Gujarat High Court
Bhesavahi Group Vividh Karyakari Seva ... vs State Of Gujarat And Others on 28 June, 2016
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/2128/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2128 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2131 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2133 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2141 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2142 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2143 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2145 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2147 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2150 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2151 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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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 or any order made thereunder ?
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1 - BHESAVAHI GROUP VIVIDH KARYAKARI SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT and Others ... Respondents
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with
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2 - MOTI AMROL VIVIDH KARYAKARI SEVA SAHAKARI MANDALI LIMITED ...Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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3 - BAR GROUP VIVIDH KARYAKARI SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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4 - SITHOL GROUP ADIVASI KHEDUT SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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5-JETPUR PAVI MOTA KADNI KHEDUTORNI SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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6- ANIYADRI GROUP VIVIDH KARYAKARI SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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7 - JETPUR GROUP VIVIDH KARYAKARI SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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8 - BORDHA GROUP SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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9 - JAY JALARAM KHEDUTO NE MAL PURO PADNARI SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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with
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10 - VASANGADH GROUP SEVA SAHAKARI MANDALI LIMITED ... Petitioner
VERSUS
STATE OF GUJARAT & Ors. ... Respondents
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Appearance:
MR MIHIR JOSHI, LD. SR. COUNSEL with MR DIPEN DESAI, ADVOCATE and MR DILIP
B RANA, ADVOCATE for the Petitioners
MR PK JANI, LD. ADDL. ADVOCATE GENERAL with MR VENUGOPAL PATEL, AGP for
the Respondents Nos.1 to 4 in SCA Nos.2143, 2145, 2147, 2150, and 2151 of 2016
MR PK JANI, LD. ADDL. ADVOCATE GENERAL with MS JYOTI BHATT, AGP for the
Respondents Nos.1 to 4 in SCA Nos.2128, 2131, 2133, 2141, and 2142 of 2016
MR VC VAGHELA, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED BY DS to the Respondent(s) No. 6 & 7
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 28/06/2016
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1. This group of petitions pertains to the election of the members of the Agricultural Produce Market Committee, Jetpur Pavi (hereinafter referred to as "the said Committee") for its agriculturists constituency, and hence, this common judgement is being passed.
2. In all the petitions, the petitioner Societies have challenged the orders dated 1.2.2016 passed by the respondent No.4, the Authorized Officer, deleting the names of the members of the Managing Committees of the respective petitioner Societies from the voters' list of the agriculturists constituency for the said election. All the petitions have similar facts and, therefore, for the sake of convenience, the facts of the Special Civil Application No.2128 of 2016 filed by the Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited are considered for deciding all the petitions.
3. The petitioner Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited is a Cooperative Society registered under the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to "the Societies Act"), since 30.6.1967. The Agricultural Produce Market Committee, Jetpur Pavi is the Market Committee registered under the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the said Act"). As per the case of the petitioner Society, the election programme for the elections of the said Page 4 of 34 HC-NIC Page 4 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT Committee was earlier published by the respondent No.2, the Director, according to which the elections were to be held on 21.5.2015. Accordingly, a preliminary voters' list was published on 4.3.2015 and the the names of the members of the Managing Committee of the petitioner Society were included in the voters' list of the agriculturist constituency. The names of the members of the Managing Committee of the petitioner Society were also continued in the final voters' list published on 6.4.2015 by the Authorized Officer, despite certain objections having been raised against the inclusion of the said names. Thereafter the said list was cancelled by the respondent No.2 Director vide the order dated 5.5.2015, on account of the change in the limits of the market area of the said Committee. The petition being Special Civil Application No.7285 of 2015 was filed by one Shri Govindbhai Gomabhai Rathwa, seeking directions against the concerned authority to complete the process of altering the limits of market area of the said Committee. This Court, vide the order dated 5.5.2015, disposed of the said petition, on the statement made by the learned AGP to the effect that the alteration of the limits shall be finalized as early as possible and thereafter fresh election programme shall be published. The learned AGP had also stated that until fresh election was held and newly elected Committee assumed the office, the appointment of Page 5 of 34 HC-NIC Page 5 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT Administrator would not be made, but the term of the Market Committee shall be extended till then. It appears that thereafter on the completion of the process of alteration of the limits of the market area of the said Committee, the respondent No.2 had published fresh election programme on 19.9.2015 (Annexure-F), according to which the election was to be held on 21.12.2015. It is further case of the petitioner that as per the said programme the preliminary voters' list was published on 3.10.2015, including the names of the members of the Managing Committee of the petitioner Society. Against such inclusion, the respondent Nos.5, 6, and 7 had submitted the objections before the respondent No.4, Authorized Officer. Similar objections were raised against the inclusion of names of the managing committees of other petitioner Societies also. Hence, the respondent No.4 after holding inquiry passed the common order dated 24.10.2015 (Annexure-I), deleting the the names of the members of the Managing Committees of seventeen societies including the petition Societies, from the voters' list of agriculturist constituency. The petitioner along with other Societies, therefore, had filed the petitions being Special Civil Application No.18345 of 2015 and four others before this Court. The said petitions came to be disposed of by the Court vide order dated 9.12.2015, on the basis of the statement made by the learned Government Pleader, by directing as Page 6 of 34 HC-NIC Page 6 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT under :-
"2. In view of the above, the impugned orders are treated as withdrawn. It will be open to the Authorized Officer to pass fresh separate order in respect of each of the petitioner societies on the basis of the objections raised by the private respondents and after considering the documents presented before him and after hearing the parties concerned. The petitions stand disposed of accordingly. Notice is discharged in each petition."
