Mr. R. Subhash Reddy, J.(Oral) - This Letters Patent Appeal is filed by the original petitioner in Special Civil Application No. 2128 of 2016, aggrieved by the order of the learned single Judge dated 28.6.2016. In view of common questions of law on similar set of facts, the above petition and other Special Civil Applications were filed, which were heard together and disposed of by common order.
2. Special Civil Application No. 2128 of 2016 is filed with the following prayers:-
"(A) The Hon''ble Court be pleased to admit and allow this Special Civil Application.
(B) The Hon''ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 01.02.2016 passed by the respondent No.4 Authorised Officer at Annexure-A to the petition.
(C) The Hon''ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Authorised Officer to include the names of members of managing committee of the petitioner society in the voters list of agriculturist constituency for the elections of Agriculture Produce Market Committee, Jetpur Pavi.
(D) Pending final hearing and disposal of the petition, the Hon''ble Court be pleased to stay the execution, operation and implementation of order dated 01.02.2016 passed by the respondent No.4-Authorised Officer at Annexure-A to the petition and further be pleased to permit the members of managing committee of the petitioner society to participate in the elections of Agriculture Produce Market Committee, Jetpur Pavi.
(E) The Hon''ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon''ble Court in the interest of justice."
2.1 The appellant-Bhesavahi-Group Vividh Karyakari Seva Sahakari Mandali Ltd is a cooperative society registered under the provisions of the Gujarat Cooperative Societies Act, 1961. Agriculture Produce Market Committee, Pavi Jetpur, Taluka-Pavi Jetpur,District-Chhota Udepur is constituted under the provisions of the Gujarat Agricultural Produce Markets Act, 1963 (hereafter to be referred to as "the said Act"). It is the case of the appellant society that in the year 2015, election programme was notified for election of the market committee. Subsequently, after publishing the final voters list, the 2nd respondent-Director passed order dated 5.5.2015 cancelling the programme on account of change in the limits of the market area of the said committee. Earlier, Special Civil Application was filed by one Govindbhai Gomabhai Rathwa, seeking direction to complete the process of altering the limits of the market area and this Court, vide order dated 5.5.2015 disposed of the said petition by recording the statement of the Assistant Government Pleader that alteration of the limits shall be finalized as early as possible, thereafter, fresh election programme will be notified. After the completion of the process of alteration of the limits of the market committee, the respondent no.2 herein published fresh election programme on 19.9.15 and the election was to be held on 21.12.2015. To conduct such election, preliminary voters list was published on 3.10.2015 by including the names of he members of the managing committee of the appellant society. Against such inclusion, the respondent nos. 5,6 and 7 herein had raised certain objections objecting to the inclusion of the members of the managing committee of the original petitioner and other similarly placed societies in the voters list. Respondent no.4 herein, after holding an inquiry, passed common order dated 24.10.2015 deleting the names of the members of the managing committees of 17 societies including that of the appellant society. Such common order was passed by the authorised officer/election officer deleting the names of the members of the managing committee. Earlier the appellant society had filed Special Civil Application No. 18345 of 2015 questioning the order deleting the names of the members of the appellant society, but during the pendency of the writ petition, as the impugned order was withdrawn, this Court, vide order dated 9th December, 2015 disposed of the earlier writ-petition by granting liberty to the authorised officer to pass fresh orders in respect of each of the societies by considering the objections raised by the objectors.
2.2 It appears that the authorised officer, by considering the objections of the objectors, including those of respondent nos. 5,6 and 7 and by considering the documentary evidence produced by the parties, passed an order dated 1.2.2016, deleting the names of the members of the managing committee of the appellant society. Separate orders in respect of each society was passed on 1.2.2016. One such order dated 1.2.2016 was the subject-matter of challenge in the Special Civil Application before the learned single Judge. The aforesaid impugned order dated 1.2.2016 is passed by the authorised officer mainly by accepting the objections of the objectors, being respondent nos. 5,6 and 7 herein on the ground that they do not qualify to be the voters in view of the amended provision under Section 11(1)(i) of the Act. Mainly it was their case that the appellants were not the members of the managing committee of Primary Agricultural Credit Cooperative Society, dispensing the agricultural credit in the market area.
