Gujarat High Court
Vasundra vs State on 9 December, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
Print
SCA/16249/2011 40/ 40 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16249 of 2011
With
SPECIAL
CIVIL APPLICATION No. 16247 of 2011
To
SPECIAL
CIVIL APPLICATION No. 16248 of 2011
With
SPECIAL
CIVIL APPLICATION No. 16250 of 2011
To
SPECIAL
CIVIL APPLICATION No. 16268 of 2011
With
SPECIAL
CIVIL APPLICATION No. 16270 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
HONOURABLE
MS JUSTICE SONIA GOKANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VASUNDRA
SAMUDAYIK KHETI SAHAKARI MANDALI LIMITED - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
MIHIR THAKORE, SR. ADV. WITH MR DIPEN DESAI & MS VYOMA K JHAVERI
for Petitioner(s) : 1,
MR KB TRIVEDI, AG, WITH MS SANGITA VISHEN
AGP for Respondent(s) : 1 - 4.
MR YN OZA, SR. ADV WITH MR.
V.C.VAGHELA for respondent Nos.5 and
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 09/12/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) In this group of petitions, though there are minor factual differences, the central issue to be decided on law is common. These petitions have, therefore, been heard together and are being disposed of by this common judgment.
2. At the outset, we may record that looking to the nature of the controversy involved, learned counsel counsel appearing for the parties have made detailed submissions before us for final disposal of the petitions. We, therefore, proceed to decide these petitions finally without formally admitting the petitions.
3. Learned counsel for the parties have addressed us on Special Civil Application No.16249 of 2011 which is treated as the lead matter. Facts stated in the said petition, therefore may be noted.
4. The petitioner co-operative society has challenged an order dated 24.10.2011 passed by the District Registrar as the Authorized Officer by which the request of the petitioner for being included as a voter in the agricultural constituency for the election of Agricultural Produce Market Committee, Kalawad came to be rejected. The petitioner is a cooperative society duly registered under the Gujarat Cooperative Societies Act. Byelaws of the petitioner society include various objects. One of them being to carry out activities beneficial for the members of the Society who are agriculturists and also for dispensing agricultural credit to such members. We would refer to different byelaws at a slightly later stage.
5. It appears that the term of the elected body of the APMC Kalawad had come to an end. There were several litigations with respect to the induction of an Administrator upon completion of the term of the elected body and for conduct of early elections. We are not directly concerned with such litigations and the various orders passed by this Court from time to time. Suffice to note that the election programme for APMC, Kalawad was declared by respondent No.2, the Director of Agriculture Marketing and Rural Finance by issuing notification dated 19.9.2011. As per the detailed programme, preliminary voters list was to be published on 5.10.2011 and after passing through several stages as envisaged under the Rules, the final voters list was to be published on 5.11.2011. Once again after the going through other stages of accepting candidature, etc. election is to be held on 19th December 2011. Counting is fixed on 20th December 2011.
6. It is the case of the petitioner that every cooperative society dispensing agricultural credit in the market area is required to communicate the full names of the members of the Managing Committee to the Authorized Officer. The petitioner accordingly sent such communication to the Authorized Officer within the time permitted in the election programme. The petitioner had also produced its accounts to show that the Society had dispensed agricultural credits to its members. It is the case of the petitioner that it is holding a traders license of the Market Committee and is doing trading activities in the market area for which the Committee also collects market cess from the petitioner society. Such details were also produced before the Authorized Officer.
7. The name of the petitioner Society was included in the preliminary voters list which was published on 5.10.11 for the traders constituency. However, the names of the members of the Managing Committee of the petitioner Society were not included in the voters list of agricultural constituency. The respondent No.4 i.e. Authorized Officer had on 3rd October 2010, issued a communication indicating that the names of the Managing Committee of the petitioner society could not be included in the voters list of agricultural constituency on the ground that the petitioner Society is not one covered under section 11(1)(i) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter to be referred to as 'the Act') read with rule 5(1) of the Gujarat Agricultural Produce Markets Rules, 1965 ('the Rules' for short). In the said order, respondent No.4 also recorded that by virtue of circular of 1996, the petitioner would not be an agricultural credit dispensing society and therefore, the members of the Managing Committee of the Society could not be included in the voters list for the agricultural constituency. Against the said order dated 3.10.2011, the petitioner Society approached this Court by filing Special Civil Application No.15694 of 2011. The said petition was disposed of by order dated 19.10.2011 permitting the petitioner to submit its objections before the Authorized Officer against the order dated 3.10.2011 noting that the observations made in the order were tentative and prima facie opinion of the Authorized Officer. The petitioner thereupon submitted its objections to respondent No.4 primarily contending that, being a Society dispensing agricultural credit to its members and not being a marketing society, the names of the members of the Managing Committee of the Society cannot be excluded from the voters list for the agricultural constituency.
