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SCA/10294/2011 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10294 of 2011
TO
SPECIAL
CIVIL APPLICATION No. 10299 of 2011
WITH
SPECIAL
CIVIL APPLICATION No. 10361 of 2011
SPECIAL
CIVIL APPLICATION No. 10362 of 2011
SPECIAL
CIVIL APPLICATION No. 10364 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH Sd/-
======================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
======================================
SHREE
NANI MARAD SEVA SAHAKARIMANDLAI LTD, THRO ITS CHAIRMAN - Petitioner
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 16 - Respondents
======================================
Appearance
:
MR MIHIR
THAKORE, SENIOR ADVOCATE ASSISTED BY MR NK PAHWA FOR M/S
THAKKAR ASSOC. for Petitioners.
MR PK JANI, GOVERNMENT PLEADER
ASSISTED BY MR NJ SHAH, AGP for Respondent No. 1.
None
for Respondent Nos.2, 6.
NOTICE SERVED BY DS for Respondent No. 3.
MR HS MUNSHAW for Respondent No. 3.
MR BS PATEL ASSISTED BY
MR CHIRAG B PATEL for Respondent No. 4.
MR PS CHAMPANERI for
Respondent No. 5.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 09/09/2011
COMMON ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. These
writ petitions have been filed by the petitioners who are members of
Co-operative Societies dispensing agricultural credit in the market
area. With the consent of the learned counsel for the parties, all
these petitions are heard together on merits and they are being
disposed of by this common judgment as they pertain to the same
question of law involved in these petitions. Special Civil
Application No.10294 of 2011 shall be the leading writ petition.
2. The
Director of Agricultural Marketing and Rural Finance, Gujarat State
issued a notification dated 21.06.2011 fixing the date of election of
Agriculture Produce Market Committee, Dhoraji, District Rajkot (for
short the APMC) which is in vernacular (Gujarati) and its English
translation is extracted as under :-
Notice
instructing about General Election-2011 of Agriculture Produce Market
Committee, Dhoraji, Taluka Dhoraji, District Rajkot.
Intimation
is hereby given to all the concerned of the market area of
Agriculture Produce Market Committee, Dhoraji, Taluka Dhoraji,
District Rajkot that as per the provision made in section -11 of the
Gujarat Agriculture Produce Market Act, 1963, as the period of the
existing Committee is going to be over, the programme with regard to
the general election of the said Committee has been kept as mentioned
below. In this connection, this notice is published under Rule-
10(2) of the Rules of the Gujarat Agriculture Produce Market of the
year 1965.
Name of Market Area
Name of Polling Station.
Name of members to elect
Date, Place and time for
giving letters of nomination.
Date, Place and time for
verifying letters of nomination.
Date of withdrawal of
candidature.
Date of Election
Date, Place and time of
vote counting.
1
2
3
4
5
6
7
8
Agriculture
Produce Market Committee, Dhoraji, Tal. Dhoraji, Dist. Rajkot.
(1) Farmer
Section
(2) Trade
Section
(3) Section
of Co-operative Marketing Societies
8
4
1
Date :
12.09.2011 in
the office of Agriculture Produce Market Committee, Dhoraji, Tal.
Dhoraji, Dist. Rajkot. Time : From 11.00 a.m. To 17.00 p.m.
Date :
13.09.2011 in
the office of Agriculture Produce Market Committee, Dhoraji, Tal.
Dhoraji, Dist. Rajkot. Time : From 11.00 a.m. Till completion. .
Date :
16.09.2011 in
the office of Agriculture Produce Market Committee, Dhoraji, Tal.
Dhoraji, Dist. Rajkot. Time :
From 11.00
a.m. To 15.00.
Date :
26.09.2011 in
the office of Agriculture Produce Market Committee, Dhoraji, Tal.
Dhoraji, Dist. Rajkot. Time :
From 9.00
a.m. To 17.00.
Date :
27.09.2011 in
the office of Agriculture Produce Market Committee, Dhoraji, Tal.
Dhoraji, Dist. Rajkot. Time : From 9.00 a.m. Till completion.
No.bsr/01/th/1908/2011,
The Director, Agriculture Market and Rural Economy,Block No.13/2, Dr.
Jivraj Mehta Bhawan, Gujarat State, Gandhinagar, dtd.21/3/11.
