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Gujarat High Court
Judgename :K.R.VYAS, R.S.GARG, RAVI R.TRIPATHI
DAHEDA GROUP SEVA SAHAKARI MANDLI LIMITED - Appellant
Versus
R.D.ROHIT,autho.OFFICER and CO.OPERATIVE OFFICER (MARKETING) - Respondent
S.C.A. 2489 of 2005
Decided On : 04/27/2005
Election to Marketing Committee - Voters list - Direction for inclusion of names - Scope of.
Head Note :
Constitution of India, 1950 - Article 226 - Agricultural Produce Market Act, 1963 - Sections 2(ii), 2(ix), 2(xxiii), 3, 3(6), 9, 11(i), 11(ii), 11(iii) and 59 - Gujarat Agricultural Market Produce Committee Rules, 1968 - Rules 4, 5, 5(i), 6, 7, 8, 9, 28 and 28(i) - Election to Marketing Committee - Voters list - Inclusion of names - Scope and direction for - Sustainability - Considering the conflicting judgments of Division Benches of this Court and relevant provisions under the Rules of 1968, Court held, that there is no room of doubt that Rule 28 of the Rules includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal arbitrary or mala fide manner of names of an eligible voter in voters list and can be gone into in an election petition under the rule - This means a person whose name is not included in the voters list can avail benefit of provisions of the Rule 28 by filing election petition - 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 - Court also held that even though petition under Article 226 of Constitution of India is maintainable though alternative remedy is available, but only in cases where the order is ultra vires or nullity or ex facie without jurisdiction - The exclusion or inclusion of names in the voters list cannot be termed as extraordinary circumstances warranting interference by Court under Article 226 - Court answering to reference accordingly sent back matter to concerned Division Benches to pass appropriate orders.
Held :
Having regard to the language and terminology of Rule 28 of the Rules, Court is of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter or right that he is entitled to invoke the jurisdiction of the Court. [Para 30]
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. [Para 31]
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 the 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. [Para 32]
Law Laid Down :
Authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case election is set aside, therefore, remedy under rule is efficacious remedy in case of wrong inclusion or exclusion of names in voters list.
Case Law Analysis :
Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan vs. Pali Shak Bhaji and Fal Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana, 1986 GLH 430 [Para 13];; Mehsana District Cooperative Sales and Purchase Union Ltd., 1988 (2) GLR 1060 [Para 15];; Co-Kanubhai Chhaganbhai Patel vs. Director of Agricultural Marketing & Rural Finance, Gandhinagar & Ors. 2004 (3) GLR 2718 [Para 20].-Relied on
Conclusion :
Rule 28 of the Rules, 1968 includes the question of exclusion or inclusion of names in voters list and can be gone into in an election petition, therefore, it is not an extraordinary circumstance warranting interference by Court under Article 226 of Constitution.
Cases Referred :
Choudhary Rameshbhai Dalsa vs. Director of Agricultural Market and Rural Finance & Anr. 1996 (2) GLR 166;; D Saibaba vs. Bar Council of India & Anr., 2003 6 SCC 186;; Atma Ram vs. State of Punjab, AIR 1959 SC 519;; State of Gujarat & Ors vs. Dilipbhai Nathjibhai Patel & Ors., AIR 1998 SC 1429;; Ahmedabad Cotton Mfg. Ltd. vs. Union of India & Ors. 18 GLR 714;; Gujarat University vs. N. U. Rajguru, 1988 (1) GLR 308;; Manda Jaganath vs. K.S. Rathnam, AIR 2004 SC 3600;; Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216;; Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Ors. vs. State of Maharashtra & Ors., 2001 (8) SCC 509;; Mehsana District Coop. Purchase & Sales Union Ltd. vs. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. & Ors. 1998 (1) GLH 170.
Decided in Favour of :
Reference Answered Accordingly
Reference Answered Accordingly
( 1 ) IN this group of Special Civil Applications, the petitioners have prayed for quashing and setting aside the order passed by the Authorized Officer and Cooperative Officer (Marketing), the respondent No. 1 i. e. District Registrar, Cooperative Societies, Anand and to direct the said respondent to include names of the petitioners in the final voters list. By way of interim order, the petitioners have also prayed for direction to respondent no. 1 to permit the petitioners in the ensuing elections of the Kambhat Agricultural Produce Market Committee. According to the petitioners, they are entitled to be included in the voters list but for the reasons best known to the Election Officer acting at the behest of someone else, on extraneous grounds, deleted the names of the authorised representatives of the Agricultural Cooperative Societies or of the Societies which are disbursing agricultural loans to the members. Since in this group of Special Civil Applications common questions of law is involved, we intend to dispose them off by this common judgment.
( 2 ) BY relying upon the provisions of law, especially Rule 28 of Gujarat Agricultural Market Produce Committee Rules, 1965 (hereinafter referred to as the rules), it is averred that inclusion or non-inclusion of the names of certain voters in the voters list cannot be challenged in an election petition under rule 28 of the rules. The petitioners, to substantiate their submissions, placed reliance on a decision of Division Bench in the case of Mehsana District Coop. Purchase and Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. and Ors. reported in 1998 (1) GLH 170.
( 3 ) DURING the course of the hearing before the Division Bench, the respondents raised a preliminary objection regarding maintainability of the petition by contending that the question of validity of preparation of voters list which includes inclusion or deletion of the names of the voters in it, being integral part of the election process can always be raised in an election petition filed under rule 28 of the rules. To make good the submissions, learned Advocate for the respondents relied upon the following decisions of three Division Benches of this Court: (i) Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan v. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Shahkari Mandli Ltd. Mehsana, (1986 GLH 430 ). (ii) Mehsana District Cooperative Sales and Purchase Union Ltd. and Anr. v. State of Gujarat and Ors. (1988 (2) GLR 1060) (iii) Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718 ).
( 4 ) IN view of the conflicting judgments of the Division Benches of this Court wherein some of the Division Benches had taken a view that the inclusion or non-inclusion of the names in the voters list cannot be made a ground in an election petition, while the other view is that preparation of the voters list which includes deletion of the names in the voters list being integral, the questions can be raised in an election petition under rule 28, the Division Bench felt that the matters need hearing by a larger Bench to settle all the disputes once and for all. Hence this group of petitions has been referred to us to answer the following questions: I. Whether a person whose name is not included in the voters list can avail provisions of rule 28 of the rules by filing election petition ? II. Whether the remedy under rule 28 can be termed to be efficacious remedy ? III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i. e. inclusion or deletion of the names of the voters in the voters list ?
( 5 ) WE have heard Mr B S Patel, learned Counsel for the petitioners as well as M/s. Tushar Mehta, Pushpadatta Vyas and Mr B B Naik, learned Counsel appearing as intervener
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