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Mukesh R. Shah, J.—Rule. Shri Dhawan Jayswal, learned AGP waives service of notice of Rule on behalf of respondent Nos. 1 to 4 and Shri V.C. Vaghela, learned advocate waives service of notice of Rule on behalf of respondent No. 5. In the facts and circumstances of the case and present being the election matter and as the pleadings are completed, with the consent of learned advocates appearing on behalf of respective parties, present petition is taken up for final hearing today.
By way of this petition under Article 226 of the Constitution of India, petitioner Cooperative Society through its member of the Managing Committee has prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 06.08.2014 passed by the respondent No. 4-Authorized Officer [Annexure A to the petition] by which the Authorized Officer has deleted the names of the members of the Managing Committee of the petitioner society from the final voters'' list published for the election of the Agriculture Produce Market Committee, Jamnagar.
Facts leading to the present special civil application in nut-shell are as under:
3.1. That election of the APMC, Jamnagar came to be declared by the respondent No. 2, the Director, Agriculture Marketing and Rural Finance, Gujarat State and the respondent No. 4 came to be appointed as Authorized Officer to carry out its functions as required under the provisions of the Gujarat Agriculture Produce Market Rules, 1965 [hereinafter referred to as "Rules"]. That the respondent No. 2 Director declared the election programme which is at Annexure B to the petition, which reads as under:
It appears that when the preliminary voters'' list came to be published by the respondent No. 4, the names of the members of the Managing Committee of the petitioner society were not included. Therefore, petitioner as well as the respondent No. 5 raised the objection against the non-inclusion of the names of the members of the Managing Committee of the petitioner society. At this stage it is required to be noted that there is some dispute between the petitioner and the respondent No. 5 as respondent No. 5 claims that he is representing the petitioner cooperative society and it is the case of the petitioner that the other members who are elected as members of the Managing Committee are conducting the affairs of the petitioner society. It appears that by order dated 03.07.2014, the respondent No. 4-Authorized Officer decided not to include the names of the members of the Managing Committee of the petitioner society by observing that there is dispute with respect to the management of the petitioner society. That thereafter when the provisional voters'' list came to be declared as provided under Rule 8(1) of the Rules, as the names of the members of the Managing Committee of the petitioner society were not included, the petitioner alone raised an objection against non-inclusion of the names of the members of the Managing Committee of the petitioner society in the preliminary voters'' list. It appears that thereafter the Authorized Officer passed an order directing to include the names of the members of the Managing Committee of the petitioner society vide order dated 22.07.2014 and the names of the members of the Managing Committee of the petitioner society came to be included in the provisional voters'' list published under Rule 8(2) of the Rules. It appears that against inclusion of the names of the members of the Managing Committee of the petitioner society, the respondent No. 5 did not raise any objection. However, one Haribhai submitted the objection on 28.07.2014 raising objection against the inclusion of the names of the members of the Managing Committee of the petitioner society. That thereafter by impugned order dated 06.08.2014 and considering the submissions made by the respondent No. 5 on 06.08.2014, the respondent No. 4 has directed to delete the names of the members of the Managing Committee of the petitioner society from the voters'' list and consequently when the final voters'' list came to be published, the names of the members of the Managing Committee of the petitioner society are deleted.
3.2. Feeling aggrieved and dissatisfied with the impugned order dated 06.08.2014 deleting the names of the members of the Managing Committee of the petitioner society from the voters'' list, the petitioner society has preferred the present special civil application under Article 226 of the Constitution of India.
