Gujarat High Court
Mukeshbhai Bhimjibhai Parmar vs State Of Gujarat on 11 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/442/2020 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 442 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law NO as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MUKESHBHAI BHIMJIBHAI PARMAR Versus STATE OF GUJARAT ========================================================== Appearance:
MR DIPAN DESAI(2481) for the Petitioner(s) No. 1 MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER(1) for the Respondent(s) No. 1 MR BS PATEL, SENIOR ADVOCATE WITH MR CHIRAG B PATEL(3679) for the Respondent(s) No. 5,6,7,8 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4 ========================================================== CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 11/02/2020 CAV ORDER
1. By way of this petition under Article 226 of the Constitution Of India, the petitioner has challenged the order Page 1 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER dated 30/12/2019 passed by the Respondent No.3 by which the objections of the petitioner of inclusion of the names of the Respondent Nos.5 to 8 Societies in the voters' list in the constituency of "co-operative marketing societies" for the purposes of the election of the APMC Dahod have been rejected.
2. Facts in brief leading to the filing of the present petition are as under:
2.1 The petitioner is a member of the managing committee and Vice-Chairman of the Bhil Seva Sahakari Vastu Bhandar Ltd which is a Co-operative Society registered under the Gujarat Co-operative Societies Act, 1961 and as defined under Section 2(v) of the Act as it is carrying out business of buying and selling agricultural products.
2.2 Elections for the Agriculture Produce Market Committee, Dahod were declared on 4.1.2018. For the constituency of "co-operative marketing society" only one seat was declared. An election programme was published in the newspaper and the notification was issued on 11/1/2018. The preliminary voters' list was to be published on 22/1/2018. The last date for filing objections was 11/2/2018 and publication was on the same day for the elections to be held on 3/4/2018 and counting on 4/4/2018. Aggrieved by not being included in the voters list, the petitioner approached the District Registrar by filing his objection to his non-inclusion. The District Registrar by a communication dated 11/1/2018 rejected the claim of the petitioner for being included as a co-
operative marketing society and held that since the petitioner Page 2 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER was a consumer society it was not a co-operative marketing society under section 2(v) of the Act.
2.3 The order was challenged by filing Special Civil Application No.1163 of 2018 which was disposed of by an order dated 12/2/2018 with a direction that the Director, Agriculture Marketing and Rural Finance shall decide the representation on a fresh representation made by the petitioner. Accordingly, the petitioner made a fresh representation on 14/2/208 setting out facts which suggested that the petitioner was a co-operative marketing society under section 2(v) of the Act. By a communication dated 17/2/2018 the representation was rejected on the ground that the petitioner was not a co-operative marketing society and therefore there was no reason to include the petitioner in the voters' list and the notification declaring elections need not be changed.
2.4 The order was once again a subject matter of challenge before this Court in Special Civil Application No.3021 of 2018. The Court by a detailed order passed on 23/3/2018 reversed the order of the Director dated 17/2/2018 and held that the petitioner was a co-operative marketing society. The Court held as under:
"15. Now, the respondent Director has not treated the petitioner Society as the Cooperative Marketing Society, on the ground that the petitioner Society is not registered 'as such' I.e. as the Cooperative Marketing Society under the Societies Act, as contemplated in Section 2(v) of the APMC Act. In the opinion of the Court, the respondent Director has thoroughly misinterpreted the said provision. If Page 3 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER the definition of "Cooperative Marketing Society"
as contained in Section 2(v) is closely read, it transpires that a Society registered or deemed to be registered 'as such' under the Cooperative Marketing Societies Act, 1961, engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce and is holding a licence would be called Cooperative Marketing Society. Meaning thereby, the Society has to be registered or deemed to be registered as the Society under the Societies Act. The submission of the learned Assistant Government Pleader that the words 'as such' contained in the definition clause is required to be interpreted in the context of the Operative Marketing Society, has no legs to stand. As per Section 2(19) of the Societies Act, 'Society' means a Cooperative Society registered or deemed to be registered under the said Act. If the said definition is read in the context of the definition clause contained in Section 2(v) of the APMC Act, it appears that the words 'as such' used in the Section 2(v) would relate to the Society and not the marketing society. There is no provision under the Societies Act to register any cooperative society as the Cooperative Marketing Society. The learned Assistant Government Pleader has failed to show any provision from the Societies Act, which would require any society to be registered as the Marketing Society or the consumer society or as per the classifications made by the Registrar under Section 12 of the Societies Act. Section 12 empowers the Registrar to classify the societies under the different categories for the purposes of the said Act. However, there is nothing on record to suggest that the cooperative societies are registered as per the classification made by the Registrar under Section 12 of the Societies Act. Hence, apart from the fact that the copy of the Circular dated 26.7.1996 has not been produced by the respondent along with the affidavit-in-reply, such Circular, if any, issued under Section 12 could not be relied upon for the purpose of the interpretation of the provisions of the APMC Act, and to hold that the cooperative societies are required to be registered as per such classification.
