Gujarat High Court

Joitabhai Magandas Patel vs State Of Gujarat on 2 April, 2025

Author: Biren Vaishnav

Bench: Biren Vaishnav

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                          C/LPA/382/2023                                  CAV JUDGMENT DATED: 02/04/2025

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                                                                         Reserved On   : 25/03/2025
                                                                         Pronounced On : 02/04/2025

                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                           R/LETTERS PATENT APPEAL NO. 382 of 2023

                                     In R/SPECIAL CIVIL APPLICATION NO. 2185 of 2023

                                                           With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                                       In R/LETTERS PATENT APPEAL NO. 382 of 2023

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
                       VAISHNAV

                       and
                       HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                       ==========================================================

                                   Approved for Reporting                  Yes            No

                       ==========================================================
                                              JOITABHAI MAGANDAS PATEL & ORS.
                                                           Versus
                                                  STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       MR.MIHIR JOSHI, LD. SENIOR ADVOCATE with MR DIPAN DESAI(2481)
                       for the Appellant(s) No. 1,10,11,2,3,4,5,6,7,8,9
                       MR.AAKASH CHHAYA, AGP for the Respondent(s) No. 1
                       MR BAIJU JOSHI(1207) for the Respondent(s) No. 5,6
                       MR.B.S.PATEL, LD. SENIOR ADVOCATE with MS ASHA D TIWARI(2983)
                       for the Respondent(s) No. 7
                       NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
                       ==========================================================

                         CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
                               JUSTICE BIREN VAISHNAV
                               and
                               HONOURABLE MR. JUSTICE HEMANT M.
                               PRACHCHHAK




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                          C/LPA/382/2023                                       CAV JUDGMENT DATED: 02/04/2025

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                                                         Date : 02/04/2025

                                                         CAV JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV)

1. This appeal under Clause 15 of the Letters

Patent has been filed by the appellant

challenging the oral judgement dated 14.03.2023

passed by the learned Single Judge. The learned

Single Judge dismissed the petition of the

appellants on the ground that the

petitioners/appellants herein can avail an

alternative efficacious remedy of filing an

election petition/appeal under Rule 28 of the

Gujarat Agricultural Produce Markets Rules,

1965 (hereinafter to be referred to as 'the Rules'

for short).

2. Facts in brief as set out by the learned Single

Judge which we reproduce so as to avoid the

reiteration thereof read as under:

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"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

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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 of the petitioner Nos.1 to 10 in the voters list. The provisional voters list was published on 22.09.2022 and

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

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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

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."

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3. What therefore is evident from the narration of

facts is that for the purposes of election of the

APMC, Vijapur, a preliminary voters' list was

published on 02.09.2023. According to the

appellants, the name of the society i.e. Vajapur

Seva Sahakari Mandli Limited was included in

the voters' list in the capacity of members of the

Managing Committee and the names of the

appellants were included in the voters' list. On

one Jayantibhai Patel lodging an objection

against the inclusion of the appellants on the

ground that the newly elected committee be

included by deleting the name of the appellants,

the objections were rejected and the provisional

voters' list was published on 22.09.2023. A final

voters' list was published on 03.10.2023. Briefly,

the election program was suspended due to covid

and thereafter, after an order of the director

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dated 17.01.2023, voting commenced on

03.02.2023 and when the petitioners-appellants

had gone to vote, they were restrained to cast

their votes on the ground that their qualification

as voters under Rule 6 of the Rules were not

satisfied, the Presiding Officer passed the

impugned order dated 03.02.2023 restraining

from casting their votes. That order was a

subject matter of challenge in the captioned

petition.

4. Mr.Mihir Joshi learned Senior Advocate with

Mr.Dipen Desai made the following submissions:

4.1 Mr.Joshi would submit that the judgment of

the learned Single Judge dismissing the petition

on the ground that the petitioner had an

alternative remedy of filing an election petition

was clearly erroneous. He would submit that a

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Presiding Officer of a booth had no authority

under the law to prevent the voters from casting

their votes and therefore the order being without

jurisdiction, a writ under Article 226 ought to

have been entertained.

4.2 Mr.Joshi learned Senior Advocate would

submit that under the scheme of the Rules, the

Presiding Officer was only concerned with the

supervision of elections and he could not adopt

the role of an adjudicating authority to decide

the qualification of a voter.

