IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8523 of 1997 with CIVIL APPLICATION No 11340 of 1997 With SPECIAL CIVIL APPLICATION NO. 8534 OF 1997 With CIVIL APPLICATION NO.11394 OF 1997 With SPECIAL CIVIL APPLICATION NO. 8536 OF 1997 For Approval and Signature: Hon'ble MR.JUSTICE S.D.PANDIT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- PRAHLADBHAI SHIVRAM PATEL Versus DIRECTOR AGRICULTURAL MARKETING AND RURAL FINANCE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8523 of 1997 MR KS JHAVERI for Petitioner MR TUSHAR MEHTA for Respondent No. 1 Mr. S.N.Shelat, Addl. A.G. with AGP Mr. B.Y.Mankad, for Respondent No. 2 Mr. K.G.Vakharia with Mr. Tushar Mehta,advocates for Respondent no. 3. Mr. Nagesh Sood for respondent no.4. Mr. B.S.Patel with Ms. R.B.Patel, Ms. Sneha Vaidya and Mr. Dilip Rana, advocate for respondent no. 5. 2. Special Civil Application NO. 8534 of 1997. Mr. S.K.Jhaveri, advocate for the petitioners. Mr. S.N.Shelat, Addl. A.G. with Mr. B.Y.Mankad, AGP for respondent nos. 1, 2 and 3. Mr. K.G.Vakharia with Mr. Tushar Mehta, advocates for respondent no. 3. Mr. Nagesh Sood for respondent no. 4. Mr. B.S.Pate with Ms. R.B.P, Ms. Sneha Vaidya and Mr. Dilip Rana, advocates for respondent no. 5. 3. Special Civil Application No. 8536 of 1997 Mr. S.K.Jhaveri, advocate for the petitioners Mr. S.N.Shelat, Addl. AG with Mr. B.Y.Mankad, AGP for respondent nos. 1,2 and 3. Mr. K.G.Vakharia with Mr. Tushar Mehta, advocates for respondent no. 3. Mr. Nagesh Sood for respondent no. 4. Mr. B.S.Patel with Ms. R.B.Patel, Ms. Sneha Vaidya and Mr. Dilip Rana, advocates for respondent nos. 5 and 6. -------------------------------------------------------------- CORAM : MR.JUSTICE S.D.PANDIT Date of decision: 10/12/97 ORAL COMMON JUDGEMENT Rule. Learned Additional Advocate General waives service of notice of Rule on behalf of respondent nos. 1,2 and 3 in all the petitions. Learned advocate Mr. Tushar Mehta waives service of notice of Rule on behalf of respondent no. 4 in all the petitions. Learned advocate Mr. B.S.Patel waives service of notice of Rule on behalf of respondent nos. 5 and 6 in all the petitions. With the consent of the learned advocates of the parties, these petitions are taken up for final hearing. 2. These three petitions are filed by the petitioners who belong to three different categories of voters as contemplated by Rule 7 of Gujarat Agricultural Produce Market Rules, 1965 (hereinafter referred to as Rules of 1965). With the consent of the parties, all the these petitions are heard together on merits and they are being disposed of by this common judgment as they pertain to the same question of law involved in these petitions. 3. Petitioners in Special Civil Application No. 8523 of 1997 are the traders who are carrying on their business in the market area of Mahesana Agricultural Produce Market Committee. In petition no. 8534 of 1997, the petitioners are societies registered under Co-operative Societies Act and who are functioning and working within the area of respondent no. 4 Mahesana Agricultural Produce Market Committee. As per the provisions of Rule 7 of Rules of 1965, the members of Managing Committee of these co-operative societies are to become voters for the election of the Committee of Mahesana Agricultural Product Market Committee. The petitioners in Special Civil Application NO. 8536 of 1997 are also co-operative Societies and the members of the Managing Committee of these societies who fall in the co-operative market constituencies are entitled to become voters for the election of the respondent no. 4 Mahesana Agricultural Product Market Committee. The respondent no. 1 in all these petitions, namely Director of Agricultural Marketing and Rural Finance issued the programme for holding the election of respondent no. 4 market committee. As per the said programme on 24.10.97, the authorised officer was to publish the list of voters which is known as Preliminary list, at some conspicuous place in the market yard. On 12.11.97, after considering the objections, if any received, as regards the inclusion or non-inclusion of the voters in the list published on 24.10.97, he was to publish the second list as provided by Rule 8(1-A) and after the publication of the said second list on 12th November, 1997, the final list after considering the objections as regards the addition of names which were not in the list of 24.10.97 as contemplated by Rule 8(1-A), the final list was to be published on 24.11.97. The programme published by the respondent no. 1 further shows that on 29.12.97 is the date for filing nomination papers. 30.12.97 was the date for scrutiny of nomination papers and 2.1.1998 is the date for withdrawal of the nomination papers, if any, and the same date is also the date for publishing list of candidates contesting the election. 12.1.98 is the date for casting votes and 13.1.98 is the date for declaration of results of the election. 