2.3 At the stage of admission, the writ-petition was resisted particularly by respondent no. 6 herein by filing reply contending inter alia that in view of the effective alternative remedy available to the appellant under Rule 28 of the Gujarat Agricultural Produce Market Rules, 1965 ("hereafter to be referred to as "the said Rules") to raise dispute before the competent authority, the writ-petition filed is not maintainable. It was the case of the respondent no.6 that the appellant has placed forged documents on record to show that it is a society dispensing agricultural credit in the market area and such society had not followed the mandatory provisions contained in Gujarat Cooperative Societies Act, Rules and the bye-laws applicable to the societies falling under the cooperative credit structure and bogus transactions of loans in their books of accounts were shown for dispensation of agricultural credit.
2.4 In the Special Civil Application, after hearing the parties, at the first instance, interim order was passed on 22.3.2016, which reads as under:
"1. Heard Mr. Mihir Joshi, learned Senior Counsel assisted by Mr. Dipen Desai, learned advocate and Mr. Dilip Rana, learned advocate appearing for the petitioners and Ms. Manisha Lavkumar, learned Government Pleader appearing for the respondent-State and Mr. V.C. Vaghela, learned advocate appearing for the private respondents objectors.
2. Mr. Mihir Joshi, learned Senior Counsel appearing for the petitioners submits that there is no specific findings by the authorised Officer appointed under sub-rule (2) of Rule 2 of the Gujarat Agriculture Produce Markets Rules,1965, that the petitioners are not Primary Agricultural Credit Co-Operative Society and not dispensing agricultural credit to its members, however, the names of the members of managing committee of the petitioner societies were deleted from the list of voters, though their names were earlier included in it, prior to the amendment of April,2015 in Section 11 of the Gujarat Agriculture Produce Markets Act.
3. I have also considered the submissions made by Ms. Manisha Lavkumar, learned Government Pleader that there is efficacious remedy available under Rule 28 of the Rules to challenge the election before the Director. I have also considered the submission made by Mr. V.C. Vaghela, learned advocate for the private respondents- objectors that the petitioners societies are not societies dispensing the agricultural credit, as per the by-laws of the societies.
4. I have also considered several decisions rendered by Hon''ble Apex Court as well as reported and unreported decisions by Division Bench as well as Coordinate bench of this Court. I have also considered the documents produced along with these petitions.
5. Since the election is scheduled on 28/03/2016, following order is passed:
Rule returnable on 25/04/2016. Respective advocates appearing for the respective respondents waive service of Rule.
By way of interim relief, members of the Managing Committee of each petitioner societies are permitted to vote in the election, which are scheduled on 28/03/2016.
The votes cast by each of the members of the petitioner societies shall be kept in sealed cover and shall not be opened, without prior permission of this Court.
The votes cast by Sithol Group Adivasi Khedut Seva Sahakari Mandli Limited and Shri Jay Jalaram Kheduto Ne Mal Puro Padnari Sahakari Mandali Limited shall be kept in separate sealed covers and shall not be opened, without prior permission of this Court.
Result of the Agricultural constituency in question shall not be declared, without prior permission of this Court. Direct service is permitted today."
2.5 While disposing of the Special Civil Application, the learned single Judge extensively discussed all the objections on the maintainability of the petition raised by the respondents herein by considering the case-law on the subject and held that in view of the efficacious alternative remedy by way of election petition provided under Rule 28 of the Rules, to the appellant and that the election process has already started, the petition deserved to be dismissed on the ground of alternative remedy. Notwithstanding such finding recorded by the learned single Judge, the learned single Judge also considered the other arguments advanced at length on merit and held that the petitioner society had not followed the procedure and as per the norms of three-tyre credit structure as per the provision contained in the Gujarat Agricultural Produce Market Act, Rules and Bye-laws, their names did not fit, in view of the amended provision under Section 11(1)(i) of the Act.
3. Heard Mr. Mihir Joshi, learned Senior Advocate assisted by Mr. Mr. Dipen Desai; learned counsel for the appellant, Mr. P.K. Jani, learned Additional Advocate General for respondent no.1-State of Gujarat and Mr. V.C. Vaghela, learned counsel for respondent no.5.
