Gujarat High Court
Desai Dharamsinhbhai Taljabhai And ... vs Babulal M. Jathalal Patel And Ors. on 11 April, 1989
Equivalent citations: AIR1990GUJ161, (1989)2GLR473, AIR 1990 GUJARAT 161
Author: G.T. Nanavati
Bench: G.T. Nanavati
ORDER
1. This petition arises out of the general election of the Agricultural Produce Market Committee, Patan, and the decision of the Director of Agricultural Marketing & Rural Finance, Gujarat State, in Election Petition No. 193 of 1985.
The irector passed and published at order dated 30-7-1985 fixing 30-I1-1985 as the date of election of the members of the Agricultural Produce Market Committee, Patan. By a notification dated 24-8-1985 he also fixed 3-9-1985 as the date for communicating to the Authorised Officer the names as required by Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965 for preparation of the lists of voters. 24-8-1985 was the date fixed by him for calling for necessary information by the Authorised Officer. The date for publication of the preliminary lists of voters was fixed as 10-9-1985. The last date for submitting the applications/ objections for additions and alterations in the preliminary lists was fixed as 24-9-1985. He fixed 27-9-1985 as the date for republication of the preliminary lists of voters prepared after considering the objections and suggestions. 11-10-1985 was the date fixed for submitting objections against the republished preliminary lists of voters. The date of publication of the final lists of voters was fixed as 16-10-1985. As we are not concerned with the subsequent stages of election fixed by the Director, it is not necessary to refer to the same. The election was held on 30-11-1985 and the result was declared on 1-12-1985.
2. The petitioners and respondents Nos. 4, 5 and 6 were declared elected. Thereafter respondents Nos. 1, 2 and 3 filed Election Petition No. 193 of 1985 under Rule 28 of the Rules to the Director, challenging the said election with respect to the agriculturists' constituency. In the said application it was contended that between 10-10-1985 and 15-10-1985, eight co-operative societies dispensing agricultural credit in the market area submitted their objections to the list of voters for that constituency as published on 27-9-1985 and called upon the Authorised Officer to substitute the names of those who were elected as members of the Managing Committee in their general meetings held after 27-9-1985 in place of those who were members of the old Managing Committee and whose names are shown in the voters' lists. The Authorised Officer refused to entertain those objections on the ground that the stage fixed for entering or not entering name of any person in the voters' list was already over, and that preliminary publication of the voters' list as prepared after considering the amendments, suggestions and objections was made on 27-9-1985. It was their case that the Authorised Officer was not right in not entertaining the objections filed by the eight cooperative societies and he ought to have deleted the names of the members of the old Managing Committee and added names of 22 persons who were newly elected as Managing Committee members. It was their case that if those 22 persons were permitted to vote and those, who had unauthorisedly voted at the election were prevented from voting, then that would have materially affected the result of the election as the difference of votes obtained by the candidates as elected and those who lost was less than 22. They had, therefore, prayed that the entire election with respect to the agricultural constituency should be set aside.
3. The Director held that the Authorised Officer committed an error of law in not considering the applications in the nature of objections received by him after 27-9-1985 but before 11-10-1985 in view of the decision of this Court in the case of Patel Bhagwanbhai Narottamdas v. Authorised Officer, reported in (1979) 20 Guj LR 406. He also held that even if the objections were valid in respect of four societies only, the result of the election would have been materially affected. He therefore, set aside the entire election of the agricultural constituency and directed that a fresh election be held. This decision of the Director is challenged in this petition.
4. It was contended by the learned Advocate for the petitioners that the Director committed an error of law in holding that the election deserved to be set aside as it took place on the basis of the final list of voters which was defective. It was contended that the final list of voters was not at all defective as the Authorised Officer was justified in not entertaining fresh amendments suggested and objections raised after 24-9-1985. The Director was in error in taking the view that the representations received in this behalf till 11-10- 1985 which was the last date for submitting amendments or objections to the republished preliminary lists of voters, were required to be considered by the Authorised Officer. The learned Advocate went to the extent of submitting that as the lists of voters were required to be prepared on the basis of the information received by 3-9-1985, that date should be regarded as the qualifying date for the purpose of determining eligibility of a person to be enrolled as a voter. In the alternative, it was contended that 24-9-1985 was the last date for receiving suggestions and objections for the purpose of amending the lists of voters and, therefore the Authorised Officer could not have lawfully taken into consideration any subsequent change in the constitution of the Managing Committees of the Co-operative Societies constituting agricultural constituency. It was also submitted that the Authorised Officer could not have taken note of such changes without they're being any supporting material produced before him along with the applications which the aforesaid eight co-operative societies had made. It was lastly urged that no evidence whatsoever was led by the persons challenging the election to show that if the suggested amendments were made in the list of voters that would have affected the result of the election. No evidence was led by them to show whether 22 persons, whose names were desired to be deleted, had actually voted at the election. Even if 22 persons, whose names were suggested for inclusion in the list of voters, had voted at the election, that would not have affected the result of the first four candidates, who were declared elected.
