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LPA/1009/2011 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1009 of 2011
In
SPECIAL
CIVIL APPLICATION No. 16056 of 2007
With
CIVIL
APPLICATION No. 7395 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
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 ?
=========================================================
PATEL
ARUNKUMAR MAGANLAL - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
DILIP B RANA for
Appellant(s) : 1,
None for Respondent(s) : 1 - 2.
MR DIPEN A
DESAI for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 11/08/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. In
this appeal, the appellant-original petitioner challenges judgment
and order dated 25.10.2010 passed by the learned Single Judge in
Special Civil Application No.16056 of 2007 whereby, according to the
appellant herein, the learned Single Judge allowed the petition but
the second part of the relief, as prayed for, with regard to
utilization of the space in the market yard is neither granted nor
rejected.
2. Facts relevant for
the purpose of deciding this appeal can be summarized as under:-
2.1. The
appellant-original petitioner claims to be the holder of general
license issued by the respondent-Market Committee and is trading in
the market area. He also happens to be the ex-Director of the
respondent-Market Committee for the period from 1999 to 2001 from
agriculturist constituency. He claims that as a license holder of the
respondent-market committee, he is duty bound to protect the funds of
the market committee as per the provisions of law. It appears that
the elected body of the market-committee decided to put up statue of
Ex-Chairman of the Market Committee – Late Shri Atmarambhai M.
Patel. It appears that the proposal was submitted and respondent No.2
accorded the necessary approval in this regard. Some time in the year
2006, the appellant preferred a representation
addressed to the Minister, Agriculture and Co-operation Department of
the State Government as regards the decision of the Market Committee
for putting up the statue and also as regards the misuse of the funds
of the Market Committee. The record also reveals that against the
decision of the respondent No.2 according the approval for putting up
the statue, the appellant preferred Revision Application No.38 of
2007 before the respondent No.1-authority under Section 48 of the
Gujarat Agricultural Produce Market Committee Act, 1963 challenging
the approval dated 21.02.2007 given by respondent No.2 and also
prayed to restrain the respondent-Market Committee from placing the
statue of Late Shri Atmarambhai Patel – Ex-Chairman of the Market
Yard in the principle market yard, Vijapur as well as sub-market yard
at Kukarwada. It appears that initially, respondent No.1-authority
ordered the respondent-Market Committee to maintain status quo.
Finally, respondent No.1-authority rejected the revision application
confirming the approval given by respondent No.2-authority for
placing the statue of Late Shri Atmarambhai Patel. It is at that
stage, that the appellant herein preferred Special Civil Application
No.16056 of 2007 and challenged the decisions of respondent Nos.1 and
2.
3. Learned
Single Judge came to the conclusion that there was some substance in
the say of the appellant-original petitioner that there is no
provision under the Act, Rules or bye-laws to allocate the funds and
incur the expenses for the purpose of putting up a statue of the
Ex-Chairman of the market yard. The learned Single Judge also came to
the conclusion that there is no power with respondent No.2 to grant
approval under Section 33(12) of
the Act framing the committee to incur huge expenses for the purpose
of putting up of a statue. In short, the learned Single Judge came to
the conclusion that the order passed by the respondent No.2 according
the approval to the Committee to incur expenses for putting up statue
from the funds of the Market Committee is not in accordance with law.
To that extent, the learned Single Judge agreed with the
appellant-original petitioner and finally, while allowing the
petition, observed that the statue can be permitted to be erected but
the members of the Agricultural Produce Market Committee will have to
bear the expenses from their own pockets or from other public funds
but not from the funds of the market committee. The learned Single
Judge accordingly, quashed and set aside the order dated 17.05.2007
passed by respondent No.1 in Revision Application No.38 of 2007
confirming the approval granted by respondent No.2. The learned
Single Judge finally
observed as under:-
“For
the foregoing reasons, present petition is hereby allowed. The
impugned order dated 17th
May 2007 passed by the respondent No.1 in Revision Application No.38
of 2007 confirming the approval granted by the respondent No.2 is
hereby quashed and set aside.
