Gujarat High Court
Mohanbhai Ukabhai Akoliya & 2 vs State Of Gujarat & 35 on 16 June, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/13909/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13909 of 2015
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MOHANBHAI UKABHAI AKOLIYA & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 35....Respondent(s)
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Appearance:
MR R.S. SANJANWALA, SR. ADVOCATE with MR DIPEN DESAI,
ADVOCATE for the Petitioners
MS MANISHA SHAH, GOVERNMENT PLEADER with MRVENUGOPAL
PATEL, AGP for the Respondent(s) No. 1 to 3
MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 4
MR V.C. VAGHELA, ADVOCATE with MR. ANAND V THAKKAR,
ADVOCATE for the Respondent(s) No. 5 36
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 16/06/2017
ORAL ORDER
1. The petitioners in the instant petition filed under Article 226 of the Constitution of India, had initially challenged the impugned orders dated 14.08.2015 and 17.08.2015 passed by the Respondent No.2 Director and also had sought direction against the Respondent Nos.12 prohibiting them from nominating any member in Agriculture Produce Market Committee, Dhanera (hereinafter referred to as the APMC, Dhanera) in the traders and the cooperative marketing societies constituencies. During the pendency of the petition, the respondents having nominated the members of the APMC, Dhanera for the traders constituency and the cooperative marketing societies constituency in exercise of the powers Page 1 of 16 HC-NIC Page 1 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER conferred under section 11(3) of the Agricultural Produce Market Committee Act (hereinafter referred to as 'the said Act') vide the order dated 27.08.2015, the petitioners had amended the petition and prayed to issue a writ of prohibition for prohibiting the said nominated members from participating in the election of Chairman and Vice Chairman of APMC, Dhanera scheduled to be held on 31.08.2015.
2. At the first instance the Court, while issuing the notices to the respondents on 28.08.2015, had stayed the execution of the order dated 17.08.2015 (AnnexureA) and had also suspended the nomination in favour of the six respondents, who were also the appellants before the Respondent No.2Director. The Court had further directed that election to the posts of Chairman and Vice Chairman of the said APMC be held on 31.08.2015, however, the said six nominees would have limited right to vote in the said election and their votes will be kept in a sealed cover without destroying secrecy thereof and that result of the election be declared on the basis of the remaining votes cast. The said order was continued from time to time till this date.
3. The chronology of the events giving rise to the present petition is that the election of the APMC, Dhanera had taken place on 07.07.2015, wherein the petitioners were elected from the agriculturists constituency. It appears that the Page 2 of 16 HC-NIC Page 2 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER term of the APMC, Dhanera had expired on 26.05.2015 and that the erstwhile Chairman of the said APMC had not issued any licences to the traders or the cooperative marketing societies for the year 201516. As a result thereof, some of the traders and the cooperative marketing societies had preferred Special Civil Application No.6422 of 2015 and Special Civil Application No.6424 of 2015 seeking direction against the respondent Marketing Committee to hold meeting of the Marketing Committee for the renewal of licences and to include their names in the voters lists of traders constituency and cooperative marketing societies constituency for the election declared on 03.04.2015. The said petitions came to be dismissed by the Division Bench of this Court vide the order dated 13.04.2015 by observing inter alia that once the election was declared no such prayers as prayed for could be granted. It was, however observed that if the business of the petitioners was to have adverse effect on their functioning in capacity as the licence holders for nonrenewal of the licences, they may resort to appropriate proceedings.
4. It appears that in view of the above circumstances, since there was no trader or cooperative marketing society holding valid general licence, the said two constituencies remained unrepresented in the said election held on 07.07.2015, and only the petitioners and others were declared elected for the Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER agriculturists constituency, as per the notification dated 17.08.2015 issued by the Respondent no.2 (AnnexureG Colly).
5. It further appears that thereafter since the election of Chairman and Vice Chairman of the said Marketing Committee was not being held, the petitioners and others had approached this Court by filing the Special Civil Application No.11975 of 2015 seeking direction to declare and hold election of the Chairman and Vice Chairman of the said APMC. The said petition was disposed of by the Court vide the order dated 10.08.2015 directing the respondent Director and the District Registrar to issue notification under Rule 27 of the Agriculture Produce Market Committee Rules and to convene the first meeting of the Market Committee for the election of Chairman and Vice Chairman within two weeks from the date of publication of the said notification under Order 27 (AnnexureF). Accordingly, the notification under Rule 27 was issued by the respondent No.2 on 17.08.2015 and the election of the Chairman and Vice Chairman was held on 31.08.2015. In the said election, the Chairman and Vice Chairman were declared elected uncontested.
