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K.S. Jhaveri, JJ.—By way of this petition under Article 226 of the Constitution of India, the Petitioner has prayed for the following reliefs;
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the impugned action of Respondents in not including the names of Members of Managing Committee of the Petitioner society in the list of voters of cooperative marketing society constituency of Agricultural Produce Market Committee, Upleta as also the order dated 08.08.2011 made by Respondent No. 2 as being illegal, unreasonable, malafide, arbitrary and also violative of Articles 14 and 19(1)(g) of the Constitution of India.
(AA) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the final voters list dated 18.08.2011 to the extent of non-inclusion of the names of Members of the Managing Committee of the Petitioner Society as being illegal, without authority of law, jurisdiction, arbitrary in breach of principles of natural justice and also violative of Article 14 of the Constitution of India and be further pleased to direct the Respondent No. 2 to include the names of Members of Managing Committee of the Petitioner Society in the list of voters of Cooperative Marketing Society constituency for the elections to Agricultural Produce Market Committee, Upleta in the interest of justice.
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order, directing the Respondents to include the names of Members of the Managing Committee of the Petitioner society in the list of voters of cooperative marketing society constituency of Agricultural Produce Market Committee, Upleta in the interest of justice and equity.
(C), (D) and (DD)....
The Petitioner herein is a Co-operative Marketing Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 (for short, "the Act") and is holding a general licence issued by the Agricultural Produce Market Committee, Upleta (for short, "the APMC").
The Director, Agriculture Marketing and Rural Finance, Gujarat State issued a Notification dated 21.06.2011 whereby, the date of Election to the APMC was fixed. Subsequently, a detailed election programme was published according to which the Election was fixed on 04.10.2011. In pursuance thereof, the Petitioner forwarded a list of Members of its Managing Committee to Respondent No. 2 as per the election programme and read with Rule 7 of the Gujarat Agricultural Produce Market Rules ( for short, "the Market Rules") vide letter dated 21.07.2011.
On 23.07.2011 Respondent No. 2 published the preliminary voters'' list wherein, the names of Members of the Managing Committee of the Petitioner Society were not included. Being aggrieved by the said action, the Petitioner submitted its written objections dated 04.08.2011 to Respondent No. 2. However, the said objections filed by the Petitioner came to be rejected by order dated 08.08.2011. On 10.08.2011 the Election Officer published the provisional voters'' list wherein, the names of Members of the Managing Committee of the Petitioner Society were not included. Thereafter, the final voters'' list came to be published on 18.08.2011 wherein also, the names of Members of the Managing Committee of the Petitioner Society were not included.
Being aggrieved by the aforesaid action of Respondent No. 2-authority, the Petitioner Society has preferred the present petition under Article 226 of the Constitution of India.
6.0 Mr Navin Pahwa Learned Counsel appearing on behalf of the Petitioner Society submitted that Section 11 of the Gujarat Agriculture Produce Markets Act (for short, "the Market Act") deals with the constitution of Market Committee. As per the said provision and more particularly, Sub-Section 1(iii) of Section 11, the Petitioner is eligible to have the Members of its Managing Committee contest in the Election. It is submitted that the Petitioner is also holding a valid general licence issued by the APMC. It is, therefore, submitted that the action of Respondent No. 2, of not including the names of Members of its Managing Committee in any of the lists, is illegal and arbitrary.
6.1 Mr Pahwa Learned Counsel for the Petitioner further submitted that the Petitioner Society has been classified as a Cooperative Marketing Society and is also holding a valid general licence issued by the APMC. Therefore, the action of Respondent No. 2-authority of excluding the names of Members of the Managing Committee of the Petitioner Society is without jurisdiction.
6.2 Learned Counsel for the Petitioner had relied upon two decisions of this Court in the case of Kalubhai Ranabhai Akbari v. State of Gujarat reported in 2007 (3) G.L.H. 57 and Shrutbandhu H. Popat v. State of Gujarat and Ors. reported in 2008 (1) G.L.H. 575 and submitted that once the APMC grants licence and the same is produced before the authority, then the authority concerned has no jurisdiction to challenge the veracity of such licence.
6.3 It is, therefore, submitted that the impugned action of Respondent No. 2-authority deserves to be quashed and set aside and appropriate directions deserve to be issued to Respondent No. 2-authority for inclusion of the names of Members of the Managing Committee of Petitioner Society in the voters'' list.
7.0 Mr. N.J. Shah learned AGP appearing on behalf of the Respondent-authority submitted that the Petitioner Society cannot be classified as a "purchase sale society" or a "processing cooperative society" in view of the Circular dated 07.09.1965 issued by the State Government. It is submitted that the Petitioner has not produced any documentary evidence before the authority to show that it was engaged in the activity of purchase and sale of agricultural produce and hence, it does not fall within the criteria of Section 11(1)(iii) of the Act.
7.1 Learned AGP submitted that the final voters'' list has already been published and therefore, this Court may not exercise its jurisdiction under Article 226 of the Constitution of India at this stage. It is submitted that alternative remedy of filing an election petition under Rule 28 of the Market Rules is available to the Petitioner and that the Petitioner could avail the same.
