Gujarat High Court
Vibhaniya vs State on 8 December, 2011
Author: D.H.Waghela
Bench: D.H.Waghela
Gujarat High Court Case Information System
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16
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL
APPLICATION No. 16238 of 2011
With SPECIAL CIVIL
APPLICATION No. 16240 of 2011
To
SPECIAL CIVIL APPLICATION No. 16243 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
HONOURABLE
MR.JUSTICE N.V. ANJARIA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VIBHANIYA
SEVA SAHAKARI MANDALI LTD & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================================
Appearance
:
MR
MIHIR JOSHI, SR. COUNSEL WITH MR
DIPEN DESAI & MS VYOMA K JHAVERI for Petitioners
MR PRAKASH
JANI, GP for Respondent(s) : 1,
MR YN OZA, SR. COUNSEL WITH MR VC
VAGHELA for R-5
MR BAIJU JOSHI FOR MR SHIRISH JOSHI for
Respondent(s) : 7,
NOTICE
SERVED BY DS nos.2-4 &
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE N.V. ANJARIA
Date
: 08/12/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) Having regard to the urgency involved in the subject matter of the captioned group of petitions, by consent of learned advocates appearing for the respective parties, all the five petitions are taken up for final hearing and disposed by this common judgment. We issue Rule herewith. Learned advocates appearing for the respective respondents have waived the service of Rule.
2. By way of present petitions invoking jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner Vibhaniya Sewa Sahkari Mandali Limited and four others have made the following main prayers:
"The Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari, or any other appropriate writ, order or direction quashing and setting aside the order dated 24.10.2011 passed by the respondent no.4 Authorized Officer at Annexure-A to this petition, and thereby, be pleased to direct the Authorized Officer to include the names of the representatives of the respondent No.7 bank nominated as Directors of the petitioner societies in the voters list of the Agriculturist Constituency in the election of APMC, Kalavad and be pleased to permit the said members nominated by the respondent no.7 bank in the petitioners societies to participate in the election of APMC, Kalavad."
3. The profile of relevant facts emerging from the first petition is that all the petitioners are co-operative societies registered under the Gujarat Co-operative Societies Act, 1961 engaged in business of dispensing agricultural credit in the market area of the Kalavad Agricultural Produce Market Committee. The petitioner societies have their by laws which are produced with the petition at Annexure-B. By law No. 32 deals with managing committee of the Society and provides inter-alia that the managing committee shall consist of 15 members and amongst them one member shall be a representative of the body lending financial assistance to the co-operative society. It is the case of the petitioner societies that they have availed financial assistance from Jamnagar District Co-operative Bank Ltd., respondent No.7 herein, and that bank has nominated representatives in the managing committee by passing necessary resolution. The names of the nominated members are found in paragraph 2.4 of the petition and supported by the intimation letters in each case at Annexure-C. 3.1 By order dated 24.10.2011, respondent No.4, the Authorized Officer has, in the purported exercise of his powers under Rule 8(1) read with Rule 7(2) of the Gujarat Agricultural Produce Markets Rules, 1965, cancelled the names of the representatives nominated by respondent No.7 Bank from the list of voters for election to the Kalavad Agricultural Produce Market Committee (KAPMC). When this Court was moved by the petitioners on 03.11.2011, the learned vacation Judge passed the following order in each of the petitions:
"Leave to amend the annexures. Heard Mr. Mihir Joshi, learned Senior Counsel with Mr. Dipen Desai and Ms. Vyoma Jhaveri for the petitioners.
NOTICE returnable on 9.11.2011.
As such, the petitioners have prayed for a very wide interim relief in Para 6(B) of the petition. However, considering the submissions made and taking into consideration the fact that the matters pertain to election of Market Committee and as per the election programme, the final list as per Rule 8 is to be published on 5.11.2011, in order to avoid any irretrievable situation and taking into consideration the prima facie case, respondent No.4 is directed to include the name of the members as mentioned in Para 2.4 at Sr. Nos. 1 to 5 in the final list that may be published as per the election programme on 5.11.2011, subject to further orders of this Court. As per the election programme, the stage of Rule 10(B) is to take place on 7.12.2011. Hence, no further interim relief is necessary at this stage. Direct service is permitted today.
