Gujarat High Court
Shakti Traders Through Prop. ... vs State Of Gujarat on 31 January, 2025
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17585 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17586 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17580 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 17588 of 2024
==========================================================
SHAKTI TRADERS THROUGH PROP. PRATAPSINH HIMMATSINH MAHIDA
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR HARIN P RAVAL, SR. COUNSEL with MR. CHINTAN P CHAMPANERI
and MR ANAND M RANPARA(10976) for the Petitioner(s) No.1
MS MANISHA LAVKUMAR, ADDITIONAL ADVOCATE GENERAL with
MS NIDHI VYAS AGP for the Respondent(s) No. 1,2,3
MR DARSHIT H RAVAL(11887) for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 31/01/2025
COMMON ORAL ORDER
1. The present Special Civil Applications are filed praying for the
following reliefs :-
"(A) Be pleased to issue a writ of mandamus or
certiorari or a writ in the nature of certiorari or
mandamus or any other appropriate writ, order or
direction and be pleased to quash and set aside the
impugned order dated 19.12.2024 passed by the
respondent No.2 at Annexure-A to the present petition;
(B) Be pleased to issue a writ of mandamus or
certiorari or a writ in the nature of mandamus or
certiorari or any other appropriate writ, order or
direction and be pleased to declare the order of the
respondent No.2 excluding the petitioner's name from
the voters list of Trader's constituency of the elections of
A.P.M.C. Borsad, ultra-vires to provisions of sec.11(1)(ii)
of the act;
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
(C) Pending admission and final disposal of the
present petition, be pleased to stay the implementation,
operation and execution of the impugned dated
19.12.2024 passed by the respondent No.2;
(D) Pending admission and final disposal of the
present petition, be pleased to direct the respondent
no.2 to provisionally include the name of the petitioner
in the Revised Draft voter's list and subsequently final
voters list of agriculturist's constituency for the elections
of Borsad APMC.
(E) Be pleased to pass such other and further
orders as may be deemed fit and proper."
2. The brief facts of the petitions are as follows:-
2.1 The election of the Agriculture Produce Market Committee,
Borsad (herein after referred to as "A.P.M.C., Borsad" for short) was
required to be conducted on or before 20.06.2024 as the term of the
previous body was to expire. Upon the expiration of the term,
respondent No.1 appointed respondent No.3 as the administrator.
Pursuant to the order passed by this Court in a writ petition filed by
certain members of the superseded committee, the election of the
market committee was declared. The petitioners, however, were not
parties to the said writ petition and have derived their knowledge of
the proceedings from news reports. Subsequently, on 12.11.2024,
respondent No. 1, in the exercise of powers under Rule 4 of the
Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter
referred to as "A.P.M.C. Rules" for short) declared the election
programme. Further, respondent No. 1 appointed the respondent
No. 2 as the authorized officer and respondent No. 3 as the Election
Officer to conduct the elections.
2.2 That the petitioners are traders and possess the requisite
license for the present year as well as three years preceding the
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
year of election.
2.3 In SCA No.17588 of 2024, the petitioner have paid
Rs.11,21,724/- as market cess fees for the year 2021-22. The said
amount is paid on 18.04.2022 for the entire year. The petitioners
have paid market cess fees of Rs.11,03,885/ for the year 2022-23.
The same is paid in installment of Rs.7,00,000/- on 10.03.2023 and
Rs.4,03,885/ on 05.05.2023 for the period of 01.04.2022 to
31.03.2023. The petitioners have paid Rs.9,26,433/ as market cess
fees for the year 2023-24. The petitioners have paid Rs.3,18,055/ on
07.12.2023 and Rs. 6,08,378/- on 24.04.2024 for period of
01.01.2023 to 31.03.2024. That the petitioners have also deposited
advance cess fees of Rs. 1,00,000/- for the current year
transactions. However, the Secretary of the market committee had
called the petitioners and returned the advanced cess fees. Thus,
the petitioners had paid the market fees in advance and therefore,
are entitled to inclusion in the voters list for the Traders'
constituency.
2.4 In SCA No.17586 of 2024, the petitioner has paid Rs.1,80,992/-
as market cess fees for the year 2021-22. The said amount is paid
on 31.03.2022. That the petitioner has paid market cess fees of
Rs.3,43,004/ for the year 2022-23. The same is paid in installment of
Rs, 2,74,561/ for the period of 01.04.2022 to 31.12.2022 and
Rs.24,031/ on 31.03.2023 for the period of 01.01.2023 to
28.02.2023, Rs. 444,412/ paid on 23.05.2023 for the period of
01.03.2023 to 30.04.2023. The petitioner has paid Rs.2,51,028/ as
market cess fees for the year 2023-24. The petitioner has paid
Rs.2,07,023/ on 30.01.2024 for period of 01.04.2023 to 31.12.2023.
The petitioner has paid Rs.44,005/ on 23.07.2024 for period of
01.01.2024 to 31.03.2024.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
2.5 In SCA No.17585 of 2024, the petitioner has paid Rs.
3,13,149/- as market cess fees for the year 2021-22. The said
amount is paid in installments. Rs.2,97,758/ paid on 23.03.2022 for
the period of 01.04.2021 to 28.02.2022. That Rs.15,391/- on
31.03.2022 for the period 01.03.2022 to 31.03.2022. The petitioner
has paid market cess fees of Rs.03,07,989/- for the year 2022-23.
The same is paid in installment of Rs.3,01,989 for the period of
01.04.2022 to 28.02.2023 and Rs.6,000/- on 14.10.2023 for the
period of 01.03.2023 to 31.03.2023. The petitioner has paid
Rs.3,36,760/ as market cess fees for the year 2023-24. The
petitioner has paid Rs.293135/ on 06.01.2024 for period of
01.04.2023 to 31.12.2023. The petitioner has paid Rs.43,625/ on
22.07.2024 for period of 01.01.2024 to 31.03.2024. That the
petitioner has also deposited advanced cess fees of Rs, 11,453/- for
the current year transaction. However, the Secretary of the market
committee had called the petitioner and has returned the advance
cess fee paid by him on 28.11.2024.