5. On the other hand, it was contended on behalf of respondents Nos. 1, 2 and 3, who had filed the Election Petition, that on true interpretation of Rules 7 and 8, the qualifying date for the purpose of determining eligibility of a person to be enrolled as a voter is the date on which the final voters' lists are published. As 16-10-1988 was the date fixed for publication of the final voters' lists and particularly when in the election programme, when notified, it was stated that the last date for receiving objections to the republished preliminary lists was 11-10-1985, all applications made on or before that date were required to be considered by the Authorised Officer. As that was not done by him, the Director was justified in holding that the final voters' list was not in accordance with Rules 7 and 8. It was also submitted that as the difference of votes obtained by the candidates who were declared elected and who lost at the election was very small, the Director was justified in setting aside the whole election of the agricultural constituency.
6. Respondents Nos. 4,5 and 6, who were declared elected at the said election and respondents Nos.7 and 8, who are the Director and District Registrar, respectively, have supported the petitioners.
7. In order to appreciate the rival contentions, it will be necessary to refer to the relevant provisions of law. Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 deals with the constitution of Market Committee, and the relevant part thereof reads as under:
"11. (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 co-operative marketing, societies) dispensing agricultural credit in the market area 11 No other section of the Act has any bearing on the point raised in the petition. The relevant rules are the Gujarat Agricultural Produce Markets Rules, 1965. Rule 4 provides for fixation of date of election by the Director by an order in writing. As pointed out earlier, the Director in this case had by his order dated 30-7-1985 fixed 30-11-1985 as the date of election. Rule 5 requires preparation of three separate lists of voters in respect of the three constituencies contemplated by section 11 of the Act. According to Rule 6, a person, whose name is entered in a list of voters, is regarded as qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list. Rules 7 and 8 are important for the purpose of this petition and they read as under:
"7. Preparation of list of voters for general election. -(1) Whenever general election to a market committee is to be held:
(i) every Co-operative Society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing committee together with the :place of residence of each member;
(ii) the market committee shall communicate the full names of the traders holding general licences in the market area together with the place of residence of each such trader; and
(iii) every Co-operative Marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member;
to the Authorised Officer before such date as the director may by order fix in that behalf:
Provided that the date to be so fixed shall not be later than sixty days before the date of the general election.
(2) The. Authorised Officer shall within seven days from the date fixed under sub-rule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the information received under sub-rule (1) and, if necessary, after making such inquiry as he may deem fit.
1 (3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
8. Provisional and final publication of lists of voters.(1) As soon as a list of voters is prepared under rule 5, it shall be published by the Authorised Officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may within fourteen days from the date of the publication of the notice, apply to the authorized officer for an amendment of the list of voters.
(2) If any application is received under sub-rule (1) the Authorised Officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list sha 11 be prepared at least thirty days before the date fixed for the nomination of candidates for the election.
(3) Copies of the final list of voters prepared under this rule shall be kept open for public inspection at the office of the Authorised Officer and at the office of the market committee,"
As stated earlier, the Director had fixed 3-9-1985 as the date for communicating to the Authorised Officer necessary information for preparation of the lists of voters. Obviously that order was passed under rule 7 (1). As the lists of voters were required to be prepared within seven days from the date fixed under sub-rule (1) of Rule 7, 10-9-1985 was the date fixed for preparation and publication of the said lists. The said lists were published along with a notice stating that if any person whose name is not entered in the lists of voters and who claims that his name should be entered therein, or any person believes that his name or the name of some other person has been wrongly entered therein, or has not been correctly entered, should apply for amendment of the said list on or before 24-9-1985. Though Rule 8 does not contemplate republication of the first preliminary lists of voters, the Authorised Officer, in order to comply with the requirement of the said Rule, as interpreted by this Court in Patel Bhagwanbhai's case (1979-20 Guj LR 406) (supra), fixed 27-9-1985 as the date for publishing such lists together with the additions or alterations and inviting objections with respect to them. He fixed 11-10- 1985 as the date for receiving objections to the said preliminary lists of voters. The changes, which took place between the first publication of the preliminary lists and the date for receiving objections after republication thereof, have given rise to the point which is involved in this petition.
