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SCA/4132/2010 12/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4132 of 2010
=====================================================
AGRICULTURE
PRODUCE MARKET COMMITTEE & 1 - Petitioner(s)
Versus
DEPUTY
SECRETARY(APPEALS) AGRICULTURE & CO OPERATION DEP & 3 -
Respondent(s)
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Appearance :
Mr.Mihir
Joshi,learned Senior Advocate with MR Dipan A
Desai for Petitioner(s) : 1 - 2.
Mr.Himanshu K.Patel,learned
ASST.GOVERNMENT PLEADER for Respondents Nos.1,3 and 4
MR
VC VAGHELA for Respondent(s) :
2,
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 07/04/2010
ORAL
ORDER
1. This
petition challenges order dated 31-3-2010 passed by respondent No.1
in Revision Application No.85 of 2010 whereby Resolution No.2 dated
27-2-2010, passed by the Licence Sub-Committee (petitioner No.2) of
petitioner No.1 Agricultural Produce Market Committee, Junagadh,
granting/renewing 294 licences,has been stayed.
2. Mr.Mihir
Joshi,learned Senior Advocate with Mr.Dipan A.Desai,learned counsel
for the petitioners has submitted that the impugned order passed by
respondent No.1 is illegal,arbitrary and contrary to the settled
position of law inasmuch as, the authority has stayed the Resolution
of the petitioner No.2-Sub-Committee without recording any finding to
the effect that the petitioners have no prima facie case in their
favour or that the said licences have been granted with a view to
inflate the voters’ list. Further, the impugned order does not
contain any finding to the effect that a procedural breach or
illegality has been committed by the petitioner No.2 while
granting/renewing the said licences. It is contended by the learned
Senior Advocate, that there is no finding on merits in the impugned
order regarding grant/renewal of licences, which would go to show
that the petitioners do not have a prima facie case, but even in the
absence of such a finding the authority has thought it fit to stay
the Resolution granting licences to 294 persons.
2.1 The
learned Senior Advocate has further contended that the impugned order
has been passed in purported reliance upon the judgment of a Division
Bench of this Court, in Shrutbandhu H.Popat v. State of Gujarat,
reported in 2007(3)
GLR 1942, without taking
into consideration that the ratio of the said judgment turns upon the
peculiar facts of that case. Even otherwise, it is not disputed that
the Court has held in the said judgment, that licences could not have
been granted after the date of declaration of elections. In the
present case, as is evident from communication dated 26-2-2010 of the
Director, Agriculture Marketing and Rural Finance ( Director,AMRF
for short) to the Chairman/Secretary of petitioner No.1-Agriculture
Produce Market Committee, the date of declaration of elections is
3-3-2010, which is further fortified by the Election Programme issued
by the Director, AMRF, annexed as Annexure F collectively,
wherein the date of declaration of elections is stated to be
3-3-2010. The learned Senior Advocate has urged that it cannot,
therefore, be contended by the respondents, that the Resolution No.2
passed on 27-2-2010, has been passed after the date of declaration of
elections. The learned counsel for the petitioners has urged that
the judgment in Shrutbandhu H.Popat v. State of
Gujarat(Supra) has been misread
and misapplied in a mechanical manner by the Authority passing the
impugned order,without taking into consideration
the facts of the present case.
2.2 It
is further contended on behalf of the petitioners, that in the
Revision Application filed by respondent No.2, there is no specific
allegation that the petitioners have deliberately issued licences in
a fraudulent manner, with a view to inflate the voters’ list and
even otherwise, such a contention could only have been examined at
the time of final hearing of the Revision Application, after looking
into the material on record.
