Gujarat High Court

Khorajiya Sharifaben Mamad vs State Of Gujarat on 12 April, 2022

Bench: Vaibhavi D. Nanavati

     C/SCA/17728/2021                                ORDER DATED: 12/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17728 of 2021

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                        KHORAJIYA SHARIFABEN MAMAD
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2,3
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
JAY B TRIVEDI(7474) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,5
MR BS PATEL, SENIOR ADVOCATE for the Respondent(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 12/04/2022

                                ORAL ORDER

1. The present writ application has been filed under Article

226 of the Constitution of India, seeking the following reliefs:-

"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order dated 15.11.2021 passed by Authorised Officer ordering to delete the names of the writ-applicants from the voter's list of agriculturists constituency for the election of APMC, Vankaner for the reasons stated in the Memo of petition and in the interest of justice;

(B) Pending admission, hearing and final disposal of the above Special Civil Application to stay the execution, implementation and operation of the order dated

C/SCA/17728/2021 ORDER DATED: 12/04/2022

15.11.2021 passed by the Authorised Officer ordering to delete the names of the writ-applicants from the voter's list of agriculturists constituency for the election of APMC, Vankaner and further be pleased to direct the Authorised Officer to continue the names of writ- applicants in the voter's list for agriculturists constituency for the reasons stated in the memo of petition and in the interest of justice;

(C) To grant ad interim relief in terms of Para 23(B) hereinabove;

(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require;

(E) To award the cost of this petition."

2. The brief facts giving rise to the present writ application,

which read thus:-

2.1 The writ-applicants are agriculturists of village Tithva,

Taluka Vankaner, District Morbi. The writ-applicants are

members of the Tithva Seva Sahkari Mandli Ltd. The writ-

applicants are elected members of the Tithva Seva Sahkari

C/SCA/17728/2021 ORDER DATED: 12/04/2022

Mandli Ltd. The election of the AMPC, Vankaner came to be

declared by the Director, APMC on 13.10.2021 under Rule-4 of

Gujarat Agriculture Produce Markets Rules, 1965. The election

program of the said election came to be declared by APMC on

13.10.2021. The APMC, Vankaner has prepared the voter's list

and the same was forwarded to the Authorised Officer and on

receipt of voter's list from APMC, Vankaner, primary voter's

list published on 29.10.2021. As per Rule 7(2) of the APMC

Rules, the names of the writ-applicants were included in the

primary voter's list in the agriculturist constituency as members

of the Managing Committee of Tithva Seva Sahkari Mandli Ltd.

the respondent nos.4 and 5 have raised objection on

01.11.2021 against inclusion of names of the writ-applicants in

the voter's list and the Authorised Officer issued notice dated

01.11.2021 calling upon the writ-applicants to remain present

for hearing and submit their explanation. The writ-applicants

submitted their reply to the said notice on 08.11.2021. The

writ-applicants contended that they were never removed as

members of the Managing Committee of the society i.e. Tithva

Seva Sahkari Mandli Ltd. in its meeting dated 25.09.2020

C/SCA/17728/2021 ORDER DATED: 12/04/2022

decided not to remove the writ-applicants as members of the

Managing Committee for not remaining present for three

consecutive meetings. It is further stated that the society held

that the writ-applicants have not incurred disqualification

under byelaw no.40(3).

2.2 Though the writ-applicants filed their reply and

remained present for hearing before the Authorised Officer, by

the impugned order dated 15.11.2021, deleted their names

from the voter's list of agriculturist constituency for the

election of APMC, Vankaner. It is further stated that thereafter,

the District Registrar, Morbi, passed an order dated 15.11.2021

removing the name of the writ-applicants from Managing

Committee of Tithva Seva Sahkari Mandli Ltd. The said order

was received by the writ-applicants on 24.11.2021.

3. Heard Mr.B.T.Rao, the learned advocate appearing for the

writ-applicants.

4. Mr.B.T.Rao, the learned advocate submitted that the

order dated 15.11.2021 deleting the names of the writ-

C/SCA/17728/2021 ORDER DATED: 12/04/2022

applicants passed by the Authorised Officer from the voter's list

of agriculturist constituency for election of APMC, Vankaner is

against the provision of Section 11(1)(i) of the APMC Act.

