JUDGMENT
M.S. Shah, J.
1. Rule. Ms. Trusha Patel learned A.G.P. waives service of Rule on behalf of respondent Nos. 1, 2 and 3, Mr. B. T. Rao learned Advocate waives service on behalf of respondent Nos. 5 and 6 on caveat. As far as respondent No. 4 A.P.M.C., Upleta is concerned, it is formal party and its presence is not required.
2. In the facts and circumstances of the case, particularly, considering the urgency involved in the election matter, with the consent of the learned Advocates:, the petition is taken up for final disposal, and is accordingly being disposed of by this judgment.
3. The Director of Agricultural Produce Market Committee declared the programme for election of A.P.M.C., Upleta, District Rajkot on 19-2-2007. As per the said programme, the relevant dates are as under:
Publication of final list of voters : 3-4-2007 Date for submitting nomination forms : 3-5-2007 Publication of nomination forms : 3-5-2007 Scrutiny of nomination forms : 4-5-2007 Date for withdrawal of nomination forms : 8-5-2007 Final publication of list of candidates : 8-5-2007 Date of polling : 19-5-2007 Date of counting : 20-5-2007 Declaration of the result soon after completion of counting. 4. The subject-matter of this petition is the challenge to the decision dated 4-5-2007 (Annexure-B) of the Election Officer rejecting the nomination forms of the petitioners, six in number. 5. Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the Act") provides for constitution of market committee. In all, 14 members of the market committee are to be elected from out of following three constituencies: (i) eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative marketing societies and milk produce co-operative societies) dispensing agricultural credit in the market; (ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences;
(iii) two representatives of the Co-operative marketing societies situate in the market area and holding general licenses, 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.
The present petition is concerned with the rejection of nomination forms of 6 candidates for the second constituency of traders holding general licence.
6. Mr. Pahwa learned Advocate for the petitioners has submitted as under:
6.1 Once, the petitioners’ names figured in the final list of voters published on 3-5-2007, the petitioners became eligible to contest the election from the constituency of traders holding general licences. In fact, petitioner No. 5 is the present Chairman of the A.P.M.C., Upleta for the current term 2003-2007 and the petitioner Nos. 2 and 3 are also the members of the present managing committee after having been elected as members of the A.P.M.C. from the traders constituency. It is stated that all these petitioners are traders holding general licences and are engaged in the trading business activities in the market area for the last several years. Copies of the licences issued by the A.P.M.C. in favour of the petitioners for the licensing year 2006-2007 are annexed to the petition at Annexure-E collectively. Reliance is also placed on the certificate issued by the A.P.M.C. that the petitioners are holding general licence for the last three years. It is submitted that the petitioners are engaged as traders, and therefore, once included in the final list of the voters, it is not open to the election officer to reject their nomination forms. It is submitted that the petitioners have mentioned in the nomination forms not only their personal name, but also their business name and name of the trading company or firm, and that, even the business name is sufficient to indicate the nature of the trading activity carried on by the petitioners. It is submitted that in any view of the matter, trading itself is an occupation, and therefore, nothing more is required to be indicated in the column “occupation and address.”
6.2 13 candidates had submitted their nomination forms for 4 seats in the traders constituency. By eliminating seven candidates including the present six petitioners, the election officer has permitted only the remaining six candidates to contest. The nomination forms of the petitioners have been rejected without any justification or jurisdiction, and thereby, leaving only 6 candidates in the fray for 4 seats.
6.3 Respondent Nos. 5 and 6 were given inspection to the nomination forms before the scrutiny commenced and respondent Nos. 5 and 6 got their objections raised by way of a typed letter. This indicated that the election officer had pre-determined to favour respondent Nos. 5 and 6 in order to remove the petitioners from contest on non-existent and non-justifiable grounds.
6.4 Strong reliance is placed on the decision of the Apex Court in the case of Election Commission of India v. Ashok Kumar and Ors. .
7. Mr. B. T. Rao learned Advocate appearing for respondent Nos. 5 and 6 on caveat has vehemently opposed the petition and submitted that this Court would not interfere in the election matter, that as per the settled legal position, the petitioners ought to be relegated to the alternative remedy of challenging the decision of the election officer by way of election petition to be filed after the results are declared. Strong reliance is placed on the decision of the Apex Court and this Court including the decisions reported in 2005 (11) SCC 523 in Vadodara District Co-operative Sugarcane Producers’ Union Ltd. v. Chandrakantbhai Thakorebhai Patel and Ors., and Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance .
It is submitted that the nomination forms specifically required following details to be mentioned in the column No. 7:
occupation and address.
It is submitted that the nomination form prescribed under the statutory rules carries an obligation on the part of the candidate to give complete information as required in the prescribed nomination form and that the election officer has not committed any illegality in rejecting the nomination form of the petitioners.
8. Mr. Mihir Joshi learned Additional Advocate General with Ms. Trusha Patel learned A.G.P. fairly submitted that they would leave the matter to the decision of this Court.
