Gujarat High Court
Patel Narendrakumar Kanjibhai vs State Of Gujarat Thorugh Secretary & 8 on 25 February, 2014
Author: M.R. Shah
Bench: M.R. Shah, R.P.Dholaria
C/SCA/9289/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9289 of 2011
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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PATEL NARENDRAKUMAR KANJIBHAI....Petitioner(s)
Versus
STATE OF GUJARAT THORUGH SECRETARY & 8....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL AGP for the Respondent(s) Nos. 1-4
MR BS PATEL, ADVOCATE for the Respondent(s) No. 6 - 9
MR PRAVIN P PANCHAL, ADVOCATE for the Respondent(s) No. 5
RULE SERVED BY DS for the Respondent(s) No. 1 - 9
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Page 1 of 14
C/SCA/9289/2011 JUDGMENT
Date : 25/02/2014
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 to quash and set aside the impugned order dated 9/6/2011 passed by the respondent No.2 - Director, Agriculture Marketing & Rural Finance, State of Gujarat, passed in Appeal No.89 of 2011 (Annexure-A) and also to quash and set aside the election of the Traders Constituency of Agriculture Produce Market Committee, Unjha held on 9/2/2011.
2.00. Facts leading to the present Special Civil Application, in nutshell, are as under :-
2.01. That the last election of the Agriculture Produce Market Committee, Unjha was held in the year 2007 and therefore, the term of the Market Committee was to expire in the month of February, 2011 and therefore, next election of the Market Committee was declared by the Director by publishing election programme on 28/10/2010.
2.02. It is the case on behalf of the petitioner that only with a view to increase voters list and with a view to see that power is retained by the office bearers of the Market Committee and at the instance of the local Member of Legislative Assembly ("MLA" for short), who was also the Chairman of the Market Committee, Unjha and belonging to the party in power to the State, the Market Committee issued Page 2 of 14 C/SCA/9289/2011 JUDGMENT about 800 to 1000 bogus licenses to the persons who had not carried out any activity and without following due procedure as prescribed under Rule 56 and even against the Circulars issued by the respondent No.2 dated 17/3/2009 and 13/4/2009, whereby the Director prescribed requisite documents to be submitted before the Market Committee and had also prescribed inquiry to be conducted by the Market Committee before grant of licenses. It is the case on behalf of the petitioner that the said licenses were issued only with a view to create artificial majority in the ensuing election for the Traders Constituency for which four representatives have to be represented as per section 11(1)(ii) of the Agricultural Produce Market Committee Act, 1963 (hereinafter referred to as "the Act" for short).
2.03. It is case on behalf of the petitioner that immediately thereafter and having come to know about issuance of large number of licenses without following mandatory procedure, the petitioner made a representation on 27/9/2010 whereby the petitioner had brought to the notice of the authorities about the large scale irregularities committed by the Chairman of the Market Committee.
2.04. According to the petitioner since the respondent authority did not take any action, the petitioner approached this Court by way of filing Special Civil Application No. 13881 of 2010 and the aforesaid Special Civil Application came to be disposed of by order dated 25/10/2010 whereby this Court recorded statement of the learned Assistant Government Pleader that the representation dated 27/9/2010 of the petitioner shall be duly considered and prompt decision shall Page 3 of 14 C/SCA/9289/2011 JUDGMENT be communicated to the petitioner.
2.05. It appears that thereafter the respondent No.3 -
District Registrar held inquiry and on inquiry it has been found that 543 licenses have been issued without any verification and in complete violation of the Circulars dated 17/3/2009 and 13/4/2009. Therefore, the Director submitted his report on 15/11/2010 observing that 543 licenses have been issued without any verification and in complete violation of the aforesaid Circulars.
2.06. It is the case on behalf of the petitioner that thereafter and on the basis of the aforesaid report dated 15/11/2010, the respondent No.2 - Director vide his order dated 20/11/2010 directed the Market Committee to cancel the said 543 licenses.