Shri Dipen Desai, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned decision of the respondent No. 4 deleting the names of the members of the Managing Committee of the petitioner society from the voters'' list is absolutely illegal and most arbitrary and in breach of the principles of natural justice. It is submitted that as such the decision to delete the names of the members of the Managing Committee of the petitioner society is absolutely contrary to the decision of the learned Single Judge of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. v. Babulal Jethalal Patel & Ors. reported in 1989(2) GLR 1195 as well as another decision of the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. v. Director of Agriculture Marketing and Rural Finance & Ors. reported in 1998(1) GLH 95. It is submitted that the decision of the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. (Supra) has been confirmed by the Division Bench in the subsequent decision in the case of Mehsana District Co-operative Purchase and Sales Union Ltd. Vs. Dhadhusan Beej Utpadak, Rupantar Ane Vechan Karnari Sahkari Mandali Ltd. and Others, . It is submitted that in the aforesaid decisions, this Court has taken the view that the Authorized Officer cannot delete the names of the persons from the voters'' list without giving any opportunity to the affected parties. It is further submitted that in the aforesaid decisions it is also specifically observed by this Court that even the decision to delete the names from the voters'' list must be a speaking and reasoned order and that too after giving opportunity to all affected persons. It is submitted that as it was found that the Authorized Officers despite the decision of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra) were not following the said decision and they continued to delete the names from the voters'' list without giving an opportunity to the affected persons, even this Court in the reported decision in the case of Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. & Ors. (Supra) has specifically observed that not following the decision of this Court and deleting the names from the voters'' list without giving any opportunity to the affected persons would tantamount to contempt. It is submitted that therefore not only the impugned decision of deleting the names of the members of the Managing Committee of the petitioner society from the voters'' list is illegal, arbitrary and against the principles of natural justice, even the same tantamounts to contempt. It is further submitted that even while passing the impugned order the respondent No. 4 has considered the submissions made by the respondent No. 5 on 06.08.2014 though the respondent No. 5 never submitted any objection against the inclusion of the names of the members of the Managing Committee of the petitioner society in the provisional voters'' list as required under Rule 8(2) of the Rules. It is submitted that the last date for submitting the objections against inclusion of the names in the provisional voters'' list was 30.07.2014. It is submitted that it is an admitted position that the respondent No. 5 did not raise any objection on or before 30.07.2014. It is submitted that therefore as such the respondent No. 4 ought not to have considered the submissions/objections raised by the respondent No. 5 submitted on 06.08.2014. It is submitted that therefore the respondent No. 4 has acted in a most illegal and arbitrary manner.
Making above submissions and relying upon above decisions, it is requested to allow the present special civil application and quash and set aside the impugned decision dated 06.08.2014 deleting the names of the members of the Managing Committee of the petitioner society from the final voters'' list.
Shri Dhawan Jayswal, learned AGP has appeared on behalf of respondent Nos. 1 to 4. Respondent Nos. 2, 3 and 4 have remained personally present in the Court. An affidavit in reply is filed on behalf of respondent No. 4. Learned AGP has tried to support the impugned order dated 06.08.2014 passed by the respondent No. 4 deleting the names of the members of the Managing Committee of the petitioner society. However, he is not disputing and/or is not in a position to dispute that before passing the impugned order dated 06.08.2014 in deleting the names of the members of the Managing Committee of the petitioner society from the voters'' list, the petitioner society was not heard. Therefore, as such he is not in a position to dispute that the impugned decision to delete the names of the members of the Managing Committee of the petitioner society is in breach of principles of natural justice as well as the decisions of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra), Prahladbhai Shivram Patel & Ors. (Supra) and Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. & Ors. (Supra). However, has submitted that as the respondent No. 5 earlier raised an objection in the month of June 2014 i.e. at the time when the names of the members of the Managing Committee of the petitioner society were not included in the preliminary voters'' list and therefore, the Authorized Officer thought it fit to call the respondent No. 5 on 06.08.2014 and considered the submissions made by the respondent No. 5.
Shri V.C. Vaghela, learned advocate has appeared on behalf of the respondent No. 5. He has also tried to oppose the present special civil application by submitting that there is a dispute with respect to the management of the petitioner cooperative society and when the respondent No. 5 earlier raised objection in the month of June 2014 and therefore, subsequently when one Haribhai raised an objection on 28.07.2014, raising objections against including the names of the members of the Managing Committee of the petitioner society in the provisional voters'' list, while holding the inquiry the respondent No. 4 rightly called the respondent No. 5 and has rightly considered the submissions/objections raised by the respondent No. 5. He has also stated at the Bar that prior to 30.07.2014 and/or even prior to 06.08.2014, the respondent No. 5 did not raise/submit any objections against inclusion of the names of the members of the Managing Committee of the petitioner society published in the provisional voters'' list. He has also stated at the Bar that however the Authorized Officer called the respondent No. 5 personally on 06.08.2014 and therefore, the respondent No. 5 appeared before the Authorized Officer and made submissions on 06.08.2014 and on the basis of such submissions, the impugned decision has been taken by the respondent No. 4.
