Gujarat High Court
Nani Lakhani Seva Sahakari Mandali Ltd vs State Of Gujarat on 19 November, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1312/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1312 of 2018
In SPECIAL CIVIL APPLICATION NO. 15792 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
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NANI LAKHANI SEVA SAHAKARI MANDALI LTD
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 3,4,5
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL WITH MS NISHA
THAKORE AND MR. CHINTAN DAVE, ASST GOVERNMENT PLEADERS
for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 19/11/2018
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. Heard Mr. B.T. Rao, learned advocate appearing for the appellant and Mr. Prakash Jani, learned Additional Advocate General appearing with Ms. Nisha Thakore, learned Assistant Government Pleader and Mr. Chintan Dave, learned Assistant Government Pleader for the respondents.
2. The question involved in this appeal is about exercise of powers under Rule 7(2) of the Gujarat Agriculture Produce Market Rules, 1965 (hereinafter referred to as 'the Rules') by the authorized officer viz-a-viz provisions contained in Rule 8 Page 1 of 6 Downloaded on : Wed Mar 10 00:41:55 IST 2021 C/LPA/1312/2018 ORDER of the Rules about provisional and final publication of list of voters in the context of arguments canvassed by Mr. B.T. Rao, learned advocate appearing on behalf of the appellants that upon an objection raised by respondent no. 5, the authorized officer was not empowered to exercise jurisdiction at the stage of preparation of list of voters for general election provisionally and only at the stage of Rule 8 when provisional and final publication of list of voters, such powers could have been exercised which confer right upon those persons whose names either are not entered in the list of voters and who claim that such names would be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered within 14 days may apply to the authorised officer for an amendment to the list of voters and even Rule 8(1)A further provides that a revised draft list prepared under sub- rule 1 of Rule 8 of voters shall be published by the authorized officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the market yard of the market area, along with a notice stating that if any person wishes to raise any objection against any new name entered in the list, he may apply within 7 days from the date of publication of the notice to the authorized officer for an appropriate amendment in the revised draft list of voters. And finally sub-rule (2) of Rule 8 empowers the authorised official to decide any application received under sub-rule (1) A of Rule 8 to decide such an application and publish final list of voters after making necessary amendment and that the final list shall be prepared at least 30 days before the date fixed for nomination of candidates for the election.
Page 2 of 6 Downloaded on : Wed Mar 10 00:41:55 IST 2021 C/LPA/1312/2018 ORDER3. Therefore, the order impugned is passed by the authorized officer who is only permitted to make such inquiry as may deem fit in the context of Rule 7 sub-rule (1) only and not upon raising any objection by any third party. Besides status of the petitioner is as a primary credit society even if considered in the context of definition clause contained in Section 2(7)A of the Gujarat Cooperative Societies Act, 1961 which defines "Cooperative Credit Structure" and not about the Primary Agriculture Credit Cooperative Societies. In addition to above, time and again an application made by the petitioner society before Jamnagar Central Cooperative Bank for registering themselves as such either were not acceded or decision was not taken. The record was produced before the authorized officer to show that the petitioner is a Primary Agricultural Credit Cooperative Society. Therefore, it is the contention of learned advocate Mr. Rao that the judgement of the learned Single Judge deserves to be interfered with.
4. Mr. Prakash Jani, learned Additional Advocate General appearing on behalf of respondents no. 1 to 4 would at the outset contend that if Rule 7 of the Rules is read as a whole, the authorized officer is empowered to undertake any exercise as deemed fit so as to arrive at an appropriate conclusion about status of the applicant whether to be included in the list of voters for general elections. In the facts of this case, the authorized officer has followed principles of natural justice and called upon the petitioner society to show cause against the decision that may be taken by him and thereafter order is passed. Even otherwise, according to the learned Additional Advocate General remedy is available under Rule 28 of the Page 3 of 6 Downloaded on : Wed Mar 10 00:41:55 IST 2021 C/LPA/1312/2018 ORDER Gujarat Agricultural Produce Market Committee Rules which provides for determination of validity of application and even non inclusion of names of eligible person of society is entitled to raise dispute about validity of application of Agricultural Produce Market Committee. The learned Single Judge has considering the contentions raised by the learned counsel for the petitioner assigned reasons and prima facie as per election programme so declared, the stage of Rule 8 is over and final list of voters is already published. Ordinarily this Court would not exercise the extraordinary jurisdiction under Article 226 of the Constitution of India in a matter where election programme is already made and remedy under the statute is available to decide the validity of election.
5. Considering the submissions as above, prima facie we are of the view that the matter deserves consideration. Hence, Admit. Ms. Nisha Thakore, learned Assistant Government Pleader waives service of notice of admission on behalf of respondents no. 1 to 4.
6. But so far as interim relief is considered, at this stage, we are inclined to accept the submissions made by Mr. B.T. Rao, learned advocate appearing on behalf of the appellant that powers available with authorized officer only at the stage of Rule 8 ought not to have been exercised at the stage of preparation of voters' list for the election and that inquiry that is to be held by such an authorized officer as deemed fit is only for the limited purpose and not at the behest of any third party. The nature of Rules is mandatory and even after determination of eligibility of voters, the stage was not right for an authorized officer to issue the notice and seek any Page 4 of 6 Downloaded on : Wed Mar 10 00:41:55 IST 2021 C/LPA/1312/2018 ORDER clarification particularly when respondent no. 5 preferred an application about lack of eligibility on the part of the petitioner. The record was produced before an authorized officer by the petitioner society about agricultural credit given to farmers and charge created under Section 49 of the Gujarat Cooperative Societies Act.
7. Having gone through the decision of Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Authorized Officer and Cooperative Officer (Marketing) reported in 2006 GCD- 1-211, it is clear that the decision no doubt referred to Rule 28 and further for inclusion or deletion of the name of voters in the voters' list and a person whose name is not included in the voters' list also can avail benefit of provisions of Rule 28 of the Election Rules and was basically in the context of submission made by learned counsel appearing for the concerned society that a person whose name is not included in the voters' list is not entitled to file election petition under Rule 28 of the Rules. Above submissions were rejected. The very judgement also deals with the question of maintainability of petition under Article 226 of the Constitution of India on which we are in agreement with. That ordinarily the High Court would be loathe in exercising the extraordinary jurisdiction under Article 226 & 227 of the Constitution of India when an alternative efficacious remedy was available but that does not preclude the Court exercising powers under Article 226 and 227 of the Constitution of India in interfering with election process when on the face of it, it is apparent that powers with authorized officer in the facts of this case were not available under Rule 7(2) of the Rules so far publication of Page 5 of 6 Downloaded on : Wed Mar 10 00:41:55 IST 2021 C/LPA/1312/2018 ORDER voters' list for election is concerned.
8. Hence, we direct that names of the petitioner be included in the voters' list and be considered as eligible voters subject to fulfillment of their other requirements and votes that may be cast by the petitioner may be kept in a sealed cover. Barring the above, the result of the APMC may be declared as per schedule at page 27. The sealed cover may be produced before this Court on 12.12.2018. Direct service is permitted.
S.O to 12.12.2018.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 6 of 6 Downloaded on : Wed Mar 10 00:41:55 IST 2021