8. The Authorized Officer, however, by the impugned order dated 24.10.2011, rejected the objections of the petitioner and decided not to include the names of the members of the Managing Committee in the voters list for agricultural constituency. It is this order that the petitioner has challenged in the present petition. In his order dated 24.10.2011, respondent No.4 recorded that the main object of the Society is not to give agricultural credit to its members. Initially, the documents on which the society relied were not presented, which, however, have been presented on 24.10.2011. Even if it is accepted that the society is engaged in giving agricultural credit to its members, copy of the judgment of the High Court is not produced and even then, the contentions are taken into consideration and looking to the decision of the High Court in Special Civil Application No.30073 and 30081 of 2007 wherein the decision of the Director of Agriculture Marketing and Rural Finance in Election Petition No.21 and 22 of 2006 have been upheld by the Division Bench by virtue of which those agricultural societies holding trading licence are not to be included in the voters list of the agricultural constituency. Since the petitioner is holding traders licence, its name is included as voter in the traders constituency. Therefore, looking to the decision of the High Court in Special Civil Application No.30073 of 2007 and 30081 of 2007, the petitioner cannot be included in the voters list of agricultural constituency.
9. Facts are broadly similar in other petitions also. In certain petitions, names of members of the Managing Committee of the societies were included in the provisional list published by respondent No.1, however upon objections from rival groups, names of these persons were deleted by the Authorized Officer by the impugned orders. In yet another group of petitions when after initially including the names in the provisional list objections were raised with respect to such inclusion, on behalf of these petitioners, it was conveyed to the Authorized Officer that they are willing to surrender the trading licences. These facts are noted only to record that the factual differences in all these petitions are not of material consequence.
10. Respondent No.3, District Registrar has filed an affidavit dated 15th November 2011 primarily contending that all the petitioners are having trading licenses and their names are included in the voters list of traders constituency. By virtue of the decision of Division Bench of this Court dated 12.9.2008 and 23.10.2008, rendered in Special Civil Application No.30073/07, they are not entitled to vote in the agricultural constituency. In short, he supports the impugned order dated 24.10.2011 passed by the Authorized officer.
11. Appearing for the petitioners, learned Sr. counsel Shri Mihir Thakore, submitted that exclusion of the members of the Managing Committee of the societies from the voters list for agricultural constituency is wholly illegal and unlawful. He submitted that by virtue of section 11 of the Act and the Rules made thereunder, as interpreted by this Court, right of the petitioners to vote in the agricultural constituency is crystallized. He submitted that the Authorized Officer could not have taken any other view.
11.1 Counsel taking us through various statutory provisions contained in the Act and the Rules, submitted that the Society which is a trader has a right to vote in the traders constituency and the members of the Managing Committee of such society have a right to vote in the agricultural constituency. Heavy reliance in this respect was placed in the decision of the learned Single Judge of this Court in the case of Husseinbhai v. P.V.Bhatt, 1979(2) GLR 38.
Counsel submitted that the decision of the learned Single Judge in the case of Husseinbhai (supra) came to be upheld by the Division Bench in the case Jagdishbhai Ranchhodbhai Patel v. State of Gujarat, 2008(0) GLHEL-HC 220473. Counsel therefore submitted that the Authorized Officer had taken a view which is contrary to the two decisions of this Court.
11.2 With respect to the question of alternative remedy, counsel contended that in view of the peculiar facts, when the issue is squarely covered by the decisions of this Court, the petitioner should not be relegated to the remedy of election petition after the elections are over. Counsel submitted that the decision of the Authorized Officer was wholly without jurisdiction and contrary to the statutory provisions. In that view of the matter, availability of alternative remedy would not be a bar to entertain the present petition.
11.3 Counsel further submitted that in view of the clear verdict of this Court in the case of Husseinbhai (supra) and Jagdishbhai Ranchhodbhai Patel (supra), relegating the petitioner to alternative remedy would be wholly futile since even in election petition, no different view could be taken.
11.4 In support this contention, counsel relied on following decisions:
11.5 In the case of Pundlik v. State of Maharashtra, (2005) 7 SCC 181, wherein the Apex Court observed that the action of the Collector being in clear violation of rule 5(2) of the Rules, the same could be challenged by filing a petition under Article 226 of the Constitution.
11.6 In the case of Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216, wherein the Apex Court examined the issues relating to the power of the High Court under Article 226 of the Constitution to interfere with the election process and to issue interim directions after commencement of election process.
11.7 Counsel also relied on a decision of this Court in the case of S.H.Popat v. State of Gujarat, 2008 (1) GLH 575 wherein relying on the decision of the Apex Court in the case of Ashok Kumar (supra), the Division Bench observed that looking to the extra-ordinary situation, the court would be justified in directing the authorities not to permit the persons granted licences pursuant to the impugned resolution to participate in the election to APMC.
11.8 Counsel relied on a decision in the case of Gujarat State Cooperative Bank Ltd. v. State of of Gujarat, 2009 (1) GLH 371 wherein, Division Bench of this Court referring to and rely on the decision of the Apex Court in the case of Pundlik (supra) negatived the preliminary contention of the opponents regarding the maintainability of the writ petition under Article 226 of the Constitution of India in an election dispute.
11.9 Reliance was also placed on a decision in the case of V.D.U.S.M.Ltd. v. E.O. & Deputy Collector, 2009 (3) GLH 213 wherein Division Bench of this Court relying on and referring to the decisions of the Apex Court in the case of Pundlik (supra) and Ashok Kumar(supra) gave suitable directions with respect to election of a specified cooperative society.
11.10 Counsel also relied on a decision in the case of Patel Chandrakant Thakorebhai v. State of Gujarat, 2009(3) GLH 343 wherein once again a Division Bench of this Court gave suitable directions for preparation of voters list under section 11 of the Act for election of agricultural produce market committee.
