Gujarat High Court
Akhani Rajeshkumar Amrutlal ... vs State Of Gujarat on 30 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7186 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
✔
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AKHANI RAJESHKUMAR AMRUTLAL PROPRIETOR OF AMRUT MASALA
BHANDAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR VC VAGHELA ADVOCATE WITH MR PRUTHVIRAJSINH D
PARMAR(9934) for the Petitioner(s) No. 1
PARTH J ADHYARU(9359) for the Petitioner(s) No. 1
SIDDHI V VADODARIYA(9533) for the Petitioner(s) No. 1
MR VENUGOPAL PATEL AGP for the Respondent(s) No. 1,2
MR CP CHAMPANERI(5920) for the Respondent(s) No. 10,11,4,5,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 3,6
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 30/06/2025
ORAL JUDGMENT
[1] Considering the nature of controversy and urgency,
present petition is taken up for final hearing at the admission stage
with the consent of learned advocates appearing for the respective
parties.
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[2] Issue Rule returnable forthwith. Learned A.G.P. Mr.
Venugopal Patel waives service of notice of Rule on behalf of the
respondents - State authorities. Learned advocate Mr. C. P.
Champaneri waives service of notice of Rule on behalf of the
respondents - Traders.
[3] By way of this petition under Article 226 of the
Constitution of India, the petitioner has approached this Court
challenging, inter alia, the order dated 8th May 2025 passed by the
Authorized Officer, wherein the objections of the petitioner against
the inclusion of names of the respondents - Traders in the
preliminary voters list - Constituency for the election of the
Agricultural Produce Market Committee, Thara came to be rejected.
[4] The case of the petitioner can be stated as under:
[4.1] It is the case of the petitioner that election of
Agricultural Produce Market Committee, Thara has issued election
programme on 20th March 2025, which can be reproduced
hereinbelow:
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"Agriculture Produce Market Committee- Thara, Taluka- Kankrej,
District- Banaskantha
General Election Programme
Sr. Details of Programme Date
No.
(1) (2) (3)
1. Declaration of the election- 40 days prior 20/03/2025
to the date of election as per Rule-10(2)
2. The authorized officer to issue notice to 07/04/2025
prepare electoral roll
2(A) Date to submit the electoral roll to the 15/04/2025
authorized officer (Rule-7)
3. Primary publication of the electoral 19/04/2025
roll, within 7 days from the date of
seeking the electoral roll (Rule-7(2))
4. Last date to submit objection / 02/05/2025
application for correction in the
primary electoral roll, within 14 days
from primary publication (Rule-8(1))
4(A) Re-publishing revised primary electoral 08/05/2025
roll along with the notice to raise
objection for the same, prepared after
submission of corrections- instructions-
objections against the primary electoral
roll (Rule-8(1)(A))
4(B) Last date to submit corrections/ 14/05/2025
objections against the republished
revised primary electoral roll (Rule-
8(1)(A))
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5. Final publication of the electoral roll 20/05/2025
(Rule-8(2))
6. Date to submit Nomination papers 19/06/2025
(Rule-10(2))
7. Primary publication of Nomination 19/06/2025
papers (Rule-14)
8. Verification of Nomination papers 20/06/2025
(Rule-15)
9. Date to withdraw Nomination papers 23/06/2025
[Rule-17(1)]
10. Final publication of list of candidates 23/06/2025
[Rule-17(2)]
11. Date of election 30/06/2025
12. Date of counting votes 01/07/2025
13. Declaration of Election result (Rule-21) Immediately after
counting votes
Date:20/03/2025 Director
Agriculture Marketing and Rural
Place: Gandhinagar Finance
Gujarat State Gandhinagar
[4.2] In view of the aforesaid, the Authorized Officer, in
exercise of its powers under Rule 8, invited objections against the
preliminary voters list of the Traders Constituency. Pursuant
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thereto, the petitioner has raised objections on 2nd May 2025 before
the Authorized Officer.
