Gujarat High Court
Daheda Group Seva Sahakari Mandli ... vs R.D. Rohit, Autho. Officer And Co. ... on 27 April, 2005
Bench: R.S. Garg, Ravi R. Tripathi
JUDGMENT Kshitij R. Vyas, J.
1. In this group of Special Civil Applications, the petitioners have prayed for quashing and setting aside the order passed by the Authorized Officer and Cooperative Officer (Marketing), the respondent No. 1 i.e. District Registrar, Cooperative Societies, Anand and to direct the said respondent to include names of the petitioners in the final voters' list. By way of interim order, the petitioners have also prayed for direction to respondent No. 1 to permit the petitioners in the ensuing elections of the Kambhat Agricultural Produce Market Committee. According to the petitioners, they are entitled to be included in the voters list but for the reasons best known to the Election Officer acting at the behest of someone else, on extraneous grounds, deleted the names of the authorised representatives of the Agricultural Cooperative Societies or of the Societies which are disbursing agricultural loans to the members.
Since in this group of Special Civil Applications common questions of law is involved, we intend to dispose them off by this common judgment.
2. By relying upon the provisions of law, especially Rule 28 of Gujarat Agricultural Market Produce Committee Rules, 1965 (hereinafter referred to as 'the rules'), it is averred that inclusion or non-inclusion of the names of certain voters in the voters' list cannot be challenged in an election petition under rule 28 of the rules. The petitioners, to substantiate their submissions, placed reliance on a decision of Division Bench in the case of Mehsana District Coop. Purchase & Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Ors. reported in 1998 (1) GLH 170.
3. During the course of the hearing before the Division Bench, the respondents raised a preliminary objection regarding maintainability of the petition by contending that the question of validity of preparation of voters' list which includes inclusion or deletion of the names of the voters in it, being integral part of the election process can always be raised in an election petition filed under rule 28 of the rules. To make good the submissions, learned Advocate for the respondents relied upon the following decisions of three Division Benches of this Court:
(i) Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana, (1986 GLH 430).
(ii) Mehsana District Cooperative Sales and Purchase Union Ltd. and Anr. v. State of Gujarat and Ors. (1988 (2) GLR 1060)
(iii) Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718).
4. In view of the conflicting judgments of the Division Benches of this Court wherein some of the Division Benches had taken a view that the inclusion or non-inclusion of the names in the voters' list cannot be made a ground in an election petition, while the other view is that preparation of the voters' list which includes deletion of the names in the voters' list being integral, the questions can be raised in an election petition under rule 28, the Division Bench felt that the matters need hearing by a larger Bench to settle all the disputes once and for all. Hence this group of petitions has been referred to us to answer the following questions:
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 ?
5. We have heard Mr B S Patel, learned Counsel for the petitioners as well as M/s. Tushar Mehta, Pushpadatta Vyas and Mr B B Naik, learned Counsel appearing as intervener and Mr Kamal Trivedi, learned Addl.Advocate General with Ms. Sangeeta Vishen, learned AGP for the respondents.
