Bombay High Court
Balkrishna S/O Shankar Nafde vs The State Of Maharashtra on 4 January, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2612 OF 2009.
1.Balkrishna s/o Shankar Nafde,
Aged about 47 years, Occupation
Agriculturist, resident of Talani,
Tahsil Motala, District Buldhana.
2.Devidas s/o Kisan Wankhede,
Aged about 51 years, Occupation
Agriculturist, resident of Aadvihir,
Tahsil Motala, District Buldhana.
3.Bhikamchand s/o Dinanath Zawar,
Aged about 51 years, Occupation
Trader, resident of Motala,
Tahsil Motala, District Buldhana.
4.Sahebrao s/o Kashiram Shimare,
Aged about 49 years, Occupation
Hamal Mapari, resident of Didola,
Tahsil Motala, District Buldhana.
5.Shridhar s/o Shivram Patil,
Aged about 61 years, Occupation
Agriculturist, resident of Pofali,
Tahsil Motala, District Buldhana.
6.Shri Anil Kashinath Patil,
Member of Agricultural Produce
Market Committee, Malkapur,
District Buldhana. ......PETITIONERS.
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VERSUS
1.The State of Maharashtra,
through its Secretary, Marketing
and Cooperation Department,
Mantralaya, Madam Cama Road,
Mumbai 400 032.
2.Shri Jaiprakash Dandegaonkar,
Minister of State for Cooperation,
Marketing and Textile, Government
of Maharashtra, Mantralaya, Madam Cama
Road, Mumai 400 032
(in his capacity as Minister as well as
in his personal capacity)
3.The District Deputy Registrar,
Cooperative Societies, Buldhana,
District Buldhana,
4.Agricultural Produce Market Committee,
Malkapur, Distirct Buldhana,
through its Secretary.
5.Agricultural Produce Market
Committee, Motala, District Buldhana
through its Administrator.
6.Shri Sopanrao Onkarrao Sathe,
Member and Chairman, Malkapur
Resident of Dasarkhed, Tahsil Malkapur
District Buldhana.
7.Shri Dnyandeo Pandurang Kolte,
Vice Chairman, Agricultural Produce Market
Committee, Malkapur, resident of
Narwel, Tahsil Malkapur, Distirct Buldhana.
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8.Shri Santosh Sahebrao Raipure,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
District Buldhana.
9.Shri Shivchand Tejrao Tayde,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
District Buldhana.
10.Shri Bhagwan Sitaram Raut,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Wajirabad,
Tahsil Malkapur, District Buldhana.
11.Shri Sopan Mukatram Shelkar,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Mhaiswadi,
Tahsil Malkapur, District Buldhana.
12.Shri Vilas Mahadeo Patil,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Vivra,
Tahsil Malkapur, District Buldhana.
13.Shashikalal Soma Mahajan,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Datala,
Tahsil Malkapur, District Buldhana.
14.Rukhmabai Shriram Wanare,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Dhirni,
Tahsil Malkapur, District Buldhana.
15.Shri Sanjay Sadashiv Patil,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Wakodi,
Tahsil Malkapur, District Buldhana.
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16.Shri Prakash Ramchandra Sapkal,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Deoghana,
Tahsil Malkapur, District Buldhana.
17.Shri Sureshchandra Pralhad Patil,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Dharangaon,
Tahsil Malkapur, District Buldhana.
18.Shri Ananda Bhikaji Shirsat,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Datala,
Tahsil Malkapur, District Buldhana.
19.Shri Shantaram Chandrabhan Kshirsagar,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Nimkhed,
Tahsil Malkapur, District Buldhana.
20.Shri Satishkumar Bhikulal Agrawal,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
Tahsil Malkapur, District Buldhana.
21.Shri Ghanshyamdas Lalchand Chandak,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
Tahsil Malkapur, District Buldhana.
22.Shri Abdul Salim Abdul Munir,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
Tahsil Malkapur, District Buldhana.
23.Shri Devendra Ramesh Patil,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
Tahsil Malkapur, District Buldhana.
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24.Shri Vajairao Jagannathrao Jadhav,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Malkapur,
Tahsil Malkapur, District Buldhana.
25.Shri Sukram Kashiram Ingale,
Member, Agricultural Produce Market Committee,
Malkapur, resident of Umail,
Tahsil Malkapur, District Buldhana. ...RESPONDENTS.
-----------------------------------
Mr. S.V. Manohar, Advocate for Petitioners.
Mrs. Bharti Dangre, Addl. Government Pleader
for Respondent Nos. 1 & 3.
Mr. P.C. Madkholkar, Advocate for Respondent Nos. 4 & 6.
Mr. G.G. Mishra, Advocate for Respondent No.5.
Mr. U.S. Dastane, Advocate for Respondent Nos. 20 to 22.
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CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 3rd December, 2009.
Date of Pronouncement. - 4th January, 2010.
JUDGEMENT.
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners challenge the order dated 07.05.2009 passed by respondent no.2 - Hon'ble Minister in exercise of ::: Downloaded on - 09/06/2013 15:28:55 ::: 6 powers of respondent no.1 under Section 43 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as "the APMC Act" for short).
Their contention is, respondent no.2 did not have any such jurisdiction. This Court has on 25.06.2009 granted interim relief and restrained respondent nos. 6 to 25 from taking any major financial or policy decision. In view of various orders passed, by consent of parties, the matter is taken up for final disposal at the stage of admission itself, and hence Rule is issued in the matter, making it returnable forthwith.
2. The basic facts are not much in dispute. There was a earlier round of litigation before this Court in the matter. Petitioners before this Court are connected with the affairs of Agricultural Produce Market Committee, Motala. Petitioner no.2 is agriculturist. Petitioner no.3 is Trader. Petitioner no.4 is Hamal.
Petitioner no.4 is Ex-Secretary of A.P.M.C. Motala. Petitioner Nos. 3 and 4 have necessary permission/ license from APMC.
Petitioner no.1 is Member of Gram Sewa Sahakari Society, which is entitled to send its representative on Board of APMC.
Both the petitioner nos. 1 and 2 are agriculturists. Petitioner no.
::: Downloaded on - 09/06/2013 15:28:55 ::: 76 was not earlier a party to any of the petitions and he is elected member of APMC, Malkapur. The dispute in present Writ Petition relates to amalgamation of APMC, Motala with APMC, Malkapur.
3. Earlier there was only one APMC, i.e. APMC, Malkapur which came into existence in 1986 and exercised jurisdiction over the entire area. In 1987 for about 125 villages, APMC, Motala was formed. It had/has about 40 licensed traders. APMC, Motala went into losses and in 2005 it had no funds even to pay salary of its employees or gratuity to its retired employees. On 19.08.2005, it passed resolution requesting the State Government to amalgamate APMC, Motala with APMC, Malkapur. Director of Marketing, Pune accepted that proposal and APMC, Malkapur also on 10.10.2005 passed a resolution accepting such amalgamation. On 04.10.2007, Board ie.
