(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1 Issue Notice to the respondents. Ms. Reeta Chandarana, learned AGP waives service of notice on behalf of respondents No. 1, 2 and 3.
2 We have heard Mr. Mihir Joshi, learned Senior Counsel assisted by Mr. Dipen Desai, learned Advocate, for the petitioner and Mr. P.K. Jani, learned GP assisted by Ms. Reeta Chandarana, AGP for the respondents No. 1, 2 and 3.
3 The facts are not in dispute that as all the 17 candidates, who are the nominated members of the Traders Constituency of APMC, Deesa, District - Banaskantha, have withdrawn their nomination papers and, therefore, the election with regard to Agriculture Produce Market Committee, Deesa, District - Banaskantha, could not be held. The Government has notified for holding the election of the said Traders Constituency of APMC, Deesa, District - Banaskantha, on 28th February, 2012 as per the provisions of Section 15 of the Gujarat APMC Act, 1963. The learned counsel for the petitioner has urged that under Section 15 of the Act only those vacancies could be filled which have occurred under Sections, 12, 13 and 14 of the Act. If no election is taken place with regard to the Traders Constituency, then Section 11(2) and (3) of the Act would apply, the Director, Agricultural Marketing and Rural Finance, with the approval of the State Government, can nominate the members, who are qualified to be elected for the Traders Constituency and the election could not be held as notified by the State Government. Mr. Mihir Joshi, learned Senior Counsel has fortified his argument by placing reliance on a decision of the Division Bench of this Court in the case of Dashrasthsinh Ramjibhaiu Gohil vs. State of Gujarat and Ors., as reported in 2011 (1) GLH, 795, wherein the Division Bench has observed in para-9 as under:
" The record reveals that after the election process was finalized, an application was preferred under Section 15 of the Act on the premise which, according to us, is absolutely wrong and erroneous that as one vacancy has arisen election of one seat deserves to be ordered. The Director exercised the powers under Section 15 of the Act as if the vacancy had arisen and the by-election was ordered.
At this stage, it would also be expedient to quote Section 15 of the Act :
"15. Filling up of vacancies:- If at any time any vacancy occurs for any reason in a market committee and remains unfilled, it shall be filled within such period and in such manner as may be prescribed by the election or nomination as the case may be, of a member thereto. The member so elected or nominated shall hold office so long only as the member in whose place he is elected or nominated would have held it if the vacancy had not occurred."
On plain reading of Section 11(1)(iii) along with the proviso thereto and Section 15 of the Act, it is abundantly clear that the exercise of powers by the Director was beyond the scope and ambit of Section 15 of the Act inasmuch as when the election was held of only one seat on account of the fact that there were only two voters in the cooperative marketing societies constituency as per the final voters' list and such elected representative had not ceased to function, there was no circumstance for considering the question of vacancy as no vacancy had arisen. Therefore, in absence of such vacancy, the power for by-election under Section 15 could not have been exercised.
Plain reading of Section 15 of the Act makes it abundantly clear when it speaks about vacancy occurring for any reason in a market committee, only relates to casual vacancies as provided under Sections 12, 13 and 14 of the Act. It is very clear that if a seat falls vacant because of contingency like death, resignation or removal of a member of a committee and remains unfilled, it can be filled in by by-election in exercise of power under Section 15 of the Act but not under the circumstances like the present one. In the present case, the vacancy has not arisen because of any of the reasons mentioned in Sections 12, 13 and 14 of the Act and, therefore, it cannot be said to be a casual vacancy. The entire interpretation put forward by the learned Single Judge in this regard is not correct. Merely because notification was issued by the Election Officer for two seats, it cannot be said that two seats are to be filled up. Record reveals that the Election Officer, while considering the fact as to how many societies were functional, issued the notification and in fact, on the date of declaration of the election programme no society had obtained the license of the market committee and the licenses were granted thereafter and the said decision was challenged before the Division Bench of this Court, which ultimately held that only two cooperative societies were eligible to be included in the voters' list, and accordingly election was held for one seat as per Section 11(1)(iii) of the Act."
4 Mr. Jani, learned Government Pleader prays for time to file affidavit-in-reply. Three weeks time is granted to the respondents to file affidavit-in-reply from today and thereafter two weeks time is granted to the petitioner to file affidavit-in-rejoinder, if any.
5 List the matter on 19th March,2012.
6 Till 19th March,2012, the election fixed for 28th February, 2012 with regard to the Traders Constituency of APMC, Deesa, District-Banaskantha, notified by the respondent No. 2- Director, Agriculture Marketing and Rural Finance, on 01.02.2012, shall remain stayed. Direct Service is permitted.
(V.M.
SAHAI, J.) (A.J.
DESAI, J.) pnnair Top