Mehsana Taluka Co-Operative Purchase and Sale Union Limited v. Director
2016-11-22
N.V.ANJARIA
body2016
DigiLaw.ai
JUDGMENT : N.V ANJARIA, J. All the seven captioned petitions involve similar and interactive facts and identical issue. Therefore, they were heard together and are being disposed of by this common order. 2. The first captioned petition is filed by Mehsana Taluka Co-operative Purchase and Sale Union Limited. In the second Special Civil Application No. 17977 of 2016, the petitioner is Somnath Khet Pedash Processing and Vechan Sahakari Mandli Limited. Petitioner of Special Civil Application No. 17978 of 2016 is Mehsana Jilla Khedut Sinchai and Krushi Utpadan Karnar Sangh Limited, whereas the petitioner of Special Civil Application No. 18108 of 2016 is Dhandhusan Bij Utpadakoni Rupantar and Vechan Karnari Sahakari Mandli. All the petitioner cooperative societies have prayed for setting aside of order dated 10th October, 2016 passed by the Agriculture Produce Market Committee (APMC), Mehsana through its Administrator, and another order dated 14th October, 2016 which is an order passed by the authorized officer-the third respondent herein. 2.1 The order dated 10th October, 2016 passed by the fourth respondent is an order whereunder the fourth respondent has cancelled the trader's licence of the petitioner society granted for the year 2016-2017 in exercise of powers under Section 27 read with Section 59 of the Agriculture Produce Market Act, 1963. The second order dated 14th October, 2016 impugned is the order whereby the authorized officer consequentially deleted names of the members of the Managing Committee of the petitioner societies. Names of the 16 members came to be deleted by the authorised officer as far as the first petitioner Mandli is concerned; 10 names were deleted as per the order impugned in the second Special Civil Application No. 17977 of 2016, 13 members were deleted from the list of voters as per the impugned order in the third petition, whereas the impugned order in Special Civil Application No. 18108 of 2016 provided to delete 09 members as voters. 3. While the facts run parallel in each of the four petitions, the delineation of facts herein is with reference to the first captioned petition. Highlighting the background facts, it was stated that previously, there was one Agriculture Market Committee, Mehsana which was bifurcated by way of notification 06th January, 2014 into APMC, Mehsana and APMC, Jotina.
3. While the facts run parallel in each of the four petitions, the delineation of facts herein is with reference to the first captioned petition. Highlighting the background facts, it was stated that previously, there was one Agriculture Market Committee, Mehsana which was bifurcated by way of notification 06th January, 2014 into APMC, Mehsana and APMC, Jotina. The bifurcation notification was challenged in Special Civil Application No. 564 of 2014 and the same came to be upheld as the petition was dismissed on 11th August, 2016. The administrator took over the charge on the same date. The Letters Patent Appeal was preferred against the aforesaid order dated 11th August, 2016, which appeal came to be disposed on 26th August, 2016; on the same date, the election programme was notified. 3.1 On 23rd September, 2016, the Administrator of the APMC, Mehsana issued notice to the petitioner calling for certain information in relation to the general licence held by the petitioner, further specifying that failure on part of the petitioner may lead to take necessary action in exercise of powers under Section 27 of the Gujarat Agriculture Produce Market Act, 1963. On 03rd October, 2016, the petitioner replied. On 05th October, 2016, objections to the inclusion of the name of petitioner Mandli in the list of voters were raised by two persons on various grounds. In view of the objections raised, the authorized officer issued notice to the petitioner on the very day. In the preliminary list of voters, stated learned counsel for the petitioner, the name of the petitioner figured. 3.2 The above exercise resulted into the impugned orders, the one whereunder the licence of the petitioner society was ordered to be cancelled by the fourth respondent, whereas the other order was passed by the authorized officer-the third respondent deleting the name of the members of the petitioner society from the voters' list. 3.3 The elections to the APMC are held through different constituencies such as traders constituency, agriculturists constituency and the constituency of the cooperative societies. The petitioners are the cooperative societies, members of whose Managing Committee, are entitled to be included in the list of voters provided they satisfy the eligibility for being included. The claim of the petitioners herein is referable to constituency of Cooperative Marketing Societies.
