CHAVDA MEVAJI SENDHAJI vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/12680/2026 JUDGMENT DATED: 13/10/2026
(GJHC240659332026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12680 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 12683 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 12684 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 12687 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
Approved for Reporting Yes No
==========================================================
CHAVDA MEVAJI SENDHAJI & ANR.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR. P.K. JANI, SENIOR ADVOCATE WITH MR DIPAN DESAI(2481) for the
Petitioner(s) No. 1,2
MR. DHAWAN M. JAYSWAL, AGP WITH MR. VAIBHAV SHARMA, AGP for the
Respondent(s) No. 1,2,3,4 IN SPECIAL CIVIL APPLICATION NO.12680 OF
2026
MR. DHAWAN M. JAYSWAL, AGP WITH MS. KRISHNA DESAI, AGP for the
Respondent(s) No. 1,2,3,4 IN SPECIAL CIVIL APPLICATION NO.12683 OF
2026
MR. DHAWAN M. JAYSWAL, AGP WITH MR. ANGESH A. PANCHAL, AGP for
the Respondent(s) No. 1,2,3,4 IN SPECIAL CIVIL APPLICATION NO.12684 OF
2026
MR. DHAWAN M. JAYSWAL, AGP WITH MR. HENIL SHAH, AGP for the
Respondent(s) No. 1,2,3,4 IN SPECIAL CIVIL APPLICATION NO.12687 OF
2026
MR RB THAKOR(6743) for the Respondent(s) No. 5
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 13/10/2026
COMMON ORAL JUDGMENT
Since this bunch of matters relates to the election of the
Agricultural Produce Market Committee (for short, “APMC”), Bhabhar,
involving similar facts and raising common issues of law, the matters
were heard together and are decided by this common judgment.
[2.] Considering the nature of the dispute involved, the
matters were peremptorily heard at the admission stage finally with
the consent of the learned advocates appearing for the respective
parties.
[3.] Learned Senior Advocate Mr. Prakash K. Jani appearing
with Mr. Dipan Desai, learned advocate on record for the petitioners,
has assailed the impugned orders passed by the Authorized Officer,
whereby the challenge made to the exclusion of members of the
respondent Primary Co-operative Society has been turned down.
[4.] Learned AGP Mr. Dhawan Jayswal appearing for the
respondents- State authorities, has vehemently objected to the
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maintainability of the petition at the instance of the petitioners by
contending that the petitioners have no locus standi to challenge the
impugned orders passed by the Authorized Officer, as they are not the
members of any Co-operative Society. He has also disputed the
maintainability of the petition on the ground that once the election
process has started, the inclusion and exclusion of the voters in the
voters' list cannot be considered as exceptional circumstances so as to
invoke writ jurisdiction under Article 226 of the Constitution of India.
Considering the scope of the petition, the only remedy available to the
petitioners, in case they have any locus, is to challenge the result of
the election by filing an Election Petition.
[5.] Learned Senior Advocate Mr. Prakash Jani, responding to
the aforesaid preliminary objection raised by the respondents-State
Authorities, has conceded to the fact that the petitioners are not the
members of the respondent-Society. However, he refuted such
objection by submitting that the controversy concerns the election of
the APMC, Bhabhar, which otherwise relates to the entire market area,
and is not merely confined to the internal affairs of the society of one
village. He further submitted that members of the Managing
Committee of Primary Agricultural Co-operative Societies collectively
form the electoral college for the agriculturist constituency.
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Therefore, if 21 members from another village are wrongly included in
their common electoral college, any agriculturist or even a stakeholder
engaged in the activity within the same market area of the APMC is
directly affected. Additionally, he submitted that, even otherwise,
having raised the objection before the Authorized Officer though
rightly or wrongly, his objections were turned down by the Authorized
Officer, being aggrieved by the outcome of such proceedings, the
petitioners have a legal right to avail the remedy available in law.
According to him, the right to object arises from the impact, which is
likely to cause on the APMC electorate and, therefore, has no relation
with regard to membership of the respondent-Society.
[5.1] On the merits of the case, learned Senior Advocate had
submitted that Section 11(1)(i) of the APMC Act does not confer one
institutional vote upon any Primary Agricultural Co-operative Society.
The actual voters are the individual members of its Managing
Committee. Consequently, before those individuals can enter the
voters' list, the Authorized Officer is under an obligation to ascertain
the foundational facts, more particularly, that they are legally elected
members of a Managing Committee, so as to treat the Primary
Agricultural Co-operative Society as qualified to be included in the
voters' list. He has further pointed out that, if the operative bye-laws
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governing the Primary Agricultural Co-operative Society confine the
membership of the Managing Committee to the extent of 11, the
respondent Primary Agricultural Co-operative Society, having
forwarded the names of 21 members, clearly violates its bye-laws. In
the absence of the bye-laws being amended, such an attempt on the
part of the respondent- Co-operative Society amounts to enlarging the
electorate of the APMC, which cannot be treated as an irrelevant
internal irregularity to be ignored.
[5.2] In this regard, learned advocate for the petitioner had
invited my attention to the reasons assigned by the Authorized
Officer. It was submitted that the Authorized Officer did not
adjudicate the matter like a full co-operative election dispute.
However, the obligation is there to ascertain basic constituent facts, as
to whether a Managing Committee “ legally” exists; what was its
permissible strength under the registered bye-laws; whether the
persons forwarded were members; whether any election actually took
place; and whether those persons held the capacity in which the
voting right is claimed. According to him, there exists a thin
distinction between two issues, that is, the legality of a contested
election and determining the anterior fact as to whether there was an
election at all.
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[5.3] In order to substantiate his arguments, learned Senior
Advocate had placed reliance upon the decision of this Court in the
case of Mandropur ( Fatehpur) Juth Seva Sahkari Mandali Limitad &
Ors. vs. State of Gujarat & Ors., delivered in Special Civil
Application No. 8034 of 2016 decided on 14.06.2016 . In order to
elaborate his arguments, learned Senior Advocate had invited my
attention to the requirement in the provisions of the Act of a 21-
member Managing Committee. He had further pleaded the
chronology of the events by submitting that the 21-member
committee was constituted, according to them, on 24.06.2023,
whereas the resolution for amendment of the bye-laws followed on
18.08.2023, which was permitted by the competent authority namely
the Registrar of Co-operative Societies, on 15.01.2024. However, such
amendment had remained invalid inasmuch as, the subsequent
registration of the bye-law permitting 21 members itself does not
automatically establish that the 21 members who had earlier been
inducted contrary to the then-existing bye-law thereby became
lawfully elected members.