6. Mr B S Patel, learned Advocate appearing for the petitioner has submitted that a person whose name is not included in the voters' list is not entitled to file election petition under rule 28 of the rules. By inviting our attention to rule 6 of the rules, he has submitted that only such person can file the election petition who is either qualified to be elected or qualified to vote. A person whose name is not entered in the electoral roll is not a person qualified to vote. But as regards, if his name is deleted by the authorised officer, he will no longer be a qualified voter as provided in rule 6 and, therefore, he may not be in a position to file the petition under rule 28. Mr Patel has submitted that the remedy under rule 28 cannot be termed to be an efficacious remedy as according to him, the election tribunal cannot set aside the election unless deletion of names is of large number of persons, and even if all these persons jointly approach the election tribunal, it would not be possible for them to prove that non-inclusion of their names in the voters list has materially affected the election. He further submitted that since name of the voter is not to remain permanently on the electoral roll at the time of every election of the managing committee, fresh voters' list are required to be prepared under rule 9 and therefore, any decision in the election petition will be of no useful purpose as the name of that person can be deleted again. It was submitted that in that event, in absence of any right to appeal the powers which are conferred on authorised officer would lead to hazardous situation. The chances of giving benefit to one party in the election for extraneous reasons cannot be ignored and in absence of right to appeal regarding inclusion or exclusion from the voters' list in an important election of local authority, there must be the control and check by the Hon'ble Court under Article 226 of the Constitution of India. By citing a number of judgments, finally it was submitted by the learned Advocate that restriction under Article 226 of the Constitution of Indian on the High Court are self-imposed and there cannot be a bar to exercise of jurisdiction under Article 226 and the Court can always interfere in a given case. It was therefore, submitted that the powers under Article 226 of the Constitution of India cannot be curtailed by relegating the party to file election petition under Rule 28 of the rules.
7. Mr Tushar Mehta, learned Advocate, by adopting the aforesaid submissions of Mr B S Patel, by inviting our attention to similar provisions of rule 28 of the rules in other statutes, namely; Gujarat Cooperative Societies Act, Gujarat Panchayat Act and Gujarat Municipalities Act, submitted that even though the submissions are alike, under the other statutes more particularly under rule 82 of the Gujarat Specified Cooperative Societies Election to Committees Rules, 1982 wherein it is provided that any aggrieved person can challenge the election by an election petition while the right to vote is not available. In the submission of Mr Mehta in view of provisions of rule 28(1) read with rule 6 of the rules, it is doubtful whether an election petition can be maintained by a person whose name is not entered in the electoral roll. In substance, it was submitted by him that a person cannot file an election petition if his name is not there in the voters' list and, therefore, the only remedy available to him is to invoke jurisdiction under Article 226 of the Constitution of India.
8. Mr B B Naik, learned Counsel also adopted the submissions of Mr B S Patel and submitted that as per the scheme of the Agricultural Produce Market Act, 1963 (hereinafter referred to as 'the Act') majority of the members are agriculturists and they are vital voters and they have a right to vote in the election of the Market Committee. He submitted that rule 7 and 8 of the rules which are for the purpose of preparing voters' list and the same is separate from election process and therefore, inclusion or exclusion in the voters' list can always be challenged in a petition under Article 226 of the Constitution of India.
9. Mr Pushpadatta Vyas, learned Counsel submitted that the jurisdiction of the High Court under Article 226 of the Constitution of India is not restricted and the Court can always interfere in a given case in a petition challenging illegal order.
10. Mr Kamal Trivedi, learned Addl.Advocate General for the respondents, by referring to Rule 6 and 28 of the rules, submitted that a person may be qualified to vote in an election - by virtue of his being a member of the Managing Committee of the particular cooperative society as per section 11(1) of the Act and not by virtue of the inclusion or deletion of his name in the voters' list. In his submission, inclusion or deletion of a name is only consequence of holding a capacity because if a person holds the post, his name should be included and if he ceases to hold the post on the date of election programme, then his name should be deleted, meaning thereby it is the holding of the capacity which is the relevant criterion and not the appearance of name in the voters' list which is only a consequence. He submitted that provisions of rule 28 are even otherwise independent of the provisions of rule 6 and are not, in any manner, controlled by Rule 6 and provide for remedy for resolution of all kind of election disputes. According to MR Trivedi, the aforesaid provisions of rule 6 and rule 28 are self-contained and are to be interpreted without taking any external aid of other legislations like Gujarat Panchayats Act, 1993, Gujarat Co-operative Societies Act, 1961, Gujarat Municipalities Act, 1963 and the Representation of the People Act of 1950 or 1951. Finally he submitted that in view of the two earlier decisions of the Division Benches of this Court in the case of Patan F.& S.S.M. Ltd. v. Pali Shakbhaji S.M. Ltd. (1986 GLH 430) (supra) and Mehsana District Coop. Sales Union v. State of Gujarat (1988 (2) GLR 1060) (supra), another Division Bench of this Court in the case of (Mehsana District Cooperative Purchase & Sales Union v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Ors.(1998 (1) GLH 170) could have referred the matter to the larger Bench instead of taking altogether a contrary view.