The petitioners are the cooperative societies, members of whose Managing Committee, are entitled to be included in the list of voters provided they satisfy the eligibility for being included. The claim of the petitioners herein is referable to constituency of Cooperative Marketing Societies. In the initial stage, names of all the cooperative societies in the concerned constituencies are sent to be included in the preliminary list of voters, whereafter as per the stages of preparation of final list of voters after inviting objections, the names sent are scrutinised and final list of voters is prepared. 3.4 The holding of the general elections to the Agriculture Produce Market Committee, Mehsana was notified on 28th June, 2016, and under the election programme, the formal announcement of the election was made on 09th September, 2016 and on the last date for sending the list of voters to the authorized officer was provided to be 17th September, 2016. The preliminary list of voters was to be published on 22nd September, 2016, and the objections were to be submitted within fourteen days thereafter. 14th October, 2016 was the date fixed for publication of preliminary list of voters. The revised preliminary list of voters was slated to be published 20th October, 2016, whereas the final list was published on 24th October, 2016. The date of filing nominations is fixed to be 23rd November, 2016, and the same date would be date of publishing primary list of nominations. The scrutiny of the nomination papers is fixed on 24th November, 2016, whereas the last date of withdrawal is 28th November, 2016. The final list of the contesting candidates is to take place on 28th November, 2016. The election is scheduled on 07th December, 2016, the counting is to take place on 08th December, 2016 and same day would be the date of announcement of results soon after the counting is over. The election process to the APMC, Mehsana is thus underway. 4. At the outset, learned Additional Advocate General Mr. P.K Jani raised an objection in the nature of preliminary objection that since the election programme has commenced, this Court may not hear the parties on the merits at all and dismiss the petition at the threshold. However, subsequently both the sides proceeded and were allowed to submit on merits.
4. At the outset, learned Additional Advocate General Mr. P.K Jani raised an objection in the nature of preliminary objection that since the election programme has commenced, this Court may not hear the parties on the merits at all and dismiss the petition at the threshold. However, subsequently both the sides proceeded and were allowed to submit on merits. It was considered not to be out of place also, to hear the parties on the aspects and facets of merits. 4.1 Learned senior counsel Mr. R.S Sanjanwala with learned advocate Mr. Dipen Desai for the petitioners proceeded to assail the impugned orders. He called in question the order dated 10th October, 2016 passed by the Market Committee by putting-forth the following main grounds-(i) No show-cause notice was issued under Section 27 of the Act, (ii) The authorities acted in a great hurry and the entire thing was hushed up leading to the impugned orders, (iii) There was a predetermination to keep the petitioner society and its members out of list of voters, (iv) The licence was cancelled by passing order dated 10th October, 2016 which was with an intention to facilitate the authorized officer to strike out the name of the petitioner from the voters and to prevent its participation in the elections. 4.1.1 Assailing the order of the authorized officer dated 14th October, 2016, learned senior counsel submitted that it was politically motivated order and it was clearly intended to keep out the petitioner from the arena of elections by not permitting right to vote. Referring to the contents of the order, it was submitted that smallness of the amount traded cannot be a ground. The counsel characterized the order as mala fide. He also submitted pointing out the sequence of events that a design was worked out so that the petitioner Mandlis are not able to vote in the elections. 4.1.2 He submitted that impugned orders deny the petitioners the right to vote and right to participate in the election. He submitted that in wake of grievous denial of these rights, the Court could be justified in exercising powers under the writ jurisdiction. It was submitted that jurisdiction under Article 226 may not be allowed to curtail by fetters wherever the need arises to exercise the powers to do the justice.
