Bombay High Court
Appasaheb Sheshrao Chavan And Others vs State Of Maharashtra And Others on 4 February, 1999
Equivalent citations: 2000(1)BOMCR657
Author: B.H. Marlapalle
Bench: B.H. Marlapalle
ORDER N.P. Chapalgaonker, J.
1. Writ Petition No. 5003 of 1998 is filed by the Members of the Agricultural Produce Market Committee, Jalna, challenging the Order, dated 23-11-1998 passed by the District Deputy Registrar, Co-operative Societies, Jalna, bifurcating the market area of Jalna Market Committee into two separate Market Committees, namely, Jalna and Badnapur, in exercise of the powers under section 44 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 and the Rules made thereunder (hereinafter, referred to as "the said Act").
2. Agricultural Produce Market Committee, Jalna had a sub-market yard at Badnapur. The District Deputy Registrar, Jalna, appointed himself to be the Administrator in place of the earlier Administrator, by an Order, dated 14-9-1993. On 1st August 1994, the newly elected Market Committee assumed office. On 17-2-1995, the Director of Marketing wrote a letter to the Chairman of the Market Committee, Jalna, asking him to submit a report about the proposal to bifurcate the Jalna Market Committee into two Market Committees, namely, Jalna and Badnapur. The said letter was placed before the Market Committee for consideration on 28-4-1995 and the Market Committee opined that they oppose the proposal for the bifurcation. This was resolved by Resolution No. 8 and intimated to the Director of Marketing, as well as to the State Marketing Board established under section 39-A of the said Act. Since the members of the Market Committee were apprehending bifurcation, ignoring the views expressed by them. Writ Petition No. 5658 of 1995 came to be filed before this Court; and this Court directed that, if the bifurcation order is passed, it shall not be given effect to for a period of 15 days. The District Deputy Registrar issued an Order on 23-11-1998 bifurcating the Market Committee, which has been impugned in this writ petition.
3. The Notification bifurcating the Market Committee, Jalna, is challenged mainly on the following grounds:--
i) Notification is mala fide inasmuch as it is issued to favour the near relations of political leaders and to suit their political convenience.
ii) Order under section 44 of the said Act can only be passed after calling objections, if any, and considering them. Procedure, as is laid down under sections 3 and 4 of the said Act, applies to the exercise of powers under section 44 of the said Act, and such a procedure will have to be followed while power under section 44 of the said Act is to be exercised.
iii) Present Market Committee has taken huge advance for developmental activity and the developmental activity will come to a halt in the market area and the bifurcation of assets and liabilities will not advance the developmental activity in the market area
iv) There is no effective consultation with the State Marketing Board, as is required under section 44 of the said Act.
4. Writ Petition No. 4366 of 1998 challenges an order passed by the District Deputy Registrar, Co-operative Societies, Latur, on 11-9-1998, bifurcating Agricultural Produce Market Committee, Latur, into two separate Market Committees, for Latur and Renapur. The order is challenged on the ground that preliminary notification, calling objections was not issued, and without following the procedure, an analogous one to the procedure laid down in sections 3 and 4 of the said Act, no power can be exercised under section 44 of the said Act. It is also contended that the ten villages, which are now part of Chakur Agricultural Produce Market Committee are being included in the proposed Renapur Agricultural Produce Market Committee: but, neither these villages, nor Chakur Agricultural Market Committee, is consulted before shifting of these villages from one market area to another market area.
