Bombay High Court
Vilas S/O Rangrao Mahalle vs The State Of Maharashtra on 9 April, 2013
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, P.B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 201 OF 2012
1. Vilas s/o Rangrao Mahalle,
aged - Major, occupation -
Cultivator & Chairman,
A.P.M.C., Amravati, resident
of Kathora, Tq. & District -
Amravati.
2. Dilip s/o Raghupathraoji
Deshmukh, aged - major,
occupation - Cultivator &
Vice Chairman, A.P.M.C.,
Amravati at and Post
Karajgaon, Tq. & District -
Amravati.
3. Haribhau s/o Yadavrao
Mohod, aged - Major,
occupation - Cultivator &
Member, A.P.M.C., Amravati
at and Post - Asra, Tq. -
Bhatkuli, District - Amravati.
4. Gopal s/o Babasaheb Rane,
aged - Major, occupation -
Cultivator & Member, A.P.M.C.
Amravati, r/o Deori, Tq. &
District - Amravati.
5. Anil s/o Sahebrao Pathre,
occupation - Cultivator &
Member, A.P.M.C. Amravati,
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r/o Anchalwadi, Tq. Bhatkuli,
District - Amravati.
6. Ashok s/o Sahebrao Ingole,
aged - Major, occupation -
Cultivator & Member, A.P.M.C.,
Amravati r/o Bhaji Bazar,
Near Dagadi Pool, Amravati,
Tq. & District - Amravati.
7. Dinesh s/o Narayanrao Watane,
aged - Major, occupation -
Trader & Member, A.P.M.C.,
Amravati, r/o Inside Ambagate,
Patwipura, Amravati, Tq. &
Dist. - Amravati.
8. Raghunath s/o Subhanrao Pawar,
aged - Major, occupation - Weigh
man & Member, A.P.M.C., Amravati
r/o Santoshinagar, Amravati,
Tq. & District - Amravati.
9. Deepak s/o Sheshrao Jumde,
aged - Major, occupation -
Cultivator & Member, A.P.M.C.,
Amravati, r/o Khartalegaon, Tq.
Bhatkuli, District - Amravati.
10. Smt. Nilima Shrikantrao Mahalle,
aged - Major, occupation -
Cultivator & Member, A.P.M.C.,
Amravati, r/o Navsari, Amravati,
Tq. & District - Amravati.
11. Sau. Kokilatai Ramdasrao Rahate,
aged - Major, occupation - Cultivator
& Member, A.P.M.C., Amravati r/o
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Saur, Tq. Bhatkuli, Dist. - Amravati.
12. Vinod s/o Kiksanrao Bhalerao,
aged - Major, occupation - Cultivator
& Member, A.P.M.C., Amravati, r/o
Kathora, Tq. & District - Amravati.
13. Anant Ramkrushna Deshmukh,
aged - Major, occupation - Cultivator
& Member, A.P.M.C., Amravati, r/o
Shirala, Tq. & Dist. - Amravati.
14. Balasaheb s/o Ramrao Ugale,
aged - Major, occupation - Cultivator
& Ex-officio Member, A.P.M.C.,
Amravati, r/o Waghuli, Taluka &
District - Amravati.
15. Shekhar s/o Tikappa Kale,
aged - Major, occupation - Cultivator
& Member, A.P.M.C., Amravati, r/o
India, Tq. & Dist. - Amravati. ... PETITIONERS
Versus
1. The State of Maharashtra
through its Secretary, Cooperation
& Marketing Department,
Mantralaya, Mumbai - 400 032.
2. The District Deputy Registrar,
Cooperative Societies, Amravati,
having office at Kanta Nagar,
Amravati, Tq. & District - Amravati.
3. D.M. Lonare, Assistant Registrar,
Co-operative Societies, Morshi,
Tq. - Morshi, District - Amravati
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(The Enquiry Officer).
4. Agricultural Produce Marketing
Committee, Amravati, through its
Secretary, having office at New
Cotton Market Compound, College
Road, Amravati, Tq. & Dist. Amravati.
5. Ganeshrao s/o Sakharam Kadu,
aged - Major, occupation - Member,
A.P.M.C., Amravati, r/o Naya Akola,
Tq. & District - Amravati.
6. Permanand s/o Ramaavtar Agrawal,
aged - Major, occupation - Trader &
Member, A.P.M.C., Amravati, r/o
Chaudhary Chowk, Near Old Cotton
Market, Amravati, Tq. & Dist. Amravati.
7. Raosaheb s/o Devidas Milke,
aged - Major, occupation - Cultivator
& Member, A.P.M.C., Amravati, r/o
Walgaon, Tq. & Dist. - Amravati.
8. Kishor K. Shelke,
aged - Major, occupation - Legal
Practitioner and Major, Municipal
Corporation, Amravati and Ex-officio
Member, A.P.M.C., Amravati,
Tq. & District - Amravati.
9. Kailash s/o Shankarrao Deshmukh,
aged - Major, Occupation - Cultivator
& Member, A.P.M.C., Amravati, r/o
Devra (Devri), Tq. & Dist. Amravati.
10. The Maharashtra State Agricultural
Marketing Board, Plot No. R-7,
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Market Yard, Gul - Tekdi,
Pune - 411 037. ... RESPONDENTS
Shri M.G. Bhangde, Senior Advocate with Shri V.V. Bhangde and
R.M. Bhangde, Advocate for the petitioners.
Mrs. B.H. Dangre, Additional GP for respondents No. 1 & 2.
Shri S.P. Dharmadhikari, Senior Advocate with Shri U.S. Dastane,
Advocate for respondents No. 5 & 7.
Shri K.V. Deshmukh, Advocate for respondent No. 4.
Shri A.S. Kilor, Advocate for respondent No. 6.
Shri G.R. Agrawal, Advocate for the Intervenors.
.....
CORAM : B.P. DHARMADHIKARI &
P.B. VARALE, JJ.
DATE OF RESERVE : FEBRUARY 28, 2013.
DATE OF PRONOUNCEMENT : APRIL 09, 2013.
JUDGMENT :(Per B.P. DHARMADHIKARI, J.) By this petition filed under Article 226 & 227 of the Constitution of India, 15 Directors of Agricultural Produce Market Committee, Amravati (Respondent No. 4) question the order dated 27.12.2011 passed by Respondent No. 2 - District Deputy Registrar, Co-operative Societies, superseding it under Section 45 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, (hereinafter referred ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 6 to as 1963 Act) & appointing an Administrator on it. The Maharashtra Agricultural Produce Marketing (Development and Regulation), Rules, 1967 framed under this Act are hereinafter referred to as 1967 Rules.
2. This Court has on 16.01.2012, restrained Administrator from taking charge of A.P.M.C. and thus elected body viz., petitioners still continue to function.
3. The Notice under Section 45 of 1963 Act for supersession is on various grounds which require scrutiny of material on record as the petitioners wish to contend that the Charges are not proved against them. But then during arguments, parties agreed to passing of an order on preliminary objections raised by the petitioners first and thereafter if necessary, to proceed with further hearing of the petition on merits of those charges ie alleged perversity. Accordingly, this judgment is being delivered only in the light of arguments advanced on the preliminary contentions about absence of ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 7 effective previous consultation with State Agricultural Marketing Board ie Respondent 10 & correctness of procedure followed by Respondent No. 10 - Board therefor and need of an order under Rule 117 (4) of 1967 Rules on enquiry report under S. 40 of 1963 Act.
4. The impugned order under Section 45 is dated 27.12.2012 and the petitioners have been elected on Board of Directors of Respondent No. 4 - A.P.M.C. for a period of five years in May 2008. Few of these Directors complained of some illegalities and irregularities on 18.01.2010 and Respondent No. 2 then appointed an Inquiry Officer to hold Inquiry into the same as per Section 40(b) of 1963 Act. The Inquiry Officer submitted his report on 15.06.2010 and according to the petitioners, District Deputy Registrar (D.D.R.) then ordered re-inquiry into three points. The very same Inquiry Officer submitted his report on those points on 08.03.2011. On 01.04.2011, copies of both reports were sent to the Agricultural Produce Marketing Committee (A.P.M.C.) and its explanation was called for.
