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2015 DIGILAW 909 (GUJ)

State of Gujarat v. Hardevsinh Balwantsinh Jadeja

2015-09-11

JAYANT M.PATEL, N.V.ANJARIA

body2015
JUDGMENT : Jayant M. Patel, Actg. C.J. 1. Admit. Mr. Rao, learned Counsel appearing for the respondents-original petitioners waive notice for admission. With consent of learned Counsel appearing for both the sides, appeal is finally heard. The present appeal is directed against order dated 31st August, 2015 passed by the learned Single Judge of this Court in Special Civil Application No. 13290 of 2015 whereby learned Single Judge for the reasons recorded in the order, has granted interim relief in terms of Paragraph 36(B) until the final disposal of the petition. 2. We have heard Mr. Prakash Jani, learned Additional Advocate General for the appellant-State and its officers and Mr. B.T. Rao, learned Counsel appearing for the respondents. 3. The contention raised on behalf of the appellants was that the term could not be extended by the Government exceeding one year in aggregate as per the provision of Sec. 11(4)(aa) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as 'the Act'). Learned Additional Advocate General submitted that when the Government exercised power for extension of the term on 30th December, 2012, such term could not be extended in any case exceeding one year, but it was extended for a period of one year or until the election is held. Thereafter, by now more than two-and-half-years have passed and the mistake made by the Government is corrected. He submitted that as per the provisions of the statute there is no authority for extension of the term of any Market Committee exceeding one year from the date of expiry of the term of the Market Committee. He submitted that learned Single Judge passed mandatory order as the charge was already taken over by the District Registrar and such mandatory order ought not to have been passed since the petition is virtually allowed as per the learned Additional Advocate General. He submitted, that hence, the order be interfered with by this Court in the present appeal. 4. Whereas Mr. Rao, learned Counsel appearing for the original petitioners-respondents herein submitted that Government now cannot back out from its stand that it has no power to extend the term exceeding one year. In his submission, provision of Sec. 11(4)(aa) was already in existence at the time when term was extended. Thereafter, election is not held and election is delayed for one or the other reason. In his submission, provision of Sec. 11(4)(aa) was already in existence at the time when term was extended. Thereafter, election is not held and election is delayed for one or the other reason. He submitted that for holding of election, Special Civil Application No. 14494 of 2015 has been preferred by the office-bearers of the Market Committee and Notice has been issued by this Court making it returnable on 29th September, 2015 before other Bench and direction may be given for holding election. He submitted that the Government has given same treatment to A.P.M.C, Gondal. There also the term has been extended for a period of one year or until the election is held and by taking ground of pendency of the matter before the Apex Court, election of A.P.M.C, Gondal is also not held and the State has taken stand in the present matter that on account of pendency of the matter before the Apex Court in case of A.P.M.C, Gondal, election is not being held of A.P.M.C, Rajkot which is in the present case. He submitted that since the Government wanted to back out and there are political mala fide for curtailing the term of Market Committee, learned Single Judge exercised power for grant of interim relief. He submitted that the interim relief of mandatory nature though is granted considering the facts and circumstances of the case. As per Mr. Rao, after the order passed by the learned Single Judge, charge has been handed over by the subordinate of the District Registrar to the office-bearers of the Market Committee. Of course, as per Mr. Jani, learned Additional Advocate General, the charge has not been handed over but ex parte charge has been taken over. 5. The principal aspect which may arise for consideration in the present matter is the scope and ambit of the provision of the statue under Secs. 11(4)(a) and 11(4)(aa) of the Act. Sections 11(4)(a) and 11(4)(aa) of the Act, for ready reference, is reproduced hereunder: "(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. (4)(aa) The State Government may, by order published in the Official Gazette and for reasons to be recorded therein, extend the said term for a period not exceeding one year in the aggregate." 6. (4)(aa) The State Government may, by order published in the Official Gazette and for reasons to be recorded therein, extend the said term for a period not exceeding one year in the aggregate." 6. The aforesaid Sections, shows that normally terms of any market committee will be four years from the date of its first General Meeting. Further, as per sub-sec. (4)(aa), the State Government may extend the term of any market committee for the reasons recorded therein for a period not exceeding one year in aggregate. Meaning thereby, the maximum power available to the State Government would be for extension of one year. 7. Sub-section (5)(a) of Sec. 11, for ready reference, is reproduced hereunder: "(5)(a) Where the term of office of a market committee has expired, the State Government shall, by order published in the Official Gazette, direct that- (i) such person as may be appointed by the State Government from time to time shall be the Administrator to manage the affairs of the market committee, during the period beginning with the date specified in the order and ending on the day immediately preceding the date of the first general meeting of the market committee as reconstituted on the expiry of the term of the market committee (hereinafter in his sub-section referred to as "the said period"); (ii) the market committee shall be reconstituted within such period not exceeding one year in the aggregate as may be specified in the order." 8. As per above-referred Sections, when term of any market committee has expired, the State Government shall direct appointment of any officer as Administrator to manage the affairs of the market committee. As per the aforesaid sub-sec. (5)(a)(i), upon expiry of the term of the Market Committee, appointment of Administrator is mandatory requirement on part of the State Government. It is true that as per sub-clause (ii) of sub-sec. (5)(a), market committee is required to be reconstituted within the maximum period of one year in aggregate. To say in other words, even if the Administrator is appointed, by mode of election, Market Committee would be required to be reconstituted within a period of one year. Life of Administrator cannot exceed beyond one year and it will be obligatory on part of the competent Authority to hold election and to reconstitute Market Committee during one year from the date of appointment of the Administrator. 9. Life of Administrator cannot exceed beyond one year and it will be obligatory on part of the competent Authority to hold election and to reconstitute Market Committee during one year from the date of appointment of the Administrator. 