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SCA/3542/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3542 of 2010
With
SPECIAL
CIVIL APPLICATION No. 3482 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
HARDEVSINH
BALWANTSINH JADEJA & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT & 11 - Respondent(s)
=========================================================
Appearance
:
MR
MR BS PATEL WITH MR CHIRAG B PATEL
for
Petitioner(s) : 1 - 5.
MR PK JANI GOVERNMENT PLEADER for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2 -
3.
DS AFF.NOT FILED (R) for Respondent(s) : 3,
RULE SERVED BY
DS for Respondent(s) : 4 -
12.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 22/04/2010
ORAL
JUDGMENT
As
common question of law and facts arise in both these petitions and
are with respect to similar prayers, both these petitions are
disposed of by this common judgement and order.
In
both these petitions, the respective petitioners have, as such,
challenged the impugned Notification dtd.16/3/2010 issued by the
State Government – Agriculture and Cooperation Department in
so far as nominating the respondent Nos.4 to 12 of Special
Civil Application No.3542 of 2010 as members of newly
constituted Rajkot-Lodhika Agricultural Produce Market committee. It
is also further prayed for an appropriate writ, order and/or
direction directing the concerned respondents – State
authorities to comply with the orders passed by this Court
dtd.30/1/2009 in Special
Civil Application No. 11520 of 2008; order
dtd.9/2/2010 passed in Special
Civil Application No. 8435 of 2009 as well as interim
order passed by this Court in Special
Civil Application No. 1562 of 2010 and to nominate
only those persons as members who were members of the old Market
Committee as on 20/3/2004 (considering sec.54(2) of the Agriculture
Produce Market Committee Act, 1963, hereinafter referred to as
“the Act”).
After
both the petitions were heard by this Court at length on last
occasions, the matters were adjourned to today for dictation of the
order and at the request of Mr.P.K. Jani, learned Government
Pleader so as to enable him to get further instructions in
the matter.
Today,
Mr.P.K. Jani, learned Government
Pleader has tendered Affidavit in Special
Civil Application No.3542 of 2010, which has been
affirmed by Mr.Radhakant Tripathy, IAS, Principal Secretary,
Agriculture and Co-operation Department, State of Gujarat , which
reads as under:-
“At
the outset, I tender an unconditional apology for not being able to
comply with the statement made on behalf of the State Government,
which was recorded in the order dated 30th January, 2009
passed by this Honourable Court in Special
Civil Application No. 11520 of 2008. I also tender an
unconditional apology for not being able to comply with the
directions issued vide order dated 9th February, 2010
passed in Special Civil Application No.8435 of 2009.
2. I
respectfully state and submit that the questions involved in the
present writ petition are considered in detail by the State
Government. The orders passed in the present petition as well as
other petitions with respect to subject matter of Rajkot/Lodhika
Agricultural Produce Market Committee are also considered in detail.
I
respectfully state and submit that in light of the statement made on
behalf of the State Government referred hereinabove and in pursuance
to and in respectful compliance of the directions issued by this
Honourable Court in the order dated 9th February, 2010, I
undertake to issue a requisite notification having effect of
complying with the statements recorded in the above order dated 30th
January, 2009 and the order dated 9th February, 2010
referred to hereinabove, that is to say, restoring the body, which
was in power as on 20th March, 2004 as well as the order
dated 26-2-2010 passed in Special
Civil Application No. 1562/2010, wherein Hon’ble Court
has directed to act as per section 54 of the Act. The State
Government will issue notification in accordance with directions
contained in the order dated 26-2-2010 in SCA No.1562/2010 and
considering Section 54(2) of the Act.
In
light of what is stated hereinabove, I am not making any averments on
merits and pray that the present proceedings may kindly be disposed
of in light of the notification to be published on 23rd
April, 2010 subject to what is submitted hereinabove.”
Mr.P.K.
Jani, learned Government
Pleader has submitted that there shall be one practical
difficulty if the entire old body which was in power as on 20/3/2004
is restored, as some member/s might have incurred disqualification
and/or has/have become ineligible to become member of the Market
Committee.
Mr.B.S.
Patel, learned
advocate appearing on behalf of the petitioners has
fairly conceded that while restoring the old body which was in power
as on 20/3/2004, those persons/members who have incurred
disqualification and/or have become ineligible to be member of the
Market Committee after 20/3/2004 may not be nominated again. He has
further submitted that even to nominate those persons who have
become ineligible to become the Member cannot be nominated and as
such it would be against the provision of sec.54(2) of the Act. It
is further submitted that to that extent his concession may be
recorded.
In
view of the above, more particularly considering the affidavit filed
by the Principal Secretary, Agriculture and Cooperation Department,
State of Gujarat, referred to hereinabove, when the State Government
is to issue notification nominating the members of the newly
constituted Market Committee by restoration the body which was in
power as on 20/3/2004 (except those member/s who have become
ineligible to become member of the Market Committee on and after
20/3/2004), no further order is required to be passed except
disposing of the present Special
Civil Applications by directing the respondents -State
authorities and the State Government to act as per the affidavit
filed by Principal Secretary, Agriculture and Cooperation
Department, State of Gujarat, referred to hereinabove and to issue a
fresh notification nominating the members of the newly constituted
Market Committee while exercising the powers under sec.54(2) of the
Act and restoring the body which was in power as on 20/3/2004
(except those member/s who have become ineligible to become member
of the Market Committee on and after 20/3/2004). It is reported that
the State Government is to issue fresh notification and the same is
to be published on or before 24/4/2010 (may be on 23/4/2010).
As
there is no Market Committee constituted as on today and pursuant to
the interim order passed by this Court, The Director of Agricultural
Marketing and Rural Finance, State of Gujarat is at present in
management and affairs of the Market Committee, it is observed and
directed that the first meeting of the newly constituted Market
Committee constituted as per the notification to be published on or
before 24/10/2010, as stated hereinabove, shall be convened at the
earliest but not later than 10 days from the date of issuance of
such notification nominating the members of the newly constituted
Rajkot-Lodhika Agricultural Produce Market Committee.
With
the observations and directions aforesaid, both these petitions are
disposed of accepting the unconditional apology as prayed for and
the concerned respondents are hereby directed to act as stated above
and as per the Affidavit by Principal Secretary, Agriculture and
Co-operation Department, State of Gujarat, recorded hereinabove. In
the facts and circumstances of the case, there shall be no order as
to costs.
[M.R.
SHAH, J.]
rafik
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