Krishnaben Maheshbhai Padhariya vs State Of Gujarat
2022 Latest Caselaw 7014 Guj

       C/SCA/12298/2022                             ORDER DATED: 05/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12298 of 2022

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                    KRISHNABEN MAHESHBHAI PADHARIYA
                                 Versus
                            STATE OF GUJARAT
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Appearance:
MR PS CHAMPANERI(214) for the Petitioner(s) No. 1,2
Ms. Nidhi Vyas, Asst. GOVERNMENT PLEADER/PP                               for     the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR VC VAGHELA(1720) for the Respondent(s) No. 3
MS ASHA D TIWARI(2983) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 05/08/2022

                               ORAL ORDER

1.0. By way of this petition, the writ petitioners have prayed for

following reliefs:

"A. To admit and allow the present petition; B. To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned Preliminary voters list published on 23.05.2022, Revised draft voters list published on 11.06.2022 and final voters list published on 23.06.2022 of the elections of Agriculture Produce Markets Committee, Wadhwan, qua the inclusion of respondent no. 3 society in voters list.; and further be pleased to delete the names of the respondent nos.3

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society and it's managing committee members from the final list of voters of Agricultural Produce Market Committee, Wadhwan;

C. To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 06.06.2022 passed by the respondent no.2 at ANNEXURE

- B to the present petition;

D. Be pleased to issue a writ of certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction and be pleased to restrain the members of respondent no.3 society from participating in the election of Agriculture Produce Market committee, Wadhwan in all and any manner;

E. Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned final voters list so far as it includes respondent no. 3 society and it's managing committee members respectively;

F. Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned order dated 06.06.2022;"

2.0. The writ applicants are the objectors and had filed their

objection before the respondent authorities against the inclusion

of the respondent no.3- Mandali in the preliminary voter list

published on 23.5.2021. It appears that the writ applicants filed

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their objection against the inclusion of respondent no.3. It is the

case of the writ applicants that respondent no.3 society is not

constituted according to provisions of Section 74 but has been

constituted through a process unknown to the provisions of the

Act, Rules and Bye-laws inasmuch as neither the Act nor the

Rules or Bye-laws provides for conducting the election of the

members of the Managing Committee by permitting to form the

panels and allotting a single symbol to such panel. It is the case

of the writ applicants that the respondent authorities passed the

impugned order dated 6.6.2022 rejecting the objection filed by

the writ applicants on the ground that the application preferred

by the writ applicants was accompanied only by the plaint of the

suit filed before the learned Board of Nominees being Lavad Suit

No. 8 of 2019 and same was not accompanied by any order

passed by the learned Board of Nominees.

3.0. Heard Mr. PS Champaneri, learned advocate for the writ

petitioners, Mr. VC Vaghela, learned advocate for the respondent

no.3 and Ms. Nidhi Vyas, learned AGP for the respondent State

authorities.

4.0. Mr. Champaneri, learned advocate for the writ petitioners

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vehemently submitted that (1) the society is not having its prime

object of agriculture credit dispensation and is not classified as

the same and therefore, not eligible as per provisions of Section

11(1)(a) r/w Societies Act, Provisions and Banking Regulations

(2) the Managing Committee is not validly elected in accordance

with law and it's election is subject matter of challenge before

the learned Board of Nominees.

5.0. Mr. V C Vaghela, learned advocate for the respondent no.3

submitted that the aforesaid writ applicants be relegated to avail

alternative remedy by filing election petition under Rule 28 of the

Agriculture Produce Market Committee Rules, 1965 and placed

reliance on the following decisions of this Court:

(1) 2006(1) GCD 211

(2) (2016) 4 SCC 429

(3) (2001) 8 SCC 509

(4) SCA No.2302 of 2011 and allied matters

(5) SCA No.4893 of 2015.

Mr. Vaghela, learned advocate submitted that the writ

application be rejected on the ground of delay, laches since the

objections were rejected as back as on 6.6.2022 and the writ

application is filed in the first week of July, 2022. Mr. Vaghela,

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learned advocate submitted that the defendant is registered as

Primary Agriculture Credit Cooperative Society and bye laws of

the Society provide for dispensing agricultural credit and even

the bye laws of the Society provide that the society can obtain

deposits from members and grant loans to its members and

society is functioning as per the Act, Rules and registered Bye-

laws.

6.0. Ms. Nidhi Vyas, learned Assistant Government Pleader for

the respondent State also submitted that writ applicants be

relegated to avail remedy available under Rule 28 of the Rules by

filing election petition. Ms. Vyas, learned AGP submitted that at

the time when objection was filed by the writ applicants only

photocopy of the Lavad case application was produced before the

Authorized Officer. It was submitted that at the time when

second objection was raised on 18.06.2022, for the first time the

petitioners placed photocopy of the lavad case application.

However, since the second objections were not with regard to

new name, the Authorized Officer could not have considered the

said in view of Rule 8(1-A).

7.0. Having heard the learned advocates for the respective and

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considering the facts as stated above, this Court is not inclined

to repeat the same. 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 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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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 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 as under:

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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."

