Gujarat High Court
Bhikhabhai Dahyabhai Jajadiya vs State Of Gujarat on 20 February, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1574/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1574 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 9766 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 1574 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE sd/-
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHIKHABHAI DAHYABHAI JAJADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437), MS BELA A PRAJAPATI(1946) for the PETITIONER(s)
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL WITH MS MANISHA
LAVKUMAR, GOVERNMENT PLEADER AND MR CHINTAN DAVE, ASSISTANT
GOVERNMENT PLEADER for the RESPONDENT(s) No. 1-2
MR VC VAGHELA(1720) for the RESPONDENT(s) No. 11,13,15,6
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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C/LPA/1574/2017 JUDGMENT
Date : 20/02/2019
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. The challenge in this appeal under Clause 15 of the Letters Patent is to common CAV judgment dated 11.09.2017 rendered by learned Single Judge in Special Civil Application No.9766/2017 with Civil Application No.9814/2017, whereby the prayer of the writ petitioners (appellants herein) to quash and set aside the Notification dated 20.04.2017, issued by the State Government under Section 52 read with Section 54 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the APMC Act" for short) amalgamating Ghogha Agricultural Produce Market Committee with Bhavnagar Agricultural Produce Market Committee, along with further prayer to set aside nomination of original respondents No.6 to 19 as members of the Executive Committee of the amalgamated Bhavnagar Agricultural Produce Market Committee, came to be rejected.
2. Certain facts recorded by learned Single Judge reveal that petitioners - appellants are the ex-office bearers of respondent No.4 - Bhavnagar Agricultural Produce Market Committee ('BAPMC'), respondents No.1 to 3 are State and its authorities Page 2 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT while respondent No.5 is Ghogha Agricultural Produce Market Committee ('GAPMC').
Before learned Single Judge, the basic and substantial challenge was about absence of provisions for amalgamation in the APMC Act and that Section 54 of the Act did not permit amalgamation and that the impugned Notification was against the provisions of law. That even in such case of Notification regarding alteration or modification of territorial jurisdiction of APMC concerned, nomination of respondents No.6 to 19 was illegal in view of provisions of sub-section (3) of Section 54 of the APMC Act that members of such new market committee shall hold the office for a period not exceeding two years, as the State Government shall, by an order in writing specify, therefore, when new committee, namely BAPMC is formed after amalgamation of GAPMC and BAPMC, members of old BAPMC shall hold the office of new APMC for a term which may be maximum for two years or for the period that may be specified by the State Government.
Before the learned Single Judge, series of correspondence and previous litigation that preceded the issuance of impugned Notification was pressed into service to urge that action of the respondent - State and its authorities was full of malice and at Page 3 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT the behest of political leaders of the ruling party, including the concerned Minister who played pivotal role in bringing out the Notification amalgamating two APMCs contrary to law. In a detailed writ petition containing about 95 paras, the petitioners highlighted that Notification which was issued in purported exercise of powers under Section 52 read with Section 54 of the APMC Act was dehors the provision of law and for arriving subjective satisfaction, the authority has ignored the objective facts and to that extent, the entire exercise was unjust, unreasonable, arbitrary, discriminatory and contrary to Articles 14 and 19 of the Constitution of India. It was emphatically the case of the petitioners that considering the volume of trade, local agricultural produce, topography of the region, there was absolutely no necessity to bring amalgamation, particularly when in past, such requests were not acceded to by the Deputy Director, Agriculture Marketing and Rural Finance, whenever such issue was resurrected at the wish of local political leaders. Time and again, the authorities were not in favour of any amalgamation and since inception, GAPMC functioned independently and in accordance with law but under one or the other pretext, representations were made in tandem compelling the authorities to exercise power of issuing the Notification. Before the learned Single Judge, Page 4 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT plethora of correspondence/ communications addressed in favour of amalgamation and opposing the same was produced to submit that in spite of the fact that Ghogha area consisted of forty-eight villages and about 6200 electric connections were given by Paschim Gujarat Vij Company Limited for agricultural purposes and the area is benefited with perennial irrigation facility, including that of canal from Shetrunji river, there was no justification for issuance of the Notification amalgamating GAPMC with BAPMC. It is the case of the appellants that even the litigation which ensued in favour of and against amalgamation was brought to the notice of learned Single Judge for consideration, but without dealing with the same, the order impugned is passed ignoring the requirement of GAPMC being independent of any other APMC in view of huge production of grain, vegetables and fruits, including all kind of agricultural produce for which the farmers have important say while representing their segment in the market committee so that best available price of such agricultural produce can be fetched.
However, one of the grounds that was urged was about inapplicability of decision of this Court in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. reported in 2004(3) GLR 2400, wherein, a Division Page 5 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT Bench of this Court though considered similar contention of law about absence of provisions for amalgamation in APMC Act, and considered Sections 6, 52, 53 and 54 of the Act vis-a-vis Section 21 of the Bombay General Clauses Act, 1904, the interpretation put forth bringing out rigors of the above Section and specific reference contained in Sections 5 and 6 empowering the Director to exercise powers and not by the State Government, it is the case of the appellants that the above judgment was per incuriam. It is also their case that learned Single Judge though referred to decisions cited at the Bar but failed to apply the ratio laid down in the above decisions in the context of facts and circumstances of the case.
