Gujarat High Court
Patel Hardasbhai Danabhai vs State Of Gujarat on 30 June, 2025
NEUTRAL CITATION
C/SCA/7319/2025 JUDGMENT DATED: 30/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7319 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 7341 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 7450 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
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PATEL HARDASBHAI DANABHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HARIN RAVAL SENIOR ADVOCATE WITH MR CP CHAMPANERI(5920)
for the Petitioner(s) No. 1
MR VENUGOPAL PATEL AGP for the Respondent(s) No. 1,2
MR DIPAN DESAI(2481) for the Respondent(s) No. 10,11,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 30/06/2025
COMMON ORAL JUDGMENT
[1] Since all these petitions having more or less identical
facts and law, at the request of learned advocates appearing for the
respective parties, have been taken up analogously. Considering the
urgency, the same are taken up for final hearing and are being
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disposed of by this common judgment and order at the admission
stage.
[2] Issue Rule returnable forthwith. Learned A.G.P. Mr.
Venugopal Patel waives service of notice of Rule on behalf of the
respondents – State authorities.
[3] For the sake of convenience, Special Civil Application
No.7319 of 2025 is treated as the lead matter, therefore, facts are
recording arising from the said petition.
[4] By way of this petition under Article 226 of the
Constitution of India, the petitioner has approached this Court with
the following reliefs:
“10 (A) Be pleased to issue a writ of mandamus or certiorari or
a writ in the nature of certiorari or mandamus or any other
appropriate writ, order or direction and be pleased to quash
and set aside the impugned order dated 08.05.2025 passed by
the respondent no.2 the present petition; Annexure-A to(B) Be pleased to issue a writ of mandamus or certiorari or a
writ in the nature of mandamus or certiorari or any otherPage 2 of 94
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appropriate writ, order or direction and be pleased to declare
the order of the respondent no.2 including the respondent no.3
to 11 societies in the voters list of Agriculturists Constituency of
the elections of A.P.M.C. Thara, ultra-vires to provisions of sec.
11(1)(i) of the act and rule 5,7 and 8 of the rules;
(C) Pending admission and final disposal of the present
petition, be pleased to stay the implementation, operation and
execution of the impugned order dated 08.05.2025 passed by
respondent no.2;
(D) Pending admission and final disposal of the present
petition, be pleased to direct the respondent no.2 to
provisionally exclude the name of members of the managing
committee of the respondent no. 3 to 11 societies from the
Revised Draft voter’s list and subsequently final voters list of
Agriculturists constituency for the elections of Thara APMC.
(E) Be pleased to pass such other and further orders as may be
deemed fit and proper.”
[5] The case of the petitioner can be stated as under:
[5.1] It is the case of the petitioner that the petitioner is an
agriculturist having land and a registered voter at the assembly
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elections, of the market area of market committee Thara. The
petitioner thus possessing all requisite qualification to contest for
the post of member of the Market Committee from the
Agriculturists committee, is aspiring to contest the elections. The
petitioner therefore is very much interested in just, proper, fair and
pure election process of the elections of The Market Committee
Thara. The petitioner is also managing committee member of The
Arbudanagar (Changa) Seva Sahakari Mandali Ltd. The said society
is a voter at the election and therefore the names of the managing
committee of the society is enlisted in the preliminary voters list
published by the respondent no.2 wherein the name of the
petitioner appears at Sr. No. 3394.
[5.2] It is also the case of the petitioner that the election of
the Agriculture Produce Market Committee Thara were to be held
on or before 20th June 2024, as the term of the earlier body was to
expire on that day. Upon expiration of the term the respondent
No.1 was pleased to appoint the Administrator. After appointment
of the Administrator, an Administrative Committee was also
appointed. Upon order issued by this Court in a writ petition filed
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by some of the members of the superseded Committee, the
elections of the market committee is declared.
[5.3] Election of the Market Committee was directed to be
held as expeditiously as possible on or before 21 st March 2025.
Accordingly, the respondent No.1, in exercise of his powers, has
appointed the respondent No.2 as Authorized Officer to conduct
the elections. The respondent No.3 accordingly, in exercise of his
powers, has issued election program and fixed stages of election,
which can be reproduced hereinbelow:
“Agriculture Produce Market Committee- Thara, Taluka- Kankrej,
District- Banaskantha
General Election Programme
Sr. No. Details of Programme Date
(1) (2) (3)
1. Declaration of the election- 40 days prior to the 20/03/2025
date of election as per Rule-10(2)
2. The authorized officer to issue notice to prepare 07/04/2025
electoral roll2(A) Date to submit the electoral roll to the 15/04/2025
authorized officer (Rule-7)
3. Primary publication of the electoral roll, 19/04/2025
within 7 days from the date of seeking the
electoral roll (Rule-7(2))
4. Last date to submit objection / application for 02/05/2025
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correction in the primary electoral roll, within
14 days from primary publication (Rule-8(1))4(A) Re-publishing revised primary electoral roll 08/05/2025
along with the notice to raise objection for the
same, prepared after submission of
corrections- instructions-objections against the
primary electoral roll (Rule-8(1)(A))4(B) Last date to submit corrections/ objections 14/05/2025
against the republished revised primary
electoral roll (Rule-8(1)(A))
5. Final publication of the electoral roll (Rule- 20/05/2025
8(2))
6. Date to submit Nomination papers (Rule- 19/06/2025
10(2))
7. Primary publication of Nomination papers 19/06/2025
(Rule-14)
8. Verification of Nomination papers (Rule-15) 20/06/2025
9. Date to withdraw Nomination papers [Rule- 23/06/2025
17(1)]
10. Final publication of list of candidates [Rule- 23/06/2025
17(2)]
11. Date of election 30/06/2025
12. Date of counting votes 01/07/2025
13. Declaration of Election result (Rule-21) Immediately
after counting
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Date:20/03/2025 Director
Agriculture Marketing and Rural Finance
Place: Gandhinagar Gujarat State Gandhinagar[5.4] As per the case of the petitioner, that with an intent to
create artificial majority in the voters list, powerful political people
having influenced with the State machinery and the District
Cooperative Banks, new Societies got registered and also those
Societies are shown to be dispensing agricultural credit by showing
artificial disbursement from the District Cooperative Banks and
then, to the members of the Sub-societies. It is further case of the
petitioner that such ‘Hawala’ transactions have been mutated only
on the paper to show the so-called agricultural dispensation of such
Society. According to the petitioner, therefore, these Societies are
non-functional and disbursements are shown on paper
disbursement and as such are the ghost Societies. According to the
petitioner, the Societies are aimed to be inserted in the voters list
just to inflate the list on the eve of the election. According to the
petitioner, the Societies were not possessing any of the
qualifications, however, only after knowledge of declaration of
Election Notification, all such Societies have acted with the aid and
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assistance of the competent authority. Thus, the petitioner, having
come to know about such illegalities, filed its objections dated 2 nd
May 2025 before the competent authority against the inclusion of
names of the members of the Managing Committee of the Society.
The sum and substance of the said objections can be culled out as
under:
The Societies have never dispensed agricultural credit
in past as per the three-tier cooperative agricultural
credit dispensation system. The Societies are the ghost
societies and only with a view to get inclusion in the
voters list, by way of ‘Hawala’, credit dispensations
have been shown on the paper.
The number of members of the Managing Committee
of the concerned Societies are not in consonance with
the number of members of the Managing Committee
shown in their bye-laws and therefore, the Managing
Committee is just a paper arrangement and bogus.
Whether the bye-laws of the said Societies are in
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consonance with the model bye-laws prepared by the
State Government or not. The said aspect was also
requested by the petitioner to inquire into.
The members of the Managing Committee appointed
by way of Resolution and not by the Election and
thereby, the said Managing Committee cannot be said
to be legal and the members thereof cannot be included
in the voters list. As per the Cooperative Societies Act,
every Managing Committee have to mandatorily follow
reservation criteria, whereas, in the said Society, no
criteria has been followed, thus, the said committee is
not legal in terms and thereby, the same cannot be
added in the voters list.
[5.5] The Authorized Officer, thereafter, vide its order dated
8th May 2025, passed an order in rejecting the objections filed by
the petitioner and confirming the inclusion of the names of the
members of the Managing Committee of the Society.
[6] Being aggrieved and dissatisfied with the aforesaid, the
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petitioner has approached this Court with the reliefs as stated
hereinabove.
[7] I have heard learned Senior Advocate Mr. Harin Raval
assisted by learned advocate Mr. C. P. Champaneri for the
petitioner, learned advocate Mr. Dipan Desai for the respondents –
Societies and learned A.G.P. Mr. Venugopal Patel for the
respondents – State authorities.
[8] Learned Senior Advocate Mr. Harin Raval, while
assailing the impugned order, has made the following submissions:
[8.1] Learned Senior Advocate Mr. Raval for the petitioner,
at the outset, submitted that the impugned order dated 8th May
2025 is not tenable in the eye of law as the same being dehors the
provisions of Section 11(1)(i) of the Act and Rules 7 and 8.
[8.2] Learned Senior Advocate Mr. Raval submitted that the
impugned order suffers from the vices of the principles of natural
justice. Mr. Raval submitted that while passing the impugned order,
the lawyer of the petitioner who was present in the office of the
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respondent – authority, with his objections, was not heard. Mr.
Raval submitted that though the lawyer of the petitioner was
present on the date of hearing, he was not called upon to make his
submissions pursuant to the objections so raised. According to Mr.
Raval, therefore, the impugned order is against the settled
principles of natural justice and thereby, deserves to be quashed
and set aside.
[8.3] Learned Senior Advocate Mr. Raval, relying upon the
provisions of Section 11(1)(i) of the Act, submitted that the
Societies those are included in the voters list actually are not
dispensing agricultural credit following three-tier system. Mr. Raval
vehemently submitted that out of total 32 Societies, many Societies
have not transacted in dispensation of agricultural credit in past,
but only on the eve of election, the Societies, in connivance with
the Bank authorities, have got disbursed the agricultural credit by
only with a view to acquire the qualification for inclusion of names
in the voters list. Mr. Raval, relying upon the provisions of Section
11(1)(i) of the Act, submitted that dispensation of agricultural
credit in a market area is the sole qualification for inclusion of
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name in the voters list. According to Mr. Raval, thereby, the Society
has to have past transactions record showing actual dispensation of
agricultural credit. According to Mr. Raval, dispensation of
agricultural credit, is a retroactivity and shall not be meant for
singular transaction, that too at the eve of election. Mr. Raval,
therefore, submitted that inclusion of those Societies, who
disbursed the agricultural credit not in the past, but only in the eve
of election, cannot be said to be qualified and thereby, the same
deserves to be excluded by quashing and setting aside the
impugned order.
[8.4] Learned Senior Advocate Mr. Raval further submitted
that as per Section 11(1)(i) of the Act, the element of dispensation
of agricultural credit by the Cooperative Society is mandatory and
thereby, the Societies, those are dispensing agricultural credit in
the market area, shall have to follow three-tier system for
dispensation of agricultural credit. According to Mr. Raval,
dispensation of agricultural credit from the private fund of the
Society cannot be said to be actual dispensation of agricultural
credit. According to Mr. Raval, as per the cooperative structure, it is
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the most preferred and safest way to adopt three-tier system for
dispensation of agricultural credit. Mr. Raval, accordingly,
submitted that out of total 32 Societies, many Societies have
dispensed the agricultural credit from its private fund and thereby,
the same cannot be said to be qualified in view of Section 11(1)(i)
of the A.P.M.C. Act. Mr. Raval, therefore, submitted that the said
Societies are thereby not qualified to be included in the voters list
as not being qualified, thus, deserves to be excluded by quashing
and setting aside the impugned order.
[8.5] Mr. Raval next submitted that all the Societies became
proactive only after the knowledge of the election and thereby, any
proactive steps taken at the eve of election for the purpose of
inclusion of its name in the voters list are nothing, but an attempt
to hamper and / or tamper the democratic system in the matter of
election of the A.P.M.C. According to Mr. Raval, therefore, any
exaggeration and / or overstepping for the purpose of inclusion of
name in the voters list in the eve of election deserves to be
interfered by this Court under Article 226 of the Constitution of
India under its extraordinary jurisdiction treating the same being
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special and / or extraordinary circumstances.
[9] By making above submissions, learned Senior Advocate
Mr. Raval for the petitioner requested this Court to quash and set
aside the impugned order by directing the exclusion of name of the
Society.
[10] Per contra, learned advocate Mr. Dipan Desai for the
respondents – Societies, while supporting the impugned order, has
made the following submissions:
[10.1] Learned advocate Mr. Desai for the respondents
vehemently submitted that the present petition under Article 226 of
the Constitution of India, having complex disputed questions of
facts with regard to fraud and ‘Hawala’, may not be entertained by
this Court as the same deserves leading of evidence. Mr. Desai
further submitted that Rule 28 is the alternative efficacious
statutory remedy available to the petitioner and the same can be
availed by the petitioner once the election is concluded. Mr. Desai,
therefore, requested this Court to dismiss the present petition on
the ground of availability of alternative efficacious statutory
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remedy by way of Election Petition under Rule 28.
[10.2] Learned advocate Mr. Desai for the respondents
submitted that the Authorized Officer, after having scrutinized the
basic details of the respondents – Societies, included their names in
the voters list. Mr. Desai further submitted that even in the
impugned order, the findings recorded by the Authorized Officer
that the respondents – Societies are qualifying as per the provisions
of Section 11(1)(i) of the Act considering the fact that the Societies
are actually dispensing agricultural credit by private fund as well as
three-tier system. The Authorized Officer further held that the
members of the Managing Committee are as per the bye-laws and
also found that there is no ‘Hawala’ involved. According to Mr.
Desai, the order passed by the Authorized Officer is perfectly
justified and based on the inquiry undertaken and documents on
record. Thus, Mr. Desai submitted that the impugned order passed
by the Authorized Officer may not be interfered by this Court under
Article 226 of the Constitution of India.