::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 8A.P.M.C. submitted its explanation on 25.04.2011. The petitioners state that on 01.06.2011, A.P.M.C. also submitted an independent explanation on ongoing recruitment process and this explanation has no relevance with Inquiry Reports submitted by the Inquiry Officer but then Respondent No. 2 - D.D.R. has preferred to consider it as further explanation of A.P.M.C. in proceedings under Section 40. On 12.07.2011, a show cause notice under Section 45 of 1963 Act for supersession of elected body and for appointment of Administrator came to be issued.
On 09.08.2011, the petitioners submitted reply to it. Section 45 obliges Respondent No. 2 to previously consult Respondent No. 10 - Board and accordingly the D.D.R. forwarded the papers to Respondent No. 10 - Board. On 22.10.2011, Respondent No. 10
- Board passed a resolution evolving a procedure for its consideration and on 01.11.2011, the General Manager of Respondent No. 10 - Board sent a notice of hearing. On 05.11.2011, the petitioners were heard and thereafter General Manager on 19.12.2011 wrote to Respondent No. 2 - D.D.R. to proceed in the matter in accordance with law. The impugned ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 9 order dated 27.12.2011 has been passed thereafter.
5. Shri Bhangde, learned Senior Advocate, learned counsel for the petitioners, in this background, submits that the General Manager was authorized to hear the petitioners and he had to submit his report to the Vice Chairman, who as per Constitution of Board, is a State Minister. The State Minister was then to forward it to the Chairman of Board, who has to be a Cabinet Minister. He invites attention to report of the General Manager dated 08.11.2011 to submit that report does not show any application of mind and any finding or conclusion. He further submits that the General Manager did not submit his report to the Vice Chairman but placed it directly before the Chairman, which is contrary to Board resolution. As this procedure prescribed by Board has not been followed, hearing extended and procedure followed for consultation is invalid and hence the impugned order dated 27.12.2011 passed on its strength is liable to be set aside.
::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 106. In the alternative and without prejudice, he has submitted that the statute obliges Respondent No. 2 to consult State Agricultural Marketing Board i.e. entire Board. The said Board cannot, therefore, abdicate this function in favour of few members or to its General Manager or then to only authorities like Vice Chairman and the Chairman. The previous consultation has to be with all Board members who have to express themselves through a resolution one way or the other. The provisions of Section 2(ra) of 1963 Act which defines State Marketing Board, Section 39A which establishing said Board and Section 39B prescribing its Constitution are relied upon for said purpose. In the background of obligation cast by proviso to Section 45(1), Section 39K is also relied upon to show that to regulate its functions, Respondent No. 10 Board is authorized to frame regulations and those regulations cannot be on the subject of delegation of its functions by Board to either General Manager or to any other authority. As there is no scope for delegation and entire Board is required to be previously consulted, alleged opinion expressed by the General Manager of Respondent No. 10 ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 11 on 08.11.2011 and its forwarding on 19.12.2011 by Board to D.D.R. is unsustainable and its consideration by Respondent No. 2 - D.D.R. is illegal. He, therefore, prays for quashing and setting aside of the order appointing Administrator even on this ground. He has drawn support from the judgments in the case of Appasaheb Sheshrao Chavan & Ors. vs. State of Maharashtra & Ors., reported at 2000 (1) Bom. C.R. 657, particularly para 25 and in Ravindra V. Gaikwad & Ors. vs. State of Maharashtra & Ors. reported at (2002) 5 Mh. L.J. 464, particularly para 13 for said purpose.
7. As the matter was never placed before the Vice Chairman as per procedure devised, he relies upon the judgment in the case of Babu Verghese vs. Bar Council of Kerala, reported at ( 1999)3 SCC 422 to urge that an exercise like this can be accepted as valid only when it is performed in the mode and manner as devised in advance thereof.
8. He invites attention to the provisions of Rule 117 of ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 12 1967 Rules to demonstrate how the report prepared under Section 40 by Inquiry Officer needs to be processed. He placed strong reliance upon sub-rule (4) with contention that such report is required to be accepted by the Director and for that, an order is required to be passed by him after giving a reasonable opportunity of being heard. If the report is to be used against members of A.P.M.C., Members of A.P.M.C. also need to be heard.
He points out that after receipt of report, opportunity has been extended only to A.P.M.C. and not to the petitioners. He further states that an order accepting report is appealable under Section 52B of 1963 Act. As, such order is not passed by Respondent No. 2 on either of the reports, the petitioners have been denied this right of filing appeal also. He submits that reports cannot be legally used as a "cause" against anybody until and unless the order as envisaged under Rule 117(4) is first passed. Here, merely because of these reports, the impugned action under Section 45(1) has been taken. He points out that in the process, an explanation submitted by A.P.M.C. on 01.06.2011 which has got nothing to do with Inquiry Reports under Section 40 has also ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 13 been looked into and thus an irrelevant material has entered the consideration. Therefore, satisfaction under Section 45(1) is not legal and valid.
9. He has invited attention to rejoinder filed by the petitioners in an attempt to demonstrate that a note sheet dated 03.06.2011 filed on record by Respondent No. 2 is nothing but a fabricated document which attempts to fill in the material lacuna to avoid the action under Section 45(1) of 1963 Act, from being vitiated. The learned counsel submits that when this document is looked into in the background of earlier order sheets, fact that no notice thereof was served upon A.P.M.C. or the petitioners is apparent & the consideration of irrelevant reply dated 01.06.2011 became essential to fill in it & to complete the fabrication.
10. In the alternative and without prejudice, he submits that the order passed under Rule 117(4) accepting the report, needed to be served upon the petitioners and its non service is ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 14 fatal. He is seeking support from the judgment in the case of Bipromasz Bipron Trading SA vs. Bharat Electronics Ltd. (BEL), reported at 2012 (5) Scale 545 and judgment of the Hon'ble Apex Court in the case of Babu Varghese & Ors. vs. Bar Council of Kerala & Ors., reported at (1999) 3 SCC 422. The judgment in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors., reported at 2012 (3) Scale 303 is relied upon to argue that process of removal of elected representatives has to be always stringent and must be construed accordingly. The judgment in the case of Dayaram vs. Sudhir Batham, reported at (2012) 1 SCC 333, is pressed into service to point out sanctity of right of appeal. The order dated 27.12.2011 impugned before us is argued to be a consequential order and to illustrate principle of consequential order, the judgment in the case of Seeman vs. State, reported at (2005) 11 SCC 142, is relied upon.
11. Mrs. Dangre, learned Additional Government Pleader, has relied upon the provisions of Chapter VIII of 1963 Act to urge how the provisions of Section 45 & exercise of power ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 15 therein need to be viewed and construed independent of other provisions therein. Section 40 is the power of Inspection, Inquiry and calling for statements etc. Power thereunder can be exercised by the Directior himself or by the officer authorized by him and as per Rule 117. The said power is conferred upon & exercisable by the authority subordinate to State Government.
Section 41 is a consequential power and obligation upon A.P.M.C. or its members. Section 41A is a preventive measure and Section 42 and 43 are remedial in nature. Section 45 contemplates supersession of Market Committee on account of lapses noticed, depending upon seriousness thereof. This power is with higher authority and depends upon the opinion to be formed by the State Government. In this background, the learned Additional G.P. submits that use of material available to the authorities for reaching that opinion or satisfaction is not dependent upon any order. The report under Section 40 may be required to be looked into by the Director, who may pass order under Rule 117(4) of 1967 Rules. But such scrutiny is not essential when material gathered during such inquiry is used for ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 16 the purposes of Section 45. According to her, source of material is not relevant under Section 45 of 1963 Act.
