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SCA/1226120/2008 1/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12261 of 2008
==========================================
GOPALBHAI
MUKUNDBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
==========================================
Appearance
:
MR DILIP B
RANA for Petitioner(s) : 1,
MR APOORVA DAVE,
AGP for Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) :
1 - 7.
MR VC VAGHELA for Respondent(s) :
2,
==========================================
CORAM
:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
and
HONOURABLE
MS. JUSTICE H.N.DEVANI
Date
: 15/10/2008
ORAL
ORDER
(Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH)
In
this petition under Article 226 of the Constitution, the petitioner,
a Director of Agricultural Produce Market Committee, Bodeli in Baroda
District, has challenged the order dated 26th September,
2008 of the State Government dismissing Revision Application No.144
of 2008 as not maintainable and has also challenged the Resolution
dated 07th July, 2008 of the Licence Sub-Committee of the
A.P.M.C. and the subsequent Resolution No.7 passed by the General
Body of the A.P.M.C. on 16th July, 2008 by which about 729
trader’s licences were granted. The challenge is made on the ground
that such a large number of licences were granted only to inflate the
voters’ list in the traders’ constituency and, therefore, the
decision was malafide and illegal.
2. Mr.
D.B. Rana, learned counsel for the petitioner has submitted that a
large number of applications were made to the A.P.M.C., Bodeli
between 01st and 5th July, 2008; the Licence
Sub-Committee recommended to grant 729 licences and the General Body
of the A.P.M.C. passed a resolution for granting 729 licences on 16th
July, 2008. On the very next day i.e. on 17th July,
2008. the order was issued by the Director of Agricultural Market and
Rural Finance for holding elections to A.P.M.C., Bodeli, and the
election programme was issued on 28th July, 2008. Hence,
such a large number of licences, on the eve of the order for holding
elections, was nothing but an attempt to subvert the election process
by inflating the list of voters which included a large number of
persons who are not really carrying on trading activities within the
A.P.M.C. area. Reliance is placed on the decision of this court
reported in 2007 (3) G.L.R. 1942 and unreported decision dated 15th
June, 2007 in Special Civil Application No.9601 of 2006.
3. It
is also submitted by Mr. Rana that the revisional authority erred in
holding that the petitioner had no locus standi or right to
challenge the resolution of the A.P.M.C.
4. In
response to the notice, affidavit-in-reply has been filed on behalf
of respondent no.2 Market Committee. The allegations made by the
petitioner are denied and it is pointed out that in the year
2007-2008, as many as 598 trader’s licences were granted. For the
year 2008-09, the first meeting of the Licence Sub-COmmittee was held
on 07th July, 2008 and, therefore, most of the trader’s
licences issued were by way of renewal and only about 130 more
licences were issued as compared to the last year. To show bona
fides of the Committee, it is also stated that even though 465
applications were received for such licences, at the meeting of the
A.P.M.C. held on 01st August, 2008, it was decided to
refuse grant of such licences as the election process had commenced.
It is also submitted by Mr. Vaghela for the Market Committee that the
election process had already commenced and, therefore, as per the
settled legal position, this court cannot interfere with the
election process at this stage.
5. Mr.
Apoorva Dave, learned AGP for respondents no.1 and 3 submits that the
revisional authority also could not have interfered with the election
process and, therefore, the revision was required to be dismissed.
It is also submitted that on merits also, the revisional authority
has considered the submissions and found that the 729 licences were
granted in accordance with the rules and the prescribed procedure.
6. We
have heard the learned counsel for the parties and have also gone
through the impugned order dated 26th September, 2008 of
the revisional authority. While the impugned order does state that
the licences were granted in accordance with the rules and after
following the procedure, the revisional authority has also expressed
the view that the revisional petitioner, who is also the petitioner
herein, is a Director of the Market Committee and had participated
in the meeting and, therefore, the petitioner has no locus standi
to challenge such resolution. It is not possible to accept the said
view of the revisional authority regarding the petitioner’s locus
standi. In this connection, reference made by learned counsel
for the Market Committee to the observations of the Apex Court in
Zoroastrian Co-operative Housing Society Ltd. and another vs.
District Registrar, Co-operative Societies (Urban) and others
[AIR 2005 SC 2306] is misconceived. Mr. Vaghela has
relied upon the following observations made in paragraph 12 of the
said decision:-
xxx
xxx In fact, the individual right of the member, respondent No.2,
has got submerged in the collective right of the Society.
7. The
observations made in a different context cannot be read in isolation.
The dispute in that case was about the right of a person to become a
member of a Co-operative Society. On the other hand, the grievance
of the petitioner herein was against the resolution of the Market
Committee for issuing a large number of licences. In this
connection, it is necessary to refer to the provisions of Section 27
of the A.P.M.C. Act. Sub-section (1) thereof confers powers on the
Market Committee to grant or renew a general licence to a trader etc.
to operate in the market area or part thereof and also confers on the
Committee the power to refuse to grant or renew any such licence
after recording its reasons. Sub-section (3) confers powers on the
Market Committee, for reasons to be recorded in writing, to suspend
or cancel a licence inter alia on the ground that the licence
was obtained through wilful misrepresentation or fraud. If such a
ground for cancellation or suspension of a licence is brought to the
notice of the Committee but the Committee does not take the necessary
action, the Director, AMRF can exercise the powers under sub-section
(4) and after giving a reasonable opportunity of hearing to the
holder of the licence and after recording reasons, the Director may
suspend or cancel any licence which was granted by the Market
Committee. Sub-section (5) provides that any person aggrieved by an
order refusing to grant or renew a licence or aggrieved by an order
of suspension or cancellation of licence, must appeal to the
Director, if such order was made by the Market Committee. The appeal
would lie to the State Government, if the order was made by the
Director. Section 48 confers powers on the State Government to call
for and examine the proceedings of the Director or of any Market
Committee for the purpose of satisfying itself as to the legality and
propriety of any decision or order passed by the Director or the
Market Committee.
8. In
the context of the aforesaid statutory scheme, when the petitioner,
in his capacity as a Director of the A.P.M.C., had raised objections
before the Election Officer, which were also brought to the notice of
the A.P.M.C., it was open to the A.P.M.C. to consider exercising
powers under sub-section (3) of Section 27. Since the Market
Committee did not consider exercising such powers under
sub-section(3), the Director could have been approached to exercise
the powers under sub-section (4) for cancellation of the licence.
However, it can not be said that a Director of the Market Committee
cannot challenge a decision of the Market Committee not taking action
under Section 27(3). Hence, the order dated 26th
September, 2008 of the revisional authority is set aside.
9. In
the facts and circumstances of the case, since the election process
has already commenced and the date of polling is stated to be 24th
October, 2008, all that can be done at this stage in the facts of the
present case is to relegate the petitioner to the alternative remedy
of moving the Director under sub-section (4) of Section 27 of the Act
and the Director or the Deputy Director, exercising the powers under
sub-section (4) of Section 27, shall hear and decide the matter
expeditiously and on merits without being influenced by any
observations made by the revisional authority in the impugned order
dated 26th September, 2008, which is set aside as
aforesaid.
However,
looking to the paucity of time, it would be appropriate to direct
that if the petitioner moves the Director/Deputy Director under
Section 27(4) of the Act, the said authority shall examine the
grievance only regarding issuance of fresh licences for the year
2008-09 which were granted on 07th/16th July,
2008. The renewal of licences will not be the subject matter of such
inquiry.
10. Looking
to the fact that the polling is scheduled to take place on 24th
October, 2008, if the petitioner makes such an application before the
Director/Deputy Director of A.P.M.C. by 17th October,
2008, the authority shall examine and decide the matter by 23rd
October, 2008 for which purpose, the A.P.M.C. will make available all
the relevant record regarding issuance of fresh licences (not
renewal of licences) for the year 2008-09 before the Director/Deputy
Director of AMRF on 18th October, 2008.
11. It
is clarified that the Director/Deputy Director exercising powers
under sub-section (4) of Section 27 will be free to decide the
question of legality or otherwise of grant of fresh licences on
07th/16th July, 2008 without being inhibited by
the fact that the election process has already commenced. If it is
found that the grant of fresh licences on 07th/16th
July, 2008 was not in accordance with law, such licence holders shall
not be permitted to vote/participate in the election scheduled to be
held on 24th October, 2008.
12. Subject
to the aforesaid observations, this petition is disposed of
accordingly.
13. A
copy of the order shall be made available to the learned AGP and also
to Mr. Vaghela for the A.P.M.C., Bodeli for timely compliance with
the directions.
Direct
Service is permitted.
(
Mohit S. Shah, J. )
(
Harsha Devani, J. )
hki
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