4. It appears that the Authorized Officer, considering the objections raised by the said objectors i.e. respondent Nos.5, 6 and 7 and the reply and documents produced by the petitioner Societies, passed separate orders on 1.2.2016 (Annexure-A) deleting the names of the members of the Managing Committees of the petitioner Societies. Being aggrieved by the said orders, the petitioners have filed the present set of petitions.
5. The petitions have been resisted by the respondents, more particularly by the respondent No.6 by filing the reply contending inter alia, that the petitions were required to be dismissed on the ground of alternative efficacious remedy being available to the petitioners under Rule 28 of the APMC Rules. It has also been contended that the petitioners had tried to mislead the Court by placing forged documents on record to show that they were the Societies dispensing agricultural credit. According to the said respondent, the petitioner Page 7 of 34 HC-NIC Page 7 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT Societies had not followed the mandatory provisions contained in the Gujarat Cooperative Societies Act, Rules and Bye-laws, applicable to the Societies falling under the Cooperative Credit Structure and the bogus transactions of loans were shown in their books of accounts to show dispensation of credit.
6. It appears that the Court, after hearing the learned Advocates for the parties, vide the order dated 22.3.2016, admitted the petitions by passing following order:-
"1. Heard Mr.Mihir Joshi, learned Senior Counsel assisted by Mr.Dipen Desai, learned advocate and Mr.Dilip Rana, learned advocate appearing for the petitioners and Ms.Manisha Lavkumar, learned Government Pleader appearing for the respondent State and Mr. V.C. Vaghela, learned advocate appearing for the private respondents objectors.
2. Mr.Mihir Joshi, learned Senior Counsel appearing for the petitioners submits that there is no specific findings by the authorised Officer appointed under subrule (2) of Rule 2 of the Gujarat Agriculture Produce Markets Rules,1965, that the petitioners are not Primary Agricultural Credit CoOperative Society and not dispensing agricultural credit to its members, however, the names of the members of managing committee of the petitioner societies were deleted from the list of voters, though their names were earlier included in it, prior to the amendment of April,2015 in Section 11 of the Gujarat Agriculture Produce Markets Act.
3. I have also considered the submissions made by Ms.Manisha Lavkumar, learned Government Pleader that there is efficacious remedy available under Rule 28 of the "Rules" to challenge the election Page 8 of 34 HC-NIC Page 8 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT before the Director. I have also considered the submission made by Mr.V.C.Vaghela, learned advocate for the private respondents objectors that the petitioners societies are not societies dispensing the agricultural credit, as per the bylaws of the societies.
4. I have also considered several decisions rendered by Hon'ble Apex Court as well as reported and unreported decisions by Division Bench as well as Coordinate bench of this Court. I have also considered the documents produced along with these petitions.
5. Since the election is scheduled on 28/03/2016, following order is passed:
Rule returnable on 25/04/2016.
Respective advocates appearing for the respective respondents waive service of Rule.
By way of interim relief, members of the Managing Committee of each petitioner societies are permitted to vote in the election, which are scheduled on 28/03/2016. The votes cast by each of the members of the petitioner societies shall be kept in sealed cover and shall not be opened, without prior permission of this Court.
