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Judgment
S.B. Majmudar, J.—In this petition, two co-operative societies through their respective Chairman have challenged the general elections to
agricultural produce market committee, Varahi, dist. B''kantha from agriculturists'' constituency as contemplated by Section 11(1)(i) of the Gujarat
Agricultural produce Markets Act, 1963, (hereinafter referred to as ''the Act''). The present petition is filed under Article 226 of the Constitution of
India.
In order to appreciate the grievance of the petitioners, it is necessary to note a few relevant facts leading to the present petition. The petitioners
claim to be Seva Sahkari Mandalis falling under the category of co-operative societies dispensing agricultural credit in the Varahi market area in
Santalpur taluka of Banaskantha district. The petitioners are duly registered under the provisions of the Co-operative Societies Act, 1961.
Respondent No. 4 herein is agricultural produce market committee duly registered under the said Act. it is also required to function as per the
statutory provisions of the Act and the rules framed thereunder which are named and styled as the Gujarat Agricultural Produce Markets Rules,
1965 (hereinafter referred to as ''the Rules''). The term of the 4th respondent was to expire in 1980. As per Section 10(1) of the Act, every
market committee shall be a body corporate by such name as the Director may specify by a notification in the official gazette. As the term of the
4th respondent was coming to a close, general elections were required to be held as provided by Section 15 of the Act. The petitioners-societies
claim to be entitled to vote at the said general elections to 4th respondent from the agriculturists'' constituency as provided by Section (1) (i) of the
Act which lays down that ""Every market committee shall consist of the following members, namely (i) 8 agriculturists who shall be elected by
members of managing committees of co-operative societies (other than co-operative marketing societies) dispensing agricultural credit in the
market area."" According to the petitioners, as they were co-operative societies dispensing agricultural credit in the market area of the 4th
respondent, they were entitled to vote at the ensuing general elections for electing 8 agriculturists from that constituency to be members of the
proposed newly constituted market committee. According to the petitioners, formerly general elections of 4th respondent were to be held
somewhere in beginning months of 1980, but thereafter the said elections were postponed. The Director of Agriculture Marketing and Rural
Finance, Gujarat State, respondent No. 1 herein subsequently fixed fresh date of general elections to respondent No. 4 committee and the said
date was fixed as on 15-2-1981 and for that purpose, time table laying down the various stages leading to the general elections was duly published
by the first respondent. The contention of the petitioners is that as per the provisions of the relevant election rules, the authorised officer had to
inform the concerned voters like the petitioners to communicate full names of the members of their managing committees with the place of
residence of each member to the authorised officer so that he can prepare provisional voters'' list. According to the petitioners, the authorised
officer who is present respondent No. 3 did not inform the petitioners about the last date by which they were to send details of names of their
managing committee members as required by Rule 7 (1) of the rules, with the result that the petitioners were deprived of the opportunity to send
this information to the authorised officer and as a corollary thereof, names of the managing committee members of the petitioner-societies did not
get included in the provisional voters'' list or for that matter in final voters'' list as prepared by the authorised officer under the provisions of the
relevant rules. Consequently, the members of the managing committees of the petitioner-societies were deprived of their right of franchise which
otherwise they would have exercised as voters for electing 8 agriculturists from the agriculturists'' constituency as laid down by Section 11(1)(i) of
the Act. The petitioners further state that the date for filing up nomination forms was fixed by the Director as 1-2-1981 while the date of scrutiny of
the forms was fixed on 3-2-1981. The last date for withdrawal of nomination forms was fixed as 6-2-1981. That bv that time, various agriculturists
in the taluka who could have contested could not fill up their nomination forms as per the aforesaid time sche-dule as on the date fixed for filling up
the nomination forms that is on 1-2-1981, elections were held in Santalpur taluka for electing members to the Taluka Panchayat and District
Panchayat. The result was that for 8 seats of agriculturists, only 8 candidates effectively offered their nom''nation forms and in any case on 6-2-
1981, which was the last date for withdrawal of nomination forms, only 8 agriculturists remained in the field contesting for 8 seats. Therefore, there
was no contest and all these 8 candidates who are present respondents Nos. 5 to 12 were declared elected un-contested as per the provisions of
Rule 18 (2) of the rules from the agriculturists'' constituency.
