Judgment J.B. Pardiwala, J.—The appellant – original writ petitioner, by way of this Appeal calls in question the legality, validity and propriety of the order dated 6th October, 2010 passed by the learned Single Judge in Special Civil Application No. 341/2010, wherein the petition of the appellant – original petitioner came to be dismissed. Brief facts relevant for the purpose of deciding this Appeal can be summarised as under: 1. The appellant is an elected Director of the Agricultural Produce Market Committee, Bhavnagar. 2. The appellant was elected as the Director of the Market Committee from the Traders’ constituency in the year 2008. 3. The term of the Market Committee was coming to an end in the year 2008 and, therefore, the respondent No. 2 declared election vide Notification dated 19th December, 2007. As per the programme, the election was to take place on 20th March 2008 and the result was to be declared on 21st March 2008. 4. Some disputes cropped up with regard to grant of licenses to the traders as well as co-operative marketing societies and as the Market Committee granted licenses after declaration of the election notification, the names of such license holders were deleted from the voters’ list. 5. The said decision was a subject matter of challenge before this Court in Special Civil Application No. 2980/2008 and Special Civil Application No. 2660/2008. The Division Bench of this Court, vide order dated 11th March 2008, directed the Election Officer to hear the license holders and then pass appropriate orders. 6. Pursuant to the directions issued by the Court, the Election Officer in case of co-operative marketing societies, ordered deletion of names of all five societies from the final voters’ list vide his order dated 12th March 2008. 7. This action was a subject matter of challenge by way of Special Civil Application No. 4716/2008. The Division Bench of this Court partly allowed the petition directing inclusion of names of two societies, namely, Shri Vaikunthbhai Mehta Vegetables and Fruits Growers’ co-operative Society, Sidsar and Shri Shedhavadar Onion Growers’ co-operative Society, Shedhavadar in the final list of voters. 2. This order has lot of bearing while deciding this Appeal and, therefore, we deem it fit and appropriate to quote two paragraphs of the order passed by the Court while disposing of Special Civil Application No. 4716/2008. “9. 2. This order has lot of bearing while deciding this Appeal and, therefore, we deem it fit and appropriate to quote two paragraphs of the order passed by the Court while disposing of Special Civil Application No. 4716/2008. “9. We are accordingly inclined to allow this petition and direct Respondent No. 4 to include the names of the members of the Managing Committee of Petitioner Nos. 2 and 5-cooperative societies in the list of voters for the constituency of co-operative Marketing Societies. It is clarified that this direction is being given in the peculiar facts of this case, where but for this order the entire constituency of the co-operative Marketing Societies would go unrepresented as aforesaid. In a given case, it may be possible to contend that if there is inaction or delay on the part of the authorities of the APMC in not considering the applications for renewal, it is always open to the existing licence holders to move the appropriate authorities for directing the APMC for consideration of the applications for renewal. 10. We, accordingly, direct Respondent No. 4 to include the names of the members of the Managing Committee of Petitioner No. 2- Shri Vaikunthbhai Mehta Vegetable and Fruit Growers’ co-operative Society Limited at Village Sidsar, and the members of the Managing Committee of Petitioner No. 5-Shri Shedhavadar Onion Growers co-operative Society Limited at Village Shedhavadar, in the list of voters for the constituency of co-operative Marketing Societies. The members of the Managing Committees of Petitioner Nos. 2 and 5 shall accordingly be permitted to participate in the ensuing elections to the Agricultural Produce Market Committee, Bhavnagar.” 3. As there were only two co-operative marketing societies at the time of election, only one representative was to be elected from the co-operative marketing societies constituency and, therefore, one representative was elected from the said constituency as Section 11 of the Gujarat Agricultural Produce Markets Act, 1963 (for short, ‘the Act’) specifically provides for election of only one representative in the said constituency. The record reveals that the Managing Committee constituted after the election of Bhavnagar comprises of sixteen members. The record further reveals that the Chairman of the Market Committee, in his personal capacity, preferred an application dated 23rd July, 2009 to the District Registrar for filling up one seat in the co-operative marketing societies constituency. The record reveals that the Managing Committee constituted after the election of Bhavnagar comprises of sixteen members. The record further reveals that the Chairman of the Market Committee, in his personal capacity, preferred an application dated 23rd July, 2009 to the District Registrar for filling up one seat in the co-operative marketing societies constituency. The Respondent No. 3 made a proposal on 10th September, 2009 to the Respondent No. 2 to declare the election of one seat as there was vacancy and as it was necessary under Section 15 of the Act. The Respondent No. 2, taking into consideration the proposal of the Respondent No. 3 and having regard to the provisions of Section 11(1)(iii) and the provisions of Section 15 of the Act, rejected the proposal of the District Registrar dated 10th September, 2009 by his order dated 29th October, 2009 holding that since at the time of election there were only two co-operative marketing societies functioning in the market area, it cannot be said to be a casual vacancy under Section 15 of the Act and, therefore, there cannot be any election of one seat for the co-operative marketing societies constituency. 4. Record reveals that the Respondent No. 4 challenged the order dated 29th October, 2009 passed by the Respondent No. 2 before the Respondent No. 1 under the purported exercise of power under Section 48 of the Act by preferring Revision Application No. 227/2009. The Respondent No. 1 vide order dated 11th December, 2009 quashed and set-aside the order passed by the Respondent No. 2 and remanded the matter for fresh consideration. The Respondent No. 2 thereafter, upon remand, vide order dated 8th January, 2010, allowed the application of the Respondent No. 4 and permitted to hold election of one seat for the co-operative marketing societies constituency. The petitioner herein, therefore, challenged two orders before the learned Single Judge, (1) the order dated 11th December, 2009 passed by the Respondent No. 1 in Revision Application No. 227/2009, and (2) the order dated 8th January, 2010 passed by the Respondent No. 2. 5. The learned Single Judge came to the conclusion that having regard to the provisions of Section 15 of the Act as well as the rules framed thereunder, it is clear that as and when there is any unfilled seat, the same is required to be filled in by way of by-election. 5. The learned Single Judge came to the conclusion that having regard to the provisions of Section 15 of the Act as well as the rules framed thereunder, it is clear that as and when there is any unfilled seat, the same is required to be filled in by way of by-election. The learned Single Judge came to the conclusion that, as in the present case also one seat is vacant, the Respondent No. 2 has rightly passed the order to hold the election. The learned Single Judge took into consideration the fact that the appellant-original petitioner has failed to show that any prejudice has been or is likely to be caused if the election on the said seat is conducted. The learned Single Judge also took notice of the fact that merely because some strength has increased in another constituency or another group it would not prejudice the petitioner. The learned Single Judge also took notice of the fact that the appellant-original petitioner had no locus to stall the election proceedings for the co-operative marketing societies. The learned Single Judge relied on Rule 28 for the purpose of holding that the appellant-original petitioner had no locus to challenge the election. Accordingly, the learned Single Judge confirmed the orders dated 11th December, 2009 and 8th January, 2010 passed by the Respondent Nos. 1 and 2 respectively by dismissing the petition of the petitioner. We have heard learned senior counsel Mr. Mihir H. Joshi with Mr. V.C. Vaghela for the appellant, learned AGP Mrs. Manisha L. Shah for the Respondent Nos. 1 to 3 and Mr. B.M. Mangukiya for the Respondent No. 4. 6. Contentions raised on behalf of the appellant are as under: 1. It is vehemently submitted that the interpretation put forward by the learned Single Judge so far as Section 15 of the Act is concerned, is absolutely erroneous. 2. It is submitted that the it is only on account of the directions issued by the Division Bench of this Court in Special Civil Application No. 4716/2008 that the names of the members of the Managing Committees of the Petitioner Nos. 2 and 5 therein who were co-operative societies holding licenses were included in the final voters’ list and, therefore, prior to the voting there were only two co-operative societies as the voters in the constituency of co-operative marketing societies. 3. 2 and 5 therein who were co-operative societies holding licenses were included in the final voters’ list and, therefore, prior to the voting there were only two co-operative societies as the voters in the constituency of co-operative marketing societies. 3. It is submitted that as per the provisions of Section 11(1)(iii) of the Act and rather the proviso thereto where the number of co-operative marketing societies so situate does not exceed two, only one member is to be elected and, therefore, the election of one representative from the said constituency had taken place and the result was also declared. 4. It is submitted that when the election was held of only one seat on account of the fact that there were only two voters in the co-operative marketing societies constituency as per the final voters’ list and such elected representative had not ceased to function, there was no occasion to consider the question of vacancy as no vacancy had arisen. Therefore, in absence of such vacancy the power for by-election under Section 15 of the Act could not have been exercised. 5. It is submitted that the finding recorded by the learned Single Judge as regards the locus of the present petition considering Rule 28 of the Gujarat Agricultural Produce Markets Rules, 1965 is also erroneous. 7. Relying on all these contentions, it has been urged on behalf of the appellant that the Appeal deserves to be allowed by quashing and setting aside the judgment and order passed by the learned Single Judge. 8. Per contra, the contentions raised on behalf of the State and the Respondent No. 4 are as under:— 1. It is submitted that the learned Single Judge has considered all relevant aspects of the matter and no interference is warranted in the present Appeal. 2. 8. Per contra, the contentions raised on behalf of the State and the Respondent No. 4 are as under:— 1. It is submitted that the learned Single Judge has considered all relevant aspects of the matter and no interference is warranted in the present Appeal. 2. It is vehemently submitted that as per the requirement of Section 11(1)(iii) of the Act, if the number of societies holding licenses was exceeding two and for one reason or another their names are not included in the final voters’ list and subsequently if it is brought to the notice of the Director that because of such contingency the voters’ list was not properly prepared or they were deprived of the representation in the constituency of co-operative societies, the Director would be well within his power to order by-election for observing the statutory provisions under Section 15 of the Act, otherwise those whose names were not included in the voters’ list shall remain unrepresented. 3. It was also submitted that the renewal fee was already paid, the licenses were valid and, therefore, their names could not have been excluded from the voters’ list and, in any case, the resultant effect would be that there will be more than two societies in the constituency. Therefore, the election was required to be held for two seats, which was not held, since the renewal of licence would take effect from the date of the expiry of the license. 9. Having heard the learned counsels for the respective parties and having regard to the rival contentions, we are of the opinion that the learned Single Judge has committed serious error while deciding the Special Civil Application No. 341/2010. 10. It deserves to be noted that the election of the Agricultural Produce Market Committee in question was over in March 2008. It is also very clear that at the said election in the voters’ list of the co-operative marketing societies constituency, at the initial stage, there was not a single voter. This is the reason why we have observed earlier that the order passed by the Division Bench on 19th March, 2008 in Special Civil Application No. 4716/2008 assumes importance. It is also very clear that at the said election in the voters’ list of the co-operative marketing societies constituency, at the initial stage, there was not a single voter. This is the reason why we have observed earlier that the order passed by the Division Bench on 19th March, 2008 in Special Civil Application No. 4716/2008 assumes importance. In the said order, in Paragraph 6, the Division Bench observed that as per the impugned order passed by the Respondent No. 4 there is not a single co-operative marketing society whose managing committee members are included in the voters’ list for the constituency of co-operative marketing societies. It is on account of the direction issued by the Court in the said matter, the names of the members of the managing committee of the Petitioner Nos. 2 and 5 therein, who were co-operative societies holding licenses, were included in the final voters’ list. Consequently, the position remains prior to the voting, so that there were only two co-operative marketing societies as the voters in the constituency of co-operative marketing societies. As per the provisions of Section 11(1)(iii) of the Act and rather the proviso says that where the member of co-operative marketing society so constituted does not exceed two, only one member is to be elected. Accordingly, it is undisputed position that election of one representative from the said constituency had taken place and the result was also declared and the elected representatives assumed the office and they are functioning. It would be expedient to quote Section 11(1)(iii) of the Gujarat Agricultural Produce Markets Act, 1963 : “11. Constitution of market committee: (1) Every market committee shall consist of the following members, namely :— i. xxx xxx xxx ii. xxx xxx xxx iii. two representatives of the Co-operative marketing societies situate in the market area and holding general licenses, to be elected from amongst the members (other than nominal, associate or sympathiser members) of such societies by the members of the managing committees of such societies: Provided that where the number of co-operative marketing societies so situate does not exceed two, only one representative shall be so elected;” 11. The record reveals that after the election process was finalised, an application was preferred under Section 15 of the Act on the premise which, according to us, is absolutely wrong and erroneous that as one vacancy has arisen election of one seat deserves to be ordered. The Director exercised the powers under Section 15 of the Act as if the vacancy had arisen and the by-election was ordered. At this stage, it would also be expedient to quote Section 15 of the Act : “15.Filling up of vacancies:—If at any time any vacancy occurs for any reason in a market committee and remains unfilled, it shall be filled within such period and in such manner as may be prescribed by the election or nomination as the case may be, of a member thereto. The member so elected or nominated shall hold office so long only as the member in whose place he is elected or nominated would have held it if the vacancy had not occurred.” On plain reading of Section 11(1)(iii) along with the proviso thereto and Section 15 of the Act, it is abundantly clear that the exercise of powers by the Director was beyond the scope and ambit of Section 15 of the Act inasmuch as when the election was held of only one seat on account of the fact that there were only two voters in the co-operative marketing societies constituency as per the final voters’ list and such elected representative had not ceased to function, there was no circumstance for considering the question of vacancy as no vacancy had arisen. Therefore, in absence of such vacancy, the power for by-election under Section 15 could not have been exercised. Plain reading of Section 15 of the Act makes it abundantly clear when it speaks about vacancy occurring for any reason in a market committee, only relates to casual vacancies as provided under Sections 12, 13 and 14 of the Act. It is very clear that if a seat falls vacant because of contingency like death, resignation or removal of a member of a committee and remains unfilled, it can be filled in by by-election in exercise of power under Section 15 of the Act but not under the circumstances like the present one. It is very clear that if a seat falls vacant because of contingency like death, resignation or removal of a member of a committee and remains unfilled, it can be filled in by by-election in exercise of power under Section 15 of the Act but not under the circumstances like the present one. In the present case, the vacancy has not arisen because of any of the reasons mentioned in Sections 12, 13 and 14 of the Act and, therefore, it cannot be said to be a casual vacancy. The entire interpretation put forward by the learned Single Judge in this regard is not correct. Merely because notification was issued by the Election Officer for two seats, it cannot be said that two seats are to be filled up. Record reveals that the Election Officer, while considering the fact as to how many societies were functional, issued the notification and in fact, on the date of declaration of the election programme no society had obtained the license of the market committee and the licenses were granted thereafter and the said decision was challenged before the Division Bench of this Court, which ultimately held that only two co-operative societies were eligible to be included in the voters’ list, and accordingly election was held for one seat as per Section 11(1)(iii) of the Act. 12. We are also of the view that Section 11 of the Act provides for constitution of market committee and such constitution has to take place as per the election to be held keeping in mind the Gujarat Agricultural Produce Markets Rules, 1965 (for short, ‘the Rules’). There is a procedure provided for declaration of election programme, preparation of the voters’ list, finalization of voters’ list, voting, declaration of results, etc. Once the voters’ list is prepared and finalized and the election is already held, the legality and validity of the election cannot be upset on the ground that certain persons though were eligible to be included in the voters’ list, could not be included except by election petition for challenging the election. In this view of the matter, treating them as eligible in the voters’ list after the election is complete, the election of additional seat cannot be held under the purported exercise of power under Section 15 of the Act providing for by-election. In this view of the matter, treating them as eligible in the voters’ list after the election is complete, the election of additional seat cannot be held under the purported exercise of power under Section 15 of the Act providing for by-election. Therefore, in our view, invocation of Section 15 was not at all in accordance with law and, therefore, the order dated 29th October, 2009 passed by the Respondent No. 2, first in point of time, was absolutely just, legal and proper. It is only when Respondent No. 1 remitted the matter to the Respondent No. 2 that, for some reasons, the Respondent No. 2 took a contrary view. 13. Now coming to the second ground on which the learned Single Judge dismissed the petition is with regard to the locus of the appellant herein. The learned Single Judge took the view that the appellant – original petitioner had no right at all to challenge the election as the appellant is not fulfilling the pre-requisites as provided under Rule 28 of the Rules. For better adjudication of this point, we may reproduce Rule 28 of the Rules as under:— “28.Determination of validity of election:— (1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing:— (a) to the Director, if the election has been conducted by a person authorised by the Director, to perform the function of an Election Officer, and (b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under Sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.” 14. We fail to understand as to on what basis the learned Single Judge comes to the conclusion that the appellant has no locus standi to prefer the petition. Rule 28 of the Rules speaks about the challenge to the validity of any election of a member of the market committee. 15. To our mind, there is no challenge to any election of a member of the market committee. The challenge in the present case is with regard to invocation and exercise of powers under Section 15 of the Act for the purpose of filling up one vacancy said to have arisen as, according to the Respondents, certain persons though were eligible to be included in the voters’ list, were not included. The case of the appellant is that, therefore, treating them as eligible in the voters’ list after the election is complete, the election of additional seat cannot be held under the purported exercise of power under Section 15 of the Act providing for by-election. If this is the case and very rightly put forward by the appellant, then where is the case of non-suiting the appellant on the premise that he does not fulfill the pre-requisites of Rule 28 of the Rules which speaks about the challenge to the validity of election. 16. To our mind, there is no challenge to the validity of the election. The challenge is to the erroneous purported exercise of power under Section 15 of the Act. Even on this ground, the learned Single Judge has committed a serious error. 17. For the reasons recorded in the judgment, we are of the view that the learned Single Judge has committed error on both counts, i.e. while interpreting Section 15 of the Act as well as while interpreting Rule 28 of the Rules. 18. We are of the view that the judgment and order passed by the learned Single Judge deserves to be quashed and set-aside and the same is hereby quashed and set-aside. The Special Civil Application No. 341/2010 stands allowed. 18. We are of the view that the judgment and order passed by the learned Single Judge deserves to be quashed and set-aside and the same is hereby quashed and set-aside. The Special Civil Application No. 341/2010 stands allowed. Consequently, the order dated 11th December, 2009 passed by the Respondent No. 1 in Revision Application No. 227/2009 and the order dated 8th January, 2010 passed by the Respondent No. 2 are also quashed and set-aside. The Appeal stands allowed. No order as to cost. P P P P P