Maharashtra Agricultural Federation accepted this proposal and agreed to inform the District Deputy Registrar, [Respondent no.
3] to whom these powers under Section 44 of the APMC Act have been delegated. APMC, Malkapur is respondent no.4, while APMC, Motala is respondent no.5 before this Court.
::: Downloaded on - 09/06/2013 15:28:55 ::: 84. As no decision was being taken on said proposal, petitioners no.
1 to 5 filed Writ Petition No. 3994/2008 seeking appropriate directions for expeditious action. On 18.09.2008 this Court directed respondent no.5 to take appropriate action within a period of 8 days. Thereafter, Misc. Civil Application [Review] No. 1204/2008 was filed by the Secretary of APMC, Malkapur in Writ Petition No. 3994/2008 pointing out that resolutions for amalgamation passed by APMC, Malkapur as well as APMC, Motala were withdrawn and hence directions dated 18.09.2008 issued by this court need to be recalled.
5. By order dated 14.10.2008 in Misc. Civil Application No. 1204/2008, this Court found that though positive directions were not necessary, it was still open for the State Government/ Competent Authority to take appropriate steps, if necessary, under section 44 of the APMC Act. Respondent no.3 District Deputy Registrar, passed an oder of amalgamation on 17.01.2009 which came to be published in Maharashtra Government Gazette on 22.01.2009. Petitioners claim that accordingly one Shri R.T. Ambhore, Assistant Registrar, ::: Downloaded on - 09/06/2013 15:28:55 ::: 9 Cooperative Societies, took charge as Administrator of amalgamated APMC Malkapur w.e.f. 22.01.2009.
6. Present respondent no.6 thereafter filed Revision 5/2009 dated 27.01.2009 under Section 43 of the APMC Act and challenged the order of District Deputy Registrar dated 17.01.2009.
Revision was preferred on 04.02.2009 and respondent no.2 Hon'ble Minister without issuing notice granted exparte orders directing status quo ante i.e. prior to 16.01.2009. Petitioner nos.
1 to 5 challenged these interim orders in Writ Petition No. 628/2009 and raised an issue of lack of jurisdiction in Hon'ble Minister. Writ Petition was finally heard and was closed for orders on 05.05.2009 by the Learned Single Judge, but then, respondent no.2 passed orders on 07.05.2009 which was brought to the notice of this Court on 08.05.2009. On 08.06.2009, because of these developments, Writ Petition No. 628/2009 was held to be infructuous. Thereafter, present Writ Petition came to be filed challenging the said order dated 07.05.2009.
7. It appears, that Writ Petition No.628/2009 was initially placed before the Division Bench of this Court and there an objection ::: Downloaded on - 09/06/2013 15:28:55 ::: 10 was raised by the respondents, pointing out that, jurisdiction was with Single Judge of this Court. Petitioners there urged that, as the order impugned was without jurisdiction, matter was rightly filed before the Division Bench. In paragraph no.10 of its order dated 26.03.2009, the Division Bench found that, in view of the provisions of Sub-Rule [3] of Rule 18 of the Bombay High Court Appellate Side Rules, 1960 the learned Single Judge had jurisdiction, if writ was against quasi judicial order. It also found that, the impugned order is quasi judicial. Petitioners had contended that respondent no.2 was not empowered by the statute to pass the impugned order and hence, jurisdiction would be with Division Bench. The Division Bench found that, the said issue can be agitated before this Court i.e. learned Single Judge.
That is how Writ Petition No. 628/2009 earlier before Division Bench, later on came to be disposed of by learned Single Judge on 08.06.2009 as infructuous. Writ Petition No. 2612/2009 i.e. the present Writ Petition has been filed by those petitioners directly before this Court with addition of petitioner no. 6.
8. Respondent nos. 4 to 6 have filed Civil Application No. 2220/2009 in present writ petition, raising preliminary objection ::: Downloaded on - 09/06/2013 15:28:55 ::: 11 that, the matter pertains to Division Bench as Chapter XVII Rule 18 of Appellate Side Rules, 1960 does not include APMC Act. It was further urged that, the person invoking the jurisdiction of Single Judge has therefore to be a party to original proceedings and then only he qualifies to be an aggrieved person. In absence of such lis, the matter must be placed before the Division Bench.
It is further pointed out that, as petitioner no.6 was not party to earlier round of litigation, any observations in earlier round which may inure to the benefit of petitioner nos. 1 to 5 cannot apply to petitioner no.6. In view of this objection, as suggested by the parties the matter was first heard on preliminary objection and thereafter, on its merits with an understanding that, this court will first consider the preliminary objection and thereafter the challenge on merits. After this understanding, the matter was adjourned for hearing accordingly. The learned counsel for respondent no.6 has on next date ie. on 21.11.2009 at the beginning itself placed on record a Pursis St. No. 11928/2009, regarding express instructions of his client to first insist for decision on preliminary objection, so as to enable respondent no.
6 to file LPA, if preliminary objection was over ruled. However, learned counsel fairly states that, he would abide by the ::: Downloaded on - 09/06/2013 15:28:55 ::: 12 arrangement already decided.
9. Shri P.C. Madkholkar, learned counsel while raising preliminary objection on the lines mentioned above, stated that a person who was not party to adjudication by respondent no.2 Minister, must go before Division Bench and according to him a challenge to quasi judicial order necessarily contemplates a lis before that Authority between contesting parties. As there was no such lis between petitioner no.6 and other respondents, before respondent no.2, the petition must be heard by the Division Bench. He relies upon the Black's law Dictionary [6th Edition] to point out the meanings of words 'lis', 'adjudicate' and 'proceedings'. He has also invited attention to the meaning of word 'lis', as given in Law Lexicon. He argues that as petitioners are strangers to the proceedings of amalgamation, they can not approach Single Judge. He further states that this objection is without prejudice to his contention that petitioners lack locus in this respect. In support of his contention, he has relied upon the judgment of Hon'ble Apex Court reported at AIR 1993 SC 412 (Kihota Hollohon .vrs. Zachilhu and others) [paragraph no.40].
::: Downloaded on - 09/06/2013 15:28:55 ::: 1310.While replying to preliminary objection Shri S.V. Manohar, learned counsel has relied upon the express language of Chapter VII Rule 18 of Appellate Side Rules, 1960 to urge that challenge in petition arose out of quasi judicial proceedings contemplated by Sub-rule [3] of Rule 18. He relies upon the observations contained in order dated 26.03.2009 in Writ Petition No. 628/2009 to contend that, the order would operate as res-
judicata and present respondents who then contented that the matter must to before the Single Judge, cannot now turn around, and argue that the matter must be pleased before Division Bench.
