Madhya Pradesh High Court
Bhawani Deen Mishra vs The State Of Madhya Pradesh on 22 April, 2015
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.2266/2015
Bhawani Deen Mishra
Vs.
State of M.P.and others
Shri Sanjay K. Agrawal, learned counsel for the petitioner.
Shri Piyush Jain, learned Panel Lawyer for respondents No.1, 2 and
3.
Shri Rameshwar Singh, leaned counsel for respondent No.4.
Shri Deependra Mishra, learned counsel for respondent No.6.
Shri Mrignedra Singh, learned senior counsel with Shri H. Singh,
learned counsel for respondent No.7.
ORDER
(22/04/2015) This order shall also govern the disposal of Writ Petition No.2472/2015 as the common questions are involved in both the cases, however, for the sake of brevity the facts narrated in W.P. No.2266/2015 are taken.
2. The petitioner has filed this petition challenging the order dated 5/2/2015 passed by Commissioner, Sagar Division, Sagar (Respondent No.2) whereby no confidence motion passed against respondent No.7 has been set aside. The petitioner is an elected Vice President of Krishi Upaj Mandi Samiti, Chhatarpur (in short 'Mandi Samiti'). The Mandi Samiti comprising of 12 elected members whose election has been notified in the official gazette on 02/12/2013. Apart from 12 elected members, Collector, Chhatarpur issued notification dated 4/4/2013 (Annexure-R/7-1) whereby other four persons were nominated as members of the Mandi Samiti, Chhatarpur. Nomination was made in accordance with the provisions of Section 11(1)(f), (h), (i) and (j) of the Krishi Ukpaj Mandi Adhiniyam, 1972 (hereinafter referred to as 'the Adhiniyam'). The Adhiniyam was amended by the Amendment Act of 2012. By the said amendment, Section 14 and 14(A) were inserted which deals with no confidence motion against the Chairman and Vice Chairman of the Mandi Samiti. Section 14(1) as inserted by the Amendment Act, 2012, provides that motion of no confidence may be moved against Chairman or Vice Chairman at meeting specially convened for the purpose under Sub-section (2) and if motion is carried rd by majority of not less than 2/3 of the members present and voting and if such majority is more than ½ of the total number of the members constituting Market Committee for the time being, the Chairman or Vice Chairman, as the case may be, against whom motion of no confidence is passed shall cease to hold his office with effect from the date immediately after date on which such motion is passed. Sub- section (2) of Section 14 provides that meeting shall be convened by the Secretary on a notice signed by not less than 50% of the total number of members constituting Market Committee for the time being within 30 days from the date of receipt of notice of motion of no confidence. Clause (iii) of Sub-section (2) of Section 14 further provides that notice of such meeting shall specify date, time and place thereof and shall be dispatched by the Secretary to every members at least ten clear days in advance of the date of meeting.
3. The State Government has also framed rules known as Krishi Upaj Mandi (No Confidence Motion against Chairman and Vice Chairman of the Mandi Samiti) Rules, 2013 (for brevity 'the Rules of 2013'). Rule 3 of the Rules of 2013 provides the procedure for notice of No Confidence Motion against the Chairman or Vice Chairman. Rule 4 deals with the appointment of the Presiding Officer to preside over the meeting so convened for consideration of the motion of no confidence and Rule 5 deals with conducting of the meeting. Sub-rule (3) of Rule 5 specifically provides that those members who have been nominated or specially invited under Section 11 of the Adhiniyam, would have no right to vote in the meeting.
