Kalubhai Ishrabhai Patel vs State Of Gujarat & 43 on 15 June, 2015

[Cites 21, Cited by 0]

Gujarat High Court

Kalubhai Ishrabhai Patel vs State Of Gujarat & 43 on 15 June, 2015

Author: Jayant Patel

Bench: Jayant Patel, Rajesh H.Shukla

                 C/SCA/8717/2015                                             ORDER



                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     SPECIAL CIVIL APPLICATION NO. 8717 of 2015
         ==========================================================
                       KALUBHAI ISHRABHAI PATEL....Petitioner(s)
                                      Versus
                        STATE OF GUJARAT & 43....Respondent(s)
         ==========================================================
         Appearance:
         MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
         MS. MANISHA LAVKUMAR SHAH, GP with MR. RAKESH R. PATEL, AGP for
         the Respondent(s) No. 1
         MR. ANSHIN H. DESAI for MR. ANAND V THAKKAR, ADVOCATE for the
         Respondent(s) No. 5 - 44
         NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
                  CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
                           and
                           HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

                                    Date : 15/06/2015
                                      ORAL ORDER

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. The list of the 27 licensees granted on 28.2.2015 and the renewal of license of 13 persons is taken on record.

2. We have heard Mr. Dipen Desai, learned Counsel appearing for the Petitioner, Ms. Manisha Lavkumar Shah, learned GP appearing with Mr. Rakesh R. Patel, AGP for Respondent No.1 -

Government and Government Officers and Mr. Anshin H. Desai, learned Counsel appearing for Mr. Anand V. Thakkar, learned Advocate for Respondent Nos. 5 to 44.

3. At the outset, it may be recorded that for the election of the very Page 1 of 25 HC-NIC Page 1 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER Market Committee in respect of the primary level Cooperative Society and its Constituencies, when about 13 Cooperative Societies were newly formed and registered on 16.3.2015 and their names were entered in the voters' list, the challenge was brought before this court by preferring Special Civil Application No. 7157 of 2015 and this court after hearing both the sides had passed the following order on 4.5.2015:

"1. We have heard Mr.Vaghela, the learned counsel appearing for the petitioner, Mr.Jayswal, learned AGP for respondent Nos.1,2 and 3, Mr.Satyam Chhaya for respondent No.4 and Mr.Anshin Desai with Mr.Pipalia, learned counsel for the respondent Nos.5 to 22 for admission and interim relief.

2. We may record that following facts are undisputed:

1) The election of Agricultural Produce Market Committee, Panthawada, (hereinafter referred to as 'Market Committee/APMC' for convenience) had become due.

2) On 3-12-2014, the election programme for holding the election of the market committee was published by the respondent No.2.

3) On 13-2-2015, the decision was taken by the respondent No.2 to postpone the election programme/process in view of the contemplated inclusion of three Villages in the market area of the market committee.

4) On 23-2-2015, in a petition preferred by some of the agriculturists/voters challenging the decision of the Director, Agricultural Marketing and Rural Finance, for postponement of the election, this Court directed the conclusion of the proceedings for inclusion of new market areas of the market committee and further directed to hold the election of the market committee as early as possible and preferably within a period of three months from 1st of March, 2015.

5) Thereafter on 1-3-2015, the election programme, though directed by this Court, was not published.

6) On 16-3-2015, the registrations were granted to respondent Nos.5 to 18 as new societies which may have the consequence of inclusion of the members of the Page 2 of 25 HC-NIC Page 2 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER managing committee of such societies in the voters' list at the ensuing election of the market committee.

7) As no election programme was published inspite of the direction issued by this Court earlier in Special Civil Application No.3041 of 2015, Special Civil Application No.5378 of 2015 was preferred and in the said petition, the declaration was made on behalf of the State that the election programme for the election of the market committee shall be declared on or before 10-4-2015.

8) On 1-4-2015, the election programme has been declared by the Director so as to begin further steps from 6th of April, 2015.

3. It is in light of the aforesaid facts situation, we need to prima facie consider the allegation made for the action to give birth to the newly registered societies on 16-3-2015 so as to include them in the voters' list at the ensuing election. We may also record that by inclusion of about 14 societies by granting of registration of respondent Nos.5 to 18 societies, on 16-3-2015, about 275 voters may get included in the voters' list of the agriculturists constituency as against 1100 voters.

4. As such, it prima facie appears that the eve of the election can be said to have begun from the date of the order passed by this Court dated 23-2-2015 in Special Civil Application No.3041 of 2015 whereby the direction was issued to complete the process of election within 3 months beginning from 1st March, 2015. Even if it is considered that 1st March, 2015 was the date so directed by this Court to initiate the process of election, then also in any case it can be said that the eve of election had already begun from 1st March, 2015. It prima facie appears that after the eve of the election had begun, new registrations of respondent Nos.5 to 18 societies were granted so that about 275 voters can be inducted in the voters' list of agriculturists constituency of the market committee at the ensuing election.

