Desai Govindbhai Shivlal v. State of Gujarat Through Secretary
2009-10-09
AKIL KURESHI, K.S.RADHAKRISHNAN
body2009
DigiLaw.ai
Judgment Akil Kureshi, J.—This appeal is directed against the judgment of the learned single Judge dated 13.01.2009 by which the petition of the present appellant came to be dismissed. 2. The petitioner is a Councilor of Godal Municipality. Gondal Municipality by passing a resolution nominated the petitioner as Member in Agricultural Produce Market Committee (APMC), Gondal in April 2008. On 16th October 2008, however, Gondal Municipality passed a fresh resolution withdrawing the nomination of the petitioner as Member of the APMC, Gondal and instead nominated one Jayantibhai Kalidasbhai in his place as Member of the APMC. On 8.12.08, APMC circulated names of elected as well as nominated members which did not contain the name of the petitioner. He, therefore, approached this Court praying, inter alia, for a declaration that the Director of Agriculture Marketing and Rural Finance had no authority to delete the name of the petitioner from the earlier notification showing him as Member of the APMC. He also prayed for a declaration that he should be permitted to continue as Member of APMC till the term expires as provided under Section 11(4)(b) of the Gujarat Agricultural Produce Market Act, 1963 (Act for short). 3. Learned Single Judge dismissed the petition by the impugned judgment. The petitioner has therefore filed the present Letters Patent Appeal challenging the said order. 4. Appearing before us, learned Senior Advocate Shri Vakharia pointed out that the resolution of the Municipality withdrawing the nomination of the petitioner as member of the APMC was challenged before the Collector, Rajkot, who however, rejected the application of the petitioner. Against the said order, revision application is pending before higher authority. However, in the present litigation, the contention of the petitioner is that even if the nomination was withdrawn by the Municipality, term of office of the petitioner as Member of the APMC could not have been curtailed unless grounds stated in Section 14 of the Act were made out. He contended that once a resolution nominating the petitioner was passed, membership of the petitioner could not have been terminated otherwise than on the grounds mentioned in Section 14 of the Act. 5.
He contended that once a resolution nominating the petitioner was passed, membership of the petitioner could not have been terminated otherwise than on the grounds mentioned in Section 14 of the Act. 5. He relied on a judgment of the Apex Court in the case of Union Bank of India vs. Shardindu, (2007) 6 SCC 276 wherein the Supreme Court in relation to the post of Charmain of National Council for Teachers Education observed that under Article 310 of the Constitution, doctrine of pleasure is not absolute and is subject to statutory rules of appointment. The decision, however, pertained to public post. 6. On the other hand, learned advocate Shri P.K. Jani appearing for the Municipality opposed the appeal and supported the decision of the learned single Judge. He contended that through a valid resolution, the Municipality withdrew the nomination of the petitioner. He submitted that the Municipality had ample power and authority to do so and this Court in exercise of writ jurisdiction would not question the reason for passing such resolution. He relied on the following decisions: 1. A Division Bench decision of this Court in the case of A.P.M.C. vs. Patel Jayantilal P., 2002 (1) GLR 924 , wherein the Division Bench observed that a person who is a member of the Municipality and who is nominated as Member of the Market Committee when ceased to be a Member of the Municipality would automatically cease to be a Member of the Market Committee. 2. A decision of the Full Bench in the case of N.B. Posiya vs. Director of Agriculture Marketing & Rural Finance, 2002 (2) GLR 1132 wherein the Bench relying on Section 16 of the Bombay General Clauses Act opined that even in absence of statutory provisions, Chairman and Vice Chairman of Agricultural Produce Committee can be removed from the office by passing a no confidence motion. 3. A decision of the learned single Judge in the case of Dattaji Chirandas vs. State, 1999 (3) GLR 2189 wherein the learned Single Judge upheld the removal of Directors of various Boards and Corporations on the ground of pleasure doctrine. Similar is the case in the case of Harisinh Chavda vs. Chimanbhai Patel, 1999 (1) GLR 667. 4.
3. A decision of the learned single Judge in the case of Dattaji Chirandas vs. State, 1999 (3) GLR 2189 wherein the learned Single Judge upheld the removal of Directors of various Boards and Corporations on the ground of pleasure doctrine. Similar is the case in the case of Harisinh Chavda vs. Chimanbhai Patel, 1999 (1) GLR 667. 4. Reliance was also placed in the case of Unjha A.P.M.C. vs. State, 1999 (1) GLR 406 wherein the learned single Judge relying on Sections 14 and 16 of the General Clauses Act held that upon reconstitution of the Market Committee, Members of the old committee stand automatically removed. 7. Having heard the learned Advocates appearing for the parties, at the outset, we may make it clear that since the resolution of the Municipality dated 16th October 2008 substituting some other person as Member of the APMC in place of the petitioner is under challenge before the authorities, we refrain from making any observations with respect to the legality of such a resolution so as not to prejudice the pending proceedings. In fact the resolution of the Municipality is not even under challenge before us. We have, therefore, examined the entire issue from the limited angle of effect of the resolution passed by the Municipality on 16.10.08. In this connection it may be recalled that the contention of the petitioner is that even if the Municipality had passed such a resolution, term of the petitioner as Member of APMC could not be curtailed in view of Section 14 of the Act. 8. Section 11 of the Act provides for the constitution of the Market Committee. Under Section 11, Market Committee is to be constituted from amongst various members elected as well as nominated. Clause (iv) of Sub-section (1) of Section 11 pertains to nomination of a member by the Local Authority. Clause (a) of Sub-section (4) of Section 11 provides for the term of office of Market Committee. Clause (b) of Sub-section (4) of Section 11 provides for the term of office of the members of the Market Committee. Section 11 of the Act in so far as relevant for our purpose reads as follows: “11. (1) Every market committee shall consist of the following members, namely:— ...... ......
Clause (b) of Sub-section (4) of Section 11 provides for the term of office of the members of the Market Committee. Section 11 of the Act in so far as relevant for our purpose reads as follows: “11. (1) Every market committee shall consist of the following members, namely:— ...... ...... (iv) one member to be nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councillors or, as the case may be, members who do not hold any general licence; Provided that where under the law applicable to the local authority its councillors or members have vacated office and any person or administrator has been appointed to exercise the powers and perform the functions of the local authority, such person or, as the case may be, administrator shall nominate a member under this paragraph from amongst persons qualified to be councilors or members of the local authority and not holding a general licence; ....... ...... (4) (a) The term of office of a market committee shall, save as otherwise provided in this Act, be four years from the date of its first general meeting. (b) Save as otherwise provided in this Act, the term of office of the members of the market committee shall be co-extensive with the term of the market committee and also shall be deemed to extend to and expire with the day immediately before the date of the first general meeting of the market committee as reconstituted on the expiry of its term.” Section 14 of the Act pertains to disabilities from continuing as Member. Sub-section (1) of Section 14 provides for the grounds on which an elected or nominated member shall cease to hold office as Member of the Market Committee. Section 14 reads as under: “14. (1) An elected or nominated member shall cease to hold office as such member if— i. he ceases to be a member of the electorate by which he was elected; or ii. he being a member of the class specified in Clause (i) of Sub-section (1) of Section 11 is granted a general licence under this Act; or iii. he being a member nominated by a local authority, ceases to be a councillor, or as the case may be, a member of the local authority, or is granted a general licence under this Act.
he being a member nominated by a local authority, ceases to be a councillor, or as the case may be, a member of the local authority, or is granted a general licence under this Act. (2) The question whether any member ceases to hold office under Sub-section (1) shall be determined by the Director.” As already noted, we are proceeding to examine the issue on the premise that the Municipality has passed a valid resolution withdrawing the nomination of the petitioner. If such a resolution is held to be illegal or unlawful in any other proceedings, the matter may stand on a different footing. At present, however, we find that the Municipality has passed the resolution validity of which has been upheld by the Collector. The only question therefore is even after the Municipality withdrew the nomination of the petitioner, whether he could continue as Member of APMC. 9. As noted earlier, Section 11 of the Act pertains to the constitution of the APMC. Under Clause (iv) of Sub-section (1) of Section 11, Local Authority i.e. the Municipality in the present case gets a right to nominate one member to the Market Committee. A person so nominated by the Municipality becomes member of the Market Committee. It was in this manner that the petitioner became a member of the Market Committee. When such nomination is withdrawn, his right to continue as member of the Market Committee would automatically come to an end. It is incorrect to say that only under the grounds mentioned in Section 14 that a member of the Market Committee would cease to have authority to continue as such. Section 14 pertains to disabilities from continuing as a Member. Sub-section (1) of Section 14 provides for grounds on which a member shall cease to hold office. It is true that in case of the petitioner, Section 14 of the Act is neither applicable nor applied. In his case, however, it is the very authority to continue as Member of the APMC came to an end when the body namely, the Municipality which had nominated him to the Market Committee withdrew such nomination. When nomination under Section 11 (1)(iv) itself does not survive, any further continuation of the petitioner as Member of the APMC would not arise.
When nomination under Section 11 (1)(iv) itself does not survive, any further continuation of the petitioner as Member of the APMC would not arise. Clause (iii) of Sub-section (1) of Section 14 begins with the words “he being a member nominated by a local authority .....”. The moment Municipality withdrew his nomination, the petitioner ceased to be a “member nominated” by the local authority. 10. Quite independent of Section 14 of the Act, right of the petitioner to continue as Member of the APMC would automatically come to an end with withdrawal of his nomination by the Municipality. In our view, therefore, the learned single Judge committed no error in dismissing the petition. This Letters Patent Appeal lacks merits and is therefore dismissed. 11. In view of the order in appeal, the Civil Application does not survive and the same is also disposed of accordingly.