Gujarat High Court
Sodha Parmar Chhanabhai Gandabhai vs State Of Gujarat And Ors. on 1 December, 1992
Equivalent citations: (1993)1GLR738
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
1. The petitioner is holding traders' licence from the Agricultural Produce Market Committee, Kapadwanj (hereinafter referred to as the said Market Committee) and he was elected as member of the Market Committee from the Traders Constituency in the previous election. The election of the Market Committee was held in June 1987. The term of the said Market Committee had expired on 25th May, 1991. The State Government extended term of the Committee for the period upto 31st December, 1991.
2. At the time of hearing of the matter, the learned Counsel for the petitioner has produced on record the Government Gazette dated 1st August, 1991 to point out that by exercise of powers under Section 11(2)(a) of the Gujarat Agricultural Produce Markets Act, 1963, the Director has nominated the members on the Market Committee for a period upto 31st December, 1991. The relevant part is as under:
In exercise of powers conferred under Sub-sections (2)(a) and (b) of Section 11 of the Gujarat Produce Markets Act, 1963 and the previous approval of Government given in Agricultural Co-operative and Rural Development Department's letter dated 13th May 1991 the Director of Agricultural Marketing and Rural Finance, Gujarat State, Gandhinagar, hereby nominates the following persons as members under different constituencies of the Agricultural Produce Market Committee, Kapadwanj, Taluka Kapadwanj, District Kheda. The persons nominated will hold office upto the period ending 31st December, 1991. Their names are hereby published as required under Rule 27 of the Gujarat Agricultural Produce Market Rules, 1965.
In this judgment, the names of the nominated members, as published in the aforesaid Government Gazette, are not reproduced because, admittedly, they Were elected members of the said Market Committee whose term had expired.
3. It is an admitted fact that, pursuant to the aforesaid notification, the, members, who were elected in the previous election, continued as nominated members under Sub-scetions (2)(a) & (b) of Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 (fur short 'the Act'). From the aforesaid notification, it is clear that the State Government has not exercised powers under Section 11(4) of the Act for extending the term of the elected members.
It is undisputed that, on the expiry of the said term on 31st December, 1991, the State Government in exercise of powers under Section 11(5) of the Act appointed the District Registrar, Co-operative Societies, District Kheda, as Administrator of the said Market Committee, vide order dated 7th January 1992. The aforesaid appointment order dated 7th January, 1992 is produced at Annexure 'I' to the affidavit-in-reply filed by respondent No. 6.
4. It is also undisputed that by an order dated 15th September, 1992 (Annexure 'A' to the petition) the Director of Agricultural Marketing and Rural Finance has declared the election programme for the said Market Committee. As per the said election programme, the voters' list was to be published on 14th November, 1992; the nomination papers are to be filed on 15th December, 1992 and the election is to take place on 27th December, 1992.
5. It is the contention of the petitioner that on 9th October, 1992 respondents Nos. 4 to 10 came to the Office of the said Market Committee arid stated that they have been appointed as Administrators of the said Market Committee. Hence, the petitioner has applied to the District Registrar, Kheda at Nadiad, for a certified copy of the order or notification appointing respondents Nos. 4 to 10 as Administrators of the said Market Committee. The District Registrar, Kheda at Nadiad, refused to give a copy of the order applied for. However, after issuance of the notice to the respondents by this Court in this petition, the order dated 6th October, 1992 passed by the State Government appointing respondents Nos. 4 to 10 as Administrators is produced at Annexure 'II' to the affidavit-in-reply filed by respondent No. 6. By the aforesaid order dated 6th October, 1992 passed by the State Government under Section 11(5) of the Act the District Registrar, Co-operative Societies, District Kheda, was removed as Administrator of the said Market Committee and, in his place, respondents Nos. 4 to 10 are appointed as Administrators of the said Market Committee. The petitioner has challenged the said order in this petition.