4.3 Inviting our attention to Rule 21 of the

Rules, Mr.Joshi would submit that reading of the

Rules would indicate that an Election Officer

under the Rules has to look after the

arrangements for holding of elections. Such

arrangements include fixing of polling stations,

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appointment of Returning/Presiding and Polling

Officers and such other arrangements as may be

necessary for holding and supervision of election.

4.4 Inviting our attention to the definition of the

term 'Authorized Officer and Election Officer'

under the Rules, Mr.Joshi would submit that

under the Scheme of the Rules, it is only the

Authorized Officer who is vested with the duty of

preparation of list of voters after making an

inquiry. As far as Election Officers are

concerned under Rule 11 thereof, they have to

accept the nomination papers and verify the

names and under Rule 15 scrutinize such

nomination papers and deal with objections if

any and either reject or accept such objections in

context of the nomination papers. In other

words, the adjudicatory role of deciding

objections with regard to the qualification of the

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voter lies with the Authorized Officer and that

with regard to nominations lies with the Election

Officer. Once that stage of a decision making

process is crossed, a Presiding Officer of a booth

cannot under the guise of supervising election,

adjudicate upon the qualification of a voter and

his eligibility to vote.

4.5 Reading Section 11 of the APMC Act,

Mr.Joshi would submit that under the provisions

of Section 11, a market committee is constituted

consisting of members as set out in the section in

the facts of the present case, the petitioners

under Section 11(1)(i) are elected members of

the Managing Committee and were therefore

qualified to be voters. Under Section 11(4) the

term of office was for a period of five years.

Reading Rule 7(2) of the Rules, Mr.Joshi would

therefore submit that in accordance with the

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provisions of Section 11(1)(i), the names of the

appellants were communicated to the Authorized

Officer on the basis of the fact that they were

voters as being members of the Managing

Committee. In other words, on the cut-off date,

i.e. the cut-off date being 18.08.2022, when the

elections were declared, the fact that the

objectors were elected post that date on

21.08.2022, would not make them members of

the Managing Committee to be on the voters' list

which was prepared in accordance with the

schedule. The objectors therefore were not

entitled to be included as voters.

4.6 Inviting our attention to page 204A of the

paper-book, Mr.Joshi would submit that it was

the case of the objectors that they had become

newly elected members on 21.08.2022 whereas

the preliminary voters' list was published

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thereafter on 02.09.2022 and therefore they are

entitled to vote was an objection which was

rightly rejected by the Authorized Officer.

4.7 Inviting our attention to the order of the

Authorized Officer dated 22.09.2023, Mr.Joshi

would submit that the Authorized Officer had

opined that the notification for the election was

made on 18.08.2022 on which date the

appellants-petitioners who were admittedly

members of the Managing Committee and were

voters. The preliminary list was published on

02.09.2022. The submission of the objectors that

since they were elected with the new committee

on 21.08.2022 and therefore their names be

included in the voters' list were misconceived as

they became members of the Managing

Committee on 28.08.2022 i.e. after declaration of

the election program.

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Mr.Joshi would submit that once the

objections were rejected on the very same

ground by the Authorized Officer, it was not open

for the Presiding Officer to play a second innings

once the election programe was declared and the

preliminary voters' list became final, the names

of the appellants figured, it was not open for the

Presiding Officer under the guise of Rule 6 to

prevent the appellants from voting when Rule 6

was only an intervening provision which could

not be operated or relied upon at the stage of

voting.

4.8 Mr.Joshi relying on the provisions of

Sections 24 to 28 of the Representation of the

People Act, 1951 would submit that these

sections chalk out the duties of the Returning

Officer whereas Section 27 chalks out a duty of

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the Presiding Officer. All these provisions would

indicate that they pertained to the machinery for

conduct of election. Under Section 27 it is the

general duty of the Presiding Officer at a polling

station to keep order and to see that the poll is

fairly taken. Therefore, under the guise of

supervision of election, the Presiding Officer

cannot fall back on deciding the question of

qualification of a voter under Rule 6 when the

stage has already gone by.

