Gujarat High Court
Hemangbhai Bhupatrai Raval vs State Of Gujarat on 16 April, 2018
Author: Rajesh H. Shukla
Bench: Rajesh H.Shukla
C/SCA/11599/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11599 of 2017
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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HEMANGBHAI BHUPATRAI RAVAL & 2
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT T RAO for the PETITIONER(s) No. 1,2,3
MS ASMITA PATEL AGP for the RESPONDENT(s) No. 1 3
MR BS PATEL for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 16/04/2018
ORAL JUDGMENT
1. The present petition is filed by the petitioners under Articles 14, 19 and 226 of the Constitution of India as well as under the provision of the Page 1 of 25 C/SCA/11599/2017 JUDGMENT Gujarat Agricultural Produce Market Committee Act, 1963 (hereinafter referred to as "APMC Act") read with Rules framed thereunder for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned Resolution passed by the Government Agricultural & Cooperative Department dated 01.03.2017 extending the terms of APMC, Halvad on the grounds stated in the memo of petition. It is also prayed for direction to hold the election and till then, appoint the Administrator of APMC, Halvad.
2. Heard learned advocate, Shri B.T. Rao for the petitioners, learned AGP Ms. Asmita Patel for the respondent nos.1 to 3 and the learned advocate, Shri B.S. Patel for the respondent no.4.
3. Learned advocate, Shri Rao referred to the papers and the averments made in the petition contending inter alia that by impugned Notification, term of APMC has been extended, which expired on 26.05.2017. He, therefore, submitted that before expiry of the term, the election is required to be held and by resorting to Section 11(4)(aa) of the APMC Act, term has been extended, which is Page 2 of 25 C/SCA/11599/2017 JUDGMENT arbitrary and illegal. Learned advocate, Shri Rao submitted that the petitioner no.1 is the elected member of Morbi District Panchayat and active in social and political life. Also the petitioner nos.2 and 3 are active in social and political life and desired to contest the election of APMC, Halvad. He, therefore, submitted that the respondent no.1 has illegally exercised the power for facilitating the members of the APMC to indulge into illegal activity in the name of development activity. Learned advocate, Shri Rao referred to the grounds and strenuously submitted that the present elected body of APMC is indulged into malpractice and there is wide spread opposition against the elected body and, therefore by approaching the Government through the political pressure of local MLA, who is also Minister in the Government, they have got the term extended. Learned advocate, Shri Rao submitted that though there is provision by way of Section 11(4)(aa) of the APMC Act for extension, it has to be exercised normally when there is drought or natural calamity or when there is an election of Legislative Assembly or Parliament and in absence Page 3 of 25 C/SCA/11599/2017 JUDGMENT of any such justifying reasons, extension, which has been granted, is colourable exercise of power.
4. Learned advocate, Shri Rao has referred to the impugned order/Notification and submitted that Section 11(4)(aa) of the APMC Act refers to the reasons to be recorded and in the facts of the case, there are no reasons independently recorded. He referred to the recommendation made by the APMC for such extension on the ground of pending development work and same has been recorded for the grant of extension without any independent decision. Therefore, learned advocate, Shri Rao submitted that granting of extension is bad on the ground that there is no justification or ground made out and even the reasons are not recorded. He submitted that the reasons stated are not genuine and, therefore, power exercised is colourable exercise of power.
5. Learned advocate, Shri Rao referred to and relied upon the judgment of the Hon'ble Apex Court in case of Dr. K.B. Nagur, M.D. (Ayu). Vs. Union of India, reported in AIR 2012 SC 1774 and also referred to some of the observations, which have been quoted in the petition to support his Page 4 of 25 C/SCA/11599/2017 JUDGMENT contention that the statutory or constitutional independence is a prerequisite to the proper functioning of such statutory bodies and the Central and State Government have the onus to discharge their duties and functions effectively. He, therefore, submitted that the present petition has been filed challenging such extension, which has been granted without any justification. He also referred to the affidavitinreply filed by the Government as well as the respondent no.4 and submitted that in the affidavitinreply filed by the respondent no.1 State, there is no justification offered and the Government has not recorded reasons independently for grant of extension. He strenuously submitted that what was recommended by the Market Committee appears to have been accepted and, therefore, it has not been considered as to whether there is any impediment for holding election. Learned advocate, Shri Rao, therefore, submitted that in absence of any justification or extension, the exercise of power cannot be sustained.