He points out that Writ Petition No. 628/2009 between the parties has been decided by the learned Single Judge of this Court. He further states that, in any case provisions of Order 2 Rule 2 CPC & principles like constructive res-judicata operate in the matter. He has also pointed out that only when vires of any statute or rules or regulations are challenged, the matter needs to be placed before the Division Bench.
11. Shri U.S. Dastane, learned counsel for respondent nos. 20 to 22 has relied upon the judgment of Single Judge of this Court reported at 2008 [4] Mh.L.J. 262 (Sanjay Sadashiv Patil .vrs.
::: Downloaded on - 09/06/2013 15:28:55 ::: 14State of Maharashtra and others). In reply, Shri Madkholkar, learned counsel has stated that, the order dated 26.03.2009 leaves the issue of jurisdiction open for consideration by learned Single Judge. He further points out that, against adjudication in Sanjay Sadashiv Patil .vrs. State of Maharashtra and others [supra], Letters Patent Appeal has been admitted by Division Bench of this Court, but no stay has been granted.
12.Thereafter, parties have addressed this Court on merit. It is important to note that there is no challenge by any side to the constitutionality or scheme of Section 43 of the APMC Act or to any delegation made thereunder.
13. Shri Manohar, learned counsel for petitioners after disclosing the facts, stated that, the impugned order dated 07.05.2009 is erroneous because APMC Motala has never withdrawn its resolution of amalgamation. He points out the said APMC has on 22.02.2008 resolved to amalgamate. He further points out that, the Maharashtra Agricultural Federation/Board was already consulted and respondent no.2 Minister has over looked these factors. The finding that no proposal for amalgamation was ::: Downloaded on - 09/06/2013 15:28:55 ::: 15 pending, is erroneous because it runs contrary to the orders of High Court in Review passed on 14.10.2008. He points out that powers under Section 44 of the APMC Act are legislative in nature. Hence, Section 42 is not available. He further states that under Section 42, proceedings can be called for, to examine the legality or propriety and State Government cannot call for its own proceeding by using that power. He points out that powers under Section 44 are delegated to respondent no.3 District Deputy Registrar, but then that authority is not covered under Section 43 and hence, records of respondent no.3 could not have been called for by the State Government. He has invited attention to Section 2 to point out meaning of Director and District Deputy Registrar and also how definition needs to be considered in context. He has also invited attention to delegation as done on 18.09.1981 in this respect. He further states that, here Director has not passed orders under Section 44, and his powers under Section 44 (if any) are not delegated to the District Deputy Registrar i.e. respondent no.3. He has also invited attention to notification of delegation dated 05.09.1981 to drive home this point. He relies upon the judgment of Hon'ble Apex Court reported at AIR 1963 SC 1503 (Roop Chand .vrs.
::: Downloaded on - 09/06/2013 15:28:55 ::: 16State of Punjab and another), in this respect. [2007] 8 SCC 705 (Chairman, Indore Vikas Pradhikaran .vrs. Pure Industrial Coke and Chemicals Ltd ) is also relied upon for the same purpose.
14. He argues that, all petitioners are affected by the impugned order dated 07.05.2009 and invites attention to their description and position in life as contained in Writ Petition to show that they have locus and status to maintain writ petition. He relies upon the judgments reported at [2004] 2 SCC 463 (Mehsana District Central Cooperative Bank Ltd .vrs. State of Gujarat and others) and [2002] 1 SCC 33 (Ghulam Qadir .vrs. Special Tribunal and others) for this purpose. He also points out that there is no objection to locus of any of the petitioners by the State Government.
15. Shri Dastane, learned counsel on behalf of respondent nos. 20 to 22 adopts the argument of advocate Shri Manohar and adds that, even if it is presumed that, respondent no.2 has reviewed the order of District Deputy Registrar, the law does not permit review of legislative power. He draws support from [1998] 7 SCC 162 (State of Orissa and others .vrs. Commissioner of Land Records ::: Downloaded on - 09/06/2013 15:28:55 ::: 17 and Settlement and others).
16.Shri Gopal Mishra, learned counsel for respondent no.5 states that respondent no.2 has not considered the express objection to the tenability filed by respondent no.5 and he further states that respondent no.5 APMC, Motala has passed a fresh resolution in favour of amalgamation on 22.10.2008.
17.Mrs. Dangre, learned Additional Government Pleader relies upon the order dated 14.10.2008 passed by the Division Bench in Review application, and states that, after said order situation changed materially which required respondent no.3 District Deputy Registrar to consult Marketing Federation/Board again.
She points out that, it is important ingredient of Section 44 and as both the APMC's had withdrawn their proposals for amalgamation, failure of respondent no.3 to seek fresh consultation with Board/Federation is fatal and his amalgamation order dated 22.01.2009 is therefore, correctly held to be bad.
18. According to her, because of delegation of its powers under ::: Downloaded on - 09/06/2013 15:28:55 ::: 18 section 44 by State Government to respondent no.3, State Government is not denuded of its powers. She points out that Section 43 appears in Chapter VIII of APMC Act which deals with controls. Said section permits State Government to call for proceedings of Director. She also invites attention to provisions as contained in Section 52[B], to point out how two distinct Forums for filing appeals are prescribed. According to her, language of Section 43 permits State Government to call for records of its delegate to exercise control viz. Supervision.
Amalgamation is a proceeding under section 44 and hence, those proceedings can be called under section 43. Under Section 43, according to her, proceedings in relation to any APMC can be called for, and as proceedings to amalgamate are proceedings in relation to APMC, State Government is competent to exercise that power. She further states that the minority view in Roop Chand .vrs. State of Punjab and another (supra), is more appropriate and relevant in present facts. She points out that similar view about particular authority not loosing its powers because of delegation is taken in 1990 [suppl] SCC 374 (Scientific Adviser to the Minister of Defence .vrs. S. Daniel and others).
::: Downloaded on - 09/06/2013 15:28:55 ::: 1919. Shri Madkholkar, learned counsel states that, because of finality given under Section 44(3) to determination by State Government about apportionment of or shouldering of costs between two APMC's, order under section 44[1] is not final and is appelable or revisable. He further states that, language of Section 43 or Section 52[B], does not prohibit filing of such proceedings challenging order under Section 44[1]. Section 43, deals with an proceedings of an "Officer" also and respondent no.
3 - District Deputy Registrar is definitely an Officer whose records can be called for under Section 43. He points out that, Section 52B expressly permits appeal against the order of respondent no.
