Shri Gundarana Vibhagiya Khet ... vs Authorized Officer
2022 Latest Caselaw 616 Guj

     C/SCA/19871/2021                                  ORDER DATED: 19/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 19871 of 2021

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     SHRI GUNDARANA VIBHAGIYA KHET UTPADAN MULYAVRUDHHI
                     SAHKARI MANDALI LTD.
                            Versus
                     AUTHORIZED OFFICER
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Appearance:
MR MEHUL VAKHARIA WITH MR SAURABH M PATEL(5019) for the
Petitioner(s) No. 1
MR DIPEN DESAI(2481) for the Respondent(s) No. 2
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 19/01/2022

                             ORAL ORDER

1. The present writ-application is instituted under Article 226 of the Constitution of India challenging the impugned order dated 10.12.2021 passed by the respondent No.1 in BSR/ 01/CHH/652/2021 allowing the objections raised by the respondent No.2 herein seeking deletion of name of the writ- applicant society from the voters' list of traders constituency for election of Agriculture Produce Market Committee, Mahuva wherein the name of the writ-applicant society is at Serial No.334 in the primary voters' list published on 22.11.2021.

2. The respondent No.1 cancelled the name of the writ- applicant society from the primary voters' list published on 22.11.2021 pertaining to the writ-applicant i.e. Gundarna Vibhagiya Khet Utpanna Mulyavrudhhi Sahkari Mandali Ltd.,

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for election of members of the Agriculture Produce Market Committee, Mahuva, Taluka : Mahuva, Dist. Bhavnagar. The election programme with respect to the aforesaid election came to be published on 3.11.2021 which is produced at page-41. The election of the said Committee is to be conducted in accordance with the election programme duly published on 3.11.2021. The election is to be held on 4.2.2022 and the results are to be declared on 5.2.2022.

3. It is the case of the writ-applicant that the writ-applicant is a registered cooperative society registered under the Gujarat Cooperative Societies Act, 1961 bearing Registration No.SE/36010 dated 5.1.2008. The name of the writ-applicant society came to be included in the primary voters' list (No.1 to

44) published on 22.11.2021 wherein name of writ-applicant society came to be included at Serial No.334 in the said voters' list.

3.1 The objections were called for by the competent authority under the provisions of Rule 8 of the Gujarat Agricultural Produce Market Rules, 1965 (for short 'Rules, 1965). The respondent No.2 filed objections with respect to the inclusion of the writ-applicant society on 6.12.2021. The respondent No.1 issued notice dated 6.12.2021 (at page 47) to the writ- applicant to remain present on 8.12.2021 with the original record at 2:30 p.m. with respect to the objections as stated in the notice.

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3.2 The writ-applicant filed the reply to the notice dated 6.12.2021 issued by the respondent No.1 and also remained present before the authorised officer on 8.12.2021.

3.3 The objections filed by the respondent No.2 came to be allowed after giving opportunity of hearing to the writ- applicant and considering the reply filed by the writ-applicant. Resultantly, considering Section 11(1)(3) of the Gujarat Agricultural Produce Market Act, 1963, by order dated 10.12.2021 names of members of the Managing Committee of the writ-applicant came to be deleted from the voters list.

3.4 The question which is required to be decided by this Court is that, it is the case of the writ-applicant that the writ- applicant is a registered Cooperative Society and the writ- applicant is issued unified license by the Director of Agriculture Market and Rural Finance, Gujarat State. The said license came to be granted to the writ-applicant on 14.10.2021. It is further stated by the writ-applicant that the unified license came to be granted on 14.10.2021 the writ-applicant is duly constituted and in existence since the year 2000.

The aforesaid unified license came to be granted on 14.10.2021 by the concerned authority in accordance with Section 11(1)(i)(ii)(iii) and the writ-applicant as referred above is registered Cooperative Society since the year 2000. The said

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license is duly produced at page-31.

3.5 In view of the amendment in the year 2020 i.e. the Gujarat Agricultural Produce Marketing Committee (Promotion and Facilitation) Act, 1963, the unified license came to be issued in favour of the writ-applicant which is a single license which would be permissible for entire State. It is further stated that the said license is in existence and has not been subject to challenge as on date. It is stated that the unified license pertaining to commission agents or traders dated 14.10.2021 bearing outward No.NSB/01/CHH/435/2021 by Deputy Director, Agricultural Market Rural Finance & District Registrar Cooperative Societies, Bhavnagar came to be issued in favour of the writ-applicant under Section 27A of the Act, 1963 and the said unified license has been issued by the said authority after due verification as contemplated under Section 11(1)(i)(ii)

(iii) of the Act.

