Gujarat High Court
The Juna Jampura Kala Kapas Utpadak Ane ... vs State Of Gujarat on 20 June, 2025
NEUTRAL CITATION
C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6685 of 2025
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6685 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 6694 of 2025
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6694 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 6698 of 2025
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6698 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 6710 of 2025
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6710 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 6713 of 2025
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6713 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
✔
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THE JUNA JAMPURA KALA KAPAS UTPADAK ANE RUPANTAR
SAHAKARI MANDALI LTD.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
Page 1 of 81
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NEUTRAL CITATION
C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025
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IN SPECIAL CIVIL APPLICATIONS:
MR PERCY KAVINA SENIOR ADVOCATE WITH MR JAMSHED
KAVINA(11236) for the Petitioner(s) No. 1
MR GH VIRK GOVERNMENT PLEADER WITH MR NIKUNJ KANARA AGP
for the Respondent(s) No. 1,2
IN CIVIL APPLICATIONS:
MR BS PATEL SENIOR ADVOCATE WITH MR DIPAN DESAI ADVOCATE
for the applicants
MR GH VIRK GOVERNMENT PLEADER WITH MR NIKUNJ KANARA AGP
for the Respondents Nos.2, 3
MR PERCY KAVINA SENIOR ADVOCATE WITH MR JAMSHED
KAVINA(11236) for the respondent No.1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 20/06/2025
COMMON ORAL JUDGMENT
[1] Since all these petitions having more or less identical facts and law, at the request of the learned advocates appearing for the respective parties, have been taken up analogously. Considering the urgency, the same are taken up for final hearing and are being disposed of by this common judgment and order at the admission stage.
[2] Issue Rule returnable forthwith. Learned A.G.P. Mr. Nikunj Kanara waives service of notice of Rule on behalf of the respondents - State authorities.
Page 2 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined [3] For the sake of convenience, Special Civil Application No.6685 of 2025 has been treated as the lead matter, therefore, facts are recorded arising from the said petition.
[4] By way of said petition under Article 226 of the Constitution of India, the petitioner has approached this Court with the following reliefs:
"8 (A) Be pleased to issue a writ of mandamus or certiorari or a writ in the nature of certiorari or mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 01.05.2025 passed by the respondent no.2 - Annexure-A to the present petition;
(B) Be pleased to issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to declare the order of the respondent no.2 excluding the petitioner society from the voters list of Co-operative Marketing Society Constituency of the elections of A.P.M.C. Thara, ultra-vires to provisions of sec. 11(1)(iii) of the act and rule 5,7 and 8 of the rules;
(C) Pending admission and final disposal of the present Page 3 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined petition, be pleased to stay the implementation, operation and execution of the impugned order dated 01.05.2025 passed by respondent no.2;
(D) Pending admission and final disposal of the present petition, be pleased to direct the respondent no.2 to provisionally include the name of members of the managing committee of the petitioner society in the Revised Draft voter's list and subsequently final voters list of Cooperative Marketing Societies constituency for the elections of Thara APMC.
(E) Be pleased to pass such other and further orders as may be deemed fit and proper."
[5] The facts of the case in brief can be stated as under:
[5.1] It is the case of the petitioner is a Society registered under the Gujarat Cooperative Societies Act, 1961 in the year 2008 for the objects mentioned in its bye laws. The main object of the Society, as per its bye laws, are production, farming, processing, marketing, storing, purchasing and selling cotton and cottonseeds, to create facilities for the same, to enhance facilities for the same, to encourage farming, processing and selling of these products and Page 4 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined other agricultural produces, to buy and sell pesticides and equipments for its use, to enter into trading thereof, etc. [5.2] The petitioner states that to achieve the object of its bye laws, the Society has also entered into marketing, purchasing and selling and trading cotton, cottonseeds and other agricultural produces. The Society is situated in the market area of Agricultural Produce Market Committee, Thara. Accordingly, the petitioner had applied for license of the Agricultural Market Committee and the same was granted by the then Market Committee, which has been renewed thereafter time to time.
[5.3] Thus, by virtue of the provisions under the Gujarat Agricultural Produce and Marketing (Promotion and Facilitation) Act, 1963 [for short, "the Act"], a right has been conferred on the petitioner to elect from amongst themselves two representatives and the same shall be elected by the Managing Committee of all the Societies in the market area holding General Election.
[5.4] The petitioner states that election of the Agricultural Produce Market Committee, Thara [for short, "APMC"] was to be Page 5 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined held on or before 20th June 2024 since the term of the earlier body was to expire on that date. However, upon expiry of the term, the respondent No.1 was pleased to appoint the Administrator. After appointment of Administrator, an Administrative Committee was also appointed. Due to intervention of this Court in Special Civil Application No.11019 of 2024 and allied matters, by way of order dated 21st February 2025, the State authorities were directed to declare election for APMC, Thara as expeditiously as possible and on or before 21st March 2025.
[5.5] Apropos to the aforesaid order dated 21st February 2025 passed by this Court, the Director, APMC, Gujarat State, Gandhinagar, on 20th March 2025, declared the election programme which can be reproduced hereinbelow:
"Agriculture Produce Market Committee- Thara, Taluka- Kankrej, District- Banaskantha General Election Programme Sr. Details of Programme Date No. (1) (2) (3)
1. Declaration of the election- 40 days prior 20/03/2025 to the date of election as per Rule-10(2) Page 6 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined
2. The authorized officer to issue notice to 07/04/2025 prepare electoral roll 2(A) Date to submit the electoral roll to the 15/04/2025 authorized officer (Rule-7)
3. Primary publication of the electoral 19/04/2025 roll, within 7 days from the date of seeking the electoral roll (Rule-7(2))
4. Last date to submit objection / 02/05/2025 application for correction in the primary electoral roll, within 14 days from primary publication (Rule-8(1)) 4(A) Re-publishing revised primary electoral 08/05/2025 roll along with the notice to raise objection for the same, prepared after submission of corrections- instructions-
objections against the primary electoral roll (Rule-8(1)(A)) 4(B) Last date to submit corrections/ 14/05/2025 objections against the republished revised primary electoral roll (Rule-
8(1)(A))
5. Final publication of the electoral roll 20/05/2025 (Rule-8(2))
6. Date to submit Nomination papers 19/06/2025 (Rule-10(2))
7. Primary publication of Nomination 19/06/2025 papers (Rule-14)
8. Verification of Nomination papers 20/06/2025 (Rule-15) Page 7 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined
9. Date to withdraw Nomination papers 23/06/2025 [Rule-17(1)]
10. Final publication of list of candidates 23/06/2025 [Rule-17(2)]
11. Date of election 30/06/2025
12. Date of counting votes 01/07/2025
13. Declaration of Election result (Rule-21) Immediately after counting votes Date:20/03/2025 Director Agriculture Marketing and Rural Place: Gandhinagar Finance Gujarat State Gandhinagar [5.6] As per the aforesaid programme, a preliminary voters list was to be published by the respondents authorities on 19 th April 2025, provisional voters list was to be published on 8th May 2025 and the final voters list was to be published on 20 th May 2025. The name of the petitioner - Society has not been included in the preliminary voters list which was published on 19 th April 2025. On the same date i.e. on 19th April 2025, the Authorized Officer issued a notice upon the petitioner pointing out that for the reasons stated Page 8 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined therein, the name of the petitioner - Society has not been included in the preliminary voters list, thus, requested to appear before the Authorized Officer on 23rd April 2025 with relevant record and evidence.
[5.7] Pursuant to the aforesaid, the petitioner submitted its reply dated 23rd April 2025 requesting, inter alia, to drop the show cause notice and include the name of the petitioner - Society in the preliminary / provisional voters list. The Authorized Officer, thereafter, considering the reply and giving opportunity of hearing, vide its order dated 1st May 2025, excluded the name of the petitioner from the voters list published under Rule 8 of the Gujarat Agricultural Produce Markets Rules, 1965 [for short, "the Rules"].
[6] Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court for the reliefs stated hereinabove.
[7] It is relevant to note that Civil Application came to be filed by one Kankrej Taluka Shihori Sahkari Kharid Vechan Sangh Limited for joining as party respondents in the present Special Civil Page 9 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Application, who is said to be the interested party to ensure that the only eligible persons / societies are included in the voters list of Agricultural Produce Market Committee, Thara and upon its representation dated 24th February 2025, inquiry was conducted by the authorities and a report dated 19th April 2025 was prepared.
Although the said application was not formally allowed by the Court, however, with the no objection raised by the learned advocate appearing for the petitioner and for the sake of assistance, the said Civil Application for joining party is also heard along with the present petitions.