[10.3] Learned advocate Mr. Desai for the respondents
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next submitted, relying upon Section 11(1)(i) of the A.P.M.C. Act
that the only criteria to become qualified for inclusion of name in
the voters list is that the Primary Agriculture Cooperative Credit
Societies should be dispensing agricultural credit in the market
area. Mr. Desai vehemently submitted that in the said provisions,
the legislature has not provided any qualifying criteria with regard
to “dispensing agricultural credit”. Mr. Desai further submitted that
by way of amendment, the legislature has amended the provisions
of Section 11(1)(ii) and (iii) of the A.P.M.C. Act with regard to
qualifying criteria for the traders’ constituency and cooperative
market societies by adding certain criteria to become qualified for
inclusion of name in the voters list. However, the legislature has
not amended any criteria with regard to provisions of Section 11(1)
(i). According to Mr. Desai, therefore, dispensation of agricultural
credit, thereby, cannot be meant to be only if it is done by
following three-tier system. Mr. Desai submitted that if the bye-
laws of the Society permit other mode of dispensation for example
by way of private fund, the said activity also falls within the ambit
of “dispensing agricultural credit”. Mr. Desai, therefore, submitted
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that if the contention of the petitioner is accepted with regard to
agricultural credit dispensation activity should be retroactive and
through three-tier system, then it would be amounting to rewriting
of legislation, which cannot be permitted under Article 226 of the
Constitution of India. Accordingly, Mr. Desai submitted that the
impugned order passed by the Authorized Officer holding the
respondents – Societies that compliance of qualifying, the words
“dispensing agricultural credit” are justified and thereby, the
impugned order does not require to be interfered by this Court
under Article 226 of the Constitution of India.
[10.4] Learned advocate Mr. Desai submitted that
present petition is filed with a bald allegation that the District
Cooperative Banks were influenced by the local politician with a
view to see that agricultural credit be disbursed by the Societies
without joining the Banks and / or any other party in the present
petition. Mr. Desai further submitted that dispensing agricultural
credit and becoming qualified to be a voter in the eve of election is
nothing, but an attempt to make a show that the election is sought
to be hampered. Mr. Desai submitted that it is not the case that
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outgoing Managing Committee, with a view to inflate the votes, in
the eve of election, has attempted to include the Societies as voters.
Admittedly, since one year, there is no Managing Committee and
the Society was managed by the Administrator and therefore, it
cannot be said that any outgoing Managing Committee has misused
their powers in the eve of election and accordingly, the same
cannot be said to be special and / or extraordinary circumstances
and thus, the same does not call for any interference by this Court
under Article 226 of the Constitution of India.
[10.5] Learned advocate Mr. Desai further pointed out
that an independent agency like the District Cooperative Bank has
issued loans to the members of the Societies and thereby, it cannot
be said that the same was not within the domain of the outgoing
Managing Body, who has attempted to inflate the voters list.
[11] By making above submissions, learned advocate Mr.
Desai for the respondents requested this Court to dismiss the
present petition.
[12] Learned A.G.P. Mr. Venugopal Patel for the respondents
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– State authorities, while supporting the impugned order, has made
the following submissions:
[12.1] While adopting all the submissions made by the
learned advocate for the respondents – Societies, learned A.G.P.
Mr. Venugopal Patel submitted that under the provisions of Rules,
it was within the power of the Authorized Officer to hold an inquiry
with regard to verifying the details of the voters those are sought to
be included in the voters list. In view of such power, the Authorized
Officer has held necessary inquiry as deemed fit by it and found
that the respondents – Societies are qualified to be included in the
voters list and thereby, the impugned order passed, after holding
such inquiry, cannot be faulted with.
[12.2] Learned A.G.P. Mr. Venugopal further submitted
that by way of impugned order, objections raised by the petitioner
are dealt with by specific reasons and therefore, the impugned
order cannot be said to be illegal and / or suffering from vices of no
reason. Mr. Venugopal further submitted that while passing the
impugned order, the Authorized Officer has strictly followed the
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principles of natural justice. He further submitted relying upon the
Rojkam that the authorized lawyer of the objector – the petitioner
herein has also put up his signature and thereby, at this stage, it
cannot be said that the impugned order passed without hearing the
objector – petitioner. According to Mr. Venugopal, the allegation
leveled against the officer is that the lawyer was never called up to
make any submission towards the objections, was absolutely
incorrect and is nothing, but a bald allegation with a view to win
the sympathy of the Court and to establish that the authority has
acted highhandedly. Mr. Venugopal submitted that the signature on
the Rojkam is not disputed by the petitioner and thus, in the
present proceeding under Article 226 of the Constitution of India,
this Court may not entertain the present petition on such highly
disputed questions of facts. According to Mr. Venugopal, even
otherwise, the petitioner has an alternative efficacious statutory
remedy before the Election Tribunal, as envisaged under Rule 28,
by which it will be open for the petitioner to raise all the
contentions. Mr. Venugopal, therefore, requested this Court not to
entertain the present petition being involved highly disputed
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questions of facts.
[13] By making above submissions, learned A.G.P. Mr.
Venugopal Patel for the respondents – State authorities requested
this Court to dismiss the present petition.
[14] At the time of hearing of the present petitions, various
decisions concerning the issue with regard to election came to be
relied upon by all the parties and the same are hereby stated as
under:
(i) Bhesavahi Group Vividh Karyakari Seva Sahakari
Mandali Limited vs. State of Gujarat reported in
2017(0) AIR(CC) 117;
(ii) Bhesavahi Group Vividh Karyakari Seva Sahakari
Mandali Limited vs. State of Gujarat reported in
2017(2) GLR 902;
(iii) Chandrakant Manibhai Patel vs. State of Gujarat
reported in [2013(3) GLH 778];
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(iv) Dolat Prabhubhai Dumaniya vs. Director –
Agricultural Marketing and Rural Finance reported in
2013(2) GLH 157;
(v) Chanchpur Arthsam Seva Sahakari Mandali Limited
vs. State of Gujarat reported in 2023(4) GLR 2597;
(vi) Kankapura Seva Sahakari Mandali Limited vs. State
of Gujarat [R/Special Civil Application No.17579 of
2024 and allied petitions decided on 31st January
2025];
(vii) Kalubhai Ishrabhai Patel vs. State of Gujarat
reported in 2016(2) GLR 1147;
(viii) Narendrasinh Rupsinh Chauhan vs. State of Gujarat
reported in 2021(0) GUJHC 33729;
(ix) Daheda Group Seva Sahakari Mandli Limited vs. R.
D. Rohit, Authorized Officer and Cooperative Officer
(Marketing) reported in 2006 (1) GCD 211;
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(x) Juna Jampura Kala Kapas Utpadak Ane Rupantar
Sahakari Mandali Ltd. vs. State of Gujarat [R/Special
Civil Application No.6685 of 2025 and allied petitions
decided on 20th June 2025].
[15] I have heard learned advocates appearing for the
respective parties at length and have gone through the material
produced on record. No other and further submissions have been
canvassed by the learned advocates appearing for the respective
parties, except what are stated hereinabove.
[16] Having heard the learned advocates appearing for the
respective parties and having gone through the material produced
on record, the following questions those falls for consideration of
this Court are:
(i) Whether the words used “dispensing agricultural credit
in the market area” in Section 11(1)(i) of the A.P.M.C.
Act can be construed to mean that such dispensation of
agricultural credit shall be retroactive in nature and
shall have to be by following three-tier cooperative
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structure only and not by private fund?
(ii) Whether, in the facts of the present case, Societies, who
dispensed agricultural credit for the first time, near the
date of declaration of election, can be said to be
disqualified in view of the provisions of Section 11(1)
(i) of the A.P.M.C. Act, because in the past, no
dispensation of agricultural credit was made by the
Societies?
(iii) Whether, in the facts of the present case, inclusion of
name in the voters list can be said to be an attempt to
inflate the voters list and thus, falls within the category
of special and / or extraordinary circumstances, which
calls for any interference by this Court under Article
226 of the Constitution of India, instead of relegating
the petitioner to avail the alternative efficacious
statutory remedy under Rule 28?
[17] So as to decide the aforesaid questions, it would be at
profit to take note of various authorities cited by the learned
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advocates appearing for the respective parties so as to have clarity
with regard to settled proposition of law.
[18] The Coordinate Bench of this Court, in the case of
Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali
Limited vs. State of Gujarat reported in 2017(0) AIR(CC) 117,
observed thus as under:
“22. The main thrust of the arguments made by the learned Sr.
Counsel Mr.Joshi is that the Authorized Officer had travelled
beyond the scope of inquiry as contemplated in Rule 8 and had
not implemented the directions of the order dated 9.12.2015
passed by this Court in the true letter and spirit, inasmuch as
the impugned orders though passed separately, contained the
same reasons for deleting the names of the members of the
Managing Committees of the petitioner Societies. In the opinion
of the Court, though the said submissions apparently sound
impressive, have hardly any substance in view of the recent
amendment made in Section 11(1)(i) of the APMC Act. It
transpires from the impugned orders passed by the respondent
No.4 that the first and foremost objection raised by the
respondent No.5 before the respondent No.4 was that none of
the petitioner Societies were the Primary Agricultural Credit
Cooperative Societies within the meaning of the amended
Section 11(1)(i) of the APMC Act and had not followed the
procedure and norms of three-tier Cooperative Credit Structure
while dispensing agricultural credits. Now, as per the said
amendment, which has come into force w.e.f. 10.4.2015, the
words “Cooperative Societies (other than Cooperative Marketing
Societies and Milk Produce Cooperative Societies)” have been
substituted by the words the “Primary Agricultural Credit
Cooperative Societies” in Clause (i) of Sub-section (1) of SectionPage 25 of 94
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11. Hence, when the fresh election programme was declared by
the respondent No.2 Director, the said amendment had already
come into force, which required that the eight members from
agriculturists constituency of the said Committee shall be elected
by the members of the Managing Committee of the Primary
Agricultural Credit Cooperative Societies, dispensing
agricultural credit in the market area. Therefore, for the
purposes of Section 11(1)(i), the Societies have to be Primary
Agricultural Credit Cooperative Societies. Of course, the term
‘Primary Agricultural Credit Cooperative Societies’ has not been
defined either under the APMC Act or under the Gujarat
Cooperative Societies Act. However, it appears that by the
Amendment Act 1 of 2008, which came into force w.e.f.
8.10.2007, certain provisions of the Gujarat Cooperative
Societies Act were amended, and the provisions with regard to
the Cooperative Credit Structure were incorporated therein. The
Cooperative Credit Structure is defined in Section 2(7-A) of the
said Societies Act as under:-
“Section 2(7A). “Cooperative Credit Structure”
means
(i) the Primary Agricultural Credit Cooperative
Societies;
(ii) the Central Cooperative Banks; and
(iii) the State Cooperative Bank;”
23. The said Societies Act was also amended by incorporating
certain provisions for the Societies, which fall under the
Cooperative Credit Structure, more particularly in respect of
borrowings, investments, loans, etc. It is not disputed that the
petitioner Societies being cooperative societies registered under
the Gujarat Cooperative Societies Act, are governed by the
provisions of the said Societies Act and the Rules made
thereunder. A bird’s eye-view of the provisions of the said
Societies Act would reveal that Section 6 of the said Act laysPage 26 of 94
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down conditions of registration, and Sub-section (1-A) thereof
provides that in case of the society in cooperative credit
structure registered under Sub-section (1), the society shall have
power to decide their respective area of operation without any
restrictions. Section 12 of the said Act states that the Registrar
may classify all the Societies in such manner, and into such
classes as he thinks fit; and the classification of a society under
any head of classification by the Registrar shall be final. Section
44A lays down the powers of the committee of the Society in the
cooperative credit structure. Section 45(3) puts restrictions on
the eligibility of persons to borrow from or make deposit in a
Primary Agricultural Credit Cooperative Societies. Certain
privileges and exemptions have also been granted to the Primary
Agricultural Credit Cooperative Societies falling in Cooperative
Credit Structure, as contained in Chapters VI and VII pertaining
to the property, funds and management of Societies.
24. Now, coming back to the provisions contained in Section
11(1)(i) of the APMC Act, it appears that after the amendment
in the said provision, the eligibility criteria of Cooperative
Societies to participate in the election of Agriculturist
Constituency has been confined to the Primary Agricultural
Credit Cooperative Societies only. Therefore, it was incumbent
on the part of the petitioner Societies to fall within the category
of Primary Agricultural Credit Cooperative Societies dispensing
agricultural credit, for being eligible to vote in the election of
members for the agriculturist constituency of the Market
Committee. The objector i.e. respondent No.5 had categorically
raised the objections against all the petitioner Societies that they
were not the Primary Agricultural Credit Cooperative Societies,
dispensing agricultural credit as per the amended provisions of
Section 11(1)(i) of the APMC Act and that the credit
transactions shown in the books of accounts were not genuine
and not as per the three-tier Cooperative Credit Structure.
Though the petitioner Societies had submitted their respective
replies giving details of the agricultural credit dispensed by
them, they had significantly remained silent as to whether they
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Cooperative Societies within the Cooperative Credit Structure
under the Gujarat Cooperative Societies Act or not. No such
averments have been made by the petitioners in the present
petitions also.
* * *
27. Be that as it may, though the Court finds that the impugned
orders could have been passed in a better manner by the
respondent No.4 dealing with the material produced by the
petitioner Societies individually, the Court is not inclined to
interfere with the same as all the petitioners had failed to satisfy
the respondent No.4 that they were the Primary Agricultural
Credit Cooperative Societies and had followed the requirements
of the three-tier Cooperative Credit Structure while dispensing
agricultural credit. The submission of the learned Advocates for
the petitioners that the petitioners were not required to follow
the provisions contained in the Gujarat Cooperative Societies
Act pertaining to the Cooperative Credit Structure, has no legs
to stand. As discussed herein above, the Societies falling under
the Cooperative Credit Structure as defined under Section 2(7-
A) of the Gujarat Cooperative Societies Act, enjoy certain
privileges and exemptions under the said Act, and at the same
time they have been put to certain restrictions also in the matter
of investments, borrowings and loans. If, according to the
petitioners, they were the Primary Agricultural Credit
Cooperative Societies, falling in Cooperative Credit Structure,
they had to follow the provisions of the Gujarat Cooperative
Societies Act, Rules and Bye-laws applicable to them.”
