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Kantilal Mansukhram Thakkar and anr. Vs. J.M. Patel, Registrar, Co. Op. Societies and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1982)2GLR537
AppellantKantilal Mansukhram Thakkar and anr.
RespondentJ.M. Patel, Registrar, Co. Op. Societies and ors.
Cases ReferredBhuban Mohan Basak v. Dacca Municipality
Excerpt:
.....notifications, orders rules or by-laws, so issued. jani also invited my attention to the observations of the calcutta high court in the aforesaid case at page 707. since i have come to the conclusion that both the planks on which the election is challenged by the unsuccessful candidates have no merit, the petition must fail on merits and it is not necessary to entertain the technical objection raised by mr......officer is enjoined with the duty to have the lists of voters prepared within seven days from the date fixed under sub-ruled). rule 8 next provides for the publication of the provisional and final lists of voters. it lays down that the final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election. the stages of election have to be fixed in accordance with rule 10 of the rules. that rule inter alia requires that not less than forty days from the date fixed for the election under rule 4, the director shall publish in gujarati a notice staling the number of persons to be elected by the respective electorate, the date on which and the place at which and the hours between which nomination papers shall be presented to the election.....
Judgment:

A.M. Ahmadi, J.

1. The third respondent is incorporated as a Market Committee under Section 10(1) of the Gujarat Agricultural Produce Market Act 1963 (hereinafter called 'the Act'). Section 11 of the deals with the constitution of Market Committees. Sub-section (1) of that section provides that every Market Committee shall consist of (i) eight agriculturists who shall be elected by members of Managing Committees of Co-operative 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 of such Societies by the members of the Managing Committees of such Societies: provided that where the number of Co-operative Marketing Societies so situate does not exceed two, only one representative shall be so elected; (iv) one member to he nominated by the local authority within whose jurisdiction the principal market yard is situated from amongst its councilors or as the case may be, members who do not hold any general licence; and (v) two members to be nominated by the State Government. The term of office of a Market Committee as per Clause (a) of Sub-section (3) of Section 11 is four years from the date of its first general meeting. Under Clause (b) of that subsection the term of office of the members of the Market Committee shall be co-extensive with the term of the Market Committee and shall be deemed to extend to and expire with the day immediately before the date of the first general meeting of the Market Committee as reconstituted on the expiry of its term. Section 59(1) empowers the State Government to make rules, either generally or specially for any market area or market areas for the purposes of carrying out the provisions of the Act. According to Sub-section (2) of that section, without prejudice to the generality of Sub-section (1) such rules may provide for or regulate the preparation and revision of list of voters for the purpose of any election under sec. II, determination of disputes arising in such election and payment of expenditure in connection with or incidental to such election.

2. In exercise of the power conferred by Section 59 of the Act, the State Government has framed Rules called The Gujarat Agricultural Produce Markets Rules, 1965 (hereinafter called 'the Rules'). Rule 2(5) defines 'electorate' to mean a group of voters included in the list of voters prepared and maintained for the purposes of Clause (i) or Clause (ii) or Clause (iii) of Sub-section (1) of Section 11 of the Act. Part III of the Rules deals with the election of a Market Committee. Rule 4 lays down that wherever a general election to a Market Committee or 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 office of the Market Committee and at a conspicuous place in the principal market yard in the market area. After the date of election is fixed and published under the said Rule, three separate lists of voters have to be prepared for the purpose of sec. II of the Act. Rule 5 of the Rules lays down that such lists of voters shall be prepared in Gujarati under Clauses (i), (ii) and (iii) of Sub-section (1) of sec. II of the Act. According to Rule 6 a person whose name is entered in the list of voters shall be qualified to vote at an election to which the list of voters wherein his name appears relates, unless he has ceased to the capacity in which his name was entered in such list. That brings us to Rule 7, the proviso whereof is required to be construed. That Rules reads as under:

7. Preparation of list of voters for general election: (1) 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 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.