5. Writ Petition No. 4436 of 1998 and Writ Petition No. 4912 of 1998 challenge order dated 30-9-1998 passed by the District Deputy Registrar, Cooperative Societies, Parbhani, bifurcating Agricultural Produce Market Committee, Pathri, into two separate Market Committees, Pathri and Hadgaon (Bk). It is contended that the action is mala fide and is taken to suit the political purpose. Though the then Chairman of the Market Committee, Pathri, had informed that in the meeting dated 17-6-1998 of the Market Committee, a resolution approving the proposal for the bifurcation was considered and passed; yet, in fact, no such resolution was ever passed and the resolution which was brought into existence in this connection was a fabrication by the outgoing Chairman of the Market Committee, who had faced No Confidence Motion on 24-8-1997. It is also contended that such a resolution was not mentioned in the agenda and it was never discussed. The proceedings were manipulated by the then Chairman and, therefore, there is no consultation with the Market Committee concerned. The meeting of the Market Committee was called on 8-9-1998 and Resolution No. 7, which was later on inserted without having any discussions, was not confirmed and, instead, it was resolved that the Market Committee, Pathri, should not be bifurcated. It is also contended that power to be exercised under section 44 of the said Act has to precede by the procedure calling for objections, if any, from all those affected, and since it has not been done, the exercise is without jurisdiction. It is also contended that the Market Committee would never be viable. Market Committee, Manwat, which had about 100 villages in its jurisdiction was bifurcated in the year 1981; 49 villages were included in the jurisdiction of Pathri Market Committee, and the remaining 51 were retained in the jurisdiction of Manwat Market Committee. Now, Pathri Market Committee is again sought to be bifurcated, thereby retaining 23 villages in the jurisdiction of Pathri Market Committee and allotting 26 villages in the proposed Hadgaon (Bk) Market Committee, it is contended that this is being done for the political convenience, so that persons can be nominated by the State Government under the colourable exercise of power.
6. Writ Petition No. 4556 of 1998 and Writ Petition No. 4622 of 1998 challenge the order passed by the District Deputy Registrar, Co-operative Societies, Dhule, on 8-10-1998, bifurcating existing Taloda Market Committee into two separate Market Committees, for Taloda and Akkalkuwa. These petitions challenge the delegation of power under section 44 of the said Act by the State Government to the District Deputy Registrar, alleging that it is arbitrary and without any guidelines. The petitioners also contend that the bifurcation orders are made during the applicability of the Code of Conduct, laid down by the State Election Commission, because of the elections to Zilla Parishad, Dhule; and those are not only improper, but also illegal.
7. Writ Petition No. 1651 of 1998 challenges the order passed on 5-4-!998 under section 44 of the said Act bifurcating Agricultural Produce Market Committee, Kalamnuri, into two separate Market Committees, Kalamnuri and Shirsum, mainly on the ground that the bifurcation is to suit the political convenience and is mala fide. It was done under the political pressure. There is an experts report that the bifurcation will not be viable. Ignoring this, the bifurcation was done. The District Deputy Registrar, Co-operative Societies, is not the competent authority to issue the notification under section 44 of the said Act; and the exercise is without jurisdiction, inasmuch as the procedure laid down under sections 3 and 4 of the said Act, such as, calling for objections etc., has not been followed.
8. The first contention commonly raised in all these writ petitions, which requires consideration, is that unless a preliminary notification is issued, calling for objections from all those who are likely to be affected, a final notification under section 44 of the said Act, amalgamating or dividing or bifurcating a Market Committee or committees, as the case may be, cannot be issued. Reliance for this purpose is placed on sections 3 and 4 of the said Act;
9. Section 3 and sub-section (1) of section 4 of the said Act are reproduced below for reference.
3. Notification of intention of regulating marketing of agricultural produce is specified area.---(1) The State Government may, by notification in the Official Gazette, declare its intention of regulating the marketing of such agricultural produce, in such area, as may be specified in the notification. The notification may also be published in the language of the area in any newspaper circulating therein, and shall also be published in such other manner as in the opinion of the State Government is best calculated to bring to the notice of persons in the area, the intention aforesaid.
(2) The notification shall state that any objections or suggestions which may be received by the State Government within a period of not less than one month to be specified in the notification will be considered by the State Government.
4. Declaration of regulation of marketing of specified agricultural produce in market area.---(1) On the expiry of the period specified in the notification issued under section 3, the State Government shall consider the objections and suggestions, if any, received before the expiry of such period and may, if it considers necessary, hold an inquiry in the manner prescribed.
Thereafter, the State Government may, by another notification in the Official Gazette, declare that the marketing of the agricultural produce specified in the notification shall be regulated under this Act, in the area specified in the notification. The area specified shall be the market area. A notification under this section may also be published in a newspaper in the Marathi language circulating therein, and shall also be published in such other manner as in the opinion of the State Government is best calculated to bring to the notice of persons in the area the declaration aforesaid.
9A. As against the above provisions, the provisions of section 44 of the said Act are as under.
