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2015 DIGILAW 698 (GUJ)

Patel Narendrakumar Madhavlal v. State of Gujarat

2015-07-14

JAYANT PATEL, RAJESH H.SHUKLA

body2015
JUDGMENT : Jayant Patel, J. As in all the petitions, common questions arise for consideration, they are being considered simultaneously. 2. The petitioners by these petitions are seeking appropriate writ to quash and set aside the order dated 05.06.2015 passed by the respondent no.4, whereby the objections preferred by the petitioners are rejected and the names of concerned respondent no.5 society through the members of the managing committee are maintained in the voters list at the ensuing election of Agriculture Produce Market Committee, Prantij (hereinafter referred to as the "Market Committee") 3. We have heard Mr. Dipen Desai, learned counsel for the petitioners, Mr. Patel, learned AGP for the State and its officers and Mr.Ashish Desai, learned counsel for the concerned respondent No.5 Society for final disposal of the matter. 4. We may record that the original file from the office of the Agricultural Marketing and Rural Finance was called for and we have considered the original file. 5. It appears that the following facts are undisputed (1) On 01.04.2015, the proposal for election was forwarded by the Deputy Director and the District Registrar for election of the Market Committee. (2) The order of the Director fixing different stages of the election was prepared on 18.04.2015. (3) The licenses are granted to the concerned respondent no.5 society by the Market Committee on 21.04.2015. (4) The formal order is signed by the Director under Rule 4 for fixing different stages of the election and for appointment of the Election Officer on 24.04.2015 though the original file shows that the order was prepared on 18.04.2015. (5) The publication as per the stages fixed by the Director of Election has began from 05.05.2015. 6. The consideration of the aforesaid facts on record clearly show that the eve of the election had began from 01.04.2015 and the licenses are granted by the Market Committee after the eve of the election, i.e., on 21.04.2015. The additional aspect is that after beginning of the eve of the election on 01.04.2015, when the order of the Director was already prepared for fixing different stages of the election, on 18.04.2015, the licenses were granted. Thereafter, the Director has signed the order only on 24.04.2015. The additional aspect is that after beginning of the eve of the election on 01.04.2015, when the order of the Director was already prepared for fixing different stages of the election, on 18.04.2015, the licenses were granted. Thereafter, the Director has signed the order only on 24.04.2015. Under these circumstances, it is clear that the licenses are granted by the Market committee after the eve of the election and the eligibility is also conferred upon the concerned respondent society for inclusion in the voters list of the marketing constituency at the ensuing election of the Market Committee after the eve of the election had already started. 7. We may also record that had it been a case of one or two voters in a particular constituency which may not materially affect the election, it might stand on different footing and different consideration. But, in the present case, the total number of voters excluding the office bearers of the society in question were 227 and by virtue of the license so granted and the consequential inclusion in the voters list about 63 voters shall stand added in the voters list which would roughly be ?rd of the total voters list in the cooperative marketing constituency and hence, in our view, it would substantially tinker with the sanctity of the election and fairness to be observed at the election. 8. If the aforesaid facts are considered, in our view, the petitions would stand covered by the decision of this Court in the case of Chandrakant Manibhai Patel v. State of Gujarat & Ors reported at 2013(3) GLH 778 , wherein this Court had examined the question of propriety to be observed by the office bearers of the Market Committee after the eve of the election. This Court observed from paras 12 to 27 as under: "12. Before we examine the contention, we may refer to certain legal position. This Court, in the case of Dolatbhai Prabhubhai Dumaniya v. Director, Agriculture Marketing and Rural Finance, decided on 13.3.2013, reported in 2013 (0) GLHELHC, 229249, had an occasion to consider the maintenance of sanctity of the election and the maintenance of the principles for free and fair election. It was observed by the Court at paragraphs 13 to 17 as under: 13. It was observed by the Court at paragraphs 13 to 17 as under: 13. The aforesaid shows that as per the above referred conclusion of the Division Bench of this Court in the case of Kalubhai Ranabhai Akabari (supra), to be eligible for inclusion of the name in the voters' list for elections to Agricultural Produce Market Committees, if a society, it should have obtained the registration on the date of declaration of the election. If a person holding general licence for traders, he must have licence on the date of declaration of the election and if a cooperative marketing society, the society should have obtained registration and should have obtained general licence of the market committee on the date of declaration of the election. 