[8] Thus, I have heard learned Senior Advocate Mr. Percy Kavina assisted by learned advocate Mr. Jamshed Kavina appearing for the petitioner, learned Senior Advocate Mr. B. S. Patel assisted by learned advocate Mr. Dipan Desai appearing for the applicant in Civil Application filed for impleadment and learned A.G.P. Mr. Nikunj Kanara for the respondents - State authorities.
[9] Learned Senior Advocate Mr. Percy Kavina for the petitioner, while assailing the impugned order dated 1st May 2025, Page 10 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined has made the following submissions:
[9.1] Learned Senior Advocate Mr. Kavina for the petitioner, at the outset, submitted that the impugned order dated 1 st May 2025 is not tenable in eye of law as the same being dehors the provisions under Section 11(1)(iii) of the Act and Rules 5(3) and Rule 7(1)(iii) of the Rules.
[9.2] Learned Senior Advocate Mr. Kavina further submitted that publication of preliminary voters list and the issuance of notice dated 19th April 2025, simultaneously, at the instance of the Authorized Officer, manifestly shows the latent intention on the part of the Authorized Officer. Learned Senior Advocate Mr. Kavina submitted that issuance of notice by the Authorized Officer is not known to the election Rules. According to learned Senior Advocate Mr. Kavina, it was the petitioner who wanted to raise objection upon exclusion of his name from the preliminary voters list. Thus, issuance of notice by the Authorized Officer was not only proactive action, but smacks of malafide intention and predetermination of mind.Page 11 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined [9.3] Learned Senior Advocate Mr. Kavina submitted that the impugned order is not tenable in the eye of law as the same being perverse in nature. Learned Senior Advocate Mr. Kavina, to substantiate the said contention, submitted that while passing the impugned order, the authority has not only inappropriately considered the evidence on record produced by the petitioner, but also misinterpretated the bye laws of the petitioner - Society.
Learned Senior Advocate Mr. Kavina submitted that in the entire bye laws of the Society, nowhere it is prescribed that the jurisdiction of the Society would be limited to the particular village only. Learned Senior Advocate Mr. Kavina further submitted that interpretation with regard to bye laws of the Society is absolutely unjustified and it is thereby perversity on the part of the authority to hold that the petitioner - Society is not discharging its function in consonance with its own bye laws. Learned Senior Advocate Mr. Kavina, therefore, prayed this Court to quash and set aside the impugned order.
[9.4] According to learned Senior Advocate Mr. Kavina, while Page 12 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined passing the impugned order, the Authorized Officer has also committed a serious error so as to construe the provisions of amended Rules and that has resulted into serious miscarriage of justice.
[9.5] Learned Senior Advocate Mr. Kavina fervently submitted that the impugned order does not match with the test of well settled principles of natural justice. Learned Senior Advocate Mr. Kavina submitted that while passing the impugned order, heavy reliance was placed on the report dated 19th April 2025, however, copy thereof was never made available to the petitioner with a view to controvert the same. Learned Senior Advocate Mr. Kavina, therefore, submitted that the impugned order thereby deserves to be quashed and set aside for breach of the principles of natural justice. Learned Senior Advocate Mr. Kavina further submitted that the contents of notice dated 19th April 2025 and the order dated 1st May 2025 are different. Learned Senior Advocate Mr. Kavina submitted that by way of notice dated 19 th April 2025, the petitioner was directed to produce certain documents such as register of Resolution of Managing Committee and Annual Meeting Page 13 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined for last three years, Society's approved amended bye laws and the Society's contract undertaken between the Society and the shop owner for the year 2021 to 2025. Having produced all such documents, the authorities have considered other aspects those were not reflected in the show cause notice such as with regard to GST Certificate and its return about not dealing with the 1/3rd members and not dealing with its member in a crop i.e. Tobacco, for which, mainly the Society was registered. Learned Senior Advocate Mr. Kavina, therefore, submitted that while passing the impugned order, the authorities have extended the scope and that has also resulted into gross violation of the principles of natural justice as the petitioner could not make effective representation.
Learned Senior Advocate Mr. Kavina, therefore, requested this Court to quash and set aside the impugned order.
[9.6] Learned Senior Advocate Mr. Kavina submitted that by the action of the Authorized Officer in excluding the name of the petitioner from the voters list, a situation has been created to see that there shall be no election with regard to constituency pertaining to the Market Committee and thereby, the same can be Page 14 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined said to be an attempt to destroy the democratic structure and thus, this is a classic example of the design adopted by the Authorized Officer to pollute the upcoming election by excluding the qualified voters from the voters list in a wrongful manner.
[9.7] Learned Senior Advocate Mr. Kavina lastly submitted that the Authorized Officer has fragrantly violation the provisions under Rules 5, 7 and 8 of the Rules and thus, the impugned order deserves to be declared as ultra vires and accordingly, deserves to be quashed and set aside. Learned Senior Advocate Mr. Kavina submitted that while publishing the preliminary voters list, as envisaged under Rule 7 of the Rules, the respondents authorities have conducted a roving inquiry against the petitioner - Society without any power and excluded the petitioner - Society from the preliminary voters list without giving any opportunity of hearing, thus, from the very inception, preparation of the voters list is not in accordance with law and prescribed Rules.
[10] By making above submissions, learned Senior Advocate Mr. Kavina for the petitioner requested this Court to allow the Page 15 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined present petitions by quashing and setting aside the impugned order.
[11] Per contra, learned Senior Advocate Mr. B. S. Patel for the applicants - joining party, while supporting the impugned order, has made the following submissions:
[11.1] Learned Senior Advocate Mr. B. S. Patel for the applicants - joining party vehemently opposed the present petitions contending, inter alia, that the impugned order is perfectly justified as being passed in accordance with four corners of law and thereby, this Court, while exercising jurisdiction under Article 226 of the Constitution of India, may not interfere at this stage.
[11.2] Learned Senior Advocate Mr. Patel submitted that the Authorized Officer has an authority to inquire under Rule 7 of the Rules as he may deem fit, therefore, after inquiry, name of the petitioner was rightly not included in the voters list. According to learned Senior Advocate Mr. Patel, in the inquiry so held by the Authorized Officer, the petitioner has no right to be heard at that Page 16 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined stage. While preparing preliminary voters list, it is who the Authorized Officer to verify the details so sent to it by the respective Society and while verifying he can hold inquiry as he deems fit, therefore, at that stage, the petitioner has got no accrued right to have audience and / or right to be heard.
[11.3] Learned Senior Advocate Mr. Patel further submitted that normally, a person aggrieved by publication of preliminary inquiry under Rule 7 of the Rules can approach the Authorized Officer under Rule 8 of the Rules with proper representation and / or objection, however, in the instant case, it is the Authorized Officer who issued notice dated 19th April 2025 upon the petitioner
- Society by incorporating the sum and substance of the inquiry report dated 19th April 2025 and called upon the petitioner to respond the same with some other additional documents. Learned Senior Advocate Mr. Patel, thereafter, submitted that pursuant to the aforesaid notice dated 19th April 2025, the petitioner appeared before the authority by way of written reply in person and after hearing them, the impugned order was passed by the Authorized Officer and thereby, cannot be said to be breach of any provisions Page 17 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined of law as well as any breach of the principles of natural justice.
Accordingly, learned Senior Advocate Mr. Patel requested this Court to dismiss the present petitions.
[11.4] Learned Senior Advocate Mr. Patel further submitted that the petitioner appeared before the authority pursuant to the notice dated 19th April 2025 and submitted its objections with a request to include their name in the voters list. Therefore, according to learned Senior Advocate Mr. Patel, a full fledged hearing was taken place and in substance, the petitioner got an opportunity to make their case good before the Authorized Officer at Rule 8 stage, thus, it cannot be said that sufficient compliance of Rules 7 and 8 were not made by the authority before passing the impugned order. Learned Senior Advocate Mr. Patel submitted that in substance, Rules 7 and 8 have been complied with in its letter and spirit, therefore, the impugned order cannot be said to be faulted on that count.
[11.5] Learned Senior Advocate Mr. Patel further submitted that the Authorized Officer, after verifying the record and the Page 18 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined evidence produced on record, came to the conclusion that the petitioner is not acting as per the amended provisions of Section 11(1)(iii) of the Act. Learned Senior Advocate Mr. Patel submitted that it has been found by the Authorized Officer, upon evidence on record, that no banking transaction was undertaken by the petitioner and the figures reflected in the accounts are nothing, but a 'Hawala' entry. The Authorized Officer has also found that the petitioner - Society has not dealt with the 1/3 rd of its members for the past years. Learned Senior Advocate Mr. Patel, therefore, submitted that such are the findings recorded by the Authorized Officer and the same cannot be entered into by this Court under Article 226 of the Constitution of India, as the same requires leading of evidence, which can only be appreciated by the Special Officer, as envisaged under Rule 28 of the Rules.
