Gujarat High Court
Ishwarbhai Narayanbhai Patel vs State Of Gujarat on 22 November, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1821 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 11822 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1821 of 2019
With
R/LETTERS PATENT APPEAL NO. 1822 of 2019
In
SPECIAL CIVIL APPLICATION NO. 11824 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1822 of 2019
In
SPECIAL CIVIL APPLICATION NO. 11824 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ISHWARBHAI NARAYANBHAI PATEL
Versus
STATE OF GUJARAT
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C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021
Appearance:
MR MIHIR JOSHI SENIOR COUNSEL WITH MR DIPEN DESAI(2481) for the
Appellant(s) No. 1,2,3
for the Respondent(s) No. 2,3,4
MS MANISHA LAVKUMAR SHAH GOVERNMENT PLEADER - ADVANCE COPY
SERVED TO GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1
MR. ARCHIT P JANI(7304) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/11/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 Since the issues raised in both the captioned appeals are the same and the challenge in both the appeals is also to a selfsame judgement passed by a learned Single Judge, those were taken up for hearing analogously and are being disposed of by this common judgement and order.
2 For the sake of convenience, the Letters Patent Appeal No.1821 of 2019 is treated as the lead matter.
3 This appeal is at the instance of unsuccessful writ applicants of a writ application and is directed against the judgement and order passed by a learned Single Judge of this Court dated 25 th November 2019, whereby the learned Single Judge declined to entertain the writ application filed by the writ applicants and rejected the same.
4 The facts giving rise to this appeal may be summarized as under:
4.1 The appellants (writ applicants) are the members of the Managing Committee of a Primary Agricultural Credit Cooperative Society included Page 2 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 in the voters list for the election of the A.P.M.C., Nizar. By way of the writ application, the writ applicants have challenged the decision of the authorized officer i.e. the respondent No.4 dated 4 th July 2019, whereunder the members of the Managing Committee of Khodada Vividh Karyakari Seva Sahakari Mandali Ltd and the Juni Bhilbhavali Seva Sahakari Mandali Limited respectively came to be included in the voters list of the A.P.M.C., Nizar.
4.2 Essentially, the appellants (writ applicants) are challenging the decision of the Authorized Officer rejecting the objections raised by them relating to the inclusion of the members of the Managing Committee of the respondent No.5 society in the voters list.
4.3 The A.P.M.C., Nizar was initially bifurcated in the year 2017.
4.4 Both the respondent No.5 societies as specified were registered in January 2019.
4.5 The election program was declared on 24th May 2019 by the Director, A.P.M.C. 4.6 By virtue of Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965, the names of the members of the Managing Committee of every cooperative society dispensing agricultural credit in the market area were sent to the Authorized Officer and the Preliminary voters list came to be published under Rule 7(2) of the Rules on 6 th June 2019.
Objections came to be raised by the appellants (writ applicants) against the inclusion of the respondent - societies in the voters list.
4.7 On 23rd June 2019, the Authorized Officer prepared and published Page 3 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 the provisional voters list. 4.8 The Special Civil Application No.11114 of 2019 was filed
contending that no order was passed dealing with the objections raised by the appellants (writ applicants) and the same were not even remotely considered. The said petition came to be disposed of with a direction to appoint a new Authorized Officer, who, in turn, shall hear the appellants (writ applicants) and pass the necessary orders.
4.9 On 2nd July 2019, the Director, A.P.M.C., appointed the office Superintendent of the District Registrar, Cooperative Societies, Surat as the Authorized Officer to examine the objections raised by the appellants (writ applicants) and to pass appropriate orders after hearing the appellants.
4.10 In place of the erstwhile Authorized Officer against whom the appellants (writ applicants) had alleged bias, a new Authorized Officer was appointed to hear the objections raised by the appellants and to pass necessary orders after giving an opportunity of personal hearing. Each of the appellants was personally heard.
4.11 On 4th July 2019, the objections of the appellants were rejected and the final voters list was published on 5th July 2019.
5 In view of the above, the Special Civil Application No.11822 of 2019 came to be filed with the following prayers:
"A. The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 04.07.2019 passed by the respondent No.4 - Authorized Officer at Page 4 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 Annexure-A to the petition.
B. The Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus, or any other appropriate writ, order or direction, directing the respondent No.4 to delete the names of members of managing committee of the respondent no.4 - society from the voters list from the agriculturist constituency for the elections of Agriculture Produce Market Committee, Nizar.
C. Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned order dated 04.07.2019 passed by the respondent No.4 - Authorized Officer at Annexure-A to the petition and further be pleased to restrain members of managing committee of respondent no.5 society from participating in the elections of Agriculture Produce Market Committee, Nizar.
D. The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."
6 It appears that the appellants herein are the agriculturists having their agricultural land in the market area of the A.P.M.C., Nizar. They are members of the Managing Committee of the Primary Agricultural Credit Society and are, therefore, included in the voters list for the purposes of election of the A.P.M.C., Nizar.
7 It appears that by virtue of an order passed in the Special Civil Application No.8006 of 2019, an administrator was appointed and the process of election was set into motion. It was the case of the appellants herein before the learned Single Judge that the elections were long over due and ought to have been declared in early January as the term was to expire on 8th April 2019.
8 The respondent No.2 - Director declared the elections for the A.P.M.C., Nizar on 24th May 2019. In accordance with the election programme, as declared, every Cooperative Society dispensing Page 5 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 agricultural credit was to communicate the names of the members of the authorized officers by 3rd June 2019. The preliminary voters list was published as per Rule 7(2) of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as "the Rules", for short). The preliminary voters list was published on 6th June 2019.
9 It appears that no sooner the appellants herein came to know that the names of the members of the Managing Director of the respondent No.5 - society had been included in the voters list, then they lodged their objections on 20th June 2019. The objections were lodged by the appellants on the premise that the society in question had not taken any credit before the declaration of the election, and in such circumstances, it could not have sanctioned agricultural loan to its members. To put it in other words, the objections raised by the appellants was that the respondent No.5 was not a society dispensing agricultural credit and whatever was shown by the respondent No.5 were paper entries. In such circumstances, the appellants raised an objection saying that they cannot be said to be primary agricultural credit societies dispensing agricultural credit.
10 It was pointed out to the learned Single Judge that on the date when the preliminary voters list was published on 6 th June 2019, the society had not dispensed agricultural credit. In other words, the attention of the learned Single Judge was drawn to the letter of the Surat District Cooperative Bank dated 21st June 2019 wherein all that was stated by the bank was that the loan had been disbursed only on 7 th June 2019 i.e. after the date of the preparation of the preliminary voters list.
11 The appellants (original writ applicants) argued before the Page 6 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021
learned Single Judge that after deciding the objections raised by them, the authorized officer published a provisional voters list on 23 rd June 2019 including the name of the respondent No.5 - society.
12 Aggrieved by the aforesaid action of the authorized officer, the appellants came before this High Court by filing the Special Civil Application No.11114 of 2019. The said writ application came to be disposed of vide order dated 2nd July 2019 with a direction that the respondents concerned shall decide the objections and pass an appropriate order on or before 4th July 2019.
13 The authorized officer, ultimately, passed an order dated 4 th July 2019 holding as under:
"Considering the proofs produced by the Chairman and the Secretary of Shri Khodada Vividh Karyakari Sahkari Mandali Ltd., it appears that vide the letter of the Surat District Co-operative Bank Ltd. Surat dated 18/03/2019, a short term agricultural loan of total Rs. 19,12,000/-, which included Rs.12,10,000/- for five ordinary farmers and Rs.7,02,000/- for five small farmers, has been sanctioned under the K.C.C. scheme. The member of the Society, Mr. Rajeshbhai Mansingbhai Padvi submitted an application on 25/02/2019 for getting a short term agricultural loan. The same had been sanctioned vide the resolution no - 4 in the meeting of the Managing Committee on 25/02/2019. On 28/02/2019, the Society lent Rs. 5330/- from its fund to the member in the form of goods. The copy of its day book has been produced. Therefore, it is proved that agricultural lending under KCC has been done.
Objecting applicants have produced the copy of the letter dated 21/06/2019 of Nizar Branch of the Surat District Co-operative Bank. As Page 7 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 per the same, the said Society has not given loan to the members. But vide the letter of the Surat District Co-operative Bank Ltd. Surat dated 18/03/2019, a short term agricultural loan of total Rs. 1912000/-, which included Rs.1210000/- for five ordinary farmers and Rs.702000/- for five small farmers, has been sanctioned under the K.C.C. scheme. But due to the procedure of the Lok Sabha general election - 2019, there was a delay in registering the charge on the abstract of village form no - 7/12 of the farmers. Therefore, the said sanctioned loan could not be paid to the members.
I come to the conclusion that, in the farmers electoral roll published on 06/06/2019 and 23/06/2019 for the general election - 2019 of Agricultural Produce Market Committee, Nizar, the names at Serial No - 322 to 342 of the members of the Managing Committee of Shri Khodada Vividh Karyakari Seva Sahkari Mandali Ltd. at of Serial No (22) shall be continued.
Considering the details as mentioned in the above preface and findings, I- V.A.Shaikh, Competent Authority and Office Superintendent, District Registrar, Co-operative Societies, Surat, by virtue of powers conferred to me under Rule-8(2), come at the following conclusion.
DECISION:-
Shri Khodada Karyakari Sahakari Mandali Ltd., at post: Khorada has taken agricultural loan to aid in the agriculture work. As the loan has been given to the Member, the debt bond and debt ledger and the day-book dated: 28/02/2020 and the Rojnama dated: 03/07/2019 have been verified. Hence, this Society has carried out the agricultural activities and it has been classified into Primary agricultural co-
operative societies. Hence, I hereby decide that the names of the Page 8 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021
members of the aforesaid Committee as mentioned at Sr. No.322 to 342 of Shri Khodada Karyakari Sahakari Mandali Ltd., to be continued on Sr. No.(22) of the Farmer voter list published by Agriculture Produce Market Committee Nizar dated: 06/06/2019 and 23/06/2019.
Sd-/(Illegible) Competent Authority and Office Superintendent, District Registrar, Co-operative Societies, Surat"
14 The aforesaid order passed by the authorized officer dated 4 th July 2019 came to be challenged by filing the Special Civil Application No.11822 of 2019. The learned Single Judge declined to entertain the said writ application and rejected the same holding as under:
"8. A nominated body was appointed to look after APMC, Nizar, for a period of two years. The term of the nominated body was to end on 03.04.2019. Since elections were due, a petition was filed directing the State to hold elections immediately. This Court on 08.05.2019 disposed of the petition on a statement being made that elections to the body shall be held within two weeks.
9. On 24.05.2019, the Director declared elections. A preliminary voters' list was published on 06.06.2019, wherein, the name of the respondent No.5 Society was included. Objections were lodged by the petitioners on 20.06.2019. Without a decision on such objections a provisional list of voters maintaining the preliminary list was published. A petition being Special Civil Application No. 1114 of 2019 was filed by the petitioners since the objections were not considered. The Court disposed of the petitions on 02.07.2019 directing the State to decide the objections afresh and publish a fresh election programme. Based on the objections lodged by the petitioners a two-fold submission is made:
(a)The Society was registered on 28.01.2019, three months preceding election programme being announced purely with a view to prep up a Society to facilitate a voter. Arrangement of showing dispensation of credit through transactions by the President was a brazen attempt to tinker with the election process showing society's dispensation of credit, which was in fact not in confirmity with the three-tier credit structure. The Surat Bank's letter dated 21.06.2019 apparently showed Page 9 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 dispensation on 07.06.2019 i.e. after 06.06.2019, post declaration of election programme and even post publication of voters' list. Secondly, the surrounding circumstances in which the authorized officer tampered with the date of order from 23.06.2019 to 27.06.2019 showed bias of the Authorized Officer and therefore all these circumstances made it apparent that no inquiry was necessary under Rule 8 and therefore it was an extraordinary circumstance warranting interference under Article 226 of the Constitution of Indiaand not relegating the petitioner to an alternative remedy by way of an election petition under Rule 28 of the APMC Rules, 1965.
(b) Let us assess the decision impugned dated 04.07.2019. Appreciating the chain of events the Authorized Officer found that the Society passed a resolution in the general body resolving to process loan application of ten farmers. As per the letter dated 18.03.2019, the Surat District Co-operative Bank sanctioned loan to an amount of Rs.12,10,000/- to five medium farmers and Rs.7,02,000/- to five marginal farmers. Agreement was signed on 09.05.2019. The Mamlatdar was requested to record a charge. Since the Lok Sabha elections were announced, the charge was recorded subsequently. There was hence a delay in disbursement.