44. Amalgamation or division of Market Committees.---(1) Where the State Government is satisfied that for securing efficient regulation of marketing of any agricultural produce in any market area, it is necessary that two or more Market Committees therein should be amalgamated or any Market Committee therein should be divided into two or more Market Committees, then the State Government may, after consulting the Market Committees or Committee, as the case may be, and the State Marketing Board by notification in the Official Gazette, provide for the amalgamation or division of such Market Committees into a single Market Committee or into two or more Market Committees, for the market area in respect of the agricultural produce specified in the notifications with such constitution, property, rights, interests and authorities and such liabilities, duties and obligations (including provision in respect of contracts, assets, employees, proceedings, and such incidental, consequential and supplementary matters as may be necessary to give effect to such amalgamation or as the case may be, the division) as may be specified in the notification.
10. By a preliminary notification under section 3 of the said Act, the Government has to declare its intention to regulate the marketing of such agricultural produce as are listed in the notification in the area, which is also to be notified in the said notification. All agricultural produce is not regulated throughout the State. The market areas wherein the regulation of the marketing of agricultural produce would be done are to be determined and the different produce to be regulated are also to be determined and notified. If an area is to be regulated under the said Act as a market area; and also if marketing of an agricultural produce in such a market area is to be regulated, then the Legislature intended that the agriculturists and people of the proposed market area; as also those concerned with proposed agricultural produce with respect to which the regulation of marketing is to be done, should be given an opportunity to putforth their objections and suggestions, if any; and therefore, a scheme is laid down in sections 3 and 4 of the said Act, which requires publication of a preliminary notification, inviting of the objections and suggestions, consideration of such objections and suggestions by the State Government and, after expiry of the period so notified, issuing a further notification declaring a market area and also declaring the names of the agricultural produce, marketing of which would be regulated in the said market area. If a place or a produce within the market area; or, a particular produce, is not covered by the notification, then the provisions of the said Act are not applicable for the marketing done at such place and of such produce. It is in this context that the Legislature has provided for the preliminary notification; calling of the objections; considering them; and then issuing final declaratory notification under sections 3 and 4 of said the Act. Further, in the absence of any specific provision requiring publication of a preliminary notification under section 44 of the said Act, we do not think that such a requirement can be imported into it by us.
11. Once a market area is declared; and also the agricultural produce is notified, then it is to be regulated by the Market Committee; and merely because the Market Committee is divided or bifurcated or amalgamated, the fact that the area is regulated and the particular produce are also regulated does not change. Therefore, section 44 of the said Act, which does not deal with those matters dealt with by sections 3 and 4 of the said Act, does not provide for any kind of hearing or procedure as is laid down in sections 3 and 4 of the said Act. We cannot read into section 44 of the said Act the requirement of issuance of a preliminary notification; of calling of objections and suggestion; of considering such objections and suggestions; and then issuing final notification.
11-A We, therefore, reject the contention and hold that the notifications impugned in these writ petitions are not invalid on the ground that there was no preliminary notification calling for submissions of objections or suggestions.
12. In the context of bifurcation of Latu Market Committee into Latur and Renapur Market Committees, it was contended before us that 10 villages falling within the market area of Chakur Market Committee are being excluded therefrom and attached to the proposed Renapur Market Committee; and that, if certain villages are attached to a Market Committee, then, while dividing or bifurcating the Market Committee, convenience of the villagers of such villages will have to be taken into consideration; and, that, therefore, the agriculturists of such village will have to be heard before the Market Committee is divided or bifurcated or amalgamated.
13. Though, while notifying a particular area as a market area; and notifying particular specie of agricultural produce as the produce marketing of which is being regulated, a hearing is contemplated in terms of section 3 of the said Act, no such hearing is contemplated in the other provisions of the said Act. Such as, under section 5, in a market area, a principal market and subsidiary markets can be notified. This power also includes the power to close down any subsidiary market, as was interpreted by the Supreme Court in the case of R.K. Porwal v. State of Maharashtra, . There is no express provision in the said Act to prohibit the marketing of an agricultural produce outside the market area. This was interpreted by the Supreme Court to be giving a greater latitude to the rule making authority to introduce marketing by stages.