3 to 5. xx xx xx
Miss K. M. Shah, learned Advocate for the petitioners raised the following contentions in support of the petition.
(1) As pef Rule 7 (1) (i) of the rules, the authorised officer was duty bound to inform the petitioner-societies to communicate to him the full names
of the members of the managing committees of the petitioner-societies so that the petitioner-societies could send those names to be included in the
provisional voters'' list to be prepared under Rule 5 of the rules. She submitted that in the present case, even though the authorised officer issued a
circular dated 14-11-1980 a copy of which is annexed as An-nexure ''A'' to the petition which purports to have been addressed to all agricultural
credit societies working in Santalpur taluka, so far as the petitioner-societies, and also five other societies whose names are mentioned in para 6 of
the petition, are concerned, they were never informed of or served with such circular. Consequenly, they never knew that they had to send names
of the members of their managing committees by a particular time to get their names included in the voters'' list for being voters at the agriculturists''
constituency as required by Section 11 (11 (i) of the Act. Consequently, the provisional voters'' list as prepared by the authorised officer suffers
from a oatent error of law. Final voters'' list equally suffers from the same infirmity, and hence, the alleged uncon-tested elections of respondent
Nos. 5 to 12 from the agriculturists'' constituency was liable to be quashed and set aside as null and void on account of these vital technical flaws
on the part of the authorised officer.
(2) As a result of the aforesaid infirm-itv in following the mandatory procedure of Rule 7, all the subsequent stages of election got vitiated and
hence, the result of the election has been materially affected, with the consequence that the election has been rendered a nullity.
(3) It was further contended bv Miss Shah that as per proviso to Rule 7 (1) (i) of the rules, the date to be fixed for inviting the concerned co-
operative societies dispensing agricultural credit in the market area to communicate full names of the managing committee members was required to
be so fixed as not to be later than 60 days from the date of the general elections to the 4th respondent committee and in the present case, this
statutory provision of the proviso had been violated by the first respondent as well as by the third respondent and hence the election to the 4th
respondent committee from agriculturists'' constituency was null and void on this additional ground.
7 to 11. xxxx
So far as the first contention raised by Miss Shah is concerned, it centres round the correct interpretation of the relevant rules. Rule 4 of the
rules provides for fixation of date of election and states that wherever a general election to a market committee or a by-election u/s 15 is to be
held, the Director shall, by an order in writing, fix a date of such election and publish such order by affixing a copy thereof in the office of the
market committee and at a conspicuous place in the principal market yard in the market area. It is, therefore, obvious that a statutory duty is
enjoined upon the Director to pass an order in writing fixing the date of general election or bye-election as the case may be and the said order is to
be published in manner prescribed bv Rule 4. Moment this is done, Rule 7 springs into action. It states -
(1) Whenever general election to a market committee is to be held -
(i) every co-operative society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing
committee together with the place of residence of each member;
(ii) The market committee shall communicate the full names of the traders holding general licences in the market area together with the place of
residence of each such trader; and
(iii) every co-operative marketing society shall communicate the full names of the members of its managing committee together with the place of
residence of each such member. To the authorised officer before such date as the Director may by order fix in that behalf"".
