Gujarat High Court
Amrutlal Mulchandas Patel vs State Of Gujarat on 3 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/8831/2024 ORDER DATED: 03/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8831 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 8833 of 2024
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AMRUTLAL MULCHANDAS PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MIHIR JOSHI, SENIOR COUNSEL with MR DIPEN DESAI(2481) for
the Petitioner(s) No. 1,2,3,4,5
MS MANISHA L SHAH, ADDITIONAL ADVOCATE GENERAL with MR JAY
TRIVEDI with MS NIDHI VYAS, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 03/07/2024
ORAL ORDER
Draft amendment dated 02.07.2024 is taken on record and the same is allowed. To be carried out forthwith.
1. Heard Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Dipen Desai, learned advocate appearing for the petitioner and Ms. Manisha L. Shah, learned Additional Advocate General appearing with Mr. Jay Trivedi and Ms. Nidhi Vyas, learned AGP appearing for the respondent - State.
2. The Special Civil Application No.8831 of 2024 is preferred by the members of the Agriculture Produce Market Committee Page 1 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined (for short 'APMC'), Unjha and the Special Civil Application No.8833 of 2024 is preferred through the Chairman of the APMC, Unjha. The dispute involved in both the petitions is analogous and identical and in view thereof, both the petitions are heard together and are being disposed of by this common order.
2.1 The facts of both the petitioners are identical and in view thereof, Special Civil Application No.8831 of 2024 is treated as the lead matter and facts of the said petition are reproduced herein.
3. By way of captioned petitions, the petitioners herein have prayed for a direction qua the respondent authorities more particularly, the respondent No.2 herein to declare and hold elections of the respondent No. 4 - APMC, Unjha, as early as possible. It is also prayed that in the meantime, the respondent Nos.1 and 2 be directed to extend the term of the present elected body of APMC, Unjha till the fresh elections are held and till the newly elected body takes over the charge of the APMC, Unjha. It is further prayed that the respondent Nos.1 and 2 be restrained from appointing Administrator in the respondent No.4 - APMC.
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4. The petitioners herein are the elected members of the APMC, Unjha. The last elections of the APMC, Unjha was declared on 07.01.2019 by the respondent No.2 - Director and the election was to be held on 08.04.2019. The Loksabha elections came to be declared on 16.03.2019 as also the by-
election of Unjha and Talala Legislative Assembly seats were also declared and therefore, in view of Model Code of Conduct having come into operation, the elections of APMC, Unjha was postponed by the State Government vide Notification dated 16.03.2019 and consequential order of postponing the elections of the APMC, Unjha was passed by the District Registrar on 15.04.2019.
4.1 Upon completion of the Loksabha elections as also the by-elections, the election process of the APMC, Unjha came to be restarted and finally the same was held on 09.06.2019. The newly elected body took over the charge of the APMC, Unjha in its first meeting held on 20.06.2019. Section 11(4)(a) of the Gujarat Agricultural Produce Marketing (Promotion and Facilitation) Act, 1963 (for short 'the Act') provides that the term of the office of the Market Committee shall be 5 years from the date of the first general meeting. In view of the Page 3 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined aforesaid, the term of the Market Committee has expired on 19.06.2024 on completion of 5 years. The petitioners herein have approached this Court by preferring the present petition on 11.06.2024 seeking the aforesaid directions.
5. Notice and Notice as to interim relief came to be issued by this Court on 14.06.2024. The matter came to be adjourned and was posted for further hearing on 19.06.2024.
6. Mr. Mihir Joshi, learned Senior Counsel appearing for the petitioners, submitted that Section 11(4)(aa) of the Act provides for extension of term of the Market Committee. In view thereof, the first endeavor should be to see that the term is extended and only in exceptional cases, the State Government can appoint Administrator in exercise of powers under Section 11(5)(a) of the Act.
6.1 To substantiate the aforesaid submission, Mr. Mihir Joshi, learned Senior Counsel, relied upon the ratio laid down in 2009 (2) GLH (UJ) 2, in case of Pradeepbhai Parshottambhai Sojitra vs. State of Gujarat. Reliance is placed on the decision rendered in Special Civil Application No.13766 of 2013 dated 03.03.2014, Special Civil Application No.9301 of 1997 and Page 4 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined allied matters dated 30.04.1998 and 1992 (1) GLR 503 in case of Abdulgani Abdulbhai Kureshi vs. State of Gujarat.
6.2 Placing reliance on the aforesaid decisions, Mr. Mihir Joshi, learned Senior Counsel, submitted that it is not open for the respondents to go on election holidays. The respondent is not permitted to proceed on election holiday. It is submitted that the term of the present Committee be continued and the elections be declared instead of appointing Administrator.
7. Per contra, Ms. Manisha L. Shah, learned Additional Advocate General, appearing for the respondent - State, submitted that the present petition is pre-mature and that, no decision was taken with respect to the appointment of the Administrator under Section 11(5)(a) of the Act. It is submitted that during the subsisting term of the petitioner Committee, the respondent No.2 has received various complaints on different dates with respect to illegalities committed by the existing elected body in managing the affairs of the committee. The petitioners having known of the multiple representations having been received by the respondent authorities against them, apprehended the non-extension of the term under Section 11(4)(aa) of the Act and in view Page 5 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined thereof, have prayed for extension before any decision is taken by the State Government. At the time when the petition was filed, no order of Section 11(4)(aa) or Section 11(5)(a) of the Act was passed by the respondents and hence with a view to stultify the operation of the law of exercising powers under Section 11(5)(a), the petitioners have approached this Court and preferred the present petition.
7.1 Ms. Shah, learned AAG, submitted that upon expiry of the term of the Market Committee, the State Government is mandated to appoint an Administrator under Section 11(5)(a) of the Act. A duty is cast upon the State Government to only "consider" the reasons for extension/non-extension of term of the market committee before taking any decision and if, the circumstances are justified, the term cannot be extended. It is submitted that a proposal came to be forwarded by the respondent No.2 under Section 46 of the Act for super-session of the Committee which is duly produced at page 47. Pursuant thereto, a proposal was forwarded on 19.06.2024 for appointment of an Administrator and the Administrator came to be appointed by order dated 21.06.2024.