The next issue before the learned Single Judge was with reference to provisions of Section 52 read with Section 54 of the APMC Act and sub-section (3) of Section 54 thereof which provides that even in case amalgamation is permissible, the members of such newly constituted Market Committee shall hold office for such period not exceeding two years as the Government shall by an order in writing specify, and consequence which would ensue by amalgamation would result into ousting the members of BAPMC without following procedure of law.
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C/LPA/1574/2017 JUDGMENT Inter alia, it was submitted that in exercise of powers conferred upon it under sub-section (2) of Section 62 of the APMC Act, items were deleted by State Government under the heading "VII and VIII - All fruits and vegetables from the schedule" vide Notification dated 16.04.2015, and thus fruits and vegetables no longer remain controlled market produce and no licence can be issued to any person to deal in fruits and vegetables by the Committee. The Committee has framed its policy for issuance of the licence and Notifications have been provided that different categories of licences for traders. Even the Deputy Director called for the information in relation to the holders of the licence whose names were proposed to be appointed as Members of the Committee constituted by the Government and four names were forwarded. Entries in the Schedule appended to the APMC Act at Sr. No.VII and VIII, as stated above, came to be deleted by the Government and therefore, three Companies were as such not holding valid licence. Likewise, other Sahakari Mandalis, in all four, have been given licence for trading in vegetables only on 11.11.2016, that is, after the issuance of Notification of 16.04.2016, whereby all fruits and vegetables from Schedule VII and VIII came to be deleted and therefore, these cooperative societies cannot be said to be holding a valid Page 7 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT licence.
The exercise of issuance of Notification by the Government after the Director having declared the election of GAPMC before constituting the Committee could not have been taken and ordinarily, in all cases, when there is a division of existing Committee or constituting a new Committee, the State Government is duty bound to nominate Members from amongst the qualified voters. At the cost of repetition, it is stated that so far as Section 52 of the APMC Act is concerned, whereby division of Market Committee, denotifying the market area and provision to separate the market area into more than one is provided, no such power is conferred to it to combine, merge, amalgamate or even compound two market areas into one and neither Section 52 nor any other Sections confer such powers either with the State authority or the Director or both and accordingly, reliance placed by learned Single Judge on the decision in Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra), is not a correct law and relying on the decisions of the Apex Court, the principle of casus omissus is not to be applied but provision of the statute is to be interpreted in the context of the language employed therein by giving it plain grammatical meaning and that is within the realm of interpretation. What is not envisaged by Page 8 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT the legislature while interpreting the provision, the Court is not to venture in by supplying a different meaning or filling the gap purposefully left by the legislature. In support of the above submission also, decisions were cited that judicial activism is not envisaged when language of the law is clear and unambiguous and the scope of such activism is also otherwise limited and cannot be conferred to usurp legislative functions, and thereby to supply what is omitted or left out in the statute. Thus, interpretative process in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) was nothing but innovative approach of the Division Bench of this Court by filling the gap for supplying and/or inferring what was omitted in the statute and attention was drawn accordingly of learned Single Judge but such contentions altogether were not considered, and therefore, the common oral CAV Judgment is not only vulnerable due to lack of reasoning but does not reflect correct recording of submissions made by learned advocate on behalf of the petitioners and the issue addressed for which answer is given is based on fallacy or non-consideration of vital issues raised as above.
3. Mr.B.M.Mangukiya, learned counsel appearing for the appellants, has taken us through the provisions of Sections 5 Page 9 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT and 6 in Chapter-III which pertains to declaration of market area, constitution of markets and establishment of market committees, which envisage powers to be exercised by Director for declaration of intention of regulating purchase and sale of agricultural produce in specified area and about declaration of market area which elaborately provides for the manner in which such powers are to be exercised of considering the objections and suggestions received and holding such inquiry as may be necessary and then to issue Notification as required and also grant of licence. By emphasizing absence of amalgamation and bringing to our notice, Section 52 of the APMC Act, it is submitted that power to denotify or divide market area cannot be construed to include power to amalgamate if Section 53 is noticed which is about effect of denotification or exclusion of market area along with Section 54 which provides for power of the State Government to dissolve and constitute market committee on alteration of limits of market.
It is submitted that if the impugned Notification dated 20.04.2017 issued by the Department of Agriculture and Cooperation is seen, it only refers to Section 52, but powers are exercised under Section 54 of the APMC Act immediately inviting the consequence of vacating the chair of Members of Page 10 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT BAPMC and the members mentioned in Schedule-I being appointed as members of the Executive Committee for a period of two years.
