Gujarat High Court
The Sukhiyapuri Vibhag Fal And ... vs State Of Gujarat on 17 May, 2023
Bench: J. C. Doshi
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6984 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 6986 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE SUKHIYAPURI VIBHAG FAL AND SAKBHAJI UDPADHAKONI KHARID
AND VECHAN KARNARI SAHAKARI MANDALI LTD
Versus
STATE OF GUJARAT
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Appearance:
MR VC VAGHELA(1720) for the Petitioners
MS HETAL PATEL, AGP for the Respondent(s) No. 1 to 4
MR BS PATEL, SR. ADVOCATE with MR UMANG H OZA(2440) for the
Respondent(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/05/2023
ORAL JUDGMENT
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
1. Rule returnable forthwith. Learned AGP Ms. Hetal Patel
and learned advocate Mr. Umang Oza waives service of notice of
rule for the respondent Nos.1 to 4 and respondent Nos.5 to 6
respectively.
2. With the consent of learned advocates for both the sides,
the matters are taken up for final hearing at the admission
stage. Since in both the Special Civil Applications, facts are
similar, upon request of learned advocates for both the sides,
Special Civil Application No.6984 of 2023 is taken as lead
matter.
3. The fact is taken from Special Civil Application No.6984 of
2023. It is briefly stated as follows:-
3.1 The petitioners society are functioning as per the
provisions of the Gujarat Agriculture Produce and Marketing
(Promotion and Facilitation) Act, 1963 (in short "the APMC Act")
and Gujarat Agriculture Produce Market Rules, 1965 (in short "
the Rules") as well as the bylaws of the society. It is the case of
the petitioners that the respective societies are carrying on
activities of selling and purchasing of agricultural produce within
the market area and they are holding the general licence and
they are engaged in the business in conformity with their
respective objects stated in the bylaws and their accounts are
also audited in their respective class as the case may be.
3.2 The election of the APMC, Godhra has been declared vide
notification dated 28.2.2023. As per the election programme,
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
the voters' name were forwarded for the voters list. The
preliminary voters list is published on 16.3.2023 and the
election is scheduled on 31.5.2023. In preliminary voters list,
the names of the petitioners were included, however, respondent
No.5 and 6 filed objections against the inclusion of the names of
the petitioners society in the voters list. Consequent to the
objections and issuance of the show cause notice, the petitioners
appeared before the authorized officer and filed reply stating that
they are engaged in the business of selling and purchasing of
agricultural produce and are holding general licence of the
market committee and therefore, the objections preferred by the
respondent Nos.4 and 5 are vague and could not sustain.
3.3 It is further the case of the petitioners society that the
petitioners society are registered as a Fruits and Vegetables
society, but as the fruits and vegetables were deregulated from
the schedule, the petitioners society got their bylaws amended in
the year 2016 and got their societies working as a Cooperative
Marketing Society dealing with selling and purchasing of
agriculture produce, seeds, pesticides, fertilizers etc. The
petitioners society also obtained licence of the market committee
which is renewed by every year. The petitioners are also paying
the cess and the service charge etc.
3.4 It is further case of the petitioners that the authorized
officer who has no jurisdiction to initiate the fishy or rowing
inquiry for the fact finding under the Rule 8 of the Rules has
transgressed its jurisdiction and decided that the petitioners are
not engaged in the business of agriculture produce and
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
therefore, their names cannot remain in preliminary voters list
and as such, has excluded the names of the petitioners from the
preliminary voter list.
3.3 According to the petitioners, the above act of the
authorized officers de hors the provisions of the APMC Act and
as such, has created the extraordinary circumstances to invoke
the jurisdiction under Article 226 of the Constitution of India.
Hence, these petitions claiming following relief:-
"(B) Your Lordships may be pleased to issue a writ or
mandamus or writ in nature of mandamus or any other
approopraite writ, order or direction quashing and setting
aside order dated 5.4.2023 passed by respondent No.4
and further be pleased to direct respondent No.4 to
continue the name of the members of the Managing
Committee of the petitioner societies in the voters list for
Godhra APMC and allow the members of the Managing
Committee of the petitioner societies to take part in the
election of Cooperative Marketing Societies constituency
of Godhra APMC to be held on 31.5.2023.
