Gujarat High Court
Kalubhai Ranabhai Akabari vs State Of Gujarat And 4 Ors. on 16 July, 2007
Equivalent citations: AIR 2007 (NOC) 2200 (GUJ.)
Author: M.S. Shah
Bench: M.S. Shah, K.A. Puj
JUDGMENT M.S. Shah, J.
1. The subject matter of these petitions under Article 226 of the Constitution is the controversy regarding the eligibility of the members of the managing committees of three cooperative societies (respondent No. 5 in each of the three petitions) to vote at the elections to APMC, Junagadh to be conducted under the Gujarat Agricultural Produce Markets Act, 1963 ('the Act' for brevity). The petitions have been heard for final disposal from time to time. Since common questions of law arise in these petitions, all the petitions are being disposed of by this common judgment.
2. The Director of Agricultural Marketing and Rural Finance, Gujarat State (hereinafter referred to as 'the Director') issued a notification on 23.3.2007 fixing the date of elections to APMC, Junagadh as under:
Date of presenting nomination forms of candidates
03.7.2007 Date of scrutiny of nomination forms 04.7.2007 Date of withdrawing nomination forms of candidates 09.7.2007 Date of polling 17.7.2007 Date of counting and date of declaration of result 18.7.2007 Thereafter on 5.4.2007, the Director announced the detailed program for holding elections to APMC, Junagadh as under and also appointed the Deputy Director, Agricultural Marketing and Rural Finance and Dist. Registrar of Cooperative Societies, Junagadh District as the Authorised Officer:
1.
Date of announcement of elections 05.4.2007
2. Date on which the Authorised Officer shall issue instructions for preparation of the voters' list 05.4.2007
3. Date of communicating the names of voters to the Authorised Officer [Rule 7(1)] 14.4.2007
4. Preparation of the provisional list of voters [Rule 7(2)] 21.4.2007
5. The last date for submitting objections/ applications for amendment/ addition to the provisional list of voters [Rule 8(1)] 03.5.2007
6. The date of publication of revised list of voters [Rule 8(1A)] 11.5.2007
7. The last date for submitting objections to/applications for amendment to the revised list of voters [Rule 8(1A)] 18.5.2007
8. The date of publication of the final list of voters [Rule 8(2)] 28.5.2007
9. The date of filing nomination forms (Rule 11) 03.7.2007
10. The date of publication of the preliminary list of candidates (Rule 14) 03.7.2007
11. Date of scrutiny of nomination forms (Rules 15 & 16) 04.7.2007
12. Date of withdrawing nomination forms [Rule 17(1)] 09.7.2007
13. Date of publication of the final list of candidates [Rule 17(2)] 09.7.2007
14. Date of polling 17.7.2007
15. Date of counting 18.7.2007
16. Date of declaration of the result of elections As soon as counting is over Sd/-
MD Chauhan, Director of Agricultural Marketing and Rural Finance
3. As far as the three co-operative societies are concerned, these petitions came to be filed on 1.5.2007 challenging the registration of the societies and seeking a direction that the names of the members of the managing committees of the respondent-societies may not be included in the list of voters to be prepared and published for the purpose of elections to APMC, Junagadh for which the election program was already declared. It was also prayed that the respondent-authorities be directed not to consider the respondent-societies as registered societies for the purpose of elections to APMC, Junagadh.
4. In the memo of the petitions, the petitioners have made various averments and submissions for the purpose of challenging the registration granted to the respondent-societies mainly contending that the societies were ordered to be registered as cooperative societies under telephonic instructions even though the respondent-societies were not entitled to be registered as cooperative societies under the Cooperative Societies Act, 1963. It is not necessary to narrate those facts or submissions for the simple reason that we do not propose to go into the question of legality or otherwise of the orders granting registration to the respondent-societies under the Cooperative Societies Act, 1963. We only propose to consider the alternative submission made on behalf of the petitioners.