9. Taking into consideration the aforesaid scheme and the provision of the Act, if the facts of the present case are further examined, it does prima facie appear that the order of the State Government for extension of the term exceeding one year was without any authority in law and the State Government could not exercise power for extension of the term of the market committee exceeding one year from the date of expiry of the term of the market committee. It appears that initially power was exercised on 30th December, 2012 for extension of the term of the market committee for one year, but the additional clause provided was until the election is held. If the words "whichever is earlier" was there, it could be justified but in absence of such words, it would mean that whichever is later. To say in other words, if election is not held within one year and if holding of election was beyond one year, the term would get extended beyond one year, which in our view, is beyond the scope and ambit of sub-sec. (4)(aa) and it can be said that such action for extension of term exceeding one year would be ultra vires to the provision of the Act. 10. Attempt on part of learned Additional Advocate General was to contend that mistake is corrected, whereas Mr. Rao, learned Counsel appearing for the original petitioners-respondents herein contended that the Government cannot be permitted to back out from the order passed for extension of the term until the election is held and he also contended that when election is delayed by the Government itself, it cannot be allowed to take undue benefit of its own wrong, and therefore, there is more reason not to permit the Government to back out from earlier order passed for extension of term until the election is held. 11. Mr. Rao, learned Counsel appearing for the original petitioners-respondents herein relying upon provision of Secs. 11. Mr. Rao, learned Counsel appearing for the original petitioners-respondents herein relying upon provision of Secs. 11(2)(a) and 11(2)(b) contended that the State Government has power to nominate body on account of the fact that no election are held and such power can be continued for a period exceeding one year, and therefore, he submitted that it could be read by this Court that the State Government has power to extend the term exceeding one year. 12. The contention may prima facie throw some substance but upon further scrutiny, it lacks merit inasmuch as it is not that the State Government exercised power under Sec.11(2) of the Act at the time when the term was extended. Further, even if such contention is considered for the sake of examination, Sec. 11(2)(b) of the Act provides for maximum period of two years. If the last extension is considered from 30th December, 2012, in any case, maximum period of two years is over on 30th December, 2014. Under the circumstances, examining the matter in either manner, we do not find that such contention would be of any help to Mr. Rao, learned Counsel appearing for the original petitioners. 13. In our view, Court would be required to give weightage to the statute against desire of either side. Once, as observed hereinabove, Government had no authority to extend the term exceeding period of one year, any action on part of the Government for curtailment of the term, which resulted into period exceeding one year, could not be said to be unwarranted in law. The purpose behind curtailment of the term, in our view, would not be of much relevance when the authority under the law had ceased of the Government. Whether the Government consciously opted to be abide by the law or with some other purpose, would hardly make any difference so far as the authority vested in law is to be exercised. The purpose behind curtailment of the term, in our view, would not be of much relevance when the authority under the law had ceased of the Government. Whether the Government consciously opted to be abide by the law or with some other purpose, would hardly make any difference so far as the authority vested in law is to be exercised. In any case, when the Government had no authority to extend the term beyond one year, and resultantly, if the Government has attempted to correct its mistake by the impugned order, any interim order granted for suspending or staying the operation of the action of the Government and further grant of mandatory relief, in OUT prima facie view, would run counter to the statute itself, which the Court would normally not permit in exercise of power by way of interim measure under Art. 226 of the Constitution. As such allegations of political or mala fide exercise of power, they are too vague and too general, without naming any person nor any such person is joined as party in main Special Civil Application. Further, in any case when the State Government authority to extend the term of the market committee has ceased, such aspect would be inconsequential. If the order of the learned Single Judge is considered in light of the above-referred observation, we find that the order passed by the learned Single Judge cannot be maintained and deserves to be set aside. Hence, the impugned order passed by the learned Single Judge is set aside with further observation and direction that parties shall be at liberty to raise contentions in accordance with law before the learned Single Judge at the time of final hearing of the main petition. Further, the observations made by this Court in the present order shall not prejudice rights of either party and the learned Single Judge shall be at liberty to take independent view of the matter and in accordance with law without being influenced in any manner by any observation made in the present judgment, since the issue has been considered at the interim stage and rights and contentions of the parties should remain open to be decided at the time of final disposal of the main petition. Appeal is allowed to the aforesaid extent. Considering the facts and circumstances of the case, no order as to cost. Appeal is allowed to the aforesaid extent. Considering the facts and circumstances of the case, no order as to cost. After the pronouncement of the order, Mr. Rao, learned Counsel appearing for the original petitioners-respondents herein prays that the order may be suspended for a period of four weeks so as to enable his clients to approach higher forum and he submitted that his clients are already in charge of the administration. Whereas Mr. Jani, learned Additional Advocate General, submits that such interim protection may not be granted and so far as charge of administration is concerned, original petitioners have ex-parte taken over the charge which may not be endorsed to or continued by this Court. Considering the facts and circumstances we find that when the order of the learned Single Judge is set aside, law should take its own course, more particularly when there are rival claims on the aspect of charge of the administration of the market committee. Hence rejected. ORDER IN CIVIL APPLICATION In view of order passed in Letters Patent Appeal, Civil Application would not survive and shall stand disposed of. L.P.A. dismissed.