(c) Can such an eventuality be branded as a brazen attempt to create records of dispensing credit to make a show to get itself included in the voters' list from such voters' constituency of agriculturists? Does this amount to tinkering with the sanctity of of the election process? Is this done with a view to gain eligibility to be entitled to vote?
(d) The background of the respondent No.5 Societies indicate that, as far as Khodda Society is concerned, registration was pending since 2017. It was registered ultimately on 28.01.2019. To suggest that it was so done keeping an election forthcoming three months is a circumstance too far fetched to hold against the Society. It cannot be said that the registration was done with a purpose of influencing the elections. The registration of the Society in January 2019 was never challenged.
10. On record are copies of the resolutions dated 25.02.2019, agreement / Shaak Patrak dated 18.03.2019 and 09.05.2019 respectively. One of the conditions of the agreement indicate that the loan amounts will be disbursed once the security interest of the bank is taken care of. Therefore if the letter dated 21.06.2019 is read in that context, the mere formality of disbursement of cheques was done after mortgage was recorded. This was a procedural formality completed. There is therefore disbursement on 07.06.2019 and certainly cannot go Page 10 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 against the respondent No.5 Society to hold such an act as creation of a show of disbursing credit / dispensing credit after 06.06.2019 to disqualify it from being in the voters' list only on this count. Subsequent transactions also show that the Society is not defunct. Reliance placed on the decision in the case of Dolatbhai Prabhubhai Dumaniya (supra), cannot help the petitioner. In this case the Authorized Officer after considering the fact that the Society had resolved on 25.02.2019 and in view of the letter dated 18.03.2019, found the objections of the petitioner unsustainable. The Society was held to be one dispensing agricultural credit in consonance with the three tier system. In consonance with the provisions of Section 11 (1)(i) of the APMC Act and Rule 8 of the APMC Rules if the authorized officer on an inquiry, albeit not a detailed one found that the respondent No.5 Society was a primary agricultural credit society and that it is involved in dispensation of agricultural credit, to go behind and examine the issue on appreciation of evidence would amount to delving into disputed questions of fact, which is not open for a writ court to do under Article 226 of the Constitution of India. The circumstances of the present case are not so extraordinary that the petitioner cannot avail of the effective remedy under Rule 28 of the APMC Rules.
11. With regard to the President himself depositing an amount on 25.02.2019 and taking a loan of fertilizer as a single circumstance may not be a sole guiding factor weighing against the Society. The Rojmal Entry and its transactions and its veracity is not best opined for or against and is best left for the parties to lead evidence before the competent election tribunal.
12. With regard to attributing bias to the authorized officer in context of the observations made by this Court in its order dated 02.07.2019, the state Government gave a fresh hearing and another Authorized Officer passed an order. That he upheld the petitioner's objection vis-a- viz Shelu Sahakari Mandali would also suggest that the apprehension of bias is unfounded.
13. I am in agreement with the submissions of Mr.Archit Jani, learned advocate for respondent and Ms. Manisha Lavkumar, the learned Government Pleader, that merely because disbursement happened on 07.06.2019 it cannot be said that the situation was tailor made to prep up a voter. The exercise cannot be branded as one to tinker with the election process. With regard to Mr. Joshi's submission on the Society not dispensing credit in compliance of the three tier credit structure, the case of Vineshkumar (supra) though deals with a pre-amendment definition deals specifically with the term "dispensing agriculture credit" and as held it is only descriptive of the purpose for which the societies are established. It cannot be therefore said that the Authorized Officer, in rejecting the objections of the petitioner, acted without jurisdiction as the order is ex-facie arbitrary or wholly unjust to warrant Page 11 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 interference under Article 226 of the Constitution of India. The petitioners can avail of an effective remedy under Rule 28 of the APMC Rules, 1965."
15 Being dissatisfied with the impugned order passed by the learned Single Judge, the appellants (original writ applicants) are here before this Court with the present appeal.
16 The parties in the present litigation have filed their written submissions through their respective counsel.
17 Written submissions on behalf of the appellants:
"1. The Appellant-Original Petitioners submit that on admitted facts, the Respondent society is not entitled to get the names of the members of the managing committee included in the list of voters entitled to vote in the Agricultural Constituency as specified in Section 11(1)(i) of the Gujarat APMC Act (as applicable at the relevant time) since the said Respondent is not a society dispensing agricultural credit in the market area.
2. The Appellants submit that it is settled law and in fact has not been disputed by the Respondents that the phrase 'dispensing agricultural credit' relates to the eligibility for being included in the voters list and the same has to be fulfilled as on the date of declaration of elections under Rule 4 of the Agricultural Produce Market Rules, which in this case was 24.05.2019 (page 26). Please refer to 2013(2)GLH 157 (para 16-19)
3. The Respondents however contend that the Respondent Society fulfils the eligibility criteria in as much as
(a) It has actually dispensed credit in the form of fertilizers to its members on 28.02.2019, that is before the cut off/relevant date as evident from. the submission before the Authorized officer (Page 96A read with Page 97extract of accounts) and
(b) That is had in fact applied for sanction of funds from the District Co-operative Bank which was sanctioned by it on
18.03.2019 (Page 96A read with page 111), that the Society had sanctioned grant of such loan on 31.03.2019 (page 96A) and only because of delay in creating charge on the land of the Page 12 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 borrower due to the elections, the loan was actually disbursed by the Bank later on 07.06.2019 (page 29A), and therefore the Respondent Society had undertaken the activities and could be said to be dispensing agricultural credit before the cut off/relevant date, though the actual disbursement may have happened later due to certain fortuitous circumstances.
4. The Appellants submit that the aforesaid contentions are misconceived and untenable in law because of the following reasons.
(4.1) In so far as the first contention, regarding actual disbursement of agricultural credit is concerned, the transaction is ex-facie concocted and clearly a sham transaction evident from the following:
(a) The President of the Society applied for loan which was sanctioned by the Managing Committee on 25.02.2019 (page 96A), the President then deposits the requisite amount with the Society (which had no balance as on the date of sanction of loan) on 28.02.2019 (page 97), the Society purchases fertilizers and loans it to the President on the same day, i.e on 28.02.2019 (page 97). Such a transaction is clearly farcical and a fraud on the electoral process. Please refer judgment dated 17.03.2016 in Special Civil Application No. 3828 of 2016 (Para 12).
(4.2) In so far as the second contention is concerned, it is an admitted fact that the actual dispensation of credit took place on 07.06.2019, well beyond the cut off/relevant date of declaration of election on 24.05.2019 and in fact beyond the date of publication of preliminary list of voters, i.e. on 06.06.2019 (page
27). That the eligibility criteria requires fulfilment of the condition of actually dispensing agricultural credit to the member is well settled by the following judgments:
(1) 2007 (3) GLH 57 (para 15-17) (2) 2013 (2) GLH 157 (para 16-19) (3) 2018 (1) GLR 647 (para 21 (1))
5. The Appellant further submits that the contention of the Respondents that activities undertaken by a Society towards dispensing agricultural credit are sufficient to establish that it meets with the eligibility criterion is even otherwise misplaced on interpretation of the relevant provision which uses the term 'dispensing agricultural credit'.
(5.1) Going by the first rule of interpretation, i.e literal construction, a plain, natural and grammatical meaning of the Page 13 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 phrase could lead to only one conclusion that the Society had to have dispensed agricultural credit before the cut off/relevant date. The interpretation of the Respondents would imply adding words to the section for example, 'engaged in' or 'activity of' or 'for dispensing' which is impermissible. Once the condition is 'dispensing' it cannot be read as 'ready to dispense'. Please refer to AIR 1976 SC 1066 (para 5) (5.2) The legislature has used the present continuous tense by using the suffix 'ing'. This indicates an activity which has started and continues through the cut off/relevant date and into the future. Please refer to 2006 (6) SCC 336 (para 1117), 2013 (5) SCC 277 (para 102). Therefore, the fact that dispensation Is likely to happen or in fact has happened (after the cut-off date ) is insufficient to meet with the eligibility criterion.
(5.3) The Appellants submit that the interpretation canvassed by the Respondents takes away from the exactness of the expression and brings in an element of subjectivity and vagueness which has to be abhorred in interpreting status of preparatory steps towards the actual dispensation are to be included, it brings in uncertainty and a case by case application without a legal principle which can be applied to existing facts. For instance it could as well be contended that registration of society of society and application for loan by member is sufficient to show intention to dispense, in which case the whole objective of prescribing such condition is lost and it is no answer to say that verify later whether such dispensing had actually taken place, since this would be impermissible to apply at the stage of judging qualification.
(5.4) In fact the internal guidance for interpretation i.e Section 11(1)(ii) and (iii) of the Act make it clear that the legislature meant that actual 'dispensing' should be taking place, since in the above referred provisions, it is not sufficient if the respective societies had been registered as such and possessed a license, but that they should have actually traded before the cut off/relevant date.
(5.5) The interpretation of the Respondent would open up a window for registration of societies to tailor make the constituency which would be contrary to the legislative intent.
6. In the present case, the Authorized Officer has clearly overlooked and rather ignored the above referred aspects. Once the Authorized Officer had no jurisdiction to include the name of any society which has acquired eligibility after the declaration of election, order passed by the Authorized Officer can be said to be without jurisdiction.
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7. It is submitted that from the inception, the attempt on the part of the State Authorities was to tailor make the constituency and include the names of the respondent No.5society. It is submitted that firstly election of the APMC, Nizar was not declared intentionally. It is submitted that though the term of the nominated body had already expired on 03.04.2019 and therefore, election ought to have been declared at least three months prior to the expiry of the term of the nominated body intentionally election was not being declared and therefore, the petition had to be filed before this Hon'ble Court requesting holding of election. The said petition came to be disposed of vide order dated 08.05.2019 and it was directed that the election should be declared as soon as possible. Thereafter, only election was declared on 24.05.2019. The same was done intentionally with a view to ensure that the respondent No.5 societies are registered and can be included in the voters list.
8. It would not be out of place to state that the respondent No.5 societies were registered only on 28.01.2019 and therefore, if the elections would have been declared on time i.e. in the month of January-2019, the respondent No.5 societies would not have been even registered. The same were registered only with a view to create artificial majority in the election.
9. As if the aforesaid was not enough, the Authorized Officer includes the names of the members of managing committee of the respondent No.5 society on 06.06.2019 though by that time the respondent No.5 societies have not been dispensed any agricultural credit through three tier system to its members. The appellants, therefore, raised objections on 20.06.2019 against wrongful inclusion, however' the Authorized Officer did not decide the objection and published the provisional voters list on 23.06.2019. The appellants therefore preferred another petition being Special Civil Application No.11114 of 2019 before this Hon'ble Court against the inaction on the part of the authorized officer in deciding the application. It is submitted that in the said petition, on 27.06.2019, under the instruction of the Authorized Officer, a statement was made before this Hon'ble Court that the objections have not been decided by the Authorized Officer and he shall decide the same at the earliest after hearing the petitioners. Thereafter, when the petition was taken up for hearing, on the next date i.e. on 02.07.2019, it was informed that the Authorized Officer has passed an order on the objections and not only that the date of the order was sought to be changed from 27.06.2019 to 23.06.2019. The same was therefore clearly an attempt to manipulate with the record and acting contrary to the statement made at bar before this Hon'ble Court. The said misconduct has been recorded by this Hon'ble Court in its order dated 02.07.2019 in Special Civil Application No.11114 of Page 15 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 2019 (page-65 of the petition). The Hon'ble Court did not take action against the Authorized Officer, but recorded the statement of the State Government that they shall take action and the Authorized Officer shall be changed who was directed to hear the petitioners and decide the objections.
10. The new Authorized Officer hears the appellants-objectors and the representative of the respondent No.5-society separately on 03.07.2019. The said procedure adopted by the respondent No.4 was clearly unknown to law and both were required to be heard at the same time, but were heard separately. The Authorized Officer without considering the aforesaid aspects, which are stated earlier that the credit is not dispensed prior to the declaration of election, but considers the date when the loan is sanctioned by the Surat District Bank and on that continued the name of respondent No.5. However, the Authorized Officer categorically recorded the finding page 22, internal page 5 of the Authorized Officer's order that respondent No.5 society has not dispensed credit to its members. The said categorical finding of facts by the Authorized Officer ought to have resulted in exclusion of name of respondent No.5 society from the voters list.
