IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5732 of 2002 with SPECIAL CIVIL APPLICATION No 5734 of 2002 with SPECIAL CIVIL APPLICATION No 6713 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ RATNABHAI KAJABHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5732 of 2002 MR PK JANI for Petitioner No. 1 MR AD OZA GOVT PLEADER for Respondent No. 1-2 MR KS JHAVERI for Respondent No. 3 1. Special Civil Application No. 6713 of 2002 MR BS PATEL for Petitioner No. 1 MR AD OZA GOVT PLEADER for Respondent No. 1-2 MR KS JHAVERI for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE H.K.RATHOD Date of decision: ___/08/2002 CAV COMMON JUDGEMENT [ Per : MR.JUSTICE H.K.RATHOD ] #. Heard learned advocate Mr. P.K. Jani for the petitioners in Special Civil Application No. 5732 of 2002 and 5734 of 2002 and Mr. B.S. Patel for the petitioner in Special Civil Application No. 6713 of 2002. Heard learned Government Pleader Mr. A.D. Oza and learned advocate Mr. K.S. Jhaveri for the respondents No. 1, 2 and respondent NO.3 respectively in these three petitions. #. It is important to note the observations made by the apex court in paragraph 179 of the decision in case of Kikoto Hollohan versus Zachillali reported in 1992 [Supple] (2) SCC 651, which is reproduced as under: "Democracy is a part of the basic structure of our Constitution and rule of law and free and fair elections are the basic features of democracy. One of the postulates of free and fair elections is the provision for resolution of election disputes as also the adjudication of disputes relating to the subsequent disqualifications by an independent authority. " In case of Kanaiyalal Omar versus R.K. Trivedi reported in 1985 (4) SCC 628, the apex court has made the following observations at page 628: "The word 'elections' in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embarrasses many steps, some of which may have an important bearing on the resolution of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties, ..., unfortunately, large percentage of them are still illiterate. " In group of these three petitions, common challenge has been made by each of the petitioners before this Court. Therefore, all the three petitions are heard and they are disposed of by this common judgment. #. The facts of Special Civil Application No. 5732 of 2002 are as under in brief : The petitioner is the permanent resident of village Saral, Taluka Dhanera, District Banaskantha. Village Saral is in the market area of the Agricultural Produce Market Committee, Dhanera. The petitioner is an agriculturist and also the chairman of Saral Dudh Utpadak Sahakari Mandali Ltd. at village Saral, Taluka Dhanera, District Banaskantha. The petitioner is also a Vice Chairman of the Saral Seva Sahakari Mandali Ltd. which is a village Cooperative Society dispensing agricultural credit to its members and, therefore, the members of the Managing Committee of Saral Seva Sahakari Mandali Ltd. are the voters in the elections of the Agricultural Produce Market Committee, Dhanera. ["APMC" for short]. The petitioner was also a member of the Managing Committee of Saral Seva Sahakari Mandali Ltd. when the elections of the APMC Dhanera took place. Therefore, the petitioner is having right to vote in the elections of the APMC, Dhanera which took place before about six years. According to the petitioner, he is a qualified person to stand as a candidate in the elections of the APMC, Dhanera from the agricultural constituency. The elections of the APMC Dhanera took place in the year 1998. According to the petitioner, he was not a member of the APMC, Dhanera but he had exercised right of vote in the said elections. On 19th August, 2000, the State Government exercised the powers under section 52 read with section 5 of the Gujarat Agriculture Market Produce Committees Act, 1963 ["the APMC Act" for short] and divided the area of the APMC Dhanera into two Market Committees namely APMC Dhanera and the APMC Panthawada. Entire Taluka of Dhanera was declared to be the Market Area of the APMC, Dhanera and the APMC Panthawada consists of the entire area of Dantiwada. In view of the notification dated 19th August, 2000, nominated committee came to be constituted by the State Government for the APMC Dhanera as well as the APMC, Panthawada, Taluka Dantiwada, District Banaskantha. By virtue of the said notification dated 19th August, 2000, the State Government has constituted the committees by nominating persons into two market committees for a period of not more than two years from the date of the order. Date of the order being 19th August, 2000 for the committee as nominated by the State Government vide its notification dated 19th August, 2000, it seized to have its authority on and with effect from 18th August, 2002. According to the petitioner, since the term of the members of the market committee will come to an end before 18th August, 2002, before that time, elections in accordance with the provisions of the Gujarat Agricultural Produce Market Commttees Act, and the Rules framed thereunder are required to be held by the respondents. According to the petitioner, as per the statutory mandate contained under the provisions of the Act, it is required to be seen that the elections are required to be held but instead of complying with the mandatory requirements of law, the petitioner has come to know from the reliable sources that the State Government is likely to extend the term of the APMC in violation of the mandate of the law. It is also the case of the petitioner that the petitioner has come to know that a representation has been made to the State Government through Hon'ble Minister Shri Harjivan Patel who is the Minister from the Legislative Assembly Seat of Dhanera Constituency. According to the petitioner, present nominated