3 before Director. According to him, therefore, State Government has correctly exercised powers under Section 43 of APMC Act.
He has relied upon judgments reported at AIR 1966 SC 1404 (Godavari S. Parulekar .vrs. State of Maharashtra), AIR 1966 SC 1449 (Everest Apartments Cooperative Housing Society .vrs.
State of Maharashtra) and [2005] 2 SCC 334 (Ishwar Singh .vrs.
State of Rajasthan and others) in support of his arguments. He has also invited attention to provisions of Section 58 which enables the State Government to delegate its powers to Director ::: Downloaded on - 09/06/2013 15:28:55 ::: 20 or to any other Officer. He also supported the arguments of learned Additional Government Pleader.
20. To point out how the petitioners have not approached this Court with clean hands or to show their malafides, he has invited attention to Writ Petition to urge that, these petitioners who had no lis in the matter have annexed various documents along with their Writ Petition without disclosing the source thereof. In other words, according to him, the petitioners are puppets in the hands of an influential person named by respondent 6. He further points out by referring to various documents that gazette notification about amalgamation was printed at 5.30 p.m. on 22.01.2009 and still Shri Ambhore, took charge as Administrator at 2 p.m. on the said date. He points out that MLA who is interested in the matter procured copy of gazette notification and on the basis of that unauthorized copy, even before official publication, charge was taken by Shri Ambhore. He further points out that after publication in state gazette, respondent no.3 received copy at about 7.15 p.m. in the evening and hence, legally, respondent no.3 could have asked Shri Ambhore to take charge only thereafter. He further states that even in the ::: Downloaded on - 09/06/2013 15:28:55 ::: 21 impugned order dated 17.01.2009 there is mention of assurance of Hon'ble Minister on floor of house and respondent no.3 District Deputy Registrar has mechanically obeyed the said Hon'ble Minister, because of that assurances by ordering the amalgamation. He further states that after assurance was given on 26.12.2008, for fair & independent decision, the steps have to be taken thereafter. Here hearing leading to amalgamation was scheduled between 14.12.2008 to 24.12.2008. In these circumstances, as source of documents is not disclosed, he argues that Writ Petition must be treated as petition filed in public interest as there is no individual "lis". He has relied upon judgments reported at [2005] 5 SCC 136 (Gurpal Singh .vrs.
State of Punjab and others) and 2005 [4] Mh.L.J. 375 (Sunil Ramdas Kotkar and others .vrs. State of Maharashtra and others), to urge that, petitioners are not the persons who are prejudiced.
He has relied upon various judgments i.e., AIR 1999 SC 943 (Utkal University .vrs. Dr. Nrusingha Charan Sarangi and others), AIR 1973 SC 2720 (Dr. Satyanarayana Sinha .vrs. M/s. S. Lal & Co. (P) Ltd. ), AIR 1976 SC 578 (Jasbhai Motibhai Desai .vrs.
Roshan Kumar Haji Bashir & others), [2008] 5 SCC 217 (Anand Sharadchandra Oka .vrs. University of Mumbai and others ). In ::: Downloaded on - 09/06/2013 15:28:55 ::: 22 relation to locus, he has relied upon judgment of Hon'ble Apex Court in the case of Ghulam Qadir .vrs. Special Tribunal and others (supra). He, however, contended that the action under S. 44 of the APMC Act is not legislative in nature.
21. He has also invited attention to the affidavit filed in support of the Writ Petition to show that said affidavit by petitioner no.5 is defective and there is no authorization in his favour as per law by other petitioners in this respect. He further points out that the facts stated therein are disclosed to be true to personal knowledge and also relies upon the judgment reported at AIR 1978 Goa 12 (Caetano dias .vrs. Caetano Radrigues and others), AIR 1968 P & H 406 (Bhupinder Singh .vrs. State of Haryana and others), AIR 1970 SC 652 (A.K.K. Nambiar .vrs. Union of India and others) to assail it. He also invites attention to the express allegation made against Shri Chainsukh Sancheti, the M.L.A., on affidavit by respondent no. 6 in preliminary submissions.
22. He argues that when delegates like respondent no. 3 exceed authority or commit illegality, Principal i.e. the State Government can always step in and he relies upon the judgments reported at ::: Downloaded on - 09/06/2013 15:28:55 ::: 23 AIR 1987 SC 1802 (Union of India and another .vrs. Cynamide India Ltd.) and AIR 1988 SC 1737 (State of U.P and others .vrs.
Renusagar Power Co. and others), to urge that even in legislative mattes such interference is permissible.
23. Shri Dastane, learned counsel, with the leave of the Court, relied upon the judgments reported at 2008 [1] Mh.L.J. 882 (Agricultural Produce Market Committee ..vrs.. State of Maharashtra & others) and [1981] 2 SCC 722 (Rameshchandra Kachardas Porwal and others .vrs. State of Maharashtra and others) to show that, exercise of powers under section 44 is a legislative function.
24. In his brief reply, Shri Manohar, learned counsel has stated that as per the settled law, State Government could have exercised powers under Section 44 only if respondent no.3 had not used & exhausted it. He relies upon the judgment of Hon'ble Apex Court reported at 2003 [2] SCC 101 (OCL India Ltd. .vrs.. State of Orissa and others) in support of his contention. He further states, that definition of Director as contained in Section 2[f] is subject to the context not warranting otherwise. He points out ::: Downloaded on - 09/06/2013 15:28:55 ::: 24 that the Officer is not always a Director in the scheme. In light of Section 52[B] he further states that even if such Officer is presumed to be Director, appeal against order of such Officer will be before Director and not the State Government. He further points out that this position will also hold good for Section 43, and then, at the most records of respondent no.3 could have been called for by the Director and not by the State Government.
To point out how meaning given in definition clause is required to be applied looking to the context in which word defined is employed, he has relied upon the judgments reported at 1977 [4] SCC 193 (Union of India .vrs. Sankalchand Himatlal Sheth and another) and 1971 Mh.L.J. 753 (K.B. Khatavkar .vrs. S. Taki Beligrami).
25. He relies upon judgment of Hon'ble Apex Court reported at AIR 1966 SC 81 (Dwarka Nath .vrs. Income Tax Officer and another), to show that, if affidavit is found to be defective, matter cannot be dismissed and opportunity needs to be given to the petitioners to rectify it. He further points out that the State Government has not taken any objection to any of the facts pleaded by the petitioners or to the documents produced on record. He further ::: Downloaded on - 09/06/2013 15:28:55 ::: 25 states that no importance in this situation can be attached to source from which the documents are procured and places reliance upon the judgment of Hon'ble Apex Court reported at AIR 1987 SC 1748 (Pushpadevi M. Jatia .vrs. M.L. Wadhavan and others). According to him, the petition therefore, needs to be allowed and the impugned order of Minister dated 07.05.2009 deserves to be quashed and set aside.