A copy of this order may be given to the learned AGP Mr. J.K. Shah."
3.2 Respondent No.2 declared general elections to the Kalavad Agricultural Produce Market Committee by notification dated 19.09.2011 and the election programme commenced on 24.09.2011. According to the election programme, the date for publication of preliminary list of voters was 05.10.2011, the last date for submission of claims etc. was 19.10.2011, the revised list was to be published on 25.10.2011 and the date for final publication was fixed to be 05.11.2011. The election process would culminate on 19.12.2011 and 20.12.2011, being the dates fixed for polling and counting of votes respectively.
4. While considering the controversy involved and before dealing with the contentions of the parties, a reference to the applicable statutory provisions would be pertinent. The Gujarat Agricultural Produce Markets Act, 1963 in its Chapter III contains provisions relating to declaration of market area, constitution of markets and establishment of market committees, whereas section 10(1) under Chapter IV provides for incorporation of market committee, which is deemed to be a local authority as per sub-section (2) of Section 10. Section 11 deals with the constitution of market committee and sub-section (1) thereof says that every market committee shall consist of the members of the categories mentioned in sub-clauses (i), (ii) and (iii). These categories are also identified as agriculturist constituency, traders' constituency and constituency of general license holders. The members in these categories would be eligible voters in the Market Committee elections. Sub-section (4) of Section 11 provides that the term of office of the market committee shall be four years, extendable for further one year in aggregate. Section 15 is about filling up of vacancies, either by nomination or election, as the case may be.
4.1 The statutory rules framed by State Government deriving powers from section 59 of the Act are the Gujarat Agricultural Produce Markets Rules 1965 (hereinafter mentioned as `the Rules') and they provide for the matters and procedure relating to preparation of list of voters for the purpose of election under section 11 of the Act and other matters and procedures relating to elections. Rule 5 is in respect of preparation of three different lists of voters contemplated under Section 11 of the Act. The other relevant rules are Rule 7 and Rule 8, which constitute a scheme in itself. Rule 7 enjoins that whenever general election to the market committee is to be held, every cooperative society shall communicate the names of the members of the managing committee to the authorized officer, whereas sub-rule (2) of Rule 7 requires the authorized officer to prepare the list of voters as required by Rule 5 on the basis of information received under sub-rule (1) and, if necessary, after making such enquiry as he may deem fit. Rule 8 deals with the provisional and final publication of list of voters.
4.2 The petitioner agricultural societies are societies dispensing agricultural credit, and therefore, will have its managing committee members as the voters in the election of the market committee. The facts on record of the petition indicate that in the preliminary list of voters published on 05.10.2011 the names of the members of the managing committee, including the representatives nominated by respondent no.7 Bank, were included. However, by the impugned order the authorized officer has upon the objections raised by respondents no.5 and 6, ordered deletion of those names from the revised list in purported exercise of powers under Rule 8(1) and Rule 7(2) of the Rules.
5. We have heard the learned Senior Counsel Shri Mihir Joshi appearing with learned Advocate Shri Dipen Desai for the petitioners, learned Govt. Pleader and Sr. Counsel Shri Prakash Jani appearing for respondent No.1 to 4, learned Senior Counsel Shri Yatin Oza appearing with learned advocate Shri V.C. Vaghela for respondent No.5 and learned advocate Shri Baiju Joshi appearing for respondent No.7 Bank.
5.1 Assailing the impugned order, learned Senior Counsel Shri Mihir Joshi submitted that the authorized officer has exceeded his powers under Rule 8 in passing the impugned order. He submitted that the scope of enquiry by the Authorized Officer under Rule 8 of the Rules is limited and circumscribed. In support of this contention, he placed reliance on the recent decision of Division Bench of this Court in Vibhapar Seva Sahakari Mandali Ltd. v. State of Gujarat in Special Civil Applications Nos. 6587 to 6596 of 2010. Learned Sr. Counsel took us through the contents of the impugned order and grounds on which the cancellation of names is ordered, to further submit that the authorized officer has virtually adjudicated on the by-law of the petitioner society with reference to some circular dated 21.03.2011, which is outside the scope of enquiry permissible under Rule 8 and thus beyond his statutory powers. Elaborating the contention, he submitted that it is not for the authorized officer to interpret any by-law or any other provision and to direct deletion of the names of voters on that basis. It was further submitted that by virtue of interim order passed by this Court while issuing notice, the names of the members concerned continued to figure in the final list of voters published for the purpose of election to the KAPMC. Learned Senior Counsel submitted that the impugned order being ex-facie illegal, it deserved to be set aside.
