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CA/8746/2008 6/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR VACATING INTERIM RELIEF No. 8746 of 2008
In
SPECIAL
CIVIL APPLICATION No. 6353 of 2007
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AGRICULTURAL
PRODUCE MARKET COMMITTEE, VERAVAL - Petitioner(s)
Versus
VADODARA
ZALA VIVIDH KARYAKARISEVA SAHKARI MANDALI & 11 - Respondent(s)
=========================================================
Appearance
:
MR
PRAKASH K JANI for
Petitioner(s) : 1,
MR TUSHAR MEHTA for Respondent(s) : 1 - 6.
MR
PANDYA, AGP for Respondent(s) : 7,
RULE NOT RECD BACK for
Respondent(s) : 7 -
12.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 08/09/2008
ORAL
ORDER
The
applicant has preferred the application for modification of the
order dated 9.3.2007 passed by this Court so far as it relates to
prohibiting the Market Committee from taking any policy decision and
from granting any new licence to the traders.
Heard
Mr.Jani, learned Counsel appearing for the applicant, Mr.Nanavati,
learned Counsel with Mr.Ketan Shah for the original petitioner and
Mr.Pandya, learned AGP for opponents No.7 and 8.
As
such when the Administrator, who is having all the powers of the
Market Committee, once had applied for vacation of the interim
relief, which has not been granted by this Court (Coram: Smt.
Abhilasha Kumari, J.) vide order dated 4.3.2008 in Civil Application
No.895 of 2008 in Special Civil Application No.6353 of 2007, the
present application by projecting the Market Committee through
Secretary, who is the employee of the Market Committee having no
power to grant licence or to take any policy decision, is not
maintainable. As per the Scheme of the Act read with the Rules, the
powers of the Market Committee vest to the Administrator and he did
prefer the application for modification and vacation of the interim
relief being Civil Application No.895 of 2008, which was not
granted. Therefore, the present application as such can be said as
not maintainable.
It
may be recorded that the learned Counsel for the original
petitioner, during the course of the hearing, by relying upon the
decision of this Court in the case of Vithalbhai Hansrajbhai
Radadiya & Ors. v. State of Gujarat & Ors. , reported in
2006(4) GLR, 2747 submitted
that if this Court is inclined to consider the matter for ordering
election as was ordered in the said case, the elected body being the
representative of the voters can be assigned with the powers and the
regular functioning of the Market Committee may be assured.
It
appears that earlier Bench of this Court did call for the response
of the State Government for ordering of the election, however, the
communication dated 1.9.2008 is placed on record by the learned AGP
from the State government, which shows that the Government is
desirous to take policy decision and is also desirous to appoint a
nominated Committee, but there is no express willingness shown on
behalf of the Government or the Election Authority to hold the
election of the Market Committee in question. It may be recorded
that this Court in the aforesaid decision in case of Vithalbhai
Hansrajbhai Radadiya & Ors. v. State of Gujarat & Ors.
(supra) did observe at para 21 as under:-
21. In
any democracy, election by the people and for the people is the real
spirit and can rather be described as a soul to survive the
democracy and democratic principles in any State or institutions or
local body upto the grass root level. No executive in democracy can
be heard to say that the process of administration would continue by
executive fiat and let the election be not held, if no convenient
atmosphere to hold the election. The systematic mechanism of
holding power through the electorate that too within the time bound
programme is the gist of governance conceived and expressly provided
in all statutes governing the constitution, administration,
reconstitution and rather perpetual succession of the local bodies
or statutory bodies. The normal principle or the normal rule would
be the holding of power or of governance of statutory body through
its electorate and the role of executives or rather the supervisory
authority exercising the executive power may follow only if certain
contingencies have resulted. Such a situation would be only as an
interim or a stop gap arrangement, like a caretaker. The one who is
holding the position as caretaker cannot be heard to say that let
there not be a regular election, but a caretaker to remain in power
in succession or for indefinite period. If such an attempt is
countenanced by the Court, it would leave room to play fraud with
the democratic principles. The Court in the system of democracy
would be zealous to see that the democratic principles are upheld
and the power are to remain with those who are genuinely entitled to
hold due to the mandate of electorate concerned.