11. The date of sanctioning of loan by the Surat District Bank is not relevant. What is required as per section 11(1)(i) is that the society must have dispensed agricultural credit to its members. Therefore, what is required to be seen is whether the society had dispensed agricultural credit to its members before the election was declared. The said requirement was admittedly not fulfilled and hence, the authorized officer has considered irrelevant aspects and has not' considered relevant aspects for deciding the objections.
12. The Authorized Officer however, contrary to well settled legal position continues the name of the respondent No.5 society in the voters list.
13. Therefore, right from the inception, the intention is clear to just help the respondent No.5-society.
14. As regards the contention of the respondents that the petitions are not maintainable and the petitioners be relegated to prefer election petition and the reliance placed by the respondents on judgment of the Full Bench in the case of Daheda Credit Seva Sahakari Mandali Limited reported in 2006(1) GCD 2011, it is submitted that the same judgment provides for exception that orders of the election officer are open to judicial review if the order is ultra vires or nullity or ex-facie without jurisdiction. In the present case, as can be seen from the facts narrated hereinabove the order of the Authorized Officer is ex-facie without jurisdiction as he has no authority or competence to include names of societies who had acquired eligibility after the declaration of election.
Page 16 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 Therefore, the present case would fall in the exception carved out by the Full Bench of this Hon'ble Court. The present case is the case where the order of the Authorized Officer is without jurisdiction where as cased relied upon by the respondents were not such cases and therefore, the said cases relied upon by the respondents would not apply to the present case.
15. Further, the Learned Single though on hand has discussed the contentions on merits and has given finding on merits and on the other hand has dismissed the petition on the ground of alternative remedy. Thereby because of the findings recorded by the Learned Single Judge on merits, the alternative remedy has become futile for the appellants as the Election Tribunal would not be able to take any view contrary to the findings of the Ld. Single Judge. Hence, on that count also, the contention of the respondents deserves to be rejected.
16. The decision of the Hon'ble Supreme Court in the case of Vineshkumar Mavjibhai Parmar Versus Dethali Vividh Karyakari Sahakari Mandali Ltd. reported in 2017 (1) SCC 273 relied upon by the other side is not applicable to the present case. The said judgment deals with section 11 prior to amendment which came into force from 10.04.2015. The said judgement does not consider the words "primary agricultural credit co-operative societies" as prior to 2015, the said requirement was not there. The Supreme Court was considering the contention of incessant dispensing and a case of hiatus, meaning thereby that there was actual dispensing but only temporary suspension with a clear possibility In future continuation and therefore the eclipse would not amount to disqualification, Rather, in the present case the dispensing has not started at all before the cut off/relevant date. Further, the said judgment deals with a situation whether a society against which Interim order of liquidation Is passed Is eligible to be Included in the voters list, Such are not the facts of the present case, Therefore, the said judgment has no application to the present case.
17. In view of the above, the Impugned order of the learned Single Judge so also the Authorized Officer are clearly illegal and not sustainable In law and therefore, required to be quashed and set aside."
18 Written submissions on behalf of the State:
"The petitioners had raised objections with regard to the three cooperative societies i.e. (1) Shelu Seva Sahakari Mandali Limited (2) Khodada Vividh Karyakari Seva Sahakari Mandali Limited and, Page 17 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 (3) Juni Bhilbhavali Seva Sahakari Mandali Limited The authorized officer notes that Khodada Vividh Karyakari Seva Sahakari Mandali Limited was registered on 28.01.2019 vide registration no.40404 as Primary Agricultural Credit Cooperative Societies.
On 25.02.2019, the general body of the society resolves to process the loan applications often farmers and necessary papers were prepared and forwarded to the Surat District Cooperative Bank Limited. On 18.03.2019, Surat District Cooperative Bank Limited had sanctioned the loan to an extent of Rs.12,10,000/- towards agricultural loan to be extended to five medium farmers and Rs.7,02,000/- to five marginal farmers. Thus, short term agriculture loan under the KCC Scheme was sanctioned to marginal and medium farmers on 18.03.2019.
On 31.03.2019, the respondent no.5-PAC society resolved and approved the loan to an extent of Rs.19,12,000/to the ten members and consequently, necessary entries in the 7/12 abstract for all the ten members were directed to be affected vide resolution dated 31.03.2019. An Applications were made before the Mamlatdar, Nizar for recording of the loan and reflecting the charge of the society to the extent of such loan. As a procedure till the charge of the society is not recorded in the respective revenue records of the agriculturists, society cannot disburse the amount as the loan would remain unsecured. On account of Lok Sabha Elections, entries could not be immediately mutated in 7/12 abstracts..
It appears from the record that on 25.02.2019, Rajesh Manshibhai Padvi applied for short term agricultural loan. Copy of the same was produced before the authorized officer. Further, vide resolution no. 4, the managing committee approved the said loan of Rs.5,330/- which came to be disbursed in favour of the applicant. Copy of the rojmel was also produced before the authorized officer.
The authorized officer, in his order arrived at a conclusion that the members of the managing committee of the respondent no. 5 - society be continued in the voters list with a reasoning that considering that the society is registered as Primary Agricultural Credit Co-operative Societies and thus confirmed to the three credit dispensing structure. The society had also resolved to extend credit to its ten members to the extent of Rs.19,12,000/- long prior to the declaration of the elections on 24.05.2019. Necessary applications received, resolutions passed. Surat distinct Co-op. bank had even sanctioned the loon.
The Surat District Cooperative Bank sanctioned the loan on 18.03.2019, prior to the date of the elections. It also appears on record and that the committee on 31.03.2019, vide resolution no 2 resolved for Page 18 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 disbursement of the sum of Rs.19,12000/- to ten marginal and medium farmers as an agricultural loan and consequently, forwarded the papers to the Mamlatdar for mutation of entries in the 7/12 abstract of the ten respective farmers and on account of incompletion of the said procedure as explained above, some delay was ensued. The authorized officer also notes that credit has been dispensed in favour of one Rajesh Manshibhai Padvi loan for the purchase of fertilizers.
Considering the above referred facts on merits, the authorized officer held that it cannot be said that the society is not dispensing agricultural credit and is thus entitled to have members of the managing committee in the voters list for the agriculturist constituency.
(i) Alternative Remedy:
Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 stipulates that determination of validity of election to be prescribes the alternate, efficacious remedy of the determination of validity of elections. The Director APMC is empowered to pass any order as he deems fit, either confirming, or amending the declared result of the election and setting aside the election. The decision of the Director APMC is statutorily prescribed to be final. Rules 28 prescribes efficacious alternate remedy, the Director is the competent authority and any person qualified either to be elected or to vote may question the election including the inclusion and exclusion in the voters list. The petitioners is duly qualified to prefer the election petition, being a voter under Section 11(1)(i) of the Act. No allegations of malafide have been pleaded against the Director APMC.
Note:-The Ld. Single Judge whilst examining the matter did not injunct the election process, but directed that the votes of the two respondent societies be kept in a sealed cover.
The petitioner had raised objections qua inclusion of members of the managing committees committee of three societies, the authorized officer had passed the orders including two societies 1.e. Khodada Vividh Karyakariseva Sahakari Mandali Limited and Juni Bhilbhavali Seva Sahakari Mandali Limited. The objection of the petitioners qua Shelu Seva Sahakari Mandali Limited was accepted and thus the allegation of malafides cannot sustain.
(ii) Petition involves highly disputed questions of fact the determination of which is not amenable to the writ jurisdiction.
The petitioners have raised highly disputed questions of fact which can be appropriately examined by the competent authority prescribed under the statute and thus the order passed by the authority Page 19 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 is not without jurisdiction.
(iii) No procedural lapse as would be required to invoke writ jurisdiction Rule 8 stipulates provisional and final publication of lists of voters. However, thus the said rule nowhere stipulates personal hearing to be given to both the objectors and the concerned society together i.e. joint society. The rules prescribe that a decision be taken by the authorized officer on objections received by way of an application in writing.
In facts of the present case, as reflected in the order the principle of natural justice have been duly followed on the day stipulated by Hon'ble Court i.e. 03.07.2019 the petitioners have been heard extensively and the orders passed in accordance with law."
19 The State seeks to strongly rely upon the decision of the Supreme Court in the case of Vineshkumar Mavjibhai Parmar vs. Dethali Gopalak Vividh Karyakari Sahakari Mandali Ltd. and others reported in 2016 AIR (SC) 5246, more particularly, the observations made in para 27 therein. The same reads thus:
"27. We are of the opinion that the phrase "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the Markets Act is only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the managing committee of Credit Societies to participate in the election to the market committee. The obligation, if any, to "dispense agricultural credit" arises under the bye- laws of the society subject of course to the availability of funds and various other factors. We are of the opinion that the above quoted words are only descriptive of the class of society the members of whose managing committees are entitled to participate in the election of the market committee. It is obvious from the language of the sub-section that there can exist more than one class of co-operative societies functioning under the Act. The very fact that the legislature took care to expressly exclude members of the managing committees of two classes of societies i.e. "Co-operative Marketing societies" and "Milk Produce Co- operative Societies", definitely indicates that there can exist more than one class of societies apart from the common knowledge."Page 20 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
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20 Submissions on behalf of the respondent No.5 - Mandali:
"(1) On Maintainability:
Ld. Single Judge has dismissed the petition on the ground of availability of effective and efficacious remedy available under Rule 28 of APMC Rules1965. Therefore, an intra-court appeal against the order passed Ld. Single judge, on the ground of alternative remedy, is not maintainable unless the order is patent illegal or against the settled legal position infringing (i) fundamental rights (ii) principles of natural justice or (iii) without jurisdiction as held by this Hon'ble Court in the case of Mahavarinh Narapatsinh Jadea V. Saurashtra University & Anrs reported in 2020 4 GLH 181 (Para31,34,35). The case of the appellant doesn't fall in the exception carved out in the referred judgment and, hence, the appeal is not maintainable.
- 2004(3) GLR 2718 (Para5-6)
- (2008)12 SCC 675 (Para38)
- 2011 JX (Guj) 1137 (Para12-13)
- 2012(1)GLR 670 (Para17-19)
- 2016 JV (Guj) 1080 (Para8-11)
- 2016 JX (Guj) 1097 (Para-6)
- 2018 JX (Guj) 149 (Para24-25)
- (2008) 5 SCC 264 (Para11,16-17)
- (2016) 3 SCC 340 (Para5) It is also held by Ld. Single judge (Para11 of the impugned order) that there are disputed questions of facts which can only be ascertain by leading evidence and cannot be adjudicated in summary inquiry under Rule 8 of the rules.
[2] On Merits The object of APMC act, 1963 reads thus:
"An Act to consolidate and amend the law relating to the regulation of buying and selling of agriculture produce and the Page 21 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 establishment of markets for agricultural produce in the State of Gujarat"
The act is aimed to provide facilities and benefits to agriculturist and therefore the managing committee of APMC consist of 8 Seats (Now 10 seats) of agriculturists as against 4 seats of traders.
As per section 11(1)(i), any agriculturist residing in the Market Area (Notified by Director APMC which ordinarily is the area of Taluka) can contest the election in APMC. However, the voters are not those agriculturists but the members of managing committee of primary agriculture credit cooperative society (PACS). Therefore, these members of managing committee of Primary Agriculture Credit Cooperative Societies exercise their right of voting in the capacity of representative of agriculturists of that village.
Nizar taluka consists of 39 villages out of which only 23 villages (including village - khodada) have cooperative societies registered for dispensing agriculture credit. Unlike other parts of the state of Gujarat, cooperative progress in this region is very less because of backwardness as it is a tribal belt having substantial portions forming part of forest area. The District Registrar would ordinarily permit only one society in the village (area of operation) and no other society can be registered having same objects as under the cooperative principles, there cannot be unhealthy competition. There is no other society in khodada village which is engaged in dispensation of agriculture credit.
APMC is a local authority as per section10 of the act and established on democratic principles. That, the interpretation of provisions of the act is required to be made to subserve the object of the act and not to defeat it. It is required to be seen that the election process is free, fair, transparent and participative and not aimed to disenfranchise legitimate voters.
(a) Election disputes ("Hands off' approach by the Courts) Unlike the election of other local authorities, the preparation of voters list is integrated part of election process in the election of APMCs as the preparation of voters list and holding of election are jointly conducted by the authorized officer in case of election of APMCs.
