Gujarat High Court
Kankapura Seva Sahakari Mandali Ltd vs State Of Gujarat on 31 January, 2025
NEUTRAL CITATION
C/SCA/17579/2024 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17579 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17587 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17589 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17590 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17593 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17592 of 2024
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KANKAPURA SEVA SAHAKARI MANDALI LTD.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HARIN P RAVAL, SR. COUNSEL with MR. CHINTAN P CHAMPANERI
and MR ANAND M RANPARA(10976) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR ADDITIONAL ADVOCATE GENERAL with
MS NIDHI VYAS AGP for the Respondent(s) No. 1,2,3
MR DARSHIT H RAVAL(11887) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 31/01/2025
ORAL ORDER
1. The present Special Civil Applications are filed praying for the following reliefs :-
"(A) Be pleased to issue a writ of mandamus or certiorari or a writ in the nature of certiorari or mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 19.12.2024 passed by the respondent No.2 at Annexure-A to the present petition;
(B) Be pleased to issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to declare the order of the Page 1 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined respondent No.2 excluding the petitioner's name from the voters list of Trader's constituency of the elections of A.P.M.C. Borsad, ultra-vires to provisions of sec.11(1)(ii) of the act;
(C) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned dated 19.12.2024 passed by the respondent No.2;
(D) Pending admission and final disposal of the present petition, be pleased to direct the respondent no.2 to provisionally include the name of the petitioner in the Revised Draft voter's list and subsequently final voters list of agriculturist's constituency for the elections of Borsad APMC.
(E) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. The brief facts of the petitions are as follows:-
2.1 The elections for the Agricultural Produce Market Committee, Borsad were scheduled to be held on or before 20.06.2024 as the term of the previous body was to expire. Upon the expiration of the term, the respondent No.1 appointed respondent No.3 as the administrator. Following an order issued by this Hon'ble Court in a writ petition filed by some members of the superseded committee, the elections for the market committee were declared. The petitioners were not parties to any such petition. On 12.11.2024, respondent No. 1 declared the election programme under Rule 4 of the Gujarat Agricultural Produce Market Rules, 1965. In the exercise of his powers, respondent No. 1 appointed respondent No.2 as the authorized officer and respondent No. 3 as the Election Officer to conduct the elections.
2.2 The petitioners societies, possessing all the requisite qualifications, had its names included in the preliminary voters list Page 2 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined by respondent No. 3 while preparing the list. In doing so, respondent No. 2 called for all the accounts and details of the petitioners societies and after verifying the same, entered the name of the petitioners societies in the voters list. The provisional list of voters was published on 30.11.2024.
2.3 Respondent no. 4, Ashokkumar Jashwantsinh Mahida raised objections dated 13.12.2024 against the inclusion of the members of the managing committee of the petitioner society in the voters list of the agriculturist's constituency. The essence of the objections raised by respondent No. 4 is that the petitioner society has not dispensed agricultural credit in the years 2021-22, 2022-23, 2023-
24, and 2024-25, and has only been engaged in recovery activities of previously dispensed finance. The petitioner society last dispensed agricultural credit in the year 2020 and has not engaged in any recovery of its finances from its members thereafter.
2.4 The petitioners were asked by respondent No.2 to remain present on 18.12.2024 to answer the objections raised by respondent No. 4. The petitioners submitted their reply to the objections along with documentary proofs. In their reply, the petitioners stated that the petitioner societies have disbursed finance under the three-tier co-operative credit structure. Additionally, it was submitted that the petitioner societies had recovered a substantial portion of its finances. Although the receipts for the recovery were not annexed with the reply, they were produced during the hearing when requested by respondent No. 2. The recovery of finances and the subsistence of the finances were not disputed by respondent No. 2 while passing the impugned order. Therefore, the petitioners cannot be said to lack the requisite qualifications.However, the respondent no.2 passed the impugned Page 3 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined order on 19.12.2024 allowing the objections of the respondent no. 4. Aggrieved, the present petitions are filed.
3. The learned senior counsel Mr. Harin Raval appearing for the petitioners submitted that the order/notification impugned, passed by respondent No. 2, is ex-facie erroneous, arbitrary, contrary to the provisions of law, and against the documentary evidence on record. It was contended that the respondent No. 2 has passed the impugned order based on conjectures and surmises, which is not permissible under the law. Therefore, the impugned order deserves to be quashed and set aside.