5. At this stage, we may usefully refer the decision of this Court in case of Chandrakant Manibhai Patel Vs. State of Gujarat and Ors. reported in 2013(3) GLH page 778 wherein this Court had an occasion to consider the question of inclusion of traders in the voters' list by grant of large number of licenses of the market committee at the ensuing election of the market committee on the eve of election. In the said decision, this Court had an occasion to examine the question of maintaining the sanctity and the fairness to be observed at the ensuing election of the market committee, after considering propriety to be observed by the authority in exercise of the statutory power, it was observed at paragraphs 15 to 21 as under:

Page 3 of 25

HC-NIC Page 3 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER "15. The aforesaid provision shows that when the State Government exercise the power under Section 48, the decision or the order passed by the Director or the Market Committee can be tested on the ground of legality or on the ground of propriety. Such would mean that the intension of Legislature is to ensure that the principles of propriety for exercise of power or for taking decision are required to be observed by the Market Committee or the Director. Such exercise of power may include the grant of licences, and also at the time when the election is just to commence or on the eve of the election or the propriety to be observed for maintenance of the sanctity of the election or for keeping the election held in a free and fair manner.

16. The Apex Court had an occasion to consider and interpret the words legality and propriety while examining the exercise of power by the Labour Court, in the case of Babulal Nagar and Ors. Vs. Shree Synthetics Limited and Ors., reported in 1984 (suppl.) SCC, 128, and it was observed at paragraph 14 as under:-

"14. Having noticed the relevant provisions, it is now necessary to ascertain with precision the jurisdiction of the Labour Court under Sec. 61. The scheme of the standing orders applicable to the respondent Company would show that a penalty of dismissal or removal from service can be imposed after holding a domestic enquiry According to the relevant provisions in the standing orders, such an order when made would be open to challenge by a substantive application under Sec. 66 (1) and in such an application if and when made, the Labour Court will have jurisdiction to decide the legality and the propriety of the order. When jurisdiction is conferred union the Labour Court, not only to examine the legality of the order as also the propriety of the order, the Labour Court can in exercise of the jurisdiction examine the propriety or impropriety of the order. The expression 'propriety' is variously understood, meaning assigned to it being 'justice' in Legal Thesaurus by Burton at page 902. Amongst various shades of meaning assigned to the expression, the oxford English Dictionary, Vol. VIII page 1484 sets out 'fitness; appropriateness; aptitude; suitability; appropriateness the circumstances or conditions, conformity with requirement; rule or principle, rightness, correctness, justness etc.' If therefore, the justice or the justness in relation to a legal proceeding where evidence is led is questioned and the authority is conferred with jurisdiction to examine the propriety of the order or decision that authority will have the same Page 4 of 25 HC-NIC Page 4 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER jurisdiction as the original authority to come to a different conclusion on the same set of facts. If any other view is taken the expression 'propriety' would lose all significance. The expression 'legality and propriety' has been used in various statutes where appellate or revision jurisdiction is conferred upon a superior authority. In Raman & Raman Ltd. v. The State of Madras & Anr. While examining the ambit of the jurisdiction of the State Government under Sec. 64A of the Motor Vehicles Act, 1939 as amended by the Motor Vehicles (Madras) Amendment Act, 1948 to interfere with the orders of subordinate Regional Transport Authority on the ground of propriety, this Court observed as under:

"The word "propriety" has nowhere been defined in the Act and is capable of a variety of meanings. In the 782 Oxford English Dictionary (Vol. VIII), it has been stated to mean "fitness; appropriateness; aptitude; suitability; appropriateness to the circumstances or conditions; conformity with requirement, rule or principle; rightness, correctness, justness, accuracy".

If the State Government was of the opinion that respondent No. I had better facilities for operation than the appellant and their service to the public would be more beneficial, lt could not be said that the State Government was in error in thinking that the order of the Board confirming the order of the Regional Trans port Authority was improper." In Moti Ram v. Suraj Bhan & Ors. While examining the scope and ambit of jurisdiction of the High Court under Sec. 15 (5) of the East Punjab Urban Rent Restriction Act, 1949, this Court observed as under:

"Under Sec. 15 (5) the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the propriety or legality of the finding made by the authorities in the present case about the requirement of the landlord under s. 13 (3) (a) (iii). After referring to these two decisions, in Ching Chong Sine v. Puttay Gowder, Alagiriswami, J. held that tho court exercising revisional jurisdiction to decide the legality or propriety of an order has the power to come to a conclusion different from that arrived by the subordinate court on the same set of circumstances. In Ahmedabad Sarangpur Mills Company Ltd v. Industrial Court, Ahmedabad and Anr., a Division Bench of the Gujarat High Court held that the expression 'legality and propriety' in S. 78(1) of the Bombay Industrial Relations Act does not limit Page 5 of 25 HC-NIC Page 5 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER the jurisdiction of the labour court to a revisional jurisdiction. And that any order made by the employer under the standing order is subject to the jurisdiction conferred on the labour court under Sec. 78, which can scrutinise the legality and propriety of the order. This jurisdiction was described by the court as original jurisdiction meaning thereby that the labour 783court can come to an entirely different conclusion on the same set of facts. This view was followed by another Division Bench of the Gujarat High Court in Manekchown and Ahmedabad Manufacturing Company Ltd v. Industrial Court, and another. In Vithoba Maruti Chavan v. S. Taki Bilgrami, Member Industrial Court, Bombay and Anr., a Division Bench of the Bombay High Court held that the power to decide 'propriety' and legality of the order made under standing order does not confer a mere revisional jurisdiction but a wider jurisdiction which will enable the Labour Court to set aside the order of the employer depending upon the facts and circumstances of the case."