11. Mr Harin Raval, learned Counsel appearing for respondent No. 2 adopted the submissions advanced by the learned Addl.Advocate General. He also cited certain authorities to substantiate his submissions.
11.1. Before we examine the rival contentions of the learned Counsel, it is necessary to refer to certain provisions of the Act and Rules. The objects and reasons of Gujarat Agricultural Markets Act, 1963 (Gujarat Act No. XX of 1964) suggest that it is an Act to consolidate and amend the law relating to regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Gujarat. Section 2(ii) defines "agriculturist", means a person who ordinarily by himself or who by his tenants or hired labour or otherwise is engaged in the production or growth of agricultural produce, but does not include a trader or broker in agricultural produce although such a trader or broker may also be engaged in the production or growth of agricultural produce."
11.2. Clause (ix) of section 2 defines "licence" - means a licence granted under section 6 or, as the case may be, a general or special licence granted under section 27.
11.3. Section 2(xxiii) defines "trader", means any person, who carries on the business of buying or selling of agricultural produce or of processing of agricultural produce for sale and includes a cooperative society, joint family or an association of persons, whether incorporated or not, which carries on such business;
11.4. Section 3 of the Act provides for determination of whether person is agriculturist or not for the purpose of the Act, the power to decide the dispute is vested with the Director under sub-section (2) and the aggrieved person may file appeal to the State Government within 60 days from the date of such decisions. While the decision of the State Government under sub-section (2) and subject thereto the decision of the Director under sub-section (i) shall be final.
11.5. Sub-section 6 deals with declaration of market areas. Section 9 provides for establishment of market committee or committees for every market area. By virtue of section 11 of the Act, every market committee shall consist of the following members :
i. eight agriculturists who shall be elected by members of the managing committees of cooperative societies (other than cooperative marketing societies) dispensing agricultural credit in the market area;
ii. two representatives of the Cooperative marketing societies situate in the market area and holding general licences, to be elected from amongst the members (other than nominal, associate or sympathizer members) of such societies by the members of the managing committees of such societies;
provided that where the number of cooperative marketing societies so situate does not exceed two, only one representative shall be so elected;
iii. one member to be nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councillors or, as the case may be, members who do not hold any general licence; Provided that where under the law applicable to the local authority its councillors or members have vacated office and any person or administrator has been appointed to exercise the powers and perform the functions of the local authority, such person or, as the case may be, administrator shall nominate a member under this paragraph from amongst persons qualified to be councillors or members of the local authority and not holding a general licence;
iv. two members to be nominated by the State Government: provided that when a market committee is constituted for the first time all the members thereof shall be persons nominated by the State Government and shall hold office for a period of two years from the date of their nomination;
12. Thus the market committee envisaged by these provisions are consisting of elected representatives of the first three constituencies and members nominated by the local authority and the State Government. Under section 59, the State Government may, by notification in the official Gazette, make rules, either generally or specially for any market area or market areas for the purpose of carrying out the provisions of this Act, such rules may provide for or regulate -
(i) preparation and revision of list of voters for the purpose of any election under section 11, (ii) determination of disputes arising in such election and (iii) payment of expenditure in connection with or incidental to such election;
In exercise of power conferred under section 59 of the Act, Government of Gujarat has framed rules called Gujarat Agricultural Produce Markets Rules, 1965. Part III of the said rules entitles "Election of Market Committee". Rule 4 empowers the Director to fix the date of election for general election of the market committee or by-election under section 15 of the Act. Under rule 5, three different lists of voters are to be prepared for the purpose of section 11 of the Act. These lists comprise -
(i) list of members of the Managing Committee of the cooperative societies dispensing agricultural credit in the market area;
(ii) list of traders holding general licences in the market area;
(iii) list of members of managing committees of Cooperative Marketing Societies situated in the market area.
