Madhya Pradesh High Court
Mangilal Shiv Lal Patidar vs State Of Madhya Pradesh And Ors. on 26 April, 1994
Equivalent citations: 1995(0)MPLJ487, 1995 A I H C 3344, (1995) JAB LJ 65 (1995) MPLJ 487, (1995) MPLJ 487
Author: Chief Justice
Bench: Chief Justice
ORDER M.V. Tamaskar, J.
1. The writ petitions raise common question regarding validity of the amendment made to Sections 10, 56 and 57 of the Krishi Upaj Mandi Adhiniyam, 1971.
2. The State Government promulgated an Ordinance No. 1 of 1994, published in M. P. Gazette (Extraordinary) dated 16th January 1994, which is now replaced by Act No. 8 of 1994, keeping the same provisions.
3. Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1973 (No. 24 of 1973) was enacted to provide for the better regulation of buying and selling of agricultural produce and the establishment and proper administration of markets for agricultural produce in the State of Madhya Pradesh. Under Section 4 of the Adhiniyam a market is established. Market-area means the area for which a market is established under Section 4. Market-Committee means a committee constituted under Section 11 of the Adhiniyam. Market functionary includes various persons engaged in the business in the market area as defined in Section 2(j).
4. On the establishment of the market and the market-yard no sale of agricultural produce can be made by any local authority outside the market-yard and within market area.
5. Section 7 speaks about constitution of first Market Committees; that is to say for every market area there shall be a Market Committee having the jurisdiction over the entire market area. Every Market Committee is a body corporate by the name specified for the market in the notification under Section 4 and perpetual succession and common seal. Market Committee is in charge of the management of the market. Section 10 speaks about appointment of Officer in charge of committee, pending constitution of first market committee. This provides for appointment of either an officer-in-charge or a committee consisting of not more than seven persons. The term of the committee is 4 years and six months and to be directly under the control of the Director of the Krishi Upaj Mandi. The Director is further vested with power to change officer-in-charge of the committee.
6. Section 11 speaks of the constitution of Market Committee. The committee consists of various constituencies such as agriculturists, traders, market-functionaries and government representatives, Member of Legislative Assembly and the Secretary of the Committee, etc. The term of the committee elected is 6 years.
7. The agriculturist representatives are to be elected from among the Panchas of Gram Panchayats; Chairman and Vice-Chairman of the Agricultural Service Co-operative Societies in the constituency who are agriculturists. The representatives of the weighment and hammals are to be elected by the market functionaries.
8. Section 11, sub-section (5) states that term of the committee shall be 6 years as substituted by Act No. 6/1985. Sub-section (6) states that if within the period mentioned in sub-section (5), the market committee is not newly constituted the market committee shall, on expiry of such period, be deemed to have been dissolved.
9. On dissolution of the market-committee the provisions of Sections 56 and 57 apply; under Section 56(3), (4) and (5) on supersession of a market committee the director has been given power to appoint a person to be called the Officer-in-charge; or a committee consisting of not more than seven persons, to be constituted in the manner prescribed, to be called the committee-in-charge, to carry out the functions and exercise the powers of the market-committee. The Director has been further given power to replace the committee and appoint an officer-in-charge and vice versa. Sub-sections (4) and (5) also speak of the same proposition. Under sub-section (7) of Section 56 the officer-in-charge or committee-in-charge ceases to function on the date appointed for the first general meeting of the market committee. Under Section 57 when a market committee is dissolved all the members as well as Chairman and Vice-Chairman shall be deemed to have vacated their offices. Under Section 57(b) all powers and duties of the market-committee under the Act shall subject to the control of the Director, be exercised and performed by a person to be called the Officer-in-charge or a committee the consequences as contemplated.
10. The petitioners in the instant cases were appointed as Members and Chairman of the committees. It is submitted by the petitioners that under Section 17 of the M. P. Krishi Upaj Mandi Adhiniyam the functions being numerous the committee alone can exercise the power efficiently and it is alleged that the officer-in-charge cannot discharge function efficiently. It is also alleged that the whole object of the Act gets frustrated by appointing officer-in-charge.