2.6 In SCA No.17580 of 2024, the petitioner has paid Rs.1,56,800/
as market cess fees for the year 2021-22. The said amount is paid
on 31.03.2022 for the entire year. The petitioner has paid market
cess fees of Rs. 3,09,819/- for the year 2022-23. The same is paid in
installment of Rs.2,00,000/-on 10.03.2023 and Rs.1,09,819/- on
05.05.2023 for the period of 01.04.2022 to 31.03.2023. The
petitioner has paid Rs.2,45,610/- as market cess fees for the year
2023-24. The petitioner has paid Rs.1,02,740/ on 07.12.2023 and
Rs.1,42,870/ on 24.04.2024 for period of 01.01.2023 to 31.03.2024.
That the petitioner has also deposited advanced cess fees of
Rs.50,000/- for the current year transaction. However, the Secretary
of the market committee had called the petitioner and has returned
the advanced cess fee paid by him 28.11.2024.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
2.7 That the respondent No.2, while preparing preliminary voter's
list, included the names of the petitioners in the preliminary voter's
list. The respondent No.2, while doing so, had called for all the
accounts and details of the petitioners and after verifying the same,
only had entered the names of the petitioners in the voter's list. The
provisional list of voters was published on 30.11.2024.
2.8 On 13.12.2024, the respondent No.4 Ashokkumar
Jashwantsinh Mahida raised objections against the inclusion of the
petitioners in the voters' list of the Traders' Constituency. The
objections were primarily based on the claim that there was no proof
of the petitioners having paid market fees for the last three years
and no record of such payments existed in the accounts of the
market committee and that the petitioners' names had been
included based on allegedly bogus documents. In response, the
respondent No. 2 directed the petitioners to remain present on
18.12.2024 to address these objections. The petitioners, through
their advocate, submitted a reply to the objections and produced
payment receipts issued by the market committee for the last three
years.
2.9 The respondent No.2 directed the Secretary of the market
committee to remain present for the hearing and submit a response
based on the records of the market committee. Upon verification of
the records, it was found that the petitioners have been trading in
accordance with the terms & conditions of the license and have duly
paid the prescribed market fees for the last three years.
Additionally, the petitioners had also paid advanced market fees for
the current year. However, since the financial year had not yet
concluded, the advanced fees were returned by the market
committee.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
2.10 That the respondent No.2, after hearing all the parties on
18.12.2024, has allowed the objections of the objector and passed
the impugned order dated 19.12.2024. That the respondent No.2, by
way of the impugned order, has deleted the names of all traders of
the market committee from the voters' list of the Traders'
constituency. The revised draft voters' list also came to be published
by the respondent No.2. The petitioners, therefore, challenge the
legality and validity of the impugned order by way of these
petitions.
3. The learned senior counsel Mr. Harin P. Raval submitted that
the impugned order/notification passed by the respondent No.2 is
ex-facie erroneous, arbitrary and contrary to the provisions of law as
well as the documentary evidence on record and therefore, deserves
to be quashed and set aside. It was submitted that the respondent
No.2 has passed the impugned order based on conjectures and
surmises, which is not permissible under the law. It is contended
that the impugned order is unsustainable and warrants interference
by this Hon'ble Court.
3.1 The learned senior counsel submitted that the findings of
respondent No.2 are not supported by objective facts or the
provisions of law and as such, are without legal basis. It was
submitted that the actions taken were driven by ill-intention as
allowing the petitioners and three other traders, who were included
in the preliminary voters' list, to remain in the list would have
resulted in their uncontested election. That four traders'
representatives were to be elected by the voters of the said
constituency and the panel supported by the ruling party lacked
sufficient qualified traders to secure votes. Therefore, it is
contended that in an attempt to eliminate competition, the
respondent No. 2 has taken drastic and unjustified action.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
3.2 The learned senior counsel submitted that the present
petitions pertain to the preparation of the voters' list for the Traders'
Constituency of the market committee as provided under Section
11(1)(ii) of the A.P.M.C. Act and Section 5(2) read with Rule 7(1)(ii) of
the Gujarat Agricultural Produce Market Rules, 1965 (herein after
referred to as "A.P.M.C. Rules" for short). It was submitted that a
perusal of the aforementioned provisions clearly stipulates two
distinct qualifications, i. e. one for eligibility as a candidate in an
election and the other for eligibility as a voter.
3.3 The learned senior counsel submitted that a perusal of the
impugned order makes it clear that the respondent No.2, while
passing the order, has failed to assign reasons for all the
submissions made in the reply. It was submitted that the findings
arrived at by the respondent No.2 are not supported by the
documents on record. It is contended that the respondent No. 2 has
also misrepresented the reply of the market committee, which is
evident from a comparison between the actual reply and its
narration in the impugned order. Moreover, it was submitted that
the passing of the impugned order is a clear indication of a gross
violation of the principles of natural justice and that the order was
passed in a premediatated manner. It is submitted the respondent
No.2 has committed a grave illegality by recording false findings
which are contrary to the material on record and the statutory
provisions.
3.4 That the respondent No.2 has no authority, right or power to
exclude the names of the petitioners de-hors the provisions of sec.
11(1)(ii) of the Act. The respondent No.2 has committed grave
misconduct by deleting names of all traders despite their possessing
requisite qualification. The conduct of the respondent No.2 is also
required to be taken note of.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
3.5 The learned senior counsel further submitted that the
respondent No. 2 has acted in a non-judicious manner by recording
false findings that are evident on the face of the record. It was
further submitted that such conduct has vitiated the decision-
making process, making it a sufficient ground to set aside the
impugned order. It was contended that the respondent No.2 passed
the impugned order in gross violation of the principles of natural
justice as no cogent reasons were provided to discard the reply
submitted by the petitioners, rendering the order a non-speaking
one. It was argued that the order was passed in an arbitrary
manner, depriving the traders of their right to elect their
representatives in the market committee. It was submitted that the
conduct of respondent No.2 is unbecoming of an authority
responsible for conducting elections as it is expected to act fairly,
transparently and judiciously.
3.6 The learned senior counsel submitted that the respondent No.
2 has effectively halted the progress of the election process
concerning the Traders' Constituency. It was further submitted that
judicial review of respondent No.2's order and intervention in the
present case would serve to facilitate the continuation of the
election process. It was contended that the reliefs prayed for are
necessary to ensure the smooth conduct of the elections and for the
integrity of the election process as envisioned by the framers of the
legislation.