[4.3] The Authorized Officer, thereafter, vide its order dated
8th May 2025, rejected the objections of the petitioner and
confirmed the inclusion of names of the respondents - Traders in
the voters list.
[5] Being aggrieved and dissatisfied with the aforesaid, the
petitioner has approached this Court by way of present petition
under Article 226 of the Constitution of India.
[6] I have heard learned advocate Mr. V. C. Vaghela for the
petitioner, learned advocate Mr. C. P. Champaneri for the
respondents - Traders and learned A.G.P. Mr. Venugopal Patel for
the respondents - State authorities.
[7] Learned advocate Mr. V. C. Vaghela, while assailing the
impugned order, has made mainly the following submissions:
[7.1] Learned advocate Mr. V. C. Vaghela for the petitioner
submitted that the impugned order passed by the Authorized
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Officer is ex facie illegal being contrary to the provisions of Rule 8
of the Gujarat Agricultural Produce Market Rules, 1965 [for short,
"the Rules"] and thus, the impugned order deserves to be quashed
and set aside.
[7.2] Learned advocate Mr. Vaghela submitted that the
Authorized Officer has not held inquiry properly with regard to
qualification of the respondents - Traders for inclusion of its names
in the voters list and that has resulted into serious miscarriage of
justice. Learned advocate Mr. Vaghela submitted that the
Authorized Officer ought to have undertaken detail inquiry so as to
decide the eligibility of the respondents - Traders for inclusion of
its names in the voters list. According to learned advocate Mr.
Vaghela, the Authorized Officer has failed in discharging its duty
under Rule 8 and in a mechanical manner, without any rhyme or
reason, ignored the objections of the petitioner and included the
names of the respondents - Traders those are not eligible to be
included in view of the provisions of Section 11(1)(ii) of the
Gujarat Agricultural Produce Market Act, 1963 [for short, "the
Act"].
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[7.3] Learned advocate Mr. Vaghela further submitted that
the respondents - Traders are not fulfilling the criteria as envisaged
under the provisions of Section 11(1)(ii) of the Act inasmuch as the
Traders have not produced any document with regard to actual
trade for the past three years in conformity with the terms and
conditions of the license and thus, in absence of such basic
qualifications, the order of the Authorized Officer including such
Traders in the voters list is not tenable in the eye of law and
thereby, the same deserves to be quashed and set aside.
[7.4] According to learned advocate Mr. Vaghela, the receipts
produced by the respondents - Traders are bogus and that no other
independent documents such as bills or GST registration, license
under the Shop and Establishment Act have been produced,
therefore, only relying upon the certificate of the Agricultural
Produce Market Committee, the Authorized Officer ought not to
have included the respondents- Traders in the voters list.
[8] By making above submissions, learned advocate Mr.
Vaghela for the petitioner requested this Court to quash and set
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aside the impugned order.
[9] Per contra, learned advocate Mr. C. P. Champaneri for
the respondents - Traders, while opposing the present petition, has
made the following submissions:
[9.1] Learned advocate Mr. Champaneri for the respondents
- Traders submitted that the impugned order passed by the
Authorized Officer is perfectly justified being passed on the basis of
available material on record and thereby, the same cannot be
faulted with.
[9.2] Learned advocate Mr. Champaneri further submitted
that the Authorized Officer has, in fact, undertaken summary
inquiry, as envisaged under Rule 8 and on the basis of said inquiry,
it has been found that the respondents - Traders are meeting the
requirements of Section 11(1)(ii) and thereby, inclusion of the
respondents - Traders made in the voters list at the instance of the
Authorized Officer cannot be said to be any way illegal, which calls
no interference by this Court under Article 226 of the Constitution
of India.
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[9.3] Learned advocate Mr. Champaneri further submitted
that under Rule 8, the Authorized Officer is obliged to hold
summary inquiry as he may deem fit, thus, after holding summary
inquiry, if the Authorized Officer has found the respondents -
Traders to be qualified for inclusion in the voters list, in that event,
merely because the inquiry, as suggested by the objectors, was not
carried out, would not make the entire order vitiated. According to
learned advocate Mr. Champaneri, as per Rule 8, there is no full
fledged inquiry suggested by the legislature and on the contrary it
is left upon discretion of the Authorized Officer to hold inquiry as
he deems fit, thus, the impugned order passed by the Authorized
Officer, after holding inquiry, cannot be said to be illegal and
therefore, he requested this Court to dismiss the present petition.
