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Gujarat High Court · body

2016 DIGILAW 1002 (GUJ)

Patel Sales Corporation v. State of Gujarat

2016-05-06

C.L.SONI

body2016
JUDGMENT : C.L. Soni, J. 1. By the present group of petitions filed under Article 226 of the Constitution of India, the petitioners have challenged the common order dated 20.2.2016 passed by the Authorized Officer removing the names of the petitioners from the voters' list of the Traders' constituency for the election of Agricultural Produce Market Committee, Rajkot. 2. The common affidavit in reply and common further affidavit filed on behalf of respondent No. 6 are taken on record. 3. It appears that after provisional list of voters was prepared and published, respondent No. 6 raised objection against inclusion of the names of the petitioners in the voters' list of Traders' constituency. It is the say of the petitioners that they were not supplied with the copy of the objection raised by respondent No. 6. However, they were called upon by the Authorized Officer by letter dated 10.2.2016 to remain present with evidence as regards payment of market fees for the year 2014-15, 2015-16, copies of the licenses issued by the Market Committee, their accounts for showing purchase and sale of agricultural produce for the year 2014-15, 2015-16 with income tax returns, if filed by them, with sale tax number, if obtained, with copies of the bank statements for the year 2014-15, 2015-16 on the ground that as per the objection raised against them, they got included their names in the voters' list on the basis of bogus bills of doing business though actually they have not done any business in the market yard. It appears that the petitioners replied to such notice issued by the Authorized Officer pointing out that they are holding licenses, they have paid market fees and that they have done business in the market yard. With their reply, copy of the bill showing the business done in the market yard was produced. It further appears that the Authorized Officer then asked for opinion of the Secretary of the Market Committee vide letter dated 6.2.2016 at Annexure-R1 stating that in respect of the petitioners, whose names were sent for entering in the voters' list, objection was raised that they produced bogus bills and the objector represented for removal of the names of the petitioners from the voters' list. By the said letter, the Authorized Officer asked for the details of the petitioners and other persons against whom the objection was raised in tabular form containing 18 columns as mentioned in the said letter. The Secretary of the Market Committee then with his letter dated 10.2.2016 sent the details in tabular form stating clearly in Col. No. 7 that the petitioners have done business in the year 2014-15. The Authorized Officer however sent another communication dated 16.2.2016 to the Secretary of the Market Committee stating that the traders had produced more bills on the date of hearing through their advocate. He asked the Secretary to send his opinion on the bills produced by the traders including the petitioners and also asked as to whether the names of all traders are required to be continued in the voters' list or removed from the voters' list. In response to such communication, immediately on the next day, i.e. on 17.2.2016, the Secretary sent his report giving opinion that as per the details provided in Col. Nos. 6 to 15, the petitioners are not eligible to be included in the voters' list. It appears that based on such opinion of the Secretary of the Market Committee, the Authorized Officer has passed the impugned order for removal of the names of the petitioners from the voters' list of the Traders' constituency for the election of APMC, Rajkot. 4. Learned advocate Mr. B.S. Patel appearing for the petitioners submitted that the Authorized Officer has acted beyond his jurisdiction while passing the impugned order inasmuch as he blindly acted upon the opinion of the Secretary of the Market Committee that the petitioners are not required to be included in the voters' list of the Traders' constituency. Mr. Patel submitted that the Authorized Officer could not have taken the impugned decision of removal of the names of the petitioners from the voters' list without giving copy of the objection raised by the objector to the petitioners. Mr. Patel submitted that in any case, as observed in the impugned order, the only objection raised by the objector was that the names of the petitioners were included in the voters' list on the basis of bogus bills of the business produced by the petitioners before the Market Committee. Mr. Mr. Patel submitted that in any case, as observed in the impugned order, the only objection raised by the objector was that the names of the petitioners were included in the voters' list on the basis of bogus bills of the business produced by the petitioners before the Market Committee. Mr. Patel submitted that once the Market Committee itself sent the names of the petitioners for their inclusion in the voters' list, the Authorized Officer was not justified to call for the opinion of the Secretary and to act upon his simple opinion not to include the names of the petitioners in the voters' list on the ground that the bills produced by the petitioners were bogus. Mr. Patel submitted that in any case, it does not fall within the jurisdiction of the Authorized Officer to decide whether the bill produced by the traders for the purpose of including the names in the voters' list is bogus or not because he is not to test the veracity of such bill. Mr. Patel submitted that in any case, the Authorized Officer has not himself examined the merits