2.07. It is the case on behalf of the petitioner that as per the election programme dated 28/10/2010, returning officer / authorised officer was required to call the names of the voters who are holding the licenses from the Market Committee on 8/11/2010 and the Market Committee was required to sent the names of the voters (as per Rule 7) to the authorised officer on or before 15/11/2010 and the authorised officer was required to publish preliminary voters list as per rule 7(2) on 22/11/2010. It is the case on behalf of the petitioner that despite the communication by the respondent No.2 - Director dated 20/11/2010 directing the Market Committee to cancel 543 licenses, the very Director behind the back of the petitioner vide letter dated 25/11/2010 instructed the Deputy Director to inquire regarding the grant of licenses on the basis Page 4 of 14 C/SCA/9289/2011 JUDGMENT of purported explanation dated 23/11/2010 by the Market Committee. However, neither the said explanation was furnished to the petitioner nor copy of the order dated 25/11/2010 was supplied to the petitioner and according to the petitioner, the aforesaid letter / communication dated 25/11/2010 was an after thought and with a view to come out of the order dated 28/11/2010 by which the Market Committee was directed to cancel 543 licenses which were found to be issued illegally.
2.08. It is the case on behalf of the petitioner that as such thereafter and as directed by the respondent No.2, the District Registrar has not submitted any report regarding grant of the licenses. It is the case on behalf of the petitioner that thereafter and despite the fact that on inquiry it was found that 543 licenses have been issued and/or granted illegally and without following the procedure as required, in the preliminary voters list of Traders Constituency published by the authorised officer on 22/11/2010, the names of the aforesaid licenses holders were included in the preliminary voters list. The petitioner, therefore, submitted his objection to the authorised officer on 24/11/2010 and 25/11/2010 against inclusion of the names of those licenses holder who were granted license illegally, pointing out glaring facts and also brought to the notice of the authorised officer the report dated 15/11/2010.
2.09. The petitioner had apprehension that because of the political pressure more particularly pressure by the Chairman of the Market Committee, who was also Local MLA, authorised officer would not consider the objection and would continue the names of the said license holders in the voter list Page 5 of 14 C/SCA/9289/2011 JUDGMENT and therefore, the petitioner preferred Special Civil Application No. 15255 of 2010 before this Hon'ble Court seeking direction to the respondent No.4 - authorised officer to consider report dated 15/11/2010 of the Deputy Director and thereby decide the objections raised by the petitioner in accordance with law. It appears that the aforesaid Special Civil Application came to be disposed of / dismissed as not pressed.
2.10. Thereafter, the authorised officer vide order dated 13/12/2010 rejected the petition submitted by the petitioner. Therefore, the petitioner preferred another petition being Special Civil Application No. 16230 of 2010 challenging the order dated 13/12/2010 rejecting the petition preferred by the petitioner against inclusion of the names of aforesaid license holders and the said Special Civil Application came to be withdrawn by the petitioner vide order dated 21/12/2010 reserving liberty in favour of the petitioner to prefer revision application under section 48 of the Act and the respondent No.1 was directed to decide said revision as early as possible.
2.11. It appears that thereafter the petitioner preferred Revision Application No. 337 of 2010 as per Deputy Secretary (Appeals) challenging the order dated 13/12/2010 passed by the authorised officer. That the revisional authority directed to publish a public notice informing the license holders about the hearing of the Revision Application.
2.12. As the revision application was not being heard immediately and there was delay in deciding the Revision Application, which according to the petitioner was with a view to make the revision application infructuous, the petitioner Page 6 of 14 C/SCA/9289/2011 JUDGMENT again preferred one another petition being Special Civil Application No. 63 of 2011 before this Court seeking direction to the revisional authority to hear and decide the revision application without any further delay or in the alternative to prefer substantial petition challenging the order dated 13/12/2010 passed by the authorised officer. The said petition came to be disposed of by this court vide order dated 12/1/2011 on a statement made by the revisional authority that the revision would be decided on or before 24/1/2011.
2.13. That by order dated 24/1/2011 the revisional authority rejected the said Revision Application.
2.14. Being aggrieved by and dissatisfied with the order passed by the revisional authority dated 24/1/2011, petitioner again preferred Special Civil Application No.853 of 2011 challenging the order dated 24/1/2011 passed by the authorised officer. It appears that as the election was round the corner and only few days left for the election, this Court was not inclined to entertain the petition and therefore, the petitioner withdrew the aforesaid Special Civil Application with a liberty to prefer election petition before the respondent No.2.
2.15. It appears that thereafter election came to be held on 9/2/2011 and the result for traders constituency was declared on 10/2/2011 wherein respondent Nos.6 to 9 are declared elected. The petitioner also contested the said election and secured 902 votes and the difference between the petitioner and last elected candidate was 306 votes.
