Jaga Seva Sahakari Mandali Ltd. vs State of Gujarat

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Mukesh R. Shah, J.—As common question of law and facts arise and as such in both the petitions the respective petitioners have challenged the inclusion of the names of the members of the Managing Committee of the respondent Nos. 5 to 10 societies in Special Civil Application No. 10952/2014 and respondent Nos. 5 to 11 societies in Special Civil Application No. 10918/2014 in the voters'' list for election to Agriculture Produce Market Committee, Jamnagar [hereinafter referred to as "APMC, Jamnagar"], both these petitions are heard, decided and disposed of by this common judgment and order.

RULE. Shri Dhawan Jayswal, learned AGP waives service of notice of Rule on behalf of respondent Nos. 1 to 4 and Shri V.C. Vaghela, learned advocate waives service of notice of Rule on behalf of respondent Nos. 5 to 11 in Special Civil Application No. 10918/2014. Though served nobody appears on behalf of respondent No. 12.

Shri Dhawan Jayswal, learned AGP waives service of notice of Rule on behalf of respondent Nos. 1 to 4 and Shri V.C. Vaghela, learned advocate waives service of notice of Rule on behalf of respondent Nos. 5 to 10 in Special Civil Application No. 10952/2014.

In the facts and circumstances of the case and with the consent of learned advocate appearing on behalf of respective parties and as the dispute is with respect to the election, both these petitions are taken up for final hearing today.

In both these petitions respective petitioners have challenged the inclusion of the names of the members of the Managing Committee of the respondent Nos. 5 to 11 societies in Special Civil Application No. 10918/2014 and names of the members of the Managing Committee of the respondent Nos. 5 to 10 societies in Special Civil Application No. 10952/2010, in the voters'' list for election to APMC, Jamnagar.

Facts leading to the present Special Civil Applications in nut-shell are as under:

4.1 That the respondent No. 2 herein, Director, Agriculture Marketing and Rural Finance, Gujarat State declared the election of the APMC, Jamnagar and also declared the election programme and appointed respondent No. 4 as Authorized Officer for the election of APMC, Jamnagar. The election programme declared by the respondent No. 2, Director is as under:

4.2 That the Authorized Officer published a preliminary voters'' list as per Rule 7 of the Gujarat Agriculture Produce Market Rules, 1965 [hereinafter referred to as "Rules"] on 03.07.2014 and included the names of the members of the Managing Committee of respondent Nos. 5 to 11 cooperative societies of Special Civil Application No. 10918/2014 and the members of the Managing Committee of the respondent Nos. 5 to 10 cooperative societies of Special Civil Application No. 10952/2014. That as per the election programme declared, last date for submitting the objections against exclusion and/or inclusion of the names in the voters'' list was 17.07.2014. That the respective petitioners raised the objections within the stipulated time against the inclusion of the names of the members of the Managing Committee of the aforesaid societies in the preliminary voters'' list. It appears that it was the case on behalf of the petitioners of Special Civil Application No. 10918/2014 that those societies are not dispensing with agricultural credit and as such they are not undertaking any activities and they are dormant societies. That the petitioner of Special Civil Application No. 10952/2014 had also raised objection against inclusion of names of the Managing Committee of the respondent societies on the ground that the bye-laws of the respective societies in question permitted only 11 members in the Managing Committee, however without amending the bye-laws the societies have included 21 members in the committee only in order to inflate the number of voters in the ensuing election of the market committee. That thereafter vide separate orders dated 22.07.2014 the respondent No. 4-Authorized Officer has rejected the objections of the petitioners raised against inclusion of the names of the members of the Managing Committee of the aforesaid cooperative societies. Hence, the petitioners have preferred the present Special Civil Applications challenging the impugned communications/orders dated 22.07.2014 rejecting the objections of the respective petitioners raised against inclusion of the names of the Managing Committee of the aforesaid cooperative societies.

Shri Bharat T. Rao, learned advocate has appeared on behalf of the petitioners of Special Civil Application No. 10918/2014 and Shri Dipen Desai, learned advocate has appeared on behalf of the petitioner of Special Civil Application No. 10952/2014.

