Bombay High Court
Sopanrao Onkarrao Sathe vs State Of Maharashtra Through Its on 15 July, 2010
Author: S.A. Bobde
Bench: S.A. Bobde, A.B. Chaudhari
wp2626.10.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2626/2010
PETITIONER:- Sopanrao Onkarrao Sathe,
Chairman, Agricultural Produce Market
Committee, Malkapur, District Buldhana.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra through its
Secretary, Department of Cooperation and
Marketing, Mantralaya, Mumbai - 400032.
2. Director of Marketing, Maharashtra State, Pune.
3. District Deputy Registrar,
Cooperative Societies, Buldana (Presently post
being held by Assistant Registrar (Administration)
Shri Zine).
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[Shri P.C. Madkholkar, Adv. for petitioner]
[Smt. B.H. Dangre, Addl. G.P. for respondents]
[Shri Abhay Sambre, Adv. for intervenor]
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CORAM :- S.A. BOBDE AND
A.B. CHAUDHARI, JJ.
DATED :- 15.07.2010
ORAL JUDGMENT (PER : S.A. BOBDE, J.)
1. Heard. Rule. Rule returnable forthwith. Heard finally by consent of learned Counsel for the rival parties.
2. The petitioner has challenged the show-cause-notice dated 2.6.2010, calling upon him to show cause why he should not be ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 2/12 removed from the post of Chairman of the Agricultural Produce Marketing Committee, Malkapur.
3. The main contention on behalf of the petitioner is that the notice is not issued by a competent authority since it is issued by the Assistant Registrar of the Co-operative Societies and not by the District Deputy Registrar as required by Section 45 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as 'the Act'). It is an undisputed position that the impugned notice is issued by an 'in-charge' District Deputy Registrar.
4. The contention is that though the notice is purported to have been issued by the District Deputy Registrar who is the competent authority, it is invalid. Since it is signed by an Assistant Registrar who is holding the charge of the post of the Deputy Registrar.
Section 45 (1) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act reads thus.
"45 (1). If, in the opinion of the State Government, a Market Committee or any member thereof, is not competent to perform or persistently makes default in performing the duties imposed on it or him by or under this Act, or abuses its or his powers or wilfully disregards any instructions issued by the State Government or any officer duly authorised by it in this ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 3/12 behalf arising out of audit of accounts of the Market Committee or inspection of the office and work thereof, the State Government may, after giving the Committee or member, as the case may be, an opportunity of rendering an explanation, by an order in writing, with reasons therefor, supersede such Market Committee, or remove the member, as the case may be; and where a member is removed, the State Government shall appoint any person as a member of such Committee in his place for the remainder of his term of office :
Provided that, no Market Committee shall be superseded without the State Marketing Board referred to in section 44 being previously consulted."
5. The above provision clearly contemplates that a member of the Market Committee, who inter alia wilfully disregards any instructions of the State Government or any officer duly authorized by it may be removed by the State Government. The impugned notice is issued to the petitioner for the alleged disobedience of the order of status quo made by the Director of Marketing relating to construction activity of the Agricultural Produce Marketing Committee. We are at this juncture not concerned with the fact whether the petitioner has in fact disobeyed any instruction, since that is a matter that may require a decision on merits, after the petitioner has filed the reply before the ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 4/12 competent authority.
6. Now, the power to remove a member conferred by Section 45 of the Act conferred on the State Government is undisputedly conferred on the District Deputy Registrar, under a general order dated 5.9.1981 issued under Section 58 of the Act.
Section 2 (f-1a) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act defines 'District Deputy Registrar' as follows.
"2 (f-1a) "District Deputy Registrar"
means the District Deputy Registrar of Co-operative Societies appointed under the Maharashtra Co-operative Societies Act, 1960."
7. According to learned Counsel for the petitioner since the person who has signed the notice is in fact not appointed as a District Deputy Registrar but is in fact appointed as a Assistant Registrar under the provisions of the Maharashtra Co-operative Societies Act, 1960, he has no authority to issue show-cause-notice. The argument tantamounts to contending that an Assistant Registrar cannot hold charge of the post of a Deputy Registrar because the A.P.M.C. Act defines District Deputy Registrar to mean a District Deputy Registrar appointing under the Maharashtra Co-operative Societies Act.
::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 5/128. We do not find any merit in this contention since the delegation of powers clearly contemplates that notice should be issued by a District Deputy Registrar and we find that the notice has in fact been issued by a District Deputy Registrar. It does not make any difference to the situation in law that the person who is holding the charge of the post of the District Deputy Registrar is a Assistant Registrar, who under an administrative order dated 25.5.2010 has been appointed to hold the additional charge of the post of the District Deputy Registrar who is on leave. Merely because an officer other than the District Deputy Registrar or lower in rank of the District Deputy Registrar has been empowered by the Government to hold the post of the District Deputy Registrar, the action is not vitiated on any count since the impugned action is nonetheless by the District Deputy Registrar. We also note that there is no challenge to the order directing the Assistant Registrar to hold charge of the post of the District Deputy Registrar.
9. It was, however, contended by the learned Counsel for the petitioner that reference to District Deputy Registrar in the A.P.M.C. Act can only mean reference a District Deputy Registrar of the Co-operative Societies, who is appointed under the Maharashtra Co-operative Societies Act and therefore, excludes a Assistant ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 6/12 Registrar. We have no doubt that the term 'District Deputy Registrar' only means 'District Deputy Registrar of Co-operative Societies' and not any other officer. A lot depends or whether in the A.P.M.C. Act the term 'District Deputy Registrar' has been incorporated or whether the said term appears on a flick of legislature by reference (to the Maharashtra Co-operative Societies Act). If it is a case of legislation by reference then the law requires one to refer to the provision of the Maharashtra Co-operative Societies Act for determining who should be upgraded as a District Deputy Registrar with reference to the provision of the later Act in the circumstances contemplated by that Act. Thus the question who can be a District Deputy Registrar contemplated by the A.P.M.C. Act will have to be answered with reference to who can be a District Deputy Registrar under the Maharashtra Co-operative Societies Act. If another officer such as an Assistant Registrar can be temporarily appointed to hold the post of the Deputy Registrar the act of such an officer will be the act of a District Deputy Registrar.
