Skip to content


Rameshbhai Dalsangbhai and ors. Etc. Vs. the Director, Agriculture Market and Rural Finance Office and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 1227 to 1232, 1242, 1243, 1252 and 1253 of 1996
Judge
Reported inAIR1997Guj1; (1996)2GLR165
ActsGujarat Agricultural Produce Markets Act, 1964 - Sections 2, 6, 8, 11, 11(1), 27, 28 and 59; Gujarat Agricultural Produce Markets Rules, 1965 - Rules 5, 5(1), 6, 7, 7(1), 7(2), 8, 8(1), 8(1A), 8(2), 11 to 17, 18 to 27, 28, 28(1), 56 and 76; Constitution of India - Articles 14, 19, 32, 226 and 227; Gujarat Co-operative Societies Act, 1961; Gujarat Co-operative Societies (Amendment) Act, 1962; ;Citizenship Act; Representation of the People Act, 1950; Representation of the People (Amendment) Act, 1951
AppellantRameshbhai Dalsangbhai and ors. Etc.
RespondentThe Director, Agriculture Market and Rural Finance Office and ors.
Appellant Advocate B.S. Patel, Adv. in Special Civil Appln. Nos. 1227 to 1232, 1242 and 1243 of 1996 and; K.S. Jhaveri,
Respondent Advocate M.R. Anand, Govt. Pleader,; K.M. Mehta, Adv.,; P.M. Thak
Cases ReferredSales and Purchase Union Ltd. v. State of Gujarat
Excerpt:
election - voters list - sections 2, 6, 8, 11, 27, 28 and 59 of gujarat agricultural produce markets act, 1964, gujarat co-operative societies act, 1961 and representation of the people act, 1950 - petition filed challenging deletion of petitioners names from final voters list - petitioners names were included in preliminary as well as provisional list issued for constituency of agriculturists - in such circumstances deletion of petitioners names by election officer from final list was illegal - election officer acted without authority - order of deletion of names from final list accordingly set aside. - - 1229, 1230 and 1231 are concerned, their names were included in the preliminary list dated 2nd january 1996 as well as the provisional list dated 19th january 1996 for the.....orderm.s. shah, j. 1. all these petitions raise certain common questions of-law and challenge deletion of the petitioners' names from the final lists of voters in different constitutencies for elections to agricultural produce market committee, visnagar (hereafter referred to as 'the apmc'). at the joint request of the learned counsels for all the parties, the petitions are therefore heard together and are being disposed of by this common judgment.2. before examining the grievances of the petitioners and the defences raised by the respondents, it is necessary to have a look at certain provisions of the gujarat agricultural produce markets act ('the act' for brevity) and the gujarat agricultural produce markets rules, 1965, ('the rules' for brevity). section 2 of the act contains.....
Judgment:
ORDER

M.S. Shah, J.

1. All these petitions raise certain common questions of-law and challenge deletion of the petitioners' names from the final lists of voters in different constitutencies for elections to Agricultural Produce Market Committee, Visnagar (hereafter referred to as 'the APMC'). At the joint request of the learned counsels for all the parties, the petitions are therefore heard together and are being disposed of by this common judgment.

2. Before examining the grievances of the petitioners and the defences raised by the respondents, it is necessary to have a look at certain provisions of the Gujarat Agricultural Produce Markets Act ('the Act' for brevity) and the Gujarat Agricultural Produce Markets Rules, 1965, ('the Rules' for brevity). Section 2 of the Act contains definitions some of which read as under:

'agricultural produce' means all produce, whether processed or not, of agriculture, horticulture and animal husbandry, specified in the Schedule.

(v) 'co-operative marketing society' means a society registered or deemed to be registered as such under the Gujarat Cooperative Societies Act, 1961 (Guj. X of 1962), and engaged in the business of buying or selling of agricultural produce and holding a licence;

(vi) 'Director' means the Director of Agricultural Marketing and Rural Finance, Gujarat State;

(vii) 'general commission agent' means a trader who bona fide buys or sells or offers to buy or sell for an agreed commission, any agricultural produce on behalf of another person and does or offers to do anything necessary for completing and carrying out the transaction of such sale or purchase;

(ix) 'licence' means a licence granted under Section 6 or, as the case may be, a general of special licence granted under Section 27;

(xviii) 'retail sale' means a sale of any agricultural produce not exceeding such quantity as a market committee may by bye-laws determine to be a retail sale in respect of such agricultural produce.

(ix) 'rules' means rules made under Section 59;

(xxii) 'trader' means any person, who carries on the business of buying or selling of agricultural produce or of processing of agricultural produce for sale and includes a Co-operative Society, joint family or an association of persons, whether incorporated or not, which carries on such business;

Section 11 of the Act reads as under.

'11. Constitution of market committee,

(1) Every market committee shall consist of the following members, namely:--

(i) eight Agriculturists who shall be elected by members of managing committees of co-operative societies (other than cooperative marketing societies) dispensing agricultural credit in the market area;

(ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences;

(iii) two representatives of the Co-operative marketing societies situate in the market area and holding general licences, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees 6f such societies.'

3. Section 27 provides for issuance, renewal, suspension or cancellation etc of licences to traders, general commission agents etc and also for appeals against refusal, suspension etc of licences. Section 28 empowers the market committee to levy and collect fees on the agricultural produce brought or sold in the market area through such agents as it may appoint. Section 8 read with Rule 56 prohibits persons from carrying on the business as a trader or as a general commission agent in agricultural produce in any market area without holding the licence obtained from the market committee. Section 59 empowers the State Government to frame rules for the purpose of carrying out the provisions of the Act including for the purpose of preparation and revision of list of voters for the purpose of any election under Section 11, determination of the disputes arising in such election etc. Schedule to the Act enumerates the various commodities which are considered to be agricultural produce including cereals, pulse, oil seeds, vegetables, animal husbandry products, condiments, spices etc.

4. In exercise of powers conferred by Section 59 of the Act, the State Government has framed the rules. Rule provides that whenever a general election of a market committee is to be held, the Director shall, by an order in writing, fix a date of such election and publish such order. Rule 5 of the Rules provides for three separate lists of voters as under.

(i) A list of members of managing committees of co-operative societies dispensing agriculture credit in the market area; under Section 11(1)(i)

(ii) A list of traders holding general licences in the market; under Section 11(1)(ii) and

(iii) A list of members of managing committees of co-operative marketing societies situated in the market area holding general licences; under Section 11(1)(iii).

Rule 6 states that a person whose name is entered in the list of voters shall be qualified to vote at an election to which list of voters relates. Rules 7, 8 are relevant for the purposes of present group of petitions and therefore they are quoted verbatim.

'7. Preparation of list of voters for general election. (1) Whenever a general election to market committee is to be held:--

(i) every co-operative society dispensing agricultural credit in the market area shall communicate the full names of the members of its managing committee together with the place of residence of each members;

(ii) the market committee shall communicate the full names of the traders holding general licenses in the market are together with the place of or residence of each such trader; and

(iii) every Co-operative Marketing Society shall communicate the full names of the members of its managing committee together with the place of residence of each such member.

to the authorised officer before such date as the Director may by order fix in that behalf :

Provided that the date to be so fixed shall not be later than sixty days before the date of the general election. (2) The authorised officer shall within seven days from the date fixed under Sub-rule (1) cause to be prepared the lists of voters as required by Rule 5 on the basis of the information received under Sub-rule (1) and, if necessary, after making such inquiry as he may deem fit.

