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Agricultural Produce Market Committee and anr. Vs. Election Officer and District Registrar of Co-op Societies and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR267
AppellantAgricultural Produce Market Committee and anr.
RespondentElection Officer and District Registrar of Co-op Societies and ors.
Cases ReferredRanaweera v. Wicramasinghe
Excerpt:
- - 26. the plain reading of rule 8 clearly shows that a statutory duty is imposed on the authorised officer to prepare the list of voters under rule 5 and to publish the same in a manner contemplated under sub-rule (1) of rule 8. sub-rule (1) of the rule 8 also contemplates that after the publication of the provisional list of voters, 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 names 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 may apply to the authorised officer for an amendment of the list of voters. 28. sub-rule (3) of rule 8 clearly provides that the.....a.n. surti, j.1. in the present petition, the much debated controversial point at the bar is, whether an officer designated as an authorised officer by the director under sub-rule (2) of rule 2 of the gujarat agricultural produce markets rules, 1965 (hereinafter referred to as 'the rules') is a thoroughly independent statutory officer to perform his statutory functions as provided in the rules, or is an officer who is subject to the superintendence and control of the director and/or the state having regard to sections 4, 9 and sub-section (2) of section 59 of the gujarat agricultural produce markets act, 1963 (hereinafter referred to as 'the act').2. before i proceed to consider the much debated controversy at the bar, i need hardly emphasise the fact, that in a civilised progressive.....
Judgment:

A.N. Surti, J.

1. In the present petition, the much debated controversial point at the bar is, whether an officer designated as an Authorised Officer by the Director under Sub-rule (2) of Rule 2 of the Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter referred to as 'the Rules') is a thoroughly independent statutory officer to perform his statutory functions as provided in the Rules, or is an officer who is subject to the superintendence and control of the Director and/or the State having regard to Sections 4, 9 and Sub-section (2) of Section 59 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as 'the Act').

2. Before I proceed to consider the much debated controversy at the bar, I need hardly emphasise the fact, that in a civilised progressive democratic republic, a free election-a fair election-an election untainted and unstigmatised by any remote or possible pressure or influence from any quarters either from the Superiors or even from social workers would add glory and reputation to the fair name of democracy, and in particular, to the gradually successful biggest functioning democracy in our country. Thus, fairness devoid of any pressure from any quarters, either remote or otherwise must necessarily be reflected at all stages of election viz.-the preparation of the provisional voters' list, the final list of the voters, filling up the nomination forms, withdrawal and the scrutiny thereof and the polling of votes; may the election be in any Gram, Nagar, Taluka, State or the Country for the establishment of any constitutionally constituted authority, or even any establishment of any statutory authority in pursuance to any enactment passed by the state or the Parliament. With these observations, I will now proceed to consider the debated issue at the bar.

3. In order to appreciate the point raised by Mr. Vakharia, the learned advocate for the petitioners a few relevant facts may be stated.

4. Respondent No. 1 who is the Officer designated as an Authorised Officer under Sub-rule (2) of Rule 2 of the Rules prepared the tentative list of voters on July 3, 1978, and that voters' list was for the purpose of an election as provided in Section 11(i)(i) of the Act. Before the preparation of the said tentative list of voters, petitioner No. 2 did address a letter to the Authorised Officer on June 30, 1978 raising his objection to the inclusion of the names of the members of the Managing Committee of Milk Co-operative Societies dispensing agricultural credit in the market area.

5. After the preparation of the said tentative list of voters, a public notice was given on July 3, 1978 (being Annexure 'A' to the main petition) inviting objections from the members of the public in regard to either for the inclusion of certain names in the voters' list or for the deletion of the voters' name from the said tentative list. It was also mentioned in the public notice that the necessary objections in the said behalf should be lodged with the Authorised Officer on or before I.P.M. on July 17, 1978. After the aforesaid public notice was issued by the Authorised Officer on July 12, 1978, petitioner No. 2 made an application to the Authorised Officer being Annexure 'D' to the main petition and intimated to him that the names of 226 persons were wrongly included in the tentative list for the following reasons.

(1) That the milk or the irrigation societies cannot be considered as societies dispensing agricultural credit, and hence, the names of the members of the Managing Committees of those Societies should not be included in the tentative list.

(2) That the Authorised Officer had to decide the question, and that he should not have followed the circular of the Director, as it was the sole statutory function of the Authorised Officer to decide as to whether the names of the members of the Managing Committees of the aforesaid Societies should be included in the tentative list or not.

(3) That in reality, the aforesaid Societies did not dispense any agricultural credit in the concerned market area.

(4) That petitioner No. 2 did ask for certain documents from the Authorised Officer so as to enable the petitioner to substantiate their aforesaid claim; but those documents were not given to him, and hence, in the preparation of the voters' list rules of natural justice were violated.

