
As per the election programme, after the preliminary voters list, the voters list was to be finalised on 06.07.2013. Whereas, the petitioners preferred the petition prior thereto and on 05.07.2013, this Court issued notice by entertaining the present petition. The next stage of the election is on 16.08.2013 and prior thereto, the present petition came up for hearing.
We have heard the learned counsel Mr.Vaghela for the petitioners, Mr.Soni, learned AGP for the respondents no.1 to 4. None appears for respondent no.5 and Mr.Jani and Mr. Vyas are heard for the concerned respondents.
It may be recorded that since the election was scheduled on 30.08.2013 and the time was short, this Court had directed notice to be served through public notice in two newspapers, viz., Gujarat Samachar and Sandesh, having circulation in the area. However, only some of the persons have appeared and objected and the others have not appeared.
As such, the issues which arise for consideration in the present petition are already covered by the decision of this Court in the case of Dolatbhai Prabhubhai Dumaniya vs. Director-agriculture Marketing and Rural Finance reported at 2013 (0) GLHEL-HC 229249. In the said decision, this Court had an occasion to consider as to whether the authorised officer had any power or competence or jurisdiction to include the names of the persons who acquired eligibility as voter after the exercise of the power by the Director under Rule 4 of the rules. This Court in the above referred decision, observed at paragraphs 16 to 25 as under:
16. As observed in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. (supra), the process of election can be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and all stages of elections are so conjoint with the manner and mode of holding of the election, it is not possible for us to find that the process of election cannot be said to have commenced after exercise of powers under Rule 4 of the Rules.
There are three reasons for which we are inclined to take the aforesaid view. The first is that Part III of the Rules under the Head Election of Market Committee begins with Rule 4 providing for the power with Director to pass the order in writing for fixation of the dates of the election and for publication of such order passed by him by affixing the copy in market committee as well as at the conspicuous place in the principal market yard. Therefore, it appears that the intention of the legislature to begin with the process of commencement of election is from the stage of Rule 4. The second reason is that all stages, including that of Rules 7 and 10, would be only after the power is exercised under Rule 4 by the Director. Therefore, in absence of any exercise of powers under Rule 4, it cannot be said that the process of election has commenced or that the subsequent stages of the elections, including that of Rules 7 and 10 would accrue. The third reason is that when the Court is to interpret any provisions of statute, it would make a purposive interpretation so as to maintain the sanctity of election. If the interpretation is made that the process of election has not commenced after exercise of powers by the Director under Rule 4, such would leave room for a large number of manipulations to be made at the ensuing election of any market committee.
After the declaration of the election programme by exercise of powers by the Director under Rule 4, one can easily tinker with the sanctity of election. e.g. In the case of the Agriculturists' Constituency where the co-operative societies dispensing agricultural credit and their representatives are the voters, new societies can be formed so as to create an artificial majority or minority as may be convenient to the ruling party. If certain societies are created and the show is made as that of functioning by such societies by dispensing agricultural credit, those societies would get themselves included in the voters' list and consequently, a situation may be created which would materially affect the representation to be made from such voters' constituency of agriculturists. Similarly, even in the case of Traders' Constituency, if after publication of the election programme by exercise of powers by the Director under Rule 4, new licences may be issued by the members of the market committee, who are in power so as to create an artificial majority at the ensuing election and a situation may be created which would materially affect the representation to be made from such voters' constituency of Traders. In the same manner, in the case of co-operative societies' constituency, new societies may be formed and or the market committee may issue licences so as to make eligible such societies to be included in the voters' list even after the election is declared.
17. The aforesaid are only some of the examples of tinkering with the sanctity of election, but there could be number of instances of such types. It is hardly required to be stated that once the election programme is published, the sanctity of the election process must be maintained by all concerned. Any attempt to tinker with the sanctity of the election would adversely affect the maintenance of the democratic principles to be observed in a free and fair manner for holding of the election. Once an election programme is published by fixing various stages of election, it would be known to all concerned that the process of election has already commenced and they should not enter into any act which may result into adversely affecting the process of the election and the smooth course of holding election by maintenance of the democratic principles.
18. In view of aforesaid observations and discussion, we find that it is not possible to accept the contention of the respondents that the election process could not be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and has fixed the various stages of the election and has published the same.
19. Once the process of election has commenced from 09.01.2013, any person getting eligibility after such date can be termed as not entitled to be included in the voters' list. In the same manner, the Authorised Officer will have no authority or competence or jurisdiction to include the names of such voters who have acquired eligibility after 09.01.2013. If the facts of the present case are examined further, in Special Civil Application No.1890 of 2013, the respondent Nos.4, 5 and 6 have obtained licences from the market committee on 11.01.2013. Therefore, the eligibility for inclusion of their names in the voters' list of co-operative societies' constituency could be said to have acquired only on 11.01.2013, which is later to 09.01.2013. Therefore, the eligibility could be said to have acquired for inclusion of their names in the co-operative societies' constituency after the commencement of the process of election.
20. In Special Civil Application No.1891 of 2013, the respondent Nos.4 to 9 have come into existence only on 10.01.2013 since they are registered on 10.01.2013. The said date of registration is also later to the commencement of the process of the election. Under the circumstances, they have acquired eligibility after commencement of the process of election.
21. In Special Civil Application No.1897 of 2013, the respondent Nos.4 to 8 are registered only on 10.01.2013 and the licences have been granted by the market committee on 11.01.2013. As both the dates are later to the commencement of the process of election i.e. 09.01.2013, it could be said that they have acquired the status only after the commencement of the process of election.
22. As all the aforesaid societies have acquired eligibility after commencement of the process of election i.e. after 09.01.2013, their names or the names of members of the representative of the societies could not have been included in the voters' list by the Authorised Officer. The action of the Authorised Officer, in our view, can be said as wholly without jurisdiction.