7.2 Placing reliance on the aforesaid submissions, Ms. Shah, Page 6 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined
learned AAG, submitted that the petitioner does not possess any indefeasible right of extension of term. It is submitted that the law is well settled that the life of an elected body expires on completion of its term and the petitioners do not have vested right to continue in the office beyond the said period in absence of any order from the State Government. It is submitted that the elections of the Market Committee could not be held for the situations beyond the control of the authorities more particularly, in view of the Loksabha elections and therefore, the State Government is empowered to exercise its discretion either to extend the term or to appoint an Administrator. The petitioners cannot compel the State Government to extend the term of the Committee more particularly, when there are valid reasons for non-extension.
7.3 Ms. Shah, learned AAG, lastly assured the Court that the respondent authority would be declaring the election at the earliest. That, this Court may not exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India.
7.4 Ms. Shah, learned AAG, has also pointed out that the present petition came to be filed on 11.06.2024 upon proposal by the respondent No.2 for supersession of the market Page 7 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined committee. It is also pointed out that the petition being Special Civil Application No.8833 of 2024 is filed through the Chairman without placing on record the resolution and in view thereof, in absence of resolution by the committee, the petition is not maintainable in the eye of law.
7.5 Ms. Shah, learned AAG, placed reliance on the ratio laid down in case of Jitendrasinh Manjisinh Vaghela vs. State of Gujarat reported in 2016 (2) GLR 1216. Reliance is also placed on the decision rendered in Letters Patent Appeal No.1282 of 2018 in Special Civil Application No.15481 of 2018 dated 08.01.2018, 2013 SCC Online Bom. 1650 in case of Udhav Shalikram Geete vs. State of Maharashtra and 1990 (1) GLR 423 in case of Mehsana District Central Co-operative Bank Ltd.
vs. Merda Seva Sahakari Mandali Ltd..
Analysis:-
8. Heard the learned Senior Counsels appearing for the respective parties.
8.1 The petitioners herein have prayed to declare and hold elections of the respondent No.4 - APMC, Unjha at the earliest Page 8 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined and till the elections are declared, the term of the present petitioner Committee be extended till the results are declared.
8.2 Pending the present petition, Administrator has been appointed by the respondent - State by order dated 21.06.2024 and in view thereof, by way of draft amendment, the petitioner has challenged the said order of appointment of Administrator. The aforesaid prayers are to be examined in light of Section 11(4)(aa) and Section 11(5)(a)(ii) of the Act.
9. It is apposite to refer to relevant provisions of the Gujarat Agricultural Produce Marketing (Promotion and Facilitation) Act, 1963, which reads thus:
"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.] [(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 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 8 [date of the appointment of an Administrator under clause (a) of sub-section (5)].
[Provided that the term of the office of the Chairman and the Vice-Chairman of the Market Committee shall be two and a half years but shall not extend beyond the term of the market committee;
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Provided further that the term of the office of the Chairman and the Vice-Chairman 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 co-extensive with the term of the market committee.] [(5) (a) Where the term of office of a market 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 subsection 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 remuneration from the Market Committee Fund as the State Government may from time to time by general or special order determine.]"
10. In the facts of the present case, for the elections held of APMC, Unjha, the petitioner committee took over the charge in its first meeting held on 20.06.2019. The term of the petitioner committee has expired on 19.06.2024 on completion of 5 years as provided under Section 11(4)(a) of the Act. By preferring the present petition on 11.06.2024, the petitioner committee herein seeks extension of the term of the petitioner committee Page 10 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined and declaration of elections of the APMC, Unjha. On even date, the respondent No.2 issued a communication to the Deputy Secretary, Agriculture, Co-operation and Farmers' Welfare Department pointing out alleged irregularities by the petitioner committee and proposed for supersession of the committee under Section 46 of the Act and for appointment of an Administrator. On 19.06.2024, the respondent No.2 by a further communication to the Deputy Secretary, Agriculture, Co-operation and Farmers' Welfare Department, proposed an appointment of an Administrator considering the fact that the term of the committee expires on 19.06.2024 and revoked the order dated 11.06.2024 for supersession of the committee.
Pursuant to the proposal by the respondent No.2 dated 19.06.2024 for appointment of an Administrator, instead of granting extension to the committee in view of the alleged irregularities pointed out in the said communication, the respondent No.1 passed an order of appointment of an Administrator on 21.06.2024 under Section 11(5)(a) of the Act;
duly approved by the Deputy Secretary. The said order dated 21.06.2024 has been challenged by way of Draft Amendment dated 02.07.2024 which came to be granted by this Court.
