Gujarat High Court
Unjha Mal Producing And Marketing ... vs The State Of Gujarat Thru The Manager on 26 March, 2019
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/3818/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3818 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3820 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3822 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No 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 ?
========================================================== UNJHA MAL PRODUCING AND MARKETING COOPERATIVE SOCIETY LTD THRU SECRETARY Versus THE STATE OF GUJARAT THRU THE MANAGER ========================================================== Appearance:
MR. N.D. NANAVATY, SENIOR ADVOCATE WITH MR. DHAVAL D VYAS(3225) for the Petitioner(s) No. 1 MS. MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with JYOTI BHATT, AGP for the Respondent(s) No. 1 & 2 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4 MR. MIHIR JOSHI, SENIOR ADVOCATE WITH MR. DIPEN DESAI, ADVOCATE for the Respondent(s) No. 4 (In SCA No. 3820/2019, 3822/2019) ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 26/03/2019 COMMON CAV JUDGMENT Page 1 of 10 C/SCA/3818/2019 CAV JUDGMENT
1. The petitioners in all the three petitions having challenged the similar orders passed by the respondent - Authorized Officer deleting the names of the members of their respective managing committees from the voters' list of cooperative marketing societies' constituency for the election of APMC, Unjha, they were heard together with the consent of learned advocates for the parties and hence, this common judgment is being passed.
2. For the sake of convenience, the facts stated in Special Civil Application No. 3818 of 2019 filed by the Unjha Mal Producing and Marketing Cooperative Society Ltd. are taken for consideration.
3. As per the case of the petitioner, the petitioner - society is a Cooperative society registered under the Gujarat Cooperative Societies Act, and is situated in the market area of Unjha. The petitioner society is also holding valid general license issued by Unjha, APMC. The petitioner is engaged in the business in conformity with its respective objects as per its constitution and has got its last accounts audited in class-A as required under Clause -
(iii) of Section 11(1) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as 'the said Act'). The Unjha, APMC has been constituted under Page 2 of 10 C/SCA/3818/2019 CAV JUDGMENT Section 11 of the said Act. Since the term of the market committee of APMC, Unjha was to come to an end, the Director of APMC had declared the election by issuing notification dated 16.01.2019. Accordingly, the provisional voters' list was published on 12.02.2019 in which the names of the members of the managing committee of the petitioner society were included as eligible voters. However, the respondent No. 4 had raised certain objections against the said inclusion of the names before the respondent - Authorized Officer, and therefore, the petitioner society was called upon to file reply, which was filed by the petitioner. However, the respondent No. 2 - Authorized Officer passed the order on 15.02.2019 deleting the names of the members of the managing committee of the petitioner society on the ground that the petitioner society had not engaged itself in the business in conformity with its objects. Being aggrieved by the said order, the petition has been filed. The respondent No. 2 had also passed similar orders in respect of the other two societies, who are the petitioners in the Special Civil Application No. 3820 of 2019 and 3822 of 2019.
4. The learned Senior Advocate Mr. N.D. Nanavaty appearing for the petitioners in all three petitions, vehemently submitted that the respondent No. 2 had no authority or Page 3 of 10 C/SCA/3818/2019 CAV JUDGMENT jurisdiction to make inquiry as to the terms of licences issued to the petitioners or to decide about the genuineness of the transactions entered into by the petitioner societies in respect of the agricultural produce. In this regard, he has relied upon the decision of Division Bench of our High Court in the case of Shrutbandhu H. Popat versus State of Gujarat reported in 2007 (3) GLR 1942. He has also relied upon the decision of Supreme Court in the case of Election Commission of India versus Ashok Kumar and others reported in 2000 (8) SCC 216 to submit that the Court can interfere without granting stay on the election process for the purpose of strengthening the democracy or removing the obstacles to the fair election process. Placing reliance on the objects stated in the bye-laws of the respective petitioner societies and also on the audit reports, he submitted that the petitioner societies had engaged themselves in their respective businesses in conformity with their respective objects, and all the petitioners had also their last accounts audited in Class-A, as required under Section 11(1)(iii) of the said Act. The impugned orders passed by the respondent No. 2 being arbitrary and without jurisdiction, the same deserve to be set aside.
5. However, the learned Government Pleader Ms. Manisha Lavkumar Shah appearing for the Page 4 of 10 C/SCA/3818/2019 CAV JUDGMENT respondent No. 2 - authorized officer and learned Senior Advocate Mr. Mihir Joshi appearing for the respondent No. 4 pressing into service the definition of "cooperative marketing society" as contained in Section 2(V) of the said Act, submitted that the petitioner societies had not engaged themselves in the business of buying or selling the agricultural produce or of processing of the agricultural produce as specified in the Schedule for the market area. According to them, the rice or paddy in which the petitioner societies have allegedly traded, was not included as an agricultural produce in the Schedule specified by the Director for the market area in question. There was only one transaction of Jeeru during the entire previous year which was rightly found not to be genuine transaction by the Authorised Officer. Ms. Shah has relied upon the decision of Supreme Court in the case of Manipur Administration versus M. Nila Chandra Singh reported in AIR 1964 SC 1533, to submit that the concept of business must necessarily postulate continuity of transaction and that one single, casual or solitary transaction of sale or purchase or storage, could not be said to be doing the business for the purpose of Section 11(1)(iii) of the said Act. Reliance is also placed by her on the judgment of Delhi High Court in the case of National Projects Construction Corporation Ltd. versus Page 5 of 10 C/SCA/3818/2019 CAV JUDGMENT Commissioner of Wealth-Tax, Delhi, 1969 SCC OnLine Del 240 in this regard. She also submitted that an alternative remedy of filing the election petition under Rule-28 of the APMC Rules being available to the petitioners, this Court may not interfere with the impugned orders passed by the respondent - authorized officer, which are otherwise legal and proper.
