Bombay High Court
Ramrao Sitaram Kadam And Ors. vs District Deputy Registrar And Ors. on 29 October, 1987
Equivalent citations: 1988(1)BOMCR600
JUDGMENT
C.S. Dharmadhikari Acg. C.J.
1. In this petition, the order issued by the District Deputy Registrar, Co-operative Societies, Nanded under section 44 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (hereinafter referred as the Act) for the bifurcation of the Market Committee, Hadgaon, dated 9th April, 1984, is challenged on various grounds. One of the contentions raised is that before issuing the notification for the bifurcation of the market committee into two market committees for the marked area, the federation of the market committees i.e. Krushi Bazar Utpan Samiti Sangh, Pune was not consulted, which is a must. Since this mandatory provision was not followed or complied with, under notification issued is ab initio void. The notification is also challenged on the ground that it has been issued in colourable exercise of powers and, therefore, on that count also it is illegal. The notification is also challenged on some other grounds. However, in our view it is not necessary to consider any other aspect of the matter in this petition since the petitioners are entitled to succeed on the ground that there was no consultation with the federation of the market committees as contemplated by section 44 of the Act.
2. From the affidavit filed by the respondents it is quite clear that a letter was written to the Krushi Bazar Utpan Samiti Sangh, Gultekdi, Pune, which is a federal body of the market committee on 29th of March, 1984. In the said letter it was mentioned that if no reply is received from the said body, within a period of 7 days, it will be presumed that the said federal body had nothing to say in the matter. It appears to be an admitted position that since no reply was received from the said federal body and the notification came to be issued on 9th April, 1984 for the bifurcation of the Agricultural Produce Market Committee it is not as to when this letter of 29th of March, 1984 was actually received by the federal body. It is also not known as to whether the period of 7 days was over on the date of issuance of the notification, since the period was to be counted from the date of receipt of the letter. This was the only procedure followed for consulting the federal body. Section 44 of the Act in terms contemplates that a notification for bifurcation of a committee could be issued after consulting the market committee or committees and federation of the market committees, if any. The provision is a mandatory. In the present case, the federation of the market committed is in existence. Therefore, the consultation with the said federation was mandatory. Therefore, the only question which required consideration is as to whether mere sending letter dated 29th of March, 1984 and without waiting for a reply or for a reasonable time, a notification for bifurcation of a committee could have been issued on 9th of April, 1984.
It is not necessary for us to probe into this in detail in view of the decision of this Court in Agricultural Produce Market Committee, Dharni & others v. District Deputy Registrar, Co-operative Societies, Amravati, 1986 Mh.L.J. 374 Suresh Dnyandeo Kumkar v. State of Maharashtra & others, , in Suresh's case this Court has made a detailed reference to the decision of the Supreme Court in S. Kevalram v. District Deputy Registrar Co-operative Societies, etc., 1986(2) Scale 398 wherein the Supreme Court has observed as under :---
"The impugned order of suppression of A.P.M.C. Armori dated 3-9-1983 has been passed without consulting the Federation of Market Committees as adjoined by provision to section 45(1) of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963. The learned Counsel for the respondents has placed reliance on the affidavit in reply to show that a request was made to the Federation in order to elect its opinion in regard to the proposed supersession but that the Federation had not given reply one way or the other. The expression "Previously consulted" means that the opinion of the Federation one way of the other must be taken into account before reaching the conclusion whether or not to supersede. It is no good answer to say that the opinion of the Federation could not be taken into account because no opinion was expressed by it; in the eye of law suppression cannot be said to have been made in consultation with the Federation. A reply from the Federation one way or the other should have been insisted upon and the opinion expressed by the Federation should have entered into the recognising before the conclusion to supersede was reached. The order therefore in unsustainable in law."
In our view these observations squarely apply to the present case also though the notification is issued under section 44 of the Act. In section 44 of the Act the expression used is after consulting the market committee or committees as the case may be and the federation of the market committees if any. In section 45 provision expression used is no market committed referred to in section 44 is previously consulted. In our view the expressions previously consulted and after consulting, must have the same meaning so also the area and scope of consultation. Consultation contemplated must be effective and meaningful and not merely superficial. As to when consultation could be termed as meaningful and effective has also been indicated in Suresh's case. If the facts in the present case are considered on the touch stone of the law laid down by the Supreme Court as well as by this Court in Suresh's case or in A.P.M.C. Dharni's case, in our view a CONCLUSION IS INEVITABLE THAT THERE HAD BEEN no consultation with the federal body before issuance of the notification under section 44 of the Act. In this view of the matter as have no other alternative but to quash and set aside the notification dated 9th April, 1984. In the view which we have taken, it is not necessary to consider any other contentions raised and argued before us.
In the result, therefore, Rule is made absolute. The notification issued under section 44 of the Act by the district deputy Registrar Co-operatives Societies, Nanded dated 9th April, 1984 is hereby quashed and set aside. However, in the circumstances of the case there will be as order as to costs.