Patel Talshabhai Purabhai v. Authorised Officer and Auditor Grade-I Co-operative Societies
2011-03-09
D.H.WAGHELA, K.A.PUJ
body2011
DigiLaw.ai
JUDGMENT : D.H. Waghela, J. These petitions are involving addition in or alteration of the voters' list prepared for elections of Agricultural Produce Market Committee (APMC) at Dhanera and Bhabar; and common legal issues having arisen and the matters having been argued together, they are decided by this common judgment. Election for APMC, Bhabar is to be held on 18.3.2011 and for APMC, Dhanera it is to be held on 30.3.2011, according to the election programme declared earlier. Before addressing the common legal issues, the factual controversies and contentions in several groups of petitions may be summarized as under: 2. As far as APMC, Dhanera is concerned, SCA Nos.2282 to 2301 of 2011 have voiced the grievance that managing committees of the petitioner co-operative societies are excluded from the voters' list of co-operative marketing society constituency by the impugned orders dated 29.01.2011 and 15.02.2011 of the authorized officer which are made after scanning the functioning of the co-operative societies and finding them to be not genuinely engaged in marketing activity, although they held licences for trading agricultural produce in the market area. The authorized officer has, in the impugned proceedings, called for and examined record and accounts of last three years of working of the petitioner co-operative societies. By virtue of the impugned orders, 302 voters of 20 such co-operative societies are alleged to have been illegally excluded from the total constituency consisting of 440 voters. 2.1 In SCA No.2302 of 2011, the grievance is that, by virtue of the impugned order dated 14.2.2011, members of the managing committees of respondent Nos.4 to 17, included in the preliminary list of voters, have been included and retained in the final list of voters, although those respondent societies did not possess till the date of final list the requisite licence issued by APMC, Dhanera. Thus, 182 voters are alleged to have been illegally included in the voters' list. In SCA No.2418 of 2011 and 2879 of 2011, the grievance is that the voters who were appearing in the first list of voters were removed at the time of preparation of final list of voters without any hearing and thus 286 voters were deprived of their right to vote by the impugned order dated 29.1.2011.
In SCA No.2418 of 2011 and 2879 of 2011, the grievance is that the voters who were appearing in the first list of voters were removed at the time of preparation of final list of voters without any hearing and thus 286 voters were deprived of their right to vote by the impugned order dated 29.1.2011. 2.2 Similarly, in SCA No.2583, 2767 and 2769 of 2011, decisions of the authorized officer are alleged to have resulted into illegal inclusion or exclusion of names from the voters' list by the impugned orders. 2.3 In SCA No.2880 of 2011, the grievance of the petitioner is that respondent No.6 to 28 societies were included in the preliminary voters' list on the basis of holding general licence of the market committee and thereafter by the impugned orders of the authorized officer they were included in the agriculturists constituency, which was illegal. And in SCA No.1007 of 2011, the chairman of licence sub committee of APMC, Dhanera himself has made the grievance against the same process by which the cooperative societies holding trading licence were shifted from traders constituency to agriculturists constituency by the impugned orders of Registrar (Appeal) and Deputy Secretary (Appeal), Agricultural and Co-operative Department, while the process of election had commenced. Result of both the petitions would have an impact on 345 voters in the election. 3. In the matters related to APMC, Bhabar, in SCA Nos.850, 851, 852 and 902 of 2011, grievance is made about exclusion from the voters' list of agriculturists' constituency on the ground that the society concerned had not dispensed agricultural credit and in SCA Nos.952, 953, 954, 956 and 2330 of 2011, the challenge is to inclusion in the voters' list of the respondent societies on the ground that more members of the managing committees of the respondent societies than permitted by their bye-laws were nominated or that the society concerned was not actually dispensing agricultural credit. Apart from other contentions, grounds of violation of principles of natural justice and politically motivated or illegal exercise of power are agitated for the petitioners; and the respondents have questioned maintainability of the petitions and defended the impugned orders as bona fide, legal and within the limits of exercise of power by the authorized officer. 4.
Apart from other contentions, grounds of violation of principles of natural justice and politically motivated or illegal exercise of power are agitated for the petitioners; and the respondents have questioned maintainability of the petitions and defended the impugned orders as bona fide, legal and within the limits of exercise of power by the authorized officer. 4. In order to appreciate the rival contentions and the import of binding precedents, it may be convenient and appropriate to quote, as under, the relevant provisions of the Act and the Rules: "Gujarat Agricultural Produce Markets Act, 1963 S.2 Definitions: In this Act, unless the context otherwise requiressca2302/2011 6/42 Judgment (v) "co-operative marketing society" means a society registered or deemed to be registered as such under the Gujarat Cooperative Societies Act, 1961 and engaged in the business of buying or selling of agricultural produce or of processing of agricultural produce and holding a licence; (xiv) "market Committee" means a market Committee established or deemed to be established under this Act; (xxiii) "trader" means any person, who carries on the business of buying or selling of agricultural produce or of processing of agricultural produce for sale and includes a co-operative society, joint family or an association of persons, whether incorporated or not, which carries on such business; S.10 Incorporation of market committee - (1) ... ... ... (2) A market committee shall be deemed to be a local authority within the meaning of clause (26) of section 3 of the Bombay General Clauses Act, 1904 (Bom 1 of 1904).
