Gujarat High Court
Lekhamba Gopalan Ane Samudayik ... vs State Of Gujarat & 4 on 8 August, 2016
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/230/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 230 of 2016
In SPECIAL CIVIL APPLICATION NO. 2953 of 2016
With
LETTERS PATENT APPEAL NO. 231 of 2016
In
SPECIAL CIVIL APPLICATION NO. 2962 of 2016
TO
LETTERS PATENT APPEAL NO. 232 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3575 of 2016
With
LETTERS PATENT APPEAL NO. 245 of 2016
In
SPECIAL CIVIL APPLICATION NO. 2536 of 2016
TO
LETTERS PATENT APPEAL NO. 249 of 2016
In
SPECIAL CIVIL APPLICATION NO. 2540 of 2016
With
LETTERS PATENT APPEAL NO. 251 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3191 of 2016
With
LETTERS PATENT APPEAL NO. 253 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3188 of 2016
With
LETTERS PATENT APPEAL NO. 254 of 2016
In
SPECIAL CIVIL APPLICATION NO. 3189 of 2016
With
LETTERS PATENT APPEAL NO. 279 of 2016
In
SPECIAL CIVIL APPLICATION NO. 4782 of 2016
With
CIVIL APPLICATION NO. 2621 of 2016
In
LETTERS PATENT APPEAL NO. 230 of 2016
With
CIVIL APPLICATION NO. 2625 of 2016
In
LETTERS PATENT APPEAL NO. 231 of 2016
With
CIVIL APPLICATION NO. 2627 of 2016
In
Page 1 of 24
HC-NIC Page 1 of 24 Created On Wed Aug 10 03:08:00 IST 2016
C/LPA/230/2016 CAV JUDGMENT
LETTERS PATENT APPEAL NO. 232 of 2016
With
CIVIL APPLICATION NO. 2728 of 2016
In
LETTERS PATENT APPEAL NO. 245 of 2016
TO
CIVIL APPLICATION NO. 2732 of 2016
In
LETTERS PATENT APPEAL NO. 249 of 2016
With
CIVIL APPLICATION NO. 2735 of 2016
In
LETTERS PATENT APPEAL NO. 251 of 2016
With
CIVIL APPLICATION NO. 2738 of 2016
In
LETTERS PATENT APPEAL NO. 253 of 2016
With
CIVIL APPLICATION NO. 2740 of 2016
In
LETTERS PATENT APPEAL NO. 254 of 2016
With
CIVIL APPLICATION NO. 3000 of 2016
In
LETTERS PATENT APPEAL NO. 279 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
=========================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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HC-NIC Page 2 of 24 Created On Wed Aug 10 03:08:00 IST 2016
C/LPA/230/2016 CAV JUDGMENT
=============================================
LEKHAMBA GOPALAN ANE SAMUDAYIK SAHAKARI MANDLI LIMITED &
1....Appellant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
=============================================
Appearance in LPA Nos. 230, 231 and 232 of 2016 and Civil Application
Nos.2621, 2625 and 2627 of 2016:
MR BS PATEL, ADVOCATE for the Appellant(s) No. 1 2
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MR VENUGOPAL
PATEL, AGP for the Respondent(s) No. 1
JAY B TRIVEDI, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4
Appearance in LPA Nos. 245 TO 249 of 2016 and Civil Application
Nos.2728 to 2732 of 2016 :
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR. DILIP B. RANA,
ADVOCATE for the Appellant(s) No. 1
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MR VENUGOPAL
PATEL, AGP for the Respondent(s) No. 1
MR VC VAGHELA, ADVOCATE for Respondent(s) No.5
Appearance in LPA Nos. 251, 253 and 254 of 2016 with Civil Application
Nos.2735, 2738 and 2740 of 2016 :
MR MIHIR THAKORE, SENIOR ADVOCATE WITH
MS.M.D.NARSINGHANI, ADVOCATE for the Appellant(s) No. 1
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MR VENUGOPAL
PATEL, AGP for the Respondent(s) No. 1
Appearance in LPA Nos. 279 of 2016 with Civil Application No.3000 of
2016 :
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR. DILIP B. RANA,
ADVOCATE for the Appellant(s) No. 1
MR PK JANI, ADDITIONAL ADVOCATE GENERAL WITH MR VENUGOPAL
PATEL, AGP for the Respondent(s) No. 1
MR CHIRAG B. PATEL, ADVOCATE for the Respondent(s) No.45
=========================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 08/08/2016
CAV JUDGMENT
Page 3 of 24
HC-NIC Page 3 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] These Letters Patent Appeals are filed under Clause 15 of the Letters Patent by the petitioners in Special Civil Applications aggrieved by the common judgment and order of the learned Single Judge dated 15.03.2016.