6. It is the contention of the petitioner that the impugned order appointing respondents Nos. 4 to 10 as Administrators of the said Market Committee is mala fide and is passed with ulterior motive so as to manoeuvre the elections of the said Market Committee which are to be held in December 1992; that respondents Nos. 4 and 5 are Members of the State Legislative Assembly and the staunch supporters of the Congress-1 which is the ruling party in the State; that respondents Nos. 4 and 5 and their supporters are appointed as Administrators of the said Market Committee for the purpose of postponing the election or manoeuvring the election by all means, as they are interested in capturing the said Market Committee; and that, if a fair election takes place, the supporters of respondents Nos. 4 and 5 would not stand any chance of capturing the said Market Committee. In the alternative, it is also stated that the purpose of issuing the notification is mala fide and with an ulterior objective in order to see that (i) the election of the said Market Committee is postponed and (ii) respondents Nos. 4 to 10 continue to be Administrators/Members of the said Market Committee without following any democratic process of holding election. It is therefore prayed that the impugned order dated 6th October, 1992 be quashed and set aside. It is also prayed that Section 11(5) be declared at ultra vires Articles 14 and 19 of the Constitution of India.
7. At the time of hearing of the matter, the learned Counsel for the petitioner has raised the following contentions:
(i) Sub-section (5) of Section 11 of the Act is ultra vires because:
(a) it gives unguided powers to the State Government for appointing an Administrator;
(b) the State Government has an absolute and unguided discretion either to exercise powers under Sub-scetions (2)(a) and (b) of Section 11 or to appoint an Administrator under Sub-section (5) of Section 11;
(ii) The State Government has no power to appoint non-officials as Administrators under Sub-section (5) of Section 11. If the contention of the State Government that it has power to appoint non-officials as Administrators is accepted, then Sub-section (5) of Section 11 is violative of Articles 14 and 19 of the Constitution of India because Sub-section (5) does not lay down any guidelines for selecting the non-officials as Administrators. Hence, it will vest absolute power in the State Government to pick and choose the person/persons for being favoured by appointing him/them as Administrator/Administrators;
(iii) The impugned order dated 6th October, 1992 passed by the State Government in exercise of powers under Section 11(5) of the Act is mala fide and is passed with ulterior motive of manoeuvring the election which is already declared by the Director of Agricultural Marketing and Rural Finance on 15th September, 1992. He further submitted, in the alternative, that the aforesaid notification is issued arbitrarily in order to see that respondents Nos. 4 to 10 continue in power without there being any election.
8. As against this, learned Additional Advocate General Mr. Raval appearing on behalf of respondents Nos. 1 to 3 and Mr. Patel, learned Advocate appearing on behalf of respondents Nos. 4 to 10, vehemently submitted that the State Government has appointed respondents Nos. 4 to 10 as Members of the said Market Committee under Sub-section (5) of Section 11 of the Act, because the Administrator appointed by the State Government was not functioning properly and there were complaints filed against him by the traders and agriculturists of Kapadwanj Taluka; that the State Government has exercised its powers under Sub-section (5) of Section 11 of the Act in the matter of appointment of the Administrators in the said Market Committee for its proper functioning and they are selected from all walks of life having vast experience in the functioning of the agricultural produce market committee; that the State Government has exercised its powers bona fide and in the interest of the said Market Committee, therefore, there is no question of any mala fides on the part of the State Government as alleged; that powers under Sub-section (2) of Section 11 can be exercised by the State Government only at the initial stage, that is, after constitution of the first Market Committee; and that, if no election is held, the Director is empowered to nominate, with the previous approval of the State Government, on the Market Committee members of the respective class specified in Sub-section (1) from amongst persons qualified to be elected as members of the respective class. They have further submitted that Sub-section (5) of Section 11 is introduced in 1990 with the specific object to see that the State Government can appoint Administrator to manage the affairs of the Market Committee whose term has expired and with a view to have a fair election of the members of the Market Committee within a period of one year from the date of appointment of Administrator.