He submitted that in wake of grievous denial of these rights, the Court could be justified in exercising powers under the writ jurisdiction. It was submitted that jurisdiction under Article 226 may not be allowed to curtail by fetters wherever the need arises to exercise the powers to do the justice. He therefore submitted that even if there is an alternative remedy, this case is fit where the Court should exercise the powers to grant relief. 4.1.3 Learned senior counsel firstly relied on decision of the Supreme Court in Election Commission of India v. Ashok Kumar [ (2000) 8 SCC 216 ], and on the basis thereof it was submitted that wherever it is necessary to facilitate the due progress of process of due elections, and without interrupting the process as such, if the relief could be granted, the same ought to have been granted. Another decision of the Supreme Court in Pundlik v. State of Maharashtra [ (2005) 7 SCC 181 ] was pressed into service to harp that rule of alternative remedy and on that ground not entertaining the writ petition is not a straitjacket rule. 4.1.4 A decision of Division Bench of this Court in Shrutbandhu Himmatlal Popat v. State of Gujarat being Special Civil Application No. 16246 of 2011 decided on 13th December, 2011 was relied on for its paragraph 9 to submit that in a give case like one on hand where the decision is unfair and arbitrary where the executive has interfered with the list of voters, there would be a justification to exercise the powers under Article 226 even during the on-going the election process. On the aspect of alternative remedy, still another decision of the Division Bench in Manubhai Hargovanbhai Joshi v. State of Gujarat [ 2014 (1) GLR 190 ] was sought to be relied on. To buttress the submission that order of cancellation of licence was passed without hearing, decision in Rajeshkumar Bansilal Khamar v. Agriculture Produce Market Committee [ AIR 2002 Guj 156 ] was pressed. 4.2 Learned Additional Advocate General Mr. P.K Jani assisted by learned Assistant Government Pleader Mr. Rohan Yagnik on the other hand emphasised the aspect that once the election process is set into motion, this Court would be loath to exercise the writ jurisdiction to interject and interfere with the process. It was submitted that petitioners have alternative remedy after the elections.
P.K Jani assisted by learned Assistant Government Pleader Mr. Rohan Yagnik on the other hand emphasised the aspect that once the election process is set into motion, this Court would be loath to exercise the writ jurisdiction to interject and interfere with the process. It was submitted that petitioners have alternative remedy after the elections. He submitted that in the middle of the election process which has already commenced, no interference is required in the impugned order which provides for deletion of name of respective petitioner from the list of voters. He submitted that in caravan of decisions the Supreme Court, by this Court and in the recent series of judgments by the Division Bench, the well settled law has been reiterated and reaffirmed. He relied on the Full Bench decision of this Court in Daheda Group Seva Sahakari Mandli Limited v. R.B Rohit [2006 (1) GCD 211] as well as the subsequent decisions which were delivered by this Court propounding the proposition of non-interference in the election process, relying on Daheda Group Seva Sahakari Mandli (supra). 4.2.1 Learned Additional Advocate General further submitted on the aspect of merit that in any case the present litigation by the petitioners is not well-meant and the petitioners are those who have managed themselves to continue in the office even after the term of the body is over. Learned AAG referred to the previous litigation, the orders of which are on record to submit that, series of litigations were pursued, ultimately the Administrator was appointed on 11th August, 2016, leading to the announcement of elections. He further submitted that the entire contention about the action and the impugned orders being mala fide cannot sustain as having no factual basis. He relied on decision in Dilipbhai C. Nathvani v. State of Gujarat [2013 (5) GLR 4464] to submit that the Administrator is to be treated as Market Committee and his actions cannot be readily perceived as only politically motivated. 4.2.2 It was further submitted that in challenging two orders dated 10th October, 2016 and 14th October, 2016, the petitioners have combined two sets of causes of action which is not permissible in law. He submitted that first order is passed by the Market Committee cancelling the licence of the petitioners on the valid ground after giving notice calling for the details.