3.7 The learned senior counsel submitted that authorities, such as
respondent No.2, are entrusted with great responsibility in holding
elections and are the repositories of trust placed in them. It was
further submitted that if such authorities choose to act in the
manner exhibited in the present case, intervention by this Hon'ble
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
Court becomes inevitable. It was argued that the constitutional
courts are precluded from allowing the obstruction of an election
process and in such circumstances, permitting an authority like
respondent No. 2 to completely stall the elections in an entire
constituency would render the election process a mockery.
3.8 The learned senior counsel submitted that the respondent No.
3, who has been appointed as the administrator of the market
committee, is also acting as the Election Officer. It was further
submitted that the respondent No.3, with ill-intent, returned the
advanced market cess paid by the petitioner, citing that the year
had not yet concluded and the cess need not be paid in advance.
Subsequently, under the false pretext of non-payment of market
fees for the current year, the names of the petitioners and similarly
situated persons were deleted from the voters' list.
3.9 There is nothing on record that any market cess fees has
demanded by the market committee, which has remained unpaid by
the petitioners. Therefore, in absence of the same, the names of the
petitioners cannot be excluded from the voters list. There is nothing
on record to establish that the petitioners had entered into any
transaction, for which, they were supposed to pay any market fees
and the same have remained unpaid. In absence of such facts being
established, the names of the petitioners cannot be removed from
the voters' list.
3.10 The learned senior counsel submitted that the respondent No.
4 is not a trader, nor his name is enlisted in the voters' list of the
Traders' Constituency. It was submitted that therefore, the
respondent No. 4 has no locus standi to raise any objections in this
regard. It was contended that the action taken by the respondent
No.2, upon receiving such objections, is even more drastic as under
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
the guise of adjudicating these frivolous objections, the respondent
No.2 has deleted the entire Traders' Constituency voters' list. It was
argued that the entire sequence of events appears to be part of a
pre-conceived and malicious design. The connivance between
respondent No. 2 and respondent No. 4 is evident and in light of the
facts of this case, interference by this Court is inevitable.
3.11 It is submitted that to conduct free and fair elections, ample
powers are conferred on the authority conducting the elections. The
result sought to be achieved by the elections is supreme and
therefore, to achieve the same, the authorities like the respondent
can exercise its unbridled powers to achieve equality, transparency
and fairness. The authority in the present case has failed to exercise
the same to achieve the desired and required standards and
therefore also, the impugned order is not sustainable.
4. Per contra, the learned Additional Advocate General
Ms. Manisha Lavkumar appearing for the respondent Nos.1 to 3
submitted that none of the fundamental rights of the petitioners
have been violated due to any action or inaction on the part of the
respondent authority and therefore, the present writ petitions are
not maintainable in law and deserve to be dismissed in limine. It is
further submitted that the petitioners have filed the present writ
petitions challenging their deletion from the revised preliminary
voters' list by the order dated 19.12.2024 in relation to the elections
of APMC, Borsad.
4.1 The learned senior counsel submitted that the present
petitions may not be entertained on the ground that an alternative
efficacious remedy is available under Rule 28 of A.P.M.C. Rules. It is
further submitted that it is a settled principle of law that when a
statute provides for an alternative efficacious remedy, the courts
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
generally refrain from exercising writ jurisdiction under Article 226
of the Constitution of India, particularly in election matters, when
the election process has already been set in motion. It was
contended that Rule 28 of the A.P.M.C. Rules allows for challenging
the validity of an election of the market committee through an
election petition. The petitioners will have the liberty to raise all the
contentions including those averred in the present writ petitions,
before the appropriate forum and the same will be adjudicated in
accordance with law under Rule 28 of the said Rules. Therefore, it
was submitted that the alternative remedy available under the
A.P.M.C. Rules is efficacious and consequently, the present petitions
should be dismissed at the threshold.
4.2 It was submitted that the issue involved in the present writ
petitions pertains to the inclusion/exclusion of names in the voters'
list, wherein the petitioners have challenged the exclusion of their
names in the revised provisional voters list and the final voters list.
It was further submitted that it is a settled principle of law,
particularly as laid down by the Hon'ble Full Bench of this Hon'ble
Court in the case of Daheda Group Seva Sahkari Mandli Ltd. v.
R. D. Rohit reported in 2006 (1) GCD 211 (para 33) that the
inclusion and exclusion of names in the voters' list does not
constitute an extraordinary circumstance that warrants the exercise
of writ jurisdiction by this Hon'ble Court. The Hon'ble Supreme Court
has reiterated in a series of judgments that the preparation of the
electoral roll is part of the election process and when the election
schedule has commenced, any breach of rules can only be
challenged after the election through an election petition. It was
submitted that the election process is a time-bound schedule and it
is incumbent upon the authority to adhere to the election schedule.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
4.3 It was also submitted by the learned Additional Advocate
General that the present petitions suffer from the non-joinder of
necessary and proper party. It was submitted that the issue involved
in the present petitions pertain to the ascertainment of the payment
of market fees in the Market Committee and for this purpose, the
Market Committee is the only competent authority to verify and
ascertain the same as it is the Market Committee's function to
assess, accept or refuse the payment of market fees for the relevant
year. The petitioners have failed to join the Market Committee as a
party in the present petitions. Therefore, on this ground alone, the
present petition should be dismissed for non-joinder of necessary
party.
4.4 It was further submitted that the petitioners have alleged
mala fides against the the respondent Nos.2 and 3, however, they
are not joined in individual capacity who can categorically refute the
same. That if the petitioners raise any mala fide against any person/
authority, it is incumbent upon them to join him in his personal
capacity, In absence of non-joining of respondent No.3 in his
personal capacity, all the contentions of mala fides are
unsustainable.
