Gujarat High Court
Pransli Seva Sahakari Mandali Ltd & 2 vs State Of Gujarat & 4 on 10 April, 2014
Bench: M.R. Shah, R.P.Dholaria
C/SCA/4189/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4189 of 2014
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/
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1. Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2. To be referred to the Reporter or not ? No
3. Whether their Lordships wish to see the fair copy of the No
judgment ?
4. Whether this case involves a substantial question of law as to No
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ? No
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PRANSLI SEVA SAHAKARI MANDALI LTD & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR BHARAT T RAO, ADVOCATE for the Petitioner(s) No. 1 3
MR KABIR HATHI, ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 1 4
MR DIPEN DESAI, ADVOCATE for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 10/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] RULE. Shri Kabir Hathi, learned AGP waives service of notice of Rule on behalf of respondent Nos.1 to 4 and Shri Dipen Desai, learned advocate waives service of notice of Rule on behalf of respondent No.5 - Agricultural Produce Market Committee, Keshod [hereinafter referred to as "APMC, Keshod"]. In the facts and circumstances of the case and with Page 1 of 19 C/SCA/4189/2014 JUDGMENT the consent of learned advocate appearing on behalf of respective parties, present petition is taken up for final hearing today.
[2.0] By way of this petition under Article 226 of the Constitution of India, petitioners - cooperative societies [hereinafter referred to as "petitioners"] through their office bearers have prayed for an appropriate writ, direction and order to quash and set aside the impugned order/letter dated 21.02.2014 issued by respondent No.4 herein - Returning Officer / Authorized Officer refusing to include the names of the members of the managing committee of the petitioners in the voters' list of the Agriculturist Constituency of APMC, Keshod.
[2.1] It is the case on behalf of the petitioners that the petitioners are primary cooperative societies engaged in dispensing agricultural credit to their members in the market area of APMC, Keshod under KCC and GCC and also providing fertilizers and seeds and the agricultural equipments to the members. That they are discharging their day to day affairs as per the byelaws under the Gujarat Cooperative Societies Act, 1961 [hereinafter referred to as "Act, 1961"]. It is the case on behalf of the petitioners that the Central Government had set up Vaidyanathan Committee for the purpose of inserting certain provisions in the Constitution of India with a view to boost cooperative movement across the country. Based on the report of Vaidyanathan Committee, 97 th Amendment in the Constitution has been placed before the Parliament and the Parliament has approved the Constitution (97 th Amendment) Act, 2011 which has come into force w.e.f. 12.01.2012 whereby in Part IXB of the Constitution of India, Cooperative Society has been added and Article 243ZH to 243ZT have been inserted in the Constitution. It is the case on behalf of the petitioners that the Government of Gujarat was to accordingly make amendment in light of the constitutional amendment but it was not done. Therefore, Special Civil Application No.13733/2012 came to be filed before this Court in which on Page 2 of 19 C/SCA/4189/2014 JUDGMENT 01.03.2013, this Court directed the Government to hold the election as per Article 243ZK of the Constitution of India. It is the case on behalf of the petitioners that pursuant thereto, the Additional Registrar (Administration) Cooperative Societies, Gujarat State issued one Circular dated 22.03.2013 whereby the elections of the primary cooperative societies came to be suspended and it was directed not to hold elections till further orders. It is the case on behalf of the petitioners that petitioners societies therefore did not hold the election of the managing committee as per the aforesaid Circular dated 22.03.2013. That thereafter one Kamlaben Bhikhabhai Boghani filed Special Civil Application No.10155/2013 before this Court seeking direction to hold election of bank and in the said matter, Government came out with the policy decision and pointed out that the Gujarat Cooperative Societies Amendment Act has been prepared in view of the Constitutional Amendment and it is in process of being placed before the Assembly and in view of the statement made before this Court, this Court in para 16 of the said judgment dated 10.07.2013 has given directions by way of interim measures that till the Amendment Act is passed, the society, the term of the existing committee is about to be over or is already over, such society shall be permitted to hold election of the Managing Committee, as per the byelaws. It is the case on behalf of the petitioners that the Commissioner, Cooperation and Registrar, Cooperative Societies, Gujarat State, Ahmedabad on 15.07.2013 issued Circular whereby it has been brought to the notice of the Collectors of all Districts that elections of the Board of Directors of specified cooperative societies as per Section 74C of the Act, 1961 should be held as per Gujarat Specified Cooperative Societies Election to Committee Rules, 1982. Thus, it is the case on behalf of the petitioners that APMC, Keshod is constituted under the APMC Act and the election of the APMC have never been suspended. It is the case on behalf of the petitioners that the said circular is made applicable to the specified cooperative societies and Page 3 of 19 C/SCA/4189/2014 JUDGMENT as far as APMC, Keshod is concerned, election has to be hold as per the the Agricultural Produce Market Committee Rules, 1965 [hereinafter referred to as "Rules, 1965"]. It is the case on behalf of the petitioners that so far as the petitioners are concerned, the members of the managing committee have been continued and nobody has challenged the same and therefore, the members of the managing committee of the petitioners societies have been continued as members of the managing committee of their respective cooperative societies.
