IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15038 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE G.B.SHAH ========================================= ========================================= KADIVAR RAHIMBHAI MAMADBHAI & 7 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================= Appearance :
MR B.B. Naik , Sr.Advocate for Mr PS Champaneri for Petitioners 1-8. Mr. Rakesh R Patel, AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2-3. MR DIPEN DESAI for Respondent(s) : 4, None for Respondent(s) : 5, ========================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.B.SHAH Date : 08/10/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. This petition under Articles 14, 19 and 226 of the Constitution of India has been filed by the petitioners challenging the impugned order dated 18.11.2010 passed by respondent No.1-the Director, Agricultural Marketing and Rural Finance, Gujarat State, Gandhinagar. We have heard the learned counsel for the parties.
2. Petitioners are the elected members from the agriculturist constituency of Wankaner Agricultural Produce Market Committee. On 9.6.2009, the Agricultural Produce Market Committee (for short, 'the APMC') was superseded by the competent officer and the District Registrar, Cooperative Societies, Rajkot. Election Officer-respondent No.2 was appointed as Administrator of the said APMC, Wankaner. Hence elections were due to be held. On 6.5.2010, respondent No.1 issued an order fixing 4.8.2010 as the date of election of the APMC, Wankaner and appointed the District Registrar, Cooperative Societies-respondent No.2 as the Election Officer and also issued the programme with various stages of election. For the purpose of preparation of the provisional list of voters, the Authorized officer had called for names of the members of the Executive Committee of the Cooperative Societies. On 11.5.2010, Rajkot District Cooperative Bank Ltd. had also forwarded names of its representatives for the purpose of preparation of provisional list of voters. On 25.5.2010, provisional list of voters was published. Objections were raised before the Authorised Officer against the provisional list of voters and thereafter the objectors were heard, objections were decided and the final list of voters was prepared and published. On 22.7.2010, Nomination Forms were filed by the petitioners. After scrutiny, objections came to be considered and decided and nomination forms of the petitioners were accepted as valid. On 4.8.2010, voting took place and on 5.8.2010 result was declared.
3. Respondent No.4 who had not contested the election but he being an agriculturist, had not raised the objections against the nomination forms or the list of voters, filed an Election Petition being Election Application No.58/2010 against the petitioners. Respondent No.1 did not publish names of the members of the APMC in due discharge of the statutory obligations. The petitioners had requested to publish names of the elected members in the Gazette. On 30.8.2010, Director-Agricultural Marketing and Rural Finance had issued Notification under Rule-27 of the Agricultural Produce Market Rules, 1965 (for short, “the Rules”) for publication of the names of the elected/nominated Members of the APMC, Wankaner. District Registrar, Cooperative Societies, Junagadh was appointed as Presiding Officer who, without issuing any Agenda notice for calling and convening the meeting, on 23.9.2010 convened the meeting. In the meantime, respondent No.1 insisted to proceed and go on with the election dispute being raised by respondent No.4. On 16.11.2010, agenda notice came to be issued to the members of the APMC, Wankaner by the District Registrar, Cooperative Societies, Junagadh for convening the meeting on 25.11.2010. On 18.11.2010, respondent No.1 issued order allowing the Appeal Application No.58/2010 and set aside the election of the agriculturist constituency of the APMC, Wankaner and directed to hold fresh election within a period of three months. Hence the present petition.