14. Therefore, we will have to examine as to which will be the date to be treated as the declaration of the election and incidentally the question also will have to be examined about the sanctity to be maintained of the election so as to uphold the democratic principles in a free and fair manner. 15. Learned counsel appearing for the petitioners did contend that once a declaration is made by the Director by fixation of various dates of election and he has passed an order under Rule 4 of the Rules for such purpose, such will be the date to be termed as the declaration of the elections. Whereas the learned counsel appearing for the respondents contended that the correct date will be the date for beginning of various stages under Rule 10(1), which in the present case is 21.01.2013 and it cannot be said to have commenced from 09.01.2013 when the Director exercised powers under Rule 4 for fixation of various stages of the election. 16. As observed in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. (supra), the process of election can be said to have commenced from the date on which the Director has exercised powers under Rule 4 of the Rules and all stages of elections are so conjoint with the manner and mode of holding of the election, it is not possible for us to find that the process of election cannot be said to have commenced after exercise of powers under Rule 4 of the Rules. There are three reasons for which we are inclined to take the aforesaid view. There are three reasons for which we are inclined to take the aforesaid view. The first is that Part III of the Rules under the Head Election of Market Committee begins with Rule 4 providing for the power with Director to pass the order in writing for fixation of the dates of the election and for publication of such order passed by him by affixing the copy in market committee as well as at the conspicuous place in the principal market yard. Therefore, it appears that the intention of the legislature to begin with the process of commencement of election is from the stage of Rule 4. The second reason is that all stages, including that of Rules 7 and 10, would be only after the power is exercised under Rule 4 by the Director. Therefore, in absence of any exercise of powers under Rule 4, it cannot be said that the process of election has commenced or that the subsequent stages of the elections, including that of Rules 7 and 10 would accrue. The third reason is that when the Court is to interpret any provisions of statute, it would make a purposive interpretation so as to maintain the sanctity of election. If the interpretation is made that the process of election has not commenced after exercise of powers by the Director under Rule 4, such would leave room for a large number of manipulations to be made at the ensuing election of any market committee. After the declaration of the election programme by exercise of powers by the Director under Rule 4, one can easily tinker with the sanctity of election. e.g. In the case of the Agriculturists' Constituency where the cooperative societies dispensing agricultural credit and their representatives are the voters, new societies can be formed so as to create an artificial majority or minority as may be convenient to the ruling party. If certain societies are created and the show is made as that of functioning by such societies by dispensing agricultural credit, those societies would get themselves included in the voters' list and consequently, a situation may be created which would materially affect the representation to be made from such voters' constituency of agriculturists. If certain societies are created and the show is made as that of functioning by such societies by dispensing agricultural credit, those societies would get themselves included in the voters' list and consequently, a situation may be created which would materially affect the representation to be made from such voters' constituency of agriculturists. Similarly, even in the case of Traders' Constituency, if after publication of the election programme by exercise of powers by the Director under Rule 4, new licences may be issued by the members of the market committee, who are in power so as to create an artificial majority at the ensuing election and a situation may be created which would materially affect the representation to be made from such voters' constituency of Traders. In the same manner, in the case of cooperative societies' constituency, new societies may be formed and or the market committee may issue licences so as to make eligible such societies to be included in the voters' list even after the election is declared. 17. The aforesaid are only some of the examples of tinkering with the sanctity of election, but there could be number of instances of such types. It is hardly required to be stated that once the election programme is published, the sanctity of the election process must be maintained by all concerned. Any attempt to tinker with the sanctity of the election would adversely affect the maintenance of the democratic principles to be observed in a free and fair manner for holding of the election. Once an election programme is published by fixing various stages of election, it would be known to all concerned that the process of election has already commenced and they should not enter into any act which may result into adversely affecting the process of the election and the smooth course of holding election by maintenance of the democratic principles. 