The votes cast by Sithol Group Adivasi Khedut Seva Sahakari Mandli Limited and Shri Jay Jalaram Kheduto Ne Mal Puro Padnari Sahakari Mandali Limited shall be kept in separate sealed covers and shall not be opened, without prior permission of this Court.
Result of the Agricultural constituency in question shall not be declared, without prior permission of this Court.
Direct service is permitted today."Page 9 of 34
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7. The learned Sr. Counsel Mr.Mihir Joshi with Mr.Dipen Desai vehemently submitted that despite the directions given by this Court in the earlier petitions filed by the petitioners, the respondent No.4 Authorized Officer had passed impugned orders giving identical reasons for deleting the names of the members of the Managing Committees of the petitioners. Taking the Court to the various documents on record produced in each petition, he submitted that the respondent No.4, without any application of mind and without considering the said documents produced in each case, had passed the impugned orders, travelling beyond his powers and jurisdiction. Placing reliance upon the Scheme of the said Act and the Rules, as also upon the orders passed by this Court in various cases, following the ratio of the decision of the Division Bench in the case of Vibhapar Seva Sahakari Mandali Limited Vs. State of Gujarat, reported in 2010(o) GLHEL-HC 223660, Mr.Joshi submitted that the respondent No.4 had acted beyond his powers and jurisdiction inasmuch as he could not have inquired into the legality or genuineness of the loan transactions entered into by the petitioner Societies with their members, and held that the petitioner Societies were not the Societies dispensing agricultural credit. He also submitted that the respondent No.4 had ignored material documents like audit reports in some of the cases, certifying dispensation of agricultural credit, and that the Page 10 of 34 HC-NIC Page 10 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT petitioner Societies had freedom to choose its own procedure and rate of interest for dispensing such credit. According to Mr.Joshi, the respondent No.4 had gone beyond the objections raised by the objectors for which no notice was given to the petitioners. Even otherwise, runs the submission of Mr.Joshi, the respondent No.4 had very limited scope of inquiry under Rule 8 of the rules while deciding such objections. As regards the existence of alternative remedy, he submitted that the remedy provided in Rule 28 could not be said to be an efficacious alternative remedy, and the petitions having been admitted, it was not open for the Court to dismiss the same on the ground of existence of alternative remedy.
8. However, the learned Additional Advocate General, Mr.P.K. Jani for the respondents No.1 to 4, relying upon the Rule 28 of the said Rules and upon various decisions of the Supreme Court, more particularly in the case of State of Uttar Pradesh and Anr. Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors., reported in (2008) 12 SCC 675 submitted that the petitions could be dismissed on the ground of the availability of alternative remedy, even after the admission of the same, and in the instant cases, the alternative remedy of challenging the validity of election before the Director being available to the petitioners under Rule 28 of the said Rules and thus, a special mechanism having Page 11 of 34 HC-NIC Page 11 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT been created under the Statute the present petitions, invoking extraordinary jurisdiction under Article 226 of the Constitution of India should not be entertained. He also relied upon the decision of the Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Cooperative Officer (Marketing) (2006 GCD-1-211) (Civil Application No.2489 of 2005 and Anr. dt. 27.4.2005) and other decisions of this Court to submit that the exclusion of names from the voters' list cannot be termed as extraordinary circumstance warranting interference of this Court under Article 226 of the Constitution of India and such questions could be decided in the Election Petition under Rule 28 of the said Rules. Mr.Jani also relied upon the amended provisions of Section 11 of the said Act to submit that in view of the said amendment which has come into force on 10.4.2015, the words "Cooperative Societies" have been substituted by the words "Primary Agricultural Credit Cooperative Societies", in Clause (i) of Sub- section (1) of Section 11 and in the instant case, none of the petitioner Societies being the Primary Agricultural Credit Cooperative Societies, their members of the managing committees could not be included in the voters' list. While fairly submitting that the impugned orders are not happily worded as the respondent No.4 has given identical reasons for deleting the Page 12 of 34 HC-NIC Page 12 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT names of the Societies, he defended the said orders by submitting that the respondent No.4 was empowered under the Rules to hold inquiry as to whether a particular Society was the Primary Agricultural Credit Cooperative Society, dispensing agricultural credit or not. He has also relied upon the various decisions of the Supreme Court to submit that preparation of voters' list was part of election process and once the election process has started, the Courts should not interfere with the same.