4. Learned Senior Counsel for the petitioners submitted that the petitioners had contested the election from the agriculturists constituency and Nomination Forms were filed and according to the schedule of stages of election, the same were published as per the provisions of Rule 14. He submitted that after the nomination forms were accepted as valid nomination forms, election process had proceeded further and voting had taken place on 4.8.2010 and the results were declared on 5.8.2010. He further submitted that respondent No.4 who had not contested the election but he being an agriculturist, had not raised objections against the Nomination Forms or the list of voters, filed Election Petition being Election Application No. 58/2010. Merely because that Election Application was filed by respondent No.4, respondent No.1 did not publish names of the members of the APMC which is a statutory requirement under the provisions of Rule 27. It is further submitted that though the Notification was ultimately issued on 30.8.2010, the statutory meeting under Rule 31 upon such publication was required to be held and accordingly District Registrar Cooperative Societies was appointed as Presiding Officer to convene meeting and to elect the office bearers. Though the Notification was issued, the Presiding Officer did not issue any Agenda notice for convening the meeting for electing the office bearers. Therefore, the petitioners submitted representation to the Election Officer for convening the meeting on 23.9.2010. During the meeting, respondent No.1 insisted to go on with the election dispute being raised by respondent No.4. Since the meeting was not called and convened for quite a long time, the petitioners approached the High Court by way of filing Special Civil Application No.14543 of 2010 which was subsequently dismissed as withdrawn. The court left it open for the respondent to keep the margin of 7 days' clear notice as required under the provisions of the statute. Accordingly Agenda Notice came to be issued to the Members of the APMC for convening the meeting on 25.11.2010. Learned counsel for the petitioners submitted that soon after the issuance of the Notice, respondent No.1 issued an order allowing the Appeal Application No.58/2010 and set aside the election of the agriculturist constituency of the APMC and the petitioners were directed to hold fresh election within 3 months. It is further submitted that the impugned judgment and order suffers from erroneous exercise of jurisdiction. He further submitted that the Election Tribunal should not have considered the dispute as respondent No.4 is not a voter. He submitted that the decision rendered on the objections raised before the authorized officer was not challenged before the publication of the final list of voters or before the date of nomination or at the time of voting. He submitted that there is no material or evidence remotely suggesting that 54 votes were received by the petitioners, but the finding is recorded that the result of the election is materially affected. He further submitted that it is the absolute right of the Rajkot District Cooperative Bank to appoint its representatives in the Executive Committee and the Election Officer has no right, power or authority to question such right of the Rajkot District Cooperative Bank Ltd. It is submitted that reliance was placed by the Director on the decision in S.H. Popat v. State of Gujarat & Ors.(2008 (1) GLH 575), in Special Civil Application No.6482 of 2007 and 8968 of 2007. He argued that in the said case the court was dealing with a case wherein the licences were granted by the Market Committee to about 269 persons after the election programme was declared by the competent authority whereas in the present case, the fact is entirely different and therefore, the ratio of the said judgment is not applicable to the present case. He finally submitted that the impugned order is ex facie illegal and deserves to be quashed.
5. Learned AGP Mr Rakesh Patel and learned counsel Mr Dipen Desai appearing for respondents submitted that election of APMC, Wankaner came to be declared by way of election programme which was published on 6.5.2010 and thus the date of election was declared to be on 4.8.2010. In the present case, there are various Cooperative Societies dispensing agricultural credit which were to be included in the voters list of Agriculturist Constituency. He submitted that as per the bye-laws of the said society, one representative of the bank from whom the credit is availed by the said society is required to be included in the Manging Committee of the said society, and thereby one representative of Rajkot District Cooperative Bank Ltd. was to be inducted in the Managing Committee. He stated that vide order dated 11.5.2010 the Rajkot District Cooperative Bank changed the nomination and appointed some of the petitioners and similar other persons who had political backing and who were interested in the APMC as nominee members of the Bank. That order was passed on 11.5.2010 and therefore, clearly after the election of APMC, Wankaner came to be declared and thus it was illegal as it would directly interfere with the election process which had already started. Learned counsel further stated that the same persons are appointed as nominees in more than five to ten societies. The aforesaid fact clearly shows that the persons who had contested the election have been appointed as bank's representative after the declaration of the election only with a view to influence the voters. The said appointment can never be in pursuance of the bye-laws of the societies inasmuch as the intention of the appointment to see that the representative of the bank has a say in the Managing Committee of the societies to protect the interest of the bank and therefore, independent persons like Branch Managers were appointed.