11. The Director of Mandi had appointed Mandi Committees under Section 57 read with Section 11(6) of the Adhiniyam as the term of the erstwhile Mandi Committees had expired, as such they stood dissolved by force of the statute.
12. The grievance of the petitioners is that on the imposition of the Presidential Rule in the State an attempt was made to remove committees which were appointed during the B.J.P. regime. The new government installed in the State by the general election, issued Ordinance No. 1 of 1994, published in M. P. Gazette (Extraordinary) dated 16th January, 1994. On issue of the said Ordinance the Director communicated with all the Collectors intimating them to change the Mandi Samitis immediately and appoint as officer-in-charge either Tahsildars or Sub-Divisional Officers or some other officers as the case may be. This exercise of power on the part of the Government/Director is alleged to be mala fide.
13. The learned counsel for the petitioners submitted that the Ordinance No. 1 of 1994 was promulgated in hot haste. There was no urgency to do so. There were no circumstances existing which required promulgation of the Ordinance.
14. The Ordinance having been replaced by Act No. 8/1994 the petitioners have further amended the petitions and submitted that the sole purpose of enacting the said law was to remove the committees already appointed and place officers-in-charge in their place.
15. It is also submitted that ordinarily an elected committee continues until the new elections are held. It is also submitted that the appointment of a committee serves the purpose of meeting of minds and serves public interest as the functions of the Mandis are varied. A single officer-in-charge will not be able to perform the functions. It is said that the replacement of the committee by officer-in-charge by amending Sections 10, 56 and 57 is mala fide and politically motivated.
16. It is further submitted that in various statutes the committees which arc elected continue in office despite term of the Committees expiring until elections, which serves the democratic principles.
17. It is submitted that appointment of Officer-in-charge confers arbitrary powers in the officer-in-charge and public interest cannot be served as the Director may not act fairly in the appointment of officer-in-charge. In this light the provisions of Sections 10, 56 and 57 as amended have been challenged.
18. Shri N. C. Jain, learned counsel for the petitioners, heavily relied on the judgments of the Supreme Court in Judges' transfer's case i.e. Supreme Court Advocates-on-Record Association and Anr. v. Union of India, AIR 1994 SC 268, S. S. Dhanoa v. Union of India and Ors., AIR 1991 SC 1745 in respect of appointments of Election Commissioners and Shrilekha Vidyarthi v. State of U. P., AIR 1991 SC 537 in respect of removal of the Government advocates.
19. The submissions put forth are as under :-
That the scheme of the amended Act is fatal to the constitutional scheme of democratic set up of various societies or committees and appointment of officer-in-charge is arbitrary.
Further, discretion given to the Director is arbitrary, and the Act has been enacted with political object of removing the appointees of BJP regime and is hit by the principles of spoil system as laid down in Shrilekha Vidyarthi v. State of U. P., AIR 1991 SC 537.
20. The State has opposed the said contentions basically on the ground that there is no right conferred on any person to be appointed as Member of the Committee nor is there any absolute right conferred on the Committee to continue in office. It is further submitted by the learned Additional Advocate General that there were 289 Krishi Upaj Mandis out of which 157 Mandis were under Officcrs-in-charge. Break-up of the Class of Mandis is as under :
i) A Class - 5
ii) B Class - 16
iii) C Class - 38
iv) D Class - 98 132 Mandis were being managed by nominated committees. The number of Class of Mandis is as under :
i) A Class - 11
ii) B Class - 17
iii) C Class - 40
iv) D Class - 98
21. It may further be seen that A Class Mandis are notified with income of above 20 lacs, B Class between 10 to 20, C Class between 3 to 10 lacs and D Class below 3 lacs.