(3) Every list of voters shall show the full name, place of residence and the serial number of each voter.

'8. Provisional and final publication of lists of voters.

(1) As soon as a list of voters is prepared under Rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.

(1-A) After receiving applications, if any, under Sub-rule (1) a revised draft list of voters shall be published by the authorised officer by affixing a copy thereof on the notice board of Agricultural Produce Market Committee and at some conspicuous place in the principal market yard of the market area, along with a notice stating that any person who wishes to raise any objection against any new name entered in this list, may apply within seven days from the date of publication of this notice to the authorised officer for amendment in the revised draft list of voters.

(2) If any application is received under Sub-rule (1-A), the authorised officer shall decidethe same and shall cause to be prepared andpublished the final list of voters, after makingsuch amendments therein as may be necessaryin pursuance of the decision given by him onthe application. The final list shall be prepared at least thirty days before the date fixedfor the nomination of candidates for theelection.'

5. It may be mentioned at this stage that the provisions of Rule 8 came to be amended with effect from 17th June 1989 and the aforesaid Rule 8 is after the amendment. However, prior to that amendment, Rule 8 read as under:

'8. Provisional and final publication of lists of voters.

(1) As soon as a list of voters is prepared under Rule 5, it shall be published by the authorised officer by affixing a copy thereof at the office of the market committee and at some conspicuous place in the principal market yard in the market area along with a notice stating that any person whose name is not entered in the list of voters and who claims that his name should be entered therein or any person who thinks that his name or the name of some' other person has been wrongly entered therein or has not been correctly entered, may, within fourteen days from the date of the publication of the notice, apply to the authorised officer for an amendment of the list of voters.

(2) If any application is received under Sub-rule (1), the authorised officer shall decide the same and shall cause to be prepared and published the final list of voters, after making such amendments therein as may be necessary in pursuance of the decision given by him on the application. The final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election.'

6. Rules 11 to 17 provide for procedure for filing nomination papers, scrutiny and decision on nominations and withdrawal of candidature. Rules 18 to 27 deal with the procedural part and we are not concerned with the said Rules in the present group of petitions. Rule 28 reads as under :

'28. Determination of validity of election. (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing:--

(a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and

(b) to the State Government if the election has been conducted by the Director as an Election Officer and

(2) On receipt of an application under Sub-rule (1), the Director or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director of the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.'

This, in brief, is the scheme of the Act and the Rules relevant for the purposes of the present group of petitions.

7. The election program for the general election of Agricultural Produce Market Committee, Visnagar, was published by the Director fixing the various stages of the election. The said election program is as under:

ELECTION PROGRAMMES. No. DateParticulars Relevant Rule1

16-12-1995Declaration of Election Program216-12-1995Authorised Officer (ElectionOfficer) to inform the APMC to communicate full names of persons to be included in the lists of voters. 7(2)2A26-12-1995APMC tocommunicate the full name with the address of the persons to be included in the list ofvoters. 302-01-1996Authorised Officer to publish1st provisional list i.e. preliminary listof voters with a notice inviting applicationsfor amendment i.e. objections.7(2) 8(1) 416-01-1996Last datefor submitting objections against the preliminary list. 8(1)4(a) 19-01-1996 Publicationof revised draft list of voters (i.e. provisional list) with a notice invitingobjections. 8(1A)4(b)02-02-1996Thelast date for submitting objections against the revised draft list (i.e. provisional-list.) 8(1A)507-02-1996 Publication of final list of voters. 8(2)610-03-1996Date of filing nomination papers. 10(2)710-03-1996Provisional Publication of list of candidates. 14811-03-1996Scrutiny of nominations. 15914.03-1996 Withdrawal of candidature 17(1)1014-03-1996Final publication of the list of candidates.17(2)1122-03-1996Polling. 181223-03-1996Counting of votes. 1813Immediatelyafter counting of votes. Announcement of election results. 21

8. The learned advocates for the petitioners have given the following figures about the number of persons whose names were included in the preliminary list dated 2nd January 1996, provisional list dated 19th January 1996 and the final list dated 7th February 1996 in constituency of traders and in the constituency of members of the managing committee of the co-operative societies dispensing agricultural credit ('agriculturists' constituency' for brevity). The following is the chart :

CHART

Constituency of Traders

Constituency of Agriculturists

Preliminary List 02-01-1996

620

479

Provisional List 19-01-1996

550 (109 deleted 24 added)

501 (33 added deleted)

Final List 07-02- 1996

453 (62 moredeleted)

444 (59 deleted)

9. At the hearing of the present group of petitions, in view of the contentions raised by the learned advocates for the petitioners and in view of the difference in the nature of controversy, the petitions have been divided into two groups, namely, Group-1 consisting of Special Civil Applications Nos. 1229,1230, 1231, 1242 and 1243 of 1996, and Group-II consisting of Special Civil Application Nos. 1227, 1228, 1232, 1252 and 1253 of 1996.

The first group of petitions consists of petitioners where the petitioners' names were included in both the Preliminary List dated 2nd January 1996 and Provisional List dated 19th January 1996 but excluded from the final list dated 7th February 1996. The second group comprises of petitions where petitioners' names figured either in the preliminary list or in the provisional list but were deleted in the final list of voters.

GROUP-I

10. As far as the petitioners of Special Civil Application Nos. 1229, 1230 and 1231 are concerned, their names were included in the preliminary list dated 2nd January 1996 as well as the provisional list dated 19th January 1996 for the constituency for agriculturists, but their names were deleted in the final list of voters dated 7th February 1996.

As far as the petitioners of Special Civil Application Nos. 1242 and 1243 are concerned, their names were included in the preliminary list as well as in the provisional list for the constituency of traders, but their names were excluded from the final list of voters published on 7th February 1996.

GROUP-II

11. Special Civil Application Nos. 1227, 1228 and 1232 of 1996 pertain to the constituency for agriculturists. The names of the petitioners of these petitions were not included in the preliminary list dated 2nd January 1996 and therefore they submitted their objections. Pursuant thereto, their names came to be included in the provisional list dated 19th January 1996. However, when the final list of voters was published on 7th February 1996 their names were deleted from the final list of voters.

Special Civil Application Nos. 1252 and 1253 of 1996 pertain to the constituency of traders. The names of the petitioners in these two petitions were included in the preliminary lists dated 2nd January 1996 but pursuant to the objections raised by other persons their names came to be deleted in the provisional list dated 19th January 1996. They submitted their representations on or about 25th January 1996 but, their names were excluded from the final list of voters also.

12. The aforesaid classification can, therefore, be summed up as under:

GROUP-I

SCA Nos.

Constituency

Controversy

1229, 1230 and 1231

Agriculturists

Petitioners'names included in the preliminary list dated 2-1-96 as well 'as in the provisional listdated 19-1-96 but, their names have beendeleted from the final list dated 7-2-96.

1242,1243

Traders

-do-

GROUP-II

1227, 1228,1232

. Agriculturists

Petitioners'names not included in the preliminary list dated 2- 1 -96, their names were included in theprovisional list dated 19-1-96 but,their names were deleted from final listdated 7-2-96.

