Gujarat High Court
Mohmed Javid Abdulmutlib Pirzada vs State Of Gujarat on 12 April, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/18140/2021 ORDER DATED: 12/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18140 of 2021
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MOHMED JAVID ABDULMUTLIB PIRZADA
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MR BS PATEL, SENIOR ADVOCATE with MR ISHAN JOSHI, AGP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
MR JAY B TRIVEDI(7474) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 12/04/2022
ORAL ORDER
1. The present writ application has been filed under Article 226 of the Constitution of India seeking the following prayers:-
"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order dated 27.11.2021 passed by Authorised Officer ordering to delete the names of petitioners from the final voter list of agriculturests' constituency forthe election of APMC, Vankaner and further be pleased to direct the Authorised Officer to republish final voter list of agriculturests' constituency after including names of Page 1 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 petitioners for the reasons stated in the Memo of Petition and in the interest of justice; (B) Pending admission, hearing and final disposal of the above Special Civil Application to stay the execution, implementation and operation of the order dated 27.11.2021 passed by Authorised Officer ordering to delete the names of petitioners from the final voter list of agriculturests constituency for the election of APMC, Vankaner and further be pleased to direct the Authorised Officer to continue the names of petitioners in the final voter list for agriculturests constituency for the reasons stated in the Memo of Petition and in the interest of justice; (C) To grant ad-interim relief in terms of Para-29 (B) hereinabove.
(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
(E) To award the cost of this petition."
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C/SCA/18140/2021 ORDER DATED: 12/04/2022
2. The writ-applicants herein are aggrieved by the impugned order dated 27.11.2021 passed by the respondent no.3 Authorised Officer deleting the name of the writ-applicants from voters' list of agriculturist constituency, Vankaner, which reads thus :-
"2) It appears clear from the letter dated 17/11/2021 of the society that the society has completed the election procedure and formed a new managing committee. Therefore, new managing committee has been formed instead of managing committee of Sr. No.66 to 81 of the Voter's list re-published referred at Sr.(6) above. Therefore, as per the provisions of Sr.(1) above, no other names except of the names of existing managing committee of the society can be kept continue.
As per the provision of Sr.(7) above, members of the former managing committee of Shree Kishan Seva Sahakari Mandali Limited, At: Panchasiya, Taluka:
Wankaner, District: Morbi have lost their eligibility to remain continue in the voter's list.
3) An information should be given to the
authorized officer as per Rule-7(1) of the Gujarat
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C/SCA/18140/2021 ORDER DATED: 12/04/2022
Agricultural Produce Market Rules, 1965 to include new names as per new managing committee of Shree Kishan Seva Sahakari Mandali Limited, At: Panchasiya, Taluka:
Wankaner, District: Morbi. The election program has been published vide notification referred at Sr.(3) above. Moreover, the voter's list has been re-published as per Sr. (6) referred above. Last date for the objections/suggestions against the voter's list re-
published as per notification of the market committee election was 24/11/2021. The said Shree Kishan Seva Sahakari Mandali Limited, At: Panchasiya, Taluka:
Wankaner, District: Morbi has not produced the list of the new managing committee of the society till the said date also.
4) Thus, it appears clear from the above that new managing committee has come into existence against managing committee of Sr. No.66 to 81 of the Voter's list referred at Sr.(6) above of Shree Kishan Seva Sahakari Mandali Limited, At: Panchasiya, Taluka:
Wankaner, District: Morbi. Therefore, as it does not appear proper to keep the names published in the voter's list continue as per the list of the former managing Page 4 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 committee, I pass following order.
:: Order ::
Considering the objection raised with the above mentioned detail with respect to the general election of the Agricultural Produce Market Committee, Wankaner, I, the authorized officer, pass an order under the power conferred upon me vide Rules - 8 of the Gujarat Agricultural Produce Market Rules - 1965, to eliminate the names of all the members of the managing committee of the Kisan Seva Sahkari Mandali Ltd., at - Panchasiya, Taluka - Wankaner from the final voters' list of the agriculturists electorate to be published on 29/11/2021 pursuant to the general election of the market committee, vankaner.
Sd/-(Illgible) (J.M. Mehta) Authorised Officer, Agricultural Produce Market Committee, Wankaner and Cooperation Officer Grade-2 (Industries) for the District Registrar, Cooperative Societies, Morbi."