He submitted that first order is passed by the Market Committee cancelling the licence of the petitioners on the valid ground after giving notice calling for the details. The second order is passed by the authorised officer, who again an election authority acting under the different umbrella of lawful powers in the affairs of and in conduct of the elections. Countering the submission that the second order is consequential to the first one and is based on the same grounds, learned AAG, taking the Court through two orders sought to demonstrate that though the cancellation of licence was one of the ground to pass the order dated 14th October, 2016 by the authorised officer, the said order was based on several other germane grounds. 4.2.3 Learned Additional Advocate General also referred to Section 11(1)(c) of the Act, as amended in the year 2015, to further submit that the petitioner marketing societies are required to fulfill the criteria in law as amended to be entitled to get the names of their members as eligible voters in the list of voters for participating in the elections. He submitted countering the contention of the petitioners that the petitioner societies were found on facts not to have traded for the current year to acquire the eligibility; in the second place they were found not to have traded in the required items of agriculture produce, and thirdly it was noticed that even if they had traded, it was with an eye of the elections. It was submitted that under the Rule 6 to Rule 10, the capacity to remain voters ceased for the petitioner societies, which was a valid ground adverted to by the authority. 4.2.4 Seeking to answer the case of the petitioners that the cancellation of licence was without issuance of notice, it was submitted on behalf of the respondent authorities by learned AAG that notice was given and the cooperative society concerned was called upon to furnish the factual details which was necessary to consider its eligibility to be included in the list of voters. He submitted that though the petitioner concerned remained present, failed to submit the requisite details to satisfy the authority. Submission of learned AAG that adjudging the claim of eligibility of the petitioners to be included as voter, was an exercise in realm of factual inquiry, could not be brushed aside lightly.
He submitted that though the petitioner concerned remained present, failed to submit the requisite details to satisfy the authority. Submission of learned AAG that adjudging the claim of eligibility of the petitioners to be included as voter, was an exercise in realm of factual inquiry, could not be brushed aside lightly. He also submitted that a remedy of appeal was available under Section 27(5) of the Act to challenge the order of cancellation. 4.3 The fourth respondent has filed affidavit-in-reply in which he has stated, “… From the perusal of the records it is clear that the petitioners are not doing business as per the amended provisions of Section 11(1)(2) of the Gujarat Agricultural Produce Markets Act. By way of amendment to Section 11(1)(2) the words “who have traded in full conformity with the terms and conditions of the license in the previous financial year and the fess payable by them has not remained unpaid” have been added. Therefore as per the said provisions, none of the petitioners are eligible and entitled to be continued to hold traders license in the Market Committee. In 2014-15 the petitioners have not paid any cess and in 2015-2016 only minimal cess has been paid. I say and submit that all the petitioners have been granted license by the outgoing Market Committee for the purpose of casting their votes only and not a single documentary evidence has been produced to show that they are doing regularly business in the Market Committee in the scheduled agricultural produce and paying cess as provided under the Act. I say and submit that 242 traders who are not regularly doing business in the commodities specified in the schedule and as per the terms and conditions of the license, therefore the report has been submitted by the APMC and accordingly the authorised officer had deleted their names.” 4.3.1 It is further contended by the fourth respondent that even after passage of six months, not a single document is placed on record to the petitioners about the payment of cess by them. It is further stated that all are the holders of miscellaneous licence and that there is no provision for holding miscellaneous licence under the Act. It is further stated that under the Act the provisions is for granting and holding general licences category ‘A’ and ‘B’.
It is further stated that all are the holders of miscellaneous licence and that there is no provision for holding miscellaneous licence under the Act. It is further stated that under the Act the provisions is for granting and holding general licences category ‘A’ and ‘B’. It is, therefore, sought to be contended that licence held by the petitioners are not in accordance with the provisions of the Act and the Rules. The authorised officer has thus justified his order. 4.4 Learned advocate Mr. Vaghela adopted the submissions of learned AAG, augmenting his case by referring to the objects of the societies. He further relied on decision of this Court in Vitthodar Vividh Karyakari Seva Sahakari Mandali v. State of Gujarat being Special Civil Application No. 16941 of 2016 and Kuchawada Seva Sahakari Mandali Limited v. State of Gujarat being Special Civil Application No. 16958 of 2016 both decided on 19th October, 2016, to submit that in those cases it was the submission that order of deletion of name from the voters list was entirely devoid of any basis in law, yet since the election process was underway this Court refused to interfere. 5. Though having allowed the parties to make submissions on the aspects and facets of merits of their respective case, at the end of the exercise, and in ultimate analysis, it was considered not necessary for this Court exercising jurisdiction under Article 226 of the Constitution, to go into the arena of merit at stage obtained. The consideration for this is overriding and over-weighing, for, the election process has already commenced having been set into motion as per the schedule of election mentioned in paragraph 3.4 hereinabove. The aforementioned stages in the election on-going election process show that process has advanced and the stage reached is filing nomination papers. The final list of voters has already been published as back as on 24th October, 2016. 5.1 The law is reiterative that the writ court would normally not interfere once the election process is underway. This dictum, well-settled by caravan of decisions of the Supreme Court as well as by this Court, is true whether it is elections to local body or elections of any democratic domestic body such as cooperative society.