5.2. Learned Government Pleader Shri Prakash Jani on the other hand submitted that the election process is in motion and therefore granting of any relief to the petitioners will amount to interfering with the ongoing elections. He submitted that remedy of filing election petition under Rule 28 of the Rules is an effective remedy. And that it is trite principle that once the elections are underway, the Court would not interpose itself in any manner in a petition under Article 226 of the Constitution as it would disturb the election process. He placed reliance on the judgment by Larger Bench of this Court in the case of Daheda Group Seva Sahkari Mandali Limited vs. R.D. Doshit reported in 2006 (1) GCD 211.
He further relied on another unreported judgment dated 15.09.2011 of Division Bench of this Court in Shri Rajkot District Cooperative Bank Limited in Special Civil Application No.12618 of 2011.
Learned Government Pleader also supported the impugned order of the authorized officer and tried to convince us on merits of the order as well as on the scope of Rule 8. He submitted that the powers of the authorized officer acting under Rule 8 cannot be considered in a limited manner and if so construed it would lead to disastrous consequences making the authorized officer the post office for receiving names of members and making them voters. He also referred to Sec.80(3) of the Gujarat Cooperative Societies Act to contend that in view of the said provision inserted by amendment, even the State Government is prohibited from nominating a member to any society wherein it has share capital and therefore by necessary implication, the nominations made by respondent no.7 Bank in the instant case are unjustified and accordingly the impugned order is proper and legal.
6. Mr. Yatin Oza, learned Senior Counsel appearing on behalf of respondent nos. 5 and 6, who objected to the names of persons nominated by respondent no.7 Bank, supported the impugned order emphasizing that once the election process is set into motion, disputes as to inclusion or exclusion of the names in the list of voters can be agitated in the election petition only. In support of the proposition Shri Oza also relied on the judgment in the case of Daheda Group Seva Sahkar Mandali Ltd. (supra) as also one unreported judgment of the Division Bench of this Court in Letters Patent Appeal No.1266 of 2010 decided on 09.07.2010.
7. The scope and ambit of enquiry by the authorized officer exercising powers under Rule 8 of the Rules is no longer res integra in view of unreported decision a Division Bench of this Court in Vibhapar Seva Sahakari Mandali Ltd. (supra) wherein the Division Bench had an occasion to deal with similar set of facts and contentions and after examining the entire scheme emerging from the conjoint reading of Rules 5, 6, 7 and 8 of the Rules, held as under:
"Rule 8(1-A) of the Rules only talks of revising the list of voters upon such objections relatable to inclusion of any new names entered in the list. Therefore, while publishing the final list under sub-rule (2) of Rule 8 of the Rules, the Authorized Officer had limited powers which would not permit the Authorized Officer to then delete the names which were already included. This has to be appreciated in context of the fact the under rule 5 of the Rules, for the purpose of section 11(1)(i) of the Act, a list of members of the Managing Committee of the Co-operative Society dispensing agricultural credit in the market area was required to be prepared and sent by such co-operative society to the Authorized Officer. Under rule 7 of the Rules, more particularly sub-rule (2) thereof, the Authorized Officer has to, within 7 days from the date fixed under sub-rule (1) of rule 7, prepare the list of voters as stipulated by rule 5 on the basis of the information received from each co-operative society. Sub-rule (2) of rule 7 of the Rules states in the latter part after making such inquiry as the Authorized Officer may deem fit, if necessary.
However, such inquiry cannot be treated to be extending beyond ascertainment of the details submitted by the co-operative society and testing the veracity thereof, namely whether a particular person whose name has been included by the co-operative 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 co-operative society or not. Once the stage of that inquiry is over, rule 8(1) of the Rules indicates that the Authorized Officer is duty bound to publish the list of voters prepared under rule 5 read with rule 7 and it is at that stage that the objections as to inclusion or exclusion are to be raised. Therefore, the scope of inquiry which an Authorized Officer can undertake is limited statutorily by the rules and it is not possible to expand such scope.
