Irfan Mamad Ami Gadhwara vs State Of Gujarat

Vaibhavi D. Nanavati, J

By way of the present writ-application, the writ-applicant prayed for the following reliefs:

“(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order dated 15.11.2021 passed by Authorised Officer rejecting the objection of petitioner for deleting the names of members of managing committee of respondent no.4 society from the voter list of agriculturists constituency for the election of APMC, Vankaner and further be pleased to direct the Authorised Officer to delete the names of members of managing committee of respondent no.4 society from the voter list of agriculturist constituency for the election of APMC, Vankaner for the reasons stated in the Memo of Petition and in the interest of justice;

(B) Pending admission, hearing and final disposal of the above Special Civil Application to stay the execution, implementation and operation of the order dated 15.11.2021 passed by Authorised Officer rejecting the objection of petitioner for deleting the names of of members of managing committee of respondent no.4 society from the voter list of agriculturists constituency for the election of APMC, Vankaner and further be pleased to direct the Authorised Officer to delete the names of members of managing committee of respondent no.4 society from the voter list of agriculturist constituency for the election of APMC, Vankaner for the reasons stated in the Memo of Petition and in the interest of justice;

(C) To grant ad-interim relief in terms of Para-23 (B) hereinabove.

(D) The Hon’ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.”

The brief facts germane for the adjudication of the present writ-application as stated by the writ-applicant are as under:

2.1. The election of APMC, Vankaner was declared by the Director, APMC on 13.10.2021 under Rule-4 of the Gujarat Agriculture Produce Markets Rules, 1965 (hereinafter referred to as ‘the Rules, 1965’ for the sake of brevity). Pursuant to the declaration of the election programme, APMC, Vankaner has prepared voter list as per Section 11 of the APMC Act and forwarded the same to the Authorized Officer – respondent no.3.

2.2. The Authorized Officer published the preliminary voter list on 29.10.2021. After publication of the preliminary voter list, the writ-applicant has submitted his objections against inclusion of names of members of the managing committee of respondent no.4 society on the ground that as per the information of the writ-applicant, some of the members are defaulters and as per the bye-laws of the respondent no.4 society, their names cannot be included in the voter list.

2.3. The respondent no.3 – authorized officer passed an order on 15.11.2021 rejecting the said objections taken by the writ-applicant on the ground that, there is no provision under Section 11(1)(i) of APMC Act to prevent member of the Managing Committee, who is defaulter from voting.

2.4. Being aggrieved by the said communication/ order dated 15.11.2021 passed by the Authorized Officer – respondent no.3 herein, the writ-applicant is constrained to approach this Court by filing the present writ-application with the above-referred reliefs.

3.1. Mr. Bharat T. Rao, learned counsel appearing for the writ-applicant submitted that the respondent no.3 herein erred in coming to the conclusion that the respondent no.3 cannot go beyond the said provision and the respondent no.3 has overlooked the relevant provisions required for the adjudication, which were taken by the writ-applicant.

3.2. Mr. Bharat T. Rao, learned counsel submitted that the writ-applicant had pointed out the certain facts by way of objections that name of the members of the respondent no.4 could not be included in the voter list because they incurred disqualification as per the bye-law no. 8(3) and 39(4) and the society has wrongly sent the names and without undertaking any inquiry under the Act, the authorized officer- respondent no.3 rejected the objections raised by the writ-applicant in a very casual manner.

4.1. Mr. B.S. Patel, learned senior counsel assisted by Mr. Ishan Joshi, learned Assistant Government Pleader appearing for the respondent-Sate relied on the affidavit filed by the respondent no.3 – authorized officer submitted that the present writ-application not be maintainable, in view of the alternative efficacious remedy available to the writ-applicant, which is required to be invoked by the writ-applicant under Rule-28 of the Election Rules. Mr. Patel, learned senior counsel further submitted that the petition is for the inclusion of names of the persons in the voters list and the same cannot be said to be an exceptional circumstances. Mr. Patel, submitted that the writ-applicant has committed fraud by not disclosing the election of the society, in which almost all directors have been elected and the writ-applicant ceased to be the director as per the provision of the Rule-6 of the Rules, 1965.