(C) Pending admission, hearing and final disposal of this
petition, Your Lordship may be pleased to stay the
execution, operation and implementation of order dated
5.4.2023."
4. Learned advocate Mr. VC Vaghela appears for the
petitioners, learned AGP Ms. Hetal patel appears for the
respondent Nos.1 to 4 and learned Senior Counsel Mr. BS Patel
along with learned advocate Mr. Oza appears for the respondent
Nos.5 and 6.
5. Learned advocate Mr. Vaghela having taken this Court
through sections 10 and 11 of the APMC Act and more
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
particularly, sub section (1)(iii) of section 11 of the APMC Act,
argued that every market committee shall be consist of two
representatives of cooperative marketing societies. Qualification
for such representatives is that it should be situated in the same
market area, it must holding the general licence and must
engage in the business in conformity with their respective
objects and lastly, their accounts are audited. He would submit
that in the present case, the petitioners have met with all four
conditions stated in sub section (1)(iii) of section 11 of the APMC
Act and yet, the authorized officer by transgressing his
jurisdiction, upon rowing inquiry held that the petitioners are
not doing business as per their respective objects stated in the
bylaws and therefore, their names should be excluded from the
voters list.
5.1 Learned advocate Mr. Vaghela would further submit that
initially, the petitioners society were registered as fruit and
vegetable society, but since, the business of selling fruits and
vegetable is deregulated from the schedule annexed with the
APMC Act to be considered as agriculture produce, the
petitioners society have amended the bylaws and included
selling of agriculture produce like seeds, fertilizers etc. in their
object. He would further submit that admittedly, the petitioners
have paid the service charges as well as market cess etc. to the
APMC which indicates that the petitioners socieity are indulged
in the activity of selling agriculture produce and the authorized
officer in this given circumstances ought to have accepted that
since the petitioners are paying the service charges, market cess
etc., they are indulged in the business of selling the agriculture
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
produce. He would further submit that the authorized officer
has to accept this aspect and cannot go beyond certificate and
the acknowledgment/receipt issued by the APMC by raising the
rowing inquiry which is essentially in nature of summary
inquiry, but has to accept what is stated in the
acknowledgment/receipt and the certificate issued by the APMC.
Therefore, learned advocate Mr. Vaghela submits that the
authorized officer has transgressed his jurisdiction by embarking
upon the detailed inquiry and thereby, has committed the
jurisdictional error which has given cause to the petitioners to
file these petitions and invoke the extraordinary jurisdiction
under Article 226 of the Constitution of India.
5.2 Learned advocate Mr. Vaghela referred to judgment of Full
Bench of this Court in case of Daheda Group Seva Sahakari
Mandli Limited Vs. RD Rohit, Authorized Officer and Cooperative
Officer reported in 2006 (1) GCD 211, would contend that if
order is without jurisdiction passed by the authorized officer, it
is always amenable to the extraordinary jurisdiction under
Article 226 of the Constitution of India.
5.3 Insofar as maintainability of the petitions, he would submit
that the present petitions fall in the category of extraordinary
situation. He would also submit that the object of the present
petitions is not to blockage the election process, but to smoother
it. Hence, this petition is maintainable to fortify the submission.
Learned advocate Mr. Vaghela has referred to the judgment of
the Division Bench in case of Shrutbandhu Popat Vs. State of
Gujarat reported in 2007(3) GLR 1942 and judgment of the
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
Hon'ble Apex Court in case of Election Commission of India
through Secretary Vs. Ashok Kumar reported in 2000(0) GLHEL
SC 8507.
5.4 Further, on the issue of maintainability of the writ petition,
learned advocate Mr Vaghela also relied upon the judgment of
the learned Single Judge in case of Pandhara Juth Vividh
Karyakari Sahkari Mandli Limited Vs. State of Gujarat rendered
in Special Civil Application No.4082 of 2023 and allied matters
to contend that this Court has exercised the extraordinary
jurisdiction whenever it finds that the authorized officer has
committed jurisdictional error or passed the order without
jurisdiction. He would further submit that this judgment is
confirmed in the LPA No.398 of 2023 and allied matters.