2.3 The
learned Senior Advocate has contended that the notice of the
Revision Application was issued to the petitioners on 19-3-2010 and
the next date of hearing was fixed on 23-3-2010. On that date the
advocate for the petitioner No.1-Market Committee filed his
appearance and sought time to file a reply. The matter was kept on
30-3-2010, on which date the reply was filed, but as the regular
Deputy Secretary was not available, the hearing was kept on
31-3-2010. However,on 31-3-2010 as well, the regular Deputy
Secretary was not available, and as the petitioner No.1-Market
Committee was under the impression
that the matter would not be proceeded with,the record was not kept
present. However, the Incharge Deputy Secretary not only heard the
matter on 31-3-2010, but also refused to grant a day’s adjournment
for production of the record,on the prayer of the petitioner
No.1-Market Committee. It is in the above circumstances that the
impugned order has been passed on 31-3-2010 in hot haste, after
office hours at about 7.30 PM to 8.0 PM. The learned counsel for the
petitioners has further submitted that respondent No.2, who has filed
the Revision Application, has not joined the persons who have been
granted licences by Resolution No.2 as parties to the Revision
Application even though they are directly and adversely affected, and
the impugned order has been passed behind their backs. Even though
this objection was taken before the revisional Authority, the same
was not considered and the order staying the Resolution has been
passed first,and thereafter a direction has been given to join the
persons who have been granted licences by the petitioner No.1-Market
Committee. The respondent No.2 has been directed to do so by
publication of a notice in two leading daily newspapers. However,
till date the affected
persons have not been joined and the notices published by respondent
No.2 only state that persons who are interested in the litigation may
apply for being joined,before 9-4-2010, which is the date on which
the hearing of the Revision Application has been kept. The learned
Senior Advocate has forcefully contended that by passing the
impugned order without hearing the affected parties, the respondent
No.1 has adopted a procedure unknown to law and has committed a
serious breach of the principles of natural justice. Not only that,
but even one day’s adjournment for production of the record has not
been granted, though one of the grounds for passing impugned order is
that the record is not available for scrutiny.
2.4 It
is further submitted by the learned Senior Advocate that respondent
No.2 has filed the Revision Application under the provisions of
Section 48 of the Gujarat Agricultural Produce Markets Act,1963 ( the
Act for short) whereas the remedy lies under Section 27 of the
Act in view of the judgment in Shrutbandhu H.Popat v. State
of Gujarat (Supra).
2.5 It
is, therefore, submitted that on the above grounds, the petition may
be admitted, and the impugned order stayed.
3. The
admission of the petition and grant of interim relief has been
strongly opposed by Mr.V.C.Vaghela, learned counsel for respondent
No.2. It is submitted by him that there is a tendency in the State
of Gujarat that on the eve of elections,a large number of licences
are granted to persons by Agriculture Produce Market Committees in
order to inflate the voters’ list, so that the other persons do not
get sufficient time to challenge the grant of licences. In the
present case, 294 licences have been granted by Resolution No.2
dated 27-2-2010 by petitioner No.2-Sub-committee of petitioner
No.1-Market Committee, in order to inflate the voters’ list in a mala
fide manner.
3.1 It
is further submitted that under the provisions of Section 48 of the
Act, the State Government has wide powers and any Resolution of an
Agriculture Produce Market Committee can be challenged. As respondent
No.2 has challenged the Resolution
of the petitioner No.1-Market Committee, there is no need to join the
persons who have been granted licences as the Market Committee has
been joined. It is contended by Mr.V.C.Vaghela that even otherwise,
respondent No.2 does not know the names or addresses of the persons
who have been granted licences, as those are not mentioned in the
Resolution,therefore, it is not possible to join them as parties to
the Revision Application. It is further submitted that now, two
notices have been published in two leading daily newspapers on
2-4-2010, and all persons who are interested in the litigation have
been asked to make applications for joining as parties in the
Revision Application, before 9-4-2010.
3.2 The
learned counsel for respondent No.2 has further submitted that the
communication dated 26-2-2010 of the Director,AMRF to the petitioner
No.1-Market Committee, whereby the proposed Election Programme has
been communicated, should be taken to be the date of declaration of
elections and in that view of the matter, Resolution No.2, which
has been passed on 27-2-2010, is after the date of declaration.
It is emphasised by the learned counsel for respondent No.2 that
communication dated 26-2-2010 by which the proposed Election
Programme has been communicated,has rightly been considered to be the
date of declaration of election,therefore, the stay granted by
respondent No.1 by passing the impugned order is perfectly legal and
valid.
3.3 The
learned counsel for respondent No.2 has further submitted that it
was known to the petitioner No.1-Market Committee that the record was
to be kept ready, as this aspect was communicated to it on 19-3-2010,
on which date notice was issued, therefore, it cannot be said that
even one day’s time was not given for production of the record. In
fact, the petitioners have deliberately not kept the record ready.
