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

(4) In the petition it is disclosed that the election held in the year 1982 sot aside at the instance of the petitioner. It is nowhere stated in the petition that the election of the members of the Committee has been held. It is probably on account of the pendency of Special Civil Applications Nos. 558 of 1983 and 5907 of 1986. By Special Civil Application No. 558 of 1983 the decision of the Director setting aside the election has been challenged in this High Court. By Special Civil Application No. 5907 of 1986 inclusion of Ghogha area within the jurisdiction of the Market Committee has been challenged in this High Court. The learned Counsel for the petitioner states that the petitioner of the aforesaid petitions are ready to withdraw the petitions and if some time is given they will be brought before the Court and they will withdraw the petition. This statement itself clearly shows that there is collusion between the petitioner-Committee and the petitioners of the aforesaid two petitions. It is obvious that on account of litigation pending in this High Court fresh elections of members of the Committee could not be held. As started hereinabove the litigation pending in this High Court is collusive and the petitioner-Committee can be said to be responsible for this litigation Thus by joining hands with the petitioners of the aforesaid two petitions the members of the petitioner-Committee have managed to continue in ofFice. Now in the name of democracy and to uphold democratic norms the petitioner-Committee has come before this Court with a prayer that there should not be fresh nomination and the election should be held. It is not difficult to understand the purpose behind the adoption of such pious posture by the Committee. Office the election programme is declared and on the result of the election is declared then again there will be another round of litigation. The newly formed elected Committee will be prevented from taking over the charge of the Committee. The ding doug battle in Court will go on and petitioner-Committee will continue in power. Thus little scrutiny of the entire facts situation clearly disclose the motive lying behind the filing of the petition. The facts disclosed in the petition and examination of the same by applying the experience of life with the aid of commonsense one reaches an inescapable conclusion that if the petition is entertained it would amount to assisting abuse of the process of law and it would also amount to aiding the persons who wish to cling to position of power by invoking the provisions of Art. 226 of the Constitution of India

(5) When such a situation is apparent and there is nothing to show good faith and bona fides of the members of the petitioner-Committee this High Court should be slow rather reluctant to exercise poser under Art. 226 of the Constitution of India. If the members of the Committee are really keen to uphold the democratic principles of the governance of the Committee they ought to have tendered their reception at the and of two years period for which the nomination was made. Evil when they decided that the Committee should prefer petition the members themselves should have expressed their willingness in the resolution itself and the same should have been disclosed in the petition that all the members of the Committee are not willing to continue in the office and that have submitted or that they were ready to submit their resignation. However no such averment is to be found in the petition. Therefore the inescapable conclusion is that the petition is filed with avowed object of taking advantage of certain technicalities and not with the alleged motive of upholding the democratic principles

(6) The law point raised by the petitioners is also devoid of merits. Section 11(2) of the Act reads as follows:

"11 If for any reason in the base of a market committee no election is held. the Director shall report the fact to the sale Government ant With the previous approval of the State Government nominate on the market committee members of the respective Class specified in sub-sec. (1) from amongst persons qualified to be elected as members of the respective class;

(b) The persons no nominated shall hold office for such period not exceeding two years as the Director may with the approval of the State Government determine".

A bare reading of the aforesaid provisions of the Act clearly indicates that for any reason whatsoever election is not held the Director is required to make report about the and fact to the State Government. Thereafter he is required to take provious approval of the State Government for nominating the members of the Committee from the respective class specified in sub-sec. (1) of Sec. 11. The members should be qualified to be elected as members of the respective class. Sub-clause (b) provides that the persons so nominated shall hold office for such period not exceeding two years. The persons so nominated are to hold office for a period which may he determined by the Director with the approval of the State Government but the said period should not exceed two years the contention of the learned Counsel for the petitioner that it is only when the Committee is to the formed for the first time that all the members thereof can he nominated by the State Government is devoid of merits. Even when the Committee is constituted for the first time and the term of the members so nominated expires and thereaFter for any reason whatsoever the election is not held the provisions of Sec. 11(2) can be invoked. If this is not does an absurd situation would arise. The Government would not be in a position to again nominate the members of the Committee on the one hand and on the other hand for one reason or another there will be stalemate (created) as regards election of the Committee is concerned. As it has happened in this case it may be on account of the devices adopted by the members of the Committee who are nominated at the time of constitution of the Committee for the first time that the election may not be held. It may be for any other reason. If the contention advanced by the learned Counsel for the petitioner is accepted it would amount to inducing the people to do something wrong and then legally reward them for doing such wrong things. Such interpretation cannot be accepted for the simple reason that the statute cannot be interpreted so as to lead to absurdity this view of the matter the contention that the Government has no powers to nominate the members on the Committee has no merits.

(7) No other contention is raised. There is no substance in the petition.

(8) In the result the petition is rejected. Notice discharged. Adinterim relief granted earlier stands vacated.Rule discharged.