Jitendrabhai Arjanbhai Roy vs The Director Of Agricultural ...
2022 Latest Caselaw 4696 Guj

     C/SCA/7772/2022                                     ORDER DATED: 05/05/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/SPECIAL CIVIL APPLICATION NO. 7772 of 2022

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               JITENDRABHAI ARJANBHAI ROY
                         Versus
THE DIRECTOR OF AGRICULTURAL MARKETING AND RURAL FINANCE
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
G K VAGHANI(7830) for the Respondent(s) No. 5
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1,2
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-K, whereby the respondent no.3 has directed to delete the name of the petitioner from the list of voters of the respondent Committee;

(B) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned judgment and

C/SCA/7772/2022 ORDER DATED: 05/05/2022

order dated April 09, 2022, Annexure-K, and further direct that the name of the petitioner be included in the list of voters of the Traders Constituency of the respondent Committee and the petitioner be 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 passing the order dated

9.4.2022 whereby the name of the writ-applicant has been

ordered to be deleted from the preliminary voters' list on the

ground that the writ-applicant was not holding general license

of trader in the financial year 2020-21 at the instance of the

objections filed by the respondent No.5.

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





       C/SCA/7772/2022                           ORDER DATED: 05/05/2022

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

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.

2.3 The preliminary voters' list of the Traders constituency

contained 12 names. The name of the writ-applicant appeared

at Sr. No.6 in the said list. The said list is produced at

C/SCA/7772/2022 ORDER DATED: 05/05/2022

Annexure-E to the petition. The objections came to be raised

by the respondent No.5 on 2.4.2022 objecting to the inclusion

of the name of the writ-applicant in the said voters' list on the

ground that the writ-applicant is not holding GST number,

there is no proprietary deed, there is no registration of

professional tax, there is no current account in the bank, there

is no registration in the Municipality, there is no license of

previous year and no income-tax return.

2.4 According to the writ-applicant, the said objections came

to be raised against the writ-applicant by one S. B. Patel. In

fact, no person named S. B. Patel appears in the list of voters.

At a later point of time through an application the respondent

No.5 clarified that the objector is actually B. S. Patel and not

S. B. Patel. The said explanation is duly produced at

Annexure-H, I and J. The respondent No.3 by order dated

9.4.2022 accepted the objections raised by the respondent No.5

and held that in pursuant to the Sub-clause (2) of Sub-section

(1) of Section 11 of the Act the writ-applicant is not eligible to

be included in the voters' list and, therefore, directed that the

C/SCA/7772/2022 ORDER DATED: 05/05/2022

name of the writ-applicant be deleted from the preliminary

voters' list of the trader's constituency. The said order dated

9.4.2022 is duly produced at page-46 Annexure-K.

3. Being aggrieved by the impugned order dated 9.4.2022

rejecting the inclusion of the name of the writ-applicant in the

preliminary voters' list at the instance of objection raised by

the respondent No.5 the writ-applicant is constrained to

approach this Court by filing the present writ-application.

4. Mr. B. M. Mangukiya, the learned advocate appearing for

the writ-applicant submitted that the name of the writ-

applicant came to be deleted on the ground of not having

license in previous financial year could not have been

proceeded against the writ-applicant since the license of the

writ-applicant was not renewed alongwith other traders by the

respondent Committee for the reasons best known to it. If the

license was not renewed, the writ-applicant could not have

been found to be at fault and, therefore, the name of the writ-

applicant could not have been ordered to be deleted from the

C/SCA/7772/2022 ORDER DATED: 05/05/2022

voters' list.

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

that the criteria applied to the writ-applicant was required to

be applied to the other five persons against whom the writ-

applicant has raised objections. However, if the objections

against the writ-applicant was accepted the respondent No.3

could not have directed the name of the other five persons to

be continued in the voters' list, in view of the fact that the

writ-applicant and other five persons against whom the writ-

applicant raised the objections are similarly placed.

4.2 Mr. B. M. Mangukiya, the learned advocate further

relied on Section 11 Sub-section (1) Clause (2) of the Act and

submitted that the order passed by the respondent authority is

against the aforesaid provisions of the Act.

4.3 Mr. B. M. Mangukiya, the learned advocate lastly

submitted that the impugned order passed by the respondent

No.3 directing to delete the name of the writ-applicant from

C/SCA/7772/2022 ORDER DATED: 05/05/2022

the voters' list of the respondent Committee dated 9.4.2022

being illegal, arbitrary and malitious is required to be quashed

and set aside.

