Gujarat High Court
Akoliya Mohanbhai Ukabhai vs State Of Gujarat & on 25 November, 2013
Author: Jayant Patel
Bench: Jayant Patel
AKOLIYA MOHANBHAI UKABHAIV/SSTATE OF GUJARAT C/SCA/16012/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16012 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and 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 ? ================================================================ AKOLIYA MOHANBHAI UKABHAI & 7....Petitioner(s) Versus STATE OF GUJARAT & 17....Respondent(s) ================================================================ Appearance: MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 8 MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 - 3 MR ANSHIN H DESAI, ADVOCATE for the Respondent(s) No. 5 RULE SERVED for the Respondent(s) No. 1 - 18 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MS JUSTICE SONIA GOKANI Date : 25/11/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) The present petition is directed against the order passed by the State Government in revisional jurisdiction dated 26.11.2012 (Annexure-A), whereby the State Government has set aside the order passed by the Director and has further set aside the election of agriculturist constituency of the Agriculture Produce Market Committee, Dhanera.
The short facts of the case are that the election of Agriculture Produce Market Committee, Dhanera (hereinafter referred to as 'Market Committee/Committee') had become due under Gujarat Agriculture Produce Markets Act, 1963 (hereinafter referred to as 'the Act') read with Gujarat Agriculture Produce Markets Rules (hereinafter referred to as 'the Rules'). On 24.12.2010, the election programme was fixed by the Director and various stages were notified. The voters' list was also published and the objections were invited. The objections were submitted and the election thereafter was held on 30.3.2011 and the result was also declared on 31.3.2011.
The election petition was filed under Rule 28 of the Rules of agriculturist constituency for challenging the legality and validity of the election. The Director, Agriculture Produce Market Committee (who is vested with the power under Rule 28 of the Rules), after hearing both the sides, dismissed the petition. The matter was carried in revision by respondent No.5 before the State Government under Section 48 of the Act. The State Government, after hearing both the sides, ultimately passed the above referred impugned order. Under these circumstances, the present petition before this Court.
We have heard Mr.Dipen Desai, learned Counsel appearing for the petitioner and Mr.Anshin Desai, learned Counsel for respondent. Mr.Jayswal, learned AGP appears for the State Authorities. The other respondents are served, but none appears on their behalf. We have considered the contents of the order passed by the State Government, which is impugned in the present petition and the other relevant record of the present proceedings.
Mr.Dipen Desai, learned Counsel appearing for the petitioner raised the first contention that the State Government, after having found that 168 voters were wrongly deprived of, who were office-bearers of 12 Cooperative Societies and after the State Government found that 150 voters were wrongly included, who were members of 10 Cooperative Societies, the State Government has set aside the election of all the returned candidates. In his submission, the aspect of material effect on the result of the election has not been considered by the State Government while exercising the revisional power and such being an error apparent on the face of record, this Court may interfere.
Whereas, Mr.Anshin Desai, learned Counsel appearing for the respondent No.5 main contesting party, who had preferred revision before the State Government submitted that the whole election was held in an undemocratic manner and rather in breach of or spirit of the order dated 24.12.2010 passed by this Court in Special Civil Application No.16458 of 2010. It was submitted that initially the election programme was published and just on the eve of the election, about 10 Societies were got up in order to see that their office-bearers can be inducted as the voters in agriculturist constituency. In order to see that office-bearers of Cooperative Societies were included in the voters' list, no action was taken to proceed with the election and, therefore, as the election had not proceeded further, respondent no.5 and his supporters had taken action, wherein this Court had directed for proceeding with the election and this Court further directed for completion of the election unless any prohibitory order is passed by the competent Court. He submitted that thereafter instead of proceeding with the election as per the earlier programme, in order to see that subsequent voters, who were office-bearers of the aforesaid 10 Cooperative Societies, were included, a fresh election programme was published and the authorized officer wrongly included those persons as the voters.
He also submitted that about 168 persons, who were otherwise not eligible to be included in the voters' list of the 12 Cooperative Societies, were excluded wrongly by the authorized officer. In his submission, because of misuse of exercise of power, the whole election was vitiated and as a result thereof, the State Government could not be said as not justified in setting at naught the whole election of the agriculturist constituency. In his submission, Rule 28 does not provide for express consideration of material effect on the result of the election. Therefore, if the same is not considered by the State Government, the order cannot be said to be vulnerable and, therefore, this Court may dismissed the petition.
In our view the aspect of requirement to consider the material effect on the result of the election need not detain us further, more particularly when the issue is covered by the decision of the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R.D. Rohit, Autho. Officer & Co. Operative Officer (Marketing), reported in 2006(1) GCD, 211 (Guj) [FB]). In the said decision, the Full Bench considered the contentions and made observations at paragraphs 29 and 30, which read as under:-
"29.