By referring to above provisions of the Act, namely Sections 5, 6, 52 and 53, learned counsel for the appellants would contend that learned Single Judge ought to have considered the basic submissions which were in two parts, the first part related to the powers of the State Government in relation to amalgamation of two different and distinct Market Committees and the second part related to appointment of Members of nominated Committee since out of seventeen members appointed by the State Government in purported exercise of powers under Section 54 of the APMC Act, five members were not at all qualified to be appointed. As such, the above aspect was not dealt with. Besides, detailed submissions that were made before the learned Single Judge on various factual scenario, including that of the manner in which issues were taken up by the authority at the behest of local and State political leaders to see that some how amalgamation of two APMCs takes place in spite of the opinion to the contrary recorded by the Deputy Director, which too had attained finality at two stages at the level of the State Government, did not find any place in the judgment. That the Page 11 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT facts remained same, however, nature of agricultural produce, topography, including the nature of land and facility of irrigation and other relevant objective facts, etc. were brushed aside and thus, the subjective satisfaction was vitiated but no findings on this aspect were recorded by learned Single Judge, resulting into filing of the Letters Patent Appeal, leaving no option for the appellants to make a prayer to quash and set aside the order passed by learned Single Judge.
It is submitted that issuance of the Notification was culmination of colourable and malicious exercise of power not warranted in the facts and circumstances of the case and by reiterating the fact that the whole exercise of issuance of Notification and formation of the Committee as a consequence of such Notification both were wholly illegal and ought to have been construed accordingly, it is prayed to allow the present appeal.
By strenuously urging two basic contentions in this appeal and referring to decision in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra), it is submitted that the above decision is not only per incuriam but also lays down incorrect law and is hit by well-established principle of casus omissus by not interpreting Page 12 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT the provisions of Sections 5, 6, 52 and 54 of the APMC Act, as provided by the legislature. It is submitted that the interpretation put forth by Division Bench of this Court in the aforementioned decision deserves a re-look and reconsideration inasmuch as the Division Bench of this Court cannot infer and supply what was not envisaged and purposefully omitted by the legislature. The facts in Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) were different since in that case, Government Notification dated 20.11.2002 issued under Section 52 of the APMC Act, the State Government divided the said market area of the erstwhile APMC, Ahmedabad, into two market areas and further challenge was to the Notification dated 13.01.2003 of the State government whereby intention was declared to denotify the separate market area of APMC Dascroi and to amalgamate the area of the Dascroi Taluka in Ahmedabad District into the market area comprising of the Ahmedabad City Taluka including the the Municipal Corporation limits.
Referring to earlier litigation with regard to amalgamation or otherwise of both the above Market Committees, Special Civil Application No.30880/2007 came to be decided vide oral order dated 27.12.2007 where a prayer was made to issue a Writ of Mandamus or any other appropriate Writ, order or Page 13 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT direction, commanding the respondents therein to amalgamate GAPMC with BAPMC. Special Civil Application No.12231/2014 with Special Civil Application No.1589/2013 came to be decided vide common oral judgment dated 09.09.2014, where a direction was sought for to hold the election of GAPMC along with the challenge to amalgamation of GAPMC and BAPMC. The learned Single Judge raised question as regards the power of the State Government for amalgamation of the APMCs under the Act wherein also, decision in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) was considered in extenso and writ petitions came to be dismissed but in Letters Patent Appeal preferred by BAPMC a Division Bench of this Court noticed that learned Single Judge should not have entered into merits of the matter while dismissing the writ petition since objections were invited and no final Notification for amalgamation and/or denotifying the market area of GAPMC into BAPMC was issued.
4. On facts, reports submitted by the Deputy Director against proposal for amalgamation were emphasised. One of such reports is dated 04.01.2008 of Deputy Director, APMC, which mentions that since geographical position and crop pattern and cultivation remains the same, no amalgamation is warranted, and it further goes on to record that Page 14 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT infrastructural facilities are to be provides so as to encourage functioning of APMC to be made functional and considering totality of administrative convenience, geographical and local requirements, that existence of two Market Committees was advisable. In spite of the above, once again, representation was made on 04.10.2009 seeking amalgamation by President of one of the non-purchaser cooperative society to which Director addressed a communication to Additional Chief Secretary, Department of Agriculture and Cooperation, stating that though an order was passed on 27.12.2007 in Special Civil Application No.30880/2007, the opinion of the Deputy Director was not in favour of amalgamation and it may be considered accordingly. Likewise, representations were made against amalgamation, however, the stand of the Director, APMC was not in favour of amalgamation. Meanwhile, various representations and letters came to be addressed by interested persons in favour of amalgamation pursuing the authorities to amalgamate both APMCs. Report of the Deputy Director, AMPC, upon consideration of various factors favouring amalgamation of GAPMC with BAPMC dated nil, is also on record at Page 104 of the paper-book. Thereafter, vide Notification dated 09.03.2012 of Department of Agriculture and Cooperation, Government of Gujarat, a preliminary Page 15 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT intention was declared wherein, justification was canvassed for amalgamation of both APMCs including that of the non- functioning of GAPMC for one or the other reason. That internal correspondence between the office of the Deputy Director and the Director, AMPC, continued to opine in favour of amalgamation but no decision was taken and later on, by Notification dated 12.08.2014, once again, intention was declared for amalgamation of both APMCs in exercise of power under Sections 5 and 52 of the APMC Act since upon mature consideration, the State Government's earlier decision not to amalgamate both APMCs as per Notification dated 06.12.2012, which was preceded by declaration of intention dated 09.03.2012 was reconsidered. Against the above Notification declaring intention to amalgamate both the APMCs, objections were received from the aggrieved persons. The Chairman of BAPMC thereafter once again took a conscious decision not to amalgamate both the APMCs, resulting in Notification dated 03.06.2015 of the Agriculture and Cooperation Department canceling the Notification dated 12.08.2014 declaring intention to amalgamate GAPMC with BAPMC.