3.1 It was submited that the present petitions concern the preparations of the voters list for the agriculturist's constituency of the market committee as provided under Section 11(1)(i) of the Act and Rule 5(1) and Rule 7(1)(i) of the Rules. A perusal of the said provisions clearly stipulates two different qualifications: one for being a candidate at an election and another for being a voter. When examining the qualifications for being a voter, it reads that the members of the managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area are eligible.
3.2 It was submitted that there were in all 37 societies included in the voters list. Out of these, the respondent No. 2 has excluded 6 societies from the voters list, including the petitioners. It is noteworthy that only those societies have been excluded which were likely to support the outgoing panel, which was abruptly compelled to step down following the arbitrary appointment of the administrator. Thus, the exclusion of six societies out of 37 creates a cascading impact on the outcome of the elections. The actual majority, which has prevailed for years, is likely to be reduced into a Page 4 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined minority by tilting the balance.
3.3 It was submitted that the respondent No.2 has no authority, right or power to exclude the names of the members of the managing committee of the petitioners societies de-hors the provisions of sec. 11(1)(i) of the Act. The respondent no.2 has committed grave misconduct by not considering and following the ratio laid down by the Hon'ble High court as well as Hon'ble Apex Court.
3.4 It was submitted that the respondent No.2, by way of the impugned order and other identical orders passed on the same day, has excluded six societies from the voters list. The exclusion of these six societies would give the rival panel a head start, and the orders are therefore issued with ill-intent and without any justifiable reasons. The impugned order and the other identical orders, when combined, will generate a cascading effect that could materially affect the outcome of the election. By passing the impugned order, the respondent No.2 has tilted the balance of majority in the election by keeping substantial societies out of the election fray. This constitutes an extraordinary circumstance that can significantly affect the results of the elections.
4. The learned Additional Advocate General Ms. Manisha Lavkumar appearing for the respondent Nos.1 to 3 submitted that none of the fundamental rights of the petitioners have been violated due to any action or inaction on the part of the present respondents. Therefore, the present petitions are not maintainable in law and deserve to be dismissed in limine. It was submitted that the petitioners have preferred the present writ petitions challenging their deletion from the revised preliminary voters list vide order dated 19.12.2024 for the elections of APMC, Borsad, under the Page 5 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined Gujarat Agricultural Produce and Marketing (Promotion and Facilitation) Act, 1963 (hereinafter referred to as "the APMC Act").
4.1 It was submitted that the present petitions may not be entertained on the ground of availability of an alternative efficacious remedy under Rule 28 of the Gujarat Agricultural Produce Market Rules, 1965 (hereinafter referred to as "APMC Rules"). It is settled law that when a statute provides for an alternative efficacious remedy, normally the courts may not exercise the writ jurisdiction under Article 226 of the Constitution of India, more particularly in election matters when the election process is set in motion. Rule 28 of the APMC Rules provides for challenging the validity of the election of the market committee by way of an election petition. The petitioners will have the liberty to raise all the contentions, including those averred in the present writ petition before the appropriate forum and the same will be adjudicated in accordance with law under Rule 28 of the said Rules. Therefore, the alternative remedy available under the APMC Rules is efficacious, and hence, the present petitions may be dismissed at the threshold.
4.2 It was further submitted that the issue involved in the present writ petitions pertain to the inclusion/exclusion of names in the voters list, wherein a challenge is made to the exclusion of the names of petitioners in the revised provisional voters list and final voters list. It is a settled principle of law, more particularly laid down by the Hon'ble Full Bench of this Hon'ble Court in the case of Daheda Group Seva Sahkari Mandli Ltd. Vs. R.D. Rohit reported in 2006 (1) GCD 211 (para 33), that the inclusion and exclusion of names in the voters list does not constitute an extraordinary circumstance which warrants the exercise of writ jurisdiction of this Hon'ble Court. The Hon'ble Supreme Court has Page 6 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined also reiterated in a catena of judgments that the preparation of electoral rolls is part of the election process, and when the election schedule has commenced, even if there is a breach of rules, the same can be called into question only after the election by way of an election petition. It was submitted that the election is a time- bound schedule, and it is incumbent upon the authority to abide by the schedule. At present, the election process has commenced and is at the stage of the final voters list. As per settled principles of law, once the election process has commenced, ordinarily, the writ court may not interfere in the election process, especially when there are no extraordinary circumstances. Therefore, even on this ground alone, the present petitions may be dismissed in limine.
