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SCA/13689/2009 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13689 of 2009
With
SPECIAL
CIVIL APPLICATION No. 1548 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5007 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5170 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Sd/-
=========================================================
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 ? 1 &
2: YES; 3 to 5 NO
=========================================================
RAMESHBHAI
GANESHBHAI CHAUDHARI - Petitioner(s)
Versus
STATE
OF GUJARAT & 22 - Respondent(s)
=========================================================
Appearance
:
MR
MIHIR JOSHI with MR DIPEN A DESAI
for
Petitioner(s) : 1,
MR PK JANI GOVERNMENT PLEADER for Respondent
State in SCA 13689/09 and MR AJ DESAI AGP for respondent State in
SCAs 1548, 5007 & 5170/10
NOTICE SERVED BY DS for
Respondent(s) : 1 - 4, 12, 16,18 - 21.
MR PC KAVINA with MS.J
K.MEHTA for Respondent(s) : 4,
MS AVANI G THAKKER for
Respondent(s) : 5,8-9,13-15, 17, 20,22-23.
MR VC VAGHELA for
Respondent(s) : 6,
MR VIJAY PATEL for HL PATEL ADVOCATES for
Respondent(s) : 7,10 -
11.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 06/10/2010
CAV
JUDGMENT
(Per
: MR.JUSTICE D.H.WAGHELA)
1. All
these petitions are stated to be involving common issues and hence
they are heard together for final disposal at the request of learned
counsel. SCA No.13689 of 2009 was decided on 29.1.2010 by another
Division Bench of this Court but, upon that decision being carried in
appeal, the Supreme Court has remanded the matters by order dated
03.6.2010 in Civil Appeal No.1706 of 2010 with the direction as
under:
……Looking
to the facts and circumstances of the case, we are of the opinion
that it is a fit case which deserves to be remanded to the High Court
for considering the objections of the appellant herein elaborately
and in more details, in accordance with law, after giving opportunity
of hearing to both sides. Since the matter pertains to election of
Market Committee, it is desirable that it would be heard afresh in
accordance with law on merits at an early date. The impugned order
is, therefore, set aside. It is further necessary to order that until
a final order is passed by the Division Bench, process of election
would not commence.
2. In
SCA No.13689 of 2009, the petitioner is an agriculturist operating
in the market area of respondent No.5, Agricultural Produce Market
Committee (APMC), Sidhpur and has challenged as illegal the inclusion
of respondents No.5 to 23 societies in the provisional voters’ list
published on 17.12.2009 for election of the committee. According to
him, against inclusion of the names of respondents No.5 to 23
societies in the preliminary voters’ list, he had submitted his
objections but their names appeared in the final voters’ list
published on 29.12.2009 and hence, he approached this Court under
Article 226 of the Constitution. The objections of the petitioner
were decided and rejected by the impugned order dated 17.12.2009 of
authorised officer. The main objection of the petitioner, which is
the bone of contention all throughout, was that the aforesaid
respondent co-operative societies were, by their very name and
objectives, dealing with the activities of animal husbandry and milk
produce, and hence could not be included in the constituency for
agriculturist members of the APMC. The main contentions of the
respondents herein were confined to the submissions that those
co-operative societies were in fact as well dispensing agricultural
credit in the market area and the petitioner ought to have been
relegated to the alternative appropriate remedy of raising an
election dispute under Rule 28 of the Gujarat Agricultural Produce
Markets Rules, 1965 (for short, the Rules ), even as the
election process had already commenced at the relevant time.
2.1 In
SCA No.1548 of 2010, similar grievance is made against inclusion in
the voters’ list of respondents No.4 to 8 therein and the orders
dated 18.01.2010 of the Authorized Officer rejecting the petitioner’s
objections are called into question. This Court has, by order dated
05.03.2010 therein, stayed election of APMC, Harij.
2.2 In
SCA Nos.5007 of 2010 and 5170 of 2010, petitioner societies have
made a grievance against their representatives’
exclusion from the voters’ list by the impugned orders dated
19.4.2010 and 15.4.2010 respectively, which orders are based upon the
earlier decision dated 29.01.2010 of this Court in SCA No.13689 of
2009 referred hereinabove. This Court has, by interim orders dated
27.4.2010 and 22.4.2010 stayed elections of APMC, Deodar and APMC,
Bhabhar respectively in the said petitions.