[18.1] In the aforesaid case, the facts were that the
petitioner – Society has challenged the order of the Authorized
Officer deleting the names of the members of the Managing
Committee from the voters list of the agriculturists constituency
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mainly on the ground that the Authorized Officer acted beyond his
power and jurisdiction as he could not have inquire into the legality
or genuineness of the loan transactions entered into by the
petitioner – Society with the members holding, inter alia, that those
Societies were not dispensing agricultural credit. In the said case,
the main argument of the petitioner was that the Authorized
Officer, under Rule 8, has a very limited scope of inquiry while
deciding the objections and in such limited inquiry, genuineness of
loan cannot be gone into. The Coordinate Bench of this Court, after
considering the decision of the Full Bench in the case of Daheda
Group Seva Sahakari Mandli Limited vs. R. D. Rohit, Authorized
Officer and Cooperative Officer (Marketing) (2006 GCD-1-21)
(Civil Application No.2489 of 2005 and another dated 27 th April
2005), not accepted the said contention about limited power of
inquiry. Further, considering Section 11(1)(i) of the A.P.M.C. Act,
the Coordinate Bench observed that the eligibility criteria of
Cooperative Societies to participate in the election of Agriculturist
Constituency has been confined to the Primary Agriculture Credit
Cooperative Societies only and therefore, it was incumbent on the
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part of the petitioner – Society to fall within the category of
Primary Agriculture Credit Cooperative Societies dispensing
agricultural credit to its members in the Market Committee area.
Importantly, the Coordinate Bench has clarified that to participate
in the Election of the Agriculturists Constituency, Society has to be
within the category of “Primary Agriculture Credit Cooperative
Societies”.
[18.2] In the present case, undisputably, the respondents
– Societies are Primary Agriculture Credit Cooperative Societies and
thereby, in conformity with the provisions of Section 2(7-A) of the
of the Gujarat Cooperative Societies Act, 1961.
[18.3] The aforesaid decision has been confirmed by the
Division Bench of this Court in the case of Bhesavahi Group
Vividh Karyakari Seva Sahakari Mandali Limited vs. State of
Gujarat reported in 2017(2) GLR 902. While upholding the
decision of the learned Single, the Division Bench has held thus as
under:
“11. From reading of the provision under Section 11 (1)(i) of
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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 authorized 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 authorized 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 authorized 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
authorized 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 authorized officer having regard to
the facts of each case. Such order which is passed by consideringPage 31 of 94
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the material placed before the authorized 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 vs. 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.”
* * *
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
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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.”
[18.4] The Division Bench of this Court, in the aforesaid
decision, made it clear that as per Section 11(1)(i) of the A.P.M.C.
Act, only members of the Managing Committee of Primary
Agriculture Credit Cooperative Societies dispensing agricultural
credit in the market area alone are eligible for inclusion for holding
elections to the agriculturist constituency of the market committee.
[19] In the case of Chandrakant Manibhai Patel vs. State
of Gujarat reported in [2013(3) GLH 778], the facts were that the
licenses were granted to the petitioners therein on 1st May 2013,
whereas the election published by the Director in exercise of power
under Rule 4 of the Rules on 3rd May 2013 and hence, just two days
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prior to the publication of various stage of election, office bearers of
the Market Committee granted new licenses for the first time to
about 1343 persons as against the renewal of licenses of 315
persons. The peculiar fact in the said case was that on the eve of
the election, just two days prior to the publication of the election,
the voters list sought to be inflated by issuing fresh licenses by the
outgoing Body and in that context, the Division Bench of this Court
in the said case has held thus as under:
“12. Before we examine the contention, we may refer to certain
legal position. This Court, in the case of Dolatbhai Prabhubhai
Dumaniya Vs. Director, Agriculture Marketing and Rural
Finance, decided on 13.3.2013, reported in 2013 (0) GLHEL-
HC, 229249, had an occasion to consider the maintenance of
sanctity of the election and the maintenance of the principles for
free and fair election. It was observed by the Court at
paragraphs 13 to 17 as under:-
13. The aforesaid shows that as per the above referred
conclusion of the Division Bench of this Court in the case
of Kalubhai Ranabhai Akabari (supra), to be eligible for
inclusion of the name in the voters’ list for elections to
Agricultural Produce Market Committees, if a society, it
should have obtained the registration on the date of
declaration of the election. If a person holding general
licence for traders, he must have licence on the date of
declaration of the election and if a co-operative marketing
society, the society should have obtained registration and
should have obtained general licence of the market
committee on the date of declaration of the election.
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14. Therefore, we will have to examine as to which will be
the date to be treated as the declaration of the election
and incidentally the question also will have to be
examined about the sanctity to be maintained of the
election so as to uphold the democratic principles in a free
and fair manner.
15. Learned counsel appearing for the petitioners did
contend that once a declaration is made by the Director
by fixation of various dates of election and he has passed
an order under Rule 4 of the Rules for such purpose, such
will be the date to be termed as the declaration of the
elections. Whereas the learned counsel appearing for the
respondents contended that the correct date will be the
date for beginning of various stages under Rule 10(1),
which in the present case is 21.01.2013 and it cannot be
said to have commenced from 09.01.2013 when the
Director exercised powers under Rule 4 for fixation of
various stages of the election.
16. As observed in the case of Patan Proper Fal and Shak
Bhaji Kharid Vechan Sahakari Mandli Ltd. (supra), the
process of election can be said to have commenced from
the date on which the Director has exercised powers under
Rule 4 of the Rules and all stages of elections are so
conjoint with the manner and mode of holding of the
election, it is not possible for us to find that the process of
election cannot be said to have commenced after exercise
of powers under Rule 4 of the Rules. There are three
reasons for which we are inclined to take the aforesaid
view. The first is that Part III of the Rules under the Head
Election of Market Committee begins with Rule 4
providing for the power with Director to pass the order in
writing for fixation of the dates of the election and for
publication of such order passed by him by affixing the
copy in market committee as well as at the conspicuous
place in the principal market yard. Therefore, it appears
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that the intention of the legislature to begin with the
process of commencement of election is from the stage of
Rule 4. The second reason is that all stages, including that
of Rules 7 and 10, would be only after the power is
exercised under Rule 4 by the Director. Therefore, in
absence of any exercise of powers under Rule 4, it cannot
be said that the process of election has commenced or that
the subsequent stages of the elections, including that of
Rules 7 and 10 would accrue. The third reason is that
when the Court is to interpret any provisions of statute, it
would make a purposive interpretation so as to maintain
the sanctity of election. If the interpretation is made that
the process of election has not commenced after exercise of
powers by the Director under Rule 4, such would leave
room for a large number of manipulations to be made at
the ensuing election of any market committee. After the
declaration of the election programme by exercise of
powers by the Director under Rule 4, one can easily tinker
with the sanctity of election. e.g. In the case of the
Agriculturists’ Constituency where the co-operative
societies dispensing agricultural credit and their
representatives are the voters, new societies can be formed
so as to create an artificial majority or minority as may
be convenient to the ruling party. If certain societies are
created and the show is made as that of functioning by
such societies by dispensing agricultural credit, those
societies would get themselves included in the voters’ list
and consequently, a situation may be created which
would materially affect the representation to be made
from such voters’ constituency of agriculturists. Similarly,
even in the case of Traders’ Constituency, if after
publication of the election programme by exercise of
powers by the Director under Rule 4, new licences may be
issued by the members of the market committee, who are
in power so as to create an artificial majority at the
ensuing election and a situation may be created which
would materially affect the representation to be made
from such voters’ constituency of Traders. In the same
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manner, in the case of co-operative societies’ constituency,
new societies may be formed and or the market committee
may issue licences so as to make eligible such societies to
be included in the voters’ list even after the election is
declared.
17. The aforesaid are only some of the examples of
tinkering with the sanctity of election, but there could be
number of instances of such types. It is hardly required to
be stated that once the election programme is published,
the sanctity of the election process must be maintained by
all concerned. Any attempt to tinker with the sanctity of
the election would adversely affect the maintenance of the
democratic principles to be observed in a free and fair
manner for holding of the election. Once an election
programme is published by fixing various stages of
election, it would be known to all concerned that the
process of election has already commenced and they
should not enter into any act which may result into
adversely affecting the process of the election and the
smooth course of holding election by maintenance of the
democratic principles.
13. The aforesaid shows that when any election is being held,
it should be in a free and fair manner and none should be
allowed to tinker with the sanctity of election in a manner,
which may either result into artificial majority or otherwise,
consequently, affecting the democratic principles to be observed
in a free and fair manner for holding of election. Be it noted
that it is not a matter of holding election of any private body or
a self-created institution by way of an organization of persons
or otherwise, but is a matter in the present case for holding of
election of a market committee, which is a statutory body as per
the provisions of the Act and further as per Section 10(2) of the
Act, the Market Committee is deemed to be a local authority
within the meaning of Bombay General Clauses Act. Such would
mean that the Market Committee is not only a statutory
authority, but is given status as that of the local authority and
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its functioning can be equated with a local self-government for
the purpose of regulating the sales and purchase of the
agricultural produce in a market area, subject to the power and
control of the Act read with the Rules. It is true that in the case
of Dolatbhai Prabhubhai Dumaniya Vs. Director, Agriculture
Marketing and Rural Finance (supra), this Court had taken the
view that if the eligibility is acquired by any voter after the
exercise of the power by the Director under Rule 4, the
authorized officer would have no jurisdiction or competence to
include the names in the voters list and, therefore, the action
was found to be without jurisdiction and competence and
consequently, such action was struck down and the voters, who
were so included, were prohibited from participating at the
election.
* * *
15. The aforesaid provision shows that when the State
Government exercise the power under Section 48, the decision
or the order passed by the Director or the Market Committee
can be tested on the ground of legality or on the ground of
propriety. Such would mean that the intension of Legislature is
to ensure that the principles of propriety for exercise of power or
for taking decision are required to be observed by the Market
Committee or the Director. Such exercise of power may include
the grant of licences, and also at the time when the election is
just to commence or on the eve of the election or the propriety to
be observed for maintenance of the sanctity of the election or for
keeping the election held in a free and fair manner.
16. The Apex Court had an occasion to consider and interpret
the words legality and propriety while examining the exercise of
power by the Labour Court, in the case of Babulal Nagar and
Ors. Vs. Shree Synthetics Limited and Ors., reported in 1984
(suppl.) SCC, 128, and it was observed at paragraph 14 as
under:-
14. Having noticed the relevant provisions, it is now
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necessary to ascertain with precision the jurisdiction of
the Labour Court under Sec. 61. The scheme of the
standing orders applicable to the respondent Company
would show that a penalty of dismissal or removal from
service can be imposed after holding a domestic enquiry
According to the relevant provisions in the standing
orders, such an order when made would be open to
challenge by a substantive application under Sec. 66 (1)
and in such an application if and when made, the Labour
Court will have jurisdiction to decide the legality and the
propriety of the order. When jurisdiction is conferred
union the Labour Court, not only to examine the legality
of the order as also the propriety of the order, the Labour
Court can in exercise of the jurisdiction examine the
propriety or impropriety of the order. The expression
‘propriety’ is variously understood, meaning assigned to it
being ‘justice’ in Legal Thesaurus by Burton at page 902.
Amongst various shades of meaning assigned to the
expression, the oxford English Dictionary, Vol. VIII page
1484 sets out ‘fitness; appropriateness; aptitude;
suitability; appropriateness the circumstances or
conditions, conformity with requirement; rule or
principle, rightness, correctness, justness etc.’ If therefore,
the justice or the justness in relation to a legal proceeding
where evidence is led is questioned and the authority is
conferred with jurisdiction to examine the propriety of the
order or decision that authority will have the same
jurisdiction as the original authority to come to a
different conclusion on the same set of facts. If any other
view is taken the expression ‘propriety’ would lose all
significance. The expression ‘legality and propriety’ has
been used in various statutes where appellate or revision
jurisdiction is conferred upon a superior authority. In
Raman & Raman Ltd. v. The State of Madras & Anr.
While examining the ambit of the jurisdiction of the State
Government under Sec. 64A of the Motor Vehicles Act,
1939 as amended by the Motor Vehicles (Madras)
Amendment Act, 1948 to interfere with the orders of
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subordinate Regional Transport Authority on the ground
of propriety, this Court observed as under:
“The word “propriety” has nowhere been defined in
the Act and is capable of a variety of meanings. In
the 782 Oxford English Dictionary (Vol. VIII), it has
been stated to mean “fitness; appropriateness;
aptitude; suitability; appropriateness to the
circumstances or conditions; conformity with
requirement, rule or principle; rightness,
correctness, justness, accuracy”. If the State
Government was of the opinion that respondent No.
I had better facilities for operation than the
appellant and their service to the public would be
more beneficial, lt could not be said that the State
Government was in error in thinking that the order
of the Board confirming the order of the Regional
Trans port Authority was improper.”
In Moti Ram v. Suraj Bhan & Ors. while examining the
scope and ambit of jurisdiction of the High Court under
Sec. 15 (5) of the East Punjab Urban Rent Restriction Act,
1949, this Court observed as under:
“Under Sec. 15 (5) the High Court has jurisdiction to
examine the legality or propriety of the order under
revision and that would clearly justify the examination of
the propriety or legality of the finding made by the
authorities in the present case about the requirement of
the landlord under s. 13 (3) (a) (iii). After referring to
these two decisions, in Ching Chong Sine v. Puttay
Gowder, Alagiriswami, J. held that tho court exercising
revisional jurisdiction to decide the legality or propriety of
an order has the power to come to a conclusion different
from that arrived by the subordinate court on the same
set of circumstances. In Ahmedabad Sarangpur Mills
Company Ltd v. Industrial Court, Ahmedabad and Anr., a
Division Bench of the Gujarat High Court held that thePage 40 of 94
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expression ‘legality and propriety’ in S. 78(1) of the
Bombay Industrial Relations Act does not limit the
jurisdiction of the labour court to a revisional jurisdiction.
And that any order made by the employer under the
standing order is subject to the jurisdiction conferred on
the labour court under Sec. 78, which can scrutinise the
legality and propriety of the order. This jurisdiction was
described by the court as original jurisdiction meaning
thereby that the labour 783court can come to an entirely
different conclusion on the same set of facts. This view
was followed by another Division Bench of the Gujarat
High Court in Manekchown and Ahmedabad
Manufacturing Company Ltd v. Industrial Court, and
another. In Vithoba Maruti Chavan v. S. Taki Bilgrami,
Member Industrial Court, Bombay and Anr., a Division
Bench of the Bombay High Court held that the power to
decide ‘propriety’ and legality of the order made under
standing order does not confer a mere revisional
jurisdiction but a wider jurisdiction which will enable the
Labour Court to set aside the order of the employer
depending upon the facts and circumstances of the case.