23. We may also record that there are allegations made by the petitioners in the petitions that after commencement of the process of election only with a view to have artificial majority, the group which is in power in the market committee, has got such societies registered and or the licences have been issued by the market committee by circular resolution though not warranted under Rule 35. It was submitted that such procedure for circular resolution for issuance of licence is unknown to Rule 35 of the Rules. In our view, once there was no jurisdiction with the Authorised Officer to include the names of those persons who acquire eligibility after the election programme was declared, we need not examine the allegation further, except observing that be it the group having majority in the market committee or be it the group having minority in the market committee, none can be permitted to tinker with the sanctity of the election and/or to frustrate democratic principles to be observed in a fair and free manner at the election.
24. The attempt was made by the learned counsel appearing for the respondent to contend that once the process of election has begun, this Court in exercise of powers under Section 226 of the Constitution may not interfere with the election and the petitioners may have the remedy, if available, after the election is over as per Rule 28 of the Rules. In our view, the said contention is answered in the decision of this Court in the case of Kalubhai Ranabhai Akbari (supra) and more particularly, the observations made in paragraph 32 of the said decision. We may also refer to another decision of this Court in the case of Shrutbandhu H. Popat v. State of Gujarat and others, reported in 2007 (3) GLR 1942 and the observations made at paragraphs 27 to 29, which read as under
:
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:
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?
Whether the remedy under Rule 28 can be termed to be efficacious remedy?
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:
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.
As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and / or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.
Reading the entire decision of the Full Bench reveals that the question in the context of which the Full Bench was called upon to consider the controversy about maintainability of the petition was whether a member of the Managing Committee of a particular cooperative society was entitled to vote in his capacity as a member of the managing committee of such cooperative society and not merely by virtue of inclusion or deletion of his name in/from the voters list. The contention of the authorities in the said case was that the election petition under Rule 28 provides remedy for resolution of all facets of the dispute as to whether the name of a person being the member of the Managing Committee of a particular cooperative society should be permitted to participate in the election if he ceases to hold the post on the date of the election program. Similarly the question whether a particular cooperative society is dispensing agricultural credit or not would be ordinarily be a disputed question of fact. There cannot, therefore, be any dispute with the proposition that ordinarily the exclusion or inclusion of names from/in the voters' list can be challenged in an election petition under Rule 28 of the Rules, after the elections are held. But the Full Bench also held that the powers of this Court under Article 226 of the Constitution may be exercised in case of extraordinary or special circumstance such as where the order is ultra vires or nullity and/or ex-facie without jurisdiction. The Full Bench also followed the principles laid down by the Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216 and Manda Jaganath vs. K S Rathnam, AIR 2004 SC 3600 laying down that any decision in the election process is open to judicial review on the ground of mala fide or arbitrary exercise of powers and that special situation justifying exercise of writ jurisdiction would mean correcting an error having the effect of interfering in the free flow of the scheduled election or error having the effect of hindering the progress of election.
After the above decision of the Full Bench rendered on 27.4.2005, in Pundlik vs. State of Maharashtra, decided on 25.8.2005 and reported at 2005 (7) SCC 181, the Apex Court held that though preparation of list of voters is one of the stages of election and that normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters, but such action must be in accordance with law. In the said decision, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Santha vs. State of Maharashtra, 2001 (8) SCC 509. In Shri Sant Sadguru's case objections against publication of provisional electoral roll of the Society were filed which were considered by the Collector and disposed of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the election program and the Apex Court held that the High Court should not stay continuation of the election process even though there may be some alleged irregularity or breach of the Rules while preparing the electoral roll. However, in the Pundlik case, the original petitioner had taken immediate action on receiving the fax message from the Collector .
25. Hence, when the action is ultra vires to the power or nullity or ex-facie without jurisdiction, which is in the present case as that of Authorised Officer, we find that it would be an extraordinary or special circumstance which would call for interference in exercise of powers under Section 226 of the Constitution to maintain sanctity of the election and more particularly, for maintenance of sanctity of the election to be held, by upholding the democratic principles in a free and fair manner.
If the facts of the present case are examined, it prima facie appears that the application for licenses have been made on the same day, i.e., 28.05.2013 and the licenses have also been granted on the same day. The aforesaid is coupled with the circumstance that as per the Secretary of the Market Committee, the proceedings were recorded in the meeting and the receipts were issued, both unauthorisedly, by the Inspector of Market Committee without their being any authority on his part. It prima facie appears that on the verge of the election, the aforesaid action is taken by the market committee for tinkering with the sanctity of the election. Further, if the question of eligibility is to be considered, then also, it is on the day when the Director had already exercised the power for holding of the election of the market committee. It is impossible to conceive that the applications are received on the same day, verified on the same day and the licenses are issued on the same day. Such leads to prima facie strong circumstance of inflating of the voters list of the traders constituency. If such is allowed to continue, it would not only result into tinkering with the sanctity of the election and the election would not be held in a free and fair manner. Further, if the question of eligibility is considered, the same did not exist prior to the exercise of the power by the Director under Rule 4 of the Rules. We do not find that much discussion is required on the said aspect, more particularly when the issue is already covered by the decision of this Court.
Hence, Rule. By ad interim order, the operation and implementation of the order passed by the authorised officer dated 29.06.2013 (Annexure-A) is stayed and it is further directed that the respondents no.95 to 218 shall not be permitted to cast their vote at the ensuing election. However, it is clarified that the result so declared of the traders constituency shall be subject to the final orders in the present petition. D.S. (JAYANT PATEL, J.) (Z.K.SAIYED, J.) bjoy Page 13 of 13