Gujarat High Court
Joitabhai Magandas Patel vs State Of Gujarat on 14 March, 2023
Bench: A.S. Supehia
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.2185 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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JOITABHAI MAGANDAS PATEL
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE with
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,10,11,2,3,4,5,6,7,8,9
MS NIDHI VYAS, AGP for the Respondent(s) No. 1-4
MR BAIJU JOSHI(1207) for the Respondent(s) No. 5,6
MR B.S. PATEL, SENIOR ADVOCATE with
MR UMANG H OZA(2440) for the Respondent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 14/03/2023
ORAL JUDGMENT
1. RULE. Learned advocates appear and waives service of
notice of Rule on behalf of the respective respondents.
2. The present writ petition stems out of the order dated
03.02.2023 passed by the respondent No.4-Presiding Officer
i.e. Election Officer, Agriculturist Constituency, Agriculture
Produce Market Committee, Vijapur, wherein and whereby the
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
respondent No.4 has restrained the petitioner Nos.1 to 10 to
vote in the agriculturist constituency for the election of
Agriculture produce Market Committee (APMC), Vijapur, on
03.02.2023.
3. The brief facts leading to filing of the present writ petition
are as under :
3.1 The Vajapur Seva Sahakari Mandali Limited-Respondent
no.7 is a cooperative society and is registered as a
Cooperative Society under the Gujarat Cooperative Societies
Act, 1961 (the Act). The election of the APMC, Vijapur came to
be declared on 17.08.2022 by the respondent No.2-Director,
Agriculture Marketing and Rural Finance and accordingly, the
election program dated 17.08.2022 was published.
3.2 The preliminary voters list was published on 02.09.2022.
It is the case of the petitioners that the name of the society
was included in the voters list in the capacity as members of
the Managing Committee and the names of the petitioner
Nos.1 to 10 were included in the voters list. There was an
objection raised by one Shri Jayantibhai Ambalal Patel against
the inclusion of the name of the petitioner Nos.1 to 10 in the
voters list. It was also requested by him that the names of the
newly elected Committee of the Society may be included in the
voters list by deleting the names of the petitioner Nos.1 to 10.
3.3 The Authorised Officer, after hearing the objectors as well
as the Committee of the Society vide order dated 22.09.2022
rejected the names of the objectors and continued the names
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
of the petitioner Nos.1 to 10 in the voters list. The provisional
voters list was published on 22.09.2022 and the names of the
petitioner Nos.1 to 10 were continued in the voters list at Serial
No.154 to 164.
3.4 The final voters list was published on 03.10.2022,
wherein the names of the APMC and the members of the
Managing Committee of the APMC were shown, which included
the names of the petitioner Nos.1 to 10. Because of the
declaration of the election of the Legislative Assembly, the
election of the APMC were suspended and stopped and only
after the declaration of the result of the Legislative Assembly
elections, the election process of the APMC was commenced
from the stage where it was stopped and accordingly, the
respondent No.2-Director vide order dated 17.01.2023 issued
the election program of the APMC for the remaining stages and
according to which, the voting was to take place on
03.02.2023. It is the case of the petitioners that when the
voting for the election commenced on 03.02.2023 and the
petitioner Nos.1 to 10 went to vote at about 11:30 a.m., the
respondent No.4-Presiding Officer restrained the petitioner
Nos.1 to 10 from voting on the ground that the respondent
No.5-Jayantibhai Girdharbhai Patel has raised the objections
against permitting the petitioner Nos.1 to 10 from voting.
3.5 It appears that upon the insistence of the petitioners, the
Presiding Officer passed the impugned order dated
03.02.2023. It is the case of the petitioners that the said order
dated 03.02.2023 has been supplied to the petitioners at about
4:45 p.m. just minutes before completion of the voting.
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
CONTENTIONS OF THE PETITIONERS:
4. Learned Senior Advocate Mr.Mihir Joshi, appearing with
learned advocate Mr.Dipen Desai, for the petitioners has
submitted that the Presiding Officer has acted de hors the
statutory provisions of the Act and hence, the impugned order
as well as the action taken by the Presiding Officer-
respondent No.4 is required to be quashed and set aside. It is
submitted that if the petitioner Nos.1 to 10 were permitted to
vote, the entire election of the concerned Committee of the
Society would have been altered.