Turning now to the second contention namely; can remedy under Rule 28 can be termed to be efficacious remedy. Learned Counsel Mr Patel after inviting our attention to rule 28 submitted that even though the authority either can cancel or confirm and amend the declared result and can direct to hold fresh election in the event of setting aside the election, if the non-inclusion of the names in the voters' list has not materially affected, result of the election which is very difficult to establish then, the election cannot be set aside. In that event, the right under the statute to cast the vote shall not be available to the person whose name is wrongfully excluded from the voters' list. He submitted that even the Director or the competent authority under rule 28 cannot confer the right to vote. Under the provisions of rule 9 read with section 15 of the Act, the election is required to be held afresh. In that event, a person who has lost his right to vote remains the claimant for getting the right to vote but that right cannot be decided by the authority under the rules or provisions of the Act. He submitted that the voters' list is to be prepared for every election and the voters' list is not continued. If the voters' list is not continued, in that event, by no stretch of imagination, a person can get right to vote. By giving example, he submitted that if 50 voters have been excluded from the voters' list by wrongful order, in that event, in a petition by one member the right of other 49 cannot be decided. Under the circumstances, he submitted that the remedy under rule 28 cannot be termed as efficacious remedy. Finally he submitted that in absence of any right to appeal, the power conferred on authorized officer would lead to hazardous situation.
30. The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit. Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter or right that he is entitled to invoke the jurisdiction of this court."
The aforesaid shows that the Full Bench specifically observed that "... therefore, in an election petition, such a question can be validly raised, adjudicated and ultimately granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion, the result of the election is materially affected. (Emphasis supplied) Under these circumstances, while interpreting Rule 28, its scope and ambit, the Full Bench has considered the aspect of material effect on the result of the election to be considered while granting relief in any election petition.
Even otherwise also, when any Election Tribunal has clothed with the power for setting at naught the election held, the aspect of material effect on the result of the election can be considered as a sine qua non.
Of course, the material effect on the result of the election can broadly be classified in two categories; one would be whether on account of the alleged illegality, the whole election is vitiated or not, for example, the exercise of power for holding of the election by an authority, who had no competence to hold the election, etc. The second would be considering of the matter for the effect on account of wrong inclusion and exclusion of the voters upon the returned candidate or upon the candidate, who has lost the election.
The contention raised on behalf of the petitioner that the whole election, is vitiated on account of the observations made and the order passed by this Court on 24.12.2010 in Special Civil Application No.16458 of 2010 raised by Mr.Anshin Desai cannot be accepted for two reasons; one is that this Court has not specifically observed for publication of a fresh election programme and the second is that even after publication of the fresh election programme, respondent No.5 has participated voluntarily at the election and not only that, but he has contested the election and ultimately, he lost. In our view, in a given case, the Court may find that the publication of the whole election programme was contrary to the law and the direction of this Court resulting into the vitiation of the election, but considering the facts of the present case and more particularly, the conduct of the petitioner, we do not find that the contention deserves to be accepted to the extent that the whole election was vitiated.
On the second aspect that material effect on the result of the election, as observed by us herein above, the Full Bench has already expressed the view that such aspect is required to be considered and, therefore, the said contention also cannot be accepted.
The perusal of the order passed by the State Government shows that there is no discussion worth the name on the material effect on the result of the election by considering voting pattern and the votes received by the returned candidates and the candidates, who had lost at the election. The figures were given during the course of the hearing to us by the learned Counsel for the petitioner, which, if considered, may show that the result could not be said to be materially effect qua all the returned candidates of the agriculturist constituency, but may be qua one person. Same is the situation for the candidates, whose names were wrongly excluded from the voters' list. We need not express any final view on the said aspect, but at least it does show that there was obligation on the part of the State Government to consider the aspect of material effect on the result of the election before grant of final reliefs of setting at naught the election. If the State Government finds that the material effect is to the whole of the election, the relief may be required to be considered accordingly, but at the same time if the record shows that the material effect is only of a returned candidate or a particular candidate, who had been declared elected, it could not be granted for setting at naught the election for the other candidates. We leave it at and suffice it to observe that the State Government shall examine the said aspect and grant relief accordingly.
The learned Counsel for the respondent No.5 has not been able to show any discussion by the State Government for examining the material effect on the result of the election which is sine qua non.
Merely because such contention is not raised cannot be treated as a valid ground for non-examination of the said aspect. In our view, if such aspect is not examined in an election petition, it can be said to be an error apparent on the face of record.
In view of all the aforesaid observations and discussion, the impugned order passed by the State Government deserves to be quashed and set aside. Hence, the same is quashed and set aside. The State Government is further directed to examine the matter in light of the observations made by this Court in the present judgement and in accordance with law and shall render decision after hearing both the sides as early as possible, preferably within a period of three months from the date of receipt of the order of this Court. As the State Government has not expressed any final view after examination of the fact of the matter on the material effect on the result of the election, we find it proper to observe that the interim relief granted in the present petition as per order dated 8.1.2013, so far it relates to the functioning of petitioner No.7, shall continue to remain in operation until fresh order is passed by the State Government as directed herein above, but with the further observation that the State Government shall be at liberty to take independent view of the matter without being influenced by the aspect that the interim relief granted in the present petition has been continued until the State Government passes fresh order.
The petition is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. Direct service is permitted.
(JAYANT PATEL, J.) (MS SONIA GOKANI, J.) vinod Page 14 of 14