[2.2] That the Director of APMC has declared the election of APMC, Keshod on 28.01.2014 and election programme has been published on 11.02.2014. It is the case on behalf of the petitioners that petitioners received intimation under Rule 7 of the Rules, 1965 from the office of respondent No.4 - Authorized Officer along with the letter dated 11.02.2014 calling upon the societies to furnish the name of the society; address of the society; registration number of the society; names of members of the managing committee and their addresses etc. so as to prepare and declare the preliminary voters' list of Agriculturist Constituency as per Rule 7 of the Rules, 1965. It is the case on behalf of the petitioners that pursuant to the said letter of respondent No.4 - Authorized Officer, the petitioners societies on 18.02.2014 send along with the resolutions passed by the societies and other required documents and the list of the members of the managing committee, resolution by which the elections were held etc. It is the case on behalf of the petitioners that along with the said communication, the petitioners also annexed copies of the balancesheet; profit and loss account for the year 01.04.2012 to 31.03.2013 also. It is the case on behalf of the petitioners that as per the programme of election, 21.02.2014 was the last date for publication of preliminary voters' list pursuant to Rule 7(2) of Rules, 1965. That on the said date, the petitioners have received the letter/order dated 21.02.2014 from the respondent No.4 by which the petitioners are intimated that the names Page 4 of 19 C/SCA/4189/2014 JUDGMENT of the members of the managing committee of the petitioners cannot be included in the voters' list because the petitioners were informed not to hold elections of managing committee in view of circular dated 22.03.2013 in view of pendency of amendment in Act, 1961 as per the Constitutional Amendment and that the election of the members of the managing committee of the petitioners is not held as per circular dated 15.07.2013 and therefore, the petitioners are informed that the names of the members of the managing committee of the petitioners cannot be included in the voters' list. That thereafter respondent No.4 has published the preliminary voters' list under Rule 7(2) of the Rules, 1965 on 21.02.2014.
[2.3] Feeling aggrieved and dissatisfied with the impugned orders/communications dated 21.02.2014 and in not including the names of members of the Managing Committee of the petitioners societies, petitioners herein preferred the present Special Civil Application under Article 226 of the Constitution of India.
[3.0] Shri Bharat Rao, learned advocate appearing on behalf of the petitioners has vehemently submitted that action of respondent No.4 - Authorized Officer in not including the names of the members of the managing committee in the voters' list of Agriculturist Constituency on the grounds stated in the orders dated 21.02.2014 are absolutely illegal, arbitrary and contrary to the provisions of the Rules more particularly Rules 5 to 7 of the Rules, 1965 and is without authority under the law. It is submitted that by not including the names of the members of the managing committee of cooperative societies, the respondent No.4 traveled beyond the scope of powers conferred upon him under the Act and the Rules. It is submitted that the respondent No.4 has failed to appreciate Rule5 of the Rules, 1965 which provides for eligibility of the voter. He has relied on Rule 5 of the Rules, which reads as under:
Page 5 of 19C/SCA/4189/2014 JUDGMENT "RULE 5 : Different lists of voters For the purposes of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely: [(1) under clause (I) of subsection (1) of section 11 of the Act, a list of members of managing committees of Cooperative Societies (other than Cooperative Marketing Societies) dispensing agricultural credit in the market area:] (2) under clause (11) of subsection (1) of section 11 of the Act a list of traders holding general licenses in the market area:
(3) under clause (iii) of subsection (1) of section 11 of the Act, a list of members of managing committees of Cooperative Marketing Societies situated in the market area [holding general licenses.]"