5. It is the case on behalf of the appellants that in view of the above factual scenario there was no requirement of amalgamation of both APMCs on any ground and till Page 16 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT 03.06.2015, conscious and mature decision was taken at the end of due deliberation that no amalgamation was necessary. Therefore, facts preceding filing of the writ petition and challenge to the Notification dated 20.04.2017 clearly reveal that neither there was any administrative exigency nor objection consideration of topography, agricultural produce, pattern of cultivation, irrigation and other infrastructural facilities necessitating impugned Notification and the whole exercise therefore deserves to be held as illegal.
6. Before us, the very arguments canvassed before the learned Single Judge are emphatically reiterated and it is submitted that decision in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) was per incuriam and the Division Bench in the above case ought not to have filled in the gaps consciously omitted by the legislature and otherwise also, the above judgment is not applicable in the facts of this case wherein interpretation of provisions of Sections 5, 6, 52 and 52 of the APMC Act was contrary to the object and reasons of the Act and was unworkable. Under any circumstances, consequential action of nominating the Members at Schedule-I to the impugned Notification is absolutely illegal as five members did not possess adequate licence qualified to be members of the Page 17 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT APMC.
7. Mr.Prakash K.Jani, learned Additional Advocate General with Mrs.Manisha Lavkumar, learned Government Pleader appearing for the State authorities, however would contend that in issuing the impugned Notification dated 20.04.2017, there is no any breach of provisions of Sections 5, 6, 52 and 54 of the APMC Act and only after inviting objections and declaring intent, the Notification is issued. It is submitted that in compilation of the petition which includes 94 paragraphs, accompanied by bulky annexures, an important document/ annexure, namely, Notification dated 17.11.2016, issued by the Agriculture and Cooperation Department, Government of Gujarat, is neither annexed nor brought to the notice of the learned Single Judge. It is submitted that by said Notification, in exercise of power under Section 52 read with Section 5 of the APMC Act, an intention was declared to amalgamate Ghogha and Bhavnagar APMCs wherein even reference was made of earlier Notifications dated 12.08.2014 and 03.06.2015 whereby intention so declared to amalgamate both APMCs was later on dropped vide subsequent Notification. Even the fact about appointment of Administrator vide Notification dated 10.07.2003 for GAPMC was referred to. The declaration of intention vide Notification dated 17.11.2016 mentions as many Page 18 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT as seven grounds for justification for amalgamating GAPMC with BAPMC and such an act on the part of the appellants of not producing the material record goes to the root of the case. Be that as it may, according to learned Additional Advocate General, surprisingly, no objections were received to above declaration of intention to amalgamate GAPMC with BAPMC and hence, Notification dated 20.04.2017 issued by the Competent Authority cannot be termed as a result of any extraneous consideration or issued with malicious intention or exercise of power alien to the objects and reasons of the APMC Act. The State Government, depending on fact situation, on the contrary considered various representations and objections and upon noticing the fact about non-functioning of GAPMC and other such grounds mentioned in the Notification for declaration of intention dated 17.11.2016, a decision to amalgamate GAPMC with BAPMC was taken upon much deliberation at the end of the authority. It is submitted that certain powers conferred upon Director under Sections 5 and 6 read with Sections 52 and 54 of the APMC Act together will not preclude the State Government from taking decision as envisaged under Section 53 of the APMC Act.
Learned Additional Advocate General would further contend that power to denotify itself is sufficient to understand Page 19 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT and construe the Section empowering the State Government to amalgamate, merge or demarcate, constitute or reconstitute, divide, exclude, include, or demit an area of market committee. Our attention is also drawn to Section 53 of the Act which pertains to effect of denotification or exclusion of market area and also to Section 54 which is about power of State Government to dissolve and constitute market committee on alteration of limits of market, to submit that in view of merger of GAPMC with BAPMC, GAPMC stands dissolved. It is submitted that there is no illegality or irregularity in appointing Members at Schedule-I to the impugned Notification and the tenure of the Committee is also over warranting no interference of this Court.