1252 and 1253

Traders

Petitioners'names were included in the preliminary list dated 2-1-1996, but their names were deleted in the provisional list dated 19-1-96. Their names werealso not included in the final list dafed 7-2-96.

13. In response to the notices issued by the Court in the present group of petitions in the second week of February 1996, the respondents-authorities have appeared and Mr. B. P. Pandya, Competent Officer and Cooperative Officer (Marketing) in the office of the District Registrar, Co-operative Societies, Mehsana, has filed three affidavits, that is, affidavit dated 7th March 1996 in Special Civil Application No. 1228 of 1996, affidavit dated 7th March 1996 in Special CivilApplication Nos. 1229, 1230 and 1231 of 1996 and affidavit dated 6th March 1996 in Special Civil Applications Nos. 1252 and 1253 of 1996. I have heard Mr. M. R. Anand, Senior Government Pleader, with Mr. K. M. Mehta, Assistant Government Pleader, for the respondent-authorities.

Mr. Deepakbhai Joitaram Patel was joined as the newly added respondent in each of the present group of petitions in view of the applications filed by him wherein he had submitted that pursuant to his objections to the preliminary lists and also subsequent objections after the publication of the provisional lists, the names of some of the petitioners have been excluded from the final list of voters. I have heard Mr. P.M. Thakkar, Senior Advocate appearing for the said party.

Mr. B. S. Patel has represented the APMC, Visnagar, which is respondent No. 4 in Special Civil Application Nos. 1252 and 1253 of 1996. On behalf of the APMC,Mr. Patel has craved leave to refer to and rely upon the averments made in Special Civil Application No. 816 of 1996 which was filed by the APMC, Visnagar, for challenging the deletion of names from the provisional lists but the said petition was rejected by this Court's order dated 6-2-1996 only on the ground that the APMC had no locus standi and that only affected individuals could file such petitions.

CONTENTIONS OF THE PETITIONERS

14. At the hearing of the petitions, Mr. B. S. Patel, learned counsel for the petitioners in Group-I petitions i.e. in Special Civil Application Nos. 1229 to 1231,1242 and 1243 of 1996, raised the following contentions which are peculiar to the said five petitions and which are not in-common with the contentions raised in the other petitions.

(1) Since the names of the petitioners were included in the preliminary list dated 2nd January 1996 as well as in the provisional list dated 19th January 1996, the authorised officer or the election officer (hereinafter to be referred to as the 'election officer') had no authority or jurisdiction to accept or to consider any objections against the names of the petitioners after 19-1-1996 and that the provisions of Sub-rule (1-A) and (2) of Rule 8 prohibited the election officer from receiving or considering the objections against the name of 'any person whose name was already included in the preliminary as well as in the provisional list, since Sub-rule (1 A) of Rule 8 only permits such objections' against any new name entered in this list (i.e. revised draft list known as provisional list dated 19-1-1996.)

(2) The election officer had no authority or jurisdiction to receive or consider objections against the petitioners after 19th January 1996 in view of the principles laid down by this Court in case of Desai Dharamsinhbhai Taljabhai v. B. J. Patel reported in AIR 1990 Guj 161 : 1989 (2) 30 Guj LR 1195.

(3) Since the impugned order excluding the petitioners names from the final list dated 7th February 1996 is an ultra vires order and is a nullity as being ex facie without jurisdiction, this Court should entertain their petitions without requiring them to exhaust the alternative remedy of approaching the Election Tribunal under Rule 28 of the Rules. (This submission is made in view of the preliminary contention raised by the respondents which will be mentioned hereinafter.) The petitioners have also relied upon the judgment of this Court in Special Civil Application Nos. 10547 to 10552 of 1994 decided on 2/6th September 1994.

(4) Mr. Jhaveri for the petitioners in Special Civil Application Nos. 125.2 and 1253 contended that the petitioners' case would not fall under the provisions of Rule 28 of the Rules because the names of the petitioners were excluded from the final list of voters and thus the election officer had already declared that the petitioners were not qualified as voters and therefore it is not open to the respondents to raise the preliminary contention that the petitioners have an alternative remedy under Rule 28 of the Rules.

(5) The exclusion of the petitioners names from the final list of voters published on 7th February 1996 for the respective constituencies is vitiated by breach of the principles of natural justice as the petitioners were not apprised of the objections, if any, against inclusion of the petitioners' names in the preliminary/provisional voters list and therefore the petitioners did not have a reasonable opportunity Of meeting with such objections. The petitioners have relied upon the judgment in the case of Lala Babu Hussain v. Electoral Registration Officer reported in AIR 1995 SC 1189.

(6) Once the petitioners in Special CivilApplication Nos. 1242, 1243, 1252 and 1253of 1996 were found to be holding generallicences for traders issued by the APMC andonce the APMC had issued the certificate thatthe concerned petitioners were licence holdersand traders while forwarding the lists underRule 7(1) of the Rules, it is not open to theelection officer to go behind the said certificate as the scheme of the Act and the Rulesprovide for such decisions being taken by theARMC subject to any appeal before theDirector.

(7) The election officer has misconstrued the provisions of the Act and the Rules in proceeding on the footing that grocers and other persons were not traders merely because the grocers may be selling other items over and above items of agricultural produce mentioned in the Schedule, since in small villages a general trader sells not merely items of agricultural produce such as cereals, pulses, spices etc. but also other items of daily requirement for the villagers.

(8) Mr. Patel as well as Mr. Jhaveri contended that in view of the affidavit-in-reply of the election officer and the stand taken at the hearing the election officer has also erred in excluding a large number of petitioners from the final list of voters on the ground that market cess was not paid by them although the liability to pay such market cess is not of the traders but of the general commission agents and that if such objections had been brought to the notice of the petitioners, the petitioners would have brought to the notice of the election officer the relevant provisions of the Act and Rules as well as the receipts of the market cess paid by the general commission agents of the concerned traders and that the petitioners are prepared to produce the same now also.

(9) Mr. Patel appearing for the petitioners in the six petitions relating to constituency for agriculturists has also contended that the election officer has also erred in excluding the members of the managing committees of some of the co-operative societies in the market area by going into the details about the volume and amounts of transactions handled by such societies without considering the fact that they were in rural areas and without apprising the petitioners of the objections against them.

(10) The petitioners have also alleged that the decision to exclude a large number of persons from the final list of voters is taken by the election officer at the instance of the Director who is directly under the political influence. The petitioners are supporters of Mr. Bholabhai Patel, Ex-Minister of Cooperation and Panchayat the political rivals of Bholabhai Patel have used their political influence for the deletion of the names of the petitioners.

SUBMISSIONS OFTHE RESPONDENTS

15. On the other hand, Mr. Anand and Mr. Thakkar, learned counsels for the respondents, have made the following submissions :

(a) The petitioners in all the ten petitions have the alternative remedy of approaching the Election Tribunal under Rule 28 and therefore this Court should not entertain any petition.

(b) The fact situation in the present group of petitions is similar to the fact situation in the case of Mehsana District Co-operative S & P Union, (1988) 2 Guj LH 149 : 1988 (2) Guj LR 1060. The contentions urged in the present group of petitions are also similar to the contentions urged in the aforesaid case where the Division Bench dismissed the petitions on the ground that all such contentions were required to be urged before the Election Tribunal under Rule 28 of the Rules and not before this Court under Article 226 of the Constitution.