It is further submitted that the preparation of list of voters for general election is provided under Rule 7. He has relied on Rule 7 of the Rules, 1965, which reads as under:
"RULE 7 : Preparation of list of voters for general election"
(1) Whenever a general election to market committee is to be held:
(i)every Cooperative 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 members.
(ii) the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader: and
(iii) every Cooperative 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 subrule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the Information received under subrule (1) and if necessary, after making such inquiry as he may deem fit (3) Every list of voters shall show the full name, place of residence and the serial number of each voter."
It is further submitted that Rule 7 provided for eligible primary Page 6 of 19 C/SCA/4189/2014 JUDGMENT cooperative society dispensing agricultural credit in the market area. It does not provide that whether the primary cooperative society has held election or not and whether the Managing Committee of the Society is as per the Rules or not.
[3.1] It is further submitted that the respondent No.4 is discharging duties under the Act and whether the election of managing committee is held or not, whether it is as per the provisions of law or not, does not fall within its jurisdiction. It is further submitted that it is altogether different jurisdiction under different officer under the Act, 1961. It is further submitted that the respondent No.4 - Authorized Officer has only to look into whether the primary cooperative society is dispensing agricultural credit or not and whether it is functional or not. It is submitted that the inquiry by the Authorized Officer is limited to this extent only while preparing the voters' list of Agriculturist Constituency of APMC under Section 11(1)(i) of the Act, 1961. It is further submitted that the respondent No.4 cannot travel beyond the scope of the powers conferred upon him and if at all society has not held election as per the Act, 1961 and Rules, 1965, the members of the society or aggrieved person can file suit under Section 96 of the Act, 1961 but the respondent No.4 cannot debar the managing committee of the primary cooperative society from exercising their right to cast vote in the election of the APMC. It is further submitted that even the elections of candidate of agriculturist constituency cannot be challenged under Rule 28 of the Rules, 1965 challenging the legality and validity of the registration of the society under the Act, 1961. It is submitted that the respondent No.4 cannot decide the issue which is not falling within his jurisdiction and debar the members of the managing committees of the primary cooperative societies from exercising their right to cast vote. It is further submitted that action of the respondent No.4 is in connivance with the present Chairman of APMC who is getting opposition against his misconduct and misdeeds and therefore he has win over the respondent Page 7 of 19 C/SCA/4189/2014 JUDGMENT No.4 and persuaded to pass order which is not falling within the jurisdiction of the respondent No.4.
[3.2] It is further submitted that the respondent No.4 has power to hold limited inquiry in the matter viz. if the details which are required under Rule 5 are not furnished by the cooperative society, then he can call for the same to satisfy himself whether the primary cooperative society is dispensing agricultural credit or not and is functional or not and no inquiry beyond that can be made by him. It is also submitted that what is inquiry is also limited inquiry within the meaning of Rules 5 & 7 of the Rules, 1965 and therefore, the power exercised by the respondent No.4 is beyond the scope. Shri Rao, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Division Bench of this Court in the case of Vibhapar Seva Sahakari Mandali Ltd. v. State of Gujarat reported in 2010(0) GLHELHC 223660 in support of his above submissions.
[3.3] Shri Rao, learned advocate appearing on behalf of the petitioners has also heavily relied upon the recent decision of this Court in the case of Mahendra Maganbhai Patel v. State of Gujarat & Ors. rendered in Special Civil Application No.126/2014 in support of his above request to quash and set aside the impugned decision of respondent No.4 - Authorized Officer in not including the names of the members of the managing committee of the petitioners in the Agriculturist Constituency and to direct the respondent No.4 - Authorized Officer to include the names of the members of the managing committee of the petitioners in the Agriculturist Constituency of the APMC, Keshod, as per the list submitted by them along with their communications/letter dated 18.02.2014 and permit them to participate in the ensuing election.