Under Rule 7(2) the authorised officer is enjoined with the duty to have the lists of voters prepared within seven days from the date fixed under sub-ruled). Rule 8 next provides for the publication of the provisional and final lists of voters. It lays down that the final list shall be prepared at least thirty days before the date fixed for the nomination of candidates for the election. The stages of election have to be fixed in accordance with Rule 10 of the Rules. That Rule inter alia requires that not less than forty days from the date fixed for the election under Rule 4, the Director shall publish in Gujarati a notice staling the number of persons to be elected by the respective electorate, the date on which and 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, the date, place and time for scrutiny of nomination papers, the date, place and time for taking of votes and the date place and time for counting votes cast at the said poll. Rule II deals with nomination with which we are presently not concerned. Rules 12 to 16 deal with the deposit of nominations, verification of nominations, publication of list of nominations, scrutiny of nominations and disposal of objections and rejection of nominations. Rule 17 deals with the withdrawal of candidature. Rules 18 to 20 indicate the procedure to be followed at the time of the poll. Rule 24 says that if a candidate dies, the Election Officer shall countermand the poll. The other rules in that part are not relevant for our purpose.

3. The Director by his order dated 2nd February 1980 fixed the general election of respondent No. 3 Market Committee on 23rd May 1980. Respondent No. 1 was appointed the Authorized Officer and respondent No. 2 was appointed the Election Officer for the purpose of the said election. Respondent No. 1 called for information as required by Clauses (i), (ii) and (iii) Rule 7. The said information containing the names of voters were to be supplied on or before 6th March 1980. Thereafter different dates were fixed by respondent No. 1 for publication of provisional and final lists of voters under Rule 8 of the Rules. The final list of voters was published on 11th April 1980. Thereafter the Director fixed the stages of election as required by Rule 10 of the Rules. However, before the election could he held, the Director by his order dated 6th May 1980 postponed the election to 1st July 1980. The election was held on that date and opponents Nos. 5, 7, 8, and 9 were declared elected. The petitioners had contested the election but they were not successful. They, therefore, challenged the election under Rule 28 of the Rules but in vain. They have, therefore, filed this petition under Article 226 of the Constitution.

4. The first contention which was urged before me by Mr. Vyas, the learned advocate for the petitioners, bears on the interpretation of the proviso to Sub-rule (1) of Rule 7 of the Rules. Argued Mr. Vyas, according to the said proviso, the period between the date to be fixed by the Director under the said sub-rule and the date of general election should not exceed sixty days. Mr. Jani, the learned advocate for the successful candidates contended that the proviso merely stipulates the minimum period between the date fixed by the Director under Rule 7(1) and the date of general election. In order to understand the rival contentions it is necessary to refer to the language of the proviso to Sub-rule (1) of Rule 7 reproduced earlier.

5. Now as stated earlier, under Rule 4 the Director is required to fix the date for the general election and publish it in accordance there with. Once that is done, the voters' lists have to be prepared according to Clauses (i), (ii) and (iii) of sec. II of the Act. For the purpose of preparing the voters' list certain information has to be called for as required by Clauses (i), (ii) and (iii) of Sub-rule (2) of Rule 7 of the Rules. This information has to be supplied to the Authorized Officer before such date as the Director may by his order fix in that behalf. Now the proviso to that sub-rule lays down that 'the date to be so fixed shall not be later than sixty days from the date of the general election'. According to Mr. Vyas the expression 'shall not be later than' clearly indicates that the time gap between the two dates should not exceed sixty days. As against this contention. Mr. Jani, the learned advocate for the successful candidates points out that the words 'shall not be later than' when put in positive form indicate that the minimum period between the two dates will be sixty days. There is considerable substance in the interpretation placed before me by Mr. Jani.

6. In the first place, on a plain reading of the proviso it appears that the legislative intent was to prescribe the minimum period between the date specified for sending of the information and the date fixed for the general election under Rule 4 of the Rules. But, argued Mr. Vyas, if the legislature desired to fix the minimum period between the two dates nothing Booting would have been simpler than to employ the expression 'not less than' which it did employ in Rule 10(2) to convey the said meaning. Cases are, however, not unknown where the draftsman uses different expressions to convey the same meaning depending on the structural setting in which the said expression is used. This becomes clear if we turn to Rule 8(2) where the expression used is 'at least 30 days before the date fixed for nomination...' to convey the same meaning. Now Rule 7(1) enjoins upon the Director to fix a date for receipt of the information for preparation of list of voters by the authorised officer. Such date according to the proviso shall not be later than sixty days from the date of election. Does the expression 'shall not be later than...' mean that the period between the two dates shall not exceed sixty days as urged by Mr. Vyas or does the legislature by use of the said expression desire to convey the minimum period between the said two terminal points? If Mr. Vyas is right the period can be anything between one day and sixty days, an interpretation which will make it impossible to compress the other stages such as preparation of the final list of voters, filing of nominations, etc., having regard to the time factor provided for such other stages under the Rules. It would be impossible to adhere to the different periods provided for the various stages if the interpretation canvassed by Mr. Vyas is accepted. To my mind, therefore, the proviso to Rule 7(1) prescribes the minimum period and not the maximum period as contended by Mr. Vyas.