4. It is the case of all the petitioners in all these three petitions that their names were appearing on the preliminary list published on 24.10.97. Their names also continued to appear in the second list published after complying with the provisions of Rule 8(1) on 12.11.97, but when the final list was published on 24.11.97, their names are not appearing in the final list. It is also further claim of the petitioners in petition no. 8536 of 1997 that names of respondent nos. 5 and 6 were not appearing in the preliminary list published on 24.10.97. They were also not appearing in the list published on 12.11.97 and their names are suddenly appearing in the final list published on 24.11.97. It is the contention of the petitioners that if the provisions of rule 8 as a whole is considered, then the respondent no. 3 "Authorised Officer" had no jurisdiction to include the name of the respondent nos. 5 and 6 in the final list published on 24.11.97 as their names were not appearing in the preliminary list published on 24.10.97 as well as in the list published on 12.11.97. It is the contention of all the petitioners that if the provision of Rule 8 is considered as a whole, then the "Authorised Officer" in all these petitions had no jurisdiction to delete the names of the petitioners in the final list when their names were appearing in the preliminary list published on 24.10.97 as well as in the second list published on 12.11.97. It is their contention that when their names were appearing in the preliminary list published on 24.10.98 and as no objections for their being included in the said voters' list were raised before Authorised Officer, after publication of the said list and when the authorised officer has published their names in the second list published on 12.11.97, he had no jurisdiction to delete their names in the final list published on 24.11.97 in view of the provision of Rule 8 of the said Rules of 1965. It is the case of the petitioners in all these petitions that as the order passed by the respondent no. 4 in deleting their names in the final list is passed without jurisdiction and in violation of mandatory provisions of the "Rules of 1965" and they have come before this Court to get the relief of quashing order of respondent no. 3 of deliting their names, under Article 226 of the Constitution. It is their contention that they have no efficacious remedy as per "Rules of 1965" as well as provisions of Agricultural Produce Market Committee Act to get the relief which they are seeking. 5. It is the contention of the respondents that the matters being pertaining to election, this Court should not intervene with the election programme by exercising discretionary powers under Article 226 of the Constitution because it is the view of the Apex Court as well as this Court that by interfering with the election programme and postponing the election, the Court will be interfering with the statutory activities of the election authorities and that interference of the High Court which would result into postponement or cancellation of the election is not accepted and approved. It is further contended by learned Senior Counsel Mr. Vakharia for the respondent no. 4 in petition no. 8536 of 1996 that the petitioners have not come before this court with clean hands. The petitioners have not given the details of the election programme published by the respondent no. 1 and thus, the petitioners have suppressed the material facts from this Court and therefore, on that count alone, the petitioner is not entitled to get the relief sought for. Mr. Vakharia also further contended and so also by Mr. Shelat, Additional Advocate General that the petitioners have got efficacious remedy as provided by Rule 28 and as also held by the Division Bench of this Court and therefore, the petitiones should not be entertained. 6. I will first deal with the question as to whether the petitions in question could be entertained under Article 226 of the Constitution in view of the facts and material available in these petitions. The respondents have also principly relied on the two decisions of this Court in the case of Mahesana District Co-operative Sales and Purchase Union Ltd. vs. State of Gujarat and others, 1988(2) GLR, 1060 and in the case of Patan Proper Fal and Shak Bhaji Kharid Vechan Sahakari Mandli Ltd. Patan vs. Pali Shak Bhaji and Fal Ful Adi Ugarnaraoni Kharid Vechan Sahakari Mandli Ltd. Mahesana and others, 1986 GLH, 430. In 1986, GLH, 430, Division Bench has considered the earlier decisions of this Court as well as those of Apex Court and has summed up the principles as regards exercising jurisdiction under Article 226 of the Constitution by referring to the summing up by the full Bench of this Court in case of Ahmedabad Cotton Manufacturing Ltd. vs. Union of India and others, 18, GLR, 714. In para 25, the Court has observed as under: "38. The following principles emerge from the various authorities cited above: (1) Though the extraordinary jurisdiction of High Court under Articles 226 and 227 of the Constitution is very wide, the Court should be slow in execising the said jurisdiction where an alternative efficacious remedy under the Act is available. However, if the impugned order is an ultra vires order, or is a nullity as being ex-facie without jurisdiction, the question of exhausting the alternative remedy could hardly arise. (2) It is well recognised on principle and in authority that where a right or liability is created by a statute which gives a special remedy for enforcing it, only the remedy provided by that statute must be availed of. (3) The right to vote or stand as a candidate at the election is not a civil right but it a creature of a statute or a special law and must be subject to limitastions imposed on it. If the legislature entrusts the determination of all matters relating to election to a special Tribunal, and invests it with a new and unknown jurisdiction, that special jurisdiction alone could be invoked for enforcement of that right. (4) In matters of election