{"id":25303,"date":"2011-07-31T00:00:00","date_gmt":"2011-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-31-july-2011"},"modified":"2015-07-11T21:10:19","modified_gmt":"2015-07-11T15:40:19","slug":"patel-vs-state-on-31-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-31-july-2011","title":{"rendered":"Patel vs State on 31 July, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Patel vs State on 31 July, 2011<\/div>\n
Author: Mohit S. K.M.Thaker,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/746120\/2009\t 2\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 7461 of 2009\n \n\n \n\n\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR. JUSTICE MOHIT S. SHAH  \n                            \n      AND \n\n \n\nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n \n=================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=================================================\n \n\nPATEL\nCHANDRAKANT THAKORBHAI - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 11 - Respondent(s)\n \n\n================================================= \nAppearance\n: \nMR\nVC VAGHELA for Petitioner(s) : 1, \nMR TUSHAR MEHTA Addl. Advocate\nGeneral with Mr. NIKUNT RAVAL AGP for Respondent(s) : 1, \nNOTICE\nSERVED BY DS for Respondent(s) : 1 - 7. \nMR BS PATEL for\nRespondent(s) : 5, \nMR DIPEN A DESAI for Respondent(s) : 8 -\n12. \n=================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR. JUSTICE MOHIT S. SHAH\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/08\/2009  \nORAL JUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR. JUSTICE MOHIT S. SHAH)<\/p>\n
\tRule.\n<\/p>\n
Mr. Nikunt Raval learned AGP waives service of Rule for respondent
\nNos. 1 to 4. Heard  Mr. Tushar Mehta learned Additional Advocate
\nGeneral, Mr. V.C. Vaghela learned advocate for petitioner, Mr. B.S.
\nPatel learned advocate for respondent No. 5 and Mr. Dipen Desai
\nlearned advocate for respondent Nos. 8 to 12.\n<\/p>\n
2.\tIn
\nthis petition, the petitioner has challenged the final voters’ list
\ndated 15.7.2009 for traders constituency in the matter of elections
\nto Agriculture Produce Market Committee, Karjan in Baroda District
\n[hereinafter referred to as “the APMC”].\n<\/p>\n
3.\tThe
\nbroad facts leading to filing of the present petition, as emerging
\nfrom the record,  are as under :-\n<\/p>\n
3.1\tThe
\nDirector  of Agricultural Marketing and Rural Finance (hereinafter
\nreferred to as “the Director ) passed order dated 25.5.2009
\n(Annexures B & C) fixing the following program for elections to
\nthe APMC.\n<\/p>\n
1<\/span><\/p>\n
The
\n\t\t\t\tdate for declaration of election program<\/p>\n
29.05.2009<\/p>\n
2<\/span><\/p>\n
The
\n\t\t\t\tdate for the APMC to send the list of voters to the authorised
\n\t\t\t\tofficer<\/p>\n
05.06.2009<\/p>\n
3<\/span><\/p>\n
The
\n\t\t\t\tdate for publication of the preliminary list of voters<\/p>\n
12.06.2009<\/p>\n
4<\/span><\/p>\n
The
\n\t\t\t\tlast date of receiving objections against the above list<\/p>\n
26.06.2009<\/p>\n
5<\/span><\/p>\n
The
\n\t\t\t\tdate for publication of provisional voters’ list or the revised
\n\t\t\t\tdraft voters’ list<\/p>\n
03.07.2009<\/p>\n
6<\/span><\/p>\n
The
\n\t\t\t\tlast date for submitting objections against the above list \t<\/p>\n
10.07.2009<\/p>\n
7<\/span><\/p>\n
The
\n\t\t\t\tlast date for publication of the final list of voters<\/p>\n
15.07.2009<\/p>\n
8<\/span><\/p>\n
The
\n\t\t\t\tdate for filing nomination forms<\/p>\n
17.08.2009<\/p>\n
9<\/span><\/p>\n
The
\n\t\t\t\tdate of scrutiny of nomination forms<\/p>\n
18.08.2009<\/p>\n
10<\/span><\/p>\n
The
\n\t\t\t\tdate for withdrawal of nomination forms<\/p>\n
21.08.2009<\/p>\n
11<\/span><\/p>\n
The
\n\t\t\t\tdate of poling<\/p>\n
01.09.2009<\/p>\n
12<\/span><\/p>\n
The
\n\t\t\t\tdate of counting <\/p>\n
02.09.2009<\/p>\n
3.2\tThe
\nAPMC granted trader’s license to a large number of persons at its
\nmeeting held on 20.5.2009.  Thereafter, the APMC forwarded the list
\nof voters to the authorised officer on 5.6.2009.  The authorised
\nofficer addressed a communication to the APMC that many of the
\npersons whose names were included in the list of voters for the
\ntraders’ constituency did not have trader’s license.  This
\ncommunication was noted in the agenda notice dated 11.6.2009
\nconvening the meeting of the APMC on 15.6.2009 for grant of license