5.1 Learned advocates appearing on behalf of the respective petitioners have vehemently submitted that the impugned orders dated 22.07.2014 rejecting the objections raised by the respective petitioners against inclusion of the names of the members of the Managing Committee of the respective respondent societies are absolutely illegal, most arbitrary and in breach of principles of natural justice.

5.2 It is further submitted by the learned advocate appearing on behalf of the respective petitioners that as such the impugned orders rejecting the objections of the petitioners are non-speaking and non-reasoned orders. It is submitted that while rejecting the objections raised by the respective petitioners by impugned orders, the respondent No. 4 Authorized Officer has considered the replies given by the respective societies, copy of which are not given to the petitioners. It is submitted that therefore as such the petitioners are not aware as to what was represented by the respondent societies. It is submitted that therefore as such when the respondent No. 4 was relying upon the reply submitted by the respective societies, the petitioners ought to have been given the same and ought to have given an opportunity to meet with those replies/documents, if any, submitted by the respective respondent societies. It is submitted that therefore no opportunity has been given to the respective petitioners against the reply submitted by the respective respondent societies. It is submitted that therefore the impugned orders are absolutely illegal and in breach of principles of natural justice. It is further submitted that even the objections raised by the respective petitioners are rejected by respondent No. 4 without giving any opportunity of being heard to the petitioners. It is submitted that as per the decision of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. v. Babulal Jethalal Patel & Ors. reported in 1989(2) GLR 1195 and another decision of the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. v. Director of Agriculture Marketing and Rural Finance & Ors. reported in 1998(1) GLH 95, which came to be confirmed by the Division Bench of this Court, while deciding the objections against the exclusion and/or inclusion of the names in the voters'' list, the Authorized Officer is required to give an opportunity to the affected parties. It is submitted that as the petitioners raised the objections against the inclusion of the names of the members of the Managing Committee of the respective respondent societies and if the objections are to be rejected, in that case, the petitioners objectors can be said to be the affected parties. It is submitted that therefore the impugned orders are absolutely in breach of the principles of natural justice as well as the aforesaid three decisions of this Court.

5.3 It is submitted that as it was found that the Authorized Officers despite the decision of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra) were not following the said decision and they continued to delete the names from the voters'' list without giving an opportunity to the affected persons, even this Court in the reported decision in the case of Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. & Ors. (Supra) had specifically observed that not following the decision of this Court and deleting the names from the voters'' list without giving any opportunity to the affected persons would tantamount to contempt. It is submitted that therefore not only the impugned decision of deleting the names of the members of the Managing Committee of the petitioner society from the voters'' list is illegal, arbitrary and against the principles of natural justice, even the same tantamount to contempt.

5.4 Shri Dipen Desai, learned advocate appearing on behalf of the petitioner in Special Civil Application No. 10952/2014 has further submitted that even the petitioner has not been served with the order dated 22.07.2014 rejecting his objections and as such the petitioner came to know the order dated 22.07.2014 when the copy of the said order came to be produced by the learned AGP during the hearing before this Court. It is submitted that even till date the petitioner has not received the said letter/communication/order dated 22.07.2014. It is submitted that the same reflects the malafide intention on the part of the respondent No. 4-Authorized Officer.

5.5 It is further submitted by learned advocates appearing on behalf of respective petitioners that even the impugned order dated 22.07.2014 are non-speaking and non-reasoned order. It is submitted that this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra) and Prahladbhai Shivram Patel & Ors. (Supra) has specifically observed and held that while deciding the objections under Rule 7 and/or under Rule 8 of the Rules, the Authorized Officer is required to pass a speaking and reasoned order. It is submitted that in the present case no reasons have been assigned while rejecting the objections raised by the petitioners. Therefore, it is requested to quash and set aside the impugned orders rejecting the objections of the petitioners and consequently to direct the respondent No. 4 Authorized Officer to delete the names of members of the Managing Committee of the respective respondent societies. From the voters'' list of the agricultural constituency for the elections of APMC, Jamnagar.