Sd/-
illegible
(
M.D.Chauhan )
The
Director, Agriculture Market and Rural Economy, Gujarat State,
Gandhinagar.
Note:
Each candidate shall deposit Rs. 100/- along with candidature letter
in the office of the District Registrar, Co-Operative Assembly,
Rajkot, Dist. Rajkot and the receipt shall be produced along with the
letter of appointment.
2.1. The
Director of Agricultural Marketing and Rural Finance, Gujarat State
also issued an order on 21.06.2011 appointing Co-operation Officer
(Marketing) and District Registrar as Authorized Officer to conduct
the elections and under Rule 7 (1) fixed 12.07.2011 for sending the
list of voters by the Co-operative Societies which were dispensing
agricultural credit, to the Authorized Officer for preparing voter
list for election of APMC.
3. The
Director of Agricultural Marketing and Rural Finance, Gujarat State,
thereafter, announced the detailed programme for holding elections of
APMC, Dhoraji, District Rajkot is in vernacular (Gujarati) and its
English translation is as under :-
Sr.
No.
Particulars of Programme
Date
01.
Declaration of Election.
05.07.2011
02.
To give instruction to the Authorized Officer to
prepare voters’ list.
05.07.2011
02 (a).
Date of forwarding voters’ list to the
Authorized (Rule – 7)
12.07.2011
03.
Primary Publication of voters’ list within 7
days from the date of calling for list. (Rule 7 (2))
12.07.2011
04(a).
Last date for submitting application for
objection and addition and alteration in primary publication
list, within 14 days from the date of primary (Rule 8 (1))
29.07.2011
04(b).
Last date for submitting alteration / objection
against republished primary voters’ list. (Rule 8 (1) (a)).
10.08.2011
5.
Final publication of voters’ list.
12.09.2011
6.
Date of submission of nomination forms (Rule 10
(2)) from Morning 11 to Evening 5 O’clock.
12.09.2011
7.
Primary notification of nomination forms
(Rule-14)
12.09.2011
8.
Verification of nomination forms (Rule-15) from
Morning 11 to it is completed.
13.09.2011
9.
Date of withdrawing nomination forms Rule 17 (1)
from Morning 11 to 3 O’clock.
16.09.2011
10.
Final publication of list of candidates Rule 17
(2)
16.09.2011
11.
Day of election from Morning 9 to 5 O’clock.
26.09.2011
12.
Date of counting of vote from Morning 9 to 5
O’clock.
27.09.2011
13.
Date of result of election (Rule-21)
27.09.2011
4. In
these writ petitions, the petitioners have challenged the
order/public notice dated 10.08.2011 by which the objection filed
under Rule 8 (1-A) by the petitioners on 05.08.2011 and 07.08.2011
challenging the revised voter list published under Rule 8 (1-A) on
31.07.2011. The main objection of the petitioners was that 12
co-operative societies have been registered by the Registrar,
Co-operative Societies on 02.07.2011 and on other dates upto
14.07.2011 and their members have been treated to be valid members
and their names have wrongly been included in the revised voter list
though their names did not figure in the preliminary voter list which
was published on 15.07.2011.
4.1 It
is stated in the affidavit-in-reply that under the Gujarat
Agricultural Produce Market Rules, 1965 (for short Rules 1965), the
petitioner has right to object to the name mentioned in the
preliminary/ provisional voter list. It has also been stated that in
view of the Full Bench decision of this Court in Daheda
Group Seva Sahakari Mandli Limited v. R.
D. Rohit, Authorized Officer and Co-Operative Officer (Marketing)
2006-GCD-211
and other
decisions, inclusion or exclusion of name in the voter list could not
be considered under Article 226 of the Constitution of India and the
remedy of the petitioners lies under Rule 28 of the Rules 1965 for
filing election petition.
4.2 It
is further stated that since all the 12 Societies have been
registered prior to notification by the Director, Agricultural
Marketing and Rural Finance, Gujarat State for holding election of
the Market Committee, the names of the Managing Committee of the
Societies have rightly been included in the voter list by the
Authorized Officer. It has been reemphasized that the members of the
respondent No.4 Society had collected deposits which have been
disbursed to the needy members of the society. Hence, it is clear
that the Society is dispensing agricultural credit on the date of
declaration of the election.