4.5 It was submitted by the learned Additional Advocate General
that the term of the erstwhile Market Committee, Borsad, came to
an end on 19.06.2024. However, due to the ensuing Lok Sabha
Elections and other reasons, the election of the A.P.M.C., Borsad
could not be declared before the expiry of its term. Consequently,
an Administrator was appointed on 19.07.2024 by the State
Government under the provision of Section 11(2)(a) of the Gujarat
Agricultural Produce and Marketing (Promotion and Facilitation) Act,
1963. It was further submitted that aggrieved by the appointment of
the Administrator, Special Civil Application No.11062 of 2024 was
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
filed by one Mr. Gohel Ravjibhai Umedbhai & Ors. before this Hon'ble
Court, seeking the declaration of elections and challenging the
appointment of the Administrator. After hearing the parties, the
Hon'ble Court disposed of the writ petition by an order on
09.09.2024, directing the authorities to declare the election for the
A.P.M.C., Borsad, as expeditiously as possible, preferably within a
period of two months from the receipt of the order. Consequently, in
compliance with the directions of the Hon'ble Court, the election for
A.P.M.C., Borsad was declared on 12.11.2024. It is, therefore,
submitted that as per the directions of this Hon'ble Court and the
scheme of the Act, the respondent authorities are duty bound to
declare and complete the elections within the prescribed time-
bound period.
4.6 The learned Additional Advocate General submitted that the
elections of the A.P.M.C., Borsad came to be declared on
12.11.2024. As per Rule 7 of the A.P.M.C., Rules, the Market
Committee is required to submit the full names of traders having
eligibility as per the Act. That on 19.11.2024, the APMC
communicated the list of all traders having requisite qualifications to
participate in elections.
4.7 That in accordance with Rule 7(2) of the Gujarat Agricultural
Produce and Marketing (Promotion and Facilitation) Act, 1963, and
the Rules thereunder, the Authorized Officer published the
preliminary voters list on 30.11.2024 for two constituencies only,
namely, the Agricultural Constituency and the Traders Constituency
as there were no voters for the third constituency, i. e., the Co-
operative Marketing Societies. It was further submitted that the
preliminary voters list for the Traders Constituency contained a total
of four voters.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
4.8 The learned Additional Advocate General submitted that as
per Section 2(xxv) of the Gujarat Agricultural Produce and Marketing
(Promotion and Facilitation) Act, 1963, read with Rule 2(8) of the
APMC Rules, the term "year" is defined in relation to the market
committee as a period of twelve months commencing from the 1 st
day of April and ending on the 31 st of March. It was further
submitted that as per the amended section, more particularly, by
way of the first proviso read with Rule 2(8), the eligibility criteria for
a traders is that he should have paid a minimum market fees of Rs.
50,000/- in each of the last three financial years starting from April
to March, preceding the election and that the market fees should
not remain unpaid. In the present case, the petitioners have paid
the minimum market fees of Rs.50,000/- for the preceding three
financial years, i.e., for the years 2021-2022, 2022-2023, and 2023-
2024. However, the market fees for the current year, i.e.,
commencing from April 2024, remain unpaid until the declaration of
elections on 12.11.2024. Therefore, the petitioners do not meet the
eligibility criteria to vote under the Act and consequently, their
names were rightly deleted during the publication of the revised
preliminary voters list.
4.9 The learned Additional Advocate General submitted that as
per the provisions of the amended Section 11(1)(ii) of the Gujarat
Agricultural Produce and Marketing (Promotion and Facilitation) Act,
1963, the eligibility criteria for a trader are: (i) the trader shall hold
a valid license and continue to hold it, (ii) the trader shall trade in
conformity with the terms and conditions of the license and continue
to hold it, (iii) the trader shall have paid a minimum of Rs.50,000/- in
market fees in the last three financial years and (iv) the market fees
for the current year shall not remain unpaid. A close reading of this
section makes the intent of the Legislature clear that there are
twofold criteria, first, payment of a minimum of Rs.50,000/- in
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
market fees for the last three financial years and second, the
payment of market fees for the current year. The provision explicitly
states that no amount of market fees for the current year shall
remain unpaid. In the present case, for whatever reason, the
petitioners' market fees for the current year remain unpaid.
Therefore, in light of the clear provisions of the law, the petitioners
are not eligible to vote in the elections.
4.10 The learned Additional Advocate General submitted that it is
factually incorrect to assert that the petitioners have paid the
advance market fees for the current year. It was submitted that for
the current financial year commencing from 01.04.2024 until the
declaration of the election program on 12.11.2024, the petitioner
have not paid the market fees despite having traded. While the
petitioners contends that the fees have been paid, this fact remains
solely within the domain of the petitioners and the APMC. The
authorized officer, in adjudicating objections and replies, has a
limited scope of inquiry and cannot go beyond the documents
available. It is beyond his jurisdiction to engage in a detailed fact-
finding inquiry into how the fees remained unpaid. He is also not
authorized to consider the fact that allegedly, the Secretary or
Administrator of the Market Committee has not raised a demand for
the outstanding market fees. Admittedly, the petitioners have not
paid any market fees for the current year. Regardless of the reason
for the non-payment of the market fees, the fact remains that
according to the available records, the market fees have not been
paid. The authorized officer's role is limited to verifying the fact of
payment, and the eligibility criteria for a trader as outlined in the
amended Section 11 of the Act, require the payment of market fees.
Since this criterion has not been met, the petitioners are not entitled
to vote. Consequently, the impugned order has been passed in
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
accordance with the law.
4.11 The learend Additional Advocate General submitted that the
petitioners' contention regarding the advance payment of market
fees and its subsequent return by the Secretary is inherently self-
contradictory. On one hand, the petitioners allege that the market
fees of Rs.50,000/- for the current year were paid in advance, yet on
the other hand, they admit that the fees were returned. If the
market fees were returned, it cannot be considered as a valid
"payment." Moreover, if the petitioners themselves allege that the
market fees are payable only after 31.12.2024, they should not have
made an advance payment of the market fees. Therefore, the
petitioners' assertion is contradictory in nature.
4.12 It was submitted that close perusal of Rule 8 of the Rules
provides that 'any person' can raise the objection to the
inclusion/exclusion of the voters list and hence, the respondent No.4
has the locus to file the objections. Considering that the objections
are raised in accordance with the law, the same are dealt and
adjudicated by the respondent authority. Thus, the impugned order
is within jurisdiction.