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16. For the purposes of Section 2(v) of the APMC Act, a society for being construed as the Cooperative Marketing Society, has to satisfy three conditions. Firstly, the society has to be registered or deemed to be registered 'as such' means 'as society' under the Gujarat Cooperative Societies Act, 1961. Secondly, the said society must have been engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce, and thirdly such society must be holding licence granted under the said Act.
17. Similar view has also been taken by the Single Bench of this Court in case of Azamukhi Dangar Utpadakoni Sahakari Mandali Ltd. Vs. State of Gujarat, reported in 2016(3) GLR 2051, wherein it has been observed that -
"21. In the definition of cooperative marketing society under Section 2(1)(v) of the Act of 1963, two parts "registered" and "deemed to be registered as such" are connected with conjunction "or" which coordinate such parts of the definition and creating alternative between them. The word 'as such' cannot be for the phrase 'marketing society'. Even otherwise, undisputably, no society is registered as marketing society under the provisions of the Societies Act. The word 'as such' is just to make it certain that the registration of the society by deeming fiction is under the provisions of the Societies Act. Section 169 of the Societies Act provides for such deemed registration of the cooperative society under the Societies Act."
18. It was next submitted by the learned Assistant Government Pleader that the petitioner Society was not engaged in the business of buying or selling of agricultural produce or of processing agricultural produce. The said submission also cannot be accepted. The respondent Director in the impugned order itself has specifically stated that as per the report of the auditor, the petitioner Society was carrying on the business of buying and selling of grains, which are agricultural produces. Even otherwise, when the petitioner Society has already Page 5 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER been included in the voters' list of the traders' constituency and is holding valid licence issued under the Act for the purchase and sale of agricultural produces, it does not lie in the mouth of the respondent authorities to say that the petitioner society is not engaged in the business of buying or selling the agricultural produces.
19. In that view of the matter, the impugned order passed by the respondent Director could not be vindicated. Permitting such order to survive would result into misinterpretation of the provisions contained in the APMC Act, entailing misuse of powers by the concerned authorities under the said Act. The petitioner Society is required to be treated as the "Cooperative Marketing Society" within the meaning of Section 2(v) for the purposes of Section 11(1)(iii) of the APMC Act. The members of the petitioner Society shall be at liberty to fill up the nomination form from the Cooperative Marketing Societies constituency of the APMC, Dahod.
20. The impugned order dated 17.02.2018 passed by the respondent Director is set aside. The petition stands allowed accordingly. The learned Assistant Government Pleader is directed to convey the order telephonically to the concerned respondents.
Direct service is permitted."
2.5 The Court held that the members of the society would be eligible to fill up the nomination form from the constituency of the co-operative marketing society. The nomination forms filled in by the members were rejected which gave rise to filing of Special Civil Application No.4714 of 2018. The Court while issuing notice in the said petition recorded a statement of the AGP that the Election Officer has suspended the elections in view of the pendency of the petition.