4. In this appeal, it is mainly contended by Mr. Mihir Joshi, learned Senior Advocate that the learned single Judge has committed error in rejecting the Special Civil Application filed by the appellant on the ground of availability of effective remedy under Rule 28 of the Rules. It is submitted that earlier, at the stage of passing interim orders, the said objection was raised and in spite of the same, interim relief was granted by permitting the members of the managing committee of the appellant society to vote in the election with further direction to keep such votes in sealed cover and not to declare the results of the agricultural constituency. It is submitted that having entertained the writ-petition in spite of such defence by the respondents, the learned single Judge ought not to have dismissed the petition on the ground of availability of effective alternative remedy. It is further contended by the learned counsel that as much as 4th respondent-authorised officer has committed jurisdictional error by exceeding the scope of inquiry under Rule 8 of the Rules, it is always open for the appellant to question the said order by way of petition under Article 226 of the Constitution of India. It is further pleaded that the scope of inquiry under Rule 8 of the Rules by the authorised officer is to the limited extent. In support of his submissions, learned counsel has placed reliance on the Division Bench judgment of this Court in the case of Seva Sahkari Mandali Limited v. State of Gujarat, reported in 2010(0) GLHEL-HC 223660. By submitting that when the authorised officer exercises powers not statutorily available, the remedy under Rule 28 of the Rules cannot be said to be alternative remedy, the learned Sr. Advocate relied upon the Division Bench judgment of this Court in the case of Vibhaniya Seva Sahakari Mandali Ltd and Ors v. State of Gujarat and Ors, reported in 2012 (1) G.L.H. 575 and also in the case of Shrutbandhu Himatlal Popat v. State of Gujarat Through Secretary, reported in 2011 (0) GLHEL-HC 226207.
5. On the other hand, the learned Additional Advocate General Mr. P.K. Jani, appearing on behalf of respondent no.1-State of Gujarat supported the findings recorded by the learned single Judge by mainly addressing that the remedy provided under Rule 28 of the Rules is effective alternative remedy to raise an election dispute and there is no reason to question such action by way of a petition under Articles 226 and 227 of the Constitution of India. It is submitted that the names of the members of the managing committee of the appellant society are excluded from the voters list by accepting the objections raised by the objectors, which can be the subject-matter of challenge by way of a dispute under Rule 28 of the Rules. In support of such submission, reliance is placed on the Full Bench judgment of this Court in the case of Daheda Group Seva Sahkari Mandali Limited v. R.D. Doshit, reported in 2006 (1) GCD 211. It is further submitted that merely because interim order was passed in spite of raising of objection with regard to maintainability of the petition in view of the alternative remedy provided, it is always open to consider such question after hearing all the parties at the time of disposal of the Special Civil Application. The earlier order dated 22.3.2016 was only an interim order, as such, it was open for the learned single Judge to record a finding on the maintainability of the petition at the time of the disposal of the Special Civil Application. It is further submitted that Section 11(1)(i) of the Gujarat Agricultural Produce Market Act was amended and in view of the amended provision, members of the primary agricultural credit cooperative societies dispensing agricultural credit in the market area alone are eligible to vote. It is submitted that when objections are filed before the authorised officer disputing the inclusion of members of the managing committee, who do not qualify as per the aforesaid provision, it is always open for the authorised officer to make inquiry to that limited extent in exercise of power under Rule 8 of the Rules. It is submitted that while making inquiry on objections, it is always open to order amendment to the voters list by the authorised officer in exercise of power under Rule 8 of the Rules.
6. So far as the submission made by Mr. Mihir Joshi that in view of the interim order dated 22.3.2016, the Special Civil Application ought not to have been dismissed on the ground of availability of alternative remedy, we find no merit in such contention. While passing the interim order dated 22.3.2016, no finding is recorded by the learned single Judge on the maintainability of the Special Civil Application having regard to the alternative remedy available under Rule 28 of the Rules. In any event, merely because interim order is passed in spite of raising of such objection with regard to maintainability of the petition, that will not preclude the Court to go into such issue at the time of disposal of the petition by considering the submissions of both the sides by referring to the case-law on the subject. Such plea raised by the learned counsel for the appellant also cannot be accepted in view of the ratio in the judgment in the case of State of U.P. and Anr. v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors., reported in (2008) 12 SCC 675. The learned single Judge has rightly relied upon para-38 of the said decision which is reproduced hereunder:
"38. ...True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ- petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-petition albeit wrongly and granted the relief to the petitioner."