12. It is pointed out that the petitioners were given necessary opportunity and on 28.02.2010, the petitioners submitted their explanation. On 28.04.2010, the A.P.M.C. also submitted its explanation. The Inquiry Officer submitted his report thereafter i.e. on 15.06.2010. Respondent No. 2 authority then asked the Inquiry Officer to collect more details on point Nos. 1, 3 & 5 in notice of inquiry and additional report only on these points came to be submitted on 08.03.2011. It is not a new inquiry and it was not necessary to call for fresh explanation. It was also not a review. Even thereafter on 01.04.2011, the copies of original report and additional report were served on A.P.M.C. and on 25.04.2011, the Chairman and Secretary of A.P.M.C. submitted their reply. The explanation dated 01.06.2011 has not been treated as part of Section 40 inquiry proceedings. Rule 117(4) read with Section 40 does not envisage any order and mere acceptance of that report by ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 17 Respondent No. 2 is sufficient. This administrative exercise is completed on 03.06.2011. Attention is invited to note sheet dated 03.06.2011 to show that it is after due opportunity to A.P.M.C. Section 40(e) contains power to issue directions and action on report in Section 40 comes to an end after such directions are issued. Rule 117(4) is, therefore, independent of Section 40. Section 52B contemplates appeal against an order under Act and not an appeal against an order passed under Rules. Noting or note sheet dated 03.06.2011 is only an administrative exercise. Our attention is also drawn to show cause notice under Section 45, issued on 12.07.2011 to show that its copies are sent to everybody including Respondent No.
10. It is submitted that satisfaction reached therein is not only on account of facts found in reports under Section 40, but reply and additional reply submitted by them has been looked into. As such, the contention of the petitioners that in absence of order under Rule 117(4) of 1967 Rules, show cause notice under Section 45 gets vitiated is urged to be unsustainable.
::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 1813. On consultation, the learned Additional Government Pleader submits that on 01.11.2011, Respondent No. 10 - Board forwarded a notice to A.P.M.C. for hearing. Petitioners No. 1, 2 and the Secretary of A.P.M.C. attended hearing on 05.11.2011.
14. The support is taken from communication dated 07.04.2012 sent by the Manager and Information Officer of Respondent No. 10 to the petitioners to urge that hearing was properly conducted and Board has recorded its opinion thereafter. Shri Bhangde, learned Senior Advocate, immediately submitted that there is no defence of any opinion expressed by Respondent No. 10 - Board. Mrs. Dangre, learned Additional GP submits that on 19.12.2011, the said opinion of Board was communicated to Respondent No. 2. According to her, thus course stated in resolution of Board dated 22.10.2011 has been properly followed. She further submits that Respondent No. 10 has accordingly filed reply affidavit before this Court and there is no rejoinder to it. The provisions of Section 45 do not prescribe manner of consultation and hence procedure devised by Board is ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 19 neither faulty nor erroneous.
15. The provisions of Section 39B and 39C of 1963 Act are relied upon to show the constitution of Respondent No. 10 -
Board and the position of its Chief Executive Officer. As no regulations are framed by Board, the Board devised procedure to govern consultation-matters through resolution and though not necessary, extended an opportunity of hearing to the petitioners on 05.11.2011. She submits that thus Respondent No. 10 -
Board has applied its mind duly and requirement of previous consultation is fully satisfied.
16. Support is being taken from the judgment in the case of Tukaram Narayanrao Khandebharad & Anr. vs. State of Maharashtra & Ors., reported at 1998 (1) Mh. L.J. 679, to show how the communication by Board to Respondent No. 2 needs to be appreciated. The judgment in the case of Pandurang Eknath Khose & Ors. vs. State of Maharashtra & Ors., reported at 1998 (2) Mh. L.J. 873, is also pressed into service to submit that when ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 20 Board permits Respondent No. 2 to proceed further in accordance with law, it is sufficient compliance. The office of District Deputy Registrar then on 20.12.2011 forwarded said report on consultation to A.P.M.C. and called for its say in the matter. The A.P.M.C. submitted the same on 22.12.2011 and after receipt thereof the impugned order came to be passed on 27.12.2011. She, therefore, concludes by submitting that there is no substance in the petition as filed and the petition should be dismissed.
17. Shri Dharmadhikari, learned Senior Advocate with Shri Dastane, learned counsel for respondents No. 5 & 7, invites attention to the fact that right of appeal under Section 52B is to be exercised within 30 days and no appeal is provided against Inquiry Report. Actions under sub-section (a) to (d) are not appealable as Section 52B contemplates an appeal by a person aggrieved. Only prejudicial action can be taken under sub-
section (e) which contemplates interim directions and that direction S.40(e) is by one authority to another authority.
::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 21Therefore, such direction is again not appealable. Section 40 to 41A are part of one chain and hence grievance about non compliance with Rule 117(4) being made is misconceived. The reports or order under Rule 117(4) are totally irrelevant under Section 45(1) of the 1963 Act.
18. On the point of consultation, he submits that consultee need not hear A.P.M.C. and, therefore, opportunity of hearing extended on 05.11.2011 is not determinative. In present matter, there is no complaint that entire material available with District Deputy Registrar was not supplied to Respondent No. 10
- Board and hence, there is no technical lacunae in the process of hearing. Respondent No. 10 - Board, as per provisions of Section 39B, consists of 15 members and it has got varied functions/powers under Section 39J. The duty of giving opinion is on account of its functions under Section 39J. Respondent No. 10 - Board has still not framed Regulations under Section 39K and hence it devised a procedure to discharge the obligation of opining under S.45 & to conduct a hearing. There are large ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 22 number of such proposals against A.P.M.Cs. where Board is being consulted and majority of the members of the Board are ex-
officio members. Those members, therefore, have got several functions to attend & no time to go into minute details. Hence, by resolution, business has been allocated and there is no delegation of power. Resolution envisages opportunity of hearing before the General Manager where niceties can be considered and then, an expression of opinion by its Chairman.
This exercise, therefore, needs to be viewed as opinion of the Board, the Board being a body corporate. Section 58 contemplates delegation of powers of State or of Director. Thus, there is no statutory provision permitting delegation of powers by Board to anybody else. Section 60 which contains a rule making power also does not contain any clause which will enable Respondent No. 10 - Board to delegate its power. He emphasizes that resolution evolving the consultation procedure is not delegation but an act of allocation of business.
19. To point out difference between concept of ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 23 delegation and allocation, he seeks to rely upon the judgment in the case of Narayandas Indurkhya vs. State of Madhya Pradesh & Ors., reported at (1974) 4 SCC 788 and in State of Uttar Pradesh vs. Batuk Deo Pati Tripathi & Anr., reported at (1978) 2 SCC 102.
He also points out the judgment in the case of M. Chandru vs. Member-Secretary, Chennai Metropolitan Development Authority & Anr., reported at (2009) 4 SCC 72, to urge that power to delegate must be conferred specifically by the statute. He, therefore, supports arguments of the learned Additional Government Pleader.
20. In reply arguments, Shri Bhangde, learned Senior Advocate, submits that judgment in the case of Tukaram Narayanrao Khandebharad & Anr. vs. State of Maharashtra & Ors., (supra), does not consider the judgment of the Hon'ble Apex Court in the case of Kewal Ram vs. Maharashtra State Cooperative Societies & Ors., reported at 1986 (2) Scale 89. He, therefore, states that view taken by the learned Single Judge in the case of Ravindra vs. State of Maharashtra, reported at 2002 ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 24 (5) Mh. L.J. 464, must be accepted and applied. According to him, in the case of Pandurang Eknath Khose & Ors. vs. State of Maharashtra & Ors . , (supra), judgment in Kewalram vs. Maharashtra State Co-operative Societies & Ors.
, reported at 1986 (2) SCALE 398 has not been rightly applied. Thus, consultation in present matter is not effective.
21. To point out that there is no difference between an order passed by authority under "an Act" and under "Rules", he relies upon the judgment in the case of State of U.P. vs. Babu Ram, reported at AIR 1961 SC 751, particularly para 23. The case of Pepsu Road Transport Corporation, Patiala vs. Mangal Singh & Ors., reported at (2011) 11 SCC 702, is also relied upon.
He submits that as non communication of alleged order under Rule 117(4) of 1967 Rules is admitted, show cause notice issued under Section 45(1) is unsustainable.
