GUNVANTRAY MANILAL DESAI Vs. DIRECTOR OF AGRICULTURAL GUJARAT MARKETING AND RURAL FINANCE GUJARAT STATE

JUDGEMENT

(1.) This is a petition by a citizen of India. claiming to be an agriculturist in Bulsar District and also claiming to he a voter in his capacity as a member of the Managing Committee of one cooperative society. The dispute which has been raised pertains to the election of 8 agriculturists to the Agricultural Procedure Market Committee. Valsad. The term of the Committee was to expire somewhere in June 1976 and So 3-6-76 was fixed as a date for general elections of the said Market Committee. For the purpose of sec 11 of the Gujarat Agricultural Produce Markets Act 1963 hereinafter referred to as the Act a voters list of the members of the Managing Committee of cooperative societies (other than co-operative marketing societies) disposing agricultural credit in the market area was required to be prepared. One authorised person was appointed and he had prepared the list and had published it on 29-3-76. In that list 469 voters were notified. They were as per sec. 11(1) clause (i) members of managing committees of co-operative societies dispensing agricultural credit in the market area. Objections were invited and a final list was published on 12-4-76. In this final list there were 57 newly added voters. Then the nominations were filed and the petitioner and respondents Nos. 3 to 17 had filed their nomination papers which were found in order. The election had taken place on 3-6-76 and respondents nos. 3 to 10 were successful. The petitioner and others had lost. The petitioner thereafter moved the Director under Rule 28 of the Gujarat Agricultural Produce Markets Rules 1965 which reads as follows :

(2.) At the outset Mr. Zaveri had raised the contention that under Rule 28 quoted above the State Government in the exercise of its delegated legislative power had laid down that the appeal lay to the Director after the election had been conducted by a person authorised by the Director to perform the functions of an Election Officer and this being essentially a judicial or at any rate a quasi judicial power it could not be delegated by the State Government by virtue of powers conferred under sec. 4 (2) of the Act. The powers under sec. 4 (2) Mr. Zaveri submitted was essentially the executive power of the Government whereas the powers exercised by the Government while framing Rules were legislative in character. When the Government while exercising the delegated legislative powers had laid down as a matter of binding law that only the Director could be the quasi judicial authority to entertain and conduct the election petition the Government on its administrative or executive side could not say that the said judicial powers would stand delegated to the Joint Director as seems to have been done by the above quoted notification of the Government dated 15-7-72. He also urged that under sec. 4(2) of the Act what is contemplated to be delegated is only executive power and not the judicial power and in support of this submission of his he tried to derive help from the phrase subject to the control of the Director. Mr. Zaveri submitted that this clause clearly showed the legislatures intention itself that under sec. 4 (2) the only powers of the Director that could be delegated to the Joint Director or Deputy Director would be only executive and administrative powers and not the quasi judicial powers. There is considerable force in this submission which is accepted by me for the reasons that follow hereafter. It cannot be gainsaid that Rule 28 of the Rules has been framed by the State Government in exercise of the powers conferred by the State Legislature on the Government under sec. 59 of the Act. The Rules are deemed to be by a legal fiction a part and parcel of the Act itself. In other words they are deemed to be the expression of legislative will of the State. The very legislature itself while enacting sec. 4(2) of the Act had also made provision for delegating to the Joint or Deputy Director the powers of the Director under the Act as the State Government may by general or special order direct. The Legislature however made an important condition that the State Government could delegate the powers to the Joint or Deputy Directors but subject to the control of the Director. In other words the State Legislature wanted to retain the overall control of the Director the highest functionary under the Act on all such powers functions and duties under this Act vested in the Director and with this clear intention it has been provided in sec. 4(2) of the Act that the Joint or Deputy Directors so authorised by the State Government by a general or special order are to exercise such powers and to perform such of his functions and duties under the Act subject to the control of the Director. In other words whatever powers are exercised by the Joint Director and whatever functions and duties that are performed by the joint Director as per the delegated authority are to be exercised and performed by him subject to the control of the Director. The judicial powers or quasi judicial powers cannot be exercised subject to the control of anyone or subject to the control of the highest officer. It is therefore clear that the Legislature while enacting sub-sec. (2) of sec. 4 of the Act clearly contemplated delegation only of those powers and functions and duties which could be exercised or performed by the delegate subject to the control of the Director. If judicial powers cannot be subject to such a control it is to be assumed as a matter of natural corollary that the powers contemplated to be delegated under sec. 4 (2) cannot be judicial powers.

(3.) In this connection Mr. Joshi for the successful candidates and Mr. Christie for the Director and others urged that the order of delegation referred to above did not speak of any such control. However this does not matter If the delegation is under sec. 4(2) as a matter of necessity it is subject to the control of that Director. This is the clear intention of the Legislature.