disputes, the Court should refuse to exercisee jurisdiction under Article 226 of the Constitution of India when the statute conferring right to vote or stand at the election prescribes a statutory remedy embracing the disputes pertaining to all aspects of the entire process of election. (5) Merely because the challenge is to the plurality of returned candidates or for that matter to the entire election, it is fallacious to urge that itcan be only redressed by a writ petition. (6) It is a well recognised principle and a matter of public importance that elections should be concluded as early as possisble according to time schedule and all controversial matters as wellas all disputes arising out of the election should be postponed till after the elections are over so as to avoid an impediment or hindrance inthe election proceedings. In other words, there is a provisional finality in matters pertaining to the various stages of election. (7) The bar of estoppel cananot be pleaded against a person challenging the election merely because he takes part in the said election by standing as a candidate or by exercise of his right of franchise therein especially when the impugned election is patently illegal and void ab initio due to the fact such as it being held pursuant to an ultra vires provision in a statute or the Rules. There is no question of approbation and reprobation in case of a person standing or voting at the election, nor is there any bar of laches if he does not challenge such void election at the initial stage and approaches the Court after the said election is over. (8) Subject to the principle stated immediately hereinabove, if the entire conduct of a petitioner is so eloquent that he can be said to have acquiesced in the act which subsequently he has been complaining as a wrongful act, it may be, one of the factors which the Court exercising jurisdiction under Article 226 of the Constitution in a petition for a writ ofQuo Warranto would bear in mind and maya, in appropriate circumstances, refuse to exercise its extraordinary jurisdiction of granting a writ in the nature of Quo Warranto. (9) The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, is not required to examine the question when the election is challenged on the ground of it being vitiated at its inception due to the fact such as it being held in pursuance of or in accordance with an ultra vires provision of the statute or the Rules, as to whether the election of a returned candidate is masterially affected at such election by operation of the ultra vires provision." Now, if the above principles laid down by the Division Bench of this Court are considered, then it would be quite clear that in the first principle, it has been clearly laid down that though the Court should be slow in exercising jurisdiction under Article 226 and 227 of the Constitution, if the impugned order is ultra vires order or is a nullity as being ex facie without jurisdiction, the question of exhausting alternative remedy could hardly arise. The same view is also expressed by the Division Bench of this Court in the case of Mahesana District Co-operative Sales and Purchase Union Ltd. vs. State of Gujarat, 1988(2) GLR, 1060. Para-7 of the said judgment reads as under: "The Division Bench answerd this cont ention in the negative and consequently refused to arrest the election programme which was already set in motion. It must be remembered that the right to be included in the voters' list is conferred by statute and must, therefore, be exercised under the statute and not de hors the said statute since the petitioners have no right in equity or at common law. The right being a statutory right must be exercised within the framework of the statute and if the stastute provides for an efficacious remedy for the enforcement of the right, the High Court would be justified in refusing to exercise jurisdiction under Article 226 of the Constitution. The Division Bench after referring to a line of decisions of the Supreme Court and the decision of the Full Bench of this Court in Ahmedabad Cotton Manufacturing Ltd. vs. Union of India, 1977 GLR 704, wherein the principles emerging from the various decisions were summed up, observed in para 26 as under: "The Division Bench has recognised it on principle as well as in authority that where a right or a liability is created by a statute which gives a special remedy for enforcing it, only the remedy provided by that statute must be availed of unless the impugned order is ultra vires or is a nullity as being ex facie without jurisdiction, and in matters of election dispute, the Court should refuse to exercise the jurisdi ction under Article 226 of the Constitution when the statute conferring right to vote or stand at the election prescribes a statutory remedy embracing the disputes pertaining to all aspects of the entire process of election." In that view of the scheme of the Act,we are of the opinion that the preparation of electoral roll is an integral part of the process of election. If that is so, the question as to whether the roll should be modified at the instance of persons claiming to be voters list is a matter relating to election, and having regard to the fact that it is a right conferred under the Act for which a special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finality in the matters pertaining to various stages of election and therefore, having regard to the revognised principle in the matter of public importance that election should be concluded as early as possible according to the time schedule and all controversial matters as wel l as disputes arising out of the election including the right to vote or stand as a candidate should be postponed till after the elections are over so as to avoid impediment or hindrance in the election process, does not arise." 