... ... (2) A market committee shall be deemed to be a local authority within the meaning of clause (26) of section 3 of the Bombay General Clauses Act, 1904 (Bom 1 of 1904). S.11 Constitution of market committee - (1) Every market committee shall consist of the following members, namely:- (i) eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative marketing societies) dispensing agricultural credit in the market area; (ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences; (iii) two representatives of the Co-operative marketing societies situate in the market area and holding general licences, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies: Provided that where the number of co-operative marketing societies so situate does not exceed two, only one representative shall be so elected; (iv) one member to be nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councillors or, as the case may be, members who do not hold any general licence; Provided that .... .... .... (v) two members to be nominated by the State Government : Provided that .... .... .... (2) .... .... .... (3) .... .... .... (4) .... .... .... (5) .... .... .... S.48 Powers of State Government to call for proceeding of market committee and to pass orders thereon. The State Government may at any time call for and examine the proceedings of the Director or of any market committee for the purpose of satisfying itself as to the legality or propriety of any decision or order passed by the Director or the market committee. In any case in which it appears to the State Government that any decision or order or proceedings so called for should be modified, annulled or reversed, the State Government may pass such order thereon as it thinks fit. S.59 Rules. (1) The State Government may, by notification in the Official Garette, make rules, either generally or specially for any market area or market areas for the purposes of carrying out the provisions of this Act.
S.59 Rules. (1) The State Government may, by notification in the Official Garette, make rules, either generally or specially for any market area or market areas for the purposes of carrying out the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for or regulate- (i) the preparation and revision of list of voters for the purpose of any election under section 11, determination of disputes arising in such election and payment of expenditure in connection with or incidental to such election; (ii) to (vi) .... .... .... (3) to (6) ... .... ...." Gujarat Agricultural Produce Markets Rules, 1965 Part III Election of Market Committee R.4 Fixation of date of election .... .... .... R.5 Different lists of voters: For the purposes of section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namelysca2302/2011 9/42 Judgment (1) under clause (i) of sub-section (1) of section 11 of the Act, a list of members of managing committees of Co-operative Societies (other than Co-operative marketing Societies) dispensing agricultural credit in the market area; (2) under clause (ii) of sub-section (1) of section 11 of the Act, a list of traders holding general licenses in the market area; (3) under clause (iii) of sub-section (1) of section 11 of the Act, a list of members of managing committees of Co-operative marketing Societies situated in the market area holding general licenses. R.6 Persons qualified to vote: A person whose name is entered in a list of voters shall be qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list.
R.6 Persons qualified to vote: A person whose name is entered in a list of voters shall be qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list. R.7 Preparation of list of voters for general election: (1) Whenever a general election to market committee is to be held- (i) every Co-operative society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing committee together with the place of residence of each member; (ii) the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or residence of each such trader; and (iii) every Co-operative marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member to the authorized officer before such date as the Director may by order fix in that behalf; Provided that the date to be so fixed shall not be later than sixty days before the date of the general election. (2) The authorized officer shall within seven days from the date fixed under sub-rule (1) cause to be prepared the lists of voters as required by rule 5 on the basis of the information received under sub-rule (1) and, if necessary, after making such inquiry as he may deem fit. (3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
(3) Every list of voters shall show the full name, place of residence and the serial number of each voter. R.8 Provisional and final publication of lists of voters: (1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorized officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or 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, within fourteen days from the date of the publication of the notice, apply to the authorized officer for an amendment of the list of voters. (1-A) After receiving application if any, under sub-rule (1), a revised draft list of voters shall be published by the authorized officer by affixing a copy thereof on the notice board of Agricultural Produce Market committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorized officer for an amendment in the revised draft list of voters. (2) If any application is received under sub-rule (1-A), the authorized officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election.
The final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election. R.28Determination of validity of election: (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers, such person may, within seven days after the date of the declaration of the result of the election, apply in writing:- (a) to the Director, if the election has been conducted by a person authorized by the Director, to perform the function of an Election Officer, and (b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member." (underlines added) 5. In all these petitions, issues are raised on the basis of facts which are not entirely undisputed and the legal issues raised before the authorized officer or before this Court are not wholly covered by a plethora of precedents on several facets of the issues agitated in these petitions. However, most of the issues are not res-integra but different views are adopted in the given factual situations. The main and major issue is about intervention by this Court in the matter of inclusion or exclusion of names from the voters' list after declaration of the election programme and even publication of the final list of voters. The series of judicial pronouncements on various aspects of the controversy need to be revisited for an overview of the journey in chronological order.