Making above submissions, it is requested to dismiss the present petition.
Heard learned advocate appearing on behalf of the respective parties at length.
At the outset it is required to be noted that as such initially when the preliminary voters'' list came to be published, the names of the members of the Managing Committee of the petitioner society were not included in the preliminary voters'' list. That thereafter the petitioner society submitted the objections against the non-inclusion of the names of the members of the Managing Committee in the preliminary voters'' list. It also appears that simultaneously even the respondent No. 5 also submitted the objection against the non-inclusion of the names of the members of the Managing Committee of the petitioner society. It appears that on 03.07.2014, in view of the dispute between the members of the Managing Committee of the petitioner society, the respondent No. 4 took a decision not to include the names of the members of the Managing Committee of the petitioner society in the voters'' list and consequently the names were not included in the preliminary voters'' list. It appears that thereafter the petitioner society alone [not the respondent No. 5] raised the objection against the non-inclusion of the names of the members of the Managing Committee in the preliminary voters'' list as required under Rule 8(1) of the Rules. That after hearing the petitioner society and considering the submissions, the respondent No. 4 by order dated 22.07.2014, took a decision to include the names of the members of the Managing Committee of the petitioner society and consequently while publishing the provisional voters'' list, names of the members of the Managing Committee of the petitioner society came to be included on 23.07.2014. From the impugned order it appears that one Haribhai Tapubhai raised objection on 28.07.2014 against the inclusion of the names of the members of the petitioner society in the provisional voters'' list. However, it is an admitted position that the respondent No. 5 did not raise any objection as required under Rule 8(2) of the Rules against inclusion of the names of the members of the Managing Committee of the petitioner society in the provisional voters'' list. Despite the fact that respondent No. 5 did not raise any objection as required to be raised under Rule 8(2) and that too within the stipulated time [in the present case on or before 30.07.2014], the respondent No. 4 for whatever reason called the respondent No. 5 in person on 06.08.2014 and after considering the submissions made by the respondent No. 5 on 06.08.2014 has passed the impugned order dated 06.08.2014 deleting the names of the members of the Managing Committee of the petitioner society and consequently while publishing the final voters'' list has excluded/deleted the names of the members of the Managing Committee of the petitioner society. As observed herein above and as it is not disputed that before deleting the names of the members of the Managing Committee of the petitioner society, no opportunity of hearing has been given to the petitioner society and/or its members. Under the circumstances, as such the impugned decision is absolutely illegal, most arbitrary and against the principles of natural justice.
7.1. Identical question came to be considered by the learned Single Judge of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra). While considering sub-Rule (1) of Rule 8 of the Rules, it is held by the learned Single Judge that what sub-Rule (1) of Rule 8 of the Rules requires is that the Authorized Officer has to publish the preliminary list of voters and fix the date for inviting the objections. After receiving applications for amendment/objections, as they are often described, he has to republish the said list along with the proposed amendment, alterations or deletions and invite objections from the persons who are likely to be adversely affected by the said proposed amendment, alterations or deletions. It is further observed that inviting such objections is really in the nature of a hearing to be given to the persons who are likely to be affected thereby. It is further observed that this being the requirement of the principles of natural justice, it has to be read in sub-Rule (1) of Rule 8 and keeping that objective in mind it will have to be held that after the second publication of the voters'' list, what is required to be done by the Authorized Officer is to hear the persons likely to be affected by the proposed amendments, alterations or deletions. It is further observed in the said decision that he cannot receive or entertain fresh applications for additions, alterations or deletions or fresh objections in that behalf. The aforesaid decision came to be considered by the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. (Supra). In the case before the learned Single Judge the names were deleted from the voters'' list by the Authorized Officer without giving any opportunity to them and the learned Single Judge considered the provisions of sub-Rule (1) of Rule 8 and sub-Rule (1a) of Rule 8 of the Rules. After considering the decision of the learned Single Judge in the case of Desai Dharamsinhbhai Taljabhai & Ors., the learned Single Judge in paras 12 and 13 has observed as under:
"12. A conjoint reading of Rule 8(1) and Rule 8(2) also supports this conclusion. Sub-rule (1) requires the Authorised Officer to give a notice while publishing the preliminary voters'' lists, for making applications to him for amendment of lists within 14 days from the date of publication of the notice. Thus, the Authorised Officer has to prescribed the last date before which applications for amendment can be made Applications for amendment of lists of voters are thus required to be made within the prescribed time and the Authorised Officer would have no authority of law to entertain applications received after that date. Sub-rule (2) then requires the Authorised Officer to decide those applications and cause to be prepared and published a final list of voters. It does not prescribe any time limit within which that process has to be completed but final list has to be prepared atleast thirty days before the date fixed for nomination of candidates for the election. It is therefore, open to the Authorised Officer to decide such applications, after further inviting objections to those applications from persons likely to be adversely affected and then decide the same. But, in any case, he will have no authority to invite or entertain fresh applications for amendment of the list of voters.