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11. It is apposite to deal with the decisions relied upon by Mr. Mihir Joshi, learned Senior Counsel to substantiate the submissions:
11.1 Mr. Joshi, learned Senior Counsel, relied upon the ratio as laid down in case of Abdulgani Abdulbhai Kureshi vs. State of Gujarat reported in 1992 (1) GLR 503. Paragraphs 3, 10(page
9), 18, 19, 20, 21, 24, 25, 28 and 29 read thus:
"3. Background Facts: Four municial corporations concerned in these petitions are: (1) Ahmedabad Municipal Corporation, (2) Surat Municipal Corporation, (3) Baroda Municipal Corporation, and (4) Rajkot Municipal Corporation. They were reconstituted in the year 1987 under the provisions of the Act. As per Section 6(1) of the Act, terms of office of elected councillors expire at the end of five years if not extended for further period upto one year by the State of Gujarat in exercise of its powers under Section 6(1) subject to following the procedure laid down therein. It is not in dispute that terms of the councillors of the reconstituted corporations were to expire between 6 th and 12th February, 1992 as five years' period would be over since the dates of first meetings of councillors elected in the general elections to these corporations held in 1987. It is also not in dispute that their terms are not extended uptil now by the State under Section 6(1) for a further period of one year and for that purpose, no procedure under the said provisions has been followed by the State of Gujarat. As per impugned Section 7A of the Act, on expiry of the terms of the councillors, State of Gujarat is enjoined to appoint administrators to take over charge of these corporations and the maximum period for which charge can be taken by the administrators would be two and half years within which elections for reconstituting these corporations have to be undertaken and completed by the State and other authorities under the Act. The petitioners some of whom are Mayors, Deputy Mayors and Chairman of standing committees of concerned corporations and others who are sitting councillors, tax payers and voters residing within the areas of concerned corporations have moved these petitions for appropriate reliefs against the State of Gujarat and the Municipal Commissioners of the concerned corporations for restraining them from resorting to Section 7A of the Act and from appointing administrators on the expiry of the terms of outgoing councillors of these Corporations. They have also sought mandamus or appropriate directions in the nature of mandamus against the concerned authorities calling upon them to initiate election process for reconstituting these Corporations and in the mean time it has to extend the terms of the councillors for a period Page 12 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined of one year more or for permanently restraining the State of Gujarat from resorting to Section 7A and from appointing administrators of these Corporations till fresh elections to these Corporations are held. They have challenged vires of Section 7A of the Act both on the ground of legislative competence as well as on the ground that these provisions are violative of Article 14 of the Constitution. Their contention is that the State of Gujarat has extended the terms of Gram Panchayats and District Panchayats functioning under the Gujarat Panchayats Act, 1961 on the ground that figures for 1991 Census are not still ascertained and hence, it is not possible to demarcate the wards had to fix number of councillors for such Panchayats; while for the Corporations, they have held out a hostile treatment by not extending their terms though the ground put forward for not holding fresh elections to these Corporations is the same namely that population figures for 1991 Census are not still ascertained and it is not possible to demarcate the wards and to fix number of councillors for such wards. This has been done, according to the petitioners, with an oblique political motive as three of these Corporations are manned by rival political party, viz., Bhartiya Janta Party while the State Government comprises of minority Government of Gujarat Janta Dal supported by Congress party. Therefore, both factual and legal mala fides are alleged underlying the action of the State in not extending the terms of these Corporations for one year as per Section 6(1) of the Act. It is also contended that on the very ground that Census figures of 1991 are not available and hence election cannot be held for municipalities, the respondent-State has extended the terms of some of the municipalities like Unjha and Dabhoi while they have appointed Administrators under the Gujarat Municipalities Act for other municipalities similarly situated like Kalol and Borsad and in this connection, petitions are filed in this Court and the learned single Judge has entertained the petitions against non-extension of the terms of the concerned municipalities and has granted interim relief directing the State of Gujarat to grant extension to the councillors of these municipalities. Even though Letters Patent Appeals against these interim orders are admitted by this Court, the said circumstance is cited as an instance which according to the petitioners, shows that the State of Gujarat has acted arbitrarily and with oblique motive and has resorted to picking and choosing the local authorities for the purpose of granting and non-granting of extension.
10. .........What is not ascertained in the year 1991 and till today cannot be made a ground for postponing elections on the supposition that in future at some point of time, may be, not in near future, such figures may be made available and then these elections can be held. If such a stand is accepted by the Government, such elections cannot be held at all at least till early part of 1994 as the learned Attorney General himself stated before us that it will require about one year and two months after these figures of 1991 Census are available some where in October 1992 and thereafter. Result would be that after the term of elected councillors is over, next general ward elections would be delayed for more than two years. Such type of elections holiday is not permitted or countenanced by the legislature. It would run counter to the principle of local self-Government for effecting which the State legislature has enacted this Act and that is precisely the reason why Page 13 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined the legislature intervened after Vishnuprasad's case (supra) and enacted Section 2(45A) so that such type of election holiday can be avoided and the State would not be required to wait indefinitely in search of figures of future Census as and when they are available. We, therefore, hold that the State of Gujarat was clearly in error and failed to exercise its statutory obligations on the total misconception of the legal position when it failed to issue, latest by May 1991, notifications under Sections 5(2) and (3) of the Act. It is easy to visualise that if the State had discharged its statutory obligations at the relevant time, fresh elections to these corporations would have been over by December 1991 as all the Commissioners had moved in the matter well in time and requested the State to issue such notifications so that electoral rolls can be prepared and general elections could be held in time. If that had happened by January 1992, newly elected councillors would have been available to take over the reins of the corporations. Under these circumstances, we have no alternative but to direct the State to immediately start election process for all these corporations and to discharge its statutory obligations under Sections 5(2) and (3) on the basis of population figures of 1981 Census which would be last preceding Census at which such figures are ascertained and are available. On the principle of 'Better late than never', these directions are required to be given forthwith to avoid further unnecessary delay. In the light of statutory scheme of various provisions of the Act and the Rules, at least 9 months' time will be required before the elections are held for these corporations even according to the present order and consequently, while passing final order, we will issue appropriate direction, fixing time schedule for such elections.