17.The aforesaid shows that when the propriety is to be examined, on the same facts, a different conclusion can be recorded. Further, the word 'propriety' means 'fitness', 'appropriateness', 'aptitude', 'suitability', appropriateness to the circumstance or condition. Such can also be equated with rightness, correctness, justness or accuracy of decision. The example given is that if the State Government was of the opinion that the respondent no.2 had better facilities for operation than the appellant and their services to the public would be more beneficial, it could not be said that the State Government was in error in thinking that the order of the Board confirming the order of the Regional Transport Authority was improper. There cannot be any straight-jacket formula or manner of exercise of power, but what is improper would directly tinker with the maintenance of the propriety. When any person is clothed with the statutory power or any body is clothed with statutory power, it is obligatory on the part of such authority to ensure that the basic principles of fairness are required to be observed. In a matter of holding of election, the basic principles of maintenance of the sanctity of the election and holding of the election in a free and fair atmosphere is required to be observed. At this stage, we may refer to the recent decision of the Apex Court in the case of State of Gujarat and Anr. Vs. Hon'ble Mr. Justice R.A. Mehta (Retd.) and Ors., reported in 2013(3) GLH, 89, wherein at paragraph 34, it was observed by the Apex Court while examining the question Page 6 of 25 HC-NIC Page 6 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER of bias a under:-

"34. Bias can be defined as the total absence of any preconceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to except a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and submerge any private feelings with respect to each aspect of the case. The apprehension of bias must be reasonable, i.e. which a reasonable person would be likely to entertain. Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim - nemo debet esse judex in causa propria sua. It applies only when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided, or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias. In the event that actual proof of prejudice is available, the same will naturally make the case of a party much stronger, but the availability of such proof is not a necessary precondition, for what is relevant, is actually the reasonableness of the apprehension in this regard, in the mind of such party. In case such apprehension exists, the trial/judgment/order etc., would stand vitiated, for want of impartiality, and such judgment/order becomes a nullity. The trial becomes "coram non judice".

While deciding upon such an issue, the Court must examine the facts and circumstances of the case, and examine the matter from the view point of the people at large. The question as regards, "whether or not a real likelihood of bias exists, must be determined on the basis of probabilities that are inferred from the circumstances of the case, by the Court objectively, or, upon the basis of the impression that may reasonably be left upon the minds of those aggrieved, or the public at large."

18. The aforesaid shows that the bias can be gathered when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of or to further his own cause. There may not be a case for actual bias, or an apprehension to the effect that the Page 7 of 25 HC-NIC Page 7 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER matter most certainly will not be decided, or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias. Further, as observed by the Apex Court, whether or not a real likelihood of bias exists, must be determined on the basis of probabilities that are inferred from the circumstances of the case, by the Court objectively, or, upon the basis of the impression that may reasonably be left upon the minds of those aggrieved, or the public at large. In the case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai Jayanitbhai Patel, reported in 2006(3) GLH, 226, the Apex Court had an occasion to consider the aspect of exercise of power by the Court to intervene with the decision making process. At paragraph 18, it was observed, thus:-

"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision making process and not the decision."

19. The aforesaid shows that when it shocks the conscience of the Court in the sense that it is in defiance of the logic or moral standard, the power of judicial review may be exercised. It further shows that when a Court is satisfied that there is abuse or misuse of power and when the jurisdiction of the Court is invoked, it is incumbent upon the Court to intervene, subject to the Page 8 of 25 HC-NIC Page 8 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER restrain of the judicial review.

20. There cannot be second opinion on the point that the power vested to the office-bearers of the Market Committee is coupled with the public duty. It is by now well settled that when any power is coupled with the public duty, such power has got to be exercised, keeping in view the duty owed to the people in contra-distinction to any personal interest of the office-bearers of the Market Committee. The moment there is involvement of personal interest, the objectivity will be lost and it would attract the involvement of bias, which is popularly known as personal bias. When any person or a body takes decision, keeping in view the personal interest, though such decision may be within the statutory provisions of law, it would be with the vice of bias and consequently not meeting with the test of propriety to be observed while exercising the statutory power. When any decision is taken by an authority clothed with the power with the element of bias, such a decision cannot be said as for a public good. Considering the matter only from the point of election, it does appear that when the office-bearers have to take appropriate decision on the eve of the election, such power, if to be considered with the public duty, will be for maintenance of the basic democratic principles of election to be held in a free and fair manner.