22. To point out prejudice caused by non communication, he again invites attention to statutory scheme. The judgment in ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 25 the case of State of Uttar Pradesh vs. Batuk Deo Pati Tripathi & Anr., (supra), is sought to be distinguished by pointing out that it construes word "control" under Article 235 of the Constitution of India. He further submits that its ratio or a general provision is not attracted when there is a provision to the contrary in A.P.M.C. Act. Section 39K (1) itself permits Board to have regulations for administration of its affairs and hence Board has to frame regulations for its functioning & even in the matter of consultation. In absence of such regulation, Board has to function as a whole. He points out that regulations, if framed, will have uniform application while resolutions would operate on ad hoc basis. Section 39K (2) (e) of 1963 Act, is residuary clause which again permits Board to frame such regulations. He draws support from the judgment in the case of U.P. State Electricity Board vs. Abdul Sakoor Hashmi & Ors., reported at (1980) 3 SCC 278, for this purpose. With leave of the Court, he sites few more judgments to point out how process of consultation or its effectiveness has been judicially perceived. Those judgments are in the case of Union of India vs. Sankalchand Himatlal Sheth & ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 26 Anr., reported at (1977) 4 SCC 193, State of Jammu & Kashmir vs. A.R. Zakki & Ors., reported at 1992 Supp. (1) SCC 548, Madan Mohan Choudhary vs. State of Bihar & Ors., reported at (1999) 3 SCC 396, N. Kannadasan vs. Ajoy Khose, reported at (2009) 7 SCC 1 and State of Gujarat vs. Gujarat Revenue Tribunal Bar Association , reported at (2012) 10 SCC 353. The judgment in the case of Tukaram Narayanrao Khandebharad & Anr. vs. State of Maharashtra & Ors . , (supra), particularly para 9 is relied upon to show how reliance upon it by Respondents No. 5 & 7 is misconceived.
23. In view of this reply, Shri Dharmadhikari, learned Senior Advocate, has also addressed Court with the consent of the petitioners. He draws support from the judgment in the case of U.P. State Electricity Board vs. Abdul Sakoor Hashmi & Ors., (supra), particularly paras 2 & 4 and in Kamleshkumar Ishwardas Patel vs. Union of India, reported at 1994 Mh.L.J. 1669, particularly paras 14 & 15. He submits that power to delegate cannot be inferred because of provisions of Regulations which ::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 27 can be framed under Section 39K of 1963 Act, and draws support from the judgment in the case of M. Chandru vs. Member-Secretary, Chennai Metropolitan Development Authority & Anr . , (supra), particularly para 9. The judgment in the case of Appasaheb Sheshrao Chavan & Ors. vs. State of Maharashtra & Ors., reported at 2000 (1) Bom. C.R. 657, para 25, is relied upon by him to show that it does not look into two earlier Division Bench judgments. To point out effect of such omission, he takes support from the judgment of the Hon'ble Apex Court in the case of Government of West Bengal vs. Tarun K. Roy, reported at (2004) 1 SCC 347.
24. Thus, this Court has to consider dispute about need of passing of an order under Rule 117(4) of 1967 Rules on two Inquiry Reports under Section 40 of 1963 Act so as to make it cognizable under Section 45 for the purpose of issuance of show cause notice and then, whether there has been effective consultation with Respondent No. 10 - Board in the matter.
Entire controversy revolves round answers to these basic issues.
::: Downloaded on - 09/06/2013 19:49:30 ::: wp201.12 2825. The question whether the Director has to pass an order under Rule 117(4) of 1967 Rules, needs to be looked into first. The heading of Chapter VIII of 1963 Act reveals that said Chapter deals with "Control". Section 40 is on the subject of Inspection, inquiry, submission of statements, etc. This Chapter has Section 45 dealing with Supersession of Market Committee as its last section.
26. Section 40 permits the Director or any officer authorized by the Director to inspect the accounts and offices of a Market Committee, to hold inquiry into the affairs of a Market Committee and to call for any return, statement, accounts or report. Clause (d) empowers the Director or officer authorized by him to require a Market Committee to take into consideration any objection which appears to him to exist to the doing of anything which is being done by such Committee. Clause (ii) of this section 40(d) enables him to direct a Market Committee to consider doing of a certain thing on the basis of any information which he is able to furnish and which appears to him to ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 29 necessitate doing of a particular thing. Last clause (e) is a interim measure which enables him to direct A.P.M.C. not to do a particular act pending, pending consideration of reply. It is not in dispute before this Court that the inquiry into the affairs of Market Committee has been conducted in exercise of these powers and accordingly the reports came to be submitted by Inquiry Officer to the Director.
27. Section 41 prescribes that when affairs of a Market Committee are investigated under Section 40 or its proceedings are examined under Section 43, its officers, servants or members are duty bound to furnish information in their possession to the Director or authorized officer or State Government. Sub-section (2) of Section 41 gives such Officer investigating into the affairs or examining the proceedings of Committee, power to summon and enforce the attendance of officers of the Market Committee and to compel them to give evidence and to produce documents in the manner as provided in the Code of Civil Procedure, 1908.
::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 3028. Section 41A enables the Director either on his own motion or on report or complaint received by him to prohibit the execution of a resolution or order, if he is of the opinion that such a resolution or order is prejudicial to the public interest or is likely to hinder efficient running of the business or is against the provisions of 1963 Act or 1967 Rules or Bye-laws made thereunder. Sub-section (2) of Section 41A imposes consequential obligation upon the Market Committee. Section 42 deals with power to seize books and other documents of a Market Committee with the Director. In certain contingencies, Section 43 is power with the State Government to call for and examine the proceedings of Market Committee or of the Director for the purposes of satisfying itself as to the legality or propriety of any decision or order. It also enables the State Government or the Director, as the case may be to modify, annul or reverse the decision or order or proceeding of A.P.M.C. Section 44 is on Amalgamation or Division of Market Committees. This perusal, therefore, shows that Section 41A, 42, 43 are all distinct and independent powers which do not depend on Section 40.
::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 31Section 41 imposes only a duty upon the officers and members of Market Committee. Thus inquiry report under Section 40 is not decisive and a precondition, if the Director or State wish to exercise powers under Section 41A, 42 or 43 of 1963 Act.
Section 40 in its subsections (a), (b) & (c) only list the powers with the Director or Officer authorized by him. What steps such Director or officer can take is prescribed in clause (d). Clause
(e) is an interim power to be used for the purposes of Section 40.
The said power can also be used while exercising powers under Section 41A, 42 or 43.
29. The provisions of Rule 117 of 1967 Rules appear again in Chapter VIII which deals with "Control". Rule 117 prescribes manner of inquiry and inspection. This inspection is contemplated under Section 40 only. Sub-rule (3) contemplates an inquiry by a Director or authorized person. Sub-rule (4) requires the person authorized to conduct the inquiry or inspection and to submit the report to the Director, on all points mentioned in the order passed under sub-rule (1) while ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 32 appointing him. The report has to contain his findings and reasons therefor. The report is also to be supported by such documents or evidence as recorded by him during the course of his inquiry or inspection. The Director has to pass such order thereon as may be considered just by him after giving a reasonable opportunity of being heard to the concerned persons including the members of the Market Committee.
30. Therefore, after the report is received by the Director, the Director depending upon the error or lacunae pointed out, may take appropriate decision and may issue a direction falling under Section 40(d)(i) or (ii) and also under clause (e) as an interim measure. He may also take recourse to powers under Section 41A. These sections do not contemplate any opportunity of hearing after such positive direction or restraining order by the Director. Rule 117(4) will not apply when Director himself conducts the inquiry under S.40. It is in this background that the Director has been obliged to pass order after receipt of the report. The report is prepared by the Inquiry Officer while ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 33 decision upon it or action upon it is being taken by the Director who is not party to inquiry. Hence, the Rule making body has found it appropriate that such non-party Director extends an opportunity of hearing to the person reported to be involved in any wrong doing including the member of the Market Committee before further course of action is decided by him in pursuance of such report. Similar law & view is accepted in the light of provisions of Section 311 of the Constitution of India in the case of Union of India & Ors. vs. Mohd. Ramzan Khan, reported at AIR 1991 SC 471. Thus, when an authority or person not party to an inquiry is acting upon report or material appreciated by some third person(inquiry officer) and person against whom the material is to be used may or may not be aware of such material or report, the principles of natural justice necessitate that person sought to be proceeded against must be served with that inquiry report and the authority taking decision must give a reasonable opportunity to him. It is this principle which has been incorporated in the shape of Rule 117(4) by providing a hearing.