\nin respect of the applications received between 20th and 27th May,
\n2009.  Thereafter, the preliminary list of voters was published on
\n12.6.2009.  At the APMC meeting held on 15.6.2009, the APMC granted
\ntrader’s license to 139 persons, out of which 100 licenses were fresh
\nlicenses, whereas 39 licenses were licenses by way of renewal.\n<\/p>\n
3.3\tWhen
\nthe names of these persons were also included in the provisional list
\nof voters published on 3.7.2009, the petitioner submitted his
\nobjections against inclusion of a large number of persons in the list
\nof voters for traders’ constituency, who were granted license on
\n15.6.2009 after declaration of the election program on 25.5.2009 on
\nthe basis of the applications which were made on 25th and 27th May,
\n2009.  By the impugned order dated 15.7.2009 (Annexure – A), the
\nauthorised officer rejected the petitioner’s objections and published
\nthe final list of voters on the same day. Hence, this writ petition.\n<\/p>\n
4.\tMr
\nVaghela, learned advocate for the petitioner has vehemently submitted
\nthat the APMC had send the draft list of voters for the traders’
\nconstituency to the authorised officer on 5.6.2009 consisting of
\nabout 397 persons, out of whom 139 persons were granted trader’s
\nlicense on 15.6.2009 after declaration of the election program and
\nbased on their applications made on 25\/27.5.2009.  Out of those 139
\npersons, 100 persons had applied for the first for such license after
\nthe Director of Agricultural Marketing and Rural Finance declared the
\nelection to APMC.  Including names of such persons in the list of
\nvoters was contrary to the statutory Rules and also in flagrant
\nbreach of the law laid down by this Court in  Shrutbandhu
\nH. Popat vs. State of Gujarat & Ors<\/a> in 2007(3) GLR 1942
\nand Kalubhai Ranabhai Akabari
\nvs. State of Gujarat<\/a> in 2007(3) GLH 57.\n<\/p>\n
\tIt
\nis submitted that the impugned order granting their inclusion in the
\nfinal list of voters is completely destructive of the democratic
\nprocess and a fraud on the elections.\n<\/p>\n
5.\tElections
\nto Agriculture Produce Market Committee (hereinafter referred as to
\nthe  APMC  or  Market Committee ) are governed by the Gujarat
\nAgricultural Produce Market Committee Act, 1963 (hereinafter referred
\nto as the  Act ) and the Agricultural Produce Market Rules, 1965
\n(hereinafter referred to as the  Rules )<\/p>\n
5.1\tSection
\n11(1) of the Act provides for composition of the APMC  as under:\n<\/p>\n
“11.  Constitution of
\nmarket committee – (1) Every market committee shall consist of the
\nfollowing members, namely:-\n<\/p>\n
(i)\teight agriculturists who
\nshall be elected by … … …\n<\/p>\n
(ii)\tfour
\nmembers to be elected in the prescribed manner from amongst
\nthemselves by the traders holding licenses;\n<\/p>\n
(iii)\ttwo representatives of the
\nCo-operative marketing societies …\t … ….”\n<\/p>\n
5.2\tPart
\nIII of the Rules provides for election of market committee. Rule 6
\nprovides that the person whose name is entered in a list of voters
\nshall be qualified to vote at an election to which the list of voters
\nrelates. Rule 10 provides that the election shall be held between
\nsuch hours and on such date and at such place as may be fixed by the
\nDirector. Thus, the power to fix various stages of election is
\nconferred on the Director of Agricultural Marketing and Rural
\nFinance.\n<\/p>\n
\tThe
\nrelevant portion of Rule 5 reads as under :-\n<\/p>\n
“Different lists of
\nvoters:- For the purpose of Section 11, there shall be in respect
\nof a market committee three separate lists of voters in Gujarati as
\nfollows, namely:-\n<\/p>\n
(1)\t…..\n<\/p>\n
(2)\tunder clause (ii) of
\nsub-section (1) of Section 11 of the Act a list of traders holding
\ngeneral licenses in the market area;\n<\/p>\n
(3)\t…..\n<\/p>\n
\tRules
\n7 and 8 contain provision for preparation of list of voters. Rule 7
\nin so far as is relevant for the purpose of this petition reads as
\nunder :-\n<\/p>\n
“7. \tPreparation of list
\nof voters for general election:- (1) when ever a general election
\nto market committee is to be held :\n<\/p>\n
(i)\t…..\n<\/p>\n
(ii)\tthe market committee shall
\ncommunicate the full names of the traders holding general licenses in
\nthe market area together with the place of or residence of each such
\ntrader; and<\/p>\n
(iii)\t….\n<\/p>\n