9. For appreciating the contentions raised by the learned Counsel for the parties, it would be necessary to refer to Section 11 of the Gujarat Agricultural Produce Markets Act, 1963. It reads as under:
11. (1) Every Market Committee shall consist of the following members, namely:
(i) eight agriculturists who shall be elected by members of Managing Committees of Co-operative societies bother than co-operative marketing societies) dispensing agricultural credit in the market area;
(ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licences;
(iii) two representatives of the co-operative marketing societies situate in the market area and holding, general licences, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committee of such societies:
Provided that where the number of co-operative marketing societies so situate does not exceed two, only one representative shall be so elected;
(iv) one member to be nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its Councillors or, as the case may be, members who do not hold any general licence:
Provided that where under the law applicable to the local authority its Councillors or members have vacated office and any person or administrator has been appointed to exercise the powers and perform the functions of the local authority, such person, or, as the case may be, administrator shall nominate a member under this paragraph from amongst persons qualified to be Councillors or members of the local authority and not holding a general licence;
(v) two members to be nominated by the State Government:
Provided that when a market committee is constituted for the first time all the members thereof shall be persons nominated by the State Government and shall hold office for a period of two years from the date of their nomination.
(2) (a) If for any reason in the case of a market committee no election is held, the Director shall report the fact to the State Government and with the previous approval of the State Government nominate on the market committee members of the respective class specified in Sub-section (1) from amongst persons qualified to be elected as members of the respective class;
(b) The persons so nominated shall hold office for such period not exceeding two years as the Director may, with the approval of the State Government, determine.
(3) If for any reason in the case of a market committee an election does not result in the return of the required number of qualified persons to take office, the Director, after taking into consideration the views of the members already elected shall as soon as possible nominate from amongst persons qualified to be elected such number as is necessary to make up the required number and the persons nominated shall be deemed to have been duly elected as members of the market committee.
(4) (a) The term of office of a market committee shall, save as otherwise provided in this Act, be four years from the date of its first general meeting.
(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 date of the appointment of an Administrator under Clause (a) of Sub-section (5).
(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 person as may be appointed by the State Government from time to 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 sub-section 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. Sub-sections (4)(aa) and (5) are added in pursuance of the Gujarat Agricultural Produce Markets (Amendment) Act, 1990. The Statement of Objects and Reasons for amendment read as under:
"STATEMENT OF OBJECTS AND REASONS"
Clause (a) of Sub-section (4) of Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 provides for the term of the office of the market committee to be four years from the date of its first general meeting. It is considered necessary to take power to the State Government to extend the said term of the market committee for a period not exceeding one year in the aggregate In order to avoid any hiatus between the market committee, the term of which has expired and the new market committee which is elected, Clause (b) of the said Sub-section (4) provides that the term of office of the members of the market committee shall be deemed to extend to and expire with the date immediately before the date of the first general meeting of the market committee as reconstituted. However, whenever the elections of a market committee are challenged in a Court of law and stay is granted against the functioning of the new market committee, the members of the market committee, the term of which has already expired continue to remain in office on account of the aforesaid provision in Clause (b) of the said Sub-section (4) till the Court vacates the stay. Consequently, the members of the market committee, the term of which has expired continue to remain in office for several years even after the expiry of the term of that market committee. In order to avoid such a situation, it is considered necessary to appoint an Administrator to manage the affairs of the market committee whenever the term of office of the market committee expires and to provide that the Administrator shall hold office till the first general meeting of the new market committee. It is also considered necessary to take power to the State Government to appoint an Administrator, if it appears to the State Government that a market committee has not been validly constituted as well as in the case where a market committee after its being liable to be reconstituted by reason of the expiry of its term or otherwise, continues to function and the members as as well as the Chairman and the Vice-Chairman of the market committee continue to hold their office.