6. It may be incidentally stated that on July 4, 1978 (vide Annexure 'C' to the main petition) the Authorised Officer did intimate to petitioner No. 2 that he had prepared the voters' list in accordance with the circular issued by the Director on June 8, 1978.

7. After the receipt of an application from petitioner No. 2 on July 12, 1978 (vide Annex. 'D' to the main petition) respondent No. 1 gave a reply being Annexure 'E' to the main petition on July 18, 1978. In the reply of July 18, 1978, respondent No. 1 has stated that he was bound to act in pursuance to the Director's circular. He also mentioned in the said letter that in the concerned matter, there was no question of abdication his function. He also mentioned in the said letter, that the concerned Societies were dispensing agricultural credit and that he had no record with him of which he could give any copies to petitioner No. 2.

8. On July 18, 1978 the Authorised Officer prepared the final list of voters being Annexure 'F' to the main petition. It was also published in the news-papers on July 20, 1978. After the publication of final list of voters a public intimation was given in July, 1979, fixing the various dates for the various stages of the election.

9. Under the aforesaid circumstances, the petitioners filed the present petition under Article 226 of the Constitution and prayed that a proper writ and/or order direction be granted, quashing and setting aside the final list of voters being Annexure 'F' to the main petition which was published by public notice on July 20, 1978 being Annexure 'G' to the main petition, and also to give a direction to the authorised officer to prepare the voters' list in accordance with the provisions of law.

10. The petitioners also prayed for interim relief by way of an order of an interim injunction restraining respondent No. 2 from holding the election of 8 agriculturists of the Agricultural Produce Market Committee, Vijapur.

11. At the admission stage of the petition this Court did grant interim relief to the petitioners as prayed in para 26(d) of the petition.

12. It is under these circumstances, that the present petition is placed before me for hearing and final disposal.

13. At the time of the hearing of this petition, Mr. K.G. Vakharia the learned advocate for the petitioners raised the following contentions.

(1) That respondent No. 1 the Authorised Officer was the sole authority to decide whether the members of the Managing Committees of the milk societies or the irrigation societies dispensing agricultural credit in the market area should be included in the voters' list or not and that it was an obvious error on his part to guide himself or to feel himself bound by the circulars issued by the Director in this behalf.

(2) That on a true reading, interpretation and construction of the Act and the Rules made thereunder, the Societies dispensing agricultural credit would not include milk societies and the irrigation societies.

(3) That respondent No. 1 placed reliance on the documents for the purpose of recording the conclusion, as to whether the aforesaid societies were dispensing agricultural credit or not, and that being so, respondent No. 1 who is the Authorised Officer was bound in law to give to the petitioners the copies of the documents on which respondent No. 1 placed reliance for recording such a conclusion. Under the circumstances, the submission was that the principles of natural justice were violated.

(4) That under Rule 8 of the aforesaid Rules, it was the statutory requirement to give clear 14 days period from the date of the publication of the tentative list to the date of the publication of the final list for the purpose of giving objections. In this behalf, the grievance was, that the tentative list which was prepared on July 3, 1978 and that the objections were to be lodged in regard to the preparation of the tentative list before 1 P.M. on July 18, 1978, and hence, clear 14 days period was not given to object to the preparation of the tentative list of voters.

(5) That the petitioners had also alleged mala fides against respondent No. 4 who is Minister for Co-operation, Sachivalaya, Gandhinagar. In this behalf the relevant averments are in para 20 of the main petition. It is averred in the petition that respondent No. 4 who was an elected member of the Parliament on the ticket of Janta Party, and who was the President of Mehsana Doodh Sagar Dairy brought pressure upon respondent No. 3 who was the Minister at the relevant time to give directions to the Authorised Officer and respondent No. 2 who was the Election Officer to include the members of the Managing Committee of the Milk Produce Co-operative societies of the voters' list. It was alleged, that respondent No. 3 had accordingly given his decision under pressure of respondent No. 4 and the said directions in incorporated in the circular contained in Annexure 'B' to the main petition. On these facts it is averred in the petition that the action of respondent Nos. 1, 2, 3 and 4 is, therefore, mala fide and it is taken with an ulterior motive and with an intention to help respondent No. 4 to capture all seats of market committee within the district of Mehsana.

(6) That the Director has not designated respondent No. 1 as Authorised Officer for the purpose of preparing the voters' list for the general election to be held in the year 1978. In this behalf, an order was issued only in the year 1969 and that there was no order issued by the Director for the preparation of the voters' list in the year 1978.

(7) That in fact the aforesaid milk or the irrigation societies had not dispensed any agricultural credit in the concerned market area.