8. The respondents, who challenged the election, have contended that the Authorised Officer was bound to receive objections to the preliminary lists of voters till 11-10-1985 and could not have refused the applications made by the aforesaid eight co-operative societies for that purpose. On the other hand, the contention of the petitioners and other respondents, who were declared elected, is that no fresh objections could have been received by the Authorised Officer. The correct answer to this controversy depends upon the true interpretation of Rule 8.
9. Rule 8 came to be interpreted by this Court in the case of Patel Bhagwanbhai (supra). In that case, the preliminary list of voters was published on April 30, 1978. It did not include the names of respondents Nos. 3 to 17 of that petition. Thereafter applications for amendment were received by the Authorised Officer and after considering the same he prepared a final list of voters which was published on May 19, 1978 and which included the names of respondents Nos. 3 to 17. It was contended on behalf of the petitioners in that case that after publication of the preliminary list of, voters, an opportunity should have been given to the persons who objected to the wrong inclusion of voters or wrong deletion of voters in the voters' list and, if such a requirement was not read in Rule 8, than that would be violative of fair play and principles of natural justice. As against that, it was contended by the other side that as and when the name of any voter is to be removed or deleted from the voters' list, an opportunity should be given to a person whose name is to be so removed or deleted but when names of new persons are to be included in the voters' lists, it is not at all necessary for the Authorised Officer to give any public notice inviting objections from other persons regarding inclusion of new names. This Court did not accept the latter contention and held that an opportunity is required to be given to the parties who are likely to be affected by the objections raised against the voters' lists and, if no such opportunity is given, then that would amount to flagrant violation of the principles of natural justice. It was, therefore, held that such a requirement should be read in sub-rule (1) of Rule 8. Thus, what has been held in that case is that after receiving applications for amendments or, objections, the Authorised Officer should give an opportunity of being heard to the persons who are likely to be adversely affected by such applic4tions or objections. This is how sub-rule (1) of Rule 8 came to be interpreted in that case. However, the point which has been raised in this petition did not arise for consideration in that case. It only indirectly helps us in finding out the real answer to the question raised in this petition.
10. In my opinion, what sub-rule (1) of Rule 8 requires is that the Authorised Officer has to publish the preliminary lists of voters and fix a date for inviting objections. After receiving applications for amendment or objections, as they are often described, he has to republish the said lists along with the proposed amendments, alterations or deletions and invite objections from the persons likely to be adversely affected by the said proposed amendments, alterations or deletions. Inviting such objections is really in the nature of a hearing to be given to the persons who are likely to be affected thereby. This being the requirement of principles of naturaI justice, it has been read in sub-rule (1) of R. 8, and keeping that object in mind, it will have to be held that after the second publication of the preliminary lists of voters what is required to be done by the Authorised Officer is to hear persons likely to be affected by the proposed amendments, alterations or deletion. He cannot receive or entertain fresh applications for new additions, alterations or deletions, or fresh objection in that behalf. The Authorised Officer was, therefore, fully justified in this case in not entertaining the fresh objections raised by the aforesaid eight co-operative societies for the first time between 10- 10- 1985 and 11-10-1985.
11. A conjoint reading of R. 8(l) 'and R.8(2) also supports this conclusion. Subrule(l) requires the Authorised Officer to give a notice, while publishing the preliminary voters'lists, for making application to him for amendment of the lists within 14 days from the date of publication of the notice. Thus, the Authorised Officer has to prescribe the last date before which applications for amendment can be made. Application for amendment of lists of voters are thus required to be made within the prescribed time and the Authorised Officer would have no authority of law to entertain applications received after that date. Sub-rule (2) then requires the Authorised Officer to decide those applications and cause to be prepared and published a final list of voters. It does not prescribed any time limit within which that process has to be completed but final list has to be prepared at least thirty days before the date fixed for nomination of candidates for the election. It is, therefore, open to the Authorised Officer to decide such applications after further inviting objections to those applications from persons likely to be adversely affected and then decide the same. But, in any case, he will have no authority to invite or entertain fresh Japplications for amendment of the list of voters.