The series of judicial pronouncements on various aspects of the controversy need to be revisited for an overview of the journey in chronological order. 5.1 As early as in 1986, in Patan Proper Fal and Shak Bhaji Kharid Vechan Sahkari Mandli Ltd. v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Sahkari Mandli Ltd. [ 1986 GLH 430 ], Division Bench of this Court pronounced as under: "28. .....................In that view of the scheme of the Act, we are of the opinion that the preparation of electoral roll is an integral part of the process of election. If that is so, the question as to whether the roll should be modified at the instance of persons claiming to be voters or at the instance of persons objecting to the inclusion of the names of some persons in the voters' list is a matter relating to election, and having regard to the fact that it is a right conferred under the Act for which a special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finality in the matters pertaining to various stages of election and therefore, having regard to the recognized principle in the matter of public importance that election should be concluded as early as possible according to the time schedule and all controversial matters as well as disputes arising out of the election including the right to vote or stand as a candidate should be postponed till after the elections are over so as to avoid impediment or hindrance in the election process, does not arise (sic). In that view of the matter, therefore, we are of the opinion that this Court should not exercise the jurisdiction under Art 226 of the Constitution by interfering at this stage with the election process.
In that view of the matter, therefore, we are of the opinion that this Court should not exercise the jurisdiction under Art 226 of the Constitution by interfering at this stage with the election process. In the view which we have taken on this first question, it is not necessary to go into the second question of each of these appeals." 5.2 In 1998, learned Single Judge of this Court adopted the following view in Prahladbhai Shivram Patel and Others v. Director of Agriculture Marketing and Rural Finance and Others [ 1998(1) GLH 95 ]: "Now, if the above principles laid down by the Division Bench of this Court are considered, then it would be quite clear that in the first principle, it has been clearly laid down that though the Court should be slow in exercising jurisdiction under Article 226 and 227 of the Constitution, if the impugned order is ultra vires order or is a nullity as being ex facie without jurisdiction, the question of exhausting alternative remedy could hardly arise. The same view is also expressed by the Division Bench of this Court in the case of Mahesana District Co-operative Sales and Purchase Union Ltd. v. State of Gujarat, 1988(2) GLR 1060 ." 5.3 In the same year, Division Bench (Coram: K.G. Balakrishnan, as His Lordship then was, & A.K. Trivedi, JJ.), in Mehsana District Co-op. Purchase and Sales Union Ltd. v. Dadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. And Others [ 1998 (1) GLH 170 ] partly favoured the views taken by learned Single Judge and held that alternative remedy provided by Rule 28 was, in the facts of the cases before the Court, illusory and ambiguous. The authorized officer had illegally deleted the names of the petitioners from the final voters' list without giving an opportunity to explain as to why their names should not be deleted. When no remedy is provided and the impugned act was illegal and void, the Court should not be hesitant to exercise the extraordinary power vested in it under Article 226 of the Constitution. The Court, however, cautioned that, in the matter of election, the Court should exercise the discretion with great caution and circumspection and the election process already initiated should not be altered so lightly to the disadvantage of so many other persons.
The Court, however, cautioned that, in the matter of election, the Court should exercise the discretion with great caution and circumspection and the election process already initiated should not be altered so lightly to the disadvantage of so many other persons. 5.4 In 2004, in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance Gandhinagar and Others [ 2004 (3) GLR 2718 ], Division Bench to which one of us (D.H. Waghela, J.) was a party, took the view that, in view of efficacious remedy provided in Rule 28 and since election process was at a very advance stage, interference with the election process was not warranted. It was opined that entertaining the petitions at this stage would, in view of the procedure involved in hearing of the petitions and the proximity of the voting dates, would have the effect of interrupting, obstructing or protracting election proceedings. The nature of issues arising from the decisions of the election officers on the acceptance or rejection of nomination papers would require enquiry into the questions of facts. Therefore, following the ratio in Election Commission of India v. Ashok Kumar and Others [ AIR 2000 SC 2979 ], the Court opined that judicial remedy was required to be postponed till after completion of the proceeding in election. 5.5 In the year 2005, another Division Bench, in view of sharp conflict in different judgments, opined that the matters needed hearing by a Larger Bench to settle all the disputes once and for all. Order therefor was made on 17.3.2005 in Special Civil Application Nos.2489 to 2496 of 2005. The matters so referred were decided by Full Bench of this Court in Daheda Group Seva Sahkari Mandli Limited v. R.D. Rohit, Authorized Officer & Co.operative Officer (Marketing) [ 2006 (1)GCD 211 (FB)]. After extensive reference to the relevant provisions and the precedents, the Full Bench declared the legal position in the following terms: "30. The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit.
