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SCA/9774/2011 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9774 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
MANILAL
KARSHANBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 8 - Respondent(s)
=========================================
Appearance :
MR
ASHISH H SHAH and MR MANISH S SHAH for the Petitioner.
Mr.J.K.Shah,
Assistant GOVERNMENT PLEADER for Respondent nos.1,2 and 3.
MR DG
CHAUHAN for Respondent nos. 4 and5.
MR JV JAPEE for Respondent
nos. 6 - 9.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/09/2011
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1. By
way of this petition, the petitioner has challenged the order passed
by the Authorised Officer-respondent no. 3 dated 22.7.2011, whereby
the Authorised Officer appointed by respondent no.1 has rejected the
objections raised by the petitioner.
2. The
facts of the case are that the respondent no.1 Director, Agriculture
Produce and Rural Finance has declared election programme for the
market committee of Himmatnagar Agriculture Produce Market Committee.
The notification came to be issued on 20.6.2011, where the following
programme was declared.
Details
of programme
Date
Declaration
of election
20.6.2011
Direction
by Authorised officer to prepare
voters’
list
20.6.2011
Date
of forwarding voters’ list to
Authorised
Officer
28.6.2011
Preliminary
publication of voters’ list
4.7.2011
Last
date of submitting applications for additions/
alterations
and objections in preliminary
voters’
list. 18.7.2011
Re-publication
of preliminary list prepared after
receiving
additions/alterations and objections
against
preliminary voters’ list alongwith notice.
22.7.2011
Last
date of submitting objections against
re-published
preliminary voters’ list.
28.7.2011
Final
publication of voters’ list
2.8.2011
Date
of submitting nomination forms
2.9.2011
Preliminary
publication of nomination forms
2.9.2011
Scrutiny
of nomination forms
3.9.2011
Date
of withdrawal of nomination forms
6.9.2011
Final
publication of list of candidates
6.9.2011
Date
of election
15.9.2011
Date
of counting votes
16.9.2011
Date
of declaration of result of election -Immediately after
counting
of votes.
3. The
petitioner raised objection that members of certain society namely,
Kankol Gam Seva Sahakari Mandli Ltd. has co-opted four members
contrary to by-laws and their names are included only for the purpose
of election.
4. Learned
counsel appearing for the petitioner contended that those four
members are included after the notification is issued by the
Director, Agriculture Produce and Rural Finance and the same are
contrary to Rule 7 of Gujarat Agriculture Produce Market Rules, 1965
(for short “Rules”). Learned counsel has further contended
that the order of rejection was without hearing him and the same is
contrary to the decision rendered by this Court. He further contended
that the voters’ list which is prepared is contrary to the provisions
of Rules.
5. Learned
Assistant Government Pleader has relied on the Division Bench
decision of this Court in Kalubhai
Ranabhai Akbari v. State of Gujarat and others 2007(3)G.L.H.57
and more particularly in paragraphs 18 and 35 it has been held as
under:
“18. In
our view, therefore, the relevant date for determining the
eligibility of a person for inclusion in the voters’ list would be
the date by which the Authorized Officer is to be communicated the
names as indicated in sub-rule (1) of Rule 7, that is to say before
that date –
(i) a
co-operative society registered under the Co-operative Societies Act
for dispensing agricultural credit must have been registered as a
cooperative society and must also have commenced the activity of
dispensing agricultural credit.
(ii) a trader
who has been granted license by the APMC to carry on business as a
trader in the market area must have commenced business as a trader.
(iii) a
co-operative marketing society registered as such under the
Co-operative Societies Act and having obtained a general licence from
APMC must also have commenced its business of marketing.
18A. The only
exception to the above general rule is to be found in Rule 6 which
reads as under :-
6. Persons
qualified to vote.- A person whose name is entered in a list of
voters shall be qualified to vote at an election to which the list of
voters relates, unless he has ceased to hold the capacity in which
his name was entered in such list.
35. To
sum up then, our conclusions are as under :-
I. “The
relevant date” for determining the eligibility of a person
for inclusion in the voters’ list for elections to APMC is the
date on which the Authorized Officer is to be communicated the names
as indicated in sub-rule (1) of Rule 7 of the APMC Rules, 1965,
that is to say, before that date –
(i) a
co-operative society must have been registered under the Cooperative
Societies Act as a cooperative society for dispensing agricultural
credit and must also have commenced the activity of dispensing
agricultural credit.