Only with a view to inflate the voters' list the nominations have been changed after the declaration of the election. According to him, another illegality committed by the Election Officer is inclusion of two societies. Those societies were included in the voters' list of Agriculturist Constituency in spite of the fact that those societies were not dispensing agricultural credit to its members. The respondent had produced audit report before the Director of those societies wherein the auditor has also recorded that those societies were not functioning and were not carrying on any operation for which they were registered and that they were not dispensing agricultural credit to its members. He submitted that because of the change in the representative of the Rajkot District Bank, 32 votes have been cast by the new nominees which was absolutely illegal and 30 votes have been cast by the aforesaid two societies which were not dispensing agricultural credit. Therefore, 62 votes have been illegally permitted to be cast whereas difference between last elected candidates and the losing candidate is 57 votes and thereby election is materially affected and therefore the Director was absolutely justified in setting aside the election of Agriculturist Constituency. He submitted that persons with tainted background ought not to have been allowed to again contest the election and therefore the action on the part of the Election Officer in allowing the said persons to contest was illegal and required to be quashed and set aside. He also submitted that majority of the elected Directors were Directors of earlier term of the Market Committee which came to an end vide order dated 9.6.2009 passed by the State Government under section 46 of the Act whereby the Market Committee came to be superseded by the State Government on the ground of irregularities committed by the Directors of the Committee and therefore, they ought not to have been allowed to contest the elections as they have been guilty of misusing and abusing their office/position as members of the Managing Committee of the APMC. Therefore, also the said action of the Election Officer in allowing the said persons to contest the election was illegal. He finally submitted that the petition may be dismissed.
6. We have heard the learned counsel for the parties.
Annexure R-4 at page 127 is the xerox copy of the notice related to election of APMC, Wankaner published on 8.5.2010 in the daily newspaper 'Gujarat Samachar'. It is the case of respondent No.4 that at least after the said public notice dated 8.5.2010 it was known to all regarding declaration of election of APMC, Wankaner. However, vide order dated 11.5.2010, the Rajkot District Cooperative Bank Ltd. changed the nomination and appointed some of the petitioners and similar other persons who had political backing and who were interested as nominee members of the Bank. That order was passed on 11.5.2010, obviously after declaration of the election of the APMC, Wankaner and the said action is illegal as it would directly interfere with the election process which had already started.
6.1. Referring to the document at Annexure 'B' page 24, as per the election programme for the election of APMC, Wankaner, the date of declaration of the election of APMC, Wankaner mentioned was 14.5.2010. That election programme also provided for issuance of direction to the authorised officer for preparing voters' list as on 14.5.2010 and the last date for sending voters' list to the authorised officer was fixed to be 21.5.2010.
6.2. Under the above circumstances, the question to be decided is which should be the relevant date for determining eligibility of any person for inclusion in the voters' list - (a) the date of publication of notice related to election of APMC, Wankaner in the daily newspaper or (b) the date by which the authorised officer is to be communicated the names as per the election programme. According to learned counsel for the petitioners, the clear answer to the said question had been given by the Division Bench of this court in paras 18, 19 and 35 of the decision in Kalubhai Ranabhai Akabari v. State of Gujarat and Ors (2007 (3) GLH 57). The said paras 18, 19 and 35 are reproduced hereunder:
“18. In our view, therefore, the relevant date for determining the eligibility of a person for inclusion in the voters' list would be the date by which the Authorized Officer is to be communicated the names as indicated in sub-rule (1) of Rule 7, that is to say, before that date -
(i) a co-operative society registered under the Co- operative Societies Act for dispensing agricultural credit must have been registered as a cooperative society and must also have commenced the activity of dispensing agricultural credit;
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader;
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
18A. The only exception to the above general rule is to be found in Rule 6 which reads as under :-
6. Persons qualified to vote.- A person whose name is entered in a list of voters shall be qualified to vote at an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list.
19. Hence, it is not possible to accept the submission of Mr Mangukia for the respondent – co-operative societies that merely because the societies were registered as co- operative societies on 21.4.2007, the members of their managing committees were entitled to be included in the provisional list of voters published on 21.4.2007. As already discussed above, mere registration of a society as a co-operative society for dispensing agricultural credit cannot confer a right upon the members of its managing committee to participate in the elections when no activity of dispensing agricultural credit had commenced. In fact, the activity of dispensing agricultural credit had to commence before the date by which the Authorized Officer was to receive the names under Rule 7(1) [14.4.2007, in this case].
“20 to 34 ... ... ...