2.3 Thus,
the common issue of legality or otherwise of inclusion of members of
managing committees (MMCs) of various co-operative societies in the
voters’ list of respective APMCs has arisen as such societies are
named as and alleged to be engaged in the activities related to
animal husbandry. Such co-operative societies popularly known and
named as gopalak sanghs with different prefixes are described
hereunder for convenience as respondents and facts are taken
from the main and first SCA No.13689 of 2009.
3. Before
embarking upon the analysis and discussion related to the main and
major issue required to be resolved, it would be appropriate to
address the preliminary issue of maintainability of the petitions
despite availability of alternative remedy. There is little doubt
and no serious controversy about the fact that the co-operative
societies concerned have, as one of their objects and actual
activities of dispensing agricultural credit, the factual aspect
whereof is already ascertained by the authorised officer. It could
also not be gainsaid that, after the above directions of the Apex
Court, the election process has to commence anew and hence it cannot
be contended that this Court may not intervene while the process of
election is underway. Prima facie, the decision on the
aforesaid main and major legal issue goes to the root of election
process and may in any case be required to be finally decided by this
Court.
3.1 It
was, however, argued on behalf of the respondents that there was no
exceptional circumstance or extraordinary requirement to justify
interference by this Court by exercising extraordinary jurisdiction,
when alternative remedy was available to the petitioner. Full Bench
decision of this Court in Daheda Group Seva
Sahakari Mandli Ltd. vs. R.D.Rohit, Authorised Officer &
Co-Operative officer (Marketing) [2006 (1) GCD 211]
was relied upon for the following propositions laid down therein:
32. …….The
sum and substance of those decisions apply to a situation where this
Court would like to entertain a petition on the foundation that the
order is ultra vires and/or without jurisdiction and/or is violating
principles of natural justice. Thus, in an exceptional case, this
Court can exercise the power of judicial review, which is a basic
structure of the situation (sic: Constitution) in such cases more
particularly, in the election process. One thing is clear that this
Court ordinarily would not like to exercise its power under Article
226 of the Constitution when the process of election has been set in
motion even though there may be some alleged illegality or breach of
rules while preparing the electoral roll.
33. In
view of the above discussion, we answer the Reference as under:
i. A
person whose name is not included in the voters’ list can avail
benefit of provisions of Rule 28 of the Rules by filing Election
Petition.
ii. As
the authority under rule 28 has wide power to cancel, confirm and
amend the election and to direct to hold fresh election in case the
election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even
though a 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.
3.2 However,
another Division Bench has taken a slightly different view on the
basis of subsequent decisions of the Supreme Court and in a recent
decision in Patel Chandrakant Thakorbhai v. State
of Gujarat [2009 (3) GLH 343], observed as under:
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 v. State of Maharashtra [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 v. Ashok Kumar [(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) …..
(4) …..
(5) …..
3.3 In
Kalubhai Ranabhai Akabari v. State of Gujarat
[2007 (3) G.L.H.57], this Court has clearly observed,
in the same context, that the High Court may, in the facts of a given
case, entertain a petition challenging illegality of the list of
voters, even after commencement of the election process, if the list
is not prepared in accordance with law.
Against
the backdrop of aforesaid facts, stage of election process and
judicial dicta, it is clearly appropriate, expeditious and in the
interest of justice that the law in respect of inclusion of MMCs of
co-operative societies in question is settled now. Therefore, the
preliminary objection based on availability of alternative remedy is
overruled.
4. Without
raising any peripheral, factual or other issues, learned counsel for
the petitioners have concentrated on addressing inclusion in the
voters’ list of the members of the respondent co-operative societies,
mainly on the basis of the amendment by way of Gujarat Act No.21 of
2006 published in the Official Gazette on 31.3.2006 and Circular
dated 13.7.2006 pursuant thereto, instructing all authorized
officers to undertake election of the Market Committees keeping in
view the aforesaid amendment.
