Paragbhai Ramsungbhai Judal vs State Of Gujarat
2021 Latest Caselaw 14328 Guj

     C/SCA/12151/2021                                JUDGMENT DATED: 17/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12151 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        PARAGBHAI RAMSUNGBHAI JUDAL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DIGANT M POPAT(5385) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR DIPAN DESAI(2481) for the Respondent(s) No. 5,6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 17/09/2021
                     ORAL JUDGMENT

1. With the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.

2. Mr Digant Popat, learned advocate appearing for the petitioner prays for deletion of the respondent no.4 from the array of the respondents of the captioned proceedings. Request is acceded to.

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3. Issue rule, returnable forthwith. Mr. Krutik Parikh, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent nos.1, 2 and 3, Mr Dipan Desai, learned advocate waives service of notice of rule on behalf of the respondent nos.5 and 6.

4. By this petition, the petitioner has prayed for quashing and setting aside the order dated 6.8.2021 passed by the respondent no.3 i.e., the Authorised Officer & Co-operation Officer (Markets), Palanpur (hereinafter referred to as the 'authorised officer') whereby, the names of the respondent nos.5 and 6 have been included in the voters' list of the election of Agriculture Produce Market Committee, Palanpur.

5. Tersely stated are the facts: -

5.1 The petitioner, is engaged in the business of purchase and sale of agricultural produce within the market area of the respondent no.4, Agriculture Produce Market Committee, Palanpur (hereinafter referred to as 'APMC, Palanpur') and is holding license of the APMC, Palanpur. The election of APMC, Palanpur was declared by the respondent No.2 on 19.6.2021. As per the schedule of the election programme, the election is scheduled for 18.9.2021. The schedule of the election programme, is annexed along with the captioned petition at Annexure-B. As per the said schedule, the preliminary voters' list was published on 6.7.2021 whereby, the names of the respondent nos.5 and 6 were included in the voters' list of agriculture constituency. The petitioner being aggrieved, submitted his objection dated 20.7.2021 against the inclusion of the respondent nos.5 and 6 and other co-operative societies. The main ground on which the objection was raised by the petitioner was the disapproval of amendment in the bylaws by the District Panchayat Co-operation Committee in meeting dated 24.6.2021.

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5.2 Considering the objection dated 20.7.2021 of the petitioner, the authorised officer passed an order dated 27.7.2021 and the names of the respondent nos.5 and 6 were omitted from the voters' list of the agricultural constituency for the elections of APMC, Palanpur. According to the petitioner, 27.7.2021 was the date of finalising the preliminary voters' list. The respondent nos.5 and 6 thereafter, approached the District Panchayat Committee which, in its meeting dated 2.8.2021, passed a resolution approving the bylaws of the respondent societies. After the bylaws were approved by the District Panchayat Committee, the respondent nos.5 and 6 once again submitted two applications, both dated 3.8.2021 to the authorised officer for inclusion of their names in the voters' list. The petitioner, raised an objection dated 4.8.2021 before the authorised officer, inter alia, pointing out that the resolution which has been passed by the District Panchayat Committee, is without any authority of law inasmuch as, the powers lie with the Registrar and not with the Committee. The authorised officer, after considering the applications, both dated 3.8.2021 and the reply of the petitioner dated 4.8.2021, passed an order dated 6.8.2021, including the names of respondent nos.5 and 6 in the voters' list. The petitioner, is aggrieved by the order dated 6.8.2021 passed by the authorised officer.

6. Mr. Digant Popat, learned advocate appearing for the petitioner, drew the attention of this Court to the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as the 'Rules of 1965'). It is submitted that Rule 8 envisages provisional and final publication of lists of voters. As soon as the list of voters is prepared under Rule 5, the same is required to be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal marketing yard in the market area along with a notice stating that any person whose name is not entered in the list of

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voters and who claims that his name should 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, may, within fourteen days from the date of publication of the notice, apply to the authorised officer for an amendment of the list of voters.