9. The learned Counsel, Mr.V.C. Vaghela for the respondent No.6, referring to various provisions of the Gujarat Cooperative Societies Act and to the various bye-laws of the petitioner Societies, as also the documents on record, sought to submit that the loan transactions shown by the petitioners in their books of accounts were sham and bogus and did not confirm with the provisions of the Societies Act applicable to the Primary Agricultural Credit Cooperative Societies falling in Cooperative Credit Structure, and therefore the respondent No.4 has rightly accepted the said objections of the respondent No.6.
10. In order to appreciate the rival contentions raised by the learned Advocates for the parties, it would be beneficial to refer to certain provisions of the APMC Act and the Rules made thereunder. Section 11 of the said Act pertains to the constitution of the Market Committee, which envisages the members who are elected Page 13 of 34 HC-NIC Page 13 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT representatives of three constituencies and the members nominated by the local authority and the State Government. The relevant part of the said provision reads as under:-
"11. Constitution of market committee. (1) Every Market Committee shall consist of the following members, namely : [i] eight agriculturists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area, shall be elected by the members of managing committee of the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit in the market area.";
(ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licenses, who have traded in full conformity with the terms and conditions of the licence in the previous financial year and the fees payable by them has not remained unpaid;
(iii) two Representatives of the Cooperative 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;
Provided that where the number of cooperative marketing societies so situate does not exceed two, only one representative shall be so elected;
... "
11. It is to be noted that Section 11(1)(i) was amended w.e.f. 10.4.2015 by which the words "Primary Agricultural Credit Cooperative Societies" have been substituted in place of the Page 14 of 34 HC-NIC Page 14 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT words "cooperative societies (Other than Cooperative Marketing Societies and Milk Produce Cooperative Societies)".
12. Rule 5 of the said Rules framed under the said Act requires three separate lists of voters to be prepared for the purpose of Section 11. Rule 6 states that the person, whose name is entered in the 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 of the said Rules deals with the preparation of list of voters for general election to the market committee.
13. Rule 8 deals with the publication of the provisional and final list of voters, which reads as under:-
8.Provisional and final publication of lists of voters. (1)As soon as a list of voters is prepared under rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.Page 15 of 34
HC-NIC Page 15 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT [(1A) After receiving applications if any, under subrule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the marker area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for an amendment in the revised draft list of voters.] (2) If any application is received under 1[sub rule (1A)], the authorised officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at at least thirty days before the date fixed for the nomination of candidates for the election."
14. Rule 28, which provides for determination of validity of election, reads as under:-
28. Determination of validity of election. (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing:
(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and Page 16 of 34 HC-NIC Page 16 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT
(b) xxx (2) xxx"
15. Now, the issue whether the writ petition, once admitted could be dismissed on the ground of availability of alternative remedy or not, has been aptly dealt with by the Supreme Court, in the case of "State of Uttar Pradesh and Anr. Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors." (supra), in which it has been held to the effect that there was no proposition of law laid down in any judgement that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. The relevant observations made in paragraph 38 of the said decision is reproduced as under:-
"38. ...True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writCourt. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writpetition albeit Page 17 of 34 HC-NIC Page 17 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT wrongly and granted the relief to the petitioner."
16. In view of the afore-stated legal position, the Court cannot accept the submission of Mr.Joshi for the petitioners that the petitions could not be dismissed on the ground of existence of alternative remedy, once they are admitted. The Court also does not find substance in the submission made by Mr.Joshi that the remedy available under Rule 28 of the said Rules could not be said to be an alternative remedy, much less efficacious remedy. The very issue whether the person whose name is not included in the voters' list can avail of the benefits of the provisions contained in Rule 28 of the said Rules, by filing election petition or not, was referred to the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Cooperative Officer (Marketing) (2006 GCD-1-211) (Civil Application No.2489 of 2005 and Anr. dt. 27.4.2005) and the Full Bench had categorically answered the Reference as under:-
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 Page 18 of 34 HC-NIC Page 18 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT 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."
17. In view of the afore-stated legal position laid down by the Full Bench, the Court has no hesitation in holding that the decision of the respondent No.4 Authorized Officer to delete the names of the members of the Managing Committees of the petitioners from the voters' list should have been challenged by the petitioners by exhausting the alternative efficacious remedy by approaching the respondent No.2 Director under the provisions contained in Rule 28 of the said Rules, and that such exclusion could not be termed as an extraordinary circumstance warranting interference of this Court under Article 226 of the Constitution of India. Such questions have to be decided in the election petition under Rule 28 of the said Rules. The Division Bench of this Court, in a group of petitions filed by Patel Talshabhai Purabhai & Ors. Vs. Authorized Officer and Auditor Grade-1 and Ors., in Special Civil Application No.2302 Page 19 of 34 HC-NIC Page 19 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT of 2011 and others vide the order dated 9.3.2011 had dismissed the said petitions on the ground of availability of efficacious, alternative remedy under Rule 28 of the said Rules, following the afore-stated ratio laid down by the Full Bench.