18. Point No. 3: So far as this point is concerned, we may note that Section 7A(1) provides that where the term of office of the councillors has expired, the State Govt, may direct appointment of an administrator to manage the affairs of the Corporation during the period from the date specified in the order upto the date immediately preceding the date of the meeting referred to in Sub-section (2) of Section 6 in which the Mayor is appointed and further direct general election for reconstitution of the Corporation within such period not exceeding two and half years in the aggregate as may be specified in the order. The learned Advocate General rightly contended that Clauses (a) and (b) of Sub-section (1) of Section 7A are cumulative and that order appointing administrator must conform to both these provisions once this position is clear, it becomes obvious that Section 7A(1) can be pressed in service if both the conditions precedent exist (1) term of Office of councillors should have expired and (2) order appointing administrator should be passed at a stage where general ward elections are still not held and it may not be possible to hold them for a maximum period of 2 1/2 years. Only in such eventualities, power under Section 7A(1) can be exercised. Therefore, when the State thinks that general ward elections to these Corporations for reconstituting them are not likely to be held upto a maximum period of 2 1/2 years and that term of the office of the councillors has expired, then only such order can be passed. We have held while deciding points Nos. 1 and 2 above, that general elections for reconstituting the Corporations could be held and could have been held in the year 1991 itself and there was no need to wait even for a month much less upto 2 Page 14 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined 1/2 years after the expiry of the term of councillors, the conditions precedent enjoined by Section 7A(1)(b) obviously was not existing at any point of time so far as elections of these Corporations went. Not only that, but once we are issuing, by the present judgment, directions to the respondent-State to hold general elections even though belatedly, within the time schedule which will be fixed in this judgment, there would remain no occasion for the State to fall back upon Section 7A(1)(b) or for that matter even Sub-clause (a) of that provision. For the purpose of discussion on this point, we assume that the first condition that the term of office of councillors has expired exists, as there is a hot debate on the question whether Section 7A(1) can be pressed in service without undertaking exercise of extending the term of councillors as per Section 6(1) second p Article That question will be dealt with hereafter. But even assuming that normal term of five years having expired, the State can legitimately fall back upon Section 7A(1), no order can be passed thereunder as second condition precedent enjoined by Section 7A(1)(b) is not attracted at any point of time for the present four Corporations either in the recent past or in future. Hence, there will remain no occasion to fall back upon provisions of Section 7A and to appoint administrators for these Corporations at the present stage. Therefore, the State will have to be permanently restrained from falling back upon Section 7A(1) and from appointing administrators for these Corporations till fresh general elections are held as directed by us in the present judgment. Our answer to point No. 3 is in the negative.
19. Point No. 4: So far as this point is concerned, it may be mentioned that Mr. Desai by amendment to the petition, had inserted this contention. His submission was that as administrator is to be appointed under Section 7A and he would displace the councillors, hearing was required to be given to the councillors before any such order could be passed. This contention is to be stated to be rejected. It may be mentioned that this point at the stage of argument was not seriously pressed before us. It is obvious that Section 7A can be legitimately pressed in service by the State only if the first condition precedent that the term of councillors had expired applies. The term of councillors will stand exhausted at the expiry of five years as per Section 6(1) Unless it is extended for a maximum period of one year as laid down in the second part thereof. If this is not done, normal term will expire at the end of five years. It is thereafter that the State can fail back upon Section 7A. By that time, the outgoing councillors would have already completed their term and only incoming councillors by fresh election would be expected to come in and resume the local self- Government activities. In the mean time, if administrator is to be appointed under Section 7A which provision operates automatically once the term of outgoing councillors expires, and once the required conditions precedent are satisfied, we fail to appreciate how outgoing councillors can demand any hearing. Initial mandate of the voters which brought them to the precincts of the Corporation was for five years and it has expired. It is true that such councillors had locus standi to get further extension upto one year if the State thought it fit to extend in proper cases, the said term, but till that was done, councillors would cease to be councillors at the expiry of five years and even after the period of extension is over, they would be out of saddle Page 15 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined and it is thereafter that Section 7A can apply. At that stage, they have to fall back upon the historical fact that they were once councillors. Consequently, at that stage, they cannot insist that they should be heard before administrator can be appointed. Point No. 4 is, therefore, answered in the negative.
20. Point No. 5: So far as this point is concerned, Section 6(1) has to be scrutinised little carefully. It is true that as provided therein, the councillors elected at general elections under this Act shall hold office for a term of five years but this will be subjected to the provisions of the Act, meaning thereby other provisions of the Act. The learned Advocate General submitted that other provisions of the Act would include Section 7A. Mr. Vakil for the petitioners and other Counsel for the petitioners on the other hand submitted that in juxtaposition in which the words 'subject to the provisions thereof occur, the other provisions only relating to the term of office of the councillors would be relevant. That Section 7A by its very opening words will start applying after the term is over and consequently that provision has nothing to do with the topic of term of councillors as dealt with by Section 6(1). We find considerable substance in this submission of Mr. Vakil. Section 7A starts where Section 6(1) ends. Consequently, the phrase 'subject to the provisions thereof as found in Section 6(1) would bring in other provisions of the Act which deal with term of the councillors. Such provisions are found in Sub-section (2) of Section 6 and Sub-section (3) and also in Sections 10 and 11 dealing with disqualifications of councillors and Section 452A which deals with supersession of Corporations. Sub-section (2) of Section 6 deals with starting point of term of office of the elected councillors which is laid down to be five years under Sub-section (1) and indicates its starting point. The terminus of the term is to be found out by a conjoint reading of Sections 6(1) and 6(3). Even though the term is five years, it is deemed to be extended by thurst of Section 6(3) UPTO AND HAS TO expire with the eventuality contemplated by the Sub-section. Thus, Sub-sections (2) and (3) of Section 6 have direct impact on the regulation of the term of office of councillors. Sections 10 and 11 deal with disqualifications of councillors which will require them to be removed before completion of normal term of office. Next provision which is relevant in this behalf is Section 452A which deals with supersession of existing councillors on the ground of misconducts etc. If this section is pressed in service in a given case, then the existing term of the councillors would get curtailed. These are the relevant provisions which have impact on the regulation of term of councillors. They are contemplated by the phrase 'subject to the provisions thereof as employed in Section 6(1). In no case, Section 7A can be brought in by taking aid of the said phrase as tried to be submitted by the learned Advocate General. Coming to the main Section 6(1) it becomes obvious that normal term of councillors is five years, but the State Government is empowered to extend the said term by following the procedure laid down therein. However, the legislature has put up the ceiling of aggregate six years in all, beyond which such term cannot be extended. The learned Addl. Advocate General, submitted that second part of Section 6(1) imposes a legislative duty on the State and is not an administrative function. He stated that it was either delegated legislation or conditional legislation. This contention is ex-fade without Page 16 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined any substance. It is now well settled that legislature while enacting a statute may leave to its delegate, a play to fill up certain ancillary gaps left out by the legislature while enacting it so that the statute can be made completely effective and operative in the light of circumstances and situations which may come into existence later on or which may not be in contemplation of the legislature at the time of enacting the legislation. If such a play is left to the delegate and if an obligation is cast in connection with exercise of that power conferred by the legislature itself while enacting the statute, it would be a case of delegated legislation provided the delegation is not excessive and does not amount to total effacement of legislative power. On the other hand, if the legislation is complete in itself but it is left to the delegate to bring in force the said legislation, at appropriate lime or place, it would be a case of conditional legislation. This is well settled since decades. We may usefully refer to a decision of the Supreme Court on this point. The Constitution Bench of the Supreme Court in Hamdard Dawakhana v. Union of India , succinctly brought out this distinction as under :
"The distinction between conditional legislation and delegated legislation is this, that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend. Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserves the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation."