14. The things, which are not specifically dealt with, can always be regulated for furthering the purposes and objects of the Act. It would be appropriate for the State Government to consider the amendment of the Act and the Rules and make a provision to call for objections, if any, from the agriculturists situated and regulated in a single market area when such Market Committee is being bifurcated. The convenience, distance or facility-wise necessities may be represented by the agriculturists, if such an opportunity is given. But, at present, there is no such requirement even under the Statute.
15. The contention that some villages from the market area of one Market Committee are being excluded therefrom and included in the proposed new Market Committee meant for some other market area is, as such, not a case of bifurcation of a Market Committee. This would be merely a transfer of part of one Market Committee area to another Market Committee area. Therefore, hearing is not necessary in such a case.
16. We, therefore, reject this contention also.
17. In the context of the contention pertaining to jurisdiction of the District Deputy Registrar to issue the orders of bifurcation under section 44 of the said Act, two points have been raised before us. The first is, whether the Assistant Registrar, who is in-charge and officiating in the post of District Deputy Registrar, can exercise the power? The answer is quite plain. If a District Deputy Registrar is not there, Assistant Registrar, officiating in the post of District Deputy Registrar holding his charge for the purposes of the Act, is the District Deputy Registrar; and for every such function, such in-charge and officiating District Deputy Registrar will have all the powers which the District Deputy Registrar can exercise.
18. The second point raised is, if the statutory powers are delegated to an authority and the subjective satisfaction of such delegated authority is necessary before exercising the power and jurisdiction; then that subjective satisfaction should be that of the delegated authority and not of the delegating (original) authority, who had delegated those powers. In some case, it was pointed out that the State Government took the decision of bifurcation first and then asked the District Deputy Registrar to proceed with the matter. It was submitted before us that since the State Government alone can exercise powers under section 44 of the said Act, and that too on the basis of subjective satisfaction, the District Deputy Registrar has no jurisdiction to pass the orders of bifurcation.
19. Shri A.M. Kanade, the learned Government Pleader, in this respect, submitted before us that even after the power is delegated to an authority, the authority to whom the power is originally given by the Statute does not lose the power. Delegation is only in addition to the power which is held by the delegating authority. He, therefore, submitted that the State Government continues to have the power under section 44.
20. Even if the power is delegated to the District Deputy Registrar; and if, in any matter, the State Government and the District Deputy Registrar both participated in the chain of activity, as is contemplated by the statutory provisions, it will not be an invalid exercise. If the State Government has considered the question whether a Market Committee deserves to be bifurcated, and after considering the various aspects thereof, has arrived at a conclusion one way or the other, it is competent for it to direct the District Deputy Registrar to take further steps for the bifurcation.
21. The power given to the State Government to amalgamate or divide or bifurcate Market Committee or committees has to be exercised after consulting the Market Committee or committees, as the case may be; and also the State Marketing Board. Unless these bodies are consulted, any order of amalgamation or division would be invalid. This Court has, in several decisions, held that the statutory requirement of consultation is mandatory.
22. Considering the question of super session of a Market Committee under section 45 of the said Act in the case of Agricultural Produce Market Committee, Dharni and others v. Dist. Dy. Registrar, Co-operative Societies, Amravati, 1986 Mh.L.J. 374 this Court held that consultation is not an empty formality or a ritual. The provision is mandatory and has to be real, full and effective.
23. Similarly, considering the powers under section 44 of the said Act to amalgamate or divide a Market Committee, the consultation as required by law was held to be mandatory by another Division Bench of this Court in Ramrao Sitaram Kadam and others v. The District Deputy Registrar, Cooperative Societies Nanded and others, .
24. Similar provisions contained in the other statutes have also been held to be mandatory by the Supreme Court and other High Courts; and we need not burden this judgment with multiple instances. The reason for this being so is obvious. If structure of a public institution is being altered materially, then people affected and the institutions proposed to be abolished to give way for the new structure will have to be heard, since it affects their existence. If the consultation is mandatory, it will have to be an effective consultation, meaning thereby, the points of view of parties to the consultation will have to be putforth by them before each other and they should have an opportunity to understand each other's views. Then and then only, it can be said that the consultation is complete and effective. As was observed by the Supreme Court in Chandramouleshwar Prasad v. Patna High Court, .
Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.
25. This Court in the case of Agricultural Produce Market Committee, Dharni, cited (supra), held that mere sending of the copy of the show cause notice without anything more cannot amount to consultation within the meaning of the statutory provision. No opinion could be given only on the basis of show cause notice issued. It also held that there is a corresponding duty also on the body whose consultation is mandatory to give its opinion. The corresponding duty to give opinion is also to be performed truthfully, observing the spirit for which the provision is made. A federal body is considered to be a body of experts, which is able to take a detached view of the matter and, therefore it has to be consulted. An authority making a proposal may have extraneous considerations influenced by the local conditions in its mind and a second opinion to be given by the federal body may weigh with the body making the proposal. Such an exchange of views is necessary between those bodies and executive functionaries. Therefore, the judicial pronouncements have laid down the following propositions regarding consultation --
(1) Consultation, if so provided in the Statute, is mandatory before taking further steps of dissolution, supersession, division, amalgamation or bifurcation, etc.:
(2) Consultation has to be effective and, therefore, all the material necessary for taking the steps must have been placed before the body to be consulted:
(3) The body to be consulted has a corresponding duty to give its opinion. It cannot merely say that steps according to law may be taken. This is no opinion expressed by the body consulted.
26. Apart from all this, the case before us has another aspect. Section 44 of the said Act requires that amalgamation, or, division, or, bifurcation, of the Market Committee should be done only after consultation with the State Marketing Board, besides the consultation with the affected committee or committees. State Marketing Board i.e. The Maharashtra State Agricultural Marketing Board, has been constituted under section 39-B of the said Act, which is as under:
39-B. Constitution of State Marketing Board.---The State Marketing Board shall consist of the following members, that is to say-
i) The Minister for Co-operation.. ex officio Chairman:
ii) The Minister of State for Co-operation.. ex officio Vice-Chairman
iii) the Commissioner for Co-operation and Registrar of Co-operative Societies, Maharashtra State, Pune .. ex officio Member;
iv) the Director of Agricultural, Maharashtra State Pune.. ex officio Member;
v) one representative of the National Bank of Agricultural and Rural Development (NABARD), to be nominated by the State Government.. ex officio Member
vi) the Agricultural Marketing Advisor to the Government of India, or his representative .. ex officio Member;
vii) members, not exceeding six, to be nominated by the State Government from amongst the Chairmen of the Market Committees, one each from the six revenue divisions.. Members;
viii) the Chairman, the Maharashtra State Market Committees Co-operative Federation Limited, Pune .. Member;
ix) the Director of Agricultural Marketing, Maharashtra State, Pune.. Member and the Managing Director.
The term of office of the members, nominated under Clause (vii), is ordinarily of three years (section 39-E). Section 39-G lays down that during any vacancy in the State Marketing Board, the continuing members may act as if no vacancy had occurred.
27. In Writ Petition No. 5003 of 1998, the challenge is to the bifurcation of the Jalna Market Committee and establishment of new Market Committee at Badnapur. The consultation with the State Marketing Board in this matter was done in the following manner.
On 17-2-1995, the Director of Marketing informed that the Government is considering bifurcation of Jalna Market Committee into two Market Committees and establishment of separate Market Committee for Badnapur. The communication was considered in a meeting dated 28-4-1995 by the Market Committee, Jalna; and the proposal was opposed and it was opined that such a bifurcation was not in the interests of the Market Committee. Thereafter, the District Deputy Registrar again proposed the bifurcation of the Market Committee by letter dated 27-11-1995 and sent it to the Director of Marketing, Pune. A copy of it was forwarded to the State Marketing Board. The Manager of the Board, by a communication dated 3rd February 1996, informed the Director of Marketing that considering the fact that Badnapur Market Committee would be a viable one, the Chairman of the Board has consented to bifurcation and establishment of a separate Market Committee for Badnapur.