Page 6 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020C/SCA/442/2020 CAV ORDER 2.6 In the meantime the judgement and order of the learned single judge by which the petitioner was held eligible to file nominations was challenged by the State by filing Letters Patent Appeal No.406 of 2018 wherein this Court by an order dated 4/4/2018 issued notice and ordered status-quo to be maintained. Thereafter, by an order dated 17/7/2019 however the order of status quo was vacated. The Order dated 17/7/2019 of the Division Bench reads as under:
"Having regard to the facts and circumstances and upon hearing learned Assistant Government Pleader for the appellant and learned advocate for the respondent, vis-a-vis definition Clause 2 (v) as quoted in paragraphs 10, 11, 12, 13 and 14 of the judgement which reads as under:
"10.In the instant case, the petitioner has challenged the order passed by the respondent Director on the ground of being arbitrary, illegal and dehors the APMC Act. The issue posed before the Court being on interpretation of the provisions contained in the APMC Act and Societies Act, it would be apposite to reproduce the relevant provisions thereof. Section 11(1) (iii) of the APMC Act reads as under:-
11. Constitution of market committee.- (1) Every market committee shall consist of the following members,
(i) xxx
(ii) xxx
(iii) two representatives of the co-
operative marketing societies situate in the market area, holding general licences, engaged in the business in conformity with their respective objects and have their last accounts audited in class A, B, or C, as the case may be, to be elected from amongst the members (other than nominal, associate or Page 7 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER sympathiser members) of such societies by the members of the managing committees of such societies;"
11. The definition of "Cooperative Marketing Society" as contained in Section 2(v) reads as under:-
"2. Definition.- In this Act, unless the context otherwise requires-
(I) to (iv) xxx
(v)"co-operative marketing society" means a society registered or deemed to be registered as such under the Gujarat Cooperative Societies Act, 1961 and engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce and holding a licence;"
12. Section 2(19) of the Societies Act, defines 'Society' as under:-
"2. Definitions.-
(1)namely;-
(I) xxx
(ii) xxx
(iii) two representatives of the co-
operative marketing societies situate in the market area, holding general licences, engaged in the business in conformity with their respective objects and have their last accounts audited in class A, B, or C, as the case may be, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies;"
(1)to (18) xxx (19) "society" means a co-operative society registered, or deemed to be registered, under this Act;"
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13. Section 4 of the Societies Act deals with the registration of the Societies, which reads as under:- "4. Societies which may be registered.- A society, which has as its object the promotion of the economic interest or general welfare of its members or of the public, in accordance with co-operative principles, or as society established with the object of facilitating the operations of any such society, may be registered under this Act: Provided that it shall not be registered if, in the opinion of the Registrar, it is economically unsound, or its registration may have an adverse effect upon any other society, or it is opposed to, or its working is likely to be in contravention of public policy."
14. Section 12 of the Societies Act pertains to the classification of the Societies, which reads as under:- "12. Classification of societies.- The Registrar may classify all societies in such manner, and into such classes, as he thinks fit; and the classification of a society under any head of classification by the Registrar shall be final."
The interpretation put forth by learned Single Judge to 'as such' appearing in definition 2 (v) read with other sections and there is no other nomenclature for registration of Co-operative Marketing Society other than 'Co-operative Societies' under Gujarat Co-operative Societies Act, 1961, we find no justification to continue interim relief granted by this Court, particularly, when election programme was notified, whereby, election was declared on 11.1.2018 and declaration of election result was put out immediately after completion of calculation of votes on 4.4.2018.
Interim relief stands vacated.
Stand over to 5.9.2019."
2.7 On the order of status quo being vacated, the petitioner Page 9 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER by a letter dated 25/7/2020 requested the Director, Agriculture and Rural Finance to hold fresh elections. The respondents issued a fresh notification on 25/11/2019 notifying elections on 25/2/2020 and notifying the date of preliminary voters' list to be published on 13/2/2020. It appears that the respondents 5 to 8 Mandalis were added in the voters' list for the fresh elections declared by the notification of 25/11/2019 and therefore the petitioner filed objections to the inclusion of these societies in the list of voters. The objections of the petitioner were filed on 26/12/2019 inter-alia objecting to the inclusion of the names of the Respondents 5 to 8 societies on the ground that when the elections were declared earlier on 4/1/2018 the societies were not included however they have been so included now though they were no co-perative societies and they were not engaged in the business of agricultural commodities and not possessing licences and functioning at the time so as to be eligible to be so included.
2.8 By the impugned order the objections of the petitioner have been rejected and hence the Petition.
3. The prayers in the petition read as under:
"6. The petitioner, therefore, prays that:
(A) The Hon'ble Court may be pleased to issue writ of certiorari or writ in the nature of certiorari or any other appropriate writ, quashing and setting aside the impugned orders dated 29.12.2019 and 30.12.2019 passed by the respondent No. 4 -
Authorized Officer, annexed at Annexure - A Collectively to the petition and thereby pleased to delete the names of members of managing Page 10 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER committee of respondent Nos. 5 to 8 societies from the voters list of co-operative marketing societies constituency for the election of Agricultural Produce Market Committee, Dahod.