6. In the meantime, the respondent Nos.5 to 36 who were the traders and the cooperative marketing societies, whose licences were not renewed by the erstwhile APMC, had approached the Respondent Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER No.2Director by filing the appeals under section 27(5) of the said Act. The Respondent No.2 Director vide the impugned order dated 17.08.2015 (AnnexureA) allowed the said appeals and directed the APMC, Dhanera to issue licences to the said appellants. It is pertinent to note that the present petitioners alongwith six others had filed applications before the Respondent No.2 Director for being impleaded as the party opponents in the said appeals, however, the said applications were rejected by the Director vide the order dated 14.08.2015. The petitioners therefore being aggrieved by the said orders dated 14.08.2015 and 17.08.2015 passed by the Respondent No.2Director had filed the present petition. As stated earlier during the pendency of the petition, the Respondent No.2Director having nominated six persons as the nominated members in the traders constituency and cooperative marketing societies constituency under section 11(3) of the said Act, vide the order dated 27.08.2015 (AnnexureIII to the affidavit in reply filed by the Respondent Nos.5
36), the petitioners also challenged the said order dated 27.08.2015 by amending the petition.
7. Learned Senior Counsel Mr.R.S.Sanjanwala appearing with learned Advocate Mr.Dipen Desai for the petitioners vehemently submitted that respondent No.2Director had passed the impugned orders in the appeals filed by the concerned respondents without jurisdiction, inasmuch as Page 5 of 16 HC-NIC Page 5 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER there was no order passed by the said APMC with regard to the renewal or nonrenewal of the licences of the concerned respondents and in absence of any such order, the appeals could not have been filed by the said respondents under section 27(5) of the said Act. According to Mr.Sanjanwala, the petitioners were the elected members of the said APMC from agriculturist constituency and therefore, they were necessary parties in the said proceedings, however, the Respondent No.2Director arbitrarily rejected the applications of the petitioners for being impleaded as party opponents in the said appeals. Mr.Sanjanwala also challenging the action of the Respondent No.2Director in nominating six persons in the traders and cooperative marketing societies constituencies under section 11(3) of the said Act submitted that the election of the traders constituency as well as cooperative marketing society constituency having not taken place, there being no qualified voters available from the said constituencies, the Director could not have invoked the powers under section 11(3) of the said Act. In this regard, Mr.Sanjanwala has relied upon the decision of the Full Bench of this Court in the case of Manubhai Hargovanbhai Joshi Vs. State of Gujarat reported in 2014 (1) GLR 190. According to him the entire exercise undertaken by the Respondent Authorities and the Director was illegal, malafide and in colourable exercise of powers in order to create artificial Page 6 of 16 HC-NIC Page 6 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER majority in the said market committee, all impugned orders deserve to be quashed.
8. However, the learned Senior Advocate and Government Pleader Ms. Manisha Shah appearing with the learned AGP Mr.Venugopal Patel for the Respondent Nos.13 taking the Court to the various provisions of the said Act submitted that the very object of the Act is to regulate the buying and selling of the agriculture produce and the establishment of the markets of the agriculture produce in the State of Gujarat, and the Director is conferred with the powers and responsibility of the superintendence and administration for ensuring that the purpose of the Act is fulfilled. She further submitted that since the Chairman of the erstwhile APMC had not convened the meetings and had not renewed the licences of any trader or cooperative marketing societies for the year 201516, the concerned aggrieved persons had preferred the appeals before the Respondent No.2 Director. The Director had entertained their appeals to ensure that the object and the purpose of the Act is fulfilled. She further submitted that the requisite number of the said two constituencies having not returned in the election held for the said marketing committee, the Director had rightly exercised his powers under section 11(3) of the said Act by making nomination of the concerned six respondents for the said two constituencies. Challenging the very locus standi Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER of the petitioners to file present petition, she submitted that the petitioners having been elected from the agriculturists constituency, they have no right to challenge the nominations made by the Director for the other two constituencies.
9. Learned Advocate Mr.Hriday Buch appearing for RespondentAPMC submitted that alternative efficacious remedy being available to the petitioners under section 27(5) of the said Act to approach the State Government and also under section 48 of the said Act, the present petition should not be entertained. According to him, the Chairman and Vice Chairman of the siad APMC were elected uncontested, despite the interim order passed by this Court on 28.08.2015 and therefore, the said order has paled into insignificance.