[4.0] Shri Dipen Desai, learned advocate has appeared on behalf of the respondent No.5 - APMC, Keshod. He has submitted that in the facts and Page 8 of 19 C/SCA/4189/2014 JUDGMENT circumstances of the case, when it was found by the Authorized Officer that the petitioners cooperative societies have not held the election of the members of their managing committees despite the communication dated 15.07.2013 and therefore, the members of the managing committee of the petitioners societies whose names were send, were not reelected as per the communication dated 15.07.2013 issued by the Registrar, Cooperative Societies, Gujarat State and therefore, as it was found that the members of the managing committee of the petitioners whose names were send to the Authorized Officer were not duly elected members of the managing committee, the Authorized Officer has rightly refused to include the names of the members of the managing committee of the petitioners in the voters' list of Agriculturist Constituency. It is submitted that even in the case of Vibhapar Seva Sahakari Mandali Ltd. (Supra), the Division Bench of this Court has observed and held that even by holding the inquiry at the stage of Rule 7 of the Rules, 1965, the Authorized Officer can make such inquiry as he may deem fit to ascertain and consider the veracity of the details submitted by the cooperative society. It is submitted that therefore, as such no error and/or illegality has been committed by the Authorized Officer in refusing to include the names of the members of the managing committee of the petitioners in the Agriculturist Constituency.
Making above submissions, it is requested to dismiss the present petition.
[5.0] Shri Kabir Hathi, learned AGP has tried to oppose the present petition. He has adopted the submissions made by Shri Desai, learned advocate appearing on behalf of respondent No.5 in support of his request to dismiss the present petition.
[6.0] Heard learned advocates appearing on behalf of respective parties at length.
At the outset it is required to be noted that the election of the Page 9 of 19 C/SCA/4189/2014 JUDGMENT managing committee of the petitioners had been held on 25.04.2013 (petitioner No.1), 30.06.2013 (petitioner No.2), 25.04.2013 (petitioner No.3) and 30.06.2013 (petitioner No.4). It is also required to be noted and it is an admitted position that as on today, nobody has challenged the election of the members of the managing committee of petitioners and/or against their continuance as members. Therefore, as such the members of the managing committee of the petitioners whose names have been send to the Authorized Officer pursuant to the communication dated 11.02.2014, they continue to be the members of the managing committee of the petitioners. That on declaring the election of the APMC, Keshod by the Director, APMC on 28.01.2014, and as per the election programme the Authorized Officer sent intimation to all the societies including the petitioners on 11.02.2014 as per Rule 7 of the Rules, 1965 calling upon the petitioners and other societies to furnish the name of the society; address of the society; registration number of the societies; names of the members of their managing committee and their addresses, for the purpose of preparing and declaring preliminary voters' list as per Rule 7(2) of the Rules and despite the fact that all the particulars as required, more particularly the names of the members of the managing committee of the petitioners societies along with the resolutions have been sent to the Authorized Officer, by impugned communication the Authorized Officer has refused to include the names of the members of the managing committee of the petitioners in the preliminary voters' list published under Rule 7(2) of the Rules solely on the ground that the election of the members of the managing committee of the petitioners were held contrary to the communication dated 22.03.2013 issued by the Additional Registrar (Administration), State of Gujarat, Gandhinagar and pending the amendment in Section 97 of the Act, 1961 and on the ground that the petitioners cooperative societies have not held the election of the members of the managing committee after and as per the instructions issued by the Registrar, Cooperative Page 10 of 19 C/SCA/4189/2014 JUDGMENT Societies, Gujarat State dated 15.07.2013. Therefore, the short question which is posed for consideration of this Court is whether while holding an inquiry under Rule 7 of the Rules, 1965, the Authorized Officer can refuse to include the names of the members of the managing committee of the cooperative societies while entering into the dispute with respect to the legality and validity of the election of the members of the managing committee of the concerned cooperative society and/or can Authorized Officer while holding inquiry under Rule 7 of the Rules, 1965 enter into the question/issue with respect to the legality and validity of the election of the members of the managing committee of the concerned cooperative society?