4.13 It was submitted that it is the duty of the authorized officer to
ascertain the eligibility criteria of each voter and if any voter is
found to be ineligible, his name is required to be deleted. In the
present case, only 4 names were reflected as voters in the Trader's
Constituency, and all 4 were found to be ineligible; therefore, their
names were rightly deleted. Merely because the deletion of all
voters' names has resulted in no votes from the Trader's
Constituency does not render the impugned order redundant. It is
also pertinent to note that there is no voters list for the Co-operative
Marketing Society constituency as none of the voters are eligible.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
Therefore, the entire contention of the petitioners lacks foundation.
4.14 It was submitted that the impugned order has been passed in
accordance with the law and hence, may not be interfered with. It
was further submitted that as on today, the election process is at a
very advanced stage with the final voters list having been published
on 01.01.2025 and the process is currently at the stage of
nomination. If the present petitions are allowed, it would result in a
change of the entire voters list in the midst of the election process.
If the process is delayed or canceled due to any interim orders, it
would frustrate the very purpose of holding elections and
establishing an elected body to manage the administration. Hence,
the present petitions should not be entertained.
5. The learned counsel Mr. Dipen Desai appearing for the
respondent No.4 submitted that the petitioners have an alternative
and efficacious remedy of preferring an Election Petition under Rule
28 of the Gujarat Agricultural Produce Market Rules, 1965. The
petitioners can challenge their exclusion from the voters list by filing
an Election Petition under Rule 28 of the Rules. Therefore, since the
petitioners have an alternative and efficacious remedy, the present
petitions may not be entertained. It was submitted that even
otherwise, it is a well-settled legal position that ordinarily, this
Hon'ble Court would not entertain a petition raising election
disputes and would relegate the petitioners to prefer an election
petition after the elections are over. Hence, the present petitions
may not be entertained and the petitioners should be relegated to
avail the alternative remedy under Rule 28 of the Rules.
5.1 It was submitted that the impugned order is perfectly legal
and proper and the Authorized Officer has given cogent and
convincing reasons for passing the impugned order. Therefore, the
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
same does not deserve to be interfered with by this Hon'ble Court in
exercise of extraordinary discretionary jurisdiction under Article 226
of the Constitution of India. It was submitted that even otherwise,
highly disputed questions of fact are involved, which are not capable
of being adjudicated or decided in a Writ Petition under Article 226
of the Constitution of India.
5.2 It was submitted that in order to be eligible for inclusion in the
voters list, the traders must satisfy the following criteria:(i) the
trader must have held a valid license for not less than 3 consecutive
financial years preceding the election year and must continue to
hold the license, (ii) the trader must have traded in full conformity
with the terms and conditions of the license in each of the 3
financial years, and (iii) the trader must have paid a minimum of Rs.
50,000/- as Market fees in each of the last 3 financial years
preceding the election year, and the Market fees payable by him
must not have remained unpaid. In the present case, the Authorized
Officer has rightly come to the conclusion that the petitioners have
not fulfilled all the requirements for being included in the voters list
and that the Market fees payable by the petitioners have remained
due to be paid.
5.3 It was submitted that the petitioners have not paid any Market
fees for the period from 01.04.2024 until the date, on which, the
election was declared. It was further submitted that the petitioners
have contended before this Hon'ble Court that the petitioners
attempted to pay the Market fees to the Secretary, but the
Secretary returned the amount on the ground that the Market fees
can only be paid at the end of the year. This contention is incorrect.
The earlier records of the petitioners clearly show that the
petitioners have paid Market fees in the middle of the year and have
not waited until the end of the year. Therefore, the contention
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
sought to be developed by the petitioners is falsified by the
petitioners' past conduct, which demonstrates that the petitioners
have earlier paid market cess throughout the year.
5.4 It was submitted that as per the By-laws of APMC Borsad, the
fees are to be paid every month. Therefore, the petitioners'
contention relying upon the certificate of the Secretary that cess is
to be paid at the end of the year, is entirely false. It was further
submitted that as per Section 28 of the Act, the liability to pay the
Market cess arises when a transaction of sale or purchase takes
place inside the market area. Accordingly, whenever a transaction of
sale or purchase is conducted, the liability to pay the Market cess
becomes applicable. In the present case, for the year 2024-25, no
cess has been paid at all. Therefore, for the period from 01.04.2024
until the date, on which, the election was declared, or for any
business carried out by the petitioners during this period, the
petitioners were required to pay the cess, which have not been
done.
5.5 The petitioners therefore do not become eligible for being
included in the voters list of Traders Constituency and hence, the
Authorized Officer has rightly deleted the names of the petitioners
from the voters list. Even otherwise, any person can raise objections
against wrongful inclusion or exclusion of names and that there is no
such bar either in the Act or rules. Therefore, the impugned order
passed by the Authorized Officer is perfectly legal and proper and
does not call for any interference whatsoever in exercise of
extraordinary discretionary powers of this Hon'ble Court under
Article 226 of the Constitution of India. Therefore, on all counts, the
present petitions deserve to be rejected.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
5.6 The said aspect becomes clear from the tabular chart annexed
along with the letter of the Secretary of APMC, Borsad, which
demonstrates that no market fees have been paid by any of the
petitioners, although they have traded in the current financial year
2024-2025. A combined reading of Section 28 of the Act, Rule 48
and 49, and Bye-law No. 20 of the Bye-laws of APMC Borsad makes
it evident that market fees become payable the moment goods are
brought into the market yard. Therefore, the market fees for all
transactions undertaken by the petitioners were due and payable,
Yet, the petitioners failed to pay the same until the elections were
declared on 12.11.2024. As such, the petitioners did not fulfill the
last eligibility criterion required for inclusion in the voters list, and
hence, their names have rightly been deleted from the voters list by
the authorized officer. The petitioners rely on the letter of the
Secretary, which states that the petitioners had provided cheques
for advance market fees, however, the said cheques were returned
on the ground that market fees become payable at the end of the
year.
5.7 It was submitted that the past payment of market fees by the
petitioners themselves demonstrates that in the past, the
petitioners have paid market fees during the year and not at the
end of the year. Therefore, their own transactions contradict the
stand taken in the petitions, which relies on the letter of the
Secretary stating that market fees are payable at the end of the
year. Furthermore, the petitioners themselves have stated that the
market fees for the current year were sought to be paid on
13.11.2024. It is pertinent to note that the elections were declared
on 12.11.2024. As per settled legal position, any person acquiring
eligibility after the declaration of election is not entitled to be
included in the voters list. This Hon'ble Court has further held that
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
the Authorized Officer has no jurisdiction to include persons in the
voters list who gain eligibility after the declaration of elections.