In my opinion, on the interpretation of sub-rules (1) and (2) of Rule 8, the contention raised on behalf of the contesting respondents that the qualifying date for the purpose of determining the eligibility of a person to be enrolled as a voter is the date on which the final list is published cannot be accepted. No doubt, the learned Single Judge of this Court did accept that contention while deciding Special Civil Application No. 5620 of 1985. As I am taking a contrary view, it would have become necessary for me to refer the matter to a Division Bench but for the fact that the decision rendered by the learned Single Judge in that case was challenged in the Letters Patent Appeal No. 382 of 1985 and the Letters Patent Bench allowed the appeal, set aside the judgment of the learned Single Judge and dismissed the Special Civil Application on a different ground and did not go into question as to which is the correct qualifying date for the purpose of determining the eligibility of a person to be enrolled as a voter."
It is required to be noted at this stage that as it was felt by the learned Single Judge that despite the decision of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra), the Authorized Officers were deliberately ignoring the said decision and were deleting the names from the voters'' list without giving any opportunity to the affected persons whose names were sought to be deleted, in para 23, the learned Single has observed as under and has directed the Director to issue a circular to all the persons who are to work as Authorized Officers to follow the law laid down by this Court and the learned Single Judge also observed that if they flout the law laid down by this Court, that act on their part would amount to contempt of Court.
"23. It is also necessary to mention here other provisions of the said Rules of 1965. Under Rule 10, the respondent no. 1 has to declare the election under sub-rule (1) and under sub-rule (2) of Rule 10, he has to fix the election programme. I personally feel that when the respondent no. 1 is to exercise powers under this rule 10, he must declare the election programme in such a manner that if any person is aggrieved by the decision of the authorised officer regarding his illegal omission or deletion in the voters'' list to have recourse to law. As stated earlier, the Rules nowhere make any provision for providing an appeal or Revision against the order of the authorised authority. Therefore, in these circumstances, when the authorised officer is to decide the question of either inclusion or omission of voters from the voters'' list, a heavy duty is cast on him to pass a detailed speaking order after giving an opportunity to the persons of being heard and that has been also observed earlier by this Court in the case of 1989(2) GLR, 1195. But it seems that the authorised officers are deliberately ignoring the said decision of this Court. Therefore, it is expected of the respondent no. 1 to bring to the notice of all the persons who have to work as authorised officer the interpretation of Rule 8 in that judgment of this Court and to direct them to act accordingly. Because this deliberate activity on the part of authorised officers to ignore the decision of this Court is unnecessarily flooding this Court with petitions. I would therefore, direct the respondent no. 1 to issue a circular to all the persons who are to work as authorised officer to follow the law laid down by this Court and I also make it very clear that if they flout the law laid down by this Court, that act on their part will amount to contempt of Court. In the present situation of political parties, a heavy duty lies on the Executives to act according to law and not to dance to the tunes of politicians. In the instant case, I fail to understand as to how respondent no. 3 could delete the names of voters after he had published the preliminary list on 24.10.97 as well as revised list on 12.11.97 and his further claim that it was not necessary for him to give any hearing the persons whose names were being deleted. As stated earlier, when the respondent no. 1 has to fix the programme of election, he should arrange the said programme in such a manner that there will be sufficient time for the parties who are likely to be affected by the decision of the authorised officer to approach the Court in case if the orders passed against them happens to be illegal, contrary to the provisions of law and without jurisdiction. He has got sufficient time and opportunity as provided by Rule 10 to arrange election programme in that matter."
