Gujarat High Court
Kalubhai Virani vs State Of Gujarat & 9 on 3 March, 2014
Author: M.R. Shah
Bench: M.R. Shah, R.P.Dholaria
C/SCA/13766/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13766 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KALUBHAI VIRANI....Petitioner(s)
Versus
STATE OF GUJARAT & 9....Respondent(s)
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Appearance:
HL PATEL ADVOCATES, ADVOCATE for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL AGP for the Respondent(s) No. 1
MR PS CHAUDHARY, ADVOCATE for the Respondent(s) No. 2
MR TULSHI R SAVANI, ADVOCATE for the Respondent(s) No. 4 - 10
RULE SERVED for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 03/03/2014
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C/SCA/13766/2013 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction directing the respondents to declare and hold election of the Agriculture Produce Market Committee, Savarkundala (hereinafter referred to "the Market Committee" for short) as per the provisions of the law.
By way of amendment it is also prayed for appropriate writ, order and/or direction quashing and setting aside the resolution dated 25/9/2013 passed by the State Government appointing administrator in the APMC Savarkundala (Anneure-C) and to restore the elected body till fresh election of the member of the APMC Savarkundala is held.
2.00. That the APMC Savarkundala is constituted / required to be constituted under the provisions of the Gujarat Agricultural Produce Market Act, 1963 (hereinafter referred to as "the Act" for short) and the Rules framed thereunder. That the last election of the market committee was held on 23/9/2009. That the term of the office of the elected members of the market committee shall save as otherwise provided in the Act, be four years from the date of its first general meeting as per the provisions of section 11(4) of the Act. That despite the fact that the term of the market committee was to expire on 23/9/2013, as the first meeting of the elected body was 24/9/2009, no steps were taken to declare election of the market committee and it was apprehended that the State Page 2 of 13 C/SCA/13766/2013 JUDGMENT Government may appoint administrator instead of holding the fresh election, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid relief.
3.00. Mr.Vijay Patel, learned advocate appearing on behalf of the petitioner has vehemently submitted that the action of the State Government / Director in not declaring and holding the election of the market committee though the term of the market committee has expired as far as back on 23/9/2013 and in appointing administrator in the market committee is absolutely illegal, contrary to the provisions of the Act and the rules and even democratic principles. It is submitted that as per sub-section (4) of section 11 of the Act, as such the term of the office of the elected members of the market committee shall be 4 years from the date of its first general meeting. It is submitted that as such before the term of the market committee expires on completion of four years, the Director was required to declare and hold the election. It is further submitted that therefore the Director is required to declare the election by issuing an order in writing as required under rule 4 of the Rules. It is further submitted by Mr.Patel, learned advocate appearing on behalf of the petitioner that not to hold the election after the term of the market committee has expired and to appoint an administrator is against the democratic principles. It is submitted that as such the action of the respondent authorities in not declaring and holding the election of the members of the market committee is malafide and at the behest of the local MLA and only with a view to see that power is not retained by the elected members of the market committee.
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By making above submissions, it is requested to allow
the present Special Civil Application and grant the reliefs as prayed for.
4.00. Present petition is opposed by Mr.Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondent - State authorities as well as Mr.Tulsi Ravani, learned advocate appearing on behalf of the respondent Nos.4 to 10.
4.01. It is submitted by Mr.Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondent State authorities that as the dispute with respect to issuing licenses to the general traders is pending before this Court and as such no traders have been granted / renewed licenses, it is not possible to hold the election of two members of the traders constituency. It is submitted that similarly the dispute with respect to Cooperative Marketing Societies is pending and therefore, as such the election for constituency of Traders and Cooperative Societies is not possible, as there are no license holders in the APMC, Savarkundala. It is submitted that therefore, when it was found that the election for the aforesaid Constituencies was not possible, the Director has not declared and held the election of the members of the market committee / market committee.
4.02. Mr.Savani, learned advocate appearing on behalf of the contesting private respondents - respondent Nos.4 to 10 has submitted that the petitioner and others who were in the administration and management of the market committee Page 4 of 13 C/SCA/13766/2013 JUDGMENT issued / granted number of illegal licenses only with a view to inflate the voters and to create artificial majority. It is submitted that thereafter the director passed an order to cancel / disapprove the resolution passed by the Sub-License Committee. It is submitted that the aforesaid issue is pending before this court by way of Special Civil Application No. 11954 to 11957 of 2013. It is submitted that therefore, the respondent State authorities have rightly not declared and held the election of the members of the market committee / market committee and administrator in the market committee is rightly appointed.
By making above submissions, it is requested to dismiss the present petition.