17. The aforesaid shows that when the propriety is to be
examined, on the same facts, a different conclusion can be
recorded. Further, the word propriety means fitness,
appropriateness, aptitude, suitability, appropriateness to the
circumstance or condition. Such can also be equated with
rightness, correctness, justness or accuracy of decision. The
example given is that if the State Government was of the
opinion that the respondent no.2 had better facilities for
operation than the appellant and their services to the public
would be more beneficial, it could not be said that the State
Government was in error in thinking that the order of the
Board confirming the order of the Regional Transport Authority
was improper. There cannot be any straight-jacket formula or
manner of exercise of power, but what is improper would
directly tinker with the maintenance of the propriety. When any
person is clothed with the statutory power or any body is
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clothed with statutory power, it is obligatory on the part of such
authority to ensure that the basic principles of fairness are
required to be observed. In a matter of holding of election, the
basic principles of maintenance of the sanctity of the election
and holding of the election in a free and fair atmosphere is
required to be observed. At this stage, we may refer to the recent
decision of the Apex Court in the case of State of Gujarat and
Anr. Vs. Hon ble Mr. Justice R.A. Mehta (Retd.) and Ors.,
reported in 2013(3) GLH, 89, wherein at paragraph 34, it was
observed by the Apex Court while examining the question of bias
a under:-
34. Bias can be defined as the total absence of any pre-
conceived notions in the mind of the Authority/Judge,
and in the absence of such a situation, it is impossible to
except a fair deal/trial and no one would therefore, see
any point in holding/participating in one, as it would
serve no purpose. The Judge/Authority must be able to
think dispassionately, and sub-merge any private feelings
with respect to each aspect of the case. The apprehension
of bias must be reasonable, i.e. which a reasonable person
would be likely to entertain. Bias is one of the limbs of
natural justice. The doctrine of bias emerges from the
legal maxim nemo debet esse judex in causa propria sua.
It applies only when the interest attributed to an
individual is such, so as to tempt him to make a decision
in favour of, or to further, his own cause. There may not
be a case of actual bias, or an apprehension to the effect
that the matter most certainly will not be decided, or
dealt with impartially, but where the circumstances are
such, so as to create a reasonable apprehension in the
minds of others, that there is a likelihood of bias affecting
the decision, the same is sufficient to invoke the doctrine
of bias. In the event that actual proof of prejudice is
available, the same will naturally make the case of a
party much stronger, but the availability of such proof is
not a necessary pre-condition, for what is relevant, is
actually the reasonableness of the apprehension in this
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regard, in the mind of such party. In case such
apprehension exists, the trial/judgment/order etc., would
stand vitiated, for want of impartiality, and such
judgment/order becomes a nullity. The trial becomes
coram non judice .While deciding upon such an issue, the
Court must examine the facts and circumstances of the
case, and examine the matter from the view point of the
people at large. The question as regards, whether or not a
real likelihood of bias exists, must be determined on the
basis of probabilities that are inferred from the
circumstances of the case, by the Court objectively, or,
upon the basis of the impression that may reasonably be
left upon the minds of those aggrieved, or the public at
large.
18. The aforesaid shows that the bias can be gathered when
the interest attributed to an individual is such, so as to tempt
him to make a decision in favour of or to further his own cause.
There may not be a case for actual bias, or an apprehension to
the effect that the matter most certainly will not be decided, or
dealt with impartially, but where the circumstances are such, so
as to create a reasonable apprehension in the minds of others,
that there is a likelihood of bias affecting the decision, the same
is sufficient to invoke the doctrine of bias. Further, as observed
by the Apex Court, whether or not a real likelihood of bias
exists, must be determined on the basis of probabilities that are
inferred from the circumstances of the case, by the Court
objectively, or, upon the basis of the impression that may
reasonably be left upon the minds of those aggrieved, or the
public at large. In the case of Jayrajbhai Jayantibhai Patel Vs.
Anilbhai Jayanitbhai Patel, reported in 2006(3) GLH, 226, the
Apex Court had an occasion to consider the aspect of exercise of
power by the Court to intervene with the decision making
process. At paragraph 18, it was observed, thus:-
18. Having regard to it all, it is manifest that the power
of judicial review may not be exercised unless the
administrative decision is illogical or suffers fromPage 43 of 94
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procedural impropriety or it shocks the conscience of the
court in the sense that it is in defiance of logic or moral
standards but no standardised formula, universally
applicable to all cases, can be evolved. Each case has to be
considered on its own facts, depending upon the authority
that exercises the power, the source, the nature or scope of
power and the indelible effects it generates in the
operation of law or affects the individual or society.
Though judicial restraint, albeit self-recognised, is the
order of the day, yet an administrative decision or action
which is based on wholly irrelevant considerations or
material; or excludes from consideration the relevant
material; or it is so absurd that no reasonable person
could have arrived at it on the given material, may be
struck down. In other words, when a Court is satisfied
that there is an abuse or misuse of power, and its
jurisdiction is invoked, it is incumbent on the Court to
intervene. It is nevertheless, trite that the scope of judicial
review is limited to the deficiency in the decision-making
process and not the decision.
19. The aforesaid shows that when it shocks the conscience of
the Court in the sense that it is in defiance of the logic or moral
standard, the power of judicial review may be exercised. It
further shows that when a Court is satisfied that there is abuse
or misuse of power and when the jurisdiction of the Court is
invoked, it is incumbent upon the Court to intervene, subject to
the restrain of the judicial review.
20. There cannot be second opinion on the point that the
power vested to the office-bearers of the Market Committee is
coupled with the public duty. It is by now well settled that when
any power is coupled with the public duty, such power has got
to be exercised, keeping in view the duty owed to the people in
contra-distinction to any personal interest of the office-bearers
of the Market Committee. The moment there is involvement of
personal interest, the objectivity will be lost and it would attract
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the involvement of bias, which is popularly known as personal
bias. When any person or a body takes decision, keeping in view
the personal interest, though such decision may be within the
statutory provisions of law, it would be with the vice of bias and
consequently not meeting with the test of propriety to be
observed while exercising the statutory power. When any
decision is taken by an authority clothed with the power with
the element of bias, such a decision cannot be said as for a
public good. Considering the matter only from the point of
election, it does appear that when the office-bearers have to take
appropriate decision on the eve of the election, such power, if to
be considered with the public duty, will be for maintenance of
the basic democratic principles of election to be held in a free
and fair manner.
* * *
27. In view of the aforesaid observations and discussion, it is
observed and held that the impugned action for inclusion of the
names of the aforesaid traders, who have been granted licences
for the first time on the eve of the election can be said as not
meeting with the test of propriety to be observed by the Market
Committee on the eve of election and consequently such
persons/licence holders would not get eligibility to be included
in the voters list. The impugned order of the authorized officer is
quashed and set aside with the further direction that the
inclusion of the names of all such persons in the voters list of
traders constituency, who have been granted licences for the
first time was ultra vires the powers under the Act of the Market
Committee and also of the authorized officer and consequently,
those persons shall not be entitled to cast their votes at the
ensuing election of the Agriculture Produce Market Committee,
Karjan.”
[20] In the case on hand, the Societies, which are sought to
be added in the voters list, admittedly, not registered in the eve of
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election. All the Societies, those are sought to be added in the
voters list, are at least 10 years old. The Societies are dispensing
agricultural credit either through the District Cooperative Banks or
by the private fund or by both. Some of the Societies have
dispensed agricultural credit near to the date of declaration of
election. It is, however, not the case that such dispensation of
agricultural credit was done by the outgoing Managing Committee
as the said A.P.M.C. is being managed by the Administrator since
past one year. Thus, it is not the case that outgoing Managing
Committee body has misused any of its position and powers.
Significantly, such disbursement of loan made by the District Bank,
on which, there is no control of the Marketing Committee. The
District Bank is a independent Body altogether.
[21] In the case of Dolat Prabhubhai Dumaniya vs.
Director – Agricultural Marketing and Rural Finance reported in
2013(2) GLH 157, the facts were that election process commenced
from 9th January 2013 and the Societies had obtained license from
the Market Committee on 11th January 2013 and therefore,
eligibility was acquired for inclusion of their names in the
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Cooperative Societies Constituency after the commencement of
process of election. In the said context, the Division Bench has held
thus as under:
“16. As observed in the case of Patan Proper Fal and Shak
Bhaji Kharid Vechan Sahakari Mandli Ltd. (supra), the process
of election can be said to have commenced from the date on
which the Director has exercised powers under Rule 4 of the
Rules and all stages of elections are so conjoint with the manner
and mode of holding of the election, it is not possible for us to
find that the process of election cannot be said to have
commenced after exercise of powers under Rule 4 of the Rules.
There are three reasons for which we are inclined to take the
aforesaid view. The first is that Part III of the Rules under the
Head Election of Market Committee begins with Rule 4
providing for the power with Director to pass the order in
writing for fixation of the dates of the election and for
publication of such order passed by him by affixing the copy in
market committee as well as at the conspicuous place in the
principal market yard. Therefore, it appears that the intention
of the legislature to begin with the process of commencement of
election is from the stage of Rule 4. The second reason is that all
stages, including that of Rules 7 and 10, would be only after the
power is exercised under Rule 4 by the Director. Therefore, in
absence of any exercise of powers under Rule 4, it cannot be said
that the process of election has commenced or that the
subsequent stages of the elections, including that of Rules 7 and
10 would accrue. The third reason is that when the Court is to
interpret any provisions of statute, it would make a purposive
interpretation so as to maintain the sanctity of election. If the
interpretation is made that the process of election has not
commenced after exercise of powers by the Director under Rule
4, such would leave room for a large number of manipulations
to be made at the ensuing election of any market committee.
After the declaration of the election programme by exercise ofPage 47 of 94
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powers by the Director under Rule 4, one can easily tinker with
the sanctity of election. e.g. In the case of the Agriculturists’
Constituency where the co-operative societies dispensing
agricultural credit and their representatives are the voters, new
societies can be formed so as to create an artificial majority or
minority as may be convenient to the ruling party. If certain
societies are created and the show is made as that of functioning
by such societies by dispensing agricultural credit, those societies
would get themselves included in the voters’ list and
consequently, a situation may be created which would
materially affect the representation to be made from such voters’
constituency of agriculturists. Similarly, even in the case of
Traders’ Constituency, if after publication of the election
programme by exercise of powers by the Director under Rule 4,
new licences may be issued by the members of the market
committee, who are in power so as to create an artificial
majority at the ensuing election and a situation may be created
which would materially affect the representation to be made
from such voters’ constituency of Traders. In the same manner,
in the case of co-operative societies’ constituency, new societies
may be formed and or the market committee may issue licences
so as to make eligible such societies to be included in the voters’
list even after the election is declared.
17. The aforesaid are only some of the examples of tinkering
with the sanctity of election, but there could be number of
instances of such types. It is hardly required to be stated that
once the election programme is published, the sanctity of the
election process must be maintained by all concerned. Any
attempt to tinker with the sanctity of the election would
adversely affect the maintenance of the democratic principles to
be observed in a free and fair manner for holding of the
election. Once an election programme is published by fixing
various stages of election, it would be known to all concerned
that the process of election has already commenced and they
should not enter into any act which may result into adversely
affecting the process of the election and the smooth course of
holding election by maintenance of the democratic principles.
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18. In view of aforesaid observations and discussion, we find
that it is not possible to accept the contention of the respondents
that the election process could not be said to have commenced
from the date on which the Director has exercised powers under
Rule 4 of the Rules and has fixed the various stages of the
election and has published the same.
19. Once the process of election has commenced from
09.01.2013, any person getting eligibility after such date can be
termed as not entitled to be included in the voters’ list. In the
same manner, the Authorised Officer will have no authority or
competence or jurisdiction to include the names of such voters
who have acquired eligibility after 09.01.2013. If the facts of
the present case are examined further, in Special Civil
Application No.1890 of 2013, the respondent Nos.4, 5 and 6
have obtained licences from the market committee on
11.01.2013. Therefore, the eligibility for inclusion of their
names in the voters’ list of co-operative societies’ constituency
could be said to have acquired only on 11.01.2013, which is
later to 09.01.2013. Therefore, the eligibility could be said to
have acquired for inclusion of their names in the co-operative
societies’ constituency after the commencement of the process of
election.
20. In Special Civil Application No.1891 of 2013, the
respondent Nos.4 to 9 have come into existence only on
10.01.2013 since they are registered on 10.01.2013. The said
date of registration is also later to the commencement of the
process of the election. Under the circumstances, they have
acquired eligibility after commencement of the process of
election.
21. In Special Civil Application No.1897 of 2013, the
respondent Nos.4 to 8 are registered only on 10.01.2013 and
the licences have been granted by the market committee on
11.01.2013. As both the dates are later to the commencement
of the process of election i.e. 09.01.2013, it could be said thatPage 49 of 94
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they have acquired the status only after the commencement of
the process of election.
22. As all the aforesaid societies have acquired eligibility after
commencement of the process of election i.e. after 09.01.2013,
their names or the names of members of the representative of
the societies could not have been included in the voters’ list by
the Authorised Officer. The action of the Authorised Officer, in
our view, can be said as wholly without jurisdiction.
23. We may also record that there are allegations made by
the petitioners in the petitions that after commencement of the
process of election only with a view to have artificial majority,
the group which is in power in the market committee, has got
such societies registered and or the licences have been issued by
the market committee by circular resolution though not
warranted under Rule 35. It was submitted that such procedure
for circular resolution for issuance of licence is unknown to Rule
35 of the Rules. In our view, once there was no jurisdiction with
the Authorised Officer to include the names of those persons
who acquire eligibility after the election programme was
declared, we need not examine the allegation further, except
observing that be it the group having majority in the market
committee or be it the group having minority in the market
committee, none can be permitted to tinker with the sanctity of
the election and/or to frustrate democratic principles to be
observed in a fair and free manner at the election.”
[22] In the case on hand, it is not the case that the Societies
have been formed and registered after publication of election
programme nor dispensed with agricultural credit thereafter. In
fact, registration of Societies and dispensation of agricultural credit
both were prior to declaration of election.
