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2019 DIGILAW 3 (GUJ)

ARVINDBHAI MOHANBHAI VADALIYA (PATEL) v. STATE OF GUJARAT

2019-01-07

BELA M.TRIVEDI

body2019
JUDGMENT BELA M TRIVEDI, J. 1. The affidavit-in-rejoinder submitted by the learned advocate Mr. Rao for the petitioner is taken on record. Learned advocate Mr. Rao also seeks permission to amend the petition as per the draft amendment today, to which the learned advocates for the respondents vehemently object and submit that after the pleadings were completed, and the respondents having raised objection with regard to the alternative remedy, the proposed amendment is sought for. 2. Having regard to the submissions made by the learned advocates for the parties, it appears that the draft amendment has been submitted by the learned advocate for the petitioner at the belated stage seeking to set aside the order dated 26.09.2018 passed by the respondent No. 2 Director, which cannot be allowed, as the petitioner could have challenged the said order right at the institution of the petition which was filed on 12.11.2018. Hence, the draft amendment is rejected. 3. The petitioner Arvindbhai Mohanbhai Vadaliya (Patel) has filed the present petition under Article 226 of the Constitution of India seeking mainly following reliefs : - "(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside order / resolution dated 04.10.2018 passed by the respondent No. 4 Administrator, APMC, Visavadar granting / renewing licences to 137 traders as intimated by the respondent No. 4 in the letters dated 20.10.2018 (Annexure 'P') as the same is erroneous, illegal and against the provisions of law for the reasons stated in the Memo of Petition and in the interest of justice; 4. As per the case of the petitioner, he is the former Director of APMC, Visavadar, whose term had expired on 26.08.2018. The respondent No. 3 consequent upon the representation made by the petitioner, had forwarded the proposed programme for the election of APMC, Visavadar to the respondent No. 2 Director on 03.05.2018, however, the election programme was not declared. Thereafter, the APMC, Visavadar had filed a petition being Special Civil Application No. 9367 of 2018 before this Court which was dismissed by the Court on 30.07.2018. One more petition being Special Civil Application No. 13440 of 2019 was filed by one Shri Popatbhai Ramjibhai Ramani and others, however, the said petition is also pending without any progress. Thereafter, the APMC, Visavadar had filed a petition being Special Civil Application No. 9367 of 2018 before this Court which was dismissed by the Court on 30.07.2018. One more petition being Special Civil Application No. 13440 of 2019 was filed by one Shri Popatbhai Ramjibhai Ramani and others, however, the said petition is also pending without any progress. The Government, thereafter, appointed an Administrator in the APMC on 21/22.08.2018 exercising powers under Section 11(5) of the Gujarat Agriculture Product Markets Act, 1963 (hereinafter referred to as 'the APMC Act'). 5. It is further case of the petitioner that earlier the APMC had not granted licences to some 203 traders as per the resolution dated 30.05.2018, out of whom 141 traders had filed an appeal before the Director, APMC. The said appeal came to be allowed by the respondent Director vide the order dated 26.09.2018 (Annexure 'M'). Thereafter, the Administrator passed resolution / order granting / renewing the licences to 137 traders on 04.10.2018 which order is under challenged in the present petition. The respondent Director thereafter published the election programme on 16.10.2018 for holding the election on 09.01.2019. 6. At the outset, it may be stated that the petitioner had not joined the said 137 persons in whose favour the licences were granted by the APMC. However, the respondent Nos. 5, 6 and 7 having come to know about the filing of the petition, they being affected persons had submitted an application being Civil Application No. 1 of 2018 for impleading them as the party respondents in the petition. The said application having been granted by the Court on 12.12.2018, they were impleaded as the party respondent Nos. 5, 6 and 7. It further appears that as per the order dated 17.12.2018, the Coordinate Bench has permitted the petitioner to get the public notice issued in the newspaper instead of impleading all 137 licence holders, and pursuant to the said public notice, the learned advocate Mr. Dhaval Vyas has filed his appearance for some of the said licence holders. 7. The petition has been resisted by the respondent Nos. 5 to 7 by filing affidavit-in-reply and has also been resisted by one intervener Mr. Vipulbhai Hapani by filing separate affidavit-in-reply. Dhaval Vyas has filed his appearance for some of the said licence holders. 