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2001 DIGILAW 734 (GUJ)

VARVABHAI NATHABHAI RABARI v. STATE

2001-10-04

D.M.DHARMADHIKARI, RAVI R.TRIPATHI

body2001
RAVI R. TRIPATHI, J. ( 1 ) THE present Letters Patent Appeal is filed by one Varvabhai Nathabhai Rabari, who was the Chairman of the Agricultural Produce Market Committee, Patan, and 10 others, who are the members of the Agricultural Produce Market Committee. The Letters Patent Appeal is filed being aggrieved of the order passed by the learned Single Judge dated 11th September, 2001, whereby the learned Single Judge has admitted the petition, but, has refused to grant the interim relief. ( 2 ) THE learned Advocate appearing for the appellant assailed the order on the ground that the learned Single Judge has refused the interim relief without assigning any reasons for the same. It was also contended by the learned Advocate appearing for the appellants that the order dated 13th/18th August, 2001 produced at Annexure-A to the petition is required to be quashed and set aside and the petitioners, appellants herein, are required to be restored as the members of Patan Agricultural Produce Market Committee. The learned Advocate submitted that the learned Single Judge ought to have examined the prima facie case and should have taken into consideration the fact that the supersession order of the Market Committee which is purported to have been based on the report of the inquiry conducted under section 44 of the Agricultural Produce Markets Act, 1963 (hereinafter referred to as "the Act"), but, the inquiry report itself suggested that action under section 46 is not desirable. ( 3 ) AFTER the matter was heard for some time, the Court conveyed to the learned Advocate that the scope of Letters Patent Appeal is limited as the present appeal is filed only against an interim order, refusing grant of interim relief. Further, in view of the fact that the petition is admitted and Rule is made returnable on 25th October, 2001, this Court is not inclined to interfere with the order of the learned Single Judge. The learned Advocate for the appellant insisted that as the appellants have a strong prima facie case and therefore, this Court should examine the entire matter on merits even though the appeal is filed against an interim order only. ( 4 ) THE learned Advocate for the appellants placed reliance on a judgement of the Bombay High Court in the matter of Narayandas Jaskaranji Rathi and Ors. vs. The State of Maharashtra and another reported in 1981 Bom. ( 4 ) THE learned Advocate for the appellants placed reliance on a judgement of the Bombay High Court in the matter of Narayandas Jaskaranji Rathi and Ors. vs. The State of Maharashtra and another reported in 1981 Bom. C. R 508. The learned Advocate submitted that in the matter before the Bombay High Court, show cause notice dated 12th August, 1980 was challenged and the Bombay High Court was pleased to entertain the petition and quash the said show cause notice. It was also submitted by the learned Advocate for the appellants that the facts of the case before the Bombay High Court and the case on hand are similar and therefore, this Court should follow the decision of the High Court of Bombay and consequently, the result should also follow. The learned Advocate for the appellants submitted that in the case before the Bombay High Court, the authorities had issued a show cause notice to the elected councillors of the Municipal Corporation of the City of Solapur under section 452 of the Bombay Provincial Municipal Corporation Act, 1949, which is more or less on the same line of section 46 of the Gujarat Agricultural Produce Markets Act, 1963. The learned counsel also submitted that in the case before the Bombay High Court, the instances which were relied upon for issuance of the show cause notice under section 452 of the Bombay Provincial Municipal Corporation Act are set out in paragraph 3 of the judgement and those instances are of much grave nature than the instances on which, in the present case, the respondents authorities have acted upon. ( 5 ) THE learned Advocate appearing for the appellant submitted that the learned Single Judge ought to have appreciated that though the Director and Deputy Director of Agricultural Marketing and Rural Finance were restrained by this Court by an order dated 16/6/2001 in Special Civil Application No. 3433 of 2001 (Coram : Mr. Justice P. B. Majmudar) from superceding the market committee, the State Government has overreached the process of the Court as the Government has not acted in accordance with the order of this Court. He vehemently submitted that on that ground alone, the interim relief of restoring the elected body of the market committee in the management committee was required to be granted. He vehemently submitted that on that ground alone, the interim relief of restoring the elected body of the market committee in the management committee was required to be granted. ( 6 ) THE learned Advocate appearing for the appellant also submitted that the learned Single Judge ought to have held that the order of supersession is penal in nature and casts stigma on the elected members of the market committee which is established to run the institution in a democratic manner. He further submitted that the elected representatives are entitled to take decision to run the administration, but, only because the decision taken by these representatives in their wisdom is not liked by the Government and about which two opinions are reasonably possible, the Market Committee is not liable to be superceded. In that view of the matter, the order of the Government was ex facie bad and interim relief was required to be granted so as to see that the elected representatives are not thrown out of their office at the whims of the Government. ( 7 ) THE learned Advocate for the appellant also pressed in service the contents of ground (G) of the appeal memo wherein it is stated that the State Government has passed an order under political pressure in view of the fact that the petitioner no. 1, who was the Chairman of the Agricultural Produce Market Committee, Patan, had withdrawn the nomination paper filled in from Patan Constituency for the election of Mehsana District Central Cooperative Bank in favour of one Shri Dahyabhai Pitambar Patel, who is the supporter of Shri Atmaram Patel, who is not liked by the party in power in the State Government. He emphasised that the said election was held on 10th August, 2001 and the order was passed on 13th/18th August, 2001. He further submitted that on these facts, the learned Single Judge ought to have held that the order in question is vitiated by mala fides and the interests of the petitioners, appellants herein, are required to be protected by granting interim relief. He further submitted that on these facts, the learned Single Judge ought to have held that the order in question is vitiated by mala fides and the interests of the petitioners, appellants herein, are required to be protected by granting interim relief. ( 8 ) THIS Court called upon the learned Additional Advocate General on behalf of the respondents to address the Court on the question as to whether in an appeal filed against an interim order, the learned Advocate for the appellants can insist for hearing of the matter on merits, more particularly, in view of the fact that the petition is admitted and Rule is made returnable on 25th October, 2001 and the appeal is necessarily filed against an order refusal the interim relief. ( 9 ) MR. Kamal B. Trivedi, learned Additional Advocate General, submitted that it is the consistent practise of this Court as well as that of the Apex Court that an appeal against an interim order is not to be entertained. He submitted that there is no question of hearing such appeal on the merits of the main matter. The learned Additional Advocate General relied upon a judgement of the Apex Court in the matter of State of Uttar Pradesh and others vs. Visheshwar reported in 1995 Supp. (3) SCC 590. The Apex Court has observed as under in paragraphs 2 and 3 :"this appeal is against an interim order by which the writ petitioner, Visheshwar (respondent herein) has been directed to be confirmed on the post on Forest Guard and there is also direction to pay him salary of a regular employee holding that post. The Main question for decision in the writ petition before the High Court is the status of the writ petitioner on the basis of his claim to the post of Forest Guard, which is yet to be adjudicated. By the interim order, the High Court has actually granted the final relief itself without adjudication on the point in controversy on which the grant of that relief depends. In these circumstances, granting of the final relief in the form of interim relief was wholly unwarranted. The impugned order dated 1/11/1993 has therefore to be set aside. By the interim order, the High Court has actually granted the final relief itself without adjudication on the point in controversy on which the grant of that relief depends. In these circumstances, granting of the final relief in the form of interim relief was wholly unwarranted. The impugned order dated 1/11/1993 has therefore to be set aside. The question of grant of relief claimed in the writ petition would be considered on its merits by the High Court and that relief to which the writ petitioner is found to be entitled may be granted at the time of decision of the writ petition. No such interim order of the kind which has been made is called for. " ( 10 ) THE learned Additional Advocate General submitted that in the present case, main relief sought for in the petition is in paragraph-6 (A), while interim relief is prayed in paragraph-6 (B ). Both these prayers read as under :"6 (A) The Honourable Court be pleased to issue a writ of mandamus or writ in nature of mandamus or writ of prohibition or writ in nature of Prohibition or any other appropriate writ or order or direction quashing and setting aside the order dated 13th/18th August, 2001, at Annexure-A to the petition and be pleased to restore the petitioners as the members of Patan Agriculture Produce Market Committee. 6 (B) Pending the final hearing and disposal of the petition, the Honourable Court be pleased to stay the execution and operation of order dated 13/18. 8. 2001 and be pleased to restore the petitioners as members of Patan Agriculture Produce Market Committee. "he emphatically submitted that grant of interim relief would have left nothing further to grant at the time of final disposal and it would have amounted to allowing of the petition at this stage itself. He submitted that, the Apex Court in the case of State of Uttar Pradesh Vs. Visheshwar (supra) has observed that, "by the interim order, the High Court has actually granted the final relief itself without an adjudication on the point in controversy on which the grant of that relief depends. In these circumstances, granting of the final relief in the form of interim relief was wholly unwarranted. Visheshwar (supra) has observed that, "by the interim order, the High Court has actually granted the final relief itself without an adjudication on the point in controversy on which the grant of that relief depends. In these circumstances, granting of the final relief in the form of interim relief was wholly unwarranted. " ( 11 ) HE submitted that in the case on hand, there are serious allegations against the Agricultural Produce Market Committee, which are set out in the order under challenge dated 13th/18th August, 2001, (Annexure-A to the petition ). In such a case, to restore the committee by an interim order would be nothing, but, total miscarriage of justice. He submitted that the respondents are yet to file their detailed affidavits against the averments made in the petition. The Court is yet to adjudicate finally on the issues involved in the petition and in such circumstances, to grant interim relief which amounts to granting of the final relief is never the practise of this Court. Such grant of interim relief which may amount to granting of final relief is always adversely commented upon by the Apex Court. ( 12 ) THE learned Additional Advocate General also relied upon a judgement of the Apex Court in the matter between P. R. Sinha and others vs. Inder Krishan Raina and others, reported in (1996) 1 SCC 681 . In this case, an appeal was filed by the appellant before the Apex Court against an order dated 4/12/1990 passed by the learned Judge of Jammu and Kashmir High Court directing the appellants to implement the order dated 27/8/1990 passed by the said High Court. By an order dated 27/8/1990, the High Court while admitting the writ petition passed an ex parte ad interim order saying that,"in the meantime, respondents of the said writ petition shall release the coal to the writ petitioners for which they have received the payment. "this ex parte order was sought to be implemented by the order under challenge before the Supreme Court (Dated 4/12/1990 ). The High Court by the impugned order directed that the order dated 28/7/1990 must be implemented within two weeks and the contempt petition along with writ petition was ordered to be listed on 23/12/1990. "this ex parte order was sought to be implemented by the order under challenge before the Supreme Court (Dated 4/12/1990 ). The High Court by the impugned order directed that the order dated 28/7/1990 must be implemented within two weeks and the contempt petition along with writ petition was ordered to be listed on 23/12/1990. At that stage, the parties approached the Apex Court by filing Special Leave Petition on which the Apex Court issued notice and passed an order staying further proceedings before the High Court. The observations of the Apex Court in paragraph 6 are of direct relevance to the case on hand, which reads as under :"6. THIS Court has pointed out repeatedly that while entertaining the writ petition, the High Court should not pass interim order, the nature of which is to grant a relief which can be granted only at the final disposal of such a writ petition. Reference in this connection may be made to the case of State of Jammu and Kashmir vs. Mohammad Yaqoob Khan". The Apex Court was pleased to set aside the order dated 4/12/1990 and requested the High Court to first consider the application for modification filed on behalf of the appellants and thereafter, pass any other appropriate order in accordance with law. ( 13 ) THE learned Additional Advocate General submitted that there are number of other decisions of the Apex Court which enumerate the same principle. The learned Additional Advocate General also cited a decision of the Apex Court in the matter between Council for Indian School Certificate Examination vs. Isha Mittal and another, reported at (2000) 7 SCC 521 , wherein the Apex Court observed as under in paragraph 4. ". . . . . . . CONSIDERATIONS of equity cannot prevail and do not permit a High Court to pass an order contrary to law. " ( 14 ) THE learned Additional Advocate General placed reliance upon an order of this Court in Letters Patent Appeal No. 331 of 2000 in Special Civil Application No. 7935 of 2000 (Coram : Chief Justice Mr. D. M. Dharmadhikari and Mr. Justice J. M. Panchal) dated 26th July, 2000, wherein the Court observed that, "after hearing the learned counsel for the petitioner, we do not think it proper to interfere with the interim order of the learned Single Judge at this stage. D. M. Dharmadhikari and Mr. Justice J. M. Panchal) dated 26th July, 2000, wherein the Court observed that, "after hearing the learned counsel for the petitioner, we do not think it proper to interfere with the interim order of the learned Single Judge at this stage. The prayer for interim relief or grant of stay of the order of supersession cannot be held to have been wrongly refused. There is no scope of interference by us in the same". ( 15 ) THE learned Additional Advocate General relied upon various other judgements of the Apex Court, which are as under : (I) air 1980 SC 1992 (Kasturi Lal Lakshmi Reddy vs. State of Jammu and Kashmir and Anr.) (II) air 1986 SC 1003 , (Brij Bhushan and Anr. etc. , vs. State of Jammu and Kashmir and Ors.) (III) air 1995 SC 1368 , (Bank of Maharashtra vs. Race Shipping and Transport Co. Pvt. Ltd. and Anr.) (IV) air 1998 (1) SCC 640 , (State of U. P. vs. State of Nagaland and Ors.) (V) 1998-1 (39) GLR 90, (Jamnagar-Rajkot Gramin Bank Officers Association vs. Jamnagar-Rajkot Gramin Bank) (VI) 1995 (1) GLH 345 (M/s. Anup Engineering Ltd. vs. Shreenarayan Kanaiyalal) ( 16 ) WE do not propose to reiterate the facts of all the aforesaid cases, but, the fact remains that it is a settled legal position that the Court shall restrain itself from interfering with the interim orders, more particularly, in intra court appeals. We are fortified in our opinion from various judgements of the Apex Court. ( 17 ) IN view of the aforesaid discussion, we do not find any merits in the present Letters Patent Appeal and therefore, the same is dismissed. ( 18 ) IN view of the aforesaid order in the main Letters Patent Appeal, there shall be no order on Civil Application No. 10168 of 2001. .