After extensive reference to the relevant provisions and the precedents, the Full Bench declared the legal position in the following terms: "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 under the Act would not entitle the petitioner to contend as a matter of right that he is entitled to invoke the jurisdiction of this court. "31. .... .... .... "31.1. .... .... .... "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 (sic) 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. ..... ..... .... "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.
"32.1. ..... ..... .... "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." (underlines added) 6. After the above declaration of law on the subject, at least in six cases in the year 2007 and 2009, Division Benches of this Court have entertained the petitions for inclusion or exclusion of names in the voters' list and out of those decisions only one contain a reference to the above decision of the Full Bench. 6.1 In Shrutbandhu H. Popat v. State of Gujarat and Others [ 2007 (3) GLR 1942 ], the Court found that resolution of license sub-committee for granting as many as 293 licenses was not only illegal but also a fraud on the election process. The Court found the case to be falling in the category of extraordinary situations wherein writ jurisdiction had to be exercised for the welfare of the constituency of the traders and for strengthening the democracy. The Court also made the following pertinent observations : "12. While examining any challenge to the voters' list, the Election Tribunal will have the jurisdiction to examine only those questions which the election officer had the authority to examine. The next question, therefore, would be whether the election officer has any jurisdiction or authority to go behind the licences granted by the APMC or its licence sub-committee.
While examining any challenge to the voters' list, the Election Tribunal will have the jurisdiction to examine only those questions which the election officer had the authority to examine. The next question, therefore, would be whether the election officer has any jurisdiction or authority to go behind the licences granted by the APMC or its licence sub-committee. An analysis of the scheme of the relevant provisions of the APMC Act and the Rules does indicate that the Election Officer or the Election Tribunal are not vested with any jurisdiction to go behind the general licences for traders issued by the APMC or its authorised sub-committee and that the matters pertaining to grant, renewal, refusal, suspension and cancellation of licence are governed exclusively by the provisions of Section 27 of the Act read with Rule 56. ........................... Hence, if APMC grants licence on the eve of elections, very little time will be available to any person intending to challenge the grant of licence on the ground that the licence has been obtained through a wilful misrepresentation or fraud or that the licensee has been convicted of any offence under the Act or even in case of renewal of licence that the licensee has committed a breach of any terms and conditions or restrictions imposed by the licence........................." (underlines added) After the above observations and reference to the ratio of above Full Bench decision, the Court distinguished the Full Bench decision on facts and taking support of the Supreme Court decision in Pundlik v. State of Maharashtra decided subsequently and reported at 2005 (7) SCC 181 , allowed the petitions so as to set aside the resolution for granting general license to 293 traders and injuncted them from participating in the election to APMC, Kalavad, with other detailed directions regarding the conduct of the election. 6.2 In Ukabhai Jivabhai Kanjaria v. State of Gujarat and Others [ 2007 (2) GLH 242 ], it was contended before the Division Bench that on rejection of three nomination forms, not a single candidate remained in the field and there would be no representation for a particular constituency. The Court, after reference to the Election Commission of India v. Ashok Kumar (supra), adopted the reasoning as under: "10.
The Court, after reference to the Election Commission of India v. Ashok Kumar (supra), adopted the reasoning as under: "10. It is clear from the above decision that judicial intervention will not amount to "calling in question an election" if it sub serves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. It is also held that where the statutory authority has acted in breach of law, without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings." 6.3 Again in Bharatbhai Dhulabhai Patel & Another v. Director and Others [ 2007 (2) GLH 719 ], the Division Bench (to which one of us, K.A. Puj, J. was a party), intervened during the process of election on the basis that general licenses to the respondent cooperative societies were issued after the date of declaration of election. The Court observed: "9. In our judgment dated 16.7.2007 in the matter of elections to APMC, Junagadh, we have indicated the underlying rationale for laying down the principle that the registration of the cooperative society and the license must have been obtained prior to the date of declaration of elections.