9. Having heard the learned Advocates for the parties, we find considerable force in the submissions made on behalf of the petitioners that Section 11 of the Act provides for three constituencies for electing 14 members to the A.P.M.C. Apart from the other members to be nominated, 8 agriculturists are to be elected from the constituency of members of the managing committees of co-operative societies dispensing agricultural credit in the market area. Four members are to be elected from amongst themselves by the traders holding general licences. Two representatives of the Co-operative marketing societies situate in the market area and holding general licenses are to be elected from amongst the members of such societies by the members of the managing committees of such societies. It is, thus clear that since there are only three separate constituencies, the significance of Item No. 7 in nomination form being Form-I prescribed under Rule 11 of the A.P.M.C. Rules, is that the candidate must indicate whether he is an agriculturist or trader holding general licence or a member of the managing committee of a co-operative marketing society. It is required to be specifically noted that the same format for nomination form is prescribed for candidates of all the three constituencies. An agriculturist cannot be permitted to contest from the constituency of traders holding general licences. In the facts of the case, it was not the case of respondent Nos. 5 and 6 before us that petitioners are not holding traders’ general licence or that their names do not figure in the final voters list. In fact, the final voters list is already produced at Annexure-F and the names of the petitioners figure therein at Sr. Nos. 39, 43, 50, 58, 68 and 207. The list of traders itself provides four columns, namely : (1) Sr. No. , (2) Name of the licence holder/trading firm, (3) Complete address, and (4) the trader entitled to vote at the election. The petitioners herein mentioned in Col. No. 7 “occupation and address” the information which was already in the voters list. Accordingly, the name of the trading firm as well as the name of the proprietor/partnership firm was clearly mentioned along with the address. There is no dispute or confusion about the identity of the petitioners or about their right to vote at the election. The occupation and address was shown as per the list of voters for traders’ constituency and no doubt or dispute was ever raised regarding entitlement of candidate to contest for 4 seats in the constituency of traders holding general licences. The impugned decision dated 4-5-2007 of the election officer, is therefore, not only clearly contrary to law, but the said reasons are in consistent with the relevant provisions of A.P.M.C. Act, 1963 and the Rules thereunder.
10. Coming to the objection raised by Mr. Rao for the contesting respondents that even in the matter of election, this Court would not interfere, similar objection was upheld in cases where intervention of this Court would have resulted into delay in the election process. As observed by another Division Bench of this Court in Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance (supra) the scrutiny of nominations and withdrawal of candidature are strictly time-bound under the statutory rules. If the High Court interferes with the outcome of the scrutiny of nominations, it will have direct effect of disturbing the time-schedule statutorily contemplated as aforesaid. The statutory rules prescribe the period of not less than 7 days between the date of declaring the final list of voters and the date of voting. If the Court enters into the controversy of the validity of nomination papers, by the very nature of the time-schedule having been already announced under the statutory rules; there would be every likelihood of interfering with the process of election. The Division Bench even after considering the decision of the Apex Court in the case of Election Commission of India v. Ashok Kumar (supra) declined to interfere with the decision of the election officer rejecting the nomination forms on the ground that such interference after scrutiny of nomination would create a real possibility of the election process being interrupted, obstructed or delayed.
In the facts of the present case, it is clear that the polling is scheduled on 19-5-2007, therefore, the final list of candidates would be required to be published latest by 12-5-2007 or in any case, not before 11-5-2007.
11. In the case of Election Commission of India v. Ashok Kumar and Ors. , the Apex Court has made the following observations in Paras 28 & 32:
28. Election disputes are not just private civil disputes between two parties. Though, there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizen generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
(5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(e), but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court’s indulgence by filing a petition outwardly innocuous, but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.
(Emphasis supplied)
In the facts and circumstances of the case indicated earlier, we are satisfied that intervention of this Court, at this stage, is necessary for the welfare of the constituency.
12. Mr. Rao has placed reliance on the decision of the Full Bench of this Court in support of his contention that the remedy of filing election petition under Rule 28 of A.P.M.C. Rules, 1965 is the only remedy available to the petitioners. Apart from the fact that Full Bench decision was for inclusion or exclusion in the list of voters, the Full Bench itself has recognised that in exceptional circumstances, the judicial intervention is permissible.
13. For the reasons aforesaid, this petition is allowed. The decision dated 4-5-2007 of the election officer (Annexure-B) rejecting the nomination forms is quashed and set aside, as illegal. The election officer shall publish, by 11-5-2007, the revised final list of candidates including the petitioners herein for the constituency of traders holding general licences under Clause (ii) of Sub-clause (1) of Section 11 of the Gujarat Agricultural Produce Markets Act, 1963. The polling shall be held on 19-5-2007 as scheduled.
Rule is accordingly made absolute in the above terms.
14. This order is pronounced in the presence of Mr. N. K. Pahwa for the petitioners, Ms Trusha Patel learned A.G.P. for respondent Nos. 1 to 3 and Mr. B.T. Rao for respondent Nos. 5 and 6.
15. At this stage, Mr. B. T. Rao requests for stay of this order. The request is rejected.