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2024 DIGILAW 2195 (GUJ)

B. Govindbhai And Co. v. State Of Gujarat

2024-12-11

ANIRUDDHA P.MAYEE

body2024
JUDGMENT : Aniruddha P. Mayee, J. 1. The present Special Civil Application is filed praying for the following reliefs:- “6(A) The Hon'ble be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the impugned action of the authorised officer in deleting the names of the petitioners from the provisional voters list of traders' constituency for the elections of APMC Unjha (annexed at ANNEXURE-A to this petition) (B) The Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, direction or order, commanding the authorised officer to include the names of the petitioners in the voters list of traders' constituency for the elections of Agriculture Produce Market Committee Unjha and permit the petitioners to cast their votes from the traders constituency in the elections of APMC Unjha. (C) Pending admission, hearing and final disposal of the petition, the Hon'ble Court be pleased to direct the authorised officer to permit the petitioners to vote in the traders' constituency for the elections of Agriculture Produce Market Committee Unjha. 2. The brief facts of the petitioners case is that, the petitioners are the traders operating in the market yard of Agriculture Produce Market Committee [“APMC” for short], Unjha – respondent No.5 herein. That the respondent No.2 – Director of Agricultural Marketing & Rural Finance, Gandhinagar has issued election programme on 18.9.2024 whereby the preliminary voters list was published on 3.10.2024. The provisional voters list was published on 22.10.2024 and the final voters list came to be published on 4.11.2024 and the elections are to be held on 16.12.2024. That the petitioners names have been included in the Preliminary voters list, however, their names have been deleted from the Provisional voters list. That no notice came to be issued before deleting the names of the petitioners nor any opportunity of hearing has been given. That thereafter the petitioners by way of letter dated 24.10.2024 requested the authorized officer that their names were wrongly deleted from the voters list and that they are ready and willing to change the name of the authorized person who is authorised to vote on behalf of each of the petitioners and the authorized officer was requested to re-consider its decision to include the names of the petitioners in the voters list. That the authorized officer by communication dated 4.11.2024 refused to reconsider its decision on the ground that he has no authority to review his decision. That on 4.11.2024, the final voters list came to be published wherein the petitioners names are not included. Aggrieved, the petitioners have filed the present Special Civil Application. 3. Mr. Dipen Desai, learned advocate for the petitioners has submitted that the names of the petitioners are wrongly deleted from the Provisional voters list. He submits that the petitioners had communicated to the authorized officer that they are ready and willing to change the name of the authorized person, who has been nominated on behalf of each of the petitioners, to vote on their behalf. He submits that the names of the petitioners have been deleted from the voters list on frivolous ground. He further submits that there was no any objection against the names of the petitioners being included in the provisional voters list. Further, before deleting the names of the petitioners from the voters list neither any notice has been issued to the petitioners nor any opportunity of hearing has been given and thereby, the action of the authorized officer is in violation of the principles of natural justice. He submits that by impugned action of the authorized officer, voting right of the petitioners have been taken away even though they are valid members of the traders constituency. He submits that this Court in various decisions held that before deletion of names from the voters list, the concerned person should be given an opportunity of hearing. He further submits that this Court has also held that if any authorized officer deletes any names from the voters list without affording any opportunity of hearing, then such an action would be void. He submits that the authorized officer has relied upon proviso to Section 11(1)(iii) which provides that the person eligible as a voter in an individual capacity or a representative of a society or a trader or a commission agent can cast one vote and only in one class under clause (i), (ii) and (iii). He submits that the action of the authorized officer in relying on the said provision is completely misinterpretation of the said provision. He submits that in the present case, the eligible person is the concerned trader namely the proprietary firm or a partnership firm or HUF. He submits that the action of the authorized officer in relying on the said provision is completely misinterpretation of the said provision. He submits that in the present case, the eligible person is the concerned trader namely the proprietary firm or a partnership firm or HUF. He submits that trader may have given authority to vote on its behalf to a person who would be having such authority from other trader also and the vote is on behalf of the concerned trader. He submits that only because a particular person is having authority to vote on behalf of more than one trader / one eligible voter that would not mean that the concerned / eligible voter is having more than one vote. He submits that the authorized person is having only one vote for which that concerned person is authorizing a particular person. He submits that the entire understanding of the Authorized Officer is erroneous and completely misconceived. He submits that the impugned action of the authorized officer is completely without jurisdiction and authority of law and that the same be set aside and the writ petition be allowed. 