SCA/1280220/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12802 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH HONOURABLE MS. JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = NAVINCHANDRA LALJIBHAI THAKKAR & 2 - Petitioner(s) Versus BHUJ AGRICULTURE PRODUCE MARKET COMMITTEE & 3 - Respondent(s) ========================================= = Appearance : MR KD VASAVADA for Petitioner(s) : 1 - 3. MR TUSHAR MEHTA for MR SHRIKAR H BHATT for Respondent(s) : 1 MR APURVA DAVE, AGP for Respondent(s) : 2, 4. ========================================= = CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and SCA/1280220/2008 2/5 JUDGMENT HONOURABLE MS. JUSTICE H.N.DEVANI Date : 18/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) Rule. Mr. Shrikar H. Bhatt, learned counsel waives service of notice of rule for respondent no.1 and Mr. Apurva Dave, learned Assistant Government Pleader waives service of notice of rule for respondents no.2 and 4. Since we propose to examine the challenge raised in the petition only on legal grounds, it is not necessary to issue notice of rule to respondent no.3. 2. In this petition under Article 226 of the Constitution, the petitioners have prayed for two substantive reliefs with regard to elections to Agriculture Produce Market Committee, Bhuj. As per the election programme declared on 11th September, 2008, the preliminary list of voters was published on 21st September, 2008 and the revised preliminary list of voters was published on 08th October, 2008. The final list of voters was published on 20th October, 2008. In the meantime, the petitioners, claiming to be persons carrying on business within the area of Bhuj A.P.M.C., filed this petition challenging the revised preliminary list of voters insofar as it includes names of 340 voters who were granted traders' licences on 15th September, 2008 on the ground that such licences were granted after declaration of the SCA/1280220/2008 3/5 JUDGMENT elections on 11th September, 2008. The petitioners also prayed that the petitioners' names be included in the list of voters in the traders' constituency because the petitioners had applied for traders' licences and they ought to have been granted such licences. 3. In response to the notice, affidavit-in-reply is filed on behalf of Bhuj A.P.M.C. We do not propose to go into the details of the defense raised by the A.P.M.C. and the justification given for not granting the petitioners the traders' licences because that would involve disputed questions of fact and otherwise also, it is the case of the A.P.M.C. that the petitioners had applied for traders' licences for the second time in the name of another firm though they have already been holding traders' licences in the name of some other firms. In any case, grant of licences to the petitioners after declaration of the elections would otherwise also be hit by the law laid down by this court in Kalubhai Ranabhai Akabari vs. State of Gujarat and Ors. [2007 (3) G.L.H. 57] wherein this Court has held that to be eligible for inclusion in the list of voters for election to the A.P.M.C. in the traders' constituency, a person must have obtained from A.P.M.C., a general licence for trader before the date of declaration of the elections. As per the principle laid down in the said judgment, inclusion of 340 persons in the list of voters for the constituency of traders on the basis of traders' licences granted to them after the date of declaration of elections would equally be hit by the said decision. 4. Mr. Tushar Mehta, learned counsel for the respondent A.P.M.C. submits that although the licences were SCA/1280220/2008 4/5 JUDGMENT granted at the meeting held on 15th September, 2008, the agenda notice for the meeting was issued on 08th September, 2008 and, therefore, the A.P.M.C. did not commit any illegality in issuing the licences and including the names of 340 persons in the list of voters. 5. The contention cannot be accepted because as per the law laid down in the aforesaid decision, what is material is the date of declaration of elections and if licences are granted thereafter, then such persons cannot be included in the list of voters. 6. Mr. Tushar Mehta also submitted that the 340 persons whose names are proposed to be excluded from the list of voters are not parties to this petition. While generally this court would insist that the affected parties be joined as respondents in the petition, in the facts and circumstances of the case, this contention cannot come in the way of appropriate directions being given because the law is already laid down by this court in Kalubhai Ranabhai Akabari vs. State of Gujarat and Ors. (supra) that to be eligible for inclusion in the list of voters for the constituency of traders for elections to A.P.M.C., a person must have obtained from the A.P.M.C., a general licence for trader before the date of declaration of elections. Hence hearing the affected parties would not make any difference to the efficacy of the said legal principle. 7. The petition is accordingly partly allowed. The respondents shall exclude, from the final list of voters, the 340 persons who were granted traders' licences after 11th SCA/1280220/2008 5/5 JUDGMENT September, 2008. The petitioners' claim for inclusion in the list of voters is rejected. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs. Direct Service is permitted. ( Mohit S. Shah, J. ) ( Harsha Devani, J. ) hki