[ 5.4] In this regard, he has placed reliance upon Section 13 of
the Gujarat Co-operative Societies Act, 1961, and, has submitted that
an amendment shall become effective only upon registration. Thus,
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according to him, a proposed enlarged strength could not be acted
upon before registration. Even if, for the sake of argument, after
registration the society desired to have a 21-member committee, it
has to be established by the respondent Primary Co-operative Society
that, by virtue of the lawful election, the said members have been
included in the Managing Committee and, such reconstitution had
taken place under the then co-operative amended bye-laws. Thus, it
was submitted that the later registration of the bye-law cannot by
itself retrospectively validate the manner in which the earlier 21-
members body came into existence.
[5.5] Again, to substantiate his arguments, he has relied upon
the order dated 22.04.2016, passed by this Court in the case of Shri
Vadi Khedut Seva Sahakari Mandali Limited vs. State of Gujarat
and Orthers. rendered in Speical Civil Application No.3268 of 2016 .
He has also relied upon the decision of this Court in the case
of Rathod Thakarshibhai Bhuraji & Ors. Vs. State of Gujarat passed
in R/Special Civil Application No. 11904 of 2023 and allied matters
on 21.08.2023. He has fairly pointed out the factual distinction in
these matters by submitting that in the present matters the
amendment has been registered before the APMC election 2026
being declared. He has emphasized on the significance of the
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members of the Managing Committee to be elected as against
selected, nominated, or unanimously chosen, which according to him,
are not necessarily equivalent to an election. Thus, the legality of the
Managing Committee of the respondent no.5-Co-operative Society
was challenged on the ground that the 21 members included in the
Managing Committee were inducted by mode of selection/nomination
and not by election. It was pointed out from the record that there was
no statutory election being conducted by the respondent societies,
inasmuch as, the 21-members Managing Committee was constituted
by mode of selection/nomination on merely by passing resolutions by
the general body of the respondent no.5- Co-operative Societies.
[5.6] Having invited my attention to the aforesaid
circumstances, learned advocate had submitted that the legal process
actually followed shall thus be decisive so as to ensure a fair and
transparent election of the APMC. Once again, the stress was made on
the observations made by this Court in the case of Mandropur (supra)
as well as in the case of Shri Vadi Khedut Seva Sahakari Mandali
Limited (supra).
[5.7] Inviting my attention to the reasons assigned by the
Authorized Officer, learned Senior Advcoate Mr. Jani had vehemently
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submitted that, if the facts recorded by the Authorized Officer based
on the appreciation of the record are to be believed, the earlier
committee was constituted/elected on 29.06.2022; and if the
provisions of Section 74(1)(C)(i) of the Gujarat Co-operative Societies
Act, 1961, are to be applied, whereby the term of “elected members”
of the Managing Committee is fixed as five years from the date of
election, then the five-year term of the aforesaid earlier committee
was ordinarily expected to be continue till June 2027. He has,
therefore, questioned as to in what manner, another 21-members’
committee was constituted in June 2026 in the interregnum, when the
earlier committee's statutory term period had not expired. Again,
reference was made to the decision of this Court in the case of Shri
Vadi Khedut Seva Sahakari Mandali Limited (supra). He had pointed
out that it would be relevant to note that the aforesaid decision dealt
with a similar issue.
[5.8] Learned Senior Advocate had further emphasized that the
alleged reconstitution of the Managing Committee occurred in the
late June 2026, whereas the APMC election program was declared on
06.07.2026. Considering the proximity of the aforesaid relevant dates,
he has submitted that temporal proximity by itself proves illegality.
Even the very fact that a substantial alteration of the electoral college
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was made immediately before the declaration of the election, the
aforesaid factor was required to be closely examined by the
Authorized Officer to verify the foundational relevant facts with care.
The manner in which the enhanced number of 21 members was given
effect to be included in the voters' list would, introduce 21 individual
voters and not merely one institutional vote.
[5.9] Another factual objection, which was raised by the
learned advocate for the petitioner was with regard to the primary
membership status of the persons shown as Managing Committee
members. Reference was made to the transcript records, a dispute
between the list said to have been available before the Authorized
Officer and later material relied upon before this Court. The
petitioners therefore, contended that for some persons shown as
Managing Committee members, their names were not consistently
reflected as primary members. He has, therefore, submitted that if a
person, who is not even a qualified primary member on the relevant
date, his purported induction into the Managing Committee leads to
him deriving a right to vote in the APMC election, which fact was
required to be scrutinized by the Authorized Officer.
[5.10] Learned Senior Advocate Mr. Jani had emphasized on the
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fact that, in fact, as can be gathered from the impugned order, at the
preliminary stage the Authorized Officer had not included the
concerned respondent societies because of the discrepancies noticed
in the constitution of the Managing Committee and the amendment to
be brought in the bye-laws. It was only after the explanation was
furnished, the names of the respondent Managing Committee
members of the respondent APMC were included in the
provisional/final voters' list. In view of the above, he had submitted
that once the Officer himself had identified a foundational defect, his
subsequent decision to include the names of such persons was
required to be demonstrated by assigning reasons as to in what
manner, the discrepancy has been legally/lawfully resolved.
[5.11] Referring to the aforesaid submissions, learned Senior
Advocate had submitted that the APMC elections are required to be
conducted in a fair and transparent manner, and if an invalid Managing
Committee of the Co-operative Society, which includes the members,
who are not even qualified primary members, being permitted to vote
in the election of the APMC, it shall have a direct bearing on the
outcome of the result of the election. He has, therefore, submitted
that this is not an ordinary case of mere exclusion/inclusion of the
members of the Managing Committee in the voters' list, which can be
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remedied by way of an Election Petition as provided under Rule 28 of
the APMC Rules. According to him, looking to the aforesaid
controversy involved, these cases fall in the exceptional category as
there is a total non-application of mind on behalf of the Authorized
Officer, ignoring vital aspects, that is, the subsisting five-year term,
accepting 21-members body contrary to the operative bye-laws at the
relevant stage, failing to verify whether any election had actually
occurred, and accepting inconsistent material regarding primary
membership. In support of his submissions, reliance was placed on the
decision of the Division Bench of this Court in the case of Ishwarbhai
Narayanbhai Patel vs. State of Gujarat rendered in Letters Patent
Appeal No.1821 of 2019 and allied matters on 22.11.2021 and the
decision of the Full Bench of this Court in the case of Daheda Group
Seva Sahakari Mandali Ltd. vs. R.D. Rohit reported in 2006 (1) GCD
211 (Guj) (FB). He has, therefore, prayed to quash and set aside the
impugned orders passed by the Authorized Officer and to exclude the
name of the respondent Co-operative Society from the voters' list.