5. The learned Counsel for the petitioners has in the alternative submitted that in view of the provisions of the APMC Rules, 1965 (hereinafter referred to as 'the Rules') and particularly Part III thereof containing detailed provisions for preparation of the voters' list and for other stages of elections, the respondent-societies are not eligible to be voters at the ensuing elections. The gravamen of the challenge is that once the Director fixed on 23.3.2007 the date of election under Rule 4 and the detailed election program came to be announced on 5.4.2007 and once the date fixed by the Director for communicating the names of the members of the managing committee of the cooperative societies dispensing agricultural credit within the area of APMC, Junagadh was over on 14.4.2007, any society registered as a cooperative society thereafter cannot be included in the provisional list of voters or in the revised list of voters or in the final list of voters. It is submitted that since the three respondent-societies were not registered as cooperative societies on 23.3.2007 or even till 14.4.2007, their subsequent registration cannot confer upon them any right to be included in the list of voters.
Strong reliance is placed on the decision of the Apex Court in Election Commission of India, v. Ashok Kumar and the decision dated 11.5.2007 of this Court in Special Civil Application Nos. 6482 and 8968 of 2007 in support of the contention that once the date of election is fixed by the Director, any person or society granted license or registration after that date cannot be included in the list of voters.
6. On the other hand, Mr Mangukia, learned advocate appearing for the three respondent-societies, the eligibility of whose office bearers to vote in the elections is under challenge, has vehemently opposed the petitions and submitted that as per the settled legal position, the petitioners have an equally efficacious alternative remedy of filing election petitions after the elections are held and, therefore, this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution. Reliance is placed on several decisions viz. , , , , of the Apex Court and also the decisions of this Court reported in 1986 GLH 430, 1988 (2) GLR 1061 and in support of the above submissions. Strong reliance is also place on a decision of the Full Bench of this Court in 2006 (1) GCD 211. It is submitted that inclusion or exclusion of names in the voters' list cannot be termed as extraordinary circumstance warranting interference of this Court under Article 226 when the petitioners have an efficacious remedy of filing election petition under Rule 28 of the Rules.
It is also submitted that the decision dated 11.5.2007 in Special Civil Application No. 6482 of 2007 requires reconsideration because the Division Bench had not considered the decision of the Apex Court in 2001 (8) SCC 233 wherein the Apex Court held that the Election Tribunal has jurisdiction to try all ancillary issues.
7. Mr Mangukia has also submitted that the petitions as filed merely challenge the registrations granted in favour of the respondent-societies under the Cooperative Societies Act and that there are no pleadings to support the alternative argument submitted on behalf of the petitioners that the respondent-societies cannot be included in the list of voters.
It is also contended that the petitioners were required to raise the objections before the Election Officer under Rule 8 and that having not done so, it is not open to the petitioners to raise the above contentions at the hearing of these petitions.
It is also submitted that the authorised officer is not a party nor is the Election Officer joined as party respondent and, therefore, these petitions are not maintainable. It is also contended that the petitions have become infructuous because the list of voters has already been published and the final list of voters is not challenged.
8. Before dealing with the rival submissions, we may set out the relevant statutory provisions of the Act providing for constitution of the market committee, in so far as are relevant for the purposes of the present controversy.
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 and milk producer cooperative societies) dispensing agricultural credit in the market area;
(ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences;
(iii) two representatives of the Cooperative marketing societies situate in the market area and holding general licenses, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies;
Provided that where the number of cooperative marketing societies so situate does not exceed two, only one representative shall be so elected;
(iv) one member to be nominated by the local authority within whose jurisdiction the principal market yard is situated from amongst it councillors or, as the case may be, members who do not hold any general licence.
Provided that....
(v) two members to be nominated by the State Government;
Provided that....
26. Duties of market committees.- It shall be the duty of every market committee to maintain and manage the market and standardization of the Agricultural produce as may be prescribed, to provide such facilities in the market as the Director may from time to time direct and to enforce in the market area the provisions of this Act, the rules, bye-laws and the conditions of licences granted under the Act in connection with the purchase and sale of the agricultural produce with which it is concerned. It shall also be the duty of every market committee to collect and maintain such information relating to market intelligence as may be prescribed and to supply the same to Government whenever so required.
Section 27 provides for grant, refusal, renewal, cancellation or suspension of general licenses or special licenses to the traders, general commission agents, brokers, etc. who operate in the market area. The aggrieved person has the right to prefer appeal before the Director and to make a further appeal to the State Government against the order of the Director.
It is also necessary to refer to the relevant Rules which read as under:
2. Definitions: In these rules, unless the context otherwise requires, -
(2) 'Authorised Officer' (a) in relation to a market committee means such officer as the Director may designate for a district to perform the functions of an authorised officer; and (b) in relation to the Board means the Director.