6. Learned advocate, Shri Patel for the respondent no.4 submitted that challenge in the petition Page 5 of 25 C/SCA/11599/2017 JUDGMENT granting extension in exercise of statutory power has two fold:
(i) extension of term is for political reasons;
(ii) extension of the term is for corruption or such other motive.
7. Learned advocate, Shri Patel referred to the averments in the petition and submitted that on one hand, the petitioners have been saying about the election and democratic process and on the other hand, have said about appointment of the administrator, which is normally not resorted. He, submitted that the averments in the petition are required to be considered closely. For that purpose, he referred to Page No.8, Ground (d) and submitted that averments taken at the face value are only vague allegations without joining concerned party like local MLA, who is Minister in the Government. Learned advocate, Shri Patel strenuously submitted that what has been referred to is "they" without any specific allegation that by "they", the petitioners are referring to whom. He further submitted that though the allegations are that through political pressure of local MLA, Page 6 of 25 C/SCA/11599/2017 JUDGMENT who is Minister in the Government, the extension has been sought, the concerned Minister has not been joined as party. Therefore, learned advocate, Shri Patel submitted that it has not been brought out as to what are the irregularities or socalled corruption and the averments are made vaguely without any specific instances or details. Learned advocate, Shri Patel submitted that therefore he has preliminary objection with regard to the maintainability of the petition and locus standi of the petitioner. Learned advocate, Shri Patel referred to the affidavit in reply referring to the preliminary objection and submitted that the petitioners have got no locus standi as the petitioners are not holding license of the respondent no.4 - Market Committee. He submitted that the petitioners had earlier tried to contest the election as agriculturist or trader. He further submitted that the petitioners have not chosen to disclose any specific material or details with regard to the allegations and, therefore, the political intention with which the petition is filed, is evident. He emphasized that as stated in detail, the petitioner no.2 is the Page 7 of 25 C/SCA/11599/2017 JUDGMENT elected member of Halvad Taluka Panchayat on a ticket of Indian Congress Party and mere election without discloser of any material may be viewed seriously as such petition is filed only to serve political purpose in upcoming assembly election. He further submitted that entire petition is based making allegation against MLA, who is Minister, however, he has not been joined as party, who could have opportunity to respond to the allegation and, therefore, such reckless allegations are without any substance. He submitted that in any case, the tenders have been granted by etendering process and the persons selected and qualified are given work, which has not been challenged. He, therefore, submitted that merely because one is socially and politically active, does not mean that such petition can be filed as an abuse of process of law by making such allegation without any material. He submitted that no prejudice is caused to him and, therefore, merely because he desired to contest the election, does not mean that any prejudice is caused to him by such extension.
8. Learned advocate, Shri Patel referred to the Page 8 of 25 C/SCA/11599/2017 JUDGMENT provision of Section 11(4)(aa) of the APMC Act and submitted that reading the language of the provision as it is, it does not refer to any such specific circumstances or the ground for which the extension could be granted. He submitted that there is no argument that there is no power with the respondentState to extend the term. He submitted that vires of the provision of Section 11(4)(aa) of the APMC Act is also not challenged. Therefore learned advocate, Shri Patel submitted that in exercise of statutory power, where extension is granted, the allegations are made referring to the facts that normally such extension could be granted only in certain circumstance like natural calamity, is misconceived. Learned advocate, Shri Patel submitted that by referring to such ground for extension, an attempt is made to suggest an angle in the language of the statute, which has not been there. He, therefore, submitted that the submissions, which have been made without considering the relevant provision, are misconceived. Learned advocate, Shri Patel submitted that provision of Section 74(D) of the Page 9 of 25 C/SCA/11599/2017 JUDGMENT Gujarat Cooperative Societies Act has been made about the consequence on expiry of the term. Learned advocate, Shri Patel strenuously submitted that in the instant case, there is specific provision empowering the Government to extend the terms with specific word "not exceeding one year in aggregate".