3. The facts as stated by the writ-applicants germane to the adjudication of the present writ-petition read thus:- Page 5 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022
C/SCA/18140/2021 ORDER DATED: 12/04/2022 3.1 The writ-applicants are agriculturalist of Village Panchasiya, Taluka Vankaner, District Morbi. The writ-
applicants are members of Shree Kishan Seva Sahakari Mandali / Society Ltd. and they are elected members of the Managing Committee of said Mandali / Society. The said Mandali / Society is engaged in the business of giving various financial assistance to his members since last 17 years and the writ-applicant no.10 is representative of the Shree Rajkot District Cooperative Bank Ltd. which is giving finance to Shree Kishan Seva Sahakari Mandali / Society Ltd. The election of APMC, Vankaner came to be declared by the Director on 13.10.2021 under the Gujarat Agricultural Produce Markets Rules, 1965. The names of the writ-applicants were included in the preliminary voters' list under the agriculturists constituency for election of Agriculture Produce Market Committee (for short 'APMC'), Vankaner. The Respondent no.4 raised objection on 02.11.2021 against inclusion of the writ- applicants in the voters' list. The Authorised Officer issued notice and called upon the society to remain present before the Authorised Officer on 09.11.2021. The Society Page 6 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 filed reply and remained present before the Authorised Officer, by the order dated 15.11.2021. The Authorised Officer i.e. respondent No.3 rejected the objections raised by the respondent No.4. After deciding the said objection, the Authorised Officer published revised draft voters' list on 17.11.2021. The names of the writ-applicants also appeared in the said list. On 17.11.2021, after publication of the revised draft voters' list, the respondent no.4 once again raised objection on 22.11.2021. The said objection was not served to the writ-applicants or Mandali / Society and no notice came to be issued either to writ-applicants or Mandali / Society.
4. It is the case of the writ-applicants that the respondent no.4 never challenged the order passed by the Authorised Officer dated 15.11.21 and that the said order rejecting the objection raised by the respondent no.4, attained finality. The Authorised Officer could not have accepted the objection raised by the respondent no.4 on 22.11.2021 in view of the provision of Rule 8(1)(a) of the Gujarat Agricultural Produce Markets Rules, 1965 (for Page 7 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 short "APMC Rules, 1965"). The impugned order dated 27.11.2021 allowing objection filed by the respondent no.4 is without issuance of notice to the writ-applicants or Mandali / Society and without following principles of natural justice.
5. Being aggrieved and dissatisfied by the impugned order dated 27.11.2021 passed by the Authorised Officer deleting the names of the writ-applicants as members of the Managing Committee of Shree Kishan Seva Sahakari Mandali / Society Ltd. from the final voters' list of agriculturist constituency APMC, the writ-applicants are constrained to approach this Court by filing the present writ application.
6. Mr.Rao, the learned advocate appearing for the writ applicants submitted that the order dated 27.11.2021 passed by the Authorised Officer i.e. the respondent no.3 deleting the names of the writ-applicants from final voters list from agricultural constituency APMC, Vankaner, is against the provision of law, without authority of law and Page 8 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 in violation of provision of principle of natural justice. 6.2 Mr.Rao, the learned advocate submitted that the order passed by the Authorised Officer on 27.11.2021 is against the provision of Rule 8(1)(a) of APMC Rules, 1965. The respondent no. 4 raised objection with regard to inclusion of the name of writ-applicants on 02.11.21 and the Authorised Officer by the order dated 15.11.21 rejected the said objection raised by the respondent no.4 against the inclusion of the name of the writ-applicants of the Managing Committee Shree Kishan Seva Sahakari Mandali / Society Ltd.
6.3 Mr.Rao, the learned advocate vehemently submitted that the objection raised by the respondent no.4 on 22.11.2021 could not be accepted by the Authorised Officer which is not permissible and contrary to the provisions of Rule 8(1)(A) of the APMC Rules. Mr.Rao, the learned advocate relied upon the judgment reported in (1998) 1 GLR 95.
6.4 In view of above, lastly Mr.Rao, learned Page 9 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 advocate submitted that the impugned order dated 27.11.2021 passed by the Authorised Officer respondent NO.3 is de hors the provision of law and the same be quashed and set aside.
7. Mr.B. S. Patel, the learned Senior Counsel assisted by Mr.Ishan Joshi, learned AGP appearing for the respondent No.3, per contra, raised preliminary objection with regard to maintainability of the writ application. 7.1 Mr.B. S. Patel, the learned Senior Counsel submitted that the order passed by the respondent no.3 pertains to inclusion or exclusion of the names of the writ-applicants in the voters list, which 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 the election petition under Rule 28 of the Election Rules.