13. The aforesaid shows that when any election is being held, it should be in a free and fair manner and none should be allowed to tinker with the sanctity of election in a manner, which may either result into artificial majority or otherwise, consequently, affecting the democratic principles to be observed in a free and fair manner for holding of election. Be it noted that it is not a matter of holding election of any private body or a self-created institution by way of an organisation of persons or otherwise, but is a matter in the present case for holding of election of a market committee, which is a statutory body as per the provisions of the Act and further as per Section 10(2) of the Act, the Market Committee is deemed to be a local authority within the meaning of Bombay General Clauses Act. Such would mean that the Market Committee is not only a statutory authority, but is given status as that of the local authority and its functioning can be equated with a local self Government for the purpose of regulating the sales and purchase of the agricultural produce in a market area, subject to the power and control of the Act read with the Rules. It is true that in the case of Dolatbhai Prabhubhai Dumaniya v. Director, Agriculture Marketing and Rural Finance (supra), this Court had taken the view that if the eligibility is acquired by any voter after the exercise of the power by the Director under Rule 4, the authorised officer would have no jurisdiction or competence to include the names in the voters list and, therefore, the action was found to be without jurisdiction and competence and consequently, such action was struck down and the voters, who were so included, were prohibited from participating at the election. 14. But the aspect further to be examined in the present matter would be the question of propriety to be observed by the Market Committee for exercise of power for grant of licence on the eve of the election. It may be recorded that it is not that the action of the market committee cannot be tested on the question of propriety, but in our view, all exercise of statutory power can be tested by examining the aspect of propriety. At this stage, we may refer to Section 48 of the Act, which permits the State Government to exercise the revisional power upon any decision or order passed by the Director or the Market Committee. Section 48 of the Act reads as under: 48. Powers of State Government to call for proceeding of market committee and to pass orders thereon. At this stage, we may refer to Section 48 of the Act, which permits the State Government to exercise the revisional power upon any decision or order passed by the Director or the Market Committee. Section 48 of the Act reads as under: 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. 15. The aforesaid provision shows that when the State Government exercise the power under Section 48, the decision or the order passed by the Director or the Market Committee can be tested on the ground of legality or on the ground of propriety. Such would mean that the intension of Legislature is to ensure that the principles of propriety for exercise of power or for taking decision are required to be observed by the Market Committee or the Director. Such exercise of power may include the grant of licences, and also at the time when the election is just to commence or on the eve of the election or the propriety to be observed for maintenance of the sanctity of the election or for keeping the election held in a free and fair manner. 16. The Apex Court had an occasion to consider and interpret the words legality and propriety while examining the exercise of power by the Labour Court, in the case of Babulal Nagar and Ors. v. Shree Synthetics Limited and Ors., reported in 1984 (suppl.) SCC, 128, and it was observed at paragraph 14 as under: 14. Having noticed the relevant provisions, it is now necessary to ascertain with precision the jurisdiction of the Labour Court under Section 61. v. Shree Synthetics Limited and Ors., reported in 1984 (suppl.) SCC, 128, and it was observed at paragraph 14 as under: 14. Having noticed the relevant provisions, it is now necessary to ascertain with precision the jurisdiction of the Labour Court under Section 61. The scheme of the standing orders applicable to the respondent Company would show that a penalty of dismissal or removal from service can be imposed after holding a domestic enquiry According to the relevant provisions in the standing orders, such an order when made would be open to challenge by a substantive application under Section 66 (1) and in such an application if and when made, the Labour Court will have jurisdiction to decide the legality and the propriety of the order. When jurisdiction is conferred union the Labour Court, not only to examine the legality of the order as also the propriety of the order, the Labour Court can in exercise of the jurisdiction examine the propriety or impropriety of the order. The expression 'propriety' is variously understood, meaning assigned to it being 'justice' in Legal Thesaurus by Burton at page 902. Amongst various shades of meaning assigned to the expression, the oxford English Dictionary, Vol. VIII page 1484 sets out 'fitness; appropriateness; aptitude; suitability; appropriateness the circumstances or conditions, conformity with requirement; rule or principle, rightness, correctness, justness etc.' If therefore, the justice or the justness in relation to a legal proceeding where evidence is led is questioned and the authority is conferred with jurisdiction to examine the propriety of the order or decision that authority will have the same jurisdiction as the original authority