SCA/2980/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2980 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================================ 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 ? ===================================================== JAY ASHAPURA & COMPANY & 29 - Petitioner(s) Versus STATE OF GUJARAT & 6 - Respondent(s) ===================================================== Appearance : MR BM MANGUKIYA for Petitioner(s) : 1 - 30. MR MIHIR JOSHI Ld. ADDL. ADVOCATE GENERAL with Ms. KRINA CALLA Ld. AGP for Respondent(s) : 1 - 7. ===================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1. Rule. The learned Advocates appearing for the SCA/2980/2008 2/10 JUDGMENT respective respondents are directed to waive service. Considering the urgency, the petition is taken up for final hearing today. 2. This petition under Article 226 of the Constitution has been preferred by as many as 30 different persons, each one of them stated to be holding licence as a trader from Agricultural Produce Market Committee, Bhavnagar. The petitioners have challenged the order dated 8.2.2008, whereunder, the names of the petitioners came to be deleted from the final list of the voters. 3. The principal grievance ventilated on behalf of the petitioners is that the names of the petitioners appeared in the preliminary list of voters published under Rule 8(1) of the Gujarat Agricultural Produce Markets Rules, 1965 (the Rules). Objections against the names of the petitioners being included in the preliminary list of the voters were raised by one Dasharathsinh Gohil, but the said objections were turned down by the Authorised Officer. Subsequently, revised draft list of voters came to be published by the Authorised Officer wherein once again the names of the petitioners appeared. Thereafter, the case of the petitioners is, that respondent no. 5, authorised officer has deleted the names of the petitioners without hearing the petitioners. 4. Mr. Mangukia learned advocate for the petitioners has submitted that apart from absence of SCA/2980/2008 3/10 JUDGMENT an opportunity to the petitioners, before the names of the petitioners were deleted from the voters list, the Authorised Officer could not have also undertaken such an exercise in light of the language employed by provisions of Rule 8(1-A) of the Rules which permits amendment or modification only in relation to new names entered in the list after the exercise is complete under Rule 8(1) of the Rules. In support of the submissions, reliance has been placed on the decision of this Court in the case of Mehsana District Cooperative Purchase and Sales Union Ltd. vs. Dhadhusan Beej Utpadak, Rupantar Ane Vechan Karnari Sahkari Mandali ltd. & Ors., reported in 1998(2) GLR 1479. The said decision has also been pressed into service for the proposition that alternative remedy available under Rule 28 of the Rules to challenge the validity of election cannot constitute adequate efficacious alternative remedy and the Court would be justified in entertaining the petition and granting relief. It is necessary to make note of the fact that subsequent larger Bench of this High Court in the case of Daheda Group Seva Sahakari Mandli Limited vs. R.D. Rohit, Autho. Officer & Co- operative Officer (Marketing), reported in 2006(1) GCD (Guj)(FB) 211 has held the aforesaid decision in the case of Mehsana District Cooperative Purchase and Sales Union Ltd.(supra) to be no longer a good law on the issue of alternative remedy, as provided under Rule 28 of the Rules. SCA/2980/2008 4/10 JUDGMENT 5. Though various other submissions have been made in relation to the removal of respondent no. 4 as Authorised Officer and posting of respondent no. 5 as Authorised officer in the view that the Court is inclined to adopt, it has not been found necessary to record and deal with such submissions. 6. On behalf of the respondents, learned Addl. Advocate General Mr. Mihir Joshi submitted that though it may be technically correct to contend that there was violation of principles of natural justice, it is not that in case of every violation the Court would exercise powers under Article 226 of the Constitution, if the petitioners are not in a position to show the prejudice caused to the petitioners as a result of such violation of principles of natural justice. That in case of each of the petitioners, the licences as traders have been issued after the date of the Notification i.e. 19.12.2007, and, therefore, considering the ratio of the judgment rendered by this Court in the matter of Kalubhai Ranabhai Akabari vs. State of Gujarat & Ors., reported in 2007(3) GLH 57, the petitioners could not be treated as persons entitled to vote on the relevant dates as the licences have been issued on 27.12.2007 and thereafter. It was, therefore, submitted that in such circumstances the Court should leave the petitioners to avail of alternative statutory remedy without entertaining the petition considering that mixed questions of facts and law are involved. SCA/2980/2008 5/10 JUDGMENT 7. Though Mr. Joshi has also made other submissions on merits, the Court has not found it necessary to record and deal with the same for the reasons that follow hereinafter. 8. It is an undisputed fact that the impugned order dated 8.2.2008 has been passed by respondent no. 5, the Authorised Officer, without hearing the petitioners, who are the affected parties. The plea that it is the Market Committee which issues licence and the record of the Market Committee has been perused and the representative of the Market Committee heard cannot substitute the hearing to which each of the petitioners is entitled. As can be seen from the details available in tabular form in paragraph no. 4 of the petition, which is reproduced hereinbelow, all the petitioners are not similarly situated and thus not entitled to same relief: Petitioner No. Date of issuance of license Licence No Date of last payment of license fee Date of last renewal of license 1 2001 35 24.3.2007 27.12.2007 2. 1998 53 1.9.2007 28.12.2007 3. 1998 4 28.7.2007 27.12.2007 4. 1998 24 25.12.2007 27.12.2007 5. 1999 93 24.12.2007 27.12.2007 6. 2000 108 1.9.2007 28.12.2007 7. 1999 118 16.8.2007 27.12.2007 8. 1999 119 4.12.2007 27.12.2007 SCA/2980/2008 6/10 JUDGMENT Petitioner No. Date of issuance of license Licence No Date of last payment of license fee Date of last renewal of license 9. 1999 120 20.12.2007 29.12.2007 10. 1999 121 20.12.2007 29.12.2007 11. 2001 74 23.3.2007 27.12.2007 12. 2001 75 24.3.2007 27.12.2007 13. 2001 1 28.3.2007 27.12.2007 14. 2001 49 29.3.2007 27.12.2007 15. 2004 113 6.10.2007 28.12.2007 16. 1998 113 31.3.2007 29.12.2007 17. 2006 218 1.12.2007 28.12.2007 18. 2007 259 5.5.2007 27.12.2007 19. 2007 260 9.7.2007 27.12.2007 20. 2007 267 9.7.2007 27.12.2007 21. 2007 266 15.12.2007 27.12.2007 22. 2007 276 24.12.2007 29.12.2007 23. 2007 277 24.12.2007 29.12.2007 24. 2007 279 24.12.2007 29.12.2007 25. 2007 280 24.12.2007 29.12.2007 26. 2007 282 24.12.2007 29.12.2007 27. 2007 283 24.12.2007 29.12.2007 28. 2007 284 24.12.2007 29.12.2007 29. 2007 287 25.12.2007 29.12.2007 30. 2007 288 25.12.2007 29.12.2007 9. By way of an illustration, if the case of petitioner no. 1 is concerned, the date of issuance of licence is shown to be year 2001 and the date of last payment of licence fee is shown on 24.3.2007, while the licence has been renewed on 27.12.2007.. In other words, prima-facie, it appears from the record that the steps the petitioner no. 1 was required to take for having its licence renewed by making SCA/2980/2008 7/10 JUDGMENT payment of licence fee along with the application for renewal were taken well within time, but it was the Market Committee which delayed the renewal of the licence. Therefore, the petitioner cannot be penalised for the lapse on the part of the Market Committee unless and until the Authorised Officer is in possession of the evidence to establish that either application and payment of renewal fee was back dated, or that the delay was not attributable to the Market Committee. Suffice it to say that each case will have to be decided in light of the individual and peculiar facts and circumstances of each case and on the basis of evidence that may be led by the aggrieved person which is not possible without hearing being provided to such person. 10. The decision of this Court in the case of Kalubhai Ranabhai Akbari (supra) on which reliance has been placed by the respondent - authority has to be read in context of the controversy and considering the propositions laid down, more particularly, the principles enunciated in Paragraph No. 23 of the judgment. 11. Issuance of a licence for the first time and renewal thereof may stand on a different footing, but this would again be subject to the peculiar facts of the case concerned. The Court is not expressing any final opinion in this regard because these are issues of fact which will have to be gone into by the authority in relation to each of the petitioners who SCA/2980/2008 8/10 JUDGMENT are required to be granted an opportunity of hearing. 12. In the view that the Court is adopting it is not necessary to express any opinion in relation to the operation of Rule 8(1-A) of the Rules as that also is an issue which can be raised by the petitioners at the time of hearing. 13. However, from the tabular form appearing in the petition (paragraph no. 4) which is reproduced hereinbefore, the case of petitioner nos. 4,5,9,10, 22 to 30 would stand on a different footing because even as per the facts provided by the petitioners, each of the aforesaid petitioners have made payment of licence fee only after 19.12.2007, i.e. the date of Notification of election programme. Therefore, in so far as these petitioners are concerned, namely, petitioner nos. 4,5,9,10,22 to 30, the petition is not entertained leaving it open to the said petitioners to avail of statutory alternative remedy in accordance with law if the said petitioners so desire. 14. In so far as the remaining petitioners are concerned, namely, petitioner nos. 1 to 3, 6 to 8 and 11 to 21, respondent no. 5 or any other person acting as Authorised Officer is directed to grant an opportunity of hearing before passing any order in terms of Rule 8 of the Rules and to this extent order dated 8.2.2008 in relation to the aforesaid petitioners is quashed and set aside, while, rest of SCA/2980/2008 9/10 JUDGMENT the order shall continue to operate. 15. Considering the schedule as notified on 19.12.2007 by the Director (appearing at Exh.A), the Authorised Officer is directed to ensure that the petitioners are granted an opportunity of hearing. Accordingly, petitioner nos. 1,2,3,6 & 7 shall be heard by the Authorised Officer on 12.3.2008 and petitioner nos. 8,11,12,13,14,15,16,17,18,19,20 & 21 shall be heard by the Authorised Officer on 13.3.2008. This direction and order shall be treated by the said petitioners as a notice of hearing and the said petitioners shall appear on the respective dates before the Authorised Officer to avail the opportunity of hearing without praying for any adjustment/adjournment. 16. The aforesaid directions, fixing the dates of hearing, have been made in presence of the Authorised Officer, who is present in the Court and as suggested by the said gentleman. Further, considering the time frame, the parties are directed to act in accordance with the directions made without waiting for either a certified copy of this order or the writ of this Court. 17. In the result, the petition is allowed accordingly to the aforesaid extent in relation to petitioner nos. 1 to 3, 6 to 8 and 11 to 21, while, the petition is not entertained in relation to the petitioner nos. 4,5,9,10 and 22 to 30. Rule is made SCA/2980/2008 10/10 JUDGMENT absolute to the above extent only. There shall be no order as to costs. (D.A. MEHTA, J.) (Z.K. SAIYED, J.) mandora/