(B) Pending final hearing and disposal of this petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned orders dated 29.12.2019 and 30.12.2019 passed by the respondent No. 4 - Authorized Officer, annexed at Annexure - A Collectively to the petition and thereby pleased to restrain the members of managing committee of respondent Nos. 5 to 8 societies from the voters list of co- operative marketing societies constituency for the election of Agricultural Produce Market Committee, Dahod."
4. Mr. Dipen Desai, learned advocate for the petitioner has made the following submissions:
a) Drawing my attention to the earlier election program of 4/1/2018, Mr Desai would submit that since earlier only for one seat of the co-operative marketing society was the election declared, the petitioner society not being included filed its objection and the non-
inclusion was challenged and was upheld by this Court by an order dated 23/3/3018.
b) The Court permitted the society's members to file their nomination. The nomination form was rejected which was challenged where a statement was made that the election process has been suspended. Once the Division Bench by an order in the LPA had vacated the stay on 17.7.2019 and once the election process had been admittedly suspended the same should have commenced from the stage where it had stopped and not Page 11 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER a fresh election ought to be declared by issuing a fresh notification and thereby facilitation addition of voters four societies i.e. respondents 5 to 8.
c) The order of the status quo initially granted was on 4/4/2018 before the election process was over and therefore it cannot be said that the elections had concluded.
d) The respondents had misconstrued the representation dated 25/7/2019 to hold fresh elections. Merely because the expression in the letter suggested that elections be held again it did not mean holding of fresh elections.
e) Mr. Desai would further submit that the contention of the petitioner that the elections should be held from the stage where it had stopped is unanswered by the Respondents. No reply has been filed by the official respondents.
f) Mr. Desai would further submit that the respondent No. 3 passed two orders. One on 29/12/2018 holding that the objections of the petitioner were frivolous. Once having passed such an order the Respondent No.3 had become functus officio and therefore could not have passed a fresh order on 30/12/2018 giving fresh reasons rejecting the objections of the Petitioner.
g) That there was violation of principles of natural justice in as much as the Societies were called for a hearing at 12.00 noon whereas the petitioner was called in subsequently at 1.00 pm and therefore there was no simultaneous consideration.
h) That the order of the Respondent No3 is an order Page 12 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER
without reasons. Nothing is recorded as to on what basis did the respondent conclude that the societies were eligible for their inclusion. Except recording of objections of the Petitioner no inquiry as provided under Rule 7 and 8 of the APMC Rules has been held and therefore the order is bad.
i) Taking me through the provisions of Section 11(1)
(iii) and 2 (v) of the Act, Mr. Desai would submit that the societies should be engaged in business. Taking me through the documents annexed to the objections, the submission of Mr. Desai was that the societies were still in a nascent stage and therefore it appeared that it reflected as if the same were given licences so as to facilitate their inclusion in the voters' list. There was no satisfaction that the societies were actually engaged in business.
j) The delay in initiation of the election process is intentional. The Division Bench vacated the stay on 17.07.2019 and therefore election process had to be started immediately, however, the same is started after a period of four months and in the meantime, the respondent nos. 5 to 8 societies are issued license in the month of September-2019 making them eligible to be included in the voters list. Therefore, if at all the election process had to be started again then only those societies which were eligible as on the date of order of the Division Bench dated 17.07.2019, can be allowed to participate in the election and not those societies which have acquired eligibility after the order of the Division Bench.
k) As regards the contention of the other side that the Page 13 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER
petitioner has requested for declaration of fresh election and therefore is estopped from raising any contention to the contrary, there cannot be any estoppel against law. The Director was required to comply with order of the Division Bench in its true letter and spirit.
l) The Authorized Officer has no power to review/reconsider his own order. Once he has already passed an order stating that objections are bogus, he cannot then pass another order giving reasons.
4.1 Mr. Dipen Desai, learned advocate for the petitioner, in support of his contention that the Authorised Officer ought to have made the necessary inquiry under Rule 7 of the APMC Rules, relied on the following decisions:
1) Mahendrakumar Maganbhai Patel vs State Of Gujarat reported in 2014 JX (Guj) 62. Reliance was placed on Para 10 of the said decision.