[2] Special Civil Application No.2953 of 2016 was filed by the Lekhamba Gopalan Ane Samudayik Sahakari Mandli Limited and another praying to quash and set aside the order dated 16.02.2016 passed by the respondent No.4 and to direct the respondent authorities to include the names of the Managing Committee of petitioner No.1 Society in the agriculturist constituency for the election of APMC, Sanand.
[2.1] Special Civil Application No.2962 of 2016 was filed by the Rupavati Sahakari Gopalak Vasahat Mandli Limited and another praying to quash and set aside the order dated 16.02.2016 passed by the respondent No.4 and to direct the respondent authorities to include the names of the Managing Committee of petitioner No.1 Society in the agriculturist constituency for the election of APMC, Sanand.
[2.2] Special Civil Application No.3575 of 2016 was filed by the Pandoli Anaj Utpadak Sahakari Mandli Limited and other 10 societies praying to quash and set aside the order dated 29.02.2016 passed by the respondent No.4 and to direct the respondent nos.2 and 3 to include the names of the Managing Committee of petitioner No.1 to 11 societies in the agriculturist constituency for the election of APMC, Petlad.
Page 4 of 24HC-NIC Page 4 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT [2.3] Special Civil Application No.2536 of 2016 was filed by the Kashipura Gam Ni Gopalak Sahakari Mandli Limited praying to quash and set aside the impugned decision dated 08.02.2016 passed by the Authorized Officer whereby the names of Managing Committee of the petitioner society are not included in the preliminary voters' list for the ensuing election of the respondent Market Committee and further to direct the respondent No.3 - Authorized Officer to include the names of the petitioner society in the voters list of agricultural constituency for the election of the respondent No.4 Market Committee.
[2.4] Special Civil Application No.2537 of 2016 was filed by the Por Gam Ni Gopalak Sahakari Mandli Limited praying to quash and set aside the impugned decision dated 08.02.2016 passed by the Authorized Officer whereby the names of Managing Committee of the petitioner society are not included in the preliminary voters' list for the ensuing election of the respondent Market Committee and further to direct the respondent No.3 - Authorized Officer to include the names of the petitioner society in the voters list of agricultural constituency for the election of the respondent No.4 Market Committee.
[2.5] Special Civil Application No.2538 of 2016 was filed by the Varnama Gam Ni Gopalak Sahakari Mandli Limited praying to quash and set aside the impugned decision dated 08.02.2016 passed by the Authorized Officer whereby the names of Managing Committee of the petitioner society are not included in the preliminary voters' list for the ensuing election of the respondent Market Committee and further to direct the respondent No.3 - Authorized Officer to include the names of the petitioner society in the voters list of agricultural constituency for the election of the respondent No.4 Market Committee.
Page 5 of 24HC-NIC Page 5 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT [2.6] Special Civil Application No.2539 of 2016 was filed by the Fatehpura Gam Ni Gopalak Sahakari Mandli Limited praying to quash and set aside the impugned decision dated 08.02.2016 passed by the Authorized Officer whereby the names of Managing Committee of the petitioner society are not included in the preliminary voters' list for the ensuing election of the respondent Market Committee and further to direct the respondent No.3 - Authorized Officer to include the names of members of the Managing Committee of the the petitioner society in the voters list of agricultural constituency for the election of the respondent No.4 Market Committee.
[2.7] Special Civil Application No.2540 of 2016 was filed by the Utiya Gam Ni Gopalak Sahakari Mandli Limited praying to quash and set aside the impugned decision dated 08.02.2016 passed by the Authorized Officer whereby the names of Managing Committee of the petitioner society are not included in the preliminary voters' list for the ensuing election of the respondent Market Committee and further to direct the respondent No.3 - Authorized Officer to include the names of the members of the Managing Committee of the petitioner society in the voters list of agricultural constituency for the election of the respondent No.4 Market Committee.
[2.8] Special Civil Application No.3191 of 2016 was filed by the Jay Shri Vagaheshwari Samudayik Kheti Sahakari Mandli Limited praying to quash and set aside the order dated 16.02.2016 and further to direct the respondent No.2 to include the names of the members of the Managing Committee of the petitioner society in the final voters' list of the Agriculturist Constituency for Sanand APMC and allow them to take part in the election of Sanand APMC.