Full bench of this Hon'ble Court in the case of Daheda Grou Seva Sahakari Mandali Ltd. V. Authorised officer reported in 2006 1 GDC 211 (para-33) has held that petition under Article226 would not be maintainable in case of inclusion or exclusion of voters unless the order passed by the authorised officer is (i) ultra vires, (ii) nullity and/or (iii) without jurisdiction. The order impugned by the authorised officer can not said to be without jurisdiction, as sought to be submitted by the Page 22 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 appellant, in view of Rule8 of APMC rules-1965.
There are numerous decisions by the courts holding that the courts should generally not interfere in the process of election.
(2000) 8 SCC 216 (Para32) (2004) 7 SCC 492 (Para14 to 19) (2005) 7 SCC 181 (para18) (1998)4 SCC 529 (Para4,5) (2004) 7 SCC 492 (Para12-18)
(b) Scope of inquiry under Rule 7 Scope of inquiry is wholly summary in nature. Authorized officer amidst election cannot delve deep into the veracity of objections and conduct in depth inquiry, for which only election dispute is proper remedy.
The appellant took objection only to the effect that the society is registered for the purpose of election and no other objection was raised (Pg.30). The authorized officer passed the order stating that there are transactions in the society and the society doesn't seem to be registered only for the purpose of election. Now, the appellant-original petitioner has enlarged the scope of objection before this Hon'ble Court in SCA and LPA and new plea is raised which was never submitted before Authorized officer and no adjudication is made on these new objections.
- 1986 GLH 430 (Para27)
(c) Interpretation of expression 'Dispensing agriculture credit' employed in Section11(1)(i) of APMC Act Clause11(1)(i) was substituted by way of Gujarat Act 14 of 2015 whereby earlier words used in the section namely 'Cooperative societies (Other than cooperative marketing societies and mild produce cooperative societies)" were replaced by the words "Primary Agriculture Credit Cooperative Society".
Hence, from 2015 only the members of managing committee of Primary Agriculture Credit Cooperative society can be voters in the election of APMC and no members of other cooperative society can become voter.
Page 23 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 It is held by Hon'ble Supreme court of India in the case of Vineshkumar Parmar V. Dethali Goealkak Vividh Karyakari sahakarimandali Ltd. reported in (2017) 1 SCC 273 (para 27) that the words 'dispensing agriculture credit' employed in Section 11(1)(i) is descriptive in nature and that it doesn't put incessant obligation of 'dispensing agriculture credit' in order to enable the members to participate in election of APMC. The judgement would be applicable as the words explained viz. 'dispensing agriculture credit' was also in the provision prior to 2015.
The words 'dispensing agriculture credit' cannot be read disjunctively and put to strict construction as in each case the facts would vary and strict interpretation would lead to defeating the object of the Act.
The inquiry required to be undertaken by the authorised officer is for the purpose of ascertaining whether the society is a defunct society registered only to participate in the election. If the answer of that is in negative then the society must be included in the list of voters as it is in the interest of agriculturists and APMCs established on democratic principles.
The legislature stipulated strict criterion for traders under Section11(1)(ii) as they are required to have traded in full conformity in previous year and Cooperative marketing society under Section 11(1)(iii) as they are required to have accounts audited in previous years whereas no such strict rigors are provided for agriculturist constituency to qualify as voters under section 11(1)(i) except that primary agriculture cooperative society should be dispensing agriculture credit.
It may so happen that because of weather condition or natural disaster or similar other situation, dispensation by society may not be ceaseless but that by itself cannot be ground to disentitle its members of managing committee in participating in election of APMC. In the case of Karjipura (Godh) Seva Sahakari Mandali Ltd. V. State of Gujarat reported in 2015 (3 ) GLR 2362 (Para-12), this Hon'ble court has held that the recovery proceedings undertaken by society would show that the said society is not a defunct and is entitled to be included in list of voters.
(d) The society has dispensed credit in 2 modes - (1) from self fund and (2) through Dist. Cooperative Bank.
(1) Dispensation from Self Fund Objection by the appellant that the chairman of society deposits Page 24 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 amount and he only borrows it from the society (This objection was not raised before authorised officer and for proper adjudication of a evidence required to be led) All the members of committee of society unanimously resolved on 25.02.2019 (Pg 100) to dispense agriculture credit (in form of goods) to Rajesh Padvi.
Statement of society (Pg 97) shows Rs.404/- lying with society and Rs.4926/- deposited by Rajesh Padvi (As he was chairman of society) Contribution of Rs.4926/- was made by two members of society (i) Kishan Padvi and (ii) Magan Padvi as stated by them on oath (Pg 217) Society purchased fertilizer worth Rs.5330/- and lent it to the borrower Rajesh Padvi. Earlier the objection with respect to the figure Rs.5330/- was also taken but it was found out from the website of IFFCO (Pg - 203) that the price of urea fertilizer from 12.01.2019 was Rs.266.50 (total -- 20 kg) which comes to Rs.5330/-.
(2) Dispensation through Surat Dist. Cooperative Bank.
The dispensation made by the society through the district Bank has been not disputed either by bank or by the objector.
On 19.2.2019 to 25.02.2019, applications were received by the society from members.(Pg. -193-193) On 18.03.2019, Surat Dist. Cooperative Bank grants sanction for disbursement of loan to 10 agriculturists of Rs. 19,12,000/-. (Pg.111) On 29.04.2019, receipt was issued (Pg.-211) and agreement was executed (Pg.213) by Surat Dist. Cooperative Bank.
That, the actual dispensation occurred on 7.06.2019 which is after few days from the notification of election which was on 24.05.2019 (Last date to send named was 3.06.2019).
Sanction letter, agreement, receipt would obtain tenure and colour of dispensation which are conclusive proof that society dispenses agriculture credit.
These aspects may be taken into consideration -- there 10 agriculturists, bank sanctions loan worth Rs.19,12,000/-, sanction letter is issued, agreement is executed prior to notification of election. That, Sanction of loan and agreement are integral part of dispensation when it comes to dispensation through credit system and, hence, this activity would form part of dispensing agriculture credit mentioned in Section 11(1)(i) and not pedantic approach can be taken to exclude legitimate societies from being voters.
Affidavit of one of the borrower -- Sattarsinn Gebu Vasava is Page 25 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 filed before this Hon'ble Court (Pg.220) stating that he received loan from the bank through society.
- 2015(3) GLR 2362 (Para12-15)
- (2017)1 SCC 273 (Para27-31)
(e) On plea of mala fides:
The issue raised of government favoring the answering respondent is misconceived and ill founded. It can be ascertained from the fact that objections were raised for 3 societies and one society namely Shelu Vibhag Sahakari Mandali was removed from voters list which would show that the authorised officer acted objectively without any bias. The motive behind raising the objection of respondent no-5 society not dispensing agriculture credit and extenuating the transactions made is to exclude the societies from participating in the election of APMC and create monopoly over the system. As there were limited number of societies in the past, the group supported by the appellant came in power and in order to keep hold over the power, the entry of respondent no-5 society in the election is objected."
ANALYSIS:
21 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.
22 Before adverting to the rival submissions canvassed on either side, we must look into few provisions of the Gujarat Agricultural Produce Markets Act, 1963 (for short, "the Act, 1963") as well as the Rules.
23 Section 11 provides for the "constitution of market committee".
Section 11(1)(i) is relevant for our purpose. The same reads thus:
"11. Constitution of market committee.- (1) Every market committee shall consist of the following members, namely :-Page 26 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
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(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 Co-operative Societies dispensing agricultural credit in the market area;"
Prior to the amendment of Clause (i) substituted by Guj. Act. 14 of 2015 dated 10th April 2015, Clause (i) reads as under:
"(i) eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative marketing societies and milk produce co-operative societies) dispensing agricultural credit in the market area;"
Section 2 of Sub-section 7(A) of the Gujarat Co-operative Societies Act, 1963 reads as under:
"[(7-A) "Co-operative credit structure" means (i) the Primary Agricultural Credit Co-operative Societies; (ii) the central Co-operative Banks; and (iii) the State Co-operative Bank;]"
24 The short point for our consideration is what meaning or construction should be assigned to the phrase "primary agricultural credit cooperative societies dispensing agricultural credit in the market area". The argument of the learned Senior Counsel appearing for the appellants is that the respondent No.5 - society is not entitled to get the names of the members of its Managing Committee included in the list of voters entitled to vote in the agriculturist constituency as specified in Section 11(1)(i) of the Act as the respondent No.5 - society, at the relevant point of time, was not dispensing agricultural credit in the market area. In other words, the argument of the learned Senior Counsel is that the words "dispensing agricultural credit" relates to the eligibility for being included in the voters list and the same has to be fulfilled as on Page 27 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 the date of the declaration of election under Rule 4 of the Rules. The argument is that on 24th May 2019 i.e. the date on which the elections were declared the society was not dispensing agricultural credit in the market area.
LITERAL CONSTRUCTION:
25 In M/s. Hiralal Ratanlal vs. STO, AIR 1973 SC 1034, the Supreme Court observed:
"In construing a statutory provision the first and foremost rule of construction is the literal construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear." (emphasis supplied)
26 Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation.
27 As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law & Men : Papers and Addresses of Felix Frankfurter') :
"Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew Page 28 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction."
28 As observed by Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Ch 405:
"To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom."
29 In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9 th Edn. Pp 45-
49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
30 As the Privy Council observed (per Viscount Simonds, L.C.):
"Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg. 53).
31 As observed by the Supreme Court in CIT vs. Keshab Chandra Mandal, AIR 1950 SC 265:
"Hardship or inconvenience cannot alter the meaning of the language Page 29 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 employed by the Legislature if such meaning is clear on the face of the statute"
32 Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. C.I.T. 2003(5) SCC 590. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandla 2003(1) SCC 692.
33 No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule etc. but that should only be done in very exceptional cases. Ordinarily, it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J. P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004 (10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed :
"The Court cannot legislate.....under the garb of interpretation.......".
34 Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.
35 In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers, AIR 2003 SC 2434, the Supreme Court observed:
Page 30 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 "It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."
36 In Union of India and another vs. Hansoli Devi and others, 2002 (7) SCC (vide para 9), the Supreme Court observed :
"It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act."
37 In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra, AIR 2001 SC 1980, the Supreme Court observed :
"It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute"
38 The same view has been taken by the Supreme Court in S. Mehta vs. State of Maharashtra, 2001 (8) SCC 257 (vide para 34) and Page 31 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121.
39 It is well-settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.
40 A Coordinate Bench of this Court in the case of Kalubhai Ranabhai Akabari vs. State of Gujarat and others reported in 2007(3) G.L.H. 57 had the occasion to consider the issue of "relevant date" for a voter to become eligible to vote in the election of a Market Committee. In the said case, certain cooperative societies claiming to be dispensing agricultural credit got themselves registered after the declaration of the election and even after the publication of provisional list of voters. We may quote few relevant observations, which we must keep in mind, for the purpose of deciding the present appeal:
"15. The persons eligible to vote are members of the managing committee of a co-operative society dispensing agricultural credit. Hence, mere registration of a co-operative society is not sufficient to make its managing committee members eligible to vote at the elections. Such co-operative society must also have undertaken the activity of dispensing agricultural credit. Hence, such activity of dispensing agricultural credit must have actually commenced before the date on which the co-operative society is required to communicate the names of its managing committee members. After its registration and before commencing the activity of dispensing agricultural credit, the co- operative society would have to obtain the finance from District Central Cooperative Bank or any other financing agency. Hence, a period of about one month is bound to elapse between the date of registration as a co-operative society and its obtaining finance and then dispensing it for agricultural credit."
"17. At this stage, we may also note that looking to the nature of duties Page 32 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 to be performed by the Agricultural Produce Market Committee as broadly indicated in Section 26 of the Act, the rationale of conferring the right to elect agriculturists on the members of the managing committees of co-operative societies dispensing agricultural credit in the market area is the experience gained by the members of the managing committees of such cooperative societies in the process of dispensing agricultural credit in the market area. If a co-operative society, though registered as a co-operative society for dispensing agricultural credit, has not commenced dispensing agricultural credit till the date fixed by the Director for communicating the names of the voters as indicated in sub-rule (1) of Rule 7, it could not have been the intention of the rule making authority to confer the right to elect agriculturists on the members of the managing committee of such a co- operative society.