6.1 It is further submitted that so far as sub-rule (1-A) of Rule 8 is concerned, the same deals with publication of revised draft list of voters along with a notice stating that any person who wishes to raise any objection against any new name in the list to apply within seven days from the date of publication. Sub-rule (2) of Rule 8 empowers the authorised officer to decide the applications received under sub-rule (1-A) as regards the preparation and publication of the final list of voters after making amendments as may be necessary in pursuance of the decision given by the authorised officer on the application. It is therefore, submitted that so far as Rule 8(1-A) is concerned, the same is with respect to the objections against the new names entered in the list; however, so far as inclusion and exclusion of the existing names are concerned, the same do not come within the purview of Rule 8(1-A) of the Rules of 1965.

6.2 It is submitted that so far the respondent nos.5 and 6 are concerned, their names were in the voters' list, however, pursuant to the objection raised by the petitioner, the authorised officer has passed the order dated 27.7.2021, deleting the names and once the names of the respondent nos.5 and 6 were deleted, it was not within the competence of the authorised officer to have considered the applications dated 3.8.2021 of the respondent nos.5 and 6 and inducted their names in the voters' list. It is submitted that, item number 4(B) of the schedule, i.e. calling for the objections and suggestions on or before 3.8.2021, was limited to the new names and therefore also, the authorised officer could not have passed the

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order dated 6.8.2021.

6.3 In support of such contention, reliance is placed on the judgment of this Court in the case of Sardar Vallabhbhai Patel vs. State of Gujarat reported in 2013 (0) GLHEL-HC 229436 : 2013 (2) GCD 1339. It is submitted that Rule 8(1-A) of the Rules of 1965, had fallen for consideration before this Court and the issue before this Court was as to whether the officer had any power, competence or jurisdiction to entertain the objections against continuation of the names of the office bearers of the petitioners - Societies in the second publication or not or whether the authorised officer had the limited jurisdiction to entertain the objections against the new names of any voter included for the first time in the second list. It is submitted that while interpreting the Rules 8(1) and 8(1-A) of the Rules of 1965, this Court in paragraph 12 has held and observed that as per Rule 8(1-A), the objections could be raised and entertained against any new names entered in the second list. It has also been observed that the objections against the names of the persons, whose names were already there in the first list and continued in the second list, cannot be filed or entertained after publication of the second list, but if any voter is included in the second list for the first time and whose names did not exist in the first list, the objections could be filed under Rule 8(1-A) and that is the scope and ambit of filing of objections and entertainment thereof by the authorized officer under Rule 8(1-A).

6.4 It is also submitted that this Court has also considered the full bench judgment in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Autho. Officer and Cooperative Officer (Marketing) reported in 2006 (1) GCD 211 for entertaining the writ petition under Article 226 of the Constitution of India. It is submitted that in paragraph 31, this Court has considered that if the action or order passed by the authorised officer, is ultra vires or is nullity as being ex-facie without jurisdiction, entertainment of the writ petition

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under Article 226 of the Constitution of India is possible.

6.5 Further reliance is placed on the judgment of this Court in the case of Abhesinhbhai Maganbhai Chaurdhary vs. Director, Agricultural Marketing Rural Finance reported in 2019 (1) GLR 603. The learned single Judge, while relying upon the judgment in the case of Sardar Vallabhbhai Patel (supra), has held and observed that it is a well settled proposition of law that the election statute is to be construed strictly and the procedure and the rules are required to be adhered to and that it should be given full effect and no Court can pass any order contrary to the statutory provisions so long as it exists. This Court, when found that the order of the authorised officer is without jurisdiction whereby, the names of the society were inserted in the final voters' list beyond the scheduled date; directed the deletion of the names of the committee members from the final voters' list. It is submitted that reading the Rule 8(1-A) in juxtaposition with the well settled proposition of law, the order passed by the authorised officer dated 6.8.2021, is without jurisdiction and ultra vires the provisions of the Rules and therefore, deserves to be quashed and set aside.

7. On the other hand, Mr. Krutik Parikh, learned Assistant Government Pleader, submitted that after the order dated 27.7.2021 was passed by the authorised officer, deleting the name of the respondent nos.5 and 6, two applications, both dated 3.8.2021, were received by them. Considering the same, the order dated 6.8.2021, has been passed including their names in the voters' list.

8. Mr Dipan Desai, learned advocate appearing for the respondent nos.5 and 6, has raised the preliminary objection as regards maintainability of the writ petition. It is submitted that in view of Rule 28 of the Rules of 1965, the petitioner be relegated to the appropriate authority raising the election dispute and therefore,

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in view of availability of the alternate remedy, the petition may not be entertained.