of the objection raised against the petitioners and without any inquiry by him, he has passed the impugned order. Mr. Patel submitted that when the Secretary has not either stated in his report or in his affidavit before this Court that the bills produced by the petitioners are bogus, the Authorized Officer was not justified in removing the names of the petitioners from the voters' list simply by accepting the opinion of the Secretary not to include the names of the petitioners in the voters' list. Mr. Patel submitted that undisputably, all the petitioners are holding retailer licenses and they are not required to pay any market fees and the Secretary having opined that the petitioners have done business in the year 2014-15, names of the petitioners were required to be continued in the voters' list. 5. Learned senior advocate Mr. S.N. Shelat appearing with learned advocate Mr. Niral Mehta for the objector submitted that the nature of the objection was that the petitioners have not at all traded in the market yard so as to be qualified for inclusion in the voters' list of the Traders' constituency and in that context, the allegation of production of bogus bills by the petitioners was examined by the Authorized Officer. Mr. Mr. Shelat submitted that it was open to the Authorized Officer to hold summary inquiry by calling for the details from the Secretary of the Market Committee on the bills produced by the petitioners to ascertain whether the petitioners could be said to have traded in the market area. Mr. Shelat submitted that the Secretary's opinion in the context of details called for that trading done by the petitioners does not fall within the purview of Section 11(2) of the Gujarat Agricultural Produce Markets Act, 1963 ('the Act') when found to be supported by the material verified by the Authorized Officer, it cannot be said that that the Authorized Officer has acted in excess of his jurisdiction while passing the impugned order. Mr. Shelat submitted that the amendment brought by Amending Act of 2015 in Section11(2) of the Act provides for additional qualification whereby the legislature intended to include only those persons in the voters' list of the Traders' constituency who have actually traded in the market area and therefore, if the Authorized Officer has found that the petitioners have not traded in the market area as opined by the Secretary, it could be said that the Authorized Officer has acted in consonance with the legislative intention. Relying upon the definition of 'Trader' in Section (2)(iii) of the Act, and chamber dictionary meaning of word 'Trader' and relying upon some judgments of Hon'ble Supreme Court in the context of different Acts, Mr. Shelat contended that what is required is continuous business/trading activity by the license holder and production of one or two invoices by the license holder is not sufficient to be eligible for inclusion in the voters' list of Traders constituency. Mr. Shelat submitted that the petitioners having produced only one or two invoices which would not establish that the petitioners have traded in the market yard to be qualified for inclusion in the voters' list and holding of one or two invoices by the petitioners is just with a view to inflate the voters' list and to take part in election which this Court may not permit in exercise of powers under Article 226 of the Constitution of India. 6. Learned Government Pleader Mrs. Manisha Shah appearing with learned Assistant Government Pleader Mr. 6. Learned Government Pleader Mrs. Manisha Shah appearing with learned Assistant Government Pleader Mr. J.K. Shah submitted that the Authorized Officer was well within his jurisdiction in inquiring as to whether the petitioners had in fact traded in the market yard or that just on the basis of the bogus bill, their names were included in the voters' list. Mrs. Shah submitted that Rule 7 read with Rule 8 of the Gujarat Agricultural Produce Markets Rules, 1965 ('the Rules') do authorize the Authorized Officer to hold summary inquiry which in the present case, the Authorized Officer has done by calling for the report of the Secretary of the Market Committee with material available with the Secretary of the Market Committee in respect of the petitioners and having found that the opinion of the Secretary was just on the material examined for the purpose of finding out eligibility of the petitioners to be included in the voters' list and having found that the petitioners have not traded in the market yard, they would not be covered by the qualification provided in Section 11(2) of the Act and therefore, the Authorized Officer committed no error in passing the impugned order. 7. Learned advocate Mr. Bharat T. Rao and learned advocate Mr. Daxay Patel appearing for the Market Committee and other respondents respectively submitted that on being asked by the Authorized Officer, the Secretary examined the record of the Market Committee in respect of the petitioners and whatever found by the Secretary was placed before the Authorized Officer in the tabular form as required by the Authorized Officer and the Authorized Officer having found that the petitioners have not traded in the market yard in the context of the provisions of Section 11(2) of the Act, committed no error in holding that the petitioners cannot be included in the voters' list of the Traders' constituency. They submitted that the Authorized Officer when called for opinion of the Secretary acted as per the provisions of Rules 7 and 8 of the Rules and therefore, it cannot be said that the Authorized Officer has not independently examined the issue as regards the eligibility of the petitioners to be included in the voters' list for Traders' constituency. 