[6.] Per contra, learned AGP Mr. Dhawan Jayswal appearing
for the respondents-State authorities, has vehemently submitted that
essentially the prayer, which is sought for, is with regard to the
deletion of the respondent Primary Agricultural Co-operative Society
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from the voters' list. However, what is required to be considered, at
the outset, is the locus standi of the petitioners to challenge the
election process. He has reiterated that the petitioners who have
challenged 21-members committee of the respondent no.5-Co-
operative Societies are not even its members and have no internal
membership rights in those societies. He has further submitted that
though it is projected that the challenge is made to the APMC voters'
list, however, such proceedings cannot be used by third-party
agriculturists as the substitute to the remedy prescribed under the
law with regard to the challenge to the constitution, election, or
internal management of the respondent- Co-operative Society before
the appropriate forum. The State has emphasized that the
amendment of the bye-laws and the constitution/continuation of the
Managing Committee had not been set aside by the Registrar, the
Board of Nominees, or by the Tribunal or any Competent Forum at the
instance of any of its members, who would be otherwise affected. So
long as the amended bye-laws stood registered and operative, no
error can be found with the approach of the Authorized Officer, who
could otherwise not proceed as though the registered position did not
exist.
[6.1] According to learned AGP, the Authorized Officer cannot
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adjudicate the internal election of the Managing Committee of the
respondent no.5- Co-operative Society by questioning whether the
committee was validly elected; whether a general body resolution was
lawful; whether the committee's term had expired, or whether the
election/nomination of a particular member should be set aside, which
according to him otherwise are governed by the provisions of the
Gujarat Co-operative Societies Act, 1961, and the remedies provided
thereunder. He has, once again, emphasized on the fact that the
nature of the proceedings before the Authorized Officer, who is an
Election Officer in charge of the APMC election, is summary in nature
whereby he is expected to prepare a voters' list. Thus, according to
learned AGP the Authorized Officer cannot conduct a full-fledged
adjudication on the dispute revolving around the internal affairs of the
Primary Co-operative Society.
[6.2] As regards the discrepancy in the amended bye-laws
permitting 21 members is concerned, learned AGP has distinguished
the chronology from the cases where the bye-laws amendment itself
became effective only after the commencement of the APMC election.
According to him, in the present set of matters, the amendment
permitting 21-members Managing Committee had already been
registered before the election process of the concerned APMC started
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in 2026. He has once again emphasized on the fact that, admittedly,
the petitioners or any other objectors have not obtained any orders
setting aside those amendments in the bye-laws. In such
circumstances, the Authorized Officer was entitled to proceed on the
premises of the registered bye-laws unless and until they were
displaced by a competent forum. In order to substantiate his
arguments, learned AGP has invited my attention to the observations
made by this Court in the case of Rathod Thakarshibhai Bhuraji
(supra) . Factually distinguishing the case law, he submitted that the
successful group there involved eligibility arising after the
commencement of the election process.
[6.3] According to the State, the Officer can look at the
society's official records to ascertain as to who are shown as Managing
Committee members. However, once the objection requires
determination of disputed questions regarding resolutions, statutory
tenants, the validity of an internal election, or the retrospective effect
of a bye-law amendment, the summary inquiry ceases to be merely
foundational and becomes adjudicatory. He has, therefore, submitted
that, looking to the nature of the proceedings entrusted to the
Authorized Officer, if the objections raised by the petitioners are to be
accepted, it would amount to exceeding the jurisdiction conferred
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upon the Authorized Officer under the APMC Rules. On the issue of
the five-year term argument is concerned, learned AGP had submitted
that such objections can be examined once the election is finally
conducted by way of preferring an Election Petition under Rule 28 of
the APMC Rules.
[6.4] He has further submitted that the question as to whether
June 2026 resolution amounted to a replacement, expansion,
continuation, or reconstitution of the earlier committee, and what
legal effect it shall have on the subsisting tenure of the Managing
Committee, are the disputed questions of facts, which are required to
be appreciated within the co-operative law framework. He has,
therefore, submitted that a third-party objector cannot seek from the
Authorized Officer to conclusively adjudicate on such internal disputes
in summary proceedings of inclusion and exclusion of voters in the
voters' list. As regards the issue of selection/nomination as against
elected members, the State had submitted that the actual resolutions
and the official records have been looked into by the Authorized
Officer. The transcript produced before the Authorized Officer
records that the resolution was passed wherein it was recorded that
the persons have been unanimously elected. In view of the aforesaid
record, no error can be found with the approach of the Authorized
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Officer to discard the objections raised by the petitioners.
[6.5] As regards the discrepancy with regard to primary
membership records is concerned , learned AGP has submitted that
the Authorized Officer has merely referred to the list and the
resolution showing the concerned names as primary members of the
respondent Co-operative Society. Learned AGP had disputed the
allegations made with regard to the material being created for the
proceedings before this Court and he offered to place the relevant
resolution on affidavit. He has further submitted that, in fact, this
would amount to entering into the arena of disputed questions of
facts and, therefore also, the petitions are required to be dismissed, in
view of the efficacious remedy of an Election Petition being available
to the petitioners. He has further submitted that regarding the fact
that a society was initially omitted from the primary list, having
obtained the necessary explanation resolving the discrepancies, the
Authorized Officer, having appreciated the explanation and the
supporting material on record and being satisfied, has passed the
impugned order including the names of the respondent Co-operative
Society in the voters' list. He has, therefore, disputed the contention
that initial non-inclusion necessarily made the later inclusion arbitrary
at the hands of the Authorized Officer.