5.00. In reply to the submissions made by the learned advocate appearing on behalf of the respective respondents, Mr.Patel, learned advocate appearing on behalf of the petitioner has submitted that merely because there is some dispute with respect to general licenses with respect to traders constituency and/or cooperative marketing societies, the same is no ground not to hold the election even with respect to other constituencies. It is submitted that as per section 11 of the Act, the market committee shall consist of (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 manner from amongst themselves by the traders holding general licenses;
(iii) two representatives of the Co-operative marketing
societies situate in the market area and holding general
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C/SCA/13766/2013 JUDGMENT
licenses, 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; 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 be mentioned by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councillors or, as the case may be, members who do not hold any general licence. It is submitted that therefore, as such on expiry of the terms of the market committee, the director is bound to declare and hold the election with respect to those constituencies for which there is no dispute and for any reason the election of the members of the some of the constituencies is not possible, in that case, State Government is required to exercise power under sub- section (3) of section 11 of the Act by nominating members from and amongst the persons qualified. It is submitted that sub-section (3) of section 11 of the Act is for such an eventuality of not able to hold the election of some of the constituencies. It is further submitted that as such there is no stay from any court against holding of the election of the market committee / members of the market committee. It is submitted that as such even the election is required to be held with respect to Traders Constituency and Cooperative Marketing Societies from amongst existing general license holders and if for any reason it is not possible to hold the election of Traders Constituency or Cooperative Marketing Societies, after holding the election of the market committee / the election of the members from other constituencies, power can be exercised under section 11(3) of the Act. It is Page 6 of 13 C/SCA/13766/2013 JUDGMENT submitted that as such not to hold the election even with respect to other constituencies is illegal and contrary to the provisions of the Act, which deserves to be quashed and set aside and the concerned respondents are required to be directed to hold the election of the Market Committee / Member of the Market Committee.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.01. At the outset, it is required to be noted and it is not in dispute that the term of the office of the market committee has expired on 24/9/2013 and despite the same, the election of the market committee / members of the market committee has not been declared and held by the director and instead an administrator has been appointed by order dated 25/9/2013 to manage the affairs of the market committee. No efforts are made by the director to declare and held the election of the market committee and to constitute the market committee as required under the provisions of section 11 of the Act. It is not in dispute that as per section 11(1) of the Act every market committee shall consist of (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 manner from amongst themselves by the traders holding general licenses;
(iii) two representatives of the Co-operative marketing societies situate in the market area and holding general licenses, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies Page 7 of 13 C/SCA/13766/2013 JUDGMENT 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 be mentioned by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councillors or, as the case may be, members who do not hold any general licence. As per sub- section (2)(a) of section 11 of the Act, if for any reason in the case of a market committee no election is held, the Director shall report the fact to the State Government and with the previous approval of the State Government nominate on the market committee members of the respective class specified in sub-section (1) from amongst persons qualified to be elected as members of the respective class. As per sub-section (3) of section 11 of the Act, if for any reason in the case of a market committee an election does not result in the return of the required number of qualified persons to take office, the Director, after taking into consideration the views of the members already elected shall as soon as possible nominate from amongst person qualified to be elected such number as is necessary to make up required numbers and the persons so nominated shall be deemed to have been duly elected as members of the market committee. As per sub-section 4(a) of section 11 of the Act, the term of office of a market committee shall, save as otherwise provided in this Act, be four years from the date of its first general meeting. As per sub-section 5(a) of section 11 of the Act, where the term of office of a market committee has expired, the State Government shall direct that such persons as may be appointed by the State Government from time to time shall be the administrator to Page 8 of 13 C/SCA/13766/2013 JUDGMENT manage the affairs of the market committee. However, as per the decision of this Court in the case of Abdulgani Abdulbhai Kureshi & Anr. Versus State of Gujarat and another, reported in 1992(1) GLR 503 read with another decision of this Court in the case of Agricultural Produce Market Committee Vs. State of Gujarat, reported in 1998(0) GLHEL 200180, even if powers are with the State Government for appointment of administrator in the given case where statutory term of the elected body is over, it would be required for the State Government to consider the question of extension of the term of existing body and it is only thereafter the State Government may take decision to appoint an administrator if the term of the outgoing body is not to be extended for valid reasons. Thus, considering the aforesaid statutory provisions and decisions of this Court, referred to hereinabove, administration and management of the market committee shall be permitted to be continued with the elected body and as such all the efforts should be made to see that those powers are continued with the elected body and if the term of the market committee has expired, all efforts should be made to hold the election at least prior to expiry of the term of the market committee, so that new committee takes charge of the administration and management of the market committee on the expiry of the terms of the office of the earlier market committee.