The Court observed: "9. In our judgment dated 16.7.2007 in the matter of elections to APMC, Junagadh, we have indicated the underlying rationale for laying down the principle that the registration of the cooperative society and the license must have been obtained prior to the date of declaration of elections. Looking to the provisions of Section 26 of the APMC Act providing for duties of Market Committee, it is obvious that the voters in all the three constituencies must have had some experience of operating within the market area of APMC, either dispensing agricultural credit, trading/marketing and, therefore, registration under the Co-operative Societies Act/license from the APMC must have been obtained before the date of declaration of elections, only then it can be said that by the relevant date (that is the date on which the names are to be communicated by the APMC/cooperative societies to the Authorized Officer under sub-rule (1) of Rule 7) such persons would be having some experience in the concerned area so as to enable them to elect the members of the APMC for the purpose of discharging duties referred to in Section 26 of the Act." 6.4 In Rajendra Dalichand Koticha and Others v. State of Gujarat and Others [ 2007 (2) GLR 1642 ], the Division Bench was satisfied, in the facts and circumstances of the case, that intervention of the Court was necessary for the welfare of the constituency and impugned decision of the election officer rejecting nomination forms was set aside. The election officer was directed to publish revised final list of candidates including the petitioners for the constituency of traders holding general licences. The polling was, however, directed to be held as scheduled. 6.5 In Kalubhai Ranabhai Akabari v. State of Gujarat [ 2007 (3) GLH 57 ], the election to APMC, Junagadh, was announced on 5.4.2007 and scheduled date of polling was 17.7.2007. In the judgment declared on 16.7.2007, the Division Bench to which one of us (K.A. Puj, J.) was a party, entertained the controversy regarding eligibility of members of the Managing Committee of three Cooperative Societies to vote at an election. The Court concluded as under: "35.
In the judgment declared on 16.7.2007, the Division Bench to which one of us (K.A. Puj, J.) was a party, entertained the controversy regarding eligibility of members of the Managing Committee of three Cooperative Societies to vote at an election. The Court concluded as under: "35. To sum up then, our conclusions are as under :- I. "The relevant date" for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in sub-rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date - (i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit. (ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader. (iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing. II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates. III. To be eligible for inclusion in the list of voters for elections to APMC, - (i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections). (ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections. (iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections. IV.
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections. (iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections. IV. Challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965. V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963. VI. The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions." 6.6 In The Godhra Taluka Sahkari Kharid Vechan Sangh Ltd. And Another v. State of Gujarat and Others [ 2009 (3) GLH 380 ] while the election programme was already declared on 24.7.2009, the Court took notice of the fact that applications of the petitioners for renewal of their licenses were made on 13.2.2009 and taken up for consideration by the APMC on 11.4.2009, long prior to the declaration of the election programme. While the APMC had rejected the application, by the appellate order, the Director had directed the APMC to grant renewal of traders license for the years 2008-09 and 2009-10. Therefore, the facts of that case were distinguished from the facts in Shrutbandhu H. Popat's case (supra) and the petition was allowed in terms of the interim order dated 13.08.2009 directing inclusion of the petitioner's name in the provisional voters list to be published on 16.08.2009.
Therefore, the facts of that case were distinguished from the facts in Shrutbandhu H. Popat's case (supra) and the petition was allowed in terms of the interim order dated 13.08.2009 directing inclusion of the petitioner's name in the provisional voters list to be published on 16.08.2009. 6.7 In Patel Chandrakant Thakorbhai v. State of Gujarat and Others [ 2009 (3) GLH 343 ], again the Court allowed the petition and quashed the order impugned therein insofar as it confirmed inclusion of 100 members who were granted fresh licenses on 15.6.2009 after Director of Agricultural Marketing and Rural Finance made order on 25.5.2009 fixing the election programme. The relief was granted in the context of the facts that preliminary list of voters was published on 12.6.2009, while 139 persons were granted traders license at the meeting of the APMC held on 15.6.2009. 6.8 All the above decisions mentioned in this paragraph 6.1 to 6.7 were rendered by the Division Benches of this Court headed by Hon'ble Justice M.S. Shah (as His Lordship then was) and dictated by His Lordship, mainly on the basis of observations of the Apex Court in Election Commission of India v. Ashok Kumar [ (2000) 8 SCC 216 ] and in Pundlik v. State of Maharashtra [ (2005) 7 SCC 181 ]. Earlier, sitting as a learned single Judge of this Court, Hon'ble Mr.Justice M.S.Shah (as His Lordship then was) held in Chaudhari Rameshbhai Dalsangbhai v. Director, Agricultural Market & Rural Finance [ 1996 (2) GLR 165 ] that: "17. .......Moreover, in the case of Mehsana District Cooperative S & P Union (supra), the Division Bench has already held in para 7 of the judgment that the scheme of the Representation of the Peoples Act, 1950 and the Representation of the Peoples Act, 1951 is entirely different from the election scheme under the A.P.M.C. Act and Rules and, therefore, the decisions in respect of the electoral rolls under the Representation of the Peoples Act for elections to Parliament and Legislative Assemblies cannot be applied to the election disputes arising under the A.P.M.C. Act and Rules." "18. ........The provisions of Rule 8 also specifically empower the election officer to receive and entertain objections against the inclusion in or exclusion from the lists of voters. It is open to the petitioners to raise such contention before the Election Tribunal after the election is held.
