Gujarat High Court
Chauhan Gabhabhai Devatbhai vs Director, Gujarat Agricultural ... on 1 February, 2022
Bench: Vaibhavi D. Nanavati
C/SCA/1768/2022 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1768 of 2022
=====================================================
CHAUHAN GABHABHAI DEVATBHAI
Versus
DIRECTOR, GUJARAT AGRICULTURAL AND RURAL FINANCE,
GUJARAT STATE
=====================================================
Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
=====================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/02/2022
ORAL ORDER
1. The present writ-application is instituted under
Article 226 of the Constitution of India
challenging the impugned order dated 24.01.2022
passed by the respondent No.2 Election Officer,
General Election Agriculture Produce Market
Committee, Mahuva whereby nomination form
submitted by the writ applicant for the post of
Member of Agricultural Produce market Committee,
Mahuva from the agricultural constituency is
rejected.
2. The brief facts germane for adjudication of the
present writ application are stated thus :-
2.1 The writ applicant is an agriculturist and
holds agricultural land in village Dayal,
C/SCA/1768/2022 ORDER DATED: 01/02/2022
bearing Survey No.341 of Village Dayal. It is
stated that the Agricultural Produce Market
Committee, Mahuva (herein after referred as "the
Committee" for short) was duly constituted under
the provisions of Chapters 3 and 4 of the
Gujarat Agricultural produce and Marketing
(Promotion and Facilitation) Act, 1963, (Gujarat
Act No.29 of 1964) (herein after referred to as
"the Said Act" for the sake of convenience and
brevity) and the Committee is named and called
as Agricultural Produce Committee, Mahuva,
(herein after referred to as "the Committee" for
the sake of convenience and brevity).
2.2 It is stated that since the term of the
committee was expiring, director vide his order
published election program on 03.11.2021,
wherein the election was declared on 09.11.2021.
The authorized officer directed to call for the
names of the voters for preparation of list of
voters on 09.11.2021. The list of the voters was
to be sent to the concerned officer on or before
17.11.2021. The preliminary publication of list
of voters was on 22.11.2021 and objections were
invited till 06.12.2021. The republication of
revised preliminary list of voters after
deciding the objections and presentations
received against the preliminary list of voters
was 12.12.2021. The objections were invited
against the revised amended list of voters till
19.12.2021 and after deciding objections, if any
C/SCA/1768/2022 ORDER DATED: 01/02/2022
received, final list of voters was to be
published on 23.12.2021.
2.3 The date of filing of nomination for the
election was 23.01.2022 and publication of the
list of nominated candidate was fixed on
23.01.2022 and scrutiny of the nomination was
fixed on 24.01.2022. The date of the withdrawal
of nomination was fixed on 27.01.2022 and
publication of the contesting candidate was
fixed on 27.01.2022 and election date is fixed
on 04.02.2022. The nomination of the writ
applicant came to be rejected by the respondent
No.2 - Election officer on 24.01.2022 on the
ground that the writ applicant has failed to
produce the election card and the said
communication is duly produced at page 43 of the
present writ application.
2.4 He further submitted that no notice has
been issued to the writ applicant calling upon
as to why nomination of the writ applicant shall
not be rejected.
3. Being aggrieved by the impugned order dated
24.01.2022, the writ applicant is constrained to
approach this Court seeking indulgence under
Article 226 of the Constitution of Indian. The
writ-applicant has prayed for the following
reliefs :-
"A. Be pleased to issue a writ of
C/SCA/1768/2022 ORDER DATED: 01/02/2022
mandamus or in the nature of mandamus
or any other appropriate writ, order
or direction and quash and set aside
notice/ order dated January 24, 2022
rejecting the nomination of the
petitioner and further be pleased to
direct that nomination of the
petitioner be declared to have been
validly nominated and petitioner be
permitted to contest election
accordingly.
B. Pending admission, hearing and
final disposal of this petition, be
pleased to stay the operation,
execution and implementation of the
notice / order dated January 24, 2022
and direct the respondents to declare
the nomination of the petitioner is
validly nominated candidate and be
pleased to direct the respondent No.2
to take all consequential actions as
if the petitioner is validly
nominated candidate;
C. Be pleased to pass such other and
further order as may be deemed fit by
this Hon'ble Court."
Submissions on behalf of the writ-applicant :-
4. Mr. B.M. Mangukiya, learned advocate appearing
for the writ applicant vehemently submitted that
the order passed by the respondent No.2 is
required to be quashed and set aside, mainly on
the ground that no opportunity of hearing was
granted to the writ applicant and no notice was
issued to the writ applicant. Mr. Mangukiya,
learned advocate submitted that the rejection of
the name of the writ applicant by the respondent
C/SCA/1768/2022 ORDER DATED: 01/02/2022
No.2 election officer sou-motu without affording
opportunity of hearing to the writ applicant is
ex facie illegal, arbitrary and violation of the
principle of natural justice and that the
applicant is required to be allowed on the sole
ground of the writ applicant not being given
opportunity of hearing and no notice has been
issued by the election officer - respondent
No.2. Mr. Mangukiya, learned advocate submitted
that there is no requirement of enclosing of
election card alongwith the nomination form. He
further submitted that the writ applicant has
complied with the requirement as in accordance
with Section 11 read with Rule 11 and therefore,
the respondent No.2 could not have rejected the
nomination form of the writ applicant. The writ
applicant has duly complied with the provisions
of Rule 11. Mr. Mangukiya, learned advocate
submitted that the nomination form for election
is required to be filled in Form No.1 as
provided under Sub-Rule (1) of Rule 11 read with
Rule 86 of the Rules. He submitted that the writ
applicant has duly complied with the said
requirement and therefore, the writ applicant is
not required to produce/ the election card. He
submitted that in absence of such requirement
the election officer could not have rejected the
nomination form on the above referred ground.