[9.4] Learned advocate Mr. Champaneri submitted that even
otherwise, considering the objections, the case of the petitioner is
only on the bald allegation and that too, having no proof and / or
evidence, such bald allegation cannot be considered by this Court
under Article 226 of the Constitution of India, more particularly,
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when there is already a statutory remedy under Rule 28, wherein
the petitioner can, after conclusion of the election, raise election
disputes. Under the circumstances, Mr. Champaneri submitted that
present petition may not be entertained in view of the availability
of the statutory alternative remedy.
[10] By making above, learned advocate Mr. Champaneri for
the respondents - Traders requested this Court to dismiss the
present petition.
[11] Learned A.G.P. Mr. Venugopal Patel for the respondents
- State authorities, while supporting the impugned order, has made
the following submissions:
[11.1] Learned A.G.P. Mr. Venugopal submitted that the
impugned order passed by the Authorized Officer is perfectly
justified being passed after holding necessary inquiry as deemed fit
by the Authorized Officer. Mr. Venugopal further submitted that as
per Rule 8, the Authorized Officer has left at the discretion to hold
inquiry as per his satisfaction and that too, summary in nature.
According to learned A.G.P. Mr. Venugopal, merely because the
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inquiry held by the Authorized Officer was not as per the objector -
petitioner, the same would per se not render the order as illegal.
Learned A.G.P. Mr. Venugopal further submitted that upon inquiry
and the documents called from the Market Committee, the
Authorized Officer has found that the Traders are eligible to be
included in the voters list as they are fulfilling the conditions as
envisaged under Rule 11(1)(ii) and thus, such findings recorded by
the Authorized Officer cannot be called in question under Article
226 of the Constitution of India, more particularly, when the
petitioner has an alternative efficacious statutory remedy under
Rule 28.
[12] By making above submissions, learned A.G.P. Mr.
Venugopal Patel for the respondents - State authorities requested
this Court to dismiss the present petition.
[13] I have heard learned advocates appearing for the
respective parties at length and have gone through the material
produced on record. No other and further submissions have been
canvassed by the learned advocates appearing for the respective
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parties, except what are stated hereinabove.
[14] Having heard the learned advocates appearing for the
respective parties and having gone through the material produced
on record, a short question that falls for consideration of this Court
is whether the order passed by the Authorized Officer including the
names of the respondents - Traders in the voters list can be said to
be special and / or extraordinary circumstances, in the facts of this
case that deserves any interference of this Court under Article 226
of the Constitution of India instead of relegating the petitioner to
the remedy available under Rule 28?
[15] So as to decide the aforesaid question, certain facts
deserve to be taken note of:
(i) It is not in dispute that the respondents - Traders
having license of the A.P.M.C. since many years. It is
also not the case that those respondents - Traders have
been issued licenses only with a view to inflate the
voters list. It is also not the case that the licenses issued
to the respondents - Traders in the eve of election by
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the outgoing Body as since more than one year, the
A.P.M.C. is being managed by the Administrator and
not by any Body.
(ii) It is also deserved to be noted that the A.P.M.C. itself
has provided details of as many as 63 Traders including
the present respondents showing payment of Cess for
last three years. On perusal of the said details, it would
appear that all the respondents - Traders have paid
minimum amount of Cess in consecutive last three
years. Even the original licenses are also produced on
record, for which there is no dispute.
(iii) Further, the documents with regard to receipts,
showing details of each Traders - respondents dealing
in various agricultural products are also not in dispute.
On the basis of all such evidence, the Authorized
Officer found the respondents - Traders eligible to be
included in the voters list.