Therefore, the petitioners are not entitled to be included in the
voters list.
5.8 As far as the reliance placed on the letter of the Secretary is
concerned, it is submitted that reliance is placed on the judgment of
this Hon'ble Court in the case of Patel Sales Corporation Vs
State of Gujarat reported in 2016 JX (Guj) 754, has held that
the Secretary has no role to play in the preparation of voters list and
his views are not to be blindly relied upon by the authorized officer.
5.9 As far as the objection taken by the petitioners with regard to
locus of the respondent No. 4 to submit objections, the respondent
No.4 relies upon the judgment of the Hon'ble Court in the case of
Jakhora Group Teibiya Utpadak Sahakari Mandali Limited Vs
State of Gujarat reported at 2018 JX (Guj) 495. Further, even
otherwise also, Rule 8(1) provides that any person can submit
objections. Therefore, there is no requirement in law that only a
person included in the voters list of that Constituency can submit
objections.
5.10 It was submitted that the petitioners have invoked the
jurisdiction of this Court under Article 226 of the Constitution of
India without availing the alternative remedy available to them
under Rule 28 of the Gujarat Agricultural Produce Market Rules,
1965. However, in order to invoke the jurisdiction of this Hon'ble
Court under Article 226, the petitioners must satisfy that one of the
three exceptions is attracted, namely, (i) the order is without
jurisdiction, (ii) the order is passed in violation of natural justice, and
(iii) the order is passed relying upon a repealed provision of law. In
the present case, none of the three exceptions are attracted.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
Therefore, this is not a case where the extraordinary discretionary
jurisdiction under Article 226 would be invoked and the petitioners
should be relegated to the alternative remedy of filing an election
petition.
6. In rejoinder, the learned senior counsel Mr. Raval for the
petitioners submitted that the respondents have not produced true
and correct facts and have attempted to mislead this Hon'ble Court.
The names of petitioners are excluded from the voters list from the
traders list citing the reason of alleged unpaid market fees for the
year 2024-25. It was submitted that the qualifications for inclusion
in the voters list are envisaged under Rules 5 and 7, under which,
respondent No. 2 exercises his powers. None of the said provisions
envisage the requirement of payment of market fees or exclusion for
alleged unpaid market fees. Therefore, while exercising powers
under Rule 8, respondent No. 2 cannot disregard the provisions of
Rules 5 and 7. The only requirement envisaged is possession of the
license, which the petitioners duly comply with. It is not the case of
any of the respondents that the petitioners do not possess a license,
either for the current year or for the previous three years. Hence,
the order passed is bad in law.
6.1 It was submitted that the Act and the Rules clearly suggest the
payment of market fees, but as prescribed in the bye-laws.
However, neither the Act nor the bye-laws prescribe any specific
time-limit for the payment of market fees. It was submitted that the
authenticity of the bye-laws of the market committee, as produced
by the respondents in their reply, is for the respondents to prove to
the satisfaction of this Hon'ble Court. Furthermore, the bye-laws
nowhere prescribe a specific period within which the market fees
must necessarily be paid by the trader.
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
6.2 It was submitted by the learned senior counsel Mr. Raval that
the schedules attached to the bye-laws are not bye-laws themselves
but are merely pro-formas for different procedures. These proformas
cannot be confused with bye-laws that have any binding force. One
of the proformas contains terms that are sought to be portrayed in
the reply, however, it is simply a proforma for the terms and
conditions under which a Class-A license can be granted by the
market committee. There is no necessity for the market committee
to mandatorily include such terms in the license granted to the
trader. Furthermore, after the insertion of Section 27-A, the powers
for granting licenses by the market committee have been abolished
and transferred to a different authority under the Act. As a result,
the market committee, having lost the power to grant licenses,
naturally loses the power to impose terms and conditions related to
the license. Under these circumstances, the model terms and
conditions incorporated in the schedule become irrelevant. The
competent authority has granted licenses to the petitioners for the
present year as well as the previous three years, and none of these
licenses contains the terms envisioned in the model terms and
conditions. Therefore, the petitioners are neither duty bound nor
required to pay market fees on a monthly basis. The contention
regarding the non-payment of market fees by the petitioners on a
monthly basis must therefore fail. The Act, the Rules, and the bye-
laws provide for the demand of market fees and the procedure for
recovery. However, the market committee has not resorted to any
demand or recovery proceedings.
6.3 It was further submitted that the recovery proceedings cannot
be instituted because there has been no adjudication regarding the
occasion for the payment of market fees. Therefore, the accrual of
payment itself is not admissible. It is the established practice and
procedure for traders to pay market fees once or twice a year,
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
based on their accounts. Over the past four years, the petitioners,
along with other traders, have paid market fees either once or twice,
covering the entire year and all transactions. This practice
corroborates the petitioners' claim in the petitions. Had such
payments been improper, recovery proceedings should have been
initiated against the petitioners and similarly situated persons in the
previous four years. However, no such incidents have occurred. This
fact is sufficient to establish that the payment of market fees on a
monthly basis is not envisaged by the applicable rules.
6.4 It was submitted that the petitioners had deposited the
advance market fees for the year 2024-25 on 13.11.2024. The
advance market fees of Rs.1,00,000/- were deposited by the
petitioners through cheque number 222780, drawn on the Central
Bank of India. The cheque was deposited by the market committee
and cleared. The balance amount reached the accounts of the
market committee and remained there until it was returned.
However, on 28.11.2024, respondent No. 3 returned the amount by
cheque number 000357, citing the reason that there is no
requirement under law to collect advanced market fees and that all
dues accrue only after the accounting or market year end as defined
under the Act and Rules. Therefore, the market fees were not due
for payment at that time. On the contrary, the advanced payment
received was returned after a period citing the reasons stated
above. The reasons assigned in the impugned order are therefore
not sustainable.
