Gujarat High Court
Mandropur ( Fatehpur) Juth Seva Sahkari ... vs State Of Gujarat & 5 on 14 June, 2016
Equivalent citations: AIR 2016 (NOC) 629 (GUJ.)
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/8034/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8034 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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MANDROPUR ( FATEHPUR) JUTH SEVA SAHKARI MANDALI LIMITAD &
1....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, LD. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4
UNSERVED-REFUSED (N) for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 14/06/2016
CAV JUDGMENT
Would it be or not inquiry 'summary' in nature or not to inquire and ascertain whether the Page 1 of 13 HC-NIC Page 1 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT election was held or not, when only elected members were to be the eligible voters to be included in the list of voters, is the question.
2. This is what exactly done by the fourth respondent-the Authorized Officer in passing the impugned order dated 03rd May, 2016 directing thereby to exclude the names of 11 persons from the list of voters, finding that the persons whose names were sent as members of Managing Committee of the petitioner Society were not the elected members, but ad hoc appointees. The Authorized Officer found that election was not held and the persons were not elected members. It is this decision and approach as to the nature of inquiry, is brought under judicial scanner in this petition. The fourth respondent in excluding the names of persons, accepted the objection raised by the fifth respondent herein.
3. The petitioner is a primary agricultural credit cooperative society registered under the Cooperative Societies Act, 1961, dispensing agricultural credit in the market area of Agriculture Produce Market Committee, Kherealu (APMC, Kheralu). Elections to the APMC, Kheralu were declared by respondent No.2-Director of Agriculture Marketing and Rural Finance on 22nd March, 2016 and the programme was published on 29th March, 2016.
3.1 As per the time-table of election announced thereunder under Section 10(2) of the Agriculture Produce Markets Committee Act, the election programme was published on 29th March, 2016, list of voters was Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT prepared as per the programme and the preliminary list of voters was published on 13th April, 2016, objections to the preliminary list of voters were invited on 27th April, 2016 to be submitted within 14 days, revised list of voters after consideration of objections was published on 03rd May, 2016, further objections to the revised list could be submitted upto 10th May, 2016. Filing of nominations started from 13th June, 2016 and scrutiny is to take place on 14th June, 2016. The final list of voters is fixed to be published on 17th June, 2016 and the date of voting would be 28th June, 2016.
3.2 It appears that in the preliminary list of voters published on 13th April, 2016 the authorized officer-the fourth respondent included the names of 11 persons. In respect of the said inclusion, the fifth private respondent raised objections, namely that the Managing Committee of the society was not formed as per the by-laws, that the resolution was passed without issuing agenda and nobody knew about the constitution of the Managing Committee, that the meeting of the Managing Committee was not held since last two years; in nutshell it was the objection that the members whose names were mentioned by the society as the members of the Managing Committee were not the elected persons and Managing Committee shown to have been formed without election.
3.3 A brief reference to the applicable statutory provisions would be relevant. The Gujarat Agricultural Produce Markets Act, 1963 in its Chapter III contains provisions relating to declaration of Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT market area, constitution of markets and establishment of market committees, whereas section 10(1) under Chapter IV provides for incorporation of market committee, which is deemed to be a local authority as per sub-section (2) of Section 10. Section 11 deals with the constitution of market committee and sub- section (1) thereof says that every market committee shall consist of the members of the categories mentioned in sub-clauses (i), (ii) and (iii). These categories are also identified as agriculturist constituency, traders' constituency and constituency of general license holders. The members in these categories would be eligible voters in the Market Committee elections. Sub-section (4) of Section 11 provides that the term of office of the market committee shall be four years, extendable for further one year in aggregate. Section 15 is about filling up of vacancies, either by nomination or election, as the case may be.