to come to a different conclusion on the same set of facts. If any other view is taken the expression 'propriety' would lose all significance. The expression 'legality and propriety' has been used in various statutes where appellate or revision jurisdiction is conferred upon a superior authority. In Raman & Raman Ltd. v. The State of Madras & Anr. While examining the ambit of the jurisdiction of the State Government under Section 64A of the Motor Vehicles Act, 1939 as amended by the Motor Vehicles (Madras) Amendment Act, 1948 to interfere with the orders of subordinate Regional Transport Authority on the ground of propriety, this Court observed as under: "The word "propriety" has nowhere been defined in the Act and is capable of a variety of meanings. In the 782 Oxford English Dictionary (Vol. VIII), it has been stated to mean "fitness; appropriateness; aptitude; suitability; appropriateness to the circumstances or conditions; conformity with requirement, rule or principle; rightness, correctness, justness, accuracy". If the State Government was of the opinion that respondent No. 1 had better facilities for operation than the appellant and their service to the public would be more beneficial, It could not be said that the State Government was in error in thinking that the order of the Board confirming the order of the Regional Transport Authority was improper." In Moti Ram v. Suraj Bhan & Ors. while examining the scope and ambit of jurisdiction of the High Court under Section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949, this Court observed as under: "Under Section 15 (5) the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the propriety or legality of the finding made by the authorities in the present case about the requirement of the landlord under section 13 (3) (a) (iii). After referring to these two decisions, in Ching Chong Sine v. Puttay Gowder, Alagiriswami, J. held that tho court exercising revisional jurisdiction to decide the legality or propriety of an order has the power to come to a conclusion different from that arrived by the subordinate court on the same set of circumstances. In Ahmedabad Sarangpur Mills Company Ltd v. Industrial Court, Ahmedabad and Anr., a Division Bench of the Gujarat High Court held that the expression 'legality and propriety' in Section 78(1) of the Bombay Industrial Relations Act does not limit the jurisdiction of the labour court to a revisional jurisdiction. And that any order made by the employer under the standing order is subject to the jurisdiction conferred on the labour court under Section 78, which can scrutinise the legality and propriety of the order. This jurisdiction was described by the court as original jurisdiction meaning thereby that the labour 783 court can come to an entirely different conclusion on the same set of facts. This view was followed by another Division Bench of the Gujarat High Court in Manekchown and Ahmedabad Manufacturing Company Ltd v. Industrial Court, and another. This jurisdiction was described by the court as original jurisdiction meaning thereby that the labour 783 court can come to an entirely different conclusion on the same set of facts. This view was followed by another Division Bench of the Gujarat High Court in Manekchown and Ahmedabad Manufacturing Company Ltd v. Industrial Court, and another. In Vithoba Maruti Chavan v. S. Taki Bilgrami, Member Industrial Court, Bombay and Anr., a Division Bench of the Bombay High Court held that the power to decide 'propriety' and legality of the order made under standing order does not confer a mere revisional jurisdiction but a wider jurisdiction which will enable the Labour Court to set aside the order of the employer depending upon the facts and circumstances of the case. 17. The aforesaid shows that when the propriety is to be examined, on the same facts, a different conclusion can be recorded. Further, the word propriety means fitness, appropriateness, aptitude, suitability, appropriateness to the circumstance or condition. Such can also be equated with rightness, correctness, justness or accuracy of decision. The example given is that if the State Government was of the opinion that the respondent no.2 had better facilities for operation than the appellant and their services to the public would be more beneficial, it could not be said that the State Government was in error in thinking that the order of the Board confirming the order of the Regional Transport Authority was improper. There cannot be any straight-jacket formula or manner of exercise of power, but what is improper would directly tinker with the maintenance of the propriety. When any person is clothed with the statutory power or any body is clothed with statutory power, it is obligatory on the part of such authority to ensure that the basic principles of fairness are required to be observed. In a matter of holding of election, the basic principles of maintenance of the sanctity of the election and holding of the election in a free and fair atmosphere is required to be observed. At this stage, we may refer to the recent decision of the Apex Court in the case of State of Gujarat and Anr. v. Hon'ble Mr. Justice R.A. Mehta (Retd.) and Ors., reported in 2013(3) GLH, 89, wherein at paragraph 34, it was observed by the Apex Court while examining the question of bias a under: 34. At this stage, we may refer to the recent decision of the Apex Court in the case of State of Gujarat and Anr. v. Hon'ble Mr. Justice R.A. Mehta (Retd.) and Ors., reported in 2013(3) GLH, 89, wherein at paragraph 34, it was observed by the Apex Court while examining the question of bias a under: 34. Bias can be defined as the total absence of any preconceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to except a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and submerge any private feelings with respect to each aspect of the case. The apprehension of bias must be reasonable, i.e. which a reasonable person would be likely to entertain. Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim nemo debet esse judex in causa propria sua. It applies only when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided, or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias. In the event that actual proof of prejudice is available, the same will naturally make the case of a party much stronger, but the availability of such proof is not a necessary precondition, for what is relevant, is actually the reasonableness of the apprehension in this regard, in the mind of such party. In case such apprehension exists, the trial/judgment/order etc., would stand vitiated, for want of impartiality, and such judgment/order becomes a nullity. The trial becomes coram non judice. While deciding upon such an issue, the Court must examine the facts and circumstances of the case, and examine the matter from the view point of the people at large. In case such apprehension exists, the trial/judgment/order etc., would stand vitiated, for want of impartiality, and such judgment/order becomes a nullity. The trial becomes coram non judice. While deciding upon such an issue, the Court must examine the facts and circumstances of the case, and examine the matter from the view point of the people at large. The question as regards, whether or not a real likelihood of bias exists, must be determined on the basis of probabilities that are inferred from the circumstances of the case, by the Court objectively, or, upon the basis of the impression that may reasonably be left upon the minds of those aggrieved, or the public at large. 18. The aforesaid shows that the bias can be gathered when the interest attributed to an individual is such, so as to tempt him to make a decision in favour of or to further his own cause. There may not be a case for actual bias, or an apprehension to the effect that the matter most certainly will not be decided, or dealt with impartially, but where the circumstances are such, so as to create a reasonable apprehension in the minds of others, that there is a likelihood of bias affecting the decision, the same is sufficient to invoke the doctrine of bias. Further, as observed by the Apex Court, whether or not a real likelihood of bias exists, must be determined on the basis of probabilities that are inferred from the circumstances of the case, by the Court objectively, or, upon the basis of the impression that may reasonably be left upon the minds of those aggrieved, or the public at large. In the case of Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel, reported in 2006(3) GLH, 226, the Apex Court had an occasion to consider the aspect of exercise of power by the Court to intervene with the decision making process. At paragraph 18, it was observed, thus: 18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-re-cognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 19. The aforesaid shows that when it shocks the conscience of the Court in the sense that it is in defiance of the logic or moral standard, the power of judicial review may be exercised. It further shows that when a Court is satisfied that there is abuse or misuse of power and when the jurisdiction of the Court is invoked, it is incumbent upon the Court to intervene, subject to the restrain of the judicial review. 20. There cannot be second opinion on the point that the power vested to the office-bearers of the Market Committee is coupled with the public duty. It is by now well settled that when any power is coupled with the public duty, such power has got to be exercised, keeping in view the duty owed to the people in contradistinction to any personal interest of the office-bearers of the Market Committee. The moment there is involvement of personal interest, the objectivity will be lost and it would attract the involvement of bias, which is popularly known as personal bias. When any person or a body takes decision, keeping in view the personal interest, though such decision may be within the statutory provisions of law, it would be with the vice of bias and consequently not meeting with the test of propriety to be observed while exercising the statutory power. When any person or a body takes decision, keeping in view the personal interest, though such decision may be within the statutory provisions of law, it would be with the vice of bias and consequently not meeting with the test of propriety to be observed while exercising the statutory power. When any decision is taken by an authority clothed with the power with the element of bias, such a decision cannot be said as for a public good. Considering the matter only from the point of election, it does appear that when the office-bearers have to take appropriate decision on the eve of the election, such power, if to be considered with the public duty, will be for maintenance of the basic democratic principles of election to be held in a free and fair manner. 