5.5 Qua the scope of the inquiry to be held by the authorized
officer, learned advocate Mr. Vaghela relied upon the judgment
of the Division Bench of this Court in case of Kanubhai Manilal
Patel Vs. State of Gujarat reported in 2015 JX (Guj)-0-354.
5.6 In nutshell, referring and relying upon the above judgment,
learned advocate Mr. Vaghela would submit that the authorized
officer has passed the impugned order transgressing its
jurisdiction by making the rowing inquiry instead of summary
inquiry and such order since is without jurisdiction is amenable
to the extraordinary jurisdiction of this Court and as such, writ
is maintainable. He would further submit that since the APMC
has issued the certificate as well as issued the receipt for
marketing yard cess and service charges, which indicates that
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
the petitioners are indulged in selling the agriculture produce
over and above fruits and vegetables, for authorized officer there
was reason to take different view and since he has taken the
different view, it amounts to transgressing the jurisdiction or
order without jurisdiction and therefore, he urged that since due
to the jurisdictional error on the part of the authorized officer,
the valuable right of the petitioners has been jeopardized, he
seeks interference of this Court and urged for granting the relief
beseeched.
6. The petitions are strongly resisted by learned AGP Ms.
Hetal Patel by arguing that present petitions are not
maintainable in view of alternative efficacious remedy available
under Rule 28 of the Rules. She would further submit that since
the election process of the APMC has already begun, until an
extraordinary circumstance is stated or shown to the Court, the
Court should be slow and circumspect in interfering with the
election process. She would further submit that it is a settled
law that any petition or any attempt interrupting, obstructing or
delaying the process of the election is not permissible, inasmuch
as, no judicial intervention is available and therefore, present
petitions is bereft of merit and thus, she submits to dismiss this
petition.
6.1. Qua the scope of the inquiry, learned AGP Ms. Hetal Patel
referred to judgment of Mandropur (Fatehpur) Juth Seva Sahkari
Mandali Limited Vs. State of Gujarat reported in 2017 (2) GLR
1495 and contended that the judicial concept of summary
inquiry would not exclude the undertaking of actual and factual
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
inquiry, but since it is summary inquiry, would be of minimum
nature to be done in non-elaborate way. It would include
availing and knowing bare minimum facts and to find out
whether the requisite root facts exist. She would further submit
that in the present case, the authorized officer has made
summary inquiry only to find out the requisite root facts that
whether the petitioners are selling agriculture produce over and
above the fruits and vegetables for which the authorized officer
was holding the jurisdiction. By doing so, it has not
transgressed its jurisdiction and as such, the impugned order is
within the legal bounds and periphery and therefore, the
petitions sans merit. The petitioners have failed to make out any
extraordinary case to interfere with the election process.
6.2 Upon such submission, learned AGP Ms. Patel would
submit to dismiss these petitions.
7. Learned Senior Counsel Mr. BS Patel assisted by learned
advocate Mr Oza having taken this Court through the definition
of cooperative marketing society defined in section 2(v) along
with definition of agriculture produce defined in section 2(i) of
the APMC Act along with the documents annexed with the
petitions, argued that the petitioners are not the Cooperative
Marketing Society engaged in the business of buying and selling
the agriculture produce and since, the schedule stated in section
2(i) of the APMC Act is deregulated, now, selling of fruits and
vegetables are not considered as selling of agriculture produce,
the petitioners who are primarily engaged in selling such fruits
and vegetables cannot be considered as cooperative marketing
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
society and cannot be considered as eligible in a voters list.
7.1 Taking this Court through the impugned order, learned
Senior Counsel Mr. Patel would submit that the petitioners were
failed to produce stock register, sell register or the bills/invoices
indicating that the petitioners engaged in the business of selling
or purchasing agriculture produce, they cannot be considered as
cooperative marketing society which has been rightly assessed
by the authorized officer. He would submit that Rule 7 is for
preparation of the list of voters for the general election of the
market committee, whereas Rule 8 is a procedure provided for
provisional and final publication of the list of the voter. Marking
the difference between the language couched in Rule 7 and Rule
8, learned Senior Counsel submits that Rule 7 is a preparation
of the voters list, whereas Rule 8 is regarding publication of
provisional and final list, whereby the authorized officer is
authorized to examine that whether the names of the voters are
correctly or incorrectly entered and after that adjudication, of
course, under summary inquiry, the authorized officer is
authorized to publish the final list. He would further submit
that the authorized officer in present case has rightly carried out
the procedure which was within his legal bounden and his
jurisdiction, the authorized officer has not committed any
illegality and as such, the petitions are without any merit and
require to be dismissed.
