JUDGMENT 1. - Under the Rajasthan Agricultural Produce Markets Act, 1961 ('the Act of 1961') and the Rules made thereunder ('the Rules of 1963') various market committees are to be constituted for different areas. For the purpose of this constitution, different classes of members have been specified and one such class is of the person elected from amongst its own members by the Municipal Board or Municipal Council or Municipal Corporation or the Gram Panchayat in which the principal market yard of the Committee is situate, as per clause (vii) of sub-section (1) (a) of Section 7 of the Act of 1961 read with clause (iv) of Rule 6 of the Rules of 1963. The dispute in the present case relates to election of such member as per the provisions aforesaid for the market committee at Hanumangarh. 2. This writ petition has been filed by a councilor of the Municipal Council, Hanumangarh with the submissions that an order was issued by the respondent No.4, the Sub-Divisional Magistrate, Hanumangarh, who is the Authorised Officer (Election), on 01.07.2011 to the respondent No.2, the Commissioner, Municipal Council, Hanumangarh directing to elect the member from the Municipal Council for the purpose of constitution of the Marketing Committee, Hanumangarh. According to the petitioner, another letter dated 05.07.2011 was sent to the respondent No.2 alongwith the procedure and guideline to elect the member from the Municipal Council (Annex.P/2); and yet another letter dated 11.07.2011 (Annex.P/3) was issued by the respondent No.3 the Director, Agriculture Marketing, Jaipur to all the District Collectors to elect the members from the Municipal Council for the constitution of the Marketing Committees. 3. The petitioner has averred that pursuant to the communications aforesaid, the respondent No.2 issued an election programme notification dated 12.07.2011 (Annex.P/4) for the purpose of election of the member from the Municipal Council, Hanumangarh and as per the said programme, election was to be held on 22.07.2011. It is submitted that such election was indeed held on 22.07.2011 wherein the petitioner got elected after receiving 23 votes out of 44 votes cast; and the respondent No.2 sent a communication dated 22.07.2011 to the respondent No.4 regarding election of the petitioner and declaration to that effect was also made in the official notification (Annex.P/5). 4. The petitioner has stated the grievance in this writ petition that after such declaration, the respondent Director-cum-Dy. 4. The petitioner has stated the grievance in this writ petition that after such declaration, the respondent Director-cum-Dy. Secretary, Agriculture Marketing, Jaipur issued the impugned order dated 09.08.2011 to the effect that the nomination as made was not proper and election was required to be held. The petitioner has further stated the grievance in this writ petition that pursuant to the said communication dated 09.08.2011, respondent No.4 issued a letter to the respondent No.2 and thereupon the respondent No.2 again notified the election and such process of re-election remains impermissible. According to the petitioner, the election once held, could only be questioned under Rule 27-A of the Rules of 1963 and not otherwise. 5. The different sets of respondents of this writ petition have filed different replies. The respondent No.2, the Commissioner, Municipal Council, Hanumangarh has filed a reply with the submissions that he has acted in accordance with the directions issued by the authority concerned and conducted the elections as per the orders and directions. The factum of holding of election on 22.07.2011 and issuance of communication is not disputed by him but it is submitted that fresh election programme has been issued as per the directions. It is submitted that as per the direction of respondent No.4, the election was to be conducted within 15 days and, therefore, he conducted the elections on 22.07.2011 in accordance with the guidelines. 6. The respondents Nos. 1,3 and 4 have filed a separate reply contending against the contentions of the petitioner. Essentially, the averments on the part of the said contesting respondents is that in accordance with the directions, the elections for the representative for Mandi Samiti were to be held on 25.08.2011 and the date was unnecessarily preponed in this case. It is submitted in the reply that all the members did not participate in the election and the election held on 22.07.2011 cannot be said to be in conformity with law. The contention of the petitioner that the election once held could only be questioned under Rule 27-A of the Rules of 1963 has also been disputed and it is submitted that the said Rule 27-A is not at all attracted in this matter. The contention of the petitioner that the election once held could only be questioned under Rule 27-A of the Rules of 1963 has also been disputed and it is submitted that the said Rule 27-A is not at all attracted in this matter. Submissions have also been made in the reply as filed by the contesting respondents about the right of nominated members to vote in the elections but on this aspect, it has frankly been pointed out during the course of submissions that as per the fresh directions issued, the respondents have clarified that nominated members shall not be entitled to cast the vote. 7. The respondents Nos. 5 and 6 who are said to be the nominated members have also filed a reply seeking to assert their right to vote in the elections but, as noticed, the Government has already issued directions of they being not entitled to vote in these elections. It is, however, submitted by these respondents that the election referred by the petitioner was wholly unauthorised inasmuch as the elections were required to be held on 25.08.2011 as per the directions placed on record as Annex.P/2 and could not have been held prior to that. These respondents have placed on record a copy of communication sent by the Collector, Hanumangarh to the respondent No.3 pointing out the position that the elections were held before the given date (Annex.R/5/1) whereupon the impugned order dated 09.08.2011 came to be issued. It is also submitted that notice was required to be given at least 15 days in advance and viewed from any angle, the election as held on 22.07.2011 was illegal and unauthorised. 8. A rejoinder has also been filed on behalf of the petitioner with the submissions that it were the guidelines of the year 2006 that were annexed with the letter dated 05.07.2011 and per mistake of the clerk of the counsel, the guidelines of the year 2011 came to be annexed with the letter dated 05.07.2011 as Annexure-P/2. It is submitted that the stand as taken in the reply by the respondents was not in conformity with the reasons as assigned earlier and else the nominated members have no right to vote. 9. It is submitted that the stand as taken in the reply by the respondents was not in conformity with the reasons as assigned earlier and else the nominated members have no right to vote. 9. The respondents Nos.1, 3 and 4 have filed additional submissions to the effect that as per Rule 10 of the Rules of 1963, 42 days' period is required to be fixed when the Collector would issue a notice of election and when the notice was issued on 11.07.2011, the elections held on 22.07.2011 cannot be said to be valid and cannot be sustained. It is also submitted that the Members of Rajasthan Legislative Assembly and the Members of Parliament from the area in question were not notified of the election and for this reason also, the election stood vitiated. 10. The essential submissions by the learned counsel for the petitioner are that the impugned order dated 09.08.2011 has been issued in utter disregard to the facts and even the basic principles of law. The learned counsel contends that the only reason stated in the order dated 09.08.2011 had been that in the Hanumangarh Municipality, nomination was made instead of election and the proceedings for nomination were not in accord with law; and such reasons were baseless inasmuch as election was specifically held and it was not a case of nomination. Thus, according to the learned counsel, the order impugned remains entirely baseless. The learned counsel also contends that by the order impugned, election of the petitioner has been cancelled without even basic opportunity of hearing and against all principles of natural justice. The learned counsel yet further contends that the Director was not empowered to issue such an order once the power has been delegated to another authority and that as per Rule 27-A ibid, the elections could only be questioned in the manner provided therein and not otherwise. The learned counsel further submits that a contradictory stand has been taken in the reply beyond the terms of the order (Annex.P/6) while suggesting that as the nominated members were not allowed to participate hence, the election was cancelled. It is submitted that such a suggestion is not in conformity with the contents of the impugned order dated 09.08.2011. 11. The learned counsel further submits that a contradictory stand has been taken in the reply beyond the terms of the order (Annex.P/6) while suggesting that as the nominated members were not allowed to participate hence, the election was cancelled. It is submitted that such a suggestion is not in conformity with the contents of the impugned order dated 09.08.2011. 11. The learned counsel appearing for the Commissioner, Municipal Council submits that the Commissioner was not in know of the election programme for 25.08.2011 and else, he proceeded in accordance with the directions contained in the communication dated 01.07.2011 (Annex.P/1) and issued the programme for fresh election when directed to do so. 12. The learned Additional Advocate General appearing for the respondents Nos.1,3 and 4 has strenuously opposed the writ petition with the submissions that the Commissioner was not even the person authorised to conduct the proceedings as all the proceedings were to be conducted by the Election Officer i.e., Sub-Divisional Magistrate, Hanumangarh. It is further submitted by the learned Additional Advocate General that specifically the date of 25.08.2011 was fixed for holding the election and thus, the election held prior to that could only be said to be illegal and unauthorised and cannot be sustained. It is yet further submitted that the elections were not held in the proper manner where the concerned persons entitled to vote including the MLA and the MP were not even notified. 13. The learned appearing for the respondents Nos.5 and 6 submits that when all the elected members were not called, the election was even otherwise illegal apart from the position that the election could not have been held prior to the date fixed i.e., 25.08.2011. 14. The submissions of the learned counsel for the parties have been given thoughtful consideration and record has been perused. 15. The submission as made by the learned counsel for the petitioner on want of authority of the Director in issuing the impugned communication does not appear meritorious in the backdrop of the facts and circumstances noticed above. The process of election is essentially for composition of market committee and has been set into motion with the directions issued by the Directorate, Agriculture Marketing. The process of election is essentially for composition of market committee and has been set into motion with the directions issued by the Directorate, Agriculture Marketing. Under the communication dated 29.07.2011, the Collector concerned had specifically asked for guidance in view of the obtainable position when the Commissioner, Municipal Council informed about the election for the purpose of Member from the Municipal Council having been held. In the obtainable position, when the Collector sought the guidance, the Director cannot be said to have acted unauthorised in issuing the communication dated 09.08.2011. Similarly, in the given facts and circumstances, the argument does not carry weight that the election of the petitioner could have been called in question only under Rule 27-A of the Rules of 1963. It has been the very process of election that was in question and the Directorate is not required to take recourse to Rule 27-A of the Rules of 1963. However, the aspects relating to these submissions are not being dilated further in this matter for the reason that this Court is unable to sustain the communication dated 09.08.2011 for other reasons as noticed infra. 16. After having taken into comprehension all the facts and surrounding circumstances with reference to the law applicable, it is found that there had been shortcomings on the part of every concerned officer at every stage but then, the question is whether the democratic process as taken up and concluded resulting in election of the petitioner could have been annulled merely with issuance of the impugned communication and without hearing the petitioner? 17. 17. In the first place, the concerned election officer for the purpose of composition of market committee had informed the Commissioner, Municipal Council to carry out the process of election of the members from the Council within 15 days under the communication dated 01.07.2011 that reads as under:- " vk;qDr] uxj ifj"kn] guqekux<+ VkmuA fo"k; %& LFkkuh; izkf/kdj.kksa }kjk e.Mh lfefr;ksa ds lnL;ksa ds fuokZpu ckcr~A egksn;] mijksDr fo"k;kUrxZr ys[k gS fd d`f"k mit e.Mh lfefr " fo0JS0 " guqekux<+ ds pquko 2011 gsrq LFkkuh; fudk; ds izfrfu/k dk fuokZpu jktLFkku d`f"k mit e.Mh fu;e 1963 ds fu;e 6 (IV) ds izko/kkukuqlkj fudk; ds lHkh lnL;ksa }kjk fd;k tkosxkA vr% fu;ekuqlkj uxj ifj"kn~ dh rjQ ls e.Mh lfefr ds lnL; dk p;u dj dk;Zokgh lfgr uke 15 fnol ds vUnj fuEu gLrk{kjdrkZ dks fHktokus dh O;oLFkk djkosaA gLrk0 izkf/kd`r vf/kdkjh ( pquko ) d`f"k mit eaMh lfefr] guqekux<+ ( ,l0Mh0,e0 ) ] guqekux<+ 18. While acting on the said communication, the Commissioner was supposed to carry out the process of election at the earliest. Specifically, a notification for such election of the representative member from the Municipal Council was issued on 12.07.2011 and the election was indeed held wherein 44 members participated and the petitioner was declared elected after securing 23 votes. 19. It had been the process of election and not that of nomination. However, it appears that the Collector concerned, while entertaining his own doubts about this process of election addressed the communication to the Directorate seeking guidance but for the reasons best known to him chose to state therein that the Commissioner of the Municipal Council had carried out the process of nomination on 22.07.2011 before the scheduled date. However, it appears that the Collector concerned, while entertaining his own doubts about this process of election addressed the communication to the Directorate seeking guidance but for the reasons best known to him chose to state therein that the Commissioner of the Municipal Council had carried out the process of nomination on 22.07.2011 before the scheduled date. The Collector stated in the said communication dated 29.07.2011 as under:- Jheku~ funs'kd ,oa insu mi'kklu lfpo] d`f"k foi.ku funs'kky;] jktLFkku t;iqjA fo"k; %& LFkkuh; izkf/kdj.kksa }kjk e.Mh lfefr ds lnL;ksa ds fuokZpu ckcr~A egksn;] mi;qZDr fo"kkUrxZr fuosnu gS fd jktLFkku d`f"k mit foi.kh vf/kfu;e 1963 ds fu;e 6 (IV) esa izko/kku gSa fd %& ,sls uxjikfydk cksMZ ;k uxjifj"kn vFkok uxj fuxe ds leLr lnL; eq[; e.Mh okMZ vofLFkr gSa]/kkjk 7 dh mi/kkjk (v) ds [k.M ( d ) ds mi[k.M ( [k ) ds mi[k.M (iv) ds v/khu ;Fkk visf{kr vius izfrfuf/k;ksa dk fuokZpu djsaxsA foHkkxh; i= la[;k fud`fo@e0pq0@2011@17@22&65 fnukad 11-07-2011 esa ,sls izfrfuf/k ds pquko gsrq 25-08-2011 dh frfFk fuf'pr dh gSaA ysfdu guqekux<+ d`f"k mit e.Mh lfefr pquko gsrq fu;qDr izkf/kd`r vf/kdkjh us vius i= la[;k pquko@2011@429 fnukad 29-07-2011 ls voxr djk;k gS fd guqekux<+ uxjifj"kn }kjk ,sls izfrfuf/k dk euksu;u fnukad 22-07-2011 dks gh dj fn;k x;k gSA vk;qDr uxjifj"kn guqekux<+ }kjk vius izfrfuf/k ds euksu;u dh dk;Zokgh fu/kkZfjr fnukad 25-08-2011 ls iwoZ 22-07-2011 dks dj nh gSA vr% vk;qDr uxjifj"kn] guqekux<+ }kjk dh xbZ dk;Zokgh ds fo"k; esa ekxZn'kZu Qjek;saA Hkonh; gLrk0 ftyk fuokZpu vf/kdkjh guqekux<+ " 20. The said communication was itself wrong on a material fact. The Commissioner had carried out the process of election and not of nomination. The Directorate too, without taking any explanation or comments from the Commissioner concerned, addressed simply the communication dated 09.08.2011 with reference to the aforesaid communication from the Collector dated 29.07.2011 and said,- " ftyk dyDVj guqekux<+A fo"k; %& d`f"k mit e.Mh lfefr pquko 2011 ckcr~A izlax %& vkidk i= dzekad d`0m0e0l0@fuokZ@2011@625 fnukad 29-07-2011 egksn;] mijksDr fo"k;kUrxZr izkalfxd i= ds dze esa fuosnu gS fd LFkkuh; izkf/kdj.k ds izfrfuf/k dk fuokZpu gksxk] euksu;u ughaA guqekux<+ ifj"kn dseuksu;u dh dk;Zokgh izko/kkukuqlkj izko/kkukUrxZr ugha gSA vr% funs'kky; ds i= dzekad fud`fo@e0p0@2011@17122&65 fnukad 11-07-2011 ds vuq:i guqekux<+ uxj ifj"kn~ ds LFkkuh; laLFkk ds izfrfuf/k ds fuokZpu dh dk;Zokgh djkosaA Hkonh; gLrk0 funs'kd ,oa insu mi 'kklu lfpo d`f"k foi.ku " 21. The end result of such unsure, incomplete and cursory communications had been that the core question was neither taken up for consideration by anyone nor answered as to whether the election held within the house of Municipal Council for electing its representative member for the market committee stood vitiated only for the same having been held on 22.07.2011? 22. It has remained a matter of doubt in this case as to what were the documents sent with the letter dated 05.07.2011 (Annex.P/2) and the Commissioner, Municipal Council who received such communication has not been candid in making the submissions in his reply about the document (Annex.P/2) and enclosures therewith. The petitioner has also tried to side-track the issue with the suggestions in the rejoinder that wrong document was filed with Annexure P/2 in the writ petition and else, it were guidelines of 2006 that were sent. However, it does not appear necessary to probe into this aspect any further because in any case, it has never been shown if the communication dated 01.07.2011 was withdrawn or modified by the respondent No.4 and as per the said communication, the Commissioner concerned was supposed to carry out election within 15 days. It has not been shown as to how the elections, if in the guidelines suggested to be held on 25.08.2011 were, if at all held on 22.07.2011 within the House of Municipal Council, stood vitiated? 23. Apart from the aforesaid, the significant aspect of the matter is that the reason that have been suggested before this Court in this writ petition for addressing the communication dated 09.08.2011 had not been the reasons stated therein. In the said communication, the only suggestion was that the election was required to be held and not nomination and, therefore, the process of nomination was not proper. It had not been the case that the elections as held on 22.07.2011 were vitiated because they were supposed to be held on 25.08.2011 or for any member being not notified or the Commissioner being not authorised. It remains trite that a reason in the executive order cannot be supplied by way of averments or affidavits. Herein, totally different reasons are sought to be supplied by the respondents, which this Court finds itself unable to accept. 24. It remains trite that a reason in the executive order cannot be supplied by way of averments or affidavits. Herein, totally different reasons are sought to be supplied by the respondents, which this Court finds itself unable to accept. 24. In the ultimate analysis, this Court is satisfied that not holding of election on 25.08.2011 but holding of the same prior to that date or not notifying other members or want of authority with the Commissioner were not at all the reason with the authority at the time of issuing the communication dated 09.08.2011. As noticed, the reason as given in the said order was itself incorrect on facts. Thus, the communication dated 09.08.2011 cannot be sustained. 25. Apart from the above, the fact of the matter had been that under the communication dated 22.07.2011, the respondent - Commissioner, Municipal Council specifically declared the petitioner elected. A specific declaration on election could not have been annulled without extending an opportunity of hearing to the petitioner. On this count too, the communication dated 09.08.2011 and any proceedings in consequence thereof, cannot be sustained. However, in the interest of justice, it is observed that if at all the respondents intend to pass any other order, they shall be free to do so but strictly in accordance with law. 26. In the result, this writ petition is allowed to the extent indicated above; the impugned order dated 09.08.2011 is quashed and set aside. However, it is made clear that it shall not preclude the respondents from passing appropriate orders in regard to the election of the petitioner in accordance with law. Parties shall bear their own costs.Petition allowed. *******