“35. To sum up then, our conclusions are as under :-
I. “The relevant date” for determining the eligibility of a person for inclusion in the voters' list for elections to APMC is the date on which the Authorized Officer is to be communicated the names as indicated in sub- rule (1) of Rule 7 of the APMC Rules, 1965, that is to say, before that date -
(i) a co-operative society must have been registered under the Cooperative Societies Act as a cooperative society for dispensing agricultural credit and must also have commenced the activity of dispensing agricultural credit.
(ii) a trader who has been granted license by the APMC to carry on business as a trader in the market area must have commenced business as a trader.
(iii) a co-operative marketing society registered as such under the Co-operative Societies Act and having obtained a general licence from APMC must also have commenced its business of marketing.
II. The only exception to the above general rule is to be found in Rule 6. Hence, if a person, whose name was entered in the list of voters, has ceased to hold the capacity in which his name was entered in such list, such person shall not be qualified to vote at the election to which the list of voters relates.
III. To be eligible for inclusion in the list of voters for elections to APMC, -
(i) A co-operative society must have obtained registration under the Co-operative Societies Act for dispensing agricultural credit before the date on which the Director has fixed the date of elections to APMC (i.e. the date of declaration of elections).
(ii) A person must have obtained from APMC a general license for trader before the date of declaration of elections.
(iii) A co-operative marketing society must have obtained its registration under the Co-operative Societies Act and a general license from APMC before the date of declaration of elections.
IV. Challenge to the legality and validity of registration of a society under the Co-operative Societies Act can only be entertained by the forum under Sections 153 and 155 of the Gujarat Co-operative Societies Act, 1961, and not by the Election Tribunal constituted under Rule 28 of the APMC Rules, 1965.
V. Challenge to the legality and validity of a license issued by APMC can only be entertained by the concerned forum under Section 27 of the Gujarat APMC Act, 1963.
VI. The question whether a co-operative society commenced the activity of dispensing agricultural credit before the relevant date, whether a trader possessing general license from APMC commenced the business of trading before the relevant date or whether a co-operative marketing society possessing general license from APMC commenced its business of marketing before the relevant date are questions of fact which the Authorized Officer has jurisdiction to decide under Rules 7(2) and 8 of the APMC Rules, 1965 and the Election Tribunal under Rule 28 also has the jurisdiction to examine these questions.”
6.3. The above ratio laid down by the Division Bench of this Court is squarely applicable to the present case because as per the election programme, issuance of the direction to the authorised officer for preparing voters' list was 14.5.2010 and prior to that i.e. vide order dated 11.5.2010 the Rajkot District Cooperative Bank had changed the nomination and appointed some of the petitioners and similar other persons who had political backing. By the said action, there appears no illegality on the part of the petitioners as has been held in para 18 of the above referred judgment and order passed by the Division Bench of this court in Kalubhai Ranabhai Akabari's case (supra). It is the contention of the respondents that only with a view to inflate the voters' list nominations have been changed after the declaration of the election programme but the respondents have failed to point out that by that action on the part of the petitioners which illegality has been committed or how any illegality has been committed by them. Moreover, it appears that if at all it had been done so by the respondents then also that action was within the four corners of law as discussed above. In paras 18, 19 and 35 of the judgment of Kalubhai Ranabhai Akabari's case (supra), it has been categorically stated that the relevant date for determining the eligibility of a person for inclusion in the voters' list of APMC, Wankaner is the date on which the authorised officer is to be communicated names as indicated in sub-rule (I) of Rule 7 of APMC Rules, 1965 and thus in our view, the findings recorded by respondent No.1-the Director, Agricultural Marketing and Rural Finance that they were not eligible to vote in the election is completely illegal and baseless and there is no substance in the submission made by the respondents that because of change in the representatives of Rajkot District Cooperative Bank, 32 votes have been cast by new nominees which were absolutely illegal. On this aspect, learned counsel for the petitioners has also placed reliance on a decision in the case of Ravi Yashwant Bhoir v. Collector, reported in 2012 (4) SCC 407 wherein it has been observed by the Supreme Court in para 22 that an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of provisions of Article 21 of the Constitution, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The court being the custodian of law cannot tolerate any attempt to thwart the institution. From the above discussion, it is clear that in the case on hand also the Director, Agricultural Marketing and Rural Finance, Gujarat State, Gandhinagar who had passed the order dated 18.11.2010, has adopted a casual approach in considering the facts that vide order dated 11.5.2010 the Rajkot District Cooperative Bank had deliberately changed the nominations and appointed some of the petitioners and similar other persons who had political backing after the publication of the election programme. Nothing substantial has been argued by learned counsel for the respondents on the above referred issue and we do not find any substance in the above referred submissions made by learned counsel for the respondents. It is clear from bare reading of the impugned order that election of the petitioners is set aside by the Director only on the ground that voters' lists were inflated by “election-oriented” inclusion, without holding that such inclusion was illegal or impermissible by any legal provision. Thus the subjective notion of impropriety is converted into illegality attached to the inclusion of names of the petitioners in the voters' list, without reference to any legal provision and that makes the impugned order arbitrary and illegal.