4.2. Mr. Patel, lastly submitted that there is alternative efficacious remedy available by filing the election petition under Rule-28 of the Rules, and therefore, the present writ- application may kindly be dismissed.

Heard Mr. B.T. Rao, learned counsel appearing for the writ-applicant, Mr. B.S. Patel, learned senior counsel assisted by Mr. Ishan Joshi, learned Assistant Government Pleader appearing for the respondent-State, Mr. Jay Trivedi, learned counsel appearing for the respondent no.4 and Mr. Nilesh R. Koyani, learned counsel appearing for the respondent no.5.

This Court while issuing notice on 04.01.2022, passed the following order, which reads thus:

“1. Heard learned advocate Mr. Bharat. T. Rao for the petitioner and Ms. Dharitri Y. Pancholi, the learned AGP appearing for the respondent – State.

By way of this petition, the petitioners challenge an order dated 15.11.2021 passed by the Authrosied Officer rejecting the objections filed by the petitioner seeking deletion of names of members of the Managing Committee of the respondent No.4 society from the voters list of the agriculturists constituency for the election of APMC, Vankaner and further to direct the Authorised Officer to delete the names of members of Managing Committee of the respondent No.4 society from the voters list of agriculturist constituency for the election of APMC, Vankaner.

Learned Advocate Mr. Rao, at the outset drew the attention of this Court to the election programme duly published on 13.10.2021. He submitted that the primary voters list was published on 29.10.2021. The objections against the primary voters list were to be received within 14 days from the date of publication thereof and after considering the objections, a provisional voters list was to be published. The final voters list is also published on 29.11.2021.

Mr. Rao submitted that the petitioner is a member of the Managing Committee of Titthva Seva Sahakari Mandali Ltd. He submitted that pursuant to the publication of preliminary voters list, the petitioner submitted his objections against inclusion of names of members of Managing Committee of the respondent No.4 society on the ground that some of the members are defaulters and as per the bye laws of the respective societies, their names could not have been included in the voters list.

Mr. Rao, learned advocate thereafter drew the attention of this Court to the judgments reported in 1998 (1) GLR 95 and to judgment reported in 1996(2) GLR 165. Relying on above referred decisions he submitted that the law laid down by the Coordinate Benches of this Court is similar.

Ms. Dharitri Y. Pancholi, the learned AGP appearing for the respondent – State submitted that the impugned order dated 15.11.2021 can be challenged by way of an appeal under Rule 28 of the Gujarat Agricultural Market Committee Rules, 1965.

In an identical matter the Coordinate Bench of this Court passed the interim orders dated 28.12.2021 in the Special Civil Application No.18140 of 2021 and Special Civil Application No.17728 of 2021. The interim directions passed in Special Civil Application No.18140 of 2021 in paragraph- 17 are produced thus:-

“17. Having regard to the same, in the considered opinion of this Court, at this stage, the petitioners deserve to be afforded an opportunity to vote in the election scheduled on 11.01.2022. At the same time, to ensure that such voting does not create any equities in favour of any party, such votes shall be kept by the Authorized Officer in a sealed cover, which would be subject to further order that would be passed by this Court in this regard.17. Having regard to the same, in the considered opinion of this Court, at this stage, the petitioners deserve to be afforded an opportunity to vote in the election scheduled on 11.01.2022. At the same time, to ensure that such voting does not create any equities in favour of any party, such votes shall be kept by the Authorized Officer in a sealed cover, which would be subject to further order that would be passed by this Court in this regard.”

The interim directions passed in Special Civil Application No.17728 of 2021 in paragraph-6 are produced thus :-

“6. Having regard to the discussion here in above, in the prima facie opinion of this Court, equities are required to be balanced hence the petitioners are permitted to cast their votes in the election to the Vankaner, Agricultural Produce Market Committee scheduled on the 11.01.2022 and whereas the votes cast by the petitioners shall be kept in a sealed cover which would be subject to further orders that may be passed by this Court in that regard.”

With a view to balance the equities, in view of this Court, the same direction as referred in the above referred two matters in the present writ application be passed. Accordingly by way of interim arrangement, it is directed that the members of Managing Committee of the respondent No.4 society be permitted to cast their vote. However, the votes shall be kept in sealed cover by the Authorised Officer. It is clarified that the present direction will not create any equities in favour of either of the party and the same shall be subject to the final outcome of the special civil application.