14. In spite of the fact that Mr. Vakharia raise the aforesaid 7 points for my consideration, he chose to argue only one point before me. Mr. Vekharia argued, that respondent No. 1 who was designated as an Authorised Officer was the sole officer to decide as to whether the members of the Managing Committees of Milk Co-operative Societies or the irrigation Co-operative Societies dispensing agricultural credit in the market area should be included or should not be included in the voters' list. He urged that under no circumstances, it was open to the authorised officer to cloud his decision by the circulars which might be issued to him by the Director from time to time in this behalf.

15. In order to appreciate the point raised by Mr. Vakharia, my attention was invited by him to Section 11 of the Act. Section 11 of the Act provides as under:

11 (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 co-operative marketing societies) dispensing agricultural credit in the market area:

(ii) four members to be elected in the prescribed 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 of such societies;

The rest of the section need not be referred to for the disposal of the present petition.

16. On reading of Sub-section (1)(i) of Section 11 of the Act, Mr. Vakharia urged before me that the market committee shall consists of eight agriculturists who shall be elected by members of managing committees of co-operative societies (other than co-operative markiting societies) dispensing agricultural credit in the market area. In this behalf his submission was that when 8 agriculturists are to be elected as provided in Sub-section (1)(i) of Section 11 of the Act, such 8 agriculturists were not to be elected by the members of the managing committees of milk or irrigation co-operative societies dispensing agricultural credit in the market area.

17. Mr. Vakharia also invited my attention to the relevant provisions of the Gujarat Agricultural Produce Market Rules, 1965. Sub-rule (2) of Rule 2 of the Rules provides as follows:

(2) 'Anthorised Officer' means such officer as the Director may designate for a district to perform the functions of an authorised officer under these rules;

Sub-rule (4) of Rule 2 provides as follows:

(4) 'Election Officer' means an Officer authorised by the Director to perform the functions of an Election Officer under these rules and where no officer is so authorised the Director;

18. Part III of the aforesaid Rules provides for election of market committee. Rule 4 provides for fixation of date of election. Rule 4 says,

Wherever a general relection to a market committee or a by-election under Section 15 is to be held, the Director shall, by an order in writing, fix a date of such election and publish such order by affixing a copy thereof in the officer of the market committee and at a conspicuous place in the principal market yard in the market area.

19. It may be noticed at this stage that the Director shall, by an order in writing to fix a date and to publish the same by affixing a copy thereof in the office of the market committee and at a conspicuous place in the principal market yard in the market area. This function of fixing the date of such election is of the Director and not any officer, who is designated to function as an authorised officer.

20. Rule 5 provides for the preparation of different lists of voters Rule 5 provides as follows:

For the purposes of Section 11, there shall be in respect of a market committee three separate lists of voters in Gujarati as follows, namely:

(1) under Clause (i) of Sub-section (i) of Section 11 of the Act, a list of members of managing committees of Co-operative Societies dispensing agricultural credit in the market area;

(2) under Clause (ii) of Sub-section (i) of Section 11 of the Act a list of traders holding general licences in the market area;

(3) under Clause (iii) of Sub-section (i) of Section 11 of the Act, a list of members of managing committees of Co-operative Marketing Societies situated in the market area.

21. Rule 6 provides for persons qualified to vote. It says, 'A person whose name is entered in the list of voters shall be qualified to vote on an election to which the list of voters relates, unless he has ceased to hold the capacity in which his name was entered in such list.'

22. Rule 7 provides for the preparation of list of voters for general election. It is in the following terms:

7(i) Whenever general election to a 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 member;

(ii) the market committee shall communicate the full names of the traders holding general licences in the market area together with the place of 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 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 (i) cause to be prepared the lists of voters as required by Rule 5 on the basis of the information received under Sub-rule (i) 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.

23. On a plain reading of Rule 7, it is clear that whenever general election to a market committee is to be held all the requisite information as provided in Sub-clause (i),(ii),(iii) of Sub-rule (1) of Rule 7 must necessarily be communicated to the authorised officer, but the said requisite information should be communicated to the authorised officer before such date as the Director may by an order fix in that behalf. At this stage, again it may be significantly noticed that the two statutory functions contemplated by Rule 7 are different and distinct. As mentioned above, all the necessary requisite information should be communicated to Authorised Officer as provided in Sub-clause (i),(ii) and (iii) of Sub-rule (1) of Rule 7 of the Rules, but such communication should be made to the officer before a date which is to be fixed by the Director.

23A. It is equally clear from Sub-rule (2) of Rule 7 that the Authorised Officer has got to prepare the lists of voters as required by Rule 5 on the basis of the information received under Sub-rule (1) of Rule 7 and that the authorised officer has to make the necessary inquiry in that behalf as he may deem fit. Again at this stage, it may be emphasised that the function of preparing the lists of voters is on the Authorised Officer, and that the Authorised Officer has to make the necessary inquiry as he may deem fit in this behalf.