Submissions on behalf of the respondent No.1 :-
5. Mr. Ishan Joshi, learned AGP appearing for the
C/SCA/1768/2022 ORDER DATED: 01/02/2022
respondent Nos.1 and 2 submitted that since the
election is in progress and the election has to
be held on 04.02.2022, the writ applicant may
avail statutory alternative remedy under Rule 28
of the Gujarat Agricultural Produce Market
Rules, 1965 by filing Election Petition.
6. Mr. Joshi, learned AGP submitted that the
submissions made by the writ applicant was not
well founded and he relied on paragraph Nos.17
and 18 of the writ application. He submitted
that it can not be said that the writ applicant
was not aware about the impugned order passed by
the respondent No.2.
7. Mr. Ishan Joshi, learned AGP appearing for the
respondent Nos.1 and 2 submits that the writ
applicant was not required to enclose the
election card and moreover; candidates other
than the petitioner have not enclosed the same.
He further submitted that the FORM-I as
contemplated under the rules does not specify
the requirement of enclosing election card. It
is submitted by Mr. Ishan Joshi, learned AGP
that the writ applicant was not given an
opportunity in terms of rectifying his mistake
nor was he put to notice for the rejection of
his nomination papers thus holding the
authorities in violation of the Principles of
Natural Justice.
8. Heard Mr. B.M. Mangukiya, learned advocate
C/SCA/1768/2022 ORDER DATED: 01/02/2022
appearing for the writ applicant and Mr. Ishan
Joshi, learned Assistant Government Pleader
appearing for the respondent Nos.1 and 2.
Analysis :-
9. The writ applicant is a member of Agricultural
Produce Market Committee, Mahuva whereby the
nomination form submitted by the writ applicant
for contesting to the post of member of
agricultural produced market committee, Mahuva
from agricultural constituency came to be
rejected by the respondent No.2 by order dated
24.01.2022 on the ground that the writ applicant
failed to produce/enclose the election card
alongwith the form duly filled by the writ
applicant.
10. The election to the above referred
committee is to be held on 04.02.2022 and
results are to be declared on 05.02.2022, the
election program to the said program came to be
published on 03.11.2021.
11. The writ applicant is aggrieved by the
impugned order dated 24.01.2022 rejecting the
nomination form of the writ applicant, for the
election that is to be held on 04.02.2022.
12. The aforesaid process of election is set in
motion since 03.11.2021. Mr. Mangukiya, learned
advocate appearing for the writ applicant
C/SCA/1768/2022 ORDER DATED: 01/02/2022
apprehended that the non-interference by this
Court, at this stage, under Article 226 of the
Constitution of India would render the writ
applicant remedy-less. He submitted that though
there is alternative efficacy remedy of filing
the election petition available to the writ
applicant, the election officer has patently
committed an error in rejecting the form of the
writ applicant on the the ground of non
enclosing the election card which could not have
been ground of reject the nomination of the writ
applicant.
Position of Law :-
13. 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 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.
C/SCA/1768/2022 ORDER DATED: 01/02/2022
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".
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.
C/SCA/1768/2022 ORDER DATED: 01/02/2022
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:
i. A person whose name is not included in
C/SCA/1768/2022 ORDER DATED: 01/02/2022
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 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
C/SCA/1768/2022 ORDER DATED: 01/02/2022
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.
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
C/SCA/1768/2022 ORDER DATED: 01/02/2022
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."
14. 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. Mangukiya. 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 refers such person may,
within seven days after the date of
the declaration of the result of the
election, apply in writing-
C/SCA/1768/2022 ORDER DATED: 01/02/2022
(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."
15. This Court is not inclined to interfere
with regard to the decision taken by the
respondent No.2 rejecting the nomination of the
writ applicant on the ground of non production /
non enclosing the election card. In view of the
fact that there is a statutory alternative
remedy available under Rule 28 of the Rules
1965.
16. This Court has not assessed the writ
application on merits. In view of the fact that
this Court has relegating the writ applicant to
C/SCA/1768/2022 ORDER DATED: 01/02/2022
avail the statutory alternative remedy available
under Rule 28 of the Rules 1965.
17. In view of above, this Court is not
inclined to entertain present writ-application
exercising its extraordinary discretion under
Article 226 of the Constitution of India and no
extraordinary circumstance warrant the
interference by this Court. This Court has
otherwise not assessed the present writ
application on merits.
18. With the above observations, the present
writ-application fails and the same is
dismissed.
(VAIBHAVI D. NANAVATI,J)
Pallavi
