Umesh A. Trivedi, J
[1.0] Since all these petitions raise similar issue on law and facts, it is proposed to be disposed of by this common judgment.
[2.0] For the sake of convenience, facts of Special Civil Application No.6383 of 2020 is taken into consideration.
[3.0] Challenge in this petition is to the order passed by the Authorized Officer and Cooperative Officer (Market) dated 06.03.2020 whereby
respondent no.2 - Authorized Officer has excluded the names of the Members of Executive Committee of the petitioner - Society on an objection
raised by respondent no.3 â€" objector.
[3.1] The Director, Agricultural Marketing and Rural Finance published an election programme dated 30.01.2020 for Bechraji Agriculture Produce
Market Committee, District Mehsana. It is the case of the petitioner - Society that it is an Agricultural Credit Cooperative Society dispensing the
agricultural credit in the market area of Agriculture Produce Market Committee, Bechraji, and therefore, names of the Managing Committee
Members of the petitioner -Society were forwarded to respondent no.2 Authorized Officer for preparation of voters list under Rule 5 of the Gujarat
Agricultural Produce Markets Rules, 1965. According to the petitioner, as required under Rule 5 of the Agricultural Produce Markets Rules, 1965,
preliminary voters list included the names of the Members of the Managing Committee of the petitioner Society. However, respondent no.3 objected
to inclusion of their names vide objection dated 02.03.2020. The said objection is annexed to the petition. Pursuant to the objection raised, the
Authorized Officer issued notices to the petitioner - Society for the purpose of production of documents, evidence, written and/or oral arguments and
pursuant to which the petitioner Society submitted written reply to the objections raised by respondent no.3.
[3.2] Respondent no.2 â€" Authorized Officer, after going through the record produced and hearing both the sides, vide order impugned directed the
names of the Members of the Managing Committee of the petitioner - Society to be excluded from the list of voters, which is under challenge in this
petition.
[4.0] Shri B.S. Patel, learned Senior Advocate appearing with Shri Chirag Patel, learned Advocate for the petitioner â€" Society, drawing attention of
the Court to Section 96 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as ‘the Act, 1961’) and Rule
32 of the Gujarat Co-operative Societies Rules, 1965 (hereinafter referred to as ‘the Rules, 1965’) submitted that any dispute touching the
constitution, management or business of Society must be determined as provided under Section 96 of the Act, 1961, that too, by the authority under the
Act, 1961. He has further submitted that even if any Member of the Managing Committee of the petitioner - Society has incurred any default /
disqualification as provided in Sub-Rule (1) of Rule 32 of the Rules, 1965, if a Member does not vacate the office, he shall be removed by the
Registrar as such Member. According to his submission, though the Member of the Managing Committee may have incurred disqualification, unless
and until removed as provided under the Rules, 1965 or there is a decision by the authority empowered to decide the dispute under Section 96 of the
Act, 1961 declaring the validity or otherwise of an election to the Managing Committee, the Committee continues to function, and therefore, the
Authorized Officer is not empowered to adjudicate upon the validity of their election to the Managing Committee.
[4.1] It is further submitted, drawing attention to the order impugned, that the Authorized Officer has adjudicated upon the legality and validity of the
election of Managing Committee of the petitioner - Society, which is beyond the scope and jurisdiction, and therefore, the impugned order is illegal and
is required to be quashed and set aside.
[4.2] He has further submitted, drawing attention to the objection raised with regard to the defaulter Members, that it does not specify how many
Members are defaulters, and therefore, removal of names of all the Members of the Managing Committee from the list of voters is illegal. He has
further submitted that challenge to the election of the Managing Committee or removal of any Member of the petitioner - Society is within the
exclusive domain of the Board of Nominee under Section 96 of the Act, 1961 or the Registrar of Co-operative Societies under Rule, 1965
respectively.
[4.3] At any rate, according to his submission, the Authorized Officer is not empowered to adjudicate upon the constitution of the Managing
Committee or continuance of Committee about its election. Any issue with regard to the election of the Committee or continuance of the Members of
the Managing Committee, unless removed by the competent Court or authority, the Authorized Officer is not empowered to deprive them of their
voting right by excluding their names from the list of voters. It is further submitted that even if any Members of the Managing Committee commits
default in respect of any loan or incurs any disqualification, there is no automatic cessation of Membership of the Managing Committee. According to
his submission, unless and until election of the Managing Committee of the petitioner - Society is declared to be invalid by the Board of Nominee under
Section 96 of the Act, 1961 or any Member is removed as such Member by the Registrar under Sub Rule (1A) of Rule 32 of Rules, 1965, they
continue to be the Members of the Committee, and therefore, is entitled to figure in the list of voters and could not have been removed by the
Authorized Officer.