7.2 Further, taking this Court through various documents on
record, he would submit that even as per the documents
produced by the petitioners, they are engaged in selling and
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
purchasing of fruits and vegetable only and not in selling or
purchasing the agriculture produce, the audit report produced
by the petitioners clearly indicates so. He would further submit
that in view of such, the petitioners have no case to say that
their names should be included in the voters list merely upon
receipt of the market cess or service charges which is usually
taken by the APMC allowing the petitioners to sell or purchase
the fruits and vegetables in the marketing yard, but by no
means, such receipt of market cess or service charges would
indicate that the petitioners are selling the agriculture produce
and they are Cooperative Marketing Society within section 2(v) of
the APMC Act. He would further submit that the authorized
officer, to publish voters list as per Rule 8 of the Rules, has to
find out the root fact by conducting summary inquiry. He would
further submit that while doing so, the authorized officer found
that the petitioners' inclusion in preparation of the voters list
was incorrect and therefore, the petitioners were rightly excluded
from the final voter list.
7.3 Learned Senior Counsel Mr. Patel referring the judgment of
Daheda Group Seva Sahakari Mandli Limited (supra) which was
followed in case of Mohamed Javid Abdulmutlib Pirzada vs. State
of Gujarat rendered by Division Bench of this Court in LPA
NO.555 of 2022 and the judgment of the learned Single Judge of
this Court in Special Civil Application No.7009 of 2023 with
allied matters in case of the Chanchpur Arthsam Seva Sahakari
Mandali Limited Vs. State of Gujarat, argued that since
alternative and efficacious remedy in Rule 28 is available to the
petitioners to raise all the grievances before concerned forum,
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
which are raised before this Court, present petitions are not
maintainable, as the petitioners are failed to display any
extraordinary jurisdiction. He would further submit that Special
Civil Application No.7009 of 2023 and other allied maters were
the similarly situated matters, and in which, the learned Single
Judge after referring the judgment of Daheda Group Seva
Sahakari Mandli Limited (supra) as well as the judgment of
Mohamed Javid Abdulmutlib Pirzada (supra) pleased to dismiss
the writ petition by observing that the petitioners were failed to
make out exceptional case warranting interference by this Court
under Article 226 of the Constitution of India and accordingly,
dismissed the said petitions, present petitions being part of the
said group of petitions, deserve same fate of dismissal. Upon
such submission, learned Senior Counsel Mr. Patel submits to
dismiss the petitions.
8 No other and further arguments are canvassed.
9. This Court has heard learned advocates for the respective
parties at the length.
10. Since the present petitions have been hotly confronted with
the submission that the alternative and efficacious remedy is
available under Rule 28, the present petitions are not
maintainable. Let refer Rule 28 as under:-
"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
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
refers such person may, within 7 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. "
10.1 Aforesaid provision indicates that the issue of inclusion/
exclusion from the voters list could be effectively ventilated
before the forum provided by Statute.
11. The Division Bench of this Court in case of Mohamed
Javid Abdulmutlib Pirzada (supra), examined the issue of
availability of alternative and efficacious remedy after referring
the Full bench in Daheda Group Seva Sahakari Mandli Limited
(supra), para 10, and 11 of the judgment reads as follows:-
"[10] We have even independently examined the said
issue relating to alternative and efficacious remedy
available and find that conjoint effect of the relevant rules
would clearly indicate that possible view of the learned
Single Judge is not erroneous rather said view is well
supported by the decision delivered by full bench of this
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
Court in the case of Daheda Group Seva Sahakari Mandli
Limited (supra). We deem it proper to extract and quote
hereunder the relevant paragraphs from the said
decision:- "4. In view of the conflicting judgments of the
Division Benches of this Court wherein some of the
Division Benches had taken a view that the inclusion or
non-inclusion of the names in the voters' list cannot be
made a ground in an election petition, while the other
view is that preparation of the voters' list which includes
deletion of the names in the voters' list being integral, the
questions can be raised in an election petition under rule
28, the Division Bench felt that the matters need hearing
by a larger Bench to settle all the disputes once and for
all. Hence this group of petitions has been referred to us
to answer the following questions: I. Whether a person
whose name is not included in the voters' list can avail
provisions of rule 28 of the rules by filing election petition
? II. Whether the remedy under rule 28 can be termed to
be efficacious remedy ? 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 ?
