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2011 (2) GCD 1360 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice J.B. Pardiwala
Dashrathsinh Ramjubhai Gohil
Versus
State of Gujarat & Ors.
Letters Patent Appeal No. 2500 of 20101—Decided on 28/03/2011
Gujarat Agricultural Produce Market Act, 1963 — Sections 11, 11(i)(iii), 12, 13, 14, 15 and 48 — Gujarat Agricultural Produce Market Rules, 1965 — Rule 28 — Election of more than one seat for Co-operative Marketing Societies constituency — Order of — While number of Co-operative Marketing Societies does not exceed two — Propriety and validity of order — Finding as to — The position is that prior to voting there were only two Co-operative Marketing Societies as the voters in the constituency of Co-operative Marketing Societies — As per the provision under the Act where the members of so constituting Society does not exceed two only one member is required to be elected — In the case it is undisputed position that election of one representative from the said constituency had taken place and the result was declared — The elected representative had also assumed office and started functioning — Thus after election process was finalised allowing an application for one more seat as one vacancy has arisen is absolutely wrong — Once the voter list is prepared and finalised and election is held the legality and validity of election can not be upset except by election petition — In this view of the matter election of additional seat can not be held in exercise of power under Section 15 of the Act — The second ground of dismissal of petition by Single Judge that appellant herein has no locus is also not sustainable in view of Rule 28 of Rules.
Held :
The position remains prior to the voting, so that there were only two co-operative marketing societies as the voters in the constituency of co-operative marketing societies. As per the provisions of Section 11(1)(iii) of the Act and rather the proviso says that where the member of co-operative marketing society so constituted does not exceed two, only one member is to be elected. Accordingly, it is undisputed position that election of one representative from the said constituency had taken place and the result was also declared and the elected representatives assumed the office and they are functioning. [Para 10]
Section 11 of the Act provides for constitution of market committee and such constitution has to take place as per the election to be held keeping in mind the Gujarat Agricultural Produce Markets Rules, 1965 (for short, ‘the Rules’). There is a procedure provided for declaration of election programme, preparation of the voters’ list, finalization of voters’ list, voting, declaration of results, etc. Once the voters’ list is prepared and finalized and the election is already held, the legality and validity of the election cannot be upset on the ground that certain persons though were eligible to be included in the voters’ list, could not be included except by election petition for challenging the election. In this view of the matter, treating them as eligible in the voters’ list after the election is complete, the election of additional seat cannot be held under the purported exercise of power under Section 15 of the Act providing for by-election. Therefore, in Court view, invocation of Section 15 was not at all in accordance with law and, therefore, the order dated 29th October, 2009 passed by the Respondent No. 2, first in point of time, was absolutely just, legal and proper. It is only when Respondent No. 1 remitted the matter to the Respondent No. 2 that, for some reasons, the Respondent No. 2 took a contrary view. [Para 12]
Court fail to understand as to on what basis the learned Single Judge comes to the conclusion that the appellant has no locus standi to prefer the petition. Rule 28 of the Rules speaks about the challenge to the validity of any election of a member of the market committee. [Para 14]
Law Laid Down :
Provision under the Rules provides about the challenge to validity of election of a member of the Market Committee.
J.B. Pardiwala, J.—The appellant – original writ petitioner, by way of this Appeal calls in question the legality, validity and propriety of the order dated 6th October, 2010 passed by the learned Single Judge in Special Civil Application No. 341/2010, wherein the petition of the appellant – original petitioner came to be dismissed.
Brief facts relevant for the purpose of deciding this Appeal can be summarised as under:
1. The appellant is an elected Director of the Agricultural Produce Market Committee, Bhavnagar.
2. The appellant was elected as the Director of the Market Committee from the Traders’ constituency in the year 2008.
3. The term of the Market Committee was coming to an end in the year 2008 and, therefore, the respondent No. 2 declared election vide Notification dated 19th December, 2007. As per the programme, the election was to take place on 20th March 2008 and the result was to be declared on 21st March 2008.
4. Some disputes cropped up with regard to grant of licenses to the traders as well as co-operative marketing societies and as the Market Committee granted licenses after declaration of the election notification, the names of such license holders were deleted from the voters’ list.
5. The said decision was a subject matter of challenge before this Court in Special Civil Application No. 2980/2008 and Special Civil Application No. 2660/2008. The Division Bench of this Court, vide order dated 11th March 2008, directed the Election Officer to hear the license holders and then pass appropriate orders.
6. Pursuant to the directions issued by the Court, the Election Officer in case of co-operative marketing societies, ordered deletion of names of all five societies from the final voters’ list vide his order dated 12th March 2008.
7. This action was a subject matter of challenge by way of Special Civil Application No. 4716/2008. The Division Bench of this Court partly allowed the petition directing inclusion of names of two societies, namely, Shri Vaikunthbhai Mehta Vegetables and Fruits Growers’ co-operative Society, Sidsar and Shri Shedhavadar Onion Growers’ co-operative Society, Shedhavadar in the final list of voters.
2. This order has lot of bearing while deciding this Appeal and, therefore, we deem it fit and appropriate to quote two paragraphs of the order passed by the Court while disposing of Special Civil Application No. 4716/2008.
“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 co-operative 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 co-operative 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’ co-operative Society Limited at Village Sidsar, and the members of the Managing Committee of Petitioner No. 5-Shri Shedhavadar Onion Growers co-operative Society Limited at Village Shedhavadar, in the list of voters for the constituency of co-operative 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.”
3. As there were only two co-operative marketing societies at the time of election, only one representative was to be elected from the c
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