18. The learned Sr. Counsel Mr.Joshi has placed heavy reliance on the decision of this Court in case of Vibhapar Seva Sahakari Mandali Limited Vs. State of Gujarat (supra) and on the other decisions, following the said decision, to submit that the petitions, challenging the order of the Authorized Officer deleting the names of the persons from the voters' list, were entertained by this Court, holding that such Authorized Officer had very limited power of inquiry under Rule 8 of the said Rules. However, the said submission also cannot be accepted. From the bare reading of the said judgement rendered in the case of Vibhapar Seva Sahakari Mandali Limited Vs. State of Gujarat (supra) it appears that the ratio of judgement laid down by the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Cooperative Officer (Marketing) (supra) was probably not brought to the notice of the Court and, therefore, not considered by the Court. In view of the afore-stated law laid down by the Full Bench, which still holds the field, the present petitions do not deserve any consideration, the alternative, efficacious remedy being available to them under Rule 28 of the said Rules.Page 20 of 34
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19. As held by the Division Bench of this Court in case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Vs. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. & Ors., reported in 1986 GLH 430, preparation of electoral rolls is part of election to Market Committee, and the High Court exercising jurisdiction under Article 226 should not interfere with the same. In catena of decisions of Supreme Court it is held that normally the Courts exercising the jurisdiction under Article 226 of the Constitution of India should not interfere with the process of election once the same is commenced. Beneficial reference of the decisions in the case of Nanhoo Mal and Others Vs. Hiramal & Ors., reported in (1976) 3 SCC 211; in case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha Vs. State of Maharashtra, reported in (2001) 8 SCC 509; in case of Election Commission of India Vs. Ashok Kumar and Others, reported in (2000) 8 SCC 216, may be made in this regard.
20. In the instant cases, the election process has been sought to be obstructed by the petitioners as the names of the members of Managing Committee of the petitioner Societies have been deleted from the voters' list by the respondent No.4. By virtue of the interim relief granted by the Court, the members of the Managing Committee of the petitioner Societies were permitted to vote, however, the declaration of the result of election has been stayed, as a Page 21 of 34 HC-NIC Page 21 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT result of which the old body of the Committee has been continued, though its term has expired long back. In view of the afore-stated settled legal position, the alternative efficacious remedy under Rule 28 of the Rules being available to the petitioners and the election process having already started, the petitions deserve to be dismissed on that ground alone. However, since the petitions have been argued at length on the merits also, it would be apposite to deal with the contentions raised by the learned Counsels for the parties on merits also.
21. Certain facts are not disputed in these petitions, to the effect that earlier the election programme was declared, however, due to change in the limits of market area of APMC, Jetpur Pavi, the respondent No.2 Director had cancelled the said election programme, vide the order dated 5.5.2015 and directed that fresh election should be conducted after the process of altering the limits was over. It is also not disputed that in Special Civil Application No.7285 of 2015 filed by one Mr.Govindbhai Rathwa, the Division Bench of this Court, vide the order dated 5.5.2015 had recorded the statement of the learned AGP that the process of alteration of the market committee will be finalized as early as possible and that after the alteration of the limits of the market committee, fresh election programme shall be published and that until fresh election is held after the Page 22 of 34 HC-NIC Page 22 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT alteration of the limits of the market committee and the newly elected committee assumes the office, the term of the market committee shall be extended till then. Accordingly, fresh election programme (Annexure-F) was declared by the respondent No.2 Director, fixing the date of declaration of the election to be 19.9.2015 and date of voting to be 21.12.2015. In between, the Authorized Officer had to prepare and finalize the voters' list as per the Rules. It is also not disputed that after the declaration of the said election programme, the respondent No.4 Authorized Officer, considering the objections of the objectors passed the order dated 24.10.2015 (Annexure-I), deleting the names of the 17 Cooperative Societies, including the petitioners from the voters' list. The said order was challenged by the petitioners by filing the petitions being Special Civil Application No.18345 of 2015 and others, and this Court vide the order dated 9.12.2015 had held that the impugned order would be treated as withdrawn and it would be open to the authorized officer to pass fresh separate orders in respect of each of the petitioner Societies on the basis of the objections raised by the private respondents and after considering the documents presented before him and after hearing the parties concerned. The respondent No.2 Director, therefore, had to change election programme partly by extending the dates for publication of voters' list, of voting Page 23 of 34 HC-NIC Page 23 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT etc. (Annexure-O). It appears that the respondent No.4 authorized officer thereafter passed separate orders, deleting the names of the members of the Managing Committees of the petitioner Societies from the voters' list (Annexure-A).