According to rule 6, a person whose name is entered in the voters' list shall be qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list. Rules 7 and 8 provide for the preparation of list of voters for general election which reads as under:
(7) (i) every Cooperative Society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing committee together with the place of residence of each member;
(ii) the market committee shall communicate the full names of the traders holding general licences in the market area together with the place of residence of each such trader; and
(iii) every Cooperative Marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member, to the authorised officer before such date as the Director may be by order fix in that behalf.
Provided that the date to be so fixed shall not be later than sixty days before the date of the general election.
(2) The Authorised Officer shall within seven days from the date fixed under sub-rule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the information received under sub-rule (1) and, if necessary, after making such inquiry as he may deem fit.
(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
Rule 8. Provisional and final publication of lists of voters - (1) As soon as the list of voters is prepared under rule 5, it shall be published by the Authorised Officer by affixing copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.
(2) If any application is received under sub-rule (1), the Authorised Officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be, necessary in pursuance of the decision given by him on the application. The final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election.
(3) Copies of the final list of voters prepared under this rule shall be kept open for public inspection at the office of the Authorised Officer and at the office of the market committee.
Rule 28, which is relevant for our purpose, provides for Determination of validity of election whereby a person qualified to vote or to be elected at the election, may approach a Director or the State Government as the case may be within seven days after the date of the declaration of the result of the election to challenge the validity of the election.
13. Rule 28 has been interpreted by this court on many a times. It came up for consideration by way of Letters Patent Appeal before the Division Bench consisting of Hon'ble M/s. Justices B K Mehta and R J Shah, JJ in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Shak Bhaji and Fal Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana (1986 GLH 430). It was a case wherein the names of the members of the Managing Committee of the petitioners' society were not included in the voters' list and, therefore, the petitioners' society moved the court for appropriate writ, orders or direction for enjoining the authorised officers to include names of the members of the Managing Committee in the voters' list as required under section 11(1)(iii) of the Act. The matter came up before the learned Single Judge, who disposed of the petition on merits with the consent of the parties. In para 6 of their judgment, the Division Bench has observed as under:
"6. The learned Single Judge was of the opinion that on the true interpretation of the relevant rules, inter alia, Rules 7 and 8 of the Rules, the qualifying date for purposes of determining the eligibility of a person to be enrolled as a voter should be considered the date on which the final voters' list is published under the Rules and, therefore, the petitioner society was well within bounds and entitled to enrolment of its members of the Managing Committee as voters in the voters' list for purposes of the elections to the Market Committee. He ruled out the objection raised on behalf of the appellant-society that the petitioner society can have recourse to the election petition as provided in Rule 28 and the court should not arrest or interfere with the programme of election at that stage since in his opinion it cannot be said as a rule of law and it is more in the nature of rule of discretion which the court should observe since the election is a costly process and should be allowed to have its own operation uninterrupted by any outside agency. He, therefore, allowed the petition and directed the Authorised Officer to include the names of the members of the petitioner's Managing Committee as voters and made the Rule absolute."
Against the said order, LPA was preferred as aforesaid. The LPA Bench formulated two questions to be decided namely;
1. "Whether this court has jurisdiction and/or can interfere in exercise of such jurisdiction under Article 226 of the Constitution of India and consecutively arrest the programme of election which has been declared in connection with election of the market committee in question since the special right of being voters conferred on the eligible person under the said Act can be enforced by the special remedy of Election Petition under Rule 28 of the Rules.