24. Suffice it to state that even Rule 7 contemplates two different and distinct functions to be discharged, (1) to be discharged by the Authorised Officer as stated above, and (2) one to be discharged by the Director.

25. Rule 8 of the Rules provides for the publication of provisional and final publication of lists of voters. Rule 8 is in the following terms.

(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) It 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 he 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.

(3) Copies of the final list of voters prepared under this rule shall be kept open for public inspection at the office of the Authorised Officer and at the office of the market committee.

26. The plain reading of Rule 8 clearly shows that a statutory duty is imposed on the Authorised Officer to prepare the list of voters under Rule 5 and to publish the same in a manner contemplated under Sub-rule (1) of Rule 8. Sub-rule (1) of the Rule 8 also contemplates that after the publication of the provisional list of voters, 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 names 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 may apply to the authorised officer for an amendment of the list of voters. Suffice it to state that Sub-rule (1) of Rule 8 only provides for the specified duties to be discharged and functions assigned only to the Authorised officer.

27. Sub-rule (2) of Rule 8 imposes a statutory duty on the Authorised Officer to decide the applications received by him under Sub-rule (1) of Rule 8. Sub-rule (2) also imposes a duty on him to make suitable amendments in the tentative list of voters in pursuance of the decision given by him on the applications received by him under Sub-rule (1) of Rule 8. Sub-rule (2) also imposes a statutory duty on the Authorised Officer to prepare the final list at least 30 days before the date fixed for the nomination of the candidates.

28. Sub-rule (3) of Rule 8 clearly provides that the final list of voters prepared under the rule should be kept for public inspection at the office of the Authorised Officer and at the office of the market committee. Sub-rule (3) does not contemplate that the copies of the final list should be kept open for inspection at the office of the Director or any other officer.

29. Rule 9 provides for list of voters for bye-election, and it says that the provisions of Rules 5,6,7 and 8 shall mutatis mutandis apply to the preparation of the relevant list of voters for the purpose of a bye-election under Section 15.

30. Thus having noticed all the relevant provisions in regard to the statutory functions and duties to be discharged by the Authorised Officer, we may now see the statutory functions and duties to be discharged by the Director appointed under Section 4 of the Act. Rule 10 provides that an election shall be held between such hours and no such dates and at such place or places as may be fixed by the Director. The duty of holding the election is not on the authorised officer.

31. Sub-clause (2) of Rule 10 provides that not less than 40 days before the date fixed for the election under Rule 4, the Director shall publish in Gujarati notice stating.

(a) the number of persons to be elected by the respective electorate,

(b) the date on which, the place at which and the hours between which nomination papers shall be presented to the Election Officer, such date not being earlier than 14 days from the date of the publication of the notice,

(c) the date on which, the place at which and the hours between which the nomination papers shall be scrutinised,

(d) the date on which, the place or places at which and the hours between which the votes shall be taken.

(e) the date on which, the place at which and the hours between which the votes shall be counted.

32. Rule 10 clearly provides the statutory duty to be discharged by the Director as stated above, and in the matter of either the holding of election or for deciding. The number of persons to be elected by the respective electorates etc. The Authorised Officer has not to discharge any such function or duty. Thus, it is clear that the statutory functions to be discharged by the authorised officer and the Director are different and distinct. Rule 11 provides for the nominations and for certain statutory functions to be discharged by the election officer, Rule 12 deals with the deposit on nominations. It provides that at or before the time of the delivery of a nomination paper, each candidate shall deposit with the Election Officer a sum of one hundred rupees.

33. Rule 13 provides for verification of nomination papers and that duty is also imposed on the election officer. Rule 14 provides for the list of publication and that duty is also imposed on the election officer. Rule 15 provides for scrutiny and that duty is also imposed on the election officer.

34. Rule 16 provides for disposal of objections and rejection of nomination and the election officer has to decide the said objections. Rule 17 provides for withdrawal of candidature and any candidate may withdraw his candidature by notice in writing subscribed by him and delivered either in person by the candidate himself or by, any of his proposers to the Election Officer, within three days of the date succeeding that fixed for the scrutiny of nominations.

35. Rule 18 provides for procedure of election and Rule 19 provides for assignment of symbols by the election officer. Rule 20 provides for form of voting paper and Rule 21 provides for arrangements for the holding of election by the election officer. Rule 23 provides for the procedure at election when equality of votes exists. It provides that, if, when a poll has been taken at an election an equality of votes is found to exists between any candidates, and the addition of one vote will entitled any of the candidates to be declared elected, one additional vote shall be given by the Election Officer to the candidate or, as the case may be, the candidates, selected by lot drawn in the presence of the Election Officer in such manner as the Election Officer may determine.