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[6.6] He has further submitted that the present petitions
require examination of the entire history of committee constitution,
bye-law amendments, membership status, resolutions, tenure, and the
alleged election procedure, which can substantially be examined by
way of an Election Petition. According to him, such an inquiry would go
substantially beyond checking the facial eligibility of names forwarded
under Rule 7 and would effectively convert the Authorized Officer into
the Board of Nominees/co-operative adjudicatory forum. He has,
therefore, disputed the applicability of the principles laid down by this
Court in the case of Mandropur (supra ), in the facts of the case.
[6.7] Learned AGP has vehemently disputed the attempt made
by the learned Senior Advocate with regard to non-application of mind
by the Authorized Officer while passing the impugned order.
According to the State, the Authorized Officer has considered the
registered bye-laws' position, the explanation put forward by the
respondent Co-operative Society, and the material produced before
him. Merely because the petitioners are pursuing the matter which
involves deep scrutiny into the issues of tenure, election, and
membership, it cannot be said that the Authorized Officer has failed
to apply his mind. Lastly, the learned AGP had invited my attention to
Rule 28 of the APMC Rules, which according to him is the efficacious
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statutory remedy made available by the legislation to deal with such
issues of inclusion and exclusion in the APMC electoral roll. He has also
relied upon the relevant observations made by the Full Bench in the
case of Daheda Group Seva Sahakari Mandali Ltd. (supra) as well as
of the Division Bench in the case of Ishwarbhai Narayanbhai Patel
(supra). According to him, noticing the aforesaid disputed questions of
fact, the present matters do not fall within the narrow exceptional
category recognized by this Court in the aforesaid decisions, which
otherwise permits the Court's immediate interference.
[6.8] Apart from the aforesaid decisions, learned AGP has also
placed reliance upon the decision of the Division Bench of this Court in
the case of Lekhamba Gopalan Ane Samudayik Sahakari Mandli
Limited & Ors. Vs. State of Gujarat and Ors. rendered in Letters
Patent Appeal Nos. 230 of 2016 and allied matters decided on
08.08.2016. Reliance was also placed on the decision of this Court in
the case of Shree Abhay Gopalak Vividh Karyakari Sahakari Mandali
Limited Vs. State Of Gujarat & Ors. rendered in Special Civil
Application No. 2000 of 2016 and allied matters , decided on
15.03.2016.
[7.] In rejoinder, learned Senior Advocate Mr. Jani, has
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submitted that the present petitions are confined to the issue as to
whether the persons claiming the right to vote were qualified,
inasmuch as the basic statutory capacity and necessary for inclusion in
the electoral roll has been fulfilled. Thus, according to him, the
objections were not raised with a view to seeking the Authorized
Officer to adjudicate every internal affair of the society, but the
objections were raised to determine as to whether the persons whose
names have been forwarded were statutorily capable to participate in
the election program as members of the Managing Committee. He has
further submitted that the petitioners, being not the members of the
respondent Primary Co-operative Society, cannot challenge the
validity of the bye-laws, the constitution of the Managing Committee
of such Primary Co-operative Society by availing the remedy provided
under the APMC Act. He has therefore urged this Court to allow the
present petitions.
[8.] Considering the arguments raised by learned Senior
Advocate appearing for the petitioners and the learned AGP
appearing for the respondents-State Authorities, and having noted
the reasons assigned by the Authorized Officer in the impugned order,
this Court, in the midst of hearing of the petitions, vide order dated
29.09.2026, had called upon learned advocate Mr. R. B. Thakor
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appearing for respondent no. 5- Primary Co-operative Society to
produce on record the Resolutions passed by the General Body, more
particularly, Resolution No. 5 dated 28.06.2026, by way of an affidavit.
[9.] Noticing the controversy involved, by way of interim relief,
directed the respondent- Authorized Officer not to proceed with the
declaration of the results till the next date of hearing.
[10.] The matter was notified for consideration on 30.09.2026.
However, the hearing could not progress in the absence of the
affirmed copy of the affidavits of respondent no. 5 directed to be
placed on record. On the 01.10.2026, the affidavits of the respective
respondent- Primary Co-operative Societies were placed for
consideration along with the Resolutions passed by the General Body.
Learned advocate for respondent no. 5 had chosen not to argue or
make any submissions. However, he has mainly placed reliance upon
the affidavit filed on behalf of respondent no. 5 as well as the
Resolution dated 28.06.2026 passed by the General Body with regard
to the appointment of 21 members. Thus, he has supported the
impugned order.
[11.] I have heard the learned advocates appearing for the
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respective parties and have carefully considered their arguments, in
light of the averments made in the petitions, the material placed for
consideration, and the affidavit filed by respondent no. 5 along with
the Resolutions.
[12.] Before examining the merits of the matter, it would be
appropriate to first consider the preliminary objection raised by the
learned AGP for the respondents- State Authorities as regards the
locus standi of the petitioners to prefer the writ petition. In this
regard, it would be appropriate to note that it is an undisputed fact
that the petitioners are agriculturists having their agricultural lands
within the market area of APMC, Bhabhar, and therefore, have
questioned the action of the Authorized Officer of the illegal inclusion
of the members of respondent no. 5- Primary Co-operative Society in
the voters' list for the election of APMC, Bhabhar.
[13.] It is also required to be noted that the petitioners have
availed of the statutory mechanism provided under the Act of 1963 by
raising objections before the Authorized Officer at the stage of
preparation of the voters' list. They have specifically raised objections
of inclusion of respondent no. 5- Primary Co-operative Society in the
electoral roll of the concerned APMC on the ground that the
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Managing Committee of such Primary Cooperative Society has not
been legally constituted in terms of Section 74 of the Gujarat Co-
operative Societies Act, 1961.
[14.] It is also an undisputed fact that the objections raised by
the respective petitioners have been turned down by the Authorized
Officer. In view of the above, the petitioners have derived a legal right
as "aggrieved persons" to prefer the writ petition under Article 226 of
the Constitution of India.
[15.] For the aforesaid reasons, the preliminary objection raised
by the learned AGP on the issue of locus standi of the petitioners to
prefer the writ petition challenging the aforesaid decision of the
Authorized Officer is misconceived and, is hereby not entertained.