However, for the purposes of Section 45, the provisions of ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 34 Section 40 are not relevant at all. Section 45(1) springs into operation upon the opinion/satisfaction of the State Government. This opinion of State Government may be founded on the proceedings of Market Committee called for by it under Section 43 or then on account of any information or complaint directly received by it or even on account of any inquiry including inquiry under Section 40. State Government does not & can not use that material to the prejudice of noticee member or A.P.M.C. under Section 45 without affording him/it an opportunity to show cause & of hearing. Passing of order by the Director upon such inquiry under Section 40 is, therefore, not prerequisite & decisive. It is the opinion of State Government which is relevant and any order passed by the Director, therefore, cannot eclipse it. The State Government is superior authority and has been placed above the Director in the scheme of 1963 Act.
31. Against the opinion of the State Government or the material being used by it, the person proceeded against i.e. ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 35 members of Market Committee get an opportunity to show cause. Thus, even if report under Section 40 is held sufficient by State Government to reach an opinion envisaged under Section 45(1), State Government is not empowered to use that report without extending an opportunity to such a person. Hence, the measures provided for in Rule 117(4) of 1967 Rules, to safeguard the members against adverse use of such report & adverse action are inbuilt in Section 45(1) 1963 Act. In a given case, it may happen that a Director in exercise of powers under Rule 117(4) may not take any action and find no substance in inquiry report. That may not prohibit State Government in reaching a contrary opinion on the basis of the very same material for the purposes of S. 45 of 1063 Act.
32. Section 52B of 1963 Act is a remedy of appeal available to any person aggrieved by the decision taken or order passed under any of the provisions of this Act. The acceptance of report by the Director under Rule 117(4) by itself does not result in any adverse action and a person cannot be said to be ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 36 aggrieved by acceptance of report. However, when the Director uses that report and issues directions as envisaged in Section 40(d) or (e) or then Section 41A, the said directions or orders can be questioned in Section 52B as then a member or person can be said to be aggrieved because of those directions. If the report is not acted upon or not used, no prejudice can be suffered by any member and hence his appeal under Section 52B will not be maintainable.
33. Action of supersession of Market Committee under Section 45(1) emanates from & initiated because of opinion of State Government. The said power of State Government is delegated to Respondent 2 - District Deputy Registrars. Thus, when on the basis of such Section 40 inquiry report, action under Section 45 of supersession of Market Committee is taken, it is clear that an appeal under Section 52B can not be filed. All objections which members of Market Committee may have to the Inquiry report or to the inquiry itself, can be pressed into service by them in reply to notice to show cause or in proceeding under ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 37 S.45. There cannot be two forums for raising such objections in the matter, one before the State Government, that too first in point of time & later on, before the delegate of State like Respondent 2. Under Rule 117(4), against the order passed by the Director on the very same inquiry report, appeal u/S.52B (as claimed by the petitioners) will lie to State Government.
Thereafter, again, against a consequential proposed action of supersession, objections can be raised before Respondent 2 as per procedure under Section 45. It will lead to absurdity. We have already held that no such appeal under S. 52B is contemplated in the scheme of 1963 Act or 1967 Rules. This is one more ground to sustain it. If petitioners were to be correct in their submission, then said report under S.40 can not be used till adjudication of appeal under S.52B by the State Government.
Hence, it will follow that necessary opinion to initiate action under S. 45 of 1963 Act can be reached only thereafter. Thus, an inconsistent position emerges. Hence, argument that the petitioners have lost remedy of appeal is, therefore, misconceived.
::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 3834. It needs to be noted that as order under Rule 117(4) on inquiry report under S.40 is itself not valid in present facts, the argument of loss of opportunity to file an appeal under S. 52B is misconceived. Action of using such an inquiry report directly for the purposes of invoking Section 45 of 1963 Act is within four corners of law. In view of this finding, it is not necessary for this Court to consider at length the various cases cited by the learned Senior Advocate for the petitioners. In the judgment in the case of Dayaram vs. Sudhir Batham, (supra), the Hon'ble Apex Court has considered the effect of its judgment in the case of Madhuri Patil vs. Sate of Maharashtra, reported at AIR 1995 SC 94 on provisions of M.P. Act which permitted appeal before a Division Bench of High Court of Madhya Pradesh against adjudication by learned Single Judge. The said precedent is, therefore, not relevant in this background.
35. In view of our nagative finding on necessity of order under Rule 117(4) of the 1967 Rules, it is not necessary for us to consider the arguments advanced to demonstrate breach or ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 39 adherence to procedure required to be followed therefor.
Fabrication of note dated 03.06.2011 as alleged is also, therefore, not relevant. The judgment of the Hon'ble Apex Court in the case of Bipromasz Bipron Trading SA vs. Bharat Electronics Limited (BEL), (supra) dealing with necessity of communication of order and the judgment in the case of Seeman vs. State, (supra) considering principle of consequential order, are, therefore, not required to be looked into. For same reasons, the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh & Ors. vs. Babu Ram Upadhya, (supra) relied upon to submit that action taken under Rules or orders passed under Rules must be treated as under Principal Act & judgment in the case of Pepsu Road Transport Corporation, Patiala vs. Mangal Singh & Ors . , (supra) to show that action contrary to Regulation is unsustainable, also need not be looked into in present matter.
36. This brings us to the main aspect i.e. consultation with Respondent No. 10 - Board by Respondent No. 2 in terms of Section 45 of 1963 Act. First it will be appropriate to deal with ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 40 the procedure followed by Respondent No. 10 - Board in the matter. The resolution of Respondent No. 10 - Board dated 22.10.2011 shows that it is on the subject of giving opinion on show cause notice under Section 45(1) and with this main subject, sub-subject No. 2 is about A.P.M.C., Amravati. The resolution is general & it stipulates that the General Manager of Respondent No. 10 - Board should conduct a joint hearing on such show cause notices in which Secretary of concerned A.P.M.C., its Chairman, Members and Board of Directors as also District Deputy Registrar should be heard. The report of General Manager, after such hearing should be forwarded to the Vice Chairman of Board i.e. State Minister and then to Chairman of Board, who is a Cabinet Minister. As per that report, the Chairman has to & should take necessary decision for Board.
The perusal of report of the General Manager in present matter shows that it only notices the points raised in show cause notice and explanation thereto offered by the advocate of Market Committee. Said report does not appear to have been prepared after due evaluation of submissions of A.P.M.C. The hearing was ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 41 attended by one Ashok Ingole, Senior Clerk with Respondent No. 2 - District Deputy Registrar, as also Chairman of A.P.M.C., its Vice Chairman and its Secretary. What was pointed out by Shri Ingole during said hearing is nowhere recorded. At the end of report, conclusion has been shown to be recorded. Heading at the end of this report is Opinion of office of the Market Board.
The said opinion reads : "Considering the written explanations submitted by the Chairman and other Directors of A.P.M.C., Amravati, in response to show cause notice served upon the Board of Directors of Amravati, A.P.M.C. by District Deputy Registrar, Cooperative Societies, Amravati, an opinion that if the Board of Directors have violated provisions of 1963 Act, 1967 Rules or then Bye-laws, District Deputy Registrar, Cooperative Societies is permitted to take appropriate decision about the same should be approved." (Emphasis added). Thus, this report does not record a finding of fact anywhere that petitioners or members of Board of Directors have transgressed any of the legal provisions and General Manager had never sought approval to any definite proposal to be communicated to Respondent No. 2 as opinion of ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 42 Respondent No. 10. It is not in dispute that this document was then placed before the Managing Director, who simply has countersigned it below the signature of General Manager and lastly it was placed before the Chairman who has also countersigned it. Thus, neither the Managing Director nor the Chairman has recorded a specific finding on questioned breaches . The opinion of Board as part of consultation process was/is to be formed & expressed by the Chairman of Board. For that the document reproducing the minutes of hearing prepared by the General Manager should have been first commented by the Vice-
Chairman. The note was never placed before the Vice President or Vice Chairman of Respondent No. 10 - Board. Assisted by such comment of Vice-Chairman, the Chairman then has to apply mind & form an opinion on behalf of Board. This course of action is chalked out by the Board itself for uniform application & to avoid adhocism.