25. The Division Bench of this Court in a decision
rendered in the case of Kanubhai Chhaganbhai Patel v.
Director of Agricultural Marketing & Rural Finance,
Gandhinagar and Ors. (2004 (3) GLR 2718 (supra),
rightly held that the decision rendered by the Division
Bench in the case of Mehsana Dist.Coop.Purchase and
Sales Union Ltd. (supra) (1998 (1) GLH 170, could have
referred the matter to the Larger Bench if at all while
taking a different view than the view expressed in the
earlier two decisions of the Division Benches. The said
Division Bench, though referred to those two decisions of
the earlier Division Benches but took absolute contrary
view than the view expressed by the earlier two decisions.
(1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex
Court in the case of Atma Ram v State of Punjab (AIR
1959 SC 519), observed that - "where a Full Bench of
three Judges is inclined to take a view contrary to that of
another Full Bench of equal strength, the better course
would be to constitute a larger bench". 26. We may make
it clear that by interpreting Rule 6 and 28 of the Rules,
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we are not enlarging the scope of the legislation or
intention of the legislator nor recasting, rewriting or
reframing the legislation. We are conscious of the fact
that the Court has no power to legislate. Therefore, the
decision rendered by the Hon'ble Apex Court in the case
of State of Gujarat and Ors v. Dilipbhai Nathjibhai Patel
and Ors., reported in AIR 1998 SC 1429 cited by Mr B S
Patel will be of no assistance to him.
32. We have gone through the aforesaid decisions closely.
There cannot be any dispute with regard to the principles
laid down therein. The sum and substance of those
decisions apply to a situation where this Court would like
to entertain a petition on the foundation that the order is
ultra vires and/or without jurisdiction and/or is violating
principles of natural justice. Thus, in an exceptional
case, this Court can exercise the power of judicial review,
which is a basic structure of the situation in such cases
more particularly, in the election process. One thing is
clear that this Court ordinarily would not like to exercise
its power under Article 226 of the Constitution when the
process of election has been set in motion even though
there may be some alleged illegality or breach of rules
while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant
Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha and Ors. v. State of
Maharashtra and Ors (2001) 8 SCC 509, while dealing
with the Maharashtra Cooperative Societies Act, held that
in the process of election of the Managing Committee of a
specified society where the election process having been
set in motion, the High Court should not stay the
continuation of the election process even though there
may be some alleged illegality or breach of rules while
preparing the electoral roll. It was held that the proper
remedy is by way of election petition before the Election
Tribunal.
33. In view of the above discussion, we answer the
Reference as under: i. A person whose name is not
included in 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
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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."
[11] Keeping in view of the aforesaid binding decision of
the full bench of this Court, we are in complete
agreement with the view taken by the learned Single
Judge. At this stage, we may clarify that in view of the
settled proposition of law, when statue has created
remedy to redress grievance, it is always permissible for a
person while invoking same to raise all permissible
contentions in accordance with law, we also clarify here
that since specific remedy under the statute is available
as indicated above, the issue of jurisdiction namely
whether authorized officer was justified in entertaining
objections also can be raised before said authority and we
expect that same will be examined by such authority in
its proper perspective and record a finding. Since learned
Single Judge has also opined similarly, nothing on this
issue is tried to be as raised before us by the learned
counsel appearing for the appellants. We make it clear
that we have not expressed any opinion on it and leaving
it open for the appellants to raise the same before
appropriate authority, if they choose to do so under Rule
28, we are not inclined to entertain this appeal. Further,
it is not possible to arrive at a definite conclusion as to
whether opportunity was given or not to the appellants
since it is bare assertion by way of averments and as
such, it is not possible for this Court to safely conclude
as to whether appellants were given any opportunity or
not by Authorized Officer while arriving at a decision and
as such, normally, fact finding forum which has already
been created under the statute would adjudicate such
disputes on the basis of oral as well as documentary
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
evidence produced before such authority and as such, it
is apt and appropriate not to exercise extraordinary
jurisdiction to accept such contention of the appellants
more particularly, when same was not even canvassed
before the learned Single Judge. Hence, we deem it
proper to observe that the appellants would be at liberty
to raise all possible contentions and since said authority
has to examine such issues. We hereby make it clear that
we have not expressed any opinion even on the issue
relating to effect of Rule 8 (1A), and it would be open for
the appellants to canvass the same before the competent
authority."