28. It was submitted before us that the Chairman, by himself, has no power to give consent on behalf of the Marketing Board; and the Marketing Board as a body statutorily constituted, will have to meet and consider the proposal and must express its opinion, which would be a collective opinion and not an individual decision of the Chairman. The Minister concerned is the Chairman of the Board, ex officio, and therefore, if the Government takes a decision to bifurcate and the proposal is asked to be sent by the District Deputy Registrar to the Marketing Board; and the Chairman, without calling the meeting of the Board, informs his consent, it would not be compliance of the statutory requirement. We are told by the learned Government Pleader that, during this time, the members of the Marketing Board were not appointed. We find that the constitution of the Board as given in section 39-B has many ex officio members for whom a separate appointment is not at all necessary. Further, section 39-G clarifies that even during the vacancy or vacancies on the Board, continuing members may act as if no vacancy had occurred. Therefore, even assuming that the non-official members, chosen from amongst the Chairman of the Market Committees, one each from the six revenue divisions, were not appointed by the State Government, the rest of the ex officio members could have met; and we cannot accept the contention that the Board was not constituted. The Board was very much in existence and it should have been consulted. The Minister of Co-operation may act as an ex officio Chairman of the Board, as is provided by the Statute; but he has a duty to take into confidence all members of the Board, and if it is not done, any opinion expressed by the Chairman alone would not be a valid opinion. It is an accepted position that there was no meeting of the Board; and the proposal was not at all considered by the other members of the Board.
29. In view of this, we do not find that the mandatory provision of section 44 of the said Act requiring consultation with the Marketing Board was complied with. Therefore, the order bifurcating the Jalna Market Committee into two separate Market Committees, namely, for Jalna and Badnapur passed by the District Deputy Registrar, Co-operative Societies, Jalna, on 23-11-1998, will have to be held, to be invalid.
30. In Writ Petition No. 4366 of 1998, which challenges the bifurcation order in respect of Market Committee, Latur, into Latur and Renapur Market Committees, the Marketing Board, in its meeting dated 27-6-1998, did consider the proposal. It took note of the fact that, as per the report submitted by the Latur Market Committee, Renapur Market Committee, if established, will not be a viable Market Committee. However, it said that circumstances are likely to change and, therefore, the Market Committee may be allowed to be bifurcated.
31. It is very strange that a responsible body like the Marketing Board should have opined in this fashion. If the Market Committee is not viable, to create Market Committee would be for purposes extraneous to the purposes and objects of the Act. The material submitted before us in the form of statement of accounts produced by the Latur Market Committee goes to show that sub-market yard at Renapur, which was to be elevated to the position of a separate Market Committee by the order impugned before us, is incurring a net loss of more than Rs. 1 lakh every year. No material has been placed before us to show as to how the Board or the District Deputy Registrar presumed that there would be favourable change in the circumstances.
32. Whether the purposes of the said Act would be better served or not by amalgamation or bifurcation or division of a Market Committee is a matter to be decided by the authorities constituted under the said Act. The scope of judicial review would be very limited. But, we are astonished to see that the bifurcation of Latur Market Committee is being done despite the material placed before the authorities that the new Market Committee will not be viable one. The only reason pressed into service is that Renapur is now a new taluka and every taluka should have a separate Market Committee. Renapur Market Committee will have to survive on deficit grants of the State Government, at least for a considerable time to come. But, it is for the State Government to consider that aspect. We, however, do not propose to strike down the bifurcation order merely on this ground, as, according to us, the scope of judicial review does not permit us to do so.
33. Writ Petition No. 4436 of 1998 and Writ Petition No. 4912 of 1998 challenge the bifurcation of Pathri Market Committee into two separate Market Committees, one at Pathri and another at Hadgaon (Bk).
34. Formerly, Manwat had a Market Committee. It had 100 villages in its jurisdiction. It was bifurcated some time in 1981, thereby creating two separate Market Committees, one for Manwat with 51 villages in its jurisdiction; and another at Pathri, with the remaining 49 villages in its fold. Now, by the impugned order, Pathri Market Committee is subjected to bifurcation and 23 villages will be covered by the Pathri Market Committee; and the remaining 26 villages will come under the jurisdiction of new Hadgaon (Bk) Market Committee.
