Kantibhai Ambabhai Savaliya vs State of Gujarat and Others

M.D. Shah, J.—This petition under Article 226 of the Constitution of India seeks to quash and set aside order dated 13-5-2011 passed by the Authorized Officer & Auditor Gr.II, New Post-I, District Registrar, Cooperative Societies, Junagadh, whereby application filed by the Petitioner raising objections qua inclusion of names of ineligible persons shown at Annexures-C,L and M to vote as far as traders'' constituency is concerned was disallowed. This petition also seeks to quash and set aside issuance of licenses and/or renewal of licenses by AMPC, Junagadh, in the meeting dated 22-3-2011.

An advertisement was published on 16-3-2011 inviting applications for issuance of license by Agricultural Produce Market Committee (''APMC'' for short), Junagadh. In pursuance thereto, applications of as many as 547 persons were allowed on 22-3-2011. Against the same, the Petitioner submitted application on 23-3-2011 addressed to Shri M.D. Chauhan, the Respondent No. 2-Director, Agricultural Marketing and Rural Finance, Gandhinagar, raising objections. The Respondent No. 2, therefore, gave instructions vide letter dated 24-3-2011 to Respondent No. 3-Deputy Director and District Registrar, Agricultural Marketing and Rural Finance, Junagadh. The Respondent No. 3 thereafter prepared a report which is produced along with the affidavit-in-reply filed on behalf of Respondent No. 6 from page 130 onwards. However, the objections raised by the Petitioner were not considered as communicated vide order dated 13-5-2011 passed by the Respondent No. 5. Hence, the present petition.

Heard learned advocate, Mr. Shirish Joshi for the Petitioner, learned AGP, Ms. Shachi Mathur, for the Respondent No. 1-State, learned advocates, Mr. B.M. Mangukiya for the Respondent No. 4 and Mr. B.S. Patel for Mr. Chirag B. Patel for the Respondent Nos. 7 to 52.

It is submitted by learned Counsel, Mr. Shirish Joshi, that in pursuance of order dated 18-4-2011 passed by this Court in Special Civil Application No. 4787 of 2011, report was submitted by the Deputy Director-District Registrar showing prima facie that patent illegality has been committed while granting licenses and, therefore, petition is required to be allowed and the objections raised by the Petitioner deserve to be considered by cancelling the licenses of persons shown at Annexures-C,L and M to the petition.

It is very difficult to agree with the said submission in view of the provisions of Section 27 of the Gujarat Agricultural Produce Markets Act, 1963 (''the Act'' for short) which provided that no license shall be suspended or cancelled unless the holder thereof has been given a reasonable opportunity to show cause against such suspension or cancellation and, therefore, only on the basis of said report, at this juncture, licenses granted by the Committee by decision dated 23-3-2011 cannot be suspended or cancelled.

Apart from the above, remedy is available to the Petitioner to prefer appeal if he is aggrieved by the impugned order. However, he did not prefer appeal though he was very well aware of the provisions of law. In similar set of circumstances in past, the Petitioner has preferred appeal. The Petitioner approached the Director by writing letter dated 23-3-2011 instead of preferring appeal as provided u/s 27(5) of the Act. Section 27(5) of the Act reads as under:

27(5) Any person aggrieved by an order refusing to grant or renew a license or suspending or cancelling any license may, appeal within thirty days from the date of the communication of the order to him -

i) to the Director, if such order has been made by a market committee, and

ii) to the State Government, if such order has been made by the Director.

It may be noted that once the term of an elected body of APMC is about to be completed, then election process is required to be started and, therefore, till then, the Petitioner did not find it desirable to wait for filing appeal before the competent authority. After publication of notification for the election on 6-4-2010, the Petitioner has preferred Special Civil Application No. 4787 of 2011 wherein following observations have been made by this Court (Coram: S.R. Brahmbhatt, J.) on 18-4-2011 in para 6:

In view of this, this Court is not inclined to entertain this petition, however, rejection of this petition would not amount to expression of any opinion on merits of the contentions canvassed by the Petitioners with regard to the genuineness of license of licensee. It is expected that the Authority i.e. Respondent No. 3 - Deputy Director shall look into the matter as expeditiously as possible, in view of the facts narrated by the Petitioners in the representation and in light of relevant provisions and guidelines. Present petition is disposed accordingly.

It appears that within ten days of passing of the said order, the Respondent No. 3-Deputy Director-District Registrar, Agricultural Marketing and Rural Finance, Junagadh, submitted his report on 28 4-2011.

Following main prayers have been made by the Petitioners:

(B) YOUR LORDSHIPS May be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by quashing and setting aside the impugned order dated 13/5/2011 passed by the Respondent No. 5, at Annexure "A" to the petition, in the interest of justice.

(C) YOUR LORDSHIPS May be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the Respondents, their officers, agents and servants to re-consider the objections of the Petitioner, dated 4-5-2011, at Annexure "K" to the petition, in view of the facts and details narrated in the present petition, in the interest of justice.

(CC) The Hon''ble Court may be pleased to quash and set aside the issuance of licenses and/or renewal of licenses by APMC, Junagadh in the meeting dated 22-03-11.