2. Whether the original petitioners are entitled to be enrolled as voter?.
The Division Bench, after considering he entire scheme and the relevant provisions of the Act as well as the rules, was of the view that when special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finalty in the matters pertaining to various stages of elections and therefore, having regard to the 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 the elections are over so as to avoid impediment or hindrance in the election process, does not arise. In that view of the matter, the Division Bench was of the opinion that this court should not exercise the jurisdiction under Article 226 of the Constitution of India by interfering at this stage with the election process. In that view of the matter, the Division Bench did not feel it necessary to go into the second question of each of those appeals.
14. In para 29 of the judgment, it was further observed that if the court, on principle and authority, should not exercise the jurisdiction in such matters pertaining to elections, it is proper not to express any opinion on the construction of a rule since the question as too whether a particular person is a voter or not, or continues to be a voter, or is entitled to object to inclusion of the names of some persons who, according to the objector, are ineligible for being included , are questions which are pre-eminently fit to be decided by the competent election authorities.
15. In the case of Mehsana District Cooperative Sales and Purchase Union Ltd. (supra) (1988 (2) GLR 1060) the Division Bench consisting of Hon'ble M/s.Justices Ahmadi and D H Shukla, JJ. were posed with the question as to whether the High Court, in exercise of jurisdiction under Article 226 of the Constitution would be justified in arresting the election programme which has been set in motion by the issuance of an order under Rule 4 and 10 of the rules on the plea of omission of certain names from the lists of voters finalised by the Authorised Officer under rule 8 in view of the special forum and remedy provided by Rule 28 of the Rules ? The Division Bench, after considering various decisions including the decision rendered in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan (supra) (1986 GLH 430) held that according to Rule 28, if the validity is questioned after the declaration of the result, it has to be decided by the special forum created by the said Rules. That forum has the power to confirm or amend the declared result or set aside the election. Prima facie, therefore, the preparation of the lists of voters is a step in the direction of holding of elections so far as the scheme of the Rules is concerned.
16. The Division Bench answered the question posed before it in negative and consequently refused to arrest the election programme which was already set in motion by observing that it must be remembered that the right to be included in the voters' list is conferred by statute and must, therefore, be exercised under the statute and not de hors the said statute since the petitioners have no right in equity or at common law. The right being a statutory right must be exercised within the frame work of the statute and if the statute provides for an efficacious remedy for the enforcement of the right, the High Court would be justified in refusing to exercise jurisdiction under Article 226 of the Constitution.
17. The Division Bench in para 11 of its judgment observed that in extraordinary and exceptional cases the Court would be justified in invoking the jurisdiction under Article 226 of the Constitution. However, the case on hand was not to be one such case for invoking the extraordinary jurisdiction of this Court.
18. It appears that a consistent view was taken in the aforesaid two decisions but a contrary view was taken by another Division Bench consisting of Hon'ble M/s. Justices K G Balakrishnan (as He then was) and A K Trivedi, JJ in the case of Mehsana District Coop.Purchase & Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Ors. (1998 (1) GLH 170). The said decision was rendered in a group of Letters Patent Appeals challenging the judgment of the learned Single Judge. The learned Single Judge dismissed the Special Civil Applications on the ground that the petitioners have got efficacious alternative remedy under Rule 28 of the Rules and, therefore, the petitioners were not entitled to invoke jurisdiction under Article 226 of the Constitution of India. The petitioner in those Special Civil Applications alleged that though they were included in the preliminary voters' list, their names were omitted from the final voters' list and this, according to the petitioners was violative of Rule 8 of the Rules. It was also contended that the removal of their names from the final voters' list was opposed to principles of natural justice and therefore, void. In another petition it was alleged that names of the concerned respondents were wrongly included as their names were included neither in the preliminary voters' lists or in the revised draft list. The petitioners sought direction to include their names in the voters' list. The Division Bench in para 15 of its judgment impressed with the submissions of the appellants that they had no other alternative remedy under Rule 28, observed as under:
"The main thrust of the argument of the appellants' counsel is that the petitioners, whose names were deleted from the final voters' list, can file an election petition under Rule 28 of the Market Rules. We also noticed that in Two Division Bench decisions, it was held that under such circumstance, the aggrieved person can file election petition under Rule 28. We do not think that in view of the specific wording of the Rule, the petitioner will be able to challenge the deletion of their names from the voters' list. It may be noted that there is no provision under the Markets Act or under the Markets Rules to file an appeal against the decision of the Authorised Officer deleting the names from the final voters' list."