to the authorised officer before
\nsuch date as the Director may by order fix in that behalf, provided
\nthat the date to be so fixed shall not be later than sixty days
\nbefore the date of the general election.”\n<\/p>\n
\tSub-rule
\n(2) provides that the authorised officer shall within seven days from
\nthe date fixed under Sub-rule (1) cause to be prepared the lists of
\nvoters as required by rule 5 on the basis of the information received
\nunder sub-rule (1) and if necessary after making such inquiry as he
\nmay deem fit.\n<\/p>\n
6.\tAfter
\nconsidering the relevant provisions of the Act and the Rules, this
\nCourt has held in Shrutbandhu
\nH. Popat vs. State of Gujarat & Ors<\/a> in 2007(3) GLR 1942
\nand Kalubhai Ranabhai
\nAkabari vs. State of Gujarat<\/a> in 2007(3) GLH 57
\nthat the election officer and the Election Tribunal have no
\njurisdiction to examine the challenge to grant, renewal, refusal,
\nsuspension or cancellation of a trader’s license and that such a
\nchallenge will have to be considered by the competent authorities
\nunder sub-sections (3), (4) and (5) of Section 27 of the APMC Act
\nafter making proper scrutiny and after giving an opportunity of
\nhearing to the affected parties. In the said decisions, this Court
\nhas also held that persons who are granted licenses after the date of
\ndeclaration of the elections are not to be included in the voters’
\nlist.\n<\/p>\n
\tIn
\nKalubhai Ranabhai Akabari (supra), this Court has also held that the
\nrelevant date for determining the
\neligibility of a person for inclusion in the voters’ list  would be
\nthe date by which the Authorized Officer is to be communicated the
\nnames as indicated in sub-rule (1) of Rule 7 of the Rules.  A
\nperson who had not obtained the traders license on the relevant date
\n[the date on which the authorized officer was to be communicated by
\nthe APMC the names of voters under Rule 7(1)] could never be included
\nin the list of voters.\n<\/p>\n
7.\tIn
\nthe facts of the present case there is no dispute about the fact that
\nthe persons at serial numbers 249 to 397 in the final voters’ list
\nfor the constituency of traders were not granted traders license by
\nAPMC till 14.6.2009. In fact these persons who have been joined in
\nthe representative capacity through respondent nos. 6 and 7 and also
\nrespondent nos. 8 to 12 who have been permitted to be joined at their
\nown request, had applied to the APMC for traders license on 25.5.2009
\nand 27.5.2009.   25.5.2009 was also the date on which the Director
\npassed order declaring election programme which was published in the
\nnewspaper dated 28.5.2009. The licenses were granted\/renewed by the
\nAPMC on 15.6.2009 after the preliminary voters’ list was published
\nunder Rule 8(1) on 12.6.2009. Such licenses were granted to in all
\n139 persons, out of which 100 licenses were fresh licenses and 39
\nlicenses were renewed licenses.\n<\/p>\n
\tMr.\n<\/p>\n
Vaghela, learned advocate for the petitioner makes it clear that the
\npetitioner does not challenge the inclusion of those 39 persons whose
\nlicenses were renewed on 15.6.2009 and that the challenge in this
\npetition is confined to inclusion of those 100 persons who were
\ngranted fresh license on 15.6.2009 on the basis of their applications
\nalleged to have been made to APMC on 25.5.2009 and 27.5.2009.\n<\/p>\n
8.\tThe
\npetitioner had lodged his objections as per the objection dated
\n10.7.2009 against inclusion of the names of the above persons (in
\nwhose favour APMC granted license on 15.6.2009) in the provisional
\nlist of voters published on 3.7.2009. However these objections were
\noverruled by the election officer by the impugned order dated
\n15.7.2009 and on the same date the final voters’ list was published
\nfor the constituency of traders.\n<\/p>\n
9.\tIn
\nview of the aforesaid decisions of the two Division Benches to which
\none of us (Mr. Justice M.S. Shah ) was a party, it is clear that 100
\npersons, out of the persons at serial numbers 249 to 397, who were
\ngranted fresh traders license for the first time by the APMC on
\n15.6.2009 on the basis of their applications alleged to have been
\nmade between 25.5.2009 and 27.5.2009, could not have been included in
\nthe final voters’ list.\n<\/p>\n
10.\tIt
\nis true that ordinarily this Court is not to interfere with the
\ndecisions of the election officer before the elections are held and