(4) 'Election Officer' means an Officer authorised by the Director to perform the functions of an Election Officer under these rules and where no officer is so authorised, the Director.
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.
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 Sub-section (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 Sub-section (1) of Section 11 of the Act a list of traders holding general licenses in the market area;
(3) under Clause (iii) of Sub-section (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.
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.
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 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 Sub-rule (1) cause to be prepared the lists of voters as required by Rule 5 on the basis of the information received under Sub-rule (1) and, if necessary, after making such inquiry as he may deem fit.
(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
8. Provisional and final publication of lists of voters.-(1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.
(1-A) After receiving applications if any, under Sub-rule (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 Sub-rule (1-A), 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 least thirty days before the date fixed for the nomination of candidates for the election.
27. Publication of the names of elected and nominated members of the Market Committee.- The names of the elected and nominated members of the market committee shall be published in the Official Gazette by the Director as soon as conveniently may be after their election and nomination.
28. Determination of validity of election. - (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing:
(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and
(b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under Sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.
[emphasis supplied] Rule 56 makes detailed provisions for grant, renewal, refusal, cancellation/suspension of the licenses to traders and general commission agents.
9. As is clear from the provisions of Section 11 read with Rules 5, 6 and 7, three separate lists of voters are required to be prepared for three different constituencies -
(i) The list of voters comprising of the names of members of the managing committees of co-operative societies dispensing agricultural credit within the market area of the concerned APMC:
these voters elect eight agriculturists;
(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 members of the manging committees of the co-operative marketing societies in the market area and holding general licences:
these voters elect two representatives out of themselves (only one representative where the number of co-operative marketing societies in the area does not exceed two).
Sub-rule (1) of Rule 7 provides that the Director shall fix a specific date by which date the Market Committee shall communicate the list of traders holding general licenses and every co-operative society dispensing agricultural credit in the market area or every co-operative marketing society in the market area holding a general licence shall communicate the names of members of its Managing Committee. The important point to be noted is that this date will be the same for all the three constituencies and that within seven days from this date, the authorised officer shall prepare the lists of voters on the basis of the information received under Sub-rule (1).
10. The dispute in the present case is about the list of voters for the constituency of the co-operative societies dispensing agricultural credit under Clause (i) of Section 11(1). Unlike the grant of licenses to traders under Section 27 read with Rule 56 of the APMC Act/Rules, the registration of co-operative societies, whether dispensing agricultural credit [falling under Clause (i)] or co-operative marketing societies [falling under Clause (iii)] is to be done under the provisions of the Co-operative Societies Act by the concerned authorities. As far as co-operative societies dispensing agricultural credit are concerned, their registration is to be done by the concerned District Panchayat. In case of delegation of powers by the District Panchayat, its Co-operative Committee constituted under Section 174 of the Gujarat Panchayats Act, 1993 will take the decision for granting registration. The registration of co-operative marketing societies is to be done by the District Registrar of Co-operative Societies.
11. The above Rules came up for consideration in the recent judgment dated 11.5.2007 (to which one of us was a party) in Special Civil Application Nos. 6482 and 8968 of 2007 relating to elections to APMC, Kalawad, District Jamnagar. In the said decision, this Court held that the Election Tribunal under Rule 28 of the APMC Rules, 1965 does not have the jurisdiction to go into the question of legality and validity of the general or special licenses issued to the traders or commission agents because separate machinery for challenging the grant, renewal, refusal, cancellation or suspension of such licenses is provided under Section 27 of the Act read with Rule 56 of the Rules. This Court also held in the facts of that case that grant of 293 licenses after declaration of the election program was a fraud on the election process and then quashed and set aside the resolution dated 20.1.2007 passed by APMC, Kalawad for granting 293 licenses after declaration of the election program on 17.1.2007.
12. Mr Mangukia for the respondent societies has submitted that the decision dated 11.5.2007 with regard to the constituency of traders falling under Clause (ii) will not apply in the matter of preparation of voters' list for co-operative societies falling under Clause (i) or Clause (iii) of Section 11(1).
13. There can be no dispute about the fact that the authority granting registration of co-operative societies falling under Clause (i) or Clause (iii) are different from the authority granting licenses to traders falling under Clause (ii). As regards cooperative marketing society under Clause (iii), while its registration is to be done under the Cooperative Societies Act, it will have to obtain a general licence from APMC. However, the question still remains _ which date may be considered as the 'relevant date' for determining the eligibility of a person for inclusion in the list/s of voters for the purpose of elections to APMC.