21. At this stage, we may advert certain observations of the Apex Court in the case of Ghasi Ram Vs. Dal Singh, reported in AIR 1968 SC 1191 (equivalent : 1968(3) SCR,

102), at paragraph 14, the relevant of which reads as under:-

"14. ... Election is something, which must be conducted fairly. To arrange to spend moneys on the eve of elections in different constituencies, although for general public good, is when all is said and done an evil practice, even if it may not be corrupt practice. The dividing line between an evil practice and a corrupt practice is a very thin one. It should be understood that energy to do public good should be used not on the eve of elections but much earlier and that even slight evidence might change this evil practice into corrupt practice. Payments from discretionary grants on the eve of the elections should be avoided.(Emphasis supplied)""

[Emphasis supplied]

6. In our prima facie view, if the facts of the present case are examined in light of the above referred legal position, even if the power exists with the authority to grant registration and thereby to include them in the voters' list, it would not meet with the test of propriety because the powers were exercised at the eve of the election with an intention to inflate the Page 9 of 25 HC-NIC Page 9 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER voters' list at the ensuing election at the instance of the Chairman of the market committee who is to face the election. We may record that the petitioner has made allegation against the Chairman of the market committee at paragraphs 2.7 and 2.8 which read as under:

"2.7 The petitioner states that after 1st March the election programme was not declared and therefore the petitioner and other persons were constrained to file Special Civil Application inter alia praying to declare the election programme for Panthawada APMC and to abide by the order passed in Special Civil Application No.3041 of 2015. The petitioner states that Special Civil Application No.5378 of 2015 was disposed of by order dated 27-3-2015 on the state made by learned additional advocate general that the election programme shall be declared on or before 10.04.2015 and to complete the same within three months(annexed hereto and marked as Annexure "F" is the copy of the order passed in Special Civil Application No.5378 of 2015].

2.8 The petitioner states that the chairman of the market committee took this as an opportunity and forwarded proposal from 14 different villages which were the supporters and where the societies existing were his supporters to the committee of the District Panchayat which has powers of registration of the societies. The committee of the district panchayat in defiance of the order passed in Special Civil Application No.15560 of 2003 resolved to register the respondent Nos.5 to 18 societies. The scrutiny of the proposal was not carried out and even in the agenda the said items were not mentioned. It is submitted that as per the circular of the state registrar and the order of the Hon'ble High Court before before registering a society a public notice is to be published and objections are to be invited no such procedures were carried out and procedure prescribed for registration of a society was not completed even then the committee decided to register these societies. The assistant registrar panchayat objected to the registration of these societies but the committee decided to register these societies. It is submitted that the proposal was forwarded directly to the district panchayat bypassing the taluka panchayat on 12.03.2015. The meeting of the committee of the panchayat was held on 13.03.2015 and the assistant registrar panchayat granted registration certificate to these societies on 16.03.2015. Thereafter the societies without holding the meeting or following procedure which is to be followed after registration directly applied for grant of loan to the Banaskantha District Central Cooperative Bank and the chairman of Page 10 of 25 HC-NIC Page 10 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER the Panthawada APMC being the member of Banaskantha District Central Cooperative Bank immediately granted loans to these societies. It is submitted that therefore these societies have been illegally registered on the eve of the election and dispense agricultural credit after once the election programme has reached to the stage of finalization of voters list. The respondents taking advantage of the technicality postponed the election and in interregnum registered 14 societies without following procedure under law and granted them agricultural credit with a view to define the order of the Hon'ble Court in Special Civil Application No.3041 of 2015. The petitioner states that the respondent Nos.19 to 22 societies were registered in the year 2013 but their registration was challenged by filing Suo Moto Appeal were filed against their registration on the proposal made by the Assistant District Registrar (Panchayat). Therefore, the district cooperative bank had not granted loan to these societies. It is submitted that with a view to inflate the voters list the agricultural credit has been dispensed to the respondent Nos.19 to 22 societies on 30th and 31st March. It is submitted that in fact the bank is not working on these days as it is the ending of the year and the accounts is to be closed but the agricultural credit has been granted to these societies with a view to see that the names of the respondent societies from 5 to 22 get qualified to be included in the voters list. It is submitted that the action of district cooperative bank as well as these societies is under the pressure and the dictate of the chairman of Panthawada APMC who is the member of the managing committee of the Banaskantha district central cooperative bank and therefore, the action is illegal and malafide and the action is taken on the eve of election and therefore their names are required to be deleted from the voters list."

There is no denial of the allegation by way of facts or otherwise by the market committee or its Chairman and the only denial available on record is by new societies, respondent Nos.5 to 22 including the respondent Nos.5 to 18 who have been granted registration. It is true that the committee of the District Panchayat who had granted registration is not joined as the party. Mr.Desai, the learned counsel appearing for the respondent Nos.5 to 22 contended that unless the said committee is joined as the party, allegation made by the petitioner cannot be accepted more particularly when the respondent Nos.5 to 22 have already denied the allegation. We are afraid such contention can be accepted and the simple reason is that all allegations are made against the Chairman of the market committee who has Page 11 of 25 HC-NIC Page 11 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER not even denied the allegation. Further, no material is produced on behalf of the respondent Nos.5 to 22 to show that the process for getting the registration by them had already begun much prior to the eve of election i.e. 1st of March, 2015 in any case. In any case, at the most, the presence of the committee which had granted registration would be required but can also be at the time of final hearing of the matter.