6. At the outset, it may be stated that the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited Vs. R. D. Rohit, Authorized Officer and Cooperative Officer (Marketing), reported in 2006(1) GCD 2011, while dealing with the scope of Rule 28 of the APMC Rules, 1965 has categorically held that exclusion or inclusion of names in the voters' list cannot be termed as an extraordinary circumstance warranting interference by the High Court under Article 226 of the Constitution of India and such questions have to be decided in the Election Petition under Rule 28 of the said Rules. Hence, applying the said ratio laid down by the Full Bench to the facts of these petitions, as such the petitions would not be maintainable, an alternative remedy of filing Election Petition under Rule 28 of the said Rules being available to the petitioners.
7. So far as the merits of the petitions are concerned, it appears that the Authorised Page 6 of 10 C/SCA/3818/2019 CAV JUDGMENT Officer has held in the impugned orders that the petitioner societies had not engaged themselves in the business in conformity with their respective objects and had made only one transaction of Jeeru during the entire previous year, which could not be said to be genuine transaction. It has also been held that the petitioners were not engaged in the business of buying or selling the agricultural produce as specified in the Schedule for the market area in question. In the opinion of the Court, apart from the fact that the questions as to whether the petitioners had entered into genuine transaction of Jeeru or not, and whether the petitioners had actually engaged themselves in the business of buying or selling the agricultural produce as specified in the Schedule for the market area in question or not, are highly disputed questions of facts, which could not be entertained in the petition filed under Article 226 of the Constitution of India. The learned Senior advocate Mr. Nanavaty for the petitioners has also failed to show as to how the petitioners were engaged in the business of buying and selling the agricultural produce specified in the Schedule so as to treat them as the cooperative marketing societies within the meaning of Section 2(v) of the said Act. Mr. Nanavaty has also failed to show from the record as to how the petitioner societies were engaged in the business in conformity with their objects Page 7 of 10 C/SCA/3818/2019 CAV JUDGMENT as stated in their respective bye-laws. As against that Ms. Shah for the respondent No. 2 has rightly relied upon the decision of Supreme Court in the case of Manipur Administration versus M. Nila Chandra Singh (supra), in which the Supreme Court while interpreting the word 'business' for the purpose of definition of dealer as contained in Clause 2(a) of the Order issued under the Essential Commodities Act, has observed as under :-
"....... It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. It this element of the definition is ignored, it would be rendering the use of the word "business"
redundant and meaningless....."
8. Applying the above observations to the facts of the present petitions, the Court is of the opinion that by showing only one transaction of agricultural produce namely Jeeru in the entire previous year, the petitioners could not claim that they were engaged in the business of buying or selling the agricultural produce as specified Page 8 of 10 C/SCA/3818/2019 CAV JUDGMENT in the Schedule for the market area in question.
9. The Court also does not find much substance in the submission of Mr. Nanavaty that the authorized officer had no jurisdiction to make inquiry as to whether the petitioners were in fact engaged in the business in conformity with their respective objects or not. As held by the Division Bench in the case of Bhesavahi Group Vividh Karyakari Seva Sahakari Mandali Limited versus State of Gujarat and others in Letters Patent Appeal No. 569 of 2016, the Authorized Officer may not conduct in-depth inquiry elaborately, however, a limited inquiry is always permissible by the Authorized Officer under Rule 8(2) of the said Rules.
10. It is also pertinent to note that the words "situate in the market area, holding general licenses, engaged in the business in conformity with their respective objects and have their last accounts audited in Class A, B or C, as the case may be", as contained in Section 11(1)(iii) were substituted for the words "situate in the market area and holding general licenses" by the Gujarat Act No. 14 of 2015 dated 10.04.2015. Hence, the submission of Mr. Nanavaty that the petitioners were earlier held to be the eligible voters for the constituency of cooperative marketing societies, also cannot be accepted, inasmuch as the last elections of APMC, Unjha Page 9 of 10 C/SCA/3818/2019 CAV JUDGMENT were held in the year 2015 i.e. prior to the said amendment. So far as the existing provisions contained in Section 11(1)(iii) of the said Act are concerned, the petitioners for being eligible voters have to show that they are situated in the market area, they are holding general licences and they are engaged in the business in conformity with their respective objects, and have their last accounts audited in class A, B or C as the case may be. Absence of any of these requirements would make them ineligible to participate in the election of APMC.
11. In the instant cases, the petitioners having failed to produce any cogent material to show that they were engaged in the business in conformity with the objects, and more particularly engaged in the business of buying or selling the agricultural produce as contemplated in Section 2(V) of the said Act, the Court does not find any illegality or infirmity in the impugned orders passed by the Authorized Officer. All the three petitions, being devoid of merits, are dismissed. Notice is discharged in all the petitions.
Sd/-
(BELA M. TRIVEDI, J) AMAR SINGH Page 10 of 10