7.1. In the case of Raghubhai Munjibhai Mungra v/s.

Jamnagar District Cooperative Bank Limited reported in AIR

2021 Guj. 185, relevant para-6 reads thus:

"6. It is a cardinal principle accepted, applied, reiterated and followed that High Court will not, in all ordinary circumstances, interfere with the election process to interrupt, interfere or stall such democratic process and that all election disputes arising in the middle of the elections shall be postponed for their resolution until after the elections are over, to be dealt with in accordance with the machinery provided under the statute therefor.

6.1 In Vitthodar Vividh Karyakari Seva Sahakari Mandli (supra) relied on by the respondents in the context of Section 145U of the Gujarat Co-operative Societies Act read with Rule 128 of the Gujarat Agricultural Produce Markets Rules, 1965, this Court enunciated the law on the issue to observe that though the petition under Article 226 of the Constitution is maintainable, the powers are to be exercised only in extra-ordinary or special circumstances such as where the order is ultra vires or nullity or ex facie without jurisdiction. The principles were reiterated in Mehsana Taluka Cooperative Purchase & Sales Union

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(supra), which decision came to be confirmed in Letters Patent Appeal No.1255 of 2016 and other cognate Appeals decided on 29th November, 2016.

6.2 In yet another decision of Division Bench of this Court in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance [2004 (3) GLR 2718], which involved the issue of rejection of nomination paper, after considering its earlier decisions in Kanjibhai Babaldas Patel v. Election Officer, APMC Visnagar [42 (1) GLR 260], Mehsana District Sales & Purchase Union v. State of Gujarat [1988 (2) GLR 1060] observed to hold that, "any interference after the scrutiny of nominations would create a real possibility of the election process being interrupted, obstructed or delayed. This is why in the aforesaid four decisions of the Division Bench of this Court it has been laid down that Rule 28 provides an efficacious remedy and when the election process is started, Court would refuse to exercise its extra-ordinary jurisdiction.". Reiterating the principle, the Court refused to go into the nature of dispute, that is the objections raised against the validity of nominations and did not examine whether Rule is violated to find out whether the Scrutiny Officer had committed any error in rejecting or accepting the nomination.

6.3 In Shri Sant Sagduru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509], the Apex Court in the context of the Maharashtra Co-operative Societies Act, 1960 read with Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 stated and held,

"In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that 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 is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate. If aggrieved, by means of an election petition before the Election Tribunal." (Para 12)

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6.4 The trite proposition about non-interference in election process, howsoever the ground canvassed may appear to be strong, and that election disputes are to be gone into and settled after the elections are over as per the machinery provided for resolution of such disputes, has been holding the field right from the decision in N.P. Ponnuswami v. Returning Officer [AIR 1952 SC 64], which statement of law found its further exposition in a more recent decision in Shaji K. Joseph v. V. Vishwanath [(2016) 4 SCC 429],

"... as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect whenever the process of election starts, normally courts should not interfere with he process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without the court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. ... ... " (Para 15)

6.5 In Mehsana Taluka Co-operative Purchase & Sales Union (supra), following were the observations made.

"5.1.2 The election jurisprudence, its principles and the applicability of election laws have different delineations and dimensions. They indeed operate, and has to be allowed to operate in their own way so as to sub-serve a higher purpose. In the election which is a democratic process, what is fundamental is the event of election. Neither the right to vote or to participate in election as voter or as a contesting candidate, is perceived to be a fundamental right. They are the rights guarded by statutory framework and could be exercised only in the manner the statute may provide. What is at stake is the interest of whole body which goes to the democratic process of elections. Election jurisprudence hardly emphasise rights of individuals. Election rights are the democratic rights operating as a

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whole and for collective end."

8.0. In view of aforesaid proposition of law, no extraordinary

circumstances arise for this Court to exercise its extraordinary

jurisdiction under Article 226 of the Constitution of India. This

Court has considered the order passed by the Authorized Officer

dated 6.6.2022 is passed considering the documents on record

since this Court is inclined to relegate the writ applicants for

availing remedy available under Rule 28 of the Rules by filing

election petition, therefore, this Court is not inclined to go into

the merits of the order passed by the authorized officer. That

undisputedly, the election programme of APMC, Wadhwan came

to be issued on 6.5.2022 and once election programme having

been declared and election being in force and in view of the

settled position of law as referred to above, this Court is not

inclined to exercise jurisdiction under Article 226 of the

Constitution of India. It is however clarified that this Court has

not opined on merits of the order since this Court is inclined to

relegate the writ applicants to avail alternative statutory remedy

under Rule 28 of the Rules to file election petition. Rule 28 of the

Agriculture Produce Market Committee 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

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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 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."

9.0. In view of above, this Court is not inclined to entertain the

present writ-petition exercising its extraordinary discretion

under Article 226 of the Constitution of India and no

extraordinary circumstance warrant the interference by this

Court. If, election petition be filed by the writ applicants, the

competent authority may decide and consider the same

independently without in any way being influenced by any of the

observations made by this Court in the present order. The

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observations arrived at by this court are only for the purpose of

arriving at a present finding.

With the above observations, the present writ-application

fails and the same is dismissed

(VAIBHAVI D. NANAVATI,J) KAUSHIK J. RATHOD