[16.] As regards another preliminary objection raised about the
maintainability of the writ petition on the ground of settled legal
principles that where an election process has started, the dispute has
to be agitated by way of an Election Petition, more particularly, in view
of Rule 28 of the APMC Rules, where an effective alternative remedy
is made available under the statute; in my view, it is true that the said
principle shall be applicable in such cases of inclusion or exclusion of
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members in the voters' list of an election of APMC. However, the
applicability of the said principle has to be appreciated in light of the
facts of each case.
[17.] I have carefully considered the judgment relied upon by
the learned AGP in the case of Daheda Group (supra) , wherein the
Court has ruled that preparation of the voters' list is a part of the
election process for constituting a managing committee of the
specified society, and such dispute can be resolved by way of an
Election Petition; however, the aforesaid principle has to be applied in
the facts of the case.
[18.] At this stage, it would be appropriate to revisit the
landmark judgment of the Hon'ble Division Bench of this Court in the
case of Ishwarbhai Narayanbhai Patel (supra) , wherein this Court has
in detail dealt with the ratio of the statutory and alternative remedy
provided under Rule 28 of the APMC Rules as well as the Full Bench
decision of this Court in the case of Daheda Group (supra) as relied
upon. Appropriate would be to reproduce the relevant observations
made by the Hon'ble Division Bench in the aforesaid decision, more
particularly in paras 75 to 79, which read as under:
“75. We are of the view having regard to the facts of the present
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case that we should not decline to entertain the present appeals only
on the ground of alternative remedy as provided in Rule 28 of the
Rules, 1965. We go by the dictum of the Full Bench as laid in the case
of Daheda Group Seva Sahkari Mandli Ltd (supra), wherein the Full
Bench held that although a petition under Article 226 of the
Constitution of India is maintainable despite availability of an
alternative remedy, yet the powers are to be exercised in the case of
extraordinary or special circumstances such as where the order is ultra
vires or nullity and / or ex facie without jurisdiction.
76. In the present litigation, the issue is not just about exclusion or
inclusion of names in the voters list. The central question involved in
the present litigation is with regard to the interpretation of the phrase
"primary agricultural credit cooperative societies dispensing
agricultural credit in the market area". This phrase contained in
Section 11 of the Act, 1963 goes to the root of the matter while
deciding the rights of the parties.
77. Thus, where a statute provides for election to an office, or an
authority or institution and if it further provides a machinery or forum
for determination of dispute arising out of election, ordinarily, the
aggrieved person should pursue his remedy before the forum provided
by the statute. While considering an election dispute, it must be kept
in mind that the right to vote, contest or dispute election is neither a
fundamental or common law right; instead it is a statutory right
regulated by the statutory provisions. It is not permissible to invoke
the jurisdiction of the High Court under Art.226 of the Constitution by-
passing the machinery designated by the Act for determination of the
election dispute. Ordinarily, the remedy provided by the statute must
be followed before the authority designated therein. But there may be
cases like the one on hand where exceptional or extraordinary
circumstances may exist to justify by-passing the alternative remedies.
78. On the issue of alternative remedy being available to the
appellants, the recent pronouncement of the Supreme Court in the
case of Radha Krishan Industries vs. State of Himachal Pradesh and
others reported in (2021) 6 SCC 771 clinches the issue. In the said
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decision of the Supreme Court, the following observations are
important:
24. The High Court has dealt with the maintainability of the petition
under Article 226 of the Constitution. Relying on the decision of this
Court in Assistant Commissioner (CT) LTU, Kakinada and others v Glaxo
Smith Kline Consumer Health Care Limited [AIR 2020 SC 2819], the
High Court noted that although it can entertain a petition under
Article 226 of the Constitution, it must not do so when the aggrieved
person has an effective alternate remedy available in law. However,
certain exceptions to this "rule of alternate remedy" include where,
the statutory authority has not acted in accordance with the
provisions of the law or acted in defiance of the fundamental
principles of judicial procedure; or has resorted to invoke provisions,
which are repealed; or where an order has been passed in violation of
the principles of natural justice. Applying this formulation, the High
Court noted that the appellant has an alternate remedy available
under the GST Act and thus, the petition was not maintainable.
25 In this background, it becomes necessary for this Court, to dwell on
the "rule of alternate remedy" and its judicial exposition. In Whirlpool
Corporation v. Registrar of Trademarks, Mumbai [(1998) 8 SCC 1]
("Whirlpool"), a two judge Bench of this Court after reviewing the case
law on this point, noted:
"14. The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other
provision of the Constitution. This power can be exercised by the High
Court not only for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights contained in Part III of
the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having
regard to the facts of the case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective and efficacious
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remedy is available, the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been consistently held by
this Court not to operate as a bar in at least three contingencies,
namely, where the writ petition has been filed for the enforcement of
any of the Fundamental Rights or where there has been a violation of
the principle of natural justice or where the order or proceedings are
wholly without jurisdiction or the vires of an Act is challenged. There is
a plethora of case-law on this point but to cut down this circle of
forensic whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold the field."
(emphasis supplied) 26 Following the dictum of this Court in Whirlpool
(supra), in Harbanslal Sahnia v Indian Oil Corpn. Ltd. [(2003) 2 SCC
107], this court noted that:
"7. So far as the view taken by the High Court that the remedy by way
of recourse to arbitration clause was available to the appellants and
therefore the writ petition filed by the appellants was liable to be
dismissed is concerned, suffice it to observe that the rule of exclusion
of writ jurisdiction by availability of an alternative remedy is a rule of
discretion and not one of compulsion. In an appropriate case, in spite
of availability of the alternative remedy, the High Court may still
exercise its writ jurisdiction in at least three contingencies: (i) where
the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is failure of principles of natural justice; or (iii) where
the orders or proceedings are wholly without jurisdiction or the vires
of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade
Marks [(1998) 8 SCC 1]. The present case attracts applicability of the
first two contingencies. Moreover, as noted, the appellants'
dealership, which is their bread and butter, came to be terminated for
an irrelevant and non-existent cause. In such circumstances, we feel
that the appellants should have been allowed relief by the High Court
itself instead of driving them to the need of initiating arbitration
proceedings."
(emphasis supplied) 27 The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can
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be exercised not only for the enforcement of fundamental rights, but
for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition.