5.1 The law is reiterative that the writ court would normally not interfere once the election process is underway. This dictum, well-settled by caravan of decisions of the Supreme Court as well as by this Court, is true whether it is elections to local body or elections of any democratic domestic body such as cooperative society. It is also well-settled that all election disputes relating to alleged irregularities or illegalities in course of the election have to be postponed for their solution, to be tried and settled after the elections are over in accordance with the machinery provided for resolution of such disputes. 5.1.1 This trite proposition has been holding the field right from the decision in N.P Ponnuswami v. Returning Officer [ AIR 1952 SC 64 ] and caravan of other decisions, of which a more recent decision in Shaji K. Joseph v. V. Viswanath [ (2016) 4 SCC 429 ] may be referred to, which reiterated the principle in the following words. “… as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect whenever the process of election starts, normally courts should not interfere with he process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without the court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. … …” (Para 15) 5.1.2 The election jurisprudence, its principles and the applicability of election laws have different delineations and dimensions. They indeed operate, and has to be allowed to operate in their own way so as to sub-serve a higher purpose. In the election which is a democratic process, what is fundamental is the event of election.
… …” (Para 15) 5.1.2 The election jurisprudence, its principles and the applicability of election laws have different delineations and dimensions. They indeed operate, and has to be allowed to operate in their own way so as to sub-serve a higher purpose. In the election which is a democratic process, what is fundamental is the event of election. Neither the right to vote or to participate in election as voter or as a contesting candidate, is perceived to be a fundamental right. They are the rights guarded by statutory framework and could be exercised only in the manner the statute may provide. What is at stake is the interest of whole body which goes to the democratic process of elections. Election jurisprudence hardly emphasise rights of individuals. Election rights are the democratic rights operating as a whole and for collective end. 5.1.3 This is exactly what was observed by the Apex Court in Ashok Kumar (supra) relied on, on behalf of the petitioner. “Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally.” (para 28) 5.1.3.1 The principles finally laid down in Ashok Kumar (supra), when closely read suggest the very thing. “For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:- (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered 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.
(2) Any decision sought and rendered 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. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) 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, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” (para 32) 5.1.4 The Ashok Kumar (supra) was a case of booth capturing. The Apex Court viewed that, there may be a grave circumstances which may justify exercise of powers under Article 226 so as to facilitate the smooth flow of election. It was observed that in order to preserve the vital piece of evidence, the interposing may be required.
The Apex Court viewed that, there may be a grave circumstances which may justify exercise of powers under Article 226 so as to facilitate the smooth flow of election. It was observed that in order to preserve the vital piece of evidence, the interposing may be required. Though the decisions are in respect of the elections to the State Legislature, the principles do apply. 5.2 Assertion to have a right to vote for or calling into question the process of election on the grounds including that by the impugned orders the election result are sought to be swayed, could also not be a ground themselves to invoke jurisdiction of the writ court to seek relief in the midst of the election. As already observed, right to vote and right to elect are only statutory rights and these rights may be exercised only within the bounds and as per the provisions of the statute. The submission of learned senior counsel for the petitioners that by the impugned orders right to vote and right to participate in the election were denied which were fundamental, could not be accepted to be a good ground for straightway exercising the writ jurisdiction. 5.3 The following observations from the decision of the Supreme Court in Jyoti Basu v. Debi Ghosal [ AIR 1982 SC 983 ] deserves to be reproduced. “A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.