The said decision of the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. (Supra) has been confirmed by the Division Bench of this Court in the decision reported in Mehsana District Co-operative Purchase and Sales Union Ltd. Vs. Dhadhusan Beej Utpadak, Rupantar Ane Vechan Karnari Sahkari Mandali Ltd. and Others, .
7.2. Shri Jayswal, learned AGP has stated that at the Bar that pursuant to the aforesaid direction as such the Director has already issued the circular directing all the Authorized Officers to comply with the decision of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra). Despite the above decisions of this Court and even the strong observations made by the learned Single Judge referred to hereinabove, the respondent No. 4 in the present case has deleted the names of the members of the Managing Committee of the petitioner society from the voters'' list without giving any opportunity of being heard to the petitioner. Not only that but the respondent No. 4 called the respondent No. 5 on 06.08.2014 and after considering the objections/submissions raised by respondent No. 5 on 06.08.2014, has passed the impugned order deleting the names of the members of the Managing Committee of the petitioner society from the final voters'' list. As observed hereinabove and as such it is not in dispute and even so stated by Shri Vaghela, learned advocate appearing on behalf of the respondent No. 5 that after the names of the members of the Managing Committee of the petitioner society were included in the provisional voters'' list, the respondent No. 5 never raised any objection either on or before 30.07.2014 and/or even 06.08.2014. It is required to be noted at this stage that as per the election programme, the last date for submitting the objections against the amendment in the preliminary voters list by publishing the provisional voters'' list was 30.07.2014. Under the circumstances, as such it was not open for the respondent No. 4 to consider the submissions made by respondent No. 5 on 06.08.2014 more particularly when respondent No. 5 never raised any objections against inclusion of the names of the members of the Managing Committee of the petitioner society as required under Rule 8(1A) of the Rules. Considering the provisions of Rule 8 of the Rules, after the amendment in the preliminary voters'' list and if the names are included in the provisional voters'' list, the Authorized Officer is required to consider only those objections which are received against inclusion of the names in the provisional voters'' list. He cannot invite the objections subsequently. In the present case the respondent No. 4 has called the respondent No. 5 on 06.08.2014 to make submissions and considering the submissions made by the respondent No. 5 on 06.08.2014 [though the respondent No. 5 never raised any objection as per Rule 8(1a) of the Rules], the respondent No. 4 has deleted the names of the members of the Managing Committee of the petitioner society. The aforesaid is absolutely illegal and arbitrary and in violation of the principles of natural justice as well as the statutory provisions more particularly Rule 8 of the Rules. Even the aforesaid decision of respondent No. 4 is as such contrary to the decisions of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra), Prahladbhai Shivram Patel & Ors. (Supra) and Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. & Ors. (Supra) and even despite the circular issued by the Director issued pursuant to the direction issued by this Court in the case of Prahladbhai Shivram Patel & Ors. (Supra), the respondent No. 4 has deleted the names of the members of the Managing Committee of the petitioner cooperative society from the voters'' list without giving any opportunity to the petitioner which, as observed by the learned Single Judge in its judgment and order in the case of Prahladbhai Shivram Patel & Ors. (Supra), would tantamount to contempt of Court.
In view of the above and for the reasons stated above, the impugned decision dated 06.08.2014 directing to delete the names of the members of the Managing Committee of the petitioner society from the provisional voters'' list/final voters'' list cannot be sustained and the same deserves to be quashed and set aside and is hereby quashed and set aside and the respondent No. 4 is hereby directed to include the names of the members of the Managing Committee of the petitioner society in the final voters'' list immediately. Rule is made absolute to the aforesaid extent with exemplary cost which is quantified at Rs. 15,000/- to be paid by the respondent No. 4 personally and the same shall not be borne by the Government. The aforesaid cost to be deposited with the Registry within a period of two weeks from today and on such deposit, Registry is directed to transmit the same to Gujarat High Court Legal Aid Committee.