It is denied on behalf of the respondent - State that decision in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) is either per incuriam or contrary to law. It is submitted that once relevant sections fell for consideration by a Division Bench, if an interpretation so put forth by a Court does not stand to the wisdom of the appellants, same cannot be a ground to treat such decision per incuriam. It is not a case where any decision on law wherein ratio decidendi is laid is either not considered by the Court or brought to the notice of the Court and not considered. Simply Page 20 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT because the appellants are not agreeable to such interpretation cannot be a ground to treat a judgment as per incuriam. It is submitted that in the above decision, neither this Court filled in any gap deliberately omitted by the legislature nor any aid is taken to interpret differently the provisions of the Act than what is envisaged by the legislature. According to learned Additional Advocate General, the case on hand is squarely covered by the decision in Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) and no different view is required to be taken by this Court.
By referring to very correspondence and orders passed by this Court in earlier litigations on which Mr.B.M.Mangukiya, learned advocate for the appellants made reference, it is submitted by learned Additional Advocate General that depending on fact situation and consideration of totality of facts and circumstances of the case, a subjective decision is taken wherein also grounds have weighed in favour of amalgamation, as reflected in both the above Notifications which reveal that exercise by the authority is neither mala fide nor tainted with any malicious intention or oblique motive. It is submitted that consequence of amalgamation of a Market Committee for which Members are appointed at Schedule-I to the Notification is in accordance with provisions of the APMC Page 21 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT Act and further, GAPMC almost remained non-functional for about fifteen years and such decision taken by the State Government within four corners of law does not require any interference by this Court. The time-limit fixed for appointing Members is not exceeding two years as envisaged under section 54(2) of the APMC Act and other contentions raised by learned advocate for the appellants before the learned Single Judge were not required to be gone into in detail in view of clear answer provided by case law in Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra).
Lastly, it is submitted that in absence of merit, the appeal deserves to be dismissed.
8. We have heard learned counsel for the respective parties at length and have carefully gone through the record of the appeal as well as the provisions of the APMC Act.
9. It is profitable, before we deal with factual scenario about contention raised, regarding per incuriam and casus omissus, to safely refer to decision in the case of Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) wherein also, the subject-matter pertained to exercise of powers under Section 52 and 54 read with Sections 5 and 6 of the APMC Act, and challenge was to Government Notification Page 22 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT dated 20.11.2002, issued under Section 52 of the APMC Act, whereby the State Government divided the market area of the erstwhile APMC, Ahmedabad, into two market areas and further challenge was to the Notification dated 13.01.2003 of the State Government whereby intention was declared to denotify separate market area of APMC Dascroi and to amalgamate the area of the Dascroi taluka in Ahmedabad District into the market area comprising of the Ahmedabad City Taluka including the the Municipal Corporation limits, to regulate the agricultural produce. The Division Bench referred and discussed the salient features of the APMC Act, a law relating to regulation of buying and selling of agricultural produce and establishment of markets for agricultural produce in the State of Gujarat, by referring to Section 5 about declaration of intention of regulating purchase and sale of agricultural produce in specified area, Section 6 about declaration of market areas, especially, Section 6(5) regarding empowering the Director to establish Market Committee for every market area, Section 52 of Chapter IX conferring power upon the State Government to declare that a market area shall cease to be such area or divide the market area into two or more separate market areas wherein same procedure as laid down in Section 5 is required to be followed either by Page 23 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT denotifying the market area or for dividing the market area, Section 54 conferring power on the State Government to dissolve and constitute market area on alteration of limits of market area and Section 55 providing for vesting of property, etc. of dissolved market committee in new market committee.
For ready reference, we may also reproduce Paragraphs- 8.2, 8.3 and 8.4 of the above judgment:
"8.2 Chapter III of the Act provides for declaration of market area, constitution of markets and establishment of market committees. Sections 5 and 6 contain provisions laying down the procedure for declaration of market areas. The Director of Agricultural Marketing & Rural Finance (hereinafter referred to as "the Director") is first required to issue a notification declaring his intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified in the notification. The following procedural requirements are prescribed:-
I. Publication :- (Sec.5) The notification has to be published in the official gazette, a Gujarati newspaper having circulation in the area and also to be circulated in such other manner as may be prescribed;
II. Inviting objections :- (Sec.5)
(a) The notification shall also state that any objection or suggestion received by the Director against such intended declaration received within the period specified in the notification (not being less than one Page 24 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT month from the date of publication) shall be considered by the Director;
(b) A copy of the notification is also to be sent to the local authorities functioning in the area specified in the notification with a request to submit their objections and suggestions to the Director.
III. Declaration of Market Area :- (Sec.6(1)) After expiry of the period specified in the notification as aforesaid and after considering the objections and suggestions within the specified period and after holding such inquiry as may be necessary, the Director may declare the area specified in the notification or any portion thereof to be a market area in respect of all or any of the agricultural produce specified in the notification. Such notification under Section 6 is also required to be published in the same manner as the notification under Section 5.