7. In view of the aforesaid reasoning and the judgment of the Hon''ble Supreme Court, we are not inclined to accept the above submission made by the learned Senior Advocate for the appellant in this regard.
8. It is further submitted by the learned Senior Advocate that as much as the authorised officer has exceeded the scope of inquiry contemplated under Rule 8 (2) of the Rules, he committed jurisdictional error, as such, the Special Civil Application is maintainable in spite of the remedy available under Rule 28 of the Rules. In the judgment in the case of Vibhapur Seva Sahakari Mandali Limited (supra), a Division Bench of this Court has considered the scope of inquiry under Rule 8 of the Rules and has held that scope of inquiry is limited to the extent of ascertainment of the details submitted by the cooperative society and testing the veracity thereof, namely, whether a particular person whose name has been included by the co-operative society in the list is a member of the managing committee or not, or whether he resides at the place stated in the list by the co-operative society or not. It is held that the inquiry contemplated under Rule 8 is restricted by statutory provision itself. Further in case of Vibhajya Seva Sahakari Mandali Ltd.(supra), a Division Bench of this Court held that when order is passed by going beyond the scope of inquiry by the authorised officer under Rule 8, the remedy under Rule 28 of the Rules cannot be said to be alternative remedy. Even in the judgment in the case of Shrutbandhu Himmatlal Popat (supra), Division Bench of this Court has considered the scope of inquiry under Rule 8 of the Rules, but at the same time, it is relevant to take note of Full Bench judgment of this Court in the case of Daheda Group Seva Sahakari Mandali Limited (supra). In the aforesaid judgment, Full Bench of this Court by considering the scope of the provision of Rule 28 of the Rules,1965 has categorically held that for inclusion or deletion of names of the voters in the voters list, a person can avail benefit of provision under Rule 28 of the Rules by filing election petition. In the aforesaid judgment, while holding that though petition under Article 226 of the Constitution is maintainable in spite of availability of alternative remedy, such powers are to be exercised under extraordinary or special circumstances such as where order the order is ultra vires of nullity and/or ex facie without jurisdiction. Para-33 of the aforesaid judgment read as under:
"33. 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."
9. In the aforesaid judgment, it is categorically held by this Court that exclusion or inclusion of names in the voters list cannot be termed as extraordinary circumstance warranting interference by this Court under Article 226 of the Constitution and such questions are to be decided in an election petition under Rule 28 of the Rules.
10. As it is not in dispute that precisely it is the case of the appellant in this case that their names were wrongly excluded is certainly a ground which can be agitated by way of election petition under Rule 28 of the Rules.