5. The
Statement of Objects and Reasons of the Gujarat Act No.21 of 2006 and
the relevant parts of the statutory provisions after amendment by the
Gujarat Act No.21 read as under:
Statement
of Objects and Reasons:
Since
the animal husbandry products are not agricultural produce and it is
not the produce from the land, it is considered necessary to delete
the animal husbandry products from the definition of the agricultural
produce in Sec.2 and also from the Schedule, appended to the Gujarat
Agricultural Produce Markets Act, 1963. Incidentally, clause (i) of
sub-section (1) of Section 11 of the said Act is also amended
accordingly. This Bill seeks to amend the said Act to achieve the
aforesaid objects.
Gujarat
Agricultural Produce Markets Act, 1963:
An Act
to consolidate and amend the law relating to regulation of buying and
selling of agricultural produce and the establishment of markets for
agricultural produce in the State of Gujarat.
Sec.2
Definitions: In this Act, unless the context otherwise
requires –
(I) “agricultural
produce” means all produce, whether processed or not, of
agriculture and horticulture, specified in the Schedule;
(ii) “agriculturist”
means a person who ordinarily by himself or who by his tenants or
hired labour or otherwise is engaged in the production or growth of
agricultural produce, but does not include a trader or broker in
agricultural produce, although such a trader or broker may also be
engaged in the production or growth of agricultural produce;
(v) “co-operative
marketing society”
means a society registered or deemed to be registered as such under
the Gujarat Co-operative Societies Act, 1961 (Gujarat Act of 1962)
and engaged in the business of buying or selling of agricultural
produce or of processing of agricultural produce and holding a
licence;
Sec.11
Constitution of market committee.
(1) Every
market committee shall consist of the following
members,namely:
(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 area;
(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 licences, 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 :
Provided
that ……..
(iv) one member to be nominated by the local
authority …………
Provided
that ……
(2) …..
(3) …..
(4) …..
(5) …..
Prior
to the 2006 Amendment, section 2 (1) of the Act read as under:
S.2(1) agricultural
produce means all produce, whether processed or not, of
agriculture, horticulture and animal husbandry, specified in the
Schedule.
And
S.11 (1) (i)
formerly read as under:
(1) Every
market committee shall consist of the following members,
namely:
(i) eight
agriculturists who shall be elected by members of managing
committees of co-operative societies (other than co-operative
marketing societies) dispensing agricultural credit in the market
area.
6. Relying
upon exclusion of the words animal husbandry in section
2 (i) and addition of the words and milk produce co-operative
societies in section 11 (1) (i); and exclusion of all items under
the head animal husbandry products from the Schedule, it
was argued that the MMCs of co-operative societies, such as the
respondent societies, which were primarily formed by and catering to
the needs of cattle breeders producing animal husbandry products
could not legally be included in the voters’ list for the
agriculturists’ constituency. Elaborating that contention, it was
submitted by learned counsel Mr.Dipen Desai and learned senior
advocate Mr.Mihir Joshi that milk produce co-operative societies have
been excluded as a class from the constituency and their dispensing
agricultural credit, incidentally or as a subsidiary part of their
main objects and activities, could not be considered for the purpose
of their inclusion in the voters’ list. It was further submitted that
when all the animal husbandry products were excluded from the
Schedule so as to confine the operation of the Act to only
agricultural and horticultural produce, excluding animal husbandry
products, the co-operative societies dealing with animal husbandry
products cannot have a place in the constituency, even without
amendment of Section 11 of the Act. It was also submitted that
agricultural co-operative societies dispensing agricultural credit
are in a separate class and any other co-operative society catering
to the cattle breeders or dealing with animal husbandry products are
not allowed to have any say in the constitution of the market
committee in view of the amended statutory scheme. It was further
argued that just as the co-operative marketing societies were, as a
class, excluded from the constituency, milk produce co-operative
societies were, as a class, excluded from the constituency
popularly known as agriculturists’ constituency .
