AI Structured Summary
Not yet generated for this judgment
Judgment
P.R. Gokulakrishnan, C.J.—This Special Civil Application is for issuing a writ of mandamus or a writ in the nature of mandamus, a writ of quo warranto or a writ in the nature of quo warranto or any other appropriate writ or direction. restraining respondent No. 3 from acting as the Chariman of the 2rd respondent-Board and respondent Nos. 4 to 11 from acting as members of the Gujarat State Agricultural Marketing Board, who is the 2nd respondent herein, with effect from 24th February, 1989. There is a further prayer to declare the Gujarat Agricultural Prcduce Markets (Amendment) Amending Act, 1989 as unconstitutional. There is also a further prayer in the Special Civil Application for issue of a writ of mandamus fur directing the 1st respondent to hold the election of 12 elected members u/s 34A Sub-section (1) Clauses (ii) and (iii) of the Gujarat Agricultural Produce Markets Act, 1963. It is an admitted case that the first appointment of members contemplated under Clauses (ii) and (iii) of Section 34A(1) of the Act was made on 25-2-1985. Section 34A proviso reads as follows:
34A (1) xxx xxx xxx
Provides that when the Board is constituted for the first time, the members under Clauses (ii) and (iii) shall be persons nominated by the State Government and shall hold office for a period of two years from the date of their nomination, such period being extensible by the State Government for a further period of two years so however that the total period shall not exceed four years in the aggregate.
Section 34C of the said Act states:
34C. (1) Save as otherwise provided in Section 34B, every member of the Board, whether elected or nominated, shall hold office for a period upto the end of four years,-
(a) in the case of an elected member, from the date of publication of his name in the Official Gazette under Sub-section (3) of Section 34A; and
(b) in the case of a nominated member, from the date of his nomination; Provided that the State Government may, from time to time, by notification in the Official Gazette, extend the term of Office of such members for a further period not exceeding one year in the aggregate.
(2) Every member of the Board shall be paid such allowances and fees as may be prescribed.
(3) Tie allowances and fees to the members shall be paid from Development Fund.
There is a transitory provision made under Gujarat Act 17 of 1985 and Section 10 of the said transitory provision reads as follows:
The Gujarat State Agricultural Marketing Board functioning immediately before the date on which the assent to this Act of the Governor is first published in the Official Gazette shall, notwithstanding that its constitution has been rendered in consistent with the provisions of the principal Act as amended by this Act, continue to so function after the said date until 24th February, 1989.
This transitory provision came to be amended by the Gujarat Agricultural Produce Markets (Amendment) Amending Act. 1989. This Amending Act 2 of 1989 states:
This Act may be called the Gujarat Agricultural Produce Markets (Amendment) Amending Act. 1989.
In the Gujarat Agricultural Produce Markets (Amendment) Act, 1985, in Section 10, for the words, letters and figures "until 24th February, 1989", the words, letters and figures "until the 24th February, 1990" shall be substituted.
Thus, the members, who were nominated by the State Government for the first time, got the period extended up till 24th February, 1990. Such transitory provision is being questioned with prayers, which we have extracted in paragraph supra.
Mr. Patel, the learned Counsel appearing for the petitioner, made three contentions for admission of this special civil application. The first contention is that the said transitory provision conflict with the proviso to Section 34A of the main Act. This he elaborates by stating that the proviso to the main Act specifically states that the first members nominated by the State Government can have a total period of four years and the said total period shall not exceed four years in the aggregate. By the transitory provision, that period was being extended by one more year. According to Mr. Patel, such transitory provision is bad and illegal and should not have been passed by the Legislature since it conflicts with the main provision is Section 34A proviso.
The next contention made by Mr. Patel is that there is no rationale in extending the period by one more year. All these years, the Government has kept quiet without framing any rules for having the election, which they ought to have framed u/s 59 of the Act and as such, the democratic process is being scuttled by extending the time. Such extension of time offends Articles 14 and 19 of the Constitution.
The third contention raised by Mr. Patel is that it is an arbitrary exercise of power by the State Government and it smacks with mala fides since the State Government wants to continue the Board members, who are their supporters.