2) Anand Fal ane Shakbhaji Utpadakoni Sahkari Mandli Ltd. vs State of Gujarat through Registrar reported in 2018 JX (Guj) 150. Reliance was placed on Paras 10, 11, 14, 16 to 18.
3) Ramansinh Narsinh Rathod vs State Of Gujarat reported in 2018(1) GLR 647. Reliance was placed on Paras 18 to 21 .
4) Mandropur (Fatehpur) Juth Seva Sahkari Mandali Limited vs State Of Gujarat reported in Page 14 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER 2017(2) GLR 1495. Reliance was placed on Paras 8 to
10.
5. Mr. B.S. Patel, learned Senior Advocate assisted by Mr. Chirag Patel, learned advocate appearing for the contesting societies respondents 5 to 8 who have been included in the voters' list would submit as under:
A) Inviting my attention to the prayers made in the petition, Mr. Patel would submit that the only prayer was to set aside the orders rejecting the objections. There was no prayer for declaring the exercise of holding fresh elections as bad. There was no challenge to the Election Programme. Essentially, the petitioner was therefore aggrieved by the inclusion of the respondent societies and therefore clearly the petition was barred by an alternative remedy under Rule 28 of the Rules. B) In context of the submission of the petitioner with regard to the two orders passed, one on 29/12/2018 and therefore the Officer having become functus officio on and therefore incompetent to pass a fresh order on 30/12/2018, Mr. Patel submitted that the first communication was in context of the bye laws wherein according to the old bye-laws the petitioner wanted inclusion of 21 members whereas in fact as per the bye laws and as per the record before the High Court the list ought to have 14 members. The objection with regard to inclusion of the respondents was not dealt with. C) Mr. Patel submitted that the contention of the petitioner that there was violation of principles of natural justice also was misconceived. What was evident Page 15 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER from reading the order was the respondents remained present and lodged their justification at 12.00 noon whereas the petitioner approached the officer on the same day at 1.00 am and not that the hearing for the petitioner was slated for that time. Even otherwise since the objections were against the respondents no. 5 to 8, the officer had to first hear the respondents whose names were sought to be deleted and satisfy himself on the aspect of whether the claim of the petitioner was justified and then hear the petitioner. D) Mr. Patel would further submit that from reading the letter dated 25/7/2019 of the petitioner, it was evident that it was he who requested for a fresh election which was held and therefore now it is not open for the petitioner to contend that the election should have begun from the stage where it had stopped. E) The election process, in Mr Patel's submission, has begun and the only remedy is therefore recourse to Rule 28 of the Rules now and the petition must therefore be dismissed on this ground alone. Inclusion/exclusion of a voter is a subject matter in the realm of election process.
F) Even otherwise the official respondent had considered the documents produced by the societies which are included. The societies are in existence since 2016 and therefore it is not a case that they have been given licence just to have them as voters. Auditors report together with relevant documents would show that the societies are actually engaged in the business of agriculture products and are therefore "co-operative marketing societies" under Section 2(v) of the Act. All these facts which need assessment of evidence are Page 16 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER disputed questions of fact which cannot be gone into by this Court in a petition under Article 226 of the Constitution Of India.
6. Mr. Utkarsh Sharma, learned Assistant Government Pleader has appeared for the State and stoutly defended the orders of the Respondent No.3. He would submit as under:
i) If the objections of the petitioner raised before the respondent no.3 are read, nowhere has the petitioner raised a plea that no fresh elections be held. The only plea raised by the petitioner was to the addition of the private respondents as voters and therefore the contention regarding holding elections from the stage as on 23/3/2018 is an afterthought.
ii) The only remedy available is that under Rule 28 of the Rules and the bogey of a direction to hold a fresh election is being raised purely with a view to overcome the objection of jurisdiction of this Court to entertain the petition.
iii) The first order of 29/12/2018 is just a communication in context of two separate objections, one regarding the bye-laws and the strength of the members of the petitioner society and the second regarding the inclusion of the respondents as voters.
iv) Inquiry as necessary under Rule 7 of the APMC Rules was undertaken and therefore the order of the authority rejecting the objections of the Petitioner is just and proper.
6.1 Mr. Sharma would support the submission made by Mr. Page 17 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER Patel based on the Audit Reports and documents annexed thereto to suggest that the respondents 5 to 8 were societies eligible to be included in the voters list. Pursuant to the petitioner's representation after having succeeded in the petition and the stay having been vacated, the respondent is only acceding to the request of the petitioner of holding elections and therefore the impugned action deserves to be quashed and set aside.