Section 3 and Section 3A of the Maharashtra Co-operative Societies Act, 1960, which are relevant in this regard, read thus :
"3. Registrar [and his subordinates] The State Government may appoint a person to be the Registrar of Co-operative Societies for the State; and may appoint one or more persons to assist such ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 7/12 Registrar with such designations, and in such local areas or throughout the State, as it may specify in that behalf, and may, by general or special order, confer on any such person or persons all or any of the powers of the Registrar under this Act. The person or persons so appointed to assist the Registrar and on whom any powers of the Registrar are conferred, shall work under the general guidance, superintendence and control of the Registrar. They shall be subordinate to the Registrar, and subordination of such persons amongst themselves shall be such as may be determined by the State Government.
3A. Temporary vacancies If the Registrar or a person appointed to assist such Registrar is disabled from performing his duties or for any reason vacates his office or leaves his jurisdiction or dies, then -
(a) in the case of the Registrar, the Additional or Joint Registrar, in the office of the Registrar, and
(b) in the case of a person appointed to assist the Registrar, the senior most officer holding the next higher post, in the respective office, shall, unless other provision has been made in that behalf, hold temporarily the office of the Registrar or, as the case may be, of the person appointed to assist the Registrar in addition to his own office and shall be held to be the ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 8/12 Registrar or the person appointed to assist the Registrar under this Act, until the Registrar or the person appointed to assist the Registrar resumes his office, or until such time as the successor is duly appointed and takes charge of his appointment."
Thus, in the hierarchy established by the said provisions an Assistant Registrar can temporarily hold the office of the District Deputy Registrar vide (b) one.ig
10. It is noteworthy that the A.P.M.C. Act does not incorporate term District Deputy Registrar from the Maharashtra Co-operative Societies Act but it refers to the later for the meaning of the said term.
The case is thus clearly one of legislation of reference and not by incorporation. In fact, the term is not defined under the Maharashtra Cooperative Societies Act either, only the term Registrar is dealt with vide Section 3. The definition of 'District Deputy Registrar' does not define that term to mean a 'District Deputy Registrar' appointed as such under the provisions of the Maharashtra Co-operative Societies Act. The statutory scheme thus clearly involves legislation by reference and not by incorporation. In the case of Mahindra & Mahindra Ltd...Versus...Union of India and another, reported at 1979 (2) Supreme Court Cases 529, the Supreme Court has had to say thus ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 9/12 in paragraph No.8 :
"8. ...It ignores the distinction between a mere reference to or citation of one statute in another and an incorporation which in effect means bodily lifting a provision of one enactment and making it a part of another. Where there is mere reference to or citation of one enactment in another without incorporation, Section 8 (1) (General Clauses Act, 1897) applies and the repeal and reenactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be construed as reference to the provision as re-enacted. Such was the case in the Collector of Customs v. Nathella Sampathu Chetty and New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise. But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it. Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 10/12 an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporation statute. ..."
11. Keeping in mind the above doctrine of interpretation of Statues, we find that reference to District Deputy Registrar under the Maharashtra Co-operative Societies Act, 1960 in Section 2 (f-1a) of the Act is legislated by reference and not by incorporation and thus the provisions of the Maharashtra Co-operative Societies Act, 1960 including Section 3 and 3A and the changes made therein, whether legislative or merely administrative will apply. The in-charge Assistant Registrar will have to be treated as District Deputy Registrar in the fact situation.
12. Learned Counsel for the petitioner relied on the decision of the Supreme Court in the case of Ajaib Singh...Versus...Gurbachan Singh and others, reported in AIR 1965 Supreme Court 1619, wherein the Supreme Court while dealing with a case of preventive detention held that Additional District Magistrate though conferred with powers of the District Magistrate under the Code of Criminal Procedure or any other law for the time being in force does not thereby ::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 11/12 become entitle to act as a District Magistrate since he remains officer who is below the rank of a District Magistrate. This decision, however, is arrived at under a different statutory scheme, which clearly contemplated that the authority empowered by the Rules to detain shall not be lower in rank than that of a District Magistrate (vide Section 15 of the Defence of India Act, 1962). The said decision is of no assistance to the petitioner.
13. Learned Counsel for the petitioner further relied on the decision of the Supreme Court in the case of Hari Chand Aggarwal...Versus...The Batala Engineering Co. Ltd. and others, reported in AIR 1969 Supreme Court 483. We find that this decision also does not assist the petitioner since it arose under entirely different statutory scheme and the Supreme Court observed that though the words 'District Magistrate' could not possibly be read as Additional District Magistrate and it is only by resorting to the notification issued under Section 10 (2) of the Code of Criminal Procedure that the Additional District Magistrates can be said to have been empowered to exercise the powers of the District Magistrates (vide paragraph No.10).
::: Downloaded on - 09/06/2013 16:09:17 ::: wp2626.10.odt 12/1214. We are, thus, of the view that the show-cause-notice in the present case has been issued by the competent officer and does not call for any interference. We, however, make it clear that the petitioner shall be entitled to reply the show-cause-notice, which reply shall be considered by the authority. Writ Petition is dismissed. Rule is discharged. No order as to costs.
JUDGE
ig JUDGE
ssw
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