It is, therefore, obvious that once the date of general election to the market committee is duly published under Rule 4, the concerned co-operative
society dispensing agricultural credit in the market area has to supply requisite information to the authorised officer and that has to be done before
the specified date for the purpose as may be fixed by the Director by his order. It is true that so far as such order to be passed bv the Director is
concerned, no provision for its publication has been laid down in Rule 4. as Rule 4 merely deals with publication of the order passed by the
Director in writing fixing date of election. The said rule is silent about the publication of order of the Director fixing the date by which the concerned
society dispensing agricultural credit in the market area has to supply the requisite data to the authorised officer. But it is obvious that no order
passed by the officer and which requires compliance bv the concerned party can be permitted to remain in secret confines of the files of such
officer. In order that such requisition by the Director is properly complied with by the parties for whom it is meant, such order has got to be
conveyed to them. It is, therefore, obvious that while fixing the date of general election or even subsequently, the Director exercising his power
under Rule 7 has to pass an order fixing the date by which the concerned co-operative societies dispensing agricultural credit in the market area
have to supply requisite information as required by Rule 7 (1) (i) to the authorised officer. Such an order has got to be communicated to the
concerned societies by any well recognised permissible mode. In the present case, it is Miss Shah''s contention that the said date as fixed under
Rule 7 by the Director was tried to be communicated to the concerned societies by the authorised officer, respondent No. 2 herein bv issuing a
circular dated 14-11-1980 a specimen whereof is annexed at Annexure ''A'' to the petition. A mere look at the said circular shows that copies of
the said circular were sent to all the co-operative societies dispensing. agricultural credit in the market area in Santalpur taluka as the very first
endorsement below the caption ""copies sent with compliments'' at Annexure ''A'' shows. But Miss Shah''s contention is that even though this
circular was meant to be sent to all the co-operative societies dispensing agricultural credit in the market area in Santalpur taluka, so far as the
petitioner-societies are concerned, they were not called upon by the 2nd respondent to supply details. In short, her contention is that even though
efforts were made by respondent No. 2 to serve the circular at Annexure ''A'' to the concerned societies, so far as the petitioner-societies were
concerned, they were not served the aforesaid circular, meaning thereby that the circular did not reach the petitioners'' end. The aforesaid
averments made in para 6 of the petition have stood uncontroverted on the record of this case, as the respondents have not filed any affidavit in
reply. It must, therefore, be taken as an undisputed fact on the record of this case that so far as the petitioners are concerned, they were not served
with copies of the circular at Annexure ''A''. Even the letter written by one of the petitioner-societies on 3-1-1981 addressed to the District
Registrar of co-operative societies, Banas-kantha, Annexure ''B'' shows that a grievance was made to the aforesaid effect by the concerned
societies. But even taking this fact as well established fact, the question remains whether it has any nullifying consequence on the result of the
election. The only challenge on this score in the petition proceeds on the basis that as per Rule 7 a mandatory dirty is cast on the authorised officer
to invite the concerned co-operative societies to communicate full names of the members of their managing committees so that these names can be
included in the voters'' list which the authorised officer has to prepare as per Rule 7 (2) read with Rule 5 of the rules. Be it noted that it is not the
contention of the petitioner societies that the date fixed bv the Director for requiring the concerned societies dispensing agricultural credit in the
market area to communicate the data as for Rule 7 (1) (i) was not conveyed to the concerned societies or was otherwise not known to them. The
case of the petitioners is that there was a mandatory duty on the part of the authorised officer to inform the concerned co-operative societies to
send the data as required under Rule 7 (11 (i) by the time fixed by the Director. In the settings of Rule 7 (1), the said contention appears to be
misplaced. Rule 7 (1) nowhere enjoins upon the authorised officer to call upon the co-operative societies dispensing agricultural credit in the
market area to communicate to him full names of the members of the managing committee as required by Rule 7 (1) (i). On the contrary, reading
Rule 4 in juxtaposition with Rule 7 (1), it appears clear that the moment date of general election is published as per Rule 4, the concerned co-
operative societies which are expected to get knowledge of the date of general election as per the publication made under Rule 4, have to
communicate full names of their members as laid down by Rule 7 (11 (i). It is not for the authorised officer to call upon them to furnish such names
by a particular time. It is, however, to be noted that so far as the date before which the said communication is to be made to the authorised officer
by the concerned societies as per Rule 7 (1) (i) is concerned, it has got to be fixed by the Director and the said date must be brought to the
knowledge of the concerned societies. It is not possible to agree with the submission of Mr. Zaveri for respondent No. 1 that it would be due
compliance with Rule 7 (1) by the Director if he fixes the last date before which the concerned societies have to communicate full names of their