Page 6 of 24HC-NIC Page 6 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT [2.9] Special Civil Application No.3188 of 2016 was filed by the Aditya Samudayik Kheti Sahakari Mandli Limited praying to quash and set aside the order dated 16.02.2016 and further to direct the respondent No.2 to include the names of the members of the Managing Committee of the petitioner society in the final voters' list of the Agriculturist Constituency for Sanand APMC and allow them to take part in the election of Sanand APMC.
[2.10] Special Civil Application No.3189 of 2016 was filed by the Ganesh Samudayik Kheti Sahakari Mandli Limited praying to quash and set aside the order dated 16.02.2016 and further to direct the respondent No.2 to include the names of the members of the Managing Committee of the petitioner society in the final voters' list of the Agriculturist Constituency for Sanand APMC and allow them to take part in the election of Sanand APMC.
[2.11] Special Civil Application No.4782 of 2016 was filed by the Sundan Samudayik Kheti Sahakari Mandli Limited and other 8 Mandlies praying to quash and set aside the impugned common order dated 16.03.2016 passed by the Authorized Officer whereby the names of the Managing Committee of the petitioner societies were removed from the provisional voters' list of agriculturist constituency for ensuing election of the respondent Market Committee and further direct to include the names of the members of the Managing Committee of the petitioner societies in the final voters' list of the Agricultural Constituency for the election of the respondent No.4 Market Committee declared by the respondent No.2 authority.
[3] For the purpose of disposal of these appeals, we take Letters Patent Appeal No.230 of 2016 as lead matter. Said Letters Patent Appeal Page 7 of 24 HC-NIC Page 7 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT is filed against the order dated 15.03.2016 passed by the learned Single Judge in Special Civil Application No.2953 of 2016 along with other allied matters. Aforesaid Special Civil Application No.2953 of 2016 is filed with prayers which reads as under : "9(A) Be pleased to issue a Writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 16.02.2016 passed by respondent no.4 at Annexure A to the petition.
(B) Be pleased to issue a Writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondent authorities, more particularly, respondent no.2 and 3 to include the names of the Managing Committee of petitioner No.1 society in the agriculturist constituency for the election of APMC, Sand.
(C) Pending admission and final disposal of this petition, Your Lordships will be pleased to stay further operation, execution and implementation of the order dated 16.02.2016 passed by respondent No.4 at Annexure A to the petition.
In the alternative : (D) Pending admission and final disposal of this petition, Your Lordships will be pleased to restrain the respondent authorities to proceed with the election of Agricultural Produce Market Committee, Sanand in pursuance of the election programme at Annexure B to the petition.
(E) Be pleased to award the cost of this petition.
(F) Such other and further relief that is just, fit and expedient in
the facts and circumstances of the case may be granted."
Page 8 of 24HC-NIC Page 8 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT [4] In the Special Civil Application, the petitioner appellant herein has challenged the order dated 16.02.2016 passed by the respondent No.4 in exercise of powers under Rule 8 of the Gujarat Agricultural Produce Markets Rules, 1965 (for short "the Rules, 1965") deleting the names of the managing committee of the petitioner no.1 Society from the agriculturist constituency in the election of Agriculture Produce Market Committee, Sanand. Respondent No.2 herein exercising powers under the provisions of the Gujarat Agricultural Produce Market Act, 1963 (for short "the Act, 1963") declared the election programme of Sanand APMC. Pursuant to the public notification issued by respondent No.4, the petitioner No.1 Society submitted the proposal to include the names of the managing committee of petitioner no.1 Society in agriculturist constituency under section 11(1)(i) of the Act, 1963. It is case of the petitioners that respondent no.4 included the names of the members of the managing committee of the petitioner no.1 society in the voters' list which was published on 28.01.2016, however, respondent no.5 who is elected MLA from Sanand Constituency submitted his objection against inclusion of the names of the managing committee of petitioner no.1 society in the voters' list on 11.02.2016. In view of such objection, respondent no.4 issued notice to the petitioner no.1 - society on 12.02.2016. In the said notice, it is alleged that petitioner no.1 society is not dispensing agricultural credit and it has not advanced loan in the agricultural sector within last three years. It was objection of 5th respondent that as per amended provisions of section 11(1)(i) of the Act, 1963, only primary agricultural society dispensing agricultural credit and members of managing committee of such society alone can be included in the voters' list. It was objection of 5th respondent that the petitioner no.1 society is not covered under the definition of "primary agricultural credit society" as per the amended Act. After receipt of the notice, the petitioners have filed reply on 14.02.2016. It is averred by Page 9 of 24 HC-NIC Page 9 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT the petitioners in the reply filed on receipt of the notice from the 4th respondent that petitioner no.1 society is dispensing agricultural credit and it is also covered by the definition even as per the amended Act. In spite of such explanation offered by the petitioners, the 4th respondent issued impugned order on the ground that in view of amendment in section 11(1)(i) of the Act, 1963 by amending Act No.14 of 2015, instead of cooperative society dispensing agricultural credit in the market area, it has been introduced as primary agricultural credit cooperative society. Reliance is also placed on classification made by the Registrar on 26.07.1996 in exercise of powers under section 12 of the Act, 1963. Mainly, in Special Civil Application, it was the case of the petitioners that the petitioner No.1 society is primary society and no other society is member of petitioner no.1 society. It is also averred that the petitioner no.1 Society is dealing in development of the agriculturist by providing financial assistance to its members and as such it cannot be said that the petitioner no.1 society is not primary agricultural credit society.