........The provisions of Rule 8 also specifically empower the election officer to receive and entertain objections against the inclusion in or exclusion from the lists of voters. It is open to the petitioners to raise such contention before the Election Tribunal after the election is held. Similarly, the questions as to who can be said to be a trader or as to what extent a particular co-operative society should dispense agricultural credit to make the members of its managing committee eligible for inclusion in the list of voters are all eminently fit to be examined by the Election Tribunal under Rule 28. "30. It is true that as far as the merits of the decision are concerned, the decision of the election officer at each stage of the election process is provisionally final, that is to say, it is final until it is upset by the Election Tribunal after the election is over. However, as far as the finality of the time-schedule of each stage of the election programme is concerned, there is nothing provisional about it. It is absolutely final. ......... "31. In short, the principle is clear that the final finality of the time-schedule of each stage of election programme is so important that the Courts have always enforced the said principle rigorously and it is in recognition of this principle that while the Courts have consistently refused to arrest the election programme at any stage, at the same time, whenever this Court has intervened under Article 226 on the ground that the decision of the election officer is found to be ex facie illegal or without jurisdiction, the Court has always taken care to see that the relief is granted without arresting the election process and well in time. ........" 7. Against the above backdrop of facts and dynamic legal dicta, it was argued for the petitioners that without judicial review and intervention, the impugned orders of authorized officer and resultant final voters' lists were likely to vitiate the whole election. It was submitted that the authorized officers concerned and even the Director have to tamper their exercise of powers according to the dictates of the party in power. Therefore, following the precedents enumerated in paragraph 6, the Court must set aside such impugned orders as are ex facie arbitrary or illegal.
It was submitted that the authorized officers concerned and even the Director have to tamper their exercise of powers according to the dictates of the party in power. Therefore, following the precedents enumerated in paragraph 6, the Court must set aside such impugned orders as are ex facie arbitrary or illegal. It was also submitted that none of the judgments mentioned hereinabove have completely ousted the jurisdiction of the High Court and these were exceptional cases in which the general rule of not interfering in the process of election ought to be circumvented. It was submitted by learned senior advocate Mr.Mihir Joshi that Full Bench decision of this Court in Daheda Group Seva Sahkari Mandli Ltd. (supra) clearly saved from its sweep the cases indicating extraordinary circumstances where the impugned order is ultra vires or nullity and/or ex facie without jurisdiction. Therefore, that decision could not be construed as a complete bar against interference in all cases of exclusion or inclusion of names in the voters' list, according to the submission. 8. Relying upon Collector of Central Excise v. Alnoori Tobacco Products [ (2004) 6 SCC 186 ], it was submitted that the judgments cannot be treated as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. It must be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 8.1 A judgment of Division Bench of Bombay High Court in Karbhari Maruti Agawan v. State of Maharashtra [AIR 1994 Bombay 304] was relied upon for the following observations made therein: "12. A valid list of voters is the basis of a valid election.
Disposal of cases by blindly placing reliance on a decision is not proper. 8.1 A judgment of Division Bench of Bombay High Court in Karbhari Maruti Agawan v. State of Maharashtra [AIR 1994 Bombay 304] was relied upon for the following observations made therein: "12. A valid list of voters is the basis of a valid election. Though a challenge to the voters' list many times involve questions of facts, if sufficient material is placed before the High Court prima facie establishing that qualified voters have been excluded and unqualified voters have been included in the voters' list and when the machinery as provided by the Act is available for the enquiry and if such enquiry can be ordered to be completed within shortest possible time so that the elections can take place on or about the scheduled date, this Court would be justified in entertaining challenge to the voters' list. "13. Sugar factories and other large co-operative societies have become new centres of political and social power. There is a growing tendency to cling to the power by whatever means. To exclude the qualified voters whose loyalty to ruling group is doubtful and to include on the eve of elections favourable voters whose qualifications cannot be examined by the rival group are some of the methods which are often adopted. If this Court orders the authorities under the Maharashtra Co-operative Societies Act to examine the list of voters and enquire the objections, that would be a proper exercise of the jurisdiction of this Court. It is a fact which can judicially be acknowledged, that elections of these societies involve a large expenditure. If these objections are set right to the possible extent before the commencement of the election, this can hardly be objected to.