12. To arrive at the conclusion that whether names of the
petitioners are to be included in the voters list or otherwise is a
finding of the fact. Rule 28 of the Rules provides the forum
created under the statute and would adjudicate any such issue
on the fact based on the oral as well as documentary evidence
produced before such authority.
13. Considering the judgment of Daheda Group Seva Sahakari
Mandli Limited (supra), the relevant paragraph of which
reproduced in the judgment of Mohamed Javid Abdulmutlib
Pirzada (supra) and observation made therein having a binding
effect, the contentions raised by learned advocate Mr. Vaghela
are of no assistance as the said issue is squarely covered up and
decided in the aforesaid judgments.
14. At this juncture, this Court would refer to the observations
of this Court in Mandropur (Fatehpur) Juth Seva Sahkari
Mandali Limited, wherein para 5.3 and 5.4 has held following:-
"5.3 The juridical concept of summary inquiry, therefore
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would not exclude the undertaking of the actual factual
inquiry, but such inquiry would be of minimum nature to
be done in non-elaborate way. Summary inquiry does not
postulate absence of inquiry or that the inquiring person
should blindly accept something by handicapping his task
on the count that his inquiry was only to be summary.
Summary decision and summary inquiry would refer to a
decision or inquiry which is short and quick and not
elaborate but it would not mean a nonreasoned
performance. Nor it implies prohibition against inquiring
into the facts necessary to be inquired.
5.4 Summary nature of the inquiry is not to be confused
with a cursory or a casual inquiry. Inquiry of summary
nature is an inquiry into minimum necessary facts to find
out a thing or to ascertain a state of affair in respect of a
fact or aspect for which derivation of knowledge, and for
that purpose the inquiry is intended. A summary inquiry
would indeed include availing and knowing bare
minimum facts and to find out whether the requisite root-
facts exist. It is not the process of adjudication."
15. Applying the aforesaid principles to the facts of the present
case and the contents of the order of the authorized officer, this
Court is not inclined the entertain present Special Civil
Applications and the petitioners are failed to make out any
exceptional case warranting interference of this Court under
Article 226 of the Constitution of India, more particularly in
view of alternative and efficacious remedy available to the
petitioners society and more particularly in absence of any
extraordinary circumstances.
16. The judgment referred herein t and relied upon by learned
advocate Mr. Vaghela will not render assistance and they are on
the different facts. Insofar as case of Daheda Group Seva
Sahakari Mandli Limited (supra), it has been referred to and
C/SCA/6984/2023 JUDGMENT DATED: 17/05/2023
relied upon by the Division bench of this Court in Mohamed
Javid Abdulmutlib Pirzada (supra) while examining the
availability of alternative and efficacious remedy.
17. For the foregoing reasons, this Court find no merit in the
petitions warranting the interference of this Court under Article
226 of the Constitution of India. This Court makes it clear that
this Court has not examined the merits of the contention raised
by learned advocates for both the sides and it would be open for
the petitioners to canvass the same before the competent
authority if the petitioners are advised to choose forum under
Rule 28 of the Rules. Accordingly, present petitions are
dismissed. Rule is discharged.
18. As main petitions are dismissed, Connected CA, if any,
does not survive and stands disposed of accordingly.
Sd/-
(J. C. DOSHI,J)
SHEKHAR P. BARVE
