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SCA/233/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 233 of 2010
=========================================================
SHIRAJUDDIN
GULAMNABI SHAIKH - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
DILIP B RANA for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1 -
2.
NOTICE SERVED BY DS for Respondent(s) : 1 - 3.
MR BS PATEL
for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 09/02/2010
ORAL
ORDER
The
petitioner by this petition has prayed for the appropriate relief to
direct the respondent authority to exercise the power under the
Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred
to as the Act ) pursuant to the inquiry report submitted on
13.12.2002.
Heard
Mr.Rana for the petitioner, Mr.Jani, learned Govt. Pleader for
respondent Nos.1,2 and 3 and Mr.Patel for respondent No.4.
Upon
hearing the learned advocate appearing for both the sides, it
appears that the grievance on the part of the petitioner is that
the after the inquiry report was submitted in the year 2002 and
the recommendation made for initiation of the action under Section
50 of the Act, no action is taken by the competent authority after
following the procedure in accordance with law and therefore, the
present petition.
Whereas,
Mr. Jani, learned Govt. Pleader has not been able to show as to
whether any action is taken or not. However, he contended that if
the direction is issued by this Court, the matter will be examined
by the competent authority.
Mr.Patel,
learned counsel appearing for respondent No.4 contended that the
petition is with malafide purpose on account of the ensuing
election, which is scheduled to be held on 25.02.2010, therefore,
there is no bonafide purpose. He submitted that if the direction is
given to the authority to look into the matter, the respondent
No.4 has no objection, but it should not be made as a basis for
disqualifying the respondent No.4 to contest the election. He
submitted that in certain market committee, based on such report,
the nomination forms have been rejected, therefore, if such an
action is taken, the malafide intention of the petitioner would be
satisfied and it would further cause injury to the respondent No.4,
which may not be compensated, if subsequently as an outcome of the
further action, the Director decides not to take any action under
Section 50 of the Act. He therefore, submitted that the said
aspects may be considered by the Court.
Mr.Jani,
learned Govt. Pleader as well as the learned counsel for the
petitioner submitted that the said apprehension is ill-founded
inasmuch as even if the report is to be taken into consideration
before any action is taken under Section 50 of the Act, the notice
will be required to be issued and thereafter, the opportunity will
be given and then only the final decision can be taken. They
submitted that the contention raised for rejection of the
nomination paper by way of apprehension is on hypothesis and uptil
now, no action is taken so far as the respondent No.4 is concerned,
therefore, they submitted that the said aspects may be considered
by this Court.
It
does appear that the petition is essentially for activation of the
Government authority for not taking any action after the inquiry
report which was submitted as back as in the year 2002. Therefore,
it would be required for the Director, respondent No.2 herein to
examine the matter in accordance with law and thereafter, to take
action by taking decision in either way as to whether the
proceedings under section 50 of the Act should be initiated or not.
It is hardly required to be stated that while exercising such power
under section 50, the procedure in accordance with law would be
required to be followed by him. Such should be completed within
reasonable time and keeping in view the aspect that the report was
submitted as back as in the year 2002, and the petitioner has also
not made grievance against the same uptil now, it would be just and
proper to issue directions to the respondent No.2 to take
appropriate decision for taking action preferably within a period of
3 months from the receipt of the order of this Court. Ordered
accordingly.
So
far as the apprehension voiced by the learned counsel for the
respondent No.4 is concerned, for rejection of the nomination form,
uptil now, no such contingency has arisen, therefore, the same can
only be said as on apprehension and hypothesis. Hence, no view
deserves to be expressed on the said aspects. Suffice it to observe
that if such action is taken, the rights and contentions of both
the sides shall remain open.
Disposed
of accordingly. D.S. permitted.
(JAYANT PATEL, J.)
*bjoy
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