8. They submitted that the Authorized Officer when called for opinion of the Secretary acted as per the provisions of Rules 7 and 8 of the Rules and therefore, it cannot be said that the Authorized Officer has not independently examined the issue as regards the eligibility of the petitioners to be included in the voters' list for Traders' constituency. 8. The Court having heard learned advocates for the parties finds that to prepare the voters' list for three different constituencies as required by Rule 5, the concerned co-operative societies and the Market Committee are to send the names of the persons for inclusion in the voters' list to be qualified to vote at an election of the Market Committee from their respective constituencies. As required by Rule 7 of the Rules, based on the information given by the societies and the Market Committees, the Authorized Officer is to publish provisional list with a notice stating that if any person whose name is not entered in the list of voters or who claims that his name or name of some other person is wrongly entered therein or has not been correctly entered, may within 14 days from the date of publication of the list apply to the Authorized Officer for amendment in the list of voters. Therefore, once an objection against inclusion of name of any person in the voters' list is raised, the Authorized Officer is to decide such objection. Present is the case where respondent No. 6 raised objection against inclusion of the names of the petitioners in the voters' list on the ground that they got their names included in the voters' list on the basis of bogus bills produced by them. It is not disputed that copies of the objection were not served to the petitioners but from the impugned order, it clearly appears that the objection against inclusion of the names of the petitioners was on the ground that the names of the petitioners were included in the voters' list on the basis of the bogus bills alleged to have been produced by the petitioners. Mr. Mr. Shelat would submit that the allegation of production of bogus bill was in fact to point out that there was no trading at all done by the petitioners and trading would mean that there has to be continuous business or trading carried out by the persons to be qualified for inclusion in the voters' list of the Traders' constituency, otherwise the amendment in Section 11(2) of the Act would not achieve its object. Mr. Shelat referred to relevant paragraphs of different decisions of Hon'ble Supreme Court to explain word 'Trade' and the word 'business', which are as under:-- "(1) In the case of State of Bihar and others v. Harihar Prasad Debuka etc. reported in AIR 1989 SC 1119 , Hon'ble Supreme Court has held in para 13 as under:-- "13. Article 301 mandates free trade, commerce and intercourse throughout the territory of India. Inter-State trade has, therefore, to be free from trade barriers. The mobility of goods throughout the territory of India has to be free. Free trade throughout the territory of India would be one with no tariffs and no restrictions or disadvantages of any kind of importing or exporting from the different States. Free trade means complete freedom of inter-State trade without any restrictions on the movement of goods between the States. Anyone aggrieved by infringement of the provisions of Art. 301 can seek his remedy from the court against the offending legislative or executive action. The word 'trade' has been used synonymously with the word 'business'. Trade or business would mean some real substantial and systematic or organised course of activity or conduct with a set purpose. In State of Bombay v. Chamarbaugwala, 1957 SCR 874 : ( AIR 1957 SC 699 ) this Court has held that the protection afforded by Art. 301 is confined to such activities as may be regarded as lawful trading activity and does not extend to activity which is 'res extra commercium' and cannot be said to be trade. The word "throughout the territory of India" extends the freedom not only to inter-State but also to intra-state transactions and movements. Freedom under Art. 301 does not mean absolute freedom but freedom from all restrictions and barriers except those which are provided in other Articles of Part XIII as well as regulatory and compensatory measures. The word "throughout the territory of India" extends the freedom not only to inter-State but also to intra-state transactions and movements. Freedom under Art. 301 does not mean absolute freedom but freedom from all restrictions and barriers except those which are provided in other Articles of Part XIII as well as regulatory and compensatory measures. The power of the Union or the State to exercise legitimate regulatory control is independent of the restrictions imposed by Arts. 302-305 as was held in State of Madras v. Natraja, 1968) 3 SCR 829: ( AIR 1969 SC 147 )." (2) In the case of State of Punjab and Another v. M/s. Bajaj Electricals Ltd., reported in AIR 1968 SC 739 , Hon'ble Supreme Court has held and observed in para 4 as under:-- "4. Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise. The expression "trade" is not defined in the Act. "Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning, it is repeated activity in the nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture. The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances. No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular place. The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts." (3) In the case of G. Girdhar Prabhu and others v. Agricultural Produce Market Committee reported in AIR 2001 SC 1363 , Hon'ble Supreme Court has held and observed in para 11 as under:-- "11. Initially, Mr. Sarangan submitted that the term "Trader" under Section 2 (48) can only refer to a person who buys. He initially submitted that the term "Trader" cannot apply to a person who sells a Notified Agriculture Produce. Initially, Mr. Sarangan submitted that the term "Trader" under Section 2 (48) can only refer to a person who buys. He initially submitted that the term "Trader" cannot apply to a person who sells a Notified Agriculture Produce. However to be noted that under the definition mere buying was not enough. The buying had to be for the purpose of selling or processing or manufacturing or for any other purpose. The buying had to be for a purpose other than domestic consumption. When this was pointed out to him the answer sought to be given was that if a person bought and sold the same Notified Agricultural Produce, then he may be a trader, but if he bought one Notified Agricultural Produce and sold another Notified Agricultural produce, then in the sale transaction he would not be a trader. It was submitted that cashew nut and cashew kernel were two separate and distinct Notified Agricultural Produce. It was submitted that the Appellants bought cashew nut. It was submitted that they produced cashew kernel and were only selling cashew kernel. It was submitted that as they were not selling the Notified Agricultural Produce which had been bought they could not be termed as a "Trader"." (4) In the case of Board of Revenue etc. v. A.M. Ansari etc., reported in AIR 1976 SC 1813 , Hon'ble Supreme Court has held and observed in para 16 and 17 as under:-- 16. The second question that falls for consideration is whether the respondents could be validly called upon to pay the sales tax. For the decision of this question, it is necessary to examine a few provisions of the Andhra Pradesh General Sales Tax Act, 1957. The charging section is Section 5 which in so far as it is relevant for the purpose of these appeals runs thus:-- "5. Levy of tax on Sales or Purchases of Goods:-- (1) Every dealer (other than a casual trader and an agent of a nonresident dealer) whose total turnover for a year is not less than Rs. 25,000 and every agent of a non-resident dealer whatever be his turnover for the year, shall pay a tax for each year, at the rate of four paise on every rupee of his turnover; "Every casual trader shall pay a tax at the rate of four paise on every rupee of his turnover. 25,000 and every agent of a non-resident dealer whatever be his turnover for the year, shall pay a tax for each year, at the rate of four paise on every rupee of his turnover; "Every casual trader shall pay a tax at the rate of four paise on every rupee of his turnover. Provided that a dealer in jaggery shall pay a tax at the rate of two paise on every rupee upto the 31st March 1966 and at the rate of three paise on every rupee on and from the 1st April 1966, of his turnover irrespective of the quantum of turnover." 17. The term 'dealer' has been defined in Section 2 (e) of the Act as follows:-- "dealer" means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration, and includes (i) the Central Government, a State Government, local authority, a company, a Hindu undivided family or any society (including a co-operative society), club, firm or association which carries on such business........ " (5) In the case of The Sole Trustee Loka Shikshana Trust v. The Commissioner of Income Tax, Mysore reported in AIR 1976 SC 10 , Hon'ble Supreme Court has held and observed in para 9 as under:-- "9. It is true that there are some business activities like mutual insurance and co-operative stores of which profit making is not an essential ingredient, but that is so because of a self-imposed and innate restriction on making profit in the carrying on of that particular type of business. Ordinarily profit motive is a normal incidence of business activity and if the activity of a trust consists of carrying on of a business and there are no restrictions on its making profit, the court would be well justified in assuming in the absence of some indication to the contrary that the object of the trust involves the carrying on of an activity for profit. The expression "business", as observed by Shah J. speaking for the Court in the case of State of Gujarat v. M/s. Raipur Mfg Co., (1967)1 SCR 618 : AIR 1967 SC 1066 ) though extensively used in taxing statutes, is a word of indefinite import. The expression "business", as observed by Shah J. speaking for the Court in the case of State of Gujarat v. M/s. Raipur Mfg Co., (1967)1 SCR 618 : AIR 1967 SC 1066 ) though extensively used in taxing statutes, is a word of indefinite import. In taxing statute it is used in the sense of an occupation or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure. Whether a person carries on business in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit motive. By the use of the expression "profit motive" it is not intended that profit must in fact be earned. Nor does the expression cover a mere desire to make some monetary gain out of a transaction or even a series of transactions. It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activity. In the case of Commr. of Income-tax v. Lahore Electric Supply Co. Ltd., (6O ITR 1 : AIR 1966 SC 843 ) Sarkar J. speaking for the majority observed that business contemplated by Section 10 of the Indian Income-tax Act, 1922, is an activity capable of producing a profit which can be taxed. In the case of the appellant-trust the activity of the trust, as already observed earlier, has in fact been yielding profits and that apparently accounts for the increase in the value of its assets." (6) In the case of Mangu Singh v. Mehra Ram, reported in AIR 2002 Rajasthan 231, Hon'ble Supreme Court has held and observed in para 5 and 8 as under:-- 5. We have considered the rival contentions. In order to appreciate the controversy involved, it will be useful to read definition of money lender" provided under Section 2 (10) of the Act of 1963, which is extracted as follows:-- 2 (10). We have considered the rival contentions. In order to appreciate the controversy involved, it will be useful to read definition of money lender" provided under Section 2 (10) of the Act of 1963, which is extracted as follows:-- 2 (10). 