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SCA/746120/2009 2 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7461 of 2009
For
Approval and Signature:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
AND
HONOURABLE
MR.JUSTICE K.M.THAKER
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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 ?
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PATEL
CHANDRAKANT THAKORBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 11 - Respondent(s)
=================================================
Appearance
:
MR
VC VAGHELA for Petitioner(s) : 1,
MR TUSHAR MEHTA Addl. Advocate
General with Mr. NIKUNT RAVAL AGP for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 1 - 7.
MR BS PATEL for
Respondent(s) : 5,
MR DIPEN A DESAI for Respondent(s) : 8 -
12.
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CORAM
:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 13/08/2009
ORAL JUDGMENT
(Per
: HONOURABLE MR. JUSTICE MOHIT S. SHAH)
Rule.
Mr. Nikunt Raval learned AGP waives service of Rule for respondent
Nos. 1 to 4. Heard Mr. Tushar Mehta learned Additional Advocate
General, Mr. V.C. Vaghela learned advocate for petitioner, Mr. B.S.
Patel learned advocate for respondent No. 5 and Mr. Dipen Desai
learned advocate for respondent Nos. 8 to 12.
2. In
this petition, the petitioner has challenged the final voters’ list
dated 15.7.2009 for traders constituency in the matter of elections
to Agriculture Produce Market Committee, Karjan in Baroda District
[hereinafter referred to as “the APMC”].
3. The
broad facts leading to filing of the present petition, as emerging
from the record, are as under :-
3.1 The
Director of Agricultural Marketing and Rural Finance (hereinafter
referred to as “the Director ) passed order dated 25.5.2009
(Annexures B & C) fixing the following program for elections to
the APMC.
1
The
date for declaration of election program
29.05.2009
2
The
date for the APMC to send the list of voters to the authorised
officer
05.06.2009
3
The
date for publication of the preliminary list of voters
12.06.2009
4
The
last date of receiving objections against the above list
26.06.2009
5
The
date for publication of provisional voters’ list or the revised
draft voters’ list
03.07.2009
6
The
last date for submitting objections against the above list
10.07.2009
7
The
last date for publication of the final list of voters
15.07.2009
8
The
date for filing nomination forms
17.08.2009
9
The
date of scrutiny of nomination forms
18.08.2009
10
The
date for withdrawal of nomination forms
21.08.2009
11
The
date of poling
01.09.2009
12
The
date of counting
02.09.2009
3.2 The
APMC granted trader’s license to a large number of persons at its
meeting held on 20.5.2009. Thereafter, the APMC forwarded the list
of voters to the authorised officer on 5.6.2009. The authorised
officer addressed a communication to the APMC that many of the
persons whose names were included in the list of voters for the
traders’ constituency did not have trader’s license. This
communication was noted in the agenda notice dated 11.6.2009
convening the meeting of the APMC on 15.6.2009 for grant of license
in respect of the applications received between 20th and 27th May,
2009. Thereafter, the preliminary list of voters was published on
12.6.2009. At the APMC meeting held on 15.6.2009, the APMC granted
trader’s license to 139 persons, out of which 100 licenses were fresh
licenses, whereas 39 licenses were licenses by way of renewal.
3.3 When
the names of these persons were also included in the provisional list
of voters published on 3.7.2009, the petitioner submitted his
objections against inclusion of a large number of persons in the list
of voters for traders’ constituency, who were granted license on
15.6.2009 after declaration of the election program on 25.5.2009 on
the basis of the applications which were made on 25th and 27th May,
2009. By the impugned order dated 15.7.2009 (Annexure – A), the
authorised officer rejected the petitioner’s objections and published
the final list of voters on the same day. Hence, this writ petition.
4. Mr
Vaghela, learned advocate for the petitioner has vehemently submitted
that the APMC had send the draft list of voters for the traders’
constituency to the authorised officer on 5.6.2009 consisting of
about 397 persons, out of whom 139 persons were granted trader’s
license on 15.6.2009 after declaration of the election program and
based on their applications made on 25/27.5.2009. Out of those 139
persons, 100 persons had applied for the first for such license after
the Director of Agricultural Marketing and Rural Finance declared the
election to APMC. Including names of such persons in the list of
voters was contrary to the statutory Rules and also in flagrant
breach of the law laid down by this Court in Shrutbandhu
H. Popat vs. State of Gujarat & Ors in 2007(3) GLR 1942
and Kalubhai Ranabhai Akabari
vs. State of Gujarat in 2007(3) GLH 57.