4. The petitioner submits that respondent No.7 was initially elected as Chairman of the Krishi Upaj Mandi Samiti, Chhatarpur, however, large scale illegalities and misuse of his powers were committed by him, on account of which notice of no confidence against respondent No.7 was moved by as many as seven members of the Samiti and the same was submitted to respondent No.4 on 7/2/2014 with a request to call meeting for voting on no confidence against respondent No.7. Notice dated 7/2/2014 was signed by seven members out of total 12 duly elected members for time being. Respondent No.4 vide letter dated 7/2/2014 requested the Collector, Chhatarpur to appoint a Presiding Officer for consideration of motion of no confidence brought against respondent No.7 within the time specified. Respondent No.4 vide memo dated 17/2/2014 fixed the place and time for the meeting to be scheduled on 5/3/2014, however, at the relevant time on account of ensuing Loksabha election, since model code of conduct was in vogue. The said meeting was adjourned without consideration of the motion brought against respondent No.7. Respondent No.7 assailed the proceeding of no confidence motion by filing Writ Petition No.7517/2014. It is pertinent to note that no interim order was passed in favour of respondent No.7 but respondents No.3 and 4 only, on account of pendency of the writ petition, postponed the date of meeting. Ultimately the said writ petition was withdrawn vide order dated 10/9/2014 directing the respondents to convened the meeting of no confidence motion.
5. Respondent No.4, thereafter by issuing notice to all the elected members of the Krishi Upaj Mandi, fixed the date of meeting for consideration of motion of no confidence brought against respondent No.7 on 26/9/2014. At the time of meeting of consideration of no confidence motion which was held on 26/9/2014, out of 12 elected members only eight members were present and out of eight members, seven persons voted in favour of no confidence motion and, therefore, motion of no confidence was passed against respondent No.7 on 26/9/2014. This motion of no confidence was challenged by respondent No.7 before respondent No.2. Respondent No.2 vide order dated 5/2/2015 has allowed the said application. Being aggrieved by this order, the petitioner has filed the present writ petition.
6. Respondent No.4, by filing reply, has supported the stands taken by the petitioner and prays for setting aside the order passed by respondent No.2. They have further submitted that the impugned order dated 5/2/2015 is liable to be set aside because vote of no confidence motion is passed by the majority by casting vote by seven members of the Mandi Samiti. They have further submitted that the notice was issued to the members before convening the meeting.
7. Respondent No.7 has also filed reply, inter-alia, stating that as per Section 11 of the Adhiniyam, the marketing committee is being constituted which consists of ten representatives of agriculturists, one representative of traders, one representative of weighman/hammals. Apart from above 12 representatives, additional four persons are nominated as per Section 11(f), (i), (j) and (e) of the Adhiniyam. Thus, according to respondent No.7, the Mandi Samiti comprises of total 16 members. Out of these 16 members, 12 are elected and four are nominated as mentioned above. Respondent No.7 further submits that as per Section 11(2) of the Adhiniyam, all the members either elected or nominated under sub-section (1) shall have right to vote except two members i.e. the members nominated under Clause (f) and the special invitees under the second proviso to clause (d) of Sub-section (1). Respondent No.7 also submits that in the present case, meeting was not convened as per the procedure prescribed under the Act. No ten clear days advance notice, as prescribed, has been given to the members. He further submits that although in the notice date has been mentioned as 15/9/2014, however, the same has been dispatched to the petitioner for the first time on 18/9/2014 and, therefore, the same is in clear violation of the provisions of the Adhiniyam and the Rules made thereunder because it has not been dispatched at least ten clear days in advance as required by the law. Respondent No.7 further submits that motion is not rd carried by majority of 2/3 of the members present. He contends that Section 14 (i) of the Adhiniyam mandates that the motion is carried by rd majority of not less than 2/3 of the members present and voting and if such majority is more than one half of the total number of the members constituting market committee for the time being. Here the case in hand, eight members were present out of which seven members voted in favour of no confidence brought against respondent No.7. The quorum of seven members who have voted for no confidence motion is less than half of the total number of members constituting the market committee. The half of the total members constituting the committee is 7.5, hence, no confidence motion is not validly passed. He, therefore, prays for dismissal of the writ petition.