4.1 Learned Senior Advocate, while placing reliance on the
provisions of Rule 6 of the Gujarat Agriculture Produce Market
Rules, 1965 (the Rules) has submitted that after a person,
whose name is entered in the list of voters, is qualified to vote
in the election and the respondent No.4, who was the Presiding
Officer, he cannot in any manner restrain the voters like the
petitioners, whose names are already included in the voters list
to cast their vote. It is submitted that initially when an
objection was raised against the entering of the names of the
petitioners in the voting list, the same was rejected by the
presiding officer, hence subsequently, it was not open for the
officer to restrict the petitioners from casting the vote at the
time of election. While referring to the scheme of Rules, it is
submitted that the same nowhere provides or empowers the
Presiding Officer to restrain the voters from casting the vote on
the objection raised, at the time of election.
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
4.2 On a query raised by this Court with regard to the
maintainability of the writ petition and availing of an
alternative remedy under Rule 28 of the Rules, learned Senior
Advocate Mr.Joshi, has submitted that since the action of the
Presiding Officer restricting the petitioners from casting the
votes is de hors Statute, the writ petition is always
maintainable.
4.3 Learned Senior Advocate Mr.Joshi has placed reliance on
the Full Bench judgment of this Court in the case of Manubhai
Hargovanbhai Joshi vs. State of Gujarat, (2014) 1 G.L.R. 192.
Reliance was also placed by him on the judgment of the
Division Bench in the case of Ishwarbhai Narayanbhai Patel vs.
State of Gujarat, judgment dated 22.11.2021 passed in Letters
Patent Appeal No.1821 of 2019 and allied matter. Reliance is
also placed on the judgment in the case of Vasantbhai Vadilal
Joshi vs. Laxmikuvar Virendrasinh Parmar, dated 27.09.2021
passed in Special Civil Application No.7941 of 2021. Thus, it is
submitted that availability of an alternative remedy under Rule
28 of the Rules, cannot in any manner restrain this Court from
exercising its jurisdiction conferred under Article 226 of the
Constitution of India.
4.4 It is submitted that the action of the presiding officer in
restricting the petitioners from voting violates the statutory as
well as the constitutional right of the petitioners, and such
action of the presiding officer runs contrary to the principles of
fair election, hence, the impugned order as well as the action
of the respondent are required to be set aside and it is urged
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
that the respondent authorities may be directed to further re-
initiate the process from the stage of allowing the petitioners
to cast their votes.
CONTENTION OF RESPONDENT NO.7-APMC:
5. A fortiori, learned Senior Advocate Mr.B.S.Patel,
appearing for the respondent No.7-APMC, Vijapur, has
submitted that the writ petition cannot be entertained, at this
stage since it is the specific case of the APMC that the
petitioners are not its members and when such objections are
raised before the respondent No.4-Presiding Officer, they have
been precisely stopped from casting their votes.
5.1 Learned Senior Advocate Mr.B.S.Patel, has further
submitted that the petitioners are having an alternative
remedy of filing an election petition under Rule 28 of the Rules.
It is submitted that 10 members, whose names were included
in the voters list, have already challenged such action by filing
Appeal No.1 of 2023 before Director of APMC, Gandhinagar,
Gujarat State and the next date of hearing is kept on
10.04.2023. It is submitted that any order passed by this Court
in the present petition would directly have effect on the
election petition and hence, no orders are required to be
passed.
5.2 Learned Senior Advocate Mr.B.S.Patel, has further
submitted that in fact the petitioners are not the members of
respondent No.7-APMC and hence, they have no right to file
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
the writ petition. Thus, it is submitted that the writ petition
may not be entertained.
5.3 Learned Senior Advocate Mr.B.S.Patel, in support of his
submissions has placed reliance on the judgment of this Court
in the case of Prahladbhai Shivram Patel and others vs.
Director of Agriculture Marketing and Rural Finance and
others , 1998 (1) G.L.H. 95, and further he has placed reliance
on the Full Bench decision in the case of Daheda Group Seva
Sahakari Mandli Limited vs. R.D. Rohit, Authorized Officer and
Co-operative Officer (Marketing), 2006 (1) G.C.D. 2011. He has
also placed reliance on the judgment dated 06.02.2023 passed
by the Division Bench of this Court in Letters Patent Appeal
No.555 of 2022.