Shri Dhawan Jayswal, learned AGP appearing on behalf of the respective respondent Nos. 1 to 4 and Shri V.C. Vaghela, learned advocate appearing on behalf of respective respondent cooperative societies have tried to oppose the present Special Civil Applications. An affidavit in reply is filed by the respondent No. 4 Authorized Officer as well as on behalf of the respective respondent cooperative societies.

6.1 Shri Jayswal, learned AGP has submitted that after the objections were received from the respective petitioners, the Authorized Officer called for the necessary details from the concerned societies against whom the objections were raised and after verifying the details it was found that the concerned societies are registered cooperative societies and also dispensing the agricultural credits, the names of the members of the Managing Committee of the said societies are included in the voters'' list. It is submitted that as such the concerned respondent societies submitted the necessary information and statement of accounts and on perusing the same it appeared that the said societies are dispensing with the agricultural credits and therefore, their names are included in the voters'' list of the agricultural constituency. It is submitted that thereafter the names of the members of the Managing Committee of the said societies have been included in the provisional voters'' list/final voters'' list. It is submitted that as it was found that the respective petitioners/objectors did not submit any documentary evidences in support of their objections and after verifying the details from the information submitted by the respective cooperative societies, the objections raised by the respective petitioners have been rejected. Therefore, it is requested to dismiss the present petitions.

Shri V.C. Vaghela, learned advocate appearing on behalf of the respective respondent societies has also opposed the present Special Civil Applications by submitting that as such the respective respondent societies are registered cooperative societies dispensing with the agricultural credits and therefore, their names are rightly included in the voters'' list of agricultural constituency. It is submitted that as such the objections raised by the respective petitioners have been considered by the respondent No. 4 Authorized Officer and the Authorized Officer after considering the information and the details submitted by the respective respondent societies and after holding necessary inquiry and having been satisfied with the concerned societies are registered cooperative societies and also dispensing the agricultural credits, has rightly rejected the objections raised by the respective petitioners and has rightly included the names of the members of the Managing Committee of the concerned societies.

7.1 Now, so far as the objection raised by the petitioner of Special Civil Application No. 10952/2014 that the bye-laws of the societies permitted only 11 members in the Managing Committee and without amending the bye-laws the society included 21 members in the committee only in order to inflate the number of voters, it is submitted by Shri Vaghela, learned advocate appearing on behalf of the respective cooperative societies that right from the very beginning in the bye-laws it has been specifically mentioned that there shall be 11 to 21 members in the Managing Committee. It is submitted that therefore the said allegation/objection has no substance. Therefore, it is requested to dismiss the present Special Civil Applications.

Heard learned advocates appearing on behalf of respective parties at length.

At the outset it is required to be noted that what is challenged in the present Special Civil Applications is the impugned order/communications dated 22.07.2014 rejecting the objections raised by the respective petitioners against inclusion of the names of the members of the Managing Committee of the respective respondent cooperative societies in the voters'' list of agricultural constituency of APMC, Jamnagar. That the respondent No. 4 prepared a preliminary voters'' list of agricultural constituency as per Rule 7 of the Rules including the names of the members of the Managing Committee of the respective respondent societies. That the respective petitioners submitted the detailed objections within the stipulated time as provided as per the election programme. The petitioners of Special Civil Application No. 10918/2014 raised a specific objection that the respective concerned cooperative societies are not dispensing the agricultural credits and that they are not undertaking any activities and they are dormant societies. The petitioner of Special Civil Application No. 10952/2014 raised a specific objection that bye-laws of the society permit only 11 members in the Managing Committee, however without amending the bye-laws, the societies have included 21 members in the committee only in order to inflate the number of voters in the ensuing election of the market committee. That by impugned orders dated 22.07.2014, the respondent No. 4 has rejected the said objections. It is required to be noted that even the petitioner of Special Civil Application No. 10952/2014 is not even communicated and served with the order dated 22.07.2014 rejecting his objection till date and he came to know the same only when the order dated 22.07.2014 was placed on record by the learned AGP at the time of hearing of the present Special Civil Application. The aforesaid allegation of non-communication and service of the order dated 22.07.2014 has not been denied by the respondent No. 4. The aforesaid shows the conduct and malafide intention on the part of the respondent No. 4-Authorized Officer.