12. On the other hand, learned Advocate General opposed the petitions, contending that the decision of the Authorized Officer is just and proper and the same is in consonance with the decision of the Division Bench of this Court in the case of Jagdishbhai Ranchhodbhai (supra). He submitted that it was a case wherein the decision of the Director to exclude the societies who were trading societies from the list of voters for the agricultural constituency was upheld by the Division Bench. Counsel, therefore, submitted that the present situation being similar, these petitions should be dismissed since the order passed by the Authorized Officer is in consonance with the legal provisions and the law laid down by this Court in the case of Jagdishbhai Ranchhodbhai (supra). The learned Advocate General also strongly opposed the petitions on the ground of availability of alternative remedy and the inhibition of this Court in interfering with the election process once the same is set in motion by publication of notification declaring election programme. In particular, it was the contention of the learned Advocate General that preparation of voters list being one of the steps in furtherance of the conduct of the election, any dispute with respect to the same must be raised through an election petition once the elections are over and results are declared. In short, he contended that any interference at this stage by this Court is neither warranted nor permitted.
12.1 Heavy reliance was placed on the decision of Full Bench of this Court in the case of Dehda Group Seva Sahakari Mandli Ltd. v. R.D.Rohit, 2006 (1) GCD 211 (Guj.)(FB), wherein the Full Bench observed that a person whose name is not included in the voters list can avail alternative remedy by filing election petition as the Authority under rule 28 has vide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside. It was further observed that though petition under Article 226 is maintainable, despite availability of alternative remedy, powers are to be exercised in case of extraordinary or special circumstances and mere exclusion or inclusion of names in the voters list cannot be termed as extraordinary circumstances warranting such interference.
12.2 Learned Advocate General also relied on a decision of this Court in the case of Patel Talshabhai Purabhai v. Authorized Officer and Auditor Grade, 2011 (0) GLHEL-HC 224844 wherein a Division Bench of this Court observed as under :
"12. In view of the above analysis of factual and legal aspects of the disputes related to the election of APMC, it would be appropriate and in the interest of justice that the Court follows the general rule of non-interference during the course of election, as far as inclusion or exclusion of names in the voters' lists of APMCs are concerned. Therefore, all the petitions along with the civil application are dismissed on the ground of availability of efficacious alternative remedy and inexpediency of interference by this Court in the exercise of its extraordinary writ jurisdiction; with the clarification that disposal of the petitions being not on merits of the factual and other legal contentions, the petitioners' recourse to alternative remedy shall not be affected. In the facts and circumstances of the cases, there is no order as to costs."
12.3 Counsel also relied on a decision of Division Bench of this Court dated 9.9.2011 in the case of Prahladbhai Mangalbhai Patel v. State of Gujarat (Special Civil Application No.13006 of 2011) wherein the Division Bench did not entertain the petition in which prayer was made for quashing the process of holding election.
12.4 Counsel also relied on a decision of Division Bench of this Court dated 9.9.2011 in the case of Shree Nani Marad Seva Sahakari Mandli Ltd. v. State of Gujarat (Special Civil Application No.10294 of 2011 and connected matters) wherein this Court refused to entertain the petition which was directed against preparation of voters list of Agricultural Produce Market Committee.
12.5 Counsel also relied on a decision of this Court dated 15.9.2011 rendered in Special Civil Application No.12618 of 2011 in the case of Shree Rajkot District Cooperative Bank Ltd. v. State of Gujarat, wherein the Bench did not entertain the writ petition which was directed against preparation of voters list for election to a Cooperative Society.
13. Learned Senior Advocate Shri Y.N.Oza appearing for the private respondents also opposed the petitions raising the same contentions. He submitted that the entire philosophy under the Act is to protect the interest of the agriculturists. Looked from that angle, it cannot be envisaged that trading society can be a voter in the agricultural constituency. He drew our attention to the historical background leading to the enactment of the Act to contend that since the paramount object of the Act is to protect the interest of the agriculturists, a purposeful interpretation should be adopted holding that traders cannot have any voting rights for the agricultural constituency.
13.1 Counsel also submitted that in view of availability of alternative remedy, these petitions should be dismissed. In addition to the authorities cited by the learned Advocate General, he also drew our attention to the decision of this Court in the case of Mehsana District Coop. Sales and Purchase Union Ltd v. State of Gujarat, 29(2) GLR 1060 wherein a Division Bench of this Court was pleased to relegate the parties to the remedy of election petition and did not interfere in the process of election.
13.2 Counsel further relied on a decision of this Court dated 9.7.2010 in Letters Patent Appeal No.1266 of 2010, wherein also the Division Bench of this Court refused to entertain the writ petition at an interim stage.
14. Having thus heard the learned advocates for the parties and having perused the documents on record, addressing the first issue regarding the right of the members of the Managing Committee of the petitioner Society to be included in the voters list for agriculture constituency, we may notice that this issue is no longer res integra. Before adverting to the two decisions, one of learned Single Judge and another of a Division Bench of this Court cited before us, we may look at the statutory provisions. Section 11 of the Act provides for constitution of the market committee. Sub-section (1) of section 11 of the Act which is relevant for our purpose reads as under:
"11.