It is easy to visualise that by empowering the State to extend the term of councillor of a corporation and laying down maximum six years in aggregate in this connection, the legislature had not conferred and rule making power on the delegate nor did it confer upon the delegate power to fix time and place of operation of Section 6(1). Therefore, second part of Section 6(1) is not an example either of delegated legislation or of conditional legislation. It only gives power of administrative nature to the State Authority to extend the term of councillors in a given set of circumstances. It has to be kept in view that difference between a legislative act and an administrative act is well laid down. In exercise of administrative power administrative authority lays down a course to be followed in given set of Page 17 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined circumstances while the delegate which exercises legislative functions lays down a rule of conduct which will be binding to all concerned who are Within the sweep of such exercise and it would apply uniformly. It becomes obvious that five years' term is fixed for all councillors of all the Corporations covered by the Act. But when it comes to extension upto one more year in aggregate, the State Authority in circumstances requiring such extension, in a particular case, may exercise power in respect of one Corporation and may legitimately not exercise power for other Corporation if such circumstances do not exist for other Corporation. It is not as if that once extension is given, it would uniformly apply to councillors of all the Corporations of the cities covered by the Act. Therefore, it can never be branded as a legislative function. It would remain in the realm of administrative function of the State, so far as such extension contemplated by second part of Section 6(1) goes. In this connection, it is profitable to have a look at the decision of the Supreme Court in Union of India v. Cynamide India Limited Chinnappa Reddy, J. speaking for the Supreme Court has made the following pertinent observations in para 7 of the report:
"The third observation we wish to make is price fixation is more in the nature of a legislative activity than any other. It is true that with the proliferation of delegated legislation there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative quasi-judicial decision stand to merge in legislative activity and conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must some times be drawn as different legal rights and consequences may ensue. The distinction between the two has usually been expressed as one between general and the particular'. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases'. It has also been said Rule making is normally directed toward the formulation of requirements having general application to all members of a broadly identifiable class' while 'an adjudication, on the other hand, applies to specific individuals or situations.' But, this is only a broad distinction, not necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present factors and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its form, the manner of its promulgation are some Page 18 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined factors which may help in drawing the line between legislative and non-legislative acts."
In view of this settled position, this contention of the learned Advocate General cannot be accepted. Reliance placed by him on the decision of the Supreme Court in 1989 (3) JT 157 cannot be of any avail for the simple reason that in that case, the Supreme Court was concerned with the question whether exercise of functions by the Maharashtra State under Section 3(2) of the Act constituting any other local area to be part of a city is legislative function or an administrative function, That function was held to be a legislative function. It becomes obvious that by exercise of such functions, the entire Act is made applicable by the State as a delegate to the entire area once a notification is issued in exercise of powers under Section 3(2). The Act uniformly will apply to all concerned who are residing in that area. It is, therefore, held to be an exercise of delegated legislative power. Such is not the situation so far as Section 6(1) second part is concerned. On the contrary, once the Act applies to the area, Section 6(1) second part gets automatically applied by virtue of the area being already constituted as a city. Thereafter no legislative function is left but administrative functions are left to the concerned authorities who are clothed with powers and duties flowing from various statutory provisions laid down therein.
21. We may now true to the main question posed for our consideration. It is true that Section 6(1) second part leaves it to the State Govt, to extend the term of office of councillors upto aggregate of six years beyond five years by following procedure laid down therein. It is also true that once State exercises that power and if it is found that procedure laid down is not followed or power is wrongly exercised the same can be challenged on the touch stone of Article 14, but we cannot agree with the learned Advocate General that if there are no reasons for extension and if the State does not want to extend the term, the matter ends and it can straightway resort to Section 7A. On a mere look at second part of Section 6(1), no doubt is left that the legislature has clothed the State Govt, not only with power but a public duty to extend the term of office of councillors if situation so demands. It is not an absolute arbitrary power which can be exercised or its exercise can be refused even if circumstances require such exercise. It does nut depend upon caprice, or whim of the State Govt, to decide in its supreme discretion whether to extend the term or not even though the circumstances demand to the contrary. In this connection, it would be useful to refer to the decision of the Supreme Court in State of Ultar Pradesh v. Jogendra Singh . In that case, while interpreting the word 'may' the Supreme Court held that:
"The word 'may' generally does not mean 'must' or 'shall'. But it is well settled that the word 'may' is capable of meaning 'must' or shall' in the light of the context. Where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word 'may' out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed."Page 19 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024
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24. As seen earlier on a conjoint reading of Sections 5(2) and (3) with relevant rules, Section 14 and Section 6(1), it becomes imperative for the State to hold elections before the term expires and if for reasons beyond its control and for no fault of it, such elections cannot be held, then only, the State must pose before it the question whether there are any valid reasons for non-extension of the term and if no such valid reasons for non-extension exist, the State must extend the term under Section 6(1). So that the gap during which administrator can work can be narrowed down as for as possible and during the extended time, all efforts must be made to hold elections and in case, such efforts fail on account of factors beyond the control of the State, then only last stage would be reached in the career of the Corporation and the State would then have to fall back upon the last alternative of invoking Section 7A and then only Section 7A would serve the real purpose of genuine stop gap arrangement and not otherwise. Before parting with this discussion, we may mention one submission of the learned Advocate General. He submitted that all that Section 6(1) second part requires is that there may be positive reasons for extension available to the State and then only it can resort to that exercise. But when there is no positive reason for extension, the State should not go in search of alternative reasons for extension and can straightway fall back upon Section 7A. It is not possible to countenance this submission. Section 6(1) second part can be validly pressed in service by the State when there are positive reasons for extension and there are no negative reasons for non-extension, but if there are positive reasons for extension and there may be negative reasons for non-extension, then only the State can legitimately say that it was not able to perform its duty of extension in such a fact situation and could fall back upon Section 7A. In fact as rightly submitted by Mr. Vakil for the petitioners, there is nothing like negative reasons. Reasons are always positive. They may be reasons for extension or for non- extension. WHAT are loosely described as negative reasons are really reasons for non-extension. It is easy to visualise such negative reasons which can legitimately provide for non-extension of the outgoing councillors when elections cannot be held within the time. By way of examples, we may mention them as under:
(1) Councillors might have misconducted themselves and there may be existing circumstances analogous to these enumerated by Section 452A. If such grounds exist, during the five years' term, Corporation could have been superseded. If they exist at the end of the term, it would be legitimate ground for the State to refuse extension to such councillors. (2) It may not be possible to allow elected body to continue due to external aggression like war or internal disturbances like grave law and order situation making it impossible for the elected body to continue. (3) Elected body may not be able to function due to natural calamities like earth quake confined to the given area. (4) Elected body may not be available any further like wholesale resignations of all the councillors or sudden death of all of them by natural calamity etc. Certain other reasons of similar type have been visualised by the Full Bench of the Bombay High Court in Vidarbhu case (supra) which may be usefully referred to at this stage. The Bombay High Court was concerned with Section 40(1) of the Maharashtra Municipalities Act, Page 20 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined 1965 which was more drastic in character as compared to Section 6(1) second part, so far as extension of term was concerned. It provided:
"Save as otherwise provided by this Act, councillors, elected at a general election, shall hold office for a term of five years which may be extended by the State Government in exceptional circumstances by notification in the Official Gazette, to a term not exceeding in the aggregate six years for reasons which shall be stated in such notification."
When we compare this provision with Section 6(1) second part so far as the present Act is concerned, we do not find such fetter on the part of the State while ordering extension and still in that light, the Full Bench laid down in para 17 certain circumstances under which extension may not be given and which may require as changed circumstances, appointment of administrator under Section 48A:
"May be law and order situation is such that the councillors elected are unable to meet and manage the affairs of the council, may be there is an external threat or internal unrest in which it is not expedient to continue the elected body and it is necessary to have an administrator to head the council, may be out of the total number of elected councillors several have resigned and vacated their offices or the vacancies may have occurred otherwise and the minimum number of councillors to contribute a quorum is not available to transact the business, may be, even though all are present the squabbles among the councillors are such that no business could be transacted or the council is otherwise unable to function effectively. These are only some of the situations that are illustrative; many more could be visualised."
These are negative circumstances in which extension may not be possible and would not be granted. Such type of negative reasons must exist either singly or collectively which will entitle the State to form an opinion not to extend the term of concerned councillors and such reasons may be available in connection with some of the corporations and not necessarily for all the corporations. No such grounds have existed in the present case, as discussed earlier. Therefore, there is no legitimate reason for the state to sit tight on the question of extension of term of councillors and a case is made out for such extension which unfortunately was not considered at proper time and in proper light. It is not possible to agree with the illustration submitted by the learned Advocate General as under Section 6(1) second part may visualise a situation where:
(1) Term is over, elections are possible and there are no other circumstances then elections must be held.
(2) Term is over, election is possible, circumstances require postponement of election. Election could not be held, in such case, either administrator or extension is the choice of the State (3) When term is over, election procedure is not over and therefore election could not be held till expiry of the term. There is choice either to appoint administrator or to extend the term.Page 21 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024
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25. The learned Advocate General was right when he contended that there is no constitutional right of any of the councillors to claim any extension. However, it cannot be gainsaid that if there is any statutory obligation on the part of the State to extend the term of office of councillors if valid reasons exist, corresponding right naturally arises in favour of the concerned councillors to demand such extension and compliance with such statutory obligation. In our view, on reading second part of Section 6(1) which imposes a statutory duty flowing from the power available to the State in a given contingency to extend the term of councillors, three categories of situation can easily be visualised (1) If there are valid reasons for extension and if there are no valid and legal reasons for non-extension, then extension of the term of councillors becomes a statutory duty of the State and if that duty is arbitrarily not exercised, Court can compel the State to carry out such legal duty after following necessary procedure as required by law. (2) If there are valid reasons for extension of the term of councillors but there also exist valid reason or reasons for not granting extension, then, State cannot be compelled to grant extension of the term if it decides not to extend the term. (3) If there are no valid reasons for extending term of councillors, then, irrespective of the fact whether there are any valid reasons for non-extension or such valid reasons for non-extension are absent, State will be justified in not extending the term of councillors and it cannot be compelled to extend the term in such circumstances.
28. The learned Advocate General next contended that we have to construe these provisions in the light of well settled principle of construction, viz. (1) True intention of legislature has to be culled out from the language of the statute. (2) Statute has to be read as a whole in its context and settings. (3) Statute has to be read to make it effective and workable and there is presumption of constitutionality. (4) All definitions in the statute have to be read according to context. (5) Legal fiction should not be extended beyond the field for which it was aimed and statutory illustration cannot govern the construction. Even keeping all these rules of interpretation in view, as we have already discussed earlier, a conjoint reading of Sections 6(1), 6(3) and 7A clearly leads to the conclusion that in proper cases, where elections cannot be held within time, the State has a statutory duty to first consider whether extension is possible in time. When it is legally not possible, then only it can fall back as a last resort and as a second alternative, on Section 7A for appointing administrator and not otherwise. At this stage, we may also refer to one argument of Mr. Vakil. It was submitted that local self-Government envisaged by Entry V of List 2 of Schedule VII can exist at rural, semi-urban and urban levels and at all these levels. Governments are local self-Governments at grass roots whether they are Panchayats or Municipalities or Corporations, as the case may be, and therefore, arguments of the other side that extension of panchayats had proceeded on its own facts and cannot be ipso facto brought into picture while considering Page 22 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined the question of extention of term of councillors in Corporations cannot be sustained. We find considerable force in the said contention. It becomes obvious that in all statutes governing local self-Governments at different levels, if elections within normal period are not possible, extension would become almost a rule unless extentions are ruled out on cogent and valid reasons as discussed above. Administrators can follow to fill up only genuine not stop-gaps when one elected body could not be continued and another elected body is still not in sight and to fill up such gaps during the tenure of local self-Government that administrators may legitimately walk in. But effort must be made to see that such gaps are narrowed down as far as possible. Extension of terms of duly elected councillors is one of such methods to narrow down these gaps. If this aspect is not kept in view, result would be that all such stop-gap arrangement would result into stop election arrangement. This is not contemplated by the statute enacted in exercise of powers under Entry V, of Schedule VII of List II of the Constitution. The learned Advocates for the petitioners were right when they contended that provision like Section 7A are emergency provisions and was creature of emergency, but that cannot be utilised for creating artificial emergency.