7. As such, in view of the aforesaid fact situation, it prima facie appears that the action for inclusion of members of the market committee of the respondent Nos.5 to 18 in the voters' list at election of the market committee deserves to be stayed and suspended.

8. However, Mr.Desai, the learned counsel appearing for the respondent Nos.5 to 22, relied upon decisions of this Court (1) in the case of Dolatbhai Prabhubhai Dumaniya Vs. Director, Agriculture Marketing & Rural Finance and others reported at 2013(2) G.L.H. Page 157, (2) in Special Civil Application No.2179 of 2013 decided on 21-3-2015 in the case of Nilesh Gordhandas Thakker & another Vs. State of Gujarat Through Secretary and Others and (3) in Kalubhai Ranabhai Akabari Vs. State of Gujarat and Ors. reported at 2007(3) G.L.H. Page 57 and contended that in more or less similar fact situation, this Court had not interfered with and had also interpreted that the process of the election can be said to have begun after first date for preparation of the voters' list under Rule 4 and he contended that similar view may be taken by this Court.

9. In our prima facie view, in none of the aforesaid decisions upon which reliance has been placed, this Court had an occasion to examine the aspects of the propriety to be observed on the eve of the election with a view to maintain the sanctity of the election and holding of the election in a free and fair atmosphere as per the democratic principles, In none of the aforesaid decisions, the Court had an occasion to examine the question of propriety to be observed by all authorities once the election is to be held beginning from the eve of the election. Hence, the said decisions are of no help to Mr.Desai.

10. Mr.Desai, the learned counsel appearing for the respondent Nos.5 to 22 also relied upon the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Ltd. Vs. R.D.Rohit, Authorised Officer and Co-Operative Officer (Marketing) reported in 2006(1) GCD page 211 for contending that the party should be relegated to the election petition when the dispute is for inclusion or exclusion from the voters' list and he submitted that therefore, the petition may not be entertained under Page 12 of 25 HC-NIC Page 12 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER Article 226 of the Constitution.

11. We may record that the Full Bench in the above referred decision in the case of Daheda Group Seva Sahakari Mandli Ltd. (supra) at paragraph 33 has answered the question for availability of the remedy of the persons whose name is not included in the voters' list or not which does not arise in the present case. It is true that in subparagraph 3 at paragraph 33, the Full Bench had observed that even though the petition under Article 226 of the Constitution is maintainable, though alternative remedy is available, the powers are to be exercised in extra-ordinary or special circumstances such as where the order is ultra vires or nullity or ex-facie without jurisdiction. Hence, we may have to further prima facie consider as to whether the case falls under the extra-ordinary circumstances of an action or the decision being ultra vires, nullity or without jurisdiction.

12. It was submitted that the objections are filed by the petitioner and the similarly situated person for inclusion of the members of the managing committee of the respondent Nos.5 to 22 societies in the voters' list at the ensuing election before the Authorized Officer and the Authorized Officer has issued notices to all such societies and the matter is yet to be considered by the Authorized Officer. Hence, we had called upon the learned AGP to make a positive declaration as to whether the Authorized Officer will have the power or competence or jurisdiction to examine the question of action by considering the aspects of propriety to be observed on the eve of the election for the purpose of grant of registration and consequently the inclusion of the members of the managing committee of such societies in the voters' list at the ensuing election. However, the learned AGP, under the instruction of the Authorized Officer, who is present in the Court, stated that he will have no jurisdiction to examine the said aspect since the registration has been recommended and granted by the Committee of Panchayat and the Assistant Registrar and it was also submitted that as per the scheme of the Government, his jurisdiction would begin after his appointment as the Authorized Officer which is on 3 rd April , 2015.

13. Under the aforesaid peculiar circumstances, it prima facie appears the Authorized Officer will have no jurisdiction to examine the aspects for testing the action of the concerned authority to grant registration and consequently to include the name at the voters' list at the eve of the election. Hence, it prima facie appears that if there is no jurisdiction to decide the objections, in any case the jurisdiction to include the names of members of the managing committee in the voters' Page 13 of 25 HC-NIC Page 13 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER list at the ensuing election would be lacking. If the action for grant of registration and consequently the inclusion in the voters' list is to be considered and tested with the principles to be observed for maintaining the sanctity at the election and fairness to be observed at the election as per the democratic principles, it can prima facie be said that the action of inclusion of the members of the managing committee of the respondent Nos.5 to 18 societies in the voters' list can be said as without jurisdiction and ultra vires to the powers of the Authorized Officer. Hence, it prima facie appears that the objection raised for maintainability of the petition is lacking merit.

