Jitendrabhai Arjanbhai Roy vs The Director Of Agricultural ...
2022 Latest Caselaw 4695 Guj

     C/SCA/7776/2022                                ORDER DATED: 05/05/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7776 of 2022

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               JITENDRABHAI ARJANBHAI ROY
                         Versus
THE DIRECTOR OF AGRICULTURAL MARKETING AND RURAL FINANCE
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Appearance:
 for the Petitioner(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,4,5,6,7,8,9
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1,2
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 05/05/2022

                              ORAL ORDER

1. The present writ application has been filed under Article

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

"(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned order dated April 09, 2022, - Annexure-G, rejecting the objection raised by the petitioner and direct that the objection raised by the petitioner be accepted and names of the respondent nos.5 to 9 herein be directed to be deleted from the list of voters of Traders Constituency of the respondent Committee;

     (B)      Pending admission and final disposal of the present





        C/SCA/7776/2022                                     ORDER DATED: 05/05/2022



                petition,   be   pleased     to     stay   the    implementation,

execution and operation of the impugned judgment and order dated April 09, 2022, Annexure-G, and direct that the respondent nos.5 to 9 be not permitted to take part in the election process of the respondent Committee;

(C) Be pleased to pass such other and further orders as may be deemed fit and proper."

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

which read thus:-

2.1 By way of present writ-application the writ-applicant

herein has challenged the legality, validity and propriety of the

action of the respondent no.3 of rejecting the objection raised

by the writ-applicant, by order dated 9.4.2022 on the ground

that the respondent no.3 has no power, authority or

competence to decide with regard to the licence issued in

favour of respondent Nos.5 to 9 by the Committee and the

objections raised by the writ-applicant against inclusion of the

names of the said respondents No.5 to 9 in the list of voters;

whereas the name of the writ-applicant came to be deleted

C/SCA/7776/2022 ORDER DATED: 05/05/2022

from the list of voters on the ground that the writ-applicant

was not holding license in the financial year 2020-21 is that

the said order passed by the respondent no.3 is ex-facie

malicious and recorded self-contradictory order and, therefore,

same is violative of Articles 14 and 19 of the Constitution of

India. Being aggrieved by the impugned order dated 9.4.2022

the writ-applicant is constrained to approach this Court.

2.2 The Director - respondent No.1 in exercise of powers

conferred upon him declared the election programme dated

2.3.2022 and appointed the respondent No.3 as authorised

officer and the respondent No.2 as the election authority. As

per the election programme the election has been declared on

8.3.2022. 16.3.2022 came to be fixed for the date on which

the Authorized Officer was supposed to be provided with the

preliminary voters' list. 21.3.2022 was fixed for publication of

the first preliminary voters' list. The objections were to be

accepted till 4.4.2022. The revised preliminary list of voters

was to be published on 9.4.2022. The objection thereto were

invited till 16.4.2022 and publication of the final voters' list

C/SCA/7776/2022 ORDER DATED: 05/05/2022

came to be fixed on 22.4.2022. The nomination of the same

came to be fixed on 21.5.2022. The date of voting is fixed on

2.6.2022 and counting of votes has been fixed on 3.6.2022.

Copy of the election programme is duly produced at Annexure-

D.

3. Mr. B. M. Mangukiya, the learned advocate submitted

that the preliminary list of voters of the Traders constituency

contained 12 names. The name of the writ-applicant appears in

the said list of voters at Sr. No.6 and the names of the

respondent nos.5 to 9 appeared at Sr. Nos.8 to 12 in the said

preliminary list of voters. The said list is duly produced at

page-32.

3.1 Mr. B. M. Mangukiya, the learned advocate submitted

that the writ-applicant raised objection against the respondents

No.5 to 9 who appears at Sr. No.8 to 12 in the said list and

pointed out that the said persons were not holding license in

the year 2020-21 and have not carried out any activities in the

financial year 2020-21. Since they have been given license on

C/SCA/7776/2022 ORDER DATED: 05/05/2022

11.2.2022 and their name cannot be included in the list of

voters'. The respondent No.3 by impugned order dated

9.4.2022 which is duly produced at Annexure-D rejected the

objections raised by the writ-applicant against the inclusion of

name of the respondents No.5 to 9 by recording that the

action taken by the Committee under Sections 27, 47 and 48

of the Act cannot be adjudicated by the Authorised Officer i.e.

respondent No.3 and, therefore, the objections raised by the

writ-applicant are not sustainable. Being aggrieved by the said

order passed by the respondent No.3 the writ-applicant has

approached this Court by filing the present writ-application.