(c) As regards the scope of Rule 28 of the Rules the persons claiming to be qualified to vote or to contest the elections are covered by Rule 28 and therefore, the petitioners can very much approach the Election Tribunal under Rule 28 of the Rules.

(d) The petitions also deserve to be dismissed as this Court had by order dated 5th April 1994 dismissed Special Civil Application No. 3299 of 1994 and other petitions where also the challenge made by those petitioners against the deletion of their names from the final list of voters was repelled on the ground that those petitions were also covered by the judgment of the Division Bench in the case of Mehsana District Co-operative S & P Union (supra).

(e) As far as the petitioners' contention regarding alleged breach of the principles of natural justice is concerned, similar contention was urged before the Division Bench in the aforesaid case and the Division Bench relegated those petitioners to the alternative remedy before the Election Tribunal and therefore this group of petitions also should not be entertained by this Court.

(f) As regards the contention that election officer cannot go behind the licence/ certificate issued by the APMC, it is submitted that the provisions of Rule 7(2) and Rule 8 of the Rules amply make it clear that the election officer is empowered to hold such inquiry as he thinks fit and he is also empowered to consider objections against the inclusion or exclusion of names of persons in/from the preliminary as well as in the provisional list.

(g) The definition of traders under the Act requires a person not merely to hold a general licence for traders but also to carry on business of buying or selling of agricultural produce and therefore the election officer was entitled to hold a fact finding enquiry to decide whether the petitioners were traders or not and that such findings of fact cannot be interfered with in a petition under Article 226 of the Constitution. In any case, this dispute can also be resolved by the Election Tribunal.

(h) Similarly, the election officer was entitled to hold inquiry regarding the operations alleged to be carried on by co-operative societies dispensing agricultural credit and to arrive at findings of fact as to which particular societies are really advancing credit and which are not.

(i) Lastly, the allegations of the political pressure are also denied. The election officer has filed detailed affidavit denying the allegations and contending that the impugned decisions to delete the petitioners from the final list of voters were taken after conducting personal inquiry either by himself or through his deputies who had gone to different scattered villages.

CONTENTION NO. 4

16. Before considering the other contentions of the petitioners, it is necessary first to deal with contention No. 4 urged by Mr. Jhaveri because, if the said contention is upheld, all the ten petitions would be required to be considered on merits. The argument of Mr. Jhaveri runs as under:

'Under Rule 28 a petition can be filed only by a person qualified either to be elected or to vote at the election to which such petition refers. Since the petitioners have been excluded from the final list of voters, the petitioners who are traders are neither qualified to vote nor to contest at the election. Hence, the petitioners cannot file an election petition under Rule 28 of the Rules. There is, therefore, no question of relegating the petitioners to such a remedy under Rule 28.'

The argument is throughly misconceived. Whenever an aggrieved person approaches the election tribunal challenging the validity of any election on any such issue, he goes with the claim, inter alia, that he was qualified to vote and to contest at the election but he was wrongly prevented by the election officer from voting or contesting at the election by a wrongful exclusion of his name from the list of voters. The election officer would resist such election petition by contending that his decision was right. It is then for the Tribunal to decide whether the claim of the election petitioner is right or wrong. Hence, the relevant portion of Rule 28(1) is required to be read as under.

'If the validity of any election of a member of the market committee is brought in question by any person (claiming to be) to be qualified either to be elected or to vote at the election to which such question refers, such person may apply in writing to the Director, if the election has been conducted by a person authorised by the Director to perform the function of an election officer.......'

'As per the settled legal position a statutory provision cannot be read so as to make it a tautology. If the interpretation canvassed by the petitioner is accepted, the provisions of Rule 28 would be rendered nugatory. Contention No. 4 urged by Mr. Jhaveri is therefore required to be rejected.

CONTENTION NO. 5

17. In view of the above, is clear that contention Nos. 5 to 10 urged on behalf of the petitioners are such that they are required to be considered by the election tribunal under Rule 28 after the election is over. For instance, the grievance regarding the alleged breach of principles of natural justice cannot be decided in vacuum. The questions as to what is the scope of principles of natural justice in such matters, what opportunity the petitioners actually had, how the petitioners availed of the said opportunity, whether the opportunity granted to the petitioners was adequate or not -- all these are questions which are required to be decided by the election tribunal after the elections are over.

Mr. Patel and Mr. Jhaveri, however, relied upon the judgment of the Hon'ble Supreme Court in the case of Lala Babu Husein (AIR 1995 SC 1189) (supra). The learned counsels contended that in the above case, the Apex Court had entertained a petition under Article 32 as the names of a large number of persons had been deleted from the voters list on violation of the principles of natural justice and also in violation of certain statutory provisions conferring the right to a reasonable opportunity of being heard.

As regards the above judgment, it is required to be noted that the said case arose out of denial of the rights of citizenship under the Constitution, the Citizenship Act and rights under the Representation of Peoples Act, 1950, and the consequent deletion from the list of voters. The said case, however cannot be compared with the instant case. As rightly contended by Mr. Thakkar, the said case before the Apex Court involved the dire consequence of depprtation from the country, whereas in the instant case the only consequence is deletion from the final list of voters. Moreover, in the case of Mehsana District Co-operative S & P Union (1988 (2) Guj LH 149) (supra), the Division Bench has already held in para 6 (GLH) of the judgment that the scheme of the Representation of the People Act, 1950, and the Representation of the People Act, 1951, is entirely different from the election scheme under the APMC Act and Rules and, therefore, the decisions in respect of the electoral rolls under the Representation of the People Act for elections to Parliament and Legislative Assemblies cannot be applied to the election disputes arising under the APMC Act and Rules.

17A. It is, however, required to be clarified at this stage that the above observations are only in the context of the scope of the principles of natural justice in the matter of deletion from the voters list for the elections to APMC. The respondent-authority shall not take any action adverse to the petitioners merely on the ground of deletion from the final list of voters.

CONTENTION NOS. 6 TO 9

18. Similarly, the contention that the election officer cannot go behind the licence and the certificate issued by the APMC in favour of a trader is not such a contention which is not debatable. Indeed, Mr. Anand and Mr. Thakkar have pointed out that Sub-rule (2) of Rule 7 of the Rules very much authorises the election officer to hold such inquiry as he may think fit, in the process of preparing the preliminary list. The provisions of Rule 8 also specifically empower the election officer to receive and entertain objections against the inclusion in exclusion from the lists of voters. It is open to the petitioners to raise such contentions before the Election Tribunal after the election is held. Similarly, the questions as to who can be said to be a trader or as to what extent a particular cooperative society should dispense agricultural credit to make the members of its managing committee eligible for inclusion in the list of voters are all eminently fit to be examined by the election tribunal under Rule 28.

18A. I, however, cannot help expressing the view that it appears that since the officers from the cooperation department are being appointed as the authorised officers i.e. election officers, all of them may not be fully conversant with the statutory provisions of the APMC Act and the Rules framed thereunder and also with the actual working of the APMC. It would, therefore, be desirable that the Director or appropriate authority in the State Government, frames some guidelines well in advance for the guidance of such election officers in the matter of preparation of the list of voters. This Court had an occasion to express its view in this regard in the judgment delivered in Special Civil Application No. 1757 of 1996, decided on 8th March, 1996.