The impugned order passed by the respondent No.1 allowing the objections filed by the respondent No.2 have resulted in circumventing the unified license duly held by the writ-applicant under Section 27A of the Act, 2020. Since the said license was never subject matter of challenge. It was not open for the respondent No.1 to pass the impugned order dated 10.12.2021 cancelling the name of the writ-applicant at Serial No.334 from the voters' list.

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4. Being aggrieved by the said impugned order dated 10.12.2021 the writ-applicant is constrained to approach this Court seeking indulgence under Article 226 of the Constitution of India. The writ-applicant has prayed for the following reliefs:-

"(A) That the Hon'ble court may be pleased to admit this application.

(B) That the Hon'ble court may be pleased to allow the present Special Civil Application by issuing writ of mandamus or writ of certiorari or any other writ in the nature of mandamus or certiorari by quashing and setting aside the impugned order dated 10.12.2021passed by the respondent no.l authority and directing the respondent authorities to finalize primary voters list where name of the petitioner society is at serial no. 334and accordingly direct the Respondent No. 1 to permit the petitioner society to vote in the interest of justice.

(C) Pending admission hearing and till final disposal this Hon'ble court may be pleased to stay operation, execution and implementation of impugned order dated 10.12.2021passed by the Respondent No. 1 and further be pleased to direct the respondent no. 1 to finalize primary voters list where name of the petitioner is at Serial No. 334pursuant to election schedule published on 03.11.2021 (Annexure G) in the interest of justice.

(D) That this Hon'ble court may be pleased to grant ad

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interim ex-party relief as prayed in Para 8 (c).

(E) This Hon'ble Court may be pleased to grant such other and further relief as deemed just and proper in the interest of justice."

Submissions on behalf of the writ-applicant :-

5. Mr. Mehul Vakharia, the learned advocate appearing for Mr. Saurabh M. Patel, the learned advocate for the writ- applicant. Mr. Vakharia, learned advocate vehemently submitted that the impugned order dated 10.12.2021 passed by the respondent No.1 is in contradiction to Rule 8 of the Rules, 1965. In view of the fact that the Rule 8 does not give authority to respondent No.1 to initiate inquiry. It empowers the respondent No.1 to make technical correction to the voters' list and does not permit the authorised officer to verify the validity of the license issued by the District Registrar which is not challenged till date.

5.1 Mr. Vakharia, learned advocate submitted that while passing the impugned order the respondent No.1 exceeded its jurisdiction by considering and adjudicating the issue which are subject matter of Section 27A of the Act, 1963 pertaining to issuance and cancellation of unified license and, therefore, the present writ-application is required to be allowed. The order passed by the respondent No.1 is ex-facie illegal and the same

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is required to be quashed and set aside and the respondent No.1 authority be directed that the name of the writ-applicant at Serial No.334 be included in the final voters' list with respect to the upcoming election to be held on 4.2.2022.

5.2 Mr. Vakharia, the learned advocate placed reliance on the order/judgment dated 22.11.2021 passed by the Division Bench of this Court in the Letters Patent Appeal No.1821 of 2019.

Submissions on behalf of the respondent No.1 :-

6. Ms. Dharitri Pancholi, the learned AGP appearing for the respondent No.1 submitted that the order passed by the respondent No.1 is just and legal. It is passed after granting opportunity of hearing to both the parties. She submitted that proper opportunity to produce documents were also given which are not produced by the writ-applicant neither before the authority nor before this Court. She submitted that considering this order would not be amenable to jurisdiction under Article 226, this Court has all the powers to exercise the jurisdiction at any point of time, but considering that it does not fulfill the criteria interference is not warranted in such a case.

Submissions on behalf of the respondent No.2 -

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objector :-

7. Mr. Dipen Desai, the learned advocate appearing for the respondent No.2 submitted that appropriate remedy would be an election petition under Rule 28 of the Gujarat Agricultural Produce Market Rules, 1965. He submitted that this Court may not entertain the present writ-application under Article 226 of the Constitution of India in view of the fact that the writ- applicant has efficacious alternative remedy of preferring an election petition under Rule 28 of the Rules, 1965. He submitted that the writ-application may not be entertained in view of the fact that the election of the Agriculture Produce Market Committee, Mahuva has reached at advance stage. It is has reached stage of nomination. He further submitted that the present writ-application also give rise to the disputed question of fact which may not be adjudicated in the writ-application.

