SCA/4940/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4940 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAGANLAL PREMJIBHAI GHONIYA & 1 - Petitioner(s) Versus STATE OF GUJARAT & 8 - Respondent(s) ========================================================= Appearance : MR BHARAT T RAO for Petitioner(s) : 1 - 2. MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL WITH MS. KRINA CALLA, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 4. None for Respondent(s) : 5 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/04/2008 SCA/4940/2008 2/8 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1. On 24.3.2008 when the Notice came to be issued the same was restricted to respondents No.1 to 4 only. In light of the view that the Court is inclined to adopt the petition has been heard finally today as it is not necessary to hear the remaining respondents. 2. Rule. Learned AGP, appearing on behalf of respondents No.1 to 4 is directed to waive service of Rule and the petition is taken up for final hearing and disposal today. 3. The petitioner has filed this petition praying for following reliefs : (A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction deleting the names of members of managing committee of respondent Nos.5 to 9 from the final voters' list (Sr. Nos.512 to 526 – respondent No.5, Sr. Nos.527 to 541 respondent No.6, Sr. Nos. 346 to 360 respondent No.7, Sr. Nos.431 to 445 respondent No.8, Sr. Nos.497 to 511 respondent No.9) published by the Authorised Officer on 14.3.2008 in view of the judgments of this Hon'ble Court reported in 2007 (2) GLH 719 and 2007 (3) GLH 57 SCA/4940/2008 3/8 JUDGMENT and for the reasons stated in the Memo of Petition and in the interest of justice and fairness of things. (B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.1 State of Gujarat to initiate proceedings against respondent No.4 who has illegally exercised the powers conferred upon him in spite of judgment of the Division Bench having been brought to his notice and further direct the Government to take disciplinary proceedings against respondent No.4 for misusing powers conferred upon him under political pressure to set an example in the office of the District Registrar that they are under obligation to exercise powers in accordance with the provisions of Act and Rules. 4. Heard the learned Advocate for the petitioner and the learned Advocate General, appearing on behalf of the respondents – Authorities. 5. The case of the petitioner, in nutshell, is that respondents No.5 to 9 have wrongly been included in the list of voters for the election of Agricultural Produce Market Committee, Gondal despite the fact that the said societies do not fulfill relevant criteria. That the petitioner raised objections before the Authorised Officer but the same was SCA/4940/2008 4/8 JUDGMENT brushed aside vide communication dated 13.3.2008 that another petition bearing Special Civil Application No.4082 of 2008 is sub-judice and hence no decision is required to be taken. 6. On behalf of the respondent – Authority the learned Advocate General has submitted that in so far as respondents No.7 & 8 are concerned their names were already in the preliminary/provisional list published on 11.2.2008 and the objections, if any, were required to be filed on or before 25.2.2008 which the petitioner failed to do. On 1.3.2008 a revised preliminary/provisional list came to be published wherein along with respondents No.7 & 8, respondents No.5, 6 & 9 came to be included in the voters' list against which the petitioner raised objections on 5.3.2008, but the objections were consolidated objections in relation to all the five societies and in fact the petitioner was, as per Rule 8 of the Gujarat Agricultural Produce Market Rules, 1965, entitled to raise objections only in relation to the three newly entered names in the voters' list. That the Authorised Officer has under a mistaken belief as to the legal position failed to deal with the said objections and, therefore, the Authorised Officer is ready and willing to undertake such exercise in terms of the provisions of Rule 8(1A) of the Rules at the earliest, namely, tomorrow. 7. On behalf of the petitioner it was submitted that the petitioner is required to be granted an SCA/4940/2008 5/8 JUDGMENT opportunity of hearing in relation to all the five societies once the objections were raised and not dealt with. 8. The election programme available at Page No.26 provides for preliminary publication of the provisional list in terms of Rule 7(2) of the Rules on 11.2.2008. The objections for amendment to the said list in terms of Rule No. 8(1) of the Rules are to be tendered by 25.2.2008. Admittedly when the preliminary/provisional list came to be published on 11.2.2008 the names of respondents No. 7 & 8 were appearing in the said list as can be seen from the said list which commences from Page No.28 (Annexure 'D'); the name of respondent No.7 appears at Sr. Nos.355 to 365 in the said original list at Page No.35. Similarly in relation to respondent No.8 the name appears at Sr. Nos.492 to 506 of the original list as appearing at Page No.38. In the aforesaid circumstances it is apparent that the petitioner should have raised objections to the inclusion of the names of the members of the two societies i.e. Shri Chhote Sardar Kheti Vishayak Seva Sahakari Mandali Ltd., Movia, and Shri Kishan Seva Sahakari Mandali Ltd., Gondal, by 25.2.2008. Though it was submitted orally that the petitioner had raised such objections by the said date there is no evidence as regards the same available on record. In the circumstances, considering the plain language employed by Rule 8(1A) of the Rules it is apparent that the objections raised on 5.3.2008 are not required to be considered. SCA/4940/2008 6/8 JUDGMENT Under Rule 8(1A) the objections which could be raised are against any new name entered in revised draft list of voters published after the amendment is carried out subsequent to considering the objections to the original list provisionally published in terms of Rule – 7(2) of the Rules and considering the objections invited under Rule – 8(1) of the Rules. In the circumstances the petitioner cannot claim any right to be heard in relation to the insertion of the names of respondents No.7 & 8 which were already appearing in the original list published on 11.2.2008. 9. In so far as remaining three respondents are concerned, namely, respondents No.5, 6 & 9, it is an admitted position that their names do not appear in the preliminary/provisional list published originally and hence when the names of the said respondents appeared for the first time in the revised draft list the petitioner was entitled to raise objections under Rule : 8(1A) of the Rules. The petitioner has in fact raised such objections before the last date and hence the Authorised Officer was bound to deal with the said objections as provided in Rule 8(1A) of the Rules. In the circumstances, the statement made on behalf of the Authorised Officer that the Authorised Officer shall grant hearing on the objections raised on 5.3.2008 in relation to the names of the members of the three societies, namely, (i) Shri Movia Seva Sahakari Mandali Ltd.; (ii) Shri Movia Gopalak Vasahat Sahakari Mandali Ltd., and (iii) Shri Karmar SCA/4940/2008 7/8 JUDGMENT Kotada Juth Seva Sahakari Mandali Ltd., merit acceptance. The Authorised Officer is accordingly directed to convey the date of hearing which should not be later than tomorrow i.e. 12.4.2008. However, this opportunity of hearing shall not disturb the election schedule in any manner whatsoever. 10. At this stage, learned Advocate General makes a statement, under instructions, that the hearing shall take place on 12.4.2008 at 3.00 p.m. in the office of the Authorised Officer at Rajkot and the Authorised Officer shall convey the said date and time to the petitioners/objectors. The learned Advocate for the petitioner is also requested to convey the aforesaid date and time to the petitioners. 11. In the aforesaid set of facts and circumstances of the case and in light of the view that the Court has taken it is not necessary to express any opinion on merits of the objections raised as the same are required to be decided by the Authorised Officer in accordance with law. 12. The petition is accordingly partly allowed to the aforesaid extent. Rule made absolute accordingly to the aforesaid extent. There shall be no order as to costs. (D.A.MEHTA, J.) (Z.K.SAIYED,J.) SCA/4940/2008 8/8 JUDGMENT sas