One of the restrictions placed on the power of the High Court is where
an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ
petition has been filed for the enforcement of a fundamental right
protected by Part III of the Constitution; (b) there has been a violation
of the principles of natural justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a legislation is
challenged;
(iv) An alternate remedy by itself does not divest the High Court of its
powers under Article 226 of the Constitution in an appropriate case
though ordinarily, a writ petition should not be entertained when an
efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy before invoking the
discretionary remedy under Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a rule of policy, convenience
and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court
may decide to decline jurisdiction in a writ petition. However, if the
High Court is objectively of the view that the nature of the controversy
requires the exercise of its writ jurisdiction, such a view would not
readily be interfered with.
28 These principles have been consistently upheld by this Court in Seth
Chand Ratan v Pandit Durga Prasad [(2003) 5 SCC 399], Babubhai
Muljibhai Patel v Nandlal Khodidas Barot [(1974) 2 SCC 706] and
Rajasthan SEB v. Union of India [(2008) 5 SCC 632], among other
decisions."
79. Thus, in a case where the statutory authority has not acted in
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accordance with the provisions of law or acted in defiance of the
fundamental principles of judicial procedure, or has resorted to invoke
provisions which are repealed, or where an order has been passed in
violation of the principles of natural justice, then, in such
circumstances, the Writ Court should not hesitate to entertain the writ
application despite the fact that the aggrieved person has an
efficacious alternative remedy available in law. In the case on hand,
as discussed above, the authorized officer has completely misread
Section 11 of the Act, 1963, and the entire impugned order is based on
such misinterpretation of Section 11 of the Act, 1963.”
[19.] In view of the aforesaid legal principles laid down by the
Hon'ble Division Bench, the legal principle which can be culled out is
that normally the dispute pertaining to the election of APMC should
be considered in an Election Petition provided under Rule 28 of the
APMC Rules, 1965. However, where the statutory authority, namely
the Authorized Officer, has not acted in accordance with the
provisions of law, or has acted in violation of the fundamental
principles of judicial procedure, or has resorted to invoke provisions
which are repealed, or where an order has been passed in violation of
the principles of natural justice, the Writ Court can entertain the writ
application despite the availability of a statutory alternative remedy.
[20.] Bearing in mind the aforesaid well-settled legal principles,
noticing the various issues of law which have been raised for
consideration in the present petitions, in view of the arguments
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canvassed, it would be appropriate to examine the impugned order in
light of the provisions of law so as to ascertain as to whether
exceptional circumstances have been made out to entertain the writ
petition.
[21.] Considering the arguments made by the learned
advocates appearing for the respective parties, the core issue of law,
which arises for consideration of this Court as regards the merits of
the case are concerned is that:
"Whether the Election Officer while preparing the voters' list
of members of managing committees of cooperative
societies (other than cooperative marketing societies)
dispensing agricultural credit in the market area in terms of
clause (i) of sub-section (1) of Section 11 of the Gujarat
Agricultural Produce Markets Act, 1963 read with the Rules
of 1965 can ascertain the aspect of the managing committee
of the primary cooperative society being qualified to vote at
the election?"
[22.] In order to appreciate the aforesaid issue of law, it would
be appropriate to take into consideration the relevant provisions of
the Act of 1963 and the rules framed thereunder. Section 11 of the Act
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of 1963 provides for the constitution of the marketing committee of
an APMC. As per Section 11(1) of the APMC Act, only the elected
members of the Managing Committee of the Primary Co-operative
Society are required to be included in the voters' list of the
agriculturists' constituency.
[23.] As per Rule 5 of the Gujarat Agricultural Produce Markets
Rules, 1965, for the purpose of Section 11, in respect of a market
committee, three separate lists of voters are recognized in the State
of Gujarat, which include the list of members of managing committees
of cooperative societies (other than cooperative marketing societies)
dispensing agricultural credit in the market area. Rule 6 of the Rules of
1965, lays down or provides as to who shall be qualified to vote. Thus,
it is provided that 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
relates, unless he has ceased to hold the capacity in which his name
was entered in such list.
[24.] Rule 7 and Rule 8 of the aforesaid Rules of 1965 envisage
the procedure, which is to be followed by the Authorized Officer for
the preparation of the list of voters for the general election as well as
the provisional and final publication of the list of voters.
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[25.] The question arises as to the nature of the inquiry to be
undertaken by the Authorized Officer while undertaking such exercise
of preparation of the list of voters. In this regard, it would be
appropriate to revisit the decision of this Court in the case of
Mandropur (supra), wherein the Court has held that as per Section
11(1) of the APMC Act, only the elected members of the managing
committee of a particular society are required to be included in the
voters' list of the agriculturists' constituency. It would be appropriate
to reproduce the remarkable observations made by the learned Single
Judge of this Court while deciding the issue with regard to the scope
and ambit of inquiry to be undertaken by the Authorized Officer while
preparing the preliminary voters' list under Rule 7 in light of Section
11(1) of the Act of 1963, which read as under:
“5. Travelling to root after gathering the controversy and the contentions
canvassed by both the sides, in the general elections to the APMC, the
societies dispensing agriculture credit would have its Managing
Committee members as the voters to be included in the list of voters.
Under the Gujarat Cooperative Societies Act as per Section 74(1)(a),
members of the Managing Committee are to be elected. The members of
the Managing Committee of cooperative society would become voters in
the APMC elections and would be those one who are elected ones.
Therefore, from the above statutory requirement it is manifest that the
members of Managing Committee to figure in the list of voters would be
the persons elected as members.
5.1 The Gujarat Agriculture Produce Market Rules, 1965 empowers the
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authorized officer to make such inquiry as he may deem fit, while
preferring list of voters, on the basis of information received under Rule
7(1) from the cooperative society. Rule 8(1) is a power for revising the
list. The Rules, in particular in the context Rule 7 and Rule 8, constitute a
total scheme under which the functional powers are exercised by the
authorized officer for preparing and publishing the final list of voters, in
the process of which, the authorized officer is competent to make such
inquiry. There is no gainsaying that inquiry contemplated for the
authorized officer is summary in nature as laid down by the judicial
pronouncements in Vibhapar Seva Sahakari Mandli Limited (supra) as
well as Vibhaniya Seva Sahakari Mandli Limited (supra) and various other
decisions.
5.2 In Mohan Lal Vs Kartar Singh [(1995) Supp (4) SCC 684], the Apex
Court explaining the word ‘summary’ with reference to Section 43 of the
Pepsu Tenancy and Agricultural Tenancy Act, 1955 stated that it implies
a short and quick procedure instead of or, as an alternative proof, the
more elaborate procedure ordinarily adopted were prescribed for arriving
at a decision. The proceedings before the court or authority are summary
if it is not required to follow the regular formal procedure.
