Gujarat High Court
Jitendrasinh Manjisinh Vaghela & 8 vs State Of Gujarat & 3 on 4 January, 2016
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/21267/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21267 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
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 No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JITENDRASINH MANJISINH VAGHELA & 8
Versus
STATE OF GUJARAT & 3
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Appearance:
MR VC VAGHELA for MR ANIL H PATEL, ADVOCATE for the Petitioners
MR NEERAJ ASHAR, ASSTT GOVT PLEADER for Respondent Nos.1 to 3
MR HARDIK RAVAL, ADVOCATE for Respondent No.5
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 04/01/2016
ORAL JUDGMENT
1. By the present petition filed under Article 226 of the Constitution of India, the petitioners, who were elected members of the respondent No.4 Market Committee, have challenged the order dated 28.12.2015 passed by respondent No.1 appointing the Administrator for respondent No.4 Market Committee in exercise of the powers under Section 11(5)(a) of the Gujarat Agricultural Produce Page 1 of 8 HC-NIC Page 1 of 8 Created On Tue Jan 05 22:56:16 IST 2016 C/SCA/21267/2015 JUDGMENT Market Act, 1963 ('the Act').
2. As per the case of the petitioners, term of the Market Committee had expired on 8.8.2012 and election program was declared to hold election of the Market Committee, however subsequently, such election program was cancelled by the respondent No.2. Then, new election program was declared. However, since the petition was filed against publication of the final voter list, direction was issued by this Court vide order dated 11.4.2012 in Special Civil Application No.396 of 2012 to declare election program from the stage of publication of the final voter list after the exercise in connection with finalization of voter list was completed, as directed by the Court, by the Director. This order was challenged by the newly added party- respondent No.5 before Hon'ble Supreme Court by filing S.L.P. (Civil) No.8771 of 2012, wherein stay against holding of the election was granted but, then by order dated 15.5.2015, the SLP was permitted to be withdrawn and thereafter, a petition was moved by the petitioners before this Court to direct the concerned authority to hold election and not to appoint the Administrator till election is held. In such petition, the direction was issued to take immediate steps for holding election.
3. The petitioners have alleged in the petition that all throughout, holding of election was stalled by respondent No.5 and the petitioners are not responsible for delay in holding the election and now, when there is a direction to hold election, with malafide intention, just to throw the present body out of the office, the impugned order appointing the Administrator is passed.
4. Learned advocate Mr.Vaghela for the petitioners submitted that earlier when the petition was filed seeking direction to hold election and challenging appointment of the Administrator, a statement was Page 2 of 8 HC-NIC Page 2 of 8 Created On Tue Jan 05 22:56:16 IST 2016 C/SCA/21267/2015 JUDGMENT made through affidavit-in-reply that appointment of the Administrator shall be withdrawn and accordingly, by order dated 2.4.2012, appointment of the Administrator was cancelled. Mr. Vaghela submitted that thereafter, on account of the stay granted by Hon'ble Supreme Court against holding of the election, the election could not be held, for which the petitioners were not responsible and therefore, the petitioner continued to hold the office of the Market Committee. Mr. Vaghela submitted that as per the provisions of Section 11(4)(aa) of the Act, the State Government is to first resort to grant extension of the term of the Market Committee for a period of one year and only thereafter, powers for appointment of Administrator could be exercised. Mr. Vaghela submitted that such power is not exercised by the State Government before issuing the impugned order and the petitioners continuing in the office is on account of not holding of the election and not by virtue of any extension order passed by the State Government and therefore, it is not open to the State Government to straightway resort to exercise of the powers under Section 11(5)(a) of the Act. Mr. Vaghela submitted that as per the interim direction issued by this Court in the petition, being Special Civil Application No.21167 of 2015, filed by the petitioners, the election of respondent No.4 Market Committee is required to be held at the earliest and election program for such purpose is required to be placed before this Court on the proceedings of that petition on or before 8.1.2016, and in view of such interim direction issued by this Court, since the election is required to be held in near future, the State Government ought not to have exercised the powers for appointment of Administrator at the instance of respondent No.5. Mr. Vaghela submitted that exercise of the powers at this stage when the election is to be immediately held is nothing but a malafide exercise of the powers with only intention to see that the petitioners may not continue in the office till election is held.