7. As
against the above contentions of the petitioners, it was submitted
for the respondents, including the authorities of the State
Government, that all co-operative societies dispensing agricultural
credit were forming the agriculturists’ constituency, with the only
exception of co-operative marketing societies, and now the milk
produce co-operative societies. It was submitted that the
respondent societies were found, after enquiry, to be actually
dispensing agricultural credit and hence could not be excluded from
the constituency only by branding them as milk produce co-operative
societies. It was submitted that factually and in reality even the
co-operative societies having as its main object catering to the
needs of and facilitating breeding of cattle, were extending
agricultural credit as a part of their main activities, because many
agriculturists were simultaneously breeding cattle and producing
animal husbandry products. It was further submitted that, in reality,
milk producers’ co-operative societies are registered as such and
they have a different pyramidical structure with primary milk
producers societies at the local level, district co-operative milk
producers’ unions and Gujarat Co-operative Milk Marketing Federation
at the State level. It was submitted by learned counsel
Mr.V.C.Vaghela and learned counsel Mr.Vijay Patel that the model
bye-laws of such milk producers’ co-operative societies were
different; whereas the respondent co-operative societies were
registered as multi-purpose co-operative societies of cattle
breeders, whose members could as well be agriculturists. The main
activity of such members could be rearing of animals or farming for
fodder and incidentally producing milk. But they were certainly not
exclusively the co-operative societies of only milk producers insofar
as credit facilities could be extended to them under the bye-laws
which were shown and submitted to be different from the bye-laws of
milk producers’ co-operative societies.
8. It
may be pertinent to note here that, as stated on oath by the
Authorized and Co-operative Officer (Market) for APMC, Sidhpur,
by-laws of the societies in question specifically provided for
dispensing agricultural credit and such societies had in fact
advanced/dispensed agricultural credit to their members. The
Secretary of APMC, Sidhpur has averred that milk producing societies
were registered only for procuring milk and to aid cattle breeders,
whereas the societies in question were Vividh Karyakari Sahakari
Mandlies, i.e. multi-purpose co-operative societies. Even the
petitioner, objecting to inclusion of the MMCs of such
cattle-breeders’ societies, has averred that as per instructions
dated 14.08.2003 issued by the Registrar, Co-operative Societies,
Gopalak Multi-purpose Co-operative Societies were required to be
established to settle the ‘gopalaks’ who were moving from one place
to another along with their cattle, by establishing a society and
giving them lands on which they could settle. It is clearly mentioned
in the circular dated 21.09.2004 of the Registrar, Co-operative
Societies that different multi-purpose co-operative societies are
established with the main objective of extending agricultural credit,
wherein persons of any cattle-breeding community could be members;
while other milk producing co-operative societies were also
registered in large numbers. Thus, there is a clear and discernible
difference between multi-purpose co-operative societies extending
agricultural credit and the co-operative societies exclusively
dealing in milk produce or constituted for producing or procuring
milk, which may be known as milk producers’ society. However, there
is no well-defined class of milk produce co-operative societies ,
in fact or in law and no society is even alleged to be specially
registered as such or to whom the above epithet could be applied.
8.1 In
the recent decision of Division Bench of this Court in Jagdishbhai
Ranchhodbhai Patel v. State of Gujarat [(2008) GLHEL-HC-220473],
the Court has made the following pertinent observations:
13. …..Nothing
in the language of Sec.11 of the Act of 1963 suggests that the
co-operative societies dispensing agricultural credit, which form the
electorate for election of eight agriculturists, are required to
carry on the function of dispensing agricultural credit exclusively
or that if they take up any other function they would forfeit their
right to elect eight agriculturist members.
15. ……In
our opinion, so long as the appellant societies are real and genuine;
are dispensing agricultural credit in the market area; and are not
the co-operative marketing societies within the meaning of Sec.2 (v)
of the Act of 1963, the members continue to enjoy right to elect
agriculturist-members of the market Committee.