CONTENTION NO. 10.

19. As far as the allegations of mala fidesare concerned, as observed by the DivisionBench in case of Mehsana District Co-operative S and P Union, (1988 (2) Guj LH 149)(supra), if the voters list is prepared onextraneous considerations, the forum createdunder Rule 28 of the Rules would be justifiedin looking into such allegations and the Courtmay not exercise its extraordinary jurisdiction in all cases where such bona fides aredoubted. In that case also allegations weremade against Shri Amarsinh Vaghela, thethen Minister for Cooperation that the exclusion of those petitioners from the voters' listwas under political pressure. Since these arematters which require factual evidence to beled, the election tribunal would be eminentlythe appropriate forum for looking into suchallegations.

CONTENTION NOS. 1 TO 3

20. That leaves only the first three contentions urged by Mr. Patel for serious consideration. It may be noted that the said three contentions are only in connection with the first group of petitions, that is, Special Civil Application Nos. 1229 to 1231 of 1996, (filed by the petitioners whose names were included both in the preliminary and provisional lists of voters for the constituency of agriculturists but whose names were excluded deleted from the final list of voters), and also in connection with Special Civil Application Nos. 3242 and 1243 of 1996 (filed by the petitioners whose names were included both in the preliminary as well as provisional lists of voters for the constituency of traders but whose names were deleted from the final list of voters.)

21. Mr. Anand and Mr. Thakkar for the respondents vehemently contended that on the question of availability of an alternative remedy and the applicability of the judgment of the Division Bench it makes no difference whether the persons' names were included either in one of the lists (preliminary or provisional) and excluded from the final list or whether the names of the persons were included both in the preliminary and provisional lists but excluded from the final list. According to the respondents, the fact situation before the Division Bench as narrated in paragraph 4 of the said judgment clearly shows that some of the petitioners in the cases before the Division Bench had their names included in the preliminary list dated 21st October 1987 as well as in the republished provisional list dated 7th Nov. 1987 but however, in the final list dated 25th Nov. 1987 their names were deleted and that 743 names were so deleted from the final list without being given any opportunity of contesting the objections, if any, before their names came to be deleted from the final list of voters. Similarly, in respect of the third constituency before the Division Bench the names of 97 persons were included in the preliminary list as well as in the provisional list but, names of 21 persons were deleted from the final list. Neither the said 21 persons nor the concerned societies were apprised of the objections, if any.

22. It is true that the Division Bench wasalso concerned with cases where the names ofpersons were included in the preliminary aswell as provisional lists but their names weredeleted from the final list. It is important toremember that what the learned counsel forthe petitioners in the said matters before theDivision Bench contended was (i) Rules 7 and8 (as then prevailing) did not provide for the stage of republication of preliminary list ofvoters, (popularly known as provisional list)and therefore the second preliminary listought to be treated as the final list for thepurposes of holding the elections; (ii) challenge to the validity of Rules 7 and 8 asviolative of Articles 14 and 19 of the Constitution, if the first contention was not accepted. The Division Bench dealt with thosecontentions in the following words:

'The contention of the petitioners is that Rules 7 and 8 do not contemplate the preparation and republication of a second preliminary list before the finalisation of the voters list and, therefore, the final list is not in conformity with the requirements of the said two Rules. In other words, the plea is that the action of the Authorised Officer in preparing and publishing a second preliminary list of voters is clearly inconsistent with the requirements of Rules 7 and 8 of the Rules. If Mr. Vakharia is right in this contention, the final list of voters may be quashed or the election held on the basis thereof may be set aside by the forum created under Rule 28 of the Rules. In that case the publication of the second preliminary list and consequently the finalisation of the voters list on the basis thereof may be declared ultra vires the Rules; but that cannot make the Rules ultra vires Art. 14 of the Constitution, if otherwise they are not so. It is not the contention of Mr. Vakharia that Rules 7 and 8 as they stand on the statute book are ultra vires either Articles 14 and 19 of the Constitution but what Mr. Vakharia argues is that if the action of the Authorised Officer is held to be consistent with the requirements of the said two Rules, then the Rules may be rendered ultra vires the Constitution. This is a hypothetical submission made by Mr. Vakharia which depends on what interpretation is put by the forum created under Rule 28 of the Rules while considering the submission that re-publication of a second preliminry list and inviting of objections thereon is inconsistent with Rules 7 and 8 of the Rules. This Court will not examine the validity of the concerned Rules on such hypothetical considerations. We are, therefore, of the opinion that we would not be justified in arresting the election process on this ground either.'

23. Mr. Patel submitted that two important developments have taken place after the aforesaid Division Bench judgment was rendered on 21-12-1987.

(a) The Division Bench had left the interpretation of Rules 7 and 8 to the Election Tribunal. In a subsequent matter arising after the decision of the Election Tribunal, this Court interpreted the said Rule in the case of Desai Dharmashala, AIR 1990 Gujarat 161.

(b) The provisions of Rule 8 of the Rules came to be amended with effect from 17th June, 1989. As per the above quoted amended Rule 8 read with Rule 7, there are following stages in the matter of the preparation of list of voters:

(i) The APMC/Coop. Societies shall communicate the full names of traders/ members of managing committees with the place of residence of each such person to the authorised officer before such date as the director may fix (26-12-1995 in the instant case.) (Rule 7(1).)

(ii) Within seven days thereafter, the election officer shall prepare the list of voters on the basis of information received from the APMC and, if necesssary, after making such inquiry, as he may think fit. (2-1-1995 in the instant case). This is popularly known as the preliminary list. (Rule 7(2)).

(iii) The preliminary list of voters is to be published by the election officer along with a notice inviting objections from persons.

(a) whose names are not entered in the list and who claim that their names should be entered therein,

(b) who think that their names or the names of some other persons have wrongly been entered therein, and

(c) whose names have not been correctly entered.

(2-1-1996 in the instant case) (Rule 8(1)).

(iv) The period for receiving the objections against the preliminary list of voters after the publication of notice is 14 days from the date of publication. (Last date 16-1-1996 in the instant case.) (Rule 8(1)).

(v) After considering the objections against the preliminary list the election officer has to prepare and publish a revised draft list of voters (popularly known as provisional list) along with a notice stating that any person who wishes to raise any objections against any new name entered in this list (i.e. revised draft list known as provisional list) within seven days from the date of publication of the notice, to the Election Officer for an amendment in the revised list of voters. (Rule 8(1 A)).

(vi) The election officer has to decide only such applications for amendment which he has received under above Sub-rule (1-A) and after deciding the same he has to prepare and publish the final list of voters after making such amendments therein as may be necessary in pursuance of the decision given by him on such applications under Sub-rule (1A). This is as per Rule 8(2).

24. The contention of Mr. B.S. Patel for the petitioners in the first group of petitioners is that the election officer had no authority or jurisdiction after 19th January, 1996 to receive or consider any objections against the names of the persons whose names were included in the preliminary list as well as in the provisional list, more particularly because Sub-rule (1 A) permits objections being lodged only against any new name entered in the provisional list. Since the names of the petitioners in the first group of petitions were already included in the preliminary list as well as in the provisional list, the election officer had no authority or jurisdiction to receive or consider any object against the petitioners' names and that therefore exclusion of the petitioners' names in the first group of petitions from the final list of voters was ex facie without authority and jurisdiction.