[5] The learned Single Judge while considering the Special Civil Application and other allied matters, considered the scope of amendment under Act No.14 of 2015, provisions of the Act, 1963 and the provisions as stood under section 11(1)(i) of the Act, 1963 prior to such amendment has held in paragraph No.29 to 32 as under : "29. In view of the above, the Court finds that that considering the phrase used by the legislature while amending section 11(1)
(i) of the Act, only those societies which have their main object to do business of advancing agricultural credit activities would be considered to be the primary agricultural credit cooperative societies for the purpose of section 11(1)(i) of the Act.
30. The contention that section 59 of the Act is self contained Page 10 of 24 HC-NIC Page 10 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT Code and, therefore, voters' list is to be prepared only by looking at the Rules cannot be accepted as section 59 enables the State to frame the rules to serve the purpose of the Act. It cannot be read in isolation. For the constitution of the market committee, election for above said three categories of the members is must and election could be held by formation of the electorate for which preparation of voters' list is required. Section 11 (1)(i) lays down who can form electorate and in consonance with the same, voters' list is to be prepared as per the procedure prescribed in the Rules. Electorate comprised in the voters list elect members from amongst persons qualified to be elected as provided in section 11(1)(i) of the Act. Therefore, it is not correct to say that sec. 11(1)(i) of the Act has nothing to do with section 59 and the Rule for preparation of the voters' list. If the preparation of the voters' list is to be in consonance with section 11(1)(i), the voters' list shall be required to be prepared as per the existing provisions of section 11 which would include the amended provisions of section 11(1)(i) of the Act. Therefore, the contention that the voters' list is to be prepared as per the existing Rules wherein no amendment is brought in cannot be accepted, as it would run contrary to the main provisions. Sec. 59 provides for framing of the Rules for the purpose of the Act and not in derogation of the Act. Rule 5 also starts with the phrase "for the purpose of sec. 11 of the Act". The authorized officer is functioning as election officer under the Rules framed under the Act. Framing of the Rules is to achieve the objects of the Act, therefore, even if after Amendment of 2015, rules for the purpose of preparation of voters list have remained unamended, the authorized officer will be required to prepare voters' list of the persons eligible to vote under the existing provisions of section 11(1) of the Act. In light of the above and considering the provisions of section 59 read with section 11(1) of the Act, it is not possible to accept the contention that the authorized officer is to prepare voters' list on the basis of the unamended Rules so as to include all cooperative societies dispensing agricultural credit irrespective of or ignoring the amended provisions of section 11(1)(i) of the Act.
31. Having taken the above view, the Court finds that it is not the case of any of the petitioners societies that it has the main object of advancing financial assistance for agricultural purposes or for the purposes connected with the agricultural activities but it is stated to be one of the objects with other Page 11 of 24 HC-NIC Page 11 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT objects.
32. In some matters, though the authorized officer has on fact stated that the petitioners societies cannot be said to be dispensing agricultural credit which is sought to be assailed by the petitioners. However, such aspects need not be gone into at this stage since the Court finds that none of the petitioners - societies has come with the case that its main object or the principal business is to dispense financial accommodation for agricultural purpose or for the purposes connected with agricultural activities."