36. Rule 24 provides that if after the taking of a poll has become necessary and before the poll is taken, a candidate who has been duly nominated dies, the Election Officer shall, upon being satisfied of the fact of the death the candidate, countermand the poll and the election proceedings shall be commenced a new in all respects as if for a new election.

37. Rule 25 provides for intimation of the name of the representative of a local authority to the Election Officer. Rule 26 provides for filling in casual vacancies in the Market Committee. Rule 27 provides for publication of the name of elected and nominated members of the Market Committee.

38. Rule 28 provides for the determination of validity of election. It provides that 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 determination 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.

(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 aside the election aside and such order shall be final. It the Director or 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.

39. Rule 29 provides for expenditure in connection with or incidental to such election, and Rule 30 provides for distraction of voting papers.

40. For the disposal of the present petition, it is not necessary to refer to the contents of the other rules in part IV, V and VI, nor my pointed attention was invited to the provisions of the said parts or the rules.

41. Part III of the rules only provides for the election of the marketing committee. From the aforesaid discussion, it is clear that the functions of an officer designated as an Authorised Officer are distinct and separate from functions an duties assigned to a Director and or an Election Officer.

42. Placing reliance on the aforesaid scheme of the Rule for the election of the market committee, Mr. Vakharia urged before me, that in the instant case, the officer who was designated as an Authorised Officer is the sole statutory authority who has to prepare and publish the voters' lists in accordance with the provisions of the rules and the Act. Mr. Vakharia invited my attention to the reported decision in Orient Paper Mills v. Union of India : 1973ECR1(SC) . In para 11 of the judgment it is observed as follows:

It is obvious as well as admitted that both the Collector and the Central Government proceeded on the basis that the direction given by the Board was decisive of the matter. The revision applications filed before the Government were heard and decided by one of the members of the Board. He appears to have proceeded on the basis that in view of the directions given by the Board nothing more need be said as to the point in dispute. It is regrettable that when administrative officers are entrusted with quasi judicial functions, often times they are unable to keep aside administrative considerations while discharging quasi judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions arc separate; while functioning as quasi judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions.

43. Placing reliance on the aforesaid observations of the Supreme Court, Mr. Vakharia urged before me, that in the instant case, the officer who was designated as an Authorised Officer had to perform statutory functions and discharge statutory duties. When he was discharging the said duties, he had to function as an administrative officer entrusted with quasi judicial functions, and hence, it was an obvious error on his part to cloud his decisions or to guide him or to feel himself bound by the circulars issued by the Director intimating that when he prepares the voters' lists, names of the members of the Managing Committees of milk or irrigation co-operative societies dispensing agricultural credit in the market area should be included in the voters' list. He urged before me, that it was open to the officer designated as an Authorised Officer to come to his own decision without being influenced by administrative considerations or by the instructions or directions or circulars issued to him by his superiors.

44. To substantiate the point raised by Mr. Vakharia, he invited my attention to the relevant averments contained in paragraphs 5, 6, 7, 14, 15, 16 and 17 of the petition, and urged before me that it was the specified and the categorical case of the petitioners, that it was incumbent upon the officer designated as an Authorised Officer to decide the matter on his own as to who should be included in the voters' lists and who should be excluded from the voters' lists.

45. In further support of his argument, Mr. Vakharia invited my attention to Annexure 'B' dated July 4, 1978 wherein an intimation is given to petitioner No. 2 that a direction has been given to the concerned officer to include the names of the members of the Managing Committees of the agricultural and irrigation co-operative societies dispensing with agricultural credit in the market area should be included in the voters' list. From this view point, Mr. Vakaria read out before me the contents of Annexure 'C' dated July 4, 1978, and urged that the office who was designated as an Authorised Officer did not act on his own, but merely carried out the directions of his superior officer. Mr. Vakharia also invited my attention to the contents of Annexure 'B' dated July 8, 1978 which exhaustively contained the decision arrived at by the Minister for Co-operation and the same also contains a direction to be given tot he Authorised Officer that the names of the members of the managing Committees of Milk and Irrigation Co-operative Societies dispensing agricultural credit in the market area should be included in the voters' lists. Mr. Vakharia also read out before me the contents of Annexure 'D' dated July 12, 1978 whereby objections were raised by the petitioners pointing out that it was not open to the authorised officer to follow the circulars issued by his superiors by no useful purpose was served even by the said representation of the petitioners dated July 8, 1978. Mr. Vakharia also invited my attention to the contents of Annexure 'E' dated July 8. 1978 whereby the Authorised officer, it terms, intimated to the petitioners that he had to follow the instructions given to him by his superiors for the purpose of inclusion of the names of the Managing Committees of the agricultural societies dispensing agricultural credit in the concerned market area in the voters' lists.