[11.6] According to learned Senior Advocate Mr. Patel, present petitions may not be entertained by this Court in view of the availability of a statutory efficacious remedy by way of Election Petition before the Special Officer under the provisions of Rule 28 Page 19 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined once the election is over and in the said Election Petition, all the disputes with regard to entire election process can be raised and well be appreciated by the Special Officer under Rule 28. Learned Senior Advocate Mr. Patel, thus, prayed this Court not to entertain the present petitions in view of the availability of the alternative efficacious remedy, more particularly, serious findings of fact recorded by the Authorized Officer.
[11.7] Learned Senior Advocate Mr. Patel submitted that Rule 28 is the only effective remedy available to the petitioner even if the situation is so created that there is no election at all. According to learned Senior Advocate Mr. Patel, the word "Election" used in Rule 28 would include within its sweep not only the result of the election, but would also include the entire process right from the beginning of declaration of the election programme till its conclusion. Learned Senior Advocate Mr. Patel, accordingly, submitted that exclusion and inclusion in the voters list, being a part of the election process, can certainly be challenged before the appropriate authority under Rule 28 of the Rules by preferring Page 20 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Election Petition.
[11.8] Learned Senior Advocate Mr. Patel further submitted that exclusion and inclusion of name in the voters list shall not be considered as extraordinary and special circumstances for which the petition under Article 226 of the Constitution of India can be entertained, therefore, requested this Court not to entertain the present petition.
[12] By making above submissions, learned Senior Advocate Mr. Patel requested this Court to dismiss the present petition.
[13] Learned A.G.P. Mr. Nikunj Kanara for the respondents -
State authorities, while supporting the impugned order, has made the following submissions:
[13.1] Learned A.G.P. Mr. Kanara for the respondents -
State authorities, at the outset, raised the preliminary objection against the maintainability of the present petition in view of the availability of the alternative efficacious remedy as envisaged under Rule 28. Learned A.G.P. Mr. Kanara submitted that present petition Page 21 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined under Article 226 of the Constitution of India is not maintainable as the petitioner has got the efficacious remedy available under Rule 28, more particularly, in the present petition, serious disputed questions of facts exist and the same cannot be gone into by way of present petition under Article 226 of the Constitution of India.
However, on the other hand, all such contentions and disputed questions of fact can very well be appreciated by the Special Authority upon filing of Election Petition under Rule 28.
[13.2] Learned A.G.P. Mr. Kanara submitted that while passing the impugned order, by all means, the principles of natural justice came to be followed and the petitioner was given an opportunity to meet with the contents of the report as well as called upon to produce certain other documents and having produced the same on record, after consideration thereof, the impugned order came to be passed, thus it cannot be said that the impugned order was passed in violation of the principles of natural justice. Learned A.G.P. Mr. Kanara, without prejudice to the aforesaid contentions, submitted that as per Section 11(1)(iii) of the Act, the petitioner is not qualified to be included in the voters Page 22 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined list as the requirement of the amended section has not been fulfilled. Learned A.G.P. Mr. Kanara submitted that even the business of the Society is not in conformity with its own bye laws and therefore, considering the aforesaid cumulatively, the impugned order came to be passed by the Authorized Officer and therefore, the same cannot be said to be unjustified and / or against the provisions of law.
[14] By making above submissions, learned A.G.P. Mr. Kanara for the respondents - State authorities requested this Court to dismiss the present petitions.
[15] At the time of hearing of the present petitions, various decisions concerning the issue with regard to election came to be relied upon by both the parties and the same are hereby stated as under:
(1) Ukabhai Jivabhai Kanjaria vs. State of Gujarat reported in 2007 (2) G.L.H. 242 (2) Bhagat Chiragkumar Mukeshbhai vs. State of Gujarat Page 23 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined [R/Letters Patent Appeal No.398 of 2023 and allied appeals decided on 13th April 2023] (3) The decision of the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Sudhir Kumar Singh and others reported in (2021) 19 SCC 706;
(4) The decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorized Officer and Cooperative Officer (Marketing) reported in 2006 (1) GCD 211.
(5) The decision of the Division Bench of this Court in the case of Mohmed Javid Abdulmutlib Pirzada vs. State of Gujarat reported in 2023 (3) GLR 1755;
(6) The decision of the Division Bench of this Court in the case of Mehsana District Co-op. Purchase and Sales Union Limited vs. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Mandali Ltd reported in 1998(1) G.L.H. 170;Page 24 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined (7) The decision of the Division Bench of this Court in the case of Bhikhabhai Chanabhai Gajera vs. State of Gujarat [Special Civil Application No.14756 of 2010 decided on 8 th December 2010] (8) The decision of this Court in the case of Ghelabhai Nathabhai Patel vs. State of Gujarat reported in 1979(2) GLR 452;
(9) The decision of this Court in the case of M/s. B. Govindbhai and Co. vs. State of Gujarat [Special Civil Application No.15969 of 2024 decided on 11th December 2024] [16] I have heard learned advocates appearing for the respective parties at length and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated hereinabove.
Page 25 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined [17] Having heard the learned advocates appearing for the respective parties and having gone through the material produced on record, the following questions those falls for consideration of this Court are:
(i) Whether in the facts and circumstances of the case, by virtue of an order passed by the Authorized Officer excluding the name of the Society from the voters list of the constituency of the Marketing Society, the situation arises of no election, in that event, Society / Voter, who has been excluded from the voters list, can take recourse of statutory remedy, as envisaged under Rule?
(ii) Whether the impugned order dated 1st May 2025 passed by the Authorized Officer is said to be illegal being passed in violation of the principles of natural justice and dehors the Rules?
[18] In my view, determination of question No.(ii) would only arise if this Court holds the question No.(i) in negative. Thus, question No.(i) deserves thorough and careful consideration.
Page 26 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Therefore, it would be profitable to understand the settled proposition with regard to scope and ambit of writ petition under Article 226 of the Constitution of India in the context of dispute relating to election. Thus, I would like to refer the decisions cited by the learned advocates appearing for the respective parties with regard to entertainability of this petition under Article 226 of the Constitution of India vis-a-vis Rule 28.
[19] The Division Bench of this Court, in the case of Ukabhai Jivabhai Kanjaria vs. State of Gujarat and others reported in 2007(2) G.L.H. 242, in para 11, has held as under:
"11. In the facts of the present case, the statute specifically provides for election of one representative of the co-operative marketing societies situate in the market area and holding general licences, to be elected from amongst the members of such societies by the members of the managing committees of such societies. The impugned order of the Election Officer is manifestly in breach of statutory law has prevented holding of elections to the said constituency No.(iii) and it is possible to correct the said defect and if judicial intervention can subserve the progress of election and facilitates the completion of the election for constituency No.(iii), there would be no bar to such judicial intervention. In fact, if impugned order of respondent No.3 is allowed to stand, there will be no election to constituency No.(iii) from which one representative is to be elected from amongst the members of the two co-operative marketing societies situate within the area of APMC Bhatia by Page 27 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined the members of the managing committees of the said two co- operative marketing societies."
[19.1] In the aforesaid case, facts were that the petitioners therein were the members of the Society who submitted their nomination forms. However, on scrutiny, Officer had rejected the nomination forms of all the three candidates on the ground that the Society has not passed any resolution nominating those candidates to contest the election.
[19.2] The Division Bench of this Court noting the facts that on rejection of the nomination forms, there will be no representation for the particular constituency and held that judicial intervention will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election.
[20] The Division Bench of this Court, in the case of Shrutbandhu H. Popat vs. State of Gujarat [Special Civil Application No.6482 of 2007 and allied petition decided on 11 th May 2007], in paras 26, 27, 28, 29 and 30, held thus as under:
Page 28 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined "26. The present case certainly falls in the category of extraordinary situations wherein the writ jurisdiction will have to be exercised for the welfare of the constituency of the traders and for strengthening the democracy. The Resolution dated 20-
01-2007 was a clear attempt to subvert the fair election process and, therefore, this Court merely proposes to correct the progress of the election proceedings by removing the attempt of the outgoing office bearers of the APMC to subvert the election process by creating an artificial majority in the constituency of traders holding general licences under clause (ii) of sub-section (1) of Section 11 of the APMC Act.
27. We may now deal with the decision of the Full Bench heavily relied upon by Mr. B. S. Patel for the APMC in Daheda Group Seva Sahakari Mandali Limited (supra) decided on 27.4.2005. The following questions were referred to the Full Bench in the context of elections to the APMCs and the scope of Rule 28 of the APMC Rules constituting the Election Tribunal for deciding disputes relating to elections to APMCs:
I. Whether a person whose name is not included in the Voters' List can avail provisions of Rule 28 of the rules by filing election petition?