8.1 Be that as it may, even otherwise the impugned orders are in breach of principles of natural justice. From the impugned orders passed by the respondent No. 4 and even so specifically mentioned in the affidavit in reply filed by the respondent No. 4, it appears that while rejecting the objections raised by the respective petitioners, the respondent No. 4 has considered the details/materials/replies submitted by the respective concerned cooperative societies. However, admittedly, the respective petitioners are not given any opportunity to meet with the material/details/information given by the respective concerned cooperative societies and the materials/details/information supplied by the respective concerned cooperative societies have been considered behind the back of the petitioners. Even while considering/rejecting the objections raised by the respective petitioners, the petitioners have not been given any opportunity of being heard. If the opportunity of being heard would have been given to the petitioners, the petitioners could have satisfied the respondent No. 4 that the concerned cooperative societies are not dispensing the agricultural credits and they are not functioning and they are dormant societies.

8.2 Identical question came to be considered by the learned Single Judge of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra) while considering sub-Rule (1) of Rule 8 of the Rules. It is held by the learned Single Judge that what sub-Rule (1) of Rule 8 of the Rules requires is that the Authorized Officer has to publish the preliminary list of voters and fix the date for inviting the objections. After receiving applications for amendment/objections, as they are often described, he has to republish the said list along with the proposed amendment, alterations or deletions and invite objections from the persons who are likely to be adversely affected by the said proposed amendment, alterations or deletions. It is further observed that inviting such objections is really in the nature of a hearing to be given to the persons who are likely to be affected thereby. It is further observed that this being the requirement of the principles of natural justice, it has to be read in sub-Rule (1) of Rule 8 and keeping that objection in mind it will have to be held that after the second publication of the voters'' list, what is required to be done by the Authorized Officer is to hear the persons likely to be affected by the proposed amendments, alterations or deletions. It is further observed in the said decision that he cannot receive or entertain fresh applications for additions, alterations or deletions or fresh objections in that behalf. The aforesaid decision came to be considered by the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. (Supra). In the case before the learned Single Judge the names were deleted from the voters'' list by the Authorized Officer without giving any opportunity to them and the learned Single Judge considered the provisions of sub-Rule (1) of Rule 8 and sub-Rule (1a) of Rule 8 of the Rules. After considering the decisions of the learned Single Judge in the case of Desai Dharamsinhbhai Taljabhai & Ors., the learned Single Judge in paras 12 and 13 has observed as under:

"12. A conjoint reading of Rule 8(1) and Rule 8(2) also supports this conclusion. Sub-rule (1) requires the Authorised Officer to give a notice while publishing the preliminary voters'' lists, for making applications to him for amendment of lists within 14 days from the date of publication of the notice. Thus, the Authorised Officer has to prescribed the last date before which applications for amendment can be made Applications for amendment of lists of voters are thus required to be made within the prescribed time and the Authorised Officer would have no authority of law to entertain applications received after that date. Sub-rule (2) then requires the Authorised Officer to decide those applications and cause to be prepared and published a final list of voters. It does not prescribe any time limit within which that process has to be completed but final list has to be prepared atleast thirty days before the date fixed for nomination of candidates for the election. It is therefore, open to the Authorised Officer to decide such applications, after further inviting objections to those applications from persons likely to be adversely affected and then decide the same. But, in any case, he will have no authority to invite or entertain fresh applications for amendment of the list of voters.

In my opinion, on the interpretation of sub-rules (1) and (2) of Rule 8, the contention raised on behalf of the contesting respondents that the qualifying date for the purpose of determining the eligibility of a person to be enrolled as a voter is the date on which the final list is published cannot be accepted. No doubt, the learned Single Judge of this Court did accept that contention while deciding Special Civil Application No. 5620 of 1985. As I am taking a contrary view, it would have become necessary for me to refer the matter to a Division Bench but for the fact that the decision rendered by the learned Single Judge in that case was challenged in the Letters Patent Appeal No. 382 of 1985 and the Letters Patent Bench allowed the appeal, set aside the judgment of the learned Single Judge and dismissed the Special Civil Application on a different ground and did not go into question as to which is the correct qualifying date for the purpose of determining the eligibility of a person to be enrolled as a voter."