managing committee members to the authorised officer and that such order need not be brought to the notice of the societies by the Director. As
already observed by me earlier, the said order is required to be complied with by third parties and before they can be called upon to comply with
the said order, they must know the last date fixed by the Director for the purpose. Thus, it would be for the Director to fix such date bv an order
as required by Section 7 (1) of the rules and it would be for him to devise proper machinery by which the said order is communicated to the
concerned societies. But so far as the authorised officer is concerned, there does not appear to be any statutory obligation on his part
independently of the directions of the Director to invite the concerned co-operative societies dispensing agri-cultural credit to send to him the
names of their managing committee members. To recapitulate, it is not the contention of the petitioner-societies that the Director failed to discharge
his statutory obligation of bringing his order fixing the date for communication of the names of the managing committee members of the co-
operative societies to the knowledge of the petitioner societies, instead, their contention is that the authorised officer was duty bound to do so and
as he failed to do so, the result of the election is materially affected. Even leaving aside the question whether the result of the election is materially
affected or not, which will be examined a little later by me, so far as the first contention of Miss Shah is concerned, it must be rejected only on the
limited ground that in the settings of Rules 4 and 7. no statutory duty is cast on the authorised officer by rules themselves to invite the concerned
societies dispensing agricultural credit in the market area to communicate to him the full names of the members of their managing committees so that
he can prepare the list of voters wherein he can include their names. Moment the concerned societies come to know about the date of general
election as fixed by Rule 4 and moment they come to know the date fixed by the Director as per Rule 7, for communication of the names of their
managing committee members for inclusion in the voters'' list to be prepared by the authorised officer, it is for the concerned societies to move in
the matter. They are not expected to wait for an invitation from the authorised officer to despatch such names. This type of a statutory obligation on
the part of the authorised officer cannot be culled out from the express language of Rule 7. The only obligation which has been cast on the
authorised officer under Rule 7 (2) is to the effect that within 7 days from the date fixed under the said Rule 7 by the Director for the purpose of
communication of the name of the managing committee members by the concerned societies, the authorised officer has to cause to be prepared the
list of voters as required by Rule 5 on the basis of the information supplied to him by such societies and if necessary, he can make such inquiry as
he may think fit. Thus, the authorised officer''s role comes into action after he is supplied all the necessary data by the concerned societies and
within 7 days of the date fixed for receipt of such data, he has to start preparation of provisional voters'' list. In view of the aforesaid clear
provisions of Rule 7, it is not possible to agree with Miss Shah that Rule 7 casts an obligation on the authorised officer to invite the concerned
societies to send names of the members of their managing commit-tees to be included in the provisional list of voters. As already seen earlier, the
obligation of the Diretor to fix a date for calling upon the concerned societies to send the aforesaid data to the authorised officer concerned and to
communicate such date to the concerned societies can easily be culled out from the settings of Rule 7. When the petitioner-societies have not
contended that the Director has failed to discharge his statutory obligation under Rule 7, I need not dilate on this aspect any further. However the
first contention of Miss Shah seeking to cast a statutory obligation on the authorised officer to inform the concerned societies and to invite them to
send the names of their managing committee members has got to be repelled on the express language of Rule 7.
But even otherwise, it appears clear that the petitioners cannot advance their case an inch further even on the assumption that the authorised
officer ought to have seen that the circular issued by him did reach the petitioners'' end. In the background of the pleadings between the parties, it
may be taken for granted for the purpose of this petition that the circular at Annexure ''A'' in fact did not reach the petitioners. But that by itself is
neither here nor there. The only effect of the aforesaid fact is that the petitioners-societies did not know the last date by which they had to
communicate the names of their managing committee members to the authorised officer for being included in the list of voters. But they had still
locus poenitentiae under Rule 8. It provides -
(1) As soon as a list of voters is prepared under Rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the
market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose
name is not entered in the list of voters and who claims that his name should be entered therein Or any person who thinks that his name Or the
name of some other person has been wrongly entered therein or has not been correctly entered, may within fourteen days from the date of the
publication of the notice, apply to the authorised officer for an amendment of the list of voters"".
Sub-rule (2) of Rule 8 provides -
If any application is received under Sub-rule (1), the authorised officer shall decide the same and shall cause to be prepared and published the
final list of voters after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final
list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election.
