Decided on November 30,1988

Agricultural Produce Market Committee Bhavnagar Appellant

Cited Judgements :-



A.P.RAVANI - (1.)The petitioner-Market Committee (The Agricultural Produce Market Committee Bhavnagar) prays that the respondent authorities be directed to hold the election of the Committee and be restrained from nominating the members of the Agricultural Produce Market Committee till pendency and final disposal of the petition. The petition is filed on 14/10/1988 This Court (Coram: S. B. Majmudar J.) on 18/10/1988 permitted the petitioner to join petitioners of Special Civil Application No. 5907 of 1986 as party respondents and directed to issue notice to respondents returnable on 15/11/1988 By way of ad-interim relief the respondents have been directed to maintain status quo regarding constitution of the existing body as on the date of the order. On 17/11/1988 the matter came up for hearing before the Court. It appears that the newly added parties have not been joined as respondents. The matter was adjourned twice or thrice solely with a view to accommodate the learned Counsel for the petitioner. On 25/11/1988 this Court was constrained to limit the ad interim relief granted earlier upto 30/11/1988 In the following background the prayer made in the petition which is referred to hereinabove is required to be examined and considered.
(2.)The petitioner-Committee has been constituted way back in the year 1980 by the Government by nomination in exercise of powers under the proviso to Sec. 11(1)(v) of the Gujarat Agricultural Produce Markets Act 1963 As disclosed in the petition the Committee was to be constituted for the first time when the Government nominated the same. Section 11 deals with constitution of Market Committee and its provides as to different classes of members who will be in the Committee. However the proviso to Sec. 11(1)(v) reads as Follows:
"Provided that when a market committee to constituted for the first time all the members thereof shall be persons nominated by the State Government and shall hold office for a period of two years from the date of their nomination".
The first meeting of the Committee was held on 16/12/1980 Some time in November 1982 election programme was determined by the Director of Agricultural Marketing and Rural Finance Gujarat State Gandhinagar (respondent No. 2 herein hereinafter referred to as the Director). Accordingly election was held on 24/01/1983 The result of the election was challenged by the petitioner before the Director and the election was set aside. After the said decision of the Director the Director appears to have issued programme of election. But against the decision of the Director setting aside the election some persons have filed Special Civil Application No. 5.58 of 1953 in this High Court and the said petition is still pending. Thereafter by notification dated 28/03/1985 the Director included the area of Ghogha Taluka within the jurisdiction of the market area of the petitioner-Committee. This extension on area of jurisdiction of be Committee has also been challenged in this High Court by certain persons by way of Special Civil Application No. 5907 of 1986. That petition is also pending in this High Court. The petitioners contend that the aforesaid two petitions have now became infructuous and the petitioners in those petitioner are willing to withdraw the petitions. The learned Counsel for the petitioner even requested for adjournment so as to enable the petitioner to bring the petitioners in the aforesaid petitions before the Court. In his submission they will come before the Court and will request for withdrawal of the petitions On merits he submitted that it is only at the time of constitution of the first Committee the Government has power to nominate the members of the Committee. But once the Committee has been nominated for the first time the Government has no power to nominate the Committee and therefore the Government be restrained from nomination the Committee and directed to hold the elections.
(3.)The aforesaid contention is devoid of any merits but the same will be examined a little later. The petition is required to be rejected on the ground that it lacks in good faith and bona fides and if entertained and allocated it should amount to assisting abuse of process of law in exercise of powers under Art. 224 or the Constitution of India there fore even if there he any merits in the law points ought to he raised in this petition it would only be proper for this High Court to refrain from exercising powers under Art. 226 of the Constitution of India. It would rather be the positive duty of this Court to exercise utmost restraint and see that in order to uphold the assumed or alleged legal formalities for holding the elections the petitioners who have clung to the position or power and who have secured their positions by resorting to one or another litigation be not rendered assistance through the process of Courts for it is the basic cannon of democracy that no one can sit in position of power for indefinite period. At a certain interval of time the persons sitting in position of power must obtain fresh mandate from the electors. The members of the petitioner-Committee as disclosed in the petition are nominated by the Government. Thus their constitution itself is not strictly in accordance with the democratic principles. On account of legal proceedings fresh elections have not been held and the elected body has not come into existence. But that does not mean that the members of the Committee nominated way back in the year 1980 should be permitted to cling to the petition of power. In the name of democracy it does not in their mouth to say that the Government be directed to hold election and till then their position should remain secured. The purpose of the petition is not the see that there is democratically formed Committee. But the real purpose is to cling to the position of poser as long as possible. The petitioners have succeeded in doing so for about eight years. Therefore when the Government by resorting to the provisions of Sec. 11(2) is making efforts to nominate members of the Committee even as a measure of preferring lesser evil it would be better to permit the Government to exercise its power under Sec. 11(2) and nominate fresh Committee. The best situation would be to have a duly elected Committee. But in absence of the elected body the present members of the Committee who are nominated way back in 1980 cannot be permitted to continues in office. When best is not possible or has become impracticable there is no reason why worst should be perpetrated. It would be pragmatic to prefer good or better in place of worst

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