6.02. In the present case, despite the fact that the term of the market committee has expired as far as back on 24/9/2013, election of the members of the market committee has not been declared and held and administrator has been appointed even without exploring the possibility of extending Page 9 of 13 C/SCA/13766/2013 JUDGMENT term of the existing market committee. From the Affidavit-in- reply it appears that fresh election of the market committee has not been declared and held mainly and solely on the ground that there is some dispute pending with respect to general licenses for traders and for cooperative marketing societies. If there is any dispute with respect to general licenses of traders and cooperative marketing societies, it can hardly be a ground not to declare and hold the election of the market committee. As stated hereinabove, every market committee shall consist of 17 members from different constituencies, such as agriculturist, traders constituency, cooperative marketing societies constituencies etc. Therefore, if there is any dispute with respect to some of the constituencies and for any valid reason, it is not possible to hold the election of one or more constituency, in that case also the election of other constituencies cannot be stalled. As such sub-section (2)(a) and sub-section (3) of section 11 of the Act are enacted for such an eventuality. As stated hereinabove, as per sub-section (2)(a) of section 11 of the Act, if for any reason in the case of a market committee no election is held, the Director shall report the fact to the State Government and with the previous approval of the State Government nominate on the market committee members of the respective class specified in sub-section (1) from amongst persons qualified to be elected as members of the respective class. As per sub-section (3) of section 11 of the Act, if for any reason in the case of a market committee an election does not result in the return of the required number of qualified persons to take office, the Director, after taking into consideration the views of the members already elected shall as soon as possible nominate from amongst person qualified to be elected Page 10 of 13 C/SCA/13766/2013 JUDGMENT such number as is necessary to make up required numbers and the persons so nominated shall be deemed to have been duly elected as members of the market committee. On conjoint reading of the aforesaid provisions of the Act, even assuming that with respect to traders constituency and cooperative marketing societies there is some dispute and it is not possible to hold the election of the said constituencies, in that case, powers under sub-section 2(a) and/or sub-section (3) of section 11 are required to be exercised. However, all efforts shall be made to hold the election from amongst the persons qualified to be elected as members of the respective class. However, not to hold election at all even with respect to other constituencies and not to constitute a market committee as per section 11 of the Act is not only contrary to the provisions of the Act but the same is against the democratic principles. Under the circumstances, the inaction on the part of the concerned respondents - State authorities more particularly the Director in not holding the election of APMC Savarkundala and thereby not to constitute the Market Committee as per section 11 of the Act is against the provisions of the statute is illegal and arbitrary which requires to be quashed and set aside.
Even appointment of arbitrator of the AMPC Savarkundala by resolution dated 25/9/2013 without exploring the possibility for extension of the existing / previous committee is illegal, as held by the Division Bench of this Court in the case of Agricultural Produce Market Committee Vs. State of Gujarat, reported in 1998(0) GLHEL 200180, as well as decision of the learned Single Judge in the case of Pradeepbhai Parshottambhai Sojitra & Ors. Vs. State of Page 11 of 13 C/SCA/13766/2013 JUDGMENT Gujarat & Ors., reported in 2009(2) GLH (U.J.) 2. However, at the same time, even while permitting outgoing body to continue with the powers and considering the ensuing election, there may be possibility of mal-practice and outgoing body may exercise power in the manner they like, it may also result into seriously causing loss to the property or the revenue of the market committee and in an appropriate case even election by granting general licenses illegally to inflate the voter and create artificial majority. However, in the present case, as stated hereinabove while making appointment of administrator, State Government has not explore the possibility of extension of term of the market committee as per sub-section 4(a) of section 11 of the Act.
7.00. In view of the above and for the reasons stated above, present petition succeeds. The concerned respondent State authorities, more particularly respondent No.3 - Director, Agriculture Produce Market Committee, Gandhinagar is hereby directed to declare the election of the Agriculture produce Market Committee, Savarkundala as required under Rule 4 of the Rules within a period of six weeks from today and proceed further with the election process as per rule 5 and onwards of the Rules and hold the election of the APMC Savarkundala forthwith. The resolution dated 25/9/2013 appointing administrator of the APMC Savarkundala is held to be illegal and is hereby quashed and set aside and it is directed that the State Government / respondent No.3 - Director, Agriculture Produce Market Committee, Gandhinagar to exercise power under sub-section 4(aa) of section 11 of the Act for extension of the term of the market committee whose term has expired on 24/9/2013 within a period of four weeks from today in Page 12 of 13 C/SCA/13766/2013 JUDGMENT accordance with law and communicate the same to the petitioner. However, it is observed that even if the term of the market committee is extended in exercise of sub-section 4(aa) of section 11 of the Act, in that case also until the newly constituted market committee takes charge i.e. duly constituted after the election is held as stated hereinabove, extended market committee shall not take any policy decision inclusive of grant or refusal of licenses etc. without prior permission of the Director - respondent No.3. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik.
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