14. At this stage, we may also record that more or less on similar facts seeking more or less similar relief, Special Civil Application No.5958 of 2015 was preferred and this Court vide order dated 29-4-2015 passed in said Special Civil Application observed thus:

"1. The petitioner by this petition is seeking appropriate writ to direct the respondent to declare the election programme of Agricultural Produce Market Committee, Dhanera (hereinafter referred to as `the Market Committee') and the petitioner is also seeking appropriate writ to prohibit respondent no.4 from convening the meeting of the Production, Cooperation and Irrigation Committee of District Panchayat, Banaskantha which was scheduled to be held on 6.4.2015.

2. We have heard Mr.Desai, learned counsel appearing for the petitioners, Mr.Jayswal learned AGP for respondent nos.1,2 and 3 and Mr.Anand Thakkar for respondent nos.6 to 35. Respondent nos.4 and 5 are served but none appears on their behalf.

3. We may record that this Court on 6.4.2015, when entertained the matter for the first time, had passed the following order:

"1. We have heard Mr. Dipen Desai, learned counsel appearing for the petitioners and Mr. Jayswal, learned AGP, upon the advance copy on behalf of respondents no.1, 2 & 3.

2. It appears that this Court vide order dated 26.03.2015, passed in Special Civil Applications No. 4613/15 & 4612/15, had directed for publication of the election program by 10.04.2015 and completion of the election by 10.07.2015. As stated by the learned AGP, on 03.04.2015, the election program has been published and the process has already begun.

3. Hence, it can prima facie be said that the process of election has been put to motion after this Court passed the order on 26.03.2015 in the above referred Special Civil Applications. As per the decision of this Page 14 of 25 HC-NIC Page 14 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER Court in the case of Dolatbhai Prabhubhai Dumaniya vs. Director Agricultural Marketing and Rural Finance & Ors. reported at 2013(2) GLH 157, the voter list cannot be permitted to be inflated so as to create artificial majority or minority even on the eve of the election so as to maintain the sanctity at the election and also to maintain the democratic principles of free and fair manner of holding the election.

4. It has been stated on behalf of the petitioners that by grant of registration of about 30 proposed societies whose list is annexed at Annexure F, page 31, about 600 voters may be inducted in the ensuing election of the respective constituency of APMC, Dhanera. However, as the proposed societies are uptil now not registered but is represented through its promoter, they will be required to be impleaded as party.

5. Mr.Desai, learned counsel appearing for the petitioners states that he may be permitted to join the promoters of the proposed society/ies as party respondent.

6. It prima facie appears that if the apprehension is for inflation of the voters list by creating artificial majority, the same can be considered since the motion of election has already begun. However, the registration, if any granted to any society, the voting right of the members of the managing committee may not be available, but with the clarification that registration, if any granted, and the petitioners are aggrieved by the registration, they may the remedy as may be available in law for challenging the registration.

7. Hence, notice returnable on 15.04.2015. By ad interim order, it is directed that the registration, if any granted, to the list of the societies, the details of which are mentioned in the communication dated 30.03.2015 at Annexure F, page 31, the members of the managing committee of such societies shall not be included in the voters list at the ensuing election of APMC, Dhanera. The registering authority shall also specifically communicate this order to the concerned promoter representing the proposed society.

8. D.S. today. The petitioners shall be at the liberty to communicate the order through fax as well as by telephone at their cost in addition to the direct service."

4. In response to the notice issued, Mr.Jayswal, learned AGP has tendered the copy of the election programme dated 3.4.2015, whereby the election of the Market Committee is already declared wherein the voting is to take place on 8.7.2015 and the result is also to be declared on the same day.

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5. In view of the above, so far as relief prayed for appropriate direction to the authority to declare the election programme is concerned, the same would not survive.

6. However, on the second prayer for seeking appropriate writ to prohibit the District Panchayat from holding the meeting is concerned, this Court as per the above referred order dated 6.4.2015, did not prohibit the holding of the meeting but in order to see that at the eve of the election, the voters' list may not be inflated so as to create artificial majority which may result into tinkering with the sanctity of the election and fairness to be observed at the election as per the democratic principles, this Court had directed that the registration, if any granted may continue but the members of the Managing Committee of such society shall not be included in the voters' list at the ensuing election of the Market Committee.

7. Mr.Thakkar, learned counsel appearing for respondent nos.6 to 35 states that the registration has been granted to some of the societies and for some other societies, the registration is yet not granted. However, he submitted that none of the respondent nos.6 to 35 are desirous to be included as the voters or to participate as the voters at the ensuing election of the Market Committee which is to be held in July, 2015.

8. In view of the above, we do not find any valid reason to modify the interim order granted earlier as the question of inclusion in the voters' list of the respective societies who have been granted registration is no more to survive in the ensuing election which is scheduled in July, 2015. We find that no further orders deserve to be passed in this regard.

9. Under the circumstances, the petition is disposed of accordingly. No order as to cost."

15. The learned counsel appearing for respondents attempted to contend that in the said decision, there was no resistance for asserting the rights by the respondent Nos.6 to 35 and therefore, the question may independently be examined. In our prima facie view, the attempt cannot be countenanced for the simple reason that the present petition is also yet to be finally decided but the view taken in the above referred decision may be relevant for the purpose of interim relief.