3.2 Mr. B. M. Mangukiya, the learned advocate submitted

that the respondent No.3 has acted maliciously while not

applying the same criteria while considering the objections

raised against the writ-applicant wherein the writ-applicant's

name from the voters' list came to be deleted by accepting the

objections raised against the writ-applicant under the

provisions of Section 11(1)(2) of the Act that the writ-applicant

was not holding license for the previous year 2020-21 and,

C/SCA/7776/2022 ORDER DATED: 05/05/2022

therefore, the writ-applicant was disqualified as per Section

11(1)(2) of the Act.

3.3 Mr. B. M. Mangukiya, the learned advocate submitted

that the respondents No.5 to 9 obtained license wrongly and

that the issue raised by the writ-applicant that they have not

worked for full financial year and that they are not eligible

and their names should not have been included in the voters

list was not decided by the respondent No.3 while deciding the

objections raised by the writ-applicant against the issuance of

license to the respondents No.5 to 9.

4. Mr. Ishan Joshi, the learned AGP appearing for the

respondent authority submitted that the order passed by the

respondent authority is just and proper in holding that the

license which was issued to the respondents No.5 to 9 came to

be issued on the basis of resolution passed by the Market

Committee. The said resolution was duly produced at Mark-5.

He further submitted that since the respondent authority

rightly stated that since the respondents No.5 to 9 have

C/SCA/7776/2022 ORDER DATED: 05/05/2022

produced valid license, it is incumbent for the respondent

authority to accept the same. It was not open for the

respondent authority to question the action undertaken by the

Market Committee under Sections 27, 47 and 48 of the Act

and consequently the objections raised by the writ-applicant

were not accepted. The names of the respondents No.5 to 9 as

included at Mark-8 to 12 in the preliminary voters' list duly

produced on 23.12.2021 were rightly continued.

5. Mr. Tushar Sheth, the learned advocate appearing for

the respondents No.5 to 9 has relied on the affidavit-in-reply.

Paragraphs 4 to 8 reads thus :-

"4. I say and submit that the Resp. No.3 has rightly turned

down the objection raised by the petitioner against the

inclusion of names of the private respondents in the voters'

list. While rejecting the objection, the Resp. No.3 has

considered the fact that the Resp. No. 5 to 9 who are at Sr.

No. 8 to 12 in the voters' list are having license dated

11.02.2022 and also considered the fact that the secretary has

filed his written submission stating that agenda dated

03.02.2022 was declared and as per the Resolution No.3 passed

C/SCA/7776/2022 ORDER DATED: 05/05/2022

in the General Meeting dated 11.02.2022, commission agent

license was issued to the Resp. Nos. 5 to 9. The Resp. No.3

has rightly held that he has no power to go into the

proceedings undertaken by the market committee u/s. 27, 47

and 48 of the Act. I say and submit that the petitioner has not

approached appropriate authority challenging the issuance of

the license in favour of Resp. Nos.5 to 9.

5. I say and submit that the present petition is not

maintainable on the ground of having alternative efficacious

remedy under Rule 28 of the Gujarat Agricultural Produce

Markets Rules, 1965.

6. I say and submit that the group of petitions have been

referred to the Larger Bench of this Hon'ble Court, which was

decided vide the judgement dated 27.07.2005 rendered in case

of Daheda Group Seva Sahakari Mandali Vs. R D Rohit,

reported in 2006 1 GCD 211. The Larger Bench was called

upon to answer three questions viz. (I) Whether a person

whose name is not included in the voters' list can avail

provisions of the Rules by filing Election Petition? (II) Whether

C/SCA/7776/2022 ORDER DATED: 05/05/2022

the remedy under Rule 28 can be termed to be efficacious

remedy and (III) Whether a petition under Article 226 of the

Constitution of India is maintainable in an election process

challenging an order issued by the Election Officers i.e.

inclusion or deletion of the names of the voters in the voters'

list?.