5.3 The juridical concept of summary inquiry, therefore would not
exclude the undertaking of the actual factual inquiry, but such inquiry
would be of minimum nature to be done in non-elaborate way. Summary
inquiry does not postulate absence of inquiry or that the inquiring person
should blindly accept something by handicapping his task on the count
that his inquiry was only to be summary. Summary decision and summary
inquiry would refer to a decision or inquiry which is short and quick and
not elaborate but it would not mean a non-reasoned performance. Nor it
implies prohibition against inquiring into the facts necessary to be
inquired.
5.4 Summary nature of the inquiry is not to be confused with a cursory
or a casual inquiry. Inquiry of summary nature is an inquiry into minimum
necessary facts to find out a thing or to ascertain a state of affair in
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respect of a fact or aspect for which derivation of knowledge, and for
that purpose the inquiry is intended. A summary inquiry would indeed
include availing and knowing bare minimum facts and to find out
whether the requisite root-facts exist. It is not the process of
adjudication.
6. The decisions in Vibhapar Seva Sahakari Mandli (supra), Vibhaniya
Seva Sahakari Mandli (supra) as well as in Pransali Seva Sahakari Mandli
(supra) are binding when it says that inquiry is to be summary, but as
observed in these judgments, in the facts of the case, what the
Authorised Officer has undertaken is summary inquiry only. In Vibhaniya
Seva Sahakari Mandli (supra) in paragraph 7.1 of the decision, the Court
noted that the authorized officer had adjudicated on the legality of the
nominations made by the respondent No.7 therein by citing reason that
the member had no right to vote. It was an exercise undertaken by
entering into arena of adjudication. As far as the decision in Pransali Seva
Sahakari Mandli (supra) is concerned, therein what was disapproved by
the Court is the decision of the authorized officer in which he decided on
the legality and validity of the elections of the members of the Managing
Committee in that case.
6.1 The submission of learned Government Pleader that in Thumthal
Seva Sahakari Mandli (supra) this Court mentioned that it were the
elected members who could be included in the voters list, could be readily
countenanced as that discerns the correct legal position. This Court
observed thus,
“It is settled position of law that the authorized officer is
not to test or examine the legality or otherwise of the
election of the members of the managing committee of a
co-operative society. It is required to note that the
authorized officer is to consider whether the petitioner
society is dispensing agricultural credit and whether the
names of the members of its managing committee sent to
the authorized officer to be included in the voters list are
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elected members or not. The authorized officer would not
go into the aspects of legality or otherwise of the election
of the members of the managing committee of the
cooperative society.”
7. Another Division Bench decision in Rameshbhai Ganeshbhai
Chaudhari Vs State of Gujarat being Special Civil Application No.13689 of
2009 and allied petitions decided on 06th October, 2010 deserves to be
mentioned. It held that the Authorised Officer was justified in holding
factual inquiry into the actual activities of cooperative societies and it
was found that such societies were genuinely dispensing agricultural
credit in the market area. In that case, preliminary list of voters was
objected to on the ground that the cooperative societies concerned were
dealing with the activity in the animal husbandry sector, producing milk,
etc., and were not liable to be included in the constituency of
agriculturist members of APMC. In that regard, Authorised Officer had
undertaken an inquiry which the Court found to be within his functional
scope under the Rules. It is a case-by-case that Authorised Officer has to
arrive at his decision.
8. Whether inquiry undertaken in a particular case is summary or not
or within the ambit of powers of the Authorized Officer or not is a
question of fact to be ascertained in light of the peculiar facts and
aspects of each case. It is the concept of ‘summary inquiry’ and not the
factual contents of the summary nature which may be inflexible in law. It
has to be judged from case to case whether in light of the attendant
subject facts, the inquiry undertaken by the authorized officer is
summary or not. When in the present case, the order of exclusion of
names from the list of voters is based on the factum noticed that there
was no election held to the Managing Committee, the decision can be
said to be based on summary inquiry only. What can be more ‘summary’
than to ask whether the persons named to be the voters are elected
members and whether election was held of the Managing Committee of
which they are shown to be the elected members.”
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[26.] It is required to be noted that the aforesaid decision of
the learned Single Judge of this Court has been affirmed in Appeal
vide judgment and order dated 22.07.2016 passed in Letters Patent
Appeal No. 541 of 2016. Relevant would be to revisit the observations
made by the Hon'ble Division Bench in the aforesaid decision as
recorded in paras 14 to 16, which read as under:
“14. Thus, when recently this Court has taken the aforesaid view, in the
facts of the present case, we are of the opinion that the authorized
officer has not committed any jurisdictional error while making inquiry
under rule 8(2) of the Rules and thereby excluded the names of the
committee members of the petitioner-society. However, as observed
hereinabove, dispute with regard to the inclusion or exclusion of names in
the voters’ list can be gone into in the election petition filed under Rule
28 of the Rules.
15. For the aforesaid reasons, we are of the view that this appeal is
devoid of merits and the same is accordingly dismissed.
16. However, we leave it open to the appellant that if the appellant-
petitioner is aggrieved by the result of election, it can approach the
competent authority by raising an election dispute as contemplated
under Rule 28 of the Rules. If such petition is filed, it shall be considered
by the competent authority independently and uninfluenced by the
findings recorded either by the learned Single Judge or by this Court in
this appeal.”
[27.] At this stage, it is also required to be noted that
Amendment Act of 2013 was notified on 15.04.2013, Section 74 was
amended by inserting (1A), which provided that the Managing
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Committee of a society shall consist of such number of members as
may be provided in the bye-laws, but not exceeding 21 members.
[28.] It is required to be noted that by inserting 1(C), it provided
that the term of office of the “elected members” of the Managing
Committee and its office bearers was five years from the date of
election. It further clarified that the term of office bearers shall be co-
terminus with the term of the Managing Committee, provided that the
Managing Committee may fill up a casual vacancy in the committee by
nomination if the term of the office of the Managing Committee is
less than half of its original term. Further, by inserting clause (1D) to
Section 74, the provision for co-opting persons having experience in a
specialized field was also made. However, it was provided that the
same shall not exceed two in addition to the 21 members. It also
clarified that the co-opted members shall not have the right to vote in
any election of the society.