Constitution of market committee:-(1)
Every market committee shall consist of the following members, namely:-
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;
four members to be elected in the prescribed manner from amongst themselves by the traders holding general licenses;
two representatives of the Cooperative marketing societies situate in the market area and holding general licenses, to be elected from amongst the members (9ther 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;
(iv) one member to be mentioned by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councilors, 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 councilors or members have vacated office and any person or administrator has been appointed to exercise the power 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 councilors or members of the local authority and not holding a general licence;
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."
15. In exercise of powers under section 59 of the Act, the State has formulated the rules. Rule 5 pertains to different list of voters and reads as under:
"5.
Different list of voters:
For the purpose of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely:-
under clause (I) of sub-section (1) of section 1 of the Act, a list of members of managing committees of Cooperative Societies (other than Co-operative Marketing Societies) dispensing agricultural credit in the market area.
Under clause (ii) of sub-section (1) of the Act a list of traders holding general licenses in the market area;
under clause (iii) of sub-section (1) of section 11 of the Act, a list of members of managing committees of Cooperative Marketing Societies situated in the market area holding general licenses;"
Rule 6 pertains to persons who are qualified to vote and reads as under:
"6.
Persons qualified to vote:
A person whose name is entered in a list of voters 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."
Rule 7 pertains to preparation of voters list for general election. Rule 8 provides for final publication of the voters list.
16. From the above statutory provisions, it can be seen that a market committee consists of eight members of agriculturists, four members to be elected from amongst the traders holding general licenses, two representatives of the cooperative marketing societies to be elected from amongst the members of such societies, one member to be nominated by the local authority and two members to be nominated by the State Government. Thus, in so far as the elected members of the Market Committee are concerned, 8 are agriculturists, 4 members represent trader societies and two members are to be elected from amongst the cooperative marketing societies. The contention of the petitioners is that a trader cooperative society has a right to vote for electing 8 agriculturists. The stress of the petitioners is that clause (i) of sub-section (1) of section 11 of the Act provides that to constitute a market committee 8 agriculturists shall be elected by members of the Managing Committees of the cooperative societies other than the cooperative marketing societies dispensing agricultural credit in the market area. Our attention was drawn to the definition of the term 'trader' included in section 2(xxiii) which reads as under:.
"(xxiii) "trader" means any person, who carries on the business of buying or selling or agricultural produce or of processing of agricultural produce for sale and includes a co-operative society, joint family, or an association of persons, whether incorporated or not, which carries on such business."
It is the case of the petitioners that they are dispensing agricultural credit in the market area and therefore by virtue of clause (i) of section 11(1), the members of the Managing Committee have the right to vote for agricultural constituency.
17. In the case of Husseinbhai (supra), learned Single Judge of this Court had considered such an issue and opined as under :
"8.
The idea of the Legislature is that any eight agriculturists as defined in cl. (ii) of section 2 of the Act, that is, any person ordinarily engaged in the production or growth of agricultural produce, but not doing a trader's or a broker's business in the agricultural produce, can offer himself to be elected from that category. The voters are said to be members of the Managing Committees of the co-operative societies dispensing agricultural credit in the market area with the exception of the co-operative marketing society as defined in cl. (v) of section 2 of the act for the obvious reason that such cooperative marketing societies are given a separate representation. Any co-operative society dispensing agricultural credit in the market area and which is not a co-operative marketing society as defined in cl. (v) of section 2 of the Act is entitled to have the members of its manging committee to compose the first constituency, entitled to elect eight agriculturists. The legislature even in the year 1963 when this bill was introduced in the Gujarat Legislature and when it passed the law in the year 1964 was not oblivious of the fact that good many cooperative societies in the state dispensing the agricultural credit in the market area were holding traders' licence. The 1963 Act had as its precusor the 1939 Act, styled as The Bombay Agricultural Produce Market Act, 1939. Still the legislature in its wisdom did not specifically state in cl (i) above that the agricultural co-operative societies dispensing agricultural credit in the market area will not be entitled to have their members of managing Committee in the voters list, if they were holding general licence. Mr. Zaveri wants us to read cl.(i) with the added phrase "and not holding general licenses" on the strength of the assumed intention of the legislature to keep the three constituencies in water-tight compartments. If the Legislature had in its mind the intention attributed by Mr. Zaveri to it, there was nothing to prevent the Legislature from saying so expressly. The first argument of Mr. Zaveri, therefore, that the agricultural co-operative societies (other than co-operative marketing societies) dispensing agricultural credit in the market area, but holding general license are to be excluded from the first category is difficult to be upheld. To me it appears that there is no rule of law or logic that one man who is a voter in one constituency in one capacity cannot be a voter in another constituency in another capacity.
In the first constituency of agriculturists, all the members of the Managing Committee of the Cooperative society dispensing agricultural credit in the market area are made voters individually. As far as second constituency of trader is concerned, the very co-operative society dispensing agricultural credit in the market area, is to be there in its capacity as the society as one individual trader and would have only one vote. As far as the first category is concerned, every co-operative society of that type would have as many as votes as there are members of the Managing Committee of it. It is therefore, not true to say that the very society would have a double representation. In the first category, the members of the Managing Committee because of their membership of the Managing Committee are individual voters, but in the second category of traders constituency, society qua society is one voter, It is therefore, difficult to say that there is double representation for one and the same body of a co-operative society. The first argument of Mr.Zaveri, therefore, that various co-operative societies holding general licenses were wrongly given representation in the first constituency through the members of their managing committee is untenable."