18.1. The Division Bench, after considering Rule 28 observed that -
"It is clear from the above provision in Rule 28, that a person qualified to vote alone can maintain a petition under Rule 28. It is pertinent to note that under Rule 6, it is specifically stated as to who are the persons qualified to vote."
Further , considering rule 6, it was observed that -
"As per Rule 6 a person, who can file an election petition, is a person who must be either qualified to be elected or to vote. A person, whose name is not entered in the electoral roll, is not a person qualified to vote. It is true that it has been held by this court in 1983 (1) GLR 475 that under section 11(1) an agriculturist, who answer the requirement of section 2(ii) can contest for one of the eight seats of the agriculturist constituency and for getting elected therefrom to the market committee and that is not necessary for such an agriculturist to be a member of the Managing Committee of the concerned cooperative society. Such an agriculturist is a person qualified to be elected and he can file a petition under Rule 28. But as regards a voter, if his name is deleted by the authorised officer, he will no longer be qualified voter as provided under rule 6, and therefore, he may not be in a position to file a petition under rule 28."
18.2. It may not be out of context to mention here that one more judgment delivered in the case of Choudhary Rameshbhai Dalsa v. Director of Agricultural Market and Rural Finance and Anr. (1996 (2) GLR 166 by the learned Single Judge (Hon'ble Mr Justice M S Shah, J.) wherein it was held that a person who is not a voter can also maintain a petition under Rule 28. It was further held that a person who is not a voter has to be construed as a person qualified to vote. It was held that words "claiming to be" are to be supplied to rule 28(1), so as to make a person who claims to vote is also held entitled to file a petition under Rule 28.
19. The Division Bench, after considering the above judgment of the learned Single Judge, held that the view taken by the learned Single Judge was not correct. Courts are not expected to supply words to the Statute so as to give a different meaning. If the interpretation of a section leads to an apparent conflict with other provisions, the court can adopt an interpretation so as to avoid conflict. The court can iron out the creases, but cannot alter the material. Moreover, the definition of words "qualified to vote" as given in rule 6 is to be applied. When any of the provisions of the statute is interpreted and when the Legislature gives a dictionary for the statute, the words given in the statute can only be interpreted in accordance with the meaning given in such a dictionary. Any other view taken by the court cannot be accepted as a proper interpretation. The Court observed that "going by the provisions of rule 28(1) read with rule 6, it is doubtful, whether an application could be maintained by a person whose name is not entered in the electoral roll".
20. Finally in the case of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004(3) GLR 2718), again the interpretation of rule 6 and rule 28 came up for consideration before another Division Bench consisting of Hon'ble M/s. Justices R K Abichandani & D H Waghela, JJ. The Division Bench, after considering all the aforesaid three decisions, held that in view of the efficacious machinery provided in Rule 28 of the rules and since the election process is at a very advanced stage, at both the places, interference with the election processes by entertaining any of these petitions at this stage is not warranted. While holding the decision held in the case of Kanjibhai Babaldas Patel v. Election Officer of APMC, Visnagar, as per incuriam. It was observed that -
"The stage of scrutiny of nomination and withdrawal of candidature are strictly time bound under the statutory rules. If the High Court interferes, the outcome of the scrutiny of the nomination, it will have direct effect of disturbing the time schedule statutorily contemplated as aforesaid. For example, when nomination paper is wrongly rejected, or accepted and the High Court directs otherwise, which may directly disturb the date on which such list is required to be statutorily affixed not less than seven days before the date fixed for the election. As soon as the court enters into the controversy of the validity of the nomination paper, by the very nature of time schedule, having been already announced under the statutory rules, there would be every likelihood of interfering with the process of election. Therefore, in the matter of rejection of nomination, it is eminently clear that entertaining of a petition at such late stage would in no way smoothen the progress of election proceeding.