IV. Power to exclude or include :- (Sec.6(5) Sub-section (5) of Section 6, though forming part of Section 6, confers an independent power on the Director to exclude any area from a market area already specified in the notification under sub-section (1) or, to include an area in a market area already specified in notification under Sub-section (1). The power of exclusion and inclusion can be exercised either with reference to the area to be excluded from, or included in, an existing market area and such power can also be exercised with reference to the kinds of agricultural produce which Jitendrabhai Chunibhai Patel vs State Of Gujarat on 9 July, 2004 shall be regulated or excluded from regulation under the provisions of the Act. For issuance of notification under sub-section (5) of Section Page 25 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT 6 also, the same procedure is prescribed as is specified in Section 5 of the Act.
Section 7 provides that for each market area, there shall be a market which shall consist of one principal market yard, sub-market yards, if any, and all markets proper. Sub-section (4) of Section 7 specifies that the market shall be deemed to have been established for any market area with effect from the date on which the principal market yard and market proper are declared for that area.
8.3 Sub-section (1) of Section 9 provides that the Director shall establish a market committee for every market area.
Section 11 provides for constitution of market committee with 14 elected representatives from the constituency of agriculturists and representatives of co- operative marketing societies and holding general licenses in the market area and one member to be nominated by the local authority where the member market yard is situate and two members to be nominated by the State Government. The term of office of a market committee shall, save as otherwise provided in the Act, be four years from the date of its first general meeting. The power is conferred on the State Government to extend such term for a period not exceeding one year in the aggregate.
8.4 In Chapter IX of the Act, Section 52 confers power upon the State Government to declare that a market area shall cease to be such area or divide a market area into two or more separate market areas. The same procedure as laid down in Section 5 is required to be followed either for denotifying the market area or for Page 26 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT dividing the market area.
Section 53 provides for effect of denotification or exclusion of market area. Where a market area ceases to be a market area, the market committee or the nominated committee stands dissolved, the members of the committee/s vacate their office and the unexpended balance of the market committee fund and other properties and liabilities of the market committee vest in the State Government. Sub-section (2) of Section 53 provides that where any area is excluded under Section 6 from a market area for which a market committee has been established and such area is not included in any other market area or declared to be a market area, proportionate fund and property vesting in the market committee, as per the decision of the State Government is to vest in the State Government.
Section 54 confers power on the State Government to dissolve and constitute market committee on alteration of limits of market area. Sub-section (1) thereof provides that when during the term of a market committee, the limits of the market area for which it is established are altered or the market area is divided into two or more separate market areas, the State Government may dissolve the market committee and constitute nominated market committee preferably from the persons who were members of the dissolved market committee. The term of members of such new market committee is not to exceed two years and upon expiry of such period, the market committee is to be reconstituted in the manner provided in Section 11. Section 55 provides for vesting of property etc. of dissolved market committee in new market committee." Page 27 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019
C/LPA/1574/2017 JUDGMENT The analysis of the powers so conferred, the import and purport of relevant Sections of the APMC Act has been summarized by the Division Bench of this Court in Paragraphs 9, 10 and 11 of the said judgment which read as under:
"9. A conjoint reading of the aforesaid provisions would indicate that after any area is already declared as a market area under Sub-section (1) of Section 6 of the Act, such are may be denotified under Section 52 and the market area would cease to be such area. Similarly, under sub-section (5) of Section 6 an area may be excluded from out of an existing market area declared under sub-section (1) of Section 6 of the Act. Where such area is excluded under Section 6(5) or ceases to be market area under Section 52, the Government may either include such area into any other existing market area or may not include such area into any other existing market area. If the Government decides to include such area into an existing market area, the provisions of sub-section (5) of Section 6 would come into play as they expressly provide for power to include an area into an existing market area in which case the procedure laid down in Section 5 will have to be followed. On the other hand, if the area which has ceased to be market area or which is excluded from an existing market area is not included in any other market area nor is it declared to be a market area, under sub- section (2) of Section 53 of the Act, such portion of market committee fund and properties is to vest in the State Government as may be determined by the State Government. When an existing market area is divided Page 28 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT into two or more separate market areas, the provisions of Section 54 would come into play. Similarly, when the limits of market area are altered during the term of a market committee, the provisions of Section 54 would come into play empowering the State Government to dissolve the market committee and to constitute a separate market committee for each market area being formed on account of such alteration.
10. The argument of the learned counsel for the petitioners that the Act does not confer any power of amalgamation or merger of two market areas is canvassed only in view of absence of any specific or express power of amalgamation, but a simultaneous exercise of powers under Section 52 denotifying one existing market area and under Section 6(5) of the Act including that area in another existing market area makes it possible for the Government to amalgamate two market areas into one. Over and above the above interpretation flowing from the aforesaid relevant statutory provisions, the construction being placed by us is not merely in consonance with the object of the Act as reflected in the preamble, but also fortified by the decision of the Apex Court in Karnail Singh vs. Darshan Singh, 1995 Supp. (1) SCC 760 wherein the Apex Court was concerned with interpretation of the following provisions of Punjab Gram Panchayat Act, 1952:-
"3. Definitions.- In this Act unless the context otherwise requires, -
..... .... .... ..... .....