29. Mr. Tanna next contended that the notings in the file produced by the learned Advocate General clearly show that non-extension was resorted to for collateral purpose. It is difficult for us to agree with this proposition as it appears that all throughout the State authorities were labouring under a misconception about correct legal position in connection with ascetainment of population figures. They seem to have acted bona fide on such misconception. It cannot be said to be for any collateral purpose or mala fide purpose as submitted by Mr. Tanna.
11.1.1 On perusal of the aforesaid decision, it emerges that some of the petitioners in the said petition were Mayors, Deputy Mayors and Chairman of the standing committees of concerned corporations and others who are sitting Councilors, tax payers and voters residing within the areas of concerned corporations for appropriate reliefs against the State of Gujarat and the Municipal Commissioners of the concerned corporations for restraining them from resorting to Section 7A and from appointing administrators on expiry of terms of Page 23 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined outgoing Councilors of the Corporations. They also sought for mandamus or appropriate directions in the nature of mandamus against the concerned authorities calling upon them to initiate election process for reconstituting the Corporations and in the meantime, it has to extend the terms of the Councilors for a period of one year more or for permanently restraining the State of Gujarat from resorting to Section 7A and from appointing administrators of the Corporations till fresh elections to the Corporations are held and challenged the virus of Section 7A of the Act. The said petitions were contested by the State on the ground of non-
availability of ascertained figures of population as per the 1991 Census with the State and atleast ST, SC and Women populations were not available even on the basis of tentative estimate and the said figures would have been available earliest in the year 1992. Under such facts, the Hon'ble Division Bench considering the negative reasons for non-
extension held that the provision of Section 7A does not confer any arbitrary, unguided or unlimited power to the State to pick and choose and restrained the respondent - State from resorting to Section 7A and from appointing administrators to the Corporations during the said period of time. The said Page 24 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined decision was arrived at by the Hon'ble Division Bench in the facts and circumstances at that relevant point of time, however, the Hon'ble Division Bench also held in paragraph 25 that three categories of situation can easily be visualised (1) if there are valid reasons for extension and if there are no valid and legal reasons for non-extension, then extension of the term of councillors becomes a statutory duty of the State and if that duty is arbitrarily not exercised, Court can compel the State to carry out such legal duty after following necessary procedure as required by law. (2) If there are valid reasons for extension of the term of councillors but there also exist valid reason or reasons for not granting extension, then, State cannot be compelled to grant extension of the term if it decides not to extend the term. (3) If there are no valid reasons for extending term of councillors, then, irrespective of the fact whether there are any valid reasons for non-extension or such valid reasons for non-extension are absent, State will be justified in not extending the term of councillors and it cannot be compelled to extend the term in such circumstances.
In the facts of the present case, learned Additional Page 25 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined Advocate General has made a statement at bar that the elections will be held within reasonable time and also placed on record at page 45; the alleged irregularities resorted to by the petitioner Committee, pursuant to which, the respondent No.2 proposed the appointment of Administrator on completion of the term of the petitioner Committee in exercise of discretion under Section 11(5)(a) of the Act.
11.2 Further, reliance as placed upon the ratio as laid down in case of Pradeepbhai Parshottambhai Sojitra vs. State of Gujarat, reported in 2009 (2) GLH (UJ) 2, in the opinion of this Court, is not applicable in the facts of the present case in light of the fact that in the said proceedings, the State itself declared that the State would have no objection to the committee constituted by the Court until the newly elected body took over the charge of office.
11.3 In the decision rendered in case of Agricultural Produce Market Committee vs. State of Gujarat in Special Civil Application No.9301 of 1997 and allied matters, dated 30.04.1998, in the facts of the said case, the election process had commenced which could not have been stalled by the Director and according to the said order, the same was passed Page 26 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined on the basis of political pressure exerted by the members of the market committee and also on the ground that the market area for which the market committee is constituted, is not necessarily conterminous with the revenue limit and therefore, the change in revenue limits of taluka does not necessarily require reconstitution of APMCs. If the election could not have been held for whatever reason, it was incumbent for the respondent No.1 under Sec.11(4)(aa) of the Act to extend the term of the outgoing market committee till the new elected committee assumed the office and that, it was not permissible for the respondents to appoint an administrator.
11.3.1 In the aforesaid set of facts, the election once having been declared, the same was postponed and in view thereof, the analogy drawn in A.A. Kureshi (Supra) was followed. The said decision was taken in the facts of the said case.
In the facts of the present case, the term of the committee ended on 19.06.2024 and the respondent - State has exercised its discretion for appointment of an Administrator considering the complaints received against the petitioner committee and therefore, the aforesaid decision is Page 27 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined not applicable to the facts of the present case.
11.4 In the decision rendered in case of Kalubhai Virani vs. State of Gujarat and ors. in Special Civil Application No.13766 of 2013 dated 03.03.2014, it was directed that the elections be declared. In the facts of the said case, administrator came to be appointed without exploring the possibility of extending the term of the market committee as provided under Section 11(5)
(a) of the Act.
The aforesaid decision is not applicable to the facts of the present case. In the facts of the present case, upon the proposal by the respondent No.2, the respondent No.1 considering the alleged irregularities pointed out qua the petitioner committee, thought it fit to appoint an Administrator under Section 11(5)(a) of the Act.