members who are supporters of the party in power or active members of the party in power have impressed upon and persuaded to the Hon'ble Minister Shri Harjivan Patel to see that the term of the Market Committee is extended for a period of one year and because of the pressure of the supporters and the nominated members, the petitioner is apprehending that the Hon'ble Minister Shri Harjivan Patel has persuaded the Hon'ble Minister for cooperation under whose jurisdiction the subject in question is falling to extend the term of the the Market Committee and, therefore, present petition has been filed by the petitioner with a prayer to direct the respondents to start the election process for holding elections of the APMC, Dhanera and to appoint the administrator after the statutory period of two years of the nominated committee comes to an end and not to extend the term of the committee beyond the period from 18th August, 2002. Alongwith the petition, certain documents have been produced by the petitioner for justifying that he is an agriculturist and Chairman of the Mandali. The petitioner has also produced notification dated 19th August, 2000 whereunder the State Government has exercised the powers under section 52 read with section 5 of the Act and because of the bifurcation of one market area in two market areas, one as Dhanera and the another as Panthawada. In the said notification, name of the Committee Members are mentioned in respect of Dhanera and Panthawada. Respondents No.1 and 2 have filed affidavit in reply made by one S.A. Shaikh, Deputy Secretary, Agriculture and Cooperation Department, Sachivalaya, Gandhinagar on 5th July, 2002. Against that, affidavit in rejoinder has been filed by the petitioner on 11th July, 2002, alongwith the order passed by this court in Special Civil Application No. 5573 of 2002; 2339 of 2002 and 11130 of 2001 dated 24th July, 2002. On behalf of respondent No.3, affidavit in reply has been filed by one Shri Bhagwanbhai H. Patel. Alongwith the said affidavit in reply, respondent No.3 has produced notification dated 26th June, 2002, 15th July,2002 and 24th July, 2002. #. In Special Civil Application No. 5734 of 2002, the petitioner has made similar challenge in respect of the APMC, Panthawada wherein under the same notification dated 19th August, 2000, the Market Committee has been nominated by the State Government in exercise of the powers under section 54 of the Act. In this petition also, the petitioner has submitted that he is an agriculturist and is also the chairman of Daniyawada Juth Telibiya Sahakari Mandali Ltd. at village Daniyawada, Taluka Dantiwada, District Banaskantha. The petitioner is also the member of the Managing Committee of the Daniyawada Dudh Utpadak Sahakari Mandali Ltd. The petitioner is a voter in the election of the APMC, Panthawada. The petitioner exercised the right of vote in the election of the APMC, Dhanera which took place before about six years. The petitioner is an agriculturist and, therefore, is a qualified person to stand as a candidate in the election of the APMC, Panthawada from the Agriculturists' Constituency. Rest of the facts stated in this petition are similar to the facts stated in special civil application no. 5732 of 2002. In this petition also, the petitioner has made a similar challenge with similar and same prayer on the basis of similar averments as made in special civil application no. 5732 of 2002 and, therefore, we are not repeating in detail the challenge made by the petitioner in this petition. Similarly, the petitioner has produced relevant record to show that he is an agriculturist and Chairman of the Mandali. In this petition, the petitioner has also produced on record the notification dated 19th August, 2000. Affidavit in reply has been filed by respondent No.1 and 2 on 5th July, 2002 and rejoinder thereto has been filed by the petitioner on 11th July, 2002 and copy of the order of this court dated 24th July, 2002 referred to hereinabove has also been produced by the petitioner. Respondent No.3 has filed affidavit in reply which is on record. Alongwith the affidavit in reply, respondent No.3 has produced two notifications dated 26th July, 2002 and 15th July, 2002. This petition was admitted by this court by issuing rule thereon by order dated 1st August, 2002. #. Special Civil Application No. 6713 of 2002 filed by Shri Pankajbhai Shankarbhai Patel has been admitted by this court by issuing rule thereon on 23rd July, 2002 and as regards interim relief as prayed for in para 7(B) of this petition, notice has been issued to the respondents returnable on 1st August, 2002. Brief facts of this petition are to the effect that initially, there was an agricultural produce market committee for Talod and Prantij Talukas. According to the petitioner, respondent No.1, under section 52 read with sec. 5 of the APMC Act, 1963, reconstituted the Market Committee and made division constituting two separate market committees of Talod Taluka and Prantij Taluka vide notification dated 31.3.2000. According to the petitioner, respondent No.2 declared election programme of the respondent No.3 namely market committee by order dated 2.1.2002. According to the petitioner, thereafter, under the guise of disturbance of communal riots in the State of Gujarat, respondent No.1 postponed the elections of all the specified cooperative societies and the market committees. According to the petitioner, after finalization of the voter's list, the respondent NO.1 without any authority passed order dated 18.3.2002 extending the term of the respondent No.3 market committee upto 30.6.2002 and that term has already expired on 30.6.2002 and therefore, the term which has expired, cannot be extended by respondent No.1. According to the petitioner, thereafter, the respondent No.1 passed