12. In my opinion, on the true interpretation of sub-rules (1) and (2) of R. 8, the contention raised on behalf of the contesting respondents that the qualifying date for the purpose of determining the eligibility of a person to be enrolled as a voter is the date on which the final list is published cannot be accepted. No doubt, the learned single Judge of this Court did accept that contention while deciding Special Civil Application No. 5620 of 1985. As I am taking a contrary view, it would have become necessary for me to refer the matter to a Division Bench but for the fact that the decision rendered by the learned single Judge in that case was challenged in Letters Patent Appeal No. 382 of 1985 and the Letters Patent Bench allowed the appeal, set aside the judgment of the learned single Judge and dismissed the Special Civil Application. It should be stated that the Division Bench dismissed the special civil application on a different ground and did not go into the question as to which is the correct qualifying date for the purpose of determining the eligibility of a person to be enrolled as a voter (See: Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandali Ltd. v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Sahakari Mandali Ltd., 1986 Guj LR 439: (AIR 1987 Gui 33).
13. Rule 8 again came to be considered by this Court in Mehsana District Co-operative Sales & Purchase Union Ltd. v. State of Gujarat, (1988) 29 Guj LR 1060. But the question, which was raised in that case, was quite different and the said decision is not useful for the purpose of deciding the question which has arisen in this case.
14. It was urged by the learned Counsel for the contesting respondents that the Legislature, knowing full well that it was dealing with agriculturists, did not provide for any procedure for the purpose of holding an election. Moreover, Co-operative year starts from Ist July. The co-operative societies are bound to take some time in electing new members of the Managing Committee and, therefore, this Court should not interprete sub-rule (1) of R. 8 strictly and hold that applications for amendment made after 14 days from the date of publication of the notice under sub-rule(1) cannot be entertained by the Authorised Officer. In my opinion, on Isuch considerations sub-rule(1) cannot be interpreted as contended, in view of its clear language and express provision fixing the period within which the applications for amendment are required to be made. It was also urged that in view of the notice, which was published by the Authorised Officer, the aforesaid co-operative societies can be said to have been misled in believing that the last date for submitting objections was 11-10-1985 as that was also the date fixed by the Authorised Officer for receiving objections. As stated earlier, the said date was fixed for receiving objections with respect to the preliminary lists of voters as proposed to be amended or altered in view of the applications received in that behalf earlier. Moreover, it was not the case of the said eight co-operative societies, nor evidence was led to the effect, that the said eight co-operative societies were misled as a result of the notice published by the Authorised Officer. Therefore, this contention also cannot be accepted.
15. In the view that I have taken, it will have to be held that the Authorised Officer had rightly refused to entertain fresh applications made by the aforesaid eight co-operative societies for making alterations in the list of voters pertaining to the agricultural constituency. He could not have lawfully included ,the names of those whose names were suggested for inclusion by the aforesaid eight co-operative societies after 24-9-1985. The Director, therefore, was clearly in error in taking a contrary view. Moreover, as pointed out earlier, there is no evidence on record to show that those 22 persons, whose names were included in the voters'lists because they were members of the previous Managing Committee, had voted at the said election. It was for the contesting respondents to lead evidence to show that they had voted at the election and that as a result of their votes, the result was materially affected. In absence of such evidence, it is not possible to hold that they had voted at the said election, or that, if they had not voted at the said election, the result would have been different. The Director was, therefore, not justified in setting aside the election of the Agricultural Produce Market Committee, Patan and directing a fresh election to be held. The judgment and order passed by him, therefore, will have to be set aside.
16. In the result, this petition is allowed. The judgment and order passed by the Director in Election Petition No. 193 of 1985 is quashed and set aside, with the result that the persons, who were declared elected by the Authorised Officer, will have to be regarded as validly elected. Rule is made absolute accordingly with no order as to costs.
17. Petition allowed.