It is required to be noted at this stage that as it was felt by the learned Single Judge that despite the decision of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra), the Authorized Officers were deliberately ignoring the said decision and were deleting the names from the voters'' list without giving any opportunity to the affected persons whose names were sought to be deleted, in para 23, the learned Single has observed as under and has directed the Director to issue a circular to all the persons who are to work as Authorized Officers to follow the law laid down by this Court and the learned Single Judge also observed that if they flout the law laid down by this Court, that act on their part would amount to contempt of Court.

"23. It is also necessary to mention here other provisions of the said Rules of 1965. Under Rule 10, the respondent no. 1 has to declare the election under sub-rule (1) and under sub-rule (2) of Rule 10, he has to fix the election programme. I personally feel that when the respondent no. 1 is to exercise powers under this rule 10, he must declare the election programme in such a manner that if any person is aggrieved by the decision of the authorised officer regarding his illegal omission or deletion in the voters'' list to have recourse to law. As stated earlier, the Rules nowhere make any provision for providing an appeal or Revision against the order of the authorised authority. Therefore, in these circumstances, when the authorised officer is to decide the question of either inclusion or omission of voters from the voters'' list, a heavy duty is cast on him to pass a detailed speaking order after giving an opportunity to the persons of being heard and that has been also observed earlier by this Court in the case of 1989(2) GLR, 1195. But it seems that the authorised officers are deliberately ignoring the said decision of this Court. Therefore, it is expected of the respondent no. 1 to bring to the notice of all the persons who have to work as authorised officer the interpretation of Rule 8 in that judgment of this Court and to direct them to act accordingly. Because this deliberate activity on the part of authorised officers to ignore the decision of this Court is unnecessarily flooding this Court with petitions. I would therefore, direct the respondent no. 1 to issue a circular to all the persons who are to work as authorised officer to follow the law laid down by this Court and I also make it very clear that if they flout the law laid down by this Court, that act on their part will amount to contempt of Court. In the present situation of political parties, a heavy duty lies on the Executives to act according to law and not to dance to the tunes of politicians. In the instant case, I fail to understand as to how respondent no. 3 could delete the names of voters after he had published the preliminary list on 24.10.97 as well as revised list on 12.11.97 and his further claim that it was not necessary for him to give any hearing the persons whose names were being deleted. As stated earlier, when the respondent no. 1 has to fix the programme of election, he should arrange the said programme in such a manner that there will be sufficient time for the parties who are likely to be affected by the decision of the authorised officer to approach the Court in case if the orders passed against them happens to be illegal, contrary to the provisions of law and without jurisdiction. He has got sufficient time and opportunity as provided by Rule 10 to arrange election programme in that matter."

The said decision of the learned Single Judge in the case of Prahladbhai Shivram Patel & Ors. (Supra) has been confirmed by the Division Bench of this Court in the case of Mehsana District Co-operative Purchase and Sales Union Ltd. Vs. Dhadhusan Beej Utpadak, Rupantar Ane Vechan Karnari Sahkari Mandali Ltd. and Others, .