6.5 It was submitted that as on today, there is no steadfast rule
prescribing the time at which the market fees are to be paid by a
trader. Under the circumstances, it cannot be said that the fees
have accrued due, and therefore, it cannot be termed as having
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
remained unpaid. The market committee, through its Secretary, had
also submitted its response to Respondent No.2 at the time of
hearing of the objections. The market committee's reply was that
the objections were unsustainable, and the petitioners were
absolutely right and deserved inclusion. However, the Respondent
No.2, while passing the impugned order, has completely ignored this
response and that too, without assigning any reasons. The
respondent authority also recorded some details about non-payment
and to justify the same, relied on a tabular form allegedly supplied
by the secretary of the market committee. However, no such tabular
form was submitted by the Secretary at the time of hearing the
objections, nor does it form part of the Secretary's reply as
evidenced by the lack of attachment to it. This tabular form has
been used against the petitioners without informing them.
Furthermore, the Respondent No.2 mentioned in the affidavit the
admission of non-payment of market fees, which is factually
incorrect.
6.6 It was submitted that the petitioners possess all the
qualifications for inclusion in the voters list and their exclusion
would result in a non-election, which is far too drastic a
consequence. Therefore, the petitions deserve to be allowed.
7. Heard the learned counsels for the respective parties and
perused the documents on record.
8. The petitioners herein are the members of the A.P.M.C., Borsad
and are forming part of the Traders' Constituency. That the election
programme for the respondent No.1 came to be declared on
12.11.2024 and on 30.11.2024, the publication of provisional voters'
list came to be given. That the respondent No.4 raised an objection
in respect of the petitioners herein with regard to inclusion of their
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
names in the voters' list alleging that the petitioners had not paid
the market fees for the current year and therefore, they were in
breach of the provisions of Section 11(1)(ii) of the A.P.M.C. Act. That
the notice for hearing came to be issued by the respondent No.2
authorized officer. The petitioners filed their reply thereafter on
19.12.2024. The impugned order came to be passed by the
respondent No.2, whereby the names of the petitioners came to be
excluded from the voters' list of the Traders' constituency, holding
that since the petitioners herein had not paid the market fees for
the current year, they were in breach of the provisions of Section
11(1)(ii) of the A.P.M.C. Act and therefore, their names came to be
deleted from the voters' list for the Traders' Constituency.
9. Section 11(1)(ii) of the A.P.M.C. Act reads thus :-
"(ii) four members to be elected in the prescribed manner
from amongst themselves by the commission agents or
traders, as the case may be, who are holding licence under
section 27 or 27A, and if,-
(a) he is holding licence for a period of not less than three
consecutive financial years preceding the election year and
continues to hold it, and;
(b) he has traded in full conformity with terms and
conditions of the licence in each of the last there financial
years and continues to trade in that manner in the election
year:
Provided that if,-
(i) he is a trader, he had paid minimum market fees of fifty
thousand rupees, in each of the last three financial years
preceding the election year and market fees payable by him
have not remained unpaid;
(ii) he is a commission agent, minimum market fees of fifty
thousand rupees have been paid through him in each of the
last three financial years preceding the election year."
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
10. It is the contention of the learned counsel for the petitioners
that the respondent No.2 has passed the impugned order on
conjunctures and surmises. He submits that the respondent No.2
has committed a grave error in deleting the names of the petitioners
despite they were possessing the requisite qualification under the
provisions of Section 11(1)(ii) of the A.P.MC. Act. The learned senior
counsel Mr. Raval has raised a contention that the impugned order
has deprived all the traders of their right to elect their
representative in the market committee. He submits that the
respondent No.2 had not acted fairly, transparently and judicially
and the impugned action is contrary to the conduct of free and fair
election. The learned counsel has further contended that the the
respondent No.2 has totally ignored the communication issued by
the Secretary of the Market Committee. The contention is that the
petitioners had tendered the advanced market fees to the
A.P.M.C.,Borsad, however, the same was returned on the ground
that as the financial year had not come to an end, the advanced
market fees cannot be accepted. He submits that there is nothing
on record that any market fees, as demanded by the market
committee, was remaining unpaid by the petitioners. He submits
that there is nothing on record to establish that the petitioners had
entered into any transaction, for which, they were supposed to pay
the market fees which had remained unpaid. The learned counsel,
therefore, submits that in absence of such facts, the names of the
petitioners could not have been removed from the voters' list.
11. Rule 11(1)(b)(i), prima facie, stipulates that the member of the
Traders' Constituency to become a voter has to pay the market fees
for the last three years and the market fees for the current year. The
contention of the learned counsel for the petitioners is that the
petitioners had offered to pay the market fees, but the same was
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
refused by the Secretary on the ground that the advanced fees
could not be accepted. He, therefore, submits that the petitioners
cannot be held liable for such default and that it was a part of the
design to keep the petitioners out of the voters' list and thereby,
making mockery of election in respect of the Traders' Constituency.
This Court is of the considered opinion that the said rejection
deserves to be rejected. A chart has been produced on behalf of the
respondents with respect to the payment of the market fees by the
petitioners herein. The said chart shows that the petitioners have
paid the market fees for previous three years as stipulated under
Section 11(1)(b)(i) of the Act. It is also the case that the petitioners
had tendered the advanced market fees to the market committee,
which was refused by the Secretary on the ground that the year had
not ended and the market fees had not become due. What is
pertinent to notice at this stage is that the election to the A.P.M.C.,
Borsad came to be declared on 12.11.2024 and it seems that
anticipating the default, the petitioners have tendered the market
fees to the A.P.M.C., Borsad on 13.11.2024. Since the election
programme was already declared, the status of the petitioners as on
the date of declaration of election has to be considered and the
authorized officer has taken the same into consideration.
12. The learned counsel for the petitioners herein has also taken a
contrary stand in respect of the payment of market fees by
contending that under the false pretext of non-payment of market
fees, the names of the petitioners and other traders have been
deleted from the voters' list when there was no business conducted
by the petitioners and no market fees was payable for the current
year. The learned counsel for the petitioners has also made a
submission that there is nothing on record before the respondent
No.2 to come to a conclusion that the petitioners are in default
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
under the provisions of Section 11(1)(b)(i) and as per the procedure
adopted by the market committee, the market fees become payable
only at the end of the financial year for the business done by the
traders during the said financial year. However, in respect of the
same, no proof has been produced on record by the petitioners. The
contention of the learned counsel for the petitioners that the
petitioners are possessing the requisite licence and are trading in
accordance with the terms & conditions of the licence, is not
disputed.