(D) YOUR LORDSHIPS May be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by directing the Respondents, their officers, agents and servants not to include the names of the alleged license holders whose names have been included in the List at Annexure "C" to the petition, List at Annexure "L" to the petition and List at Annexure "M" to the petition, in the interest of justice.

If the aforesaid prayers are granted at this stage, it would amount to interfering with the election process which is scheduled to be held as stated by the learned advocates of the parties on 8-7-2011 i.e. tomorrow. For challenging the election, remedy is available to the Petitioner to file appropriate petition before the appropriate forum but by filing this petition, the Petitioner would not get any of the reliefs prayed in this petition as granting of any relief would directly affect the process of election.

As observed above, the Petitioner did not bother to prefer appeal against the decision taken by the APMC dated 22-3-2011 and after a long lapse of time preferred this petition on 16-5-2011 after publication of election schedule.

It is submitted by Mr. Shirish Joshi that the Petitioner did not prefer appeal as he was waiting for the decision to be taken by the Deputy Director in pursuance of letter written by the Director dated 23-3 2011. It is further submitted that even if the Petitioner wanted to challenge the order by preferring appeal, he has to prefer number of appeals and deciding of those appeals will take considerable time and, therefore, when prima facie it is established that patent illegality or fraud is committed, the Petitioner can approached this Court without preferring appeal and this Court has power to pass necessary order. He relied on a decision of this Court in the case of Shrutbandhu H. Popat v. State of Gujarat and Ors. reported in 2008 (1) G.L.H. 575 wherein it has been held in para 21 as under:

In view of the above material on record and in view of the fact that the meeting of the licence sub-committee was convened on 20.1.2007 after the Dy. Director for Agricultural Marketing and Rural Finance had sent a communication dated 10.1.2007 for fixing the date of election and the Director of Agricultural Marketing and Rural Finance had already declared the election program on 17/18th January 2007 (which program was subsequently merely varied by postponing the date of polling and the other stages of election) and having examined the scheme of the Act and the Rules, we have no manner of doubt in holding that the resolution dated 20.1.2007 of the licence sub-committee for granting as many as 293 licences (269 fresh licences) was not only illegal but also a fraud on the election process. As held by the Hon''ble Apex Court in Election Commission of India Through Secretary Vs. Ashok Kumar and Others, without granting stay on the election process, this Court can intervene for the purpose of strengthening the democracy and for removing the obstacles to the fair election process. In our view, therefore, this is an extraordinary situation justifying our intervention for the purpose of striking down the resolution dated 20.1.2007 of the licence sub-committee and to direct the Respondent-authorities not to permit the persons granted licences pursuant to the said resolution to participate in the elections to APMC Kalavad, Dist. Jamnagar.

It is very difficult to agree with the aforesaid submissions because though it was within the knowledge of the Petitioner that appeal was required to be preferred, then also, he did not prefer appeal only under the apprehension that appeals would not be disposed of within reasonable time. No satisfactory explanation could be put forth by the Petitioner as to why appeal was not preferred and why this petition has been filed at belated stage.

In view of the above, though this petition is tenable under Article 226 of the Constitution of India, this Court is not inclined to entertain this petition at this stage as remedy is available to the Petitioner to prefer appeal u/s 27(5) of the Act. This petition is, therefore, disposed of. Notice is discharged.

It is clarified that the Court has not gone into the merits or veracity of the allegations made in the petition and has not expressed any opinion. However, mere disposal of petition shall not be treated as rejection of the contentions of the Petitioner. It is further clarified that in case the proceedings proposed to be initiated by the Petitioner could be taken up or determined only one after the other, each of the authority approached by the Petitioner shall dispose of the proceeding before it as expeditiously as practicable, and preferably within three months. This clarification has been given by this Court in view of the similar clarification given by this Court in Special Civil Application No. 853 of 2011 with Special Civil Application No. 854 of 2011 decided on 3-2-1011.

This Court is taking serious note of the fact that although in the advertisement inviting applications for issuing license, last date of receipt of applications was stated to be 31st March, 2011, for the reasons best known to the APMC, they took decision on 22-3-2011 and nothing is forthcoming from the record as to what prompted the APMC to take a decision prior to the last date of receipt of applications.

This Court is taking further serious note of the fact that the Respondent No. 2 has not done anything in the matter though application raising objection was submitted by the Petitioner on 23-3-2011 i.e. next day of taking decision by APMC on 22-3-2011 except addressing a letter to the Deputy Director and District Registrar, Junagadh. It was in pursuance of direction given by this Court in the petition filed by the Petitioner that the report was submitted with affidavit filed by the Deputy Director and District Registrar, Agricultural Marketing and Rural Finance, Junagadh i.e. the Respondent No. 6. However, nothing has come on record to indicate that any steps were taken by the Respondent No. 2-Director in pursuance of the application submitted by the Petitioner. In this fact situation, the Secretary, Agriculture and Cooperation Department, Sachivalaya, Gandhinagar, is directed to look into the matter and issue necessary suitable instructions to Respondent No. 2, if he thinks fit, for the lapse on his part.