II. Whether the remedy under Rule 28 can be termed to be efficacious remedy?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the Voters' List?
After considering various decisions of the Apex Court and also the decisions of various Benches of this Court, the Full Bench answered the Reference as under:Page 29 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined I. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
II. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
III. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and / or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.
28. Reading the entire decision of the Full Bench reveals that the question in the context of which the Full Bench was called upon to consider the controversy about maintainability of the petition was whether a member of the Managing Committee of a particular cooperative society was entitled to vote in his capacity as a member of the managing committee of such cooperative society and not merely by virtue of inclusion or deletion of his name in/from the voters list. The contention of the authorities in the said case was that the election petition under Rule 28 provides remedy for resolution of all facets of the dispute as to whether the name of a person being the member of the Managing Committee of a particular cooperative society should be permitted to participate in the election if he ceases to hold the post on the date of the election program. Similarly the question whether a particular cooperative society is dispensing agricultural credit or not would be ordinarily be a disputed question of fact. There cannot, therefore, be any dispute with Page 30 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined the proposition that ordinarily the exclusion or inclusion of names from/in the voters' list can be challenged in an election petition under Rule 28 of the Rules, after the elections are held. But the Full Bench also held that the powers of this Court under Article 226 of the Constitution may be exercised in case of extraordinary or special circumstance such as where the order is ultra vires or nullity and/or ex-facie without jurisdiction. The Full Bench also followed the principles laid down by the Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216 and Manda Jaganath vs. K S Rathnam, AIR 2004 SC 3600 laying down that any decision in the election process is open to judicial review on the ground of mala fide or arbitrary exercise of powers and that special situation justifying exercise of writ jurisdiction would mean correcting an error having the effect of interfering in the free flow of the scheduled election or error having the effect of hindering the progress of election.
29. After the above decision of the Full Bench rendered on 27.4.2005, in Pundlik vs. State of Maharashtra, decided on 25.8.2005 and reported at 2005 (7) SCC 181, the Apex Court held that though preparation of list of voters is one of the stages of election and that normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters, but such action must be in accordance with law. In the said decision, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Santha vs. State of Maharashtra, 2001 (8) SCC 509. In Shri Sant Sadguru's case objections against publication of provisional electoral roll of the Society were filed which were considered by the Collector and disposed of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the election program and the Apex Court held that the High Court should not stay continuation of the election process even though there may be some alleged irregularity or breach of the Rules while preparing the electoral roll. However, in the Pundlik case, the Page 31 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined original petitioner had taken immediate action on receiving the fax message from the Collector.
30. In the instant case also, soon after the publication of the preliminary list of voters on 13.3.2007 which was merely based on issuance of licences including issuance of 293 licences by the licensing sub-committee on 20.1.2007 after declaration of the date of election on 10.1.2007 and declaration of the first election program on 18.1.2007, the petitioner has challenged the resolution dated 20.1.2007 upon coming to know about issuance of fresh licences to a large number of persons, which fact came to the notice of the petitioners only upon publication of the preliminary list of voters in March 2007. Apart from the present challenge, another aggrieved person preferred an appeal before the Director of Agricultural Marketing and Rural Finance. During pendency of the said appeal, the aforesaid official reports dated 23.3.2007 and 29.3.2007 critical of the impugned resolution dated 20.1.2007 were received, but the Director is not inclined to take any decision in the said appeal. In absence of any other efficacious alternative remedy against the impugned resolution dated 20.1.2007 after commencement of the election process and in view of the above circumstances, this Court is constrained to exercise its extra-ordinary discretionary jurisdiction to intervene at this stage for the reasons already indicated hereinabove.
Various facts highlighted in the Report dated 23-03-2007 of the Official Committee headed by Co-operation Officer (Administration) and also the subsequent Report dated 29-03- 2007 of the District Registrar of Co-operative Societies to the Director of Agricultural Market and Rural Finance, which are already referred to hereinabove, are sufficient to come to the conclusion that the power of issuing the licences to a large number, hundreds of persons, was exercised by the licencing Sub-Committee in an arbitrary and mala fide manner only to give artificial majority to the outgoing office bearers of the Market Committee.
Page 32 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined : O P E R A T I V E O R D E R ::
The petitions are allowed in the following terms :-
(a) The resolution dated 20.1.2007 (Annexure C) passed by the APMC, Kalavad for granting general licences for traders' to 293 persons is quashed and set aside as illegal and a fraud on the election process.
(b) The persons who were granted general licences for traders on or after 10.1.2007 shall not be permitted to participate in the elections to the Agricultural Produce Market Committee, Kalavad for the constituency of traders holding general licenses under clause (ii) of sub-section (1) of Section 11 of the APMC Act, 1963.
(c) The persons who were granted general licences for traders prior to 10.1.2007 shall not be prevented from participating in the elections to APMC, Kalavad and voting at the said elections on the ground that the licences were granted on the eve of elections or on the ground that the licences were granted to the relatives of the members of the APMC or on the ground that the market cess fee was not paid by such persons. The orders of the Authorised Officer and Cooperative Officer (Marketing) in the office of the District Registrar of Cooperative Societies, Jamnagar in relation to the list of voters for the constituency of traders holding general licences in the area of the APMC Kalavad under clause (ii) of sub-section (1) of Section 11 of the APMC Act, 1963 shall accordingly stand modified.
(d) The elections for the constituency of traders holding general licences in the market area of APMC Kalavad, Jamnagar shall be conducted on the above basis.
(e) It is clarified that once the elections to APMC, Kalavad are held and the results are declared, it will be open to any aggrieved party to challenge the election before the Election Tribunal constituted under the APMC Rules, 1965. It will also Page 33 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined be open to the aggrieved party to raise all available contentions including the contention about eligibility to vote by the persons whose names were included in the final list of voters for the constituency of traders holding general licences, as modified by this order, but no contention shall be permitted to be raised which runs counter to the above directions.
(f) It is also clarified that this decision does not preclude the persons who were granted licences pursuant to the resolution dated 20.1.2007 of the licensing sub-committee of APMC, Kalavad from applying afresh and on such applications being made, the APMC Kalavad to be constituted after the elections are held on 5.6.2007 or its licensing sub-committee, if so authorised, shall duly consider the same in accordance with law.
Rule is made absolute in each petition in the above terms."
[20.1] In the aforesaid decision, the Division Bench of this Court has held that the facts of the said case falling in the category of extraordinary situation. The glaring fact which was noted by the Court that new licences were issued in a surreptitious manner on 20th January 2007 and after the election program was declared on 18th January 2007. Thus, the Court has held the action as clear attempt to subvert the fair election process and as a corrective measure, the powers under Article 226 of the Constitution of India was exercised.
Page 34 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined [21] The Division Bench of this Court, in the case of Ishwarbhai Narayanbhai Patel vs. State of Gujarat [R/Letters Patent Appeal No.1821 of 2019 decided on 22nd November 2021], had an occasion to deal with Rule 28 of the APMC Rules.
The relevant observations are hereby quoted as under:
"ALTERNATIVE REMEDY PROVIDED BY RULE 28 OF THE RULES, 1965:
61 In the present litigation, it was vociferously argued before us that as the learned Single Judge substantially rejected the writ application on the ground of alternative remedy available as provided under Rule 28 of the Rules, 1965, the present appeals may not be entertained.
62 Rule 28 of the rules, 1965 reads thus:
"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 Page 35 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined (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."
63 As early as in 1986, in the Patan Proper Fal and Shak Bhaji Kharid Vechan Sahkari Mandli Ltd. v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Sahkari Mandli Ltd. [1986 GLH 430], a Division Bench of this Court pronounced as under:
"28. ..........In that view of the scheme of the Act, we are of the opinion that the preparation of electoral roll is an integral part of the process of election. If that is so, the question as to whether the roll should be modified at the instance of persons claiming to be voters or at the instance of persons objecting to the inclusion of the names of some persons in the voters' list is a matter relating to election, and having regard to the fact that it is a right conferred under the Act for which a special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finality in the matters pertaining to various stages of election and therefore, having regard to the recognized principle in the matter of public importance that election should be concluded as early as possible according to the time schedule and all controversial matters as well as disputes arising out of the election including the right to vote or stand as a candidate should be postponed till after Page 36 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined the elections are over so as to avoid impediment or hindrance in the election process, does not arise (sic). In that view of the matter, therefore, we are of the opinion that this Court should not exercise the jurisdiction under Art 226 of the Constitution by interfering at this stage with the election process. In the view which we have taken on this first question, it is not necessary to go into the second question of each of these appeals."