Thereafter,
the direction was given to hold the election within stipulated time
limit so as to see that the administration is assigned to the
elected body or the elected representative holding the mandate of
the voters and the power is not continued to be retained by the
executive fiat through the officers of the State Government. It has
been declared by Mr.Nanavati, learned Counsel for the petitioner
that view taken by this Court in Vithalbhai Hansrajbhai Radadiya
& Ors. v. State of Gujarat & Ors. (supra) is not
reversed by the Division Bench of this Court in LPA, except change
in the dates of election.
It
appears that the State Government or its officers are not desirous
to hold the election in view of the communication dated 1.9.2008.
Therefore, the matter can be considered at the later stage at the
time of final hearing.
Mr.Jani,
learned Counsel appearing for the applicant, vehemently contended
that on account of one reason or another, a stalemate has resulted
and, therefore, this Court may allow the Market Committee to take
policy decision and also for issuance of fresh licence. In
furtherance to his submission, he contended that there are number of
traders waiting for new licence and on account of the prohibitory
order against the policy decision, the construction of the Market
Committee is also put to a grinding halt and the contractor has
issued notice and, therefore, considering the facts and
circumstances, this Court may vacate the interim order.
As
such, as observed earlier, the Secretary of the market Committee is
not representing the Market Committee and as per the Scheme of the
Act the powers of the market Committee vest to the Administrator,
who did prefer the application for vacating the interim order by
preferring Civil Application No.895 of 2008, which, as observed
earlier, was not granted.
The
interim order, as such, though may not operate as res judicata, but
would bind the parties until final conclusion of the proceedings,
unless there are extraordinary change in circumstances, which may
require the Court to consider the matter afresh to avoid further
complication of the issues. When the question of bifurcation itself
is under challenge, by way of interim arrangement the Administrator
is assigned with the powers, but if he is prohibited from taking any
policy decision, the same would, otherwise also, be in the larger
interest of the Market committee and the reason being that if any
policy decision is taken and at the outcome in the main petition the
bifurcation is set aside by this Court, it would create an
irreversible situation and third party rights would be created.
Similarly, if the power is exercised for bifurcation of a Market
Committee, so as to create an artificial majority and thereby to
capture the powers, it would be unholy exercise of the powers on the
part of the authorities and also on the part of the Administrator,
who steps into the shoes of the elected body during the interregnum
period. The approach on the part of the Government not to agree for
election, but to insist for permitting policy decision and to assign
the power to the nominated body would run counter to the observance
of the principles of democracy in the local self-Government as
observed by this Court in the above referred decision. This would,
prima facie, show that the attempt is to retain the powers, may be
under the guise of the bifurcation of the Market Committee and to
assign the powers to the persons, who are having no mandate of the
voters, but may have support of the Government. Such an attempt
cannot be countenanced. Therefore, this Court at the time when
prohibited the grant of fresh licence, intended to maintain the
situation of no further creation of any artificial voters so as to
have reflection of the real will of the voters. Now, merely because
some new voters, may be supporting the bifurcation or otherwise,
have come forward for fresh licence would not be the ground for
conferring the power, which is expressly prohibited by the earlier
order. Not only that, but if the bifurcation is ultimately set
aside by this Court, further complication may arise in respect of
the licence granted to new persons and their status as voter at the
election of otherwise. Therefore, it is just and proper to
maintain the same situation by way of a stop-gap and temporary
arrangement, until final disposal of main petition.
Hence,
it would not be proper to vacate or modify the order. However,
considering the facts and circumstances, the main Special Civil
Application be listed for final hearing on 24th
September, 2008. The application is disposed of accordingly.
8.9.2008 (Jayant
Patel, J.)
vinod
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