[16] Thus, in my view, the Authorized Officer, under Rule 8,
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having limited power to have summary inquiry, if found the
respondents - Traders qualified on the basis of the aforesaid, then
in that event, the order of the Authorized Officer cannot be faulted
with. Merely because the Authorized Officer has not undertaken
inquiry, as expected by the objector - petitioner, it would not per se
amount to vitiate the decision of the Authorized Officer. The
petitioner has raised objections making allegations against the
respondents - Traders with general and vague averments and
expected the Authorized Officer to undertake all the inquiries
before it. In my view, when the Authorized Officer is exercising
power under Rule 8 and if the objection is raised, then it is the duty
of the objector to make allegation with at least some basic proofs.
The objector cannot raise its objection with general and vague
allegations and then, expect the Authorized Officer to undertake
detail inquiry under Rule 8. In the election process, the Authorized
Officer has to hold summary inquiry within the time bound
schedule and by levelling broad allegations, without any proof, the
objector cannot expect in depth inquiry. Therefore, the impugned
order passed by the Authorized Officer, in my view, is perfectly
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justified in the facts of the case, more particularly, when all the
contentions of the objector can very well be gone into by the
Special Officer under Rule 28 after conclusion of the election. Even
otherwise, as per decision of the Full Bench of this Court in the case
of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit,
Authorized Officer and Cooperative Officer (Marketing)
reported in 2006 (1) GCD 211, inclusion and /or exclusion of
name in the voters list cannot be said to be special and / or
extraordinary circumstances. It has been further held by the Full
Bench that this Court would not exercise its powers under Article
226 of the Constitution of India when the election process has been
set in motion even though there may be some illegality or breach of
rules while preparing the electoral rolls. At this stage, it would be
an apt to take note of the relevant observations made by the Full
Bench in Daheda Group Seva Sahakari Mandli Limited (supra)
thus as under:
"29. Turning now to the second contention namely; can remedy
under Rule 28 can be termed to be efficacious remedy. Learned
Counsel Mr Patel after inviting our attention to rule 28
submitted that even though the authority either can cancel or
confirm and amend the declared result and can direct to hold
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fresh election in the event of setting aside the election, if the
non-inclusion of the names in the voters' list has not materially
affected, result of the election which is very difficult to establish
then, the election cannot be set aside. In that event, the right
under the statute to cast the vote shall not be available to the
person whose name is wrongfully excluded from the voters' list.
He submitted that even the Director or the competent authority
under rule 28 cannot confer the right to vote. Under the
provisions of rule 9 read with section 15 of the Act, the election
is required to be held afresh. In that event, a person who has
lost his right to vote remains the claimant for getting the right
to vote but that right cannot be decided by the authority under
the rules or provisions of the Act. He submitted that the voters'
list is to be prepared for every election and the voters' list is not
continued. If the voters' list is not continued, in that event, by
no stretch of imagination, a person can get right to vote. By
giving example, he submitted that if 50 voters have been
excluded from the voters' list by wrongful order, in that event, in
a petition by one member the right of other 49 cannot be
decided. Under the circumstances, he submitted that the remedy
under rule 28 cannot be termed as efficacious remedy. Finally
he submitted that in absence of any right to appeal, the power
conferred on authorised officer would lead to hazardous
situation.
30. The arguments advanced by Mr Patel appears to be
attractive, however, in substance, devoid of any merit. Having
regard to the language and terminology of rule 28 of the rules,
we are of the view that it leaves no room of doubt that it
includes the question of inclusion, exclusion or wrongful
inclusion or exclusion in an illegal, arbitrary or malafide
manner of name of an eligible voter in voters' list and the
question can be gone into in an election petition under Rule 28
and, therefore, in an election petition such a question can be
validly raised, adjudicated and ultimately relief granted, if a
case is made out and it is proved that on account of such
wrongful inclusion or exclusion the result of the election is
materially affected. In any case, the efficacious remedy provided
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under the Act would not entitle the petitioner to contend as a
matter or right that he is entitled to invoke the jurisdiction of
this court.
