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LPA/716/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 716 of 2008
In
SPECIAL
CIVIL APPLICATION No. 8925 of 2008
With
CIVIL
APPLICATION No. 8039 of 2008
In
LETTERS PATENT APPEAL No. 716 of 2008
======================================
JAYSINH
RADHAKISHAN TANVAR - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
======================================
Appearance
:
MR BC DAVE for Appellant : 1,MR
KUNAL B DAVE for Appellant : 1,
None for Respondent(s) : 1 -
2.
======================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE MR. M.S.SHAH
and
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 16/07/2008
ORAL
ORDER
(Per
: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH)
In
this appeal under section 15 of the Letters Patent, the original
petitioner has challenged the judgment dated 04.07.2008 of learned
single Judge rejecting the petition which was filed against
notification dated 23.6.2008 of the State Government nominating a
councillor of Idar Municipality on the Agricultural Produce Market
Committee (APMC), Idar.
2. The
petitioner was elected as a member of Idar Municipality in the year
2003. As a councillor of Idar Municipality, the petitioner was
nominated by the municipality to be a member of APMC, Idar, on
15.3.2007. Thereafter, the term of the municipality came to an end on
11.3.2008 by efflux of time. In the election of the new body, the
petitioner was re-elected.
3. By
letter dated 26.5.2008, the APMC requested Idar Municipality to
nominate a councillor on APMC, Idar as required under the provisions
of section 11 (1) (iv) of the Gujarat Agricultural Produce Market
Act, 1963 [“the Act” for short].
4. The
municipality passed a resolution nominating another councillor. On
the basis of said resolution of the municipality, the State
Government issued the impugned notification dated 23.6.2008
nominating the other councillor on APMC, Idar. The petitioner
challenged the said notification by moving a petition before the
learned single Judge. That petition came to be rejected. Hence, this
appeal.
5. The
petitioner’s submission before the learned single Judge, which is
also reiterated before us, was that the term of Idar Municipality was
to come to an end on 11.3.2008 and, before that, new body was elected
in its meeting held on 05.3.2008; hence there was no interruption in
the petitioner’s holding the office of councillor of Idar
Municipality. Learned single Judge rejected that contention by
holding that, in the eye of law, there existed two different bodies
at two different times and, therefore, the nomination made by the
municipality, whose term expired on 11.3.2008, would not continue
after the new body came into existence on 05.3.2008. Learned single
Judge also relied upon the decision of Division Bench of this Court
in Agricultural Produce Market Committee, Unjha v. Patel
Jayantilal Purshottamdas & others reported in 2002 (1) GLR 924,
wherein the following observations were made:
“10. As the facts stated
above, the appellant was nominated by the erstwhile Municipal Council
whose term expired and thereupon, the appellant’s status as a
councillor ceased. An Administrator was thereafter appointed and in
the fresh election, the appellant has been re-elected, but as an
effect of sec.14 (1)(iii), on expiry of the term of erstwhile
council, the appellant’s status as a Municipal Councillor ceased. As
an effect of sec.14 (1) (iii), his nomination qua councillor ceased.
His re-election would not revive his nomination. The newly elected
Municipal Council has not sent him as a nominee to the Market
Committee. The proviso to sec. 11 (1) (iv) very clearly provides that
on the appointment of Administrator, all elected members shall vacate
their office….”
6. Mr.B.C.Dave, learned counsel for the appellant,
submits that, in the said decision, an Administrator was appointed so
as to interrupt continuity of that petitioner holding the office of
councillor of municipality. But, in the instant case, no
Administrator was ever appointed and the petitioner throughout
continued to be a councillor. Mr.Dave also submits that, under
section 11 (4) (a), the term of office of a market committee shall be
four years from the date of its first general meeting and, therefore
also, the petitioner is entitled to continue to be a member of APMC
for four years.
7. Section 11 (1) (iv) of the Act provides that, every
market committee shall consist of, inter alia, one member to
be nominated by the local authority within whose jurisdiction the
principal market yard is situated, from amongst its councillors, who
do not hold any general licence. Section (1) (iii) provides that, a
nominated member shall cease to hold office of APMC as such member,
if he being a member nominated by a local authority, ceases to be a
councillor of the local authority. We are in agreement with the view
taken by the learned single Judge that, once the term of the
municipality came to an end upon newly elected body holding the
meeting on 05.3.2008, the petitioner ceased to be a member nominated
by Idar Municipality.
8. In any view of the matter, the petitioner was
nominated by Idar Municipality. As per the provisions of section 16
of the Bombay General Clauses Act, 1904, the authority having powers
to make the appointment shall also have power to suspend or dismiss.
Similarly, as per section 16 of the General Clauses Act, 1897, power
to appoint includes power to terminate. The petitioner having been
nominated by the municipality as its representative from APMC, Idar,
the municipality had full power to nominate another councillor in
place of the petitioner. Therefore also, the petitioner has no right
to continue to be a member of APMC, Idar by virtue of his being a
councillor who was previously nominated in March, 2007.
9. Learned counsel Mr.Dave’s contention was also that,
under sub-section (2) of section 14 of the Act, it is only the
Director of Agricultural Produce Market Committee who has the
jurisdiction to determine whether any member ceases to hold office
under sub-section (1) of section 14. In view of the above reasoning
that municipality has power to nominate its representative on the
APMC and that such power to nominate also includes power to change
the representative, we do not find it necessary to examine the
submission of Mr.Dave for the appellant.
10. In view of the above discussion, we see no merit in
the appeal. The appeal is, therefore dismissed.
11. The Civil Application is also dismissed in view of
disposal of the appeal.
Sd/-
(
M.S.Shah, Actg.C.J.)
Sd/-
(
D.H.Waghela, J.)
(KMG
Thilake)
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