Mr.Rao submitted that the Authorised Officer while dealing

with the objection raised by Shri Irfan Mamad Ami Gandharva

in respect of 18 names of five societies, whose names were

included in the voter's list where the objector had produced

documentary evidence about defaulter. In that case, the

Authorised Officer observed that under Section 11(1)(i) of

APMC Act there is no provision that defaulter member cannot

vote at the election of APMC and rejected the objections. The

Authorised Officer in the case of the writ-applicants held that

the writ-applicants incurred disqualification on account of

being absent in three consecutive meetings and hence directed

to delete names of the writ-applicants though Section 11(1)(i)

of the APMC Act does not provide to delete the names on such

ground.

5. In view of above, Mr.Rao, the learned advocate

submitted that the order passed by the Authorised Officer is

C/SCA/17728/2021 ORDER DATED: 12/04/2022

inconsistent and erroneous. Mr.Rao submitted that the order

passed by the Authorised Officer only can undertake to inquire

in case the writ-applicants have travelled beyond the provision

of APMC Act. Mr.Rao submitted that as per byelaw No.36, the

meeting of the Managing Committee should be called at least

once every two months and the Authorised Officer failed to

appreciate the fact that the Tithva Seva Sahakari Mandli Ltd.

i.e respondent no.5, herein was called three meetings in less

than 1 month and under the said Act, before calling the

meeting by the Managing Committee, minimum notice of three

days is required to be given. The Authorised Officer failed to

appreciate that such notice as stated above was not given and

therefore the meeting dated 09.07.2020, 11.07.2020 and

31.07.2020 were called against the provisions of law. Mr.Rao,

the learned advocate relied on the judgment of Supreme Court

reported in (2004) 9 SSC 204, substantiating above referred

submissions.

6. Mr.Rao, the learned advocate lastly submitted that the

impugned order dated 15.11.2021 passed by the Authorised

C/SCA/17728/2021 ORDER DATED: 12/04/2022

Officer is passed without authority of law and has deleted

names of the writ-applicants from the voter's list is against the

provision of law and under such circumstances, the writ-

applicants are constrained to approach this Court under

Article 226 of the Constitution of India and that the writ-

applicants cannot avail statutory remedy of filing appeal under

Rule 28 of APMC Rules. Mr.Patel furtehr submitted that the

writ-applicants have committed fraud for inclusion of their

names by not disclosing the election of the society in which

almost all directors have been elected and the writ-applicants

ceased to be the directors as per the provision of Rule 6 of the

produce market Rules, 1965. Lastly, Mr.Rao submitted that the

order passed by the Authorised Officer on 15.11.2021 be

quashed and set aside.

7. Heard the learned advocate Mr.B.S.Patel appearing for

the Authorised Officer. Mr.Patel, the learned Senior Counsel

raised preliminary objection with regard to maintainability of

the writ application. Mr.Patel, the learned Senior Counsel

relied on ratio laid down by the Full Bench of this Court in

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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.

8. Mr. Patel, the learned advocate referring above referred

decision submitted that though there is alternative remedy

available to the writ applicants, this Court can exercise its

extraordinary jurisdiction under Article 226 of the Constitution

of India. In the present case, the names of the writ-applicants

were deleted from the voter's list cannot be said to be

extraordinary case. The writ-applicants be relegated to

statutory alternate remedy under Rule 28 of APMC Election

Rules.

9. Learned advocate Mr.Patel submitted that the District

Registrar, Morbi, has passed the order dated 17.11.2021

removing the writ-applicants from Managing Committee

through Tithva Seva Sahkari Mandli Ltd., under the Rule 32 of

the Gujarat Cooperative Society Rules, 1965. The writ-

applicants herein challenged the order passed by the District

C/SCA/17728/2021 ORDER DATED: 12/04/2022

Registrar removing the names of the writ-applicants from the

committee by order dated 17.11.2021. In the present writ

application, the Authorised Officer is duty bound to abide by

the order passed by the Deputy Registrar, Morbi.

10. Mr.Patel, the learned advocate lastly submitted that the

order passed by the District Registrar under Rule 32 of the

Cooperative Rules, 1965, is challengeable order under Section

155 of the Cooperative Societies Act, when an efficacious

remedy is available to the writ-applicants, therefore this Court

may not exercise its extraordinary jurisdiction under Article

226 of the Constitution of India. Mr.Patel, the learned Senior

Counsel lastly submitted that the writ-applicants be relegate to

statutory alternative remedy under Rule 28 of Rules, 1965 and

dismiss the writ application.

11. Heard the learned advocate Mr.Jay Trivedi appearing for

the respondent no.4. Mr.Trivedi, the learned advocate adopted

the submissions advanced by the learned Senior Counsel

Mr.B.S.Patel.

