SCA/1007020/2008 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10070 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ===================================================== 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 ? ===================================================== NENA SINGH J BAKALIYA & 2 - Petitioner(s) Versus STATE OF GUJARAT & 13 - Respondent(s) ===================================================== Appearance : M/S THAKKAR ASSOC. for Petitioner(s) : 1 - 3. MS SANGEETA VISHEN ASSISTANT GOVERNMENT PLEADER for Respondent(s): 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. DS AFF.NOT FILED (N) for Respondent(s) : 3, None for Respondent(s) : 4 - 14. ===================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/11/2008 SCA/1007020/2008 2/19 JUDGMENT ORAL JUDGMENT 1. Short facts of the case appear to be that the petitioners, who are the residents of Dahod, are interested in the administration of the Committee. They were formerly elected members of Managing Committee of Agriculture Produce Market Committee (A.P.M.C.). The petitioners have prayed to direct the respondent to constitute the A.P.M.C. Board in compliance to the provisions of Section 11 of the Act by holding of the election and thereby to constitute the market committee of the elected representatives. It appears that pending the petition, the market Committee is bifurcated in two market committees namely A.P.M.C. Dahod and A.P.M.C., Garbada. Therefore, the petitioners have amended the petition and has challenged the bifurcation of the Market Committee and has also simultaneously challenged the nominated committee as appointed by the State Government, since there were no elected representative in the representation of the market committee. This Court after hearing both the sides, had passed following order on 20.10.2008: SCA/1007020/2008 3/19 JUDGMENT 1.Heard Mr. Pahwa learned Counsel appearing for the petitioners, Mr. Kamal Trivedi learned AG with Ms. Sangeeta Vishen learned AGP for the State Authority, and Mr. Patel learned Counsel appearing for the newly added party, who are permitted on record, as per the order passed by this Court today in Civil Application No. 11965 of 2008. 1. It prime facie appears that it is an admitted position that the statutory terms of the, the then elected representatives of Dahod APMC have expired on 21.2.2007. When the election was not held and the administrator was appointed, the petitioners preferred the present petitions. However, it appears that the market committee also preferred the Special Civil Application No. 28866 of 2007, challenging the appointment of the administrator and this Court (Coram: M.R. Shah, J.) vide order dated 23.11.2007, dismissed the petition of the market committee. Against which the Letters Patent Appeal No. 741 of 2008, was preferred by the market committee and the Division Bench of this Court (Coram: K.S. SCA/1007020/2008 4/19 JUDGMENT Radhakrishnan C.J. and M.S. Shah, J.) vide order dated 23.9.2008 passed the order for disposal of the appeal with the direction that respondent No. 1 therein to conduct election of the Agricultural Produce Market Committee as early as possible, preferably within a period of six months from the date of the order. 2. It also appears that the factum of bifurcation of the market committee, pending the litigation before the learned single Judge and/or the Letters Patent Appeal as the case may be, as per the notification dated 11.8.2008 has not been brought to the notice of the Division Bench of this Court and so is the case for pendency of the present petitions and the order passed therein. 3. As per the notification dated 11.8.2008, the then APMC Dahod is bifurcated into APMC Dahod and APMC Garbada. It may be stated that initially APMC Dahod was having market area of Dahod Taluka as well as Garbada Taluka and there was one market committee for two talukas, which is now bifurcated by the State Government in purported exercise of power under Section 52 read with SCA/1007020/2008 5/19 JUDGMENT Section 5 of the Gujarat Agricultural Product Market Act (hereinafter referred to as the 'Act'). No stay has been granted against bifurcation when this Court (Coram: Akil Kureshi,J.) considered the matter on 26.8.2008. The only interim direction was as under: “In the meantime, even if the Committee continues with the proposed meeting of tomorrow, decision taken thereon shall not be implemented till then.” 4. Therefore, this Court did not prohibit the meeting of the committee and only stayed the implementation of the decision of the committee. 5. As per the scheme of the Act, read with the rules, onces the body is nominated in the market committee, such body is to assume the office at its first meeting and if the first meeting is held, the consequence of assumption of the office can be said as completed and it is different matter, whether the decision at the first meeting is implemented or not. Further, the first meeting was for holding election of the Chairman or Vice Chairman and the Chairman or Vice Chairman so SCA/1007020/2008 6/19 JUDGMENT elected have not assumed the office, though election had taken place. 6. It deserves to be recorded that the exercise of the power by the State Government for bifurcation of the market committee is quasi legislative action, and unless the power is ex-facie tainted with malafide or that ex-facie intention to unseat the elected representative, whose statutory term is not over, and thereby to capture power by executive fiat, normally decision is to be left to the authority of the State Government, whether to bifurcate the market committee or otherwise. No satisfactory material is produced on record by the petitioners to show that decision is perverse or without there being material whatsoever for bifurcation. Further, the ground to assume the office by executive fiat may be relevant, if statutory term of the elected representative is not over. In the present case, it is an admitted position that statutory term of the elected representative is over long back, and therefore, it can hardly be accepted that by exercise of the power for bifurcation, the SCA/1007020/2008 7/19 JUDGMENT attempt is made on the part of the State Government to unseat elected representative, whose statutory term is not over. In any case the term of the then elected representative market committee was over and at that stage, when the Government appointed the administrator and the challenge was brought to this Court and by above referred decision, this Court did not interfere with the order for appointment and ultimately as referred to hereinabove, the Division Bench of this Court directed for holding of the election, but it appears that it is an admitted fact that prior thereto committee is bifurcated and now the market committee APMC Dahod is not in existence as it was prior to the bifurcation. 7. Therefore, when the matter is considered today, following factual scenario emerges: A) APMC Dahod which was earlier in existence has ceased to exist on account of the notification by bifurcation B) This Court has not stayed or suspended the SCA/1007020/2008 8/19 JUDGMENT notification and therefore, two APMC namely APMC Dahod and APMC Garbada have come into existence. C) Nominated body has also assumed the office on account of no stay granted by this Court on 26.8.2008, against such assumption of the office and only prohibited the implementation of the decision at that meeting. D) The election has been held of Chairman or Vice Chairman of the nominated body in the respective market committees. 8. In view of the prima facie observations made hereinabove, if the nominated body had assumed the office, the Chairman or Vice Chairman so elected of the respective market committee should be permitted to continue to hold the post on the basis of normal principle that no stay would be granted against the elected representative, unless any action is vitiated for holding the election. Such is not the situation in the present case. SCA/1007020/2008 9/19 JUDGMENT 9. Even if, two market committees are constituted as per the decision of the State Government of bifurcation, the election would be required to be held of the bifurcated market committees and it would be required for the Government to entrust the power to the elected representative who hold mandate of the voters, as against nominated persons, who have not faced the election and hold the office as per the pleasure doctrine of the State Government. The reference may be made to the decision of this Court in case of Vithalbhai Hansjrajbhai & Ors. v. State of Gujarat & Ors., reported at 2006(4) GLR 2747 and more particularly the observations made at paragraph No. 21. 10.The aforesaid is coupled with the circumstance that Division Bench of this Court in the above referred LPA did express the view for holding of the election. 11.Hence, rule. 12.By interim order, it is directed that nominated body including Chairman or the Vice Chairman, so elected of the newly constituted market committee SCA/1007020/2008 10/19 JUDGMENT shall be permitted to assume the office, but such functioning of the nominated body and the elected representative shall be subject to further orders of this Court. The earlier interim relief granted by this Court shall stand modified to the aforesaid extent. 13.I would have further considered the matter for directing the authority to hold the election of newly constituted market committee within some reasonable time, as was considered in the above referred decision in case Vithalbhai Hansjrajbhai (supra), however, learned AGP submitted that some time may be granted to inquire from the Government about the period, during which the election can be completed of newly constituted market committee or otherwise. Hence, S.O. to 12.11.2008 for passing further interim/final orders.” 2. Thereafter, the matter was also to be considered for holding of the election by the Government for newly constituted market committee. 3. However, it appears that the State Government has SCA/1007020/2008 11/19 JUDGMENT moved Misc. Civil Application for modification being No.2786 of 2008 with Misc. Civil Application No.2787 of 2008 in Letters Patent Appeal No.741 of 2008 in Special Civil Application No.28866 of 2007 for modification of the earlier order passed by the Division Bench pointing out the bifurcation made by the then A.P.M.C. Dahod and also the order passed by this Court on 20.10.2008 as referred hereinabove in the present petition. 4. The Division Bench of this Court (Coram : Mr. K.S. Radhakrishanan, C.J. and Mr. M.S. Shah, J.) on November, 21 2008 has passed following order. “Heard learned counsel for the parties. We make it clear that the order dated 23.09.2008 made in Letters Patent Appeal No.741 of 2008 with Civil Application No.8647 of 2008 applies to both the bifurcated committees after the bifurcation. By consensus, it is agreed by the parties that elections will be conducted to both the bifurcated committees on or before 31.07.2009. Both the Miscellaneous Civil Applications stand disposed of accordingly. “ SCA/1007020/2008 12/19 JUDGMENT 5. As per the order passed by the Division Bench, the election of both bifurcated market committees are to be held on or before 31.7.2009. 6. Mr. Pahwa, learned counsel appearing for the petitioner in both the petitions, made two fold grievances : one was that the State while moving Misc. Civil Application did not inform him or his client to make submission before the Division Bench on the aspect of holding of the election well in-time. Second grievance raised by Mr. Pahwa, learned counsel is that even if the election is to be held, the nominated committee, which has been permitted to function as per the order passed earlier in present proceedings, should not be allowed to grant fresh license resulting into altering the position of the voters as on 31.3.2008. It was also submitted that this Court in the case of Vitthalbhai Hansjrajbhai Radadia and ors. Vs. State of Gujarat reported in 2006 (4) GLR 2747 had ordered the election and did not permit the administrator to grant fresh license until the election are held. He therefore, submitted that same directions may be issued by this Court, so that voters SCA/1007020/2008 13/19 JUDGMENT list may not be altered or artificial majority may not be created. 7. Whereas on behalf of the nominated committee, Mr. B.S. Patel, learned counsel submitted that the facts situation in the present case, are different inasmuch as in the case of Vitthalbhai Hansrajbhai (Supra), the term of elected representatives of the Market Committee had not expired and prior thereto, bifurcation had taken and the Court did not permit the nominated committees to function, but the charge was held by the administrator. He submitted that in the present case admittedly term of the then elected representatives of the market committee is over. In any case, the petitioners were not even in that committee, but were in committee prior thereto. Therefore, it is not a case, where the Government has nominated the certain persons as members of the market committees with a view to oust the elected representatives. Since nobody was there in the market committee and only administrator was there, is substitution by the nominated committee. 8. Mr. Pahva, learned counsel in reply further SCA/1007020/2008 14/19 JUDGMENT submitted that as stated in the petition, the persons, who are nominated as members of the Market Committee, are politically associated with the party in power and therefore, the appointment is malafide and therefore, it was submitted that this Court by way of interim measure prohibit the nominated market committees to grant any fresh license. 9. Had it been gray area, where this Court had to consider the matter for ordering the election possibly the matter could have been considered for granting of interim direction or otherwise on the aspect incidental to the election, however, it appears that in the present case, the election is ordered by the Division Bench of this Court in above referred Misc. Civil Application. Therefore, the direction to prohibit the nominated market committee from granting any fresh license, may or may not resulting into altering voter's list, but would result into diluting the effect of the above referred order of the Division Bench of this Court for ordering election. 10. Mr. Pahva, learned counsel submitted that as the order has been passed by the Division Bench, wherein SCA/1007020/2008 15/19 JUDGMENT the petitioner, was not heard, the petitioner may move the application for modification of the order passed by the Division Bench dated 21.11.2008 on the aspect of preponding of the election. In my view, if such proceedings are resorted, the petitioner may if permissible in law, raise grievance for prohibiting nominated committee by interim order from granting license. However, such aspect as referred to hereinabove in view of the order passed by the Division Bench, at least may not be considered by this Court at this stage. 11. In view of the above following position emerges: (1)Former A.P.M.C., Dahod is bifurcated into A.P.M.C., Dahod and A.P.M.C., Garbada. (2)On date when bifurcation has taken place, the administrator was holding charge and by subsequent order, the Government has nominated the committee in place of administrator. (3)The petitioners are the person, who SCA/1007020/2008 16/19 JUDGMENT were in former elected body of the Market Committee, but it is an admitted position that the statutory term of the elected body is over. (4)The exercise of the powers by the State Government for bifurcation of the Market Committee is quasi legislative action and no material is placed on record to show that such an exercise of the power is without there being any authority on the part of the State Government. Further as the Market Committee is already bifurcated and as the effect is also given to the decision of the State Government for bifurcation, if the said action are quashed and set aside, it may result into putting the clock back and restoration of irreversible position, more particularly, when by interim order in the present case, the bifurcation was not stayed and neither administrator nor the nominated body was prohibited from assuming the office. SCA/1007020/2008 17/19 JUDGMENT (5)Under these circumstances, it would not be a case to quash and set aside bifurcation already made of A.P.M.C., Dahod into two A.P.M.C., Dahod and A.P.M.C., Garbada. So will be situation for not setting aside the action of the Government for nomination of the members of Market Committee in view of the peculiar circumstances that the nominated market committee has already assumed office and the term of the then elected body of market committed had admittedly expired. (6)Aforesaid is coupled with the circumstances that in the aforesaid Letters Patent Appeal, the Division Bench while passing the order for directing to hold the election, has not left the question open for interference to the bifurcation already made of the Market Committee or the functioning by the nominated market committee, until SCA/1007020/2008 18/19 JUDGMENT the election. 12. In view of the above, the prayer made by the petitioner for challenging the action for bifurcation of the Market Committee or for nomination of the persons as the members of market committees do not deserve to be accepted. 13. On the aspect of election, as observed earlier, there is already an order of the Division Bench to hold the election for both the Market Committee on or before 31.7.2009. Therefore, no order deserves to be passed by this Court in the present proceedings. 14. However, the aforesaid order shall be with the observation and the clarification that in the event, the petitioner moves the Division Bench for modification of the order dated 21.11.2008 for preponding of the election and/or for controlling of the powers of the nominated market committee until elections are held, the rights of the parties shall be governed as per the order, which may be passed by the Division Bench in such proceedings. SCA/1007020/2008 19/19 JUDGMENT 15. The petitions are partly allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to costs. (JAYANT PATEL, J.) ynvyas