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SCA/20076/2005 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 20076 of 2005
With
SPECIAL
CIVIL APPLICATION No. 20077 of 2005
To
SPECIAL
CIVIL APPLICATION No. 20084 of 2005
======================================
MOHNI
PIYAT VISTARMA PANINI VAHECHANI MATENI SAHKARI MANDALI AND OTHERS
Versus
AUTHORISED
OFFICER AND COOPERATIVE OFFICER, MARKETING CONCERNED DISTRICT
REGISTRAR, CO-OPERATIVE SOCITIES, SURAT AND OTHERS
======================================
Present
:
Shri Dilip B
Rana for the petitioners.
Shri S.P.Hasurkar, Assistant Government
Pleader for respondent No.1. Shri BS Patel for respondent No.2
None
for respondent No.3.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE G.S.SINGHVI
and
HONOURABLE
MR.JUSTICE P.B.MAJMUDAR
Date
: 25/10/2005
This
is a petition for quashing orders dated 2.9.2005 and 9.9.2005 passed
by respondent No.1 under the Gujarat Agricultural Produce Markets
Act, 1963 (for short, ?Sthe Act??) read with Gujarat Agricultural
Produce Market Rules, 1965 (for short, ?Sthe Rules??).
Petitioner
No.1 is a co-operative society registered under the Gujarat
Cooperative Societies Act, 1961. Petitioner Nos. 2 to 9 are members
of the managing committee of petitioner No.1. Upto 2001, their names
were included in the voters list prepared for election to
Agricultural Produce Market Committee, Surat (respondent No.2) but by
virtue of order dated 2.9.2005 passed by respondent No.1 their names
have been deleted from the voters list and this is the reasons why
they have invoked jurisdiction of this Court under Article 226 of the
Constitution of India.
The
factual matrix of the case lie in a narrow compass.
Director,
Agricultural Markets and Rural Finance, Gujarat vide his letter dated
28.7.2005 issued notice for general election of respondent No.2. In
furtherance of that notice, respondent No.1 sent letter dated
29.7.2005 to petitioner No.1 to forward the names of the committee
members for preparation of the voters list. Accordingly, the names of
petitioner Nos.2 to 9 were sent for inclusion in the voters list of
agriculturist constituency. On 16.8.2005, a preliminary voters list
was published by respondent No.1. The names of petitioner Nos.2 to 9
were shown in that list at serial No.431 to 439. After eight days,
respondent No.1 issued notice dated 24.8.2005 to petitioner No.1
proposing to decide the objections filed by Shri Ranjitbhai Nathubhai
Patel (respondent No.3) against inclusion of the names of petitioner
Nos.2 to 9 in the voters list. The representative of the petitioners
appeared before respondent No.1 on 28.8.2005 and produced documents
showing that petitioner No.1 is dispensing agricultural credit to its
members. However, without considering those documents, respondent
No.1 passed order dated 2.9.2005 whereby he deleted the names of
petitioner Nos.2 to 9 from the voters list on the premise that in the
bye-laws of petitioner No.1, there is no provision for agricultural
credit. The petitioners represented against exclusion of the names of
petitioner Nos.2 to 9 from the voters list but the same was turned
down by respondent No.1 vide order dated 2.9.2005.
The
petitioners have challenged the impugned orders on various grounds
including the one that order dated 2.9.2005 is vitiated due to
violation of the rules of natural justice. They have also pleaded
that the decision to exclude the names of petitioner Nos.2 to 9 from
the voters list is actuated by malice and that the impugned orders
are violative of Article 14 of the Constitution in as much as the
names of the committee members of other similarly situated
cooperative societies have been included in the voters list. In
paragraph 3.7 [A], the petitioners have averred that order dated
2.9.2005 was passed without supplying copy of the objections filed by
respondent No.3. That paragraph reads as under :
?SThe
petitioners submit that pursuant to the notice given by the
Authorised Officer to the petitioner society for hearing the
objections with regard to inclusion of their names in the preliminary
voters list published on 28.8.2005, the petitioner society produced
the relevant documents showing that the society is dispensing
agricultural credit to its members. It is pertinent to that the
Authorised Officer had not supplied the copy of the objection raised
by the objector whose name is referred in the order dated 02.09.2005
and therefore, this is a clear case of violation of principles of
natural justice by not supplying the relevant documents which is
relied upon by the Authorised Officer. It is submitted that
without considering those documentary evidence and more particularly,
the societies similarly situated to the petitioner society as
referred in para 3.11 of the petition are included in the voters list
published by the same respondent Authorised Officer of APMC, Valod
and APMC, Vyara. It is submitted that those similarly situated
societies are having same Bye-laws as compared to the petitioner
society and the objects are also same with compared to the petitioner
society and therefore, this is a clear case of violation of Article
14 of the Constitution of India.??
(underlining
is ours)
Rule
of the writ petition has been served on the non-petitioners No.1 and
2. Respondent No.3 refused to accept notice. To this effect Shri
Rajendrakumar Patel, son of Shri Thakorbhai Patel, Chairman of
petitioner No.1 has filed affidavit dated 19.10.2005.