The contention on behalf of respondent authorities that respondent No.5 - Co-operative Bank cannot send a nominee to the Managing Committee of the agricultural credit society deserves to be stated only to be rejected. None of the rules relating to preparation of the list of voters permits the Authorized Officer to travel beyond the list of members of the Managing Committee of the agricultural credit society. Hence, the entire basis adopted by the respondent authority is contrary and in violation of the statutory provisions relatable to conduct of elections and preparation of list of voters prior thereto. (emphasis supplied)"
The Division Bench has further observed:
14.
... it becomes clear that the role of Election Officer commences only after the list of voters is published in consonance with Rules 6, 7 and 8 read together. It is only after exercise prescribed in Rule 10 of the Rules is completed by the Director that the Election Officer can exercise powers as stipulated by subsequent rules dealing with verification of nominees and other related activities right up to conduct of elections."
7.1 On going through the impugned order, more particularly paragraph Nos. 2, 3 and 4 thereof, it is clearly noticed that the authorized officer has indeed adjudicated on the legality of the nominations made by respondent no.7 Bank in the managing committee of the petitioner-societies. He has cited as a reason that a nominated member does not have right to vote under by-law No.33 and therefore could not have been nominated. He has also sought to justify deletion of the names by relying upon the provisions of Section 80(3) of the Gujarat Cooperative Societies Act.
7.2 The decision of Division Bench of this Court in Vibhapar Seva Sahakari Mandali Ltd. (supra) has settled the issue of the extent of powers of the authorized officer functioning and acting under Rule 8 of the Rules, the Special Leave Petition preferred therefrom is stated to have been dismissed by the Apex Court, and we are in respectful agreement with the same. On being urged by learned counsel for the respondents, we have again considered the scheme of rules and the nature of powers under Rule 8 and we see no reason to take a different view. The authorized officer is not supposed to delve into the merits of the nominations and cannot base his decision under Rule 8 on such considerations as are not germane to preparation of proper list of voters and expand the scope of inquiry as is done in the impugned order. When Rule 8 is harmoniously construed with other related Rules, namely, Rules 5 and 7, the only conclusion possible about the scope of powers under Rule 8 is one already arrived at by this Court in Vibhapar Seva Sahakari Mandali Ltd. (supra).
7.3 Learned counsel appearing for the respective parties endeavoured to embellish their submissions by canvassing the factual merits of the order passed by the authorized officer. Here we have confined ourselves to the aspect of nature, scope and ambit of powers exercisable under Rule 8, the contours of which have been already decided by the Division Bench in Vibhapar Seva Sahakari Mandali Ltd. (supra).
We, having examined the impugned order on that limited ground, find that the authorized officer has clearly exceeded the ambit of statutory powers available to him under Rule 8, which makes the impugned order void on account of lack of jurisdiction.
8. While we are mindful of the principle that while exercising powers and granting relief under Article 226 when the election process is underway, the High Court is required to be careful and circumspect and that ordinarily will not interpose itself so as not to obstruct the election process. It was submitted that granting of relief will tantamount to interference in the election process and that the Court should relegate the petitioners to the remedy of filing election petition under Rule 28 of the Rules. However, it is not tenable in the facts and circumstances of the case for the following reasons.
8.1 At the outset it deserves to be noted that when this Court was moved, while issuing notice, by way of ad-interim relief it was directed that the names of the members concerned be included in the final list of voters to be published on 05.11.2011. Accordingly, in the final list of voters published on 05.11.2011 the names of the members in respect of whom the dispute is raised stood included. Now that for the reasons recorded above we have held the impugned order to be not sustainable in law, the effect of it will only facilitate the smooth progress of elections as per the election schedule already announced and elections will be held on the basis of list of voters which include the names of the members concerned nominated by respondent no.7 Bank. Thus on facts, setting aside the impugned order would be in furtherance of the election process rather than in any way interfere with the schedule. We, therefore, reject the contention that, by granting relief, the Court would be disturbing the election process.