18. In our view, therefore, the relevant date for determining the eligibility of a person for inclusion in the voters' list would be the date by which the Authorized Officer is to be communicated the names as indicated in sub-rule (1) of Rule 7, that is to say before that date -
(i) a co-operative society registered under the Co-operative Societies Act for dispensing agricultural credit must have been registered as a cooperative society and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing."
41 Thus, the following is discernible from the aforesaid:
I. "The relevant date" for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in sub-rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date -Page 33 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
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(i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates.
III. To be eligible for inclusion in the list of voters for elections to APMC, -
(i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to the APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from the APMC a general license for trader before the date of declaration of elections.
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(iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from the APMC before the date of declaration of elections.
IV. The challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. The challenge to the legality and validity of a license issued by the APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.
VI. The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from the APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from the APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions.
42 The above referred decision of this Court in the case of Kalubhai Ranabhai Akabari (supra), later, came to be referred to and relied upon by one another Coordinate Bench in the case of Dolatbhai Prabhubhai Page 35 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 Dumaniya vs. Director, Agricultural Marketing and Rural Finance and others reported in (2013) 2 GLH 157. In the said decision, the Coordinate Bench reiterated stating that once the process of election has commenced any person getting eligibility after such date can be termed as not entitled to be included in the voters' list.
USE OF PRESENT PROGRESSIVE TENSE IN THE PROVISION OF LAW AND IT'S IMPACT.
43 In Praesenti :
(i) Arcelormittal India (P) Ltd. v. Satish Kumar Gupta, [(2019) 2 SCC 1]:
"Dr A.M. Singhvi, learned Senior Advocate, supported the arguments of Shri Salve. According to him, Section 29-A(c) always had the application of the resolution plan date as the relevant date, given the in praesenti "has" which is also there in clauses (h) and (j), and is similar to the expression "is" which is to be found in clauses (a), (b), (e) and
(f), as contrasted with the expression "has been" used in clauses (d) and (g), of Section 29-A. According to him, the amendment made in 2018 is in any case clarificatory in nature. He supported the attack of Shri Salve on the appellate authority's judgment, stating that so far as Uttam Galva is concerned, it is well established that the sale of shares is complete once they move out of the demat account of the seller, which in this case took place five days before 12-2-2008. For this he cited certain judgments. He also supported Shri Salve's argument by stating that Numetal is clearly disqualified under several clauses of Section 29-
A.
46. According to us, it is clear that the opening words of Section 29-A furnish a clue as to the time at which clause (c) is to operate. The opening words of Section 29-A state:"a person shall not be eligible to submit a resolution plan...". It is clear therefore that the stage of ineligibility attaches when the resolution plan is submitted by a resolution applicant. The contrary view expressed by Shri Rohatgi is obviously incorrect, as the date of commencement of the corporate insolvency resolution process is only relevant for the purpose of calculating whether one year has lapsed from the date of classification of a person as a non-performing asset. Further, the expression used is "has", which as Dr Singhvi has correctly argued, is in praesenti. This is to be contrasted with the expression "has been", which is used in clauses (d) and (g), which refers to an anterior point of time.
Page 36 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 Consequently, the amendment of 2018 introducing the words "at the time of submission of the resolution plan" is clarificatory, as this was always the correct interpretation as to the point of time at which the disqualification in clause (c) of Section 29-A will attach. In fact, the amendment was made pursuant to the Insolvency Law Committee Report of March, 2018. ......."
(ii) Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277 "102. As regards construction of the expression, "if he has been for not less than seven years an advocate" in Article 233(2) of the Constitution, we think Mr Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of "has been". The present perfect continuous tense is used for a position which began at sometime in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application."
(iii) Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd., (1963) 2 SCR 333 : AIR 1963 SC 217 "14. Our first task is now to construe the words of clause (b) and (c) of the first sub-section of Section 42. The question is what did the legislature mean by the words "is charging" in clause (b) and "is levying" in clause (c)? The use of the present progressive tense is to denote something which is taking place at present. What has already taken place cannot be described by saying that "it is taking place". Just as one cannot say of a man who has ceased to exist, that he is existing; so also, one cannot say of a charge which has already been made that "it is being made". Of the charge which has already been made a person aggrieved can complain that "the Railway Administration has charged me at this rate". It will not be correct to say that "the Railway Administration is charging me at this rate"."
HOW TO INTERPRET ELECTORAL PROVISION.
44 The concepts familiar to common law and equity must remain strangers to Election law unless statutorily embodied:
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(i) Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, (2021) 6 SCC 523 "S.A. Bobde, C.J.-- An interesting but important question of far- reaching consequence arises for consideration in these appeals. It is this. "Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a criminal court, in the afternoon on the very same day?"
20. One fundamental principle that we may have to keep in mind while interpreting the phrase appearing in Section 8(3) is that in cases of this nature, the Court is not dealing with a fundamental right or a common law right. As pithily stated by this Court in Jyoti Basu v. Debi Ghosal [Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691] , an election dispute lies in a special jurisdiction and hence it has to be exercised without importing concepts familiar to common law and equity, unless they are ingrained in the statute itself. We may usefully extract the relevant portion of the decision in Jyoti Basu [Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691] which reads as follows:
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to Election law unless statutorily embodied."
45 We shall now look into the decision of the Supreme Court in the case of Vineshkumar Mavjibhai Parmar (supra) upon which strong reliance has been placed by the learned Government Pleader appearing for the State as well as by the learned counsel appearing for the respondent No.5 - society. The question of law that fell for the consideration of the Supreme Court in the said case was as under:
Page 38 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 "Whether the members of the Managing Committees of co-operative societies (against whom proceedings under Section 107 of the Gujarat Co-operative Societies Act, 1961 are pending) have a right to participate in the election process of an Agricultural Produce Marketing Committee constituted under the Gujarat Agricultural Produce Markets Act, 1963."
46 The Supreme Court recorded the following facts:
"3. The facts leading to the present litigation: Section 9 of the Markets Act contemplates the establishment of a "Market Committee"
for every "market area". Both expressions are defined under Section 2(xiii) and 2 (xiv). Section 10 of the Markets Act declares market committees to be bodies corporate with perpetual succession and a common seal. Section 11 stipulates that every market committee shall consist of 17 members falling into 5 categories. Section 11(1)(i) stipulates that eight agriculturist members shall be elected by an electoral college consisting of the members of the managing committees of the "co-operative societies dispensing agricultural credit" (hereafter Credit Societies) in the market area.
4. Section 11(1)(i) of the Markets Act reads as follows:
"11(1)(i) eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co- operative marketing societies and milk produce co-operative societies) dispensing agricultural credit in the market area;"
(emphasis supplied)
5. The activity of co-operative societies in the State of Gujarat is regulated by the Societies Act. Section 107 of the Societies Act provides for the liquidation and winding up of the societies functioning under the Act. Section 107(1) authorises the Registrar to pass an interim order directing a cooperative society to be wound up for any one of the reasons specified in clauses (a), (b) and (c) of Section 107(1). Sub- Section(3), thereof authorises the Registrar to pass a final order after granting a hearing to the society against which an interim order under sub-Section(1) is made. Such a final order could be one either finally winding up the society by confirming the interim order or vacating the interim order passed earlier, whichever is appropriate in law having regard to the facts and circumstances of the case.
6. In exercise of the power under Section 107 of the Societies Act proceedings were initiated by the Registrar against eleven Co-operative societies (established for the purpose of dispensing agricultural credit) Page 39 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 operating in the market area of a market committee known as Sirpur market committee, the details of which are not necessary for the present purpose.
7. We are concerned with only eight of the eleven co-operative societies mentioned above. Admittedly, with reference to each of the said eight co-operative societies, interim orders were passed initially under Section 107(1) of the Societies Act directing them to be wound up. Subsequently, final orders directing the winding up of each one of the said cooperative societies were also passed. The said orders were challenged before the Appellate authority. The matters eventually reached the High Court, complete details of the litigation may not be necessary except to say that the High Court had set aside the final orders with a further direction to the Registrar to conduct an inquiry afresh under Section 107 of the Societies Act and pass appropriate final orders. Admittedly the said enquiry is pending.
8. Elections to the Sirpur market committee fell due in the year 2015. A voters list (under Rule 7 of the Gujarat Agricultural Produce Market Rules, 1965) came to be prepared consisting the names of the members of the managing committee of the above-mentioned 8 cooperative societies (alongwith other societies) operating within the market area of the Sirpur market committee.
9. In view of the pendency of the liquidation proceedings, objections for the inclusion of the names of the members of the managing committees of the 8 cooperative societies were raised. Objections were upheld by the proceedings dated 26.2.2015 of the Additional Registrar and Co- operation Officer (Market), Patan, directing the deletion of the names of the members of the managing committee of the above-mentioned 8 cooperative societies. Operative portion of the order dated 26.2.2015 with reference to one of the 8 societies reads;
"I, Mr. H.G. Rawal, Authorized Officer & Co-operation Officer [Market], Patan & in exercise of the powers conferred in me and as per the provisions of the Gujarat Agriculture Produce Market Committee Act, 1963 and Market Committee Rules, 1965 allow the application by the objector Mr. Parmar Vineshkumar Mavjibai and Prajapati Manishbai Khemabhai for deleting the names of the Managing Committee members of the Shri Kalyana Group Gopalak Vividh Karyakari Sahkari Mandali Ltd. at Kalyana, Taluka Siddhpur from the Agriculturist constituency voters list and accept the just and proper objections raised, and in the voters list Sr. 259 to 279 voters names are ordered to be deleted. The said orders will be subject to the orders passed by the Hon. High Court and Additional Registrar[Appeal], Co- operative society, Gujarat State, Gandhinagar.Page 40 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
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-sd-
[S.G. Rawal]
Additional Registrar & Co-operation Officer [Market] Patan"
10. Aggrieved by such a decision, the members of the managing committee of the said society filed special civil applications invoking Article 226 of the Constitution of India. By the judgment impugned in these appeals, the special civil application was allowed setting aside the orders of the Additional Registrar dated 26.2.2015.
11. We are informed that the facts relating to the other 7 societies are substantially similar.
12. It is argued by the appellant;
12.1 Since the 8 societies in question are in the process of being wound up, they ceased to be Credit Societies within the meaning of Section 11(1)(i) of the Markets Act because their activities are limited under Section 110 of the Societies Act i.e., the business of the societies can be carried only so far as may be necessary for the beneficial winding up of the society. It is, therefore, submitted that the members of the managing committees of these 8 societies would be disentitled to be voters at an election for the agricultural market committee.
12.2 According to the appellants, permitting the members of the managing committees of Credit Societies which are in the process of being wound up, to participate in the election process and elect agriculturist members to the market committees, would be inconsistent with the spirit of the Markets Act, in view of the declaration contained in Section 108(2) of the Societies Act.
12.3 It is, therefore, submitted that the High Court erred in interfering with the orders of the Registrar directing the deletion of the names of the members of the managing committees of the 8 societies from the voters list."
47 The Supreme Court, after due consideration of all the relevant provisions of the Act, more particularly, the entire scheme of the Act, held as under:
"24. The legislature of Gujarat by Section 11(1) of the Markets Act conferred on the Officers of a class of Credit Societies an additional function of electing members of the market committees. Such function is neither conferred on the Officers of all the societies functioning under the societies Act nor such function includes the right to elect every Page 41 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 member of the concerned market committee. Such a function obviously creates a right in the officers of the societies. Such a statutory right could not be taken away in the absence of any express authority of law.
25. The Gujarat legislature expressly provided under the Societies Act for the curtailment of certain rights of the officers of societies facing liquidation proceedings. It must be remembered that at the same time it also declared that such Officers cease to be the officers of the Society only when a final order of winding up is passed. In a given case if the Registrar after an appropriate enquiry following the interim order of winding decides not to finally wind up the society, the Officers of the society would once again be entitled to exercise all the rights associated with it and perform all the functions attached to the office. Therefore, merely because the officers of Credit Society facing liquidation are disabled from enforcing certain rights attached to the office or perform certain obligations appended to the office, it does not necessarily follow that they are disabled from performing every function entrusted by law to such office.
26. We now deal with the submission that the society ceased to be a Credit Society in view of the pendency of the winding up proceedings.
27. We are of the opinion that the phrase "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the Markets Act is only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the managing committee of credit Societies to participate in the election to the market committee. The obligation, if any, to "dispense agricultural credit" arises under the bye- laws of the society subject of course to the availability of funds and various other factors. We are of the opinion that the above quoted words are only descriptive of the class of society the members of whose managing committees are entitled to participate in the election of the market committee. It is obvious from the language of the sub-section that there can exist more than one class of co- operative societies functioning under the Act. The very fact that the legislature took care to expressly exclude members of the managing committees of two classes of societies i.e. "Co-operative Marketing Societies" and "Milk Produce Co-operative Societies", definitely indicates that there can exist more than one class of societies - apart from the common knowledge.