8. Learned counsel for the petitioner submits that the impugned order passed by respondent No.2 is illegal and contrary to the provisions of the Adhiniyam. He further submits that as per Sub-section (2) of Section 14, , meeting for passing no confidence motion is to be carried by 50% rd of the 2/3 majority of the members present and voting. In the present case, in accordance with notice notice dated 15/9/2014, a special meeting of Mandi Samiti, Chhatarpur was held in the chairmanship of the SDO on 26/9/2014 and the said meeting was attended by eight members and out of eight members present and voting, seven members casted their votes in favour of motion of no confidence. He further argued the Collector vide its order dated 4/4/2013 nominated three members under Section 11(1)((f), (h), (i) and (j) and these members are entitled to vote in the meeting of Mandi Samiti. The Commissioner, accordingly held that the Mandi Samiti is comprising of 15 members and not 12 members and, therefore, half of the members comes to 7.5 and as motion of no confidence has been passed only by seven members, therefore, the same does not fulfil the requirement of Section 14 of the Act. Learned counsel argued that this finding given by the Commissioner is erroneous finding. He further submits that though the Collector nominated four members vide order dated 4/4/2013 but the said notification was not published in the official gazette as required under Section 11(5) of the Adhiniyam. He, therefore, argues that unless and until the said notification is published in the official gazette, the said persons do not officially become members of the Samiti and consequently, they do not entitle to participate in the meeting of Mandi Samiti. He further argued that even after notification dated 4/4/2013, nominated members were never invited in the meeting of the Mandi Samiti. Learned counsel for the petitioner submits that Section 14 of the Act purposely uses expression 'constituted for the time being' which indicates that only those members who are validly elected or nominated are entitled to participate in the meeting.
9. Learned counsel for respondent No.4 supports the arguments advanced by learned counsel for the petitioner.
10. Learned senior counsel for respondent No.7 submits that three members nominated by the Collector are entitled to caste their votes, however, he admits that no notification has been published in the official gazette. He further argues that even though in sub-section (5) of Section 11, the word 'shall' is being used but merely insertion of word 'shall' does not ipso facto make any provision imperative/mandatory. In the entire Act, it has no where provided that if name of nominated member is not being notified in the official gazette, then what would be the consequence. Hence, sub-section (5) of Section 11 of the Adhiniyam is only directory in nature and, therefore, 10 representatives, 1 representative of trade man, 1 representative of weighman/hammals and other nominated members under sub-section (e), (i) and (j) are having rights to vote and these nominated members ought to have been counted for the purpose of no confidence proceeding. He further relied on the provisions of Principles of Statutory Interpretation by referring th Page No.406 of 12 edition of the book written by Hon'ble Justice G.P. Singh and states that the word 'shall' be read as a directory and not mandatory. He further relied on the judgment passed by Hon'ble the Apex Court in the case of State of U.P. Vs. Manbodhanlal Shrivastava reported in AIR 1957 SC 912 and in the case of Bhavnagar University Vs. Palitana Sugar Mill reported in (2003) 2 SCC 111 and submits that from the above judgments, it is clear that sub-section (5) of Section 11 is directive in nature and non-publication of the names of nominated members in the official gazette does not mean that they should be excluded or barred from the scene of no confidence motion. He also argued that as per sub-section (3) of Section 14 of the Act, notices of such committee shall satisfy the date, time and place thereof and shall be dispatched by the Secretary to every member at least 10 clear days in advance of the date of meeting. He also submits that notice was dispatched on 16/9/2014 intimating the members regarding meeting of no confidence motion on 26/9/2014, hence, it is clear that notice has not been sent before 10 clear days of the meeting because both terminal dates i.e. 16/09/2014, date of dispatch and 26/9/2014, date of meeting are to be excluded to count 10 clear days. He further argues that the dispatch of notice before ten clear days is mandatory in character and for the said purpose, he relied upon the judgment passed by this Court in the cases of Bhulin Dewangan Vs. State of M.P. reported in 2009(2) JLJ 253 and Jugraj Singh Markam Vs. Dhannulal Marvi reported in 2003(4) MPLJ 378. He, therefore, argues that no confidence motion is vitiate as the notice has not been dispatched before ten clear days. He, therefore, prays for dismissal of the writ petition.