21. At this stage, we may advert certain observations of the Apex Court in the case of Ghasi Ram v. Dal Singh, reported in AIR 1968 SC 1191 , at paragraph 14, the relevant of which reads as under: "14. & Election is something, which must be conducted fairly. To arrange to spend moneys on the eve of elections in different constituencies, although for general public good, is when all is said and done an evil practise, even if it may not be corrupt practise. The dividing line between an evil practise and a corrupt practise is a very thin one. It should be understood that energy to do public good should be used not on the eve of elections but much earlier and that even slight evidence might change this evil practise into corrupt practise. Payments from discretionary grants on the eve of the elections should be avoided. (Emphasis supplied) 22. We may now further consider the facts of the case once again. As observed by us, at paragraphs 4 to 7 herein above, the date on which such en mass licences have been granted is on 1.5.2013, whereas the exercise of power by the Director under Rule 4 is on 3.5.2013. (Emphasis supplied) 22. We may now further consider the facts of the case once again. As observed by us, at paragraphs 4 to 7 herein above, the date on which such en mass licences have been granted is on 1.5.2013, whereas the exercise of power by the Director under Rule 4 is on 3.5.2013. Therefore, on account of the same, as there was time gap of two days only, the original file of the Director of Agriculture Produce Marketing and Rural Finance respondent No.2 was called for and the original file shows that the proposal was forwarded by the Deputy Director on 20.4.2013 and such provided for a particular schedule, whereby the election process was to begin from 7.5.2013. This shows that the proposal for election had already commenced by the aforesaid correspondence. The another pertinent aspect is that in the correspondence addressed by the Director of Agriculture Produce Marketing to the Deputy Information Officer, the signature is of 2.5.2013, whereas on the top, the date mentioned is 34/5/13. The another aspect is that in the original copy, the date mentioned is 30/4 and further date mentioned is 1/5. Such leads to strong circumstance that everything was prepared on 30.4.2013 and thereafter different dates have been provided as that of 1/5 and further 34/5/13. 23. The petitioner has made allegation in the petition at paragraph 3 as under: The petitioner states that the Chairman of Karjan Market Committee is the local MLA of ruling party in the State. ... 24. The aforesaid circumstance, in our view, if considered as it is, it cannot be said that the office-bearers of the Market Committee or the Market Committee would be totally unaware about the process initiated for commencement of election by the District Registrar and the Deputy Director from April 20, 2013. Further as observed earlier, since the date mentioned in the office copy of the exercise of the power by the Director is of 3.5.13 (though the original file shows 34/513), the draft order must have been prepared on April 30, 2013 and the Director has signed on 2.5.2013, but the forwarding letter shows the date of 3.5.2013. Further as observed earlier, since the date mentioned in the office copy of the exercise of the power by the Director is of 3.5.13 (though the original file shows 34/513), the draft order must have been prepared on April 30, 2013 and the Director has signed on 2.5.2013, but the forwarding letter shows the date of 3.5.2013. In our view, if the draft election programme was already prepared on 30.4.2013 and the Director has signed on 2.5.2013, such would lead to the circumstance of commencement of the process, even at the level of respondent No.2, who is the competent authority to declare the election programme one day prior to the date on which the en mass licences have been granted by the Market Committee. Such two circumstances of initiation of the process for holding of election by the Deputy Director and the District Registrar on April 20, 2013 and the preparation of the draft order of 30.4.2013, signing of the order by the Director on 2.5.2013 coupled with the circumstance that the Chairman of the Market Committee is sitting local MLA of the ruling party would lead us to believe that the decision is taken after the initiation of the process of election and even after preparation of the draft order by the Director under Rule 4 or, in any case, on the eve of the election. 25. Mr.Patel, learned Counsel appearing for the respondent Market Committee did attempt to contend that if the applications were made to the Market Committee for licences on account of the year ending on 31.3.2013, the Market Committee had no option, but to take appropriate decision. It was submitted that the licences were granted at the first meeting after 31.3.2013 and, therefore, it cannot be said that the decision was illegal or arbitrary. It was also submitted on behalf of some of the members of the Market Committee by Mr.Shalin Mehta, learned Sr. It was submitted that the licences were granted at the first meeting after 31.3.2013 and, therefore, it cannot be said that the decision was illegal or arbitrary. It was also submitted on behalf of some of the members of the Market Committee by Mr.Shalin Mehta, learned Sr. Counsel that in another decision of this Court in the case of Kadivar Rahimbhai Mamadbhai v. State of Gujarat, reported at 2010(0) GLHELHC228299 (Special Civil Application No.15038 of 2010 judgment dated 8.2.2012), when the Market Committee had granted licences to certain persons to inflate the voters list and the Director set aside the election on the ground that the voters list was inflated by election orientation, this Court observed that the subjective notion of impropriety is converted into illegality by the Director without reference to any legal provisions and such would make the order of the Director as arbitrary and illegal and, therefore, it was submitted that even if the voters list is inflated by the Market Committee, but if otherwise permissible by law or otherwise not barred by law, it cannot be said that the action would call for interference. 