SCA/15401/2008 of MOTABEN DASHRATHBHAI VASAIYA Vs STATE OF GUJARAT on 26 December 2008

SCA/1540120/2008

IN THE HIGH COURT OF GUJARAT AT AHMEDABADSPECIAL CIVIL APPLICATION No. 15401 of 2008

For Approval and Signature:

HONOURABLE MR. JUSTICE MOHIT S. SHAHand HONOURABLE MS.JUSTICE H.N.DEVANI

============================================= 1 [Whether Reporters of Local Papers may be allowed ]to see the judgment ?1 [Whether Reporters of Local Papers may be allowed ]to see the judgment ?

2To be referred to the Reporter or not ?

3 [Whether their Lordships wish to see the fair copy of ]the judgment ?the judgment ?

Whether this case involves a substantial question of 4law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

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MOTABEN DASHRATHBHAI VASAIYA - Petitioner(s)VersusSTATE OF GUJARAT & 4 - Respondent(s)============================================= Appearance :MS JIRGA D JHAVERI for Petitioner(s) : 1,MS NISHA PARIKH, AGP for Respondent(s) : 1, 2, 3 & 6.MR JA ADESHRA for Respondent(s) : 4,MR BP MUNSHI for Respondent(s) : 5,=============================================

CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH andHONOURABLE MS. JUSTICE H.N.DEVANI

Date : 26/12/2008ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH)

Leave to add DSP, Dahod as respondent No. 6.

RULE. Ms Nisha Parikh, learned AGP waives service of Rule for respondent Nos. 1 to 3 and 6, Mr JA Adeshra waives service of Rule for respondent No. 4 – Zalod Municipality and Mr BP Munshi waives service of Rule for respondent No. 5 – APMC, Zalod.

In the facts and circumstances of the case, this petition is taken up for final disposal today.

2. Under Section 11(1)(iv) of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as “the APMC Act”), every market committee shall have one member nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situate from amongst its councilors or, as the case may be, members who do not hold any general licence. The proviso to the said clause also indicates that where the councilors of the local authority have vacated office, the administrator shall nominate a member from amongst persons qualified to be councilors or members of the local authority and not holding a general licence.

3. The petitioner herein contends that 15 out of total 27 councilors of Zalod Municipality have given their consent under letter dated 5.12.2008 that the petitioner herein be nominated as a member of the APMC, Zalod. The petitioner's grievance is that instead of forwarding her name to the APMC, Zalod, the President of the Municipality has forwarded the name of another person without convening a meeting of the General Body of the Municipality. The petitioner has, therefore, prayed for a direction to restrain the Municipality from nominating any person under Section 11(1)(iv) of the APMC Act, except under a resolution of the General Body.

4. Affidavit-in-reply is filed by the Chief Officer of the Municipality stating that the Municipality received a requisition from the Secretary, APMC, Zalod along with the letter of the District Registrar of Co-operative Societies, Dahod calling upon the Municipality to nominate a councilor to be a member of the APMC within two days and therefore, on account of paucity of time, the President directed that nomination be made by passing a resolution of the Executive Committee of the Municipality by circular and as per the said circulatory resolution, it was decided to nominate Hirenkumar Kanubhai Patel and therefore, the Chief Officer forwarded the name of Hirenkumar Kanubhai Patel to the concerned authority for being nominated as a member of the APMC, Zalod.

5. Mr JA Adeshra for the Municipality has also invited our attention to the provisions of Section 53(1) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as “the Municipality Act”) providing for constitution of the Executive Committee and providing that all the powers of the Municipality are vested in the Executive Committee subject to any limitations prescribed by the Municipality especially in this behalf or generally by rules made under clause (a) of Section 271 and subject to the provisions of Sections 49, 54 and 55. Mr Adeshra has also invited our attention to the provisions of sub-section (3) of Section 51, which requires a notice of three clear days for a special General Body meeting of the Municipality.

Mr Adeshra also invites our attention to Para-6 of the affidavit of the Chief Officer stating that the letter dated 5.12.2008 of 15 councilors of the Municipality itself also requested for convening a special General Body meeting for considering the question of nomination. The petitioner's name was not forwarded as a nominee of Zalod Municipality as there was no General Body Resolution to that effect.

6. Ms Jirga Jhaveri, learned advocate for the petitioner submits that in spite of the specific request made by 15 councilors of the Municipality on 5.12.2008, the special General Meeting of the Municipality was not convened, otherwise, there was sufficient time to convene such a meeting with a three days advance notice. But now, the election of the Chairman and Vice Chairman of the APMC, Zalod is already scheduled to be held on 29.12.2008 at 01:00 p.m. as per the agenda notice dated 18.12.2008 issued by the Deputy Director of Agricultural Market and Rural Finance and District Registrar of Co-operative Societies, Dahod. It is, therefore, submitted that a special General Body meeting is required to be convened immediately.

7. Having heard the learned advocates for the parties, we find that at least after receipt of the letter dated 5.12.2008 of as many as 15 councilors, a special General Meeting of Zalod Municipality was required to be convened for electing a councilor of Zalod Municipality to be nominated as member of the APMC, Zalod under Section 11(1)(iv) of the APMC Act. For the inaction on the part of President of the Municipality in that behalf, the provisions of sub-section 11(1)(iv) cannot be rendered nugatory. The power to nominate a councilor is conferred on the Municipality. The provisions of Section 53(2) of the Municipality Act relied upon by the learned advocate for the Municipality are applicable to the powers of the Municipality under the Municipality Act, but the nomination of a councilor of the Municipality on the board of APMC is the power of the Municipality under the APMC Act and therefore, such power will have to be exercised by the General Body meeting and not by its Executive Committee.

8. The petition is accordingly allowed. The President and Chief Officer of Dahod Municipality are directed to convene a special General meeting of Zalod Municipality for electing a councilor of SCA/1540120/2008

the Municipality of Zalod Municipality as the nominee of the APMC, Zalod under Section 11(1)(iv) of the APMC Act. Such meeting shall be held on 28.12.2008 at 03:00 p.m. and urgent notice to that effect shall be issued by the Municipality today. Respondent No. 6 – DSP, Dahod shall also make the necessary arrangements for providing police bandobast at the place of meeting.

The Chief Officer of Municipality shall forward the name of the nominee elected by the Municipality to the Election Officer immediately after the Resolution is passed.

The Election Officer shall take into account the nominee of Zalod Municipality under Section 11(1)(iv) of the APMC Act on the basis of the resolution of the General Body of the Municipality.

A copy of this order shall be made available to the learned advocate for the Municipality, learned advocate for the APMC, Zalod and also the learned AGP appearing for the election authority.

Rule is made absolute. Direct service is permitted today for effecting service on respondent Nos. 3 to 6.

(MOHIT S. SHAH, J.)

mrpandya*

(HARSHA DEVANI, J.)