Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 753

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, VAIBHAVI D. NANAVATI, JJ.
Ishwarbhai Narayanbhai Patel - Appellant
Versus
State Of Gujarat - Respondent
R/Special Civil Application No. 11822 of 2019, Special Civil Application No.11824 of 2019, R/Letters Patent Appeal No. 1821, 1822 of 2019, CIVIL Application (For Stay) No.1 of 2019
Decided on : 22-11-2021

Advocates:
Advocate Appeared:
MR MIHIR JOSHI SENIOR COUNSEL WITH MR DIPEN DESAI, MS MANISHA LAVKUMAR SHAH, MR. ARCHIT P JANI, ADV

Point of Law: When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution.

Headnote:
APMC Act, 2003 - Section 11 (1)(i) - APMC Rules - Rule 8 - Gujarat Act 14 of 2015 - Gujarat Co-operative Societies Act, 1963 - Section 2, 7(A), 107, 11, 153 and 155 - Madras Estates Land Act, 1908 - Section 3(10) - Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Section 13(b)(iii) - Constitution of India, 1950 - Article 226 Gujarat Agricultural Produce Market Rules, 1965- Rule 7 - Society - Election - Whether society is a defunct society registered only to participate in election - Whether such dispensing had actually taken place - Whether society had dispensed agricultural credit to its members before election was declared - Whether a co-operative society commenced activity of dispensing agricultural credit before relevant date - Whether a trader possessing general license from APMC commenced business of trading before relevant date - Whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before relevant date.
Finding of the Court:
It is directed that election process shall go on, however, votes of members of respondent No.5- Society in all petitions shall be kept in a sealed cover, and rest of votes shall be counted, and result of election shall be declared in accordance with law - Thus, learned Single directed that election process may go on, however, votes of members of respondent No.5 - Society, in all petitions, shall be kept in a sealed cover and rest of votes shall be counted and result of election shall be declared in accordance with law - Learned Single Judge further directed that outcome of result shall be put before Court on a particular date as stated in order and result of election would be subject to outcome of writ applications - Picture that emerges as on date is that result of election is yet to be declared – Court is of view that it is high time that result be declared - As Court have taken view that respondent No.5 - Society, in both writ applications, were not eligible in accordance with Section 11 of Act, 1963, votes of members of Managing Committee of said Societies shall not be counted for purpose of declaration of election – Court direct that result of election shall now be declared in accordance with law.
Result : Applications disposed of

JUDGMENT :

J.B.PARDIWALA, J.

1. Since the issues raised in both the captioned appeals are the same and the challenge in both the appeals is also to a selfsame judgment passed by a learned Single Judge, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

2. For the sake of convenience, the Letters Patent Appeal No.1821 of 2019 is treated as the lead matter.

3. This appeal is at the instance of unsuccessful writ applicants of a writ application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 25th November 2019, whereby the learned Single Judge declined to entertain the writ application filed by the writ applicants and rejected the same.

4. The facts giving rise to this appeal may be summarized as under:

4.1 The appellants (writ applicants) are the members of the Managing Committee of a Primary Agricultural Credit Cooperative Society included in the voters list for the election of the A.P.M.C., Nizar. By way of the writ application, the writ applicants have challenged the decision of the authorized officer i.e. the respondent No.4 dated 4th July 2019, whereunder the members of the Managing Committee of Khodada Vividh Karyakari Seva Sahakari Mandali Ltd and the Juni Bhilbhavali Seva Sahakari Mandali Limited respectively came to be included in the voters list of the A.P.M.C., Nizar.

4.2. Essentially, the appellants (writ applicants) are challenging the decision of the Authorized Officer rejecting the objections raised by them relating to the inclusion of the members of the Managing Committee of the respondent No.5 society in the voters list.

4.3 The A.P.M.C., Nizar was initially bifurcated in the year 2017.

4.4 Both the respondent No.5 societies as specified were registered in January 2019.

4.5 The election program was declared on 24th May 2019 by the Director, A.P.M.C.

4.6 By virtue of Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965, the names of the members of the Managing Committee of every cooperative society dispensing agricultural credit in the market area were sent to the Authorized Officer and the Preliminary voters list came to be published under Rule 7(2) of the Rules on 6th June 2019. Objections came to be raised by the appellants (writ applicants) against the inclusion of the respondent - societies in the voters list.

4.7 On 23rd June 2019, the Authorized Officer prepared and published the provisional voters list.

4.8 The Special Civil Application No.11114 of 2019 was filed contending that no order was passed dealing with the objections raised by the appellants (writ applicants) and the same were not even remotely considered. The said petition came to be disposed of with a direction to appoint a new Authorized Officer, who, in turn, shall hear the appellants (writ applicants) and pass the necessary orders.

4.9 On 2nd July 2019, the Director, A.P.M.C., appointed the office Superintendent of the District Registrar, Cooperative Societies, Surat as the Authorized Officer to examine the objections raised by the appellants (writ applicants) and to pass appropriate orders after hearing the appellants.

4.10 In place of the erstwhile Authorized Officer against whom the appellants (writ applicants) had alleged bias, a new Authorized Officer was appointed to hear the objections raised by the appellants and to pass necessary orders after giving an opportunity of personal hearing. Each of the appellants was personally heard.

4.11 On 4th July 2019, the objections of the appellants were rejected and the final voters list was published on 5th July 2019.

5. In view of the above, the Special Civil Application No.11822 of 2019 came to be filed with the following prayers:

“A. The Hon’ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 04.07.2019 passed by the respondent No.4 - Authorized Officer at Anne

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2021 Supreme(Guj) 753

Point of Law: When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution.

Cases Referred (41)