5. The
other challenge by the petitioners in these writ petitions is to the
order dated 02.07.2011 passed by the Additional District Registrar,
Co-operative Societies (Panchayat) Co-operative Societies and Member,
District Technical Committee, District Panchayat, Rajkot, respondent
No.3, by which the respondent No.4 Shree Bhadajalia Seva Sahkari
Mandali Ltd. and other Seva Sahkari Mandali Ltd., have been
registered. The petitioner has also challenged the order passed by
the State Government dated 31.8.1981.
5.1 The
objection to the registration of the 12 Co-operative Societies by the
petitioners is based on the fact that the petitioner society operates
in village Nani Marad and Bhadajalia of Taluka Dhoraji, District
Rajkot. The petitioner has 320 Members, out of which, 138 members
have availed the agricultural credit from the petitioner Society.
The total number of agriculturists in both the aforesaid villages are
418, out of which 320 are members of the petitioner society. The
Co-operative Society of the petitioner is affiliated with Rajkot
District Co-operative Bank Ltd. and the members of the Society could
avail financial assistance also from the Bank. A drive has been
initiated by the District Registrar, Rajkot to register the new
Co-operative Society to inflate voters list in respect of various
local authorities, including the APMC, Dhoraji and other Co-operative
Societies, just to benefit the party in power.
5.2 A Notice dated 11.4.2011
was issued by the Additional District Registrar, Rajkot, Co-operative
Societies (Panchayat) to the petitioner to file objection, if any,
against the proposed registration of the respondent No.4 Society. The
petitioner submitted a detailed representation/objection to the
notice dated 11.4.2011 and in the objection, it was mentioned by the
petitioner that there was absolutely no need to have any other
Co-operative Societies to cover the area for operation, in which the
petitioner Society was operating. It was also pointed out by the
petitioner that about 14 members of the petitioner society were
included in the list of members of the respondent No.4 Society
without the consent of the petitioner. It was also stated that total
profit of the society of the petitioner was only Rs.17,000/-, which
is a very negligible amount, therefore, second Co-operative Society
in the area may not be registered. Without considering the objection
of the petitioner, the Additional Registrar Co-operative Societies
(Panchayat) passed impugned order dated 2.7.2011 without assigning
any reason for granting registration in favour of respondent No.4
Society. Copy of the registration made on 2.7.2011 was not given to
the petitioner in spite of letter dated 28.7.2011. However, copy of
the order dated 2.7.2011 was received from Dilipbhai Chavda, who is a
member of the District Panchayat, Rajkot on 28.7.2011. The fact of
registration of the respondent No.4 Society and other newly
registered Co-operative Societies has been challenged by the
petitioners.
5.3 A further affidavit has
been filed by the petitioner to the effect that Nathubha Jilubha
Jadeja is the President of the Society and is also voter in respect
of the Agriculturists constituency of APMC, Dhoraji. The Director
has issued an election programme by notification dated 21.6.2011.
Respondent No.4 Society has not opened its account with District
Central Co-operative Bank till date and as per the Scheme of the
Gujarat Co-operative Societies Act, 1961 (for short the Co-operative
Act) the aforesaid Society is required to open a Bank account with
the District Central Co-operative Bank and seek financial assistance
so that the agricultural credit may be given to the farmers who are
members of the Society. A certificate dated 8.8.2011 to the effect
that no account has been opened, issued by Shri Rajkot District
Co-operative Bank Ltd. has been filed along with the further
affidavit. On the other hand, respondent No.4 Society has opened its
account at State Bank of India, Dhoraji Branch, which is clear from
the certificate issued by the Bank on 8.8.2011, which is a Saving
Account but no agricultural or other credit had been advanced to the
respondent No.4 Society. Since no account has been opened with the
District Central Co-operative Bank, the respondent No.4 Society could
not dispense the agricultural credit to its members without there
being any financial assistance from the bank in view of the date of
registration of the society and date of declaration of the election
programme.
5.4 It is absolutely not
possible to dispense the agricultural credit. Under Section 49 read
with the applicable bye-laws, which are model by laws, a detailed
procedure has been provided for dispensation of agricultural credit.