26. The first objection of Shri Madkholkar, learned counsel about the competence of learned Single Judge to take cognizance of such Writ Petition needs to be looked into. The provisions of Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960 which mention the challenges which can be before the Single Judge in its clauses 1 to 43, specify those orders and also Acts under/in which those orders are passed. APMC Act does not figure in it. But, than as pointed out by the parties due to its Rule 3, orders passed by any quasi judicial authority in any proceedings under any Special or Local Law are to be challenged before the Single Judge. "Order" as per explanation at the end of Rule 18 means any order passed by the quasi judicial authority empowered to adjudicate under the "above mentioned statutes"
::: Downloaded on - 09/06/2013 15:28:55 ::: 26ie. in clauses 1 to 43. Thus, the question which arise before this Court is whether power exercised under Section 44 of the APMC Act or order passed therein is a quasi judicial proceedings or order. The second and most important question which falls for determination is whether, the impugned order under S. 43 can be said to be passed by the quasi judicial authority empowered to adjudicate by APMC Act.
27.In Writ Petition No.628/2009, challenge was to order dated 04.02.2009 passed by respondent no.2 Hon'ble Minister and that order was granting status quo ante. At that time, present respondent no.6 [respondent no. 3 in W.P. No.628/2009] had contended that jurisdiction would lie with Single Judge as it was a quasi judicial order. The petitioners then had tried to show that as respondent no.2 Hon'ble Minister was not empowered by the APMC Act to adjudicate in the matter, the jurisdiction was with Division Bench. The absence of powers with respondent no.
2 Hon'ble Minister was being alleged on account of absence of power in State Government to call for its own proceedings.
Before the Division Bench the petitioners had placed reliance upon the judgment of Hon'ble Apex Court in the case of Roop ::: Downloaded on - 09/06/2013 15:28:55 ::: 27 Chand .vrs. State of Punjab and another (supra). While deciding this controversy, the Division Bench in paragraph no.10 noticed that the Hon'ble Minister had purported to exercise jurisdiction under section 43 of the APMC Act. It further found that it as a quasi judicial order. It then found it difficult to accept the contention of learned counsel for petitioners that Minister was not empowered to pass such order. As the order was held to be quasi judicial order, the Division Bench found that whether the Hon'ble Minister had necessary powers or not, was the issue to be urged before the learned Single Judge. It is therefore, obvious that the only question left open for adjudication then by the Division Bench was about competency of respondent no.2 Minister to adjudicate the issue. The finding that, order dated 04.02.2009 was quasi judicial order has been recorded by the Hon'ble Division Bench there. In view of this order, the matter came before the learned Single Judge of this Court and the learned Single Judge on 08.06.2009 in view of the subsequent event of the passing of the final order by the Hon'ble Minister on 07.05.2009, disposed of the Writ Petition as infructuous. Thus question of authority of respondent no.2 to pass such orders under Section 43 was not required to be looked into in Writ ::: Downloaded on - 09/06/2013 15:28:55 ::: 28 Petition No. 628/2009.
28.The present petitioner nos. 1 to 5 were petitioners in Writ Petition No. 628/2009. Present respondent no.6 was respondent no.3 therein who raised this contention and argued that because of provisions of Chapter XVII Rule 18, as the order was quasi judicial order, the jurisdiction lay before Single Judge. This order of Division Bench was not questioned further and parties argued finally before the learned Single Judge. In that Writ Petition, challenge was to interlocutory order. In present Writ Petition challenge is to final order passed in same proceedings i.e. Revision 5/2009 in which interlocutory order was passed and the finding recorded by the Division Bench about nature of that order of Hon'ble Minister on 26.03.2009 then accepting that stand of respondent no.3, therefore, operates as res-judicata even in present matter. It is to be noted that other respondents except present respondent no.6, have not raised any such contention. Except for pointing out that the petitioner no. 6 was not party to WP 628/2009, respondent no. 6 has not even touched the arguments of res-judicata or Order 2 Rule 2 Code of Civil Procedure. Mere addition of one more petitioners in the ::: Downloaded on - 09/06/2013 15:28:55 ::: 29 matter will not make any difference in so far as this issue is concerned. The respondent no.3 who is respondent no.6 before this Court, cannot now turn around and say that the matter needs to be placed before the Division Bench.
29. Respondent no. 6 or other respondents are not doubting sustainability of challenge to order under Section 44(1) in Revision or Appeal. Contention that there was no lis between the petitioner no.6 and other respondents as petitioner no.6 was not party before the Hon'ble Minister is irrelevant in present situation. The order passed by respondent no.2 is quasi judicial order and whether it operates against a person party to/before it or not, is hardly relevant. It has no bearing on the nature of said order. Petitioner no.6 -an elected member of Agricultural Produce Market Committee, Malkapur is vitally interested in issue of amalgamation & cannot be labeled as stranger in the matter. Shri Madkholkar, learned counsel has relied upon the judgment in the case of Kihota Hollohon .vrs. Zachilhu and others (paragraph No.40), [supra]. There the question considered was whether Speaker or Chairman acting under paragraph no.6 of Schedule 10 of the Constitution of India ::: Downloaded on - 09/06/2013 15:28:55 ::: 30 dealing with disqualification on account of defection, are Tribunals or Courts. In that background, the Hon'ble Apex Court after noticing that the word "Tribunal" was used to indicate bodies of men appointed to decide the controversy arising in certain special laws, further observed that when there is lis i.e. affirmation by one party and denial by another, and the dispute necessarily involves a decision on the rights and obligations of parties to it and the Authority is called upon to decide it, there is exercise of judicial power. That Authority is called as Tribunal, if it does not have all trappings of Court. Ultimately, the Hon'ble Apex Court found that the Speaker or Chairman was "Tribunal".
These observations do not help respondent no.6 in any way in furthering his contentions. The order of amalgamation found in their favour by these petitioners is upset by respondent no. 2 by the impugned action. If their can be an "aggrieved party" to assail such order under Section 44(1) in Revision or Appeal, it follows that there can be a "rival" or non-aggrieved person also to support it or to seek its restoration, if it is set aside. The authority in Appeal or Revision will be required to resolve their "conflicting interests" within four corners of law after extending to them the opportunity of hearing. Here their "interests" are governed or ::: Downloaded on - 09/06/2013 15:28:55 ::: 31 affected/advanced by order under Section 44(1) of the APMC Act passed by respondent 3 which clothes them with legal status either to assail or protect that order.
