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Gujarat High Court
Judgename :A.K.TRIVEDI, K.G.Balakrishnan
MEHSANA DISTRICT CO-OPERATIVE PURCHASE AND SALES UNION limited - Appellant
Versus
DHADHUSAN BEEJ UTPADAK, RUPANTAR ANE VECHAN karnari SAHKARI MANDALI LIMITED - Respondent
L.P.A. 1608 of 1997
Decided On : 01/29/1998
From Rule 8 (1-A), it is clear that objection could be raised by any person only regarding the entry of any new name in the revised draft list. If the names were already in the preliminary list as well as in the revised draft list, no person can raise any objection regardng that. If any new name was entered in the revised draft list, objection could be rasied and the Authorsed Officer has to decide whether such entry or entries shall be deleted or not. Therefore, it is clear that the Authorised Officer illegally omitted the names of petitioners from the final voters list and it is contrary to Rule 8 (1-A).
[Para 5]
Moreover, the Authorised Officer has not given any notice to these petitioners in the Special Civil Applications regarding deletion of their names form the final voters list. A learned Single Judge of this Court in Desai Dharamsinhabhai Taljabhai & Ors. vs. Babulal Jethalal Patel & Ors. reported in 1989 (2) GLR 1195, held that principles or natural justice should be followed by the Authorised Officer, while considering the objections submitted under Rule 8 (1) of the Market Rules. The Authorised Officer has violated the principles of natural justice and therefore, deletion of the names of the petitioners from the final voters list is a ultra vires act and the learned Single Judge was justified in holding so.
[Para 6]
(b) Constitution of India, 1950 - Art. 226 - Elections - Normal principle of prudence is that in disputes with regard to Elections, High Court under Art. 226 will be slow to exercise its jurisdiction & will not arrest the election process [vide however observations (M to N) Para 7] - Normally prerogative order of Mandamus is not to be granted where law provide some alternative remedy - But where alternative remedy is illusory or ambiguous and where the act challenged is illegal or void being against statute or natural justice - Held, Court will not hesitate to intervene in exercise of its extraordinary jurisdiction.
Similar view was taken in Mehsana District Cooperative Sales and Purchase Union Ltd. vs. State of Gujarat reported in 88 (2) GLR 1060. In that decision, it was held that the preparatin of voters list is a part of step towards election process and Rule 28 empowers the competent authority to decide about the validity or invalidity of an election. Therefore, it was held that under normal circumstance, jurisdictioin under Art. 226 may not be exercised to arrest the election process.
[Para 11]
Right to elect is neither a fundamental right nor a common law right. Right, if any, of the petitioner to be a voter, is purely a statutory right governed by the Markets Act. Therefore, there is no right to elect or right to be elected or any right to dispute an election outside the Statute. As they are statutory rights, they have to resort to statutory provisions for enforcement of rights under normal circumstances. In the instant case, the appellants have contended that the petitioners in the Special Civil Applicatioins have got a statutory right under Rule 28 of the Markets Rules to dispute an election. Therefore, it is argued that they have got an alternative remedy and the Court shall not interfere with the election process under Art. 226 of the Constitution of India. We have already stated hereinabove that the decision of the Authorised Officer to delete the names of the petitioners from the final voters list is an illegal act opposed to the provisions of Rule 8(1-A). It is also vitiated by the violation of principles of natural justice.
Normally, the prerogative order of mandamus is not to be granted where the law provides some other alternative remedy. At one time, this Rule was very strictly applied by the English Courts in conformity with the doctrine that mandamus was a supplementary remedy.
[Para 12]
It is clear that the alternative remedy suggested by the appellants in these cases is illusory and ambiguous. The Authorised Officer has illegally deleted the names of the petitioners from the final voters list. They were not given an opportunity to explain as to why their names shall not be deleted. Such an illegal act was challenged by the petitioners in the Special Civil Applications. No alternative remedy was available to them under the Statute. When no remedy is provided and the act challenged itself was illegal and void, the Court shall not be hesitant to exercise the extraordinary power vested in it under Art. 226 of the Constitution of India.
[Para 17]
At the outset, we may observe that, almost all the decisions of the Supreme Court, refereed to by the appellants, relate to election conducted under the Representation of the People Act. The elections conducted under the Representation of the people Act, cannot be compared with the election of a Cooperative Society.
[Para 7]
(c) Gujarat Agricultural Produce Market Rules, 1965 - Rule 8(1- A) - Preliminary voters list published - No objection thereto received - Authorised Officer publishing revised drafts lists under Rule 8(1-A) - The petitioners names was still there - Under Rule 8(1-A) objections only w.r.t. new names could be entertained - Petitioners names were not `new names - As such omission of their name from the final voter list is illegal & contrary to Rule 8(1-A).
From Rule 8 (1-A), it is clear that objection could be raised by any person only regarding the entry of any new name in the revised draft list. If the names were already in the prliminary list as well as in the revised draft list, no person can raise any objection regardng that. If any new name was entered in the revised draft list, objection could be rasied and the Authorsed Officer his to decide whether such entry or entries shall be deleted or not. Therefore, it is clear that the Authorised Officer illegally omitted the names of petitioners from the final voters list and it is contrary to Rule 8 (1-A).
[Para 5]
Moreover, the Authorised Officer has not given any notice to these petitioners in the Special Civil Applications regarding deletion of their names form the final voters list. A learned Single Judge of this Court in Desai Dharamsinhabhai Taljabhai & Ors. vs. Babulal Jethalal Patel & Ors. reported in 1989 (2) GLR 1195, held that principles or natural justice should be followed by the Authorised Officer, while considering the objections submitted under Rule 8 (1) of the Market Rules. The Authorised Officer has violated the principles of natural justice and therefore, deletion of the names of the petitioners from the final voters list is a ultra vires act and the learned Single Judge was justified in holding so.