6.2 In order to support the contention that the petitioner ought to invoke the provisions of Rule 28 of the Rules, Mr. Sharma has relied on the following decisions:
1) Manda Jaganath vs K S Rathnam reported in AIR 2004 SC 3600. The submission is that as per this decision the order of the Authorised Officer cannot be examined in a Petition under Article 226 of the Constitution Of India.
2) Daheda Group Seva Sahakari Mandali vs R.D.Rohit, Authorised Officer and Co-operative Marketing Officer (Marketing) reported in 2006(1)GCD 211 to support the submission that powers under Article226 of the Constitution Of India are to be exercised sparingly. A remedy under Rule 28 is an alternative efficacious remedy.
3) Shree Rajkot District Co-operative Bank Limited vs State Of Gujarat through Secretary, Agriculture and Co-operation Department reported Page 18 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER in 2012(1) GLR 670 wherein it is held that for inclusion or exclusion in the voters' list, the remedy is an election petition under Article 226 of the Constitution Of India.
7. Having considered the submissions of the learned advocates for the respective parties in order to consider what relief the petitioner is entitled to, it will be proper to reiterate the prayers made in the petition. At the cost of repetition they need to be reproduced as under:
"6. The petitioner, therefore, prays that:
(A) The Hon'ble Court may be pleased to issue writ of certiorari or writ in the nature of certiorari or any other appropriate writ, quashing and setting aside the impugned orders dated 29.12.2019 and 30.12.2019 passed by the respondent No. 4 -
Authorized Officer, annexed at Annexure - A Collectively to the petition and thereby pleased to delete the names of members of managing committee of respondent Nos. 5 to 8 societies from the voters list of co-operative marketing societies constituency for the election of Agricultural Produce Market Committee, Dahod.
(B) Pending final hearing and disposal of this petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned orders dated 29.12.2019 and 30.12.2019 passed by the respondent No. 4 - Authorized Officer, annexed at Annexure - A Collectively to the petition and thereby pleased to restrain the members of managing committee of respondent Nos. 5 to 8 societies from the voters list of co- operative marketing societies constituency for the election of Agricultural Produce Market Committee, Dahod."
7.1 Reading of the prayers unequivocally suggest that the Page 19 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER petitioner is aggrieved by the decision of the respondent No.3 by which the respondents no. 5 to 8 are included in the voters list.
8. Initially the petitioner lodged a protest on 8/1/2018 when the notification of elections for APMC, Dahod were declared on 4/1/2018. The elections were declared by the notification for APMC, Dahod for 8 seats of the agriculturists constituency, 4 from traders' constituency and 1 from co- operative marketing societies.
8.1 The case of the petitioner was that the society was a "co- operative marketing society" under Section 2(v) and the order rejecting the protest was unsustainable. The Petitioner succeeded in the challenge to the order and this Court in its order dated 23/3/2018 held that the petitioner society was entitled to be included as a "co-operative marketing society"
The relevant paragraphs of the order dated 23/3/2018 have already been reproduced hereinabove and need no repetition. It was in the context of such circumstances that even the court negated the objection of the State to availability of a remedy under Rule 28. It permitted the members of the society to fill up nomination form from the co-operative marketing societies constituency.
8.2 The nomination forms were filled in but were rejected which gave occasion for the petitioner to file a petition once again, being Special Civil Application No. 4714 of 2018. On a statement made that the Election Officer has suspended the process of election the petition was adjourned. It appears from the status of the petition as it was last listed on Page 20 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER 24//7/2018 the order reads that the same has been adjourned sine die as the Division Bench is seized with the Appeal against the Order dated 23/3/2018. On 4/4/2018, the Division Bench in the Appeal granted status quo as on 4/4/2018. That was the last date of the election process of the elections. By an order of 17/7/2019, the Division Bench vacated the stay holding that there was no justification in continuing the interim relief when the election programme was notified and the election result was put out immediately on completion of calculation of votes on 4.4.2018.