another notification dated 15.7.2002 extending the term of the market committee upto 31.12.2002. Thus, it is the grievance of the petitioner in this petition that the respondent No.3 is a nominated market committee and as per the provisions of section 54(2) of the Act, respondent No.1 has power to nominate respondent No.3 market committee for a maximum period of two years which expired on 31.3.2002 and thereafter, neither the respondent no.1 has power to extend the tenure of newly constituted nominated committee nor the committee has power to stick to its chair. According to the petitioner, the respondent No.1 has exercised powers under section 11 of the Act which is meant for elected market committee but for nominated market committee, the maximum period can be two years but inspite of these facts, the respondent No.1 has passed the impugned notification and not holding the elections and prolonging the election against the interest of the respondent No.3 market committee without authority of law and without popular mandate and hence the petitioner has filed this petition with a prayer for quashing and setting aside the notification dated 15th July, 2002 and to restrain the respondent No.3 from proceeding with the administration and for directing respondent No.2 to proceed further with the election programme. The petitioner has annexed notification dated 15.7.2002, 31.3.2000 and letter dated 2nd January, 2002 of the respondent No.2 wherein election programme has been declared and voter's list has been finally published on 20th February, 2002 and subsequently the State Government issued two notifications dated 18th March, 2002 and 15thJuly, 2002 and by virtue of the two notifications, initially, term of the nominated market committee has been extended upto 30th June, 2002 and, thereafter, upto 31st December, 2002 which is under challenge in this petition. No reply has been filed by any of the respondents in this petition. The petitioner has also annexed notification dated 18.3.2002 and one order passed by this court in special civil application no. 4000 of 2002 dated 12th April, 2002. #. During the course of hearing of these three petitions, respondents no.1 and 2 were directed to produce the original file before this court wherein decision has been taken by the State Government to extend the term of the nominated market committee for a period upto 31st December, 2002. In response to these directions issued by this Court, respondents no.1 and 2 have placed on record three files in respect of these three matters for perusal of this Court. We have perused these three files which have been produced by the respondents no.1 and 2 before this court. #. In these three petitions, common question has been raised by the petitioners before this Court that the State Government has bifurcated the market area while exercising the powers under section 52 read with Sec.5 of the Act and under section 54(2) has nominated the market committee in respect of the altered market area. The members of such new market committee nominated by the State Government shall hold the office for a period of two years as per the order passed by the State Government under section 54 sub clause (2) of the Act and after the expiry of the said period of the nominated market committee,the State Government has not held the elections but has extended the term of such nominated market committee upto 30th June,2002 by way of notification dated 18th March,2002 and then upto 31st December, 2002 by way of notification dated 15th July,2002. In respect of Dhanera and Panthawada Market Committee, term of such nominated market committees has been expiring on 18th August,2002. Then, by way of notification dated 26th June, 2002, the State Government has, while exercising the powers under section 11(4)(aa) of the Act, has extended the term of the Dhanera APMC and Panthawada APMC for a period of one year with effect from 19th August, 2002. Then, the State Government has cancelled the earlier notification dated 26th June,2002 in respect of Dhanera and Panthawada APMCs and another notification has been issued by the State Government in exercise of the similar powers and reduced the extended term of the two market committees from 18th AUgust,2003 to 31st December, 2002. Therefore, in all these three petitions, the question has been raised by the petitioners as to whether the State Government has power to extend the term of nominated market committee appointed under section 54 sub clause (2) for a further period or not. #. In respect of the said contention, learned advocate Mr.P.K.Jani appearing for the petitioners in special civil application nos. 5732 of 2002 and 5734 of 2002 has submitted that the State Government has no such powers to extend the term of such nominated committee under section 54 of the Act. He has also submitted that there is no provision made in section 11 read with section 54 which give powers to the State Government to extend the term beyond the period of two years of such nominated market committee. He has also submitted that section 54 sub clause (4) specifically provides that on expiry of the period of the office of the members of the market committee under sub section (3), the market committee shall be reconstituted in the manner provided in section 11 of the Act. He has also submitted that the members of such new market committee shall hold the office for such period not exceeding two years as the State Government shall by order in writing specify as per section 54(3) of the Act. He has also submitted that once the period specified in the order by the State Government while exercising the powers under section 54 (3) has expired, then, on expiry of such period, the State Government shall have to reconstitute the market committee in the manner provided in section 11 of