22. It was further submitted that the amendment was sought to be made to rationalise and bring uniformity in regard to the administration of the Mandis by one system i.e. placing it under the officer-in-charge. The statement of aims and objects for enacting Act No. 8 of 1994 reads as under :
i) Under Provisions of the M. P. Krishi Upaj Mandi Adhiniyam, 1972, the Director has been empowered to appoint an officer-in- charge or a committee and also to remove;
ii) It has been brought to the notice of the State Government that such committees arc not performing their functions in a proper way. It is also noticed that under the existing enactment the procedure for their removal is lengthy and unnecessarily time consuming. It is also noticed that these committees try to keep themselves in office by any method. In the circumstances, it has been thought necessary to amend the provisions of Sections 10, 56 and 57 by making amendments to abolish the provisions for appointment of committees.
iii) Since the matter was important and urgent and the Assembly was not in session Ordinance No. 1 of 1994 was promulgated for the purpose which is now being replaced by an Act. Hence this Act is introduced.
23. Thus, perusal of the above aims and objects clearly shows that it was with a view to bring uniformity, the Bill was introduced in the Vidhan Sabha and the same was passed by the Vidhan Sabha as an Act.
24. Having considered the arguments of counsel for both the parties, we are of the view that the Stale Legislature was competent to make amendments to the provisions. It has not been argued that no such amendment could have been passed for want of legislative competence. What has been challenged is that legislative right has been exercised with the political object of ousting the persons appointed to the committees during BJP regime. We may state that the motive which impelled the legislature to pass the Act is irrelevant. See B. R. Shankaranarayana and Ors. v. State of Mysore and Ors., AIR 1966 SC 1571, Mukundas and Anr. v. State of M. P. and Ors., 1993 MPLJ 676 as also State of Himachal Pradesh and Anr. v. Kailash Chand Mahajan and Ors., AIR 1992 SC 1277.
25. The data given by the learned Additional Advocate General shows that even before the amendment was made to the provisions by the Act No. 8 of 1994, 157 committees were being run by Officers-in-charge. Thus, the attempt on the part of the Government to amend the law to bring uniformity cannot be said to be mala fide or politically motivated.
26. It cannot be forgotten that there was only one elected Mandi Committee in existence whereas other committees were nominated committees. In many cases officers-in-charge had been appointed. The power has been given to the Director, a high authority and it is expected, the Director shall exercise powers bona fide for purposes of running the administration of Mandi Committees as interim measure since the officers-in-charge would cease to function on the constitution of newly elected mandi committees. It has been pointed out that the process of election of mandi committees could not be completed on account of various bottlenecks, such as non-holding of elections to the Panchayats and co-operative societies.
27. Now the elections to various Gram Panchayats have been notified and process is on to constitute the Panchayats. Similarly, the election to the co-operative societies is also to be held and steps will be taken in that behalf early as per submission of the Additional Advocate General. We are of the view that the enactment does not suffer from any constitutional vice nor it is otherwise ultra vires of the provisions of the Constitution.
28. Further question raised by the learned counsel for the petitioners was that the provision enacted is arbitrary and violative of Article 14 of the Constitution of India. It is stated that since the committees nominated were for only transitory period during which the process of election is to be held, their removal is nothing but arbitrary. It is also submitted that democratic process means meeting of minds of more than one person which is more conducive to the effective and proper administration of the Mandi Committees. Learned counsel has also relied on the judgment of this Court in Anurudha Prasad Shastri and Anr. v. The State of M. P. and Ors., M. P. No. 1111/90 wherein this Court struck down the provisions of Sections 48(4) and 49(8) of the M. P. Co-operative Societies Act as substituted by Act No. 14 of 1990. The reasoning given by the Court was that since under the Act itself the duty was cast on the Registrar to hold election if the request was made by the outgoing committee three months before the expiry of the term as contemplated under the Act, the committee cannot be held guilty and removed by the Registrar for his own inaction. Thus, the intention of the Legislature was to further co-operative movement; the amendment did not serve the purpose. As such the provisions were declared ultra vires and committees were directed to be reinstalled. The said judgment is not applicable to the instant case and is distinguishable as in these cases only the nominated committees are being removed for paving the way for appointment of officer-in-charge under the Act.