The procedure involves receiving applications from the members,
applying for sanction of loan to the Bank, sanction of the loan by
the Bank to the Society, creation of mortgage deeds, registration
with Talati-cum-Mantri of the concerned village etc. The procedure
under the Co-operative Act is required to be followed, which provides
a detailed procedure for inviting objections etc. before creation of
the charge under the provisions of the Gujarat Land Revenue Code.
None of these has taken place so far so far as respondent No.4
Society or its members are concerned. Since no agricultural credit
has been dispensed, the members of the Managing Committee of
respondent No.4 Society are not entitled to be included in the list
of voters of agriculture constituency. It is also pointed out that
the respondent No.4 Society has been registered on the eve of
declaration of the election programme with sole object of inflating
the list of voters in the election of APMC, Dhoraji and inclusion of
names of the members of the Managing Committee of respondent No.4
Society in the list is bad and illegal. The petitioner has also
pointed out that the Election Officer has included the members of the
Managing Committee of 12 Societies in the provisional list of voters
published on 31.7.2011.
5.5 The list of Societies is in
vernacular (Gujarati) of which English translation is as follows :-
Sr. No
Name of
Society
Whether
opened account with District Central Co. Op. Bank.
Bank with
which account opened, if any.
Whether any
agricultural loan disbursed by SBI / BOB
Date of
Registration of Co-operative Society
1.
Shree
Patanvav Seva Sahakari Mandli Ltd.,
No
SBI,
Patanvav Branch
No
31.3.2011
2.
Shree
Patidar Seva Sahakari Mandli Ltd.,
No
SBI,
Patanvav Branch
No
31.3.2011
3.
Shree
Chichod Seva Sahakari Mandli Ltd.,
No
SBI,
Patanvav Branch
No
31.3.2011
4.
Shree
Rushiraj Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
4.6.2011
5.
Shree
Bhojalram Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
4.6.2011
6.
Shree
Khodiyar Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
4.6.2011
7.
Shree
Bhutavad Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
2.7.2011
8.
Shree
Vadodar Kishan Seva Sahakari Mandli Ltd.,
No
BOB, Vadodar
No
2.7.2011
9.
Shree
Bhadaljalia Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
2.7.2011
10.
Shree Moti
Parbadi Seva Sahakari Mandli Ltd.,
No
BOB, Moti
Parbadi
No
4.7.2011
11.
Shree Sardar
Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
4.7.2011
12.
Shree
Umiyaji Seva Sahakari Mandli Ltd.,
No
SBI, Dhoraji
Branch
No
4.7.2011
5.6. It is alleged by the
petitioner that the members of the Managing Committee of the
aforesaid 12 societies were registered on the eve of declaration of
the election programme or after the date of publication of the
notification declaring elections of APMC, Dhoraji. The fact is that
none of the aforesaid 12 Societies has opened their account with the
District Central Co-operative Bank and they have opened their
accounts either at State Bank of India or at Bank of Baroda. It is
further stated that the names of the voters mentioned from Serial
Number 374 to 553 are the names which represents the members of the
Managing Committee of the aforesaid 12 societies who are not eligible
to be voters nor their members could participate in the election as
their societies have never disbursed any agricultural credit to their
members/ farmers.
6. In
the affidavit-in-reply filed on behalf of the respondent No.4,
preliminary objections have been raised that the petitioner has an
alternative remedy of filing an appeal under Section 153 of the
Co-operative Act against the registration of the Society of the
respondent No.4 Society and other Societies, thereafter, if they are
aggrieved, they can file revision application under Section 155 of
the Co-operative Act. The disputed questions of fact cannot be gone
into under Article 226 of the Constitution of India.
6.1 It
has been further stated that the order passed by the respondent on
2.7.2011 is a reasoned order. The Bank account in the Central
Co-operative Bank Limited could not be opened due to the reason that
Vitthalbhai Randadiya, who is, now, Member of the Parliament had
earlier been the Chairman of the Central Co-operative Bank Ltd. and
was also earlier elected as MLA from Dhoraji constituency and now,
after his resignation, his son is elected as MLA from the said
constituency and but the Bank under the political influence of the
aforesaid Member of the Parliament, refused to open an account of the
respondent No.4 Society, therefore, the respondent No.4 has opened
the account with the State Bank of India, which has also given ‘No
Objection Certificate’ for registration of respondent No.4 Society.