3.4 The statutory rules framed by State Government deriving powers from section 59 of the Act are the Gujarat Agricultural Produce Markets Rules 1965 (hereinafter mentioned as `the Rules') and they provide for the matters and procedure relating to preparation of list of voters for the purpose of election under section 11 of the Act and other matters and procedures relating to elections. Rule 5 is in respect of preparation of three different lists of voters contemplated under Section 11 of the Act. The other relevant rules are Rule 7 and Rule 8, which constitute a scheme in itself. Rule 7 enjoins that Page 4 of 13 HC-NIC Page 4 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT whenever general election to the market committee is to be held, every cooperative society shall communicate the names of the members of the managing committee to the authorized officer, whereas sub-rule (2) of Rule 7 requires the authorized officer to prepare the list of voters as required by Rule 5 on the basis of information received under sub-rule (1) and, if necessary, after making such enquiry as he may deem fit. Rule 8 deals with the provisional and final publication of list of voters. The petitioner agricultural societies are societies dispensing agricultural credit, and therefore, will have its managing committee members as the voters in the election of the market committee.
4. Now reverting to the contentions against the impugned order. Learned advocate Mr.Dipen Desai for the petitioner vehemently submitted that the fourth respondent has gone wrong to travel beyond his powers under the Rules, in asmuch as his function is to accept the names of the persons sent by the petitioner society to be included in the list of voters. It was submitted that the inquiry which the Authorized Officer-the fourth respondent undertook as to whether the members were properly nominated to be the voters was uncalled for in law and outside the realm of his powers. According to his submission, the Authorized Officer functioning under Rule 7 read with Rule 8 of the Rules did not have powers beyond conducting a summary inquiry in relation to the persons to be included in the list of voters as eligible voters.
Page 5 of 13HC-NIC Page 5 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT 4.1 Learned advocate for the petitioner relied on a judgment of the Division Bench of this Court in Pransli Seva Sahakari Mandli Limited Vs State of Gujarat in Special Civil Application No.4189 of 2014 decided by judgment dated 10th April, 2014, to press his point that the authorized officer could not have gone behind the election of members of Managing Committee or decide the legality and validity of election, or as such induction of members of the Managing Committee. For the same purpose, he relied on decision of this Court in Thumthal Seva Sahakari Mandli Limited Vs State of Gujarat being Special Civil Application No.3267 of 2016 decided on 27th April, 2016.
4.2 Decision of Division Bench in Vibhaniya Seva Sahakari Mandli Limited Vs State of Gujarat [2012 (1) GLH 575] was next relied on, more particularly for its observations quoted with approval from the decision of the Division Bench in Vibhapar Seva Sahakari Mandli Limited Vs Sate of Gujarat being Special Civil Application No.6587-6596 of 2010, in which the scope and ambit of the powers of the Authorized Officer under Rule 8 was highlighted, "Rule 8(1-A) of the Rules only talks of revising the list of voters upon such objections relatable to inclusion of any new names entered in the list. Therefore, while publishing the final list under sub- rule (2) of Rule 8 of the Rules, the Authorized Officer had limited powers which would not permit the Authorized Officer to then delete the names which were already included. This has to be appreciated in context of the fact the under Rule 5 of the Rules, for the purpose of Section 11(1)(i) of the Act, a list of members of the Managing Committee of the Cooperative Society dispensing agricultural credit in the market Page 6 of 13 HC-NIC Page 6 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT area was required to be prepared and sent by such co- operative society to the Authorized Officer. Under rule 7 of the Rules, more particularly sub-rule (2) thereof, the Authorized Officer has to within 7 days from the date fixed under sub-rule (1) of rule 7, prepare the list of voters as stipulated by rule 5 on the basis of the information received from each co-operative society, sub-rule (2) of rule 7 of the Rules states in the later part after making such inquiry as the Authorized Officer may deem fit, if necessary. However, such inquiry cannot be treated to be extending beyond ascertainment of the details submitted by the co- operative society and testing the veracity thereof, namely whether a particular person whose name has been included by the co-operative society in the list is a member of the Managing Committee or not, or whether he resides at the place stated in the list by the co- operative society or not. Once the stage of that inquiry is over, rule 8(1) of the Rules indicates that the Authorized Officer is duty bound to publish the list of voters prepared under rule 5 read with rule 7 and it is at that stage that the objections as to inclusion or exclusion are to be raised. Therefore, the scope of inquiry which an Authorized Officer can undertake is limited statutorily by the rules and it is not possible to expand such scope."