[6.1] Before considering the present petition on merits, relevant provisions of the Gujarat Agricultural Produce Markets Act, 1963 [hereinafter referred to as "Act, 1963"] and Rules are required to be referred to, which are as under:
S.2(xxiii) "trader" means any person, who carries on the business of buying or selling of agricultural produce or of processing of agricultural produce for sale and includes a cooperative society, joint family or an association of persons, whether incorporated or not, which carries on such business;
S.11 Constitution of market committee.(1) Every market committee shall consist of the following members, namely:
(i) eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than cooperative marketing societies) dispensing agricultural credit in the market area:
R.4. Fixation of date of election. Wherever a general election to a market committee or a bye election under section 15 is to be held, the Director shall, by an order in writing, fix a date of such election and publish such order by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area.
R.5. Different lists of voters. For the purposes of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely: Page 11 of 19 C/SCA/4189/2014 JUDGMENT [(1) under clause (i) of subsection (1) of section 11 of the Act, a list of members of managing committees of Cooperative Societies (other than Cooperative Marketing Societies) dispensing agricultural credit in the market area;] (2) under clause (ii) of subsection (1) of section 11 of the Act a list of traders holding general licenses in the market area; (3) under clause (iii) of subsection (1) of section 11 of the Act, a list of members of managing committees of Cooperative Marketing Societies situated in the market area [holding general licenses.] R.6. Persons qualified to vote. A person whose name is entered in a list of voters shall be 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.
R.7. Preparation of list of voters for general election. (1) Whenever a general election to market committee is to be held:
(i) every Cooperative 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 members;
(ii) the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader; and
(iii) every Cooperative 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 Authorized 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 subrule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the information received under subrule (1) and, if necessary, after making such inquiry as he may deem fit.
(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
R.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, Page 12 of 19 C/SCA/4189/2014 JUDGMENT within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.
1[(1A) After receiving applications, if any, under subrule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for an amendment in the revised draft list of voters.] (2) If any application is received under 1[subrule (1A)], 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 shall be prepared at atleast thirty days before the date fixed for the nomination of candidates for the election.
R.10. Fixing stages of election. (1) An election shall be held between such hours and on such date and at such places as may be fixed by the Director.
(2) Not less than 40 days before the date fixed for the election under rule 4, the Director shall publish in Gujarati a notice stating:
(a) the number of persons to be elected by the respective electorate.
(b) the date on which, the place at which and the hours between which nomination papers shall be presented to the Election Officer, such date not being earlier than 14 days from the date of the publication of the notice.
(c) the date on which, the place at which and the hours between which the nomination papers shall be scrutinised.
(d) the date on which, the place or places at which and the hours between which the votes shall be taken.
(e) the date on which, the place at which and the hours between which the votes shall be counted.
[6.2] Considering the aforesaid provisions of the Rules, it appears that Rule 4 provides that whenever a general election to a market committee is to be held, the Director of Agriculture Market and Rural Finance [hereinafter referred to as "Director"] shall by a written order fix the date of such election and publish such order by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area.
Page 13 of 19C/SCA/4189/2014 JUDGMENT [6.2.1]Rule 5 provides for three separate list of voters for three separate constituencies.
(i) the list of voters comprising of the names of the members of the managing committees of the cooperative societies dispensing agricultural credit within the market area of the concerned APMC - these voters elect eight constituencies;
(ii) the list of voters comprising of traders holding general licenses - these voters elect four candidates out of themselves;
(iii) the list of voters comprising of the members of the managing committees of the cooperative market societies in the market area and holding general licenses - these voters elect two representatives out of themselves.
[6.2.2]SubRule (1) of Rule 7 provides that a Director shall fix a specific date by which date the market committee shall communicate the list of traders holding general licenses and every cooperative society dispense with agricultural credit in the market area or every cooperative market society in the market area holding a general license shall communicate the names of the members of its managing committee.
[6.2.3]SubRule (2) of Rule 7 further provides that the Authorized Officer shall within 7 days from the date fixed under subRule (1) caused to be prepared the list of voters as required by Rule 5 on the basis of the information received under subRule (1), if necessary, making such inquiry as he may deem fit. Thus, after the market committee communicates the list of traders holding general licenses and/or any information is received from the concerned cooperative society dispensing agricultural credit in the market area or every cooperative society in the market area holding a general license, the names of the members of its managing committee, the Authorized Page 14 of 19 C/SCA/4189/2014 JUDGMENT Officers will be having a clear 7 days for preparation of the voters' list as per subRule (2) of Rule 7 and thus he would have a clear 7 days of making such inquiry as he may deem fit.