7.1 Mr. Desai, learned advocate submitted that the respondent No.2 was constrained to file objections in view of the certain glaring facts which are summarized thus :-

7.2 The said objections are produced at page-42 read thus :-

(1) The writ-applicant was granted unified license by the Dy. Director on 14.10.2021 for the year 2021-22 wherein the election of APMC was declared on 3.12.2021 i.e. license came to be granted just 20 days prior to the date of election. Consequently the same is granted only for the purpose of

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participating in the election.

(2) The Cooperative Marketing Society constituency falling under Section 11(1)(3) of the Gujarat Agricultural Produce Marketing (Promotion and Facilitation) Act, 1963 and the name of the writ-applicant could not be included in the voters' list under Section 11(1)(3) of the Act in view of the following :-

(i) The society must be a Cooperative Marketing Society within the meaning of Section 2(5) of the Act, it must be situated in market area, it must be holding general license, it must be engaged in the business in conformity with its objects and it must have last accounted audited in Class (a)(b) and (c).

(a) The writ-applicant has not undertaken any activity of purchase or sell but has undertaken the activity of commission agent which would not come within the purview of Cooperative Marketing Society.

(b) The object of the writ-applicant as per the bye laws is for purchase and sell of the agricultural produce on behalf of its members.

However, the writ-applicant has not undertaken any activity of purchase and sale but has undertaken the activity of commission agent which would come within the purview of Cooperative Marketing Society.

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(c) No market cess has been paid to the APMC which shows that there is no activity of purchase and sell undertaken by the writ-applicant.

8. Heard Mr. Mehul Vakharia, the learned advocate appearing for the writ-applicant with learned advocate Mr. Saurabh Patel, Mr. Dipen Desai, the learned advocate appearing for the respondent No.1 and Ms. Dharitri Pancholi, the learned AGP appearing for the respondent No.1 - State.

Analysis :-

9. The writ-applicant is a registered cooperative society registered under the Gujarat Cooperative Societies Act, 1961 bearing Registration No.SE/36010 dated 5.1.2008 wherein the election of the said Committee is to be conducted on 4.2.2022 and the results are to be declared on 5.2.2022. The election programme to the said election came to be declared on 3.11.2021. The name of the writ-applicant came to be included in the primary voters' list which was published on 22.11.2021. Pursuant to the said list, the respondent No.1 sought for objections and the respondent No.2 filed objections on 6.12.2021. Notice came to be issued pursuant to the said objections taken by the respondent No.2 asking the writ- applicant to remain present with relevant original documents in accordance with the notice duly issued by the competent authority dated 6.12.2021 and the writ-applicant was also

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asked to remain personally present on 8.12.2021 at 2:30 p.m. before the respondent No.1 for hearing. The writ-applicant is aggrieved by the impugned order dated 10.12.2021 passed by the respondent No.1 excluding/cancelling the name of the writ- applicant at Serial No.334 from the voters' list for the election to be held on 4.2.2022.

9.1 The aforesaid election process is set in motion since 3.11.2021. It was submitted by Mr. Vakharia, the learned advocate non-interference by this Court, at this stage, under Article 226 of the Constitution of India would render the writ- applicant remedy-less and would resultantly effect in cancellation of the unified license duly possessed by the writ- applicant.

Position of Law :-

10. 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

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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".

In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering

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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

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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 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

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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 officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorised officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.

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14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all.

14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.

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

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this appeal.

16. Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of."

11. 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. Vakharia. 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-

(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

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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."

11.1 This Court is not inclined to interfere with regard to the decision taken by the respondent No.1 cancelling the name of the writ-applicant from the voters' list at Serial No.334 members of the writ-applicant in view of the fact that there is a statutory remedy available to the writ-applicant under Rule 28 of the Rules 1965. Further no malafide, arbitrariness or any jurisdictional error is alleged by the writ-applicant against the respondent No.1 and, therefore, the impugned order dated 10.12.2021 passed by the respondent No.1 officer does not call for interference, since the same does not result into any extraordinary circumstances seeking interference by this Court.

11.2 It is clarified that this Court has otherwise not assessed the present writ-application on the merits and, therefore, the reliance placed by the writ-applicant on the order/judgment dated 22.11.2021 passed by the Division Bench of this Court in the Letters Patent Appeal No.1821 of 2019 is not helpful. This Court has otherwise not assessed the writ-application on merits. If the writ-applicant were to institute the election

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petition, the competent authority shall decide the same independently without being influenced by observations made by this Court.

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

13. With the above observations, the present writ- application fails and the same is dismissed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED