(Per : HONOURABLE MR.JUSTICE V. M.
SAHAI)
1. This writ petition has been filed by the petitioners on the ground that they have applied for traders licence much before the elections were notified but the traders licence was not granted and the application was not decided by the respondents. Meanwhile the elections have been notified and on 12.1.2012 preliminary voters list was also published and names of the petitioners are not shown in the preliminary voters list.
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 petitioners 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 petitioners.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top