4.9 Mr.Joshi learned Senior Counsel appearing

with Mr.Dipan Desai would further submit that

the Presiding Officer sought guidance from the

Election Officer when the objectors raised the

issue of qualification of the appellants as voters

and under a misconceived interpretation of the

1965 Guidelines which provide for conduct of

elections, the impugned order has been passed.

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Inviting our attention to paras 11 and 12 of the

affidavit in reply of the Presiding Officer, he

would submit that the contention of the

respondent Government that the guidelines

authorized a Presiding Officer to decide

objections is misconceived. The guidelines

provided that it is open for the Presiding Officer

to verity the identity of the voters when he comes

to the booth for election inasmuch as whether

there is no impersonation etc. The guideline

cannot be misconstrued to authorize a Presiding

Officer to disqualify the voters under the guise of

operating Rule 6, particularly when the very

same objection which the objectors had taken

but rejected by the Authorised Officer.

4.10 Mr.Joshi would invite our attention to para

2.12 to 2.16 of the petition to submit that the

Presiding Officer had acted with a mala-fide

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intention so that the panel backed by the ruling

party gets elected. There was therefore a mala-

fide exercise of powers and a writ petition would

lie.

4.11 In support of his submission that the learned

Single Judge had misconceived his finding of the

petition being not maintainable, Mr.Joshi would

cite the decision of the Division Bench in the

case of Vasundra Samudayik Kheti Sahakari

Mandli Limited v. State of Gujarat reported in

2011 JX (Guj) 1358. Mr.Joshi would submit

that considering the issue of alternative remedy

of Rule 28 of the Rules, and referring to the

decision of the Full Bench in the case of Daheda

Group Seva Sahakari Mandli Limited v.

R.D.Rohit Authorized Officer and

Cooperative Officer (Marketing) reported in

2006 (1) GCD 211, the Division Bench had held

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that though the Court may ordinarily not

interfere with the election process but when

circumstances are exceptional and which the full

bench also recognized, a writ petition would be

maintainable. Relying on a decision in case of

Union Territory of Ladakh v. Jammu and

Kashmir National Conference reported in

2023 (12) SCR 68, Mr.Joshi would submit that

as held by the Supreme Court, no litigant can be

rendered helpless and in the case at hand

admittedly when the exercise of powers by the

Presiding Officer was without authority of law, a

writ petition under Article 226 ought to have

been entertained. He would also rely upon a

decision of the Division Bench in case of Shree

Kanaiya Khet Utpadan Kharid Vechan

Sahakari Mandali Limited Throu Chairman/

Secretary & Ors. Versus Arshibhai Devabhai

Duva & Ors. rendered in LETTERS PATENT

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APPEAL NO.1139 of 2022 and allied matters.

Para 25 was pressed into service to submit that

in the facts of the case, obviously this was an

extraordinary circumstance where a writ petition

ought to have been entertained.

5. Mr.Aakash Chhaya learned AGP appearing for

the respondent no.1 would make the following

submissions:

5.1 Taking us through the notification declaring

the election which was dated 18.08.2022,

Mr.Chhaya would submit that in accordance with

Rule 6 of the Rules, in order to be eligible in the

voters' list, he has to be a member of the

Managing Committee. It is the case of the

objectors that the term of the Managing

Committee was expired before the notification

was issued. He would therefore submit that the

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appellant petitioners were not qualified to be

voters on the date of the notification and

Authorized Officer had therefore committed an

error in holding that the objectors' right to

inclusion in the list of voters and the deletion of

the appellants was not required as the objectors

were elected post the notification.

5.2 Mr.Chhaya would take us through the

affidavit-in-reply filed by the Presiding Officer

and also to that of the Committee. Reading the

affidavit of the Presiding Officer, Mr.Chhaya

would submit that the appellants had ceased to

hold the capacity of being members on

21.08.2022 and it was accordingly brought to the

notice of the Presiding Officer that on the day of

the election they were not qualified to be in the

list of voters and therefore the guidelines which

were invoked also authorized the Presiding

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Officer to go into the question of the voters'

qualification.