11. From the aforesaid Section 11, it is clear that Sub-section (1) provides as to who shall be the members of a Market Committee. It provides that the Committee shall be constituted by eight agriculturist members who shall be elected by the members of the managing committee of co-operative societies dispensing agricultural credit in the market area; four members are to be elected from amongst themselves by the traders holding general licences; two representatives of the co-operative marketing societies situated in the market area and holding general licences to be elected from amongst the members of such societies by the members of the managing committees of such societies; one member is to be nominated by the local authority within whose jurisdiction the principal market yard is situated from amongst its councillors or as the case may be members who do not hold any general licence and two persons are to be nominated by the State Government. Proviso to Sub-section (1) further provides that when a market committee is constituted for the first time all the members thereof shall be persons nominated by the State Government and shall bold office for a period of two years from the date of their nomination. This would mean that when the first market produce committee is to be constituted, it has to be constituted by the State Government by way of nomination and not by election. Sub-section (2) provides that if for any reason in the case of a market committee no election is held, the Director is required to report it to the State Government. It also empowers the Director to nominate on the market committee members of the respective class specified in Sub-section (1) from amongst persons qualified to be elected as members of the respective class. No doubt, this has to be done with the previous approval of the State Government. The persons so nominated shall hold office for such period not exceeding two years as the Director may, with the approval of the State Government, determine. Sub-section (3) provides that if for any reason in the case of a market committee an election does not result in the return of the required number of qualified persons to take office, the Director is empowered to nominate from amongst qualified to be elected so as to make up the required number. As per Sub-section (4), the term of office of a market committee is four years from the date of its first general meeting. Sub-section 4(aa) is added which empowers the State Government to extend the said term for a period not exceeding one year in the aggregate and for passing such order the reasons are required to be recorded. Sub-section (5)(a) further empowers the State Government to appoint Administrator to manage the affairs of the market committee after the term of office of the market committee has expired and it directs that the market committee shall be reconstituted within such period not exceeding one year in the aggregate after appointment of the Administrator.
12. Therefore, from the scheme of this Section, it is abundantly clear that the market committee is to be constituted from the class of persons mentioned in Sub-section (1). The members of the first committee are to be nominated by the State Government. Sub-sees. (2) and (3) are to be read together. Sub-section (2) provides that in case for any reason the election of the market committee is not held, the Director is empowered to nominate members of the respective class specified in Sub-section (1) from amongst persons qualified to be elected as members of the respective class. He can exercise this power only with the previous approval of the State Government. The Committee so nominated can continue upto the period of two years. Similarly Sub-section (3) provides that if for any reasons an election does not result in the return of the qualified persons to take office, then the Director is empowered to nominate such number of persons as may be necessary to make up the required number and the persons so nominated shall be deemed to have been duly elected as members of the market committee. Therefore, Sub-section (2) contemplates a situation where no election of the market committee is held for any reason. Sub-section (3) deals with the situation where election of the market committee is held but required number of qualified parsons are not elected. By addition of Sub-section (5)(a),in a case where term of the market committee has expired, the State Government is empowered to appoint Administrator to manage the affairs of the market committee and to see that the market committee is reconstituted within such period not exceeding one year in aggregate. It is true that powers under Sub-section (2) and powers under Sub-section (5) are to some extent overlapping. However, it would be difficult for us to accept the contention of the learned Addl. Advocate General that powers under Sub-section (2) are to be exercised only after constitution of the first market committee on the basis of the proviso to Sub-section (1) and that Sub-section (2) is to be read as further proviso to Sub-section (1). In our view, since the inception of the Act, it has been understood by all concerned that if election of the market committee is not held for any reason, the Director with the approval of the State Government is empowered to nominate members on the committee as provided in Sub-section (2) (a). In the present case also, the powers were exercised under Sub-scetions (2)(a) and (b) of Section 11 after the term of the market committee expired on 25th May 1991. No doubt, the same members continued as members of the market committee. Learned Counsel Mr. Vakharia has pointed out number of other instances wherein the State Government has exercised powers under Sub-section (2) of Section 11 after expiry of term of the Agricultural Produce Market Committee. Not only that but it would also be difficult for us to hold that Sub-section (2), which is an independent section, is required to be read as second proviso to Sub-section (1). If the Legislature wanted to provide a proviso to proviso, it would have specifically provided so. Further, it would not have specifically used the phrase "if for any reason in the case of a market committee no election is held". This phrase in our view indicates that, at any point of time after constitution of the market committee if for any reason election of the market committee is not held, the Director is empowered to nominate the members on the market committee with the prior approval of the State Government. This power is also controlled by laying down guideline that the Director shall nominate on the market committee the members from the respective class as specified in Sub-section (1) and that too they must be qualified to be elected as members of the respective class. It is to be noted that in the proviso to Sub-section (1), there is no such guideline. The power of the State Government is not restricted. It nowhere provides that the members of the first market committee shall be the persons from the respective class as stated in Clauses (i) to (v) of Sub-section (1). There is no indication in Sub-section (2)(a) or there is no other reason pointed out by the learned Advocates for the respondents for reading Sub-section (2) as proviso to a proviso of Sub-section (1). In our view, as stated above, proviso to Sub-section (1) empowers the State Government to constitute the first market committee while Sub-section (2) empowers the Director to nominate on the market committee from amongst persons qualified to be elected as members of the respective class specified in Sub-section (I) for a maximum period of two years at any point of time when election of the market committee is not held.