9. What needs to be borne in mind is that the petitioner contends that there could not have been a fresh election but the same should have started from the stage it had stopped. The notification of 4/1/2018 announced elections for the three constituencies, namely agriculturists, traders and co-operative marketing societies. The petitioner was aggrieved by being counted as a consumer society. The Court upheld the petitioner's stand that it was a co-operative marketing society. From the fresh notification issued on 25/11/2019 and the election programme annexed, it is apparent that what is now notified is an election only for the co-operative member constituency and the fresh election programme has to be viewed in the said context and the order of the Division Bench dated 17/7/2019 be read accordingly.
9.1 Reading of the order of the Division Bench dated 17.7.2019 indicates that the status quo that was granted on 4/4/2018 was vacated. On 4/4/2018, as per the first notification of 4/1/2018 counting for the elections declared vis-à-vis the other two constituencies for which the elections Page 21 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER were held was over. Obviously it was that context that the Division Bench on 17/7/2019 kept in mind while vacating the stay inasmuch as counting of votes was over on 4.4.2018. The order or statement suspending elections as recorded in the proceedings where the petitioner's rejection of his nomination and the order of 27/3/2018 would not indicate anything to suggest that the same notification of 4/1/2018 for the elections of the co-operative marketing society was in force. The letter of the petitioner dated 25/7/2018 even if read in the context of what the petitioner wants this Court to hold i.e. not a fresh election but commencement of the election process from the stage where it had stopped, the fresh notification therefore only contemplates holding of elections for the constituency in question because as far the remaining two constituencies of agriculturists and traders are concerned, as no elections are being held it is evident that the counting and elections are over and therefore the observation of the Division Bench on 17/7/2019.
9.2 These circumstances therefore never prevented the State authorities from issuing a fresh notification for the elections so now declared as this notification is restricted to co-operative member constituency only. In the Letters Patent Appeal that is pending against the order dated 23/3/2018 or in the petition that was adjourned regarding the challenge to the petitioner's nomination i..e. 27//3/2018, the petitioner has not moved the Court on the declaration of the Election Programme on 25/11/2019 bringing the Court's attention that no fresh notification could have been issued. The petition has been adjourned sine die.
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10. The petitioner's letter of 25/7/2019 and his intention of a fresh election has to be viewed in context of the aforesaid developments too. The petitioner pursuant to the notification of 25/11/2019 lodged his objections on 26/12/2019 to the inclusion of the 4 societies namely respondent nos. 5 to 8. There is not a whisper in the objections suggesting that the petitioner was aggrieved by a fresh exercise of an election. Obviously the petitioner can be held to be stopped from taking such a stand once he accepted to participate in the subsequent exercise by only objecting to the inclusion of the 4 societies in the voters' list. This is strengthened by the prayer made in the petition, in which the challenge is only limited to the action of rejection of the objections of the petitioner. The stand of the petitioner therefore that the respondents could not issue a notification for a fresh election is purely an afterthought and does not merit consideration and is rejected.
11. The second aspect that needs to be considered is whether the Respondent No.3 passed a reasoned order in compliance of the provisions of the Act and the Rules. True it is that at first blush the petitioner would seem right because the order reiterates the petitioner's submissions/objections and holds that the Respondent Nos. 5 to 8 societies were existing co-operative marketing societies engaged in the business of buying and selling of agricultural produce or of processing of agriculture produce. Before the authorized officer relevant documents in terms of bills/vouchers, audit reports etc were produced, which were a part of the records annexed to the objections. The same are annexed to the petition as well. The respective Counsels have taken the Court through these documents to suggest that the societies Page 23 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER though propagating to be in business since 2016-2017 were in fact only created in 2019 to be a voter. Vouchers/Memos are on record which prima-facie on examination do suggest that they have been engaged in business from 2016-2017. I say it with circumspection because the Court in exercise of powers under Article 226 of the Constitution Of India may not examine the record and delve into disputed questions of fact.
11.1 Considering the decisions of this Court as relied upon by learned advocate for the petitioner what is apparent is that the Court has held that in arriving at a decision, a necessary inquiry has to be held by asking the Mandalis included in the voters list to produce record to satisfy the Authorised Officer that the Societies were existing and not created. Each decision has to be seen in the facts of the case. In the present case on examination of the impugned order it is evident that the authorized officer has taken into consideration the material after calling each society to produce relevant documents and therefore there is compliance of Rule 7 of the Rules.
