Dilipbhai C. Nathvani Chairman vs State of Gujarat and Others

V.M. Sahai, J.—We have heard Mr. B. B. Naik, learned senior counsel assisted by Mr. Dipen Desai, learned Counsel for the Petitioner and Mr. Kamal Trivedi, learned Advocate General assisted by Mr. Prakash Jani, learned Government Pleader and Ms. Sangita Vishen, learned Assistant Government Pleader for the Respondents.

The Petitioner''s committee of management was elected on 5th June, 2007 under the Gujarat Agriculture Produce Market Act, 1963 (for short, ''the Act''). In view of provisions of Section 11(4)(a) of the Act, the term of committee of management was four years. Therefore, the term of committee of management was to expire on 24th June, 2011 and the steps for reconstituting the committee by holding an election under the Act was to be taken 87 days before. On 1st March, 2011, the Petitioner filed instant writ petition with prayer to direct the Respondent authorities to declare the election of APMC, Kalavad as the term of committee of management is to expire on 24th June, 2011 and no steps had yet been taken by the State Government for holding elections for reconstituting the committee of management by holding elections. Notice was issued to State Government on 11th March, 2011. However, instead of taking steps for holding election, the State Government issued a show cause notice dated 15th March, 2011 u/s 46 of the Act levelling ten charges which mainly relate to issuing of license to ineligible persons and of making appointment on daily wages. The Petitioner has challenged the show cause notice dated 15th March, 2011 by filing writ petition being Special Civil Application No. 4075 of 2011, which is pending before the learned Single Judge. During the pendency of instant writ petition, the term of the committee of management came to an end on 24th June, 2011. Therefore, since the term of the managing committee is over, there is no question of now superseding the committee of the management u/s 46 of the Act.

The relief claimed in this petition is that the State Government and its authorities be directed to declare the elections of the Agriculture Produce Market Committee, Kalavad and complete the election process before the expiry of the term and restrain the Respondent authorities from appointing administrator in the APMC, Kalavad.

It appears that the State Government has proceeded to take action against the Petitioner''s committee of management u/s 50 of the Act. According to the Petitioner, notice u/s 50 of the Act dated 15th December, 2009 issued levelling two charges against the Petitioner. Final decision has been taken by the Director on 1st January, 2011 which is challenged before the revisional authority.

Learned Advocate General has informed the Court that individual notices have been issued where the licence issued to cooperative societies and traders have been renewed.

We are not concerned in this petition about the question of individual licence or about the recovery proceedings initiated by the State Government u/s 50 of the Act. The only question before us is with regard to holding of the election of Committee of the Management. The learned Single Judge of this Court has rendered the judgment in case of Pradeepbhai Parshottambhai Sojitra v. State of Gujarat in Special Civil Application No. 15414 of 2008, dated 23rd January, 2009 wherein the learned Single Judge has relied on earlier two decisions of this Court and has held that where the statutory term of elected body is over, it would be required for the State Government to consider the question of extension of term of existing committee of management under the provisions of Section 11(4)(aa) of the Act, and after considering the question of extension of the term of existing body, the State Government may take a decision to appoint an administrator, if the term of the outgoing body is not to be extended for valid reasons. The learned Advocate General informed the Court that this decision of learned Single Judge has been challenged by State Government in Letters Patent Appeal, which is still pending for disposal. However, learned Advocate General has fairly stated that judgment of the learned Single Judge has not been stayed. The learned Advocate General has vehemently submitted that the provisions of Section 11(4)(aa) and Section 11(5) of the Act were brought into existence by Gujarat Agriculture Produce Market (Amendment) Act, 1990 on the same day i.e. on 31st July, 1990.

A discretion vested in the State Government to exercise powers either of the two aforesaid sections. In a normal case the State Government have reasons to be recorded in writing for arriving at a conclusion to extend the term of committee of the management and in that case the State Government must have valid reasons to be recorded in writing to decide not to extend the term of committee of the management and appoint administrator to manage the affairs.

The learned Advocate General has urged that u/s 11(5)(a) the Statute does not provide for recording any reasons. If the State Government intends to invoke the powers u/s 11(5)(a) of the Act without considering the extension which is required to be granted u/s 11(4)(a) then in that all fairness the State Government must record that reasons exist as to why they are not proceeding, as to why they are not granting extension u/s 11(4)(aa) of the Act. Therefore, in all fairness the State Government should record its reasons in writing to take action u/s 11(5)(a) of the Act.

Therefore, we agree with the view taken by the learned Single Judge. Having heard learned Counsel for the parties, we are of the considered opinion that before exercising powers u/s 11(5) (a) of the Act the State Government has to take decision u/s 11(4)(aa) as to whether it amounts to continue the term of committee of management for a period of one year or not and for arriving at such a conclusion, the State Government has to record the reasons for extending or not extending the term of the committee of the management.

Therefore we do not find that the State Government should have any difficulty in first taking a decision u/s 11(4)(aa) of the Act and communicate the decision to the Petitioners and thereafter proceed to take action u/s 11(5)(a) of the Act in accordance with law.

With the aforesaid direction, this petition stands finally disposed of. We make it clear that while deciding this writ petition we have not adjudicated the claim of rival parties on merits.