29. The right to be elected to the committee is statutory right conferred by the Act, right to be nominated accrues only because of the provisions existing before the amendment. This right is nothing but statutory right which can be taken away by statute. We may refer to the judgment of this Court in Ramesh Punjabrao Rewathar and Ors. v. Returning Officer, Krishi Upaj Mandi, Pandhuma and Ors., 1986 MPLJ 707 :
"The right to be elected or get elected to the Krishi Upaj Mandi Samiti is a statutory right provided by the M. P. Krishi Upaj Mandi Adhiniyam and it is not a fundamental right............Therefore, Section 11-A of the Krishi Upaj Mandi Adhiniyam, 1972, is not ultra vires of the Constitution as it does not infringe any fundamental right nor any provision of the Constitution."
Thus, it is a right which can be acquired or lost depending on the nature of the provisions in the Act.
30. There are similar provisions in the Municipalities Act; wherein a committee is constituted under Section 16 to be a municipal council for the first time and on the expiry of the term the same ceases to exist and Section 36(2) provides for appointing an administrator or officer-in-charge. The Court had occasion to deal with such a situation in Jiwanlal Agrawal v. State of Madhya Pradesh and Ors., 1981 MPLJ 412 and stated thus :
"...................It is in this background that Section 36(2) enacts that when the term of a Council expires the Council shall be deemed to have been dissolved and the provisions of Section 328 shall apply. Section 36(2) which was introduced by Enactment Act No. 39 of 1973 enables the Government to appoint an Administrator under Section 328(6)(b) when the term of a Council expires before reconstitution of the Council by election. Section 36 on its own terms has application to the case of an elected Council the term which is four years from the date of first meeting. It does not in terms apply to a committee constituted under Section 16. The argument of the learned Government Advocate, however, is that a committee appointed under Section 16 is deemed to be a Council and, therefore, if the term of such a committee expires before constitution of the committee by election, the power of appointing an administrator will become available under Section 36(2) read with Section 16(1)...........Even so, we are of the opinion that the provision made in Section 36(2) that after the expiry of the term the council is deemed to have been dissolved and the provisions of Section 328 become applicable must also be applied to a committee constituted under Section 16. In case of an elected council Section 36(2) in terms applies and if within the period of four years or within the extended period a Council is not newly constituted the Council is deemed to have been dissolved making applicable the provisions of Section 328. As already seen, the period of a committee which is deemed to be a Council under Section 16 is two years which can be extended from time to time for an aggregate period of one year."
Jiwanlal Agrawal v. State of Madhya Pradesh and Ors., 1981 MPLJ Para 6 Page 414.
It has been pointed out in the judgment that a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. That is to say that the Court should try to construe the provisions of the Act so as to effectuate the intention of the makers and not to defeat it. In the instant case the clear intention of the Legislature was to rationalise and to bring uniformity in the matter of the administration of Mandis by mandating appointments of officers-in-charge. Such a provision cannot be said to be arbitrary. The mere fact that some other enactments provided for a particular mode of appointment and their continuance does not mean that the same scheme should be followed in each statute in that with regard to the nature, purpose, object, the duties, obligations and responsibilities to be performed under the particular Act.
31. The learned counsel for the petitioners relied on the judgment of the Supreme Court in Judges' transfer case which speaks about combined wisdom of constitutional functionaries in performing their duties. This principle is not at all applicable to the present case. The functions and duties performed under the Act by committees, can be performed by any person appointed as officer, with the help of the staff of the Mandi Committee. It does not require any serious deliberation or consultation process. Similarly, the case of Shrilekha Vidyarthi's case (supra) also speaks about the public element involved in appointment and continuation of the Government Pleaders vis-a-vis the State. The cases referred to by the learned counsel for the petitioners arc totally inept.
32. The amendments made to Sections 10, 56 and 57 by Ordinance No. 1 of 1994 as replaced by Act No. 8 of 1994 do not suffer from any arbitrariness and arc intra vires of the Constitution. It is expected that the State shall endeavour to hold elections to the Committees as early as possible after completion of elections to Panchayats and Co-operative Societies.
33. The petitions fail and arc dismissed but without any order as to costs. The security amount, if any, deposited by the petitioners shall be refunded to them.