We may also notice that this decision came up for consideration before a Division Bench of this Court in the case of Jagdishbhai Ranchhodbhai (supra). One of the contentions before the Bench was whether the societies by obtaining traders licences forfeited the right to elect the agriculturist members of the Market Committee. The contention of the opponents that such societies would have no right to vote for the agricultural constituency was repelled by the Division Bench referring to the decision of the learned Single Judge in the case of Husseinbhai (surpa). The Division Bench held and observed as under:
"13. Only question that arises for our consideration is whether the appellant-societies have, by obtaining trader's license, forfeited their right to elect "agriculturist" members of the Market Committee. Section 11 of the Act of 1963 provides for constitution of market committee. A market committee consists of four categories of members - {i} the agriculturists [eight in number]; {ii} the traders [four in number]; {iii} the representatives of the Cooperative marketing societies [two in number]; and {iv}one nominee of the local authority within whose jurisdiction the principal market yard is situated. Nothing in the language of Section 11 of the Act of 1963 suggests that the Cooperative societies dispensing agricultural credit, which form the electorate for election of eight agriculturists, are required to carry on the function of dispensing agricultural credit exclusively or that if they take up any other function they would forfeit their right to elect eight agriculturist members.
14.The question is answered by the learned Single Judge of this Court in Husseinbhai Ibrahimbhai Malek [Supra]. This Court in paragraph 8 of the judgment had negatived a similar contention. It was observed that. To me it appears that there is no rule of law or logic that one man who is a voter in one constituency in one capacity cannot be a voter in another constituency in another capacity. In the first constituency of agriculturists, all the members of the Managing Committee of the Co-operative Society dispensing agricultural credit for the market area are made voters individually. As far as the second constituency of traders is concerned, the very co-operative society dispensing agricultural credit in the market area is to be there in its capacity as the society as one individual trader and would have only one vote. As far as the first category is concerned, every co-operative society of that type would have as many votes as there are members of the Managing Committee of it. It is, therefore, not true to say that every society would have a double representation."
15. Reliance placed on Section 14 of the Act of 1963 is totally misconceived. Section 14 of the Act of 1963 provides for disability from continuing as a member. Clause [ii] of sub-section (1) thereof indicates that an agriculturist elected as a member of the market committee shall exclusively carry on the profession as agriculturist. If he undertakes any trading activity by obtaining a general license, he forfeits his right to continue as a member. The said disability attached to an agriculturist member is in consonance with the definition of the word "agriculturist". Section 2 [ii] of the Act of 1963 defines the word "agriculturist" as 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;". The very definition requires that an agriculturist has to be an agriculturist exclusively. It is evident that what legislature intended was that an agriculturist must continue to be an agriculturist throughout his membership. The said section 14, however, does not refer to disqualification/ disability attached to voting right. In absence of a specific disqualification/disability attached to the voting right of a cooperative credit society, the contention raised by Mr. Mehta needs to be rejected. We are also unable to see how the purpose of the Act would be frustrated if the Members were included in the voters' list for election of agriculturist members of the Market Committee. In our opinion, so long as the appellant societies are real and genuine; are dispensing agricultural credit in the market area; and are not the co-operative marketing societies within the meaning of Section 2 [v] of the Act of 1963, the Members continue to enjoy right to elect agriculturist-members of the Market Committee.
16. We are also of the opinion that registration of a society under the Gujarat Cooperative Societies Act, 1961 [hereinafter referred to as,the Act of 1961"] is for the purpose of the that Act. The classification made under that Act cannot govern the status of a society under the Act of 1963. We are, therefore of the opinion that the registration of the appellant-Societies as credit cooperative societies under Act of 1961 is of no consequence. It is not in dispute that the appellant-societies do dispense agricultural credit in the market area. Nonetheless, if the appellant-societies are also the cooperative marketing societies within the meaning of the Act of 1963, the Members cannot constitute electorate for the agriculturist members of the Market Committee. In other words, the right to vote at the election of the agriculturist members of the Market Committee conferred by clause [i] of sub-section (1) of Section 11 of the Act upon the Members would stand forfeited. A Cooperative Marketing Society is defined in clause [v] of Section 2 of the Act of 1963 to mean, a society society registered or deemed to be registered as such under the Gujarat Co-operative Societies Act, 1961 [Guj. X of 1962], and engaged in the business of buying or selling of agricultural produce or of possessing of agricultural produce and holding a licence."
18. From the above decisions, it can be seen that the view of this Court is clear that a trader cooperative society, in addition to having right to vote for the traders constituency, members of its Managing Committee are also to be included in the voters list for the agricultural constituency.
19. We are unable to agree with the contention of the respondents that the Division Bench has taken a different view. Decision of the learned Single Judge of this Court in the case of Husseinbhai (supra) was in fact referred to and relied upon by the Division Bench to repel the contention to the contrary. Thus the decision of the learned Single Judge came to be upheld and approved by the Division Bench. While having done so, the Division Bench thereafter proceeded to examine whether the societies in question were marketing societies or not. In para 19 of the decision, and thereafter, the Division Bench diverted its attention to the question whether the appellant-societies were cooperative marketing societies within the meaning of the Act. On fact, the Bench found that the societies were marketing cooperative societies and therefore relying on the exclusion contained in clause (i) of sub-section (1) of section 11, the order of the Director was upheld. The Division Bench observed that the appellant societies having obtained general licence of the Market Committee and being engaged in producing, processing and or selling cotton, were required to be excluded from the electorate of the agriculturist members of the Managing Committee and the Director had rightly rejected their appeals. Thus, on facts, the Division Bench ruled that the societies involved were marketing cooperative societies and therefore rightly not included in the voters list of the agricultural constituency.