(q) 'village' means any local area, recorded as a revenue estate in the revenue records of the district in Page 29 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT which it is situated"
Section 4 reads thus :
"Sec.4. Demarcation of Sabha area.- (1) Government may, by notification, declare any village or group of contiguous villages with a population of not less than five hundred to constitute one or more sabha areas;
..... ...... .... .... ...
(2) Government may, by notification, include any area or exclude any area from the sabha area."
Under Section 5 of the Act, the Government have the power, by a notification published in that behalf, to constitute a panchayat by name in every sabha area. The Government of Haryana exercised the power under Section 4 for amalgamating gram sabhas of B and H villages and constituted B M H gram sabha. The notification was quashed by the Punjab & Haryana High Court, inter alia, on the ground that there was no such power of amalgamation.
On appeal, the Apex Court inferred the power of amalgamation by placing the following construction on the provisions of Sections 4 and 5 of the Act:-
"By amalgamation of the two revenue estates one gram sabha area may be constituted by a declaration. Section 4(1) intends to operate in that perspective and the second clause of Section 4 appears to operate in that area. Thus considered, we find that in the same revenue estate, depending upon the facts and exigencies for smooth, proper, efficient or convenient administration of the gram sabha area, one or more than one sabha areas could be declared by a notification constituting for each sabha area a gram panchayat for the purpose of the Page 30 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT Act. After the constitution of separate gram sabha areas, by operation of sub-section (2), power has been given to the State Government, for the same reasons, again to include or exclude same sabha area or a part thereof from the notified sabha area. In other words, Section 4(2) gives power for the State Government to amalgamate two or more than one sabha areas and to constitute, by a declaration under Section 4(2) a single gram panchayat. In other words, power to constitute a panchayat included power to amalgamate two or more than one sabha areas as one gram sabha."
Thus, in unmistakable terms, the Apex Court held that the power to constitute a panchayat included power to amalgamate two or more sabha areas as one gram sabha.
11. In view of the above decision, the power of declaring a market area under sub-section (1) of Section 6 of the APMC Act would have even otherwise included the power to amalgamate two or more market areas. Apart from this, there is express power conferred on the State Government under Section 52 of the Act to denotify a market area and also express power conferred on the State Government under sub-section (5) of Section 6 of the Act to include an area into an existing area. In light of the aforesaid provisions, we have no manner of doubt in holding that the State Government has power to amalgamate two or more market areas."
In Paragraph-10 of the judgment reproduced above, the Division Bench of this Court referred to a decision in the case Page 31 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT of Karnail Singh v. Darshan Singh reported in 1995 Supp. (1) 760, in the context of Punjab Gram Panchayat Act, 1952. The Apex Court referred to Section 4 of the said Act about demarcation of Sabha area by considering the definition of `village', and held that power to constitute a Panchayat included power to amalgamate two or more Sabha areas as one Gram Sabha. By negativing the argument canvassed by learned counsel appearing therein about absence of provisions of amalgamation unlike in Gujarat Cooperative Societies Act, 1961, and the Gujarat Panchayats Act, 1963, the Court held by providing rationale and reasons in Paragraph-13 that in view of difference in the nature and status of bodies governed by the APMC Act on the one hand and the Cooperative societies on the other hand, the legislative intention sought to be inferred by learned counsel cannot be presumed. The relevant part of Paragraph-13 of the said decision reads thus:
"13. ............ In our view, the argument is misconceived. As far as cooperative societies are concerned, the concerned cooperative societies have to first pass a resolution by the requisite majority for such amalgamation. It is that decision of the cooperative societies which is merely required to be approved by the authorities under the Act. Such a cooperative society would not be able to pass a resolution to the effect that it ceases Page 32 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT to exist and thereafter another resolution by a non- existent society that it would be included or merged into another cooperative society. Hence, an express provision for amalgamation of co-operative societies would be necessary.
However, in case of market areas, it is not for the market committee to decide whether the market area shall be denotified or not. It is for the Government in exercise of the powers under Section 52 of the Act to decide whether a market area is to be denotified. Once the market area is denotified, the Government may either not include it in any other market area in which case the consequences provided under Section 53 would ensue but in case the Government decides to include such market area into another existing market area under sub-section (5) of Section 6, as already discussed earlier, the amalgamation would take place. In view of the difference in the nature and status of the bodies governed by the APMC Act on the one hand and the cooperative societies on the other hand, the legislative intention sought to be inferred by Mr Vakharia cannot be presumed.........."
Further, by taking a clue from Section 21 of the Bombay General Clauses Act, 1904, about power to make to include power to amend, vary or rescind orders, etc., it was held in the said decision that the power to issue a Notification, therefore, Page 33 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT includes the power to rescind such Notification.
10. We are in complete agreement with the reasoning given by the Division Bench in Jitendrabhai Chunibhai Patel & Ors. v. State of Gujarat & Ors. (supra) and find that the law laid down therein is squarely applicable in the facts of the present case warranting no interference on the ground that the said decision is per incuriam.