13. Further, it cannot be said that Sub-section (2) and Sub-section (5) are inconsistent. In our view, these two sub-sections are to be read harmoniously. Sub-section (2) empowers the Director with the approval of the State Government to nominate members on the market committee as per the guidelines laid down in the said sub-section. If this is not feasible for any reason, it is open to the State Government to appoint an Administrator to manage the affairs of the market committee and that market committee is to be reconstituted within the period of one year from the date of the appointment of the Administrator. That means, it would depend upon the facts and circumstances in each case and the State Government has to exercise its discretion as to whether to appoint a committee as provided under Sub-section (2) or to appoint an Administrator for smooth functioning of the market committee. Therefore, it cannot be said that powers under Sub-section (2) and Sub-section (5) are inconsistent with each other.
14. It is vehemently submitted by the learned Counsel for the petitioner that in the present case the State Government has appointed respondents Nos. 4 to 10 as Administrators of the said Committee arbitrarily and with an oblique motive so that they can manoeuvre the election of the members of the market committee which is to be held in December 1992. It is submitted that there was no necessity of removing the Administrator (the District Registrar, Cooperative Societies, District Kheda) who was appointed on 7th January, 1992. As against this, it is pointed out by the learned Advocates for the respondents that for proper and better functioning of the market committee, the State Government has appointed respondents Nos. 4 to 10 as Administrators.
15. In our view, there is much substance in the contention raised by the learned Counsel for the petitioner that the State Government has exercised the powers under Sub-section (5) of Section 11 arbitrarily for appointing respondents Nos. 4 to 10 as Administrators of the market committee for the reasons mentioned hereinbelow:
The Administrator was appointed by an order dated 7th January, 1992. Thereafter, as provided under Sub-section (5), within the period of one year, the election of the market committee is required to be held. Hence, the Director of Agricultural Marketing and Rural Finance has published the election programme (Annexure 'A' to the petition) on 15th September, 1992. As per the election programme, preparation of voters' list was to be completed on 3rd October, 1992 after following the procedure prescribed for hearing of objections under the Rules, final voters' list was to be published on 14th November, 1992; nomination papers are to be submitted on or before 15th December, 1992; and, after verification of nomination papers and permitting withdrawal of nomination, election is to take place on 27th December, 1992. Despite the said election programme, the State Government has arbitrarily removed the District Registrar who was appointed as Administrator of the market committee and has arbitrarily appointed respondents Nos. 4 to 10 as Administrators of the market committee under Sub-section (5) of Section 11.
16. For deciding the controversy as to whether the said powers under Sub-section (5) of Section 11 are exercised illegally, arbitrarily or with oblique motive, the first question would be : Was there any necessity of removing an independent officer who was working as an Administrator efficiently and was discharging his duties diligently ?
17. From the records, it is apparent that there was no justifiable reason for removing the District Registrar who was appointed as Administrator of Kapadwanj Market Committee. It is contended by the learned Advocates for the respondents that the then Administrator was removed for smooth functioning and better administration of the affairs of the market committee. By additional affidavit-in-reply, respondents Nos. 4 to 10 have contended that the then Administrator (District Registrar) was acting arbitrarily and was misusing the property belonging to the market committee. It is, however, not the say of the State Government that the Administrator was removed because he was misusing the property belonging to the market committee. In the affidavit-in-reply filed on behalf of the State Government, it is only stated as under:
I say and submit that the respondents Nos. 4 to 10 have been appointed in the place of the previous Administrator by the Government order dated 6-10-1992. At this stage, it may be pointed out that against the previous Administrator, Mr. B. H. Patel, who was working since January, 1992, representation was made to the Government by one M.L A., about his functioning. On enquiry, it was found that there is a strong opposition amongst the traders of the market committee against the then Administrator. Due to certain agitative instances, it had become difficult for the then Administrator to function smoothly.
From the aforesaid statement in the affidavit-in-reply, it is clear that, as there was opposition amongst traders of the market committee against the then Administrator Mr. B. H. Patel, he was removed and his removal is based only on the representation made to the Government by one M.L.A. Except this statement, mere is nothing on record to show that the Administrator being a responsible Government Officer was required to be removed by appointing respondents Nos. 4 to 10 as Administrators of the said market committee.
18. For our perusal, the learned Additional Advocate General has produced the Government files dealing with the appointment of respondents Nos. 4 to 10 as Administrators of the said market committee. Even from the said files, nothing is pointed out to indicate that the then Administrator (the District Registrar) was required to be removed. The first letter, which is pointed out to us, is a letter dated 5th September, 1992 written by the Director of Agricultural Marketing and Rural Finance to the State Government. In the said letter, it is inter alia mentioned that as certain allegations were received against the functioning of the then market committee, the District Registrar, Co-operative Societies, District Kheda was appointed as Administrator and he has taken over the charge as Administrator of the market committee on 10th January, 1992. With regard to the appointment of seven persons as Administrators on the ground that the then Administrator was not functioning properly, he has stated that he has not received any such complaints. Further, on verification, it was found that the then Administrator was acting strictly and, therefore, certain influential businessmen have objected to and it seems that they have filed representation to the State Government. It is also pointed out that the then Administrator was functioning properly and was seeing that the agricultural produce brought by the agriculturists is sold within the market yard and on account of non-observation of the procedure and guidelines, certain complaints were also filed against the erring businessmen. It is also pointed out that in the present case it was not possible to appoint a committee comprising of eight agriculturists, four traders and one or two representatives of Sales and Purchase Institutions. With regard to the suggestion made by the M.L.A. Shri Dilipsinh Juvansinh Thakore of appointing seven persons as Administrators of the market committee, he has stated that under Sub-section (5) of Section 11. Administrators can be appointed for a period of one year and instead of one Administrator more persons can be appointed in view of the General Clauses Act. This letter nowhere indicates that the then Administrator Mr. B. H. Patel was not functioning properly. On the contrary, this letter specifically recites that the then Administrator was functioning properly; that his term was to expire on 6th January, 1993; and that it was not possible to appoint a committee of eight agriculturists, four traders and one or two representatives of other institutions in view of the particular atmosphere in the area. In the said file, there is another letter dated 7th July, 1992 written by Shri Dilipsinh Juvansinh Thakore, M.L.A. from Kathalal constituency. He is respondent No. 4 herein. The said letter is written to the Honourable Minister for Co-operation wherein he has only requested the Honourable Minister to appoint seven persons as stated by him in the letter as custodian for Kapadwanj Agricultural Produce Market Committee. Again, he has written similar letter on 12th August, 1992 which was received by the Department on 26th August, 1992. In the aforesaid two letters, nowhere it is mentioned that the then Administrator was not functioning