\nthat it is for the election tribunal to examine the challenge to the
\ndecisions of the election officer. However in Pundlik
\nvs. State of Maharashtra & Others<\/a> in 2005 (7) SCC 181,
\nthe Apex Court has held that though preparation of list of voters is
\none of the stages of election and though normally the High Court
\nwould not interfere in exercise of powers under Article 226 of the
\nConstitution at the stage of preparation of list of voters, however,
\nwhere voters’ list is prepared in clear violation of the statutory
\nrules, such action of the election officer could be immediately
\nchallenged by filing petition under Article 226 of the Constitution.\n<\/p>\n
11.\tIn
\nElection Commission of India vs. Ashok Kumar & Others,<\/a> (2000) 8
\nSCC 216, the Apex Court has laid down following
\nprinciples.\n<\/p>\n
  (1) \tIf  an\telection, (the
\nterm election being widely interpreted so as to include   all steps
\nand   entire proceedings  commencing from the date of  notification
\nof election  till the date of declaration of result) is to be called
\nin question and which questioning may have the effect of
\ninterrupting,  obstructing or protracting  the  election proceedings
\nin any manner, the invoking of judicial  remedy has to be postponed
\ntill after the completing of proceedings in elections.\n<\/p>\n
(2)\tAny decision sought and
\nrendered will not amount to calling in  question  an  election if it
\nsubserves  the progress  of the election and facilitates the
\ncompletion  of the  election. Anything  done  towards  completing  or
\n in furtherance  of the election proceedings cannot be described as
\nquestioning the election.\n<\/p>\n
(3) \tSubject to the above, the
\naction taken  or  orders issued by Election Commission are open to
\njudicial review on the well-settled parameters which enable judicial
\nreview of decisions of statutory bodies  such  as  on a case of mala
\nfide  or arbitrary exercise of  power being  made out or the
\nstatutory body being shown to have acted in breach of law.\n<\/p>\n
(4) \tWithout interrupting,
\nobstructing or delaying the progress of the election proceedings,
\njudicial intervention is  available if assistance of the Court has
\nbeen sought for merely to correct or smoothen the progress of the
\nelection proceedings, to remove the obstacles therein, or to preserve
\na  vital  piece  of evidence if the same would\tbe lost or destroyed
\nor rendered irretrievable by the time the results are  declared and
\nstage is set for invoking the jurisdiction of the Court.\n<\/p>\n
(5) \tThe Court must  be  very
\ncircumspect  and act with caution  while entertaining any election
\ndispute though not hit  by the bar of Article 329(b) but brought to
\nit during the  pendency of election  proceedings. The Court must
\nguard   against any attempt at retarding, interrupting, protracting
\nor stalling  of the election proceedings.  Care has  to  be taken to
\nsee that there is no attempt to utilise the courts indulgence  by
\nfiling a petition outwardly  innocuous but essentially a subterfuge
\nor  pretext  for  achieving  an ulterior  or  hidden end.  Needless
\nto say that in the very nature of the things the Court would act with
\nreluctance and shall not  act\t except on a clear and strong case  for
\nits intervention  having been made out by raising the pleas with
\nparticulars  and  precision  and   supporting  the  same  by
\nnecessary material.\n<\/p>\n
12.\tThe
\nabove principles are qualified by the Apex Court by the following
\nobservations in the same judgment :-\n<\/p>\n
 28.\tElection  disputes are
\nnot just private civil  disputes between two parties. Though there is
\nan individual or a few individuals arrayed as parties before the
\nCourt  but  the stakes of the constituency as a whole  are  on
\ntrial. Whichever  way the lis terminates it affects the fate of the
\nconstituency  and  the citizens generally.  A conscientious approach
\nwith overriding consideration for welfare of the constituency and
\nstrengthening the democracy is called for. Neither turning a blind
\neye to the controversies which have arisen nor  assuming a role of
\nover- enthusiastic  activist would do. The two extremes have to be
\navoided in  dealing with election disputes.\n<\/p>\n
13.\tThe
\ntwo previous decisions of this Court have made it clear that if APMC