46. In support of the submission made by Mr. Vakharia, I may once again refer to Rule 28 of the Rules. As mentioned above, if the validity of any election of a member of the Market Committee is brought in question by any persons 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.

47. In view of the mandatory provisions of Rule 28, it is clear to my mind that if any person had any grievance against the validity of any election of a member of the Market Committee, he would approach the Director within 7 days after the declaration of the result of the election. When such a person approaches the Director challenging the validity of any election, it would be certainly open to the aggrieved party even to make a grievance about the voters' lists on the basis of which the election had taken place. Now if the Director or the State Government had already given instructions to an Authorised Officer that he should include the names of certain persons as the voters in the voters' lists, it would be impossible for the Director to hear the petition filed by an aggrieved party who has challenged the validity of the election. From this view point also, I am convinced, that in the instant case, the officer who has been designated as an authorised officer has to perform certain statutory functions. I am also convinced that the Director and or the election officer has also to perform different and distinct statutory functions as provided in the Rules. The respective fields for the function and the powers of the authorised officer on one hand and the Director and or the Election Officer on the other hand are distinct and separate. There is no title of indication in the rules or even the Act from which I can come to the conclusion that the Officer designated as an Authorised Officer is subordinate or is under the superintendence of the Director. Under the circumstances, I am convinced that there is lot of substance and force in the grievance made by the petitioners in the present petition.

48. The Authorised Officer has filed the affidavit-in-reply to resist the petition. In the affidavit-in-reply, the Authorised Officer has not denied that he has not followed the instructions of his superiors. On this point, though the affidavits-in-reply is filed by an independent officer designated as an Authorised Officer has not placer before the Court as to whether he followed the instructions of his superiors or not. I need hardly emphasise the fact that whenever the State or its officers file affidavit-in-reply in a writ petition under Article 226 of the Constitution of India, the courts do expect from the States and its officers to maintain certain standard of fairness when they file affidavits in this Courts, and that the standard of fairness must be reflected in the affidavits-in-reply. Suffice it to state, that the affidavit-in-reply filed by the authorised officer merely contains some denial and nothing more. In view of what has been stated above, I am convinced, that in the instant case, the petitioners were justified prima facie in urging, that though the Authorised Officer was the sole statutory authority to decide, prepare and publish the voters' lists his decision was essentially clouded by the circulars issued by his superiors and that he felt himself bound by the aforesaid circulars.

49. Mr. V.B. Patel, the learned advocate, who appeared on behalf of respondents Nos. 4 to 11 very vehemently resisted the attack made by Mr. Vakharia on the legality and the validity of the voters' lists. In substance, Mr. Patel's submission before me was, that an officer who is designated as an Authorised Officer is not holding any statutory office and as such the Authorised Officer had not to perform any specified statutory duties as mentioned in the rules. He strongly urged before me, that the Act does not appoint respondent No. 1 as an Authorised Officer and the language employed in the Rules having statutory force does not indicate that respondent No. 1 was appointed as an Authorised Officer From this view point. Mr. Patel read out before me, the statutory definition of (1) Authorised Officer and (2) Election Officer, and urged before me that it is impossible to carve out a meaning on reading or the said definitions that an officer designated as an Authorised Officer is a statutory officer holding a statutory office or that he had to discharge any statutory functions as provided in the aforesaid Rules. He urged before me, that the officer designated as an authorised officer was also under the control and the superintendance of the Director, and that being so, Section 4 of the Act comes to his aid for the purpose of coming to a conclusion that the voters' lists published by the Authorised Officer is in accordance with law.

50. Mr. patel invited my attention to the provisions of Sections 4, 9, 11 and 59 of the Act.

51. Section 4 of the Act provides as under:

4(1) The state Government may, by notification in the Officer Gazette, appoint an officer to be the Director of Agricultural Marketing and Rural Finance, Gujarat State, who shall exercise such powers and perform such functions and duties as are conferred or imposed on him by or under this Act and shall subject to such general or special orders as the State Government may pass, superintend the administration and carry out the purposes, of this Act.

(2) The State Government may appoint such number of officers as may be deemed necessary to be Joint Directors or Deputy Directors who shall, subject to the control of the Director, exercise such powers, and perform such of his functions and duties under this Act as the State Government may be general or special order direct.

52. Section 9 of the Act is in the following terms:

9(1) Save as otherwise provided in Sub-sections (2) and (3), the Director shall establish a market committee for every market area.