64 In 1998, a learned Single Judge of this Court adopted the following view in the Prahladbhai Shivram Patel and Others v. Director of Agriculture Marketing and Rural Finance and Others [1998(1) GLH 95]:
"Now, if the above principles laid down by the Division Bench of this Court are considered, then it would be quite clear that in the first principle, it has been clearly laid down that though the Court should be slow in exercising jurisdiction under Article 226 and 227 of the Constitution, if the impugned order is ultra vires order or is a nullity as being ex facie without jurisdiction, the question of exhausting alternative remedy could hardly arise. The same view is also expressed by the Division Bench of this Court in the case of Mahesana District Co- operative Sales and Purchase Union Ltd. vs. State of Gujarat, 1988(2) GLR, 1060."
65 In the same year, a Division Bench of this Court in the case of Mehsana District Co-op. Purchase and Sales Union Ltd. v. Dadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Others [1998 (1) GLH 170] respectively partly favoured the views taken by the learned Single Judge and held that the alternative remedy provided by Rule 28 was, in the facts of the cases before the Court, illusory and ambiguous. The authorized officer had illegally deleted the names of the petitioners from the final voters' list without giving Page 37 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined an opportunity to explain as to why their names should not be deleted. When no remedy is provided and the impugned act was illegal and void, the Court should not be hesitant to exercise the extraordinary power vested in it under Article 226 of the Constitution. The Court, however, cautioned that, in the matter of election, the Court should exercise the discretion with great caution and circumspection and the election process already initiated should not be altered so lightly to the disadvantage of so many other persons.
66 In 2004, in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance Gandhinagar and Others [2004 (3) GLR 2718], a Division Bench of this Court took the view that, in view of the efficacious remedy provided in Rule 28 and since election process was at a very advance stage, interference with the election process was not warranted. It was opined that entertaining the petitions at that stage would, in view of the procedure involved in hearing of the petitions and the proximity of the voting dates, would have the effect of interrupting, obstructing or protracting the election proceedings. The nature of issues arising from the decisions of the election officers on the acceptance or rejection of nomination papers would require enquiry into the questions of fact. Therefore, following the ratio in Election Commission of India v. Ashok Kumar and Others [AIR 2000 SC 2979], the Court opined that judicial remedy was required to be postponed till after completion of the proceeding in election.
67 In the year 2005, another Division Bench, in view of sharp conflict in different judgments, opined that the matters needed hearing by a Larger Bench to settle all the disputes once and for all. An order therefor was made on 17.3.2005 in the Special Civil Application Nos.2489 to 2496 of 2005. The matters so referred were decided by a Full Bench of this Court in Daheda Group Seva Sahkari Mandli Limited v. R. D. Rohit, Authorized Officer & Co.operative Officer (Marketing) [2006 (1) GCD 211 (FB)]. After extensive reference to the relevant provisions and the precedents, the Full Bench declared Page 38 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined the legal position in the following terms:
"30. The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit. Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter of right that he is entitled to invoke the jurisdiction of this court.
"31. .... .... ....
"31.1. .... .... ....
"32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation (sic) in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules Page 39 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined while preparing the electoral roll.
"32.1. ..... ..... ....
"33. In view of the above discussion, we answer the Reference as under:
(i) A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
(ii) As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
(iii) Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules." (underlines added)
68 In Shrutbandhu H. Popat v. State of Gujarat and Others [2007 (3) GLR 1942], the Court found that the resolution of the license sub-committee for granting as many as 293 licenses was not only illegal but also a fraud on the election process. The Court found the case to be falling in the category of extraordinary situations wherein writ jurisdiction had to be exercised for the welfare of the constituency of the traders and for strengthening the democracy. The Court also made the following pertinent observations:
Page 40 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined "12. While examining any challenge to the voters' list, the Election Tribunal will have the jurisdiction to examine only those questions which the election officer had the authority to examine. The next question, therefore, would be whether the election officer has any jurisdiction or authority to go behind the licences granted by the APMC or its licence sub-committee. An analysis of the scheme of the relevant provisions of the APMC Act and the Rules does indicate that the Election Officer or the Election Tribunal are not vested with any jurisdiction to go behind the general licences for traders issued by the APMC or its authorised sub-committee and that the matters pertaining to grant, renewal, refusal, suspension and cancellation of licence are governed exclusively by the provisions of Section 27 of the Act read with Rule
56. ........................... Hence, if APMC grants licence on the eve of elections, very little time will be available to any person intending to challenge the grant of licence on the ground that the licence has been obtained through a wilful misrepresentation or fraud or that the licensee has been convicted of any offence under the Act or even in case of renewal of licence that the licensee has committed a breach of any terms and conditions or restrictions imposed by the licence........................." (underlines added) After the above observations and reference to the ratio of above Full Bench decision, the Court distinguished the Full Bench decision on facts and taking support of the Supreme Court decision in Pundlik v. State of Maharashtra decided subsequently and reported at 2005 (7) SCC 181, allowed the petitions so as to set aside the resolution for granting general license to 293 traders and injuncted them from participating in the election to APMC, Kalavad, with other detailed directions regarding the conduct of the election.
69 In Ukabhai Jivabhai Kanjaria v. State of Gujarat and Page 41 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Others [2007 (2) GLH 242], it was contended before the Division Bench that on rejection of three nomination forms, not a single candidate remained in the field and there would be no representation for a particular constituency. The Court, after reference to the Election Commission of India v. Ashok Kumar (supra), adopted the reasoning as under:
"10. It is clear from the above decision that judicial intervention will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. It is also held that where the statutory authority has acted in breach of law, without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings."
70 Again in Bharatbhai Dhulabhai Patel & Another v. Director and Others [2007 (2) GLH 719], a Division Bench intervened during the process of election on the basis that general licenses to the respondent cooperative societies were issued after the date of declaration of election. The Court observed:
"9. In our judgment dated 16.7.2007 in the matter of elections to APMC, Junagadh, we have indicated the underlying rationale for laying down the principle that the registration of the co-operative society and the license must have been obtained prior to the date of declaration of elections. Looking to the provisions of Section 26 of the APMC Act providing for duties of Market Committee, it is Page 42 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined obvious that the voters in all the three constituencies must have had some experience of operating within the market area of APMC, either dispensing agricultural credit, trading/marketing and, therefore, registration under the Co-operative Societies Act / license from the APMC must have been obtained before the date of declaration of elections, only then it can be said that by the relevant date (that is the date on which the names are to be communicated by the APMC/co-operative societies to the Authorized Officer under sub-rule (1) of Rule 7) such persons would be having some experience in the concerned area so as to enable them to elect the members of the APMC for the purpose of discharging duties referred to in Section 26 of the Act."
71 In Rajendra Dalichand Koticha and Others v. State of Gujarat and Others [2007 (2) GLR 1642], the Division Bench was satisfied, in the facts and circumstances of the case, that intervention of the Court was necessary for the welfare of the constituency and impugned decision of the election officer rejecting nomination forms was set aside. The election officer was directed to publish revised final list of candidates including the petitioners for the constituency of traders holding general licences. The polling was, however, directed to be held as scheduled.
72 In Kalubhai Ranabhai Akabari (supra), the election to APMC, Junagadh, was announced on 5th April 2007 and scheduled date of polling was 17th July 2007. In the judgment declared on 16th July 2007, a Division Bench of this Court entertained the controversy regarding eligibility of members of the Managing Committee of three Cooperative Societies to vote at an election. The Court concluded as under:
"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 Page 43 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined 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 Page 44 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined 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."
73 In the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. And Another v. State of Gujarat and Others [2009 (3) GLH 380] while the election programme was already declared on 24.7.2009, the Court took notice of the fact that applications of the petitioners for renewal of their licenses were made on 13.2.2009 and taken up for consideration by the APMC on Page 45 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined 11.4.2009, long prior to the declaration of the election programme. While the APMC had rejected the application, by the appellate order, the Director had directed the APMC to grant renewal of traders license for the years 2008-09 and 2009-10. Therefore, the facts of that case were distinguished from the facts in Shrutbandhu H. Popat's case (supra) and the petition was allowed in terms of the interim order dated 13.08.2009 directing inclusion of the petitioner's name in the provisional voters list to be published on 16.08.2009.
74 All the aforesaid judgements of this Court came to be considered by a Division Bench of this Court in the case of Patel Talshabhai Purabhai and others vs. Authorised Officer and Auditor Grade - I and others in the Special Civil Application No.2302 of 2011 and allied petitions. We quote the relevant observations:
"10. Before embarking upon weighing rival contentions, it is necessary to keep in view and refer to the following pertinent legal dicta:
(a) Constitution Bench of the Supreme Court in P.Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578] held:
"28. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained is that these decisions, though two- or three-Judge Bench decisions, run counter to that extent to the dictum of the Constitution Bench in A.R.Antulay case and, therefore, cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well-settled principle of precedents which has crystallized into a rule of law is that a bench of lesser strength is bound by Page 46 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. .....