[4.4] Drawing attention to objection no.3 by which it is claimed that since the Members of the Managing Committee have absented from three
consecutive meeting, their membership comes to an end automatically, however, it is not the correct interpretation. It is submitted that they are not
removed by any competent authority as Members of the Managing Committee, and therefore, there is no cessation of Membership automatically even
on committing default or incurring disqualification unless Registrar removes them as such Member for the said default of disqualification. Referring to
Section 97 of the Act, 1961, it is submitted that the dispute in respect of election of any office bearers of the Society has to be raised within two
months from the date of declaration of result of such election notwithstanding anything contained in Indian Limitation Act, 1963. It is further submitted
that since the Committee has come into existence in General Body Meeting dated 20.06.2017, the objection, if at all it is considered to be under
Section 96 of the Act, 1961, is not filed within the limitation thereof. At the same time, it is submitted that the Authorized Officer is not empowered to
adjudicate any issue with regard to election of the Managing Committee. He has further submitted that the election of the Managing Committee of the
petitioner - Society conducted in the year 2017 is yet not challenged by anyone, and therefore, their names could not have been removed from the list
of voters by the Authorized Officer.
It is further submitted that in the General Body Meeting of the petitioner - Society dated 20.06.2017, Resolution was passed to elect the Members of
the Managing Committee. Referring to the meaning of the word “varni†in Bhagvadromandal (page 88), it is submitted that there is election of this
Managing Committee of the petitioner â€" Society.
[4.5] Drawing attention to the draft amendment and the documents annexed with it, it is submitted that in the case of one Samlayapura Seva Sahakari
Mandali Ltd where similar word “varni†similar such Resolution electing Members of Managing Committee is objected to, very same Authorized
Officer rejected the objections and continued the names of some of the Members of that Committee, and therefore, it is submitted that there is
discrimination invoking Article 14 of the Constitution of India meted out to the petitioner by the same Authorized Officer. It is further submitted that
the authority has to decide with the same yardstick and he is expected to be neutral. According to Shri Patel, learned Senior Advocate for the
petitioner double standard adopted by the Authorized Officer makes the order vulnerable. In short, his submission is that while exercising jurisdiction
under the Gujarat Agriculture Produce Markets Act and Rules, the Authorized Officer cannot decide the validity of the election of the Managing
Committee of the petitioner - Society. At the same time, the Authorized Officer is not empowered to decide on the continuance of the defaulters
Members of the Managing Committee. According to him, for dealing with both the issues, there is a separate Act and provision and if the Managing
Committee is continued and election is not set aside under the said provision of the Act, excluding the names of the Members of the Managing
Committee of the petitioner - Society will amount to exercise of powers under Section 96 of the Act, 1961 and Rule 32 of Rule, 1965 by the
Authorized Officer, which is not permissible.
[4.6] Shri Patel, learned Senior Advocate, relied on the decision of this Court in the case of Pransli Seva Sahakari Mandali Ltd. Vs. State of Gujarat
and Another vide Special Civil Application No.4189 of 2014 dated 10.04.2014 for the proposition that the Authorized Officer has no jurisdiction and /or
authority to enter into the question with respect to legality and validity of the election of the Members of the Managing Committee of the concerned
Co-operative Society. For the same he has relied on paragraph nos.6.3 to 6.5 of the said decision.
[4.7] He has further relied on the decision in the case of Vashkui Dudh Utpadak Sahakari Mandali Limited Vs. District Registrar reported in (2017) 3
GLR 2636 for the proposition that no custodian can be appointed to the Society on the ground that though two seats were required to be kept reserved
for women and in the election of the Managing Committee, no such seats were kept reserved. In short, the said decision was relied on to buttress his
argument that with respect to the election dispute of the Managing Committee of the petitioner - Society, no custodian can be appointed. The
Authorized Officer is not empowered to adjudicate the legality and validity of the election and thereby exclude the names of the Members of the
Managing Committee of the petitioner - Society.
[4.8] Shri Patel, learned Senior Advocate, relied on the decision in the case of Nilamben Mukeshbhai Patel Vs. Vashkui Dudh Utpadak Sahakari
Mandli Limited rendered in Letters Patent Appeal No.16496 of 2016 dated 22.11.2017 and drawing attention of the Court to paragraph 19 again for
the proposition that for any illegality or irregularity in holding the election, the remedy is to get the election set aside by resorting to appropriate
proceedings before appropriate forum. Seeking support of the said decision, it is submitted that the Authorized Officer is not empowered to adjudicate
the election of the Members of the Managing Committee of the petitioner - Society.