8.1 Mr. Desai, learned advocate further submitted that so far as the respondent no.5 Society is concerned, it was having 15 members, which was increased to 21, and so far as the respondent no.6 Society is concerned, the members were increased from 15 to

21. It is submitted that so far as the 15 members are concerned, they were very much eligible to vote. To that extent, it has been urged that the reliefs can be moulded and the 15 members each, could be allowed to vote. It is further submitted that when the order was passed on 27.7.2021, the members of the respondent nos.5 and 6 were even otherwise eligible. It is also submitted that after the order dated 27.7.2021 was passed, the respondent nos.5 and 6 have submitted applications and after considering their applications, the District Panchayat Committee, Banaskantha at Palanpur in its meeting held on 2.8.2021, has passed the resolution, approving the bylaws. Once the bylaws have been approved, it cannot be said that the authorised officer has committed any error in passing the order dated 6.8.2021.

8.2 While referring to the election schedule, it is submitted that the authorised officer, could have accepted or considered the names of the respondent nos.5 and 6 while finalising the preliminary voters' list on 3.8.2021 as it was the last date for considering objections. It is therefore, submitted that no error has been committed by the authorised officer in passing the order dated 6.8.2021.

8.3 It is further submitted that the objection raised by the petitioner, in the present writ petition is for the first time. The limited objection which was raised was that the District Panchayat Committee, Palanpur is not authorised to sanction the bylaws and it would be the District Registrar, who is the authority to sanction the

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bylaws. It is submitted that since the objection was not raised before the authorised officer, he had no occasion to deal with such objection and therefore, it would not be permissible to the petitioner to raise such objection before this Court.

8.4 It is also submitted that if at all the petitioner has any objection as regards the authority and power of the District Panchayat Committee, it would be open to the petitioner to raise the objection before the appropriate forum and not in the petition wherein, the petitioner is challenging the order of the authorised officer; right, wrong or otherwise, the bylaws have been passed and on the basis of the bylaws, the order dated 6.8.2021 has been passed and the same does not require any interference under Article 226 of the Constitution of India.

9. Heard Mr. Digant Popat, learned advocate appearing for the petitioner, Mr. Krutik Parikh, learned Assistant Government Pleader for the respondent nos.1,2 and 3 and Mr. Dipan Desai, learned advocate for the respondent nos.5 and 6 and perused the materials available on the record.

10. The challenge, in this petition is the order dated 6.8.2021 passed by the authorised officer whereby, the names of the respondent nos.5 and 6 have been included in the voters' list for the election, which is scheduled to take place on 18.9.2021. The main grievance raised by the petitioner is that after the publication of the preliminary voters' list on 6.7.2021, the authorised officer had no power or authority to have amended or modified the voters' list.

11. As per the schedule of the election, the date 6.7.2021 was for the publication of the preliminary voters' list as per sub-rule (2) of Rule 7; 20.7.2021 was the date on which the objections and suggestions were called for as per the provisions of sub-rule (1) of Rule 8. The names of the respondent nos.5 and 6 were included in

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the preliminary voters' list to which, the petitioner raised an objection. Considering the objection of the petitioner against the names of the respondent nos.5 and 6, the authorised officer has passed an order dated 27.7.2021 whereby, their names came to be deleted from the voters' list. The issue which arises for the consideration of this Court is that once at the stage of finalising the preliminary voters' list; deleting the name of the petitioner, whether it was permissible to the authorised officer to have again considered the names of the respondent nos.5 and 6 for inclusion in the list of the voters.

12. At this stage, the provisions of Rule 8, which are relevant for the present purpose, is reproduced herein below for the ready reference:-

"8. Provisional and final publication of lists of voters.- (1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should 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, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters. (1-A) After receiving applications if any, under Sub-rule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for an amendment in the revised draft list of voters.

(2) If any application is received under Sub-rule (1-A), the authorised officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election."

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13. Clearly, sub-rule (1) of Rule 8 of the Rules of 1965 provides that as soon as the list of voters is prepared under rule 5, the same is to be published by the authorised officer, requiring the objections and suggestions from any person, whose name is not entered in the list of the voters and who claims that his name should 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. The said objection is to be lodged within a period of fourteen days from the date of the publication of the notice.