35. An argument was advanced that the bifurcation is not at all in the interest of the agriculturists or the regulation of the marketing of the agricultural produce. It is being done to see that the elected representatives are thrown out and the Government gets a right to appoint the new committees to induct persons of their choice by back door. On 25-8-1998, Member of the Legislative Assembly from Pathri Constituency gave a letter to the Minister for Co-operation proposing the bifurcation of the Pathri Market Committee into two separate Market Committees, one at Pathri and another at Hadgaon (Bk). On that very letter, on the very same day, the Minister appears to have endorsed in the following terms:
foHkktukl ekU;rk vkgs-
36. A decision to bifurcate was taken in principle by the Minister, even without asking for any details or any justification. Then the things started moving. On 27-8-1998, it was directed by the Director of Marketing to the District Deputy Registrar, Parbhani, to send a proposal for bifurcation of Pathri Market Committee into Pathri and Hadgaon (Bk.) Market Committees separately; and thereafter, the proposal was submitted by the District Deputy Registrar. The letter gives the details of the expenses and income of Pathri Market Committee, from which it can be seen that the expenses are barely met out from the income. It was also mentioned that in Hadgaon (Bk) at present, there is no business and, therefore, there is no income. The only observation favourable to the proposal of bifurcation is that it would be convenient for the agriculturists.
37. Needless to say that establishment of new institutions may please somebody, but it permanently adds up a new item of expenditure to the already overburdened exchequer. Persons in authority have to be more cautious, vigilant and thoughtful in establishing new institutions, unless they really deserve to be so established.
38. A Market Committee, which is to be bifurcated, has to be consulted as, is required under section 44 of the said Act. On 17-6-1998, a meeting of the Pathri Market Committee took place. The agenda for the said meeting is at page 25 of the compilation of one of these petitions. It does not show that there was any subject before the Committee previously notified for consideration of the bifurcation of the Market Committee. Six items, which were notified in the agenda, were (1) confirmation of the minutes of the previous meeting: (2) approving the accounts from March 1998 to May 1998; (3) consideration of application for grant of licences; (4) consideration of audit memo for 1996-97 and rectification report; (5) entry fee for the cattle; and (6) any other subject with the permission of the Chair. However, the proceedings, which were later on communicated, showed that Resolution No. 7 was passed recommending separate Market Committee for Hadgaon (Bk). When the proceedings of this meeting dated 17-6-1998 came up before the next meeting of the Market Committee on 8-9-1998, it was resolved that Resolution No. 7 was not at all passed; and the said Resolution No. 7 was inserted in the proceedings books by the Chairman later on without any information to the other members. It was discussed and Resolution No. 7 was cancelled.
39. It is also worthwhile to mention that when this Resolution No. 7 was allegedly inserted by the then Chairman, he was facing a No Confidence Motion. When the impugned order was passed on 13-9-1998 by the District Deputy Registrar, the first document which he has considered is this Resolution No. 7 alleged to have been passed by the Pathri Market Committee on 17-6-1998. It is the same Resolution No. 7 mentioned above. Since, in fact, no such resolution was passed; and further a resolution cancelling the insertion of this Resolution No. 7 was not considered by the District Deputy Registrar, the true information and point of view of the Market Committee was not before the District Deputy Registrar.
40. It, therefore, follows that there was no consultation with the Market Committee affected; and hence, there is non compliance of the mandatory provisions of section 44 of the said Act, inasmuch as the Market Committee affected was not consulted.
41. Coming now to Writ Petition No. 1651 of 1998, it was contended that the relevant information which was necessary for arriving at a decision, before giving consent to the bifurcation, was not placed before the Kalamnuri Market Committee. We find that the Market Committee did consider the resolutions passed by the different village panchayats that Shirsum be given a status of a separate Market Committee. It is true that all the resolutions are identical, but that, by itself, will not nullify the effect. We are also told that the factors, like, convenience of the agriculturists, distance between the new place of the Market Committee and the villages, etc., were considered. In this view of the matter, we do not think that we can hold that there was no effective consultation with the Market Committee, Kalamnuri.
42. We have also been told that Shirsum would not be a viable Market Committee. But, no material has been placed before us to substantiate this plea. We do not propose to go into the allegations regarding the viability in view of the non production of material for our consideration.
43. Writ Petition No. 4556 of 1998 and Writ Petition No. 4622 of 1998 challenge the bifurcation of Taloda Market Committee into two separate Market Committees, namely, Taloda and Akkalkuwa. The petitions challenge the delegation of the powers under section 44 of the said Act by the State Government to the District Deputy Registrar, The petitioners contend that, having regard to the nature of the power to be exercised, and the character thereof, the Legislature cannot delegate this power to the District Deputy Registrar; and its exercise is dependent on the satisfaction of the State Government.