30.In Sanjay Sadashiv Patil .vrs. State of Maharashtra and others (supra), the Writ Petition was pertaining to elections of APMC and nomination paper was rejected. Plea that, Single Judge had no jurisdiction in view of Rule 18[4] of the Appellate Side Rules, was negated therein after holding that the order of Appellate or Revisional Forum can also be subjected to judicial scrutiny because of its clause 3 before the Single Judge.
31.The next question to be gone into is whether under Section 43 of the APMC Act, State Government could have called for the records of its delegate - here respondent 3. As per communication dated 18.09.1981 powers under Section 44 for amalgamation or division of Market Committee are delegated to District Deputy Registrar ie. respondent 3. The said document filed by respondent nos. 1 and 2 along with the affidavit/reply does not indicate that powers under Section 44 are delegated to the Director. This document or communication is in furtherance ::: Downloaded on - 09/06/2013 15:28:55 ::: 32 of government notification dated 05.09.1981. During arguments, this government notification dated 05.09.1981 is also made available. It shows that powers of government under section 44 are delegated to respondent no.3 District Deputy Registrar. The notification also shows that powers under Section 44 are also delegated to the Director. However, here the Director has not exercised powers under Section 44 at all and it is respondent no.
3 who has passed orders of amalgamation on 16.01.2009 which came to be published in gazette on 22.01.2009.
32.Thus powers under Section 44[1] of State Government are delegated to respondent no.3 District Deputy Registrar and question is whether in exercise of powers under Section 43, the State Government (her the respondent no.2) could have called for said proceedings or records of respondent no.3. Section 43 of the APMC Act reads as under :
"43. Powers of State Government or Director to call for proceedings of Market Committee, etc., and to pass orders thereon.
The State Government may at any time call for and examine the proceedings of any Market ::: Downloaded on - 09/06/2013 15:28:55 ::: 33 Committee or of the Director, and the Director may at any time call for and examine the proceedings of any Market Committee or an officer empowered to exercise the powers of the Market Committee or of the Director for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed by the Market Committee, Director or the officer, as the case may be, under this Act. If in any case, it appears to the State Government or the Director that any decision or order or proceeding so called for should be modified, annulled or reversed, the State Government or the Director may pass such order thereon as it or he may think it."
Thus, this Section permits State Government to call for and examine proceeding of any market committee or of Director. It authorizes the Director to call for proceedings of market committee or of an Officer empowered to exercise powers of market committee or of Officer authorised to exercise powers of Director. When records of an officer below the rank of Director are to be called for, it is apparent that only Director has been authorised to do so, provided such an officer is empowered to exercise powers either of the market committee or of the Director himself. If such officer is not exercising the powers of market ::: Downloaded on - 09/06/2013 15:28:55 ::: 34 committee or of Director, the Director cannot call for his proceedings. It is also to be noted that these records are to be called for, for the purpose satisfying about the legality or propriety of any decision or order passed by the Market Committee, Director or Officer, as the case may be. The Government or Director has powers under Section 43 to modify or reverse the same. Here it is not the case of any body that respondent no.3 has exercised powers of Director under Section 44[1]. On the contrary, it is accepted that he exercised powers of State Government under Section 44[1] in view of its delegation to him on 18.09.1981. The definition of Director as contained in Section 2[f] states that Director means a person appointed as Director of Agricultural Marketing. However, it also includes any officer empowered by the State Government by notification in official gazette to exercise or perform powers and functions of Director. Section 2[f][1][a], defines District Deputy Registrar to mean such Officer appointed under Maharashtra Cooperative Societies Act, 1960. Thus within this framework District Deputy Registrar need not always be the Director. Here respondent no.3 is District Deputy Registrar of Cooperative Societies, and it is apparent that he is not a "Director" qua the ::: Downloaded on - 09/06/2013 15:28:55 ::: 35 amalgamation orders. Merely because section 43 uses the word 'Director' respondent no.3 will not become a Director till it is shown that he exercised powers of Director conferred upon him by the State Government by notification in official gazette.
Nobody here has urged that State government has by notification in official gazette authorised him to exercise or perform powers and functions of Director u/e 44(1). Thus proceedings of respondent no.3 could not have been called for and examined by the Director of Agricultural Marketing. But then question is whether such records could have been called for by the State Government. As already clear from bare Section, the State Government can call for proceedings of any market committee or of Director. Adv. Madkholkar has argued that legislature has used the word "officer" in S. 43 and as respondent 3 is also an officer, his proceedings can be called for. According to him, otherwise the word "officer" used in said provision is rendered superfluous. Learned Additional Government Pleader, has however, attempted to show that those proceedings were proceedings of market committee and the words 'proceedings of any market committee' are sought to be read as 'proceedings in relation to any market committee". It is apparent that, if such a ::: Downloaded on - 09/06/2013 15:28:55 ::: 36 result was desired by legislature under Section 43, it could have been easily achieved. All proceedings before Director are bound to be the proceedings in relation to market committee and if interpretation of Adv. Dangre is accepted, the words 'of the Director' in Section 43, would be rendered as redundant.
Moreover, such an effort militates with express legislative intention revealed by the scheme of APMC Act.
33.Perusal of Section 52 [B] in this respect is also important. The said provision reads as under :
"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 ::: Downloaded on - 09/06/2013 15:28:55 ::: 37 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."
34. Thus, Section 52B again shows that against the decision or order of Market Committee including of an officer empowered to exercise powers of Director, appeal is prescribed before the Director. Against the decision or order of Director, appeal is to State Government itself. Appeal against the order of an officer is therefore not provided before the State Government. In the scheme of S.43 and also S.52B, distinction is made between the Director and the officer authorised by State Government to exercise his powers. It is therefore, again clear from Section 52B, that when respondent no.3 District Deputy Registrar, exercised powers of State Government under Section 44[1], his order cannot be questioned in appeal before the Director. Right of appeal is creature of the Statute and needs to be availed in terms thereof. It is clear that no appeal is provided before the State Government also against such order of respondent 3. This reasoning also flows from and holds good for S. 43. If the ::: Downloaded on - 09/06/2013 15:28:55 ::: 38 contextual difference in Director or the Officer authorised to exercise his powers is not maintained, then two forums become available concurrently to challenge the order of such officer. In any case it does not confer upon State Government the power to call for and examine the proceedings of an officer empowered to exercise the powers either of the Market Committee or of the Director. This clear legislative scheme & intention can not be overlooked to attempt to carve out either an appellate or supervisory forum by accepting arguments of learned Advocate for respondent 6. Section 2 i.e. provision dealing with "Definitions" itself opens with words "In this Act, unless the context otherwise requires" and relevance of these words in the scheme can not be lost site of. Though some judgments are pressed into service by the petitioners to explain its implication, I do not find it necessary to refer to the same as said settled legal position is not in dispute before me. The qualifying words deliberately employed by the legislature in S. 43 itself to specify or identify the "subject officer" can not be ignored and rendered redundant.