7. It is alleged that another illegality committed by the Election Officer is inclusion of two societies i.e. Galaxi Horticulture Growers' Cooperative Society Limited and Sarvoday Horticulture Growers' Cooperative Society Limited. It is alleged that the Auditor had also recorded that those societies were not functioning and were not carrying on any operation for which they were registered and that they were not dispensing agricultural credit to its members. According to the findings of the Director, inclusion of the names of Executive Committees of those societies was illegal. The observations of the Director is that the societies have shown 'hawala lakshi' transaction i.e. dispensation of agricultural credit by merely book-entries. As per findings of the Election Officer those societies were dispensing agricultural credit from 2007-2008 and, therefore, they were covered by the definition of cooperative societies dispensing agricultural credit and therefore names of the members of the Executive Committees of the said societies were included in the voters' list.
7.1. It has been submitted by learned counsel for the petitioners that merely because names of both the societies were included in the voters' list of Bin Kheti Sarafi Mandlis in the election of Rajkot District Cooperative Bank Ltd., the same is not material for the present dispute. Be that as it may, it is not in dispute that there were 30 votes of the members of the Executive Committees of above referred two Horticulture societies in the voters' list. On this issue, the full bench of this Hon'ble Court in the case of Daheda Group Seva Sahkari Mandali Ltd. v. R.D. Doshit (2006(1) GCD 211) have observed in para 30 as under:
“Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected.”
In the case on hand, the Director has clearly come to the conclusion that in view of the result of election, there is difference of 57 votes between defeated and elected candidates. Accordingly, out of 57 votes, if 30 votes of two Horticulture societies are deducted, even on the assumption that all those votes had been cast in favour of the petitioners, then also the difference comes to 27 and thus it is clear that election is not materially affected as has been observed by the Director.
8. It is also submitted by learned counsel for the respondents that the petition is not maintainable since the petitioners have alternative efficacious remedy available by way of preferring Revision Application under section 48 of the Gujarat Agricultural Produce Markets Act, 1963. On the other hand, it has been argued by learned counsel for the petitioners that on rule of harmonious construction, the State Government has once exercised powers as Election Tribunal, it cannot exercise revisional power under Section 48 of the Act. Therefore the provisions of section 48 of the Act have no application, they being otherwise also discretionary provisions and powers.
9. In the result, the petition is allowed. On the facts and in the circumstances, the impugned order dated 18.11.2010 passed by respondent No.1-the Director, Agricultural Marketing and Rural Finance, Gujarat State, Gandhinagar is set aside. The District Registrar, Cooperative Societies, Junagadh is directed to comply with sub-rule-1 of Rule 31 of the Gujarat Agricultural Produce Market Rules, 1965 as expeditiously as practicable within a fortnight from today. Rule is made absolute accordingly with no order as to costs. Direct service is permitted.
[D.H. WAGHELA, J.]
[G. B. SHAH, J.]
msp FURTHER ORDER After pronouncement of the order, learned counsel Mr Dipen Desai appearing for respondent No.4 has requested the court to stay operation of this order. Considering the fact that the present petitioners have already been elected on 5.8.2010, the request is rejected.
[D.H. WAGHELA, J.]
[G. B. SHAH, J.]
msp