14. Rule 4 provides that whenever a general election to a market committee is to be held, the Director of Agricultural Marketing and Rural Finance (hereinafter referred to as 'the Director') shall by a written order 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.
Rule 5 provides for three separate list of voters for the three separate constituencies as enumerated in Clauses (i), (ii) and (iii) of Section 11(1). Rule 6 provides that 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.
Rule 7 provides that whenever a general election to market committee is to be held, the market committee shall communicate the names of traders holding general licenses to the Authorized Officer before such date as the Director may by an order fix in that behalf. Their names are to be sent by the APMC, because APMC grants general licenses to traders. As regards the two separate constituencies of co-operative societies, it is the co-operative society which is required to communicate the names of the members of its managing committee to the Authorized Officer. All the names for all the three constituencies are to be sent to the Authorized Officer by the same date which the Director may by an order fix in that behalf.
15. The persons eligible to vote are members of the managing committee of a co-operative society dispensing agricultural credit. Hence, mere registration of a co-operative society is not sufficient to make its managing committee members eligible to vote at the elections. Such co-operative society must also have undertaken the activity of dispensing agricultural credit. Hence, such activity of dispensing agricultural credit must have actually commenced before the date on which the co-operative society is required to communicate the names of its managing committee members. After its registration and before commencing the activity of dispensing agricultural credit, the co-operative society would have to obtain the finance from District Central Co-operative Bank or any other financing agency. Hence, a period of about one month is bound to elapse between the date of registration as a co-operative society and its obtaining finance and then dispensing it for agricultural credit.
16. With reference to the facts of the case, by his dated order 5.4.2007, the Director had fixed 14.4.2007 as the date of communicating to the Authorized Officer the names of the voters in all the three constituencies and the provisional lists of voters were directed to be published by 21.4.2007 for any co-operative society registered for dispensing agricultural credit, the activity of dispensing agricultural credit was required to be commenced before 14.4.2007 for dispensing such credit, it was required to obtain finance from the District Central Cooperative Bank or any other financing agency, which process would take about a month's time. Hence, a co-operative society registered after 23.3.2007 could not be expected to have commenced its activity of dispensing agricultural credit before 14.4.2007. For the reasons indicated hereinabove, we find considerable substance in the submission of the learned Counsel for the petitioners that the Legislature or the rule making authority did not intend a co-operative society registered on 20th or 21st April 2007 to be eligible for being included in the provisional list of voters to be published on 21st April, 2007.
17. At this stage, we may also note that looking to the nature of duties to be performed by the Agricultural Produce Market Committee as broadly indicated in Section 26 of the Act, the rationale of conferring the right to elect agriculturists on the members of the managing committees of co-operative societies dispensing agricultural credit in the market area is the experience gained by the members of the managing committees of such co-operative societies in the process of dispensing agricultural credit in the market area. If a co-operative society, though registered as a co-operative society for dispensing agricultural credit, has not commenced dispensing agricultural credit till the date fixed by the Director for communicating the names of the voters as indicated in Sub-rule (1) of Rule 7, it could not have been the intention of the rule making authority to confer the right to elect agriculturists on the members of the managing committee of such a co-operative society.
18. In our view, therefore, the relevant date for determining the eligibility of a person for inclusion in the voters' list would be the date by which the Authorized Officer is to be communicated the names as indicated in Sub-rule (1) of Rule 7, that is to say before that date -
(i) a co-operative society registered under the Co-operative Societies Act for dispensing agricultural credit must have been registered as a cooperative society and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
18A. The only exception to the above general rule is to be found in Rule 6 which reads as under:
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.
19. Hence, it is not possible to accept the submission of Mr Mangukia for the respondent _ co-operative societies that merely because the societies were registered as co-operative societies on 21.4.2007, the members of their managing committees were entitled to be included in the provisional list of voters published on 21.4.2007. As already discussed above, mere registration of a society as a co-operative society for dispensing agricultural credit cannot confer a right upon the members of its managing committee to participate in the elections when no activity of dispensing agricultural credit had commenced. In fact, the activity of dispensing agricultural credit had to commence before the date by which the Authorized Officer was to receive the names under Rule 7(1) [14.4.2007, in this case].
