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2017 DIGILAW 1509 (GUJ)

ARVINDBHAI AMBALAL PATEL v. STATE OF GUJARAT

2017-09-01

BELA M.TRIVEDI

body2017
JUDGMENT : BELA M. TRIVEDI, J. By way of present petition filed under Art. 226 of the Constitution of India, the petitioner has challenged the order dated 24-7-2017 passed by the respondent No.3-Authorized Officer, rejecting the objections raised by the petitioner against the inclusion of the names of the respondent Nos. 6 to 11-Co-operative Societies in the voters' list of Co-operative Marketing Societies Constituency for the Election of A.P.M.C., Savli. 2. At the outset, it is required to be noted that the present petition along with other two petitions filed on 28-7-2017 were sought to be urgently circulated by the learned Advocate for the petitioner by making a request before the Co-ordinate Bench on 31-7-2017, though, as per the roster, the said petitions should have been mentioned and listed before this Court as per the roster. It appears that on 31-7-2017, the matter was kept on 1-8-2017, however, no order was passed by the Court on 1-8-2017. Again on 4-8-2017, the learned Advocate for the petitioner requested the Co-ordinate Bench to urgently circulate the Civil Application in this petition along with two other Civil Applications, for being heard at 2-30 p.m. On 4-8-2017, the Co-ordinate Bench issued notices to the respondents in the Civil Application making them returnable on 29-8-2017. It appears that since no order was passed in the main Special Civil Application, the main Special Civil Application was listed on 24-8-2017, on which date the Co-ordinate Bench passed the following order : "Registry shall verify the pleadings and prayers in the petition, more particularly, Page 29 and do the needful to see that whether this petition is to be listed before this Court or before the Court, which has to deal with the election matters. Registry shall do it at the earliest." 3. Accordingly, this petition along with Special Civil Application No. 14210 of 2017 was placed before this Court. 4. As per the case of the petitioner, the election of A.P.M.C., Savli was published on 16-6-2017 (Annexure 'E'), and the preliminary voters' list of Co-operative Marketing Societies' constituency was published on 3-7-2017 under Rule 7(2) of the Gujarat Agricultural Produce Market Rules (hereinafter referred to as 'the said Rules). According to the petitioner, though the respondent Nos. 4. As per the case of the petitioner, the election of A.P.M.C., Savli was published on 16-6-2017 (Annexure 'E'), and the preliminary voters' list of Co-operative Marketing Societies' constituency was published on 3-7-2017 under Rule 7(2) of the Gujarat Agricultural Produce Market Rules (hereinafter referred to as 'the said Rules). According to the petitioner, though the respondent Nos. 6 to 11 were not qualified Societies as contemplated under Sec. 11(1)(iii) of the Gujarat Agricultural Produce Market Act (hereinafter referred to as 'the said Act’), the names of members of their Managing Committee were included in the voters' list of said constituency. The petitioner, therefore, had raised objections against the said list as per Annexure 'K'. The said objections have been rejected by the respondent No.3-Authorized Officer vide the impugned order dated 24-7-2017. 5. Mr. Mangukiya, learned Advocate for the petitioner submitted that the concerned respondents-Societies were issued the licences on the last day of the previous financial year, and therefore, it could not be said that they had traded in conformity with their objects of the Societies, or had complied with the requirements of Sec. 11(1)(iii) of the said Act. Relying upon various decisions of this Court and of the Supreme Court, learned Advocate Mr. Mangukiya submitted that interference of the Court is warranted as the Authorized Officer had acted arbitrarily and with mala fide intention while passing the impugned order. 