19.1 Counsel for the respondents had submitted that the Division Bench had upheld the decision of the Director, who in turn had held that as trader societies, the appellants had to be excluded from the voters list of agriculturist. They, therefore, contended that decision of Division Bench should be read as approving such view of the Director. We are unable to uphold this contention. The Division Bench did uphold the order of the Director but the contention that merely by virtue of being a trader society, its members would not be included in the list of agriculture constituency was specifically dealt with and negatived. The Bench upheld the exclusion of these societies on the finding that they are marketing societies.
20. In the present case, it is not even the case of the Authorized Officer that the petitioners societies are marketing cooperative societies. This was not the basis on which either the preliminary objections in the order dated 3.10.11 proceeded nor is the final view expressed in the order dated 24.10.2011 is based. The entire foundation of his belief is that the petitioner societies being trading societies, members of the Managing Committee of such societies cannot form part of the voters list of the agricultural constituency. The fact that the petitioners are trading societies is neither in dispute nor disputable. It is precisely for this reason, that such societies find place in the voters list in the trading constituency. The fact that the petitioners-societies are engaged in giving agricultural credit to its members who are agriculturists is also not in dispute. The petitioners-societies have produced their bye-laws on record. Such bye-laws envisage several activities including, giving agricultural credit to its members. In case of the petitioner-society in Special Civil Application No.16249 of 2011, bye-law No.2(9) which pertains to the objects of the society provides that one of the objects would be to give agricultural credit to its members for soil improvement, purchase of agricultural implements and agricultural operations. Part 10 of the byelaw pertains to the loan to the members of the society. Bye-law 36 which is part of Part 10, pertains to various provisions subject to which the society shall give agricultural credit to its members. Part 11 of the byelaws pertains to the security of the agricultural produce against which agricultural credit could be granted. Relying on such byelaws, the petitioners produced on record documents showing granting of agricultural credits to its members during the recent past. These facts are not in dispute. What the Authorized Officer contends is that by virtue of the decision of Division Bench of this court in the case of Jagdishbhai Ranchhodbhai (supra), by virtue of being members of the trading society its members of Managing Committee cannot have right to vote for the agricultural constituency. To our mind, such stand arises out of total misreading of the decision of the Division Bench of this Court. Division Bench of this Court in the case of Jagdishbhai Ranchhodbhai (supra) never opined that merely by virtue of being traders society, members of the Managing Committee of such Society should be excluded from the voters list of the agricultural constituency. In fact, the decision of the Division Bench, as already noted, is to the contrary. It is, of course, true that if the traders society also happens to be a marketing Cooperative Society, by virtue of the exclusion clause (i) of section 11 of the Act, members of the Managing Committee of such society would have no right to vote for the agricultural constituency. Such are not the facts in the present case nor has the Authorized Officer proceeded on that basis. His orders on record do not refer to anything about the petitioners being marketing cooperative societies. Had the Authorized Officer come to the conclusion that any of the petitioners are Marketing Cooperative Societies, the issue would have been entirely different.
21. Under the circumstances, we are of the opinion that the conclusion of respondent No.4 Authorized Officer on the question of the members of the Managing Committee of the petitioner Society is palpably erroneous and wholly inconsistent with the two decisions of this Court. When particularly no contrary decision or any other decision which would throw even semblance of doubt is presented before us, we have no hesitation in holding that law in so far as this aspect is concerned is clear and unambiguous. Respondent No.4 had no authority to discard or disregard such legal proposition. Additionally, it is also pointed out to us by the counsel for the petitioners that in elections to large number of other Market Committees, the Authorized Officers are following the decisions of this Court in the cases of Husseinbhai (supra) and Jagdishbhai Ranchhodbhai (supra) and are including the members of the Managing Committees of trading societies in the voters list for the agricultural constituency unless, of course, such societies happen to be Marketing Cooperative Societies. Therefore the justification of respondent No.4 being palpably erroneous is also wholly arbitrary.
22. Under the circumstances, the question would be, should we refrain from exercising writ jurisdiction and relegate the petitioners to alternative remedy of filing an election petition once the elections are concluded on the basis of voters list prepared by respondent No.4.
23. From the days of Ponnuswami, AIR 1952 SC 64, Courts are loathe to interfere with election process once the same is set in motion. Subsequently, however, the Apex Court in the case of Ashok Kumar (supra) after taking note of the decision in Ponnuswami, and other decisions in the field recognized a small area where despite availability of alternative remedy and in particular in the field of election, interference from the court in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution would still be open. The observations of the Apex Court in this regard may be noted.
"32.