[6] Heard Mr. Mihir Thakore, learned Senior Counsel, Mr.Mihir Joshi, learned Senior Counsel and Mr.B.S.Patel, learned Counsel appearing for appellants in the Letters Patent Appeal and Mr.P.K.Jani, learned Additional Advocate General appearing for the respondents.
[7] The Gujarat Agricultural Produce Markets Act, 1963 is enacted by repealing earlier acts on the subject viz. The Bombay Agricultural Produce Markets Act, 1939 and the Saurashtra Agricultural Produce Markets Act, 1955. The Gujarat Agricultural Produce Markets Act, 1963 i.e. Gujarat Act No.20 of 1964 is an Act to consolidate and amend the law relating to the regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Gujarat. Looking to the provisions of the Act, it is clear that it is beneficial legislature to the farmer community to ensure best price in the agricultural produce.
[8] Chapter IV of the Act, 1963 deals with provisions relating to incorporation and constitution of Market Committee, its powers and duties. There are several categories of members under Section 11 of the Act, 1963 for constitution of Market Committee. For the purpose of deciding the issue, which fall for consideration is category of members Page 12 of 24 HC-NIC Page 12 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT under Section 11(1)(i) of the Act, 1963. As per said provision, as it stands by virtue of the Act No.14 of 2015 reads as under : "eight agriculturists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area, shall be elected by the members of managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area."
[8.1] Said provision was amended in the year 2006 by virtue of Gujarat Act No.21 of 2006. Earlier to amendment in the year 2006, section 11(1)(i) as originally existed reads as under : "11(1)(i) eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than co operative marketing societies) dispensing agricultural credit in the market area;"
[8.2] Said original section 11(1)(i) of the Act, 1963 was substituted by the Gujarat Act, 21 of the 2006 and after amendment it read as under: "eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than co operative marketing societies and milk produce cooperative societies) dispensing agricultural credit in the market area."
[8.3] While considering the scope of amended provisions, the learned Single Judge has mainly held that only those societies which have their main object to do business of advancing finance would be considered as primary agricultural credit societies for the purpose of section 11(1)(i) of the Act, 1963.
[9] In these batch of appeals, it is argued by Shri Mihir Thakore, learned Senior Advocate appearing for the appellants in some of the appeals that all the appellant societies are dispensing with the agricultural credit. Learned Single Judge misconstrued the provision of Page 13 of 24 HC-NIC Page 13 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT section 11(1)(i) of the Act, 1963 and rejected the claim made by the petitioners. Mainly it is contended that word "primary" used in section 11(1)(i) of the Act, 1963 relates to base level society and same cannot be construed as primary object of agricultural societies. It is submitted that when the society is registered, its objects and reasons are stated in the byelaws and there cannot be any main and ancillary objects so as to exclude the petitioner societies from participation in the election to the Market Committee only on the ground that their main object is not agricultural credit. It is submitted that circular instructions issued under the Gujarat Cooperative Societies Act, 1961 cannot be made applicable as much as election relates to Gujarat Agricultural Produce Market Act. Placing reliance on Rule 7 of the Rules,1965 it is contended that society having one of the objective as agricultural credit is eligible to vote. It is submitted that learned Single Judge has wrongly placed reliance on the provisions of section 2(7A) and 81A(2) of the Gujarat Cooperative Societies Act, 1961.
[10] Mr.Mihir Joshi, learned Senior Advocate appearing for appellants in some of the appeals would contend that the word 'primary' used in section 11(1)(i) of the Act, 1963 is not with reference to primary object but the same relates to phrase grass root level society. By placing reliance on Rule 5 (d) of the Gujarat Cooperative Societies Rules, 1965, it is submitted that while registering the society, all objectives of the society is mentioned and there cannot be division of society on the ground of main object.
[11] Mr.B.S.Patel, learned advocate appearing for appellants in some of the appeals has submitted that the word "agriculture credit" is not defined under the provisions of the Act, 1963 and in absence of which, learned Single Judge ought to have taken assistance from the Page 14 of 24 HC-NIC Page 14 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT provisions of NABARD Act but not the Banking Regulation Act. Learned advocate has placed reliance on the decisions of learned Single Judge of this Court in the case of Gunvantrai Manibhai Desai v/s. B. Narinhmnv reported in 1983 (0) GLHELHC204454, judgment of this Division Bench of this Court in the case of Jagdishbhai Ranchhodbhai Patel v/s. State of Gujarat reported in 2008(0) GLHELHC220473 and judgment of this Court in the case of Rameshbhai Ganeshbhai Chaudhari v/s State of Gujarat reported in 2010(0) GLHELHC223800.