26. In our view, in the decision of this Court in the case of Kadivar Rahimbhai Mamadbhai v. State of Gujarat (supra), the facts show from the decision that the allegation was only 32 votes were permitted to be cast of new nominee, whereas in the present case it is more than 1100 votes as against the old licence holders of not exceeding 300, roughly four times and, therefore, on facts, the decision will have no applicability. Not only that but this Court had no occasion to examine the question of propriety in light of the facts of the present case showing that after initiation of the process of election, if the voters list is inflated by about four times than the existing licence holders than the previous year, whether such could be termed as an action not meeting with the test of propriety to be observed by the office-bearers of the Market Committee on the eve of the election or not. Further, as observed by us herein above and ably described by the Apex Court in the aforesaid decision in the case of Ghasi Ram v. Dal Singh (supra), that the energy to do public good should not be used on the eve of the election, but much earlier and even a slight evidence might change this evil practise into corrupt practise, since there is a very thin dividing line between the evil practise and corrupt practise. The facts of the present case, in our view, clearly show that after initiation of the process for commencement of the election, the decision has been taken by the Market Committee and such decision is, in any case, after the draft order is prepared in the office of the Director of Market Committee for exercise of the power under Rule 4 for publication of the election programme and the said decision is taken just one day prior to the Director signed the order. Therefore, we find that the exercise of power by the Market Committee would not meet with the test of propriety to be observed by the Market Committee or its office-bearers while exercising the statutory power for grant of licences. In our view, it would also result into tinkering with the sanctity of the election to be held in free and fair manner. Unfortunately, the authorised officer could not examine the matter in the above manner. It is true one might contend that the authorised officer had no competence or jurisdiction to examine the question of impropriety in exercise of power by the Market Committee, but in our view, the Director, who is in command of the whole election of the Market Committee as per the Scheme of the Act with the Rules and more particularly Rule 4 could not silently permit such an action on the part of the Market Committee to tinker with the sanctity of election. The authorised officer, in any case, could refer the matter to the Director and though the Director may not have revisional power, reference, for exercise of power under Section 48 by the State Government on the ground of propriety of action of the market committee, could have been made by the Director. Neither has happened in the present case, nor any time is left, since the voting is scheduled on 6.8.2013. Neither has happened in the present case, nor any time is left, since the voting is scheduled on 6.8.2013. Therefore, we find that, taking into consideration the aforesaid peculiar circumstance, the existence of alternative remedy could not operate as a bar for exercise of power of this Court under Article 226 of the Constitution of India and, in any case, we find that it is a fit case to exercise of power under Article 226 of the Constitution of India for maintaining the sanctity of the election to be held in free and fair manner. 27. In view of the aforesaid observations and discussion, it is observed and held that the impugned action for inclusion of the names of the aforesaid traders, who have been granted licences for the first time on the eve of the election can be said as not meeting with the test of propriety to be observed by the Market Committee on the eve of election and consequently such persons/licence holders would not get eligibility to be included in the voters list. The impugned order of the authorised officer is quashed and set aside with the further direction that the inclusion of the names of all such persons in the voters list of traders constituency, who have been granted licences for the first time was ultra vires the powers under the Act of the Market Committee and also of the authorised officer and consequently, those persons shall not be entitled to cast their votes at the ensuing election of the Agriculture Produce Market Committee, Karjan. (Emphasis supplied) 9. In our view, in the present case, more or less same facts are there as they existed in the above referred matter. This Court as per the above referred decision found that if the propriety and fairness at the election is to be observed in a democratic manner, the action of the Market Committee for grant of license and consequently inclusion in the voters list of those who were conferred eligibility criteria after the eve of the election could not be maintained. Further, the authorised officer had no power to exclude nor had any power to include such persons as voters in the voters list. Further, the authorised officer had no power to exclude nor had any power to include such persons as voters in the voters list. Hence, the action of inclusion in the voters list of the office bearers of the concerned respondent no.5 society could be said as ultra vires to the provisions of the Act read with the Rules. 