(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1 We have heard Mr. V.C. Vaghela, learned Advocate for the petitioner .
2 This petition has been filed by the petitioner on the ground that he has applied to the respondent No.2 - Director, Agriculture Marketing and Rural Finance for grant of licence and, in fact, the licence was granted to him, but his name was not included in the voters list which was forwarded by the respondent No.2. However, the last date for finalization of voters list has expired and the elections to be held on 23rd March, 2012.
2. Since the elections have been notified, and in view of the Full Bench decision of this Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D.Rohit, Autho. Officer & Co-operative Officer (Marketing) reported in 2006(1) GCD 211 Guj. (FB), the petitioner can always file election petition after the elections are held. In paragraph 33 the following observations have been made by the Full Bench in the aforesaid decision which reads as under:
"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. For the aforesaid reasons, the petition is dismissed on the ground that the alternative remedy is available to the petitioner. Notice is discharged.
4 Rs.
10,000/- deposited by the petitioner with the Registry of this Court shall be refunded to the petitioner by an account payee cheque within a period of one month today.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) pnnair Top