[6.3] The scope and ambit of inquiry by the Authorized Officer while preparing the preliminary voters' list under Rule 7 came to be considered by the Division Bench of this Court in the case of Vibhapar Seva Sahakari Mandali Ltd. (Supra) and on considering the various provisions of the Act, 1961 and the Rules, 1965, it is observed and held that "under Rule 5 of the Rules, 1965, for the purpose of Section 11(1)(i) of the Act, 1961, a list of members of the managing committee of the cooperative society dispensing agricultural credit in the market area is required to be prepared and sent by such cooperative society to the Authorized Officer. Under Rule 7 of the Rules, 1965, more particularly subrule (2) thereof, the Authorized Officer has to, within 7 days from the date fixed under subrule (1) of Rule 7, prepare the list of voters as stipulated by Rule 5 on the basis of the information received from each cooperative society. SubRule (2) of rule 7 of the Rules states in the latter 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 cooperative society and testing the veracity thereof, namely whether a particular person whose name has been included by the cooperative 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 cooperative 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 of the Rules." [6.4] The scope and ambit of the inquiry by the Authorized Officer Page 15 of 19 C/SCA/4189/2014 JUDGMENT while preparing the voters' list also came to be considered by the Division Bench of this Court in the recent decision in the case of Mahendra Maganbhai Patel (Supra) and in para 10, this Court has tried to expand the scope and ambit of the inquiry under Rule 7(2) of the Rules, 1965. Para 10 of the aforesaid decision is as under:
"[10.0]Now, the next question which is posed for consideration of this Court is the duty of the Authorized Officer while preparing the preliminary voters' list and the contention on behalf of the private respondents that as they are holding the traders license issued by the market committee, the day on which the preliminary voters' list was prepared and published by the Authorized Officer [under Rule 7], their names are required to be included in the voters' list or not. SubRule (2) of Rule 7 of the Rules provides that the Authorized Officer shall, within 7 days from the date fixed under subRule (1) is to prepare the list of voters as required by Rule 5 on the basis of the information received under subRule (1) and, if necessary, after making such inquiry as he may deem fit. Thus, a duty is cast upon the Authorized Officer to make such inquiry as he may deem fit while preparing the preliminary voters' list under subRule (2) of Rule 7 of the Rules. As stated herein above and even as held by the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (Supra), only that trader who has been granted license by the APMC to carry on business as a trader in the market area and who has commenced the business as a trader is entitled to be included in the preliminary voters' list. However, with a view to see that there is a fair election and no attempt is made to inflate the voters' list and create an artificial majority with malafide intention, a limited inquiry shall be read into while exercising powers under subRule (2) of Rule 7 that whether the names which are send by the market committee / concerned cooperative societies are issued the licenses after the declaration of the election by the Director under Rule 4 and/or even after the declaration of the election programme by the Director under Rule 10(2) of the Rules or on the eve of the declaration of the election and for that purpose as such the Authorized Officer as soon as receives the list of the voters/license holders from the market committee/concerned cooperative societies, he may call for the particulars with respect to each license holders whose names are to be included in the voters' list and the date of issuance of the licenses so that and if it is found that the licenses are issued after the declaration of the election under Rule 4 and/or after declaration of the election programme under Rule 10(2) or on the eve of the declaration of the election in that case considering the decisions of the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (Supra) and other decisions, the Authorized Officer may not include the names of those persons/license holders / members of the managing committee Page 16 of 19 C/SCA/4189/2014 JUDGMENT of those cooperative societies who have been issued licenses subsequently. If the aforesaid procedure is read into while considering subRule (2) of Rule 7 of the Rules, which provides that the Authorized Officer shall within seven days from the date fixed under subrule (1) prepare the list of voters as required by rule 5 on the basis of the information received under subrule (1) and, if necessary, after making such inquiry as he may deem fit, the same would be in the fitness of things and to maintain democratic principles. Therefore, as such it is advisable that as such at the time of sending the names by the concerned cooperative societies dispensing agricultural credit; the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader and every Cooperative Marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member shall also give the particulars with respect to the date of the grant of the licenses in favour of concerned cooperative society dispensing with agricultural credit; the traders licenses and grant of license in favour of cooperative marketing society. If the said particulars are not provided while holding the inquiry under subrule (2) of Rule 7 of the Rules, the Authorized Officer may call for the relevant particulars to satisfy himself about the above. If the aforesaid inquiry is read into, in that case and accordingly the preliminary voters' list is prepared, no prejudice shall be caused to anybody as after publishing the preliminary voters' list, the objections can be raised by any person as provided under subRule (1) of Rule 8 of the Rules.