10. Mr. Ashish Shah, learned counsel appearing for the respondent no.5 respective societies attempted to contend that it was not on account of the election the societies came into existence. He submitted that the application for registration of the societies were made on 10.10.2014. The registrations were granted on 09.03.2015 and they applied for license on 11.03.2015. As per Mr. Shah, provisional licenses were also granted on 11.03.2015 and once again the applications were made on 23.03.2015 for getting license for the year 20152016 and in his submission, if the Market Committee has not processed the application or that the meeting of the Market Committee was not held or that the licenses were not granted by the Market Committee earlier, the respondent no.5 society could not be faulted with and therefore, right to participate at the election may not be taken away on the said ground. 11. The contention may prima facie show some substance, but we need to keep in mind that the rights of the electorate are regulated by the statutory provisions and further, the sanctity and fairness at the election are the essence for maintenance of the democratic principles at the election. Neither the office bearers of the Market Committee who are in power nor any executive authority can be permitted to tinker with the sanctity to be observed once the eve of the election has started. If sanctity at the election is observed, then only it would be free and fair election. If by exercise of the power after the eve of the election the actions are taken for inflation of the voters list to the extent of ?rd than the existing voters, such would seriously affect the fairness to be observed at the election. If sanctity at the election is observed, then only it would be free and fair election. If by exercise of the power after the eve of the election the actions are taken for inflation of the voters list to the extent of ?rd than the existing voters, such would seriously affect the fairness to be observed at the election. Merely because the application was made earlier for registration or that the society was registered on 09.03.2015, would not make any difference because the question is not for continuation of the existence of the society by continuing of the registration or functioning of the society but the limited question to be considered for the present petitions is for accrual of the right to vote vis-a-vis the sanctity and fairness to be observed at the election. Further, we may also record that there is no provision under the Act or the Rules enabling the Market Committee to grant any provisional license. The license can be granted as per Rule 56 of the APMC Rules by the Market Committee at the meeting of the Market Committee by appropriate decision which has happened on 21.04.2015 after the eve of the election began and before the formal programme was declared. Hence, when there is no recognition in the eye of law to the provisional license nor it is the case of the respondent society that the licenses were granted by the Market Committee by passing resolution, we do not find that such action on the part of the Market Committee for issuance of the provisional license will have any validity in the eye of law. Further, the functioning of the society or continuing of the business are not going to be adversely affected if the voting right is not permitted to certain artificial voters through the attempt of the market committee. Hence, we do not find that a different view deserves to be taken than as was taken in the above referred decision of this Court in the case of Chandrakant Manibhai Patel (supra). Hence, the said attempt made on behalf of the concerned respondent no.5 society cannot be countenanced. 12. Hence, we do not find that a different view deserves to be taken than as was taken in the above referred decision of this Court in the case of Chandrakant Manibhai Patel (supra). Hence, the said attempt made on behalf of the concerned respondent no.5 society cannot be countenanced. 12. In view of the aforesaid observations and discussions, it is held that the impugned action for inclusion of the names of the office bearers of the concerned respondent no.5 society who have been granted licenses after the eve of the election cannot be sustained in the eye of law and hence, such license holder societies would not get eligibility to be included in the voters list. The impugned orders of the authorised officer are quashed and set aside with the further direction that the inclusion of the name of members of Managing Committee of the respondent societies in the concerned constituency was ultra vires to the powers under the Act of the Market Committee and also the authorised officer and consequently those persons shall not be entitled to cast vote at the ensuing election of the Market Committee, Prantij. 13. The petitions are allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. 14. The learned AGP shall communicate the order forthwith to the authorised officer. Petitions Allowed.