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SCA/3542/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3542 of 2010
===========================================
HARDEVSINH
BALWANTSINH JADEJA & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT & 11 - Respondent(s)
===========================================
Appearance :
MR
CHIRAG B PATEL for
Petitioner(s) : 1 - 5.
MR P.K.JANI, GOVERNMENT PLEADER for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2 - 4,6
- 12.
UNSERVED-REFUSED (N) for Respondent(s) :
5,
===========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/04/2010
ORAL
ORDER
Draft
amended allowed.
1. Heard
Mr.B.S.Patel, learned Advocate for the petitioner and Mr.P.K.Jani,
learned Government Pleader appearing for respondent Nos.1 and 2.
Though served, respondent nos.3 to 12 have chosen not to appear in
the present proceedings. Even respondent no.3 Hon’ble Minister,
Agriculture and Cooperation Department, State of Gujarat against whom
allegations of mala-fide etc. are made, has also chosen not to
appear in the present proceedings. Ultimately, it is his choice
whether after service of notice he should appear or not and matter
can be proceed further ex-parte. As stated above, even respondent
no.4 to 12 who are nominated members of the newly constituted
Agricultural Produce Market Committee, Rajkot – Lodhika, have chosen
not to appear though served. It is reported that so far as respondent
no.5 is concerned he has refused to accept notice of this Court.
Therefore, technically it can be said that he is served.
2. Having
heard Mr.B.S.Patel, learned Advocate for the petitioner and
Mr.P.K.Jani, learned Government Pleader for respondent nos.1 and 2,
this Court could have finally disposed of the matter, however, as
Rule is not issued and matter is not fixed for final hearing, to
avoid any further technicality, Rule is required to be issued.
3. Hence,
Rule returnable on 15th April, 2010.
Direct service is permitted today. Mr.Neeraj
Soni, learned Advocate waives service of Rule on behalf of respondent
nos.1 and 2. To be listed in Separate Board.
4. Heard
Mr.B.S.Patel, learned Advocate for the petitioner and Mr.P.K.Jani,
learned Government Pleader on interim relief. Having heard learned
Advocates for the respective parties who are represented through
their lawyers and considering impugned Notification dated 16.03.2010
nominating respondent nos.4 to 12 as members of newly constituted
Agricultural Produce Market Committee, Rajkot – Lodhika, it prima
facie appears that nomination of respondent nos.4 to 12 as
members of the newly constituted Agricultural Produce Market
Committee, Rajkot – Lodhika (nominated under section 54(2) of the
Gujarat Agricultural Produce Markets Act, 1963) cannot be sustained.
It is to be noted that even in the Notification it has been mentioned
that all those persons who are nominated as members of the
Agricultural Produce Market Committee, Rajkot – Lodhika, are subject
to further verification i.e. whether all those persons are eligible
to be nominated / appointed as members of the Agricultural Produce
Market Committee, Rajkot – Lodhika or not. Therefore, as such there
is non application of mind on the part of the State Government in
nominating respondent nos.4 to 12 as members of the newly constituted
Agricultural Produce Market Committee, Rajkot – Lodhika. Without
verifying or satisfying that respondent nos.4 to 12 are even eligible
to be members of the Market Committee i.e. Agricultural Produce
Market Committee, Rajkot Lodhika or not, they could not have been
appointed as members of the Agricultural Produce Market Committee,
Rajkot – Lodhika. Even considering earlier order passed by this Court
dated 26.02.2010 in Special Civil Application No.1562 of 2010 and
considering section 54(2) of the Gujarat Agricultural Produce Market
Act, 1963, as such members as far as practical are required to
nominated as members of the newly constituted Market Committee. Even
considering relevant files which is produced by Mr.P.K.Jani, learned
Government Pleader at the request of the Court, it appears that
nothing is on record that there was any application of mind by the
State Government whether petitioners/ members of the dissolved Market
Committee or earlier Market Committee are to be nominated or not.
Under the circumstances, there is total non application of mind on
the part of the State Government in nominating respondent nos.4 to 12
as members of the newly constituted Agricultural Produce Market
Committee, Rajkot – Lodhika. As stated above, though served nobody
appears on behalf of respondent nos.4 to 12. Hence, impugned
notification dated 16.03.2010 in so far as nominating respondent
nos.4 to 12 as members of the newly constituted Agricultural Produce
Market Committee, Rajkot – Lodhika, is hereby stayed and suspended.
5. At
this stage, Mr.B.S.Patel, learned Advocate for the petitioner has
submitted that by virtue of interim order passed by this Court today
consequent effect would be that there would be nobody to conduct
affairs of Agricultural Produce Market Committee, Rajkot – Lodhika,
as Administrator who was earlier appointed is stayed by this Court
and even impugned notification nominating respondent nos.4 to 12 as
members of the Agricultural Produce Market Committee, Rajkot –
Lodhika is stayed by this Court. It is submitted that consequential
result is that outgoing Chairman holds post who is not even nominated
is managing the affairs of the Agricultural Produce Market
Committee, Rajkot – Lodhika. Considering above, it is ordered by way
of further interim relief that till further order is passed Director
of Agricultural Market Rural Finance shall manage affairs of
Agricultural Produce Market Committee, Rajkot – Lodhika and no other
persons other than him shall conduct affairs of Agricultural Produce
Market Committee, Rajkot – Lodhika. It is only by way of interim
arrangement only the present order is passed so that there is no
vacuum in between.
6. It
is also required to be noted that as such there is non compliance of
the order passed by this Court in Special Civil Application No.11520
of 2008 and Special Civil Application No.13970 of 2008 and aforesaid
aspect is required to be considered, which shall be considered on the
next date of hearing.
7. This
Court has directed Mr.P.K.Jani, learned Government Pleader to produce
all the files before this Court and same are produced by Mr.Jani,
learned Government Pleader.
8. There
is connected matter being Special Civil Application No.1562 of 2010
which is still pending and it is requested by the learned Advocates
for the respective parties that said Special Civil Application is
required to be heard along with present petitions. Under the
circumstances, Registry is directed to obtain appropriate orders from
the Hon’ble Chief Justice for placing aforesaid Special Civil
Application No.1562 of 2010 also along with present petitions so that
there are no conflicting order.
[M.R.Shah,J.]
satish
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