8.2 The Supreme Court has, in Election Commission of India v. Ashok Kumar [(2000) 8 SCC 216], held that the provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum. In paragraph no.32 of the said judgment, the Supreme Court has summed up the legal propositions and clearly laid down interalia that :
"2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court."
(sub paragraphs (2), (3) and (4) of paragraph 32 in the judgment) 8.3 The above exceptional situations are carved out by the Apex Court allowing the exercise of jurisdiction under Article 226 while the election process had, in the background, the constitutional bar enacted in Article 329 of the Constitution of India against the interference by Courts in the electoral matters. The relevant statutory provisions in the Gujarat Co-operative Societies Act do not contain such express bar, and all the judgments which are relied on in support of the contention that the petitioners may be relegated to the remedy of Rule 28 of the Rules, rest on the principle generally adopted by the Courts that they would refrain from exercising jurisdiction to intervene and retard any election process, as well as the principle that when alternative remedy is available, the Court would not be justified in exercising jurisdiction under Article 226. As per the above discussion, both in terms of the effect on the election process to the Agriculture Produce Market Committee, as also on the efficacy of the remedy under Rule 28 of the Rules and the futility thereof in the context of factual and legal setting of the present case, the contention on the score that the elections would be interfered with and that the remedy under Rule 28 is available, does not hold good.
8.3.1 Further, in Pundlik v. State of Maharashtra [(2005) 7 SCC 181] wherein the dispute was in respect of preparation of voters under the Maharashtra Cooperative Societies Act, the Supreme Court has held in paragraph no.9 as under:
"9.We are unable to uphold the contention. In Sant Sadguru Janardan Swami, this Court had an occasion to consider the relevant provisions of the Act and the Rules. Referring to Section 144 X of the Act, the Court observed that preparation of list of voters is one of the stages of election. It is true that according to this Court, normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters but such action must be in accordance with law."
8.4 While appreciating the arguments of respondent No.1 to 6 with regard to non interference in the election process, we have also considered the decision by the Division Bench of this Court in case of Patel Talshabhai Purabhai vs. Authorized Officer in Special Civil Application No.2302 of 2011 and the cognate petitions, wherein one of us (D.H.Waghela, J) was a party, in which the Hon'ble Bench considered all the applicable decisions of this Court as well as the Hon'ble Supreme Court, and ultimately found it inexpedient in the fact of those cases to exercise the jurisdiction under Article 226 of the Constitution and dismissed petitions on the ground of availability of efficacious alternative remedy. However, upon that decision being carried to the Apex Court, Their Lordships were inclined to interfere and the legal issue regarding stare decisis was kept open while disposing the Special Leave Petition. Subsequently, another Division Bench of this Court has taken the view as aforesaid in Vibhapar Seva Sahakari Mandali Ltd. (supra) and the Special Leave Petition preferred therefrom is stated to have been rejected.
9. The Supreme Court has in Whirlpool Corporation vs. Registrar of Trademarks reported in [1998 (8) SCC 1] held that existence of alternative statutory remedy is not a constitutional bar to High Court's jurisdiction and would not operate as bar in atleast three category of cases: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; and (iii) where the order or the proceedings are wholly without jurisdiction or vires of an Act is challenged. In the present case, the impugned order is found to be without jurisdiction where the authorized officer exercised powers not statutorily available to him.
9.1 Moreover, a challenge to the legality or otherwise of the grounds on which the Authorized Officer based the impugned order could hardly be the subject matter for the election petition before the Election in so far as the Division Bench of this Court has in Vibhapar Seva Sahakari Mandali Ltd. (supra) held it to be beyond powers of the Authorized Officer. When such challenge is not permissible for the petitioners in an election petition, the remedy under Rule 28 of the Rules cannot be said to be efficacious remedy. In substance, it is not an alternative remedy at all.
10. In view of above discussion and reasons, the impugned common order dated 24.10.2011 of respondent no.4 at Annexure A to Special Civil Application No.16238 of 2011 is set aside, and consequentially the voters list including the members of the Managing Committees of the petitioners shall remain in the final list of voters for the election of Kalavad Agricultural Produce Market Committee. Rule is made absolute in each of the petitions accordingly, with no order as to the costs.
(D.H. WAGHELA, J.) (N.V. ANJARIA, J.) (sndevu pps) Top