It
is submitted that the impugned order granting their inclusion in the
final list of voters is completely destructive of the democratic
process and a fraud on the elections.
5. Elections
to Agriculture Produce Market Committee (hereinafter referred as to
the APMC or Market Committee ) are governed by the Gujarat
Agricultural Produce Market Committee Act, 1963 (hereinafter referred
to as the Act ) and the Agricultural Produce Market Rules, 1965
(hereinafter referred to as the Rules )
5.1 Section
11(1) of the Act provides for composition of the APMC as under:
“11. Constitution of
market committee – (1) Every market committee shall consist of the
following members, namely:-
(i) eight agriculturists who
shall be elected by … … …
(ii) four
members to be elected in the prescribed manner from amongst
themselves by the traders holding licenses;
(iii) two representatives of the
Co-operative marketing societies … … ….”
5.2 Part
III of the Rules provides for election of market committee. Rule 6
provides that the 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. Rule 10 provides that the election shall be held between
such hours and on such date and at such place as may be fixed by the
Director. Thus, the power to fix various stages of election is
conferred on the Director of Agricultural Marketing and Rural
Finance.
The
relevant portion of Rule 5 reads as under :-
“Different lists of
voters:- For the purpose of Section 11, there shall be in respect
of a market committee three separate lists of voters in Gujarati as
follows, namely:-
(1) …..
(2) under clause (ii) of
sub-section (1) of Section 11 of the Act a list of traders holding
general licenses in the market area;
(3) …..
Rules
7 and 8 contain provision for preparation of list of voters. Rule 7
in so far as is relevant for the purpose of this petition reads as
under :-
“7. Preparation of list
of voters for general election:- (1) when ever a general election
to market committee is to be held :
(i) …..
(ii) the market committee shall
communicate the full names of the traders holding general licenses in
the market area together with the place of or residence of each such
trader; and
(iii) ….
to the authorised officer before
such date as the Director may by order fix in that behalf, provided
that the date to be so fixed shall not be later than sixty days
before the date of the general election.”
Sub-rule
(2) provides that the authorised officer shall within seven days from
the date fixed under Sub-rule (1) cause to be prepared the lists of
voters as required by rule 5 on the basis of the information received
under sub-rule (1) and if necessary after making such inquiry as he
may deem fit.
6. After
considering the relevant provisions of the Act and the Rules, this
Court has held in Shrutbandhu
H. Popat vs. State of Gujarat & Ors in 2007(3) GLR 1942
and Kalubhai Ranabhai
Akabari vs. State of Gujarat in 2007(3) GLH 57
that the election officer and the Election Tribunal have no
jurisdiction to examine the challenge to grant, renewal, refusal,
suspension or cancellation of a trader’s license and that such a
challenge will have to be considered by the competent authorities
under sub-sections (3), (4) and (5) of Section 27 of the APMC Act
after making proper scrutiny and after giving an opportunity of
hearing to the affected parties. In the said decisions, this Court
has also held that persons who are granted licenses after the date of
declaration of the elections are not to be included in the voters’
list.
In
Kalubhai Ranabhai Akabari (supra), this Court has also held that 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 of the Rules. A
person who had not obtained the traders license on the relevant date
[the date on which the authorized officer was to be communicated by
the APMC the names of voters under Rule 7(1)] could never be included
in the list of voters.
7. In
the facts of the present case there is no dispute about the fact that
the persons at serial numbers 249 to 397 in the final voters’ list
for the constituency of traders were not granted traders license by
APMC till 14.6.2009. In fact these persons who have been joined in
the representative capacity through respondent nos. 6 and 7 and also
respondent nos. 8 to 12 who have been permitted to be joined at their
own request, had applied to the APMC for traders license on 25.5.2009
and 27.5.2009. 25.5.2009 was also the date on which the Director
passed order declaring election programme which was published in the
newspaper dated 28.5.2009. The licenses were granted/renewed by the
APMC on 15.6.2009 after the preliminary voters’ list was published
under Rule 8(1) on 12.6.2009. Such licenses were granted to in all
139 persons, out of which 100 licenses were fresh licenses and 39
licenses were renewed licenses.