4.3 It was submitted that the present petitions also suffer from non-joinder of necessary and proper party. The issue involved in the present petitions pertain to the ascertainment of the dispensation of agricultural credit, for which, the Market Committee and the Kheda District Central Cooperative Bank are the only competent authorities to verify and ascertain the same. The petitioners have failed to join the Market Committee and the Bank as parties to these petitions. Hence, on this ground alone, the present petitions deserve to be dismissed for want of non-joinder of necessary parties. It was further submitted that the petitioners have alleged mala fides against respondent No. 2 and respondent No.3, however, they have not joined respondent No. 3 in his individual capacity, who can categorically refute these allegations. If the petitioners raise any allegations of mala fides against any person or authority, it is incumbent upon them to join the concerned individual in their personal capacity. In the absence of joining respondent No. 3 in his personal capacity, all contentions of mala fides are baseless.
Page 7 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined 4.4 It was submitted that the elections of the APMC, Borsad came
to be declared on 12.11.2024. On 13.11.2024, the Kheda District Central Cooperative Bank was directed by the answering respondent to provide the details of the societies dispensing agricultural credit in the market area. Pursuant thereto, the bank had submitted its details vide letter dated 21.11.2024 regarding the details of the societies.
4.5 It was submitted that on 18.11.2024, the answering respondent sought necessary details from the Audit Branch, District Registrar, Co-operative Societies, Anand, as well as from the Liquidator, Co-operative Officer, District Registrar, Co-operative Societies, Anand. The details sought pertained to the eligibility of the societies and the dispensation of agricultural credit among other relevant information. Furthermore, on the same day, the answering respondent also sought information from all 37 societies regarding their eligibility, dispensation of agricultural credit and other relevant documents.
4.6 It was submitted that on 21.11.2024, 22.11.2024, and 25.11.2024, the societies communicated the list of members of their managing committee to the Authorized Officer. Based on the aforementioned details, and in accordance with Rule 7(2) of the Rules, the Authorized Officer published the preliminary voters list on 30.11.2024 for the agricultural constituency. The preliminary voters list for the agriculturist constituency contained a total of 728 voters from 37 societies. It is pertinent to note that the names of the petitioners were also included in the said voters list.
4.7 It was submitted that as per Rule 8(1) of the said Rules, the last date for receiving the objections against the preliminary voters list was 13.12.2024. Upon publication of the preliminary voters list, Page 8 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined objections came to be raised by respondent No.4 on 13.12.2024 against inclusion of the names of petitioners for not complying with the provisions of the Act. Accordingly, the answering respondent issued notice to the petitioners on on 16.12.2024 and kept the hearing on 18.12.2024 4.8 On 18.12.2024, the petitioners had submitted its reply. It is pertinent to note that the petitioners did not produce any requisite documents to substantiate the dispensation of agricultural credit. That, upon granting due opportunity of hearing and after considering the records and documents, based on the powers of summary inquiry, the impugned order came to be passed on 19.12.2024. Hence, the impugned order is in accordance with principles of natural justice and within jurisdiction.
4.9 It was submitted that as per the provisions of the Act and as held by this Hon'ble Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandli Ltd. v. State of Gujarat, 2017 (0) AIR (CC) 117 and confirmed by the Hon'ble Division Bench in 2017 (2) GLR 902, primary agricultural co-operative societies must dispense agricultural credit and follow the three-tier credit co-operative structure. If not followed, the authorized officer is justified in removing such societies from the voters list. In the present case, records show that the petitioners societies have not dispensed agricultural credit as per the three-tier structure for the past few years, focusing only on recovery. Furthermore, the bank's letter dated 21.11.2024 confirms that the petitioners have not disbursed any new loans or recovered amounts in the past 4 years, evidencing non-compliance with the law. The petitioners did not deny this in their reply. Hence, the petitioners' names were rightly removed from the voters list due to lack of eligibility. The petitioners have failed to provide sufficient justification or documents (such as Page 9 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined Shaakh Patrak, bank statements, Rojmel, loan ledger, etc.) to demonstrate active dispensing of agricultural credit under the three- tier system. In the absence of such documents, the respondent was compelled to adjudicate based on the available records, including the bank's letter and the petitioners' reply.