4.3 On the other hand, learned Government Pleader Ms.Manisha Lavkumar defended the impugned order to submit that the Authorized Officer has acted within his bounds of jurisdiction so as to undertake minimal inquiry necessary in the facts of the case to find out whether the names of the persons send by the petitioner society could have been inserted in the voters' list treating them eligible voters for the purpose of general elections to the APMC, Kheralu. She emphasized that the eligible voters in the list have to be 'elected members' of the Managing Committee. Learned Government Pleader pressed into service the very decision in Thumthal Seva Sahakari Mandli (supra) and further referred to and relied on another Division Bench decision in Mahendra Maganbhai Patel Vs State of Gujarat & 61 being Special Civil Page 7 of 13 HC-NIC Page 7 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT Application No.126 of 2014 decided as per judgment dated 11th February, 2014. Countering the contention of the petitioner that initially in the list of voters, names were included and finally in exercise of power under Rule 8 they came to be excluded by the fourth respondent, learned Government Pleader relied on observations in paragraph 11 of the decision in Mahendra Maganbhai Patel (supra).
5. Travelling to root after gathering the controversy and the contentions canvassed by both the sides, in the general elections to the APMC, the societies dispensing agriculture credit would have its Managing Committee members as the voters to be included in the list of voters. Under the Gujarat Cooperative Societies Act as per Section 74(1)(a), members of the Managing Committee are to be elected. The members of the Managing Committee of cooperative society would become voters in the APMC elections and would be those one who are elected ones. Therefore, from the above statutory requirement it is manifest that the members of Managing Committee to figure in the list of voters would be the persons elected as members.
5.1 The Gujarat Agriculture Produce Market Rules, 1965 empowers the authorized officer to make such inquiry as he may deem fit, while preferring list of voters, on the basis of information received under Rule 7(1) from the cooperative society. Rule 8(1) is a power for revising the list. The Rules, in particular in the context Rule 7 and Rule 8, constitute a total Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT scheme under which the functional powers are exercised by the authorized officer for preparing and publishing the final list of voters, in the process of which, the authorized officer is competent to make such inquiry. There is no gainsaying that inquiry contemplated for the authorized officer is summary in nature as laid down by the judicial pronouncements in Vibhapar Seva Sahakari Mandli Limited (supra) as well as Vibhaniya Seva Sahakari Mandli Limited (supra) and various other decisions.
5.2 In Mohan Lal Vs Kartar Singh [(1995) Supp (4) SCC 684], the Apex Court explaining the word 'summary' with reference to Section 43 of the Pepsu Tenancy and Agricultural Tenancy Act, 1955 stated that it implies a short and quick procedure instead of or, as an alternative proof, the more elaborate procedure ordinarily adopted were prescribed for arriving at a decision. The proceedings before the court or authority are summary if it is not required to follow the regular formal procedure.
5.3 The juridical concept of summary inquiry, therefore would not exclude the undertaking of the actual factual inquiry, but such inquiry would be of minimum nature to be done in non-elaborate way. Summary inquiry does not postulate absence of inquiry or that the inquiring person should blindly accept something by handicapping his task on the count that his inquiry was only to be summary. Summary decision and summary inquiry would refer to a decision or inquiry which is short and quick and not elaborate but Page 9 of 13 HC-NIC Page 9 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT it would not mean a non-reasoned performance. Nor it implies prohibition against inquiring into the facts necessary to be inquired.
5.4 Summary nature of the inquiry is not to be confused with a cursory or a casual inquiry. Inquiry of summary nature is an inquiry into minimum necessary facts to find out a thing or to ascertain a state of affair in respect of a fact or aspect for which derivation of knowledge, and for that purpose the inquiry is intended. A summary inquiry would indeed include availing and knowing bare minimum facts and to find out whether the requisite root-facts exist. It is not the process of adjudication.