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[23] In the case of Chanchpur Arthsam Seva Sahakari
Mandali Limited vs. State of Gujarat reported in 2023(4) GLR
2597, the facts were that the Authorized Officer has deleted the
name of the petitioner Society only on the ground that the
petitioner – Societies is not dealing through three-tier cooperative
credit structure. The learned Single Judge, in the said case,
considering the decisions in the case of Bhesavahi Group Vividh
Karyakari Seva Sahakari Mandali Limited (supra) as well as
Rampura Seva Sahakari Mandli Limited vs. Authorized Officer
and Election Officer (Marketing) reported in 2019(0) AIJEL-HC-
240289, has held thus as under:
“12. Therefore, the judgment of the learned single Judge in the
case of Rampura Seva Sahakari Mandli Limited (supra), has
been confirmed by the Division Bench and therefore, the
principle, is by now, well settled that the Primary Agricultural
Credit Co-operative Societies dispensing agricultural credit has
to be as per the provisions of clause (i) of sub-section (1) of
Section 11 of the Act of 1963 and the credit transaction, should
be as per the three tier co- operative credit structure as defined
under Section 2(7A) of the Act of 1961. Mr V. C. Vaghela,
learned advocate, could not dispute the said position and thus,
contention raised by the petitioner societies that there are
divergent views taken, would be fallacious and cannot be
accepted.
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13. In view of the above, let me also refer to the judgment in the
case of Shree Abhay Gopalak Vividh Karyakari Sahakari
Mandali Limited (supra) of the learned single Judge. In the
said case, the issue, was as to what meaning should be assigned
to phrase “Primary Agricultural Credit Co-operative Societies”
included in clause (i) of sub-section (1) of Section 11 of the Act
of 1963. It is held and observed that by virtue of the
Amendment Act of 2015, the legislature now intends that except
the Primary Agricultural Credit Cooperative Societies, no other
cooperative societies though dispensing agricultural credit
should be made entitled to elect 8 agriculturists. The insertion of
the word ‘primary’ would suggest that the societies at the grass
root level dealing mainly in advancing agricultural credit are
intended to be entitled to elect 8 agriculturists whose names are
enlisted in the voters list. The learned single Judge, therefore,
held and observed that when clause (i) of sub- section (1) of
Section 11 of the Act of 1963 requires only Primary Agricultural
Credit Co-operative Societies dispensing agricultural credit in
the market area to elect 8 agriculturists for the purpose of
constitution of market area, the same is in furtherance of the
object of the Act and, therefore, only those societies with prime
object of providing agricultural credit can be said to be eligible
to be included in the voters list. This Court, while not accepting
the contention that the amendment act of 2015 has widened
horizon to include all the co-operative societies dispensing
agricultural credits, held and observed that if all the societies
with one of the objects of dispensing agricultural credit are
intended to be included without any exception, there was no
need to incorporate the words “primary, agricultural, credit”
before the words “cooperative societies”. It has been held and
observed that considering the phrase used by the legislature
while amending clause (i) of sub- section (1) of Section 11 of
the Act of 1963, only those societies which have their main
object to do business of advancing agricultural credit activities
would be considered to be the primary agricultural credit
cooperative societies for the purpose of section 11(1)(i) of the
Act of 1963.
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13.1 The issues considered were viz. (i) the nature; (ii) the
membership; (iii) the power and freedom to decide its financial
and internal administrative matters; (iv) minimal subscription
by the State Government; (v) payment of dividend, subject to
guidelines of the Reserve Bank of India or National Bank; (vi)
liberty to affiliate or disaffiliate any federal society of its choice,
subject to passing of the Resolution, so on and so forth of the
Primary Agricultural Credit Cooperative Society; however, the
issue as regards dispensing agricultural credit through three tier
co-operative credit structure, was not considered. Pertinently
and at the cost of repetition, it is required to be noted that the
issue, was to assign meaning to the phrase Primary Agricultural
Credit Co-operative Societies and this Court, considering various
provisions of the various statues, held that when clause (i) of
sub-section (1) of Section 11 of the Act of 1963 requires only
Primary Agricultural Credit Co-operative Societies dispensing
agricultural credit in the market area, the same, is in
furtherance of the object of the Act and therefore, only those
societies with prime object of providing agricultural credit,
should be said to be eligible to be included in the voters list. The
arguments of the learned counsel that the amendment Act has
widened the horizon to include all the co-operative societies
dispensing agricultural credit, was not accepted.
[13.2 Besides, the aforesaid aspect, is strengthened by the
observations made in the case of Narendrasinh Rupsinh
Chauhan (supra). In fact, in the said judgment, in paragraph
22, it has been recorded that “the main contention about
Primary Agricultural Credit Co-operative Societies is based on
the amendment brought in Section 11 of the Act of 1963.
“…….The argument, is also based on the decision of the
Court in the case of Shree Abhay Gopalak Vividh
Karyakari Sahakari Mandali Limited (supra)”. This
Court, has further recorded that “on the basis of the
judgment, it is contended to recognize a society as
Primary Agricultural Credit Co-operative Society, the
parameters is the 3-tier pattern of credit dispensation.”
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This court, therefore, in paragraph 23, in the opening
sentence, has observed that “the closer look of the
judgment does not indicate so.”
In paragraph 27, this Court, was of the opinion that “the
judgment in the case of Shree Abhay Gopalak Vividh Karyakari
Sahakari Mandali Limited (supra), does not support the
contention of the petitioner that the only and effective
parameters to decide the character of Primary Agricultural
Credit Co-operative Society is dispensing of credit in three tier
system and that such definition will have application to the
facts of the case.”
Relevant paragraphs 22, 23 and 27 of the said judgment, read
thus:
“22. The main contention raised about ‘Primary
Agriculture Credit Co-operative Society’ is based on the
Amendment brought in Section-11 of APMC Act, 1963,
where Phrase “Primary Agriculture Credit Co-operative
Society’ was inserted in this section. The argument is also
based on the decision of the Court in a group of petition
being Special Civil Application No.2000 of 2016 & allied
matters in case of “SHREE ABHAY GOPALAK VIVIDH
KARYAKARI SAHAKARI MANDALI LIMITED v/s. STATE
OF GUJARAT” dated 15-03-2016. On basis of this
judgment, it is contended that to recognize as society as
Primary Agriculture Credit Co-operative Society, the
parameters is the 3-tier Pattern of Credit dispensation.
23. The closer look at the aforementioned judgment does
not indicate so. It appears the attempt in that petition
was to include Co-operative Credit Society involved in
dairy framing activity in the definition of Primary
Agriculture Credit Co- operative Society, Para-7 & 8 of the
judgment reads as under:
“7. The controversy in the present group of petitions is
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concerning preparation of voters list for the first
constituency falling within section 11(1)(i) i.e. as regards
election of eight agriculturists who will be the members of
the market committee with other members to be elected
and nominated as provided in section 11 to constitute the
market committee.
8. As per section 11(1)(i) of the Act before it was
amended by Amendment Act, 2015, except the cooperative
marketing societies and cooperative milk producing
societies dispensing cooperative agricultural societies,
credit all were entitled to elect eight agriculturists to be
the members of Market Committee. Now, by Amendment
Act, 2015, clause (I) of section 11(1) is substituted by
new clause (i) whereunder it is provided that eight
agriculturists whose names are enlisted in the voters’ list
published by the Election Commission of India for the
market area shall be elected by members of managing
committee of the primary Agricultural Credit Cooperative
Societies dispensing agricultural credit in the market
area. Thus, only Primary Agricultural Credit Cooperative
Societies are made entitled to elect eight agriculturists.”
27. In view of the aforesaid, Court is of the opinion that
the judgment of this Court in case of SHREE ABHAY
GOPALAK (supra), does not support the contention of the
petitioner that the only or effective parameters to decide
the character of Primary Agriculture Credit Co-operative
Society is dispensing of credit in three tier system and that
such definition will have application to the facts of the
case. At this stage, it would be appropriate to reproduce
only relevant para from Affidavit of one such respondent
Credit Society, as the Affidavits of each Respondent Credit
Society is almost identical and have remain unconverted.
“3.3 The deponent states that Section-11(1)(i) provides that 10
agriculturists having land such are to be elected by the members
of managing committee of primary agricultural credit co-
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operative societies dispensing agricultural credit in the market
area. It is submitted that the deponent society has been
registered in the year 2014 and since then it is dispensing
agricultural credit. It is submitted that in the last election of
APMC, Balasinor the names of members of managing committee
of deponent society was included in the voters list of Balasinor
APMC and the members of the society had taken part in the
election and no one had raised objection against the inclusion of
names of the deponent society in the voters list of agriculturist
constituency for Balasinor constituency.
3.4 It is submitted that society is dispensing agricultural credit
every year to the members of the society. It is submitted that
bye-laws of the society are registered and bye law no.4(1) of the
bye laws provides that the society can create funds from the
below mentioned sources:
(a) from shares (1) from members (2) from Government
(b) from deposit (1) from members (2) from non
members of the area of the operation
(c) from loans
(d) from gifts
(e) admission fee
Since due to political reasons the District Co-operative Banks
was not ready to grant loans to the deponent society therefore
the society created its own fund by accepting deposits from its
members and have granted loans to the needy members of the
society. It is submitted that the society is dispensing agriculture
credit every year and the accounts of the society are audited
every year. No objection has been raised by the auditor from
dispensing agriculture credit from the society. It is submitted
therefore the objections raised by the petitioner is not tenable. It
is submitted that the authorized officer pursuant to the
declaration of election programme had asked by letter dated 21-
12-2020 to forward the names of the members of the managing
committee along with the documents showing dispensation of
agricultural credit. The deponent society had produced the
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necessary documents to the authorized officer on 28-12-2020.”
While observing thus, this Court, did not entertain the petition
and was of the opinion that nothing has been indicated on facts
to make out an extraordinary and special circumstance so as to
warrant immediate interference of this Court invoking Article
226 of the Constitution of India.”
[23.1] In the aforesaid decision, the Coordinate Bench of
this Court has held that the Primary Agriculture Credit Cooperative
Societies dispensing agricultural credit has to be as per the
provisions of clause (i) of Sub-section (1) of Section 11 of the Act
of 1963 and the credit transaction, should be as per the three tier
cooperative credit structure, as defined under Section 2(7A) of the
Act of 1961.
[23.2] It is pertinent to note that as per the facts of the
present case, the respondents – Societies are admittedly the
registered Primary Agriculture Credit Cooperative Societies and
thereby, said to be within Cooperative Credit Structure, as defined
under Section 2(7-A) of the Gujarat Cooperative Societies Act,
1961.
[24] In the case of Kankapura Seva Sahakari Mandali
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Limited vs. State of Gujarat [R/Special Civil Application
No.17579 of 2024 and allied petitions decided on 31 st January
2025], the facts were that names of the Societies sought to be
deleted from the voters list on the ground that the petitioner –
Society has not dispensed agricultural credit for four years and was
only engaged in recovery activities of previously dispensed credit.
The petitioners – Societies, whose names were deleted, could not
produce any document before the Authorized Officer to show that
they are actively dispensing agricultural credit under three-tier
system or otherwise. The Coordinate Bench of this Court, in the
said case, not entertained the said petitions, but was pleased to
relegate the petitioner to avail statutory remedy under Rule 28 in
view of the Full Bench decision of this Court in the case of Daheda
Group Seva Sahakari Mandli Limited (supra).
[25] In the case of Kalubhai Ishrabhai Patel vs. State of
Gujarat reported in 2016(2) GLR 1147, the Division Bench of this
Court has held thus as under:
“7. Having thus heard learned Counsel for the parties and
having perused documents on record, a short controversy,
which is not possible of an equally short answer, is whetherPage 58 of 94
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in facts of the present case, it can be stated that granting 27
new licences to the traders by the Market Committee was on
the eve of the election and aimed solely at artificially
securing majority for the outgoing office bearers. Before
adverting to various judicial pronouncements of this Court on
this issue, we may refer to some of the statutory provisions.
The said Act was enacted to consolidate and amend the law
relating to the regulation of buying and selling of agricultural
produce and the establishment of markets for agricultural
produce in the State of Gujarat. Section 11 of the Act
pertains to constitution of market committee. We notice that
this Section has undergone major amendments by virtue of
Amending Act 14 of 2015. However, we are concerned with
the unamended provisions and we would refer to such
provisions in this order. Sub-section (1) of Section 11
provides that every market committee shall consist of the
following members, which includes four members to be
elected in the prescribed manner from amongst those
traders holding general licences. Subsection (4)(a) of Section
11 provides that the term of the office of a market committee
shall, save as otherwise provided in the Act, be four years
from the date of the first general meeting. As per Clause-(b)
of sub-section (4) of Section 11, the term of the office
members of the market committee shall be coextensive with
the term of the market committee.
* * *
12. It can thus be seen that in order to ensure free and fair
elections for constitution of a market committee, whose
elected members would hold their positions for the full term
of four years of the life of the market committee, detailed
provisions have been made in the said Rules. The Rules
envisage different stages through which once the Director
declares the election programme, the conduct of the election
would pass, ultimately culminating into counting of votes
and declaration of result of the election.
13. The Rules do not expressly provide for noninclusion of
any person in the voters list who has been granted licence
by the market committee after a particular date. However,
the Courts are always alive to a situation where by lastPage 59 of 94
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minute manipulation attempt is made by the committee’s
outgoing office bearers, who may often times also have
blessings from the official machinery to perpetuate the
power. It was in this context therefore that the Division
Bench of this Court in case of Kalubhai Ranabhai Akabari
(supra) related the eligibility of a person for inclusion in the
voters list with the date by which the authorised officer is to
be communicated the names as indicated in sub-rule (1) of
Rule 7 of the said Rules. Shortly thereafter, in case of
Shrutbandhu H.Popat (supra), the Division Bench noticed
rather glaring facts. It was noticed that the Deputy Director
of Agricultural Marketing and Rural Finance had sent a
communication on 10.01.2007 for fixing the date of election
and the Director had also declared the election programme
on 17/18.01.2007. Meeting of the licence committee of the
APMC was convened on 20.01.2007, i.e. after the said two
events, during which as many as 269 fresh licences were
issued. It was in this background the Division Bench
concluded that such action was not only illegal but was also
a fraud on election process. This gave rise to an
extraordinary situation, justifying intervention of the Court
for the purpose of striking down the resolution dated
20.01.2007. It was directed that the authorities would not
permit such persons to vote at the ensuing elections. Thus,
in fact situation, the Court advanced the date for
disqualifying a person newly granted licence from voting to
the date of publication of the election programme by the
Director. In this context, the Court also expressed an opinion
that in such situation, remedy provided by Rule 28 of the
Rules for election petition would not be efficacious. It was
observed that such remedy is limited to the extent that
Election Officer and the Election Tribunal will only examine
the challenge to exclusion or inclusion of certain persons in
the voters list with a limited aspect whether they were
holding general licences. The Election Tribunal is not vested
with any jurisdiction to examine whether the licence was
granted in accordance with the relevant provisions of the Act
and the Rules. The matter is to be decided only by the APMC
and the Director under sub-sections (4) and (5) of Section 27
of the Act. The Court observed as under:-
“13. We find considerable force in the submissions of
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Mr Mihir Joshi, learned Additional Advocate General
and the learned counsel for the petitioners that the
remedy provided by Rule 28 of the Rules is limited to
the extent that election officer and the Election
Tribunal will only examine the challenge to exclusion
or inclusion of certain persons in the list of voters for
the constituency of traders holding general licences
under clause (ii) of sub-section (1) of Section 11 of the
Act only with the limited aspect whether they were
traders holding general licences. The Election Tribunal
is not vested with any jurisdiction to examine whether
the licence was granted in accordance with the
relevant provisions of the Act and the Rules. On the
contrary, the matter is to be decided only by the APMC
and the Director under the provisions of sub-sections
(4) and (5) of Section 27 of the Act. In the election
petition under Rule 28, there cannot be any collateral
challenge to the grant, renewal, refusal, cancellation or
suspension of general licences of traders.”