11. Short controversy involved in the present case is as to whether in absence of publication of notification dated 4/4/2013 in the official gazette, persons nominated under Section 11(1)(h), (i) and (j) of the Adhiniyam, actually become members of Mandi Committee or not so as to entitle them to participate in the meeting for motion of no confidence. Section 11(5) of the Adhiniyam mandates that every election and nomination of a member shall be notified by the Collector in the official gazette. Admittedly, election of the members has been notified in the official gazette but the nomination of members done vide order dated 4/4/2013 has not been published in the official gazette. Section 23 of the General Clauses Act provides that whether in any Act or Rules made under such Act, it is directed that any order, notification or other matter shall be notified or published then such notification or publication shall, unless the enactment or rule otherwise, provides be deemed to be duly made if it is published in the official gazette. Thus, as per Section 23 of the General Clauses Act, publication of nomination in the official gazette is mandatory requirement of law. The contention of learned counsel for respondent No.7 that the said provision is a directory provision and is not a mandatory, is not acceptable in view of Section 23 of the General Clauses Act. The argument raised by learned counsel for respondent No.7 relying on the judgment passed by the Apex Court as well as by referring the book written by Hon'ble Justice G.P. Singh namely Principle of Statutory Interpretation, is not acceptable on the ground that in the present case, the provisions of Section 11(5) of the Adhiniyam are mandatory in nature. The purpose of publication of election and nomination in the official gazette is to make known to public the particulars of the persons constituting Mandi Committee.
12. Hon'ble the Apex Court in the case of I.T.C. Bhadrachalam Paperboards and another Vs. Mandal Revenue Officer A.P. and others, reported in (1996) 6 SCC 634 explained the requirement of publication in official gazette. It was held that the statute requires publication in the official gazette then order or rule will come into force only with effect from the date of publication in the official gazette. In view of the aforesaid pronouncement of law by the Apex Court, there is no inescapable conclusion that until and unless notification nominating certain persons and members of the committee is published in the official gazette, said persons shall not be officially become members of the Mandi Samiti. As in the present case, admittedly, notification dated 4/4/2013 has not been published in the official gazette and, therefore, the persons nominated by the said order do not have any right to caste their vote in the meeting. In the present case, admittedly, election of 12 members has been notified in the official gazette and, consequently, for the time being only 12 members constituted Mandi Samiti, Chattarpur. Out of these 12 members, 7 members moved motion of no confidence which fulfils requirement of Section 14(1) of the Act. Out of 12 members, 8 members participated in the meeting and 7 voted in favour of motion rd which is more than 2/3 of the total members present and voting and more than one half of the members constituting committee for the time being. The contention of learned senior counsel for respondent No.7 that the meeting was not convened within 30 days from the date of notice nor the notice of meeting was dispatched 10 clear days in advance, is not even accepted from the record.
13. The record reveals that first meeting was convened on 5/3/2014 which is within 30 days of the date of notice of no confidence i.e. 7/2/2014. Since meeting was held on 26/9/2014 is an adjourned meeting of the original meeting as the meeting could not be held in the intervening period due to Loksabha election as well as pendency of the writ petition filed by respondent No.7 before this Court and, therefore, it is held that the meeting was convened within 30 days of the date of notice as required under Section 14(2)(i) of the Act. So far as issuance of notice for 10 clear days in advance is concerned, it is submitted that the notice was issued on 15/9/2014 and the meeting was scheduled to be held on 26/9/2014 which is apparent from the record produced by respondent No.4. Thus, ten clear days notice in advance was given to the members. It is pertinent to note that the point regarding issuance of notice has not been dealt with by the Commissioner in the impugned order, however, learned counsel for respondent No.7 raised that point and, therefore, that point has been considered by this Court and has been dealt with accordingly. Notice dated 15/9/2014 was served by personal service as well as by registered post. The order for dispatch of notice was duly recorded in the official note sheet on 15/9/2014 which is clear from the note sheet at page 28 of the return filed by respondent No.4. The notice for effecting service by Dasti were, thus, dispatched and served by Handast on 15/9/2014 for the meeting held on 26/9/2014. The judgments relied upon by learned senior counsel for respondent No.7 are not applicable in the present case as in the present case notices were dispatched on 15/9/2014 and ten clear days notice in advance has been given. Thus, the order passed by the Commissioner is illegal and deserves to be set aside.
14. Thus, in view of aforesaid discussion, both the writ petitions are allowed and the order dated 5/2/2015 passed by respondent No.2 is hereby quashed.
(Ms. Vandana Kasrekar) Judge (VANDANA KASREKAR) JUDGE