14. Sub-rule (1-A) of Rule 8 of the Rules of 1965, provides that after receipt of the application under sub-rule (1) of Rule 8, revised draft list of voters is to be published by the authorised officer, along with a notice inviting objections from any person, who wishes to raise any objection against any new name entered in the list to apply within a period of seven days from the date of the publication for the purpose of amendment in the revised draft list of voters. Therefore, what has been envisaged under Rule 8(1-A) is inviting objections and suggestions from the person, who wishes to raise any objection against the induction of any new name entered in the list and not for any amendment or inclusion or deletion of the name which has already been crystalised at the stage of sub-rule (1) of Rule 8.

15. Further, sub-rule (2) of Rule 8 of the Rules of 1965 provides that the authorised officer shall decide the same and shall cause to be prepared and publish the final list of voters, after making such amendments therein as may be necessary.

16. At this stage, the judgment of this Court in the case of Sardar Vallabhbhai Patel (supra), is worth referring to. This Court in paragraph 12, while dealing with Rule 8(1-A), has held and observed that the objections against the names of the persons, whose names

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were already there in the first list and continued in the second list, cannot be filed or entertained after publication of the second list, however, if any voter is included in the second list for the first time and whose names did not exist in the first list, the objections could be filed under Rule 8(1-A). It has been held that scope and ambit of Rule 8(1-A), is only limited to the inclusion or objection against the name which did not exist in the first list. This Court, in paragraphs 12, 14 and 16 has observed thus:-

"12. The aforesaid shows that as per Rule 8(1A), the objections could be raised and entertained against any new names entered in the second list. To say in other words, the objections against the names of the persons, whose names were already there in the first list and continued in the second list, cannot be filed or entertained after publication of the second list but if any voter is included in the second list for the first time and whose names did not exist in the first list, the objections could be filed under Rule 8(1A) and that appears to be scope and ambit of filing of objections and entertainment thereof by the Authorized Officer under Rule 8(1A).

13. xx

14. Thereafter, at paragraph No.9, it was further observed, inter-alia, as under:

9. Once the objection filed by the respondent No.2 had been rejected on 05.07.2011, the second objection to the provisional voters' list was not maintainable. We have gone through both the objections. Both the objections are same except that they have been couched by giving different expression. Therefore, the order dated 17.07.2011 passed by the Authorized Officer cannot be maintained as in view of Rule 8 (1-A), the petitioners name could not be deleted from the provisional voters' list as it was not a new name which could be challenged by the respondent No.2. The deletion of petitioner's name from the final voter list was illegal and beyond the powers of the Authorized Officer provided in Rule 8 (1-A) of the Rules. The deletion of petitioners Societies names from the final list of voters was without any authority of law and the order passed by the Authorized Officer was completely destructive of the democratic process and a fraud on the elections.

15. xx

16. In our view, when the matter is already considered by this Court in above referred two decisions, one in case of Mehsana District Co-Operative Purchase And Sales Union Ltd.(supra) and

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another in case of Kuber Bhandareshwar Group Kheti Piyat Sahkari Mandli Ltd.(supra) on the true scope and ambit of the provisions of Rule 8(1A) of the Rules, no further discussion may be required. Consequently, it can be said that action of the Authorized Officer of entertaining the objections and the decision to delete the names of the office bearers of the petitioners-Societies in the final voters list is ultra vires to his power under Rule 8(1A) and void."

17. The judgment of the co-ordinate bench in the case of Abhesinhbhai Maganbhai Chaurdhary (supra), reliance whereof has been placed by the petitioner is also worth referring to.

