(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. Heard the learned Advocate Mr V C Vaghela for the petitioner. The matter requires consideration. RULE. Mr Maulik G Nanavati, learned AGP waives service of Rule on behalf of the respondents. At the request of the learned Advocate Mr V C Vaghela for the petitioner, the matter is taken up for final disposal today to which learned AGP is having no objection.
2. The facts of the case in brief are that the Director, Agricultural Marketing and Rural Finance, Gujarat declared election to the Agricultural Market Produce Committee, Sanand by issuing Notice on 26.9.2011 under Rule 10(2) of the Gujarat Agricultural Produce Market Rules, 1965. After declaration of the said election, elections to the Panchayats across the State were announced by the State Election Commission. In order to ensure that there is smooth conduct of elections of the Panchayats and the Agricultural Produce Market Committees, it was felt desirable that elections of all Agricultural Produce Market Committees coinciding with the Panchayat elections be postponed for some time. Accordingly elections to the Agricultural Produce Market Committee, Sanand were postponed on instructions of the Director. As even after elections to the Panchayat across the State were over and election to the Market Committee, Sanand was not resumed, the present petition was filed seeking a direction to the “respondent authorities to immediately declare the election of Sanand APMC from the stage where it has stopped and complete and conclude the election”.
3. Notice was issued by this court on 13.1.2012. The Director filed an affidavit dated 1.2.2012 stating that in exercise of the power available to him under provisions of the Gujarat Agricultural Produce Market Committee (for short, “the Act”) read with section 21 of the General Clauses Act, 1897, he decided to cancel the election of Sanand APMC declared on 26.9.2011 in public interest. In view of the said affidavit, the petitioner produced draft amendment dated 02.2.2012 challenging the decision of the Director of cancelling the election and praying to quash and set aside the said decision. The said draft amendment was allowed by order dated 21.2.2012. Thereafter the Director filed another affidavit dated 27.2.2012 supporting his decision to cancel the election in public interest. In particular, it is stated in the affidavit that the persons who were not authorised to be members of the Managing Committee of the Cooperative Societies as per the existing bye-laws of such Cooperative Societies were included in the list of voters in their capacity as members of the Managing Committee of such societies. Similarly persons who are not traders, inasmuch as there is no material available with the Market Committee to show that they have done any trading activity in the market area have been included in the electorate for electing representatives of traders in the Market Committee. It is further stated that considering the material gathered in the inquiry conducted by the District Registrar which clearly shows that the electoral process is vitiated a bonafide decision in larger public interest was taken by him to cancel the election. To the said affidavit, a rejoinder has been filed by the petitioner alleging that the decision has not been taken bonafide but for a collateral purpose of benefitting the party in power. It has also been stated in the rejoinder that the irregularity in the voters' list was challenged before this Court in Special Civil Application No.17601 of 2011 but the said petition was withdrawn. Also an appeal was preferred to the Director complaining about irregularity in preparation of voters' list which was rejected by the Director. Therefore, it was not open for the Director to cancel the election for the very same reason. Even otherwise, it has been stated that the Director has no power to cancel the election after having declared the same and assuming that he has power, the present is not a fit case for exercise of such power.
3. Thereafter on 2.4.2012 the Director in exercise of power available to him under the provisions of the Act and Rules framed thereunder has declared a fresh election to the Agricultural Produce Market Committee, Sanand. An affidavit dated 9.4.2012 has been filed by the Director placing on record the Notice issued by him fixing the date of election and stages of election. As per the affidavit, the election process has started w.e.f. 6.4.2012. On 10.4.2012 when the matter was taken up for hearing, learned Advocate for the petitioner moved the draft amendment dated 10.4.2012 challenging the decision of the Director to declare fresh election and praying for quashing and setting aside the election programme declared on 2.4.2012.
4. We have heard Mr V C Vaghela, learned Advocate for the petitioner at length. The principal contention of the learned Advocate for the petitioner is that all the decisions of the Director, be it that of cancellinig the election or that of declaring the election are without authority and in any case not bona fide. He submitted that all along an attempt is being made by the respondents to make the present petition infructuous. He submitted that if the reason for cancelling the election was because the list of voters prepared for the election included names of certain persons who could not and should not have been included then the petitioner in his rejoinder has already stated that he is not averse to having the same illegality corrected by an order of the court and, therefore, there was no necessity for the Director to declare a fresh election from the beginning that is to say from the stage of preparation of voters' list. He further submitted that the election process had reached to a stage where final voters' list was published and the date of filing nominations was due.
5. At this stage, a query was put to the learned AGP as to whether the Director would insist on declaring a fresh election from the stage of calling names of potential voters being included in the voters' list even if an appropriate order is passed by this court permitting correction of the voters' list in the peculiar facts of the case so as to avoid repetition of preparation of voters' list and consequential delay of elections to the Market Committee. Mr Nanavati had requested for time on 10.4.2012 to seek instructions. Today when the matter is taken up for hearing, Mr Maulik G Nanavati makes a statement on instructions of Shri M.D. Chauhan, Director, Agricultural Marketing and Rural Finance, Gujarat who is personally present in the court that the decision to cancel the election was taken to prevent fraud and subserve public faith in fair and clean democratic election process. The intention was never to not hold the election or delay the election and therefore, if suitable directions are given by the court permitting correction of the illegality and apparent fraud in the voters' list, the Director would withdraw his earlier decision of cancelling the election declared by issuing notice on 26.9.2011 and the notice dated 2.4.2012 declaring a fresh election to the APMC, Sanand.
6. We are of the view that the affidavit filed by the Director clearly shows that some persons who could not have been members of the Managing Committee of the Marketinig Society have been included in the electorate comprising of members of Managing Committees of such Marketing Societies. Similarly, some traders in respect of whom there is no material showing doing of any business of buying and selling agricultural produce or of processing of agricultural produce have been included in the list of voters. It appears that the Authorised Officer designated by the Director has perfunctory and without conducting necessary inquiry included the names of persons in the list of voters being prepared for the different constituencies. We feel that permitting the election to proceed from the stage where it has stopped without correcting the apparent illegality would amount to perpetuating the fraud and therefore consider it appropriate to issue directions to the Director to correct the list of voters for all the constituencies after making appropriate inquiry. The Director or his nominee shall call upon the Cooperative Societies to produce their Bye- laws to ascertain the eligibility of the persons whose names have been forwarded by the respective Cooperative Societies for being included in the list of voters in their capacity as members of their Managing Committee and thereafter exclude names of such persons which are not in consonance with the Bye-laws of the respective societies. Similarly the Director shall call upon the traders to produce material showing that they have been carrying on trading activity in the market area to justify their inclusion in the list of voters being prepared for the traders' constituency. This exercise shall be completed within a period of 10 days from today. In the meantime, the Director shall pass appropriate orders withdrawing his earlier decision of cancelling the elections declared by notice dated 26.9.2011 and declaring fresh election by notice dated 02.4.2012. Such orders be passed on or before 16.4.2012. On completion of the aforestated inquiry and correction of the list of voters for all constituencies, the Director shall publish a fresh programme declaring the stages of election post publication of final voters' list.
7. With these directions, the petition is disposed of.
Rule is made absolute to the aforesaid extent. Direct Service today is permitted.
[RAVI R TRIPATHI, J.] msp [G B SHAH, J.]