6. Mr.Baiju Joshi learned advocate appearing for

respondent nos.5 and 6 would make the

following submissions:

6.1 Mr.Joshi would submit that indisputably the

Managing Committee of the Vajapur Seva

Sahakari Mandli was to hold office for a period of

five years. This he would submit in light of the

provisions of Sections 74(1C)(i) and 74(1C)(ii) of

the Act. He would submit that the term of the

elected member of the Managing Committee was

for a period of five years. Clause (ii) would

provide that on the expiry of five years, the

elected members of the Managing Committee

shall cease to hold office. The elections of the

Committee were held in the year 2017. The term

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of the Committee therefore expired on

30.06.2022. In accordance with Rule 6 of the

Rules, the appellants ceased to hold the capacity

in which their names ought to have been entered

in the voters' list and therefore, their inclusion in

the voters' list and the election was vitiated and

therefore, an election petition was filed by the

aggrieved objectors and the learned Single Judge

committed no error in dismissing the petition.

He would also submit that having ceased to hold

office, the petitioners also could not have filed

the petition. As far as the guidelines are

concerned, he would submit that even under the

guidelines, the Presiding Officer is empowered to

look into the qualification of the voter.

7. Mr.B.S.Patel learned Senior Advocate appearing

with Ms.Asha Tiwari learned advocate for

respondent No.7 would make the following

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submissions:

7.1 Mr.Patel would submit that the learned

Single Judge has committed no error in

dismissing the petition on the ground of

alternative remedy. He would submit that the

learned Single Judge has not touched the

question of who is qualified, because the whole

question is at large in an election petition.

Inviting our attention to the observation of the

learned Single Judge where the learned Single

Judge has held that a direction cannot be issued

by allowing the petitioners to cast votes as such

a relief can be sought in an election petition.

Mr.Patel would submit that when the prayers in

the petition are examined, it would apparent that

the appellant has sought a writ of certiorari and

a writ of mandamus against the Presiding Officer

and a direction that the names of the appellants

be included and counted in the results. They had

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further prayed for quashing and setting aside the

election of the respondent no.6, all the issues as

rightly held by the learned Single Judge could

only be gone into in an election petition.

7.2 Mr.Patel would submit that a right to vote is

not conferred on an individual. Eligibility has to

be seen in light of the scheme of Section 11. The

Authorized Officer has wrongly considered the

judgement in context of the cut-off date. That

was not the issue before the Authorized Officer.

The Authorized Officer had to see whether on the

date of the voting he was a member or not.

When Rule 6 is read as a whole, what is evident

is that in order to be on the voters' list one has to

have the capacity and if the capacity to vote has

ceased, which in case of the appellants it did, as

their term was over on 30.06.2022, the Rule 6

was rightly operated. He would invite our

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attention to a decision in case of Prahladbhai

Shivram Patel and others v. Director of

Agriculture Marketing and Rural Finance &

Ors. reported in 1998 1 GLH 95. Inviting our

attention to para 15 of the decision, Mr.Patel

would submit that the Court had specifically held

that if one ceases to be a member of the

Committee, then right to vote evaporates. The

decision so rendered was confirmed by the

Division Bench.

7.3 He would rely on the decision of the Full

Bench in the case of Daheda Group Seva

Sahakari Mandli Limited (supra). He would

submit that the Full Bench had considered the

question of a remedy in context of inclusion and

a deletion of a name of voter and had specifically

answered that by holding that a person whose

name is not included in the voters' list can avail

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the benefit of Rule 28. He would submit that an

election petition is filed and pending by persons/

objectors whose names were not included in the

voters' list and therefore any decision in this

petition would directly affect the outcome

thereof and therefore the learned Single Judge

has rightly restrained from exercising

jurisdiction under Article 226.

7.4 Mr.Patel would also rely on the decision in

case of Mohmed Javid Abdul Mutlib Pirzada

and Ors. v. State of Gujarat and others

reported in 2023 (3) GLR 1755, in case of

Shaji K. Joseph v. V. Viswanath and others

reported in (2016) 4 SCC 429 and in case of

Gujarat University v. N.U. Rajguru and

others reported in 1987 (Supp) SCC 512, to

support his submission that since right to

election is a statutory right, when an alternative

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remedy of an election petition is available, the

petition was rightly dismissed. The 1965 policy

guidelines is in consonance with Rule 6.