6. On the other hand, learned Advocate Mr. C.B. Patel appearing for the respondent Nos. 6 to 11 relying upon the decision of Division Bench in the case of Kalubhai Ranabhai Akabari v. State of Gujarat, reported in 2007 (3) GLH 57 , submitted that relevant date for determining the eligibility of the person for inclusion in the voters' list for Election to A.P.M.C., would be the date on which the Authorized Officer is to be communicated the names as indicated in the sub-rule (1) of Rule 7 of the said Rules. In the instant case, the date of communication of voters' list to the respondent No.3-Authorized Officer was 26-6-2017 as per the programme published on 16-6-2017, and the respondent-Societies were granted licences in March, 2017. Mr. In the instant case, the date of communication of voters' list to the respondent No.3-Authorized Officer was 26-6-2017 as per the programme published on 16-6-2017, and the respondent-Societies were granted licences in March, 2017. Mr. Patel also drawing the distinction between the clause (ii) and clause (iii) of Sec. 11 (1) submitted that it was not the requirement of the clause (iii) to trade during the previous financial year, which is the requirement of clause (ii) of the said provision. He also submitted that the licences issued in favour of the concerned respondents, have remained unchallenged and they having been validly issued, the names of the members of the Managing Committees of the concerned respondents were rightly included in the voters' list of the Co-operative Marketing Societies Constituency. 7. The learned Additional Advocate General Mr. P.K. Jani along with the learned A.G.P. Mr. Venugopal Patel submitted that as per the settled legal position, the process of election having already started, the Court should not interfere with the same. In this regard, they have relied upon the decisions of Supreme Court in the case of Punklik v. State of Maharashtra, reported in 2005 (7) SCC 181 , and in the case of Shaji K. Joseph v. V. Viswanath, reported in 2016 (4) SCC 429 . 8. Having regard to the submissions made by the learned Advocates for the parties, and to the documents on record, in light of the legal position settled by the Supreme Court in various decisions, it appears that the petition has been filed by the petitioner challenging the order passed by the respondent No.3-Authorized Officer rejecting his objections against the inclusion of the names of the members of the Managing Committees of the respondent Nos. 6 to 11-Societies in the voters' list. As per the settled legal position, exclusion or inclusion of names of members in the voters' list, could not be said to be an extra-ordinary circumstance requiring interference of the High Court exercising jurisdiction under Art. 226 of the Constitution of India. Beneficial reference of the observations made by the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited v. R.D. Rohit, Authorized Officer and Co-operative Officer (Marketing), reported in 2006 (1) GCD 211 (FB), be made in this regard in which it has been held as under : "33. Beneficial reference of the observations made by the Full Bench in the case of Daheda Group Seva Sahakari Mandli Limited v. R.D. Rohit, Authorized Officer and Co-operative Officer (Marketing), reported in 2006 (1) GCD 211 (FB), be made in this regard in which it has been held as under : "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 Art. 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 Art. 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules." 9. The said decision has been followed by this Court in number of cases, to cite a few are in case of Dilip Mesur Gojiya v. Chavda Ramdebhai Hamirbhai, in Letters Patent Appeal No.201 of 2016 decided on 22-7-2016, and in case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Ltd. v. State of Gujarat, in Letters Patent Appeal No. 569 of 2016 decided on 1-7-2016 (reported in 2017 (2) GLR 902 ). 10. Though the learned Advocate Mr. Mangukiya has relied upon the decision of Supreme Court in the case of Election Commission of India v. Ashok Kumar, reported in 2000 (8) SCC 216 , to submit that any decision in the election process is open to judicial review if the authority is found to have acted arbitrarily or in mala fide exercise of powers, the said submission cannot be accepted. When the licences issued to the concerned respondent-Societies have remained unchallenged, and when the other requirements of Sec. 11(1)(iii) have been found to be complied with by the respondent No.3-Authorized Officer, and when the learned Advocate Mr. Mangukiya has not been able to show as to how the members of the said respondents were not qualified under Sec. 11(1)(iii) of the said Act, the impugned order passed by the respondent No. 3 could not be said to be arbitrary or without jurisdiction, warranting interference of this Court in the election process which has already commenced and has reached to almost final stages. 11. In that view of the matter, the petition being devoid of merits, is dismissed. Petition dismissed.