22. The main thrust of the arguments made by the learned Sr. Counsel Mr.Joshi is that the Authorized Officer had travelled beyond the scope of inquiry as contemplated in Rule 8 and had not implemented the directions of the order dated 9.12.2015 passed by this Court in the true letter and spirit, inasmuch as the impugned orders though passed separately, contained the same reasons for deleting the names of the members of the Managing Committees of the petitioner Societies. In the opinion of the Court, though the said submissions apparently sound impressive, have hardly any substance in view of the recent amendment made in Section 11(1)(i) of the APMC Act. It transpires from the impugned orders passed by the respondent No.4 that the first and foremost objection raised by the respondent No.5 before the respondent No.4 was that none of the petitioner Societies were the Primary Agricultural Credit Cooperative Societies within the meaning of the amended Section 11(1)(i) of the APMC Act and had not followed the procedure and norms of three-tier Cooperative Credit Structure while dispensing agricultural credits. Now, as per the said amendment, which has come Page 24 of 34 HC-NIC Page 24 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT into force w.e.f. 10.4.2015, the words "Cooperative Societies (other than Cooperative Marketing Societies and Milk Produce Cooperative Societies)" have been substituted by the words the "Primary Agricultural Credit Cooperative Societies" in Clause (i) of Sub-section (1) of Section 11. Hence, when the fresh election programme was declared by the respondent No.2 Director, the said amendment had already come into force, which required that the eight members from agriculturists constituency of the said Committee shall be elected by the members of the Managing Committee of the Primary Agricultural Credit Cooperative Societies, dispensing agricultural credit in the market area. Therefore, for the purposes of Section 11(1)(i), the Societies have to be Primary Agricultural Credit Cooperative Societies. Of course, the term 'Primary Agricultural Credit Cooperative Societies' has not been defined either under the APMC Act or under the Gujarat Cooperative Societies Act. However, it appears that by the Amendment Act 1 of 2008, which came into force w.e.f. 8.10.2007, certain provisions of the Gujarat Cooperative Societies Act were amended, and the provisions with regard to the Cooperative Credit Structure were incorporated therein. The Cooperative Credit Structure is defined in Section 2(7-A) of the said Societies Act as under:-
"Section 2(7A). "Cooperative Credit Page 25 of 34 HC-NIC Page 25 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT Structure" means (i) the Primary Agricultural Credit Cooperative Societies;
(ii) the Central Cooperative Banks; and
(iii) the State Cooperative Bank;"
23. The said Societies Act was also amended by incorporating certain provisions for the Societies, which fall under the Cooperative Credit Structure, more particularly in respect of borrowings, investments, loans, etc. It is not disputed that the petitioner Societies being cooperative societies registered under the Gujarat Cooperative Societies Act, are governed by the provisions of the said Societies Act and the Rules made thereunder. A bird's eye-view of the provisions of the said Societies Act would reveal that Section 6 of the said Act lays down conditions of registration, and Sub-section (1-A) thereof provides that in case of the society in cooperative credit structure registered under Sub-section (1), the society shall have power to decide their respective area of operation without any restrictions. Section 12 of the said Act states that the Registrar may classify all the 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. Section 44A lays down the powers of the committee of the Society in the cooperative credit structure. Section 45(3) puts restrictions on the eligibility of persons to borrow from or make deposit in a Primary Page 26 of 34 HC-NIC Page 26 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT Agricultural Credit Cooperative Societies. Certain privileges and exemptions have also been granted to the Primary Agricultural Credit Cooperative Societies falling in Cooperative Credit Structure, as contained in Chapters VI and VII pertaining to the property, funds and management of Societies.