It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, Is what the statute lays down.” (Para 8) 5.3.1 The aforesaid observations in the context of the provisions of the Representation of Peoples Act, 1951 speak out the basic principle regarding on-going democratic process of election vis-a-vis the role of the court and justification of interference of the court under Article 226 of the Constitution, and do guide to apply in the domestic democratic bodies like cooperative societies or agriculture produce market committee. No right to challenge the election as such is conceived except as per the remedy provided under the special law. 5.3.2 It is observed, “… … … no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?” (Para 8) 5.4 In the field of election laws, the provision for filing election petition after the elections are over or remedy in any other form provided in the statute concerned to enable aggrieved person to challenge election, is more in the nature of special remedy under the special law dealing with the election disputes mechanism, rather than to be called an alternative remedy stricto sensu.
When there is a challenge to election or when right in relation to the election such as right to vote or right to contest the election is asserted, it is not the rule of alternative remedy which would guide the writ court not to exercise the jurisdiction. The decisive aspect for ordinarily not exercising the writ jurisdiction is the on-going election process on one hand and a special remedy under the special mechanism which may have been provided under the law applicable on the other hand. This becomes a consideration stronger than a mere ground of alternative remedy, so as not to exercise the writ powers which may necessarily amount to interposing, interjecting, interfering or intervening the election process. 5.5 The Supreme Court and this Court in caravan of decisions relating to the process of election to the cooperative societies or agriculture produce market committee or such other domestic democratic bodies, have applied the principles of noninterference during the election process emphasising postponment of election disputes to be tried after the elections are over. Referring to a recent Division Bench decision of this Court in Kalubhai Isharbhai Patel v. State of Gujarat [ 2016 (2) GLR 1147 ], the principle was reiterated in the context of the elections to the agriculture produce market committee only. It was also observed that there is, however, thin line between deft political maneuvering and gross abuse of the official powers. 5.6 It may be true that the jurisdiction under Article 226 is wide and suppose to reach to search out injustice and arbitrariness to smother them and to achieve the ultimate ends of justice. This broad principle may not be a convenient way for the writ petitioners to require the court on askance, to exercise the powers during the on-going process of elections. There may be cases and cases, situations and situations, aspects and facets which may or may not require exercise of powers under Article 226 in relation to the election dispute during the currency of election process.
There may be cases and cases, situations and situations, aspects and facets which may or may not require exercise of powers under Article 226 in relation to the election dispute during the currency of election process. 5.7 Whether the actions and orders resulting into inclusion or exclusion of names from the list of voters could become a ground justifying the invocation of writ jurisdiction, is settled by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra) wherein the Court even while holding that only in exceptional circumstances the Court may be inclined to interfere with the election process, in terms held that inclusion or exclusion from the list of voters are not exceptional circumstance which would justify interference of the Court in the midst of the election. In Daheda Group Seva Sahakari Mandli Limited (supra), the Apex Court's decision in Ashok Kumar (supra) was considered. 5.7.1 The conclusion drawn by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra) are 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 2 8 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 2 8 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 of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction.
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 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.” 5.7.2 On an attentive reading of the aforesaid law laid down by the Full Bench, it appears to be virtually an absolute proposition laid down that, “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.” 5.7.3 In Rajeshbhai Vaghjibhai Chaudhari v. State of Gujarat being Special Civil Application No. 8041 of 2016 decided by this Court reiterating the principle came to be confirmed in Letters Patent Appeal No. 538 of 2016 in which, after discussing the powers of the Court, the Division Bench observed to state as under. “Keeping in mind the aforesaid legal position with regard to exercising powers under Article 226 of the Constitution of India in the election matters, if the facts of the present case are considered, it is revealed that the Authorized Officer has rejected the objections raised by the petitioners about inclusion of the names of petitioner Nos. 6 to 101 in the voters list. In the facts of the present case when a new market committee is constituted in September 2014 and thereafter the licences were issued to the concerned traders, we are prima facie of the opinion that Authorized Officer has not committed any jurisdictional error or order of the Authorized Officer cannot be said to be ultra vires or nullity nor the same can be termed as arbitrary. Thus, in the facts of the present case, the learned Single Judge is right in not exercising the jurisdiction under Article 226 of the Constitution and by observing that the petitioners can file an Election Petition under Rule 28 of the rules.
