Gujarat High Court
Lakhabhai Ukabhai Zala vs State Of Gujarat on 8 October, 2018
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1282/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1282 of 2018
In SPECIAL CIVIL APPLICATION NO. 15481 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
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LAKHABHAI UKABHAI ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR DILIP B RANA(691) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3
MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 08/10/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal, which is filed under Clause 15 of the Letters Patent, is directed against an order dated 05.10.2018 passed by the learned Single Judge in Special Civil Application No.15481 of 2018 whereby the learned Single Judge has dismissed the petition.
2. Heard learned advocate Mr.Dilip B. Rana for the appellant - original petitioner.
2.1 Learned advocate for the appellant submitted Page 1 of 9 C/LPA/1282/2018 ORDER that the appellant - original petitioner is the Ex Chairman of Agricultural Produce Market Committee ('APMC' for short), Una. The term of the existing elected body of APMC, Una, was to expire on 06.09.2018 and, therefore, respondent No.2 declared the election programme of APMC, Una, on 05.06.2018. The date of the election was 29.08.2018. It is submitted that some of the Cooperative Societies challenged the publication of provisional voters' list and final voters' list published by the authorised officer with regard to the election of the market committee by filing the petition before this Court. This Court disposed of the petition by order dated 16.08.2018 with the consent given by the respondent State and thereby election programme published on 05.06.2018 and the subsequent steps taken under the said programme are set aside. Respondent No.2 was directed to publish election programme afresh within stipulated timelimit. It is submitted that fresh election programme of APMC, Una, was published on 29.08.2018 as per the direction given by this Court. However, as the term of the elected body got over on 06.09.2018, the respondent Page 2 of 9 C/LPA/1282/2018 ORDER State issued notification on 25.09.2018 whereby the Administrator for managing the affairs of the market committee was appointed by exercising powers under Section 11(5)(a) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the Act" for short).
2.2 Learned advocate Mr.Rana for the appellant submits that the petitioner, therefore, filed captioned petition challenging the order/notification dated 25.09.2018 passed by the respondent State. Learned Single Jude dismissed the said petition and, therefore, this appeal is filed.
2.3 Learned advocate Mr.Rana challenged the order passed by the learned Single Judge mainly on the ground that the respondent State is empowered to extend the term of the market committee for a period not exceeding one year under Section 11(4)(aa) of the Act. There was no fault of Managing Committee of the APMC, Una, for not holding election before the expiry of the term i.e. 05.09.2018. It is further submitted that before issuing the impugned notification dated Page 3 of 9 C/LPA/1282/2018 ORDER 25.09.2018, opportunity of hearing was not afforded to the committee members of the APMC, Una, and, therefore, the learned Single Judge ought to have set aside the said notification. It is, therefore, urged that the impugned order passed by the learned Single Judge be set aside and consequently, notification dated 25.09.2018 issued by the respondent State may also be set aside.
3. Having heard learned advocate appearing for the appellant - original petitioner and having gone through the material produced on record, it is revealed that the term of the existing elected body of the APMC, Una, was to expire on 06.09.2018 and, therefore, the concerned authority declared the election programme on 05.06.2018. However, the said election programme came to be set aside by this Court by order dated 16.08.2018 and as per the direction issued by this Court, the respondent authority issued a fresh election programme on 29.08.2018. The said election programme is produced at Page20 of the compilation. As per the said election programme, date of election is 26.11.2018. The date of counting of votes is 27.11.2018.
Page 4 of 9 C/LPA/1282/2018 ORDER
4. The only contention raised by the learned advocate for the appellant - petitioner is that in the facts of the present case when the committee members of the elected body of APMC, Una, declared election programme well in advance i.e. before expiry of the term of the elected body i.e. 05.09.2018, the respondent State ought to have extended the term for a period not exceeding one year. It is further the case of the petitioner that the respondent State has wrongly exercised powers under Section 11(5)(a) of the Act.
5. At this stage, we would like to refer the provisions contained in Sections 11(4) and 11(5) of the Act, which read as under:
"11. (4) (a) The term of office of a market committee shall, save as otherwise provided in this Act, be four years form the date of its first general meeting.
[Provided that the term office of the existing market committee on the date of commencement of the Gujarat Agricultural Produce Markets (Amendment) Act, 2015 (Guj. 14 of 2015) shall be four years.] Page 5 of 9 C/LPA/1282/2018 ORDER [(aa) 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.]
(b) Save as otherwise provided in this Act, the term of office of the members of the market committee shall be coextensive with the term of the market committee and also shall be deemed to extend to and expire with the day immediately before the 8 [date of the appointment of an Administrator under clause (a) of subsection (5)].
[Provided that the term of the office of the Chairman and the ViceChairman of the Market Committee shall be two and a half years but shall not extend beyond the term of the market committee;
Provided further that the term of the office of the Chairman and the ViceChairman who have completed the term of two and a half years on the date of commencement of the Gujarat Agricultural Produce Markets (Amendment) Act, 2015 (Guj. 14 of 2015), shall be coextensive with the term of the market committee.] [(5) (a) Where the term of office of a market Page 6 of 9 C/LPA/1282/2018 ORDER committee has expired, the State Government shall, by order published in the Official Gazette direct that-
(i) such parson as may be appointed by the State Government from time shall be the Administrator to manage the affairs of the market committee, during the period beginning with the date specified in the order and ending on the day immediately preceding the date of the first general meeting of the market committee as reconstituted on the expiry of the term of the market committee (hereinafter in this sub section referred to as "the said period");
(ii) the market committee shall be reconstituted within such period not exceeding one year in the aggregate as may be specified in the order.
(b) During the said period, all powers, functions and duties of the market committee under this Act shall be exercised and performed by the Administrator.
(c) The Administrator may by an order in writing delegate any of the powers, functions and duties to be exercised or performed by him under clause (b)to any officer for the time being employed by the market committee.
(d) The Administrator shall receive such Page 7 of 9 C/LPA/1282/2018 ORDER remuneration from the Market Committee Fund as the State Government may from time to time by general or special order determine.]"
6. From the aforesaid provisions, it can be said that under Section 11(4)(aa) of the Act, discretionary powers are given to the State Government to extend term of market committee for a period not exceeding one year in the aggregate. Thus, looking to the discretion given to the State Government, it is for the State Government to exercise such discretion in the facts of a particular case. However, the State Government cannot be compelled to exercise such powers of extending the term as prayed for by the petitioner. On the other hand, if the provisions contained in Section 11(5)(a) is carefully examined, the State Government is empowered to appoint Administrator to manage the affairs of the market committee. If the impugned notification dated 25.09.2018 is examined, it is revealed that the Administrator is appointed for a period of one year in APMC, Una, or till elected committee takes charge of the administration, whichever is earlier. At this stage, it is required Page 8 of 9 C/LPA/1282/2018 ORDER to be noted that the election programme is already published on 29.08.2018 and as per the said programme, election is to take place on 26.11.2018. Thus, we are of the view that the respondent State has not committed any error while passing the impugned notification dated 25.09.2018.
7. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we see no reason to interfere with the impugned order passed by the learned Single Judge. Accordingly, the appeal is dismissed. Consequently, Civil Application stands disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) piyush Page 9 of 9