14. The quest of the Courts for ensuring elections, often
referred to as free and fair elections to a democratic
institution like APMC, which otherwise enjoys a statutory
status, did not end here nor extraordinary situations every
once in a while presenting themselves before the Court
ceased. As noted, in case of Chandrakant Manibhai Patel,
the Court noticed that previously there were only 300 to 400
licence holders. On 03.05.2013, the Director had appointed
Election and Autthorised Officers in terms of Rule 4 of the
said Rules. He also declared various stages for holding
election. Shortly before that, on 01.05.2013, the Market
Committee had granted as many as 1164 new licences to
the traders. It was in this background, the Court applied the
principle of artificial inflation of majority by inducting
favourable voters on the eve of elections. The Court applied
the principle of real bias, fraud on the statute and also
considered the question whether such exercise can be tested
on the ground of not only legality but also propriety.
15. Likewise, in case of Mahendra Maganbhai Patel (supra),
the Division Bench noticed that there were existing 48
traders holding general licences. The APMC in its meeting
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dated 20.11.2013 granted 58 fresh licences. The election
programme was declared by the Director on 17.11.2013,
which was published in the newspaper on 21.11.2013. In
this background, the Court opined that only conclusion
possible was that the action is nothing but a malafide
exercise of powers to make the new licence holders eligible
for inclusion in the voters list to create an artificial majority.
In the process, the Court also considered the contours of the
powers of the Authorized Officer while preparing the voters
list. The Court was of the opinion that even while preparing
preliminary voters list, the Authorized Officer should be
given certain particulars such as full names of the traders
holding general licences along with place of residence. If
such particulars are not provided, the Authorized Officer
may call for relevant particulars to satisfy himself about the
same. The Court was of the opinion that this would ensure
maintenance of democratic principles.
16. In the present case, the real question is not whether the
Court should interfere at an interim stage of conduct of
election once the election programme has been declared and
the election process has commenced. The Court has
intervened and passed an interim order precluding certain
licence holders from voting. The question is whether concept
of induction of members on the eve of election to tamper with
the democratic process can be applied. As noted, in different
situations, the Courts have either chosen to or refused to
interfere with induction of new members at a late stage
shortly before conduct of the elections. Such restrictions
were made on the ground of malafide exercise of powers or
what was viewed as a complete fraud on the statute, on the
grounds of bias or even impropriety. The common thread
through all these judgments is the topmost anxiety of the
Courts to ensure free and fair elections and to the possible
extent eliminate manipulation and interference by the office
bearers and the State machinery. To all these categories
already mentioned by different Courts in different
judgments noted above, we may add one more, viz. attempt
on part of the committee’s outgoing office bearers to
perpetuate the power through unfair means by using official
machinery and in some cases, with the aid of the State
mechanism.
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17. There is, however, thin line between deft political
maneuvering and gross abuse of the official powers. The
Court, while expressing its anxiety to ensure an election
insulated from the external pressures, would also be acutely
conscious of its respect for the democratic process of holding
an election as per the statutory provisions. With this, we
may revisit the facts. It is true that the election of the AMPC
was delayed on ground which itself was not a fresh one. As
noted, at one point, the Director announced election
programme on 10.12.2014, which envisaged what the
election would be completed by 11.03.2015. However, on
the ground that areas of three new villages would have to be
included in the market area, the election programme was
abandoned midway. It is also true that addition of three
new villages was not a recent phenomena. However, this by
itself cannot be a ground to attribute malafide on behalf of
the Director or the State authorities, that too in absence of
any serious allegations in this respect. All that, therefore,
have on record is that when the petitioner urged the Court to
direct the respondents to continue the election programme
undisturbed, the Court in its order dated 23.03.2015, did
not accept such formula on the ground that when the
possible addition of new villages, entire constitution of
market area would undergo a change. While expecting the
authorities to complete the process of inducting new villages
in the market area expeditiously, the Court expressed a
hope that the election shall he held for the market committee
as early as possible, preferably within a period of three
months from 01.03.2015. It is true that this time line was
not scrupulously followed by the respondents. The petitioner
was therefore forced to move yet another petition, in which a
statement was made that election programme would be
declared latest by 10.04.2015.
18. In the meantime, on an agenda circulated on
20.02.2015, through resolution dated 28.02.2015, some 20
new licences were granted. Few more licences were granted
on 31.03.2015, for which agenda was circulated on
23.03.2015. The case of the petitioner is not that such
licences were wrongly granted; that the licence holders were
not genuine traders; that their applications for grating
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licences were incomplete. Counsel for the petitioner, in fact,
clarified that the petitioner has not challenged the resolution
of the market committee to grant such licences. We may also
recall that there were previously 166 general licence holders
in the traders constituency. 27 new licences have been
granted during February and March 2015. The new election
programme was declared on 03.04.2015. The facts of the
present case do not suggest stretching concept of artificial
induction of large number of voters to influence the outcome
of the ensuing elections. Neither averments in the petition
nor facts on record are strong enough to view the entire
exercise by the market committee as one integrated attempt
to first delay the election on wrong pretext and then to
further delay declaration of new election till the Chairman
successfully inducted new traders, who may be favourable
to him. As noted, the line of distinction between deft political
maneuvering and abuse of power is sometimes thin. In the
anxiety to ensure fairness in election process, the Court
would not take a view which would either limit the powers
of elected autonomous body or to paralyze its functions long
before the election is declared.
19. Learned Counsel Shri Dipen Desai for the petitioner
drew our attention to an order dated 23.09.2011 passed in
Contempt Petition No.2403 of 2011 in case of Dilipbhai
C.Nathwani Vs. State of Gujarat Through Secretary & Ors.,
where the Court took a strong objection to the Director not
holding elections as directed by the Court and in the
meantime, the market committee granting new licences.
However, it is a case where the Court had given specific
schedule and application for extension of time was refused,
finding that the respondents were in clear contempt and in
the meantime, had also inducted new members. In the
present case, as noted, the Division Bench had not given a
rigid time limit nor any directions to complete the elections
before a certain last date. It is true that when the Court
expresses a hope, the authorities are expected to carry out
the wish of the Court. Nevertheless, expression of hope
cannot be equated with issuance of direction. The Court also
used the term “preferably”, clearly indicating that there was
no clear direction for completion of election before certain
date without fail. The order permitted and the respondents
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are allowed a little degree of flexibility.
20. In case of Shrutbandhu H.Popat (supra), the Division
Bench was of the opinion that the Election Tribunal and the
Election Officer would not be able to decide whether licence
granted was in accordance with relevant provisions of the
Act and the Rules and such issues are to be decided only by
the APMC and the Director in appeal. In case of Mahendra
Maganbhai Patel (supra), the Division Bench interpreted the
relevant Rules and expressed an opinion that if the
Authorized Officer finds that the licences were issued after
declaration of the election under Rule 4 or after the
declaration of election programme under Rule 2 or on the eve
of the declaration, in that case, considering the decision of
the High Court, he may not include names of these persons
in the voters list. In the present litigation, we need not
thrash out this issue. We may, however, plant the seeds of
doubt, which, in proper case, may have to be considered.
While entrusting power to the Authorized Officer to apply
principle of induction of voters on the eve of elections with
malafide intention, whether, in order to eliminate one evil,
would we not be opening the possibility of creating another
one?
21. The petition would therefore have to be dismissed.
Before closing, however, a tricky issue of restoring the
position prior to passing of the interim order dated
15.06.2015 would have to be tackled. In the election
conducted, in compliance with the interim directions of the
High Court, two candidates polled equal number of votes.
Out of four seats for traders constituency, the fourth had to
be decided through drawing of lots. Counsel Shri Anshin
Desai stated that unsuccessful candidate has filed an
election petition which is pending. One possibility therefore
is to vacate the interim order and allow the election
petitioner to pursue his remedies with the aid of this
judgment. The second possibility would be to ensure re-
election for all four seats in the traders constituency. Since
the possible outcome, if 27 licence holders were allowed to
vote, cannot be predicted, particularly looking to the number
of votes polled by the four successful candidates. However,
none of these four candidates are joined as respondents in
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this petition. Therefore, it would not be possible to pass any
such order in their absence. We therefore adopt the first
formula and allow the election petitioner to pursue his
election petition on the basis of functioning of interim relief
previously granted.
22. In the result, the writ petition is dismissed. Rule is
discharged. Interim relief is vacated.”
[26] In the case of Narendrasinh Rupsinh Chauhan vs.
State of Gujarat reported in 2021(0) GUJHC 33729, the
Coordinate Bench of this Court has held thus as under:
“20 . Heard learned advocates for the parties and
perused the documents placed on record. It appears
that the Petitioner has relied upon the judgment
delivered in SCA No.2128 of 2016 and allied matters
wherein the objection was raised against the societies
which were not primary agriculture credit cooperative
societies and the loan transaction shown by the
said societies were bogus and sham. The authorized
officer found substance in the objection and thereby
deleted the names of the society as not being primary
agriculture credit cooperative societies and the
dispensation of agriculture credit being not genuine.
Therefore, the said societies challenged the order of
the authorized officer before the Hon’ble High Court
and the coordinate bench of this Hon’ble court has
upheld the decision of the authorized officer and
dismissed the Petition on merits stating that the
decision of the authorized officer does not warrant
interference. While dismissing the Petitions the
Hon’ble Court also came to the conclusion that the
societies were not primary agriculture credit co-
operative societies and the dispensation of agriculture
credit shown by them was bogus and sham. The
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division bench and even the division bench concurred
with the findings given by the Ld. Single judge and further
held that the challenge to the exclusion or inclusion can be
made only after the elections are over in an election petition
under rule28 of the rules.
21 . The second judgment relied by the Petitioner
was SCA No.3801 of 2019 and allied matters
wherein also the coordinate bench relying on the
judgment rendered in SCA No.2128 of 2016
dismissed the Petition with a finding that no extra
ordinary case has been made out by the Petitioner
therefore the Petition was dismissed. Whereas in the
present Petition the objector has raised an objection that
the dispensation of agriculture credit by the
deponent societies is not under 3 tire structure.
Section 11(1)(i) nowhere provides that the
dispensation of agriculture credit should only be
under 3 tire structure. It only provides that there
should be dispensation of agriculture credit. Therefore the
authorized officer while deciding the objection found
that the dispensation of agriculture credit by the
deponent societies is genuine and therefore did not
accept the objection of the Petitioner. Having failed
before the authorized officer the Petitioners have filed
the present case stating that the deponent societies
are not primary agriculture credit cooperative societies
and have not dispensed agriculture credit under 3
tire system and the order of the authorized officer
is without jurisdiction. The authorized officer has
rejected the objection at the stage of publication of
provisional voters list and therefore there is no
illegality committed by the authorized officer.
Therefore the question with regard to dispensation of
agriculture credit if at all questioned by the
Petitioner that it is a disputed question of fact
and therefore the present petition is not required to
be entertained. The authorized officer has come to
the conclusion that the obje3ction raised by objector
is incorrect and the societies have dispensed
agriculture credit.
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22 . The main contention raised about ‘Primary
Agriculture Credit Cooperative Society’ is based on
the Amendment brought in Section11 of APMC Act,
1963, where Phrase “Primary Agriculture Credit Co-
operative Society’ was inserted in this section. The argument
is also based on the decision of the Court in a
group of petition being Special Civil Application
No.2000 of 2016 & allied matters in case of
“SHREE ABHAY GOPALAK VIVIDH KARYAKARI
SAHAKARI MANDALI LIMITED v/s. STATE OF
GUJARAT” dated 15032016. On basis of this
judgment, it is contended that to recognize as
society as Primary Agriculture Credit Cooperative
Society, the parameters is the 3tier Pattern of Credit
dispensation.
23 . The closer look at the aforementioned judgment
does not indicate so. It appears the attempt in
that petition was to include Cooperative Credit
Society involved in dairy framing activity in the
definition of Primary Agriculture Credit Cooperative Society,
Para7 & 8 of the judgment reads as under:
“7. The controversy in the present group of
petitions is concerning preparation of voters list
for the first constituency falling within section
11(1) (i) i.e. as regards election of eight
agriculturists who will be the members of the
market committee with other members to be
elected and nominated as provided in section
11 to constitute the market committee.
8.As per section 11(1)(i) of the Act before it
was amended by Amendment Act, 2015, except
the cooperative marketing societies and
cooperative milk producing societies dispensing
cooperative agricultural societies, credit all were
entitled to elect eight agriculturists to be the
members of Market Committee. Now, by
Amendment Act, 2015, clause (I) of section
11(1) is substituted by new clause (i)
whereunder it is provided that eightPage 68 of 94
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agriculturists whose names are enlisted in the
voters’ list published by the Election
Commission of India for the market area shall
be elected by members of managing committee
of the primary Agricultural Credit Cooperative
Societies dispensing agricultural credit in the
market area. Thus, only Primary Agricultural
Credit Cooperative Societies are made entitled to elect
eight agriculturists.”