20. We have carefully considered the submission of Mr Mangukia that under Rule 8 new names can be added to the list of voters and that, therefore, the relevant date for determining the eligibility of the person for inclusion in the list of voters for elections to APMC is the date on which the final list of voters is published and that by that date if any society is registered as a co-operative society dispensing agricultural credit or as a co-operative marketing society, then the members of the managing committee of such society are entitled to be included in the list of voters under Clause (i) or Clause (iii) of Section 11(1).
21. The scheme of the Rules for preparation of voters' list as contained in the APMC Rules, 1965 is that after the APMC or the co-operative society communicates the full names of the persons required to be included in the list of voters on a date fixed under Sub-rule (1) of Rule 7, within seven days therefrom the Authorized Officer has to prepare the list of voters on the basis of the information received under Sub-rule (1) of Rule 7. Any inquiry which the authorised officer may make under Sub-rule (2) of Rule 7 would be for the purpose of verification of that information. Sub-rule (1) of Rule 8 then requires the Authorized Officer to publish such a preliminary list of voters and to invite objections from 'any person whose name is not entered in the list of voters and 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' within fourteen days from the date of publication of the notice. Sub-rule (1) of Rule 8 nowhere provides or indicates that APMC or the concerned co-operative society which obtained registration after the date by which the Authorized Officer was to be communicated the names under Sub-rule (1) of Rule 7, may communicate to the Authorized Officer the names of members of the managing committee of such cooperative society. Similarly Sub-rule (1) of Rule 8 also does not provide or indicate that APMC may communicate to the authorized officer the names of traders who are granted general licences after communication of the names of traders under Sub-rule (1) of Rule 7.
22. So also, after the Authorized Officer prepares the revised draft list of voters under Sub-rule (1A) of Rule 8, such list is to be published with a notice inviting objections from 'any person who wishes to raise any objection against any new name entered in the list'. The underlined words refer to a person whose name was required to be communicated to the authorised officer under Sub-rule (1) of Rule 7 and included in the provisional list of voters, but his name was not included and, therefore, upon his objection against the provisional list of voters, the authorized officer finds substance in the objection and, therefore, includes his name in the revised draft list of voters under Sub-rule (1A) of Rule 8. Since his name appears for the first time, any person objecting to his inclusion in the list of voters must get an opportunity to raise objection before the authorised officer. The authorised officer will decide the objection and then prepare and publish the final list of voters under Sub-rule (2) of Rule 8. These words also can never be construed as enabling the APMC to communicate names of traders granted licenses after the date fixed under Rule 7(1) enabling any cooperative society to communicate names of members of the managing committees of the co-operative societies registered after the date fixed under Rule 7(1).
23. It would not be unreasonable to suggest that for a co-operative society to commence dispensing agricultural credit before 14.4.2007 or for a co-operative society to commence marketing activity by the same date or for a trader to commence his business of trading by the same date, the concerned co-operative society or trader must have obtained registration or license, as the case may be, before about a month or so. (Para 15). Seen in this light, the scheme of the APMC Act and the Rules and particularly the Rules relating to election indicate that in order to see that the members of its managing committee become eligible for inclusion in the list of voters for which information is to be sent to the Authorized Officer by 14.4.2007 under Rule 7(1), --
(i) a co-operative society must have commenced dispensing agricultural credit before 14.4.2007 and, therefore, it must have been registered under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director fixed the date of election to APMC (i.e. before 23.3.2007).
(ii) a trader must have commenced the business of trading before 14.4.2007 and for that purpose he must have obtained from APMC a general license for trader before the date of declaration of election (i.e. before 23.3.2007).
(iii) Similarly, a co-operative marketing society having a general license must have commenced its business of marketing before 14.4.2007 and for that purpose it must have been registered under the Co-operative Societies Act as a co-operative marketing society and obtained a general license from APMC before 23.3.2007 i.e. before the date on which the Director fixed the date of election to APMC.
24. The view that we are taking is also consistent with the stand of the respondent authorities in may other petitions. For instance, when another society called 'Shree Saraswatiji Cotton Ginning Co-operative Society Ltd.', Makhiyala, applied for its registration, the District Registrar of co-operative societies, Junagadh upon whom the Director has conferred the powers of Authorized Officer for conducting the election in question, informed the said society on 30.3.2007 (Annexure 'F') that in view of declaration of the election program for APMC, Junagadh, as per the Code of Conduct, the proposal of the said society for registration cannot be considered and that such proposal may be presented after publication of the final list of voters.