25. Mr. Patel further heavily relied on the judgment of this Court in the case of Desai Dharmsinh, AIR 1990 Guj 161 Interpreting old Rule 8 with Rule 7. Mr. Patel also submitted that some of the petitioners had already sent a letter dated 31-1-1996 (Annexure-F to SCA No. 1229 to 1231 of 1996) to the Election Officer making the above submissions and enclosing a xerox copy of the said judgment and also of Rule 8(1 A).

26. The reply on behalf of the respondents to the aforesaid submissions of Mr. Patel was to the effect that in the instant case the election officer had received a large number of objections against the names included in the preliminary list including the objections against the petitionres' names and that it was on account of the fact that the election officer was assigned with the duty of conducting the elections of many other societies and he was hard pressed for time that he could decide only some objections before 19th January, 1996 and that therefore, after publication of the provisional list the remaining objections came to be decided by him thereafter but before publication of the final voters' list on 7th Feb. 1996.

27. The Affidavit in reply dated 7-3-1996 filed on behalf of respondent-authorities, in Special Civil Application Nos. 1229, 1230 and 1231 of 1996, clearly indicates that the Election Officer had already taken decision on the objections lodged against the inclusion of the names of the petitioners (in the first group) in the preliminary list (This is also corroborated by the contents of notice dated 19-1-1996, which were read out by Mr. Patel at the time of hearing) and it was thereafter that the objectors persisted with their objections may be by giving additional material and, therefore, names of the petitioners which were already included in the preliminary list as well as in the provisional list came to be deleted by the Election Officer in the final list dated 7-2-1996. Paras 7 to 11 and para 21 of the said Affidavit read as under:

'7. I say that as per Rule 76, the respective Agricultural Societies have to send the voters list to me by 26th Dec. 1995. I say that thereafter preliminary voters list is published under Rule 7(2) on 2nd January 1996 along with the notice.

8. I say that as per Rule 8 addition and substitution can be done in the said voters list and applications are invited from applicants for addition or substitution in the said voters list within 14 days from that day i.e. on 16th January, 1996.

9. I say that after considering the aforesaid amendment, provisional voters list was published along with the notice dated 19th January 1996. The notice also stated that any person who wants to make representation against the said voters list can do the same upto 2nd Feb. 1996 with necessary evidence in writing.

10. I say that 2nd Feb. 1996 was the last date fixed for submitting objection against the published provisional voters list.

11. I say that such applicants who raised objections against first primary voters list dated 2nd January, 1996 and who have not satisfied for continued same names in provisional list had given such applications with evidence and urged to look in the matter with facts till 2nd Feb. 1996. On receiving such applications I have considered all representations in this behalf objectively after considering the evidence on record and after taking into consideration all relevant factors in this behalf.'

Relevant portion of para 21 reads as under:

'21 ...... I say that I cannot receive fresh applications from any new persons for inclusion of new names in the final voters list. But 1 say that such applicants who had given objections against primary voters list dated 2-1-1996 and who have not satisfied for continuing same names can give such application with evidence and request to look in the matter. On receiving such representations applications I have considered in this behalf objectively after considering the evidence on record and after taking into consideration all relevant factors in this behalf. ........'

28. A perusal of the affidavit-in-reply of the Election Officer clearly shows that while publishing the provisional list he had already rejected the objections against the inclusion of the names of the petitioners in the preliminary list, but since the objectors were not satisfied with the said decision, the same objectors submitted further objections or material against the same petitioners, hence as per his interpretation he cannot be said to have received any fresh objections.

However, at the hearing of the petitions, the contention is that objections which were pending on 19-1-1996 after the publication of the provisional list dated 19-1-1996' were decided. Even though such objections may not be fresh objections, the officer's action in reviewing his decision of continuing such names in the provisional list was patently without authority as the specific language or Sub-rule (1A) and (2) of Rule 8 shows that after the publication of the provisional list of voters on 19-1-1996 the officer could have received and considered only those objections which were filed against a person whose name was for the first time included in the provisional list i.e. against any new name entered in the provisional list. The impugned decision of the election officer to delete or exclude names of the petitioners from the final list of voters is ex facie without authority. In the case of Patan F & S S.M. Ltd., 1986 GUI LH 430 : (AIR 1987 Guj 33), a Division Bench of this Court has already held that (at p 43 of AIR):

'(1) Though the extraordinary jurisdiction of High Court under Arts. 226 and 227 of the Constitution is very wide, the Court should be slow in exercising the said jurisdiction where an alternative efficacious remedy under the Act is available. However, if the impugned order is an ultra vires order, or is a nullity as being ex facie without jurisdiction, the question of exhausting the alternative remedy could hardly arise.'

29. Let us assume that the submission made by the respondents at the time of hearing is correct, that is, the preliminary list was published on 2-1-1996, the last (date) for submitting the said objections was 16-1-1996 and after considering the said objections the provisional list was required to be published on 19-1-1996, i.e. hardly within 3 days, the officer was required to decide the objections on or before 19th January, 1996 but, because of pressure of a large number of objections, the officer could not decide all the objections before 19th Jan. 1996. He therefore decided some of the objections after 19th Jan. 1996 but, before publication of the final list on 7th Feb. 1996.

The learned counsels for the respondents therefore very persuasively urged that in view of the fact that the officer was so hard pressed for time and a large number of objections were filed, the delay in deciding the objections could not be held to be fatal and the consquent deletion of the petitioners' names from the final list is not such that it can be said to be ex facie illegal or without authority; at the most, there was some delay in deciding the objections and that the persons who had lodged their objections before 16th January, 1996 as well as the persons giving fresh material after 19th January, 1996 were the same objectors against the same disputed names. It was objectors against the same disputed names. It was further submitted that the objections were received prior to 16th January, 1996 and, therefore, the Court may not take a strict view of the matter and should not disturb the provisional finality granted to the decision of the election officer at each stage and relied on the following observations of the Division Bench in the aforesaid case of Patan F & S S.M. Limited, (AIR 1987 Guj 33) (supra) which were also followed by the Division Bench in the case of Mehsana District Co-op. S & P Union, (1988 (2) Guj LH 149) (supra) (at p 47 of AIR):

'In that views of the scheme of the Act, we are1 of the opinion that the preparation of electoral rolls is an integral part of the process of election. If that is so, the question as to whether the roll should be modified at the instance of persons claiming to be Voters or at the instance of persons objecting to the inclusion of the names of some persons in the voters list is a matter relating to election, and having regard to the fact that it is a right conferred under the Act for which a special remedy has been provided, the Court should not exercise the jurisdiction in the matter since there is a provisional finality in the matters pertaining to various stages of election, and therefore, having regard to he recognised principles in the matter of public importance that election should be concluded as early as possible according to the time schedule and all controversial matters as well as disputes arising out of the election including-the right to vote or stand as candidate should be postponed till after the elections are over so as to avoid impediment or hindrance in the election process does not arise.'