12. The Authorised Officer, if in his wisdom, on the basis of available record has come to a conclusion that the respondents no. 5 to 8 are societies engaged in the business of buying and selling agriculture produce and come to a conclusion on the basis of material, this Court will be loathe in substituting that view. The order cannot be faulted on being an order without reasons if otherwise on examination of material the respondent no. 3 has taken a particular view. The scope of Rule 7 envisages inquiry which has been undertaken. From the impugned order, it is apparent that the Page 24 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER respondents no.5 to 8 societies were called to substantiate that they were engaged in business of buying and selling agriculture produce. Such material was produced at the time of hearing. On production of such material, the petitioner approached the officer at 1.00 pm. He was heard and based on the material so produced, the Officer has come to a conclusion, which cannot be faulted.
13. Now that the objections are rejected and the petitioner is left only with a remedy to approach the Director by way of invoking Rule 28, the thought has occurred to take up the challenge in a petition under the pretext of the authorities declaring a fresh election rather than beginning from the stage where it had stopped. There is no prayer assailing this action too.
14. By a recent decision rendered in the case of Ishwarbhai Narayanbhai Patel vs State of Gujarat on 25/11/2019 in Special Civil Application No. 11822 of 2019 with Special Civil Application No. 11824 of 2019, this Court had considered the case law on the maintainability of a petition challenging the election process. Keeping in mind the case law considered therein, this Court is of the opinion that the petition is barred by an alternative efficacious remedy under Rule 28 of the APMC Rules, 1963. In the case of Shree Rajkot District Co-operative Bank Limited (supra), this Court has extensively relied on various decisions given by this Court, particularly Full Bench decision of this Court rendered in the case of Daheda Group Seva Sahakari Mandali (supra) and Manda Jaganath (supra). Relying Page 25 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER on these two decisions, this Court in the case of Shree Rajkot District Co-operative Bank Limited (supra), has observed as under:
"9. Heard learned counsel for the respective parties and perused the documents on record. Admittedly, the dispute in the present petition pertains to non-inclusion of the names of the Representatives of the petitioner-Bank in the Voters' List. The Preliminary Voters' List came to be published on 15.07.2011, the Provisional Voters' List on 31.07.2011 and the Final Voters' List on 10.08.2011. The elections are scheduled to be held on 26.09.2011. The question regarding jurisdiction of this Court in matters pertaining to elections has been decided by a Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Ltd. V. R.D. Rohit, Authorized Officer & Co- operative Officer (Marketing) reported in 2006 (1) G.C.D. 211 and more particularly, on the observations made in Paras - 30 to 32 of the said judgment, which reads as under;
"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.Page 26 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020
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31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India & Ors. (18 GLR 714) where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.
31.1. In the case of Mehsana Dist.Coop.Sales and Purchase Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR 308), the Court have noted the observations made by the Hon'ble Apex Court as under:
"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies".
In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329 (B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the Page 27 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER election which is the paramount consideration."
In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.
32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Ors. v. State of Maharashtra & Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before Page 28 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.
34. As the above are answers to the Reference, all the petitions are to be listed for referring them back to the concerned Division Benches to pass appropriate orders, in view of the above answers to the reference."
10. The principle laid down in the aforesaid decision is that the non-inclusion of a person's name in the Voters' List cannot be termed as an Page 29 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020 C/SCA/442/2020 CAV ORDER extra-ordinary circumstance warranting interference by this Court under Article 226 of the Constitution of India and the issue regarding non- inclusion of names in the Voters' List can be decided in an Election Petition under Rule 28 of the Market Rules as the Authority under Rule 28 has been conferred with powers.
[Emphasis Supplied] 14.1 I am conscious of the fact that this Court in the decisions cited by Mr. Dipan Desai, learned advocate for the petitioner has interfered in the election process. However, in each such decision on which reliance has been placed by learned advocate for the petitioner, there was sufficient cause to do so. This Court in all these decisions was not unmindful of the fact that interference in election process particularly in preparation of voters list would be in extremely rare circumstances and therefore in the present case, as discussed hereinabove, when no such extremely rare circumstance has arisen, no interference is called for on the basis of the decisions cited by learned advocate for the petitioner. No extraordinary case is made out and/or fraud in the process is shown so as to warrant intervention of this Court under Article 226 of the Constitution of India.
15. On these counts, therefore, I find no merit in the petition and the petition is accordingly dismissed with no order as to costs.
(BIREN VAISHNAV, J) DIVYA Page 30 of 30 Downloaded on : Wed Feb 12 01:49:59 IST 2020