[4.9] Shri Patel, learned Senior Advocate for the petitioner - Society, submitted that when the Authorized Officer records that the election of the
petitioner - Society was in breach of the by-law no.34 read with Section 74(1A) of the Act, 1961, the Authorized Officer has adjudicated upon the
validity of the election and it is without any authority of law or jurisdiction, and therefore, the said decision excluding the names of the Members of the
Managing Committee of the petitioner - Society from the list of voters can be challenged by way of writ petition under Article 226 of the Constitution
of India.
[4.10] It is further submitted by him that when the Authorized Officer records in conclusion that the notes on agenda appears to have been created
subsequently and despite the details with regard to the Members present in the General Body Meeting and their signatures obtained in that Meeting is
not produced, it has touched the legality and validity of the election, and therefore, the order impugned is without jurisdiction. It is further submitted that
the findings recorded by the Authorized Officer with regard to admission on the part of the Secretary of the petitioner - Society that the General Body
Meeting dated 20.06.2017 appointed the Members of the Managing Committee and election is not conducted in accordance with the latest law under
Act, 1961 is misconstrued by the Authorized Officer. However, again the said finding has touched the legality and validity of the election of the
petitioner - Society, which is beyond jurisdiction of the Authorized Officer, and therefore, the impugned order is required to be quashed and set aside
permitting the Members of the Managing Committee of the petitioner - Society to be added to the list of the voters and they may be permitted to
exercise their right to vote.
[5.0] Ms. Manisha Lavkumar, learned Government Pleader, submitted that to become voters in the election of Agricultural Produce Market
Committee, the Societies carrying on its operations in the Market area, have to conduct the election in accordance with law. Referring Section 74 of
Act, 1961, it is submitted that the Managing Committee of a Society shall consist of elected Members. Not only that, referring to Sub Clause (ii) of
Sub Section (1A) of Section 74 of the Act, 1961, it is submitted that only the elected Members shall be entitled to be the office bearers of the
Managing Committee of a Society. The main thrust is on the word “electedâ€. According to the submission of Ms. Manisha Lavkumar, learned
Government Pleader, to find place in the list of voters, there must exist elected Managing Committee of a Society. Referring to the impugned order, it
is submitted that the names of the Members of the Managing Committee of the petitioner - Society is not found to be elected Members. The
Authorized Officer is within his right and jurisdiction to remove those names from the list of voters. It is further submitted that since there is no
jurisdictional error committed by the Authorized Officer while pronouncing on the objection raised to the inclusion of the names of the Members of the
Managing Committee of the petitioner - Society, in view of existence of alternative remedy under Rule 28 of the Agriculture Produce Markets Rules,
1965, this petition filed under Article 226 of the Constitution of Indian may not be entertained.
[5.1] For making good the said submission, she has relied on the decision of the full Bench of this Court in the case of Daheda Group Seva Sahakari
Mandli Limited Vs. R.D. Rohit, Authorized Officer & Co-operative Officer (Marketing) vide Special Civil Application No.2489 of 2005 wherein it is
held that though under Article 226 of the Constitution of India a petition is maintainable, despite alternative remedy the said powers are to be exercised
in extraordinary or special circumstances where the order is ultravires or null and void or ex facie without jurisdiction. Relying on the very same
decision, it is submitted that exclusion or inclusion in the name of 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 Election Petition under Rule 28 of the Agriculture
Produce Markets Rules, 1965.
[6.0] Shri Dipen Desai, learned advocate for respondent no.3, submitted that the order passed by the Authorized Officer cannot be said to be without
jurisdiction. He has further submitted that the Authorized Officer has not adjudicated or touched upon the election of the petitioner - Society. The
order is perfectly justified and therefore in view of availability of the alternative remedy, this Court may not exercise extraordinary jurisdiction under
Article 226 of the Constitution of India.
[6.1] Referring to the order impugned, he has submitted that after affording reasonable opportunity to both the sides and verifying the material
produced in support of their claims, without touching upon the election of the Cooperative Society, the Authorized Officer has rendered the decision on
the objections raised by respondent no.3, and therefore, no interference is called for in this petition.
[6.2] Drawing attention of the Court to the affidavit-in-reply filed by respondent no.3 and the documents annexed alongwith it, he has submitted that in
the agenda of General Body Meeting of the petitioner - Society, there are certain interpolations as also from the minutes of the meeting also it can
safely be concluded that the Managing Committee of the petitioner - Society has come to be appointed without any sort of election. Drawing attention
to page 50 as also page 53 of the affidavit- in-reply, it is submitted that the Managing Committee of the petitioner - Society is not elected as provided
under the Act, 1961 and removal of the names of the Managing Committee of the petitioner - Society by the Authorized Officer is in accordance with
Agricultural Produce Markets Rules, 1965, and therefore, no interference is required by this Court, that too, under Article 226 of the Constitution of
India.