The aforesaid Rule 8 makes it clear that moment the authorised officer prepares provisional list of voters, he has to publish it in the manner
provided by Rule 8. That publication would be the necessary notice to the concerned parties who have anything to say about the legality of the said
list. If the petitioners'' contention is that they could not send the names of their managing committee members to the authorised officers because
circular at Annexure ''A'' did not reach them and even accepting their contention to be true in the background of the pleadings between the parties,
the petitioners had ample opportunity under Rule 8 to apply to the authorised officer to get the names of their managing committee members
included in the provisional voters'' list on the ground that these names were wrongly left out while preparing the provisional voters'' list. It is not the
case of the petitioners that the authorised officer had not followed the legal requirements of Rule 8 and had not published the provisional voters'' list
in the manner required by Rule 8. Even otherwise, the presumption u/s 114 of the Evidence Act can arise in such a case, therefore, it is obvious
that the petitioners were negligent. They never cared to get inspected the provisional voters'' list prepared by the authorised officer. Otherwise,
they would have immediately detected the flaw in the provisional voters'' list which according to them did not include the names of their managing
committee members and they could have promptly applied within 14 days for correction of the voters'' list as per Rule 8 (1), and if they had done
so, the authorised officer was duty bound under Rule 8 (2), to get provisional voters'' list duly corrected. This locus poenitentiae available to the
petitioners was lost by them due to their own negligence. Thereafter, thev cannot now turn round and make a grievance to the effect that because
of non-communication of the date fixed for forwarding names of the managing committee meni-hers to the authorised officer under Rule 7 (1), thev
could not get these names included in the voters'' list prepared at the end of the authorised officer, if at all, eny one is to be blamed for this predica-
ment, the petitioners themselves are to be blamed. For their negligence, they cannot hold others responsible and cannot urge on that ground that
the result of the election should be set aside. The names of the managing committee members of the petitioner-societies did not find place in the
final list prepared by the authorised officer only because the petitioner-societies were negligent in the matter and did not comply with the
requirements of Rules 8 (1) and 8 (2) and lost the opportunity granted to them by these provisions. Even on that ground, the petitioners cannot be
permitted to challenge the result of the election on the allegation that there was any technical law or procedural error at the end of the authorised
officer in complying with Rule 7 of the rules.
That takes me to the consideration of the second contention raised by Miss Shah for the petitioners. She submitted that if her first contention is
accepted, and if it is held that the authorised officer had committed breach of the mandatory duties cast upon him by Rule 7 and as a result, the
petitioners were deprived of their opportunity to get the names of the managing committee members included in the final voters'' list, it must be held
as a logical corollary that these voters lost an opportunity to exercise their franchise in the election and consequently, the result of the election is
materially affected. As submitted by Miss Shah, in all 67 such voters who were managing committee members of 7 agricultural credit co-operative
societies in Santalpur taluka did not know about the issuance of the circular at annexure ''A'' and could not communicate the names of their
managing committee members to the authorised officer for getting them included in the voter''s list. This contention of Miss Shah assumes that there
was any procedural error or technical flaw at the end of the authorised officer in preparing, the voters'' list. I have already shown above while
discussing point No. 1 that in fact, there was no such technical error or flaw on the part of the authorised officer in preparing the final voters'' list
and the error if any, in preparation of the final voters'' list squarely rests at the doors of the petitioner-societies. Hence, strictly speaking,
consideration of the second contention does not arise for decision. But even assuming that it arses and even accepting for the sake of argument that
there was any procedural flaw on the part of the authorised officer in preparing the final voters'' list as a result of which the managing committee
members of the petitioners societies lost their right of franchise, it is still to be seen whether the result of the election from the agriculturists''
constituency is in any way thereby materially affected. It is obvious that if the result is not materially affected, it cannot be set aside merely on the
ground of such alleged technical flaw in the preparation of the voters'' list. u/s 11 of the Act, constitution of market committee has been provided
for. Sub-section (1) of Section 11 provides:--
(1) Every market committee shall consist of the following members, namely:--
(i) eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative marketing
societies) dispensing agricultural credit in the market area"".