In
the reply affidavit filed by him, respondent No.1 has averred that
order dated 2.9.2005 was passed after giving opportunity of hearing
to the petitioners. According to him, the names of petitioner Nos.2
to 9 were excluded from the voters’ list because they do not satisfy
the requirement of Section 11 (1) of the Act read with Rule 5 of the
Rules. In paragraph 5 of his counter affidavit, respondent No.1
averred as under :
?SI
state that an ample opportunity was granted to petitioners for
hearing before passing both the impugned orders. The petitioners were
called for hearing vide letter dated 26.9.05 for hearing scheduled on
31.8.05. On the same day, the petitioners were heard and their
records were perused by me as well as other Officers. Annexed
herewith and marked as Annexure-I to this reply is a copy of the
letter dated 26.8.05. The said letter was delivered to the
petitioners in person and they remained present before the
authorities as per opportunity given in the letter. On 31.8.05, their
records were checked so as to ascertain whether in fact, petitioners
Society is disbursing Agricultural Credit. Perusing the record, it
was found that the petitioners Society is not disbursing agricultural
credit and therefore, the order under challenge was passed. Auditors
Report dated 9.6.05 clearly state that the petitioners Society is not
disbursing any agricultural credit.??
We
have heard learned counsel for the parties. Shri D.B.Rana, learned
counsel for the petitioners gave out that his clients will not
challenge the election held on the basis of the electoral rolls
prepared after passing of orders dated 2.9.2005 and 9.9.2005 but
submitted that those orders may be quashed on the grounds of
violation of rules of natural justice, mala fide exercise of powers
and non-application of mind by respondent No.1, else petitioner Nos.2
to 9 and other members of the managing committee of petitioner No.1
will be deprived of opportunity to cast vote in future elections as
well. He submitted that the opportunity of hearing given by
respondent No.1 was a farce because copy of the objections filed by
respondent No.3, which constituted the foundation of notice dated
24.8.2005 was not supplied to the petitioners.
Shri
S.P.Hasurkar, learned Assistant Government Pleader and Shri
B.S.Patel, learned counsel for respondent No.2 fairly stated that
they are not in a position to show that copy of the objections filed
by respondent No.3 had been supplied to the petitioners and they were
given opportunity to controvert the allegations contained therein.
In
our opinion, the opportunity of hearing given by respondent No.1 in
the context of show cause notice dated 24.8.2005 cannot be treated as
an effective opportunity of hearing because the copy of the
objections filed by respondent No.3 was not supplied to the
petitioners and they they were not given chance to rebut the
allegations contained therein. It is settled law that every
administrative or quasi-judicial authority entrusted with the task of
deciding lis between the parties or passing an order, which may
adversely affect some person must act in consonance with the basics
of natural justice. Such an authority is duty bound to comply with
the rule of audi altrem partem. This
necessarily means that the affected person must be given action
oriented show cause notice and must be supplied with material sought
to be relied against him or which constitutes the basis of the
proposed adverse action. If such material is not disclosed or
supplied to the noticee then the opportunity of hearing cannot be
treated as effective opportunity and action taken or order passed by
the concerned authority is liable to be nullified on the ground of
violation of rules of natural justice. In State of Orissa v. Dr.
(Miss) Binapani Dei and others, AIR 1967 SC 1269, the Supreme
Court considered the question relating to applicability of the rules
of natural justice to administrative actions and held as under :
?SAn
order by the State to the prejudice of a person in derogation of his
vested rights may be made only in accordance with the basic rules of
justice and fairplay. The deciding authority, it is true, is not in
the position of a Judge called upon to decide an action between
contesting parties, and strict compliance with the forms of judicial
procedure may not be insisted upon. He is, however, under a duty to
give the person against whom an enquiry is held an opportunity to set
up his version or defence and an opportunity to correct or to
controvert any evidence in the possession of the authority which is
sought to be relied upon to his prejudice. For that purpose the
person against whom an enquiry is held must be informed of the case
he is called upon to meet, and the evidence in support thereof. The
rule that a party to whose prejudice an order is intended to be
passed is entitled to a hearing applies alike to judicial tribunals
and bodies of persons invested with authority to adjudicate upon
matters involving civil consequences. It is one of the fundamental
rules of our constitutional set-up that every citizen is protected
against exercise of arbitrary authority by the State or its officers.
Duty to act judicially would, therefore, arise from the very nature
of the function intended to be performed: it need not be shown to be
super-added. If there is power to decide and determine to the
prejudice of a person, duty to act judicially is implicit in the
exercise of such power. If the essentials of justice be ignored and
an order to the prejudice of a person is made, the order is a
nullity. That is a basic concept of the rule of law and importance
thereof transcends the significance of a decision in any particular
case.??
In
the present case, it is an undisputed position that copy of the
objections filed by respondent No.3, which led to the issuance of
notice dated 24.8.2005 and resulted in passing of order dated
2.9.2005 was not supplied to the petitioners and they were not given
opportunity to controvert the allegations contained therein.
Therefore, there is no escape from the conclusion that they were
condemned unheard and the orders passed by respondent No.1 are
liable to be quashed on the ground of violation of the rules of
natural justice.
In
view of the above conclusion, we do not consider it necessary to deal
with other questions raised in the petition.
In
the result, the Special Civil Application is allowed. Orders dated
2.9.2005 and 9.9.2005 passed by respondent No.1 are quashed with a
direction that the said respondent shall decide the issue of
exclusion of the names of petitioner Nos.2 to 9 from the voters list
of respondent No.2 afresh after supplying a copy of the objections
filed by respondent No.3 and giving opportunity of personal hearing
to the parties. The officer concerned should supply a copy of the
objections of respondent No.3 to the petitioners within 10 days from
the date of submission of the certified copy of this order. The
petitioner shall be at liberty to reply to the objections within next
two weeks. It is expected that the officer concerned will decide the
matter and pass appropriate order within a maximum period of three
months from the date of receipt of copy of this order.
Copies
of this order be placed on the record of Special Civil Application
Nos.20077 to 20084 of 2005.
(G.S.SINGHVI)
JUDGE
(P.B.MAJMUDAR)
JUDGE
/malek
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