24 . Thereafter, this Court has stated in Para16 as
under:
16. The Court, having heard the learned advocates for
the parties, finds that the legislature has
provided for constitution of market committee by
representatives of different classes. First amongst
them is selection of eight agriculturists by
election as per section 11(1)(i) of the Act by
the cooperative societies of the type provided
in section 11(1) (i) of the Act. Section 11(1)(i)
as it originally stood permitted all cooperative
societies dispensing agricultural credit, to elect eight
agriculturists and for such purpose, the
members of their managing committee formed
electorate on their inclusion in the voters’ list
prepared as provided in the Rules. In the year
2006, the legislature debarred the cooperative
marketing societies and Milk Produce Cooperative
Societies from being part of the electorate to
elect eight agriculturists. It appears that at the
time of election of Agriculture Produce Market
Committee, Siddhpur somewhere in the year
2010, dispute had arisen as to whether the
Milk Producing Cooperative Societies could be
included in the voters’ list of agriculturists’
constituency on exclusion of animal husbandry
and animal husbandry products from the
schedule of agriculture produce. The objector
whose application was turned down against
inclusion of Milk Producing Societies in voters’
list had preferred special civil applicationPage 69 of 94
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no.13689 of 2009 before this Court and Hon’ble
Division Bench of this Court held that since
the animal husbandry and animal husbandry
products were taken out from the schedule of
agricultural produce, the societies dealing with
the animal husbandry and animal husbandry
products could not form part of the
electorate…………….
25 . The Court then proceeded with note of approval
to the submissions made on behalf of the State in Para25
as under:
“25. In the context of the Act, it appears that the
insertion of primary agricultural credit by Amendment
Act of 2015 in section 11(1)(i) is to make clear the
intention of the legislature that it is only the
societies which have their main object to do principal
business of providing financial assistance to their
members for agricultural purpose or for the activities
connected with the agriculture will be entitled to elect 8
agriculturists from the agriculturists constituency and
to make such intention more clear, the words
‘agricultural credit’ are repeated in the phrase
“primary agricultural credit’. As rightly submitted by
the learned Addl. A.G. Mr. Jani that the Amendment
Act of 2015 has changed entire scenario. The Court
finds that in view of the Amendment Act, 2015,
judgment rendered in the case of Rameshbhai
Ganeshbhai Chaudhari (supra) could not be of any
help to the petitioners. Therefore, even if the
classification done by the Registrar is not to be
resorted to determine whether a particular society is
primary agricultural credit society or not, the intention
of the societies could be well gathered from their bye
laws whether their main object is to do principal
business of providing financial accommodation for
agricultural purposes or for the purposes
connected with the agriculture activities.”
26 . Ultimately, in Para28, the Court has held as under:
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“28. When sec. 11(1)(i) now requires only primary
agricultural credit cooperative societies
dispensing credit in the market area to elect 8
agriculturists for the purpose of constitution of
market area, it is in furtherance of the object of
the Act and, therefore, only those societies with
prime object of providing agricultural credit could
be said to be eligible to be included in the
voters list. It is therefore not possible to accept
the argument of the learned advocates for the
petitioners societies that the Amendment Act
2015 has widened horizon to include all
agricultural cooperative societies dispensing
agricultural credits. If all societies with one of the
objects of dispensing agricultural credit are intended
to be included without any exception, there
was no the words” primary, agricultural, need
to incorporate credit” before the words ” cooperative
societies” in section 11(1)(i) of the Act. The
words “primary agriculture credit” therefore do
not meant to be read as a simple adjective
noun without any meaning. The legislature do not
amend the laws just to beautify the language. Use
of the words “agriculture credit” once again while
amending section 11(1)(i) of the Act by
Amendment Act of 2015, and prefixing word
“primary” before the words, “agricultural credit”
makes the intention of the legislature more
clear to give unequivocal indication that none
except the societies which have prime object to
do principal business of advancing finance for
agricultural purpose and for the purposes connected
with the agriculture activities could be included in the
voters’ list for first constituency.”
27 . In view of the aforesaid, Court is of the opinion that the
judgment of this Court in case of SHREE ABHAY
GOPALAK (supra), does not support the contention of the
petitioner that the only or effective parameters to
decide the character of Primary Agriculture Credit
Cooperative Society is dispensing of credit in Three
tier system and that such definition will have
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application to the facts of eh case. At this stage,
it would be appropriate to reproduce only relevant
para from Affidavit of one such respondent Credit
Society, as the Affidavits of each Respondent Credit
Society is almost identical and have remain
unconverted.
“3.3 The deponent states that Section11(1)(i) provides
that 10 agriculturists having land such are to
be elected by the members of managing
committee of primary agricultural credit co-
operative societies dispensing agricultural credit
in the market area. It is submitted that the
deponent society has been registered in the
year 2014 and since then it is dispensing
agricultural credit. It is submitted that in the
last election of APMC, Balasinor the names of
members of managing committee of deponent
society was included in the voters list of
Balasinor APMC and the members of the society had
taken part in the election and no one had
raised objection against the inclusion of names
of the deponent society in the voters list of
agriculturist constituency for Balasinor
constituency.
3.4 It is submitted that society is dispensing
agricultural credit every year to the members of
the society. It is submitted that byelaws of the
society are registered and bye law no.4(1) of
the bye laws provides that the society can create
funds from the below mentioned sources:
(a) from shares (1) from members (2) from Government
(b) from deposit (1) from members (2) from non
members of the area of the operation
(c) from loans
(d) from gifts
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(e) admission fee
Since due to political reasons the District Co-
operative Banks was not ready to grant loans to
the deponent society therefore the society created its
own fund by accepting deposits from its members
and have granted loans to the needy members of the
society. It is submitted that the society is dispensing
agriculture credit every year and the accounts of the society
are audited every year. No objection has been raised
by the auditor from dispensing agriculture credit
from the society. It is submitted therefore the
objections raised by the petitioner is not tenable. It
is submitted that the authorized officer pursuant to
the declaration of election programme had asked by
letter dated 21122020 to forward the names of the
members of the managing committee along with the
documents showing dispensation of agricultural
credit. The deponent society had produced the
necessary documents to the authorized officer on 2812-
2020.”
28 . The reference to the byelaws of one such
Respondent Credit Society especially relating to the
objective and provision relating to corpus would go on
to the indicate factually, the area of operation of
the Credit Society and apparently in consonance
with the requirement to give it a characteristic of
an Primary Agriculture Credit Cooperative Society.”
[27] At this stage, it would be profitable to take note of the
relevant observations of the Full Bench in the case of Daheda
Group Seva Sahakari Mandli Limited (supra) as under:
“29. Turning now to the second contention namely; can remedy
under Rule 28 can be termed to be efficacious remedy. Learned
Counsel Mr Patel after inviting our attention to rule 28
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submitted that even though the authority either can cancel or
confirm and amend the declared result and can direct to hold
fresh election in the event of setting aside the election, if the
non-inclusion of the names in the voters’ list has not materially
affected, result of the election which is very difficult to establish
then, the election cannot be set aside. In that event, the right
under the statute to cast the vote shall not be available to the
person whose name is wrongfully excluded from the voters’ list.
He submitted that even the Director or the competent authority
under rule 28 cannot confer the right to vote. Under the
provisions of rule 9 read with section 15 of the Act, the election
is required to be held afresh. In that event, a person who has
lost his right to vote remains the claimant for getting the right
to vote but that right cannot be decided by the authority under
the rules or provisions of the Act. He submitted that the voters’
list is to be prepared for every election and the voters’ list is not
continued. If the voters’ list is not continued, in that event, by
no stretch of imagination, a person can get right to vote. By
giving example, he submitted that if 50 voters have been
excluded from the voters’ list by wrongful order, in that event, in
a petition by one member the right of other 49 cannot be
decided. Under the circumstances, he submitted that the remedy
under rule 28 cannot be termed as efficacious remedy. Finally
he submitted that in absence of any right to appeal, the power
conferred on authorised officer would lead to hazardous
situation.
30. The arguments advanced by Mr Patel appears to be
attractive, however, in substance, devoid of any merit. Having
regard to the language and terminology of rule 28 of the rules,
we are of the view that it leaves no room of doubt that it
includes the question of inclusion, exclusion or wrongful
inclusion or exclusion in an illegal, arbitrary or malafide
manner of name of an eligible voter in voters’ list and the
question can be gone into in an election petition under Rule 28
and, therefore, in an election petition such a question can be
validly raised, adjudicated and ultimately relief granted, if a
case is made out and it is proved that on account of such
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wrongful inclusion or exclusion the result of the election is
materially affected. In any case, the efficacious remedy provided
under the Act would not entitle the petitioner to contend as a
matter or right that he is entitled to invoke the jurisdiction of
this court.
31. On the question of maintainability of petition under Article
226 of the Constitution of India, in our opinion, the law is well
settled. Mr Patel, invited our attention to the decision reported
in 1988 GLH 430. There the Division Bench, after quoting the
judgment of a Full Bench in the case of Ahmedabad Cotton Mfg.
Ltd. v. Union of India and Ors. (18 GLR 714) where the
principles have been clearly enumerated and held that
extraordinary jurisdiction of the High Court under Articles 226
and 227 of the Constitution of India is very wide, the Court
should be slow in exercising the said jurisdiction where
alternative efficacious remedy under the Act is available but
however, if the impugned order is an ultra vires order or is
nullity as being ex-facie without jurisdiction. The question of
exhausting alternative remedy would hardly arise.
31.1. In the case of Mehsana Dist. Coop. Sales and Purchase
Union v. State of Gujarat (1988 (2) GLR 1060), after following
the decision rendered by the Apex Court in the case reported in
the case of Gujarat University v. N U Rajguru, (1988 (1) GLR
308), the Court have noted the observations made by the
Hon’ble Apex Court as under:
“there may be cases where exceptional or extraordinary
circumstances may exist to justify bye-passing alternative
remedies”.
In the case of Manda Jaganath v. K S Rathnam, reported in AIR
2004 SC 3600, the Apex Court has held after considering the
provisions of Article 329(B) of the Constitution of India that
“there are special situations wherein writ jurisdiction can be
exercised but, special situation means error having the effect of
interfering in the free flow of the scheduled election or hinder
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the progress of the election which is the paramount
consideration.”
In the case of Election Commission of India v. Ashok Kumar,
reported in 2000(8) SCC page 216, the Apex Court held that
the order issued by the Election Commission is open to judicial
review on the ground of malafide or arbitrary exercise of
powers.
32. We have gone through the aforesaid decisions closely. There
cannot be any dispute with regard to the principles laid down
therein. The sum and substance of those decisions apply to a
situation where this Court would like to entertain a petition on
the foundation that the order is ultra vires and/or without
jurisdiction and/or is violating principles of natural justice.
Thus, in an exceptional case, this Court can exercise the power
of judicial review, which is a basic structure of the situation in
such cases more particularly, in the election process. One thing
is clear that this Court ordinarily would not like to exercise its
power under Article 226 of the Constitution when the process of
election has been set in motion even though there may be some
alleged illegality or breach of rules while preparing the electoral
roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru
Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha
Utpadak Sanstha and Ors. v. State of Maharashtra and Ors
(2001) 8 SCC 509, while dealing with the Maharashtra
Cooperative Societies Act, held that in the process of election of
the Managing Committee of a specified society where the
election process having been set in motion, the High Court
should not stay the continuation of the election process even
though there may be some alleged illegality or breach of rules
while preparing the electoral roll. It was held that the proper
remedy is by way of election petition before the Election
Tribunal.
33. In view of the above discussion, we answer the Reference as
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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.”
[27.1] By way of the Full Bench decision of this Court, it
has been made clear that this Court ordinarily would not exercise
its powers under Article 226 of the Constitution of India when the
process of election has been set in motion even though there may
be some alleged illegality or breach of rules while preparing the
electoral rolls. The Full Bench significantly held that illegality and /
or breach of Rules while preparing the voters list are also not so
compelling factor which justify the exercise of powers under Article
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226 of the Constitution of India. Intention underlying appears to be
not latent but loud and clear that all such issues and grievances fall
within the domain of Election Petition under Rule 28.
[28] At this stage, it would also be useful to take notice of
the decision of the Hon’ble Apex Court in the case of Pradeep
Kumar Sonthalia v. Dhiraj Prasad Sahu reported in (2021) 6
SCC 523, wherein, the Hon’ble Apex Court has very succinctly
explained how to interpret the electoral rolls provisions. It would
be an apt to take note of relevant observations made by the Hon’ble
Apex Court as under:
“S.A. Bobde, C.J.– An interesting but important question of
far-reaching consequence arises for consideration in these
appeals. It is this. “Whether the vote cast by a Member of the
Legislative Assembly in an election to the Rajya Sabha, in the
forenoon on the date of election, would become invalid,
consequent upon his disqualification, arising out of a conviction
and sentence imposed by a criminal court, in the afternoon on
the very same day?”
20. One fundamental principle that we may have to keep in
mind while interpreting the phrase appearing in Section 8(3) is
that in cases of this nature, the Court is not dealing with a
fundamental right or a common law right. As pithily stated by
this Court in Jyoti Basu v. Debi Ghosal [Jyoti Basu v. Debi
Ghosal, (1982) 1 SCC 691] , an election dispute lies in a
special jurisdiction and hence it has to be exercised without
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importing concepts familiar to common law and equity, unless
they are ingrained in the statute itself. We may usefully extract
the relevant portion of the decision in Jyoti Basu [Jyoti Basu
v. Debi Ghosal, (1982) 1 SCC 691] which reads as follows:
“8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure and
simple, a statutory right. So is the right to be elected. So
is the right to dispute an election. Outside of statute, there
is no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they are, and
therefore, subject to statutory limitation. An election
petition is not an action at common law, nor in equity. It
is a statutory proceeding to which neither the common
law nor the principles of equity apply but only those rules
which the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to be
exercised in accordance with the statute creating it.
Concepts familiar to common law and equity must
remain strangers to Election law unless statutorily
embodied.”
[29] A landmark decision in the case of Election
Commission of India vs. Ashok kumar reported in (2000) 8 SCC
216, the Hon’ble Apex Court has laid down the principles
governing the field of election dispute. The same can be thus
quoted as under:
“28. Election disputes are not just private civil disputes between
two parties. Though there is an individual or a few individuals
arrayed as parties before the Court but the stakes of thePage 79 of 94
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constituency as a whole are on trial. Whichever way the lis
terminates it affects the fate of the constituency and the citizens
generally. A conscientious approach with overriding
consideration for welfare of the constituency and strengthening
the democracy is called for. Neither turning a blind eye to the
controversies which have arisen nor assuming a role of
overenthusiastic activist would do. The two extremes have to be
avoided in dealing with election disputes.