7. In para 33 of the said decision, the Larger Bench

has answered the reference which is reproduced as under;

33. In view of the above discussion, we answer the

Reference as under:

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





 C/SCA/7776/2022                                   ORDER DATED: 05/05/2022

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.

8. I say and submit that while answering the reference the

Hon'ble Larger Bench in para 30 has held as under;

The arguments advanced by Mr Patel appears to be

attractive, however, in substance, devoid of any merit.

Having regard to the language and terminology of rule 28 of

the rules, we are of the view that it leaves no room of doubt

that it includes the question of inclusion, exclusion or

wrongful inclusion or exclusion in an illegal, arbitrary or

malafide manner of name of an eligible voter in voters' list

and the question can be gone into in an election petition

C/SCA/7776/2022 ORDER DATED: 05/05/2022

under Rule 28 and, therefore, in an election petition such a

question can be validly raised, adjudicated and ultimately

relief granted, if a case is made out and it is proved that on

account of such wrongful inclusion or exclusion the result of

the election is materially affected. In any case, the

efficacious remedy provided under the Act would not entitle

the petitioner to contend as a matter or right that he is

entitled to invoke the jurisdiction of this court."

6. Heard Mr. B. M. Mangukiya, the learned advocate

appearing for the writ-applicant, Mr. Ishan Joshi, the learned

AGP appearing for the respondent - State and Mr. Tushar

Sheth, the learned advocate appearing for the respondents No.5

to 9.

Position of Law :-

7. 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

C/SCA/7776/2022 ORDER DATED: 05/05/2022

(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






 C/SCA/7776/2022                            ORDER DATED: 05/05/2022

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/7776/2022 ORDER DATED: 05/05/2022

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

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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.

C/SCA/7776/2022 ORDER DATED: 05/05/2022

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 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

C/SCA/7776/2022 ORDER DATED: 05/05/2022

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

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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 this appeal.

16. Since the main appeal is dismissed, the Civil Application

does not survive and the same stands disposed of."

8. In view of the ratio as laid down by the Full Bench of

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this Court 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

C/SCA/7776/2022 ORDER DATED: 05/05/2022

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. The writ-applicant herein is aggrieved by the impugned

order dated 9.4.2022 passed by the respondent No.3. The

respondent No.3 by the impugned order dated 9.4.2022

rejected the objections filed by the writ-applicant by passing an

order including the names of the respondents No.5 to 9 in the

preliminary voters' list. The said order was passed after

issuance of notice and hearing both the parties. The Authorised

Officer by the impugned order held that in view of the fact

that the respondents No.5 to 9 were holding the valid license

duly issued by the Committee, it was ordered that the names

of the respondents No.5 to 9 were included in the preliminary

voters' list. It appears that the respondent No.3 relied on

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Clause 11(1)(2) of the Act while deciding the said application.

10. The election programme came to be published on

5.3.2022. It can be said that the election is set to be in

motion. In view of the ratio as referred to above once the

process of election has been set in motion this Court under

Article 226 of the Constitution of India would not interfere in

the election process. Accordingly this Court is not inclined to

interfere with the impugned order passed by the respondent

No.3 and relegate the writ-applicant to avail statutory remedy

by filing election petition under Rule 28. The inclusion of

name of the respondents No.5 to 9 in the preliminary voters'

list results in inclusion of name of the respondents No.5 to 9

in the voters' list. In view of the ratio as laid down by the

Full Bench of this Court as referred above, the writ-applicant

can avail the benefit of provisions of Rule 28 of the Rules by

filing the election petition. The authority under Rule 28 has

wide power to cancel and, confirm and amend the election

and also to direct to hold fresh election in case the election is

set aside and the remedy under Rule 28 is an efficacious

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remedy.

11. In view of above, this Court is not inclined to exercise its

extraordinary jurisdiction under Article 226 of the Constitution

of India and in view of this Court no extraordinary

circumstances warrant interference by this Court.

12. It is clarified that this Court has not opined on the merits

of the matter, since this Court has relegated the writ-applicant

to avail statutory alternative remedy.

13. In view of above, the present writ application fails and

the same stands dismissed.

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