Bombay High Court
Dr. Dipraj P. Ilamkar vs Agriculture Produce Market Committee, ... on 9 January, 2019
Equivalent citations: AIRONLINE 2019 BOM 2100, (2019) 1 ALLMR 835 (2019) 3 MAH LJ 291, (2019) 3 MAH LJ 291
Author: Manish Pitale
Bench: Manish Pitale
1 WP7008-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.7008 of 2018
...
Dr. Dipraj P. Ilamkar,
Aged about 47 years,
Occupation: Business
(Medical Practitioner) ,
R/o Lakhani, Taluka Lakhani,
Near Swagat Lawns,
District Bhandara. .. PETITIONER
.. Versus ..
1. Agriculture Produce Market
Committee, Lakhani,
District- Bhandara, through its
Chairperson.
2. Agriculture Produce Market
Committee, Lakhani,
District Bhandara, through
its Secretary.
3. District Deputy Registrar,
Co-operative Societies,
Bhandara, having office at
Land Development Bank Building,
Second Floor, Opp. Chhatrapati
Shivaji Maharaj Krida Sankul,
Bhandara.
4. The Maharashtra State Agricultural
Marketing Board (MSAMB)
Plot No.R7, Gultekdi Market Yard,
Pune, Maharashtra- 411037,
through its Managing Director.
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2 WP7008-18.odt
5. The Hon'ble Minister,
Co-operation, Marketing & Textile,
Government of Maharashtra,
Hutatma Rajguru Chowk,
Madam Cama Road,
Main Building, Mantralaya,
Mumbai 400 032. .. RESPONDENTS
Mr. Himanshu A. Khedikar, Advocate for Petitioner.
Mr. A.R. Chutke, AGP for Respondent Nos. 3 & 5.
Mr. A.P. Kalmegh, Advocate for Respondent No.4.
....
CORAM : MANISH PITALE, J.
DATED : JANUARY 09, 2019.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. By this writ petition, the petitioner has challenged order dated 19.09.2018 passed by the Minister for Co- operation, Government of Maharashtra, allowing the appeal of respondent Nos. 1 and 2. By allowing the said appeal, the Minister set aside order dated 27.04.2018 passed by the respondent no.3- District Deputy Registrar, whereby the respondent no.1 Agriculture Produce Market Committee, Lakhani, had been superseded under Section 45 of the ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 3 WP7008-18.odt Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (for short "the said Act"). The main contention raised on behalf of the petitioner is that the appeal filed by respondent nos. 1 and 2 under Section 52B of the said Act itself was not maintainable before the Minister and that, therefore, the impugned order dated 19.09.2018 was rendered without jurisdiction and hence liable to be set aside.
3. The petitioner had approached the respondent no.3 raising grievances about the functioning of the respondent no.1 Committee. In this regard, a show cause notice was issued by the respondent no.3 to the Committee and opinion of the respondent no.4- Maharashtra State Agricultural Marketing Board was sought in respect of the grievances raised by the petitioner. After change in the person holding the office of respondent no.3 -District Deputy Registrar, a fresh show cause notice dated 31.10.2017 was issued to the respondent no.1 Committee on the basis of complaints and grievances made by the petitioner herein. Upon the opinion of the respondent no.4 Board being sought by the respondent no.3 District Deputy Registrar, the said Board given its opinion regarding suitable action to be taken against the respondent no.1 Committee under Section 45 of the said Act. Pursuant to the aforesaid ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 4 WP7008-18.odt proceedings initiated by the respondent no.3 District Deputy Registrar, order dated 27.04.2018 was passed by the said respondent holding that the respondent no.1 Committee was liable to be superseded, in view of findings rendered in the said order. The issue that arose for consideration regarding alleged wrongdoings by the respondent no.1 Committee were considered by the respondent no.3 along with the opinion of the respondent no.4 Board and it was found that the respondent no.1 Committee had indeed indulged in such acts that made it liable to suffer an order of supersession under Section 45 of the said Act. By the said order dated 27.04.2018, the respondent no.3 exercised power of the State delegated to it as per Notification dated 05.09.1981 and accordingly passed the order of supersession of the respondent no.1 Committee under Section 45 of the said Act.
4. Aggrieved by the same, respondent nos. 1 and 2 being the Chairperson and Secretary of the respondent no.1 Committee, filed appeal before the Minister for Co-operation. The said appeal was purportedly filed under Section 52B of the said Act. By the impugned order dated 19.09.2018, the Minister allowed the appeal and set aside the order dated 27.04.2018 passed by the respondent no.3. The said order of ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 5 WP7008-18.odt the Minister is subject matter of challenge before this Court in the present writ petition.