29. .......In conclusion we hold:
(1) .... .... ....
(2) ... .... ....
(3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made."
(b) In the matter of challenge to election of Bar Council of Delhi, three-Judge Bench of the Apex Court in Bar Council of Delhi and others v. Surjeet Singh [(1980) 4 SCC 211] , observed:
"18. .........At page 1704, column 1, Krishna Iyer J., speaking for the Court said:-
"One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms."
But he added:- (SCC 496, para 3.):
"While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition."Page 47 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Finally the view expressed in K. K. Shrivastava's case is :-
"There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise."
We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at all". (underlines added)
(c) In a recent decision in Official Liquidator v. Dayanand and others [(2008) 10 SCC 1], the Apex Court has made following pertinent observations:
"84. In State of Bihar v. Kalika Kuer [(2003) 5 Page 48 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined SCC 448], the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.
"91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This Page 49 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
"92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in UP State Electricity Board vs. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial for as nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
(d) A Division Bench of this Court (Coram: G.S.Singhvi, J. (as His Lordship then was) and P.B.Majmudar, J.) in Thakore Shanabhai Gedalbhai v. State Election Commission [2005 (3) GLH 686 ], has held, in the context of Article 243-0 of the Constitution:
"31. On the basis of above discussion, we hold that :
(I) The bar contained in Article 243-O of the Constitution against the court's interference in the electoral matters is absolute and a petition filed under Article 226 of the Constitution questioning the election to a Panchayat cannot be entertained Page 50 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined except after determination of the dispute in an Election Petition filed in accordance with the provisions of the law enacted by the State Legislature.
(II) A petition filed under Article 226 of the Constitution challenging the illegal or improper rejection or acceptance of nomination paper for an election to the Panchayat cannot be entertained by invoking conclusion No.3 of paragraph 32 of Supreme Court's judgment in Ashok Kumar's case (supra) because any direction by the High Court in such matters would impede the election process and delay finalization of the election.
(III) A petition filed under Article 226 of the Constitution involving challenge to the orders passed or action taken after the commencement of election process cannot be entertained except where direction is sought for expediting the process of election.
(IV) An illegal or improper rejection of nomination for election to the Panchayat can be challenged by filing an Election Petition under Section 31 of the Panchayats Act.
10.1 The APMCs having become socially, economically and politically important units of local authorities and due to intense political rivalries raging therein, the elections thereof have become rich sources of litigation. The magnitude of the problem is indirectly indicated by this Court in Kalubhai Ranabhai Akabari (supra) in the following terms:
"26. We have been finding that in spite of the Page 51 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined 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."
11. Going strictly by the rules of precedents, stare decisis and judicial discipline, the legal issue of maintainability of the petitions is squarely covered by clear propositions laid down by Full Bench of this Court in Daheda Group Seva Sahkari Mandli Ltd. (supra). Although the power and discretion vested Court by virtue of Article 226 of the Constitution in the High could not be taken away by any judgment, clear guideline is provided for the exercise thereof specifically in the cases of exclusion or inclusion of names in the voters' list of an APMC. It is laid down in no uncertain terms by the Full Bench that exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstance warranting interference by Page 52 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined this Court under Article 226 of the Constitution and such questions are to be decided in an election petition under Rule 28 of the Rules. It is also categorically laid down that the authorities under Rule 28 have wide powers to cancel, confirm and amend the election and to direct holding of fresh election and hence the remedy under Rule 28 is an efficacious remedy. Therefore, it is practically impossible and not open for this Court to take a view different from the aforesaid propositions of law."
[21.1] In the aforesaid decision, the Division Bench of this Court, in a very elaborate manner, discussed the issue of alternative remedy under Rule 28 of the Rules, 1965. For the sake of convenience, in the aforesaid decision, it is held thus as under:
"75 We are of the view having regard to the facts of the present case that we should not decline to entertain the present appeals only on the ground of alternative remedy as provided in Rule 28 of the Rules, 1965. We go by the dictum of the Full Bench as laid in the case of Daheda Group Seva Sahkari Mandli Ltd (supra), wherein the Full Bench held that although a petition under Article 226 of the Constitution of India is maintainable despite availability of an alternative remedy, yet the powers are to be exercised in the case of extraordinary or special circumstances such as where the order is ultra vires or nullity and / or ex facie without jurisdiction.
76 In the present litigation, the issue is not just about exclusion or inclusion of names in the voters list. The central question involved in the present litigation is with regard to the interpretation of the phrase "primary agricultural credit cooperative societies dispensing agricultural credit in the market area". This phrase contained in Section 11 of the Act, 1963 goes Page 53 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined to the root of the matter while deciding the rights of the parties.
77 Thus, where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, ordinarily, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute, it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right; instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art.226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily, the remedy provided by the statute must be followed before the authority designated therein. But there may be cases like the one on hand where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies.
78 On the issue of alternative remedy being available to the appellants, the recent pronouncement of the Supreme Court in the case of Radha Krishan Industries vs. State of Himachal Pradesh and others reported in (2021) 6 SCC 771 clinches the issue. In the said decision of the Supreme Court, the following observations are important:
24. The High Court has dealt with the maintainability of the petition under Article 226 of the Constitution.
Relying on the decision of this Court in Assistant Commissioner (CT) LTU, Kakinada and others v Glaxo Smith Kline Consumer Health Care Limited [AIR 2020 SC 2819], the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. However, certain exceptions to this "rule of alternate remedy" include where, the statutory authority has not Page 54 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure; or has resorted to invoke provisions, which are repealed; or where an order has been passed in violation of the principles of natural justice. Applying this formulation, the High Court noted that the appellant has an alternate remedy available under the GST Act and thus, the petition was not maintainable.
25 In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corporation v. Registrar of Trademarks, Mumbai [(1998) 8 SCC 1] ("Whirlpool"), a two judge Bench of this Court after reviewing the case law on this point, noted:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the Page 55 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." (emphasis supplied) 26 Following the dictum of this Court in Whirlpool (supra), in Harbanslal Sahnia v Indian Oil Corpn. Ltd. [(2003) 2 SCC 107], this court noted that:
"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]. The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent Page 56 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." (emphasis supplied)
27 The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, Page 57 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.
28 These principles have been consistently upheld by this Court in Seth Chand Ratan v Pandit Durga Prasad [(2003) 5 SCC 399], Babubhai Muljibhai Patel v Nandlal Khodidas Barot [(1974) 2 SCC 706] and Rajasthan SEB v. Union of India [(2008) 5 SCC 632], among other decisions."
79 Thus, in a case where the statutory authority has not acted in accordance with the provisions of law or acted in defiance of the fundamental principles of judicial procedure, or has resorted to invoke provisions which are repealed, or where an order has been passed in violation of the principles of natural justice, then, in such circumstances, the Writ Court should not hesitate to entertain the writ application despite the fact that the aggrieved person has an efficacious alternative remedy available in law. In the case on hand, as discussed above, the authorized officer has completely misread Section 11 of the Act, 1963, and the entire impugned order is based on such misinterpretation of Section 11 of the Act, 1963."
[21.2] In the aforesaid case, the Division Bench of this Court has, although after considering the series of judgments, held that normally determination of dispute arising out of election should be made to the forum provided in the statute, as the right to Page 58 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined vote, contest or dispute election is neither a fundamental or common law, but it is a statutory right regulated by the statutory provisions. But, noting the peculiar facts of the said case, according to the Division Bench, the same being exceptional and extraordinary in nature, by-passing of the alternative remedy can also said to be justified.
[22] Yet in another decision of the Division Bench of this Court, in the case of Bhagat Chiragbhai Mukeshbhai vs. State of Gujarat [R/Letters Patent Appeal No.398 of 2023 and allied appeals decided on 13th April 2023], has held thus as under:
"8. Dealing with the first ground which has been emphatically argued on behalf of the appellants about the availability of alternative remedy under Rule 28 of the APMC Rules is concerned, as held by the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (Supra), it has been held that in ordinary circumstances, the person should avail alternative remedy under Rule 28 of the Rules by filing election petition, however, has held in paragraph 33 of the said decision which reads as under :-
"33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.Page 59 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
From the above referred observations of the Full Bench, it is clear that a writ petition under Article 226 of the Constitution of India is maintainable if the order is ultra vires or nullity and/or ex-facie without jurisdiction.