24. Now, coming back to the provisions contained in Section 11(1)(i) of the APMC Act, it appears that after the amendment in the said provision, the eligibility criteria of Cooperative Societies to participate in the election of Agriculturist Constituency has been confined to the Primary Agricultural Credit Cooperative Societies only. Therefore, it was incumbent on the part of the petitioner Societies to fall within the category of Primary Agricultural Credit Cooperative Societies dispensing agricultural credit, for being eligible to vote in the election of members for the agriculturist constituency of the Market Committee. The objector i.e. respondent No.5 had categorically raised the objections against all the petitioner Societies that they were not the Primary Agricultural Credit Cooperative Societies, dispensing agricultural credit as per the amended provisions of Section 11(1)(i) of the APMC Act and that the credit transactions shown in the books of accounts were not genuine and not as per the three-tier Cooperative Credit Structure. Though the petitioner Societies had submitted their respective replies giving details Page 27 of 34 HC-NIC Page 27 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT of the agricultural credit dispensed by them, they had significantly remained silent as to whether they were the Societies classified as the Primary Agricultural Credit Cooperative Societies within the Cooperative Credit Structure under the Gujarat Cooperative Societies Act or not. No such averments have been made by the petitioners in the present petitions also.
25. Having regard to the impugned orders passed by the respondent No.4, it appears that though he had passed separate orders considering the material placed before him, he had given the same reasons for deleting the names of the members of the managing committees of the petitioner Societies. Hence, to that extent, the impugned orders could be said to be not happily or properly worded, nonetheless the Court also finds substance in the submission of the learned Additional Advocate General Mr.Jani that the respondent No.6 having raised same objections against all petitioners, the respondent No.4 has given same reasons for accepting his objections, and therefore, it could not be said that the respondent No.4 had not applied his mind, or not passed the orders in consonance with the directions given by this Court in Special Civil Application No.18345 of 2015 and others dated 9.12.2015.
26. It may be mentioned at this stage that the learned Additional Advocate General Mr.Jani had fairly proposed before making his submissions Page 28 of 34 HC-NIC Page 28 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT that if the Court finds that the impugned orders were not in consonance with the directions given by the Court in the said order, the matter be remanded to the respondent No.4 for passing the orders afresh, however, the learned Counsel for the petitioners requested the Court to decide the matters on merits only.
27. Be that as it may, though the Court finds that the impugned orders could have been passed in a better manner by the respondent No.4 dealing with the material produced by the petitioner Societies individually, the Court is not inclined to interfere with the same as all the petitioners had failed to satisfy the respondent No.4 that they were the Primary Agricultural Credit Cooperative Societies and had followed the requirements of the three-tier Cooperative Credit Structure while dispensing agricultural credit. The submission of the learned Advocates for the petitioners that the petitioners were not required to follow the provisions contained in the Gujarat Cooperative Societies Act pertaining to the Cooperative Credit Structure, has no legs to stand. As discussed herein above, the Societies falling under the Cooperative Credit Structure as defined under Section 2(7-A) of the Gujarat Cooperative Societies Act, enjoy certain privileges and exemptions under the said Act, and at the same time they have been put to certain restrictions also in the matter of investments, borrowings and loans. If, according to the Page 29 of 34 HC-NIC Page 29 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT petitioners, they were the Primary Agricultural Credit Cooperative Societies, falling in Cooperative Credit Structure, they had to follow the provisions of the Gujarat Cooperative Societies Act, Rules and Bye-laws applicable to them.
28. The Court also does not find much substance in the submissions made by the learned Counsel for the petitioners that the respondent No.4 had travelled beyond his jurisdiction in going into the legality of the agricultural credits dispensed by the petitioner Societies. The learned Counsel has placed heavy reliance on the notes made in the audit reports produced in some of the petitions to show that the petitioners were dispensing agricultural credit. However, in the opinion of the Court, it was not enough for the petitioners to show that they were dispensing agricultural credit. The petitioners had to show that they were the Primary Agricultural Credit Cooperative Societies dispensing agricultural credit. In any case, when the objections were raised as regards the status of the petitioner societies on the ground that they were not the Primary Agricultural Credit Cooperative Societies, the respondent No.4 was within his authority and jurisdiction to decide said objections, by holding the inquiry as to whether the names sent by the societies were the members of the Primary Agricultural Credit Cooperative Societies or not. In similar situation, the Page 30 of 34 HC-NIC Page 30 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT Division Bench of this Court had refused to entertain the petition being Special Civil Application No.1151 of 2015 in the case of Sunak Seva Sahkari Mandali Limited Vs. Authorised Officer and Cooperative Officer (Market) & 2, in Special Civil Application No.1151 of 2015, by holding as under:-
"7. ...However, in the absence of aforesaid documentary evidences, when the Authorized Officer found that there was no actual dispensing with the agricultural credit but only the entries were made in the books of accounts and on the valid reason, it is found that the petitioner Society is as such not dispensing with the agricultural credit and therefore, in the facts and circumstances of the case, it cannot be said that the Authorized Officer has committed any error and/or illegality in passing the impugned decision and/or not including the names of the members of the Managing Committee of the petitioner Society in the Provisional Voter's List."