We may also refer to the submission of the learned Additional Advocate General in Special Civil Application No. 6482 of 2007 that the State Government is not averse to a harmonious construction of the provisions of the Act and the Rules being adopted in such a manner that persons who are granted licences after the date of declaration of the elections are not to be included in the voters list. This stand is also consistent with the stand adopted by the State Government in Special Civil Application No. 5029 of 2007, as reflected in para 5 of the order dated 27.2.2007, which reads as under:
5. Mr Nanavati, learned AGP submitted that with a view to see that there may not be any artificial majority in election in larger public interest, the instructions were issued not to grant fresh licence.
25. We may also refer to the observations made by two learned Single Judges of this Court in the same vein.
25.1 In Valsad Dist. Central Cooperative Bank Ltd. v. State of Gujarat, decided on 23.12.2002 and reported in 2003 (2) GLH 459, a learned Single Judge of this Court made the following observations:
It is a hard reality and perhaps it would not be out of place to take judicial notice of the things happening in such cooperative societies, which are treated as root-level power points that whosoever, any particular group or body, comes to power, realises that certain class of certain voters are not going to support at the ensuing election then such group or body in power with a view to see that the genuinely interested class is put into minority, new societies which are rather in the nature of dummy cooperative societies or which are not in any manner interested in the management of the Bank are admitted as members and as a result thereof the number of voters of such type societies would be more in comparison to the societies, which are genuinely interested in the management of the Bank and a consequence thereof, the atmosphere of majority is being created.
25.2 Similarly, in the judgment dated 7.10.2006 in Special Civil Application No. 15560 of 2003 and cognate petitions, another learned Single Judge of this Court was constrained to make the following observations:
17. However, despite these guidelines emerging from statutory provisions as well as State resolutions, one fact cannot be ignored that there are allegations of differential treatment and discriminatory approach. The concern voiced by learned advocates for the petitioners that sometimes such registration are misused for the purpose of inflating voters list also may not be completely baseless.... Over a period, cooperative movement has gained momentum and cooperative sector operates in vast areas. Some of the cooperative societies have significant operations and sizable membership strength. State funds are also involved in number of societies. Involvement of the State on account of its financial stake as well as larger public interest is therefore, inevitable. The provisions are therefore, found in the said Act permitting the State intervention. Legislative and State intervention however, cannot be confused with political interference and it would always be desirable that cooperative movement to the extent possible enjoys insulation from political consideration.
26. We have been finding that in spite of the aforesaid observations made by this Court time and again, a number of petitions have been coming up wherein challenge is made to the grant of general licenses to traders or grant of registration to co-operative societies even after commencement of the election process upon declaration of the date of election by the Director of Agricultural Marketing & Rural Finance, Gujarat State. There are 182 Agricultural Produce Market Committees in the State and each Market Committee has about a hundred voters or more in each category. As far as the co-operative societies falling under Clause (i) and Clause (iii) are concerned, it is not that one co-operative society gets one vote, but each member of its managing committee gets an individual vote meaning thereby, 11 to 15 members of the managing committee of one co-operative society get included in the list of voters. In the matter of elections to APMC, Junagadh itself we have found that controversies have been raised about the eligibility or otherwise of members of the managing committee of as many as eight co-operative societies.
27. In the above background, we have considered it appropriate, in fact we have been constrained, to look into this question at some length so as to decide this legal controversy and to set at rest once and for all the doubts being raised in this behalf time and again.
28. As regards the preliminary contention urged by Mr Mangukia that the petitions are not maintainable on account of availability of alternative remedy of filing an election petition under Rule 28, we are clearly of the view that since the co-operative societies falling under Clause (i) and Clause (iii) of Section 11(1) are registered under the Gujarat Co-operative Societies Act, 1961, any dispute about the legality or validity of the registration of the co-operative society can only be decided in a proceeding before the forum under Section 153 (appeal) or Section 155 (revision) of the Co-operative Societies Act. The Election Tribunal under Rule 28 of the APMC Rules framed under the Gujarat Agricultural Produce Market Committee Act does not have the jurisdiction to entertain and decide any challenge to legality and validity of registration of a co-operative society under the Co-operative Societies Act.