37. On 19.12.2011, General Manager, on behalf of Board, wrote to Respondent No. 2 - District Deputy Registrar stating ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 43 that he should take action in accordance with the provisions of law. The stipulation in report that if the provisions of Act, Rules or Bye-laws are violated, the District Deputy Registrar should take appropriate decision on it, does not appear to have been brought to his notice. In the impugned order, the District Deputy Registrar has appreciated this communication and observed that Respondent No. 10 - Board has given its consent to action as proposed vide the show cause notice.
38. The perusal of judgment of the Hon'ble Apex Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors ., (supra) reveals a finding of the Hon'ble Apex Court in para 24 that any elected official in local self government has to be put on a higher pedestal as against Government servant. The Hon'ble Apex Court has observed that if a temporary government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office bearer can be removed. For removal of elected officials, more stringent procedure and standard of proof ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 44 is required. In para 27, the Hon'ble Apex Court has pointed out that such elected official is accountable to electorate and his removal also takes away the right of people of the constituency represented by him, hence he cannot be removed without strictly adhering to the provisions made in that respect by the Legislature.
39. In the case of Babu Verghese vs. Bar Council of Kerala, (supra), the Hon'ble Apex Court has observed in para 31 that if manner of doing a particular act is prescribed under any statute, said act must be done in that manner or not at all. In para 32, the Hon'ble Apex Court states that said Rule has been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutary principle of Administrative Law. At this juncture, we are not dealing with the question of validity of Resolution dated 22.10.2011 but then it is apparent that even if resolution and arrangement evolved thereby is presumed to be correct, still the report submitted by the General Manager ought to have been placed before the Vice Chairman of Respondent No. ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 45 10 - Board. Admittedly, that has not been done. The said direction cannot be viewed as an empty formality. The Vice Chairman of Board is a State Minister in Cabinet of State of Maharashtra and hence his remark on said report would definitely have an important bearing on the issue for the petitioners. It would have also weighed with the Chairman, a Cabinet Minister authorised to form the opinion. The said report was directly placed before the Managing Director and thereafter before the Chairman. Neither the Managing Director nor the Chairman have expressed any opinion. We find that the General Manager did not specifically record any finding on breach or violation as alleged in show cause notice because his report was to be looked into by the Vice Chairman and the Chairman. He was authorized only to hear & report. He has only done that job & his report never goes to the Vice Chairman. Moreover, the Chairman has not recorded any specific finding on alleged violation either in favour of action proposed or against it. He has overlooked the word "if" employed by the General Manager. In this situation, the scheme evolved through resolution mentioned ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 46 supra by Board in its meeting dated 22.10.2011 has not been followed. The perusal of said resolution shows that it is a general arrangement evolved by Respondent No. 10 - Board and it is obvious that it wanted its role in consultation process to be judged by applying predecided norms on uniform basis. If arrangement evolved is statutorily sustainable, importance of role assigned to high ranking representatives of people by Board in it can not be allowed to be ignored. The said role is soul of said arrangement. Here that soul has been breached & defeated.
40. Shri Dharmadhikari, learned Senior Advocate has urged that consultee need not hear and hence hearing conducted by the General Manager of Respondent No. 10 on 05.11.2011 is irrelevant. If the resolution of Board dated 22.10.2011 is to accepted, it needs to be adhered to in full & not in part. When it makes a provision for hearing, such argument is not open. He has also pointed out that there is no grievance about non supply of entire material by Respondent No. 2 to Respondent No. 10 -
Board for the purposes of consultation. Though correct, we find ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 47 this submission hardly relevant in the background of finding recorded above. As the Board has not adhered to its own resolution, we are not in a position to hold that Board has communicated what it felt as Board to Respondent No. 2 in terms of law. The impugned process of consultation under Section 45 as followed is, therefore, faulty and unsustainable.
41. This brings us to another challenge. Before proceeding to deal with said challenge, we need to point out petitioners' contention that power to express itself in the process of consultation is an obligation cast upon Respondent No. 10 -
Board and in absence of any statutory provision, it cannot delegate it to a smaller body or then to its General Manager, the Vice Chancellor and the Chairman together. Shri Dharmadhikari, learned Senior Advocate on behalf of the respondents and even Additional Government Pleader have not disputed this proposition. Shri Dharmadhikari, has pointed out a judgment in the case of M. Chandru vs. Member-Secretary, Chennai Metropolitan Development Authority & Anr. (supra) to submit that ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 48 power to delegate must be specifically conferred by the statute.
A perusal of this judgment in paras 17 & 18 supports his contention. The Hon'ble Apex Court has in para 18 observed that Sewerage Board, State within the meaning of Article 12 of the Constitution of India, can delegate its power provided there exists a provision in the Act creating it. Power to delegate being statutory requirement, must find place in Principal Act and not in the Regulations.
42. While explaining the provisions of Chapter VIIA dealing with Establishment - powers, duties etc. of State Agricultural Marketing Board, Shri Dharmadhikari has also pointed out that said Chapter does not enable Respondent No. 10 - Board to delegate its powers and functions. In the process, he did invite attention to Section 58 of 1963 Act to show that said section expressly authorizes State Government to delegate all or any of powers conferred upon it to the Director or any other officer or person. It also authorizes State Government to delegate any of the powers of Director to any other Officer or ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 49 person specified in the notification. He has thus stated that there is very limited power to delegate in 1963 Act. We have therefore no hesitation to accept this position & conclude that Board is not competent to delegate its obligation of "being previously consulted". In this background, he has attempted to justify the arrangement evolved on 22.10.2011 by Respondent No. 10 -
Board by urging that it is not an act of delegation but an act of allocation of business. It is this issue which, therefore, we are called upon to look into.
43. Chapter VIIA in its Section 39A provides for Establishment of Respondent No. 10 - Board as a body corporate with perpetual succession, common seal and provision for suing or being sued in its corporate name with power to contract, to acquire and hold property. Its sub-section (3) by deeming fiction constitutes it a local authority for all purposes. Its constitution is provided in Section 39B. Most of its members are ex-officio members meaning thereby that they are not Full Time members of Respondent No. 10 - Board. There is a provision for ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 50 nominating six members by State Government and they need to be from amongst the Chairmen of the Market Committees in six revenue divisions in the State of Maharashtra. In addition, the Chairman of Maharashtra State Market Committees Cooperative Federation Limited, Pune, is also made a Member. The Director Agricultural Marketing, Maharashtra State, Pune, is also a Member while the Managing Director is a Member-Secretary.
Thus, it consists of total 14 members. Section 39B-1 enables State Government to appoint on deputation a Managing Director.
Section 39J is then about functions and powers of said Board.
Those functions and powers show that Board mostly coordinates the functioning of various Market Committees and supervise and guide them in their construction programmes. The residuary clause (ix) therein enables it to do such other things as may be of general interest relating to marketing of agricultural produce.