(ii) a trader
who has been granted license by the APMC to carry on business as a
trader in the market area must have commenced business as a trader.
(iii) a
co-operative marketing society registered as such under the
Co-operative Societies Act and having obtained a general licence from
APMC must also have commenced its business of marketing.
II. The
only exception to the above general rule is to be found in Rule 6.
Hence, if a person, whose name was entered in the list of voters, has
ceased to hold the capacity in which his name was entered in such
list, such person shall not be qualified to vote at the election to
which the list of voters relates.
III.
To be eligible for inclusion in the list of voters for elections
to APMC, –
(i)
A co-operative society must have obtained registration under the
Co-operative Societies Act for dispensing agricultural credit before
the date on which the Director has fixed the date of elections to
APMC (i.e. the date of declaration of elections).
(ii) A
person must have obtained from APMC a general license for trader
before the date of declaration of elections.
(iii) A
co-operative marketing society must have obtained its registration
under the Co-operative Societies Act and a general license from APMC
before the date of declaration of elections.
IV. Challenge
to the legality and validity of registration of a society under the
Co-operative Societies Act can only be entertained by the forum under
Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961,
and not by the Election Tribunal constituted under Rule 28 of the
APMC Rules, 1965.
V. Challenge
to the legality and validity of a license issued by APMC can only be
entertained by the concerned forum under Section 27 of the Gujarat
APMC Act, 1963.
VI. The
question whether a co-operative society commenced the activity of
dispensing agricultural credit before the relevant date, whether a
trader possessing general license from APMC commenced the business of
trading before the relevant date or whether a co-operative marketing
society possessing general license from APMC commenced its business
of marketing before the relevant date are questions of fact which the
Authorized Officer has jurisdiction to decide under Rules 7(2) and 8
of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also
has the jurisdiction to examine these questions.
Therefore,
qualifying date is 28.6.2011. The same is clarified by the
notification forwarded by the circular by the Deputy Director,
Agriculture Produce and Rural Finance, whereby he has called upon the
market committee and to other society to send the names as on
20.6.2011.”
6. Learned
Assistant Government Pleader has also relied upon Rule 10 and
submitted that the election is scheduled to be held on 15.9.2011. In
view of Rule 10, it will not be appropriate to interfere at this
stage, otherwise it will amount to interference. Learned Assistant
Government Pleader has also submitted that Rule 10 observations are
made by this Court in 1998(1) GLH 95.
“Though
this order is being passed, today, the matter was adjourned earlier
on 2.12.97 at the instance of the respondents and they had also made
a statement at that time that this order is to be treated to have
been passed on 2.12.97. The date of casting votes is 12.11.1998 and
there is a period of more than 30 days between today and the date of
casting of votes. Therefore, if the respondent No. 3 issues a fresh
voters’ list as per the order of this Court, it could not be said
that there would be any interference in the election programme
because out of the said voters’ list could not adversely affect
either filing of nomination papers on 29.12.97 or casting of votes on
12.1.1998.”
7. We
have heard Mr. Shah, learned counsel appearing for the petitioner and
Mr.J.K.Shah, learned Assistant Government Pleader appearing for the
respondents.
8. The
first decision of the Authorised Officer in excluding the name is in
consonance with the provisions of Rule 7 and in consonance with
section 11 of APMC Act. The person who are reflected on 20.6.2011 are
included in the voters’ list. It will not be appropriate to disturb
it. If at all the petitioner is aggrieved by inclusion of any name,
he has to approach the authority under Gujarat Co-operative Societies
Act, 1961. The Authorised Officer has no jurisdiction to interfere
while deciding voters’ list under Gujarat Co-operative Societies’
Act. In view of Section 10, it will not be appropriate to interfere
since the date of election is 15.9.2011. Even otherwise also, we find
that the order of the Authorised Officer is just and proper. No
interference is required. The petition is accordingly dismissed.
Notice is discharged.
(V.M.SAHAI,J)
(K.S.JHAVERI,J)
***vcdarji
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