\ngrants fresh licenses to a large number of persons after declaration
\nof the election programme, such action would be destructive of the
\ndemocratic process for elections to APMC. The scheme of the Rules
\nalso makes it clear that if a person is granted traders license after
\nthe date on which the APMC is to send the list of traders with
\nlicense;  obviously such person cannot be included in the list of
\nvoters as already indicated above. On 5.6.2009, the  APMC had sent
\nthe list of voters, which included a large number of persons who were
\nnot even granted trader’s license and who had applied for license
\nonly on 25.5.2009 and 27.5.2009 after the Director passed the order
\non 25.5.2009 fixing the election programme.\n<\/p>\n
14.\tMr.\n<\/p>\n
 Tushar Mehta, learned Additional Advocate General with Mr. Nikunt
\nRaval learned AGP for the respondent Nos. 1 to 4, Mr. B.S. Patel for
\nrespondent No. 5 and Mr. Dipen Desai learned advocate for respondent
\nNos. 8 to 12 have opposed the petition and submitted that this
\npetition may not be entertained as the petitioner had not lodged any
\nobjection against the preliminary voters’ list published on 12.6.2009
\nand that it was only after publication of the revised draft list or
\nprovisional voters’ list on 3.7.2009 that the petitioner lodged
\nobjections on 10.7.2009. Hence, the authorized officer was not bound
\nto consider such objection and that if authorized officer had
\naccepted such objections, such action would have been illegal and
\nwithout jurisdiction as held in Chaudhary
\nRameshbhai Dalsangbhai & Ors vs. Director, Agricultural Market &
\nRural Finance & Anr,<\/a>  1996(2) GLR 165 and in Mehsana
\nDistrict Co-op Purchase & Sales Union Ltd vs. Dhadhusan Beej
\nUtpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd & Ors.,<\/a>
\n1998 (1) GLH 170.\n<\/p>\n
15.\tIn
\norder to appreciate the above contentions, we may quote Rule 8 which
\nreads as under :-\n<\/p>\n
 8. Provisional and final
\npublication of lists of voters:-\n<\/p>\n
(1) \tAs soon as a list of voters
\nis prepared under rule 5, it shall be published by the authorised
\nofficer by affixing a copy thereof at the office of the market
\ncommittee and at some conspicuous place in the principal market yard
\nin the market area along with a notice stating that any person whose
\nname is not entered in the list of voters and who claims that his
\nname should be entered therein or any person who thinks that his name
\nor the name of some other person has been wrongly entered therein or
\nhas not been correctly entered, may, within fourteen days from the
\ndate of the publication of the notice, apply to the authorised
\nofficer for an amendment of the list of voters.\n<\/p>\n
(1-A)\t\tAfter receiving
\napplications if any, under sub-rule (1) a revised draft list of
\nvoters shall be published by the authorised officer by affixing a
\ncopy thereof on the notice board of Agricultural Produce Market
\nCommittee and at some conspicuous place in the principal market yard
\nof the market area, alongwith a notice stating that any person who
\nwishes to raise any objection against any new name entered in this
\nlist, may apply within seven days from the date of publication of
\nthis notice to the authorised officer for an amendment in the revised
\ndraft list of voters.\n<\/p>\n
(2)\tIf any application is
\nreceived under [sub-rule (1-A)]. the authorised officer shall decide
\nthe same and shall cause to be prepared and published the final list
\nof voters, after making such amendments therein as may be necessary
\nin pursuance of the decision given by him on the application. The
\nfinal list shall be prepared at least thirty days before the date
\nfixed for the nomination of candidates for the election.\n<\/p>\n
16.\tIt
\nis required to be noted that sub-rule (1A) was inserted in Rule 8
\nbecause when a draft list of voters is published under sub-rule (1)
\nand objections are raised by a person whose name is not included in
\nthe said list, if the election officer finds substance in those
\nobjections he would include the name of such person and if the next
\nlist is published as the final list of voters, a person objecting to
\ninclusion of name of that person will not get an opportunity to
\nsubmit his objection to the election officer. Ordinarily, therefore,
\nif the names of certain persons are included in the preliminary
