Gujarat High Court
Patel Vitthalbhai Devrajbhai Sojitra & ... vs State Of Gujarat & 2 on 12 December, 2008
Author: Jayant Patel
Bench: Jayant Patel
SCA/12386/2008 1/3 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 12386 of 2008
=========================================================
PATEL VITTHALBHAI DEVRAJBHAI SOJITRA & 3 - Petitioner(s)
Versus
STATE OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR DILIP B RANA for Petitioner(s) : 1 - 4.
GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 3.
MR CHIRAG B PATEL for Respondent(s) : 3,
=========================================================
CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 12/12/2008
ORAL ORDER
1. Prima facie, it appears that it is an admitted position that the petitioners were not holding licence on the date, when the Director issued show-cause notice and as per the petitioners when final order was passed, the petitioners had applied for renewal of the licence and no decision was taken by the market committee. The fact remains that the application for renewal of the licence was not prior to the expiry of the licence. The effect of the scheme may be finalised at the final disposal of the petition.
SCA/12386/2008 2/3 ORDER
2. However, prima facie, it appears that if the
licence is expired and the application for
renewal of the licence is not made, even prior to the issuance of the show-cause notice by the Director therefore, it cannot be said that the seat has not fall vacant. The right of the elected representative under the statute is as per the statute and cannot be pitched further. If statute provides for creation of the vacancy upon the cessation of the capacity by the elected representative, it must be given effect. Therefore, unless it is held that until the renewal application is decided, even if made, after issuance of the show-cause notice, the licence continues, the petitioners would have no case on merits.
3. Under the aforesaid prima facie observations, if there is no case on merits, the question as to whether sufficient opportunity was given to the petitioners by the Director or not would lose its importance, nor any useful purpose would be served.
4. In view of the above, Rule.
SCA/12386/2008 3/3 ORDER 5. The interim relief in view of the aforesaid
prima facie observations does not deserve to be granted, because such may result into allowing the petition. The limited ad-interim relief, which has been granted at the first instance is that the post may not be filled up. Prima facie it appears that if the post has fallen vacant, the same cannot be kept vacant until the matter is finally heard or the decision is taken otherwise.
6. Therefore, the ad-interim relief granted earlier is vacated, but with the observation that the person/s so elected would assume office, subject to further orders, which may be passed by this Court at the time of final hearing and such aspect shall also be clarified by the Director when the election programme is published, so as to avoid further complication in future.
(JAYANT PATEL, J.) Suresh*