SCA/4716/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4716 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= BHIKHABHAI DAHYABHAI JAJADIYA & 4 - Petitioner(s) Versus STATE OF GUJARAT THRO AVINASH KUMAR IAS OR HIS SUCCESSOR IN & 6 - Respondent(s) ================================================= Appearance : MR BM MANGUKIYA for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8,1.2.9 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.6, 2.2.7, 2.2.8, 2.2.9, 2.2.10, 2.2.11, 2.2.12, 2.2.13,2.2.14 - 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6, 3.2.7, 3.2.8, 3.2.9, 3.2.10,3.2.11 - 4, 4.2.1, 4.2.2, 4.2.3, 4.2.4, 4.2.5, 4.2.6, 4.2.7, 4.2.8, 4.2.9,4.2.10 - 5, 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2.5, 5.2.6, 5.2.7, 5.2.8, 5.2.9, 5.2.10,5.2.11 Mr. MIHIR JOSHI ADDITIONAL ADVOCATE GENERAL WITH Ms.KRINA CALLA, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1 to 4. None for Respondent(s) : 5 - 7. ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 19/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) SCA/4716/2008 2/7 JUDGMENT Rule. Ms.Krina Calla, Assistant Government Pleader waives service of rule on behalf of respondents no.1 to 4. 2. In the facts and circumstances of the case, the petition is taken up for final disposal today. We have heard Mr.B.M. Mangukiya, learned advocate for the petitioners and Mr.Mihir Joshi, learned Additional Advocate General with Ms.Krina Calla, learned Assistant Government Pleader for respondent nos.1 to 4. 3. As per the settled legal position, this Court is not to interfere with the election process, which is already set in motion. In fact, the final voters' list was published on 8th February 2008, list of contesting candidates was published on 12th March 2008; and 20th March 2008 is the date of polling. However, in the meantime the petitioners had already moved this Court by filing Special Civil Application No.2660 of 2008. In the said petition, by order dated 11th March 2008, this Court had permitted petitioners no.1 to 5 herein to appear before the Authorised Officer on 12th March 2008 and the Authorised Officer was directed to hear the petitioners, and thereafter to proceed to consider the objections against the petitioners' eligibility to be included in the voters' list. The impugned order is passed as recently as on 12th March 2008. Hence there is no delay on the part of the petitioners. SCA/4716/2008 3/7 JUDGMENT 4. In the peculiar facts and circumstances of the case, it is not necessary to examine all the legal contentions raised on behalf of the petitioners or the objections being submitted by the learned Additional Advocate General, but if the impugned order is allowed to stand, the entire constituency of Cooperative Marketing Societies will go unrepresented in the Agricultural Produce Market Committee(APMC), Bhavnagar. 5. As per section 11 of the Gujarat Agricultural Produce Markets Act, 1963, every Market Committee shall consist of the following members, namely, (i) eight agriculturists, (ii) four traders and (iii) representatives of Cooperative Marketing Societies – two or one. The said provision reads as under: 11. Constitution of market committee. - (1) Every market committee shall consist of the following members, namely: - (i) eight agriculturalists who shall be elected by members of managing committees of cooperative societies (other than cooperative 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 licenses; SCA/4716/2008 4/7 JUDGMENT (iii)two representatives of the cooperative marketing societies situate in the market area and holding general licenses, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies: Provided that where the number of cooperative marketing societies so situate does not exceed two, only one representative shall be so elected. (iv) .. (v) ..” 6. As per the impugned order passed by respondent no.4, there is not a single cooperative marketing society, whose Managing Committee members are included in the voters' list for the constituency of cooperative marketing societies. 7. It is the case of the petitioners that the petitioners were the existing licence holders in APMC, Bhavnagar and they had submitted their applications for renewal of licence as far back as on 28th March 2007 (in case of petitioners no.1 and 2) and on 29th March 2007 (in case of petitioner no.5). It is also the case of the petitioners that the petitioners had also paid renewal fees on the SCA/4716/2008 5/7 JUDGMENT same date on which they had submitted their applications for renewal. It is not the case of the respondents that renewal applications were not submitted on the above dates or that the renewal fees were not paid on the above dates. Still, petitioners no.1, 2 and 5 are held to be ineligible to be included in the list of voters in the constituency of cooperative marketing societies only on the ground that their renewal applications were not considered by the APMC, Bhavnagar till 19th December 2007, on which date elections to the APMC, Bhavnagar were declared. It would amount to holding that even if there is inaction on the part of the APMC authorities, the existing licence-holders, who had applied well within time for renewal, and had also paid the renewal fees well within time, would not only be denied the right to participate in the elections for the constituency of Cooperative Marketing Societies but there will be no election for the said constituency. 8. At this stage, Mr.Joshi, learned Additional Advocate General, however, submits that this reasoning would not apply in the case of petitioner no.1-society, because petitioner no.1.1-Bhikhabhai Dahyabhai Jajadiya himself is the Chairman of the APMC, Bhavnagar. Therefore, when powers of issuing licences were delegated to the Chairman and Secretary of the APMC, petitioner no.1-society cannot claim or take advantage of the inaction or delay on the part of petitioner no.1.1. In this view of the matter the benefit of the above reasoning cannot be extended to petitioner no.1-society. SCA/4716/2008 6/7 JUDGMENT 9. We are accordingly inclined to allow this petition and direct respondent no.4 to include the names of the members of the Managing Committee of petitioner nos.2 and 5-cooperative societies in the list of voters for the constituency of Cooperative Marketing Societies. It is clarified that this direction is being given in the peculiar facts of this case, where but for this order the entire constituency of the Cooperative Marketing Societies would go unrepresented as aforesaid. In a given case, it may be possible to contend that if there is inaction or delay on the part of the authorities of the APMC in not considering the applications for renewal, it is always open to the existing licence holders to move the appropriate authorities for directing the APMC for consideration of the applications for renewal. 10. We, accordingly, direct respondent no.4 to include the names of the members of the Managing Committee of petitioner no.2- Shri Vaikunthbhai Mehta Vegetable and Fruit Growers' Cooperative Society Limited at Village Sidsar, and the members of the Managing Committee of petitioner no.5-Shri Shedhavadar Onion Growers Cooperative Society Limited at Village Shedhavadar, in the list of voters for the constituency of Cooperative Marketing Societies. The members of the Managing Committees of petitioner nos.2 and 5 shall accordingly be permitted to participate in the ensuing elections to the Agricultural Produce Market Committee, Bhavnagar. SCA/4716/2008 7/7 JUDGMENT 11. The petition is allowed accordingly. Rule is made absolute to the aforesaid extent only. Direct service is permitted today. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) karim