CONTENTION OF RESPONDENT NOS.5 AND 6:
6. Learned advocate Mr.Baiju Joshi, appearing for the
respondent Nos.5 to 6, while adopting the arguments
advanced by the learned Senior Advocate Mr.B.S.Patel, has
submitted that since the petitioners have ceased to hold
capacity of members of the APMC on the date of voting, no writ
can be issued in favour of the petitioners. It is submitted that
on the date of voting i.e. on 03.02.2023 since the petitioners
were not the members of the Managing Committee of the
APMC, they were precisely not allowed to cast their vote by the
Presiding Officer. Learned advocate Mr.Joshi, has further
submitted that since the issue is being examined in the
election petition, hence, the petitioners can also approach the
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
authority by filing an election petition and both the election
petitions can be heard together so that the persons whose
names were not included in the voters list as well as the
petitioners can have assert their right of casting vote being
members of the society. It is submitted that the respondent
no.6 is already elected as a Director of the APMC, hence an
direction issued by this Court will amount to his removal.
CONTENTION OF AGP:
7. Learned AGP Ms.Nidhi Vyas has submitted that the
presiding officer while restraining the petitioners from voting
has acted as per the Election Guidelines dated 03.12.1965 and
he is authorised to act so. She has submitted that that the
petitioners seized to hold the capacity of members of the
Committee on 21.08.2022 in view of formation of new
Committee, hence they were not allowed to vote. It is
submitted that since there is dispute with regard the
petitioners being the members of the Committee before the
date of publication of the voters list, the same can only be
examined in an election petition.
8. In response to the aforesaid submissions, learned Senior
Advocate Mr.Mihir Joshi has submitted that the pendency of
the election petition by some other members will not affect the
maintainability of the writ petition since both the issues raised
in the election petition and in the present writ petition is
independent of each other. It is submitted that in case the writ
petition is allowed and the petitioners allowed to vote, then the
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
consequence of such voting will not in any manner affect the
rights of the persons who have filed the election petition. With
regard to the Election guideline dated 03.12.1965, it is
submitted that the same nowhere prescribes that the presiding
officer can restrain any person from voting whose name is
entered in the voting list except in case of impersonation.
ANALYSIS AND CONCLUSION:
9. The following facts are established from the pleadings.
a) The election of the APMC, Vijapur was declared on
17.08.2022 by the respondent No.2. When the election were
declared the Committee comprised of the 10 petitioners who
were the members.
b) Thereafter, a new Committee comprising of 10 members
has been formed on 21.08.2022.
c) The preliminary voters list was published on 02.09.2022,
wherein at serial No.12, the name of the Society was included
and the names of the petitioner Nos.1 to 10 were included in
the voters list.
d) An objection was raised by one Shri Jayantibhai Ambalal
Patel, against the names of the petitioners being included in
the voters list, and exclusion of their names from such list on
the formation of new committee, however such objection was
rejected by the order dated 02.09.2022 by the Authorized
Officer. The action of presiding officer officer in not including
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
their names in the voters list and continuing the names of the
old members ,i.e the petitioners in the voting list is assailed by
such members in Election Petition being Appeal no.1 of 2023.
e) The final voters list was published on 03.10.2022, wherein
the names of the petitioner Nos.1 to 10 have been included.
f) The voting for election was scheduled on 03.02.2023 and on
that day, on an objection being raised by the private
respondents, the Presiding Officer did not allow the petitioners
to cast their vote on the ground that they ceased to be the
members on 21.08.2022 due to formation of a new Committee.
Accordingly, on a demand made by the petitioners to pass
written orders in this regard, the Presiding officer has passed
the impugned order clarifying the aforesaid aspect.
g) The election result is declared on 03.2.2023, and the
respondent no.6 is elected as a Director of APMC.
10. From the aforenoted facts it is manifest that the
petitioners are not allowed to vote on the objection raised
against them of having being seized as members of the
Committee before preparation of preliminary and final voters
list. The petitioners are not denying the aforesaid facts that
new Committee has come into existence on 21.08.2022, before
their names were included in the preliminary voting list
published on 02.09.2022.
11. As mentioned herein above, the action of the authorised
officers of refusing to include the names of the new members
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
in the voters list of the new Committee has been questioned in
the Election Petition being Appeal No.1 of 2023 before the
Director of APMC, Gandhinagar, Gujarat State. Thus, there are
two categories of the persons of the same Committee, one
whose names were not included in the voters list and have
challenged such non-inclusion in the election petition being
Appeal No.1 of 2023, and the petitioners who are not allowed
to cast their vote on the ground that they have seized to be
the members of the Committee on 21.08.2022. It is the specific
case of the appellants in the election petition that the names
of the petitioners have been wrongly included in the voters list
by the Authorized Officer and the Members of the newly
formed Committee have been illegally barred from being
entered in the voters list.
12. The prayers made in the Appeal No.1. of 2023 by new
members are reads as under : - (Translated from the original
Gujarati).