8. In rejoinder, Mr.Mihir Joshi learned Senior

Advocate would submit that the question before

this Court is not that of inclusion and exclusion

of voters' list, but whether the booth officer had

the jurisdiction to prevent voters from voting.

Can he inquire into the qualification and whether

it is in his province to pass an order. He would

submit that the cooperative societies has no

interconnection. Once the final voters' list is out,

it is the cut-off date which becomes relevant,

otherwise, entire voters could be deleted by a

Presiding Officer once the list has become final.

A booth officer cannot override a final voters'

list. With regard to the objection that the

objectors had not been made a party, Mr.Joshi

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would submit that there was only one objector

who was party to the proceedings.

9. Having considered the submissions made by

learned counsels for the respective parties, the

question before this Court is whether the learned

Single Judge committed any error in not

entertaining the petition on the ground that the

appellants could avail of an efficacious

alternative remedy of filing a petition.

10. From the sequence of facts and dates, what is

evident is that the elections of APMC Vijapur,

were declared on 17.08.2022. The notification is

dated 18.08.2022. In accordance with the

scheme of the APMC Rules, wherever a general

election to a Market Committee is to be held, in

accordance with Rule 5 of the Rules, 3 separate

lists of voters has to be prepared. If we fall back

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on Section 11 of the Act, the voters' constituency

consist of 10 agriculturists whose names are

enlisted in the voters' list and who are elected by

the members of the Managing Committee,

traders' list etc. Under Rule 6 of the Rules, a

person whose name is entered in the list of voter,

shall be qualified to vote unless he has ceased

to hold the capacity in which his name was

entered in such list. Rule 6 therefore is the

threshold for a voter to cross so as to be eligible

to be able to vote at an election. It is only if this

primary requirement is satisfied i.e. the voters

still continues to hold the capacity to vote, can

his name be included in accordance with the

provisions of Rule 7 to 9 in a voters' list. True it

is that once the elections were notified on

18.08.2022 and the exercise of preparing a

preliminary voters' list was completed on

02.09.2022 and the petitioners/appellants were

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continued to find their name in the final voters'

list on 03.10.2022, the question before us is

whether the appellants could at all be persons

qualified to vote.

11. When we, in this context, see the objections

raised by one of the objectors, it was his case

that the elections of the Market Committee were

held in 2017. The appellants' term as members

of the Managing Committee was expired on

30.06.2022 and though the elections of new

committee were held and the objectors were so

elected on 21.08.2022, the appellants could not

be qualified as voters as they had ceased in their

capacity of being members of the Managing

Committee.

12. The Authorized Officer by the order dated

22.09.2022 had rejected the objections of the

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objectors. In other words, the objection of the

appellants' inclusion in the voters' list and the

exclusion of the objectors was a dispute that was

decided in favour of the appellants and against

the objectors. Aggrieved by this, the objectors

had filed an election petition which is at large

before the Director.

13. We have perused the memo of the election

petition at page 217 of the paper-book. The

pleadings in the election petition and the

grounds indicate that the appellants-petitioners

should not have been on the list of voters as their

term as members of the Managing Committee

was expired on 30.06.2022.

14. The contention of the learned Senior Advocate

Mr.Joshi that the Presiding Officer by the

impugned order was trying to play a second

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innings, is a submission which has not to be

accepted. Here is a case where the objectors

had lodged an objection of inclusion in the

voters' list the names of the appellants. The

ground for that objection was that having ceased

to be a member of the Managing Committee,

they had disqualified themselves to be voters as

Rule 6 specifically provided that a voter shall be

qualified to vote unless he has ceased to hold the

capacity in which his name was entered in such

list. The appellants' term having ended in June

2022, they had no right to have their name on

the voters' list. The question whether their

names were rightly included in the voters' list

and/or whether the names of the new committee

members were rightly or wrongly excluded, was

a decision taken by an authorized officer which is

at large in an election petition before the

Director.

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15. It is in this context that the learned Single Judge

in paras 11 to 14 held as under:

"11. As mentioned herein above, the action of the authorised officers of refusing to include the names of the new members 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

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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 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:

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"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

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directly rushed to this Court and have filed the present writ petition. The Presiding officer, on 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."