We are not concerned with other constituencies. So far as agricultural constituency is concerned, 8 agriculturists can get elected to the market
committee, from the said constituency and for that, electoral college consists of representatives of marketing committees of co-operative societies
dispensing agricultural credit in the market area and which are other than marketing societies. The petitioners claim to be such co-operative
societies dispensing agricultural credit in the market area and contend that the members of their managing committees could have legitimately been
included in the electoral college of voters who could have voted for candidates contesting for the seats of 8 members and could have exercised
their franchise for electing them to the market committee. Sub-section (ii) of Section 2 defines ''agriculturist'' to mean ""a person who ordinarily by
himself or who by his tenants or hired labour or otherwise is engaged in the production or growth of agricultural produce, but does not include a
trader or broker in agricultural produce although such a trader or broker may also be engaged in the production or growth of agricultural produce"".
Reading Section 11(i)(i) with Section 2(ii), it is obvious that any agriculturist who answers the requirements of Section 2(ii) can contest for one of
the 8 seats of agriculturists from the agriculturists'' constituency and for getting elected therefrom to the market committee. It is not necessary for
such an agriculturist to be a member of the managing committee of the concerned co-operative society. Even though he is not such a member and
even though he is not a voter included in the electoral college envisaged by Section 11(1)(i), if he is an agriculturist, he can contest the election from
that constituency, only requirement to be a candidate from this constituency is that he should be an agriculturist as required by Section 2(ii). As per
Section 3, when a question arises whether Or not any person is an agriculturist for the purposes of the Act, the Director shall decide the matter,
subject to an appeal to the State Government u/s 3(2). The aforesaid statutory provisions, therefore, show that for being elected as a member to
the market committee from the agriculturists'' constituency, the concerned candidate need not himself be a voter for the said constituency and all
that is required of him is to show that he is an agriculturist so as to get qualified to be a candidate from the agriculturists'' constituency. Section 14
of the Act also points out in the same direction. The said section concerns with disabilities from continuing members. Sub-section (1) thereof
provides:--
An elected or nominated member shall cease to hold office as such member if.-
(i) he ceases to be a member of the electorate by which, he was elected; or
(ii) he being a member of the class specified in Clause (i) of Sub-section (1) of Section 11 is granted a general licence under this Act; or
(iii) he being a member nominated by a local authority, ceased to be a councillor, or as the case may be a member of local authority, or is granted a
general licence under this Act"". The aforesaid provisions of Section 14 indicate that if a member has been elected from the agriculturists''
constituency contemplated by Section 11(1)(i), he will cease to hold his office as a member if he is granted a general licence under the Act as laid-
down by Section 14(1)(ii). It is not required of him to cease to be a member of the electorate by which he is elected to incur such disability.
Section 14(1)(i) on the other hand contemplates those members who are voters in the electorate from which they are elected. They obviously refer
to the constituencies contemplated by Section 11(1)(ii) and (iii) which provides for four members to be elected in the prescribed manner from
amongst themselves by the traders holding general licences ''and two representatives of the co-operative marketing societies situated in the market
area and holding general licences, to be. elected from amongst the members (other than nominal, associate or sympathiser members) of such
societies by the members of the managing committees of such societies. It is, therefore, obvious that in order to contest from the traders''
constituency, as laid down by Section 11(1)(ii) or from the constituency of co-operative marketing societies, as laid down bv Section 11(1)(iii), the
concerned candidate has to be a voter in the said constituency. But so far as the agriculturists'' constituency is concerned, it stands on its own and
in order to be a candidate in such a constituency, all that is required of him is to answer the test of an agriculturists as laid down by Section 2(ii) of
the Act read with Section 11(1)(i), and that is why, while laying down disabilities from continuing as a member of the marketing committee, the
legislature in Section 14 has maintained a clear distinction between the members elected from agriculturists'' constituency on one hand and
members elected from other constituencies as provided by Sections 11(1)(i) and 11(1)(iii) on the other. The aforesaid statutory provisions leave no
room for doubt that so far as agriculturists are concerned, they can stand at the election for being members of the market committee from the
agriculturists'' constituency without themselves being voters from the said constituency. The same legislative intention is further highlighted by the
relevant rules. Rule 11 (11 may be noted in this connection. Rule 11 (1) states:--
Each candidate for election shall, on the date fixed under Clause (b) of Sub-rule (21 of Rule 10 deliver to the election officer a nomination paper
in form I"".