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C/SCA/21267/2015 JUDGMENT
5. Learned Assistant Government Pleader Mr. Neeraj Ashar on the other hand submitted that though the term of the present petitioners as members of the respondent No.4 Market Committee was over as back was in the year 2012, they have been continuing in office without any order of extension from the State Government and in such circumstances, law mandates for appointment of Administrator especially when extended term has gone beyond the period of one year. Mr. Ashar submitted that the impugned order is issued in exercise of powers available in law and there is no malafide in exercise of such powers as on account of the stay granted by Hon'ble Supreme Court, it was not possible to hold election, however so far as the petitioners are concerned, the petitioners have enjoyed more than 3 years as members of the Market Committee even after their term expired.
6. Learned advocate Mr. Hardik Raval appearing for newly added respondent No.5 has submitted that the allegations made in the petition are without any substance inasmuch as there was a genuine grievance as regards finalization of the voter list and since the matter was pending before Hon'ble Supreme Court, the election was not held by virtue of the stay order granted by Hon'ble Supreme Court. Mr. Raval submitted that as per Section 11(4)(aa) of the Act, the State Government can extend the term of the elected body for a maximum period of one year. However, the State Government has not exercised such powers and the petitioners, therefore, continued to enjoy the office of the Market Committee beyond their term for more than 3 years. Mr. Raval submitted that provision of Section 11(4)(b) mandates that the extended term of the Market Committee shall be co-terminus with the term of the Market Committee and shall end immediately before appointment of the Administrator. Mr. Raval submitted that now since the appointment is made in exercise of the Page 4 of 8 HC-NIC Page 4 of 8 Created On Tue Jan 05 22:56:16 IST 2016 C/SCA/21267/2015 JUDGMENT powers under Section 11(5)(a) of the Act, it cannot be said that the powers are malafidely exercised by the State Government.
7. Having heard learned advocates for the parties, it appears that there is no dispute on the aspect that after the term of the petitioners as members of the Market Committee was over on 8.2.2012, in absence of any order made by the State Government to extend the term for a period of one year under Section 11(4)(aa) and in absence of election to elect new body, the petitioners continued in the office of the Market Committee for more than three years, which is beyond the period for which the State Government could have exercised the powers for extension of the term under Section 11(4)(a) of the Act. The petitioners could continue in office by virtue of Section 11(4)(b) of the Act, which reads as under :-
"Save as otherwise provided in this Act, the term of office of the members of the market committee shall be co-extensive with the term of the market committee and also shall be deemed to extend to and expire with the day immediately before the date of the appointment of an Administrator under clause (a) of sub-section (5)."