29. Mr Mangukia has, however, relied on the decision of the Apex Court in Hari Shanker Jain v. Sonia Gandhi in support of his contention that the Election Tribunal can entertain any collateral controversy about the registration of a co-operative society.
30. The submission is misconceived. In Hari Shanker Jain's case (supra), the Apex Court was concerned with the challenge to the qualification of the returned candidate for Lok Sabha Elections on the ground that the returned candidate had not legally acquired the citizenship of India because she had not resided in India for a period of twelve months immediately preceding her application for citizenship. The designated Election Judge held that when hearing an election petition, the High Court could not adjudicate upon the challenge to the citizenship of a candidate. In appeal, the Hon'ble Supreme Court noted that under Clause (a) of Sub-section (1) of Section 100 of Representation of People Act, 1951 _ that a returned candidate was 'not qualified' or 'was disqualified' to be chosen on the date of his election is specifically a ground for declaring his election void (para 15 of the judgment) and, therefore, held that the plea that a returned candidate is not a citizen of India and hence not qualified or is disqualified for being a candidate in the election, can be raised in an election petition before the High Court, in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. The Court reiterated the distinction between two situations as already pointed out previously in Bhagwati Prasad Dixit v. Rajeev Gandhi
(i) a person who has obtained a certificate of citizenship of India under Section 5(1)(c) of the Citizenship Act, 195, but the challenge is that the concerned person was not a citizen of India because such citizenship was not legally acquired, and
(ii) where a person has acquired citizenship of India and the challenge is that he had lost the citizenship by acquiring citizenship of another country as provided in Section 9(1) of the Citizenship Act.
The Court held that in the first category of cases, the learned Judge of the High Court acting as a designated Election Judge can examine the challenge to the legality or otherwise of acquisition of Indian citizenship, but the Election Judge cannot entertain a challenge of the second category, because whether a person having acquired Indian citizenship had lost the citizenship and, therefore, such citizenship terminated under Section 9 of the Citizenship Act was a matter which could only be decided by the machinery provided in Section 9 of the said Act, because Section 9 is a complete code as regards the termination of Indian citizenship on the acquisition of citizenship of a foreign country. In the second category of cases, the High Court trying an election petition could give a declaration only on the basis of the declaration made by the Central Government as to termination of citizenship being produced before the High Court, which shall have to be given effect to by the High Court. So long as such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned had not ceased to be an Indian citizen.
31. As far as elections to APMC are concerned, the challenge to registration of a co-operative society falling under Clause (i) or Clause (iii) of Section 11(1) can only be entertained by the appellate/revisional forum expressly created under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961. Similarly, challenge to legality and validity of a general license issued to a trader falling under Clause (ii) of Section 11(1) can only be examined by the forum expressly created under Section 27 of the APMC Act. The Election Tribunal constituted under Rule 28 of the APMC Rules can, therefore, not entertain any challenge to legality and validity of grant of registration to a co-operative society or grant or renewal of a general license to a trader. In our view, the decision of the Apex Court in Hari Shanker Jain v. Sonia Gandhi does not lend any support to the respondents' contention, but on the contrary buttresses the view taken by us in the judgment dated 11.5.2007 that the Election Tribunal under Rule 28 of the APMC Rules does not have any jurisdiction to entertain any challenge to legality or validity of a general license granted to a trader because Section 27 of the Act provides a specific forum and machinery for deciding all such disputes regarding grant or renewal of a license. In our view, therefore, the judgment dated 11.5.2007 in the case of APMC, Kalawad (Special Civil Application No. 6482 of 2007) does not require any reconsideration.
32. As regards the decision of the Full Bench, we have already considered the same in paragraphs 27 to 29 of our judgment dated 11.5.2007. For the reasons already indicated therein, and particularly in view of the decision of the Apex Court in Pundlik v. State of Maharashtra , the High Court may in the facts of a given case entertain a petition challenging the legality of the list of voters, even after commencement of the election process, if the list is not prepared in accordance with law. We are conscious of the fact that ordinarily this Court is not to entertain petitions after commencement of the election process. However, in the instant case, we have not entertained any disputed question of fact. In fact, the petitioners' challenge to the registration of the co-operative society is not entertained by us as machinery for entertaining such challenge is specifically created under the Gujarat Co-operative Societies Act and for the purposes of these petitions, we proceed on the demurer that the registration of the three co-operative societies in question was granted in accordance with the provisions of the Co-operative Societies Act Even proceeding on that basis, we have found that the three co-operative societies had not been registered either on the date on which the Director issued the notification dated 23.3.2007 fixing the date of election or even on 14.4.2007 i.e. the relevant date by which date the names were required to be communicated to the Authorized Officer under Sub-rule (1) of Rule 7 of the APMC Rules for preparation of three separate lists of voters.