We have gone through all these averments made by Mr. Patel. The transitory provision is made by the Legislature by passing necessary Act, which we have extracted in paragraph supra. As to why the period was extended by such a transitory provision has been amply made out by the Statement of Objects and Reasons, dated 7th February, 1989 and the same reads as follows:
Statement of Objects and Reasons
The existing Gujarat State Agricultural Marketing Board was constituted by Government Notification. Co-operation Department No. H-30-85-APM-1185-314-G. dated the 25th February. 1985 issued u/s 34 of the Gujarat Agricultural Product-Markets Act, 1993 as amended by the Gujarat Agricultural Produce Markets (Amendment) Ordinance. 1985 (Guj. Ord. 7 of 1985). As the said Ordinance could not be replaced by an Act of the State Legislature before its expiry, another Ordinance containing provisions identical with the previous Ordinance was promulgated as Gujarat Ord. 10 of 1985. The latter Ordinance was replaced by the Gujarat Agricultural Produce Markets (Amecdment) Act. 1985 (hereinafter referred to as "the Amending Act"). But as the provisions relating to the constitution of the existing Board, as inserted in the Gujarat Agricultural Produce Markets Act. 1963 by the Amending Act were different from those inserted by Guj. Ord. 7 of 1985. Section 10 of the Amending Act continued the existing Board until the 24th February. 1989 As the constitution of the new Board in accordance with the provisions of the Gujarat Agricultural Produce Market Act, 1963 as inserted by the Amending Act may take some time, it is considered necessary to continue the existing Board till the 24th February, 1990, during which time a new Board could be duly constituted so as to avoid any hiatus between the expiry of the term of the existing Board and the constitution of the new Board. This Bill seeks to amend the Amending Act to achieve the aforesaid object.
From this Statement of Objects and Reasons it is very clear that the State Government, in order to see that there is no vacuum in the functioning of the Committee and also genuinely taking effort for framing the Rules for the election, came forward with such a transitory provision. It is stated in the Statements of Objects and Reasons that as the constitution of the new Board in accordance with the provision of the Gujarat Agricultural Produce Markets Act, 1963 as inserted by the Amending Act may take some time, it is considered necessary to continue the Board till 24th February, 1990, during which time a new Board could be duly constituted so as to avoid any hiatus between the expiry of the term of the existing Board and the constitution of the new Board. When such a genuine reason has been given for the purpose of extending the period of the nominated members, we do not find any informity in such instruction and there is enough rationale in making the transitory provision.
As correctly contended by Mr. Hava, the proviso to Section 34A definitely states that the State Government can extend the period for and term of two years, but however, the total period shall not exceed four years in the aggregate. This is a bar on the State Government in order to see that the terms is not extended without recourse to the election. As far as the present case is concerned, the term has been extended by the Act of the Legislature. Though Mr. Patel feebly contends with regard to the legislative competency, he is not able to make any headway as to how the State Legislature has no competence to come forward with this transitory provision. The Act is made by the Legislature and in our view, that will not come into conflict with the proviso to Section 34A inasmuch as Section 34A proviso restricts the power of the State Government exercising its executive power. As regards the question of arbitrary and mala fide exercise of power levelled by Mr. Patel against the respondents, the transitory provision, which we are able to see, is a provision enacted as a legislative piece of enactment by the State Assembly and as such, there is no question of arbitrary or mala fide exercise of power. Hence, the question of arbitrary or mala fide exercise of power, on the facts and circumstances, will not prise in the present case.
Considering all these aspects of the case, we do not think that there is any conflict as suggested by the petitioner herein between the main Section 34A and the proviso therein and the transitory provision now enacted and which is being impugned in this Special Civil Application. It is but fair that the Government acts quickly in framing rules u/s 59 of the Act so that the democratically elected Board function in its true spirit instead of making the term of nominated members extended for a further period.
Considering all these facts of the case, we do not think that there is any merits in any of the contentions raised in this Special Civil Application and accordingly this Special Civil Application is dismissed. Notice is discharged. Ad-interim relief is vacated.
Mr. Patel wants this Court to continue the ad-interim relief gtanted already in order to take the matter to the higher forum. The nominated members are functioning as on date. As correctly put forth by Mr. Zaveri, the learned Counsel appearing for respondents Nos. 4 to 11, the Board has to transact business regarding the budget and also chalk out the day-to-day administration. There will not be any harm in allowing the members, who are there in the Board, to function without any interruption. In view of this fact, we do not think that the prayer made by Mr. Patel can be granted. Hence, this prayer is rejected.