16. It prima facie appears that there is substance in the contention of Mr.Desai that the respondent Nos.19, 20 and 21 were granted registration on 24-1-2013 and respondent No.22 was granted registration on 29-8-2008 and therefore, when the registrations were already granted much prior to Page 16 of 25 HC-NIC Page 16 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER the eve of the election, the inclusion of the members of the managing committee of such societies in the voters' list could not be said as without jurisdiction even if the above referred principles of observance of the propriety is considered for testing the action.

17. In any case, as the matter cannot be finally concluded until the District Panchayat Committee is joined as the party and as the process of election has already begun and is on, we find that the following order deserves to be passed and hence passed.

18. Rule, returnable on 17-6-2015. By interim relief, the action of the Authorized Officer to include the names of members of the managing committee of respondent Nos.5 to 18 in the voters' list at the ensuing election of Agricultural Produce Market Committee, Panthavada, is suspended and stayed subject to final order which may be passed by this Court in the petition. Mr.Jayswal, learned AGP, states that the Authorized Officer is present and he shall convey the order immediately to him.

19. Agricultural Production Irrigation and Cooperation Committee is ordered to be impleaded as the party. Notice to newly added party shall also be made returnable on 17-6- 2015.

20. It is clarified that observations made by us in this order are prima facie and shall not prejudice rights of both the side at the time of final hearing of the petition.

D.S. permitted."

4. It may also be recorded that the learned Counsel appearing for the Petitioner has brought to the notice that the aforesaid order dated 4.5.2015 in SCA 7157/2015 was carried before the Apex Court by the private Respondents, and vide order dated 18.5.2015 passed in Special Leave to Appeal (C) No. 14722/2015, the Apex Court did not entertain the petition and the SLP was dismissed.

5. The aforesaid shows that a question of propriety at the election for maintaining the sanctity and purity of the election was considered by this court in the above referred order, and resultantly, new Page 17 of 25 HC-NIC Page 17 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER societies, which were given birth by way of registration on 16.3.2015 and their names were included in the voters' list were directed to be excluded from the voters' list at the ensuing election of APMC, Panthawada.

6. In the present case, the election is of the very Market Committee and the facts so far as the eve of the election and the process of the election are common, but the difference is that in the present case the question relates to license holders, who will be entitled to be included in the voters' list in Traders' Constituency on the basis of the licenses granted by the Market Committee. It is undisputed position that the licenses were granted to 27 persons on 28.2.2015 whereas so far as the other 13 persons are concerned, they were holding licenses earlier and their licenses are renewed.

7. Hence, those cases of renewal of licenses would stand on a different footing and different consideration. In any case, those 13 persons whose licenses were renewed, could not be said to have acquired eligibility on the ground of the decision taken, resulting into creation of the eligibility for the first time, since they were already holding licenses and their licenses were only to be renewed.

8. Whereas, the case of other 27 persons, who have been granted licenses on 28.2.2015 could be said as different because they are Page 18 of 25 HC-NIC Page 18 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER granted licenses resulting to create a situation of entry in the voters' list for the first time in the Traders' Constituency, and therefore, those cases prima facie deserves to be considered further.

9. The learned Counsel appearing for the Petitioner by relying upon the observations made at paragraph 4 in the above referred order dated 4.5.2015 with the facts narrated in sub-paragraphs 2 and 3 of paragraph 2, submitted that the eve of the election could be said to have begun from 23.2.2015 and therefore when the decision was taken on 28.2.2015 it could be said that the decision was taken after the eve of the election. He alternatively submitted that even if the eve of the election as considered from 1.3.2015, then also it is just one day prior thereto namely of 28th February 2015 and therefore those persons are not entitled to be included in the voters' list since their eligibility is acquired after the eve of the election.

10.Whereas learned Counsel appearing for the private Respondents contended that when this court in the aforesaid decision dated 4.5.2015 considered the eve to began from 1.3.2015 and in the said case after 15 days, i.e. on 16.3.2015, the registrations were granted, the interference was made in the said matter. It was submitted that in the present case the licenses have been granted prior to 1.3.2015 and therefore the case cannot be said at par with the above referred matter vide order dated 4.5.2015 even in respect of those persons Page 19 of 25 HC-NIC Page 19 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER who have been granted licenses on 28.2.2015.

11.Ms. Manisha Lavkumar Shah, learned GP, during the course of the hearing submitted that the total number of voters including the private Respondents, who are already included in the voters' list is 206 and as against the same 27 persons are already granted license on 28.2.2015, and therefore, their names have been rightly included in the voters' list and may not be excluded. It was also submitted that the final voters' list is already published on 22.5.2015 and therefore now the interference may not be made by this court under Article 226 of the Constitution and the Petitioner be relegated to the election petition after the election is over under Rule 28 of the Gujarat Agriculture Produce Market Rules.