Clause (xi) is again a similar clause which empowers it to carry out such other functions of like nature as may be entrusted to it by the State Government. These provisions, therefore, do not show any power of superintendence and control given to ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 51 Respondent No. 10 - Board over any A.P.M.C. It cannot, therefore, interfere with the working and functioning of A.P.M.C. except may be to the extent necessary to coordinate the functioning of different Market Committees. Section 39K is a power to make regulations with previous approval of State Government. Under sub-section (1) regulations have to be consistent with 1963 Act or 1967 Rules and for the purposes of administration of its affairs. Sub-section (2) is a provision which without prejudice to generality of sub-section (1), permits framing of regulations under different heads. Sub-clause (e) therein is enabling Board to frame regulations on any other matter for which provision is to be or may be required to made in the regulations, for carrying out the functions of State Marketing Board under 1963 Act. The petitioner point out permissibility of delegation of its powers by the Board by taking recourse to this residuary clause or then sub-section (1) of Section 39K. However, in facts before us, it is not in dispute that no measure on these lines is still taken by the Board and as such there is no Regulation authorizing Respondent No. 10 - Board to ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 52 delegate its obligation incurred in the process of consultation to any smaller body of office bearers. The contention on permissibility of such delegation, therefore, need not be gone into at this stage. The question can be looked into as and when it is posed in more appropriate circumstances.
44. As composition of Respondent No. 10 - Board shows that it consists of almost 14 members and most of them are ex officio members, respondents have, therefore, urged that it is not possible for all such members to sit together and to deliberate on large number of proposals under Section 45 received by Respondent No. 10. Considering the tedious nature of this work, Allocation of said business has been given to a smaller body which can undertake that scrutiny more conveniently and easily.
Here, one has to note provisions of Section 60 which confer power upon State Government to frame rules vide notification in the Official Gazette. Said section also does not enable State Government to frame any Rules about mode and manner of working of Respondent No. 10 - Board. Suffice it to say, ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 53 therefore, that mode and manner of working has to be devised by Respondent No. 10 - Board. The same has to be under Section 39K.
45. Shri Dharmadhikari, learned Senior Advocate has vs. relied upon the judgment in the case of Naraindas Indurkhya State of Madhya Pradesh & Ors., (supra), to submit that such allocation of business by Board is valid in the background of law laid down therein. A perusal of said judgment reveals that there, as per proviso to Section 4(1) of Madhya Pradesh Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973, text book for Secondary Education could not have been prescribed without prior consultation with the Board. Para 17 shows that appropriate Committee of courses scrutinized text books and submitted its recommendations to the Board and the Chairman of the Board, agreeing with the recommendations made by appropriate Committee of Courses, forwarded them to State Government as recommendations of the Board. No ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 54 recommendations in regard to text book on Geography were forwarded by the Chairman of Board to the State Government.
The Hon'ble Apex Court has noted that question as to what text books should be recommended to the State Government for prescription was not placed before the general meeting of the Board and there was no resolution or general meeting of Board recommending any particular text book. Relying upon the language of second proviso of Section 4(1), effort was made before the Hon'ble Apex Court to submit that Board had authorized Chairman to take all necessary steps for the purpose of proceeding further with the work of text book improvement scheme. The Hon'ble Apex Court has observed that when a power or function is given by statute to a Corporate body and no provision is made in the statute as to how such power or function has to be exercised, the corporate body by a resolution passed at the General Meeting devise its own mode of exercising its own power or function. It has then observed that this proposition had no application in facts before it. There were several provisions in Madhya Pradesh Act providing for ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 55 delegation of powers and functions of Board to the Chairman and other Committees by means of Regulations. If, therefore, any power or function of the Board was intended to be made exercisable by the Chairman, it could have been done through the mechanism of Regulations. Thus, what is considered by the Hon'ble Apex Court is a question of delegation. The respondents have pointed out that 1963 Act makes provision for very limited delegation. In this situation, submission is that when statute (1963 Act) does not permit delegation, Respondent No. 10 -
Board must be presumed to have evolved its own procedure, cannot be accepted. If delegation is not permitted by 1963 Act, the judgment of the Hon'ble Apex Court being considered does not lend support to this contention. What cannot be done directly, could not have been done indirectly. There is no argument before us by the respondents that 1963 Act does not prohibit such delegation. There is no defence by Respondent No. 10 that Board has delegated its power to a smaller body on 22.10.2011. In the light of finding by us that procedure evolved on 22.10.2011 by Board is violated here, it is not necessary to ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 56 record any firm finding on this aspect. It is also to be noted that Board has still not framed a single regulation under S. 39K of 1963 Act.
46. The effort of the respondents has been to submit that resolution passed on 22.10.2011 is not a delegation but allocation of business. Support for this purpose is being taken from the judgment in the case of State of U.P. vs. Batuk Deo Pati Tripathi & Anr . , (supra). The perusal of this Constitution Bench judgment of the Hon'ble Apex Court shows that it deals with Article 235 of the Constitution of India and control vested in High court over subordinate judiciary. Power to High court to control has been construed to imply power to frame Rules to make the exercise of such control feasible, convenient and effective. In para 10, the Hon'ble Apex Court has found that seeds of jurisdiction to frame rules regulating the manner in which the control over subordinate courts is to be exercised are thus to be found in the very nature of the power and that the power vests in entire body of judges. In para 15, the Hon'ble ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 57 Apex Court has noted the question arising as whether any delegation as such is involved in the process whereby a Judge or a Committee of Judges of the Court, like the Administrative Committee is authorized by the whole court to act on behalf of the Court. In para 16, the Hon'ble Apex Court has noted that control will be better and more effective, if a smaller committee of Judges has the authority of the Court to consider the manifold matters. Because of this peculiar nature of power, constitutionally conferred, the Hon'ble Apex Court has held that such empowerment cannot be characterized as process of delegation. In para 17, it is held that an Administrative Judge or an Administrative Committee is a mere instrumentality through which the entire Court acts for the more convenient transaction of its business, the assumed basis of the arrangement being that such instrumentality will only act in furtherance of the broad policies evolved from time to time by the High Court as a whole.
This judgment, therefore, shows that it is because of power of control vested in High Court that the performance or exercise of that control by some Judges or a smaller body is held to be not a ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 58 delegation. We have already noted above that Respondent No. 10 - Board does not possess any such power to control the functioning of A.P.M.Cs. in the State. Moreover, the Hon'ble Apex Court notices formulation of broad policies by entire Court & then its execution by the smaller body of judges or committees.
In facts of present matter, resolution dated 22.10.2011 passed by Respondent 10 Board does not lay down any such policy even broadly.
47. As held by the Hon'ble Apex Court in the case of Naraindas Indurkhya vs. State of Madhya Pradesh & Ors., (supra), any power or function, if intended to be made exercisable by the Chairman because of delegation through Regulations, the delegation can only be done through the mechanism of Regulations. In the light of arguments advanced before us, it is apparent that Respondent No. 10 - Board cannot be said to have evolved a mechanism to allocate business. In this situation, as there is no express provision permitting delegation, till Regulations are made in exercise of power under Section 39K of ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 59 1963 Act, the exercise of consultation may not be allowed to be attended to by any smaller body within the Board exclusively.
48. Whether opinion as communicated by Board can be treated as a legal and valid compliance with requirement of Section 45 of 1963 Act, is the question which now needs examination. Section 45(1) is about issuance of show cause notice for supersession or removal. The proviso to it obliges State Government not to supersede Market Committee without Respondent No. 10 "being previously consulted".
49. In Appasaheb Sheshrao Chavan & Ors. vs. State of Maharashtra & Ors . , (supra), the Division Bench of this Court has considered said provision. In para 25, this Division Bench has found that there is corresponding duty on Board whose consultation is mandatory to give its opinion. This duty is to be performed truthfully, observing the spirit for which the provision is made. A federal body like Respondent No. 10 is considered to be a body of experts, which is able to take a detached view of the ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 60 matter and, therefore, to be consulted. An authority initiating action may have extraneous considerations due to local hands and hence second opinion to be given by a federal body impartially may weigh with it. Such an exchange of views is held necessary and mandatory. The body being consulted is declared to have a corresponding duty to give its opinion.
Division Bench has stated that such body cannot merely say that steps according to law may be taken. It found that this can be said to be no opinion.