In the present case, as stated herein above, the Authorized Officer has failed to perform his statutory duty and has materially erred in rejecting the objection submitted by the petitioner and has erred in including the names of the private respondents herein in the voters' list of the Traders Constituency."
[6.5] Under the circumstances and even considering the aforesaid two decisions of the Division Bench of this Court, it can safely be concluded and held that while preparing and publishing the preliminary voters' list under Rule 7 of the Rules, 1965, the Authorized Officer has no jurisdiction and/or authority to enter into the question with respect to the legality and validity of the election of the members of the managing committee of the concerned cooperative societies and the inquiry by the Authorized Officer while preparing the preliminary voters' list under Rule 7 of the Rules, 1965 would be limited to the extent observed hereinabove and as per the decisions in the case of Vibhapar Seva Page 17 of 19 C/SCA/4189/2014 JUDGMENT Sahakari Mandali Ltd. (Supra) and Mahendra Maganbhai Patel (Supra). Under the circumstances, it appears that the impugned communication / decision of the respondent No.4 - Authorized Officer in not including the names of the members of the managing committee of the petitioners is absolutely illegal and without authority under the law and the scope and ambit of the inquiry to be conducted while preparing the voters' list under Rule 7 of the Rules, 1965.
[6.6] At this stage, it is also required to be noted that while passing the impugned communication/order while not including the names of the members of the managing committee of the petitioners, the Authorized Officer has observed that the election of the managing committee of the petitioners has not been held in pursuance to the circular dated 15.07.2013 and the order of this Court dated 10.07.2013 passed in Special Civil Application No.10155/2013. It is required to be noted that as such nothing is on record that the communication/circular dated 15.07.2013 was ever send to the petitioners cooperative societies. It is also required to be noted that even the petitioners societies were not party to the Special Civil Application No.10155/2013. In any case and it is an admitted position that as such nobody has challenged till date continuance of the members of the managing committee of the petitioners whose names have been send to the Authorized Officer. Under the circumstances, the impugned decision of the respondent No.4 in not including the names of the members of the managing committee of the petitioners in the preliminary voters' list of the Agriculturist Constituency of the APMC, Keshod cannot be sustained and the same deserves to be quashed and set aside and respondent No.4 - Authorized Officer is required to be directed to include the names of the members of the managing committee of the petitioners in the voters' list of Agriculturist Constituency of the APMC, Keshod after holding the limited inquiry as observed hereinabove and to the extent stated in the decision of the Division Bench in the case of Vibhapar Seva Sahakari Mandali Ltd.
Page 18 of 19C/SCA/4189/2014 JUDGMENT (Supra) and Mahendra Maganbhai Patel (Supra).
[7.0] In view of the above and for the reasons stated above, present petition succeeds. The impugned letter/communication and the decision of respondent No.4 - Authorized Officer in not including the names of the members of the managing committee of the petitioners in the voters' list of Agriculturist Constituency of APMC, Keshod is hereby quashed and set aside and respondent No.4 - Authorized Officer is directed to include the names of the members of the managing committee of the petitioners in the Agricultural Constituency of APMC, Keshod after holding necessary inquiry to the extent as stated herein above, more particularly considering the decisions in the case of Vibhapar Seva Sahakari Mandali Ltd. (Supra) and Mahendra Magainbhai Patel (Supra) and to allow them to participate in the ensuing election of the APMC, Keshod. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R. SHAH, J.) Sd/ (R.P. DHOLARIA, J.) Ajay Page 19 of 19