The members of the societies are being threatened that they would not
be given loan by the District Bank. The Member of Parliament wants to
create a monopoly and defeat the Co-operative movement in the
District and the petitioner belongs to the group of Vitthalbhai and
respondent No.4 has filed writ petition, being Special Civil
Application No.5583 of 2011 for opening a Bank account in District
Central Co-operative Bank, which is pending before this Court.
Respondent No.4 started to dispense the agricultural credit from its
own fund and necessary evidence has been produced before the
Authorized Officer.
7. We
have heard Mr. Mihir Thakore, Mr. N. D. Nanavati, leanred senior
counsel assisted by Mr. N. K. Pahwa, learned counsel appearing for
the petitioners, Mr. P. K. Jani, learned Government Pleader assisted
by Mr. N. J. Shah, Assistant Government Pleader appearing for
respondents, Mr. B. S. Patel, Mr. H. S. Munshaw, learned counsel
appearing for respondents. Learned Government Pleader Mr. P. K. Jani
has produced the records.
8. The
challenge made by the petitioners to the order dated 02.07.2011 or
orders challenging the registration of the twelve Co-operative
Societies are concerned, we are of the opinion that the Co-operative
Act provides a statutory alternative remedy of appeal and revision
under Sections 153 and 155 of the Co-operative Act. Therefore,
without entering into merits of the case, we relegate the petitioners
to pursue alternative remedy of appeal and thereafter revision. In
case, the petitioners file an appeal before the Appellate Authority,
it shall be decided on merits.
9. On
the argument of learned counsel for the parties, the following
questions arise for consideration in these writ petitions; what is
the date when election process commenced; whether the twelve newly
registered Co-operative Societies dispensed agricultural credit in
the market area and their members could be treated to be valid
voters; whether the objections filed by the petitioners under Rule 8
(1-A) was required to be decided by the Authorized Officer passing a
reasoned order; whether in absence of any decision on the objection
filed by the petitioners, it could be argued on behalf of the
Authorized Officer that the public notice dated 10.08.2011 would be
deemed under Rule 8 (2) his decision and to support his contentions
whether the affidavit filed by him stating that he conducted summary
inquiry by calling respondents only could be relied; whether passing
of no order by Authorized Officer could be treated to be malice in
law; whether the oral suggestion made on behalf of the Authorized
Officer that if this Court permits, he would give decision by
reasoned order within time to be fixed by the Court, could be
accepted; whether the addition of new voters was a fraud on election
process; whether in view of Rule 28 of Rules 1965 which provides for
election petition, these writ petitions are liable to be dismissed on
the ground of alternative remedy.
10. It
is relevant to point out over here that the learned Government
Pleader has stated that in public notice dated 10.08.2011, Shree
Umiyaji Seva Sahakari Mandli Limited and its members have been
deleted for the voter list as this Society was registered on
14.07.2011 after 12.07.2011 and now the dispute is confined to eleven
respondent Co-operative Societies.
11. Before
answering the questions arising in these writ petitions, it is
necessary to consider the various provisions of Rules 1965. Rule 4
lays down that Director shall fix the date of election of a Market
Committee. Rule 5 provides for different lists of voters. In these
petitions, we are concerned with list of voters as provided in Rule 5
(1) which provides preparation of list of voters under Clause (i) of
sub-section (1) of Section 11 of the Gujarat Agricultural Produce
Markets Act, 1963 (for short the APMC Act) i.e. Co-operative
Societies dispensing agricultural credit in the market area. Rule 7
makes the provision for preparation of list of voters for general
election for the Market Committee and we are concerned with Rule 7
(1) (i) which relates to preparation of list of voters for general
election to the Market Committee and every Co-operative Society
dispensing agricultural credit in the market area had been mandated
to communicate the full names of the members of its Managing
Committee together with the list of residence of each members to the
Authorized Officer before 12.07.2011, the date fixed by the Director.
The Authorized Officer is under a duty to prepare the list of voters
as required by Rule 5 on the basis of the information received by him
by the Co-operative Societies dispensing agricultural credit which
should contain the full name, place of residence and serial number of
each voter. Rule 8 of Rules 1965 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 authorized 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 authorized 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
authorized 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, along with 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 authorized officer for an
amendment in the revised draft list of voters.