'money-lender' means (i) an individual or (ii) an undivided Hindu family, or (iii) a company (not being a banking company as defined in Section 5 of the Banking Regulation Act, 1949), body or institution other than such of them as may, by notification in the Official Gazette, be exempted from the provisions of this Act by the State Government on being satisfied that it is necessary or expedient so to do in public interest, or (iv) an un-incorporated body of individuals, who or which,- (a) carries on the business of money-lending in the State; or (b) supplies, as a trader or dealer, goods other than agricultural goods on credit on condition of payment of interest by the buyer at a rate higher than that prescribed in Section 29 in case the payment of sale price is not made within the stipulated period; or (c) has his or its principal place of such business in the State;" The expression business of money-lending" defined in sub-clause (2) of Section 2 also reads as follows:-- business of money-lending' means the business of advancing loans whether or not in connection with or in addition to any other business;" The word business" import a notion of a system, repetition and continuity. In 1996 (1) KB 584, it is observed, thus: Speaking generally, a man who carried on a money-lending business is one who is ready and willing to lend to all and sundry, provided that they are from his point of view eligible." To the same effect are the observations contained in (1989) AC 325 at p. 343. Lord Morris observed as follows: There can be no definition of the words exercising a trade". Lord Morris observed as follows: There can be no definition of the words exercising a trade". It is only another mode of expressing carrying on business" but it certainly carried with it the meaning that the business or trade must be habitually or systematically exercised and that it cannot apply to isolated transactions." The Apex Court in Barendra Prasad Ray v. The Income-tax Officer reported in AIR 1981 SC 1047 : (1981 Tax LR 657) has considered the expression business" in the back ground of the provisions of Income-tax Act and observed as follows: It is an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. It does not necessarily mean trade or manufacture only and includes within its scope professions, vacations and calling from a fairly long time." In Manipur Administration v. Nila Chandra Singh, reported in AIR 1964 SC 153 : (1965 (1) Cri LJ 120) the Court observed as follows:-- A single transaction does not constitute business. The concept of business postulates continuity of transactions." 8. Thus, the word business" imports the notion of system, repetition and continuity. The fact that money was advanced on interest for more than one occasion will not bring the plaintiff within the mischief of the word money-lender". The burden is on defendant to establish that the person from whom he has taken the loan is engaged in the business of advancing loan and he has been carrying on the said business systematically and there is a continuity therein. The person advancing the loan will not fall within the definition of moneylender" simply because on one or few isolated occasions he lent money to a stranger." 9. It is required to note that the above-judgments are in the context of different Acts. However, even if we go by the meaning and interpretation given on the words, 'Trade' and 'Business' in the said judgments, then also, same would not be of any help to the case of the objector inasmuch as the Authorized officer has not examined any material to find that there was no trading by the petitioners. However, even if we go by the meaning and interpretation given on the words, 'Trade' and 'Business' in the said judgments, then also, same would not be of any help to the case of the objector inasmuch as the Authorized officer has not examined any material to find that there was no trading by the petitioners. However, the question is also posed whether the Authorized officer is empowered to test the veracity of the bills produced by the petitioners so as to find whether the petitioners could be said to have actually traded in the market area to be qualified to be included in the voters' list of the Traders' constituency. But, in any case, it appears that the Authorized officer has not carried out any inquiry by himself. The Authorized officer after receipt of the objection had called upon the petitioners to produce different documents as referred above by his communication dated 10.2.2016 on the ground that the objection was raised against them that though they have not done any business/trading in the market yard, by producing bogus bills, they got their names included in the voters' list of the Traders' constituency. After the petitioners filed their reply with bills, the Secretary of the Market Committee was asked to give his opinion by providing requisite details as mentioned in different columns of the table in his communication dated 6.2.2016. In response to such communication, the Secretary provided column-wise details for each of the petitioners and it is required to note