[6.3] Shri Dipen Desai, learned advocate for the petitioner, has relied on the decision in the case of Mandropur (Fatehpur) Juth Seva Sahakari Mandali
Limited Vs. State of Gujarat and Another reported in (2017) 2 GLR 1495 for submitting that the issue raised in this petition is squarely covered by the
decision of the reported case.
[6.4] He has submitted that in the said reported case, the arguments, as advanced by the learned advocate for the petitioner, were advanced before
the learned Single Judge and those submissions did not find favour with the Court, more particularly, paragraph 9 of it and submitted that under the
Rules, 1965, the Authorized Officer is empowered to find out basic constituent facts in respect of the Members as to whether they are elected or not
and whether election was held or not in respect of the Society does not amount to adjudication of the election by the Authorized Officer. He has
further submitted that the said decision was also carried in Appeal by way of Letters Patent Appeal vide Letters Patent Appeal No.541 of 2016,
which came to be dismissed and the order of the learned Single Judge in the case of Mandropur (Fatehpur) Juth Seva Sahakari Mandali Limited
(Supra) came to be confirmed by it. He has further submitted that in the said Letters Patent Appeal referring to the decision of the full Bench in the
case of Daheda Group Seva Sahakari Mandli Ltd. (Supra) in no uncertain terms it is stated that exclusion or inclusion of names in the voters list
cannot be termed as extraordinary circumstances warranting interference by High Court under Article 226 of the Constitution of India and relegated
the Society to the alternative remedy under Rule 28 of the Agricultural Produce Markets Rules, 1965.
[7.0] Heard the learned advocates for the appearing parties. According to the election programme declared by respondent no.1 herein the last date for
sending the list of voters was 12.02.2020 by the Co-operative Societies, Market Committees as also Marketing Societies to the Authorized Officer.
After receipt of the same, the preliminary voters list was to be prepared under Rule 7(2) of the Gujarat Agricultural Produce Markets Rule, 1965 by
17.02.2020. The objections to the preliminary list of voters was to be submitted by 2nd of March, 2020. On 02.03.2020, respondent no.3 herein
submitted an objection to the Authorized Officer objecting to the inclusion of the names of the Members of the Managing Committee of the petitioner -
Society. The main plank of objection to the inclusion of names was to the effect that the election of the Managing Committee of the petitioner -
Society was not conducted as prescribed under the Act, 1961 and under its by-laws. It was submitted that in the General Body Meeting, by keeping
their own supporters present, for the next five years they have appointed the Members of the Managing Committee. It was further objected on the
ground that there was no representation of women members as provided under the law. It was submitted that if the election would have been
conducted, the Society may have women Members to contest the same and thus the Committee is not elected as per the Act, 1961 and as per the by-
laws of the Society. It was further the objection that there were so many Committee Members, who did not attend three consecutive meetings of the
Committee, and therefore, automatically they lost their membership to the Committee. It was also objected on the ground that majority of the
Committee Members have failed to repay the loan and they are defaulters, and therefore, in view of Rule 32, they cease to be the Members of the
Committee under Rule 32 of Rule, 1965.
[7.1] After receipt of the objection to the inclusion of names of the Members of the Managing Committee of the petitioner â€" Society, it was issued
notice directing the President /Secretary of the petitioner - Society to remain present for hearing alongwith audit note, Resolution book of Managing
Committee, copy of agenda of Managing Committee and General Body Meeting, documents supporting service of agenda to the Members of the
Managing Committee, documents serving agenda to the Members of General Body, certified copy of by-laws, copy of Members registered and list of
Members and Resolution showing when the present Committee is elected. Pursuant to the notice, written reply was filed by the petitioner â€" Society
on 04.03.2020 denying the assertion made in the objection application by respondent no.3 on all the four counts and submitted that if on all these counts
any one has any grievance, he has to approach the competent authority or Officer under the Act, 1961 and /or Rules, 1965. It was further replied that
none of the Member of the Managing Committee of the petitioner - Society is removed as Member by any competent authority, and therefore, it was
submitted that no such objection to their membership can be raised. The jurisdiction of the Authorized Officer was also objected too on the ground that
under the provisions of the Act, 1961, he is not authorized to take any decision against the Members of the Managing Committee, and therefore, it was
requested to reject the objection raised and continue their names as voters in the list.
[7.2] After giving an opportunity to the parties, considering the relevant material produced and hearing the parties, the Authorized Officer vide order
dated 06.03.2020 ordered to exclude the names of the Members of the Managing Committee of the petitioner â€" Society in each of the petitions for
the reasons stated therein. It is that very order, which is impugned before this Court.
[7.3] Before adverting to deal with the submissions and the facts of the case, it would be advantageous to refer to certain provisions of the Act, 1961
and Rules, 1965 as also Agriculture Produce Markets Act, 1963 and Agriculture Produce Markets Rules,1965.