28. Section 4 of the Societies Act contemplates that societies could be registered for different purposes. They are - "the promotion of the economic interests of its members or general welfare of its members or economic interest of the general welfare of the public".
29. Since Section 11(1)(i) of the Markets Act is establishing an electoral Page 42 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 college for the election of a certain class (agriculturists) of members of the market committees, the legislature thought it fit that only the members of the managing committees of those co-operative societies which have a nexus to agricultural activity should be members of the electoral college.
30. The submission of the appellant that Section 11(1)(i) imposes a legal obligation that the members of the managing committees of only those co- operative societies which are currently dispensing agricultural credit in the market area are entitled to participate in the electoral process of the concerned market committee (in other words, the phrase "co-operative societies dispensing agricultural credit" is indicative of the current activity of the societies but not the purpose for which the society is established), would lead to various difficult questions:
30.1 What is the period to which the currency of such activity would relate to? Whether the activity should be current when the voters' list is prepared or the activity should continue even on the date of voting?
30.2 Whether credit societies which do not dispense agricultural credit for a certain period of time because of either paucity of funds or borrowers are debarred from "dispensing agricultural credit" because of some legal prohibition or any other reason operating temporarily cease to be societies whose objective is to provide agricultural credit?
31. Credit Societies against which there is an 'interim order' of winding up are temporarily debarred from dispensing agricultural credit, by virtue of the operation of law. The embargo imposed by such interim order may or may not fructify into a final order of winding up. (We have already discussed this aspect of the matter at para 21 supra). On the face of such possibility of the society resuming its activity of "dispensing agricultural credit" - to debar its managing committee members from discharging their statutory obligation under the Markets Act would be productive of public mischief. Such an interpretation of the statute must be avoided."
48 Thus, the ratio of the aforesaid decision of the Supreme Court, as discernible, is that the words "co-operative societies dispensing agricultural credit in the market area" in Section 11(1)(i) of the Markets Act are only descriptive of the purpose for which the societies are established. Section 11(1)(i) cannot be construed as imposing an incessant obligation of "dispensing agricultural credit" in order to enable the members of the Managing Committee of credit societies to Page 43 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 participate in the election to the Market Committee.
49 The ratio of the aforesaid decision of the Supreme Court needs to be looked into and understood very closely. There was no dispute before the Supreme Court as regards the fact that the society in question, at one point of time, was dispensing agricultural credit. It is only on account of the winding up of the society that the question arose whether the members of the Managing Committee against whom liquidation proceedings were pending were entitled to participate in the election of the Market Committee or not. The Supreme Court took the view that the activity of the society i.e. dispensing credit facility need not be continued and on account of the proceedings like liquidation, if such activity has come to a standstill, the same by itself would not disentitle the members of the Managing Committee to participate in the election of the Market Committee. This is the only way the ratio of the aforesaid judgement should be understood or construed.
50 The issue in the present case is altogether different. The issue is on the date of the declaration of the election by the authorized officer whether the society in question was dispensing credit facility in its true sense or not? The respondent No.5 - society might have been registered on that date. But, if it had not at all started its activity of dispensing credit facility, then could be said that it was fulfilling the eligibility criteria to include the names of the members of the Managing Committee in the voters list.
TWO TRANSACTIONS OF DISPENSING CREDIT FACILITY; 51 The aforesaid now takes us to consider the question whether the respondent No.5 - society could be said to be dispensing credit facility on the date of the declaration of the election.Page 44 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 52 We are of the view that the transactions shown by the
respondents to make good their case that on the date of the preparation of the voters list, the three Societies named above were, in fact, dispensing credit facility is nothing, but a fraud on the electoral process.
All the transactions on paper could be termed as sham and farcical. The first transaction on the face of it is a sham transaction and the same has been fairly conceded by the learned Government Pleader appearing for the State. So far as the first transaction is concerned, it appears that the President of the Society applied for loan which came to be sanctioned by the Managing Committee on 25th February 2019. The President, thereafter, deposited the requisite amount with the Society on 28 th February 2019. At this stage, it may be apposite to note that the Society had zero balance as on the date of sanction of the loan. It further appears that the Society, thereafter, proceeded to purchase the fertilizer and loaned it to the President on the same day i.e. on 28 th February 2019. This transaction, by any stretch of imagination, cannot be said to be a genuine transaction of dispensing of credit facility and is clearly a sham transaction created only for the purpose of getting qualified to get the names of the members of the Managing Committee included in the voters' list.
53 So far as the second transaction is concerned, it is an admitted fact that the actual dispensation of credit took place on 7th June 2019 i.e. well beyond the cut-off / relevant date of declaration of election on 24 th May 2019 and also beyond the date of publication of the preliminary list of voters on 6th June 2019.
54 We are at one with Mr. Joshi, the learned Senior Counsel that going by the rule of literal construction, as discussed above, the plain, Page 45 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 natural and grammatical meaning of the words "dispensing agricultural credit" lead to only one conclusion that the Society ought to have been dispensing agricultural credit before the cut-off / relevant date. Mr. Joshi is right in his submissions that if the interpretation of the respondents is to be accepted, then the same would imply adding words to the section like "engage in" or "activity of" or "for dispensing", which is impermissible in law. Once the condition is "dispensing", it cannot be read as "ready to dispense" or "intend to dispense".
55 In the aforesaid context, we have an interesting decision of the Supreme Court on hand. We are referring to the decision in the case of P. Venkataswami and others vs. D. S. Ramireddy and others reported in AIR 1976 SC 1066. In the case before the Supreme Court, the appeal by special leave arose out of a proceeding started suo motu by the Additional Assistant Settlement Officer, Chittoor under Section 15(1) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. Section 15(1) reads:
"Determination of lands in which the land-holder is entitled to Ryotwari Patta under foregoing provisions:
(1) The Settlement Officer shall examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta under Sections 12, 13 or 14, as the case may be, and decide in respect of which lands the claim should be allowed."
The first respondent who purchased the land in question on May 12, 1950 claimed a ryotwari patta in respect of the same under Section 13(b)(iii) which is in these terms:
"13. Lands in inam estate in which land-holder is entitled to ryotwari patta: In the case of an inam estate, the land-holder shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of-Page 46 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
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(a) x x x
(b) (i) x x
(ii) x x
(iii) all lands (not being (i) lanka lands, (ii) lands of the description specified in Section 3, Clause (16), Sub-clauses (a), (b) and (c) of the Estates Land Act, or (iii) forest lands) which have been abandoned or relinquished by a ryot, or which have never been in the occupation of a ryot, provided that the land-holder has cultivated such lands himself, by his own servants or hired labour, with his own or hired stock, in the ordinary course of husbandry, from the 1st day of July 1945 and has been in direct and continuous possession of such lands from that date.
Explanation: 'cultivate' in this clause includes the planting and rearing of topes, gardens and orchards, but does not include the rearing of topes of spontaneous growth."
It is clear that the land-holder in order to be entitled to a ryotwari patta under Section 13(b)(iii) must prove that he has cultivated the land himself or by his own servants or hired labour from July 1, 1945 and has been in direct and continuous possession of the land from that date. Before the suo motu enquiry under Section 15(1) had commenced, a ryotwari patta in respect of the same land had been granted jointly in the names of the first respondent and the two appellants. This patta was however cancelled as it had been issued without enquiry and a fresh enquiry under Section 15(1) was started. The appellants preferred objections to the claim put forward by the first respondent stating that they were in possession of the land and had been cultivating it for the last 30 years. To refute the appellants' claim of possession, the first respondent filed a certified copy of the judgment in the Original Suit No. 245 of 1959 of the District Munsif's Court, Madanapalle, which was instituted by the first respondent for declaration of his title to the land in dispute and for permanent injunction restraining the appellants, who were impleaded as defendants, from interfering with his peaceful Page 47 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 possession. This suit was decreed and the defendants were restrained from interfering with the first respondent's possession of the land. The first respondent also filed the certified copy of the decree (Ex. P-3) passed by the Subordinate Judge, Chittoor, affirming in appeal the decision of the District Munsif. The Assistant Settlement Officer disregarded Exhibits P-2 and P-3 on the view that the appellants were not parties to the suit.
The Assistant Settlement Officer also found that the first respondent had failed to prove personal and continuous cultivation from July 1, 1945, his own case being that he had reclaimed the land after his purchase on May 12, 1950. The Assistant Settlement Officer therefore rejected the first respondent's claim and held that the land would be treated as "assessed waste".
From the order of the Assistant Settlement Officer the first respondent took an appeal to the Estates Abolition Tribunal, Chittoor. The appellants before the Supreme Court also preferred an appeal to the Tribunal questioning the finding that the land should be treated as assessed waste. The Tribunal dismissed the appeal of the first respondent, affirming the decision of the Assistant Settlement Officer that the first respondent had failed to prove that he had been cultivating the land since 1-7-1945, and allowed the other appeal reversing the decision that the land is to be treated as assessed waste, on the view that the fact that a roytwari patta had once been issued in respect of the land indicated that the land was cultivable.
The first respondent moved the High Court under Article 227 of the Constitution challenging the orders passed by the Tribunal on the two appeals. The Civil Revision Petition No. 15 of 1966 directed against Page 48 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 the order rejecting the first respondent's claim for a ryotwari patta and the Civil Revision No. 807 of 1966 against the order allowing the appeal of the appellants were disposed of by the High Court by a common judgment on 21st August 1967. The High Court agreed with the Tribunal that the fact that a ryotwari patta had previously been issued in respect of the land and the further fact that admittedly since 1950 the land was being cultivated, the only dispute being which of the parties did it, was clear indication that the land was cultivable and as such it could not be treated as assessed waste. However, the High Court, relying on a Full Bench decision of the Madras High Court in Pariannan v. Amman Kovil held that the test employed by the Tribunal that the land holder should prove that he had been personally cultivating the land was not the proper test and that it was sufficient if he was able to show that there was an intention to cultivate or resume the land for cultivation. On these findings the High Court set aside the orders of the Tribunal and directed the Tribunal to dispose of the appeals afresh in the light of the observations made in its judgment.
56 It was argued before the Supreme Court by both the parties that the land was cultivable and could not have been treated as assessed waste.
57 The question that fell for the determination of the Supreme Court was whether the High Court was right in holding that the requirement of Section 13(b)(iii) of the Act could be said to be satisfied when the land holder was able to show that there was an intention to cultivate or resume the land for cultivation. In other words, the Supreme Court interpreted the words "has cultivated" with a view to determine whether the same could be said to imply a mere intention to cultivate. The Supreme Court, ultimately, held as under:
Page 49 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 "5. The only question that arises for decision is whether the High Court was right in holding that the requirement of Section 13(b)(iii) of the Act is satisfied if the land-holder is able to show that there was an intention to cultivate or resume the land for cultivation. The High Court directed the Tribunal to reconsider the question from this aspect. For the view it had taken, the High Court relied on the Full Bench decision of the Madras High Court in Periannan v. A.S. Amman Kovil supra). The Madras Full Bench decision on this point is based on a construction of Section 3(10) of the Madras Estates Land Act, 1908. This Court in Chidambaram Chettiar v. Santhanaramaswami Odayar construing the same Section 3(10) which defines private land, held at page 1011 of AIR 1968 SC:
It seems to us that the definition read as a whole indicates clearly that the ordinary test for 'private land' is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it is not the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short term leases.
Having thus stated the law, this Court dismissed the appeal with the observation that "in the present case there is no proof that the lands were ever directly cultivated by the landholder". Thus even on the provisions of the Madras Estates Land Act, 1908 considered by the Madras Full Bench, this Court appears to have taken a different view. Apart from this, the provisions we are concerned with, namely Section 13(b)(iii) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, requires as a condition "that the landholder has cultivated such lands himself, by his own servants or hired labour...". We are unable to agree that the words "has cultivated" could imply a mere intention to cultivate. In our opinion, in view of the clear terms of Section 13(b)(iii) there is no warrant for a reconsideration of the question by the Tribunal."
58 In the case on hand, the intention of the legislature appears to be very clear. Every Market Committee shall consist of 10 agriculturists whose names are enlisted in the voters list published by the Election Commission of India for such market area and shall be elected by the members of the Managing Committee of the primary agricultural credit Page 50 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 cooperative societies dispensing agricultural credit in the market area.