Position of law:-
12. At this stage, this Court deems it fit to refer to the ratio as laid down in case of Jitendrasinh Manjisinh Vaghela vs. State of Gujarat reported in 2016 (2) GLR 1216. Paragraphs 7, 8 and 9 of the said decision read thus:
Page 28 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined "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 continuance of the petitioners in the office is on account of nonholding 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 Page 29 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined 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 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 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."
12.1 It is also apposite to refer to the decision rendered in Letters Patent Appeal No.1282 of 2018 in Special Civil Page 30 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined Application No.15481 of 2018 dated 08.01.2018 in case of Lakhabhai Ukabhai Zala vs. State of Gujarat. Paragraph 6 of the said decision read thus:
"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 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."
12.2 In case of Udhav Shalikram Geete vs. State of Maharashtra reported in 2013 SCC Online Bom 1650.
paragraph 7 reads thus:
"7. We have considered the submissions made on behalf of the respective parties. The right to continue in an elected office is neither a constitutional nor a common law right but it is a statutory right. The petitioner does not have vested right to continue in the office except as provided under the Act of 1963 and the Rules framed thereunder. Section 14(3) of the Act of 1963 prescribes the tenure of the APMC as five years. The second proviso to section 14(3) of the Act of 1963 gives the discretion to the State Government to extend the term of the APMC where the general elections of members of the Committee could not be held for reasons beyond the control of the Committee before expiry of the term of office of its members. The petitioner cannot claim, as of right, that the State Government should extend the term, inasmuch as, the proviso to Section 14(3) of the Act of 1963 does not cast an obligation on the State Government to extend the term of the APMC Page 31 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined after the period of five years. The notification issued on 8th of February, 2013 postponing the elections of the APMC for the period of six months from the date of Notification is not challenged by the petitioner. The order issued by the District Deputy Registrar on 12th of August, 2013 appointing the Administrator is in consonance with the requirements of the provisions of section 15A of the Act of 1963."
13. In light of the ratio, as referred above, and the provision of law, in the facts of the present case, having considered the submissions advanced by the learned Senior Counsels appearing for the respective parties, in the opinion of this Court, the only contention raised by the learned Counsel appearing for the petitioners is that the term of the petitioner committee which expired on 19.06.2024, be extended till the elections fresh elections are held and the newly elected body take over the charge of the APMC, Unjha. It is an apprehension that by appointment of Administrator under Section 11(5)(a) of the Act, the respondent - State Government would not declare the elections and that, the term of the petitioners ought to have been extended by the respondents rather than appointing an Administrator.
14. Further, Section 11(4)(aa) of the Act provides that the State Government may by order published in the Government Gazette and for the reasons to be recorded therein, extend the said term for a period not exceeding one year in the Page 32 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined aggregate. The aforesaid was considered in the Letters Patent Appeal No.1282 of 2018 and the issue is no longer res-integra wherein, the Hon'ble Division Bench has held that under Section 11(4)(aa) of the Act, the State Government to exercise discretionary powers to extend the term of the market committee for a period not exceeding one year in the aggregate. Thus, the discretion lies with the State Government however, the State cannot be compelled to exercise powers for extending the term. The Hon'ble Division Bench also considered the provision of Section 11(5)(a) of the Act which provides that the State Government is empowered to appoint an Administrator to manage the affairs of the market committee.
14.1 In light of the proposal which was accorded on 19.06.2024 by the respondent No.2 to drop the proceedings under Section 46 of the Act considering the various complaints received by the respondent No.2 on various dates with respect to illegalities committed by the existing elected body i.e. the petitioner committee in managing the affairs of the committee, the respondent - State by order dated 21.06.2024 passed an order of appointment of an Administrator. The apprehension of Page 33 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined the petitioners herein that the respondent State would take "elelction holiday". The said contention has been dealt with by Ms. Shah, learned AAG, by making a statement that the elections would be declared soon. The said apprehension of the petitioners is duly taken care of by the aforesaid statement.
14.2 During the course of hearing, it is brought to the notice of this Court that the petitioner market committee constitutes of 15 members however, the present petition is filed by only 5 members and majority of the members have thought it fit not to join themselves with the petitioners in the present proceedings being Special Civil Application No.8831 of 2024.
14.2.1 The Special Civil Application No.8833 of 2024 is filed by the Amrutlal Mulchandas Patel in capacity of
Chairman/Secretary of the committee however, the same is in absence of any resolution of the committee placed on record.
The aforesaid is not controverted by the learned Counsel appearing for the petitioner. Resultantly, the petition being Special Civil Application No.8833 of 2024 is held to be not maintainable in absence of any resolution passed by the committee to file the present petition in capacity as Chairman.
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15. It is settled law that life of the elected body expires on completion of its term and the committee has no vested right to continue in office beyond the said period in absence of any order from the respondent State Government. The election of the Market Committee could not be held in view of the Loksabha elections and the State is empowered to exercise its discretion either to extend the term or appoint an Administrator. In the opinion of this Court, considering Section 11(4)(aa) and Section 11(5)(a) of the Act, in the facts of the present case, the petitioners cannot compel the State Government to extend the term of the petitioner committee more particularly, when there are valid reasons for non-
extension of term as referred above.
16. In light of the statement made by Ms. Shah, learned AAG, that the elections would be declared soon, no further directions are issued with respect to holding of an elections. No error could be said to have been committed by the respondent -
State; having passed the impugned order dated 21.06.2024 appointing Administrator.
17. For the foregoing reasons, no case is made out to exercise extra-ordinary jurisdiction under Article 226 of the Page 35 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024 NEUTRAL CITATION C/SCA/8831/2024 ORDER DATED: 03/07/2024 undefined Constitution of India. Resultantly, both the petitions fail and are hereby dismissed. Notice is discharged. Interim relief, granted earlier, stands vacated.
(VAIBHAVI D. NANAVATI,J) NEHA Page 36 of 36 Downloaded on : Tue Jul 09 20:39:23 IST 2024