3.4 Even
though respondent No.2 has issued a public notice in two newspapers,
the petitioners may be directed to provide a list of the persons who
have been granted licences,if the Court comes to the conclusion that
the said persons ought to be joined, and the same can be done by
9-4-2010, which is the next
date of hearing.
3.5 It
is further contended that the affected persons have not approached
the Court or made any grievance and it is only the petitioner
No.1-Market Committee and petitioner No.2-Sub-Committee, who have
filed the petition and raised such a grievance,therefore, for the
above reasons,the petition may not be admitted or interim relief
granted.
4. Mr.Himanshu
K.Patel,learned Assistant Government Pleader appearing for
respondents Nos.1,3 and 4 has supported the stand taken by the
learned counsel for respondent No.2 by submitting that, in spite of
notice dated 19-3-2010 informing the petitioner-Market Committee to
keep the record present on the next date of hearing, the same was not
kept present and the observation to this effect in the impugned order
is,therefore, perfectly justified. It cannot be said that even one
day’s time was refused by respondent No.1-authority to produce the
record as the petitioner-Market Committee was aware that it was
summoned.
4.1 It
is further submitted by the learned Assistant Government Pleader that
under Section 48 of the Act, the State Government has wide powers and
by invoking such powers, the authority has rightly passed the
impugned order, as the petitioners have obviously issued licences
with the sole intention of inflating the Voters’ list. The learned
Assistant Government Pleader has submitted that the hearing of the
Revision Application has been fixed for 9-4-2010 and as the impugned
order is of an interim nature, the court may not interfere.
5. Several
detailed and elaborate contentions have been raised by the learned
counsel for the respective parties, touching upon the merits of the
case,which are not being dealt with at the stage of admission.
6. Having
heard the learned counsel for the respective parties, perused the
averments made in the petition, contents of the impugned order and
other documents on record, the following undisputed aspects emerge
for consideration:
(a) Respondent
No.2 has filed Revision Application No.85 of 2010, which is pending.
(b) The
impugned order has been passed on an application for stay of
Resolution No.2, dated 27-2-2010, passed by the Licence Sub-Committee
of petitioner No.1-Market Committee.
(c) The
persons to whom licences have been granted/renewed, have not been
made parties to the Revision Application and the impugned order
staying the Resolution vide which such licences were granted has been
stayed.
(d) Though
it is submitted by the learned counsel for respondent No.2 that the
names and addresses of the grantees of the licences could not be
ascertained, it is, however, admitted that respondent No.2 has not
asked the petitioners to supply the said particulars.
(e) While
passing the impugned order, staying the Resolution in question, and
after granting the stay, respondent No.1-Authority has directed
respondent No.2 to issue notices and take steps to join the persons
who have been granted licences by petitioner No.1-Market Committee,
before 9-4-2010.
(f)
Copies of the notices dated 2-4-2010 published in two newspapers i.e.
Nobat and Divya Bhaskar,respectively, are produced by the learned
counsel for respondent No.2 and are taken on record. The said public
notices state that persons who are interested in the litigation may
apply for joining as parties, before 9-4-2010.
(g) Communication
dated 26-2-2010 informs the petitioner No.1-Market Committee
regarding the proposed Election Programme, which is to come into
effect from 3-3-2010.
(h) The
Election Programme annexed at running page 82 states, apart from
other dates mentioned therein, that the date of declaration of
election is 3-3-2010, the elections are to be held on 30-5-2010 and
counting is on 31-5-2010.
7. Considering
the above aspects, the submissions advanced by the learned counsel
for the respective parties, and in light of the material on record,
prima facie, it emerges that the petitioners have made
out a case for admission of the petition and grant of interim relief.
8. Hence,Rule
is issued,making it returnable on 13-4-2010. Mr.V.C.Vaghela,learned
counsel, waives service of notice of Rule for respondent No.2.
Interim relief in terms of paragraph 6(b) is granted, till then. In
addition to the normal mode of service,direct service, qua the rest
of the respondents,is also permitted.
It
is open to respondent No.2 to take steps for joining the affected
parties i.e. persons to whom licences have been granted by
Resolution No.2 dated 27-2-2010,as expeditiously as possible, to
ensure that the election schedule, including publication of the
final Voters’ list, is not disturbed. Looking
to the issues involved in the petition, and with the co-operation of
the learned counsel for the respective parties, the matter can be
heard and finally decided on the next date of hearing.
(Smt.Abhilasha Kumari,J)
arg
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