29. Much reliance was placed by the learned Counsel for the petitioners on the decision of the Division Bench of this Court in the case of Vibhapar Seva Sahakari Mandali Limited Vs. State of Gujarat (supra) and other decisions following the said decision, in which the Court after considering the provisions of the Act and Rules, had observed that the inquiry of the authorized officer cannot be treated to be extending beyond the ascertainment of the details submitted by the Cooperative Society and testing the veracity thereof, namely whether a particular person whose Page 31 of 34 HC-NIC Page 31 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT name has been included by the Cooperative Society in the list is a member of the managing committee or not or whether he resides at the place stated in the list by the Cooperative Society or not. In this regard, it may be stated that apart from the fact that such issue whether the Society itself was eligible to send the names of members of its Managing Committee or not was never there in earlier cases, all the decisions relied upon by the learned Counsel for the petitioners have been rendered prior to the amendment in the provisions contained in Section 11(1)(i) of the APMC Act, when members of managing committees of all the Cooperative Societies, except Cooperative Marketing Societies and Milk Produce Cooperative Societies, were covered in the said provision, however, now the members of Managing Committees of Primary Agricultural Credit Cooperative Societies only are eligible to vote in the election for the agriculturists constituency of the Market Committee. The spectrum and the eligibility criteria of the Societies have been narrowed down and confined to the Primary Agricultural Credit Societies dispensing agricultural credit. Therefore, as stated herein above, after the said amendment, the Cooperative Societies, while communicating the details of the names of the members of its Managing Committees together with the place of residence of each member as contemplated in rule 7 of the said Rules for being included in the voters' list to Page 32 of 34 HC-NIC Page 32 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT be prepared as per Rule 5, have to show that they are Primary Agricultural Credit Cooperative Societies as required under Section 11(1)(i) of the APMC Act. If the concerned Society fails to do so, the Authorized Officer would be absolutely within his jurisdiction to make inquiry in that regard and to exclude the names of the members of the Managing Committee of such Societies which were not the Primary Agricultural Credit Cooperative Societies. In the instant cases, the respondent No.4 while accepting the objections raised by the objector had found that the petitioner Societies had not followed the procedure and norms of three-tire credit structure as per the provisions contained in the Cooperative Societies Act, Rules and Bye-laws. The legality of the impugned orders could have been challenged by the petitioner Societies in the Election Petition before the respondent No.2 under Rule 8 of the said Rules. That having not been done, it was not open for the petitioners to invoke extraordinary jurisdiction of this Court under Article 2226 of the Constitution of India, in the midst of the process of election. In view of the amendment in Section 11(1)(i) of the APMC Act, the petitioner Societies have to fall under the category of primary Agricultural credit cooperative society within the meaning of cooperative credit structure as defined under Section 2(7-A) of the Gujarat Cooperative Societies Act, and to follow the provisions of Page 33 of 34 HC-NIC Page 33 of 34 Created On Wed Jun 29 03:25:31 IST 2016 C/SCA/2128/2016 CAV JUDGMENT the said Act, Rules and Bye-laws thereunder applicable to the Societies falling in Cooperative Credit Structure, for being eligible to send the names of the members of their Managing Committees for the election of Agriculturists members of the Market Committee.
30. In that view of the matter, all the petitions being devoid of merits deserve to be dismissed and are dismissed accordingly. Interim relief stands vacated forthwith. Rule is discharged. Copy of this judgement be kept in each of the petitions.
(BELA M. TRIVEDI, J.) FURTHER ORDER:
At this juncture, the learned Advocates for the petitioners request to consider the continuation of the interim relief granted by the Court earlier for a period of ten days, with a view to enable them to approach the higher forum. The said request cannot be granted. The petitions have been dismissed on merits, and the continuation of the interim relief would further stall the declaration of the result of the election. Hence, the request is rejected.
(BELA M. TRIVEDI, J.) vinod Page 34 of 34 HC-NIC Page 34 of 34 Created On Wed Jun 29 03:25:31 IST 2016