Point of Law - Petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules

ORDER :

1. This petition under Article 226 of the Constitution of India is filed with prayers as under:

“21(A) the Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari and/or writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the wrongful inclusion of the names of the members of the Managing Committee of the respondent Nos.5 to 10 societies in the voters' list of agricultural constituency for the elections of Agriculture Produce Market Committee, Balasinor and be pleased to delete their names from the voters' list of agriculturist constituency for the elections of Agriculture Produce Market Committee, Balasinor.”

2. Learned Advocate for the petitioner thereafter moved draft amendment, by which following prayer is added, which is as under:

“21(AA) This Hon'ble Court be pleased to issue writ of certiorari or writ in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the impugned order dated 02-02-2021 passed by the Authorized Officer, annexed at Annexure-H to this petition.”

3. Brief facts of the case are that the petitioner is an agriculturist. The petitioner is a member of the Managing Committee of The Shantiniketan Seva Sahakari Mandli Ltd., Dungripura (Pandva) and in that capacity is included at serial no.103 in the voters’ list for the elections of Agriculture Produce Market Committee, Balasinor. The elections of Agriculture Produce Market Committee, Balasinor was declared by the respondent no.2Director on 16.12.2020, according to which, the preliminary voters’ list was published on 02.01.2021, the provisional voters’ list was published on 19.01.2021 and final voters’ list to be published on 02.02.2021.

4. The preliminary voters’ list was published by the respondent no.4Authorized Officer on 02.01.2021 and as far as agricultural constituency is concerned, the name of the society of the petitioner was included in the voters’ list and the name of petitioner was included at Sr. No.103. However, the name of the respondent nos.5 to 10 societies were also included in the voters’ list though they were not eligible. As per Section 11(1)(i) only a primary agricultural credit cooperative society can be included in the voters’ list of agriculturist constituency. It is submitted that in order to become a primary agricultural credit cooperative society, only a society which has availed credit as per three tier credit structure can be considered to be a primary agriculture credit cooperative society. It is submitted that the respondent nos.5 to 10 societies have not availed any credit to the three tier credit structure and have not dispensed agricultural credit through the three tier credit structure. The petitioner therefore raised objections against the wrongful inclusion of the respondent nos.5 to 10 societies before the Authorized Officer on 15.01.2021 interalia contending that the said societies have not dispensed agricultural credit through the three tier credit structure and therefore are not eligible to be included in the voters’ list.

5. Pursuant to the objections raised by the petitioner, the Authorized Officer issued notice to the respondent nos.5 to 10 societies on 16.01.2021. The hearing of the objections was undertaken on 17.01.2021 and on that date, the petitioner further submitted its’ objections along with certificate of the Kheda District Cooperative Bank Ltd. Dated 28.12.2020 showing the names of the societies who have availed loans through the three tier structure. The said list of societies does not include the respondent nos.5 to 10 societies. The petitioner also relied upon judgments of the Hon'ble High Court on the issue that only societies which are under the three tier credit structure can be considered to be primary agricultural credit cooperative society and can be included in the voters’ list.

6. However, the Authorized Officer published the provision