Mr.
Vaghela, learned advocate for the petitioner makes it clear that the
petitioner does not challenge the inclusion of those 39 persons whose
licenses were renewed on 15.6.2009 and that the challenge in this
petition is confined to inclusion of those 100 persons who were
granted fresh license on 15.6.2009 on the basis of their applications
alleged to have been made to APMC on 25.5.2009 and 27.5.2009.
8. The
petitioner had lodged his objections as per the objection dated
10.7.2009 against inclusion of the names of the above persons (in
whose favour APMC granted license on 15.6.2009) in the provisional
list of voters published on 3.7.2009. However these objections were
overruled by the election officer by the impugned order dated
15.7.2009 and on the same date the final voters’ list was published
for the constituency of traders.
9. In
view of the aforesaid decisions of the two Division Benches to which
one of us (Mr. Justice M.S. Shah ) was a party, it is clear that 100
persons, out of the persons at serial numbers 249 to 397, who were
granted fresh traders license for the first time by the APMC on
15.6.2009 on the basis of their applications alleged to have been
made between 25.5.2009 and 27.5.2009, could not have been included in
the final voters’ list.
10. It
is true that ordinarily this Court is not to interfere with the
decisions of the election officer before the elections are held and
that it is for the election tribunal to examine the challenge to the
decisions of the election officer. However in Pundlik
vs. State of Maharashtra & Others in 2005 (7) SCC 181,
the Apex Court has held that though preparation of list of voters is
one of the stages of election and though normally the High Court
would not interfere in exercise of powers under Article 226 of the
Constitution at the stage of preparation of list of voters, however,
where voters’ list is prepared in clear violation of the statutory
rules, such action of the election officer could be immediately
challenged by filing petition under Article 226 of the Constitution.
11. In
Election Commission of India vs. Ashok Kumar & Others, (2000) 8
SCC 216, the Apex Court has laid down following
principles.
(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(b) 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 courts 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.
12. The
above principles are qualified by the Apex Court by the following
observations in the same judgment :-
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 citizens 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.
13. The
two previous decisions of this Court have made it clear that if APMC
grants fresh licenses to a large number of persons after declaration
of the election programme, such action would be destructive of the
democratic process for elections to APMC. The scheme of the Rules
also makes it clear that if a person is granted traders license after
the date on which the APMC is to send the list of traders with
license; obviously such person cannot be included in the list of
voters as already indicated above. On 5.6.2009, the APMC had sent
the list of voters, which included a large number of persons who were
not even granted trader’s license and who had applied for license
only on 25.5.2009 and 27.5.2009 after the Director passed the order
on 25.5.2009 fixing the election programme.
14. Mr.
Tushar Mehta, learned Additional Advocate General with Mr. Nikunt
Raval learned AGP for the respondent Nos. 1 to 4, Mr. B.S. Patel for
respondent No. 5 and Mr. Dipen Desai learned advocate for respondent
Nos. 8 to 12 have opposed the petition and submitted that this
petition may not be entertained as the petitioner had not lodged any
objection against the preliminary voters’ list published on 12.6.2009
and that it was only after publication of the revised draft list or
provisional voters’ list on 3.7.2009 that the petitioner lodged
objections on 10.7.2009. Hence, the authorized officer was not bound
to consider such objection and that if authorized officer had
accepted such objections, such action would have been illegal and
without jurisdiction as held in Chaudhary
Rameshbhai Dalsangbhai & Ors vs. Director, Agricultural Market &
Rural Finance & Anr, 1996(2) GLR 165 and in Mehsana
District Co-op Purchase & Sales Union Ltd vs. Dhadhusan Beej
Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd & Ors.,
1998 (1) GLH 170.
15. In
order to appreciate the above contentions, we may quote Rule 8 which
reads as under :-
8. Provisional and final
publication of lists of voters:-
(1) As soon as a list of voters
is prepared under rule 5, it shall be published by the authorised
officer by affixing a copy thereof at the office of the market
committee and at some conspicuous place in the principal market yard
in the market area along with a notice stating that any person whose
name is not entered in the list of voters and who claims that his
name should be entered therein or any person who thinks that his name
or the name of some other person has been wrongly entered therein or
has not been correctly entered, may, within fourteen days from the
date of the publication of the notice, apply to the authorised
officer for an amendment of the list of voters.