Gujarat Co-operative Societies Act, 1961
74. Committee, its powers and functions- [(1)] The management of every society shall vest in a committee, constituted in accordance with
this Act, the rules and bye- laws, which shall exercise such powers and perform such duties as may be conferred or imposed on it
respectively by this Act, the rules and the bye-laws :
[Provided that a Committee of a society falling in any of the categories mentioned in sub-section (1) of Section 74-C shall not be so
constituted as to require a certain part or number, of its members to periodically retire by rotation and any bye-law of such society
containing such provision shall with effect on and from the commencement of Section 2 of the Gujarat Co-operative Societies (Amendment)
Act, 1981 (6 of 1981) cease to be in force.]
[(1A)(i) Except as otherwise provided herein, the Managing Committee of a society, which is not an apex society, shall consist of, among
others, such number of elected members not exceeding twenty-one;
(ii) only the elected members shall be entitled to be the office-bearers of the managing committee.]
(1B) (i) There shall be reserved one seat for the Scheduled Castes or the Scheduled Tribes and two seats for Women in the managing
committee of every society consisting of individuals as members and having members from such class or category of persons.
(ii) One seat may be reserved for the persons who are small farmers and marginal farmers.
Explanation.- The expressions ""marginal farmer"" and ""small farmer"" shall have the meanings respectively assigned to them in clauses (g)
and (p) of section 2 of the Gujarat Rural Debtors Relief Act, 1976 (President's Act No. 35 of 1976);
(1C) (i) The term of the elected members of the managing committee and its office bearers shall be five years from the date of election.
Provided that the term of office bearers shall be two and half years from the date of election of managing committee for the urban co-
operative banks and federal societies:
Provided further that the managing committee shall fill up a casual vacancy in the committee by nomination out of the same class or
categories of members in respect of which the casual vacancy has arisen within sixty days from the date of such vacancy, if the remaining
term of office of the managing committee is less than half of its original term:
Provided also that in the case of the urban co-operative banks and the federal societies, the managing committee shall fill up a casual
vacancy within sixty days from the date of such vacancy, failing which the State Government shall have the power to fill up such casual
vacancy out of the same class or categories of members in respect of which the casual vacancy has arise, if the remaining term of office of
the managing committee is less than half of its original term.
(ii) The elected members of the managing committee and its office bearers shall cease to hold the office on the date of expiry of their term.
(iii) Notwithstanding anything contained in clause (i), the office bearers of the urban co-operative banks and federal societies who have
completed two and a half years on the date of the commencement of the Gujarat Co-operative Societies (Amendment) Act, 2015 (Guj.12 of
2015), shall continue to be such office-bearer for the remainder term.
(iv) The office bearers of the managing committee of the urban co-operative banks and federal societies shall be eligible for re-election.
96. Disputes. - (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution,
management or business of a society shall be referred in the prescribed form either by any of the parties to the dispute, or by a federal
society to which the society is affiliated, or by a creditor of the society, to the Registrar, if the parties thereto are from amongst the following
:-
(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or
legal representative of any deceased officer, deceased agent or deceased servant of the society, or the
(2) When any question arises whether for the purposes of sub-section (1) a matter referred to for decision is a dispute or not, the question shall be
considered by the Registrar, whose decision shall be final.
Explanation I. - For the purposes of this sub- section, a dispute shall include-
(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased
member, without such a debt or demand be admitted or not:
(ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect of a loan by a society and recovered from the surety
owing to the default of the principal borrower, whether such a sum or demand be admitted or not:
(iii) a claim by a society for any loss caused to it by a member, past member, or deceased member, by any officer, past officer or deceased officer, by
any agent, past agent or deceased agent, or by any servant, past servant or deceased servant, or by its committee, past or present whether such loss
be admitted or not;
(iv) a refusal or failure by a member, a past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a
society of land or any other asset resumed by it for breach of conditions of the assignment.
97. Limitation. - (1) Notwithstanding anything contained in the Indian Limitation Act, 1908 (IX of 1908), but subject to the specific provisions made in
this Act, the period of limitation in the case of a dispute referred to the Registrar under Section 96 shall-
(a) “when……….;
(b) “when……….;
(c) “when……….;
(d) when the dispute is in respect of an election of any office-bearer of a society, be two months from the date of the declaration of the result of such
election.
Gujarat Co-operative Societies Rules, 1965
32. Qualification for the members of the committee -(1) Every member of a society who is entitled to vote shall be eligible for appointment as a
member of a committee thereof if-
(a) he is not in default in respect of any loan taken by him for such period as is specified in the bye-laws, or
(b) he has not directly or indirectly any interest in any subsisting contract made with the society or in any property sold or purchased by the society or
any other transaction of the society except in any investment made in or any loan taken from the society, or
(c) if he is not otherwise disqualified for appointment as such member or
(d) he is not held responsible under Section 82 or
(e) no order for recovery of cost is made against him by a magistrate under Section 91, or,
(f) no order is made against him under Section 93, or
(g) if he is not found guilty of any of the offences under Section 147 or any offence under Section 403 of the Indian Penal Code in respect of the
property of any society.
(1A) A member of the committee who incurs any of the disqualifications specified in sub-rule (1) shall vacate the office and if he does not vacate
such office, he shall be removed by Registrar as such member:
Provided that the Registrar shall before making such order of removal, give the person concerned an opportunity of being heard.
The Gujarat Agricultural Produce Markets Act, 1963
11. (1) Every market committee shall consist of the following members, namely:-
[(i) eight agriculturists, whose names are enlisted in the voters' list published by the Election Commission of India for such market area,
shall be elected by the members of managing committee of the Primary Agricultural Credit Co-operative Societies dispensing agricultural
credit in the market area;]
(ii) four …....
(iii) two......
The Gujarat Agricultural Produce Market Rules, 1965
5. Different lists of voters:- For the purposes of Section 11, there shall be in respect of a market committee three separate lists of voters in
Gujarat as follows, namely:-
[(1) Under clause (i) of sub-section (1) of Section 11 of the Act, a list of members of managing committees of Co-operative Societies (other
than Co-operative Marketing Societies) dispensing agricultural credit in the market area.]
(2) Under clause (ii) of sub-section (1) of Section 11 of the Act a list of traders holding general licenses in the market area;
(3) Under Clause (iii) of sub-section (1) of Section 11 of the Act, a list of members of managing committees of Cooperative Marketing
Societies situated in the market area [holding general licenses].
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.
7. Preparation of list of voters for general election:-
(1) Whenever a general election to market committee is to be held:-
(i) every Co-operative society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing
committee together with the place of residence of each members:
(ii) the market committee shall communicate the full names of the traders holding general licenses in the market area together with the place of or
residence of each such trader; and
(iii) every Co-operative Marketing Society shall communicate the full names of the members of its managing committee together with the place of
residence of each such member. to the authorized officer before such date as the Director may by order fix in that behalf;
Provided that the date to be so fixed shall not be later than sixty days before the date of general election.
(2) The authorized officer shall within seven days from the date fixed under sub-rule (1) cause to be prepared the lists of voters as required by rule 5
on the basis of the information received under sub-rule (1) and, if necessary, after making such inquiry as he may deem fit.
(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.
8. Provisional and final publication of list of voters:-
(1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorized officer by a affixing a copy thereof at the office of the
market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose
name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of
some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of
the notice, apply to the authorized officer for an amendment of the list of voters.
[(1-A) After receiving applications if any, under sub-rule (1) a revised draft list of voters shall be published by the authorized officer by affixing a copy
thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area,
alongwith a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days
from the date of publication of this notice to the authorized officer for an amendment in the revised draft list of voters.
[7.4] Since the challenge in these petitions is to the list of voters pertaining to agriculturists constituency for the election of Agriculture Produce
Market Committee, Bechraji, District Mehsana, the relevant provisions under Section 11(1)(i) of the Gujarat Agricultural Produce Markets Act, 1963
is quoted hereinabove.
[7.5] In Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965 duty is cast upon every Co-operative Society dispensing agricultural credit in
the market area to communicate full names of the Members of its Managing Committee together with the place of residence of each Member.
[7.6] Though, Rule 7(i)(ii) and (iii) of the Gujarat Agricultural Produce Markets Rules, 1965 is not dealt with as it is not at issue in the present petitions,
nonetheless the fact remains that a duty is cast upon the Co-operative Society, Market Committee and Marketing Society to communicate full names
of the Members of Managing Committee together with place of residence of each such Members of the Committee to the Authorized Officer before
such days as the Director by order fixed in that behalf.
[7.7] Before dealing with the provisions of law as also the precedents cited by the learned advocates for the appearing parties, it would be necessary
to examine the findings recorded by the Authorized Officer on conclusion of hearing. The findings, which are in favour of the petitioner â€" Society
need not be referred at all. However, on reading by-law no.34 of the petitioner â€" Society, it is clear that there would be a Managing Committee of
11 Members, who would be elected by secret ballet as provided under Schedule A and the terms of the Members would be of three years. Citing the
said by-laws, it is concluded by the Authorized Officer that in a General Body Meeting dated 20.06.2017, without holding an election, though it is
provided under the by-law no.34 as also Section 74(1A) of the Act, 1961, appointed the Members of the Managing Committee. Thus, it was concluded
that there was no election held for electing the Members of the Managing Committee in accordance with by-law no.34 and Section 74(1A) of the Act,
1961. The Authorized Officer further concluded that though it is claimed by the Society, the Members of the Managing Committee were elected vide
Resolution No.8 in the General Body Meeting dated 20.06.2017, however, the agenda notes contained only
10 issues whereas Resolution book contains 12 Resolutions. It is further observed that agenda no.8 is interpolated /overwritten to make a show that
the Managing Committee is elected. However, if at all the Members of the Managing Committee is elected, there appears no election of even office
bearers of the Managing Committee and no such Resolution is finding place in the Resolution book of the Managing Committee also. Thus, it is
concluded that the agenda note no.8 appears to have been created subsequently by interpolation and the petitioner - Society has failed to produce the
particulars with regard to the Members, who were present in the General Body Meeting and their signatures evidencing the same, though demanded.