Sub-rule (2) of Rule 11 states:--
Every nomination paper shall be signed as proposer bv a person qualified to vote at the election and the candidate shall sign a declaration on it
expressing his willingness to stand for election."" Sub-rule (2) clearly distinguishes between a candidate and a proposer. A proposer is required to
be a voter at the election; while a candidate may not be a voter at the election. As seen above, the legislature itself has contemplated that out of
three constituencies from which members can be elected to a market committee, for one constituency of agriculturists members, the candidate
concerned may not be a voter at the said constituency and still, if he is an agriculturist, he can contest elections from the said constituency. Form
No. 1 which prescribes the form of the nomination paper also clearly indicates that so far as proposer is concerned, his number in the voters'' list is
to be mentioned in the nomination paper as per Clause 9, But so far as a candidate is concerned, there is no such requirement of mentioning his
name in the voters'' list for the obvious reason that form No. 1 is a general form which can be availed of by prospective candidates from different
constituencies for being elected to the market committee and at least for one constituency, viz. agriculturists'' constituency, the candidate concerned
may not be a voter at the said constituency. Rule 28 is another rule which also sheds light on this question. As per rule 28 (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."" On the express language of Rule 28 (1), it appears clear that any person who is qualified either to be elected or to vote at the election can
file election application challenging the result of the election from the concerned constituency. Thus he need not be a voter at the concerned
constituency. Still, if he can show that he is qualified to be elected from the constituency, he can challenge the result of the election from that
constituency. An agriculturist even though not a member of the electorate and, therefore, not a voter in the agriculturists'' constituency can contest
1he election from that constituency and can stake his claim for one of the eight seats of agriculturists and for any reason if he fails, he can maintain
election petition under Rule 28 by an application that he is a person qualified to be elected from that constituency even though he may not be a
voter in the constituency. If the le-gislature had contemplated that only a voter can contest election from a given constituency, Rule 28 would have
provided that only a voter from the given constituency would be eligible to maintain election application. But in view of the legislative intention to
the contrary as reflected by the aforesaid relevant statutory provisions, Rule 28 had to fall in line and had to provide a locus poenitentiae to a non-
voter also to maintain election petition provided he establishes his contention that he is qualified to contest from a given constituency even if he is
not a voter at that constituency. This discussion obviously will be applicable only to the agriculturists, constituency as laid down by Section 11(1)(i)
and not to the rest of the two constituencies envisaged by Section 11(1)(ii) and (iii). So far as the facts Of the present case are concerned,
petitioners challenge the election of the market committee only from the agriculturists'' constituency and not from any other constituency. Therefore,
their challenge will have to be considered in the light of the aforesaid legal position which emerges on the record. It must, therefore, be held that for
contesting election from the agriculturists'' constituency, it was not necessary for any one to be voter in the said constituency. In the present case,
the admitted facts are that the date of the election was fixed as 15-2-1981. The last date for filing the nomination forms was fixed on 1-2-1981.
The date of scrutiny of forms was fixed as 3-2-1981 and the last date for withdrawing the nomination forms was fixed on 6-2-1981. It is an
admitted position that for 8 seats from agriculturists'' constituency, after the last date for withdrawal of the forms was over, there remained only 8
candidates in the field. Consequently, these 8 candidates were declared elected uncontested from the agriculturists'' constituency on 6-2-1981
itself. Once this happened, it is obvious that there was no question of holding any election for agriculturists'' constituency whereat any voter could
exercise right of franchise. That occasion never arose for any of the voters from the agriculturists'' constituency in view of the aforesaid peculiar
facts. So far as candidates from the agriculturists'' constituency were concerned, any agriculturist could have put forward his claim to be elected
from that constituency. Merely because his name was not included in the voters'' list, he could not have been prevented from offering his
candidature from the agriculturists'' constituency, in the light of the legal position discussed by me earlier. Therefore, taking the grievance of the
petitioners at the highest, members of the managing committee could not get their names included in the voters'' list and lost their right of franchise.