7. The petition has been resisted by the respondent Nos. 5 to 7 by filing affidavit-in-reply and has also been resisted by one intervener Mr. Vipulbhai Hapani by filing separate affidavit-in-reply. The said respondents have raised preliminary objections as regards the maintainability of the petition at the instance of the petitioner as also alternative remedy being available to the petitioner for challenging the impugned order. It is also contended that the petition is bad for non-joinder of necessary parties. 8. Learned advocate Mr. B.T. Rao for the petitioner vehemently submitted that the respondent Director having not held election though the representation was made by the petitioner at the relevant time, and now declaring the election after the licences were granted to 137 persons, is ex-facie malafide. Mr. Rao also submitted that the said 137 persons are not the residents of the concerned market area, and they had paid nominal market fee only with a view to show that they were trading within the market area. Their licences were cancelled earlier and now without verifying as to whether they had infact traded within the market area or not, in the previous year, the Administrator had granted licences vide the impugned resolution which is ex-facie illegal. According to him, the election was declared on 16.10.2018, and therefore, the petitioner did not file the appeal, under the said Act. 9. However, learned AGP Ms. Shruti Pathak, learned advocates Mr. Dipen Desai and Mr. Dhaval Vyas appearing for the respondents raising preliminary objection as regards the maintainability of the petition, submitted that not only the petitioner has not challenged the order dated 26.09.2018 passed by the Director setting aside the earlier order of APMC cancelling the licences of 141 license holders, the petitioner has also not exhausted alternative remedy of filing appeal for challenging the impugned order as contemplated under Section 27 of the said Act. They also submitted that the petition is bad for nonjoinder of the necessary parties as the said 137 traders who were granted licences would be affected persons, however, they have not been joined as the party respondents in the present petition. 10. They also submitted that the petition is bad for nonjoinder of the necessary parties as the said 137 traders who were granted licences would be affected persons, however, they have not been joined as the party respondents in the present petition. 10. In the instant case, it appears that earlier as per the order passed by the respondent Director, the appeal filed by 141 licence holders challenging the decision dated 30.05.2018 of the APMC cancelling their licences was allowed. The said order has remained unchallenged. Thereafter, the Administrator, APMC appears to have passed the order / resolution dated 04.10.2018 granting / renewing licences to 137 traders as intimated in the letter dated 20.10.2018 (Annexure 'N'). At this juncture, it is pertinent to note that the petitioner has not annexed the impugned order dated 04.10.2018 passed by the respondent Administrator, which is under challenged in the present petition, and on that ground alone, the petition deserves to be dismissed for non-production of the impugned order along with the present petition. The petition also deserves to be dismissed for non-rejoinder of the necessary parties as the petitioner had not bothered to implead the said 137 traders though the licences issued in their favour were sought to be cancelled in the present petition, however, the said issue pales into insignificance as the Coordinate Bench had permitted the petitioner to get the public notice issued instead of impleading the said 137 traders, and pursuant to the said public notice, learned advocate Mr. Dhaval Vyas appears for some of the said traders. 11. It is also significant to note that though the election programme was declared by the respondent Director vide the publication dated 16.10.2018 and the final voters' list was published on 19.11.2018, the petitioner had neither raised any objection against preliminary voters' list or final voters' list, nor had challenged the election programme declared by the respondent Director. It is also not disputed that the petitioner is not contesting the election. 12. Under the circumstances, the petitioner cannot be said to be an aggrieved person entitled to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India in view of decision of the Supreme Court in the case of Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and others reported in, (2013) 4 SCC 465 , in which it has been observed as under: - "9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same." 13. In that view of the matter, the petition being devoid of merits, is dismissed. Notice is discharged.