"(A) Kindly admit the appeal. Kindly call for the
record of the respondent no.(1) Electoral Officer and
respondent no.(2) Authorized Officer, verify it and as
the Electoral Officer and District Registrar, Mahesana
has declared result of Agriculturist Division of
Agriculture Produce Market Committee, Vijapur on
04/02/2023 without allowing 10 committee members
of the applicant no.2 - society to vote, kindly grant
the right to vote to the existing committee members
of the society, take the same into account, hold
counting afresh and declare the result;
Alternatively,
(B) Kindly admit the appeal. Canceling the result of
Agriculturist Division of Agriculture Produce Market
Committee, Vijapur declared by the Electoral Officer
and District Registrar, Mahesana on 04/02/2023 after
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
calling for the record of the respondent no.(1)
Electoral Officer and respondent no.(2) Authorized
Officer and verifying it, kindly pass an order to hold
the election of the Agriculturist Division of Agriculture
Produce Market Committee, Vijapur again. "
13. Thus, the members of the new Committee which are 10
in numbers, have sought the prayers in the election petition
that they may be given right to vote in the election and
accordingly, new counting should be done and the result may
be declared. Those candidates have availed the remedy of
filing an election petition under Rule 28 of the Rules, which is
incorporated as under:
"RULE 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 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 ."
14. The petitioners, instead of filing election petition under
Rule 28 of the Rules, have directly rushed to this Court and
have filed the present writ petition. The Presiding officer, on
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
the objection raised against them that they have no right to
cast the vote since they have ceased to be members of the
Committee, which was formed on 21.08.2022 did not allow
them to cast their votes by observing that they do not qualify
to be the voters as per Rule 6 of the Rules. Though various
contentions are raised with regard to the violations of statutory
Rules and the provisions of the Act, this Court is of the
considered opinion that since any observation made by this
Court will have direct impact on the election petition which is
pending, I am not expressing opinion in this regard.
15. This writ petition cannot be entertained since the election
is already over and the respondent no.6 is elected as a
Director of APMC. The petitioners in the writ petition have
sought direction that their votes may be directly included and
counted, and the result of the election may be suitably
modified and declare the petitioner no.11 as elected. In case,
the writ petition is allowed in favour of the petitioners, the
election petition filed by the 10 members will have direct
impact since their prayers in the appeal with regard to allowing
them to cast the vote and also to declare new result will be
indirectly disallowed. The petitioners are seeking prayers in the
writ petition to get their votes counted, and altering of the
election result, though the APMC- respondent No.7 has
categorically contended before this Court that the petitioners
have ceased to be its members on the formation of new
Committee on 21.08.2022. Thus, there are disputed questions
of facts involved in the present writ petition and the only
forum, which can examine the rival claims, is the authority
under Rule 28 of Rules.
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
16. At this stage, it would be apposite to refer to the
observations made by the Full Bench in the case of Daheda
Group Seva Sahakari Mandli Limited (supra), read as
under :-
"22 Provisions of rule 28 of the rules are otherwise independent of
the provisions of rule 6 and are not in any manner, controlled by
rule 6 and provide for remedy for resolution of all kind of election
disputes. If the provisions of rule 6 and rule 28 are not interpreted
in the wider spectrum and in light of the intent of the legislature as
discussed hereinabove, the same would create two classes i.e. (1)
one which can challenge the wrong inclusion only by way of
election petition, and (ii) the other which can challenge the non-
inclusion i.e. exclusion by way of writ petition only. This could never
have been intended by the legislation. When remedy of election
petition is deemed fit and is provided as a statutory remedy then
every election dispute should be raised before the forum competent
to decide the same.
"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.
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
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 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."
17. The entire case of the petitioners is premised on the
provision of Rule 6 of the Rules. According to rule 6, a person
whose name is entered in the voters' list shall be qualified to
vote at an election to which the list of voters relates, unless he
has ceased to hold the capacity in which his name was entered
in such list . The Full Bench has held that if the provisions of
rule 6 and rule 28 are not interpreted in the wider spectrum
and in light of the intent of the legislature as discussed
hereinabove, the same would create two classes i.e. (1) one
which can challenge the wrong inclusion only by way of
election petition, and (ii) the other which can challenge the
non-inclusion i.e. exclusion by way of writ petition only. It is
held that this could never have been intended by the
legislation, and the remedy of election petition is deemed fit
and is provided as a statutory remedy then every election
dispute should be raised before the forum competent to decide
the same. It is held that only in an exceptional case, this Court
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
can exercise the power of judicial review, which is a basic
structure of the situation in such cases more particularly, in the
election process. It is apposite to note that the Full Bench has
dealt with the issue of non-inclusion of names in the voters list
which still has the scope of interference in a writ petition,
however, in the present case, the election is already over, and
the respondent no.6 is already elected as a member.
