Document Fragment View

Matching Fragments

(i) Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana, (1986 GLH 430).
(ii) Mehsana District Cooperative Sales and Purchase Union Ltd. and Anr. v. State of Gujarat and Ors. (1988 (2) GLR 1060)
(iii) Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718).

4. In view of the conflicting judgments of the Division Benches of this Court wherein some of the Division Benches had taken a view that the inclusion or non-inclusion of the names in the voters' list cannot be made a ground in an election petition, while the other view is that preparation of the voters' list which includes deletion of the names in the voters' list being integral, the questions can be raised in an election petition under rule 28, the Division Bench felt that the matters need hearing by a larger Bench to settle all the disputes once and for all. Hence this group of petitions has been referred to us to answer the following questions:

9. Mr Pushpadatta Vyas, learned Counsel submitted that the jurisdiction of the High Court under Article 226 of the Constitution of India is not restricted and the Court can always interfere in a given case in a petition challenging illegal order.

10. Mr Kamal Trivedi, learned Addl.Advocate General for the respondents, by referring to Rule 6 and 28 of the rules, submitted that a person may be qualified to vote in an election - by virtue of his being a member of the Managing Committee of the particular cooperative society as per section 11(1) of the Act and not by virtue of the inclusion or deletion of his name in the voters' list. In his submission, inclusion or deletion of a name is only consequence of holding a capacity because if a person holds the post, his name should be included and if he ceases to hold the post on the date of election programme, then his name should be deleted, meaning thereby it is the holding of the capacity which is the relevant criterion and not the appearance of name in the voters' list which is only a consequence. He submitted that provisions of rule 28 are even otherwise independent of the provisions of rule 6 and are not, in any manner, controlled by Rule 6 and provide for remedy for resolution of all kind of election disputes. According to MR Trivedi, the aforesaid provisions of rule 6 and rule 28 are self-contained and are to be interpreted without taking any external aid of other legislations like Gujarat Panchayats Act, 1993, Gujarat Co-operative Societies Act, 1961, Gujarat Municipalities Act, 1963 and the Representation of the People Act of 1950 or 1951. Finally he submitted that in view of the two earlier decisions of the Division Benches of this Court in the case of Patan F.& S.S.M. Ltd. v. Pali Shakbhaji S.M. Ltd. (1986 GLH 430) (supra) and Mehsana District Coop. Sales Union v. State of Gujarat (1988 (2) GLR 1060) (supra), another Division Bench of this Court in the case of (Mehsana District Cooperative Purchase & Sales Union v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Ors.(1998 (1) GLH 170) could have referred the matter to the larger Bench instead of taking altogether a contrary view.

25. The Division Bench of this Court in a decision rendered in the case of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718 (supra), rightly held that the decision rendered by the Division Bench in the case of Mehsana Dist.Coop.Purchase and Sales Union Ltd. (supra) (1998 (1) GLH 170, could have referred the matter to the Larger Bench if at all while taking a different view than the view expressed in the earlier two decisions of the Division Benches. The said Division Bench, though referred to those two decisions of the earlier Division Benches but took absolute contrary view than the view expressed by the earlier two decisions. (1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex Court in the case of Atma Ram v. State of Punjab (AIR 1959 SC 519), observed that -

31.1. In the case of Mehsana Dist. Coop. Sales and Purchase Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR 308), the Court have noted the observations made by the Hon'ble Apex Court as under:

"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies".

In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration."