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Gujarat High Court
Judgename :M.S.Parikh
UNJHA AGRICULTURAL PRODUCE MARKET COMMITTEE - Appellant
Versus
STATE - Respondent
S.C.A. 3282 of 1998
Decided On : 11/05/1998
Section 54 of the Markets Act clearly appears to be a self contained provision which operates upon the markets or market areas undergoing change as contemplated by Sec. 52 of the Markets Act.
Section 54 does not appear to be controlled, qualified or modified by the provisions of Sec. 14 or Sec. 46 of the Markets Act.
Section 54 of the Markets Act does confer power upon the Government to appoint its nominees and within the outer limit set out in the provision such power can be exercised from time to time since there is no inner limit or mimimum limit which would circumscribe and negative such a power.
[Para 37]
Point No. 4 proposed by Mr. Jhaveri is whether proper course for the State Government was to proceed against the market committee as contemplated under Sec. 46 of the Markets Act. However, in my opinion action under Sec. 46 of the Markets Act would be harsher than the action under Sec. 54 of the Markets Act, in view of the aforesaid conclusion and although the impugned action of the Government under Sec. 54 of the Markets Act will not be justiciable, while answering point no. 4 it has to be found that the Government has followed less invasive power.
[Para 41]
(b) Gujarat Agricultural Produce Market Act, 1963 (Guj. Act 20 of 1964) - Secs. 54 & 54(3) - Power of State Government under - Scope of - Covers & implies pleasure doctrine and therefore upon constituting two market committees by Government by its order dated 31.1.1997, the power conferred upon State Government under Sec. 54 of the Act would not and did not stand exhausted - Accordingly State Government would have power to remove the nominated members of market committee constituted in exercise of power under Sec. 54 before completion of the term for which they were appointed.
It has to be found that pleasure doctrine is clearly implied in the provision of Sec. 54, more particularly Sec. 54(3) of the Markets Act. First point proposed by Mr. Jhaveri will have to be answered accordingly holding that upon constituting two market committees by order dated 31.1.1997 the power conferred upon the State Government under Sec. 54 of the Markets Act would not and did not stand exhausted.
[Para 38]
Holding that the State Government would have power to remove the nominated members of the market committee constituted as per Annexure-A under Sec. 54 of the Markets Act before the completion of the term for which they were appointed.
[Para 39]
(c) Gujarat Agricultural Produce Market Act, 1963 (Guj. Act 20 of 1964) - Sec. 54(3) - Removal of members - Opportunity of being heard - Outgoing members would not be entitled to any show cause notice in view of the fact that such repeat action would not cast any stigma on them.
It has to be found as a necessary corollary that the outgoing members/removed members will not be entitled to opportunity of being heard before exercise of such power and will not be entitled to any show cause notice in as much as the action of repeat exercise of power under Sec. 54 of the Markets Act within the outer compass will not cast any stigma on the outgoing/removed members.
[Para 40]
(d) Gujarat Agricultural Produce Market Act, 1963 (Guj. Act 20 of 1964) - Sec. 54 - Nomination of market committee members - Power of - Scope of exercise of power under is not limited to nominate as far as practicable the persons who were members of the dissolved market committee.
Assuming that power under Sec. 54 can be exercised again, in my opinion, it follows from the aforesaid discussion that it would not be incumbent upon the State Government to nominate as members as far as practicable the persons who were members of the dissolved market committee, firstly because such an exercise is recommendatory in nature and secondly because that exercise will have to be undergone at the first nomination.
[Para 42]
(e) Gujarat Agricultural Produce Market Act, 1963 (Guj. Act 20 of 1964) - Secs. 5, 31, 52 & 54 - State Government notification replacing the members of the Unjha Agricultural Produce Market Committee with named members nominated and appointing authority to administer the affairs Chairman/Vice Chairmen - Validity - Sec. 54 empowers the State Government to dissolve and constitute and reconstitute market committee and in exercise of such powers issuance of said notification and order proper and valid - There are consequential orders of action under Sec. 54 which could hardly be challenged successfully.
Taking now to the remaining point namely, Point No. 5 it relates to impugned orders Annexures-D and E. The impugned order Annexure-D is passed by the Government through its Joint Secretary replacing the nominees by removing the previous nominees. In view of the aforesaid discussion this consequential order would stand and cannot be set aside. The impugned order Annexure-E is also a consequential order resulting from the replacement of the nominees as per the Government notification. This order has been passed to cover the period during which Chairman/Vice Chairman are appointed as contemplated under Sec. 54 of the Markets Act. In order that the right procedure is followed by giving required notice the Deputy Director (Agriculture Market) and District Registrar, Mehsana has been appointed to attend to the administration/affairs of the market committee of Unjha under the Supervision and superitendence of the Director of Agriculture Markets. In my opinion, this is also a consequential order and the submissions made by Mr. Jhaveri challenging this order would hardly merit any acceptance on account of the conclusion which has been reached upon interpretation of Sec. 54 of the Markets Act.
[Para 43]
(f) Constitution of India, 1950 - Art. 226 - Petition against dissolution and re-constitution of market committee - Necessary parties - Contention that newly appointed nominees have not been individually joined as parties therefore - Petition suffers from vice of non-joinder of necessary parties has no force and can not be accepted - Referring to decision of Apex Court in case of Daman Singh vs. State of Punjab, reported in AIR 1985 SC 973, observed that newly nominated members once having become member of the said committee lost individually qua committee and does not require separate joinder - Petition therefore could not be held to suffer from vice of non-joinder of necessary parties.
( 1 ) IN the main matter the petitioners have come out with following prayer :". . . to issue a writ of mandamus or writ of prohibition or any other appropriate writ or direction or order quashing and setting aside the Notification dated 20th april, 1998, at Annexure D to the petition and the order dated 21/04/1998, at Annexure C to the petition and be pleased to direct the respondents to restore the position prevailing on 19/04/1998 prior to passing of the order dated 20th april, 1998. "
( 2 ) I have heard Mr. S, K. Jhaveri, learned Advocate appearing for the petitioners, Mr. J. M. Thakore, learned Advocate General with Mr. P. G. Desai, learned Government Pleader for the respondent No. 1 -State and Mr. M. D. Pandya, learned Advocate for the rest of the respondents. Mr. Jhaveri has submitted that following points arise for consideration in this petition : (I) Whether on constituting two market committees by the order dated 31-1-1997, the power, if any, conferred upon the State Government under Sec. 54 is exhausted ? (II) Whether the State Government has power to remove the members of the market committee constituted as per Annexure A under Sec. 54 before the completion of the term for which they were appointed ? (III) Assuming such power, whether the members are entitled to opportunity of being heard before exercising such power ? i. e.- Whether the State Government is obliged to issue show-cause notice why they should not be removed ? (IV) Whether proper course for the State Government was to proceed against the market committee as contemplated under Sec. 46 ? (V) Whether impugned orders at Annexures D and E are liable to be set aside as arbitrary and contrary to democratic principles enshrined in the constitution in respect of local authorities ? (VI) Assuming that powers under Sec. 54 can be exercised again, is it not incumbent upon the State Government to nominate as members, so far as practicable, the persons who were members of the dissolved market committee ?
( 3 ) WITH a view to answer the aforesaid points Mr. Jhaveri referred to the interim order passed by this Court in the matter of Unava Market Committee. In that case also the Government opted to exercise powers under Sec. 54 of the Markets act, more particularly Secs. 54 (2) and (3) thereof. The reason for such exercise of powers was that after the bifurcation of the erstwhile Unjha A. P. M. C. , into Unjha a. P. M. C. and Unava A. P. M. C. the members of the committee appointed by order dated 31-1-1997 did not take any action so as to put the Unava A. P. M. C. in working. They did not take steps for activating the market yard and had not acted in furtherance of the notification issued by the State Government. On account of such inaction the State Government decided to nominate members in place of the members nominated by earlier Government. In that respect S. C. A. No. 3367 of 1998 has been filed by the previously nominated members representing the Unava a. P. M. C. This Court (D. C. Srivastava, J.) by order of May 1998 while observing that the questions involved in the petition would require consideration at the time of final hearing, more particularly whether Secs. 54 (2) and (3) of the Markets Act disclose pleasure doctrine or not and whether under the scheme of the Markets act the State Government can exercise power as per doctrine of "pleasure" and in exercise of such power the State Government can remove the nominated members before completion of the term for which they were appointed and that even if such doctrine of "pleasure" is to be invoked in exercise of the said provisions of the markets Act, whether the petitioners were entitled to opportunity of hearing and whether the State Government would be obliged to issue show-cause notices to them why they should not be removed. It was also required to be considered whether the petitioners could be removed even if the petitioners did not act in accordance with the scheme of the Act and with the
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