50. In Ravindra vs. State of Maharashtra, (supra), the learned Single Judge of this Court has considered similar provision regarding consultation appearing in Section 78 of Maharashtra Cooperative Societies Act. In para 13, the learned Single Judge has held that consultation is not a mere formality but has to be meaningful consultation. All material relevant to the matter must be made available to authority being consulted by the consulting authority and it is equally necessary for the authority being consulted to express views on the point on ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 61 which such consultation is sought. In para 16, the judgment of the Hon'ble Apex Court in the case of Kewalram vs. Maharashtra State Co-operative Societies & Ors., (supra) has also been relied upon. In that judgment, expression "previously consulted" in proviso to Section 45 of 1963 Act has been interpreted by the Hon'ble Apex Court to mean that opinion of such Board one way or the other must be taken into account before reaching the conclusion whether or not to supersede. The Hon'ble Apex Court has categorically observed that it is not good answer to say that opinion of the Federation could not be taken into account because no opinion was expressed by it, as in that event, supersession cannot be said to have been made legally in consultation with such federal body. The Hon'ble Apex Court has observed that "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 reckoning before the conclusion to supersede was reached." (Emphasis supplied). The learned Single Judge in this background has observed that it was necessary for the authority to insist upon federal society to ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 62 express its opinion in one way or the other, before proceeding to take action under Section 78 of the Co-operative Societies Act and it was obligatory for the federal society to give appropriate opinion.
51. Tukaram Narayanrao Khandebharad vs. State of Maharashtra, (supra) is the judgment of Division Bench of this Court on provisions of 1963 Act itself. In said matter, the petitioners had contended that there was no effective consultation as the Marketing Board had refused to give its opinion. The perusal of para 6 shows that Marketing Board there had informed District Deputy Registrar that he should proceed according to law. In para 7, the judgment of the Hon'ble Apex Court in the case of Chandramouleshwar Prasad vs. Patna High Court, reported at AIR 1970 SC 370; Union of India vs. Sankalchand Himatlal Sheth, (supra) and S.P. Gupta vs. President of India, reported at AIR 1982 SC 149 are looked into. In para 9, the Division Bench has noted that Marketing Board in unequivocal terms conveyed to the District Deputy Registrar that ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 63 he was free to take action in accordance with law on merits and hence held that it was an expression of opinion by the Board.
The Division Bench holds that the Board did not express any opinion adverse to the proposal which was sent to it and, therefore, Division Bench deduced that Board was agreeable to proposed action. It is important to note that judgment of the Hon'ble Apex Court in the case of Kewalram vs. Maharashtra State Co-operative Societies & Ors., (supra) has not been pointed out to this Division Bench. Moreover, on facts, this Division Bench found that State Marketing Board had expressed itself in favour of proposed action. We, therefore, do not find it necessary to delve more in this judgment.
52. In Pandurang Eknath Khose & Ors. vs. State of Maharashtra, (supra), again provisions of Section 45 of 1963 Act are looked into by the Division Bench of this Court. The respondents before the Division Bench contended that Board was effectively consulted before ordering supersession. The petitioners had contended that there was no effective ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 64 consultation by placing reliance upon the judgment of the Hon'ble Apex Court in the case of Kewalram vs. Maharashtra State Co-operative Societies & Ors., (supra). The Division Bench held that ratio in the judgment of the Hon'ble Apex Court had no application in facts before it as there was effective previous consultation & that necessary material was made available to the Board by the consulting authority. The Board had communicated to District Deputy Registrar on 23.03.1998 that action should be taken on said show cause notice on merits of the matter. Thus, in the light of the challenge made before it, the said Division Bench did not find any merit in the petition. The contention that State Marketing Board ought to have been forced to express one way or the other was not raised and Division Bench was, therefore, not required to look into it. Thus, words of communication of Board there were not found opposing the proposed action & hence, sufficient.
53. Shri Bhangde, learned Senior Advocate has relied upon the judgment in the case of Union of India vs. Sankalchand ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 65 Himatlal Sheth & Anr. (supra), to point out various facets of principles of consultation. The said judgment considers all provisions of Article 222(1) of the Constitution of India and in paras 38 & 39 concludes that deliberation is quintessence of consultation. Judgment in the case of State of Jammu & Kashmire vs. A.R. Zakki & Ors., (supra) states that it involves exchange of mutual viewpoints and examination of relative merits of the other view. Madan Mohan Choudhary vs. State of Bihar, (supra) considers issue of compulsory retirement and its judicial review, and notes that the Constitution has conferred upon High Court a sacred and noble duty to give best advise to the Governor. The judgment in the case of N. Kannadasan vs. Ajoy Khose, (supra) again shows that the State Government as also Chief Justice, before forming opinion, must have access to all relevant information and application of mind by the consultant and consultee on such relevant information is absolutely imperative.
54. In State of Gujarat vs. Gujarat Revenue Tribunal Bar ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 66 Association, (supra) in para 34, the Hon'ble Apex Court has observed that consultee must express his opinion after full consideration of the matter upon relevant facts and circumstances.
55. The respondents have also attempted to demonstrate that Division Benches of this Court have taken inconsistent views on the process of consultation. We have considered all those views (supra) and, in present background while deciding the controversy before us, we are not in a position to notice any such inconsistency relevant for or having bearing on this adjudication.
The law as applied by this Court in its various judgments noted supra is after noticing the particular factual conclusion. Hence, the judgments of the Hon'ble Apex Court in the case of Government of W.B. vs. Tarun K. Roy & Ors., (supra) or then of Full Bench of this Court in the case of Kamleshkumar Ishwardas Patel vs. Union of India (supra) on a binding precedent, principle of per-incuriam and judicial discipline, therefore, need not be looked into.
::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 6756. We have already found that General Manager of Respondent No. 10 prepared his report and as per procedure devised on 22.10.2011, as opinion of the Board was to be communicated by the Chairman, he forwarded the papers accordingly without expressing himself either way. He did not record any findings on facts and left it open for consideration of his superiors. The resolution authorized General Manager only to conduct hearing and to submit his report through Vice-
Chairman to Chairman. The requisite finding to constitute an opinion of Board was to be reached by the Chairman as per that resolution. We have already found that there is no such finding or even an attempt by the Chairman. In this situation, it is apparent that the provisions of Section 45(1) are not complied with in present matter and Respondent No. 10 - Board has failed to discharge its obligation.
57. In view of these findings recorded on preliminary issues, it is apparent that there is no need to proceed to consider whether findings recorded by Respondent No. 2 against alleged ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 68 lapses mentioned in show cause notices are proper or perverse.
Findings of facts, to enable this Court to review the same, can crystallize only after view legally expressed by the Marketing Board in process of consultation enters the consideration of Respondent 2 -DDR. Here, there was no such "view" of Board before the Respondent 2 & hence, he was not competent to proceed further & to record any binding finding on facts.
58. The above grounds & reasons are sufficient to vitiate the procedure followed by Respondent 10 Board for discharging its obligation under proviso to S. 45 of 1963 Act as also the impugned order passed by Respondent 2 District Deputy Registrar superseding the A.P.M.C. and appointing an Administrator upon it.
59. It, therefore, follows that the order of supersession dated 27.02.2011 at Annexure 16 is unsustainable and the same is accordingly quashed and set aside. Respondent No. 2 - the District Deputy Registrar is free to proceed further in the matter ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 69 in accordance with law. Writ Petition is thus allowed by making rule absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE At this stage, Shri Dastane, learned counsel appearing for Respondent Nos. 5 & 7 seeks continuation of interim order for a further period of three weeks. The request is being strongly opposed by the learned Senior Advocate for the petitioners, as also Shri Agrawal, learned counsel for the intervenors.
Shri Agrawal, learned counsel submits that the intervenors are contractors and the contract with them was already entered into.
Shri Bhangde, learned Senior Advocate submits that the bills do not form subject matter of present controversy.
Shri Dastane, learned counsel points out that this court has not examined the irregularities held proved by the ::: Downloaded on - 09/06/2013 19:49:31 ::: wp201.12 70 authorities, on merits. According to him, therefore, the interim order needs to be continued.
Interim order is granted by this Court on 16.01.2012.
Hence, we continue the said interim order for a further period of three weeks from today and the same shall cease to operate automatically thereafter.
JUDGE JUDGE
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*GS.
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