properly. No allegations were made against the functioning of the then Administrator. From the Government files also, the learned Additional Advocate General was not in a position to point out anything to indicate that the then Administrator was not functioning properly. Further, in the letter dated 12th August, 1992 which was seen by the Honourable Minister on 26th August, 1992, there are some endorsements made indicating that there was some personal discussion with Mr. Katara on 26th August, 1992. Hence, there is no material to indicate that the then Administrator was misusing the power or was not functioning properly. Surprisingly enough, in the said file itself, there is one letter dated 30th October, 1992 written by the Section Officer of the said Department to the Director of Agricultural Marketing and Rural Finance stating that the State Government has not received any representation to appoint seven members as Administrators of the market committee and if the Director has received such representation he should send a copy to the Government. The learned Additional Advocate General has also pointed out an endorsement on the file dated 6th October, 1992 made by the concerned Honourable Minister approving the proposal of appointment of seven persons, as mentioned in the letter dated 12th August, 1992, as Administrators of the Kapadwanj Agricultural Produce Market Committee. In that file also, there is nothing material to indicate that an independent Government Officer, who was functioning efficiently and properly as Administrator of the market committee, was required to be removed by appointing seven persons as Administrators. Not only this, in pursuance of the direction given by the Director, the Deputy Director of Agricultural Marketing and Rural Finance, Gujarat State, also visited the Kapadwanj Agricultural Produce Market Yard to find out as to whether the grievances made against the then Administrator are in any way justifiable. The Deputy Director has specifically reported that the Administrator was functioning properly; that he has seen that the agricultural produce is not sold outside the Market Yard; that he had filed 200 cases against the traders because they were not complying with the provisions of the Act; and that during the period of seven months, the income of the Market Yard was increased which was Rs. 9,64,500/- and income of Kathalal Market Yard was increased to Rs. 2,56,099/-. The Deputy Director has stated certain figures to point out that the then Administrator was functioning economically and the erring traders were aggrieved because the then Administrator was taking stern action against them in case of non-compliance of the provisions of the Act. From this report also, it is apparent that there was no material with the Government for removing the Administrator by appointing the seven persons as Administrators of the market committee.
19. Apart from this aspect of removing the efficient and diligent Administrator, it is also clear from the Government files that respondent No. 4 had written two letters to the Honourable Minister for Co-operation stating that he and other persons may be appointed as custodian of the market committee. After some discussion, the Government has accepted the said suggestion. There is nothing on record to show as to what transpired in the discussion which took place between the Honourable Minister and the concerned M.L.A. or between the Honourable Minister and the Director. It is the say of the petitioners that respondents Nos. 4 and 5 are the Members of the Legislative Assembly belonging to the Congress-I party; remaining respondents Nos. 6 to 10 are supporters of respondents Nos. 4 and 5; and, therefore, with a view to manoeuvre the election of the market committee, which is to be held on 27th December, 1992, these persons are appointed as Administrators. As stated hereinabove, in our view, there was no justifiable reason for removing the efficient Government Officer who has functioning as Administrator of the market committee since January, 1992 at the fag end of the term and more particularly when the election programme was already published by the Director of Agricultural Marketing and Rural Finance on 15th September, 1992. The powers under Sub-section (5) of Section 11 are used in a highly unusual mariner. This is also likely to frustrate the entire purpose of holding an independent election of the market committee in a democratic way as prescribed under the Act and the rules framed thereunder. It would be too much to say that, because a M.L.A. from a particular area represents to the Honourable Minister that he and other persons named by him be appointed as Administrators for no rhyme or reason, the State Government has accepted the said suggestion and removed the independent officer, who was functioning efficiently. In the affidavit-in-reply, as stated hereinabove, the Government has sought to justify only by stating that, due to certain agitation, it had become difficult for the then Administrator to function smoothly. This statement is contrary to the reports submitted by the Deputy Director and the Director of Agricultural Marketing and Rural Finance.