11. From reading of the provision under Section 11 (1)(i) of the Act read with Rule 8 of the Rules, it is also clear that as per the provision under Section 11(1)(i) of the Act, only members of the managing committee of primary agricultural credit cooperative society dispensing agricultural credit in market area alone are eligible for inclusion for holding elections to the agriculturist constituency of the market committee. Further from the reading of Rule 8 of the Rules, it is also clear that when objections are filed under Rule 8(1) of the Rules, it is always open for the authorised officer to hold an inquiry that whether such proposed members of the managing committee are the members of primary agricultural credit cooperative society or not and whether such primary agricultural credit cooperative society is involved in dispensing of agricultural credit in the market area or not. The authorised officer may not conduct in-depth enquiry elaborately, but so as to consider that such nominated members of the particular agricultural society fit into the electorate as contemplated under Section 11(1)(i) of the Act, can make summary inquiry into it. There cannot be any straitjacket formula on the scope of inquiry under Rule 8(2) of the Act with reference to eligibility of the electorate under Section 11(1)(i) of the Act, but it is a matter to be decided by the election officer having regard to the facts of each case. When it is an objection of the objector that the appellant society is not dispensing agricultural credit in the market area, limited inquiry is always permissible by authorised officer under Rule 8(2) of the Rules to that limited extent. Further when electrotate under Section 11 (1)(i) of the Act are members of the primary agricultural credit cooperative society dispensing agricultural credit in the market area, it is also open for the authorised officer to examine whether such societies are primary agricultural credit cooperative societies or not which are involved in dispensation of agricultural credit in the market area. While we are in agreement with the view taken by the earlier Division Bench on the restricted scope of inquiry in the case of Shrutbandhu Himatlal Popat (supra), we hold that such finding in the inquiry is to be recorded on the basis of the material placed before the authorised officer having regard to the facts of each case. Such order which is passed by considering the material placed before the authorised officer, cannot be said to be an order passed without jurisdiction or extraordinary circumstances as held by Full Bench of this Court in Daheda Group Seva Sahakari Mandli Limited (supra), so as to entertain the petition under Article 226 of the Constitution of India in view of the remedy available under Rule 28 of the Rules. Further, in the judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha v. State of Maharashtra and others, reported in (2001) 8 SCC 509, the Hon''ble Supreme Court held that breach of or non-compliance of mandatory provisions with rules during the preparation of electorate roll can be challenged in an election petition under the provisions of the Maharashtra Cooperative Societies Act. In the aforesaid decision, it is held that where election process has started, dispute has to be agitated by way of election petition only. It is further held that preparation of voters list is a part of election process for constituting a managing committee of the specified society and such dispute can be resolved by way of election petition. In recent judgment, while considering the validity of rejection of nomination paper under Dental Council (Election) Regulations, 1952 and Dentists Act, 1948 in the case of Shaji K. Joseph v. V.Viswanath & Ors, reported in 2016 (0) AIJ-SC 57978, the Hon''ble Supreme Court held that all disputes with regard to election should be dealt with only after completion of the election by seeking resolution of dispute as per the regulations.
12. In view of the aforesaid judgments, we are of the view that the petition filed by the appellant is rightly held to be not maintainable by the learned single Judge in view of the that effective alternative remedy available under Rule 28 of the Rules.
13. It is also pleaded by learned Senior Advocate Mr. Mihir Joshi that remedy under Rule 28 of the Rules is only before Director, and the order impugned in the Special Civil Application is passed by the authorised officer of the Director who is performing functions as election officer, as such, the same is not an effective alternative remedy. Merely because the impugned order is passed by the authorised officer, that by itself is no ground to hold that remedy before the Director is not an effective alternative remedy. When a dispute is raised by placing material on record, it is always open for the Director to pass appropriate orders either by confirming or by amending the results of election or setting aside the election. In view of such powers which are expressly conferred under Rule 28 of the Rules, even such submission that under the Rules the Director is working under the government and the impugned order passed by the authorised officer of the Director also cannot be a ground to accept the contention that remedy under Rule 28 of the Rules is not effective alternative remedy.
14. It is also pleaded by learned Sr. Advocate Mr. Mihir Joshi that the learned single Judge has also recorded a finding that the appellant is not primary agricultural credit cooperative society, but it was not a ground for exclusion of the names of the members of the managing committee of the appellant society and the learned single Judge thereby dismissed the Special Civil Application. It is clear from Section 11(1)(i) of the Act that members of the managing committee of only primary agricultural credit cooperative societies doing credit business in the market area alone are eligible to vote. The learned single Judge has recorded such finding. But from the reasons stated in the order impugned in the Special Civil Application as we are of the view that the order impugned in the Special Civil Application itself can be the subject-matter of election petition, such finding of the leaned single Judge will have no consequence at all.
14A. For the aforesaid reasons, we are of the view that this appeal is devoid of merits and the same is accordingly dismissed.
15. However, we leave it open to the appellant that if the appellant-petitioner is aggrieved by the result of election, it can approach the competent authority by raising an election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the findings recorded either by the learned single Judge or by this Court in this appeal.
16. Since the main appeal is dismissed, the Civil Application does not survive and the same stands disposed of.