30. It is true that as far as the merits of the decision are cocnerned, the decision of the election officer at each stage of the election process is provisionally final, that is to say, it is final until it is upset by the election tribunal after the election is over. However, as far as the finality of the time schedule of each stage of the election programme is concerned, there is nothing provisional about it. It is absolutely final.

Let me explain this principle. Suppose 1st January, 1996 is the date fixed for filing nomination papers of the candidates. The scrutiny of the nomination forms is to be made on 3rd January, 1996 and 5th January, 1996 is the date for withdrawing the candidature. However, a prospective candidate who could not file his nomination papers within the stipulated time on 1st January, 1996 approaches the officer on reopening of the office on 2nd January, 1996, and makes a request for accepting his nomination as he could not file the nomination papers within time on account of certain circumstances beyond his control. Can the election officer accept the nomination form on the ground that in any case otherwise also the scrutiny is to take place on 3rd January, 1996 and that the list of candidates is to be finalised on 5th January, 1996? Neither the election officer nor the selection tribunal can entertain such a request of the prospective candidate. Indeed, if the election officer were to accept such nomination papers beyond time and include his name in the final list of candidates published on 5-1-1996, this Court would exercise its powers under Article 226 and would immediately intervene notwithstanding the availability of remedy before election tribunal after the election is over and notwithstanding the fact that the direction of the Court would amount to alternation of the final list of candidates prepared on 5-1-1996.

31. In short, the principle is clear that the final finality of the time-schedule of each stage of election programme is so important that the Courts have always enforced the said principle rigorously and it is in recognition of this principle that while the Courts have consistently refused to arrest the election programme at any stage, at the same time whenever this Court has intervened under Art. 226 on the ground that the decision of the election officer is found to be ex facie illegal or without jurisdiction, the Court has always taken care to see that the relief is granted without arresting the election process and well in time. In this connection reference may be made to the following principle laid down in case of Lajuben Jerambhai Bhil v. Ahmedabad Municipal Corporation reported in 1993 (1) GCD page 433 in paragraph 4 which is as under.

'4. It is true that once the election process has started, it should be allowed to be completed without any interference of the Court and ordinarily, the remedy is by way of election petition challenging the election. However, the question of rejection of nomination papers is such a question that if it can be resolved in proper time without disturbing the election process, the Court should try to see that it is resolved so that on that question, the entire election not only for one seat but for all the seats of that ward are not put into jeopardy and do not get set aside. However, if it is not possible to redress this grievance in time, the Court should refrain from interfering with the election process.'

In the aforesaid judgment reference is also made to other decisions of the Division Benches of this Court taking a view that it would be open to the High Court to resolve the question prior to election without requiring the petitioner to avail of the alternative remedy before the election tribunal after the election.

32. Even if the Election Officer might have been hard pressed for time and he might have received a large number of objections and he might have been busy with the work regarding elections to other societies, but he had no authority to make any deviation from the time schedule prescribed for the Election Programme as already discussed above. It is for the authority fixing the election programme or the rule making authority to consider this aspect for elections to be held in other market societies hereafter.

33. In Special Civil Applications Numbers 19347 to 10442 of 1994 decided on 2/6 Sept. 1994 when this Court found that the order of the election officer deleting the names of the petitioners from the list of voters was ultra vires or a nullity as being ex facie illegal, the Court directed the election officer to include the names of the petitioners in the list of voters before the elections and did not dismiss the petition on the ground that the petitioner should ventilate such grievance only before the election tribunal.

In the aforesaid case the learned single Judge of this court considered the various authorities including the decision of the Division Benches in the case of Patan F. & S.S.M. Ltd. v. Pali Shakbhaji S.M. Ltd., 1986 Guj LH 430 : (AIR 1987 Guj 33) and in the case of M.D. Co.-op. S. & P. Union v. State, 1988 (2) Guj LR 1060, Lajiben Jornambhai Bhil v. Ahmemdabad Municipal Corporation, 1993 (1) GCD 433 and the judgment of the Hon'ble Supreme Court inthe case of Gujarat University v. N.V. Rajguru reported in (1987) 5 JT (SC) 307 : 1988 (1) Guj LR 308 : (AIR 1988 SC 66) (SC) and after reviewing the aforesaid decisions the learned single Judge interfered with the decision of the Collector deleting the names of the petitioners from the Voters List.

34. It is also necessary to refer to the judgment of the learned single Judge of this Court in the case of Desai Dharamsinghbhai Taljabhai v. Babulal M. Jathalal Patel, AIR 1990 Guj 161 on which strong reliance has been placed by the petitioners. In that ease the facts were as under:

The date for publication of the preliminary lists of voters was fixed as 10-9-1985. The last date for submitting the applications/objections for additions and alternations in the preliminary lists was fixed as 24-9-1985. He fixed 27-9-1985 as the date for republication of the preliminary lists of voters prepared after considering the objections and suggestions. 11-10-1985 was the date fixed for submitting objections against the republished preliminary lists of voters. The date of publication of the final lists of voters was fixed as 16-10-1985.......The election was held n 30-11-1985 and the result was declared on 1-12-1985. In the meantime, between 10-10-1985 and 15-10-1985, eight co-operative societies dispensing agricultural credit in the market area had submitted their objectons to the list of voters for that constituency as published on 27-9-1985 and called upon the Authorised Officer to substitute the names of those who were elected as members of the Managing Committee and whose names are shown in the voters' lists. The Authorised Officer refused to entertain those objections on the ground that the stage fixed for entering or nor entering name of any person in the voters' list was already over and that publication, of the voters' list as prepared after considering the amendments, suggestions and objections was made on 27-9-1985. The aforesaid decision of the authorised officer (Election Officer) was challenged under Rule 28 of the APMC Rules. The Election Tribunal (Director) set aside the election of the petitioners and respondents Nos. 4 to 6.

In the Special Civil Application filed before this Court for challenging the order of the Election Tribunal, the decision of the authorised officer rejecting the objections filed beyond 24-9-1985 was upheld. The learned single Judge interpreted the provisions of unamended Rule 8 as under:

'10. In my opinion, what Sub-rule (1) of Rule 8 requires is that the Authorised Officer has to publish the preliminary lists of voters and fix a date for inviting objections. After receiving applications for amendment or objections, as they are often described, he has to republish the said lists along with with the proposed amendments, alterations or deletions and invite objections from the persons likely to be adversely affected by the said proposed amendments, alterations or deletions. Inviting objections is really in the nature of a hearing to be given to the persons who are likely to be affected thereby. This being the requirement of principles of natural justice, it has been read in Sub-rule (1) of Rule 8 and keeping that object in mind, it will have to be held that after the second publication of the preliminary lists of voters (provisional list) what is required to be done by the Authorised Officer is to hear persons likely to be affected by the proposed amendments, alternations or deletion. He cannot receive or entertain fresh applications for new additions, alternations or deletion, or fresh objection in that behalf. The Authorised Officer was, therefore, fully justified in this case in not entertaining the fresh objections raised by the aforesaid eight co-operative societies for the first time between 10-10-1985 and 11-10-1985. (sic 15-10-1985).'