8. As per above provision, the term of the office of the members of the Market Committee shall be co-extensive with the terms of the Market Committee and also shall be deemed to extend to and expire immediately before the date of appointment of the Administrator under Clause (a) of sub-section (5) of Section 11 of the Act. By virtue of such provision and in absence of any order made by the State Government under Section 11(4)(a) of the Act, the petitioners would continue to be in office of the Market Committee till immediately before the date of appointment of the Administrator. Thus, once the term of the members of the Market Committee expires and there is no extension by the State Government under Section 11(4)(aa) of the Act, the right of the petitioners to continue in the office would be till the Administrator is appointed. Mr. Vaghela, however, submitted that Page 5 of 8 HC-NIC Page 5 of 8 Created On Tue Jan 05 22:56:16 IST 2016 C/SCA/21267/2015 JUDGMENT continuance of the petitioners in the office is on account of non- holding of the election by the State authority and therefore, before resorting to appointment of Administrator under Section 11(5)(a) of the Act, it was incumbent upon the State Government to first resort to exercise the powers under Section 11(4)(aa) of the Act. For such purpose, he has relied on the decision of this Court in the case of Agricultural Produce Market Committee Vs. State of Gujarat (Special Civil Application No.9301 of 1997 and allied matters) dated 30.4.1998. From the perusal of the said decision, it appears that in the said case, immediately after expiry of the term of the Market Committee, the State Government had decided to appoint Administrator without first resorting to exercise the powers under Section 11(4)(aa) of the Act. However, in the facts of the present case, no such occasion to exercise powers under Section 11(4)(aa) would arise inasmuch as in absence of exercise of the powers, the petitioners have otherwise continued in the office for more than three years. As per Section 11(5)(a) of the Act, it is mandatory for the State Government to direct appointment of the Administrator in case where term of the office of the Market Committee has expired. As per Section 11(4)(b) of the Act, after term of the petitioners had expired in the month of February 2012, it stood extended by deeming provision and expired with appointment of the Administrator. Thus, when the term of the office of the Market Committee would expire in absence of any order of extension made by the State Government and such term when shall be deemed to have extended only till appointment of the Administrator and when law mandates by virtue of Section 11(5)(a) of the Act to appoint Administrator, it cannot be said that the impugned order for appointment of the Administrator is in anyway illegal. Simply because the respondent No.5- newly added party had taken some proceedings and there was stay from the Hon'ble Supreme Court not to hold election and simply because now Page 6 of 8 HC-NIC Page 6 of 8 Created On Tue Jan 05 22:56:16 IST 2016 C/SCA/21267/2015 JUDGMENT there is a direction by this Court to take immediate step for holding of election of the Market Committee, it cannot be said that there is malafide exercise of powers in passing the impugned order.
9. Learned advocate Mr. Vaghela, however, relied on the decision of learned Single Judge of this Court in the case of Pradeepbhai Parshottambhai Sojitra Vs. State of Gujarat (Special Civil Application No.15414 of 2008) dated 23.1.2009 reported in 2009(2) GLH (UJ) 2 to submit that when there are enabling powers with the State Government to extend the term of the Market Committee for a period of one year under Section 11(4)(aa) of the Act and when immediate step is ordered to be taken for holding of election, circumstances would justify, especially when the petitioners are not responsible for delay in holding the election, to quash the order of appointment of Administrator or at least to direct the State Government to appoint a Committee of Chairman with Secretary of the Market Committee and any officer of the State Government to look into day-to-day affairs of the Market Committee till newly elected body takes over the management of the Market Committee. The Court, however, on perusal of the said decision, finds that it was in different facts situation and relying on the declaration made by learned Advocate General, the Court found it proper to quash the order of appointment of the Administrator with a direction to appoint a committee, as stated above, to look into day-to-day affairs of the Market Committee till newly elected body takes over the management of the Market Committee. However, present is a case where, as stated above, the petitioners have continued to be in office for long time by virtue of Section 11(4)(b) of the Act and they would not be entitled to further continue on appointment of the Administrator. Therefore, simply because there is a direction issued by this Court to take immediate steps for holding of election and simply because such election is to be held in near future, there is no Page 7 of 8 HC-NIC Page 7 of 8 Created On Tue Jan 05 22:56:16 IST 2016 C/SCA/21267/2015 JUDGMENT ground to quash the impugned order. By the impugned order, the State Government appears to have acted as per the mandate given out in Section 11(5)(a) of the Act. The Court therefore, finds that in such exercise of powers mandated by the legislature, no interference is required in exercise of powers under Article 226 of the Constitution of India. The petition is therefore, rejected. Notice is discharged.
Sd/-
(C.L. SONI, J.) omkar Page 8 of 8 HC-NIC Page 8 of 8 Created On Tue Jan 05 22:56:16 IST 2016