4.10 It was submitted that the bank's letter dated 21.11.2024 provides general details about all societies and was already part of the records supplied to the respondent before publishing the preliminary voters list. No demand for this document was made by the petitioners during the objection hearing. The petitioners' reply solely relies on alleged non-compliances by other societies without providing any supporting documents for their own claims. As such, their reply was rightly rejected. It was further submitted that as per settled law, the authorized officer conducts a summary inquiry to ascertain minimum necessary facts to address objections. The inquiry conducted by the respondent was in line with the scope of powers.
4.11 It was submitted that the petitioners' contention regarding other societies not fulfilling the criteria, yet remaining in the voters list, is without merit. It is a settled principle of law that the petitioners must justify their own case. Moreover, they did not raise objections against such societies at the relevant stage.
4.12 The petitioners have not joined the individuals concerned against whom mala fides are alleged. In the absence of any proof, these contentions deserve to be rejected. The respondent has acted within jurisdiction, based on the records and submissions presented by the parties through their advocates and the impugned order was passed in accordance with the law and principles of natural justice.
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4.13 It was submitted that now, the election process is at an advanced stage, with the final voters list published on 01.01.2025, and the process is currently at the nomination stage. If the present petitions are allowed, it would amount to changing the entire voters list midway through the election. It is settled law that courts generally do not interfere once the election process has commenced, as such interference would frustrate the purpose of having elections and delay the process. Hence, the present petitions should not be entertained.
5. The learned counsel Mr. Dipen Desai appearing for respondent No.4 submitted that the present petitions are misconceived and devoid of merit, and therefore, do not deserve to be entertained by this Hon'ble Court. The petitioners have an alternative and efficacious remedy under Rule 28 of the Gujarat Agricultural Produce Market Rules, 1965, by filing an Election Petition to challenge the exclusion of members of the managing committee from the voters list and consequently challenge the election.
5.1 It was submitted that even on merits also, the impugned order passed by the Authorized Officer is perfectly legal and proper and the Authorized Officer has given cogent and convincing reasons for deleting the names of members of managing committee of the petitioner society from the voters list of agriculturist constituency and such a well-reasoned order may not be interfered with by this Hon'ble Court.
5.2 It was submitted that the present petitions involve disputed questions of fact, particularly regarding whether the petitioner society is dispensing agricultural credit to its members. Such questions cannot be adjudicated by this Hon'ble Court in a petition Page 11 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined under Article 226 of the Constitution of India. Therefore, the petitions may not be entertained and should be rejected.
5.3 It was submitted that the petitioner society has not dispensed any agricultural credit to its members through the Three-Tier Credit Structure for the last four years. This is substantiated by the letter dated 21.11.2024 from the Kaira District Central Cooperative Bank Limited. It was submitted the District Bank has categorically stated that the petitioner society has not obtained any agricultural loan from the Bank and thereby the said fact gets substantiated that the petitioner society has not dispensed any agriculture credit to its members since last 4 years and thereby the petitioner society cannot be said to be a Primary Agriculture Cooperative Credit Society dispensing agriculture credit. It was submitted that the audit reports of the petitioner society indicate that it is almost defunct and has not been involved in any agricultural credit dispensing activities. The auditor's report includes objections stating that the petitioner society has not undertaken any agricultural credit dispensing activity. Therefore, the petitioner society is ineligible to be included in the voters list for the agriculturist constituency.
5.4 It was submitted that not all societies dispensing agricultural credit are entitled to be included in the voters list; only Primary Agriculture Cooperative Credit Societies that dispense agricultural credit through the Three Tier Credit Structure qualify. As the petitioner society has not dispensed agricultural credit, let alone through the required Three Tier Credit Structure, it is not eligible for inclusion in the voters list.
5.5 It was submitted that Section 11(1)(i) mandates inclusion in the voters list only for members of the managing committee of "primary agricultural credit cooperative societies dispensing Page 12 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined agricultural credit." The phrase "primary agricultural credit cooperative societies" was interpreted by this Hon'ble Court in Beshavahi Group Vividh Karyakari Seva Sahakari Mandali Ltd. v. State of Gujarat (2016 JX (Guj) 946), where it was held that only societies dispensing agricultural credit through the three-tier credit structure are eligible for inclusion. This judgment was upheld in Letters Patent Appeal, and the Special Leave Petition was dismissed by the Hon'ble Supreme Court.