[29.] In view of the aforesaid provisions being incorporated, it
clearly indicates that the constitution of the Managing Committee of a
cooperative society shall consist of such number of elected members
not exceeding 21, and in view of Section 74(1A)(ii), it clearly provides
that only the “elected members” shall be entitled to be the office
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bearers of the managing committee.
[30.] Considering the ratio laid down by this Court in the case
of Mandropur (supra) rendered by the learned Single Judge of this
Court and upheld in Appeal in view of the order passed by the Hon'ble
Division Bench, and the amended provisions as referred to, the
Authorized Officer was bound to examine the objections raised by the
petitioners in the respective cases.
[31.] Having noted the aforesaid legal principles and the
provisions governing the field, on appreciation of the Resolutions
placed for consideration of this Court in the respective matters, it
clearly emerges that the declaration of the election of the concerned
APMC was made by the Director of Agricultural Marketing and Rural
Finance on 06.07.2026. On 06.07.2026, the Authorized Officer was
appointed as the Election Officer, whereby the notification was issued
on 08.07. 2026 calling for the preparation of the voters' list of the
respective constituencies of APMC, Bhabhar. As against the aforesaid
date of declaration of the election by the Director, that is, 06.07.2026,
if the affidavit filed by respondent no. 5- Primary Co-operative Society
is looked into, the model bye-laws submitted by the said Co-operative
Society pursuant to the Resolution dated 30.07.2024 were approved
by the District Registrar on 18.10.2024. The extract of the minutes of
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the Resolution Book of the General Body of the said respondent no. 5
Co-operative Society indicates that Resolution No. 5 was passed by
the General Body observing that the term period of the managing
committee had expired on 29.07.2026, and therefore, the election of
the Managing Committee is required to be undertaken. The said
Resolution further records that in view of the above, a new Managing
Committee is constituted for a term period of five years, that is from
29.06.2026 to 28.06.2031, and the members of the Managing
Committee, 21 in number, are elected uncontested.
[32.] Having noted the aforesaid Resolution, it is evident that
the term period of the earlier managing committee had not expired,
as recorded by the Authorized Officer in the impugned order in view
of Resolution No. 10 passed by the General Body on 29.06.2022,
including 21 members uncontested as members of the managing
committee; considering the period of the five years' term, it was to
expire on 28.06.2027.
[33.] It is also evident that the amended bye-laws of
respondent no. 5 Co-operative Society with regard to the inclusion of
21 members in the Managing Committee so as to bring it on par with
the amended provisions of the Act were approved on 18.10.2024. In
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view thereof, the earlier Managing Committee of 21 members was not
in consonance with the existing bye-laws ( unamended ). Further, it is
also an admitted fact that the new Managing Committee constituted
is by the mode of selection/nomination and not by the mode of
election, which is otherwise the requirement of Section 74(1A)(ii) of
the Gujarat Cooperative Societies Act, 1961 and Section 11(1)(i) of the
APMC Act, 1963.
[34.] It is also required to be noted that though the Authorized
Officer has taken note of the aforesaid undisputed facts, has ignored
the same by observing that the appropriate remedy for the objectors
is to approach the District Registrar, in view of Section 96 of the Co-
operative Societies Act, 1961, and has drawn the conclusion that he
has no jurisdiction to examine the legality and validity of the managing
committee of the primary cooperative society.
[35.] In my view, it is true that the nature of the authority
vested in the Authorized Officer under the provisions of the APMC
Act, 1963 and the rules framed thereunder is summary in nature.
However, the very fact that the Primary Co-operative Society, by
passing Resolution No. 5 on 29.06.2026, has constituted a new
Managing Committee even before the expiry of the five years' term of
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the Managing Committee of its cooperative society, demonstrates the
inclusion of the members in the Managing Committee by way of
selection and not by election so as to get their names included in the
voters' list of the forthcoming election of the concerned APMC.
[36.] The allegation is also made by the petitioners that the
members so included in the Managing Committee by the said
Resolution are not even the primary members of the concerned
primary cooperative society.
[37.] Having appreciated the Resolutions placed for
consideration, it has clearly transpired that the General Body has
passed a Resolution to constitute a Managing Committee of 21
members by selection and not by election, as on the same day the
members have been selected so as to fulfill the criteria of a 21
member managing committee. Such mode of selection and not
election of members does not fulfill the requirement of Section
74(1A) of the Gujarat Cooperative Societies Act, but in also in breach
of the provisions of Section 11(1)(i) of the APMC Act, 1963. Such
members, therefore, cannot be treated as qualified voters so as to be
included in the voters' list of the election of the concerned APMC.
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[38.] It is required to be noted that if such members of the
managing committee of the Co-operative Society who are otherwise
not qualified are continued to be included in the voters' list, they shall
not only derive their right to vote in the APMC election, but may also
participate in the election. In such circumstances, it would amount to
giving a complete go-by to democratic principles, inasmuch as, by the
mode of election of members of the Managing Committee of a
Primary Co-operative Society, the mandate is conferred by the primary
members upon such elected members, who in furtherance represent
that mandate in the election of the apex society, that is, the APMC,
shall not be fulfilled. Whereas, the selection of members of the
Managing Committee cannot be said to have any mandate of the
representatives, and in fact would lead to the introduction of a person
who would get back-door entry as a member of the managing
committee of the APMC.
[39.] For the foregoing reasons, exceptional circumstances
have been made out by the petitioners, which call for the interference
of this Court in its writ jurisdiction. The impugned order passed by the
Authorized Officer is not in consonance with the provisions of Section
74(1A) of the Gujarat Cooperative Societies Act, 1961 and Section
11(1)(i) of the APMC Act, 1963.
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[40.] For the aforesaid reasons, the impugned order passed by
the Authorized Officer as assailed in the respective petitions are
hereby quashed and set aside. The captioned petitions succeeds.
Resultantly, the respondent no. 5- Primary Co-operative Society are
hereby directed to be excluded from the voters' list. The petitions
therefore stand disposed in the aforesaid terms. In view of the above,
the respondent-Authorized Officer is directed to proceed with the
declaration of the results of the elections accordingly.
[41.] With these observations, the captioned petitions stand
disposed of. Notice stands discharged.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
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