It is a fact which can judicially be acknowledged, that elections of these societies involve a large expenditure. If these objections are set right to the possible extent before the commencement of the election, this can hardly be objected to. of course, care will have to be taken that the due date of the elections should not as far as possible be disturned and such an enquiry should be ordered expeditiously without unduly delaying the take over of the newly elected valid body." 8.2 Relying upon Constitution Bench decision of the Supreme Court in Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer [ AIR 1965 SC 195 ], it was submitted that even the Apex Court found it impossible to lay down an unqualified rule that leave should not be granted if the party had not moved for leave under the Letters Patent and it cannot be so granted; nor is it possible to lay down an inflexible rule that if in such a case leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on the Court under Art. 136, it is not possible and indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of the Court under Art 136 should be exercised or not and if yes, on what terms and conditions, is a matter which the Court has to decide on the facts of each case. 8.3 Relying on earlier Constitution Bench decision in A.V. Venkateswaran v. Ramchandra Sobhraj Wadhwani [ AIR 1961 SC 1506 ], it was submitted that even after broad lines of the general principles on which the Court should act were clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with urgency in every case which comes up before the Court. 8.4 Recent decision of the Apex Court in Safiya Bee v. Mohd.
8.4 Recent decision of the Apex Court in Safiya Bee v. Mohd. Vajahath Hussain [ (2011) 2 SCC 94 ] was relied upon for the proposition that judicial discipline and practice required reference to a larger Bench if the Court did not agree with the opinion of a co-ordinate Bench of equal strength. 8.5 Following observations of Division Bench of this Court in Bhaichandbhai Maganlal Shah v. State of Gujarat [AIR 1967 Gujarat 105] were emphasized: "4. ......Now it is undoubtedly true that when an alternative and equally efficacious remedy is open to a petitioner, he should ordinarily pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ, but this rule requiring exhaustion of the statutory remedy is a rule of policy, convenience and discretion rather than a rule of law and does not bar the jurisdiction of the high Court to grant relief to the petitioner in the exercise of its extraordinary jurisdiction under Article 226 where there are good grounds for doing so. The rule is not an inexorable rule which must be applied regardless of the facts and circumstances of each case. There may be cases where the Court may think it fit and proper to intervene in the exercise of its extraordinary power under Article 226 even where it finds that the petitioner had other remedies available to him, but he did not pursue the same. Each case must ultimately depend on its peculiar facts and circumstances and the exercise of the discretion must be governed not by any hard and fast rule or any straight-jacket formula but by the facts and circumstances of the case. ....." It was further submitted for the petitioners that the alternative remedy provided in Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 (for short, "the Rules") was neither an adequate nor an efficacious remedy insofar as the adjudicating authorities were again appointees of the State Government and such authorities may not intervene if the elections were held to be not materially affected by the alleged irregularities in the list of voters. That alternative remedy was also assailed as inexpedient inasmuch as the Director or the State Government, as the case may be, is not legally bound to decide the application of the aggrieved person within a specified time-limit. Even the enquiry envisaged in Rule 28 is of a summary nature.
That alternative remedy was also assailed as inexpedient inasmuch as the Director or the State Government, as the case may be, is not legally bound to decide the application of the aggrieved person within a specified time-limit. Even the enquiry envisaged in Rule 28 is of a summary nature. It was, on that basis, submitted that the petitioners cannot be denied relief on the ground of availability of alternative remedy. 9. Learned Government Pleader, Mr. P.K. Jani, appearing with Assistant Government Pleader Ms. Monali Bhatt for the State Government and authorities under it, submitted that, as a general rule, in all election matters, Courts have taken the view that extraordinary powers of the higher courts should not be exercised in the midst of ongoing process of election and recourse to the remedies must be postponed till the process is concluded. He submitted that Full Bench of this Court has, once and for all, settled the issue in Daheda Group Seva Sahakari Mandli Ltd. (supra) and smaller Benches of this Court should not carve out exceptions by referring to one or the other fact of an individual case. He submitted that the judgments mentioned hereinabove in paragraph 6 were mostly rendered without even reference to the earlier Full Bench decision and could not overrule or dilute the legal propositions clearly put in place by the Full Bench. He submitted that observations of the Apex Court in Pundlik v. State of Maharashtra [ (2005) 7 SCC 181 ] must be read in the context of its facts. The Apex Court has opined that if the order made by respondent No.2 therein were upheld, the provisions of sub-rule (2) of Rule 5 of Maharashtra Specified Co-operative Societies (Elections to Committees) Rules, 1971 would become nugatory and otiose. The question in that case was only about change of name in the voters' list and did not relate to substantive inclusion or exclusion of name in the voters' list. 9.1 Thus, any intervention by this Court at this stage was resisted on the basis of the aforesaid decision of Full Bench, availability of alternative remedy and interruption of the process of elections which were underway. 10.