7.2 Mr.Patel, the learned Senior Counsel further submitted that the writ-applicants were not qualified and Page 10 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 that the earlier order dated 15.11.2021, rejecting the objection raised by the respondent no.4 was passed by the respondent no.3. In view of the fact, the writ- applicants have suppressed the material facts before the Authorised Officer.
7.3 Mr.Patel, the learned Senior Counsel submitted that the writ applicants have committed fraud for inclusion of their names by not disclosing the election of society in which almost all Directors have been elected and the writ applicants ceased to be the directors as per the provisions of Rule 6 of the Agriculture Produce Market Rules, 1965. When it came to the notice of the respondent no.3, the misrepresentation by the the writ applicants, who have lost capacity to be continued in the voters list, the writ applicants are not entitled to proceed under the Article 226 of the Constitution of India.
7.4 Mr.Patel, the learned Senior Counsel further submitted that though the election was in progress, the fact was never disclosed to the Authorised Officer and Page 11 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 then the said fact came to the knowledge of the Authorised Officer by way of objection raised by the respondent no.4 and the Authorised Officer was duty bound to remove the names of the writ applicants from the voters' list.
7.5 Mr.Patel, the learned Senior Counsel lastly submitted that the writ-applicants have not approached this Court with clean hands and on that ground, the writ application be rejected.
7.6 Mr.B.S.Patel, the learned Senior Counsel submitted that by the order dated 17.11.2021, the District Registrar, Cooperative Society, Morbi, removed the name of Shri Bakrolia Hanifbhai from the post of Secretary of Pithva Sahkari Ltd. The said order has not been challenged by the said Mandali / Society.
8. Mr.Jay Trivedi, the learned advocate appearing for respondent No.4 objector adopted submissions advanced by the learned Senior Counsel Mr.B.S.Patel and Page 12 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 submitted that the writ-applicants have no locus to prefer the present writ application.
8.1 Mr.Trivedi, the learned advocate submitted that the order passed by the Authorised Officer on 27.11.2021, the names of the elected members of the Managing Committee of Shree Kishan Seva Sahakari Mandali / Society Ltd. be deleted is just and proper and requires no interference. s 8.2 Mr.Trivedi further submitted that the names of the newly elected members of the Managing Committee of the society have been included in the preliminary votes list at Sr.66 to 81 and the society cannot be said to be aggrieved by the order of the Authorised Officer and that the writ- applicants in their individual capacity could not maintain the present writ application.
8.3 Mr.Trivedi further submitted that in the preliminary voters list, there were total 15 elected members and one representative of the Rajkot District Page 13 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 Central Cooperative Bank Ltd., were included in the voters list and by virtue of the order passed by the Authorised Officer dated 27.11.2021 all the 16 names of the society came to be deleted. The present writ application has been filed by only 10 members of the society and rest 6 members have accepted the order passed by the Authorised Officer. The remaining 6 members are not joined as party respondents in the present proceedings and therefore, the said petition suffers from of non-joinder of proper parties.
8.4 Mr.Trivedi, the learned advocate submitted that election of Shree Kishan Seva Sahakari Mandali / Society Ltd. was held in August, 2016 for a period of 5 years as per Section 74(1C) of the Gujarat Cooperative Societies Act,1961 and the term of the society expired in August, 2021, which has been admitted even by the writ applicant at Page 50 in their reply filed before the Authorised Officer.
8.5 Mr.Trivedi, the learned advocate submitted that Page 14 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 upon expiry of the term, the Managing Committee of the society their elected members do not have right to continue in the Managing Committee in view of the provisions of Section 74(1C)(ii) and therefore, the writ- applicantss do not have right to continue in the Managing Committee of the said society. Mr.Trivedi, the learned advocate submitted that the writ-applicants before the Authorised Officer at no point of time stated that they are undertaking the election process of society and the writ applicants have suppressed material facts before the Authorised Officer and therefore, the writ-applicants are not entitled to such discretionary reliefs under article 226 of the Constitution of India.
8.6 Mr.Trivedi, the learned advocate submitted that the object of the Act is to include the eligible members to participate in the election of the Managing Committee and the powers of the Authorised Officer is to be read furtherance of hte object of the Act. Therefore, the Authorised Officer having came to know the facts, the Authorised Officer has rightly deleted the names of the Page 15 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 writ applicants.
Analysis:-
9. The writ-applicants are agriculturalist of Village Panchasiya, Taluka Vankaner, District Morbi. The writ- applicants were members of Shree Kishan Seva Sahakari Mandali / Society Ltd., and they were elected members of the Managing Committee of said Mandali / Society. The said Mandali / Society is engaged in the business of giving various financial assistance to his members since last 17 years and the writ-applicant no.10 was representative of the Shree Rajkot District Cooperative Bank Ltd. which is giving finance to Shree Kishan Seva Sahakari Mandali / Society Ltd. The election of APMC, Vankaner came to be declared by the Director on 13.10.2021 under the Gujarat Agricultural Produce Markets Rules, 1965. The election of the said mandali was held In August, 2021. New trustees came to be elected and their names have been included in the voter's list at Sr.66 to 80. The writ-applicants appear to have ceased from the said voter's list since it appears that names of the writ-applicants consequently stand deleted from the voter's list for the election of Page 16 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 Agriculturists' constituency. The names of the writ- applicants were included in the preliminary voters' list of the agricultural constituency for election of APMC, Vankaner. The Respondent no.4 raised objection on 02.11.2021 against inclusion of the writ-applicants in the voters' list. The said objection was rejected by the order dated 15.11.2021 by the Authorised Officer. After deciding the said objection, the Authorised Officer published revised draft voters' list on 17.11.2021. The names of the writ-applicants also appeared in the said list. The respondent no.4 once again raised objection on 22.11.2021. upon rasing the objection by the respondent no.4, the impugned order dated 27.11.2021 passed by the Authorised Officer deleting the names of the writ- applicants as members of the Managing Committee of Shree Kishan Seva Sahakari Mandali / Society Ltd. from the final voters' list of agriculturist constituency APMC, Position of Law:-
10. The law as regards judicial review in the matters pertaining to election is well settled. Page 17 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022
C/SCA/18140/2021 ORDER DATED: 12/04/2022
(a) 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 held that the inclusion or exclusion of name in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India. Paragraphs 31, 32 and 33 reads thus :-
"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. 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 Page 18 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 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 Page 19 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 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 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 Page 20 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 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. 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 Page 21 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 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."
(b) The ratio laid down by the Division Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali / Society Ltd., vs. State of Gujarat and Others, reported in 2017(2) GLR 902, paragraphs 13 to 16 read thus :-
"13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the Authorised Officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the Authorised Officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to Page 22 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the Authorised Officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.
14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the Managing Committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the Managing Committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Page 23 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all. 14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.
15. However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of election, it can approach the Competent Authority by raising an election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the Competent Authority independently and uninfluenced by the findings recorded either by the learned single Judge or by this Court in this appeal.
16. Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of."
11. In view of the ratio as laid down in 2006 (1) GCD 211 once the election programme has been set in motion Page 24 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 even though there may be some alleged illegality or breach of rules while preparing the electoral roll, this Court under Article 226 of the Constitution of India should refrain itself from exercising its extraordinary jurisdiction.
12. In view of the fact that this Court has not gone into the merits of the impugned order dated 27.11.2021 passed by the Authorised Officer i.e. respondent No.3 the judgment as referred by the learned advocates appearing for both the sides are not dealt with. This Court is inclined to relegate the writ applicants to avail statutory remedy under rule 28 of the Rules, 1965.
12.1 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-
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(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and
(b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member."
13. This court is not inclined to interfere under the Article 226 of the Constitution of India with regard to the decision taken by the respondent no.3 cancelling the names of the writ-applicants from the voters' list from Page 26 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 agriculturist constituency APMC, Vankaner. This Court has not gone into the merits of the impugned order. The impugned order dated 27.11.2021 passed by the respondent no.3 Authorised Officer. The deletion of the names of the writ-applicants from voters' list can be assessed in the election petition under Rule 28 of the Rules, 1965. If the writ-applicants were to institute the election petition, the Competent Authority is directed to consider the same in accordance with law without being influenced by any observations made by this Court while deciding the present writ application.
14. The reliance placed by the writ-applicant on the order/judgment dated 22.11.2021 passed by the Division Bench of this Court in the Letters Patent Appeal No.1821 of 2019 is not applicable to the facts of the present case. Also the present writ application arises disputed questions of facts which can be adjudicated by availing statutory alternative remedy under Rule 28 of the Rules, 1965.
15. In view of above, this Court is not inclined to exercise Page 27 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022 C/SCA/18140/2021 ORDER DATED: 12/04/2022 its extraordinary jurisdiction under Article 226 of the Constitution of India and no extraordinary circumstances warrant interference by this Court.
16. With the above observations the present writ application fails and the same stands rejected. Since the writ application is rejected, interim relief granted by the order dated 28.12.2021 stands vacated.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 28 of 28 Downloaded on : Tue Apr 12 21:35:31 IST 2022