35.This not providing of a remedy of supervision/revision or appeal ::: Downloaded on - 09/06/2013 15:28:55 ::: 39 against the order of its delegate before State Government under Section 43 as also under Section 52B cannot be viewed as accidental omission. In fact, this was not the arguments advanced by any of the respondents. The express language of Section 43, therefore, does not enable the respondent nos. 1 and 2 to call for and examine proceedings of respondent no.3 under Section 44[1].
36. Roop Chand .vrs. State of Punjab and another (supra), is the judgment of Constitution Bench of Hon'ble Apex Court, which clearly clinches the issue in this respect. The question there was whether the order passed by delegate of government is an order of that officer or of government. In paragraph no.11 the Hon'ble Apex Court has held that it must be viewed as order of Government itself. The reasoning in paragraph no.14 shows that there, while interpreting provisions of Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, which permitted State Government to call for and examine the records of any case before any officer, the Hon'ble Apex Court held that the records with delegate would really be the records in possession with government only. It is ::: Downloaded on - 09/06/2013 15:28:55 ::: 40 further held, that the words "call for" used in Section 42 are familiar to the Courts of law and by using those words, Legislature enacted that the officer whose order is to be interfered with, was an officer exercising an independent powers, and therefore, a subordinate officer. The order made by the delegate is thus treated as an order of Government itself.
37.Section 43 of the APMC Act also uses the word "call for". Some of its sections also contemplate independent orders which can be passed by the Director. Section 15A of the APMC Act contemplates appointment of an Administrator, as also enables District Deputy Registrar to pass an order for appointment of Administrator. But, then that District Deputy Registrar must be authorised by the Director for said purpose. In this situation scheme of Section 43 appears to be to call for proceedings of Director. The Director has not been authorised under Section 43 to call for for proceedings of an officer who is not exercising powers of Director. Same rider exists even in relation to Appellate Forum in Section 52B of the APMC Act.
38. Mrs. Dangre, learned Additional Government Pleader has relied ::: Downloaded on - 09/06/2013 15:28:55 ::: 41 upon the minority view in this Constitution Bench Judgment to support her contention. Hon'ble two Judges taking the minority view have found that power of State Government under Section 42 of the above mentioned Punjab Act was distinct from powers under Section 21[4]. The said powers under Section 42 was found to give over all control to State Government to see that orders passed by its officers are legal and proper. This inference of giving over all control drawn by the Hon'ble Judges in minority in the Constitution Bench Judgment is not possible here in the face of express language of Section 43 already considered above. Under Section 42 of the Punjab Act the sole repository of power was State Government, while under Section 43 of the APMC Act, this power vests with State Government as also Director and said powers of both viz. the Director and State Government well defined or circumscribed by the legislature.
39.In Chairman, Indore Vikas Pradhikaran .vrs. Pure Industrial Coke and Chemicals Ltd (supra), the Hon'ble Apex Court has again held that, when a delegate exercises powers conferred upon it by delegator, such act of delegate is deemed to be that of Principal.
::: Downloaded on - 09/06/2013 15:28:55 ::: 4240.In Scientific Adviser to the Minister of Defence .vrs. S. Daniel and others (supra), the question was of exercise of disciplinary powers and consideration there in paragraph no.12 shows that said power was never delegated by Scientific Advisor to Director.
The Hon'ble Apex Court noticed that theory of imputation to the principal, acts of delegates could have no application in such situation. The above mentioned judgment of Hon'ble Apex Court in the case of Roop Chand .vrs. State of Punjab and another(Supra), was therefore held to be not applicable. The further consideration in paragraph no.14 also shows that, delegation of powers does not imply parting with Authority. The delegating body retains powers to revoke the grant and also power to act concurrently, except to the extent it had already become bound by the acts of its delegate. In present situation, it is apparent that the powers under Section 44[1] of the APMC Act were already used & exhausted by respondent no.3 as delegate and hence, no concurrent actions or even withdrawal thereof was possible.
41.Judgment in case of Godavari S. Parulekar .vrs. State of Maharashtra (supra), particularly in paragraph no.5 again lays ::: Downloaded on - 09/06/2013 15:28:55 ::: 43 down the same law and holds that the State Government was not denuded of its power to act under Rule 30 of Defence of India Rules, 1962.
42.In Ishwar Singh .vrs. State of Rajasthan and others (supra), it has been held that to delegate to another is not to denude principal of his powers. Such principal retains power to act concurrently or power to revoke the grant, except in so far as it may already have become bound by an act of delegatee. In facts before it, the Hon'ble Apex Court found that the State Government had not delegated its revisional powers under Section 128 to Additional Registrar and two Authorities under Section 128 were not interchangeable.
43.In OCL India Ltd. .vrs.. State of Orissa and others (supra), in paragraph no.13, it has been held that the powers of Commissioner [the delegator] under Section 23[4] of Orissa Sales Tax Act, were exhausted by the Assistant Commissioner.
The Assistant Commissioner exercised powers delegated to him to revise the orders of Sales Tax Officer and hence Commissioner could not have exercised those powers again. In view of this ::: Downloaded on - 09/06/2013 15:28:55 ::: 44 consideration, I do not find it necessary to refer to the judgment in the case of Everest Apartments Cooperative Housing Society .vrs. State of Maharashtra (supra), which does not in any way advances the case of respondent no.6.
44.The scope of power under Section 44[1] of APMC Act does not remain very relevant in this background. In Agricultural Produce Market Committee ..vrs.. State of Maharashtra and others (supra), while considering the provisions of Sections 4 and 62 of the APMC Act, the Division Bench of this Court has concluded that the regulation of Agriculture Produce is a legislative function like declaration of market area. It has relied upon the judgment in case of Rameshchandra Kachardas Porwal and others .vrs. State of Maharashtra and others (supra), where declaration of market area is held to be legislative in character not requiring observance of rules of natural justice.
45. Union of India and another .vrs. Cynamide India Ltd. (supra) and State of U.P and others .vrs. Renusagar Power Co. and others (supra), are the judgments which deals with question of price fixation and state that it is also a legislative power. However, before me challenge is to order passed under Section 43 of the APMC Act which is held to be quasi judicial order by the Division Bench of this Court. There is no challenge to order passed under ::: Downloaded on - 09/06/2013 15:28:55 ::: 45 section 44[1] by respondent no.3 in the present matter. Whether situation underwent any change or impact thereof on proceedings before respondent 3 or significance of orders of this Court in Review MCA 1204/2008 on 14/10/2008 in amalgamation process are the factors not relevant to find out jurisdiction of respondent no. 2 here.