33. As regards various other decisions sought to be relied upon by Mr Mangukia, we do not think that it is necessary to deal with the same because except one, they were rendered prior to the decisions of the Apex Court in Election Commission of India v. Ashok Kumar and in Pundlik v. State of Maharashtra . The decision in Avtarsingh Hit v. Delhi Sikh Gurudwara Management Committee and Ors. does not lay down a new principle but merely reiterates the general principle recognised in the above decisions, which provide for the exceptions to the general principle.
34. As regards the other submissions of Mr Mangukia, we do not find any merit in any of them.
34.1 Apart from the fact that the alternative plea raises a pure question of law, the foundation for the alternative plea of the petitioners is to be found in para 4(c) of the petition, which reads as under:
4(c) It is submitted that once the election programme is declared, the names of the members of the new society cannot be included and, therefore, the District Registrar in another case vide communication dated 30.3.2007 at Annexure-F to this petition, has stated that once the election programme is declared and published, the registration has to take place only after the final list is published.
The affidavit-in-reply filed by the Assistant District Registrar of Cooperative Societies merely states -
With reference to para No. 4C of the petition, I offer no remarks.
34.2 The petitioners moved this Court on 1.5.2007 both for challenging the registration granted in favour of the respondent- Co-operative societies on 21.4.2007 and inclusion of their names in the voters' list published on 21.4.2007. It is the case of the respondent authorities that challenge to registration of Cooperative Societies Act can only be made before the forum under the Cooperative Societies Act. The other plea is a pure question of law and the respondent-authorities had no answer to offer in their affidavit.
34.3 The Director had authorised the District Registrar of Cooperative Societies, Junagadh also exercising the powers of the Deputy Director, to exercise the powers of the authorized officer under the election Rules. The District Registrar is joined as respondent No. 4.
34.4 By interim order dated 11.5.2007, it was clarified that if the names of members of managing committee of respondent No. 5-Societies are included in the final list of voters, such inclusion shall be subject to the result of the petitions. It was not necessary to formally challenge the final list because the petition as originally framed did contain a prayer for excluding them from the list of voters. All the respondents including respondent No. 5 were given full opportunity to contest the petition and to deal with the controversies decided in this judgment.
35. To sum up then, our conclusions are as under:
I. "The relevant date" for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in Sub-rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date -
(i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates.
III. To be eligible for inclusion in the list of voters for elections to APMC, -
(i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.
(iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections.
IV. Challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.
VI. The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions.
O R D E R Since the respondent-societies were granted registration under the Cooperative Societies Act after the declaration of election program and after 'the relevant date' as discussed in the judgment, the office bearers of these societies were not eligible to be included in the voters' list and, therefore, cannot be permitted to vote at the ensuing elections to APMC, Junagadh.
It is, however, clarified that we have not gone into the merits of the controversy about challenge to registrations granted in favour of the respondent-societies and we have decided the matter on the basis that the respondent-societies were registered under the Cooperative Societies Act on 21.4.2007.
The petitions are accordingly allowed. The respondent-authorities shall not permit the members of the managing committees of the three respondent-societies i.e. (i) Sardar Patel Seva Sahakari Mandali Ltd., Village Choki (Sorath), Taluka & Dist. Junagadh, (ii) Sardar Patel Seva Sahakari Mandali Ltd., Village Mandalik, Taluka & Dist. Junagadh and (iii) Sardar Patel Seva Sahakari Mandali Ltd., Village Nana Mota -Avatadia Taluka & Dist. Junagadh, to vote at the ensuing elections to APMC, Junagadh scheduled to be held tomorrow.
Rule is made absolute to the aforesaid extent.
At this stage, Mr Mangukia for respondent No. 5-societies prays for suspending the operation of this order.
In the facts and circumstances of this case, the request is rejected.
Direct service is permitted today.