31. On the question of maintainability of petition under Article
226 of the Constitution of India, in our opinion, the law is well
settled. Mr Patel, invited our attention to the decision reported
in 1988 GLH 430. There the Division Bench, after quoting the
judgment of a Full Bench in the case of Ahmedabad Cotton Mfg.
Ltd. v. Union of India and Ors. (18 GLR 714) where the
principles have been clearly enumerated and held that
extraordinary jurisdiction of the High Court under Articles 226
and 227 of the Constitution of India is very wide, the Court
should be slow in exercising the said jurisdiction where
alternative efficacious remedy under the Act is available but
however, if the impugned order is an ultra vires order or is
nullity as being ex-facie without jurisdiction. The question of
exhausting alternative remedy would hardly arise.
31.1. In the case of Mehsana Dist. Coop. Sales and Purchase
Union v. State of Gujarat (1988 (2) GLR 1060), after following
the decision rendered by the Apex Court in the case reported in
the case of Gujarat University v. N U Rajguru, (1988 (1) GLR
308), the Court have noted the observations made by the
Hon'ble Apex Court as under:
"there may be cases where exceptional or extraordinary
circumstances may exist to justify bye-passing alternative
remedies".
In the case of Manda Jaganath v. K S Rathnam, reported in AIR
2004 SC 3600, the Apex Court has held after considering the
provisions of Article 329(B) of the Constitution of India that
"there are special situations wherein writ jurisdiction can be
exercised but, special situation means error having the effect of
interfering in the free flow of the scheduled election or hinder
the progress of the election which is the paramount
consideration."
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In the case of Election Commission of India v. Ashok Kumar,
reported in 2000(8) SCC page 216, the Apex Court held that
the order issued by the Election Commission is open to judicial
review on the ground of malafide or arbitrary exercise of
powers.
32. We have gone through the aforesaid decisions closely. There
cannot be any dispute with regard to the principles laid down
therein. The sum and substance of those decisions apply to a
situation where this Court would like to entertain a petition on
the foundation that the order is ultra vires and/or without
jurisdiction and/or is violating principles of natural justice.
Thus, in an exceptional case, this Court can exercise the power
of judicial review, which is a basic structure of the situation in
such cases more particularly, in the election process. One thing
is clear that this Court ordinarily would not like to exercise its
power under Article 226 of the Constitution when the process of
election has been set in motion even though there may be some
alleged illegality or breach of rules while preparing the electoral
roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru
Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha
Utpadak Sanstha and Ors. v. State of Maharashtra and Ors
(2001) 8 SCC 509, while dealing with the Maharashtra
Cooperative Societies Act, held that in the process of election of
the Managing Committee of a specified society where the
election process having been set in motion, the High Court
should not stay the continuation of the election process even
though there may be some alleged illegality or breach of rules
while preparing the electoral roll. It was held that the proper
remedy is by way of election petition before the Election
Tribunal.
33. In view of the above discussion, we answer the Reference as
under:
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i. A person whose name is not included in the voters' list can
avail benefit of provisions of Rule 28 of the Rules by filing
Election Petition.
ii. As the authority under Rule 28 has wide power to cancel,
confirm and amend the election and to direct to hold fresh
election in case the election is set aside, remedy under Rule 28 is
an efficacious remedy.
iii. Even though a petition under Article 226 of the
Constitution of India is maintainable though alternative remedy
is available, the powers are to be exercised in case of
extraordinary or special circumstances such as where the order
is ultra vires or nullity and/or ex facie without jurisdiction. The
exclusion or inclusion of names in the voters' list cannot be
termed as extraordinary circumstances warranting interference
by this Court under Article 226 of the Constitution of India and
such questions are to be decided in an Election Petition under
Rule 28 of the Rules."
[17] For the foregoing reasons, present petition is not
entertained and is hereby dismissed by relegating the petitioner to
avail the alternative efficacious statutory remedy under Rule 28, if
so advised. Rule is discharged.
(NIRAL R. MEHTA,J)
CHANDRESH