13. In the present writ petitions, the petitioners have not made
the A.P.M.C. Borsad a party, however, the petitioners have made the
averments and arguments relying upon the record of the A.P.M.C,
Borsad for their eligibility to be included in the voters' list. The
petitioners ought to have made the A.P.M.C, Borsad a party so that
the relevant facts could be brought on record through proper
channel. The same has not been done in the present case even
though the A.P.M.C, Borsad was a necessary party to the present
proceedings. Unless the contentions raised by the petitioners are
substantiated, the same cannot be considered to be conclusive.
14. The learned senior counsel for the petitioners has submitted
with respect to the locus of the respondent No.4 to raise an
objection as he was not a trader in the Traders' Constituency and
therefore, he could not have filed an objection in respect of the
voters' list for Traders' Constituency. The said contention is
misplaced. Rule 8(1) of the A.P.M.C. Rules provides that after
publication of the voters' list by the authorized officer, any person,
who thinks that his name or the name of some other person, has
been wrongly entered therein or has not been correctly entered,
may apply to the authorized officer for an amendment of the list of
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
voters. The said sub-rule permits any person, who thinks that some
other person has been wrongly entered, can make an application to
the authorized officer. Therefore, the said contention also deserves
to be rejected. Further, this Court has in the case of Jakhora Group
Teibiya Utpadak Sahakari Mandali Limited Vs State of
Gujarat reported at 2018 JX (Guj) 495 has held that there is no
requirement in law that only a person who is included in the voters'
list of a particular constituency can submit objections.
15. Prima facie, it seems that the authorized officer has taken into
consideration the contentions raised by the petitioners along with
the reply and the documents thereto. Further, the authorized officer
has also made an inquiry seeking documents from the A.P.M.C.,
Borsad and thereafter, has come to the conclusion that the
petitioners herein are ineligible to be included in the voters' list. The
bye-laws of the A.P.M.C. stipulate that the market fees has to be
paid every month. However, the petitioners have not been able to
substantiate that the market fees was to be paid annually only, i. e.
before 31.03.2025 for the current year. The liability to pay the
market fees arises when the transaction of sale and purchase takes
place in the market area. Whenever the sale and purchase is
conducted, the market fees becomes payable. As observed herein
above, the petitioners have tried to pay the market fees to the
A.P.M.C. including the advanced fees after the date of declaration of
the election. Further, no past record has been produced by the
petitioners to show that the market fees was payable annually. From
the record of the A.P.M.C., it is revealed that the petitioners have
traded in commodities during the current financial year and
therefore, it can be safely assumed even as per the contention of
the petitioners that the market fees was payable as on the date of
the declaration of the election of the A.P.M.C., Borsad since they
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
have tried to pay the market fees in advance.
16. It is settled law that judicial review is considered as a basic
feature of the Constitution. The exercise of writ jurisdiction under
Article 226 of the Constitution of India is a constitutional guarantee.
However, the Courts have always frowned upon while interfering
with the election process once the same is set in motion. The self
restriction is to be maintained particularly when exercise of such
power under Article 226 of the Constitution of India has the effect of
arresting, delaying or derailing the election process. In such
circumstances, the paramount consideration before the Court is to
interfere if only an extraordinary circumstance is made out in
respect of the decision of the authorized officer being mala fide,
arbitrary or in breach of any laws or against the principles of natural
justice. Further, the power under Article 226 of the Constitution of
India is to be exercised in such a way that it furthers holding of the
free and fair election rather than delaying the same. It is also well
settled that the Court would not ordinarily interfere particularly in
respect of preparation of voters list which is recognized as a part of
the election process and would ordinarily relegate the parties to
raise all such disputes post the election in an election petition.
Therefore, the interference in preparation of the voters list should be
in extremely rare circumstances.
17. The Full Bench decision of this Court case of "DAHEDA GROUP
SEVA SAHAKARI MANDLI LIMITED v/s. R.D.ROHIT, AUTHORIZED
OFFICER & CO. OPERATIVE OFFICER passed in Special Civil
Application No.2489 of 2005 dated 27/04/2005, wherein in para 32
and 33, it is held as under:-
"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
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
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. It was held
that the proper remedy is by way of election petition before
the Election Tribunal.
33. In view of the above discussion, we answer the Reference
as under: i. A person whose name is not included in the
voters' list can avail benefit of provisions of Rule 28 of the
Rules by filing Election Petition. ii. As the authority under Rule
28 has wide power to cancel, confirm and amend the election
and to direct to hold fresh election in case the election is set
aside, remedy under Rule 28 is an efficacious remedy. iii.
Even though a petition under Article 226 of the Constitution
of India is maintainable though alternative remedy is
available, the powers are to be exercised in case of
extraordinary or special circumstances such as where the
order is ultra vires or nullity and/or ex facie without
jurisdiction. 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."
18. In view of the aforesaid facts and in the considered opinion of
this Court, the factual matrix indicated herein above pertains to the
deletion of the names of the petitioners and therefore, this Court is
not inclined to interfere with the ongoing election programme. No
extraordinary circumstances warranting interference under Article
226 of the Constitution have been made out to interfere with the
impugned order. The petitioners can avail remedy under Rule 28 of
the Rules of 1965 by filing an election petition. The authority under
Rule 28 of the Rules of 1965 has wide powers to cancel, confirm or
NEUTRAL CITATION
C/SCA/17585/2024 ORDER DATED: 31/01/2025
undefined
amend the election and to direct to hold the election afresh in case
the election is set aside. Therefore, the remedy under Rule 28 of the
Rules of 1965 is an efficacious remedy. This Court is inclined to
relegate the writ petitioner to avail statutory remedy as available
under Rule 28 of the Rules of 1965. Further, the present writ
petitions raise disputed questions of facts which can be properly
adjudicated properly in election petition only.
19. It is made clear that the observations made herein above
dealing with the contentions raised by the petitioners shall not come
in the way of the petitioners if the petitioners choose to avail such
alternative remedy. The petitioners shall be at liberty to raise all the
contentions as available to them in law in the proceedings under
Rule 28 of the APMC Rules, 1965.
20. In view of the aforesaid observations and reasons, the present
petitions are hereby dismissed. No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
cmk
