C/SCA/7772/2022 ORDER DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7772 of 2022
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JITENDRABHAI ARJANBHAI ROY
Versus
THE DIRECTOR OF AGRICULTURAL MARKETING AND RURAL FINANCE
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
G K VAGHANI(7830) for the Respondent(s) No. 5
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/05/2022
ORAL ORDER
1. The present writ application has been filed under Article 226 of the Constitution of India, seeking the following reliefs:-
"(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned order dated April 09, 2022, Annexure-K, whereby the respondent no.3 has directed to delete the name of the petitioner from the list of voters of the respondent Committee;
(B) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned judgment and Page 1 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 order dated April 09, 2022, Annexure-K, and further direct that the name of the petitioner be included in the list of voters of the Traders Constituency of the respondent Committee and the petitioner be permitted to take part in the election process of the respondent committee;
(C) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. The brief facts giving rise to the present writ application, which read thus:-
2.1 By way of present writ-application the writ-applicant herein has challenged the legality, validity and propriety of the action of the respondent No.3 of passing the order dated 9.4.2022 whereby the name of the writ-applicant has been ordered to be deleted from the preliminary voters' list on the ground that the writ-applicant was not holding general license of trader in the financial year 2020-21 at the instance of the objections filed by the respondent No.5.
2.2 The Director - respondent No.1 in exercise of powers Page 2 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022
conferred upon him declared the election programme dated 2.3.2022 and appointed the respondent No.3 as authorised officer and the respondent No.2 as the election authority. As per the election programme the election has been declared on 8.3.2022. 16.3.2022 came to be fixed for the date on which the Authorized Officer was supposed to be provided with the preliminary voters' list. 21.3.2022 was fixed for publication of the first preliminary voters' list. The objections were to be accepted till 4.4.2022. The revised preliminary list of voters was to be published on 9.4.2022. The objection thereto were invited till 16.4.2022 and publication of the final voters' list came to be fixed on 22.4.2022. The nomination of the same came to be fixed on 21.5.2022. The date of voting is fixed on 2.6.2022 and counting of votes has been fixed on 3.6.2022. Copy of the election programme is duly produced at Annexure- D.
2.3 The preliminary voters' list of the Traders constituency contained 12 names. The name of the writ-applicant appeared at Sr. No.6 in the said list. The said list is produced at Page 3 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 Annexure-E to the petition. The objections came to be raised by the respondent No.5 on 2.4.2022 objecting to the inclusion of the name of the writ-applicant in the said voters' list on the ground that the writ-applicant is not holding GST number, there is no proprietary deed, there is no registration of professional tax, there is no current account in the bank, there is no registration in the Municipality, there is no license of previous year and no income-tax return.
2.4 According to the writ-applicant, the said objections came to be raised against the writ-applicant by one S. B. Patel. In fact, no person named S. B. Patel appears in the list of voters. At a later point of time through an application the respondent No.5 clarified that the objector is actually B. S. Patel and not S. B. Patel. The said explanation is duly produced at Annexure-H, I and J. The respondent No.3 by order dated 9.4.2022 accepted the objections raised by the respondent No.5 and held that in pursuant to the Sub-clause (2) of Sub-section (1) of Section 11 of the Act the writ-applicant is not eligible to be included in the voters' list and, therefore, directed that the Page 4 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 name of the writ-applicant be deleted from the preliminary voters' list of the trader's constituency. The said order dated 9.4.2022 is duly produced at page-46 Annexure-K.
3. Being aggrieved by the impugned order dated 9.4.2022 rejecting the inclusion of the name of the writ-applicant in the preliminary voters' list at the instance of objection raised by the respondent No.5 the writ-applicant is constrained to approach this Court by filing the present writ-application.
4. Mr. B. M. Mangukiya, the learned advocate appearing for the writ-applicant submitted that the name of the writ- applicant came to be deleted on the ground of not having license in previous financial year could not have been proceeded against the writ-applicant since the license of the writ-applicant was not renewed alongwith other traders by the respondent Committee for the reasons best known to it. If the license was not renewed, the writ-applicant could not have been found to be at fault and, therefore, the name of the writ- applicant could not have been ordered to be deleted from the Page 5 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 voters' list.
4.1 Mr. B. M. Mangukiya, the learned advocate submitted that the criteria applied to the writ-applicant was required to be applied to the other five persons against whom the writ- applicant has raised objections. However, if the objections against the writ-applicant was accepted the respondent No.3 could not have directed the name of the other five persons to be continued in the voters' list, in view of the fact that the writ-applicant and other five persons against whom the writ- applicant raised the objections are similarly placed. 4.2 Mr. B. M. Mangukiya, the learned advocate further relied on Section 11 Sub-section (1) Clause (2) of the Act and submitted that the order passed by the respondent authority is against the aforesaid provisions of the Act. 4.3 Mr. B. M. Mangukiya, the learned advocate lastly submitted that the impugned order passed by the respondent No.3 directing to delete the name of the writ-applicant from Page 6 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 the voters' list of the respondent Committee dated 9.4.2022 being illegal, arbitrary and malitious is required to be quashed and set aside.
5. Mr. Ishan Joshi, the learned AGP appearing for the respondent authority submitted that the order passed by the respondent authority is just and proper. The respondent authority took into consideration the submissions advanced by the objector as well as the writ-applicant and held that the trader included at Sr. No.6 in the Traders Voters List in the Preliminary Voters List of the Market Committee - Gariyadhar was not holding the license for the last financial year i.e. 2021-22. Considering Sr.(7) Jitendra Arjanbhai Roy appeared in-person and submitted that the writ-applicant was in possession of the license for the financial year 2008-2009, 2009-2010 and unified license for the year 2021-2022. However, the writ-applicant did not hold the valid license for the years 2010 to 2021 and, therefore, under the provisions of Section 11(1)(2) of the Act, since the writ-applicant did not hold valid license in the trader's constituency for the last Page 7 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 financial year 2020-21 the name of the writ-applicant was rightly held to be rejected from the preliminary voters' list and the objections raised by the respondent No.5 was rightly accepted by the respondent authority.