7. It must be also stated here to the credit of the learned Additional Advocate General that he has fairly conceded before this Court that if the order in question is ultra vires or is passed in violation of the statutory provisions of law, this Court has got jurisdiction to consider that order by exercising powers under Article 226 of the Constitution. His only submission is that in the situation of the case and partiularly in view of Rule 28 of the said Rules of 1965, and in view of the consistent view taken by the Apex Court in various decisions, which he has cited and to which I will come lateron, this Court should not interfere with the election programme by granting any relief in favour of the present petitioner. But one thing is quite clear that the order which is being challenged before this Court if is found to be an order without jurisdiction or the order in violation of statutory provisions, then this Court has got jurisdiction under Articles 226 and 227 of the Constitution to use its discretionary powers to interfere with the said order. Therefore, it is necessary for me to consider as to whether the order in question could be said to be in violation of the statutory provisions and is also without jurisdiction. 8. Therefore, it is necessary to go to the provisions of various Rules under Gujarat Agricultural Produce Market Rules,1965. Rule 5 of the Gujarat Agricultural Produce Market Rules, 1965 provides for different lists of voters. Rule 7 makes the provisions for preparation of list of voters for general election for the market committee and then the material Rule is Rule 8. The said Rule 8, which provides for the provision and final publication of list of voters, runs as under: "8. Provisional and final publication of lists of voters (1) As soon as a list of voters is prepared under rule 5, it shall be published by the authorised officer by 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 alongwith 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 authorised 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 authorised 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 ofthe 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 authorised officer for an amendment in the revised draft list of voters.) (2) If any application is received under (sub-rule (1-A), the authorised officer shall decide the same and shall cause to beprepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall beprepared at least thirty days before the date fixed for the nomination of candidates for the election. " 9. If the above provision of Rule 8 is considered, then it would be quite clear that as soon as voters' list is prepared under Rule 5, the authorised officer who is appointed for conduction of general election of market committee has to publish the said voters' list by affixing a copy thereof at the office of the market committee and at some conspicuous place in the market yard alongwith the notice stating that if any person whose name is not either entered or who claims that a name is wrongly entered, should file his objection then within 14 days from the date of publication of the notice, the authorised officer has to decide the said objections. Sub-Rule (1) of Rule 8 of the said "Rules of 1965" then further provides that after considering and deciding objections filed under Sub-Rule 1 of Rule 8 as per the said decision, the second list which is known as revised draft list is to be published. But said Rule 8(1A) further makes it quite clear that after publication of the said revised list, a notice is to be issued to raise any objections against new names entered in the list and the said objections must be filed within seven days and thereafter, the authorised officer has to decide the said objections and under Rule 2, he must publish final list 30 days prior to the date fixed for filing nomination papers. Thus, Rule 8 makes it quite clear that when the first preliminary list is published, if any, person has got any objection either on account of appearing of the names of the voters wrongly or on account of non-appearance of the voters, who deserved tobe in the voters' list, then he must file said objections within 14 days from the date of publication of the said preliminary list and then the authorised officer has to decide the said objection and only after that decision, he has to publish the revised list. If the provision of sub-Rule (1) of Rule 8 are carefully read, then it would be quite clear that any objection for inclusion or non-inclusion of voters in the preliminary list published under that sub-rule (1) mustbe taken within 14 days of the said publication. That makes it quite clear thast after 14 days of publication of the said list, no objection either for inclusion or non-inclusion could be taken and entertained by the authorised officer. 10. Sub-Rule (1-A) makes it quite clear that when the revised voters' list is published, the only objection that could be raised is as regrds persons whose names have been added in the list, after deciding objections under sub-rule (1) of Rule 8. This provision is made obviously with a view to see that a