18. The facts were to the effect that when the provisional voters list of the respective constituency was published, the names of the respondents - societies were not there as a qualifying voter, however, subsequently, when the final voters list was published, the names of the society and committee members, were included. The contention before this Court was raised that inclusion of such names in the voters list, is not permissible under the guise of Rule 8(1-A) of the Rules of 1965. This Court, while referring to the judgment in the case of Prahladbhai Shivram Patel vs. Director of Agriculture Markeing and Rural Finance reported in 1995 (1) GLH 95, so also the decision in the case of Sardar Vallabhai Patel (supra), held and observed that the grievance raised by the petitioner is just and proper and the action of the authorised officer, inserting the name of the respondent therein at the stage of publication of the final voters list, was not legal. This Court, allowed the writ petition, observing in para 12 as under:

"12. This effect of Rule had an occasion to be dealt with by the Court on many occasions and in the year 1998 when the Court was confronted with a situation of a similar issue whether the Authorized Office has jurisdiction to add and delete the names after revised list under sub Rule 1(A), the question was answered by the Court in the case of Prahladbhai Shivram Patel & Ors. versus Director of Agriculture Marketing and Rural Finance & Ors reported in 1998 (1) GLH 95, and has propounded the effect of Rule 8 and insertion of sub Rule 1(A). The relevant abstract of such proposition contained in paragraphs 10, 11 and 12 is sufficiently making it clear that

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authorized officer has no jurisdiction to effect at that stage of final publication. Additionally the decision in the case of Sardar Vallabhbhai Patel vs. State of Gujarat and ors. reported in 2013 (2) GCD 1338 (Guj.) is also making it clear and clearly answering the controversy involved in the present petition. The reference of relevant paragraphs contained in paras:19 and 21 are, since considered, reproduced herein after.

"19. The attempt to contend that in all matters where the question is pertaining to exclusion or inclusion of Member from the voters' list, cannot be entertained in a petition under Article 226 of the Constitution by treating as extraordinary circumstances, in our view cannot be countenanced for following reason.

(i) One is that the very decision of the Full Bench is subsequently considered by this Court in case of Shrutbandhu H.Popat V/s. State of Gujarat and others reported in 2007 (3) GLR 1942 and it was held by this Court that after the above referred decision of Full Bench, the Apex Court in case of Pundlik V/s. State of Maharashtra reported in 2005 (7) SCC 181 has observed that the High Court would not interfere in exercise of power under Article 226 of the Constitution at the stage of preparation of the voters' list but such action must be in accordance with law. But the principle is that if the action is ultra vires to the power or exfacie without jurisdiction and without disturbing the election process, the power under Article 226 of the Constitution can be exercised if the case is so made out. Therefore, we find that after considering the decision of the Full Bench, this Court in its subsequent decision has taken the view that where the case was made out for the action being ultra vires or the nullity, the interference under Article 226 of the Constitution could not be said as not warranted. If the action is ultra vires and nullity, such case can be termed as an extraordinary circumstance to exercise of the power under Article 226 of the Constitution.

21. In view of the aforesaid observations and discussion, we find that the action of the Authorized Officer of entertaining the objections against the name of the office bearers of the petitioners-Societies under Rule 8(1A) of the Rule was wholly ultra vires to his powers and consequently, the order passed for removal of the names of the office bearers of the petitioners-Societies from the final voters' list is also without any authority of law or ex-facie without jurisdiction. Therefore, it appears to us that it is a fit case for interference for exercise of the power under Article 226 of the Constitution."

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19. Considering the Provisions of Rules of 1965, so also the principles laid down by this Court in the aforesaid two judgments, after the amendment in the preliminary voters list, the authorised officer while exercising the powers under Rule 8(1-A) could not have included the names of the respondent nos.5 and 6 inasmuch as, sub-rule (1-A) of Rule 8 provides for consideration of the objections against the new names in the list. The said action of the authorised officer is absolutely illegal arbitrary and against the principle laid down by this Court, so also Rule 8(1-A) of the Rules of 1965.

20. So far as the contention raised by the respondent nos.5 and 6 as regards maintainability of the writ petition and relegating the petitioner to avail of the alternative remedy is concerned, the same is misplaced and does not deserve to be accepted inasmuch as, the exercise of the powers by the authorised officer in passing the order dated 6.8.2021 was not in sync with the provisions of the Rules of 1965, so also the principle laid down by this Court and resultantly, without jurisdiction.

21. In view of the aforementioned discussion, the decision dated 6.8.2021 of the authorised officer, including the name of the respondent nos.5 and 6 is without any jurisdiction and deserves to be quashed and set aside and is hereby quashed and set aside.

22. The petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent.

23. Direct service today, is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI