JUDGMENT C.L. Sonia, J. 1. Learned advocates appearing for the respective parties have agreed to take up the matter for final disposal. RULE. Learned Assistant Government Pleader Mr. Niraj Ashar for respondent No. 1 and learned advocate Mr. Navin K. Pahwa for respondent No. 2 waive service of Rule. 2. Challenge made in this petition filed under Article 226 of the Constitution of India is against the notification dated 02.01.2014 at Annexure-A issued by respondent No. 1-Director of Agriculture Marketing & Rural Finance, Gujarat State, nominating respondent No. 2-Patel Prabhudas Narottamdas on the Market Committee against the vacancy arose/occurred in agriculturists constituency on account of death of elected member named Patel Kantilal Khemchandbhai. 3. Petitioner No. 1 is Agriculture Produce Market Committee and petitioner No. 2 is its Chairman. Challenge made by the petitioners to the above-said notification is in the background of facts that the result of the election of the Market Committee was declared on 16.01.2012. Eight members were elected in the agriculturists constituency. Out of these eight members, one elected member named Patel Kantilal Khemchandbhai subsequently expired and therefore, vacancy occurred in the agriculturists constituency. It is alleged that the respondent No. 1 has got no authority to fill in such vacancy by way of nomination, as there is mandatory provision for holding fresh election under Section 15 of the Gujarat Agricultural Produce Markets Act, 1963 ('the Act' for short) to fill in such vacancy. The petitioners have further averred that respondent No. 2, who contested the election from the agriculturists constituency, had lost in the general election and therefore, respondent No. 1 could not have nominated him against the vacancy occurred in the agriculturists constituency. 4. Since, the learned advocates have chosen to argue purely on law points, no reply affidavit is filed. 5. Learned advocate Mr. B.S. Patel appearing with learned advocate Mr. Chirag Patel for the petitioner submitted that amongst different classes of members of the Market Committee, the vacancy occurred after general elections of the committee was in class of agriculturist on account of death of elected member. Learned advocate Mr. Patel submitted that Section 15 of the Act mandates filling of such vacancy only by election. Mr. Patel submitted that similarly the vacancy occurs in the case of nominated member, the same shall be filled in only by nomination as per Section 15. Mr. Learned advocate Mr. Patel submitted that Section 15 of the Act mandates filling of such vacancy only by election. Mr. Patel submitted that similarly the vacancy occurs in the case of nominated member, the same shall be filled in only by nomination as per Section 15. Mr. Patel has also drawn attention of the Court to Rule 26 of the Gujarat Agriculture Produce Market Rules, 1965 ('the Rules' for short) to point out that filling of the vacancy by bye-election under Section 15 is by following same procedure required for general elections. Mr. Patel submitted that since, the vacancy arose was of elected member, the same is not permissible to be filled in by nomination and therefore, the impugned notification is without jurisdiction and contrary to the provisions of Section 11 read with Section 15 and Rule 26 of the Rules. 6. In support of his submission, learned advocate Mr. Patel has also relied on the decision of Hon'ble Full Bench of this Court in the case of Manubhai Hargovanbhai Joshi Vs. State of Gujarat in Special Civil Application No. 6803 of 2013. 7. Learned AGP Mr. Niraj Ashar appearing for respondent No. 1 submitted that the provision for election of members in different classes to constitute the Market Committee under Section 11 could be applied at the time of by election of the Market Committee. Learned AGP Mr. Ashar submitted that subsequent to the general election, if either any member is not returned or the vacancy arises from any such class of the elected members, the respondent No. 1 is empowered to fill in such vacancy by nomination. Learned AGP Mr. Ashar submitted that the discretion is left to the respondent No. 1 under Section 15 to fill in vacancy occurred of elected member even by nomination. Learned AGP Mr. Ashar thus urged not to accept the challenge made by the petitioners. 8. Learned advocate Mr. Navin Pahwa appearing for respondent No. 2 submitted that by virtue of Sub Section 2 and 3 of Section 11 read with Section 15 of the Act, the State Authority is empowered to nominate a member on any vacancy occurs in any of the categories mentioned in Section 11(1). Mr. 8. Learned advocate Mr. Navin Pahwa appearing for respondent No. 2 submitted that by virtue of Sub Section 2 and 3 of Section 11 read with Section 15 of the Act, the State Authority is empowered to nominate a member on any vacancy occurs in any of the categories mentioned in Section 11(1). Mr. Pahwa submitted that if such power of the State Authority is not read in Sub Section 2 and 3 with and Section 15 of the Act, the Market Committee will be compelled to work without complete representation from the concerned category where the vacancy occurs. Mr. Pahwa submitted that since, Section 15 of the Act provides for filling up vacancy either by election or nomination, legislature appears to have clearly intended to leave it to the discretion of the State Authorities to fill the vacancy occurs after the general elections. Mr. Pahwa thus, submitted that since, the respondent No. 1 has decided to fill in the vacancy occurred in the category of agriculturists of the Market Committee by nomination, the respondent No. 1 could not be said to have committed any illegality in issuing the impugned notification. Mr. Pahwa submitted that the decision in the case of Manubhai Hargovanbhai Joshi (supra) will have no application to the facts of the case as the Hon'ble Full Bench was not concerned with the issue raised in the present petition. Mr. Pahwa thus, urged to dismiss the petition. 9. Having heard learned advocates for the parties, it appears that one Mr. Patel Kantilal Khemchandbhai elected in the general elections of the petitioner No. 1 Market Committee held on 16.01.2012 from agriculturists constituency since, died within short time, vacancy in the 10. class of agriculturists arose, for which the impugned order dated 02.01.2004 came to be passed by the respondent No. 1 for nomination of the respondent No. 2 and given publication of his name as nominated member on the petitioner No. 1 Market Committee as per Rule 27 of the Rules. 11. The question is whether for the vacancy occurred in the first category of agriculturists on account of the death of elected member shortly after the general election, the respondent No. 1 is justified in nominating the respondent No. 2 12. 11. The question is whether for the vacancy occurred in the first category of agriculturists on account of the death of elected member shortly after the general election, the respondent No. 1 is justified in nominating the respondent No. 2 12. Sub Section 2 and 3 of Section 11 reads as under: 2(a) If for any reason in the case of a market committee no election is held, the Director shall report the fact to the State Government and with the previous approval of the State Government nominate on the Market Committee members of the respective class specified in sub-section (1) from amongst persons qualified to be elected as members of the respective class; (b) The persons so nominated shall hold office for such period not exceeding two years as the Director may, with the approval of the State Government determine. (3) If for any reason in the case of a Market Committee an election does not result in the return of the required number of qualified persons to take office, the Director, after taking into consideration the views of the members already elected shall as soon as possible nominate from amongst person qualified to be elected such number as is necessary to make up the required numbers and the persons so nominated shall be deemed to have been duly elected as members of the market committee. 13. Sub Section 2 does not cover the situation where the vacancy occurs after the general election of the Market Committee. It only enables the director to nominate on the Market Committee the members of the respective class specified in Sub Section 1 of Section 11 from amongst the persons qualified to be elected as members of the respective class only when no election of the Market Committee is held for any reason. Clause B of Sub Section 2 provides that such nomination shall not be for more than 2 years. Sub Section 2 does not envisage a situation where the bye-election is required to be held. So far as Sub Section 3 is concerned, it gives power to the Director to nominate from amongst persons qualified to be elected such number as is necessary to make up the required numbers on the Market Committee when the election does not result in the return of required number of qualified persons to take office. So far as Sub Section 3 is concerned, it gives power to the Director to nominate from amongst persons qualified to be elected such number as is necessary to make up the required numbers on the Market Committee when the election does not result in the return of required number of qualified persons to take office. Thus, neither Sub Section 2, nor Sub Section 3 encompasses in it the situation of vacancy occurring after the general election of the Market Committee and therefore, a distinct and separate provision to fill in such vacancy is made in Section 15, which reads as under: 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. 14. The use of the words "vacancy occurs for any reason in the Market Committee" in Section 15 of the Act clearly indicates that provisions of Section 15 is not meant to deal with the situation arises at the time of general election of the Market Committee. The word "occurs" in Section 15 would mean to happen something subsequently. 15. Section 15 provides the manner in which the vacancy occurs in any of the classes is to be filled in. In unequivocal terms it is provided in Section 15 that any vacancy occurs for any reason in the Market Committee and remains unfilled 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 phrase "as the case may be" and "of a member thereto" give clear intention of the legislature that if the vacancy occurs in elected class of the members, the same shall be filled only by election and only of a member from particular class, wherein, the vacancy has occurred. The phrase "as the case may be" and "of a member thereto" give clear intention of the legislature that if the vacancy occurs in elected class of the members, the same shall be filled only by election and only of a member from particular class, wherein, the vacancy has occurred. Therefore, if a vacancy has occurred in the category of agriculturists the same shall be filled in by a member from the agriculturists constituency and if such vacancy is of elected member, the same shall be filled in by election. The phrase "in such manner as may be prescribed by the election or nomination" cannot be read in isolation. Such phrase would not give discretion to the State Authority to fill in the vacancy as per the whims of the State Authority. If such was the intention of the legislature, the legislature would not have added the words "as the case may be, of a member thereto" in Section 15. In my view, plain reading of the provisions of Section 15 would give clear intention of the legislature to fill in vacancy occurred only by election if such vacancy is of elected member or to fill in by nomination if such vacancy is of a nominated member. At this stage, Rule 26 of the Rules needs to be referred, which is reproduced herein below. 26. Filling in casual vacancies in the market committee.- The procedure for holding a bye election under section 15 for filling any vacancy shall be the same as that for a general election. 16. Rule 26 prescribes procedure for holding bye-election under Section 15 for filling any vacancy similar to the procedure for general election. Such procedure though like general election is for filling vacancy occurs for any reason of the elected member and that is why it is referred as bye-election in Rule-26. In view of the above clear intention of the legislature appearing from Section 15 of the Act read with Rule 26 of the Rules, the respondent No. 1 was not authorized to fill in the vacancy of the elected member in the agriculturists constituency by nomination and therefore the impugned notification for nominating respondent No. 2 on the Market Committee and giving publication as per Rule 27 in the official gazette cannot stand scrutiny of law. 17. 17. In the case of Manubhai Hargovanbhai Joshi (supra), Hon'ble Division Bench dealing with Special Civil Application No. 6803 of 2013, since, proposed to take a view which was in conflict with view taken by earlier Division Bench of this Court in the case of Dashrathsinh Ramjubhai Gohil Vs. State of Gujarat, 2011 1 GLH 795 , referred the matter to the full Bench. The petitioner therein, contended that declaration of the election program for 4 seats of the traders constituency was contrary to the judgment of Hon'ble Division Bench in the case of Dashrathsinh Ramjubhai Gohil (supra). However, Hon'ble Division Bench dealing with Special Civil Application No. 6803 of 2013 was prima-facie of the view that if the election of the whole Market Committee was not held, Sub Section 2 of Section 11 might have applicability and the election was held but requisite number of qualified persons to take office was not available, Sub Section 3 of Section 11 might have role to play. Hon'ble Bench then observed that neither Section 11(2)(a) nor Sub Section 3 of Section 11 takes care of a situation where election of certain constituencies of the Market Committee is held but election of a particular constituency of the Market Committee is not held. The Hon'ble Division Bench was of the view that if the interpretation of Section 11 and more particularly Section 11(2) and 11(3) is not made so as to include a situation of holding election of a particular constituency as against nomination as per Section 2 and Section 3 of the Section 11, it would frustrate the very basic principles of allowing elected candidates to be included in their respective office from amongst the voters. The Hon'ble Division Bench was of the further view that if limited interpretation is made of Section 15 that it would apply only in a case where the vacancy as referred to under Section 12 or 13 or 14 has arisen, the same would run counter to observation of the democratic principles in an institution at par with local self government like Market Committee, wherein, the members of elected representatives to be permitted to manage the affairs of the Market Committee from amongst the voters are to be maintained. 18. 18. Hon'ble Full Bench however, formulate following two questions in para No. 4 of the judgment in the case of Manubhai Hargovanbhai Joshi (supra) as under: (1) In a case where no election at all could be held due to withdrawal of nomination by all the candidates in the traders' constituency as provided in Section 11(1)(ii) of the Gujarat Agricultural Produce Markets Act, 1963, whereas pursuant to the election, requisite number of the candidates have been elected in other categories, whether either the procedure prescribed in Section 11(2) or Section 11(3) of the Act will be applicable for filling up the four vacancies in the traders' constituency. (2) Whether the unfilled vacancy in any category of the Market Committee not for death, resignation or disability but for withdrawal of candidatures of that particular category in a declared election will bring the case within the purview of Section 15 of the Act. Though, from question No. 2, it appears that Hon'ble Full Bench decided to address a question whether filling of vacancy in any category of the Market Committee not for death, resignation or disability, but for withdrawal of the candidature of that particular category in a declared election will bring case within the purview of Section 15 of the Act, Hon'ble Full Bench, however, incidentally considered a question about filling of vacancy occurring on account of death, resignation etc. of a member of a Market Committee in the context of Section 15 of the Act. Hon'ble Full Bench has held and observed in para No. 18 as under: 18. So far as Section 15 is concerned, it speaks of a vacancy occurring at any time for any reason in the market committee which was already duly filled in accordance with the provisions of the Act but thereafter, any vacancy has occurred and it remains unfilled. In such cases, it should 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. Once the provision of Section 15 of the Act mentions of vacancy occurring for any reason that must be construed to be a vacancy occurring after the prescribed number of seat in the market committee has been filled up. Once the provision of Section 15 of the Act mentions of vacancy occurring for any reason that must be construed to be a vacancy occurring after the prescribed number of seat in the market committee has been filled up. For instance, if after election is held, sufficient number of candidate has not been returned and consequently, the vacancy is filled up by nomination by taking aid of Section 11(3) and thereafter, such nominated member dies or resigns or is disqualified for any reason, his vacancy will be filled up by way of nomination as provided in Section 15. On the other hand, if one of the regularly elected member dies or resigns or becomes disqualified for any reason, such vacancy should be filled up by way of fresh election in terms of Rule 26 mentioned above. With great respect to the learned judges of the referring bench, we are unable to subscribe the view reflected in paragraph 10 of the referring judgment by giving importance to the observation that "democratic principles in an institution at par with the local self-government like marketing committee, wherein principles of elected representatives to be permitted to manage the affairs of the marketing committee from among the voters are to be maintained. 19. The above observations of the Hon'ble Full Bench would fortify my view that a vacancy occurs of elected member of the committee is to be filled in by only election called as bye-election under Section 15 of the Act. 20. For the reasons stated above, the petition is allowed and the notification dated 02.01.2014 at Annexure: A, page-18, issued by the respondent No. 1 for nomination of the respondent No. 2 on the petitioner No. 1 Market Committee and for publication of his name under Rule 27 of the Rules is hereby quashed and set aside. Rule made absolute. 21. At this stage, learned advocate Shri Navin Pahwa appearing for the respondent No. 2 requests that since, by election to fill in the vacancy in the agriculturists constituency may take time, this Court may permit the respondent No. 2 to continue to act as nominated member of the Market Committee so as to have complete representations of agriculturists on the Market Committee. 22. Learned AGP Mr. 22. Learned AGP Mr. Ashar also requested to continue respondent No. 2 as nominated member of the Market Committee on the ground that bye-election may not be possible in near future on account of code of conduct for the election of the parliament. It is not possible to accept the above requests made by learned advocates for the respondents after coming to the conclusion that respondent No. 1 has got no authority or power to issue notification for nomination of respondent No. 2 to fill in the vacancy meant for elected member of the Market Committee. Therefore, the request is rejected. Petition dismissed.