32. For convenience sake we would now generally sum up our
conclusions by partly restating what the two Constitution
Benches have already said and then adding by clarifying what
follows therefrom in view of the analysis made by us
hereinabove :-
1) If an election, (the term ‘election’ being widely interpreted so
as to include all steps and entire proceedings commencing from
the date of notification of election till the date of declaration of
result) is to be called in question and which questioning may
have the effect of interrupting, obstructing or protracting the
election proceedings in any manner, the invoking of judicial
remedy has to be postponed till after the completing of
proceedings in elections.
2) Any decision sought and rendered will not amount to “calling
in question an election” if it subserves the progress of the
election and facilitates the completion of the election. Anything
done towards completing or in furtherance of the election
proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well-
settled parameters which enable judicial review of decisions of
statutory bodies such as on a case of mala fide or arbitrary
exercise of power being made out or the statutory body being
shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of
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the election proceedings, judicial intervention is available if
assistance of the Court has been sought for merely to correct or
smoothen the progress of the election proceedings, to remove the
obstacles therein, or to preserve a vital piece of evidence if the
same would be lost or destroyed or rendered irretrievable by the
time the results are declared and stage is set for invoking the
jurisdiction of the Court.
5) The Court must be very circumspect and act with caution
while entertaining any election dispute though not hit by the
bar of Article 329(b) but brought to it during the pendency of
election proceedings. The Court must guard against any attempt
at retarding, interrupting, protracting or stalling of the election
proceedings. Care has to be taken to see that there is no attempt
to utilise the Court’s indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for achieving
an ulterior or hidden end. Needless to say that in the very
nature of the things the Court would act with reluctance and
shall not act except on a clear and strong case for its
intervention having been made out by raising the pleas with
particulars and precision and supporting the same by necessary
material.” (emphasis supplied)
[30] In a recent decision in the case of Juna Jampura Kala
Kapas Utpadak Ane Rupantar Sahakari Mandali Ltd. vs. State of
Gujarat [R/Special Civil Application No.6685 of 2025 and allied
petitions decided on 20th June 2025], this Court, in para 27, has
held thus as under:
“[27] On careful consideration of the aforesaid decisions,
this Court can deduce the following points:
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(i) Election dispute lies in a special jurisdiction;
(ii) Election dispute is not a general civil dispute;
(iii) Right to elect and right to be elected are not the
fundamental right, but purely a statutory right and likewise
right to challenge the election is also a statutory right;
(iv) Election Petition is a statutory proceedings to which neither
a common law nor the principle of equity applies, but only those
Rules made by the statute are applicable;
(v) Judicial review of any order passed by the Authorized Officer
during the process of election is although permissible by
invoking the provisions under Article 226 of the Constitution of
India, but said intervention is also subject to a rider that in only
special and extraordinary circumstances, if so arises, or in case
where order is absolutely without jurisdiction or ultra vires in
nature;
(vi) Even if an order allegedly said to be an illegal in wake of
some breach of some Rules or any illegality while preparing the
voters list, in that event also, intervention of the High Court
under Article 226 of the Constitution of India is not expected;
(vii) Most importantly, inclusion and exclusion from the voters
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list cannot be said to be any special and / or extraordinary
circumstances.”
[31] Keeping in mind the aforesaid exposition of law, let’s
advert to the questions formulated by this Court. Question Nos.(i)
and (ii) are being interconnected and thus, shall have to be decided
together. So as to decide the questions Nos.(i) and (ii), it is
necessary to consider the provisions of Section 11(1)(i) of the
Gujarat Agricultural Produce and Marketing (Promotion and
Facilitation) Act, 1963, which reads thus as under:
“11. Constitution of market committee.
(1) Every market committee shall consist of the following
members, namely:-
(i) [ten agriculturists having land as such], whose names are
enlisted in the voters’ list published by the Election Commission
of India for such market area, shall be elected by the numbers of
managing committee of the Primary Agriculture Credit Co-
operative Societies dispensing agricultural credit in the market
area;”
[32] On bare perusal of the provisions of Section 11(1)(i) of
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the A.P.M.C. Act would reveal that to become qualify to be a voter
in the agriculturist constituency, the first requirement is that the
Society has to be Primary Agriculture Credit Cooperative Society
and the said Society should be dispensing agricultural credit in the
market area. Thus, Primary Agriculture Credit Cooperative Society
shall only be qualified if the Society is dispending agricultural
credit in the market area. Pertinently, the said provision, although
underwent amendment, so far as constituency with regard to
traders’ community and marketing society concerned by way of
adding detail qualifying factors, Section 11(1)(i) has not been
amended drastically by the legislature but only the word
“cooperative societies” came to be replaced by the words “Primary
Agriculture Credit Cooperative Society”. Importantly, the words,
“dispensing agricultural credit in the market area” have not
underwent any changes. The intention of the legislature appears to
be clear that in the agriculturists constituency, the Societies, those
are having registration of Primary Agriculture Credit Cooperative
Society, can be qualified if dispensing agricultural credit. Thus, the
words “dispensing agricultural credit” has been kept intact even
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after major amendment brought in Section 11 as a whole.
Legislature has not amended “dispensing agricultural credit” by
adding any further qualifying rider such as such dispensation of
agricultural credit has to be three-tier, such dispensation has to
have past record in preceding years, such dispensation of credit
cannot be by way of any private fund of the Society, etc.
[33] In view of the aforesaid, only criteria is that the Society
has to be registered as Primary Agriculture Credit Cooperative
Societies. Primary Agriculture Credit Cooperative Societies is not
defined in the A.P.M.C. Act, but, the same has been defined in the
Gujarat Cooperative Societies Act by way of Section 2(7-A). The
same can be thus worth quoted as under:
“2. Definitions. In this Act, unless the context otherwise
requires,–
…
(7A) “co-operative credit structure” means (i) the Primary
Agricultural Credit Co-operative Societies; (ii) the Central Co-
operative Banks; and (iii) the State Co-operative Bank;”
[34] Considering the aforesaid provisions, as per the
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Cooperative Societies Act, any of the three categories stated
hereinabove, can be said to be the Cooperative Credit Structure.
Thus, if the Society is registered under the Primary Agriculture
Credit Cooperative Societies, the same would fall within the
definition of Section 2(7-A) of the Gujarat Cooperative Societies
Act i.e. the Cooperative Credit Structure.
[35] At this stage, in my view, the provisions of Section 44A
of the Gujarat Cooperative Societies Act is also worth taking note
of. The same can be thus read as under:
“[44A. Power of Committee of cooperative credit structure.
Notwithstanding anything contained in this Act or the rules or
the byelaws made thereunder, the committee of every society in
a co-operative credit structure shall have freedom to decide its
financial and administrative matters, especially;
(i) interest rates on deposits and loans, subject to the
directives issued by the Reserve Bank of India;
(ii) borrowing, investment, depositing its surplus funds,
loaning policies (including individual loans) and other
business policies;
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(iii) personnel policies including issues relating to recruitment,
promotion, staffing, training, posting and compensation
to staff as per business requirement of the society;
(iv) internal checks and control systems, appointment of
auditors, their compensation and other internal
administrative issues; and
(v) borrowing from any financial institution regulated by the
Reserve Bank of India, keeping in mind the interest of the
society and its members.”
[36] Considering the aforesaid provisions, it appears that the
committee of every society, in a cooperative credit structure, shall
have freedom to decide its financial and administrative matters,
which includes borrowing, investment, depositing its surplus funds,
loaning policies (including individual loans) and other business
policies. Thus, it appears that as per the Cooperative Societies Act,
the Societies, falling within the Cooperative Credit Structure,
statutorily empowers to advance loan.
[37] Now, I would like to proceed with questions Nos.(i) and
(ii) by keeping in mind the principal argument advanced by the
learned Senior Advocate appearing for the petitioner that to be
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qualified as a voter under the provisions of Section 11(1)(i), the
Society must dispense agricultural credit following three-tier
system; Society must have dispensation in a retroactive nature and
that single transaction of dispensation in the eve of election is not
permissible and dispensation of agricultural credit from the private
fund of the Society cannot be said to be actual dispensation of
agricultural credit. In my view, the said contention raised by the
learned Senior Advocate for the petitioner is not worth accepting. I
say so because plain reading of the provision of Section 11(1)(i)
would make it clear that to become eligible voter in the
agriculturists constituency, the Society must have registration as
Primary Agriculture Credit Cooperative Societies. The said Society
has to have dispensation of agricultural credit in the market area.
The statutory provisions do not have any stipulation with regard to
any additional qualification criteria such as dispensation of credit
shall be by following three-tier system, such dispensation has to
have specified preceding years or dispensation of credit through
Cooperative Bank and not by the private fund. In the said
provisions, the words “dispensing agricultural credit in the market
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area” have not been amended while the words “Cooperative
Societies” came to be amended by replacing the words “Primary
Agriculture Credit Cooperative Societies”. Therefore, if the Society
is registered under Primary Agriculture Credit Cooperative Societies
and if the said Society is dispensing agricultural credit in the
market area, then the Society would become qualify to be a voter.
Thus, if the contention of the learned Senior Advocate for the
petitioner is accepted, then it would be amounting to rewriting a
section by adding words such as “three tier system”, “retroactive
dispensation of credit and / or dispensation in preceding year” and
“dispensation of credit with no private fund”, which is not
permissible in the eye of law. Under the circumstances, the
contention raised by the petitioner is not worth acceptable and is
hereby rejected.
[38] In addition to the aforesaid, on perusal of the
provisions of Section 2(7-A) and Section 44A of the Cooperative
Societies Act, if the Society is registered as Primary Agriculture
Credit Cooperative Societies, then it would fall within the definition
of “cooperative credit structure” and thereby, they are free to
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decide their own policy with regard to loan, etc. In the instant case,
even as per the bye-laws of the Societies, loan, by way of private
fund, is also permissible and thereby, as per the statute, if the
Primary Agriculture Credit Cooperative Societies is entitled to give
advances to its members from its private fund and if the same is
statutorily permitted, in that event, if the Primary Agriculture
Credit Cooperative Societies is disqualified, on that ground, it
would be against the provisions of the Cooperative Societies Act. In
view of the aforesaid, in my considered opinion, if the entire
provisions of Sections 11(1)(ii) and (iii) are considered, it would
appear that the legislature has brought drastic change in Sections
11(1)(i), (ii) and (iii) by adding number of conditions to be
fulfilled to become a qualified voter. Whereas, in Section 11(1)(i),
the legislature has not disturbed the words “dispensing agriculture
credit in the Market Committee”, but only changed the status of the
Cooperative Societies to Primary Agriculture Credit Cooperative
Societies. Therefore, in my considered opinion, when there is no
stipulation and / or condition attached by the legislature in Section
11(1)(i) with regard to “dispensing agricultural credit in the
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market area”, this Court cannot interpret the said words, which
would amount to rewriting the provisions of law under Article 226
of the Constitution of India. Hence, in my view, if the Primary
Agriculture Credit Cooperative Societies dispensing agricultural
credit in the market area, either by its own fund or through any
District Cooperative Banks, would be meeting the criteria of words
used “dispensing agricultural credit in the market area” in the
provisions of Section 11(1)(i). Further, in the said provisions,
unlike sub-section (ii) and (iii) of Section 11(1), no insertion of
qualification rider, there is no past dispensation of credit prescribed
in the preceding year, thus, if such dispensation of credit is made
before the declaration of election, may be for the first time, cannot
be said to be disqualified merely the same was done near the date
of declaration of election. In the peculiar facts of the present case,
it is not the case that any Outgoing Managing Body, by misusing
their powers, advanced agricultural credit with a view to become a
qualified voter since past one year the Market Committee being
managed by the Administrator and in case of recent dispensation,
the same is being through the independent Body such as District
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Bank.
I answer the questions Nos.(i) and (ii) accordingly.
[39] So far as question No.(iii) is concerned, recently, this
Court, in the case of Juna Jampura Kala Kapas Utpadak Ane
Rupantar Sahakari Mandali Ltd. (supra), has considered the
provisions of Rule 28 by keeping in mind the decision of the Full
Bench in the case of Daheda Group Seva Sahakari Mandli
Limited (supra) and it has held thus as under:
“[27] On careful consideration of the aforesaid decisions,
this Court can deduce the following points:
(i) Election dispute lies in a special jurisdiction;
(ii) Election dispute is not a general civil dispute;
(iii) Right to elect and right to be elected are not the
fundamental right, but purely a statutory right and
likewise right to challenge the election is also a statutory
right;
(iv) Election Petition is a statutory proceedings to which
neither a common law nor the principle of equity applies,Page 92 of 94
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but only those Rules made by the statute are applicable;
(v) Judicial review of any order passed by the Authorized
Officer during the process of election is although
permissible by invoking the provisions under Article 226
of the Constitution of India, but said intervention is also
subject to a rider that in only special and extraordinary
circumstances, if so arises, or in case where order is
absolutely without jurisdiction or ultra vires in nature;
(vi) Even if an order allegedly said to be an illegal in
wake of some breach of some Rules or any illegality while
preparing the voters list, in that event also, intervention
of the High Court under Article 226 of the Constitution of
India is not expected;
(vii) Most importantly, inclusion and exclusion from the
voters list cannot be said to be any special and / or
extraordinary circumstances.”
[40] Over and above, so far as the contention raised by the
learned Senior Advocate for the petitioner with regard to non-
compliance of the principles of natural justice and with regard to
‘Hawala’ entry and the allegation of ghost societies are, in my
view, serious disputed questions of facts and thus, the same can
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only be decided on the basis of the evidence led before the
appropriate authority in an Election Petition under Rule 28.
[41] Accordingly, in my opinion, under Article 226 of the
Constitution of India, this Court would not like to exercise its
extraordinary jurisdiction in the case on hand, more particularly,
when inclusion and / or exclusion in the voters list is not falling in
the category of special and / or extraordinary circumstances.
[42] For the foregoing reasons, all these petitions are not
entertained and hereby dismissed. Rule is discharged.
(NIRAL R. MEHTA,J)
CHANDRESH
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