Thus, in the facts of the present case, the learned Single Judge is right in not exercising the jurisdiction under Article 226 of the Constitution and by observing that the petitioners can file an Election Petition under Rule 28 of the rules. We are in agreement with the reasoning given by the learned Single Judge and therefore the present appeal is devoid of any merits and accordingly it is dismissed.” (Para 15) “However, we leave it open to the appellants that if the appellants petitioners are aggrieved by the result of election, they can approach the competent authority by raising en election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the prima facie findings recorded by this Court in this appeal.” (para 16) 5.7.4 In a recent decision in Bhesavahi Group Vividh Karyakari Seva Sahakari Mandli Limited v. State of Gujarat being Letters Patent Appeal No. 569 of 2016 decided on 01st July, 2016, wherein reference of Daheda Group Seva Sahakari Mandli Limited (supra) was also made, the Division Bench reiterated the principle of non-interference in the election process in exercise of powers under Article 226 of the Constitution. 5.8 The orders impugned have resulted into deletion of names of members of the Managing Committee from the list of voters. Exclusion and inclusion of names in the list of voters cannot be said to be an extra-ordinary or exceptional circumstance, may be beset with allegedly strong grounds, to justify exercise of writ jurisdiction so as to interject when the election process is in motion. No exceptional circumstances were pointed out which would justify the use of extra-ordinary writ jurisdiction of this Court and interfere with the election process. This is an overriding and over-weighing aspect not to go into the merits and to exercise the writ jurisdiction, but leaving the petitioners to avail the remedy postelection. The list of voters was finalised and published on 24th October, 2016 as per the election schedule notified. Therefore any order in this petition would amount to intervening to the election. 5.9 As already stated, as far as the present case is concerned, Rule 28 of the Gujarat Agriculture Produce Markets Rules, 1965 is the remedy available to challenge the election after the elections are over. 6.
Therefore any order in this petition would amount to intervening to the election. 5.9 As already stated, as far as the present case is concerned, Rule 28 of the Gujarat Agriculture Produce Markets Rules, 1965 is the remedy available to challenge the election after the elections are over. 6. Having set out the position of law as above, at this stage, incidental aspects and submissions may be adverted to. There is no gainsaying that as far as order dated 10th October, 2016 is concerned, a statutory remedy of filing Appeal under Section 27(5) of the Agriculture Produce Markets Act, 1963 is available. From the facts noted above and having seen the order dated 10th October, 2016 and the grounds on which it is based, it could also not be denied that it involves factual aspects and such attendant factual aspects require investigation and determination which is not the purview of the writ jurisdiction. 6.1 Another aspect of the matter could also not be overlooked. As per the election programme announced, preliminary list of voters was published on 22nd September, 2016 and the last date for submitting objections was 05th October, 2016. It was after a gap of 10 days, the revised preliminary list of voters was published on 14th October, 2016. Against this list also time was available upto 20th October, 2016 to lodge objections. The final list of voters was published on 24th October, 2016. After the name of the members of the petitioner societies came to be deleted and known to have been deleted on 14th October, 2016, petitioners had time to lodge objections before 20th October, 2016. Instead of doing that, they proceeded to file the present petitions which was filed on 18th October, 2016. They could have got their objections adjudicated by submitting the objections before 20th October, 2016. In any case, in view of the clear position of law it has to be held that even a strong ground on merit may not be a consideration to interfere with the election process more particularly when it comes to inclusion and/or exclusion of names from the voters list. Such issue has to be necessarily agitated and tried in the election petition or in other post-election remedy which is available in accordance with law. 7.
Such issue has to be necessarily agitated and tried in the election petition or in other post-election remedy which is available in accordance with law. 7. For the foregoing reasons, without adverting into the merits of the case and without expressing any opinion on merits, all these petitions are not entertained leaving it open to the respective petitioners to pursue remedy after elections are over, by challenging the election in accordance with law as may be advised. It is observed that if such remedy is availed by the petitioners, such proceedings shall be expeditiously dealt with and decided by the competent forum. 8. Notice stands discharged in each of the four petitions.