5.6 The aforesaid judgment of Beshavahi (supra) has been again relied upon in the judgment of Para Vistar Vividh Karyakari Seva Sahakari Mandli Limited vs State of Gujarat reported at 2019 JX (Guj) 136 (relevant paragraph 9) wherein the Learned Single Judge of this Hon'ble Court has inter alia held that only those societies, which are dispensing agricultural credit as per the three tier credit structure, would come within the purview of primary agricultural credit societies so as to entitle them to be included in the voters list.
5.7 It was submitted that the petitioners have invoked this Hon'ble Court's jurisdiction under Article 226 of the Constitution without availing the alternative remedy available under Rule 28 of the Rules, 1965. To invoke Article 226, the petitioners must satisfy the three exceptions: (i) lack of jurisdiction, (ii) violation of natural justice, or (iii) reliance on a repealed provision of law. In the present case, none of these exceptions apply. Therefore, the petitioners should be relegated to the alternative remedy of filing an election petition rather than invoking the extraordinary discretionary jurisdiction of this Hon'ble Court.
6. In rejoinder, it was submitted by the learned senior counsel Mr. Raval that respondent No. 2 did not inform the petitioners, Page 13 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined either prior to or during the hearing, that the bank's comments had been invited and would be considered in passing the impugned order. This reliance on the bank's comments, without informing or supplying the same to the petitioners, is in violation of principles of natural justice. Had the petitioners been aware of these comments, they would have provided suitable responses. The failure to disclose and supply the comments has severely prejudiced the petitioners' position.It was submitted that the bank's comments were never disclosed by Respondent No. 2 prior to or during the hearing of objections, nor were they mentioned by the objector in their reply. The subsequent production of the bank's comments by respondent No.4 raises serious concerns of impropriety and connivance between Respondents Nos. 2 and 4.
6.1 It was submitted that in total, five societies in the voters list have not dispensed agricultural credit in the last four years. Despite this, Respondent No. 2 excluded the petitioners and the other five societies from the voters list. Initially, the preliminary voters list contained 728 voters from the managing committees of 37 societies. After the exclusion of the petitioners and the other five societies, the number of voters reduced to 625, resulting in the exclusion of 103 voters. This exclusion will materially affect the outcome of the agriculturist's constituency.
6.2 It was submitted that the Respondent No. 2 has acted in a biased and unfair manner, undermining the integrity of the election process. Two societies listed in Annexure-2 of the bank's comments were wrongly retained in the voters list, while three societies listed in Annexure-1, despite not dispensing agricultural credit for over four years, were also improperly retained. These actions reflect partiality and political motivations. Therefore, the impugned order Page 14 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined should be set aside to uphold equality before the law and the purity of the election process.
6.3 It was submitted that prior to passing the impugned order, Respondent no.2's interpretation of the provisions was consistent with the petitioners' understanding, as evidenced by the inclusion of managing committee members of all societies dispensing agricultural credit. However, after the impugned order, a voter raised objections against the inclusion of five societies in the revised draft voters list, which Respondent no. 2 rejected, stating that objections could only be raised against new names added. This perpetuates inequality by unjustly retaining those five societies in the voters list for elections.
6.4 It was submitted that the Respondent no. 2 cannot claim non- objection for five societies while failing to dismiss similar objections against the inclusion of the petitioner societies in the voters list. Equal treatment must be ensured for all voters and any inequality or inconsistency in this regard renders the impugned order illegal. Therefore, the impugned order deserves to be quashed and set aside.
7. Heard the learned counsels for the respective parties and perused the documents on record.
8. The petitioners herein are the members of the A.P.M.C., Borsad and are forming part of the Agriculturists' Constituency. That the election programme for the respondent No.1 came to be declared on 12.11.2024 and on 30.11.2024, the publication of provisional voters' list came to be notified. That the respondent No.4 raised an objection in respect of the petitioners herein with regard to inclusion of their names in the voters' list alleging that the Page 15 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined petitioners had not paid the market fees for the current year and therefore, they were in breach of the provisions of Section 11(1)(ii) of the A.P.M.C. Act. That the notice for hearing came to be issued by the respondent No.2 authorized officer. The petitioners filed their reply thereafter on 19.12.2024. The impugned order came to be passed by the respondent No.2, whereby the names of the petitioners came to be excluded from the voters' list of the Traders' constituency, holding that since the petitioners herein had not paid the market fees for the current year, they were in breach of the provisions of Section 11(1)(ii) of the A.P.M.C. Act and therefore, their names came to be deleted from the voters' list for the Traders' Constituency.