Learned AGP further submitted that the Respondent-authority duly considered the objections raised by the Petitioner and thereafter, passed the impugned order. He, therefore, submitted that the Respondent-authority has rightly excluded their names from the Voters'' List.
Mr. Chirag Patel Learned Counsel appearing on behalf of Respondent No. 3 adopted the submissions advanced by learned AGP. Over and above, he submitted that the authority concerned has rightly excluded the names of Members of the Managing Committee of the Petitioner Society from the Voters'' List since the Petitioner Society does not fall within the criteria of Section 11(1)(iii) of the Act. He, therefore, submitted that the Respondent-authority has rightly excluded the names of Members of the Managing Committee of the Petitioner Society from all the Lists.
Heard Learned Counsel for the respective parties and perused the documents on record. The dispute in the present petition pertains to non-inclusion of the names of Members of the Managing Committee of the Petitioner Society in any of the Voters'' List. The Preliminary Voters'' List came to be published on 23.07.2011, the Provisional Voters'' List on 10.08.2011 and the Final Voters'' List on 18.08.2011. The elections are scheduled on 04.10.2011.
The question regarding jurisdiction of this Court in matters pertaining to elections has been decided by a Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Ltd. v. R.D. Rohit, Authorized Officer and Co-operative Officer (Marketing) reported in 2006 (1) G.C.D. 211 and more particularly, in Paras - 30 to 32 which reads as under;
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 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.
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
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 District Co-Operative Sales and Purchase Union Ltd. and Another Vs. State of Gujarat and Others, 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 Vs. K.S. Rathnam and Others, 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.
In the case of Election Commission of India Through Secretary Vs. Ashok Kumar and Others, 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.
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 Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, 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.
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.
As the above are answers to the Reference, all the petitions are to be listed for referring them back to the concerned Division Benches to pass appropriate orders, in view of the above answers to the reference.
The principle laid down in the aforesaid decision is that the non-inclusion of a person''s name in the Voters'' List cannot be termed as an extra-ordinary circumstance warranting interference by this Court under Article 226 of the Constitution of India and that the issue regarding non-inclusion of names in the Voters'' List can be decided in an Election Petition under Rule 28 of the Market Rules as the Authority under Rule 28 has been conferred with ample powers to look into the same.
Similar principle has been laid down in an unreported decision of a Division Bench of this Court rendered in Special Civil Application No. 10294/2011 and cognate matters dated 09.09.2011.
In another unreported decision of this Court rendered by a Division Bench in Special Civil Application No. 13006 of 2011 dated 09.09.2011, it has been observed as under;
Having considered the rival contentions raised by the learned advocates for the respective parties, averments made in the petition and the documentary evidence produced on record, it transpires that in the present case, the election notification has been declared and the date of filing of nomination has also passed and the election is at an advance stage. Further, it is pertinent to note that the Petitioners have an alternative efficacious remedy available u/s 145(U) of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as ''the Act'').
6.1 So far as the issue regarding holding of election as per Rule 3-A (8) of the Rules is concerned, it is required to be noted that earlier the said issue has been decided by this Court while dealing with Special Civil Application No. 9748 of 2009 and the coordinate bench has rendered a reasoned order and, therefore, the relief sought for in that respect in present petition cannot be granted.
6.2 Here it would be beneficial to reproduce the relevant paragraphs of the decision in the case of Election Commission of India (supra) relied upon by the learned advocate for the Respondent No. 3, which are as under:
Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates, it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over- enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
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(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.
Thus, it is crystal clear that the Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. It is also required to be noted that care has to be taken to see that there is no attempt to utilize the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end.
6.3 Mr. Vaghela has also rightly relied upon the decision in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha (supra), whereby it is held that the preparation of electoral roll is part of election process and if there is any breach of the Rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal.
In a recent judgment rendered by a Division Bench of this Court in the case of Patel Talshabhai Purabhai v. Authorized Officer and Auditor Grade reported in 2011 GLHEL HC 224844, the following observations made in Paras-11 and 12 are relevant;
Going strictly by the rules of precedents, stare decisis and judicial discipline, the legal issue of maintainability of the petitions is squarely covered by clear propositions laid down by Full Bench of this Court in Daheda Group Seva Sahkari Mandli Ltd. (supra). Although the power and discretion vested in the High Court by virtue of Article 226 of the Constitution could not be taken away by any judgment, clear guideline is provided for the exercise thereof specifically in the cases of exclusion or inclusion of names in the voters'' list of an APMC. It is laid down in no uncertain terms by the Full Bench that exclusion or inclusion of names in the voters'' list cannot be termed as extraordinary circumstance warranting interference by this Court under Article 226 of the Constitution and such questions are to be decided in an election petition under Rule 28 of the Rules. It is also categorically laid down that the authorities under Rule 28 have wide powers to cancel, confirm and amend the election and to direct holding of fresh election and hence the remedy under Rule 28 is an efficacious remedy. Therefore, it is practically impossible and not open for this Court to take a view different from the aforesaid propositions of law.