4. Per contra, Mr. G.K.Virk, learned Government Pleader for the respondent authorities has submitted that in a catena of decisions, this Court has clearly held that with respect to inclusion and exclusion of the names of the members of a particular APMC, it has been held that the petitioners have alternative remedy in view of Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 [“Rules, 1965” for short] of raising an election dispute. He submits that in the present case, the authorized officer has taken action in accordance with proviso to Section 11(1)(iii). He submits that the said proviso clearly provides that one person can cast only one vote. He further submits that in the present case, the name of the authorized person has been deleted since he is having more than one vote to cast which is in violation of the said Section 11(1)(iii) and proviso thereof. He further submits that since the authorized officer was implementing the legal provision, no hearing is required to be given. He submits that there was no objection received for deletion of such name and therefore, no hearing was afforded. He further submits that since the authorized officer was implementing the legal provision, no hearing is required to be given. He submits that there was no objection received for deletion of such name and therefore, no hearing was afforded. He submits that it is the duty of the authorized officer to follow the provisions of law which he has followed in the present case and for the same, he does not need to show cause or give a hearing to the concerned member. He submits that what has been deleted is the name of the authorized person, who is casting more than one vote. In the present case, the petitioners had authorized a person who was also a voter for some other member and therefore, the authorized officer was compelled to take action as per law. He submits that no infirmity can be attributed to the action of the authorized officer. He submits that proviso to Section 11(1)(iii) was inserted with a view to curb one person voting many times on behalf of other voters. He submits that while introducing such proviso, the aim and object is to curb multiple voting by one person. He submits that in the present case, the said proviso has not been challenged and the action of the authorized officer is in conformity of the said proviso. He submits that if the petitioners have any grievance, they can always raise their grievance by way of election petition under Rule 28 of Rules, 1965. He, therefore, submits that the writ petition be dismissed and the petitioners be relegated to alternative remedy. 5. Heard learned advocates for the parties and perused the documents on record. 6. In the present case, it is an admitted position that the petitioners have authorized a person to vote on their behalf who is already representing another trader in the voters list. The proviso to Section 11(1)(iii) of the Gujarat Agricultural Produce Marketing (Promotion and Facilitation) Act, 1963 prohibits a person eligible as a voter in an individual capacity or representative of the society or trader or a commission agent can cast one vote and only in one class under clause (i), (ii) and (iii). The proviso to Section 11(1)(iii) of the Gujarat Agricultural Produce Marketing (Promotion and Facilitation) Act, 1963 prohibits a person eligible as a voter in an individual capacity or representative of the society or trader or a commission agent can cast one vote and only in one class under clause (i), (ii) and (iii). Further, in the present case, the Provisional voters list was published on 22.10.2024 and the Final voters list is already published on 4.11.2024 and the present writ petition is filed on 19.11.2024, i.e. after process of publication of the final voters list is already over. Admittedly, in the provisional voters list, the name of a person who is authorized to vote has been deleted wherein the said name has appeared more than once. As a consequence, the name of the person authorized by the petitioners has been deleted. As per the election schedule, the voting is to be held on 16.12.2024. As mentioned hereinabove earlier, the petitioners have filed the present writ petition more than 2 weeks after the final voters list is published taking an objection to deletion of the name of their authorized nominee from the provisional voters list, which was published on 22.10.2024 and the revised corrected provisional voters list was published on 28.10.2024. 7. The contention of the learned counsel for the petitioners is that the impugned action of the authorized officer is bad in law and in violation of principles of natural justice since no show cause notice or opportunity of hearing has been given before deleting the name of the nominee of the petitioners. Learned counsel for the petitioners has further contended that the action of the authorized officer is based upon misreading and erroneous interpretation of proviso of Section 11(1)(iii). In the present case, the authorized officer has taken suo-motu action in terms of the said proviso. In respect of the interpretation of the said proviso, this Court does not intend to adjudicate the same as the Court is inclined to relegate the petitioners to the statutory alternative remedy available to them in law. 8. It is well settled that where an Act has provided a separate mechanism for resolution and determination of dispute in respect of the matters specified therein and further provided for a machinery or forum for entertaining the dispute, the aggrieved person should pursue his remedy as provided by the statute. 8. It is well settled that where an Act has provided a separate mechanism for resolution and determination of dispute in respect of the matters specified therein and further provided for a machinery or forum for entertaining the dispute, the aggrieved person should pursue his remedy as provided by the statute. The right to vote, contest or dispute relating to election is neither fundamental nor common law right instead a statutory right regulated by the statutory provisions. Therefore, it is not permissible to invoke the writ jurisdiction under Article 226 of the Constitution of India by bypassing the statutory mechanism designed by the Act for the determination of the election dispute. 9. Though a petition under Article 226 is maintainable even when an alternative remedy is available, the powers are to be exercised only in case of extraordinary or special circumstances such as where the order is ultra virus or nullity and/or ex-facie without jurisdiction. The deletion of name in the voters list on the basis of a legal provision cannot be termed as an extraordinary circumstance warranting interference by this Court under Article 226 of the Constitution of India and such question is to be decided in an election petition under Rule 28 of the Rules, 1965. 10. In view thereof, this Court is of the considered opinion that the petitioners ought to be relegated to the alternative remedy under Rule 28 of Rules, 1965. This Court is not inclined to exercise writ jurisdiction under Article 226 of the Constitution of India. The petitioners are relegated to the alternative statutory remedy available under Rule 28 of Rules, 1965. 11. If any dispute is raised by the petitioners, the same shall be adjudicated by the concerned authority on its own merits and in accordance with law. 12. It is made clear that this Court has not gone into the merits of the case and no opinion is expressed thereon. In view of above observations, the present Special Civil Application is dismissed. No order as to costs.