8.3 It is also required to be noted that as such the petitioner of Special Civil Application No. 10952/2014 also raised a specific objection that as per the bye-laws, number of members in the Managing Committee would be 11, however without getting the bye-laws amended by the appropriate authority, they have included 21 members in the Managing Committee only with a view to inflate the voters in the voters'' list of agricultural constituency. From the impugned order it appears that the same has not been dealt with at all. Even in the affidavit in reply nothing has been mentioned by the respondent No. 4 that infact the respondent No. 4 considered the said objection and/or hold any inquiry. It also does not appear that any bye-laws as approved by the appropriate authority was produced by any of the cooperative societies. On the contrary in paragraph 6 of the affidavit in reply the respondent No. 4 has stated that so far as the allegations and averments made in paras 2.8 to 2.10 are concerned, he has not comments to offer. It appears that thus without application of mind on the aforesaid objection raised by the petitioner of Special Civil Application No. 10952/2014 and mechanically the respondent No. 4 has rejected the objection raised by the petitioner of Special Civil Application No. 10952/2014. On perusal of the record produced by the respondent No. 4 it appears that as such none of the concerned cooperative societies produced any material more particularly the approved bye-laws of the concerned cooperative society. Therefore, it is not appreciable how and on what basis the respondent No. 4, the Authorized Officer rejected the objections raised by the petitioner of Special Civil Application No. 1952/2014. As observed hereinabove and which has not been denied by the respondent No. 4, even the communication/order dated 22.07.2014 rejecting the objection raised by the petitioner of Special Civil Application No. 10952/2014 was not communicated/send/served upon the petitioner till the same came to be produced by the learned AGP, during the hearing of the present petition. Thus, the impugned order/communication dated 22.07.2014 is absolutely illegal, malafide, arbitrary and against the principles of natural justice and more particularly the decisions of this Court in the case of Desai Dharamsinhbhai Taljabhai & Ors. (Supra), Prahladbhai Shivram Patel & Ors. (Supra) and Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. & Ors. (Supra), which cannot be sustained and the same deserves to be quashed and set aside and consequently the inclusion of the names of the members of the Managing Committee of the concerned respondent cooperative societies in the provisional voters'' list/final voters'' list of the agricultural constituency of APMC, Jamnagar also deserve to be quashed and set aside and the matters are to be remanded to the Authorized Officer to decide the objections raised by the petitioners against inclusion of the names of the members of the Managing Committee of the respondent cooperative societies in the preliminary voters'' list of agricultural constituency of APMC, Jamnagar, afresh and after giving an opportunity of being heard to all affected parties, including petitioners.

In view of the above and for the reasons stated above, both the petitions succeed. Impugned orders dated 22.07.2014 in both the petitions rejecting the objections raised by the respective petitioners, raised against inclusion of the names of the members of the Managing Committee of the concerned respondent cooperative societies in the preliminary voters'' list of agricultural constituency of APMC, Jamnagar are hereby quashed and set aside. Consequently, the inclusion of the names of members of the Managing Committee of the respondent societies in the provisional voters'' list/final voters'' list is also quashed and set aside. The matters are remanded to the Authorized Officer by directing the Authorized Officer to take a decision afresh on the objections raised by the respective petitioners and after giving an opportunity to the respective petitioners as well as the concerned respondent cooperative societies and after furnishing to the petitioners, the copies of the material/reply/details submitted by the respective concerned cooperative societies submitted in response to the objections raised by the respective petitioners. Any material/details/replies submitted by the respective cooperative societies, submitted against the objections raised by the respective petitioners to be supplied to the respective petitioners on or before 26.08.2014 as agreed by the learned advocate appearing on behalf of the respective petitioners, and the Authorized Officer shall hear the respective petitioners and the concerned respective cooperative societies on 28.08.2014 on the objections raised by the respective petitioners as agreed by the learned advocate appearing on behalf of the respective parties and thereafter the Authorized Officer to pass an appropriate speaking and reasoned order on the objections raised by the respective petitioners, on or before 30.08.2014. However, it is made clear as agreed by the learned advocate appearing on behalf of the respective parties that the Authorized Officer shall consider only those objections/replies to the objections and the material produced along with the same only. In the facts and circumstances of the case, in the manner in which the Authorized Officer has acted and even tried to see that his decision dated 22.07.2014 is not communicated and served upon the objector which speaks for itself, we are of the opinion that present Authorized Officer cannot be continued to function as Authorized Officer and therefore, in the larger interest and with a view that election is conducted absolutely in fair manner, the Director, respondent No. 2 may change the Authorized Officer. Shri Jayswal, learned AGP has stated at the Bar that under the instructions from respondent No. 2, who is personally present in the Court, that in the larger interest and in view of the aforesaid controversy and even considering the conduct on the part of the respondent No. 4, present Authorized Officer shall be changed/removed and the new Authorized Officer shall be appointed by 22.08.2014. Rule is made absolute to the aforesaid extent in each of these petitions, however with cost which is quantified at Rs. 5000/- each to be borne by the respondent No. 4 personally, to be deposited with the Registry of this Court within a period of two weeks from today and on such deposit the Registry to transmit the same to Gujarat State Legal Services Authority.