[Para 6]
(d) Gujarat Agricultural Produce Market Rules, 1965 - Rules 6 & 28 - Under Rule 28, Who are barred from filing an election petition? - Held, the persons whose names are not included in the final list of voters - A person who `claims to be a voter cannot be equated to be a voter within the meaning of Rule 28 & Rule 6.
In 1996 (2) GLR Page 166, a learned Single Judge of this Court held that a person who is not a voter can also maintain a petition under Rule 28. He further held in para 16 of the judgment that a person who claims to be a voter is also to be construed as a person qualified to vote. It was held that words claiming to be are to be supplied to Rule 28(1), so as to make a person who claims to vote also is entitled to file a petition under Rule 28. We are of the opinion that the view taken by the learned Single Judge is not correct. The Courts are not expected to supply words to the Statute so as to give a different meaning. If the interpretation of a Section leads to an apparent conflict with other provisions, the Court can adopt an interpretation so as to avoid conflict.
Moreover, the definition of words qualified to vote as given in Rule 6 is to be applied. When any of the provisions of the Statute is interpreted and when the Legislature gives a dictionary for the statute, the words given in the Statute can only be interpreted in accordance with the meaning given in such a dictionary. Any other view taken by the Court cannot be accepted as a proper interpretation. Going by the provisions of Rule 28(1) read with Rule 6, it is doubtful, whether an application could be maintained by a person whose name is not entered in the electoral roll.
[Para 16]
(e) Interpretation of Statutes - Rules 6 & 28 - Voter - Definition - Cardinal Principal that Court are not expected to supply words to the Statute as to give a different meaning - Courts to avoid an interpretation leading to apparent conflict.
In 1996 (2) GLR Page 166, a learned Single Judge of this Court held that a person who is not a voter can also maintain a petition under Rule 28. He further held in para 16 of the judgment that a person who claims to be a voter is also to be construed as a person qualified to vote. It was held that words claiming to be are to be supplied to Rule 28(1), so as to make a person who claims to vote also is entitled to file a petition under Rule 28. We are of the opinion that the view taken by the learned Single Judge is not correct. The Courts are not expected to supply words to the Statute so as to give a different meaning. If the interpretation of a Section leads to an apparent conflict with other provisions, the Court can adopt an interpretation so as to avoid conflict.
[Para 16]
( 1 ) ALL these appeals arise from a common judgment whereby the learned single Judge allowed all the Special Civil Applications. The matters relate to election of the Mehsana Agricultural Produce Market Committee (hereinafter referred to as "the Market Committee" ). The petitioners, in Special Civil application No. 8523 of 1997, are traders, who are carrying on their business in the market area of the Market Committee. The petitioners in Special Civil Application no. 8534 of 1997 and Special Civil Application No. 8536 of 1997 are Co-operative societies registered under the Co-operative Societies Act and they are functioning within the area of the Market Committee. The Constitution of the Market Committee is as per S. 11 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the Market Act" ). Under S. 11 (1) (ii), four members are to be elected from amongst themselves by the traders holding general licences and under S. 11 (1) (iii), two representatives of the co-operative marketing societies situated in the market area and holding general licences, are to be elected from amongst the members of such societies by the members of the managing committees of such societies. The petitioners in these Special Civil Applications allege that though they were included in the preliminary voters list and in the revised draft list, their names were omitted from the final voters list and this according to these petitioners, amounts to violation of Rule 8 of the Gujarat Agricultural Produce Markets rules, 1965 (hereinafter referred to as "the Market Rules" ). They had also contended that the removal of their names from the final voters list was opposed to principles of natural and therefore, void. In Special Civil Application No. 8536 of 1997, it was alleged that the names of respondent Nos. 5 and 6 therein were wrongly included, as their names were included neither in the preliminary voters list nor in the revised draft list. These petitioners sought direction to include their names in the voters list and the learned single Judge was pleased to allow the prayer.
( 2 ) THE appellants in the appeals, have seriously assailed the judgment of the learned single Judge on various grounds. They contended that the petitioners in the special Civil Applications have got an effective alternative remedy under Rule 28 of Market Rules and as they have got alternative remedy, the learned single Judge was not justified in granting the relief sought for and they were not entitled to invoke the writ jurisdiction of this Court under Art. 226 of the Constitution of India. The appellants also contend that the deletion of names of the petitioners from the final voters list was in accordance with the Rules and there was no failure of natural. According to the appellants Counsel, the learned single Judge should not have arrested the process of election when there was an alternative remedy for the petitioners.
( 3 ) WE heard the learned Addl. Advocate General Shri S. N. Shelat for the Govt. and learned Advocate Shri B. S. Patel and learned Sr. Advocate Mr. K. G. Vakharia with learned Advocate Mr. Tushar Mehta for the appellants and Mr. Kalpesh Zaveri, learned Advocate for the respondents.
( 4 ) REFERENCE was made to various authorities. The Gujarat Agricultural Produce markets Act, 1963 was enacted for establishment of markets for agricultural produce in the State of Gujarat. Section 9 provides for establishment of Markets Committee for a market area declared as such under S. 6 of the Markets Act. The Market committee envisaged by the Act must consist of elected representatives of three constituencies as provided under S. 11 of the Markets Act. Rules 7 and 8 provide for the preparation of voters list for general election. One of the main contentions raised in these appeals is, whether deletion of names of the petitioners in the Special civil Applications from the final voters list was justified or not or whether it w
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