that for each of the petitioners, the Secretary has in clear terms stated that the petitioners have done business/trading in the year 2014-15. However, as required by column No. 16 of the table, to give opinion as to whether the petitioners are eligible to be included in the voters' list, the Secretary opined that they are not eligible to be included in the voters' list and such opinion is on the basis of the other details provided in column Nos. 6 to 15. The Court finds that the details provided in other columns were not relevant for the purpose of inclusion of the names but even if such were relevant, it was not for the Authorized officer just to accept the final opinion of the Secretary that the petitioners are not eligible to be included in the voters' list. 6 to 15. The Court finds that the details provided in other columns were not relevant for the purpose of inclusion of the names but even if such were relevant, it was not for the Authorized officer just to accept the final opinion of the Secretary that the petitioners are not eligible to be included in the voters' list. In fact, once the Market Committee sends names of the traders to be included in the voters' list, opinion of the Secretary based on the allegation of the false bills for non-inclusion of the names of the petitioners in the voters' list run counter to the Scheme of Rule 7 read with Rule 8 of the Rules. If this is permitted, the authority other than the Authorized officer can mingle with or play with solemn function of the Authorized officer to prepare voters' list, which can never be permitted. It clearly appears from the impugned order that the Authorized officer has simply accepted the opinion of the Secretary that it is not established that the petitioners have done trading so as to fall within the purview of Section 11(2 of the Act. There appears to be no independent examination of the materials by the Authorized officer. Therefore, the Authorized officer could be said to have exceeded his jurisdiction by accepting the opinion of the Secretary for the purpose of removal of the names of the petitioners from the voters' list by the impugned order. Learned senior advocate Mr. Shelat, however, submitted that the petitioners only produced one or two bills to show that they had done trading in the market area and such could not be said to be trading at all for the persons to be eligible or qualified under Section11(2) of the Act for inclusion in the voters' list as one or two bills would not satisfy the criteria of doing continuous trading and business activity. The Court, however, finds that the Authorized officer when addressed communication dated 17.2.2016 at Annexure-R5 to the Secretary, he referred production of the additional bills by advocate of the petitioners at the time of hearing. The Court, however, finds that the Authorized officer when addressed communication dated 17.2.2016 at Annexure-R5 to the Secretary, he referred production of the additional bills by advocate of the petitioners at the time of hearing. Therefore, the question whether some of the petitioners had produced only one bill or some of the petitioners had produced two bills or more bills is a matter of fact to be examined by competent forum and the Authorized officer would not have simply remained satisfied with the opinion of the Secretary. In such facts situation, it is not possible to accept the contention of learned senior advocate Mr. Shelat that the petitioners could not be said to have done trading activity as required by Section 11(2) of the Act for the purpose of their inclusion in the voters' list of the Traders' constituency. 10. For the reasons stated above, the impugned order passed by the Authorized officer is required to be quashed and set aside. It is accordingly quashed and set aside. 11. This Court vide order dated 11.4.2016 while issuing Rule passed interim direction, directing the Election Officer- respondent No. 3 to permit the petitioners to cast their votes in the election of APMC, Rajkot from the Traders' constituency. However, their votes were ordered to kept in sealed cover and result of the election of the Traders' constituency was ordered not to be declared without prior permission of this Court. Now, since the impugned order is quashed and set aside, names of the petitioners shall continue to be in the voters' list and votes cast by them shall now be required to be counted for the purpose of election of the members from the Traders' constituency. The Election Officer, therefore, shall open the sealed cover wherein the votes of the petitioners are separately kept and shall count the votes of the petitioners for the election of the members from the Traders' constituency and result of the election of the Traders' constituency shall be now declared by the Election Officer. 12. It is pointed out by learned advocate Mr. Daxay Patel that as per the direction of Hon'ble Division Bench, APMC, Rajkot was to be constituted by 15.4.2016. 12. It is pointed out by learned advocate Mr. Daxay Patel that as per the direction of Hon'ble Division Bench, APMC, Rajkot was to be constituted by 15.4.2016. In view of such direction of Hon'ble Division Bench, it is directed that after result of the election of the Traders' constituency is declared, the concerned authority shall take immediate steps for the purpose of constitution of the Market Committee as required under the Act. 13. Rule is made absolute to the above-said extent. Direct Service is permitted. 14. Since the petition, being Special Civil Application No. 3334 of 2016, is disposed of with other petitions, Civil Application No. 4042 of 2016 filed therein does not survive and stands disposed of accordingly.