7. My attention was invited to the case of Bhuban Mohan Basak v. Dacca Municipality : AIR1927Cal704 . There the general election of the Commissioners of the Dacca Municipality was notified to be held on 14th February 1925, under a notification issued on 5th November 1924. Thereafter the register of voters duly revised and updated was published on 1st December 1974. After scrutiny it was finally published on 31st January 1925, on which date polling officers were also appointed. However, on 10th February 1925 the election was postponed to 3rd March 1925, on the ground that contrary to Rules the final publication was made less than 15 days before the date fixed for the election. The change of date was duly notified by beat of drums. Fresh polling officers were appointed for the election to be held on the postponed date. The voters' register was republished on the same date. The election took place as scheduled on 3rd March 1925 according to the revised notification. The validity of that election was challenged by some of the rate-payers of the Dacca Municipality. Rule 5 provided that the general register shall be published not less than sixty days before the date fixed for a general election. Rule 9 required publication of the register not less than fifteen days before the date of election. It was held that the qualifying words in each instance have the effect of importing some elasticity to the time limits imposed. It was held that this requirement was complied with as the required interval had elapsed between these formalities and the date of the election. The argument that the necessary formalities should be complied with over again was rejected. In the instant case also the submission of Mr. Vyas was two-fold. Firstly, he submitted that the proviso to Rule 7(1) of the Rules enjoined upon the Director to so fix the date that the total period between the said date and the date of general election did not exceed sixty days. He next submitted that the date to be fixed under Rule 7(1) must be fixed after the Director has fixed the date of general election under Rule 4 of the Rules. In other words, according to Mr. Vyas, the first date which must be fixed must be the date of general election under Rule 4 and only thereafter can the Director fix the date under Rule 7(1) of the Rules. Once the Director has fixed the date under Rule 7(1) of the Rules, if there is any postponement of the general election and a fresh date is fixed, it is incumbent on the Director to fix another date under Rule 7(1) of the Rules so that the total period between the said date and the date of election does not exceed sixty days. Now 1 have already come to the conclusion that the interpretation of Mr. Vyas on the language of the proviso that the total period between the two dates must not exceed sixty days is clearly erroneous because the Legislative intent in enacting the proviso was obviously to indicate the minimum period between the two dates and not the maximum period. Where expressions such as 'not less than' are used, they import some elasticity to the time limit provided by the Legislature as observed by the Calcutta High Court. However, the proviso with which we are concerned says that the date to be fixed under Rule 7(1) shall not be later than sixty days from the date of the general election. That clearly means that the minimum period between the two dates must be at least sixty days. But the second limb of the submission of Mr. Vyas was that the date to be fixed under Rule 7(1) of the Rules is an event which must take place only after the Director has fixed the date of general election under Rule 4. If the date of general election is shifted or changed or postponed by the Director, the date earlier fixed under Rule 7(1) of the Rules would also have to be changed, shifted or postponed so that the total period between the two dales does not exceed sixty days. Mr. Vyas next submitted that even if the construction which he places on the proviso is not accepted and it is held that the proviso merely fixes the minimum period, the date to be fixed under Rule 7(1) can only be after the date of general election is fixed under Rule 4. On a conjoint reading of Rule 4 and Rule 7(1) of the Rules it becomes obvious that the first step that the Director must take is to fix the date of general election and thereafter he must fix the date for receipt of information under Rule 7(1) having regard to the proviso to that sub rule. That, however, does not mean that if the election is postponed to another date, the date fixed by the Director under Rule 7(1) loses all significance and must be revised after the date to which the elections are postponed is fixed under Rule 4. On such a hyper technical contention the election cannot be thrown overboard. Normally the date under Rule 7(1) can only be fixed after the date of the general election is known. There would be no point in calling for information under Rule 7(1) unless the Director has decided to hold general elections and has fixed the date thereof. Once, however, the election process has started by the fixing of the date for general elections, the date by which the information required by Rule 7(1) must be supplied is to be fixed. Once that date is fixed after the date of general election became known, merely because the date of general election is postponed, it is not imperative to refix the date under Rule 7(1) of the Rules. That would have been necessary if I had accepted the interpretation put by Mr. Vyas on the language of the proviso to Rule 7(1) of the Rules. However, since I am of the opinion that the language of the proviso merely indicates the minimum period between the date fixed under Rule 7(1) and the date of the general election, it is not necessary to refix the date under Rule 7(1) on the postponement of the election because the minimum period of sixty days would still be available between the two dates.