It is next concluded by the Authorized Officer that the Secretary of the petitioner - Society remained present at the time of hearing and admitted that
though according to him 11 Members of Managing Committee is elected on 20.06.2017 in a General Body Meeting but no such procedure of election
as provided under the law is conducted for appointing the Managing Committee.
[7.8] The submission of Shri Patel, learned Senior advocate, the conclusion that there is breach of by-law no.34 and of Section 74(1A) of the Act,
1961, and therefore, the Authorized Officer has adjudicated upon the election of the petitioner â€" Society, which he is not authorized to do the same
not only in view of Section 96 of the Act, 1961 as also the decision of this Court in the case of Pransli Seva Sahakari Mandali Ltd. (Supra), cannot be
accepted. The said submission is made on incorrect reading of findings recorded by the Authorized Officer. There is no finding that the election is in
breach of by-law no.34 or under Section 74 (1A) of the Act, 1961 but in substance it is recorded that without conducting the election at all as provided
in by-law no. 34 and Section 74(1A) of the Act, 1961, the Managing Committee is straightaway appointed. The said finding is also supported by the
documentary evidence produced by the petitioner â€" Society itself to the Authorized Officer. Though the petitioner had not produced any
contemporaneous record to assert that the Members of the Managing Committee are elected as provided under by-laws as also Act, 1961, the
respondent no.3, after obtaining it through RTI, has produced the same at page nos.50 and 51 alongwith affidavit-in-reply. The agenda of the petitioner
â€" Society for a meeting dated 20.06.2017 is seen, which is at page no.50 at Serial No.8. After erasing certain words something is overwritten on it.
Not only that, Resolution No.8, which is at page 53, it is very clearly mentioned in it that there was an appointment of new Committee as on that date
three years term of the said Committee was over. However, if the Resolution is seen in place of earlier Managing Committee Members, the list of
Members shown below it, they have been appointed as Members of the Managing Committee for a period of five years. Thus, it is clear that
according to the petitioner â€" Society itself, the General Body resolved to appoint them as Members of the Managing Committee. The contention of
the learned Senior Advocate for the respective petitioners that the word “varni†means election as also selection according to bhagwadromandal
the abstract of which is produced at Annexure R1 page 88 in the rejoinder affidavit of the petitioner cannot be countenanced for the simple reason
that from their own contemporaneous record it is established that no election electing the Members of the Managing Committee of the petitioner â€
Society is ever conducted and instead of that straightaway they have selected 11 Members to the Managing Committee.
[7.9] The reliance placed on the decision in the case of Pransli Seva Sahakari Mandali Ltd. (Supra) to submit that the Authorized Officer has no
jurisdiction and /or authority to enter into the question with respect to legality and validity of the election of the Members of the Managing Committee
of the petitioner â€" Society is of no help to the petitioner â€" Society as on verification of the documents produced by the petitioner â€" Society, a
conclusion is reached that there was no election held at all. By such conclusion it can never be said that the Authorized Officer has entered into the
question with respect to the legality and validity of the election. There is a huge difference between non- conducting of election at all and the legality
and validity of election. As provided in the Act, 1961, the Managing Committee of a petitioner â€" Society shall consist of elected Members. It further
provides that only the elected Members shall be entitled to be the office bearers of the Managing Committee, and therefore, the Act does not
recognize any Managing Committee, who is not elected at all. Even for constituting Managing Committee uncontested there has to be an election
process undergone. At any rate, the Act, 1961 does not permit selection of Members of Managing Committee at the sweet will of certain persons at
the helms in a democratic set up.