For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :-(1)
If an election, (the term 'election' 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 the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.(2)
Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.(3)
Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.(4)
Without interrupting, obstructing or delaying the progress of the election proceedings,judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.(5)
The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
Later on, in the case of Pundlik (supra), the Apex Court once again, finding that the decision of the Collector was wholly erroneous and contrary to rule 5(2) of the Maharashtra Specified Cooperative Societies (Election to Committees) Rules, found that interference in exercise of writ jurisdiction was justified. The Apex Court also took note of the fact that the petitioners therein had approached the High Court soon after the exclusion from the voters list. In this background, distinguishing its previous judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakarii Dugdha Utpadak Sanstha v. State of Maharashtra,(2001) 8 SCC 509, the Apex Court observed as under:
"13.
We see considerable force in the contention of the learned counsel for the appellant. Bare reading of R. 5(2) makes it abundantly clear that the society which has communicated the name of its delegate can change the name of such delegate within the period stipulated therein. It was, therefore, open to respondent-Sangh to exercise the said power in accordance with R. 5(2) which has been done. It was the case of respondent No. 2-Collector that in the list of subjects of the meeting convened on June 9, 2005, there was no subject for sending the name of representative for the election of the Maha Sangh and yet the representative was changed which was not proper. But the learned counsel for the appellant has rightly referred to the proceedings dated June 9, 2005, and in particular Resolution No. 7. It is further clear from agenda notice dated June 2, 2005, in which it was stated that the meeting of Board of Directors of respondent-Sangh would be held on June 9, 2005 for discussing various subjects and subject No. 7 related to the fax message received from the Collector, Mumbai, respondent No. 2 in connection with the election of respondent No. 3-Maha Sangh. Pursuant to the above agenda notice, a meeting was held, subject No. 7 was taken for consideration and Resolution No. 7 was passed. By the said resolution, it was decided that instead of name of respondent No. 7, name of appellant will be sent as delegate and representative of respondent-Sangh and the said resolution was forwarded to respondent No. 2-Collector. He was, therefore, under obligation to effect change under R. 5(2) of the Rules. By not acting on the resolution, the respondent No. 2-Collector has acted contrary to law and the appellant was wholly justified in making complaint before the High Court and praying for exercise of writ jurisdiction under Art. 226 of the Constitution."
A Full Bench of this Court also in the case of Daheda Group Seva Sahakari Mandli Ltd. (supra) while holding that exclusion or inclusion of names from the voters list cannot be termed extraordinary circumstances warranting interference by the High Court under Article 226 of the Constitution, recognized that in exceptional cases, the court can exercise powers of judicial review, which is the basic structure. It was observed that ordinarily court would not like to exercise its powers 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 electoral roll. The Bench observed :
"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."
24. Thus, even in the Full Bench decision, in the case of Deheda Group Seva Sahakari Mandli Ltd (supra), the Bench recognized exceptional circumstances where writ jurisdiction would still be exercised. Later decisions of this Court pointed out by the respondents more or less have followed the Full Bench view in the aforesaid case.
25. On the other hand, there are certain judgments of the Division Bench of this Court which have, in extraordinary circumstances, in exercise of writ jurisdiction, given directions to ensure conduct of elections in fair manner. In the case of S.H. Popad (supra), a Division Bench observed as under:
"21. In view of the above material on record and in view of the fact that the meeting of the licence sub-committee was convened on 20.1.2007 after the Dy. Director for Agricultural Marketing and Rural Finance had sent a communication dated 10.1.2007 for fixing the date of election and the Director of Agricultural Marketing and Rural Finance had already declared the election program on 17/18th January 2007 (which program was subsequently merely varied by postponing the date of polling and the other stages of election) and having examined the scheme of the Act and the Rules, we have no manner of doubt in holding that the resolution dated 20.1.2007 of the licence sub-committee for granting as many as 293 licences (269 fresh licences) was not only illegal but also a fraud on the election process. As held by the Hon'ble Apex Court in Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216, without granting stay on the election process, this Court can intervene for the purpose of strengthening the democracy and for removing the obstacles to the fair election process. In our view, therefore, this is an extraordinary situation justifying our intervention for the purpose of striking down the resolution dated 20.1.2007 of the licence sub-committee and to direct the respondent-authorities not to permit the persons granted licences pursuant to the said resolution to participate in the elections to APMC Kalavad, Dist. Jamnagar.
In the case of Gujarat State Cooperative Bank (supra), a Division Bench of this court observed as under :
"14. Similar preliminary contention raised in another petition under Article 226 of the Constitution challenging the voters' list was rejected by a Division Bench of this Court to which one of us was a party. In Shrutbabdhu H. Popat v. State, 2007(3) GLR 1942, the preliminary contention was rejected on the ground that after the decision of the Full Bench decision rendered on 27.4.2005, in the subsequent decision dated 25.8.2005 of the Apex Court, in the case of Pundlik v. State of Maharashtra reported in 2005(7) SCC 181, the Apex Court has held that though preparation of the voters list is one of the integral process of election and that normally the High Court should not interfere in exercise of powers under Article 226 of the Constitution, but such action must be in accordance with law. In Pundlik's case, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami's case, 2001 (8) SCC 509 in which objections against publication of the provisional electoral roll of the society were considered by the Collector and dispose of. The final electoral roll was published on 2.7.1999. Election program was drawn by him on 21.10.1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the voters' list. It was in the background of the said facts that the Apex Court held in Shri Santi Sadguru case that the High Court should not stay continuation of the election process even if there may be some breach of Rules while preparing the electoral roll. Just as in the Pundlik's case, in the instant case the petitioner has taken action for challenging the inclusion of respondent Nos. 11 to 15 in the final voters' list immediately after publication of the voters' list."