5. On 17.10.2018, this Court issued notice for final disposal in the present writ petition . The respondent nos. 1 and 2, despite service, have chosen not to appear before this Court. Mr. A.R. Chutke, learned A.G.P. has appeared on behalf of respondent nos. 3 and 5 and Mr. A.P. Kalmegh, learned counsel, has appeared for respondent no.4 Maharashtra State Agricultural Marketing Board. Although the learned counsel appearing for the respondents sought time to file reply, considering the fact that the contention raised on behalf of the petitioner concerns maintainability of appeal before the Minister under Section 52B of the said Act based on interpretation of the provisions of the said Act and the relevant notification, it was found that there was no necessity to grant time to file reply. This was particularly because this Court is not going into the merits of the impugned order passed by the Minister in view of the fact that the question of very maintainability of the appeal is raised for consideration before this Court. It was also relevant that the notice dated 17.10.2018 was issued for final disposal and the respondents were expected to be ready for final disposal of the present writ ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 6 WP7008-18.odt petition.
6. Mr. Himanshu A. Khedikar, learned counsel appearing for the petitioner, submitted that the appeal filed before the Minister under Section 52B of the said Act by respondent nos. 1 and 2 was not maintainable because the order dated 27.04.2018 passed by the respondent no.3 - District Deputy Registrar was in exercise of power of the State delegated to the said authority and, therefore, when the said order itself was passed by the State Government, there could not have been an appeal before the Minister under Section 52 of the said Act.
7. The learned counsel placed reliance on the aforesaid provisions of the said Act as also the judgments of this Court in the case of A.P.M.C. .vs. State of Maharashtra reported in 2017(2) Mh.L.J. 409 and Vilas .vs. State of Maharashtra reported in 2013(4) Mh.L.J. 276.
8. As noted above, none has appeared on behalf of the contesting respondent Nos. 1 and 2.
9. Heard Mr. A.R. Chutke, learned A.G.P. for respondent nos. 3 and 5 and Mr. A.P. Kalmegh, learned counsel for ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 7 WP7008-18.odt respondent no.4.
10. In order to appreciate the contention raised on behalf of the petitioner pertaining to maintainability of appeal before the Minister under Section 52B of the said Act, it would be necessary to refer to the said provision:-
"52B. Appeal.
(1) Save as otherwise provided elsewhere in this Act, any person aggrieved by a decision taken or order passed under any of the provisions of this Act may prefer an appeal-
(a) to the Director where such decision is taken or order is passed by the Market Committee, its Chairman, Vice-
Chairman, Secretary or any other officer empowered to exercise the powers of the Director,
(b) to the State Government, where such decision is taken or order is passed by the Director, (2) An appeal under sub-section (1) shall be made within a period of thirty days from the date of the decision or order appealed against.
(3) The order passed in the appeal by the Director or the State Government, as the case may be, shall be final."
11. A perusal of the above quoted provision shows that a person who is aggrieved by an order passed by the Market Committee, can file an appeal before the Director and a person ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 8 WP7008-18.odt aggrieved by the decision or order passed by the Director, can file an appeal before the State Government. The order dated 27.04.2018 passed by respondent no.3- District Deputy Registrar in the present case specifically states that power was being exercised by the said respondent as per the delegation of powers of the State Government under Notification dated 05.09.1981 issued by the State Government under Section 58 of the aforesaid Act. The said Notification specifically provides that the District Deputy Registrar of Cooperative Societies i.e. respondent no.3 in the present case, would exercise delegated power of the State Government under specific provisions, including Section 45 of the said Act pertaining to supersession of Market Committees. Thus, it becomes clear that the order dated 27.04.2018 passed by the respondent no.3 District Deputy Registrar in the present case, was in fact in exercise of delegated powers and consequently it was an order passed by the State Government itself.
12. Section 52B quoted above, clearly provides that appeal would lie before the State Government against decisions or orders passed by the Director. In the present case, since the order dated 27.04.2018 was passed by the respondent no.3 District Deputy Registrar as the delegatee of ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 9 WP7008-18.odt the State Government itself, the said order was effectively that of the State Government and an appeal under Section 52B of the said Act against the said order before the State Government cannot be contemplated. Therefore, on a proper reading of Sections 45 and 52B of the said Act along with the Notification dated 05.09.1981 issued under Section 58 of the said Act, it becomes clear that the appeal filed by respondent nos.1 and 2 in the present case before the respondent no.5 was not maintainable.
13. The learned counsel appearing for the petitioner is justified in relying upon the judgments of this Court in the case of A.P.M.C. .vs. State of Mah. and Vilas .vs. State of Mah. (supra), wherein this Court has taken into consideration the scope and power of the State Government under Section 52B of the said Act and it has been found that in situations similar to the fact situation in the present case, appeal under Section 52B of the said Act before the State Government was not maintainable.
14. Since it is held that the appeal itself filed by respondent nos. 1 and 2 before the respondent no.5 was not maintainable, the impugned order dated 19.09.2018 is found to ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 06:31:44 ::: 10 WP7008-18.odt have been passed without jurisdiction and on this ground itself, it deserves to be set aside.
15. In the light of the above, the present writ petition is allowed and the impugned order dated 19.09.2018 is quashed and set aside.
16. Rule made absolute in the aforesaid terms with no order as to costs.
(Manish Pitale, J. ) ...
halwai/p.s.
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