10. Learned Advocate Mr.V.C.Vaghela appearing with learned Advocate Mr.Anand Thakkar for the Respondent Nos.536, supporting the contentions raised by the learned Government Pleader and by Mr.Buch, further submitted that only three petitioners out of seven elected members from the agriculturists constituency have challenged the impugned orders of the respondentDirector. According to him, the allegations made by the petitioners that nominations made were for creating artificial majority, have been proved to be baseless as the Chairman and Vice Chairman have been declared elected uncontested. The Page 8 of 16 HC-NIC Page 8 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER petitioners also did not have the locus standi to challenge the licences issued to the concerned respondents, as the petitioners being from agriculturists constituency, could not be said to be the persons aggrieved, and even otherwise an alternative remedy is available under the Act to challenge the orders passed by the Director.
11. So far as the preliminary objections raised by learned Counsels for the respondents as regard the maintainability of the petition and the locus standi of the petitioners to file present petition are concerned, it may be noted that section 27(5)(ii) provides for filing of an appeal to the State Government against the order passed by the Director. The provisions contained in section 48 of the said Act also confer powers upon the State Government to call for the proceedings of the Director for the purpose of satisfying itself as to the legality or the propriety of the decision or the order passed by the Director. Hence, the petitioners could have availed of the alternative efficacious remedy available under the Act to challenge the impugned orders passed by the Director by filing appropriate proceedings before the State Government instead of directly approaching this Court.
12. The Court also finds substance in the submissions made by the learned Advocates for the respondents that the petitioners having been elected from the Page 9 of 16 HC-NIC Page 9 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER agriculturists constituency, could not be said to be an aggrieved party in respect of the order passed by the respondent Director directing the APMC, Dhanera to issue licences to the respondent nos.536, who are the traders and cooperative marketing societies. It is settled legal position that only the petitioner who has suffered legal injury or whose personal or individual legal right has been affected would have the locus standi to invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. The petitioners having failed to establish their legal right or legal injury could not have filed the petition. In any case, since the petition has been argued at length on other points also, the same is decided on merits also.
13. As regards the first and foremost contention raised by the learned Senior Counsel Mr.Sanjanwala that the impugned orders passed by the Director in the appeals filed by the concerned respondents are without jurisdiction, it may be noted that the then Chairman of the said APMC had not called any meeting for the renewal of or issuance of the licences to the traders and the cooperative marketing societies for the year 201516. As a result thereof around more than 900 applications had remained pending. Since, the APMC, Dhanera had declared elections and no licences to the traders and the cooperative marketing societies were issued or Page 10 of 16 HC-NIC Page 10 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER renewed, the concerned traders and the cooperative marketing societies had filed the petitions being Special Civil Application No.6422 of 2015 and Special Civil Application No.6424 of 2015 before this Court. As stated hereinabove, the Division Bench while not entertaining the said petitions on the ground that election process had started, had observed that such traders and societies could file appropriate proceedings. The concerned respondents therefore filed appeals before the Director. It is true that as per section 27(5) of the said Act, the persons aggrieved against the order refusing to grant or renew licences or suspending or cancelling the licences could file the appeal to the Director within 30 days from the date of the communication of the order, and that no such orders in writing as such were passed by the Marketing Committee. Nonetheless, it is pertinent to note that the Secretary of the said APMC vide communication dated 10.04.2015 had informed the Authorised Officer that the said Committee had not renewed the licence applications of the traders for the year 201617. The said communication though was addressed to the Authorised Officer, the concerned respondents whose licences were not renewed for the year 201516 filed the appeals under section 27(5) of the said Act to the Director. Thus, in peculiar facts and circumstances of the case, the Director appears to have entertained the said appeals with Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER a view to enhance the object and purpose of the said Act, as there was no representation from the said traders and cooperative marketing societies constituencies in the said APMC. As stated earlier, the Court while dismissing the petitions being Special Civil Application No.6422 of 2015 and Special Civil Application No.6424 of 2015 had also observed that if the business of the petitioners i.e. the traders and cooperative marketing societies was being adversely affected for nonrenewal of their licences, they may resort to appropriate proceedings. Accordingly, the aggrieved respondents had filed the appeals under section 27(5)(i) of the said Act, which could not be said to be nonmaintainable as sought to be contended by learned Senior Advocate Mr.Sanjanwala. It is also significant to note that the licences of the concerned respondents were being renewed from time to time prior to the year 201516, and were also renewed for the subsequent years. It was only for the year 2015 16 the same were not renewed as the concerned Chairman did not convene any meeting of the said APMC. Learned Advocate Mr.Sanjanwala has also failed to point out as to how the petitioners were aggrieved by the said order passed by the Director, who had directed to issue licences to the concerned respondents, who were from the traders and the cooperative marketing societies, whereas the petitioners were the agriculturists.