9. This judgment in the case of Daheda Group Seva Sahakari Mandali Limited (Supra) was considered by the Division Bench in the case of Shrutbandhu H. Popat (Supra) and has discussed about the jurisdiction of the Officer to go behind the license granted by the APMC or its License sub-Committee. Dealing with Section 11 of the Act, it has been held that the Officer has limited power whether they were traders holding general license or not. In paragraphs 12 and 13 of the said decision, it has been specifically held which reads as under :-
"12. While examining any challenge to the voters' list, the Election Tribunal will have the jurisdiction to examine only those questions which the election officer had the authority to examine. The next question, therefore, would be whether the election officer has any jurisdiction or authority to go behind Page 60 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined the licences granted by the APMC or its licence sub-committee. An analysis of the scheme of the relevant provisions of the APMC Act and the Rules does indicate that the Election Officer or the Election Tribunal are not vested with any jurisdiction to go behind the general licences for traders issued by the APMC or its authorised sub-committee and that the matters pertaining to grant, renewal, refusal, suspension and cancellation of licence are governed exclusively by the provisions of Section 27 of the Act read with Rule 56. Such disputes can only be decided by the APMC and finally by the Director/State Government under Section 27 read with Rule 56. Hence, if APMC grants licence on the eve of elections, very little time will be available to any person intending to challenge the grant of licence on the ground that the licence has been obtained through a wilful misrepresentation or fraud or that the licensee has been convicted of any offence under the Act or even in case of renewal of licence that the licensee has committed a breach of any terms and conditions or restrictions imposed by the licence. Rule 56 of the APMC Rules provides that any person desiring to obtain a licence to do business as a trader or a general commission agent in agricultural produce in any market area or part thereof has to make a written application in such form as the APMC may determine. Thus all the information as required by the form will have to be furnished by the applicant along with the fees prescribed by the market committee. On receipt of such application, the market committee is expected to make necessary inquiries which would also mean that as per sub-rule (3) of Rule 56, the APMC or its licensing committee has to form an opinion that the applicant is not insolvent, that the applicant's operations in the market area are likely to further efficient working of the market and that the operations of the applicant are not likely to impede the smooth working of the market under the control of the APMC. The APMC or its licensing sub- committee having powers delegated to it under Section 25 is thus not to grant licences merely on applications being made and the prescribed fees of Rs.100 or maximum Rs.200 being paid by the applicant. When such licences are granted in hundreds even after commencement of the election process upon Page 61 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined declaration of the date of elections, it will be impossible for any authority to verify before finalization of the voters list for the ensuing elections all the claims and counter claims about the genuineness of each applicant's so-called desire to carry on his business or about the factual aspect whether persons included in the list of voters are really carrying on trading activities in the agricultural commodities concerned in the APMC area. At this stage, we may also record the submission of the learned Addl. Advocate General 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 as reflected in para 5 of the order dated 27.2.2007 in Special Civil Application No.5029 of 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."
Considering the time frames provided for in Section 27 and Rule 56, when a person makes an application under the said provisions for general licence for traders, the APMC or its licensing committee would be expected to take some time in making genuine scrutiny of the application and if there are a large number of such applications, the APMC would naturally take about a month's time to make such scrutiny. If the APMC has granted or renewed a licence and another person is aggrieved by such grant or renewal of licence, his remedy is to move the market committee under subsection (3) of Section 27 to cancel the licence on any of the grounds indicated in the said sub-section. The market committee will then give reasonable opportunity to the parties and then take a decision in the matter. In case the APMC accepts the representation for cancellation, then the person in whose favour licence was issued may approach the Director of Agricultural Marketing and Rural Page 62 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Finance under sub-section (4) of Section 27 and then the Director would have to give a reasonable opportunity of hearing and decide whether to suspend or cancel any licence granted or renewed by the APMC or its delegate licensing sub-committee. If the APMC refuses to grant or renew a licence, the aggrieved applicant has his remedy under sub-section (5) of Section 27 to move the Director within a period of one month from the date of refusal. In either case, the Director would thereafter be expected to take at least about two months to decide because the Director of Agricultural Marketing and Rural Finance is in charge of the entire administrative machinery supervising the implementation of the APMC Act and the Rules in respect of as many as 182 APMCs in the entire State where business worth thousands of crores is being carried on in various agricultural commodities. Hence, the time gap between the date of grant/renewal or refusal of general licence for traders under Section 27(1) read with Rule 56(1) and the date when the APMC has to send the list of voters to the Election Officer under sub-rule (1) of Rule 7 would have to be a period of at least 4 to 6 months, if disputes about grant, renewal or refusal of licence have to be decided by the competent authority before preparation of the voters list.
13. We find considerable force in the submissions of Mr Mihir Joshi, learned Additional Advocate General and the learned counsel for the petitioners that the remedy provided by Rule 28 of the Rules is limited to the extent that election officer and the Election Tribunal will only examine the challenge to exclusion or inclusion of certain persons in the list of voters for the constituency of traders holding general licences under clause (ii) of sub-section (1) of Section 11 of the Act only with the limited aspect whether they were traders holding general licences. The Election Tribunal is not vested with any jurisdiction to examine whether the licence was granted in accordance with the relevant provisions of the Act and the Rules. On the contrary, the matter is to be decided only by the APMC and the Director under the provisions of sub-sections (4) and (5) of Section 27 of the Act. In the election petition under Rule 28, there cannot be any Page 63 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined collateral challenge to the grant, renewal, refusal, cancellation or suspension of general licences of traders."
10. Further, in the case of Kanubhai Manibhai Patel (Supra), this Court has dealt with similar provisions of Gujarat Co- operative Societies Act, 1961 and held that a challenge of a membership of a delegatee as a member of the Society may be subject matter of other proceedings, but that issue cannot be decided by Election Officer at the time of scrutiny of nomination under similar Rule."
[22.1] In the aforesaid decision, the learned Single Judge has quashed and set aside the order passed by the Authorized Officer by which the name of some of the Members were removed from the voters list accepting the objection that those are not agriculturists as per the bye laws of the APMC. The Division Bench of this Court, against the said order, has approved the order passed by the learned Single Judge exercising its powers under Article 226 of the Constitution of India without relegating the party to the alternative remedy as envisaged under Rule 28 of the Rules. However, it is important to note at this stage that before the Division Bench in the aforesaid case, the learned Government Pleader has admitted that the Authorized Officer has travelled beyond the jurisdiction while scrutinizing the voters list. Thus, the Page 64 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined said decision is based on admission on the part of the learned Government Pleader that the order passed by the Officer is in the nature of exceeding jurisdiction.
[23] The Division Bench of this Court, in the case of Mohamed Javind Abdulmutlib Pirzada vs. State of Gujarat reported in 2023 (3) GLR 1755, has held thus as under:
"11. Keeping in view of the aforesaid binding decision of the full bench of this Court, we are in complete agreement with the view taken by the learned Single Judge. At this stage, we may clarify that in view of the settled proposition of law, when statue has created remedy to redress grievance, it is always permissible for a person while invoking same to raise all permissible contentions in accordance with law, we also clarify here that since specific remedy under the statute is available as indicated above, the issue of jurisdiction namely whether authorized officer was justified in entertaining objections also can be raised before said authority and we expect that same will be examined by such authority in its proper perspective and record a finding. Since learned Single Judge has also opined similarly, nothing on this issue is tried to be as raised before us by the learned counsel appearing for the appellants. We make it clear that we have not expressed any opinion on it and leaving it open for the appellants to raise the same before appropriate authority, if they choose to do so under Rule 28, we are not inclined to entertain this appeal. Further, it is not possible to arrive at a definite conclusion as to whether opportunity was given or not to the appellants since it is bare assertion by way of averments and as such, it is not possible for this Court to safely conclude as to whether appellants were given any opportunity or not by Authorized Officer while arriving at a decision and as such, Page 65 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined normally, fact finding forum which has already been created under the statute would adjudicate such disputes on the basis of oral as well as documentary evidence produced before such authority and as such, it is apt and appropriate not to exercise extraordinary jurisdiction to accept such contention of the appellants more particularly, when same was not even canvassed before the learned Single Judge. Hence, we deem it proper to observe that the appellants would be at liberty to raise all possible contentions and since said authority has to examine such issues. We hereby make it clear that we have not expressed any opinion even on the issue relating to effect of Rule 8 (1A), and it would be open for the appellants to canvass the same before the competent authority."