\nvoters’ list as well as in the revised draft list, a third party
\nwould not be permitted to raise an objection against the revised
\ndraft list.\n<\/p>\n
17.\tHowever,
\nwhen the election officer included the names of the concerned persons
\nwho were granted by APMC trader’s license after the Director passed
\norder on 25.5.2009 fixing the election programme and even after
\npublication of the preliminary list of voters on 12.6.2009, the issue
\ngoes to the root of the matter. Some times the Courts have to deal
\nwith cases where two conflicting principles are in operation. When a
\nperson makes a will bequeathing his property to his son, upon the
\ndeath of the father the law requires that the property of the
\ndeceased must devolve upon the legatee son. However, if the said son
\nmurders his father, would the law allow that son to inherit property
\nfrom his father under that will ?  The Court would certainly not
\nallow such legatee son to take advantage of his own wrong.\n<\/p>\n
18.\tSimilarly
\nin the facts of this case, the Court is required to consider and
\ndecide as to –\n<\/p>\n
(i)\twhether the principle laid down in Chaudhary
\nRameshbhai Dalsangbhai (supra) and in Mehsana District Co-op Purchase
\n& Sales Union Ltd (supra) should be required to be
\nimplemented,  or <\/p>\n
(ii)\twhether the inclusion of the concerned persons in
\nthe voters’ list on 15.7.2009, to which objections were already
\nraised on 10.7.2009, be permitted to hold the field when their
\ninclusion in the voters’ list was not only illegal, but also a fraud
\non the election process, as held in the two Division Bench decisions
\nof this Court, because they were granted license on 15.6.2009 on the
\nbasis of their applications made on 25\/27.5.2009 after the Director
\nfixed the election programme on 25.5.2009.\n<\/p>\n
19.\tIn
\nthe facts and circumstances of the case, we have no manner of doubt
\nthat the principles laid down by two Division Benches of this Court
\nin Shrutbandhu H. Popat (supra) and
\nin Kalubhai Ranabhai Akabari (supra) must be held to prevail
\nover the principle that the authorized officer would not entertain
\nthe objections against the inclusion of names of persons in the
\nprovisional voters’ list, who were already included in the
\npreliminary voters’ list.\n<\/p>\n
20.\tWe
\nagain record the concession made by Mr. Vaghela, learned advocate for
\nthe petitioner that the petitioner does not object to inclusion of
\nthe names of all those persons who were granted trader’s license by
\nway of renewal.\n<\/p>\n
21.\tIn
\nthe result, the petition is allowed. The impugned order dated
\n15.7.2009 (Annexure – A to the petition) is quashed and set aside in
\nso far as the same confirms inclusion of 100 members  who were
\ngranted fresh licenses on 15.6.2009 after the Director of
\nAgricultural Marketing and Rural Finance passed the order on
\n25.5.2009 fixing the election programme.  The names of the said 100
\npersons represented by respondent Nos. 6 and 7 shall be deleted from
\nthe final voters’ list for the constituency of traders for elections
\nto APMC, Karjan (District Baroda).\n<\/p>\n
\tHowever,
\nin view of the statement being made by Mr. Vaghela for the petitioner
\nthat the petitioner does not challenge inclusion of names of 39
\npersons whose licenses were renewed on 15.6.2009, their inclusion in
\nthe final voters’ list is not disturbed.\n<\/p>\n
\tRule
\nis made absolute accordingly.\n<\/p>\n
22.\tMr.\n<\/p>\n
Dipen Desai for respondent No. 8 requests for stay of implementation
\nand operation of this order.\n<\/p>\n
\tIn
\nthe facts of the case, the request is rejected.\n<\/p>\n
\t\t\t\t\t\t\t[M.S.\n<\/p>\n
SHAH, J.]<\/p>\n
\t\t\t\t\t\t\t[K.M.THAKER,
\nJ.]<\/p>\n
Suresh*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Patel vs State on 31 July, 2011 Author: Mohit S. K.M.Thaker, Gujarat High Court Case Information System Print 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 ================================================= 1 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-25303","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPatel vs State on 31 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/patel-vs-state-on-31-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Patel vs State on 31 July, 2011 - 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