16. Reading of the paras would indicate that when

there was before the learned Single Judge two

categories of persons of the same committee,

one whose names were not included and the

other whose names were wrongly included and

an election petition was pending at the hands of

one category, the learned Single Judge in our

opinion, was right in opining that any

observation made in the petition at end will have

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direct impact on the election petition which is

pending.

17. As far as the guidelines are concerned which are

relied upon by the Presiding Officer to exercise

his power by passing the impugned order,

reading of the guidelines clearly indicate that

apart from a question of identity, the Presiding

Officer did have the jurisdiction to get into the

issue of whether the voter was qualified to vote.

18. Reliance on the decision by learned Senior

Advocate Mr.Mihir Joshi in the case of

Vasundra Samudayik Kheti Sahakari Mandli

Limited (supra) to carve out an exception and

submit that a petition was maintainable as there

were exceptional circumstances, does not

impress us as we have so discussed and so held

by the decision of the Full Bench in case of

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Daheda Group Seva Sahakari Mandli

Limited (supra) in para 21 to 23 thereof which

read as under:

"21. In view of the conflicting decisions rendered by the different Division Benches of this Court, we have to consider the rival contentions advanced before us by the learned Counsel for the respective parties. On a plain reading of rule 28 which provides remedy to "any person qualified" either to be elected or to vote at the election to determine the validity of the election of the members of APMC. Since the expression "any person qualified" is not defined under the Act and the Rules, guidance is to be derived from rule 6 of the rules, dealing with "persons qualified to vote" - where the qualification criteria is to be taken into account which should be the capacity i.e. the post and not the factum of inclusion and exclusion of the names from the voters' list. We agree with the submissions of the learned Addl. Advocate General that with a view to give full effect to the provisions providing for remedy in the matter of resolution of election disputes as contained in the aforesaid Rule 28, the said provisions along with the provisions of Rule 6 should be given purposive interpretation in the widest amplitude so as to make the same more meaningful and effective. He has placed reliance of the decision in the case of D. Saibaba v. Bar Council of India and anr. (2003) 6 SCC 186. While interpreting the

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Section 48-AA of the Advocates Act, 1961, the Hon'ble Supreme Court held as under:

"So far as the commencement of the period of limitation for filing the review petition is concerned, we are clearly of the opinion that the expression 'the date of that order' as occurring in section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petition. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart." In view of the above, referring back to the present controversy, a person may be qualified to vote in any election, by virtue of his being a member of the Managing Committee of the particular Cooperative Society as per section 11(1) of the Act and not by virtue of the inclusion or deletion of his name from the voters' list. Inclusion or deletion of a name is only consequence of holding a capacity because if a person holds the post, his name should be included and if he ceases too hold the post on the date of election programme, then his name should be deleted, meaning thereby it is the holding of the capacity which is the relevant

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criterion and not the appearance of name in the voters' list which is only a consequence. Thus, even though a person's name is found entered into voters' list that alone would not qualify him to be a voter because it can be shown that he had ceased to hold the capacity in which his name was entered into the list, even though he had voted on the basis of inclusion of his name in the final voters' list but proof of his capacity having been ceased, the election could be set aside on the ground of improper reception of voters of an ineligible person. The context in which Rule 6 is framed by the Legislature cannot be read in isolation. While interpreting the same, it has to be kept in view that it also talks about cessation of the capacity in which name of a person was entered into the list. Therefore, it would be improper to construe Rule 6 as controleing the eligibility of a person entitled to file an election petition under Rule 28.

22. Provisions of rule 28 of the rules are otherwise independent of the provisions of rule 6 and are not in any manner, controleed 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.

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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.

23. In view of the aforesaid provisions, which in our opinion, are self-contained and are to be interpreted without taking any external aid from other legislations like Gujarat Panchayats Act, 1993, Gujarat Cooperative Societies Act, 1961, Gujarat Municipalities Act, 1963 and the Representation of the People Act of 1950. We, therefore, see no merits in the submissions advanced by Mr Tushar Mehta."

19. In view of the above, we are of the view that here

is a case where the root lies in deciding whether

the petitioners/appellants had a statutory right to

cast their votes in the elections so notified, when

a clear question of their eligibility was at stake

inasmuch as the issue whether they continued to

hold their capacity in terms of Rule 6 of being

included and / or excluded in the voter's list is

also at large in the pending election petition and

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