[12] Learned Additional Advocate General Mr.Jani appearing for the respondents has taken us through various provisions of the Act, 1963 and the relevant provisions under the Gujarat Cooperative Societies Act, 1961 and submitted that after the amendment of section 11 of the Act, 1963 by virtue of amendment Act No.14 of 2015, electorate under section 11(1)(i) of the Act, 1963 confines only to the members of the primary agricultural credit societies which is registered with primary object or principle business to provide financial assistance to its members for agricultural or purpose connected with the agricultural activities. It is submitted that the petitioners societies have accepted the classification as cooperative societies other than that of category of Primary Agricultural Credit Cooperative Societies (Seva Sahakari Mandali in Gujarati). It is submitted that all the societies since continued with the classification, even though one of its multitude objects referred in the byelaw provides for dispensing selling agricultural credit, same will not fit in the amended definition. As such they cannot claim as part of electorate for the purpose of constituency of market committee. It is submitted that as much as preparation of voters' list is completed and election process is started, there is alternative remedy available by way of election petition under Rule 28 of the Gujarat Agriculture Produce Market Committee Rules, 1965 and therefore, writ petitions are not Page 15 of 24 HC-NIC Page 15 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT maintainable. In support of his argument, he has placed reliance on unreported judgment dated 07.10.2006 of this Court in Special Civil Application No.15560 of 2003 and allied matters and the judgment of Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited v/s. R.D.Rohit, Authorized Officer and Co. reported in 2005(0) GLHELHC202701.
[13] At the outset, we refer to certain relevant provisions of the Act, 1963. From the preamble of the Act, 1963, it is clear that the said Act is enacted with object to regulation of buying and selling of agricultural produce and establishment of markets for agricultural produce in the State of Gujarat. Market Committees are constituted under section 11 of the Act, 1963. As originally stood, section 11(1)(i) of the Act, 1963 permitted eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than cooperative marketing societies) dispensing agricultural credit in the market area. After its substitution by way of Gujarat Act No.21 of 2006, it permitted eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than cooperative marketing societies and milk produce cooperative societies) dispensing agricultural credit in the market area. By virtue of latest amendment of Gujarat Act No.14 of 2015, it permits eight agriculturist whose names are enlisted in the voters' list published by the Election Commission of India for such market, area, shall be elected by the members of managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area.
[14] As the entire issue revolves around Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area, used in section 11(1)(i) of the Act, 1963 and in absence of clear Page 16 of 24 HC-NIC Page 16 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT definition of the agricultural credit, we have looked at objects and reasons of the Gujarat Act No.14 of 2015. From the reading of statement of objects and reasons, it appears that section 11(1)(i) of the Act is enacted with a view to protect interest of the farmers so as to see that agriculturist can become member of the market committee only if his name is enlisted in the voters' list for such market area and that he shall be elected only by the members of managing committee of the Primary Agricultural Credit Cooperative Societies. From the statement of objects and reasons coupled with the amendment of section 11(1)(i) of the Act, 1963, it is clear that Legislature intended to allow participation of agriculturist to become member of market committee. As such it confines to allowing members of the managing committee of Primary Agricultural Credit Cooperative Society engaged in the business of agricultural credit. Although is contended by learned advocate Mr.Patel that by virtue of amendment, legislature has widened horizon so as to include all cooperative societies dispensing agricultural credit but we are not agreeable to accept such contention advanced on behalf of Mr.Patel, learned advocate. As rightly held by the learned Single Judge that the legislature do not amend the laws just to change the law of the existing provision and by prefixing word "primary" before the words, "agricultural credit" makes the intention of the legislature more clear to give unequivocal indication that none except the societies which have prime object to do principal business of advancing finance for agricultural purpose and for the purposes connected with the agriculture activities could be included in the voters' list for first constituency.