(2) Where on the declaration of any area, the Director is satisfied that it is necessary to establish a separate market committee for the afficient regulation of the purchase and sale of any specified kind of agricultural produce in the market area, he may in addition establish for the market area a separate market committee for the purpose.

(3) Where in respect of a market area for which a market committee has been established any kind of agricultural produce is added under the provisions of Sub-section (5) of Section 6. the Director may if satisfied that a separate market committee for the regulation of its purchase and sale is necessary establish one for the purpose.

(4) Where more market committees than one are established for any market area, subject to the provisions of Section 24 each such market committee shall be deemed to be separated market area.

(5) Every market committee shall be deemed to be established under this section with effect from the date on which it is duly constituted for the first time under Section 11.

53. Section 11 is already quoted above, and it is not necessary to reproduce the same once again.

54. Section 59 of the Act provides as follows:

59.(1) The State Government may, be notification in the Official Gazette, make rules, either generally or specially for any market areas for the purposes of carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for or regulate.

(i) the preparation and revision of list of voters for the purpose of any election under Section 11, determination of disputes arising in such election and payment of expenditure in connection with or incidental to such election;

(ii) ... ... ... ... ... ... ...(iii) ... ... ... ... ... ... ...(iv) ... ... ... ... ... ... ...(v) ... ... ... ... ... ... ...(vi) ... ... ... ... ... ... ...(3) ... ... ... ... ... ... ...(4) ... ... ... ... ... ... ...(5) All rules made under this section shall be laid for not less than thirty days before the State legislature as soon as possible after they are made, and shall be subject to rescission by the Legislature or to such modifications as the Legislature may make during the session in which they are so laid, or the session immediately following.

(6) Any rescission or modifications so made by the Legislature shall be published in the official Gazette and shall thereupon take effect.

55. Having invited my attention to the aforesaid provisions of the Act, Mr. Patel strenuously urged before me, that in the instant case, it was one of the purposes of the Act to establish to markets for agricultural produce in the State of Gujarat. He also urged before me that it was also one of the purposes of the Act that the market committee should consist of the members as mentioned in Section 11 of the Act. He also urged before me that Section 4 of the Act provides for the appointment of the Director of the Agricultural Marketing and Rural Finance, and he has to exercise such powers and performs such functions and duties as are conferred or imposed on him by or under the Act, and he shall be subject to such general or special orders as the State Government may pass, superintend the administration and carry out the purposes, of this Act. In substance, according to the submission of Mr. Patel, the officer who has been designated as an authorised officer is an agent of the Director a functionary for and on behalf of the Director-and as such he was bound in law to carry out all the directions which may be given to such an officer from time to time. He strongly urged before me, that it would be patent and obvious error to take the view that the officer designated as an authorised officer is a statutory officer who is supposed to discharge certain functions and powers as mentioned in the Rules. In otherwords, his submission was that the officer designated as an authorised officer is merely an Executive Officer and he has got to carry all the directions which he would receive from time to time from his superiors viz. the Director or the State. He also urged, that to hold elections, to prepare the voters' lists, to consider the nominations forms duly filled in by the candidates, the withdrawal and the scrutiny of the forms are all various stages of election, and if the director gives any instructions even in respect of the preparation of the voters' lists the Authorised Officer is bound to follow the same as it would be one of the purposes of the Act to hold the election as mentioned in Section 11 of the Act. It is impossible for me to agree or accept the said submissions made by Mr. Patel. In the instant case, as stated above, there is no title of indication either in the Act or in the rules which would show that when the officer designated as an Authorised Officer prepares the voters' list, he has got to follow the instructions given to him by his superiors. In absence of any such indications, even a tittle of it, it is impossible for me to accept the submissions or Mr. Patel that the Authorised Officer is an agent of the Director or his functionary and is supposed to discharge all his duties subject to the control of the Director or the State. It is equally impossible for me to make the view, that the preparation of the voters' list is one of the purposes of this Act. Can it be said that it is the purpose of the Act to prepare the voters' list for the purpose of holding an election for the market committee as provided in Section 11 of the Act? To come to such a conclusion that it was also the purpose of the Act would amount to nothing else but to read the provisions of the Act and the rules in a patently perverse manner. Mr. Patel invited my attention to some of the decisions and strongly urged before me, that having regard to the scheme of the Act and the rules and the purposes for which the Act is put on the statute book, I should come only to one inevitable conclusion that the Authorised Officer is the agent or the functionary chosen by the Director, and as such, he was bound in law to follow the directions given to him by the Director from time to time.

56. To substantiate the point, Mr. Patel invited my attention to the reported decision in the Law Reports, 1970 p. 951, Ranaweera v. Wicramasinghe (P.C). The relevant observations are at page 959 and they are in the following terms:

The problem thus posed has confronted courts in a numbers of countries, particularly those with written Constitutions embodying a separation of powers. In those countries, as in the United Kingdom, government agencies have been created for the discharge of some particular function, and for the task thus imposed upon them executive officers have been necessarily entrusted with the resolution of differences which may arise between the subject and the particular agency in the course of the agency's work. This is particularly so in the field of income tax though it is certainly not confined thereto. Accordingly, officers appointed by the executive may find themselves hearing evidence, weighing it, testing it, and coming to a conclusion upon it: and all the time having to do their best to be fair and impartial. In a word, they have to act judicially, Yet in ordinary everyday language they would not be called 'judges' or 'members' of the judiciary' or 'holders of judicial office'. What is it, then, which distinguishes them from those who do hold and exercise such an office, seeing that the nature of the task which these executive officers have to perform and the qualities they must bring to bear upon it correspond on such occasions so closely, if not exactly, with the exercise of his office by a judge? The answer which has generally been given is that where the resolution of disputes by some executive officer can be properly regarded as being part of the execution of some wider administrative function entrusted to him, then he should be regarded as still acting in an administrative capacity, and not as performing some different and judicial function.

57. Placing reliance on the aforesaid observations Mr. Patel very strenuously urged before me, that in the instant case, the position of an Authorised Officer is that of a government agent, and his office has been created for the discharge of some particular function as mentioned in the rules. He argued that having regard to the duties assigned to an authorised officer, he has to perform, in essence and substance, the duties of an executive officer, and he has been also entrusted with the duty of resolving the differences which may arise in the discharge of his duties as an agent. Under the circumstances, Mr. Patel's crux of the submission before me was, that an officer designated as an Authorised Officer is an agent of the Director who has also to assist the Director to carry out the purposes of the Act, one of the purposes of the Act being to prepare the voters' list.

58. I have carefully considered the aforesaid submission of Mr. Patel, and I must say, that it is impossible for me to agree or accept the submission of Mr. Patel.

59. This is a case where Sub-rule (5) of Section 59 of the Act provides that the rules made under Section 59 shall be laid for not less than thirty days before the State Legislature as soon as possible after they are passed, and it shall be subject to rescission by the Legislature or to such modifications as the Legislature may make during the session in which they are so laid, or the session immediately following, and that any decision or modification shall be published in the official gazette and shall thereupon take effect. In view of this clear provisions of Sub-section (5) of Section 59, it is clear to my mind that the rules are having full statutory force. The rules provide for different and distinct functions to be performed on one side by the authorised officer and on the otherside by the Director or the election officer. If the legislature ever intended that the authorised officer is subordinate to the Director in any manner, it could have shown some indication even a tittle of indication in the rules framed and accepted by the Legislature. The Act no where states that the authorised officer is a subordinate to the director, and the rules are significantly silent on it. Under the circumstances, can it be said, that by any implication that the authorised officer was an agent of the Director. I may once again emphasise the fact, if the submission of Mr. Patel is to be accepted, than, Rule 28 of the Rules becomes redundant and nugatory, and the provisions of Rule 28 under no circumstances be harmonised with the other provisions of the rules. Under the circumstances it is not possible for me to agree or accept the submission of Mr. Patel, that in the instant case, the authorised officer is a government agent of the Director or that he was merely a functionary who is to act under the direct control, supervision and superintendence of the Director.

60. Mr. Patel also invited my attention to some other decisions which have no bearing on the subject, and hence, I do not think it necessary to refer the same in detail for the disposal of the present petition.

As the petition succeeds on the first point raised by Mr. Vakharia, Mr. Vakharia though it desirable and expedient not to argue the other six points raised by him, and which are set out by me in the earlier part of my judgment.

As a result of the aforesaid discussion, the petitioners are entitled to have a declaration that the voters' list Annexure 'F' to the main petition is bad in law, and accordingly, the said final voters' list at Annexure 'F' is hereby quashed and set aside, and consequently, I direct the Authorised Officer-respondent No. 1 herein-to hear all the objections raised by the petitioners notwithstanding any instructions issued by the Director or the State in the matter of the inclusions of the names of the members of the Managing Committees of agricultural co-operative societies dispensing agricultural credit in the concerned market area. It will be also open to the petitioners to contend before the Authorised officer that the new voters do not belong to any agricultural societies who dispensed agricultural credit, and it will be also open to the authorised officer to decide all the objections raised by the petitioners and all parties concerned, and after having heard all concerned, the authorised officer was directed to decide the same in accordance with law and the rules; and that therafter, he should prepare the final list of voters.

In the result, the petition succeeds, and the rule is made absolute, but having regard to the facts and circumstances of the case, I make no order as to costs.


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