18. Similarly, the Division Bench, after following the
judgment of the Full Bench in the judgment dated 06.02.2023
passed in Letters Patent Appeal No.555 of 2022, after survey
of the various judgments, has held the same view. In the case
of Manubhai Hargovanbhai Joshi (supra), the Full Bench
has dealt with the issue of filling up of seats by nomination
under section 11(3) of the Act, and the exclusion of the
petitioners name from the voters list. Similarly, in case of
Iswarbhai Naraynabhai Patel (supra), the issue was again
with regard to the voters list. In the last paragraph of the said
judgment, the Division Bench has recorded that "the result of
the election are not declared". In case of Vasantbhai Vadilal
Joshi (supra), the facts recorded in the judgemnt suggest
that it was a gross case, wherein the applicant was arrested on
the date of election on the last minute for the FIR of offence
under section 409 of the Indian Penal Code, which was lodged
one day prior to the holding of election that too for the
offences which had committed nine years back. In the
backdrop of these facts, the Division Bench has held that the
Court cannot turn a blind eye to what has been brought to its
notice, and tomorrow same thing may be repeated with
impunity. The petitioners cannot gain from the observations by
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
the Division Bench in the given facts. As noted hereinabove,
when the counterparts of the petitioners, who are the
members of the respondent no.7 have approached by filing the
election petition, the petitioners can also adopt the same
approach so that both the election petitions can be heard
together and their rival claims can be examined.
19. The distinguishing feature in this case from the all the
judgments cited at the bar [except in case of Vasantbhai
Vadiala Joshi (supra)] is that in the present case, the
elections are already over and the results are declared. Once
the elections are over and the results are declared, the only
remedy available to the aggrieved party seeking fresh result
by casting or re-casting the vote is filing of an election petition
under Rule 28 of the Rules. There is also dispute raised by the
respondent no.7 that the petitioners have ceased to be its
member and they were not authorized to cast their vote. There
are facts which are in dispute with regard to the rival claims of
the persons, who have filed the election petition and the
petitioners, who claim that they are entitled to cast their vote.
In an election petition, the authority can always examine the
role of the Presiding Officer, who in the given circumstances
which can be proved by leading evidence, did not allow the
petitioners to cast the vote. The authority can examine
whether the Presiding Officer has acted de hors the provision
of the statute, and if it is found that he has acted beyond his
powers or authority appropriate directions can be issued for
setting aside the entire election.
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
20. In the present case, the petitioner by seeking the
direction to include their votes, counting the same in the result
and declaring the new result will amount to re-initiation of an
election process, and this Court in the writ petition cannot issue
such direction in wake of the fact that the election process is
over. Such an approach will run contrary to the statute, and the
election which has become final will commence from the stage
of voting. The entire election can be set aside after examining
all the aspects which are raised in the writ petition by the
authority examining the election appeal.
21. Thus, the writ petition is dismissed since the petitioners
can also resort to the remedy of filing an election
petition/appeal under Rule 28 of the Rules, which has been
done by the members of the respondent No.7-APMC, being
election petition i.e. Appeal No.1 of 2023. The interest of the
petitioners and the members of the committee, who have filed
the election petition and the respondent no.7-APMC, is
intrinsically connected. Any observation made in favour of the
petitioners by ignoring the provisions of Rule 28 of the Rules,
this Court will be indirectly setting aside the election result
without adjudicating the claim of the persons, who have filed
the election petition. In case any direction is issued in the
present writ petition setting aside the action of the presiding
Officer and allowing the petitioners to cast the votes will
amount to debarring the members of the Committee from
casting their vote, who have sought such relief in the election
petition. It will also amount to setting aside the election of the
Respondent no.6 as a Director of the APMC.
C/SCA/2185/2023 JUDGMENT DATED: 14/03/2023
22. Thus, the writ petition does not merit acceptance since
the petitioners can avail an efficacious alternative remedy of
filing an election petition/appeal under Rule 28 of the Rules. It
is clarified that this Court has even otherwise not opined
anything on merits. It would be open for all the respective
parties to take all available contentions in election
petition/appeal. Rule is discharged accordingly.
Sd/- .
(A. S. SUPEHIA, J)
MB/ 42