[24] The Full Bench of this Court, in the case of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorised Officer and Cooperative Officer (Marketing) reported in 2006(1) GCD 211, has held thus as under:
"29. Turning now to the second contention namely; can remedy under Rule 28 can be termed to be efficacious remedy. Learned Counsel Mr Patel after inviting our attention to rule 28 submitted that even though the authority either can cancel or confirm and amend the declared result and can direct to hold fresh election in the event of setting aside the election, if the non-inclusion of the names in the voters' list has not materially affected, result of the election which is very difficult to establish then, the election cannot be set aside. In that event, the right under the statute to cast the vote shall not be available to the person whose name is wrongfully excluded from the voters' list. He submitted that even the Director or the competent authority under rule 28 cannot confer the right to vote. Under the provisions of rule 9 read with section 15 of the Act, the election Page 66 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined is required to be held afresh. In that event, a person who has lost his right to vote remains the claimant for getting the right to vote but that right cannot be decided by the authority under the rules or provisions of the Act. He submitted that the voters' list is to be prepared for every election and the voters' list is not continued. If the voters' list is not continued, in that event, by no stretch of imagination, a person can get right to vote. By giving example, he submitted that if 50 voters have been excluded from the voters' list by wrongful order, in that event, in a petition by one member the right of other 49 cannot be decided. Under the circumstances, he submitted that the remedy under rule 28 cannot be termed as efficacious remedy. Finally he submitted that in absence of any right to appeal, the power conferred on authorised officer would lead to hazardous situation.
30. The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit. Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter or right that he is entitled to invoke the jurisdiction of this court.
31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg.Page 67 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Ltd. v. Union of India and Ors. (18 GLR 714) where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.
31.1. In the case of Mehsana Dist. Coop. Sales and Purchase Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR
308), the Court have noted the observations made by the Hon'ble Apex Court as under:
"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies".
In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration."
In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.
32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down Page 68 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.Page 69 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstanceswarranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
[24.1] By way of the Full Bench decision of this Court, it has been made clear that this Court ordinarily would not exercise its powers under Article 226 of the Constitution of India when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral rolls. The Full Bench significantly held that illegality and / or breach of Rules while preparing the voters list are also not so compelling factor which justify the exercise of powers under Article 226 of the Constitution of India. Intention underlying appears to be not latent but loud and clear that all such issues and grievances fall within the domain of Election Petition under Rule 28.
[25] At this stage, it would also be useful to take notice of the decision of the Hon'ble Apex Court in the case of Pradeep Page 70 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Kumar Sonthalia v. Dhiraj Prasad Sahu reported in (2021) 6 SCC 523, wherein, the Hon'ble Apex Court has very succinctly explained how to interpret the electoral rolls provisions. It would be an apt to take note of relevant observations made by the Hon'ble Apex Court as under:
"S.A. Bobde, C.J.-- An interesting but important question of far-reaching consequence arises for consideration in these appeals. It is this. "Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a criminal court, in the afternoon on the very same day?"
20. One fundamental principle that we may have to keep in mind while interpreting the phrase appearing in Section 8(3) is that in cases of this nature, the Court is not dealing with a fundamental right or a common law right. As pithily stated by this Court in Jyoti Basu v. Debi Ghosal [Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691] , an election dispute lies in a special jurisdiction and hence it has to be exercised without importing concepts familiar to common law and equity, unless they are ingrained in the statute itself. We may usefully extract the relevant portion of the decision in Jyoti Basu [Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691] which reads as follows:
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to Page 71 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to Election law unless statutorily embodied."
[26] A landmark decision in the case of Election Commission of India vs. Ashok kumar reported in (2000) 8 SCC 216, the Hon'ble Apex Court has laid down the principles governing the field of election dispute. The same can be thus quoted as under:
"28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Page 72 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :-
1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-
settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of Page 73 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." (emphasis supplied) [27] On careful consideration of the aforesaid decisions, this Court can deduce the following points:
(i) Election dispute lies in a special jurisdiction;
(ii) Election dispute is not a general civil dispute;
(iii) Right to elect and right to be elected are not the fundamental right, but purely a statutory right and likewise right to challenge the election is also a statutory right;
(iv) Election Petition is a statutory proceedings to which neither a common law nor the principle of equity applies, but only those Rules made by the statute are applicable;Page 74 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025
NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined
(v) Judicial review of any order passed by the Authorized Officer during the process of election is although permissible by invoking the provisions under Article 226 of the Constitution of India, but said intervention is also subject to a rider that in only special and extraordinary circumstances, if so arises, or in case where order is absolutely without jurisdiction or ultra vires in nature;
(vi) Even if an order allegedly said to be an illegal in wake of some breach of some Rules or any illegality while preparing the voters list, in that event also, intervention of the High Court under Article 226 of the Constitution of India is not expected;
(vii) Most importantly, inclusion and exclusion from the voters list cannot be said to be any special and / or extraordinary circumstances.
[28] Keeping in mind the aforesaid exposition of law, let's now focus on the questions formulated by this Court. Question No. Page 75 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined
(i) which goes to the root of the matter shall have to be decided at the outset. Thus, provisions of Rule 28, at this juncture, shall have to be referred to:
"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 Page 76 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined 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."
[29] On bare perusal of Rule 28, it would appear that validity of any election can be brought in question by any person qualified either to be elected or to vote at the election. The fundamental grievance raised by the petitioner is that the remedy available under Rule 28 is not available to them because by virtue of exclusion of name from the voters list, in the particular constituency there shall be no election and therefore, in absence of any election, the petitioner would not be able to approach the Director or the State Government under Rule 28. Thus, according to the petitioner, remedy under Rule 28 is illusory.
[30] At the first instance, the argument sought to be canvassed by the learned Senior Advocate appearing for the petitioner appear to be having some thrust because the provisions under Rule 28 starts with "if the validity of any election". Upon plain reading of the Rule 28, at the first blush, gives an impression Page 77 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined that the invocation of the provisions of Rule 28 can only be possible in the event of election is held and concluded and the same is not applicable where there is no election held by reason of any order passed by the Authorized Officer. However, this Court is afraid of accepting the said contention. I say so because if the decision of the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited (supra) is considered, it would be clear that the Full Bench has adopted purposive interpretation of Rule 28. As per Rule 28, if any election to be brought in question qualifying words are "by any person qualified either to be elected or to vote at the election". However, the Full Bench, by adopting purposive interpretation has enlarged the scope of the qualification by holding that those who are not included in the voters list, can also call in question election by filing Election Petition under Rule 28.
Thus, taking clue from the said purposive interpretation and drawing the same analogy, although the provisions of Rule 28 starts with words "if the validity of any election", in absence of any definition of the term "election", meaning of term "election" cannot be restricted to its literal meaning only. The term "election" in Page 78 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined catena of decisions, has been explained that it includes not only actual election, but the entire process of election ranging from declaration of programme of election till its final outcome. Thus, in my view, order excluding the petitioner can legally be challenged by way of Election Petition under the provisions of Rule 28 regardless to the fact that where election has been actually held or not. Additionally, if the power of the Officer under Rule 28 is seen, it would appear that Office can direct the authority to hold the election. Therefore, if the petitioner approaches the authority under Rule 28 and the authority, in turn, if satisfies, can quash the order excluding the name of the petitioner and direct the concerned authority to declare and hold fresh election. Hence, in my view the petitioner has already efficacious statutory remedy under Rule 28.
I answer the questions accordingly.
[31] In the case on hand, merely because, by exclusion of name of the petitioner from the voters list has led to the situation of no election for the particular constituency, would not ipso facto Page 79 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined permit this Court to intervene in the election process. I say so because the petitioner has been excluded by the Authorized Officer, after scrutiny on the ground of disqualification for the certain irregularities and non-compliance, therefore, exclusion of the petitioner from the voters list led to no election situation shall not be the sole criteria to intervene in the election process.
Qualification / credential can, in detail, be scrutinized by the Special Officer in an Election Petition under Rule 28 by leading appropriate evidence and if the petitioner proves that he is eligible to be included in the voters list, in that event, the Special Officer can also under Rule 28 direct to hold fresh Election. Thus, instead of going into the aspect of highly disputed questions of facts such as dealing and / or not dealing with 1/3rd member, 'Hawala' entry, transactions in a main agricultural crop i.e. Tobacco or not, bye laws strictly complied with or not under Article 226 of the Constitution of India, it is desirable to relegate the petitioner to the alternative efficacious remedy if so chooses by them before the authority who is meant under Rule 28.
[32] For the foregoing reasons, all these petitions are Page 80 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025 NEUTRAL CITATION C/SCA/6685/2025 JUDGMENT DATED: 20/06/2025 undefined dismissed by relegating the petitioner to avail the efficacious alternative remedy under Rule 28 of the Rules, if so wishes. Rule is discharged.
[33] Consequently, the connected Civil Applications are disposed of.
(NIRAL R. MEHTA,J) CHANDRESH Page 81 of 81 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 23:17:31 IST 2025