11.1 The Apex Court has, in Gujarat University v. N.U. Rajguru 1988 (1) GLR 308, held that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute, it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right; instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily, the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies.
11.2 The contention of the Petitioners that alternative remedy under Rule 28 is neither appropriate nor expedient on account of the adjudicating authorities being nominees of the Government and not bound by any period of limitation for concluding the proceedings before them has to be stated to be rejected. There cannot be a presumption of bias against any adjudicating authority or quasi-judicial forum only because of the fact that they are appointed by the Government. and the provisions of Rule 28 clearly indicate the sense of urgency underlying the process of enquiry and decision. The various decisions, many of which are referred hereinabove, on the issues related to inclusion or exclusion of names in the voters'' list would clearly control and guide the authorities in deciding election disputes. Even then, if any party were aggrieved by an illegal order after taking recourse to the alternative remedy or by delay defeating the ends of justice, the extraordinary jurisdiction of this Court could be invoked in appropriate cases. On the other hand, if this Court were to sit in appeal over every decision of the authorized/election officer resulting into inclusion or exclusion of names in the preliminary, provisional or final lists of voters, the process and the time-table of election would certainly be affected. It must be noted that the time-table of election programme is virtually fixed by the provisions of Rules 5 to 8 prescribing time-limits for every stage of the process. Rule 8 (2) ordains that the final list shall be prepared at least 30 days before the date fixed for nomination of candidates for the election. Any intervention by the High Court, after hearing the parties and due adjudication, having the effect of altering the final voters'' list would certainly not leave the minimum period of 30 days which must intervene between preparation of final lists and nomination of candidates for the election. Thus, any order resulting into inclusion or exclusion of names in the final voters'' list would necessarily violate the provisions of Rule 8(2). Therefore, it may be inexpedient and improper for this Court to exercise its discretion and power under Article 226 of the Constitution by carving out exceptions on the basis of facts of each case. Besides that, as it happened in most of the cases presently before this Court, the important facts related to eligibility or ineligibility of a person to be in the voters'' list are not undisputed. Therefore, this Court would be required to indulge in the exercise of ascertaining the facts before directing inclusion or exclusion of any name in the voters'' list. Such elaborate adjudication of facts and legal issues springing therefrom would necessarily either impede the process of election or impose an amended final voters'' list at short notice for the candidates or deprive the interested and eligible persons of the opportunity of being a candidate. In cases where principles of natural justice are alleged to have been violated by the authorized officer in making the impugned order, denial of opportunity of being heard as well as the prejudice caused thereby are also matters in controversy and raise questions of disputed facts. As noted at the outset, polling at the elections in question here is scheduled to take place on 18.03.2011 and 30.03.2011 and voting cannot be legally ordered to be postponed till full-fledged adjudication of all the issues arising in the petitions.
In the decision rendered in Patel Talshabhai Purabhai''s case (supra), the Division Bench of this Court has followed the view taken by the Full Bench of this Court in Daheda Group Seva Sahakari Mandli Ltd. case (supra).
At this juncture, it would be relevant to refer to a recent decision of the Apex Court rendered in Civil Appeal No. 5166 of 2003 dated 06.07.2011 in the case of M/s. Gammon India Ltd. v. Commissioner of Customs Mumbai, wherein, it has been held that if a Bench, in identical fact-situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench on earlier occasion, that will be destructive of the institutional integrity itself. It has been further observed that if a Bench wishes to take a view different from the one taken by the earlier Bench, the propriety demands that it should place the matter before the appropriate authority so that the case is referred to a larger Bench, for which provisions exist in the statute. Even otherwise, we concur with the view taken by the Division Bench of this Court in Patel Talshabhai Purabhai''s case (supra) and accordingly, hold that the judgment rendered by the Full Bench of this Court in Daheda Group Seva Sahakari Mandli Ltd.''s. case (supra) shall prevail.
In this case, when the petition was filed, the Final Voters'' List was already published and the election is scheduled to be held on 04.10.2011. The Petitioner is aggrieved by the action of the Respondent-authority of non-inclusion of the names of the Members of its Managing Committee in the Voters'' List and it has not challenged the impugned order on the ground that it is ultra vires and/or without jurisdiction and/or in violation of the principles of natural justice. This Court could have looked into the question of exclusion of names from the Voters'' List only if the names had been included in any of the Lists. The inclusion of name/s, after the finalization of the Voters'' List, as in this case, would be contrary to the provisions of Rule 8 of the Market Rules.
Considering the facts and circumstances of the case and in view of the principle laid down in the Full Bench decision of this Court in Daheda Group Seva Sahakari Mandli Ltd.''s case (supra), we are of the opinion that the appropriate remedy available to the Petitioner-Bank is to file an Election Petition under Rule 28 of the Market Rules. Hence, the petition deserves to be dismissed only on the ground of availability of an alternative remedy.
In the result, the petition is dismissed. Rule is discharged. Parties shall bear their own costs.