11. So far as contention raised on behalf of the appellants that the Court cannot legislate, based on the principle of casus omissus, we are of considered view that by interpreting the provisions of Sections 5, 6, 52 and 54 of the APMC Act, neither the Court has supplied any word or meaning contrary to what is provided and envisaged by the legislature that plain reading of Section 52 read with Sections 53 and 54 empowers the State Government to denotify and upon declaration of Market Committee to constitute a new market area. Ordinarily, it may be true that Court would not venture to legislate in view of specific absence of such provision in the legislation, but at the same time, to avoid any violence to the language of the legislation, Court can give meaningful interpretation to the such provisions of law. It is trite to note that binding decisions are meant to be followed unless per incuriam or conflict of two Page 34 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT or more pronouncements of coequal strength of judges is established, in which case the matter may be referred to higher strength of judges, is established. Per incuriam is a principle in relaxation to the rule of stare decisis. Such decisions are decisions given in ignorance or forgetfulness of some statutory provisions or binding authority on the Court concerned or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found on that count to be demonstrably wrong. We are conscious about the fact that decision rendered by learned Single Judge in Special Civil Application No.12231/2014 was not countenanced by Division Bench in appeal on the ground that discussion on merit of the Notification by learned Single Judge was premature, but law discussed therein cannot be said to be in any manner contrary to law. The learned Single Judge has also referred to ratio of law laid down in (i) State of M.P. v. Narmada Bachao Andolan and Anr. - (2011)7 SCC 639, (ii) Siddharam Satlingappa Mhetre v. State of Maharashtra - (2011)1 SCC 694, (iii) Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer, Labour Court and others - (1990)3 SCC 684, amongst others, on the Page 35 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT principle of of per incuriam and discussed the said in detail.
12. As a consequence of impugned Notification constitution of Executive Committee of the market, even by nomination by the State Government, cannot be said to be a mala fide exercise of power. In addition to above, it may be noted that as is evident from the record, time and again, recourse is taken to Court proceedings or by way of representations to stall the exercise of amalgamation, but the fact remains that for one or the other reason, GAPMC remained non-functional for about fifteen years and the Notification to declare intention dated 17.11.2016 justifying amalgamation gives out as many as seven reasons, which read as under:
1) Since the geographical area of the Ghogha APMC is on a coastal fringe,all transactions are with Bhavnagar.
2) It is not possible to establish a Business hub at Ghogha, as Ghogha is merely at a distance of 16 kms from Bhavnagar. There is no land on which the APMC can be started at Ghogha.
3) There are 48 Villages in Ghogha Taluka which are geographically connected with Bhavnagar for business purposes. Therefore even the farmer takes his farm produce for selling it at the Bhavnagar APMC as all these Villages are close to Bhavnagar.
The farmers get an optimum price for their produce at Bhavnagar.
Page 36 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019
C/LPA/1574/2017 JUDGMENT
4) Even if Ghogha is made the headquarters for
the establishment of the APMC at Ghogha even then it is not possible to establish a business hub. As a result of scarcity of water and lack of other facilities no trader will go to Ghogha for purchase of commodities. Absence of a big town and an open yard makes it difficult to establish a Market Committee.
5) There are some Villages which are in the
proximity of Talaja where a APMC Talaja is
functioning which is a well established APMC. As a result thereof the Ghogha farmers within close vicinity of the Talaja APMC prefer to sell their proceeds at Talaja so that they get a better price.
6) As the certain villages of Ghogha Taluka are
near Bhavnagar and some are near Talaja
geographically, the farmers either sell their
proceeds at Bhavnagar APMC or Talaja APMC, where they get a good price. Hence, it is not possible to establish Market Yard at Ghogha.
7) Even if a Market Yard is established at Ghogha, no trader will come forward to purchase the agricultural produce to Ghogha and therefore it is not viable to establish a Market Committee at Ghogha.
13. The aforesaid reasons set out in the Notification dated 17.11.2016, by the Agriculture and Cooperation Department, while declaring its intention to amalgamate GAPMC with Page 37 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019 C/LPA/1574/2017 JUDGMENT BAPMC are perfectly just and proper, against which, no objections were filed and it was not even annexed by the petitioners. None of the grounds apart from the ground on which learned Single Judge rejected the writ petition warrant any interference. In addition to the reasons assigned by us, we are also in complete agreement with those assigned by learned Single Judge. In view of the above discussion, the other consequential submissions raised on behalf of the appellants are rendered insignificant and the same are accordingly rejected.
14. For the foregoing reasons, the Letters Patent Appeal, being devoid of merit, deserves to be dismissed. It is, accordingly dismissed. Interim relief, granted earlier, stands vacated. In view of dismissal of appeal, Civil Application for stay also will not survive. The same stands disposed of.
15. Learned counsel for the appellants, after dictation of the judgment, has requested to continue the interim relief for some time so as to approach the higher forum. The request, for the reasons stated in the judgment, is rejected.
sd/-
(ANANT S. DAVE, ACJ) sd/-
(BIREN VAISHNAV, J) sunil Page 38 of 38 Downloaded on : Sat Oct 26 04:12:25 IST 2019