(2) If any application is received under (sub-rule
(1-A), the authorized 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.”
11.1 If
the above provision of Rule 8 is considered, then it would be borne
out that as soon as voters’ list is prepared under Rule 5, the
authorized officer who is appointed for conducting the general
election of market committee has to publish the said voters’ list
by affixing a copy thereof at the office of the market committee and
at some conspicuous place in the market yard along with the notice
stating that if any person whose name is either not entered or who
claims that his name is wrongly entered, should file his objection
then within 14 days from the date of publication of the notice, the
authorized officer has to decide the said objections. Sub-Rule
(1) of Rule 8 further provides that after considering and deciding
the objections filed under Sub-Rule 1 of Rule 8, the second list
which is known as revised draft list has to be published. Rule 8
(1-A) further clarifies that after publication of the revised draft
list, a notice is to be issued inviting objections against new names
entered in the list and the said objections must be filed within
seven days and thereafter, the authorized officer has to decide the
said objections under Rule 8 (2) and he must publish final amended
list of voters atleast 30 days prior to the date fixed for filing
nomination papers. Thus, Rule 8 makes it clear that when the first
preliminary list is published, if any, person has got any objection
either on account of appearing of the names of the voters wrongly or
on account of non-appearance of the voters, who deserved to be
in the voters’ list, then he must file said objections within 14
days from the date of publication of the said preliminary list and
then the authorized officer has to decide the said objection and only
after that decision, he has to publish the revised draft list or the
provisional list. If the provision of sub-Rule (1) of Rule 8 are
carefully read, then it would be clear that any objection for
inclusion or non-inclusion of voters in the preliminary list
published under that sub-rule (1) must be taken within 14 days of the
said publication. From the aforesaid discussion, it is apparent
that after 14 days of publication of the said list, no objection
either for inclusion or non-inclusion could be taken and entertained
by the authorized officer.
11.2 Sub-Rule (1-A) makes it
clear that when the revised voters’ list is published, the only
objection that could be raised is as regards persons whose names
have been added in the voter list, after deciding objections under
sub-rule (1) of Rule 8. This provision is made obviously with a view
to see that a person whose name was not published in the preliminary
list and his name comes in the revised draft list for the first time,
then there must be opportunity to the person objecting to his being
in the voters’ list and only with this view, this provision of
sub-rule 1(A) was enacted.
12. Before we consider the
questions raised by learned counsel for the parties on merits, it is
necessary to deal with the preliminary objection raised by learned
counsel for the respondents that the writ petitions are liable to be
dismissed on the ground of alternative remedy of election petition.
Rule 28 of the Rules 1965 provides that election of a candidate who
has been elected could be challenged by filing election petition.
Learned counsel for the respondents has placed reliance on the Full
Bench decision of this Court in Daheda
Group Seva Sahakari Mandli Limited v. R. D. Rohit, Authorized Officer
and Co-Operative Officer (Marketing) 2006-GCD-211
wherein in paragraph 33 reference had been answered as under :-
“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.”
12.1 In view of the aforesaid decision of the Full Bench, it is clear that a person whose name is not included in the voter list and the exclusion or inclusion of names in the voter list cannot be termed as extra ordinary circumstance warranting any interference by this Court under Article 226 of the Constitution of India and such questions could be decided in an election petition under Rule 28 of the Rules as the Authority under Rule 28 had been conferred with wide powers. In view of the aforesaid decision of the Full Bench, these petitions are liable to be dismissed on the ground of alternative remedy. Since we are dismissing these writ petitions on the ground of alternative remedy, it is not necessary for us to consider the other arguments raised by learned counsel for the parties.
13. In the result, these writ petitions are dismissed on the ground of alternative remedy of election petition available to the petitioners under Rule 28 of the the Gujarat Agricultural Produce Market Rules, 1965. So far as relief claimed by the petitioners with regard to registration of the respondents Co-operative Societies are concerned, it is open to the petitioners to challenge the order dated 02.07.2011 or other such orders by way of Appeal and thereafter by Revision under Sections 153 and 155 respectively of the Gujarat Co-operative Societies Act, 1961. Parties shall bear their own costs.
Sd/-
[V. M. SAHAI, J.]
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[G. B. SHAH, J.]
Savariya
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