[7.10] Even accepting the contention of the learned Senior Advocate for the petitioner that though the decision in the case of Pransli Seva Sahakari
Mandali Ltd. (Supra) was at the stage of preparation of voters list under Rule 7 of the Gujarat Agricultural Produce Markets Rules, 1965 where
inquiry, though limited, by the Authorized Officer as to the full names, addresses of the Committee Members, the ratio of the judgment does not permit
the Authorized Officer to enter into legality and validity of election and the same would not only be applicable so far as preparation of voters list it may
be at the stage prior to preliminary voters list during provisional list and preparing final list of voters, it is of no help to the petitioner. In the case of
Pransli Seva Sahakari Mandali Ltd. (Supra), the Division Bench of this Court was concerned with the stage prior to publication of preliminary voters
list where the Authorized Officer was entitled to have necessary inquiry in respect of names of Members of Managing Committee and place of their
residence so as to include their names in preliminary list of voters. In that case, the Authorized Officer refused to include the names of Members of
the Managing Committee, that too, at the stage when he was to assess and verify full names of the Members of the Managing Committee and their
place of residence, on the ground that though the petitioner â€" Society was informed not to conduct the election of Managing Committee in view of
Circular dated 22.03.2013 because of pendency of amendment in Act, 1961, and the Society did not hold the election of Members of Managing
Committee as per circular dated 15.07.2013, their names were refused to be included even in the preliminary list of voters. Considering the powers
and authority of the Authorized Officer, at the stage of preparation of preliminary voters list, the Division Bench of this Court in the aforesaid case
held that at the stage of Rule 7, the Authorized Officer was concerned with full names and addresses of the Members of the Managing Committee
and nothing more. The authority to conduct inquiry as per that Rule is said to be limited to that extent only whereas refusal of Authorized Officer to
include those names in preliminary list of voters even before its publication on the ground that though they were informed not to conduct election it
was conducted and again it is not conducted as per Circular dated 15.07.2013. The Division Bench of this Court held that the Authorized Officer has
entered into the issue of legality and validity of the election. In any case, there was no dispute in the said decision that there was no election at all of
the Members of the Managing Committee. Even applying the said yardstick as contended by the learned Senior Advocate for the petitioner that at the
stage Rule 8 of the Gujarat Agricultural Produce Markets Rules, 1965 also Authorized Officer is not supposed to enter into the legality and validity of
the election, in the present case, it has been concluded that no election of the Members of the Managing Committee is held at all. By that conclusion,
he has not questioned the legality and validity of the election but he has recorded that no election at all was conducted as provided under its by-law
no.34 and the provisions made under the Act, 1961. In contrast with limited inquiry under Rule 7 under Rule 8 of the Gujarat Agricultural Produce
Markets Rules 1965, the Authorized Officer is authorized to hear the objections raised with regard to non-inclusion of the names in the list of voters or
wrong inclusion thereof and empowered to decide the said objection.
[7.11] The decision in the case of Mandropur (Fatehpur) Juth Seva Sahakari Mandali Limited (Supra) by the learned Single Judge relied on by Shri
Dipen Desai, learned advocate for respondent no.3 is squarely covering the issue. In that case, the names of the Members of the Managing
Committee, where no election is held and they were not elected Members of the Managing Committee, the Authorized Officer excluded their names
from the list of voters, the said action was held to be finding out the basic constituent facts in respect of Members as to whether they are elected or
not and whether the election was held or not does not amount to adjudication.
[7.12] I am in respectful agreement with the said decision, and therefore, there is no merit in the contention raised by the learned Senior Advocate for
the petitioner that the Authorized Officer has entered into the validity and legality of the election of the petitioner â€" Society. The decision in the case
of Mandropur (Fatehpur) Juth Seva Sahakari Mandali Limited (Supra) of the learned Single Judge is confirmed by the Division Bench of this Court
also.
[7.13] Not only that after ascertaining the facts from the contemporaneous record produced by the petitioner â€" Society, the Authorized Officer has
reached to a conclusion that there is some interpolation in the agenda book as also the Resolution book. Not only that, even the created and /or
interpolated Resolution or agenda reveals factum of Members of Managing Committee of the petitioner â€" Society, who are being appointed
/selected without undertaking any exercise of election to those Members. The law recognizes elected Members of the Managing Committee only, and
therefore, the factum in finding out whether there was any election conducted in respect of Society whose list of Members of Managing Committee is
sent and finding place in a preliminary list of voters cannot be said to be touching upon the constitution of the petitioner â€" Society or that finding
cannot be said to be without any authority of law or jurisdiction, and therefore, a writ petition under Article 226 of the Constitution of India challenging
the order of the Authorized Officer excluding the names of the Members of the Managing Committee of the petitioner â€" Society cannot be
entertained, more particularly, when there is an alternative remedy available to the petitioner.
[8.0] Shri B.S. Patel, learned Senior Advocate for the respective petitioners, has failed to show that the decision of the Authorized Officer is nullity or
ex facie without jurisdiction, and therefore, these petition under Article 226 of the Constitution of India when alternative remedy is available to the
respective petitioners cannot be entertained. Notice is discharged in each of the petitions. Ad-interim relief granted earlier, if any, stands vacated.