6. The decisions in Vibhapar Seva Sahakari Mandli (supra), Vibhaniya Seva Sahakari Mandli (supra) as well as in Pransali Seva Sahakari Mandli (supra) are binding when it says that inquiry is to be summary, but as observed in these judgments, in the facts of the case, what the Authorised Officer has undertaken is summary inquiry only. In Vibhaniya Seva Sahakari Mandli (supra) in paragraph 7.1 of the decision, the Court noted that the authorized officer had adjudicated on the legality of the nominations made by the respondent No.7 therein by citing reason that the member had no right to vote. It was an exercise undertaken by entering into arena of adjudication. As far as the decision in Pransali Seva Sahakari Mandli (supra) is concerned, therein what was disapproved by the Court is the decision of the authorized officer in which he decided on the legality Page 10 of 13 HC-NIC Page 10 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT and validity of the elections of the members of the Managing Committee in that case.
6.1 The submission of learned Government Pleader that in Thumthal Seva Sahakari Mandli (supra) this Court mentioned that it were the elected members who could be included in the voters list, could be readily countenanced as that discerns the correct legal position. This Court observed thus, "It is settled position of law that the authorized officer is not to test or examine the legality or otherwise of the election of the members of the managing committee of a co-operative society. It is required to note that the authorized officer is to consider whether the petitioner society is dispensing agricultural credit and whether the names of the members of its managing committee sent to the authorized officer to be included in the voters list are elected members or not. The authorized officer would not go into the aspects of legality or otherwise of the election of the members of the managing committee of the cooperative society."
7. Another Division Bench decision in Rameshbhai Ganeshbhai Chaudhari Vs State of Gujarat being Special Civil Application No.13689 of 2009 and allied petitions decided on 06th October, 2010 deserves to be mentioned. It held that the Authorised Officer was justified in holding factual inquiry into the actual activities of cooperative societies and it was found that such societies were genuinely dispensing agricultural credit in the market area. In that case, preliminary list of voters was objected to on the ground that the cooperative societies concerned were dealing with the activity in the animal husbandry sector, producing milk, etc., and were not liable to be included in the constituency of agriculturist Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT members of APMC. In that regard, Authorised Officer had undertaken an inquiry which the Court found to be within his functional scope under the Rules. It is a case-by-case that Authorised Officer has to arrive at his decision.
8. Whether inquiry undertaken in a particular case is summary or not or within the ambit of powers of the Authorized Officer or not is a question of fact to be ascertained in light of the peculiar facts and aspects of each case. It is the concept of 'summary inquiry' and not the factual contents of the summary nature which may be inflexible in law. It has to be judged from case to case whether in light of the attendant subject facts, the inquiry undertaken by the authorized officer is summary or not. When in the present case, the order of exclusion of names from the list of voters is based on the factum noticed that there was no election held to the Managing Committee, the decision can be said to be based on summary inquiry only. What can be more 'summary' than to ask whether the persons named to be the voters are elected members and whether election was held of the Managing Committee of which they are shown to be the elected members.
9. Finding out the basic constituent facts in respect of the members as to whether they are elected or not and whether election was held or not does not amount to adjudicating. When in the instant case the fourth respondent has having noticed that no elections were held at all, excluded the names of the members Page 12 of 13 HC-NIC Page 12 of 13 Created On Wed Jun 15 02:43:33 IST 2016 C/SCA/8034/2016 CAV JUDGMENT who were supposed to be elected members only to be properly included as voters in the voters list, cannot be said to have entered into adjudicatory arena. Such inquiry which was summary in nature was part of his function to be discharged under the Rules for the purpose of preparation of list of voters. Similarly, noticing that elections were not held in respect of the members names to be the voters, is entirely different than to decide 'the legality and validity' of the election, which was the case in Pransali Seva Sahakari Mandli (supra).
10. A summary inquiry remains summary in its kind and nature and cannot be equated with final adjudication of the facts or issues on merits. Therefore, if the petitioners are so advised to avail alternative remedy of filing election petition under Rule 28 of the Rules, which is available to them after elections are over and within a period of seven days from the date of declaration of result of the election, they would be at liberty to avail such remedy. It is clarified that this order will not come in way for the petitioner to avail the remedy of election petition and agitate its case therein.
11. For the aforesaid reasons and discussion, the petition is dismissed. Notice is discharged.
(N.V.ANJARIA, J.) Anup Page 13 of 13 HC-NIC Page 13 of 13 Created On Wed Jun 15 02:43:33 IST 2016