6. The respondent No.5 objector relied upon the affidavit- in-reply. Paragraphs 4 to 8 reads thus :-
"4. I say and submit that the Resp. No.3 has rightly allowed the objection raised by the Resp. No. 5 and thereby rightly excluded the name of the petitioner from the voters' list. While allowing the objection, theResp. No.3 has considered the fact that the petitioner was not having any license from 2010 to 2021 and as per Section 11(1)(ii) the petitioner was not having license in a previous financial year i.e. 2020/21. I say and submit that the petitioner is not having following details viz. (1) GST number, (2) Proprietor Deed, (3) Profession Tax Registration, (4) Current Bank Account, (5) Registration with Nagar Palika, (6) License of previous year and not done any business and (7) Not shown in the IT return.
I say and submit that I have clarified the aspect of my signature in the objection given on 04.04.2022 by way of Page 8 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 subsequent written explanation.
5. The present petition is not maintainable on the ground of having alternative efficacious remedy under Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965.
6. I say and submit that the group of petitions have been referred to the Hon'ble Larger Bench of this Hon'ble Court, which was decided vide the judgement dated 27.07.2005 rendered in case of Daheda Group Seva Sahakari Mandali Vs. R D Rohit, reported in 2006 1 GCD 211. The Hon'ble Larger Bench was called upon to answer three questions viz. (I) Whether a person whose name is not included in the voters' list can avail provisions of the Rules by filing Election Petition? (II) Whether the remedy under Rule 28 can be termed to be efficacious remedy and (III) Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the voters' list ?.
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7. In para 33 of the said decision, the Larger Bench has answered the reference which is reproduced as under;
33. In view of the above discussion, we answer the Reference as under:
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 Page 10 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.
8. I say and submit that while answering the reference the Hon'ble Larger Bench in para 30 has held as under;
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 or right that he is Page 11 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 entitled to invoke the jurisdiction of this court."
7. Heard Mr. B. M. Mangukiya, the learned advocate appearing for the writ-applicant and Mr. Ishan Joshi, the learned AGP appearing for the respondent - State.
Position of Law :-
8. The law as regards judicial review in the matters pertaining to election is well settled.
(a) The Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorised Officer and Cooperative Officer (Marketing), reported in 2006 (1) GCD 211 held that the inclusion or exclusion of name in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India. Paragraphs 31, 32 and 33 reads thus :-
"31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the Page 12 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India and Ors. (18 GLR 714) where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction.
the question of exhausting alternative remedy would hardly arise.
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".
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C/SCA/7772/2022 ORDER DATED: 05/05/2022 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."
In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.
32. We have gone through the aforesaid decisions closely. There 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 Page 14 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 the power of judicial review, which is a basic structure of the situation 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. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference Page 15 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 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."
(b) The ratio laid down by the Division Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Page 16 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 Mandali Ltd., vs. State of Gujarat and Others, reported in 2017(2) GLR 902, paragraphs 13 to 16 read thus :-
"13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorised officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorised officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorised officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.
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14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all.
14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.
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15. However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of election, it can approach the competent authority by raising an election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the findings recorded either by the learned single Judge or by this Court in this appeal.
16. Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of."
9. In view of the ratio as laid down by the Full Bench of this Court the writ-applicant can avail statutory remedy of filing a Election Petition after the election is concluded under Rule 28 of the Rules, 1965. 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 Page 19 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 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 20 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022
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10. The writ-applicant herein is aggrieved by the impugned order dated 9.4.2022 passed by the respondent No.3. The respondent No.3 by the impugned order dated 9.4.2022 allowed the objections filed by the respondent No.5 by passing the order deleting the name of the writ-applicant from the preliminary voters' list after issuance of notice and hearing both the parties. The Authorised Officer by the impugned order held that the writ-applicant was not in possession of the unified license for the financial year 2020-21. It appears that the respondent No.3 relied on Clause 11(1)(2) of the Act while deciding the said application and deleted the name of the writ- applicant from the preliminary voters' list.
11. The election programme came to be published on 5.3.2022. It can be said that the election is set to be in motion. In view of the ratio as referred to above once the process of election has been set in motion this Court under Article 226 of the Constitution of India would not interfere in the election process. Accordingly this Court is not inclined to interfere with the impugned order passed by the respondent Page 21 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022 C/SCA/7772/2022 ORDER DATED: 05/05/2022 No.3 and relegate the writ-applicant to avail statutory remedy by filing election petition under Rule 28. The rejection of the writ-applicant's name from the voters' list results in exclusion of name of the writ-applicant from the voters' list. In view of the ratio as laid down by the Full Bench of this Court, the writ-applicant can avail the benefit of provisions of Rule 28 of the Rules by filing the election petition. The authority under Rule 28 has wide power to cancel and, confirm and amend the election and also to direct to hold fresh election in case the election is set aside and the remedy under Rule 28 is an efficacious remedy.
12. In view of above, this Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and in view of this Court no extraordinary circumstances warrant interference by this Court.
13. It is clarified that this Court has not opined on the merits of the matter, since this Court has relegated the writ-applicant to avail statutory alternative remedy.
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14. In view of above, the present writ application fails and the same stands dismissed.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 23 of 23 Downloaded on : Fri May 06 20:55:34 IST 2022