8. Strong reliance was placed by Mr. Vyas on an unreported judgment of N.H. Bhatt, J. in Special Civil application No. 925 of 1980 decided on 10th April 1980 in support of his contention that once the date of election is changed, the entire gamut has to be gone through afresh. The facts of that case reveal that after the date of general election of the concerned Market Committee was fixed, a petition was filed by some members complaining that the voters' list was not properly prepared. As a result of the interim injunction granted by the Court, the election programme was arrested and the election could not take place on the notified date. That petition was finally heard by Surti J., who by his judgment and order dated 4th October 1979 directed a fresh voters' list to be prepared in accordance with law after complying with the procedure in that behalf. Respondents Nos. 1 and 2 of that petition thought that only directions regarding the preparation of voters' list were to be implemented and the final voters list as it was in the year 1978, subject to changes ordered by the High Court, stood and so no date required under Rule 7 was fixed by the Director. After referring to Rule 7 my learned Brother observed that the essential step for fixing the date regarding the receipt of information bad not been complied with and hence the first essential step in the preparation of the electoral roll was missed. That was a case in which the elections were required to be held afresh and not a case of a mere postponement of the date of general election, as in the present case. That is why my learned brother observed:

When the elections are required to be held afresh and when the 1978 gamut has been lost because of the Court's injunction operative till the conclusion of the earlier Special Civil Application, what was done by that time loses all significance.

9. He, therefore, held that for the purpose of holding a fresh election, a flesh date must be notified by which date the concerned Co-operative Societies may indicate the names of the members of their Managing Committee to the Authorized Officer. As the said essential requisite had not been complied with, it was felt that the lapse went to the root of the matter and hence the election process was vitiated. It is, therefore, obvious from the facts of that case that having regard to the lapse of time because of the intervening injunction issued by this Court, it bad become necessary as per the final directions given in the writ petition by Surti, J.' to hold a fresh election and for that purpose to go through the entire gamut afresh. It was in those special circumstances that my learned brother held that unless a fresh date is fixed under Rule 7(1) of the Rules, it was not possible to complete the voters' list as required by law and hence the election could not take place on the appointed day. That was not a case where the election had been postponed to a subsequent date. Therefore, in my opinion the decision of Bhatt J., cannot come to the aid of the petitioners.

10. It may at this stage be mentioned that in the course of his submissions Mr. Vyas faintly staled that under Rule 4 the Director can fix the date of general election but once he has done so, the power is exhausted and there is no power given by any other rule to postpone the election to another date. There is no merit in this submission because Section 21 of the Bombay General Clauses Act says that where, by any Bombay Act, or Gujarat Act, a power to issue notifications, orders, rules or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions to add to amend vary or rescind any notifications, orders rules or by-laws, so issued. It is, therefore, obvious that under the said section the power to fix a date for election would include the power to postpone any date so fixed. This is also the view expressed by the Calcutta High Court in Bhuban Mohan Basak's case. (supra).

11. Before I part with this case I must mention one contention which was urged by Mr. Jani, the learned advocate for the successful candidates. He submitted that this Court under Article 226 of the Constitution should not interfere with the election result because it is not the case of the petitioners that the postponement of the date has in any manner affected the result of the election. In support of this contention Mr. Jani also invited my attention to the observations of the Calcutta High Court in the aforesaid case at page 707. Since I have come to the conclusion that both the planks on which the election is challenged by the unsuccessful candidates have no merit, the petition must fail on merits and it is not necessary to entertain the technical objection raised by Mr. Jani.

12. In the result, therefore, this petition fails and is dismissed. Rule is discharged with costs. Interim relief will stand vacated.


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