[15] It is also brought to our notice by learned Additional Advocate General that Registrar of Cooperative Societies, is empowered to classify societies under section 12 of the Gujarat Cooperative Societies Act, 1961 and classification of a society under any head of classification Page 17 of 24 HC-NIC Page 17 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT by the Registrar shall be final. In the affidavitinreply filed in Special Civil Application No.2536 of 2016, a reference is made to the Circular / order dated 30.07.1996 issued by the Registrar of Cooperative Societies, Gujarat State in exercise of powers under section 12 of the Gujarat Cooperative Societies Act, 1961. Relevant paragraph no.14 and 15 of the affidavit in reply reads as under : "(14) I say and submit that section 12 of the Cooperative Societies Act provides for the classification of societies. Section 12 under the Gujarat Cooperative Societies Act, 1961 (herein after referred to as "the Act") provides as follows: "classification of societies - the Registrar may classify all the societies in such manner and into such classes, as he thinks fit and the classification of the society under any head of classification by the Registrar shall be final".
I say and submit that under the powers conferred under section 12 of the Act, Registrar, Cooperative Societies, Gujarat State had issued an order dated 30.07.1996 classifying different cooperative societies into different classes. A copy of the order dated 30.07.1996 is annexed herewith and marked as Annexure RII. A bare perusal to the order would reflect that the different cooperative societies are classified into various heads namely (I) Agricultural Credit Cooperative Societies (II) Non Agricultural Credit Cooperative Societies.
(III) Marketing societies
(IV) Agriculture processing societies.
(V) Irrigation Societies
(VI) Consumer Cooperative Societies.
(VII) Cooperative Banks
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C/LPA/230/2016 CAV JUDGMENT
(VIII) Agricultural Societies.
(IX) Processing Societies.
(X) Housing Societies
(XI) Labour Cooperative Societies.
(15) I say and submit that as it can be perused from the order dated 30.07.1996 under section 12 of the Act, the Gopalak Cooperative Society fall under the head of Agriculture Societies. Therefore, they do not fall under the head of Primary Agricultural Credit Cooperative Societies (PACCS). I say and submit that hence, as per the amendment provision of section 11(1)(i) as well as the classification made under section12, the petitioner society cannot be included in the voters' list."
[16] From the aforesaid said provisions, it is clear that there is classification of primary cooperative societies as notified by the Registrar who is empowered to issue such notification under section 12 of the Gujarat Cooperative Societies Act, 1961. There is yet another reason to recognize said primary agricultural credit cooperative societies as used under section 81(A) of the Act, 1961. Under section 81(A)(2) of the Act, 1961, Registrar is empowered to remove members of the Committee of primary agricultural credit cooperative societies only in the circumstances as earmarked thereunder. Thus, it can be said that there are classified societies which are exclusively registered for primary cooperative credit societies.
[17] Learned advocate Mr.Patel placed reliance on the judgment in the case of Gunvantrai Manibhai Desai (supra), in support of his argument that the Registrar of Cooperative Societies under the Gujarat Cooperative Societies Act, 1961 cannot issue any order on the issue Page 19 of 24 HC-NIC Page 19 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT which fall for consideration. In the aforesaid judgment, the learned Single Judge has held that if the actual functioning showed that particular society is engaged in producing any of those products specified in schedule appended to act, said society can be established by agriculturists. There cannot be any blanket proposition that notification issued under the Gujarat Cooperative Societies Act, 1961 cannot have any bearing on the provisions of the Gujarat Agricultural Produce Markets Act, 1963. At one point of time, it is stated that there were several items in the schedule under section 2(1) of the Act, 1963 as agricultural products, but the same are deleted by amending schedule from time to time. Combined reading of section 2(i) and section 2(ii) of the Act, 1963 means agriculturist who is engaged in the production or growth of agricultural produce. Having regard to schedule existed then, the learned Single Judge of this Court has taken such view and it won't be of any assistance to support the case of the petitioner.
[18] Decisions in the case of Jagdishbhai Ranchhodbhai Patel v/s. State of Gujarat reported in 2008(0) GLHELHC220473 and judgment of this Court in the case of Rameshbhai Ganeshbhai Chaudhari v/s State of Gujarat reported in 2010(0) GLHELHC223800 are not helpful to the case of the appellant herein in view of the amendment made to the provisions under schedule 2(i) of the Act, 1963 and the language as exists now under section 11(1)(i) of the Act,1963 by virtue of amendment of Act No.14 of 2015. Thus, we are of the view that aforesaid judgments have not application having regard to the legal proposition which exists now and which has direct bearing on the issue.