We once again place a lot of emphasis on the phrase "dispensing agricultural credit in the market area". The legislature has used the present continuous tense by using the suffix "ing". This indicates an activity which has started and continues on the cut-off / relevant date and in the future. As held by the Supreme Court in Deepak Agarwal (supra), the present perfect continuous tense is used for a position which began at sometime in the past and is still continuing. The use of the present progressive tense is to denote something which is taking place at present. We find it extremely difficult to subscribe to the view of the learned Single Judge that the dispensation likely to occur in future would meet with the eligibility criteria, as prescribed under Section 11 of the Act, 1963.
59 One another relevant aspect pointed out by Mr. Joshi, the learned Senior Counsel appearing for the appellants also deserve to be looked into. Mr. Joshi pointed out that the Authorized Officer, in clear terms, has recorded in its impugned order that the respondent No.5 - Society has not dispensed credit to its members. However, the Authorised Officer considered the date on which the loan came to be sanctioned by the Surat District Bank and relying on such date, thought fit to include the respondent No.5 - Society in the voters list. What we are trying to drive at is that the date of sanctioning of loan by the Surat District Bank is not relevant. What is required is that the Society must have dispensed agricultural credit to its members. In other words, what is required to be seen is whether the Society had dispensed agricultural credit to its members before the election was declared? The answer is in the negative even according to the respondents. Any provision of law prescribing an eligibility criteria and more particularly, an electoral provision should be construed and interpreted strictly.
Page 51 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 60 Thus, having regard to the aforesaid discussion, we have no
hesitation in arriving at the conclusion that the impugned order passed by the Authorised Officer overruling the objections raised by the appellants could be termed as without jurisdiction and per se illegal.
ALTERNATIVE REMEDY PROVIDED BY RULE 28 OF THE RULES, 1965:
61 In the present litigation, it was vociferously argued before us that as the learned Single Judge substantially rejected the writ application on the ground of alternative remedy available as provided under Rule 28 of the Rules, 1965, the present appeals may not be entertained.
62 Rule 28 of the rules, 1965 reads thus:
"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
(b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member."Page 52 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 63 As early as in 1986, in the Patan Proper Fal and Shak Bhaji Kharid
Vechan Sahkari Mandli Ltd. v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Sahkari Mandli Ltd. [1986 GLH 430], a Division Bench of this Court pronounced as under:
"28. ..........In that view of the scheme of the Act, we are of the opinion that the preparation of electoral roll is an integral part of the process of election. If that is so, the question as to whether the roll should be modified at the instance of persons claiming to be voters or at the instance of persons objecting to the inclusion of the names of some persons in the voters' list is a matter relating to election, and having regard to the fact that it is a right conferred under the Act for which a special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finality in the matters pertaining to various stages of election and therefore, having regard to the recognized principle in the matter of public importance that election should be concluded as early as possible according to the time schedule and all controversial matters as well as disputes arising out of the election including the right to vote or stand as a candidate should be postponed till after the elections are over so as to avoid impediment or hindrance in the election process, does not arise (sic). In that view of the matter, therefore, we are of the opinion that this Court should not exercise the jurisdiction under Art 226 of the Constitution by interfering at this stage with the election process. In the view which we have taken on this first question, it is not necessary to go into the second question of each of these appeals."
64 In 1998, a learned Single Judge of this Court adopted the following view in the Prahladbhai Shivram Patel and Others v. Director of Agriculture Marketing and Rural Finance and Others [1998(1) GLH 95]:
"Now, if the above principles laid down by the Division Bench of this Court are considered, then it would be quite clear that in the first principle, it has been clearly laid down that though the Court should be slow in exercising jurisdiction under Article 226 and 227 of the Constitution, if the impugned order is ultra vires order or is a nullity as being ex facie without jurisdiction, the question of exhausting alternative remedy could hardly arise. The same view is also expressed by the Division Bench of this Court in the case of Mahesana District Co-Page 53 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 operative Sales and Purchase Union Ltd. vs. State of Gujarat, 1988(2) GLR, 1060."
65 In the same year, a Division Bench of this Court in the case of Mehsana District Co-op. Purchase and Sales Union Ltd. v. Dadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Others [1998 (1) GLH 170] respectively partly favoured the views taken by the learned Single Judge and held that the alternative remedy provided by Rule 28 was, in the facts of the cases before the Court, illusory and ambiguous. The authorized officer had illegally deleted the names of the petitioners from the final voters' list without giving an opportunity to explain as to why their names should not be deleted. When no remedy is provided and the impugned act was illegal and void, the Court should not be hesitant to exercise the extraordinary power vested in it under Article 226 of the Constitution. The Court, however, cautioned that, in the matter of election, the Court should exercise the discretion with great caution and circumspection and the election process already initiated should not be altered so lightly to the disadvantage of so many other persons.
66 In 2004, in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance Gandhinagar and Others [2004 (3) GLR 2718], a Division Bench of this Court took the view that, in view of the efficacious remedy provided in Rule 28 and since election process was at a very advance stage, interference with the election process was not warranted. It was opined that entertaining the petitions at that stage would, in view of the procedure involved in hearing of the petitions and the proximity of the voting dates, would have the effect of interrupting, obstructing or protracting the election proceedings. The nature of issues arising from the decisions of the election officers on the Page 54 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 acceptance or rejection of nomination papers would require enquiry into the questions of fact. Therefore, following the ratio in Election Commission of India v. Ashok Kumar and Others [AIR 2000 SC 2979], the Court opined that judicial remedy was required to be postponed till after completion of the proceeding in election.
67 In the year 2005, another Division Bench, in view of sharp conflict in different judgments, opined that the matters needed hearing by a Larger Bench to settle all the disputes once and for all. An order therefor was made on 17.3.2005 in the Special Civil Application Nos.2489 to 2496 of 2005. The matters so referred were decided by a Full Bench of this Court in Daheda Group Seva Sahkari Mandli Limited v. R. D. Rohit, Authorized Officer & Co.operative Officer (Marketing) [2006 (1) GCD 211 (FB)]. After extensive reference to the relevant provisions and the precedents, the Full Bench declared the legal position in the following terms:
"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 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 of right that he is entitled to invoke the jurisdiction of this court.
"31. .... .... ....
"31.1. .... .... ....
"32. We have gone through the aforesaid decisions closely. There Page 55 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 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 (sic) 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. ..... ..... ....
"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." (underlines added) 68 In Shrutbandhu H. Popat v. State of Gujarat and Others [2007 (3) GLR 1942], the Court found that the resolution of the license sub-
committee for granting as many as 293 licenses was not only illegal but also a fraud on the election process. The Court found the case to be falling in the category of extraordinary situations wherein writ jurisdiction had to be exercised for the welfare of the constituency of the traders and for strengthening the democracy. The Court also made the following pertinent observations:
Page 56 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 "12. While examining any challenge to the voters' list, the Election Tribunal will have the jurisdiction to examine only those questions which the election officer had the authority to examine. The next question, therefore, would be whether the election officer has any jurisdiction or authority to go behind the licences granted by the APMC or its licence sub-committee. An analysis of the scheme of the relevant provisions of the APMC Act and the Rules does indicate that the Election Officer or the Election Tribunal are not vested with any jurisdiction to go behind the general licences for traders issued by the APMC or its authorised sub-committee and that the matters pertaining to grant, renewal, refusal, suspension and cancellation of licence are governed exclusively by the provisions of Section 27 of the Act read with Rule 56. ........................... Hence, if APMC grants licence on the eve of elections, very little time will be available to any person intending to challenge the grant of licence on the ground that the licence has been obtained through a wilful misrepresentation or fraud or that the licensee has been convicted of any offence under the Act or even in case of renewal of licence that the licensee has committed a breach of any terms and conditions or restrictions imposed by the licence........................." (underlines added) After the above observations and reference to the ratio of above Full Bench decision, the Court distinguished the Full Bench decision on facts and taking support of the Supreme Court decision in Pundlik v. State of Maharashtra decided subsequently and reported at 2005 (7) SCC 181, allowed the petitions so as to set aside the resolution for granting general license to 293 traders and injuncted them from participating in the election to APMC, Kalavad, with other detailed directions regarding the conduct of the election.
69 In Ukabhai Jivabhai Kanjaria v. State of Gujarat and Others [2007 (2) GLH 242], it was contended before the Division Bench that on rejection of three nomination forms, not a single candidate remained in the field and there would be no representation for a particular constituency. The Court, after reference to the Election Commission of India v. Ashok Kumar (supra), adopted the reasoning as under:
Page 57 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 "10. It is clear from the above decision that judicial intervention 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. It is also held that where the statutory authority has acted in breach of law, 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. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings."
70 Again in Bharatbhai Dhulabhai Patel & Another v. Director and Others [2007 (2) GLH 719], a Division Bench intervened during the process of election on the basis that general licenses to the respondent cooperative societies were issued after the date of declaration of election. The Court observed:
"9. In our judgment dated 16.7.2007 in the matter of elections to APMC, Junagadh, we have indicated the underlying rationale for laying down the principle that the registration of the co-operative society and the license must have been obtained prior to the date of declaration of elections. Looking to the provisions of Section 26 of the APMC Act providing for duties of Market Committee, it is obvious that the voters in all the three constituencies must have had some experience of operating within the market area of APMC, either dispensing agricultural credit, trading/marketing and, therefore, registration under the Co-operative Societies Act / license from the APMC must have been obtained before the date of declaration of elections, only then it can be said that by the relevant date (that is the date on which the names are to be communicated by the APMC/co-operative societies to the Authorized Officer under sub-rule (1) of Rule 7) such persons would be having some experience in the concerned area so as to enable them to elect the members of the APMC for the purpose of discharging duties referred to in Section 26 of the Act."
71 In Rajendra Dalichand Koticha and Others v. State of Gujarat and Others [2007 (2) GLR 1642], the Division Bench was satisfied, in the facts and circumstances of the case, that intervention of the Court was Page 58 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 necessary for the welfare of the constituency and impugned decision of the election officer rejecting nomination forms was set aside. The election officer was directed to publish revised final list of candidates including the petitioners for the constituency of traders holding general licences. The polling was, however, directed to be held as scheduled.
72 In Kalubhai Ranabhai Akabari (supra), the election to APMC, Junagadh, was announced on 5th April 2007 and scheduled date of polling was 17th July 2007. In the judgment declared on 16th July 2007, a Division Bench of this Court entertained the controversy regarding eligibility of members of the Managing Committee of three Cooperative Societies to vote at an election. The Court concluded as under:
"35. To sum up then, our conclusions are as under :-
I. "The relevant date" for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in sub-rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date -
(i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates.
Page 59 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 III. To be eligible for inclusion in the list of voters for elections to APMC, -
(i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.
(iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections.
IV. Challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.
VI. The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions."
73 In the Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. And Another v. State of Gujarat and Others [2009 (3) GLH 380] while the election programme was already declared on 24.7.2009, the Court took notice of the fact that applications of the petitioners for renewal of their licenses were made on 13.2.2009 and taken up for consideration by the APMC on 11.4.2009, long prior to the declaration of the election programme. While the APMC had rejected the application, by the Page 60 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 appellate order, the Director had directed the APMC to grant renewal of traders license for the years 2008-09 and 2009-10. Therefore, the facts of that case were distinguished from the facts in Shrutbandhu H. Popat's case (supra) and the petition was allowed in terms of the interim order dated 13.08.2009 directing inclusion of the petitioner's name in the provisional voters list to be published on 16.08.2009.
74 All the aforesaid judgements of this Court came to be considered by a Division Bench of this Court in the case of Patel Talshabhai Purabhai and others vs. Authorised Officer and Auditor Grade - I and others in the Special Civil Application No.2302 of 2011 and allied petitions. We quote the relevant observations:
"10. Before embarking upon weighing rival contentions, it is necessary to keep in view and refer to the following pertinent legal dicta:
(a) Constitution Bench of the Supreme Court in P.Ramachandra Rao v.
State of Karnataka [(2002) 4 SCC 578] held:
"28. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained is that these decisions, though two- or three-Judge Bench decisions, run counter to that extent to the dictum of the Constitution Bench in A.R.Antulay case and, therefore, cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well-settled principle of precedents which has crystallized into a rule of law is that a bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. .....
29. .......In conclusion we hold:
(1) .... .... ....