9. By the impugned order, the respondent No.2 authorized officer has excluded the petitioners and other five societies from the voters' list on the ground that they are not dispensing the agricultural credits over a period of four years. The respondent No.2 has taken into consideration the reply filed by the petitioner societies and has also called for the record of the A.P.M.C. Borsad in respect of the petitioner societies and also for a report of Kaira District Central Cooperative Bank Limited. After relying upon the same, the authorized officer has come to the conclusion that the petitioner societies are not dispensing the agricultural credits to its members since last four years. They are only in the business of recovering credits dispensed earlier. The said conclusion of the authorized officer is based on the record. Prima facie, nothing has been brought on record to show that the the findings arrived at by the authorized officer are erroneous. Further, the petitioners also do not seem to have provided sufficient documents before the authorized officer to show that they are actively dispensing agricultural credits under three-tier system or otherwise. The Page 16 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined authorized officer has power to make summary inquiry only. The petitioners herein have failed to demonstrate that they were actively dispensing agricultural credits since last four years. The audit report presented before the authorized officer in respect of the petitioners society also include an objection that the petitioner societies have not undertaken any agricultural credits dispensing activities. As regards the contention that the respondent No.2 has acted in a biased and unfair manner under the election process, the same is not substantiated from the record. No extraordinary circumstances have been brought on record which call for interference by this Court under Article 226 of the Constitution of India.
10. It is settled law that judicial review is considered as a basic feature of the Constitution. The exercise of writ jurisdiction under Article 226 of the Constitution of India is a constitutional guarantee. However, the Courts have always frowned upon while interfering with the election process once the same is set in motion. The self restriction is to be maintained particularly when exercise of such power under Article 226 of the Constitution of India has the effect of arresting, delaying or derailing the election process. In such circumstances, the paramount consideration before the Court is to interfere if only an extraordinary circumstance is made out in respect of the decision of the authorized officer being mala fide, arbitrary or in breach of any laws or against the principles of natural justice. Further, the power under Article 226 of the Constitution of India is to be exercised in such a way that it furthers holding of the free and fair election rather than delaying the same. It is also well settled that the Court would not ordinarily interfere particularly in respect of preparation of voters list which is recognized as a part of the election process and would ordinarily relegate the parties to Page 17 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined raise all such disputes post the election in an election petition. Therefore, the interference in preparation of the voters list should be in extremely rare circumstances.
11. The Full Bench decision of this Court case of "DAHEDA GROUP SEVA SAHAKARI MANDLI LIMITED v/s. R.D.ROHIT, AUTHORIZED OFFICER & CO. OPERATIVE OFFICER passed in Special Civil Application No.2489 of 2005 dated 27/04/2005, wherein in para 32 and 33, it is held as under:-
"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 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. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer 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 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 Page 18 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025 NEUTRAL CITATION C/SCA/17579/2024 ORDER DATED: 31/01/2025 undefined Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
12. In view of the aforesaid facts and in the considered opinion of this Court, the factual matrix indicated herein above pertains to the deletion of the names of the petitioners from the voters' list and therefore, this Court is not inclined to interfere with the ongoing election programme. No extraordinary circumstances warranting interference under Article 226 of the Constitution have been made out to interfere with the impugned order. The petitioners can avail remedy under Rule 28 of the Rules of 1965 by filing an election petition. The authority under Rule 28 of the Rules of 1965 has wide powers to cancel, confirm or amend the election and to direct to hold the election afresh in case the election is set aside. Therefore, the remedy under Rule 28 of the Rules of 1965 is an efficacious remedy. This Court is inclined to relegate the writ petitioner to avail statutory remedy as available under Rule 28 of the Rules of 1965. The observations made herein above dealing with the contentions raised by the petitioners shall not come in the way of the petitioners if the petitioners choose to avail such alternative remedy.
13. In view of the aforesaid observations and reasons, the present petitions are hereby dismissed. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 19 of 19 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 21:30:17 IST 2025