[19] It is to be noticed that in the judgment in Special Civil Application No.15560 of 2003 and allied matters relied by the learned Page 20 of 24 HC-NIC Page 20 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT Additional Advocate General appearing for the respondent State it was the case of the petitioner that despite the provisions made under the said Act and the Rules framed thereunder and despite certain guidelines issued by the Government to regulate the procedure for grant of registration to proposed societies, the present procedure is not free from possibility of manipulation and in large number of cases, the machinery is manipulated to ensure registration of societies whose registration is either not desirable or is aimed only for the purpose of political considerations. In the aforesaid judgment, learned Single Judge in paragraph no.24 has held as under : "24.It is also brought to the notice of the Court that in some cases societies are created and registered with the sole purpose of inflating voters lists for the elections of Agriculture Produce Market Committees or Federal Societies. Such societies mushroom at the election time but are not operation at all. Continued registration of such societies block creation of new societies and hamper spread of cooperative movement. To my mind, if there are societies which exist only on paper and are really not functional, their registration should be cancelled as early as possible. A defunct society cannot be allowed to prevent creation of a new society genuinely interested in serving the need of the people. It would therefore, be appropriate that Registrar Cooperative ensures that complaints of such kind are promptly examined and appropriate decision as may be found necessary in accordance with law is taken. For this purpose the Registrar may even consider setting up a special cell if number of such complaints are large."
[20] At this stage, it also relevant to note the pleadings of Letters Page 21 of 24 HC-NIC Page 21 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT Patent Appeal No.279 of 2016, one of the appeals filed by nine societies whose petition was dismissed by the learned Single Judge by order dated 29.03.2016 following earlier common order dated 15.03.2016 in the batch of cases. At the appellate stage, affidavitinreply is filed and it is worthwhile to note as mentioned in the affidavitinreply that out of nine societies, eight societies were registered on 03.09.2015 one and common day. It is also averred that such societies are registered only with a view to inflate the voters' list. It is not in every case that such practice be adopted but as such societies are being registered only for the purpose of election, we had to make a mention about such aspect in the judgment.
[21] Having regard to the findings recorded by the learned Single Judge, we are in complete agreement with the view taken by the learned Single Judge more particularly, having regard to object and reasons in the Amending Act No.14 of 2015. If the language used under Section 11(1)(i) of the Act, 1963 after its amendment is not to be construed as construed by the learned Single Judge, then it would defeat the very purpose. Though it is informed by the appellants that learned Single Judge has wrongly placed reliance on the provisions of Banking Regulation Act, but having regard to reasons assigned by us as aforementioned, it is not necessary to go into the same. Even without taking aid of the provisions of Bank Regulations Act, we are of the view that by virtue of amendment in section 11(1)(i) of the Act, 1963, members of the managing committee of primary agricultural credit cooperative societies are permitted to be electorate. [22] There are several number of classified primary societies viz. Milk Cooperative Credit society, House building cooperative society etc. If such societies do business of agricultural credit from small portion of their business, then they can also claim entry into market committee. If Page 22 of 24 HC-NIC Page 22 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT members of managing committee of such societies are allowed, then it will be frustrating the very object of amendment carried out by way of Act No.14 of 2015.
[23] Learned Additional Advocate General Mr.Jani appearing for the respondent submitted that in view of provision of alternative remedy under rule 28 of the Rules, these petitions are not maintainable. Learned Additional Advocate General has placed reliance on the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (supra) wherein it is held that inclusion or deletion of the names of the voters in the voters' list to the market committee under the Gujarat Agricultural Market Produce Committee Rules, 1965 is part of election process and any dispute can be raised by way of election petition before the election tribunal. It is true that Full Bench of this Court has held that wrongful inclusion or deletion of members in voters' list is matter which can be resolved by way of election petition, but the learned Single Judge has agitated the matter on merits and therefore, we are of the view that the appeals cannot be rejected on this ground alone at this stage.
[24] In view of interpretation involved in the matter, the learned Single Judge has entertained the writ petitions on merit and rejected the same. We are in agreement with the findings recorded by the learned Single Judge and we do not find any substance in the arguments advanced by learned advocates for the appellants.
[25] Having regard to the reasons recored in this judgment and having regard to reasons assigned by learned Single Judge, we do not find any merit in these appeals. The appeals are accordingly, dismissed. No order as to costs. Consequently, the Civil Applications also stand Page 23 of 24 HC-NIC Page 23 of 24 Created On Wed Aug 10 03:08:00 IST 2016 C/LPA/230/2016 CAV JUDGMENT dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 24 of 24 HC-NIC Page 24 of 24 Created On Wed Aug 10 03:08:00 IST 2016