C/SCA/17728/2021 ORDER DATED: 12/04/2022

12. Mr.Trivedi, the learned advocate submitted that however,

the writ-applicants are members of the respondent no.5

society, which are governed by the provision of the Act, Rules,

byelaws 40(3) of the respondent no.5 Society and submitted

that any member, who remained absent in the three

consecutive meetings, to remove as a member of the society.

Mr.Trivedi, the learned advocate submitted the writ-applicants

remained absent on the meeting called by the Secretary of the

society through agenda notice dated 07.07.2020, 11.07.2020

and 31.07.2020. Mr.Trivedi further submitted that the said

agenda never challenged by the writ-applicants and the writ-

applicants failed to rights to question the validity of the

agenda notice. Mr.Trivedi, the learned advocate lastly

submitted that this Court may not reconsider the facts and

findings of the case and relegate the writ-applicants to

challenge the order passed by the respondent authority before

the appropriate forum.

13. Heard Mr.B.T.Rao for the writ-applicants, learned Senior

C/SCA/17728/2021 ORDER DATED: 12/04/2022

Counsel Mr.B.S.Patel and Learned AGP Mr.Ishan Joshi for the

respondent no.3 and Mr.Jay Trivedi for the respondent no.4

objector.

ANALYSIS:-

14. The writ-applicants are agriculturist of village Tithva,

Taluka Vankaner, District Morbi and members of the Tithva

Seva Sahkari Mandli Ltd. The writ-applicants are elected

members of the Managing Committee of the Tithva Seva

Sahkari Mandli Ltd. and election of APMC Vankaner came to

be declared by the Director, APMC on 13.10.2021 13.10.2021

under Rule 4 of the Gujarat Cooperative Market Committee

Rules, 1965. Pursuant to the objection raised by the respondent

no.4, by the order dated 15.11.2021, names of the writ-

applicants came to be deleted from the voter's list from

election of APMC, Vankaner by the impugned order dated

15.11.2021. Being aggrieved by the said order, the writ-

applicants approached this Court by filing the present writ

application. The Coordinate Bench by the order dated

06.12.2021, issued notice making it returnable on 14.12.2021.

C/SCA/17728/2021 ORDER DATED: 12/04/2022

By the order dated 28.12.2021, the Coordinate Bench of this

Court permitted the writ-applicants to cast their votes in the

election to the Vankaner, Agricultural Produce Market

Committee scheduled on 11.01.2022 and whereas the votes cast

by the writ-applicants shall be kept in a sealed cover which

would be subject to further orders that may be passed by this

Court in that regard. The operative part of the said order

dated 28.12.2021, reads thus:-

"5. Having heard learned advocates for the parties, prima

facie, it appears to this Court is that though the petitioners

stood disqualified by the virtue of order dated 17.11.2021

passed by the District Registrar, Co-operative Society, Morbi

and whereas till the said order is interfered with by this

Court or any competent authority, while the petitioners may

not get any right to vote in the ensuing election, at the same

time, due to a clear mistake or excessive jurisdiction

exercised by the Authorised Officer respondent no.3 herein

the petitioner would be entitled to pray for interference of

this Court. Again in the prima facie opinion of this Court it

is only because the impugned order passed by the Authorised

Officer preceded the order passed by the District Registrar

C/SCA/17728/2021 ORDER DATED: 12/04/2022

that the petitioners get a right to pray for interference, in a

converse scenario if the order of the Authorised Officer has

been passed after the District Registrar had passed order in

question, in prima facie opinino of these petitioners may not

have any right to seek for interference at this stage."

Mr.Rao, the learned advocate appearing for the writ-

applicants submitted that non-interference by this Court, at this

stage, under Article 226 of the Constitution of India would

render the writ-applicants remedyless.

Position of Law:-

15. 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

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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

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

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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."

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

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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 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

C/SCA/17728/2021 ORDER DATED: 12/04/2022

remedy is by way of election petition before the Election

Tribunal.

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

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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

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

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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.

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.

C/SCA/17728/2021 ORDER DATED: 12/04/2022

14A. For the aforesaid reasons, we are of the view that this

appeal is devoid of merits and the same is accordingly

dismissed.

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."

16. In view of the ratio as laid down by this Court as well

as Hon'ble Supreme Court the writ-applicant cannot be said to

be remedy-less as submitted by Mr. Rao. The writ- applicant

can avail statutory remedy of filing a Election Petition after

the election is concluded under Rule 28 of the Rules, 1965.

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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

C/SCA/17728/2021 ORDER DATED: 12/04/2022

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."