If pick and choose policy is adopted for examining some cases of rejection or such acceptance of nomination papers and not others, in face of proximity of voting dates, it would amount to circumventing the settled legal position that if an election (the term elected 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 an effect of interrupting, obstructing or protracting the election in any manner, the invoking judicial remedy has to be postponed till after the completion of proceeding in elections."
In substance, the Division Bench in their decision virtually approved the earlier two decisions rendered in 1988 (2) GLR 1060 (supra) and 1986 GLH 430 (supra).
21. In view of the conflicting decisions rendered by the different Division Benches of this Court, we have to consider the rival contentions advanced before us by the learned Counsel for the respective parties.
On a plain reading of rule 28 which provides remedy to "any person qualified" either to be elected or to vote at the election to determine the validity of the election of the members of APMC. Since the expression "any person qualified" is not defined under the Act and the Rules, guidance is to be derived from rule 6 of the rules, dealing with "persons qualified to vote" - where the qualification criteria is to be taken into account which should be the capacity i.e. the post and not the factum of inclusion and exclusion of the names from the voters' list. We agree with the submissions of the learned Addl.Advocate General that with a view to give full effect to the provisions providing for remedy in the matter of resolution of election disputes as contained in the aforesaid Rule 28, the said provisions along with the provisions of Rule 6 should be given purposive interpretation in the widest amplitude so as to make the same more meaningful and effective. He has placed reliance of the decision in the case of D. Saibaba v. Bar Council of India and anr.(2003) 6 SCC 186. While interpreting the Section 48-AA of the Advocates Act, 1961, the Hon'ble Supreme Court held as under:
"So far as the commencement of the period of limitation for filing the review petition is concerned, we are clearly of the opinion that the expression 'the date of that order' as occurring in section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petition. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart."
In view of the above, referring back to the present controversy, a person may be qualified to vote in any election, by virtue of his being a member of the Managing Committee of the particular Cooperative Society as per section 11(1) of the Act and not by virtue of the inclusion or deletion of his name from the voters' list. Inclusion or deletion of a name is only consequence of holding a capacity because if a person holds the post, his name should be included and if he ceases too hold the post on the date of election programme, then his name should be deleted, meaning thereby it is the holding of the capacity which is the relevant criterion and not the appearance of name in the voters' list which is only a consequence. Thus, even though a person's name is found entered into voters' list that alone would not qualify him to be a voter because it can be shown that he had ceased to hold the capacity in which his name was entered into the list, even though he had voted on the basis of inclusion of his name in the final voters' list but proof of his capacity having been ceased, the election could be set aside on the ground of improper reception of voters of an ineligible person. The context in which Rule 6 is framed by the Legislature cannot be read in isolation. While interpreting the same, it has to be kept in view that it also talks about cessation of the capacity in which name of a person was entered into the list. Therefore, it would be improper to construe Rule 6 as controlling the eligibility of a person entitled to file an election petition under Rule 28.
22. Provisions of rule 28 of the rules are otherwise independent of the provisions of rule 6 and are not in any manner, controlled by rule 6 and provide for remedy for resolution of all kind of election disputes. If the provisions of rule 6 and rule 28 are not interpreted in the wider spectrum and in light of the intent of the legislature as discussed hereinabove, the same would create two classes i.e. (1) one which can challenge the wrong inclusion only by way of election petition, and (ii) the other which can challenge the non-inclusion i.e. exclusion by way of writ petition only. This could never have been intended by the legislation. When remedy of election petition is deemed fit and is provided as a statutory remedy then every election dispute should be raised before the forum competent to decide the same.
23. In view of the aforesaid provisions, which in our opinion, are self-contained and are to be interpreted without taking any external aid from other legislations like Gujarat Panchayats Act, 1993, Gujarat Cooperative Societies Act, 1961, Gujarat Municipalities Act, 1963 and the Representation of the People Act of 1950. We, therefore, see no merits in the submissions advanced by Mr Tushar Mehta.
24. As observed earlier, the Division Bench, in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Shak Bhaji and Fal Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana (1986 GLH 430) (supra) and in the case of Mehsana District Coop. Sales and Purchase Union Ltd. and Anr. v. State of Gujarat (1988 (2) GLR 1060 (supra), have clearly laid down that rule 28 is a provision of widest amplitude where the validity of election can be challenged on any ground and further since the question as to whether a particular person is a voter or not, or continues to be a voter, or is entitled to be included in the voters' list, or entitled to object to the inclusion of the names of some persons, who according to the objector, are ineligible for being included, are questions which are pre-eminently fit to be decided by the competent election authorities and further if the voters' list is prepared on extraneous considerations and not consistent with the requirements of the relevant rules, the forum created under Rule 28 of the rules would have jurisdiction and would be justified in looking into the same. We accordingly hold that the question that whether the voters' list is to be modified at the instance of some 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. It is a right conferred under the Act for which remedy has been provided and therefore, this Court should not exercise its discretion in the matter. In our opinion, inclusion or exclusion of the names in the voters' list 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 the elections are over so as to avoid impediment or hindrance in the election process. The Division Bench of this Court in the the case of Mehsana Dist.Coop.Purchase & Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. (1998 (1) GLH 170 (supra) could have referred the matter to the larger Bench especially in view of the earlier two decisions of two different Division Benches of this Court as stated above instead of taking a contrary view in the matter.
25. The Division Bench of this Court in a decision rendered in the case of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718 (supra), rightly held that the decision rendered by the Division Bench in the case of Mehsana Dist.Coop.Purchase and Sales Union Ltd. (supra) (1998 (1) GLH 170, could have referred the matter to the Larger Bench if at all while taking a different view than the view expressed in the earlier two decisions of the Division Benches. The said Division Bench, though referred to those two decisions of the earlier Division Benches but took absolute contrary view than the view expressed by the earlier two decisions. (1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex Court in the case of Atma Ram v. State of Punjab (AIR 1959 SC 519), observed that -
"where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger bench".
26. We may make it clear that by interpreting Rule 6 and 28 of the Rules, we are not enlarging the scope of the legislation or intention of the legislator nor recasting, rewriting or reframing the legislation. We are conscious of the fact that the Court has no power to legislate. Therefore, the decision rendered by the Hon'ble Apex Court in the case of State of Gujarat and Ors v. Dilipbhai Nathjibhai Patel and Ors., reported in AIR 1998 SC 1429 cited by Mr B S Patel will be of no assistance to him.
27. We accordingly do not approve the law laid down by the Division Bench of this Court in the case of Mehsana Dist.Coop.Purchase & Sales Union Ltd. (supra) (1998 (1)GLH 170. In light of what is stated above, we approve the decisions rendered by the respective Division Benches in the following cases by holding that the same are good law:-
i. 1986 GLH 430 - Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Sahak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. and Ors.
ii. 1988 (2) GLH 1060 - Mehsana Dist.Cooperative Sales and Purchase Union LTd. and Anr. v. State of Gujarat and Ors.
iii. 2004 (3) GLR 2718 - Kanubhai Chhaganbhai Patel v.Director of Agricultural Marketing & Rural Finance, Gandhiniagar and Ors.
28. In view of the above discussion, we see no merits in the first submission of Mr Patel that a person whose name is not included in the voters' list is not entitled to file election petition under Rule 28 of the Rules. We accordingly reject the submission that only such person can file the election petition who is either qualified to be elected or qualified to vote.
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 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. 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 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.
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.
34. As the above are answers to the Reference, all the petitions are to be listed for referring them back to the concerned Division Benches to pass appropriate orders, in view of the above answers to the reference.