9.1 Thus, any intervention by this Court at this stage was resisted on the basis of the aforesaid decision of Full Bench, availability of alternative remedy and interruption of the process of elections which were underway. 10. Before embarking upon weighing rival contentions, it is necessary to keep in view and refer to the following pertinent legal dicta: (a) Constitution Bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka [ (2002) 4 SCC 578 ] held: "28. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained is that these decisions, though two- or three-Judge Bench decisions, run counter to that extent to the dictum of the Constitution Bench in A.R. Antulay case and, therefore, cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well-settled principle of precedents which has crystallized into a rule of law is that a bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict therefrom. ..... 29. .......In conclusion we hold: (1) .... .... .... (2) ... .... .... (3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made." (b) In the matter of challenge to election of Bar Council of Delhi, three-Judge Bench of the Apex Court in Bar Council of Delhi and others v. Surjeet Singh [ (1980) 4 SCC 211 ], observed: "18. .........At page 1704, column 1, Krishna Iyer J., speaking for the Court said:- "One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election.
.........At page 1704, column 1, Krishna Iyer J., speaking for the Court said:- "One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms." But he added :- (SCC 496, para 3.): "While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition." Finally the view expressed in K.K. Shrivastava's case is :- "There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise." We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at all".
In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at all". (underlines added) (c) In a recent decision in Official Liquidator v. Dayanand and others [ (2008) 10 SCC 1 ], the Apex Court has made following pertinent observations: "84. In State of Bihar v. Kalika Kuer [ (2003) 5 SCC 448 ], the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench. "90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed. "91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals.
Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. "92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in UP State Electricity Board v. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial for as nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench." (d) A Division Bench of this Court (Coram: G.S. Singhvi, J. (as His Lordship then was) and P.B. Majmudar, J.) in Thakore Shanabhai Gedalbhai v. State Election Commission [ 2005 (3) GLH 686 ], has held, in the context of Article 243-0 of the Constitution: "31. On the basis of above discussion, we hold that : (I) The bar contained in Article 243-O of the Constitution against the court's interference in the electoral matters is absolute and a petition filed under Article 226 of the Constitution questioning the election to a Panchayat cannot be entertained except after determination of the dispute in an Election Petition filed in accordance with the provisions of the law enacted by the State Legislature.
(II) A petition filed under Article 226 of the Constitution challenging the illegal or improper rejection or acceptance of nomination paper for an election to the Panchayat cannot be entertained by invoking conclusion No.3 of paragraph 32 of Supreme Court's judgment in Ashok Kumar's case (supra) because any direction by the High Court in such matters would impede the election process and delay finalization of the election. (III) A petition filed under Article 226 of the Constitution involving challenge to the orders passed or action taken after the commencement of election process cannot be entertained except where direction is sought for expediting the process of election. (IV) An illegal or improper rejection of nomination for election to the Panchayat can be challenged by filing an Election Petition under Section 31 of the Panchayats Act. 10.1 The APMCs having become socially, economically and politically important units of local authorities and due to intense political rivalries raging therein, the elections thereof have become rich sources of litigation. The magnitude of the problem is indirectly indicated by this Court in Kalubhai Ranabhai Akabari (supra) in the following terms: "26. We have been finding that in spite of the aforesaid observations made by this Court time and again, a number of petitions have been coming up wherein challenge is made to the grant of general licenses to traders or grant of registration to co-operative societies even after commencement of the election process upon declaration of the date of election by the Director of Agricultural Marketing & Rural Finance, Gujarat State. There are 182 Agricultural Produce Market Committees in the State and each Market Committee has about a hundred voters or more in each category. As far as the co-operative societies falling under clause (i) and clause (iii) are concerned, it is not that one co-operative society gets one vote, but each member of its managing committee gets an individual vote meaning thereby, 11 to 15 members of the managing committee of one co-operative society get included in the list of voters. In the matter of elections to APMC, Junagadh itself we have found that controversies have been raised about the eligibility or otherwise of members of the managing committee of as many as eight co-operative societies." 11.
In the matter of elections to APMC, Junagadh itself we have found that controversies have been raised about the eligibility or otherwise of members of the managing committee of as many as eight co-operative societies." 11. 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 Art.226 of the Constitution bypassing 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.
It is not permissible to invoke the jurisdiction of the High Court under Art.226 of the Constitution bypassing 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.
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. 12. In view of the above analysis of factual and legal aspects of the disputes related to the election of APMC, it would be appropriate and in the interest of justice that the Court follows the general rule of non-interference during the course of election, as far as inclusion or exclusion of names in the voters' lists of APMCs are concerned.
In view of the above analysis of factual and legal aspects of the disputes related to the election of APMC, it would be appropriate and in the interest of justice that the Court follows the general rule of non-interference during the course of election, as far as inclusion or exclusion of names in the voters' lists of APMCs are concerned. Therefore, all the petitions along with the civil application are dismissed on the ground of availability of efficacious alternative remedy and inexpediency of interference by this Court in the exercise of its extraordinary writ jurisdiction; with the clarification that disposal of the petitions being not on merits of the factual and other legal contentions, the petitioners' recourse to alternative remedy shall not be affected. In the facts and circumstances of the cases, there is no order as to costs. Order accordingly.