16. We
are also of the opinion that registration of a society under the
Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as,
the Act of 1961 ) is for the purpose of that Act. The
classification made under that Act cannot govern the status of a
society under the Act of 1963. We are, therefore of the opinion that
the registration of the appellant-Societies as credit co-operative
societies under the Act of 1961 is of no consequence……
9. Considering
the rival submissions in light of the statutory provisions, effect
of the amendment and the precedents, none of which directly applies,
it was seen that exclusion of animal husbandry products from the
Schedule and from the definition of agricultural produce
appears to have been intended to see that buying and selling of
animal husbandry products was no longer to be regulated by the
provisions of the Act. On the other hand, in the matter of
constitution of the Market Committee, while representatives of
co-operative marketing societies formed a distinct and separate
constituency, no representation is intended or reserved for milk
produce co-operative societies . By virtue of the exceptions carved
in the constituency for agriculturists by bracketing two classes of
co-operative societies in Section 11 (1) (i), the constituency is
made to consist of all kinds of co-operative societies, howsoever
named, described or registered, if they are dispensing agricultural
credit in the market area. While co-operative marketing society
is defined in section 2 (v), the words co-operative societies
or milk produce co-operative societies are not defined in the
Act. Therefore, strictly interpreting the exception and exclusion, it
has to be inferred that whichever co-operative society is dispensing
agricultural credit in the market area is intended to be included in
the constituency. That proposition finds indirect support from
perusal of the definition of co-operative marketing society
insofar as it is defined to be a society registered or deemed to be
registered as such under the Gujarat Co-operative Societies Act and
engaged in the business of buying and selling agricultural produce or
of possessing agricultural produce and holding a licence. The words
as such in the definition are of special significance because
co-operative marketing society, even if it were having various
objects and activities including extending agricultural credit, it
would be distinguished by its birth-mark of having been registered as
a co-operative marketing society. Instead of defining another class
of co-operative societies by such birth-mark or some other essential
indicator, the legislature has left the phrase milk produce
co-operative societies undefined and left their identification to
the authorities and the courts in case of dispute. Thus, the only
legislative guidance provided in the provision is by indicating the
society’s activity of dispensing agricultural credit in the market
area. Under such circumstances, the authorised officers were
justified in holding a factual enquiry into the actual activities of
the co-operative societies in question and they have found that such
societies were genuinely dispensing agricultural credit in the market
area.
9.1 Looking
at the controversy from the different angle suggested by learned
counsel Mr.Vaghela and Mr.Vijay Patel, it clearly appears that there
is a different set up and structure for milk producers’ co-operative
societies, whereas the respondent-societies are not even alleged to
be falling into those categories of societies which were primarily or
exclusively dealing with production, collection and supply of milk.
Under such circumstances, exclusion of animal husbandry produce from
the definition of agricultural produce and exclusion of
animal husbandry products from the Schedule have no relevance
for resolving the present controversy. Exclusion of animal husbandry
products from the operation of the Act has nothing to do with
continuing the representation in the APMC of co-operative societies
extending agricultural credit. Unfortunately, neither the phrase
milk produce co-operative societies nor agricultural credit
is defined in the Act and otherwise also their application in a
particular case calls for factual enquiry which the Authorized
Officer undertakes in case of dispute, under Rule 28 of the Rules.
Now, as and when voters’ lists are prepared afresh for the election
of APMCs concerned, factual disputes could be raised by the
objectors and the decision of the Authorized Officer in that regard
could as well be challenged in accordance with law.
10. In
the facts and for the reasons discussed hereinabove, Special Civil
Applications No.13689 of 2009 and 1548 of 2010 are dismissed.
Special Civil Applications No.5007 of 2010 and 5170 of 2010 are
allowed, with the direction that the orders dated 19.4.2010 and
15.4.2010 impugned therein are set aside. Interim relief operating
in all the petitions are vacated. Rule issued in the first two
petitions is discharged and
Rule
issued in the other two petitions is made absolute accordingly. It is
clarified that the parties in all the petitions shall be at liberty
to raise such objections as may be available to them when the
election programme for fresh elections is declared, and such
objections are to be decided on their own merits in accordance with
law declared hereinabove. Before parting with the judgment, it is
pertinent to observe that while amending the Act by the Amending Act
No.21 of 2006, the legislature could have defined the phrase milk
produce co-operative society and even now it can be done by a
suitable amendment to avoid multiple litigations and complications in
the matter of elections to the APMCs in the Gujarat State.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(
S.R.Brahmbhatt, J.)
Upon
pronouncement of the judgment today, learned counsel Mr.Dipen Desai
requested to grant stay against operation of this judgment and order
for a period of four weeks. Learned counsel for the respondents
submitted that elections for the institutions of local
self-government being underway, the elections in the APMCs concerned
are not likely to take place till the first week of November, 2010.
Even otherwise, there is no justification for granting stay against
operation of the present judgment and order. Therefore, the request
is rejected.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(
S.R.Brahmbhatt, J.)
(KMG
Thilake)
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