44. In the return, it has been pointed out that the proposal submitted by the District Deputy Registrar, Co-operative Societies, Dhule, was considered and recommended by the Director of Marketing, Pune. The Marketing Board was also consulted and the State Government, after considering all this material, took a decision to bifurcate. In view of these facts, we do not think that it is necessary to go into the challenge to the delegation of powers contained in paragraph 5 of the petition. Nothing has been pleaded or shown or proved so as to render the delegation invalid. It is also not pointed out as to how the petitioners contend that this delegation is void. The petitioners contend that the powers will have to be exercised for securing efficiency of marketing of agricultural produce; and for that purpose alone. There can be no dispute about the proposition, but whether the District Deputy Registrar under the delegated powers has passed the orders or the State Government itself has passed the orders makes no difference so far as the purpose of the bifurcation is concerned.
45. It was also contended that the bifurcation order was issued when the Code of conduct was in operation. Dhule district was bifurcated into two districts, Dhule and Nandurbar; and the Code of conduct was effective for the Zilla Parishad elections. It was in operation from 5th October 1998 and lasted up to 18th December, 1998. The impugned order was passed by the District Deputy Registrar on 8th October 1998, but the proposal was initiated by resolution some time in July 1994; and further process was on. It is not that the decision to bifurcate was taken during the existence of the Code of Conduct. It appears that on 3-10-1998 itself, even the list of persons to be nominated was finalised by the State Government. If something is done during the existence of the Code of Conduct, the action, by itself, cannot be invalid; but, it would be a breach of the Code of Conduct, and the consequences under the relevant Election Law may follow. But, for that reason, the order cannot be held to be invalid or illegal.
46. No other arguments were advanced before us by the learned Counsel for the appearing parties, than those which we have dealt with as above.
47. In the result, we pass the following orders:
(A) Writ Petition No. 5003 of 1998 challenging the Order dated 23-11-1998 of the District Deputy Registrar, Co-operative Societies, Jalna, bifurcating Jalna Market Committee into two, viz, Agricultural Produce Market Committee, Jalna; and Agricultural Produce Market Committee, Badnapur, District Jalna, is hereby allowed: and the said order is quashed and set aside. Rule is made absolute accordingly. However, in the facts and circumstances, there shall be no order as to costs.
(B) Writ Petition No. 4366 of 1998 challenging the Order dated 11-9-1998 of the District Deputy Registrar, Co-operative Societies, Latur, bifurcating Latur Market Committee into two viz., Agricultural Produce Market Committee, Latur: and Agricultural Produce Market Committee, Renapur District Latur, is hereby rejected. Rule is accordingly discharged. There shall, however, be no order as to costs.
(C) Writ Petition No. 4436 of 1998 and Writ Petition No. 4912 of 1998 challenging the Order dated 30-9-1998 of the District Deputy Registrar, Co-operative Societies, Parbhani, bifurcating Pathri Market Committee into two viz., Agricultural Produce Market Committee, Pathri: and Agricultural Produce Market Committee, Hadgaon (Bk). District Parbhani, are hereby allowed. The said order is hereby quashed and set aside. Rule is accordingly made absolute, with no order as to costs.
(D) Writ Petition No. 4556 of 1998 and Writ Petition No. 4622 of 1998 challenging the order dated 8-10-1998 of the District Deputy Registrar, Co-operative Societies, Dhule, bifurcating Taloda Market Committee into two, viz, Agricultural Produce Market Committee, Taloda: and Agricultural Produce Market Committee. Akkalkuwa, are hereby rejected. Rule therein is discharged accordingly. There shall be no order as to costs.
(E) Writ Petition No. 1651 of 1998 challenging the order dated 5-4-1998 of the District Deputy Registrar, Co-operative Societies, Parbhani, bifurcating the Kalamnuri Market Committee into two viz, Agricultural Produce Market Committee, Kalamnuri: and Agricultural Produce Market Committee, Shirsum, is hereby rejected. Rule is discharged accordingly. No order as to costs.
48. Order accordingly.