the Act. He has also submitted that section 11 of the Act deals with the situation wherein under sub section (1), every market committee shall consists of the following members namely eight agriculturists who shall be elected by the members of the Market Committees of the Specified Societies dispensing with the agricultural credit in the market area; four members to be elected in the prescribed manner by the traders holding general licences; two representatives of the cooperative market society situated in the market area and holding general licences and one member to be nominated by the local authority within whose jurisdiction the principal market yard is situated and two members to be nominated by the State Government. He has, thus, submitted that section 11(1) of the Act deals with the situation of the market committee and proviso to section 11 sub section (1) provides that when the market committee is constituted for the first time, all the members thereof shall be the persons nominated by the State Government and shall hold the office for a period of two years from the date of their nomination. He has also submitted that as per section 11(2) (a) of the Act, if no election is held in the case of market committee for any reason, the Director shall report the fact to the State Government and with the previous approval of the State Government, nominate the market committee, members of the respective class specified in section (1) from amongst the persons qualified to be elected as a members of the respective class. Sub clause (b) provides further that the persons so nominated shall hold office for such a period not exceeding two years as the Director may, with the approval of the State Government, determine. He has submitted that looking to section 11 (2) of the Act read with sub clause (a) and (b), the Director is having power after submitting report to the State Government and with the previous approval of the State Government to nominate the market committee in case when for any reason, election is not held. Therefore, he has submitted that the market committee which has been nominated as a result of alteration or division of the area of market area under section 54(1) of the Act by the State Government having two years' term cannot be extended under section 11(2)(a) and (b). he has also submitted that once the market committee has been nominated by the State Government, then, such committee cannot be renominated by the Director while exercising the powers under section 11(2) (a) of the Act. He has also submitted that in the present case, notification dated 26th June, 2002 and 24th July, 2002 both have been issued by the State Government and not by the Director, while exercising the powers under section 11(4)(aa) the market committee which has been nominated under section 54(2) by the State Government cannot be renominated by the State Government. According to his submission, extension of such market committee cannot be considered as reconstitution as specified under section 54(4) of the Act. He has also submitted that there is no provision made under section 11 or 54 which gives power to the State Government to extend the term of the nominated market committee. He has also submitted that in both the notifications dated 26th June, 2002 and 24th July, 2002, as per the reading of the notification, the State Government has exercised the powers under section 11(4) (aa) and, therefore, he has submitted that the said section 11(4)(aa) applies to the elected market committee which is having the term of four years and the State Government, for the reasons to be recorded in writing, have power to extend the term of such market committee for a period not exceeding one year in the aggregate. In light of section 11(4)(aa) of the Act, he has submitted that the legislature has provided power of extension to the State Government in case of an elected market committee but such power is not provided in section 11 to the State Government in respect of nominated market committee. He has also submitted that even considering section 11(2) (a) and (b) of the Act,there is no provision made for extension of such nominated committee beyond the period of two years. He has also submitted that such extension given by the State Government is in arbitrary manner and is having influence of the Hon'ble Minister Shri Harjivan Patel at whose instance, the term of the market committee has been extended, initially for a period of one year by notification dated 26th June, 2002 and, thereafter, it was reduced upto 31st December, 2002. He has also submitted that as and when the term of the nominated market committee would come to an end, then,for any reason, if the election is not held, then, the State Government has to exercise the powers under section 11(5)(a)(i)(ii). According to his submission, in such a situation, the State Government is having no option but to appoint the administrator to manage the affairs of the market committee but instead of that, the State Government has extended the term of nominated market committee upto 31st December, 2002. According to him, if the said nominated committee will continue, it will be having adverse effect on the elections. He has also submitted that the market committee which is in power can take certain steps in their favour or in favour of their supporters for getting the results of the elections in their favour. So, there will not be impartial, free and fair elections if the nominated committee will continue upto 31st December, 2002 and meanwhile elections are held. Therefore, just to avoid such a situation, in case when the term of the nominated market committee is over, then, the State Government ought to have appointed the administrator under section 11(5) of the Act. He has also emphasized the word "reconstitute"