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14. It is also difficult to accept the submission of learned Senior Advocate Mr.Sanjanwala that the Director did not have powers to nominate the concerned respondentsnominees under section 11(3) of the said Act. As rightly submitted by learned Government Pleader Ms.Shah, the election of the said APMC had taken place on 07.07.2015, however, sufficient number of qualified persons having not returned for the traders and the cooperative marketing societies constituencies, the Director had nominated the six persons for the said constituencies vide the order dated 27.08.2015. It is the election of the APMC which takes place and not the election of the constituencies separately as sought to be submitted by Mr.Sanjanwala. If the traders or cooperative marketing societies qualified to participate in the election for the market committee are not available for any reason, in the instant case, no account of non renewal of licences, it is required to be construed that the sufficient number of qualified persons had not returned for the said constituencies, and under the circumstances, the Director was justified in exercising the powers to nominate the persons under section 11(3) of the said Act. At this juncture, the relevant observations made by the Full Bench in case of Manubhai Hargovanbhai Joshi Vs. State of Gujarat (Supra) are required to be reproduced. The Full Bench while interpreting the provisions contained in Section Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER 11(2) and Section 11 (3) of the said Act held as under:
"16. In our opinion, subsection 2 of the Section 11 speaks of a situation where for any reason, the formalities required for holding the election as a whole were not complied with as a result, no election of the market committee was at all held and consequently, no body has been elected. Subsection 3, on the other hand, indicates the situation where although election in respect of all the three categories was declared and consequently, the election of the market committee was held, but the required number of the candidates prescribed for any of the categories have not been returned for any reason. The only plausible reasons for a situation covered by subsection 3 of Section 11 are when the sufficient number of the candidates in any of the categories either did not file their nomination papers or in spite of filing such nomination papers, some were rejected being found to be defective or some of the candidates after the last date for filing nomination papers was over had withdrawn their nomination papers.
17. In the case before us, there is no dispute that with respect of all the three Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER categories of constituency, the formalities required for holding election had been complied with, thereafter, the candidates participated in the process of election by filing their nomination papers but all the 17 candidates of the trader's category had withdrawn their nomination papers; but the required number of candidates of the other two categories have returned after being duly elected; however, for the withdrawal of the nominations, 4 persons in the category of traders' constituency could not be elected or returned. This is not a case where the election of the market committee could not be held but is one where the required number of candidates were not returned. Therefore, in our opinion, the present case clearly comes within the purview of Section 11(3) of the Act. If in the election of a market committee, the candidatures of candidates for four seats of traders' constituency out of 14 are withdrawn, it cannot be said that there was no election of the market committee. Section 11 prescribes election of a market committee in general but does not refer to separate election of three different categories of constituency."
15. The submissions of learned Senior Counsel Page 15 of 16 HC-NIC Page 15 of 16 Created On Sun Aug 13 14:33:22 IST 2017 C/SCA/13909/2015 ORDER Mr.Sanjanwala that the Director had exercised the powers under section 11(3) of the Act malafide and with a view to create artificial majority for the election of the Chairman and Vice Chairman of the said APMC, has also been found to be without substance, in view of the fact that both the Chairman and the Vice Chairman were declared elected uncontested. As such there are no specific allegations of malafides made in the petition and therefore, also the said contention cannot be accepted.
16. In that view of the matter, the petition being devoid of merits, is dismissed. Notice is discharged. Interim relief, granted earlier, stands vacated forthwith.
17. At this juncture, learned Advocate Mr.Dipen Desai for the petitioners has prayed to continue the interim relief for a period of two weeks with a view to approach the Higher Forum, however, the said request cannot be granted for the reasons mentioned hereinabove for rejecting the petition.
(BELA M. TRIVEDI, J.) Tuvar Page 16 of 16 HC-NIC Page 16 of 16 Created On Sun Aug 13 14:33:22 IST 2017