Page 7 of 14C/SCA/9289/2011 JUDGMENT 2.16. That thereafter the petitioner preferred election
petition before the respondent No.2 - Director under Rule 28 of the Gujarat Agricultural Produce Market Committee Rules 1965 (hereinafter referred to as "the Rules") being Appeal No.89 of 2011 on number of grounds and by the impugned order the respondent No.2 - Director has rejected / dismissed the said petition. It is the case on behalf of the petitioner that even before the respondent No.2 - Director has rejected / dismissed the said election petition. It is the case on behalf of the petitioner that even before the respondent No.2, a letter written by the authorised officer stating and admitting that at the relevant time he was under pressure from MLA, who was also the Chairman of the Market Committee, who had threatened the officer that he would be transferred if the order as desired by the MLA is not passed and therefore, he passed an order rejecting the objection raised by the petitioner.
2.17. Being aggrieved by and dissatisfied with the impugned order passed by the respondent No.2 - Director dated 9/6/2011 rejecting the election petition of the petitioner petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
3.00. Mr.Dipen Desai, learned advocate appearing on behalf of the petitioner has vehemently submitted that the order passed by the respondent No.2 rejecting the election petition is absolutely illegal and malafide and as such no specific findings are given on the grounds raised by the petitioner. It is submitted that as such while considering the petition under Rule 28 of the Rules, the respondent No.2 - Director has not considered the relevant aspects which were Page 8 of 14 C/SCA/9289/2011 JUDGMENT required to be considered in detail. It is submitted that the Director has not properly appreciated and considered the fact that the day on which the election programme was published and/or even the day on which the preliminary water list was published, there was already a report of the Deputy Director dated 15/11/2010 holding that 543 licenses have been issued illegally and without following due procedure and without verification and in complete violation of the Circulars dated 17/3/2009 and 13/4/2009. It is submitted that even there was already a communication by the Director himself directing the Market committee to cancel 543 licenses. It is submitted that the Director has not properly appreciated the fact that even defects alleged to have been cured after the due date i.e. even after preliminary voter list was published under Rule 7 of the Rules. It is submitted that therefore, when the day on which the preliminary voter list was published, 543 licenses were granted illegally and without following due procedure as required, the names of those 543 license holders were not required to be included in the voter list. It is submitted that the aforesaid vital aspect is not considered and/or dealt with while considering the election petition. It is submitted that the Director has materially erred in not considering the relevant aspect that the authorised officer has erred in including the names of those license holders in the voter list of the Traders Constituency who were issued licenses illegally and without following due procedure as required. It is submitted that therefore, the Director has materially erred in not appreciating the fact that as such the authorised officer failed to perform its statutory duty in including the names of those license holders in the voter list. It is submitted that as such the Director ought to have appreciated that only the names of those traders who Page 9 of 14 C/SCA/9289/2011 JUDGMENT were actually doing trading, were required to be included in the voter list. It is submitted that merely because some persons though they are not actually carrying business, have obtained licenses only for the purpose of getting their names included in the voter list and to create artificial majority, their names are not automatically required to be included in the voter list, merely because they are holding licenses. In support of his above submissions, Mr.Desai, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Division Bench in the case of Kalubhai Ranabhai Akabari vs. State of Gujarat and Ors. reported in 2007(3) GLH 57 as well as recent decision of this Court in Special Civil Application No.126 of 2014. It is submitted that even the Director has not considered the report of the Deputy Director dated 20/11/2010 by which respondent No.2 - Director directed the Market Committee to cancel the said 543 licenses, which were granted illegally. It is submitted that even the Director has not considered and dealt with the communication / affidavit of the then authorised officer in which he has stated that there was pressure from Chairman of the Market Committee, who was also MLA of the party in power, to pass order in favour of the Chairman and under the pressure he has rejected the objection raised by the petitioner. It is submitted that the even the impugned order passed by the Director is a non-speaking order and non-reasoned order and the impugned order is passed in only one paragraph without dealing with the contentions raised by the petitioner. It is submitted that in an election petition, the Director is required to consider and deal with each and every ground raised. It is submitted that the finding recorded in para 4 are absolutely vague. It is submitted that though it is mentioned Page 10 of 14 C/SCA/9289/2011 JUDGMENT that some of the license holders were holding licenses earlier, however, no particulars are given as to how many license holders were holding licenses earlier and how many license holders had applied for license for the first time. It is submitted that the Director has not exercised the powers vested in it under Rule 28 of the Rules more particularly to maintain sanctity of the election process / election and the democratic principles.
By making above submissions it is requested to allow the present petition and grant the reliefs as prayed for.