20. There is no justifiable reason for appointing seven persons as Administrators on the eve of election of the market committee. Admittedly, two M.L.A.s belonging to one party and five other persons who are their supporters are appointed as Administrators. There is nothing on record to show as to why respondents Nos. 4 to 10 are favoured by appointing them as Administrators and that the Government has applied its mind before appointing respondents Nos. 4 to 10 on the basis of their alleged qualification to be Administrators except for two letters written by respondent No. 4, Shri Dilipsinh Juvansinh Thakore, M.L.A., to the Honourable Minister for Co-operation requesting to appoint him and other persons named by him as Administrators of the market committee. In the two letters also, it is only stated that they may be appointed as Administrators. This action on the part of the State Government in appointing seven persons as Administrators of the Kapadwanj Agricultural Produce Market Committee is, in our view, arbitrary and unjustifiable.
21. In this view of the matter, as we have arrived at the conclusion that the State Government has exercised its powers under Sub-section (5) of Section 11 of the Act in the arbitrary manner, the other contentions raised by the learned Counsel for the petitioner that the State Government has no authority to appoint non-official persons as members or Administrators of the market committee are not required to be considered. We have, however, noted his submission to the effect that under Sub-section (2) of Section 11 of the Act, when the non-official persons are to be appointed after expiry of the term of the market committee, the Director is empowered to nominate on the market committee members of the respective class specified in Sub-section (1) from amongst persons qualified to be elected as members of the respective classes. If powers under Sub-section (5) of Section 11 are to be: exercised, then only the officer of the State Government is required to be appointed as Administrator. The learned Counsel for the petitioner relied upon the decision in the case of Ishwar Singh Bagga v. State of Rajasthan wherein the Court has observed as under:
Ordinarily, whenever a statute empowers the State Government to appoint persons to administer any of the provisions of the statute, the persons who may be appointed by the State Government under such provision can only be persons appointed in connection with the affairs of the State. In other words, they should be employees or officers of the State Government, who are subject to the administrative and disciplinary control of the State Government directly.
22. As against this, the learned Additional Advocate General has pointed out that, with regard to the Gujarat Agricultural Produce Markets Act, 1963, the Legislature has specifically not provided for appointment of an Officer as Administrator. In various other Acts, wherever there is provision for appointing an Administrator, the Legislature has specifically provided that the officer shall be appointed as Administrator. For this purpose, he has also referred to Section 46(3) of the Act. The learned Advocates for the respondents have relied upon the judgment delivered by a Division Bench of this Court in Special Civil Application No. 3511 of 1992 on 25th September, 1992. As against this the learned Counsel for the petitioner submitted that in the aforesaid case the Court in the first paragraph of the judgment has specifically observed that the challenge to the constitutional validity of Sub-section (5) is merely on hypothetical ground and, therefore, it cannot be said that this Court has upheld its constitutional validity by deciding the question on merits. We would however note from the aforesaid judgment that the Court has specifically observed that if and when power is exercised unreasonably and any action is taken in arbitrary manner, such action can be challenged; but merely on the apprehension that the power will be exercised unreasonably, the provisions of the Statute cannot be invalidated. However, in the present case, it is not necessary for us to decide the constitutional validity of Sub-section (5) of Section 11 on the ground as contended by the learned Counsel for the petitioner that it gives unguided and absolute discretionary powers to the State Government, to appoint Administrator even though there is specific provision under Sub-section (2) for constituting market committee by way of nomination of members.
23. In view of the aforesaid discussion, we hold that the action of the State Government in appointing respondents Nos. 4 to 10 as Administrators of the Kapadwanj Agricultural Produce Market Committee is arbitrary and unjustifiable.
In the result, this petition is allowed. The impugned order dated 6th October, 1992 issued by the State Government removing the District Registrar, Co-operative Societies, Kheda District, at Nadiad, as Administrator of the Kapadwanj Agricultural Produce Market Committee and appointing respondents Nos. 4 to 10 as Administrator is quashed and set aside, respondents Nos. I and 2 are directed to appoint an Administrator of the Kapadwanj Agricultural Produce Market Committee on or before 8th December, 1992 in place of respondents Nos. 4 to 10 for the remaining period as provided in Sub-section (5) of Section 11. Rule made absolute with no order as to costs.