But nobody prevented them from offering contest as candidates from the agriculturists'' constituency even though they were not shown to be
voters. Thus, even if the petitioners'' contention is accepted and it is held that their managing committee members were wrongly excluded from the
voters'' list, the result of election from the agriculturists'' constituency would not be affected at all as the aforesaid flaw or error in preparation of the
voters'' list would have no effect whatsoever on the uncontested election of 8 agriculturists from the agriculturists'' constituency. As there were 8
seats and 8 candidates and as no other candidate came forward to contest, there was no question of holding any election. Consequently, there
arose no occasion for any voter to exercise his franchise. If the existing voters from the agriculturists'' constituency had no occasion to exercise
their franchise, those who were left out from the voters'' list cannot urge that they lost anything thereby for the simple reason that even I their names
were included in the voters list and there was no technical flaw in preparation of the list, even then they could have got no occasion to exercise their
franchise as the candidates from the agriculturists'' constituency had been returned uncontested. In the peculiar facts of this case, therefore, the
alleged technical flaw in the preparation of the final voters'' list for agriculturists'' constituency had no effect whatsoever much less any material
effect on the result of the election from the agriculturists'' constituency, which results are sought to be challenged by Miss Shah on the alleged
technical flaw. Therefore, the second contention raised by Miss Shah has got to be rejected.
That leaves out the third contention raised by her on the merits of the petition. She contended that as per proviso to Rule 7, a date to be fixed
bv the Director for requiring the concerned societies to communicate full names of members of their managing committees, should not he later than
60 days before the date of the general election and in the present case, the aforesaid provisions have been committed breach of by the concerned
authorities. In order to appreciate the aforesaid contention centering round the construction of the proviso to Rule 7 (1), it is necessary to note the
relevant dates. The date of election was fixed by the Director on 15-2-1981. Counting 60 days backwards from the said date will take us to 17-
12-1980; while as per Annexure ''A'', the date fixed by the Director for communication of the names of the managing committee members by the
concerned societies was 25-11-1980. The question is whether this date viz., 25-11-1980, complies with the requirement of the proviso to Rule 7
(1) or it flies in the face of the proviso. The aforesaid proviso clearly lays down that the date to. be fixed by the Director for that purpose should
not be later than 60 days from the date of the general election. 60 days from the date of general election takes us to 17-12-1980 as shown above.
Therefore, the date for communication of the names of the members of the managing committees by the concerned societies to the authorised
officer could not be so fixed as to be later than 17-12-1980. 25-11-1980 was obviously not later than 17-12-1980 but it was prior to 17-12-
1980. Miss Shah submitted that on the proper construction of the wordings of the said proviso, the date fixed for communication of the names
should be between the date of the general election and the upper limit of 60 days backwards from that date meaning thereby that the date of
communication of the names should fall within 60 days of the date of general election. With respect, such a construction would seem quite contrary
to the express language of the proviso. If Miss Shah''s construction was correct, the proviso would have been differently worded and would have
stated that date so fixed would not be earlier than 60 days prior to the date of the general election. Then, she could have urged with emphasis that
60 days prior to from the date of general election is the fixed point beyond which the Director cannot travel for fixing the date of communication of
the names of the members �f the concerned societies. But in the present case, the express language of the proviso indicates that a clear mandate
has been enacted to the effect that the aforesaid date must be so fixed as not to be later than 60 days before the date of the general election,
meaning thereby that at least clear 60 days prior to the date of the election must be available between the date fixed for communication of the
names of the members of managing committee of the concerned societies to the authorised officer and the ultimate date of election so that within
that period, the procedural requirements of Rule 8 onwards can be complied with. As 25-11-1980 is the date fixed as per Annexure ''A'' for
communication of the names, it has clearly provided for more than 60 days between the date fixed for communication of the names and the ultimate
date of the general election. Hence it cannot be said that the requirements of the proviso have been, in the present case, committed breach by the
Director in fixing the date of communication of names of the members of the concerned societies to the authorised officer. The third contention of
Miss Shah, therefore, fails and has got to be repelled.