In the case of Patel Chandrakant Thakorbhai (supra), a Division Bench taking note of the decisions of the Supreme Court in the case of Pundlik (supra) and Ashok Kumar (supra), while allowing the writ petition with respect to preparation of voters list observed as under:
"19. In the facts and circumstances of the case, we have no manner of doubt that the principles laid down by two Division Benches of this Court in Shrutbandhu H. Popat (supra) and in Kalubhai Ranabhai Akabari (supra) must be held to prevail over the principle that the authorized officer would not entertain the objections against the inclusion of names of persons in the provisional voters' list, who were already included in the preliminary voters' list."
26. From the above noted decisions, following aspects emerge.
27. Availability of alternative remedy though may persuade the Court not to exercise writ jurisdiction under Article 226 of the Constitution, the same is never considered a total bar. It is more a matter of self-imposed restraint by the court rather than a question of lack of jurisdiction. This is so because judicial review is considered as a basic feature of the Constitution. Exercise of writ jurisdiction under Article 226 is a constitutional guarantee. We may refer to the following decisions at this stage.
27.1 In the case of Amrik Singh Lyallpuri v. Union of Inida, (2011) 6 SCC 535, the Apex Court observed as follows :
"17.
In a subsequent Constitution Bench decision of this Court in L.Chandra Kumar v. Union of India, Ahmadi, C.J. After an analysis of different decisions of this Court affirmatively held that judicial review is one of the basic features of our Constitution. Such a finding of this Court, obviously means that there cannot be an administrative review of a decision taken by a judicial or a quasi-judicial authority which has the trappings of a court. Since judicial review has been considered an intrinsic part of constutionalism, any statutory provision which provides for administrative review of a decision taken by a judicial or a quasi-judicial body is, therefore, inconsistent with the aforesaid postulate and is unconstitutional."
27.2 In the case of M. Nagaraj v. Union of Inida, (2006) 8 SCC 212, the Apex Court observed as under:
"31.
At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice, both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State Legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by courts of justice. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our Constitution because it is necessary to give effect to the distribution of legislative power between Parliament and State Legislatures, and is also necessary to give practicable content to the objectives of the Constitution embodied in Part-III and in several other Articles of our Constitution."
28. Despite availability of such wide powers of issuance of various writs under Article 226 of the Constitution, Courts have always frowned upon interfering with the election process once the same is set in motion. Such self-imposed restriction is maintained particularly when any writ or order would have the effect of either arresting or derailing or delaying the election. The paramount consideration before the Court always is not to delay, detract or arrest the election process which is already set in motion. However, if it is found that the decision of the Authorized officer is malafide, arbitrary, in breach of law or opposed to the principles of natural justice, the courts have recognized the power to interfere and often interfered with even before the completion of the election to give suitable direction without delaying, derailing or arresting the election process which has already commenced. Such interference is viewed as one in furtherance of holding free and fair election rather than to arrest or delay the election process.
29. Under the circumstances, we are of the opinion that though ordinarily court would not interfere once the election process is commenced, and particularly with respect to preparation of voters list which process is recognized as part of election process, and would ordinarily leave the parties to raise all disputes post election in an election petition, there would be instances where the interference of the court looking to the peculiar and rare circumstances would be called for. In the present cases, as we have already held, the decision of the Authorized Officer is contrary to the law laid down by this court in two decisions in case of Husseinbhai (supra) and Jagdishbhai Ranchhodbhai (supra). No contrary decisions have been cited before us. View of this Court is thus consistent and unambiguous. Such pronouncement was made by learned Single Judge in case of Husseinbhai (supra) way back in 1979. Such view was reiterated by Division Bench more recently in case of Jagdishbhai Ranchhodbhai (supra). As noted, petitioners have stated that in election of other APMC's, voters' lists are prepared accordingly. Permitting such order to survive would only result into perpetuating palpable illegality. At the end of election also, if an election petition is filed, the authority would have no alternative but to follow the ratio laid down by this Court in the case of Husseinbhai (supra) and in the case of Jagdishbhai Ranchhodbhai (supra). We are therefore of the opinion that by giving suitable directions if such injustice can be remedied without delaying the election or arresting the election process, writ jurisdiction in facts of the present case should be exercised.
30. Before closing, we would like to clarify that interference in election process particularly in preparation of voters list would be in extremely rare circumstances. We should not mean to have suggested that such interference could be ordinarily done merely because the petitioners make out a prima facie case of some illegality or irregularity.
31. Under the circumstances, by allowing these petitions, respondent No.4 Authorized Officer is directed to include the names of the members of the Managing Committee of the petitioner societies in the voters list for agricultural constituency. The voters list already published shall be suitably upgraded, which shall be done latest by 15th December 2011. The impugned orders dated 24th October 2011 are quashed. All the petitions stand disposed of accordingly.
Direct service to respondent No.4 is permitted.
32. At this stage, counsel for the private respondents prayed for stay of the order to enable them to prefer further appeals. In the facts of the present case, accepting such request would amount to rejecting the petitions which we are of the opinion should be allowed. Hence such request is rejected.
(Akil Kureshi J.) (Ms.Sonia Gokani, J.) (vjn) Top