4.00. Mr.B.S. Patel, learned advocate is appearing on behalf of the contesting respondent Nos.6 to 9. Mr.Navin Pahwa, learned advocate is appearing with Mr.Pravin Panchal, learned advocate appearing on behalf of the respondent No.5 and Mr.Dhawan Jayswal, learned Assistant Government Pleader is appearing on behalf of the respondent Nos.1 to 4.
4.01. After making some submissions, Mr.B.S. Patel, learned advocate appearing on behalf of the contesting private respondent Nos.6 to 9 has fairly conceded that as such the impugned order passed by the respondent No.2 - Director in an election petition under rule 28 of the Rules is as such a non- speaking order and therefore, he has no objection if the impugned order passed by the respondent No.2 - Director is quashed and set aside and the matter remanded to the respondent No.2 - Director to decide the election petition afresh and within stipulated time. He does not invite any further reasoned order while quashing and setting aside the impugned order and remanding the matter to the respondent Page 11 of 14 C/SCA/9289/2011 JUDGMENT No.2 - Director.
4.02. Similarly, Mr.Navin Pahwa, learned advocate appearing on behalf of the respondent No.5 has also stated at the bar that the respondent No.5 also would not have any objection if the matter is remanded, however, has stated at the bar that as such the respondent No.5 is not admitting that the licenses were issued illegally without following any procedure as required and only with a view to inflate the voter list.
4.03. Mr.Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondent Nos.1 to 4 is also not in a position to satisfy the Court that the order passed by the respondent No.2 - Director is a speaking order and all the issues which are required to be dealt with, have been dealt with by the respondent No.2 - Director.
5.00. Having heard the learned advocates appearing on behalf of the respective parties and considering the stand taken by the learned advocates appearing on behalf of the respective parties recorded hereinabove and even otherwise considering the impugned order passed by the respondent No.2 while deciding the election petition under rule 28 which seems to be a non-speaking order and relevant aspects / issues which are required to be considered by the respondent No.2 - Director while deciding the election petition have not been considered by the respondent No.2 - Director, the impugned order passed by the respondent No.2 - Director cannot be sustained and the matter is to be remanded to the respondent No.2 to decide the election petition afresh. As such, as the learned advocate appearing on behalf of the Page 12 of 14 C/SCA/9289/2011 JUDGMENT respective parties do not invite any further reasoned order, we are not assigning and/or passing any further reasoned order while quashing and setting aside the impugned order and remanding the matter to the respondent No.2 to decide the election petition afresh. However, suffice it to say that certain vital aspects / issues while deciding the election petition have not been considered by the respondent No.2 - Director. There are no specific findings given by the respondent No.2 - Director which are required to be given while deciding the election petition. The issues which are raised by the petitioner herein with respect to issuing number of licenses illegally and/or at the last moment and/or with a view to inflate the voter list and even earlier report of the Deputy Director and District Registrar, Cooperative Societies, Mehsana etc., have not been considered and dealt with by the respondent No.2. The respondent No.2 - Director has also not properly appreciated the fact that any attempt to inflate voters by issuing licenses would be against the democratic principles.
6.00. In view of the above and for the reasons stated above and as such there is a broad consensus between the learned advocate appearing on behalf of the respective parties to quash and set aside the impugned order and remand the matter to the respondent No.2 - Director to decide the election petition afresh, the impugned order dated 9/6/2011 passed by the respondent No.2 - Director in Appeal No.89 of 2011 is hereby quashed and set aside and the matter is remanded to the respondent No.2 - Director, Agriculture Marketing & Rural Finance, State of Gujarat, to decide the said election petition / appeal afresh in accordance with law and on merits and after giving an opportunity to all the concerned and Page 13 of 14 C/SCA/9289/2011 JUDGMENT pass a speaking order on all the issues considering the observations made hereinabove. As agreed, the respective parties to appear before the respondent No.2 - Director, Agriculture Marketing & Rural Finance, State of Gujarat for hearing on 14/3/2014 and make submissions before the respondent No.2 and complete the submissions on the very day and thereafter the respondent No.2 to pass appropriate order afresh in the election petition / appeal, as stated hereinabove, within a period of three weeks thereafter and communicate the same to the respective parties. As agreed, no further notice of hearing on 14/3/2014 shall be issued and served upon the concerned parties and the present order be treated as notice of hearing on 14/3/2014. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
Direct Service is permitted qua respondent No.2.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik Page 14 of 14