All the contentions that may be taken by both the sides at the time of further hearing of the special civil application are kept open.

Let this matter be listed for hearing on 18.1.2022.

Direct service is permitted.”

POSITION OF LAW:-

The law as regards judicial review in the matters pertaining to election is well settled.

(a) The Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorised Officer and Cooperative Officer (Marketing), reported in 2006 (1) GCD 211 held that the inclusion or exclusion of name in the voters’ list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India. Paragraphs 31, 32 and 33 reads thus :-

“31. On the question of maintainability of petition under Article 226 of the Constitution of India, in our opinion, the law is well settled. Mr Patel, invited our attention to the decision reported in 1988 GLH 430. There the Division Bench, after quoting the judgment of a Full Bench in the case of Ahmedabad Cotton Mfg. Ltd. v. Union of India and Ors. (18 GLR 714) where the principles have been clearly enumerated and held that extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India is very wide, the Court should be slow in exercising the said jurisdiction where alternative efficacious remedy under the Act is available but however, if the impugned order is an ultra vires order or is nullity as being ex-facie without jurisdiction. the question of exhausting alternative remedy would hardly arise.

31.1. In the case of Mehsana Dist. Coop. Sales and Purchase Union v. State of Gujarat (1988 (2) GLR 1060), after following the decision rendered by the Apex Court in the case reported in the case of Gujarat University v. N U Rajguru, (1988 (1) GLR 308), the Court have noted the observations made by the Hon'ble Apex Court as under:-

"there may be cases where exceptional or extraordinary circumstances may exist to justify bye-passing alternative remedies". In the case of Manda Jaganath v. K S Rathnam, reported in AIR 2004 SC 3600, the Apex Court has held after considering the provisions of Article 329(B) of the Constitution of India that "there are special situations wherein writ jurisdiction can be exercised but, special situation means error having the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration."

In the case of Election Commission of India v. Ashok Kumar, reported in 2000(8) SCC page 216, the Apex Court held that the order issued by the Election Commission is open to judicial review on the ground of malafide or arbitrary exercise of powers.

We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/ or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.

32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.

In view of the above discussion, we answer the Reference as under:

i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.

ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.

iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/ or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.”

(b) The ratio laid down by the Division Bench of this Court in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Ltd., vs. State of Gujarat and Others, reported in 2017(2) GLR 902, paragraphs 13 to 16 read thus :-

“13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorised officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorised officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorised officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.

It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all.

14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.

However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of election, it can approach the competent authority by raising an 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 findings recorded either by the learned single Judge or by this Court in this appeal.

Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of.”

In view of the ratio as laid down by this Court as well as Hon’ble Supreme Court the writ-applicant cannot be said to be remedy-less. The writ- applicant can avail statutory remedy of filing a Election Petition after the election is concluded under Rule 28 of the Rules, 1965. Rule 28 of the Rules 1965 reads thus :-

“28. Determination of validity of election .- (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing-

(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and

(b) to the State Government if the election has been conducted by the Director as an Election Officer and

(2) On receipt of an application under sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.”

CONCLUSION:

In view of the settled legal position as is held by the Full Bench of this Court as referred above, more particularly, in view of the fact that the issue pertains to inclusion / exclusion of the voters list of the election of APMC, Vankaner, this Court is not inclined to entertain with the impugned order passed by the respondent no.3 – authorized officer. Moreover, nothing is indicated on facts to make out an extraordinary or special circumstances, so as to warrant immediate interference of this Court by invoking Article-226 of the Constitution of India.

In view of the aforesaid discussion on the ground of alternative remedy, the Court is not inclined to entertain this petition. The observations thus made to deal with contentions raised may not come in way of the petitioner, if the petitioner chooses to avail such alternative remedy.

This Court would relegate the writ-applicant to avail the alternate efficacious remedy by filing the election petition under Rule-28 of the Election Rules, if writ-applicant so desires.

In view of above, the present writ-application stands disposed of. The interim relief granted vide an order dated 04.01.2022 shall stand vacated.