It is, however,
clarified that if the market funds so expended are repaid in the
respondent-Market Committee within a period of six months from today,
no interest will be recovered on the said principal amount, failing
which it will be open to the concerned District Registrar to recover
the amount of interest on the principal amount from the Members of
the Agricultural Produce Market Committee and he will be entitled to
initiate appropriate proceedings in this respect under Section 51 of
the Act. Till the aforesaid amount is not repaid, the interim relief
granted by this Court will continue, otherwise it will amount to
dismissing the petition. Rule is made absolute accordingly.”
4. We have heard learned
advocate Mr.Dilip B. Rana appearing for the appellant.
5. We
have taken notice of the fact that the statue has already been put up
at principle market yard, Vijapur. We have also taken notice of the
fact that the statue at Vijapur was unveiled on 27.02.2011. We have
also taken notice of the fact that the entire amount incurred towards
putting up of the statue has been paid up by the Directors as per the
affidavit-in-reply filed by
the respondent No.3. In the affidavit-in-reply filed by the
respondent No.3, it has been averred as under:-
“5. I say and
submit that the said statue has been placed and unveiling of the said
statue has already been done on 27.2.2011 and the said statue is
standing as on day. Copies of photographs of the unveiling function
of the statue are annexed herewith and marked as Annexure-R-I Colly.
to this reply.
6. I
say and submit that therefore, the statue of late Shri Atmaram Patel
having already been unveiled and inaugurated, present appeal may not
be entertained as the same has become academic and therefore, the
same may be dismissed.
7. Another
important aspect, which may kindly be considered, is that the very
appellant had preferred another application being Special Civil
Application No.2398 of 2011 restraining the Market Committee from
utilizing the place in the market yard for placing and inaugurating
the statue of late Shri Atmaram Patel. In the said petition earlier
vide order dated 24.2.2011, the learned Single Judge of this Hon’ble
Court issued notice and directed to produce record showing that the
amount as directed by the learned Single Judge in its order dated
25.10.2010 passed in Special Civil Application No.16056 of 2007 has
been deposited by the members of the Market Committee.
8. Thereafter,
when the aforesaid petition was taken up for hearing on 25.2.2011,
the opponent No.3 – Market Committee produced on record
contemporaneous evidence showing that the amount in question has been
deposited by the Directors of the Market Committee.
9. I
say and submit that the learned Single Judge therefore recorded the
said contention regarding restraining the Market Committee from
utilizing the place in the market yard for placing the statue, the
learned Single Judge found that the said prayer is barred by
principles and res-judicata since the very prayer was made in Special
Civil Application No.16056 of 2007 which has not been granted by the
learned Single Judge and therefore same amounts to rejection of the
said prayer.
10. I
say and submit that therefore, the learned Single Judge dismissed
Special Civil Application No.2398 of 2011 vide order dated 25.2.2011
and pursuant thereto, the unveiling function of the statue was
undertaken on 27.2.2011.
11. I
say and submit that the appellant never challenged or even thought to
challenge the order passed by the learned Single Judge in Special
Civil Application No.16056 of 2007 till March,2011 and sought to
challenge the action of utilizing the place in the market yard by
filing a fresh petition.
12.
The petitioner submits that the appellant therefore by his own
conduct had acquiescenced and had accepted the order passed by the
learned Single Judge dated 25.10.2010 passed in Special Civil
Application No.16056 of 2007.
19. Even
otherwise, the learned Single Judge has struck the balance by
directing the Directors of the Market Committee to contribute from
their personal funds towards expenditure incurred for placing the
statue of late Shri Atmaram Patel and has held that the market funds
should not be used for the said purpose. Accordingly, the Directors
have deposited the amount of expenditure incurred by the Market
Committee, and therefore, the market funds have not been utilized
for placing and unveiling statue of late Shri Atmaram Patel.”
6. Taking into
consideration the fact that the statue has already been erected and
unveiled in the month of February, 2011 and also taking into
consideration the fact that the amount which was spent by the
Directors from the funds of the Market Committee, has been made good
by the Directors by depositing the entire amount with the Market
Committee from their own pockets nothing further is required to be
done in the matter.
7. In this view of the
matter, we do not see any reason to interfere with the impugned order
passed by the learned Single Judge. The appeal is accordingly
dismissed with no order as to costs. Civil Application stands
disposed of.
(S.J.
MUKHOPADHAYA, CJ.)
(J.B.PARDIWALA,
J.)
Hitesh
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