46.The 6 petitioners before this Court have demonstrated their interest in the regulation of marketing of agricultural produce and their "description" as such is not in dispute. Amalgamation to advance the aims & objects of APMC Act is definitely a factor in their favour. Said advantage, even if presumed to be in exercise of legislative power, can not be interfered in Revisional jurisdiction in the manner contrary to law. The competent authority like respondent no.3 had passed an order in their favour directing amalgamation of APMC Motala with APMC Malkapur, and that order was set aside by the Hon'ble Minister i.e. respondent no.2 on 07.05.2009. This was in the face of fact that challenge to exparte mandatory injunction [status quo ante], granted by the Hon'ble Minister was pending before this Court in Writ Petition No. 628/2009. The first 5 petitioners before this ::: Downloaded on - 09/06/2013 15:28:55 ::: 46 Court were attempting in W.P. 628/2009 to show that the respondent no.2 did not possess any jurisdiction to interfere in the matter in exercise of purported powers under Section 43 of the APMC Act. Nobody ever disputed justiciability of original order under Section 44(1), and in any case of the impugned revisional order. It therefore, cannot be said that petitioners lack locus to challenge the final order passed by the Hon'ble Minister on 07.05.2009. It is also not possible to accept that, they cannot be treated as persons aggrieved in the matter.
47.In Mehsana District Central Cooperative Bank Ltd .vrs. State of Gujarat and others (supra), in paragraph no.16, it has been held that if there is any allegation of violation of statutory rules, which has been brought to the notice of the concerned Authority and still that Authority does not perform its statutory duty, any aggrieved citizen can always bring it to the notice of the High Court. In Ghulam Qadir .vrs. Special Tribunal and others (supra), the Hon'ble Apex Court has stated that the existence of legal right in petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of High Court under Article 226. If a person approaching the Court can satisfy that ::: Downloaded on - 09/06/2013 15:28:55 ::: 47 the impugned action is likely to adversely affect his right, which is shown to be having source in some statutory provision, the petition filed by such person cannot be rejected on the ground of his not having locus standi. Petitioner nos. 1 and 2 are agriculturists; Petitioner no.3 is licensed trader within APMC Motala and he is Ex-Director of that APMC; Petitioner no.4 is Hamal duly licensed to operate in market yard of APMC;
Petitioner no.5 is Ex-Secretary of APMC Motala and Petitioner no.6 is an elected member of APMC Malkapur. For reasons recorded by respondent no.3, amalgamation of APMC Motala with APMC Malkapur was found necessary. The decision may be legislative, but still it was advantageous to the petitioners. The precarious financial condition of APMC Motala has already come on record. In this situation, un-authorised interference in the matter by respondent no.2 which prejudices a decision reached in the interest of all can definitely challenged by the petitioners.
48. Anand Sharadchandra Oka .vrs. University of Mumbai and others (supra), considers the demand for addition to voters list when the relevant statutory provisions required graduation from University of Mumbai, as qualification for getting enrolled in ::: Downloaded on - 09/06/2013 15:28:55 ::: 48 voters list. The petitioner was not such a graduate and it is important to note that there was no challenge to the constitutionality of those provision in the matter. The petitioner has been held to be not an aggrieved party in view of this provision of law. In Utkal University .vrs. Dr. Nrusingha Charan Sarangi and others (supra), the petitioner was found to lack locus standi as he was not possessing requisite qualification till the last date of submitting application and hence, there was no legal injury to him. In Dr. Satyanarayana Sinha .vrs. M/s. S. Lal & Co. (P) Ltd. (supra), the Hon'ble Apex Court held issue of locus arose before it and after noticing that petitioner was making grievance in relation to the grant of mining lease, alleging infringement of his right to its grant. After noticing that there was no such right in him, it was held that he had no locus standi and he could not be termed as a person aggrieved or affected. It was noticed by the Hon'ble Apex Court that grant of lease to appellant before it was assailed not on the ground of ex debito justitiae, but on the ground of direct infringement of his right by respondent no.1. Jasbhai Motibhai Desai .vrs. Roshan Kumar Haji Bashir and others (supra), is the similar judgment which considers locus of a rival cinema operator, who challenged ::: Downloaded on - 09/06/2013 15:28:55 ::: 49 grant of NOC for cinema theater to other person. It has been held that a rival in trade cannot be treated as an aggrieved person. All these rulings ,therefore, are clearly distinguishable and establish that present petitioners have necessary locus and are aggrieved because of unwarranted interference by respondent no.2 in the matter.
49. In Gurpal Singh .vrs. State of Punjab and others (supra), the Hon'ble Apex Court has considered when PIL should be entertained and how a Court should approach the PIL. There PIL was against direct appointment of appellant. Writ Petition was alleged to have been filed because of personal and political rivalry because appellant before the Hon'ble Apex Court and respondent no.4 were pitted against each other in several elections. Said PIL was filed 14 yeas after the appointment of appellant. Observations made by the Hon'ble Apex Court needs to be understood in the background of these facts. This ruling therefore, has no application in the present matter.
50.The consideration above clearly shows that no disputed question of facts are required to be looked into by this Court while deciding the controversy. The documents placed on record are not disputed by respondent nos. 1,2 and 3. Most of the documents considered are the orders of the Courts/ Authorities.
::: Downloaded on - 09/06/2013 15:28:56 ::: 50The arguments about source of document or then about defective affidavit in support of Writ Petition are therefore not relevant as the same have got no bearing on merits of the controversy. As adjudication in writ petition turns only on interpretation of law, no finding on alleged malafides either way, is relevant. It is therefore, not necessary to consider the cases cited by petitioners or respondent no.6 for that purpose.
51.As a result of above discussion, it follows that respondent no. 2 could not have exercised revisional or supervisory jurisdiction over the order under Section 44(1) of APMC Act passed by respondent 3- the District Deputy Registrar. Hence the order dated 07.05.2009 in Revision No. 5/2009 passed by respondent no.2 is hereby quashed and set aside. Writ Petition is accordingly allowed. However, in the circumstances of the case there shall be no order as to costs.
52.At this stage, learned counsel for respondent nos. 4 and 6, seeks stay of the present judgment for a period of two weeks. The request is being opposed by the learned counsel for petitioners.
However, in the interest of justice, effect and operation of the ::: Downloaded on - 09/06/2013 15:28:56 ::: 51 present judgment is stayed till 27th January, 2010. The stay shall cease to operate automatically thereafter.
JUDGE Rgd.
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