Gujarat High Court
Thavar Vibhagiya Purva Seva Sahakari ... vs State Of Gujarat & 3 on 25 June, 2015
Author: Jayant Patel
Bench: Jayant Patel, Rajesh H.Shukla
C/SCA/8815/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8815 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 8838 of 2015
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THAVAR VIBHAGIYA PURVA SEVA SAHAKARI MANDALI
LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR DIPAN DESAI, ADVOCATE for the Petitioner(s) No. 1
Ms MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MR
RAKESH R PATEL, AGP, for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 25/06/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) In all these petitions the petitioners are challenging the order passed by the Authorized Officer, respondent No. 4, dated 6.5.2015, whereby the objections filed by the petitioners were rejected and their names were not included in the voters list.
2. We have heard Mr. Dipan Desai, learned counsel appearing for the petitioners in all the petitions and Ms. Manisha Shah, learned Government Pleader appearing with Mr. Rakesh Patel, learned AGP, for the State and its authorities.
Page 1 of 6 C/SCA/8815/2015 ORDER3. As such, the present petitions can be said as covered by the earlier decision of this court dated 24.6.2015 passed in Special Civil Application No. 9584 of 2015 with Special Civil Application No. 9633 of 2015. We may record that in the said Special Civil Application No. 9584 of 2015 with Special Civil Application No. 9633 of 2015, this court observed thus:
"1. In both petitions, the petitioner challenges the order passed on 19.05.2015 as well as on 01.06.2015, whereby the name of the petitioner-society were excluded from the voters' list of Cooperative Marketing Societies Constituency at the ensuing election of the marketing committee.
2. We have heard Mr.Vaghela, learned counsel appearing for the petitioner and Mr.Patel, learned AGP for the respondents.
3. It is undisputed position that when the names of the petitioner-society were included in the voters' list, the objections were filed by the private party and upon such objections, hearing had taken place on 19.05.2015 and the Authorized Officer accepted the objections and excluded the name of the petitioner-society in the voters' list. Thereafter, the next step was the re-publication of the voters' list on 26.05.2015, which is popularly known as second publication of the voters' list. At that stage, the petitioner moved an application to the Authorized Officer to get the names included in the voters' list under Rule 8(1)(a) of APMC Rule. The Authorized Officer maintained earlier order dated 19.05.2015 and has made final publication on 01.06.2015.Page 2 of 6 C/SCA/8815/2015 ORDER
4. As such, the application made by the petitioner after first publication even otherwise also was outside the scope of Rule 8(1)(a) of the APMC Rules because it would apply only for new names added in the second publication. Further so far as the order dated 19.05.2015 is concerned, in any case, final publication of voters list was already made on 01.06.2015. Till then, the petitioner did not challenge the said order and the present petition is said to have been filed on 08.06.2015 after the voters' list was finalized and already published.
5. Under these circumstances, we do not find it appropriate to entertain the petition under Article 226 of the Constitution of India and the petitioner may resort to appropriate remedy by way of Election Petition under Rule 28 after the election is over.
6. Subject to the aforesaid observations, both petitions are disposed of."
3. However, Mr. Desai, learned counsel appearing for the petitioners made an attempt to contend that in the present case it was not a matter of one co-operative society or two co-operative societies, but there are about 24 petitioners and therefore time was consumed in preparing the matter and further the matter was moved before the learned Vacation Judge and the permission was granted on 21.5.2015 for circulation of the matter on 22.5.2015 and hence this court may consider the distinguishing circumstances for entertainment of these petitions.
4. The Election Programme is on page 19 of the petition and it Page 3 of 6 C/SCA/8815/2015 ORDER is undisputed position that after publication of the preliminary voters list on 15.4.2015 the objections were to be submitted on or before 29.4.2015. The respective petitioners did submit the objections and thereafter on 6.5.2015 the impugned orders have been passed. The publication of the second voters list after objections was also on 6.5.2015. Thereafter, on or before 13.5.2015 as per Rule 8(1)(a) of the Agricultural Produce Markets Rules, the objections, if any, for inclusion of names were to be submitted. Thereafter on 20.5.2015 there was final publication of the voters list.
5. It is undisputed position that the petitioners did not prefer petitions for challenging the impugned orders on or before 20.5.2015 and the petitions are filed before this court for the first time on 21.5.2015 and the learned Vacation Judge issued notice on 22.5.2015 for examining the situation in either way. The fact remains that prior to 20.5.2015, the date on which final publication of the voters list was to be made, the petitioners did not file the petitions, nor moved this court for challenging the impugned order which could be considered prior to the final publication of the voters list.
6. Under these circumstances, we are of the view that when the challenge is not made by the petitioners before this court prior to the final publication of the voters list, coupled with the aspect that the petitioners have the alternative remedy available under Rule 28 of the Agricultural Produce Markets Rules for preferring election petition after the election is over, the present petitions do not deserve to be entertained.
7. Mr. Desai, learned counsel appearing for the petitioners, Page 4 of 6 C/SCA/8815/2015 ORDER also attempted to contend that the petitions were sworn on 18.5.2015 and as there were number of petitions, it took some time to prepare the matter. He also submitted that the impugned orders were not served upon the concerned petitioners, but they were sent by UPC and they were received in majority cases on 13.5.2015 and therefore the petitions may be separately considered.
8. In our view, we cannot countenance the attempt made by the learned counsel for the simple reason that the principles for finalisation of the voters list cannot be differently considered when the order was already passed on 6.5.2015 and the petitions are filed after final publication of the voters list.
9. Mr. Desai, learned counsel appearing for the petitioners, by relying upon the order dated 16.6.2015 passed in Special Civil Application No. 9733 of 2015 and allied matters contended that in those matters the objections were preferred after the finalisation of the voters list and the court had entertained the petition and he submitted that similar course may be undertaken in the present matters.
10. Firstly, in Special Civil Application No. 9733 of 2015 and allied matters when the petitions were entertained it was brought to the notice of the court that on the similar identical point in Special Civil Application No. 8863 of 2015 which was preferred prior to the final publication of the voters list this court had passed the order and therefore similar order be passed. In any case, such was an interim order and not the final order. Thereafter, when the final order is passed and the view is taken by this court on 24.6.2015 in Special Civil Application No. 9584 of 2015 with Special Civil Application No. 9633 of 2015, we find that the applicability of the Page 5 of 6 C/SCA/8815/2015 ORDER decision would be as that of Special Civil Application No. 9584 of 2015 and not the interim order passed in Special Civil Application No. 9733 of 2015 and allied matters since the facts in those cases were different than in the present case. In the present case, there are no circumstances showing that in any identical matter the petition was preferred prior to the final publication of the voters list and was entertained by the court and any orders were passed. Hence, such attempt of Mr. Desai cannot be countenanced.
11. Under the aforesaid circumstances, no case is made out for interference at this stage but with observation that the petitioner may resort to appropriate remedy of election petition under Rule 28 of the Rules after the election is over. All the petitions are dismissed. Notice discharged. No order as to costs.
(JAYANT PATEL, J.) (RAJESH H.SHUKLA, J.) (hn) Page 6 of 6