9. Learned advocate, Shri Patel submitted that the submission that the reasons are not recorded, are also misconceived. He pointedly referred to the impugned order at AnnexureA and submitted that the reasons are recorded and it cannot be said that it is not a genuine or valid reason. He emphasized that the recommendation was made by the APMC, which have been considered and decision has been taken and, therefore, naturally same ground or recommendation has been referred as the justification. He, therefore, submitted that if the reason recorded has a reference to the valid justification, which is referring to the fulfillment of the object of the Act, the submissions are without any basis. He submitted that it cannot be said that no reasons are recorded as sought to be canvassed.
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C/SCA/11599/2017 JUDGMENT
10. Learned advocate, Shri Patel also submitted that the submissions with reference to other situation like the election in another cases referring to the observations made by the Hon'ble Apex Court in case of Dr. K.B. Nagur (supra) has to be read in background of the facts and relevant Rules or the statutory provision therein. He submitted that Section 11(4)(aa) of the APMC Act refers to the power of extension, which cannot be circumscribed referring to the ground suggested by learned advocate for the petitioners without any evidence or material. He submitted that the Legislature in his wisdom has left to the Government and when the Legislature has not thought it fit to limit or circumscribe the discretion by specific ground, it cannot be read into it. In support of this submission, learned advocate, Shri Patel has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Union of India & Anr. Vs. Deoki Nandan Aggarwal, reported in (1992) Supp.1 DVV 323 and emphasized the observations made in Paragraph No.14. Learned advocate, Shri Patel has also referred to Section 11(5) of the APMC Act and submitted that if the provision of Page 11 of 25 C/SCA/11599/2017 JUDGMENT Section 11(5) of the APMC Act are read in the manner suggested that once the term has expired, no extension could be granted, it would make the provision of Section 11(4)(aa) of the APMC Act redundant or negatory. He also referred to Rule 4 of the Gujarat Produce Market Committee Rules, 1965. He again referred to the observations made by the Hon'ble Apex Court in case of Dr. K.B. Nagur (supra), which has a reference to the vacuum created when there is no such provision for extension. He emphasized that in the instant case, powers have been vested with the Government by legislative provision and, therefore, the submissions made by learned advocate for the petitioners have to be considered with reference to the provision. He emphasized that the observations, which have been much emphasized referring to the judgment of the Hon'ble Apex Court in case of Dr. K.B. Nagur (supra), would not be applicable and as the provision are not identical, it has to be read in background of the facts.
11. Learned AGP Ms. Patel submitted that the petitioners have no locus standi and merely Page 12 of 25 C/SCA/11599/2017 JUDGMENT because the petitioners are desired to contest the election, is not a ground as no prejudice can be said to have been caused to them by such extension. Learned AGP Ms. Patel referred to the affidavitinreply filed by the State as also AnnexureR/1 refers to the recommendation for such extension and submitted that such recommendation made by the APMC have been considered and, thereafter, the order is passed recording reasons for such extension. She, therefore, submitted that it cannot be said that the reasons are not recorded. Learned AGP Ms. Patel submitted that it is not in dispute that the statutory provision provides for the power to grant such extension. She pointedly referred to Section 11(4)(aa) of the APMC Act and submitted that this provision empowers the Government to grant extension for one year. Therefore in exercise of power, if the extension is granted, it cannot be said to be illegal merely because the reckless allegations are made without any basis or foundation. She, therefore, submitted that the present petition may not be entertained and may be dismissed.
12. In rejoinder, learned advocate, Shri Rao submitted Page 13 of 25 C/SCA/11599/2017 JUDGMENT that though the affidavit is filed by the Government, it has not replied to the contentions raised in the petition. He submitted that power exercised is arbitrary, illegal and, therefore, suffers from vice of Article 14 of the Constitution of India. Learned advocate, Shri Rao submitted that the Government has failed to support its order by demonstrating as to why it thought it fit to grant extension with justifying reasons.
13. Learned advocate, Shri Rao submitted that the contention of locus standi is misconceived. He submitted that as stated in the Act, any person or agriculturist or trader, who is in the voters' list can contest the election. In support of this contention, he has relied upon the judgment of this High Court in case of Brijrajsinh Hemantsingh Jadeja Vs. State of Gujarat & Anr., reported in 2012 (3) GLR 2704, Paragraph No.8. He, therefore, submitted that if pending work is the excuses for extension with the change in the body, same could be continued. He submitted that the Committee is the statutory body and the grievance is made regarding the extension granted to the members of Page 14 of 25 C/SCA/11599/2017 JUDGMENT the APMC. He, therefore, submitted that the objection is quo the members of the Committee, who desired to continue and grounds mentioned cannot be said to be valid as development work may go on. He also submitted that the election process has to be started before expiry of the term. He submitted that the decision making authority should reflect about the reasons for the decision. He submitted that the recommendation of the Market Committee are reproduced, which cannot be said to be reasonable and, therefore, it is colourable exercise of power. Learned advocate, Shri Rao submitted that the judgment of the Hon'ble Apex Court in case of Deoki Nandan Aggarwal (supra) is not applicable.
14. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
15. First aspect which is required to be addresses is about the locus standi and the maintainability of the petition under Article 226 of the Constitution of India. It has been well settled by catena of judicial pronouncement as to who could be said to be an "aggrieved party". The petitioners, who Page 15 of 25 C/SCA/11599/2017 JUDGMENT claim that they desired to contest the election, cannot say that any prejudice is caused to them by such extension in exercise of statutory power. In other words, merely because the petitioner desired to contest the election, does not make the exercise of statutory power arbitrary or illegal. The petitioners have to first satisfy the legal injury before invoking discretionary jurisdiction under Article 226 of the Constitution of India. The petitioners having failed to show any prejudice or legal injury coupled with the fact that there is no material suggesting or supporting the allegation made of colourable exercise of power, cannot maintain such petition. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Thammanna Vs. K. Veera Reddy & Ors., reported in AIR 1981 SC 116, wherein it has been observed, "Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless, normally, "a person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something Page 16 of 25 C/SCA/11599/2017 JUDGMENT or wrongfully refused him something, or wrongfully affected his title to something ..............."
Therefore, though member of public having interest can maintain an action for judicial redress for public injury arising from the breach of public duty or from violation of some provision of the Constitution or the law, it is in the public interest and not to serve his personal or independent motive. In the facts of the case, it is stated that the petitioner nos.2 and 3 are active in social and political life and desired to contest election of APMC, Halvad, which would reflect the underlying purpose of litigation.
16. Another facet of submissions with regard to the exercise of colourable power, requires a closer scrutiny. The allegations have been made without any material suggesting any irregularity in the fact. The petitioners have not made any complaint before any authority with regard to the socalled irregularity or the corruption. Therefore bare words cannot be accepted at the face value. It is required to be stated that the allegations are made without joining concerned member or the concerned local MLA, who is Minister, as party Page 17 of 25 C/SCA/11599/2017 JUDGMENT respondent, who could have responded. In fact, the allegations are vague as referred to in the Ground
(d) inasmuch as what has been referred to as "they" without any specific details or name and only averment is that out of political pressure or local MLA, who is Minister, extension has been granted. There is no material indicating even prima faice any substance in such allegation. Therefore, the petitioners have made such allegation without any basis or foundation, which cannot be accepted at the face value. If there was material suggesting any nexus with the decision taken and the averments, perhaps it could be a matter of scrutiny. However in absence of any such material, vague allegations cannot be a ground to accept theory of colourable exercise of power when the statutory provision provides for exercise of such power to grant extension.
17. Another facet of submission made with much emphasis referring to Section 11(4)(aa) of the APMC Act is that though there is power, extension can be granted only in case of natural calamity, drought or election of the legislative assembly or Parliament. The provision of Section 11(4)(aa) of Page 18 of 25 C/SCA/11599/2017 JUDGMENT the APMC Act provides, "The State Government may, by order published in the Official Gazette and for reasons to be recorded therein, extend the said term for a period not exceeding one year in the aggregate."
18. Thus, the provision of Section 11(4)(aa) of the APMC Act empowers the Government, which is not in dispute. The vires of such statutory provision is also not challenged. Therefore the moot question is whether when the statutory power is exercised granting extension, merely because the allegations are made on the ground of colourable exercise with political colour added, it can be accepted. It is required to be stated that the allegation of political maneuvering that that it has been granted at the instance of local MLA, who is Minister, is misconceived and based on inference without any prima facie material suggesting that it is for such motive or purpose. Again if the allegations made without any supporting material are to be accepted at the face value, would amount to ignoring the statutory provision empowering the Government to grant extension in exercise of statutory powers granted by the Legislature. It is Page 19 of 25 C/SCA/11599/2017 JUDGMENT well accepted that the Courts are required to interpret and not to legislate or rewrite or adding to the statutory provision, which the Legislature may have enacted in its wisdom. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Rohitash Kumar & Ors. Vs. Om Prakash Sharma & Ors., reported in (2013) 11 SCC 451, it has been observed, "27. The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word. The legal maxim "A Verbis Legis Non Est Recedendum"
means, "From the words of law, there must be no departure". A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Court can only iron out the Page 20 of 25 C/SCA/11599/2017 JUDGMENT creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same, produces an intelligible result. .....................
28. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause."
19. Therefore when the Legislature has provided for exercise of such power granting extension, it would not call for judicial review. Moreover even for judicial review, scope would be limited and the Court has to satisfy itself on the basis of the material. As stated above, language of the statutory provision of Section 11(4)(aa) of the Page 21 of 25 C/SCA/11599/2017 JUDGMENT APMC Act does not restrict or confine the discretion for the grant of extension on any specific ground as canvassed by learned advocate, Shri Rao. Again the Legislature in its wisdom has been cautious that it cannot be abused or misused and, therefore while granting extension, the period has been made limited with outer limit of one year. It has been provided, "extent the said period not exceeding one year in the aggregate"
20. Thus the Legislature has taken care to provide the safeguard against any abuse or misuse that it cannot be perpetuated or such power may not be exercised granting extension perpetually. Therefore when the Legislature itself has inbuilt safeguard provided against any such apprehension, can the Court under the concept of judicial review seat in an appeal over the discretion exercised by the Government as a matter of policy. Again it cannot be said that there is no justification or valid ground mentioned in the order. The recommendation which have been made by APMC referred to by learned advocate have been considered that works are in progress regarding Page 22 of 25 C/SCA/11599/2017 JUDGMENT the development and the election and the change of the complexion of the Committee would bring some laxity in proper supervision and it may result in consequence, which may not be in the public interest. Therefore when the petitioners have failed to make any complaint about any irregularity to anybody or any forum, where they could have made grievance about irregularity or alleged corruption and having failed to make any such complaint, the extension is sought to be challenged on such allegation without any basis or foundation, which cannot be accepted.
21. The emphasis made by learned advocate, Shri Rao referring the observations made by the Hon'ble Apex Court in case of Dr. K.B. Nagur (supra), is required to be considered in context and background of the facts. When the Legislature or the Statute has not provided for any such extension and when there is vacuum, the observations have been made by the Court. In the instant case, the issue is different when the statutory provision provided for exercise of such discretion with outer limit suggesting the intention of the Legislature that the Legislature Page 23 of 25 C/SCA/11599/2017 JUDGMENT in its wisdom has contemplated to provide such extension in a given case subject to the limit or outer limit specified therein providing for the safeguard that it may not be abused or misused. Therefore, such submissions, which have been made referring to some observations, which have been relied upon, are devoid of merits. It is well accepted that the judgments of the Hon'ble Apex Court or the High Court have to be read as a whole and it has to be read in context and background as well as the statutory provision regarding which ratio is laid down.
22. The submissions which have been made referring to Section 11(4)(aa) of the APMC Act as well as Section 11(5) of the APMC Act, is required to be considered. If the provision of Section 11(5) of the APMC Act are interpreted in the manner suggested, it would leave statutory provision of Section 11(4)(aa) of the APMC Act negatory. It is required to be stated that the provision of Section 11(2)(a) of the APMC Act refers to the fact that if in case of Market Committee, no election is held, nomination could be made. In the instant case, no such decision is taken and only Page 24 of 25 C/SCA/11599/2017 JUDGMENT the extension has been granted as stated above for the reasons stated in the impugned order, which cannot be said to be colourable exercise of power. The process of decision would be based on the recommendation and the Government on the basis of the recommendation made by the Committee has accepted for extension and, therefore, the order would reflect only such ground for extension. Therefore, it cannot be said that there is no justification or valid ground mentioned for grant of extension as sought to be canvassed.
23. Therefore, the present petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief stands vacated. No order as to costs.
24. In view of dismissal of main matter being Special Civil Application No.11599 of 2017, Civil Application No.1 of 2018 filed therein does not survive and stands disposed of accordingly.
Sd/ (RAJESH H. SHUKLA, J.) Gautam Page 25 of 25