(2) ... .... ....
(3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula.
Their applicability would depend on the fact situation of each Page 61 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 case. It is difficult to foresee all situations and no generalization can be made."
(b) In the matter of challenge to election of Bar Council of Delhi, three- Judge Bench of the Apex Court in Bar Council of Delhi and others v. Surjeet Singh [(1980) 4 SCC 211] , observed:
"18. .........At page 1704, column 1, Krishna Iyer J., speaking for the Court said:-
"One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms."
But he added:- (SCC 496, para 3.):
"While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition."
Finally the view expressed in K. K. Shrivastava's case is :-
"There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise."
We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at Page 62 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 all". (underlines added)
(c) In a recent decision in Official Liquidator v. Dayanand and others [(2008) 10 SCC 1], the Apex Court has made following pertinent observations:
"84. In State of Bihar v. Kalika Kuer [(2003) 5 SCC 448], the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.
"91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are Page 63 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 required to lay down the law.
"92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in UP State Electricity Board vs. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial for as nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
(d) A Division Bench of this Court (Coram: G.S.Singhvi, J. (as His Lordship then was) and P.B.Majmudar, J.) in Thakore Shanabhai Gedalbhai v. State Election Commission [2005 (3) GLH 686 ], has held, in the context of Article 243-0 of the Constitution:
"31. On the basis of above discussion, we hold that :
(I) The bar contained in Article 243-O of the Constitution against the court's interference in the electoral matters is absolute and a petition filed under Article 226 of the Constitution questioning the election to a Panchayat cannot be entertained except after determination of the dispute in an Election Petition filed in accordance with the provisions of the law enacted by the State Legislature.
(II) A petition filed under Article 226 of the Constitution challenging the illegal or improper rejection or acceptance of nomination paper for an election to the Panchayat cannot be entertained by invoking conclusion No.3 of paragraph 32 of Supreme Court's judgment in Ashok Kumar's case (supra) because any direction by the High Court in such matters would impede the election process and delay finalization of the election.
(III) A petition filed under Article 226 of the Constitution involving challenge to the orders passed or action taken after the commencement of election process cannot be entertained except where direction is sought for expediting the process of election.
(IV) An illegal or improper rejection of nomination for election to the Panchayat can be challenged by filing an Election Petition under Section 31 of the Panchayats Act.
10.1 The APMCs having become socially, economically and politically important units of local authorities and due to intense political rivalries Page 64 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 raging therein, the elections thereof have become rich sources of litigation. The magnitude of the problem is indirectly indicated by this Court in Kalubhai Ranabhai Akabari (supra) in the following terms:
"26. We have been finding that in spite of the aforesaid observations made by this Court time and again, a number of petitions have been coming up wherein challenge is made to the grant of general licenses to traders or grant of registration to co- operative societies even after commencement of the election process upon declaration of the date of election by the Director of Agricultural Marketing & Rural Finance, Gujarat State. There are 182 Agricultural Produce Market Committees in the State and each Market Committee has about a hundred voters or more in each category. As far as the co-operative societies falling under clause (i) and clause (iii) are concerned, it is not that one co-operative society gets one vote, but each member of its managing committee gets an individual vote meaning thereby,
11 to 15 members of the managing committee of one co- operative society get included in the list of voters. In the matter of elections to APMC, Junagadh itself we have found that controversies have been raised about the eligibility or otherwise of members of the managing committee of as many as eight co- operative societies."
11. Going strictly by the rules of precedents, stare decisis and judicial discipline, the legal issue of maintainability of the petitions is squarely covered by clear propositions laid down by Full Bench of this Court in Daheda Group Seva Sahkari Mandli Ltd. (supra). Although the power and discretion vested Court by virtue of Article 226 of the Constitution in the High could not be taken away by any judgment, clear guideline is provided for the exercise thereof specifically in the cases of exclusion or inclusion of names in the voters' list of an APMC. It is laid down in no uncertain terms by the Full Bench that exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstance warranting interference by this Court under Article 226 of the Constitution and such questions are to be decided in an election petition under Rule 28 of the Rules. It is also categorically laid down that the authorities under Rule 28 have wide powers to cancel, confirm and amend the election and to direct holding of fresh election and hence the remedy under Rule 28 is an efficacious remedy. Therefore, it is practically impossible and not open for this Court to take a view different from the aforesaid propositions of law."
75 We are of the view having regard to the facts of the present case that we should not decline to entertain the present appeals only on the Page 65 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 ground of alternative remedy as provided in Rule 28 of the Rules, 1965. We go by the dictum of the Full Bench as laid in the case of Daheda Group Seva Sahkari Mandli Ltd (supra), wherein the Full Bench held that although a petition under Article 226 of the Constitution of India is maintainable despite availability of an alternative remedy, yet the powers are to be exercised in the case of extraordinary or special circumstances such as where the order is ultra vires or nullity and / or ex facie without jurisdiction.
76 In the present litigation, the issue is not just about exclusion or inclusion of names in the voters list. The central question involved in the present litigation is with regard to the interpretation of the phrase "primary agricultural credit cooperative societies dispensing agricultural credit in the market area". This phrase contained in Section 11 of the Act, 1963 goes to the root of the matter while deciding the rights of the parties.
77 Thus, where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, ordinarily, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute, it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right; instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art.226 of the Constitution by- passing the machinery designated by the Act for determination of the election dispute. Ordinarily, the remedy provided by the statute must be followed before the authority designated therein. But there may be cases like the one on hand where exceptional or extraordinary circumstances Page 66 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 may exist to justify by-passing the alternative remedies.
78 On the issue of alternative remedy being available to the appellants, the recent pronouncement of the Supreme Court in the case of Radha Krishan Industries vs. State of Himachal Pradesh and others reported in (2021) 6 SCC 771 clinches the issue. In the said decision of the Supreme Court, the following observations are important:
24. The High Court has dealt with the maintainability of the petition under Article 226 of the Constitution. Relying on the decision of this Court in Assistant Commissioner (CT) LTU, Kakinada and others v Glaxo Smith Kline Consumer Health Care Limited [AIR 2020 SC 2819], the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. However, certain exceptions to this "rule of alternate remedy" include where, the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure; or has resorted to invoke provisions, which are repealed; or where an order has been passed in violation of the principles of natural justice. Applying this formulation, the High Court noted that the appellant has an alternate remedy available under the GST Act and thus, the petition was not maintainable.
25 In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corporation v. Registrar of Trademarks, Mumbai [(1998) 8 SCC 1] ("Whirlpool"), a two judge Bench of this Court after reviewing the case law on this point, noted:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed Page 67 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." (emphasis supplied) 26 Following the dictum of this Court in Whirlpool (supra), in Harbanslal Sahnia v Indian Oil Corpn. Ltd. [(2003) 2 SCC 107], this court noted that:
"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]. The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
(emphasis supplied) 27 The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;Page 68 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022
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(ii) The High Court has the discretion not to entertain a writ petition.
One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.
28 These principles have been consistently upheld by this Court in Seth Chand Ratan v Pandit Durga Prasad [(2003) 5 SCC 399], Babubhai Muljibhai Patel v Nandlal Khodidas Barot [(1974) 2 SCC 706] and Rajasthan SEB v. Union of India [(2008) 5 SCC 632], among other decisions."
79 Thus, in a case where the statutory authority has not acted in accordance with the provisions of law or acted in defiance of the fundamental principles of judicial procedure, or has resorted to invoke provisions which are repealed, or where an order has been passed in violation of the principles of natural justice, then, in such circumstances, the Writ Court should not hesitate to entertain the writ application despite the fact that the aggrieved person has an efficacious alternative Page 69 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 remedy available in law. In the case on hand, as discussed above, the authorized officer has completely misread Section 11 of the Act, 1963, and the entire impugned order is based on such misinterpretation of Section 11 of the Act, 1963.
80 We also take notice of one very peculiar feature as reflected in the impugned judgement of the learned Single Judge. We take notice of the fact that the learned Single Judge has gone into the merits of the issues raised by the parties and has also recorded specific findings as regards all such issues. Having entertained the writ application on merits, the learned Single Judge, later, could not have taken recourse of Rule 28 of the Rules, 1965 and said that there is an alternative remedy available to the appellants herein.
81 In the overall view of the matter, we are convinced with the case put up by the appellants (original writ applicants).
82 In the result, both the appeals succeed and are hereby allowed. The impugned selfsame judgement passed by the learned Single Judge dated 25th November 2019 is hereby set aside. The Special Civil Application No.11822 of 2019 and Special Civil Application No.11824 of 2019 are hereby allowed. The impugned order dated 4 th July 2019 passed by the respondent No.4 - Authorized Officer is hereby quashed and set aside. It is hereby declared that (1) Khodada Vividh Karyakari Seva Sahakari Mandali Limited, (2) Juni Bhilbhavali Seva Sahakari Mandali Limited and (3) Juni Bhilbhavali Seva Sahakari Mandali Limited could not have been included in the voters list as on the date of the declaration of the election, the three Societies could not be said to be dispensing agricultural credit in the market area. In other words, all the three Societies were not fulfilling the eligibility criteria, as prescribed in Page 70 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 Section 11 of the Act for being included in the voters list in the election of the A.P.M.C., Nizar, District : Tapi.
83 We take notice of the order dated 2 nd August 2019 passed by a learned Single Judge, which reads thus:
"1. The petitioners of Special Civil Application No.11822 of 2019 and Special Civil Application No.11824 of 2019 have filed the petitions challenging the order of the Authorized Officer continuing the names of the members of the respondent No.5
- Society in the voters list of agriculturist constituency, and the petitioners of Special Civil Application no.11826 of 2019 have challenged the order of Authorized Officer continuing the names of the members of the respondent No.5 - Society in the voters list of Agriculture Cooperative Marketing Societies Constituency.
2. Heard learned Advocates for the parties.
3. Rule, returnable on 27.08.2019. Learned AGP Ms.Jyoti Bhatt waives service of notice of rule for respondent Nos.1-4 and learned Advocate Mr.Archit Jani waives service of notice of rule for respondent No.5, in all the three petitions.
4. Having regard to the facts and circumstances of the case, it is directed that the election process shall go on, however, the votes of the members of the respondent No.5- Society in all the petitions shall be kept in a sealed cover, and rest of the votes shall be counted, and the result of the election shall be declared in accordance with law. The result be put before this Court on 27.08.2019. It is clarified that the result of such election will be subject to the outcome of the present petition.
Direct service is permitted."
84 Thus, the learned Single directed that the election process may go on, however, the votes of the members of the respondent No.5 - Society, in all the petitions, shall be kept in a sealed cover and rest of the votes shall be counted and the result of the election shall be declared in accordance with law. The learned Single Judge further directed that the outcome of the result shall be put before the Court on a particular date Page 71 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 as stated in the order and the result of the election would be subject to the outcome of the writ applications.
85 We are informed by Mr. Dipen Desai, the learned counsel appearing for the appellants and Mr. Archit P. Jani, the learned counsel appearing for the Societies that the election officer thought fit not to declare the result in view of the pendency of the present litigation.
86 In appeals, a Division Bench of this High Court passed the following order:
"Notice. Mr.Utkarsh Sharma, learned AGP waives service of notice on behalf of the respondent nos.1 to 4. Mr.Archit Jani, learned advocate waives service of notice on behalf of the respondent no.5.
During the course of submission, Shri Jani, learned advocate for the respondent no.5 sought time to receive proper instructions. At his request, matters are kept on 9th December 2019.
Interim relief granted vide order dated 2nd August 2019 and extended by learned Single Judge vide further order in the impugned judgment dated 25th November 2019 shall continue till the next date of hearing.
Office is directed to place copy of this order in other matter."
87 Thus, the appeal Court extended the interim relief granted by the learned Single Judge dated 2nd August 2019 referred to above.
88 The picture that emerges as on date is that the result of the election is yet to be declared. We are of the view that it is hightime that the result be declared. As we have taken the view that the respondent No.5 - Society, in both the writ applications, were not eligible in accordance with Section 11 of the Act, 1963, the votes of the members of the Managing Committee of the said Societies shall not be counted for Page 72 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022 C/LPA/1821/2019 JUDGMENT DATED: 22/11/2021 the purpose of declaration of the election. We direct that the result of the election shall now be declared in accordance with law.
89 Consequently, all the connected Civil Applications stand disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) CHANDRESH Page 73 of 73 Downloaded on : Wed Jan 12 03:18:01 IST 2022