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

respondent authority submitted that the order passed by the

respondent authority is just and proper. The respondent

authority took into consideration the submissions advanced by

the objector as well as the writ-applicant and held that the

trader included at Sr. No.6 in the Traders Voters List in the

Preliminary Voters List of the Market Committee - Gariyadhar

was not holding the license for the last financial year i.e.

2021-22. Considering Sr.(7) Jitendra Arjanbhai Roy appeared

in-person and submitted that the writ-applicant was in

possession of the license for the financial year 2008-2009,

2009-2010 and unified license for the year 2021-2022.

However, the writ-applicant did not hold the valid license for

the years 2010 to 2021 and, therefore, under the provisions of

Section 11(1)(2) of the Act, since the writ-applicant did not

hold valid license in the trader's constituency for the last

C/SCA/7772/2022 ORDER DATED: 05/05/2022

financial year 2020-21 the name of the writ-applicant was

rightly held to be rejected from the preliminary voters' list and

the objections raised by the respondent No.5 was rightly

accepted by the respondent authority.

6. The respondent No.5 objector relied upon the affidavit-

in-reply. Paragraphs 4 to 8 reads thus :-

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

allowed the objection raised by the Resp. No. 5 and thereby

rightly excluded the name of the petitioner from the voters'

list. While allowing the objection, theResp. No.3 has

considered the fact that the petitioner was not having any

license from 2010 to 2021 and as per Section 11(1)(ii) the

petitioner was not having license in a previous financial year

i.e. 2020/21. I say and submit that the petitioner is not having

following details viz. (1) GST number, (2) Proprietor Deed, (3)

Profession Tax Registration, (4) Current Bank Account, (5)

Registration with Nagar Palika, (6) License of previous year

and not done any business and (7) Not shown in the IT return.

I say and submit that I have clarified the aspect of my

signature in the objection given on 04.04.2022 by way of

C/SCA/7772/2022 ORDER DATED: 05/05/2022

subsequent written explanation.

5. 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 Hon'ble 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 Hon'ble 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 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 ?.

C/SCA/7772/2022 ORDER DATED: 05/05/2022

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

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

C/SCA/7772/2022 ORDER DATED: 05/05/2022

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

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

C/SCA/7772/2022 ORDER DATED: 05/05/2022

entitled to invoke the jurisdiction of this court."

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

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

learned AGP appearing for the respondent - State.

Position of Law :-

8. 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

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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".

C/SCA/7772/2022 ORDER DATED: 05/05/2022

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

C/SCA/7772/2022 ORDER DATED: 05/05/2022

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

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as under:

i. A person whose name is not included in the voters' list can

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

Election Petition.

ii. As the authority under Rule 28 has wide power to cancel,

confirm and amend the election and to direct to hold fresh

election in case the election is set aside, remedy under Rule

28 is an efficacious remedy.

iii. Even though a petition under Article 226 of the

Constitution of India is maintainable though alternative

remedy is available, the powers are to be exercised in case of

extraordinary or special circumstances such as where the order

is ultra vires or nullity and/or ex facie without jurisdiction.

The exclusion or inclusion of names in the voters' list cannot

be termed as extraordinary circumstances warranting

interference by this Court under Article 226 of the

Constitution of India and such questions are to be decided in

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

C/SCA/7772/2022 ORDER DATED: 05/05/2022

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.

C/SCA/7772/2022 ORDER DATED: 05/05/2022

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.

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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."

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

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

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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."

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10. 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

allowed the objections filed by the respondent No.5 by passing

the order deleting the name of the writ-applicant from the

preliminary voters' list after issuance of notice and hearing

both the parties. The Authorised Officer by the impugned order

held that the writ-applicant was not in possession of the

unified license for the financial year 2020-21. It appears that

the respondent No.3 relied on Clause 11(1)(2) of the Act while

deciding the said application and deleted the name of the writ-

applicant from the preliminary voters' list.

11. 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

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

by filing election petition under Rule 28. The rejection of the

writ-applicant's name from the voters' list results in exclusion

of name of the writ-applicant from the voters' list. In view of

the ratio as laid down by the Full Bench of this Court, 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 remedy.

12. 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.

13. 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.

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

the same stands dismissed.

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