(1-A) After receiving
applications if any, under sub-rule (1) a revised draft list of
voters shall be published by the authorised officer by affixing a
copy thereof on the notice board of Agricultural Produce Market
Committee and at some conspicuous place in the principal market yard
of the market area, alongwith a notice stating that any person who
wishes to raise any objection against any new name entered in this
list, may apply within seven days from the date of publication of
this notice to the authorised officer for an amendment in the revised
draft list of voters.
(2) If any application is
received under [sub-rule (1-A)]. the authorised officer shall decide
the same and shall cause to be prepared and published the final list
of voters, after making such amendments therein as may be necessary
in pursuance of the decision given by him on the application. The
final list shall be prepared at least thirty days before the date
fixed for the nomination of candidates for the election.
16. It
is required to be noted that sub-rule (1A) was inserted in Rule 8
because when a draft list of voters is published under sub-rule (1)
and objections are raised by a person whose name is not included in
the said list, if the election officer finds substance in those
objections he would include the name of such person and if the next
list is published as the final list of voters, a person objecting to
inclusion of name of that person will not get an opportunity to
submit his objection to the election officer. Ordinarily, therefore,
if the names of certain persons are included in the preliminary
voters’ list as well as in the revised draft list, a third party
would not be permitted to raise an objection against the revised
draft list.
17. However,
when the election officer included the names of the concerned persons
who were granted by APMC trader’s license after the Director passed
order on 25.5.2009 fixing the election programme and even after
publication of the preliminary list of voters on 12.6.2009, the issue
goes to the root of the matter. Some times the Courts have to deal
with cases where two conflicting principles are in operation. When a
person makes a will bequeathing his property to his son, upon the
death of the father the law requires that the property of the
deceased must devolve upon the legatee son. However, if the said son
murders his father, would the law allow that son to inherit property
from his father under that will ? The Court would certainly not
allow such legatee son to take advantage of his own wrong.
18. Similarly
in the facts of this case, the Court is required to consider and
decide as to –
(i) whether the principle laid down in Chaudhary
Rameshbhai Dalsangbhai (supra) and in Mehsana District Co-op Purchase
& Sales Union Ltd (supra) should be required to be
implemented, or
(ii) whether the inclusion of the concerned persons in
the voters’ list on 15.7.2009, to which objections were already
raised on 10.7.2009, be permitted to hold the field when their
inclusion in the voters’ list was not only illegal, but also a fraud
on the election process, as held in the two Division Bench decisions
of this Court, because they were granted license on 15.6.2009 on the
basis of their applications made on 25/27.5.2009 after the Director
fixed the election programme on 25.5.2009.
19. In
the facts and circumstances of the case, we have no manner of doubt
that the principles laid down by two Division Benches of this Court
in Shrutbandhu H. Popat (supra) and
in Kalubhai Ranabhai Akabari (supra) must be held to prevail
over the principle that the authorized officer would not entertain
the objections against the inclusion of names of persons in the
provisional voters’ list, who were already included in the
preliminary voters’ list.
20. We
again record the concession made by Mr. Vaghela, learned advocate for
the petitioner that the petitioner does not object to inclusion of
the names of all those persons who were granted trader’s license by
way of renewal.
21. In
the result, the petition is allowed. The impugned order dated
15.7.2009 (Annexure – A to the petition) is quashed and set aside in
so far as the same confirms inclusion of 100 members who were
granted fresh licenses on 15.6.2009 after the Director of
Agricultural Marketing and Rural Finance passed the order on
25.5.2009 fixing the election programme. The names of the said 100
persons represented by respondent Nos. 6 and 7 shall be deleted from
the final voters’ list for the constituency of traders for elections
to APMC, Karjan (District Baroda).
However,
in view of the statement being made by Mr. Vaghela for the petitioner
that the petitioner does not challenge inclusion of names of 39
persons whose licenses were renewed on 15.6.2009, their inclusion in
the final voters’ list is not disturbed.
Rule
is made absolute accordingly.
22. Mr.
Dipen Desai for respondent No. 8 requests for stay of implementation
and operation of this order.
In
the facts of the case, the request is rejected.
[M.S.
SHAH, J.]
[K.M.THAKER,
J.]
Suresh*
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