12.On the first preliminary contention it prima facie appears that the preliminary voters' list was published on 8.5.2015 and the present petition came to be filed on 14.5.2015. In any case this court on 15.5.2015 entertained the petition by issuing notice and did observe that the process shall be subject to the result of the petition. Once this court had entertained the petition and the process, including that of finalization of the voters' list was subject to the petition, it would not be lie on the mouth of the Respondents to contend that now the voters' list was finalized on 22.5.2015 and therefore interference may not be made. It prima facie appears that broad Page 20 of 25 HC-NIC Page 20 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER parameters for exercise of power under Article 226 in the election petition could be whether any mandatory procedure is followed or not or that the exercise of power is without jurisdiction or not which may vitiate the process of the election or preparation of the voters' list.

13.Under these circumstances and more particularly in view of the earlier order dated 14.5.2015, the preliminary contention raised prima facie cannot be accepted.

14.On the aspect of eve of the election, at the cost of repetition, we may reproduce paragraphs 2 to 4 of the order dated 4.5.2015, which reads as under:

"2. We may record that following facts are undisputed:

1) The election of Agricultural Produce Market Committee, Panthawada, (hereinafter referred to as 'Market Committee/APMC' for convenience) had become due.

2) On 3-12-2014, the election programme for holding the election of the market committee was published by the respondent No.2.

3) On 13-2-2015, the decision was taken by the respondent No.2 to postpone the election programme/process in view of the contemplated inclusion of three Villages in the market area of the market committee.

4) On 23-2-2015, in a petition preferred by some of the agriculturists/voters challenging the decision of the Director, Agricultural Marketing and Rural Finance, for postponement of the election, this Court directed the conclusion of the proceedings for inclusion of new market areas of the market committee and further directed to hold the election of the market committee as early as possible and preferably within a period of three months from 1st of March, 2015.

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5) Thereafter on 1-3-2015, the election programme, though directed by this Court, was not published.

6) On 16-3-2015, the registrations were granted to respondent Nos.5 to 18 as new societies which may have the consequence of inclusion of the members of the managing committee of such societies in the voters' list at the ensuing election of the market committee.

7) As no election programme was published inspite of the direction issued by this Court earlier in Special Civil Application No.3041 of 2015, Special Civil Application No.5378 of 2015 was preferred and in the said petition, the declaration was made on behalf of the State that the election programme for the election of the market committee shall be declared on or before 10-4-2015.

8) On 1-4-2015, the election programme has been declared by the Director so as to begin further steps from 6th of April, 2015.

15.The aforesaid shows that the court did not prima facie observe that the eve could be said to began from the order dated 23.2.2015, i.e. the date on which this court passed the order earlier in Special Civil Application No. 3041 of 2015 to complete the process of Page 22 of 25 HC-NIC Page 22 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER election within three months. Its a different matter that this court considered alternatively also that the eve of election could also be said to begun from 1.3.2015 and the facts of the case were examined at the prima facie level in the said case. However, if the eve of the election is considered from 23.2.2015, it could be said that the licenses were granted thereafter, i.e. on 28.2.2015, which is after the eve of the election so far as 27 persons are concerned. In any case, even if 1st March is considered for the sake of examination then also 28.2.2015 is just one day prior. The aforesaid aspect is to be considered in light of the fact circumstances that earlier for the election of the very Market Committee, the election programme was already published on 3.12.2014 and the process of election was postponed on 13.2.2015 and when the said decision for postponement of the election was challenged, this court vide order dated 23.2.2015 in Special Civil Application No. 3041 of 2015 directed for completion of the process of the election within 3 months beginning from 1.3.2015.

Hence, prima facie, the contention as sought to be canvassed that the licenses were granted not after the eve of the election cannot be accepted. It is true that out of total 206 voters, 27 persons are added as the voters by the licenses granted for the first time on 28.2.2015, but the relevant aspect is that in the above referred order Page 23 of 25 HC-NIC Page 23 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER dated 4.5.2015, the statement was made which has been reproduced at paragraph 12 that the authorised officer will have no jurisdiction to examine the aspects of going behind the licenses, we find that the interference deserves to be made in the present matter on the same line and on the same principle for maintaining the principles of propriety and the sanctity and the fairness in the ensuing election. Hence, the following order:

Rule returnable on 9th July 2015. By way of interim relief, the action of the authorized officer to include the names of Respondent Nos. 5 to 31 (27 persons), whose names are also mentioned in the voters' list of Traders' Constituency at the ensuing election of APMC, Panthawada is suspended and stayed subject to final order which may be passed by this court in the petition.

16.It is clarified that the observations made by us in this order are prima facie and shall not prejudice the rights of both the sides at the time of final hearing of the petition.

17.Learned GP states that the order shall be conveyed by her to the authorized officer.

Direct service permitted.

(JAYANT PATEL, J.) Page 24 of 25 HC-NIC Page 24 of 25 Created On Tue Sep 08 01:13:20 IST 2015 C/SCA/8717/2015 ORDER (RAJESH H.SHUKLA, J.) JNW Page 25 of 25 HC-NIC Page 25 of 25 Created On Tue Sep 08 01:13:20 IST 2015

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