The ratio of above judgment rendered after the election cannot be ignored merely because the present petitions are filed prior to the election. I do not see any conflict between the aforesaid judgment and the Division Bench judgment. In fact Division Bench judgment dealt only with the controversy regarding alternative remedy. The learned single Judge thereafter interpreted Rules 7 and 8 in the above judgment delivered after the election. Hence, the said declaration of law is binding on this Court as well as on the election authorities subject to amendment of Rule 8. In the case of Desai Dharamasinh (AIR 1990 Gujarat 161) (supra) this Court held that once the preliminary list is published and objections are invited for exclusion from or inclusion in the said list, thereafter on publication of the provisional list (i.e. revised preliminary list), the Election Officer can consider only those objections which are received from the persons likely to be adversely affected by amendments, alterations or deletions proposed at the time of the publication of the provisional list. It is therefore, clear that even prior to the amendment of Rule 8, under the old Rule 8 the Election Officer had no authority to receive or entertain fresh applications for new additions, alterations or deletions or fresh objections in that behalf. Once the provisions of Rule 8 were so interpreted by this Court in the aforesaid judgment delivered on 11-4-1989, the petitioners' case is all the more strengthened by the amendment with effect from 17-6-1987. As per the said amendment, there is a clear provision that after receiving applications for amendment of the preliminary list a revised draft list (i.e. provisional list) is required to be published alongwith a notice that any person who wishes to raise any objection against any new name entered in the said list in required to lodge his objections within seven days from the publication of revised draft list and the Election Officer is required to consider such objection and thereafter publish the final list of voters and hence there is no doubt that Rule 8 after amendment does not contemplate receiving any objections other than the objections against any new name entered in the provisional list i.e. revised draft list after the date of the publication of the provisional list nor does it contemplate Election Officer considering the objections which were received before expiry of the time limit for lodging objections against the preliminary list but which are allegedly not decided till the time of publication of the provisional list.

35. In view of the aforesaid discussion the only conclusion possible is that the Election Officer had acted without authority and ex facie illegally in considering after 19-1-1996 the objections against the names of the petitioners in the first group of petitions although their names were already included in the preliminary list and in provisional list --their names were not new names entered in the provisional list i.e. revised draft list. The impugned decision of the respondent officer to delete the names of the petitioners from the final list of the voters in the first group of petitions must, therefore, be held to be ex facie without jurisdiction and patently illegal and a nullity.

36. The learned Counsel for the respondents, however, urged that in any view of the matter, the judgment of the learned single Judge in Special Civil Application No. 3299 of 1994 and group matters delivered on 5-4-1994 dealt with a case, where the list of voters was published after 17-6-1989 and therefore, even amendment to the provisions of Rule 8 cannot and does not remove the obstacle in the way of the petitioners. It is true that the said decision was in cases which dealt with the period after amendment of Rule 8 of the Rules. However, the petitioners in that group did not rely on the amendment to the provisions of Rule 8 but relied upon (i) unamended Rule 8, (ii) the judgment reported in AIR 1990 Gujarat 161 : 1989 (2) Guj LR 1195 and (Hi) the statement which was made by the Government Pleader on 7-3-1994 before a Division Bench of this Court, which read as under:

'Learned counsel Mr. N.D. Nanavati, Government Pleader, appears for respondents Nos. 1, 2 & 5 and states that objections submitted by the petitioner against the preliminary voters list will be considered and decided before the final publication of the voters list. He further states that final voters list will be published on March 11, 1994. Therefore, the effect of the statement is that the objections submitted by the petitioner will be considered and decided by the authorised officer i.e. respondent No. 2 latest by March 11, 1994. In the facts of the case, it is directed that the decision that may be taken by respondent No. 2 with regard to the objections against preliminary voters list shall be communicated to the petitioner immediately preferably on the same day. The petition is ordered to be placed on Board on March 15, 1994.'

The petitioners had not pointed out in those petitions that after the decision of the Division Bench in the case of Mehsana District Co-operative Sales and Purchase Union Ltd. v. State of Gujarat (1988 (2) Guj LH 149) (supra) and after the judgment of the learned single Judge in the case of Desai Dharamsinh (AIR 1990 Gujarat 161) (supra), the provisions of Rule 8 of the Rules, were amended and Sub-rules (1A) and (2) of Rule 8 left no room for any doubt that the Election Officer had no authority or jurisdiction to entertain any objection against the name of a person already included in the preliminary as well as provisional list. I have gone through the memos of Special Civil Applications Nos. 3299, 3484 and 3755 of 1994 in the said group which were made available by the Registry. Far from even referring to amended Rule 8(1A) and (2) in those petition, in the memo of Special Civil Application No. 3484 of 1994 (one of the group matters decided by the above judgment) the provisions of unamended Rule 8 were quoted.

It appears that this unfortunate situation seems to have arisen because after making amendments to statutory rules the Government does not come out with publications with amendements carried out from time to time such statutory Rules are, therefore, read from the series of Gujarat Local Acts. It, , therefore, appears that the learned Advocates in the said group as well as the learned single Judge had available to them Vol. 1 of the Second Edition of Gujarat Local Acts (containing APMC Act and Rules) published in 1983. Vol. 2 of the Third Edition of Gujarat Local Acts (containing APMC Rules) with statute law as on 1-1-1994 appears to have become available after the date of the judgment in the above group of petitions. I am, therefore, of the view that the said judgment of the learned single Judge was, with respect, per incuriam as the learned single Judge did not have the benefit of considering the amendment to Rule 8 of the APMC Rules made in 1989.

37. The learned counsel for the respondents urged that if the petitions in this group are allowed at this stage, it would amount to the Court setting the clock back because under Rule 8(2) of the Rules, the finallist of voters has to be prepared at least thirty days before the date fixed for the nomination of candidates for the election. The contention urged, therefore, is that since March 10, 1996 was the date fixed for nomination of the candidates for election, any direction to include the names of the petitioners in the final list of voters may put the clock back, Mr. Patel as well as Mr. Jhaveri stated at the outset that none of the petitioners are interested in contesting the election as that stage is over and that they are all interested only in exercising their right to vote. Under the circumstances the direction of the Court to Election Officer to permit the petitioners in the first group of petitions to vote at the election scheduled to be held on 22nd March, 1969 will not amount to setting the clock back, as none of the stages of the election programme is to be arrested nor the time schedule is to be upset.

38. In the result, the following order is passed:

(1) Special Civil Applications Nos. 1229, 1230; 1231, 1242 and 1243 lof 1996 are allowed. The impugned decisions of the respondent officer deleting the names of the petitioners-from the respective final lists of voters dated 7-2-1996 are quashed and set aside. The Authorised Officer (Election Officer) shall permit, the petitioners of Special Civil Applications Nos. 1229, 1230 and 1231 of 1996 to vote at the ensuing elections of the APMC, Visnagar, from the constituency under Section 11(1)(i) of the Act and the petitioners of Special Civil Applications Nos. 1242 and 1243 of 1996 to vote at the said elections from the constituency of traders under Section 11(1)(ii) of the Act. Rule is accordingly made absolute in these five petitions with no order as to costs.

(2) Special Civil Applications Nos. 1227, 1228, 1232, 1252 and 1253 of 1996 are not entertained on the ground that the petitioners have the alternative remedy available to them under Rule 28 of the APMC Rules, 1965. Subject to the observations made in paras 17-A and 18-A of this judgment. Rule in these five petitions is accordingly discharged in these petitions with no order as to costs. ***


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //