Madhya Pradesh High Court
Someshwar Patel vs The State Of Madhya Pradesh on 18 August, 2017
WP-2176-2017
(SOMESHWAR PATEL Vs THE STATE OF MADHYA PRADESH)
18-08-2017
20.7.2017
Shri A.K.Sethi, learned senior counsel with Shri Arpit Oswal, learned
counsel for the petitioner.
Shri Rohit Mangal, learned Govt.Advocate for the respondent No.1/State.
Shri Sunil Jain, learned senior counsel with Shri Kamal Airen, learned
counsel for the respondent No.2.
Arguments heard. Reserved for orders.
(Rohit Arya) Judge
Patil
18.8.2017
Judgment passed separately, signed and dated.
(Rohit Arya) Judge
Patil
THE HIGH COURT OF JUDICATURE BENCH AT INDORE
SINGLE BENCH : JUSTICE ROHIT ARYA
W.P. No. 2176/2017
Someshwar Patel
Vs.
State of M.P. and others
JUDGMENT
Post for 18/08/2017.
(Rohit Arya) Judge.
18/08/2017.
1. Case No. : W.P.No.2176/2017 (O)
2. Parties Name : Someshwar Patel Vs. State of M.P. and others
3. Date of Judgment : 18.8.2017
4. Bench constituted of : Hon'ble Shri Justice Rohit Arya
5. Judgment delivered by : Hon'ble Shri Justice Rohit Arya
6. Whether approved for reporting : Yes
7. Name of Counsels for parties :
Shri A.K.Sethi, learned senior counsel with Shri Arpit Oswal, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt.Advocate for the respondent No.1/State. Shri Sunil Jain, learned senior counsel with Shri Kamal Airen, learned counsel for the respondent No.2.
8. Law laid down : The interpretation of Sections 55(1) and 55(2) of Krishi Upaj Mandi Adhiniyam, 1972 has been made. The exercise of powers by respondent No.2 under Section 55(2) is in conformity with settled principles of law with due advertence to relevant material on record and the impugned order dated 28.3.2017 passed is impeccable in nature.
21. Upshot of aforesaid discussion results in success of the writ petition partly to the extent that the impugned order removing the petitioner as member of the Market Committee and debarring him from being re- elected or re-nominated as member of the Market Committee for a period of six years form the date of such removal under section 55(1) of the Adhiniyam of 1972, is hereby quashed. However, the impugned order removing the petitioner from the post of Chairman of Market Committee and further holding him ineligible for re-election as Chairman or Vice Chairman for remainder of his term of office as member of Market Committee under section 55(2) of the Adhiniyam is hereby affirmed.
9. Significant paragraph numbers : 13 to 21.
(Shailesh Patil) Steno to Hon'ble Shri Rohit Arya, J. 18.8.2017 THE HIGH COURT OF JUDICATURE BENCH AT INDORE SINGLE BENCH : JUSTICE ROHIT ARYA W.P. No. 2176/2017 Someshwar Patel Vs. State of M.P. and others
---------------------------------------------------------------------------------------------- Shri A.K.Sethi, learned senior counsel with Shri Arpit Oswal, learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt.Advocate for the respondent No.1/State.
Shri Sunil Jain, learned senior counsel with Shri Kamal Airen, learned counsel for the respondent No.2.
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JUDGMENT th (Delivered on this 18 day of August, 2017) This writ petition, under Article 226 of the Constitution of India, is directed against the order dated 28/3/2017 (Annexure P/1), whereby Managing Director, M.P. State Agricultural Marketing Board, exercising powers under section 55(1) and 55(2) of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (for short âthe Adhiniyam of 1972â) has removed the petitioner from the post of Chairman and Member of Krishi Upaj Mandi Samiti (hereinafter referred to as âMarket Committeeâ), Indore with further disqualification debarring him from contesting elections or re-nomination for the post of Member of the Market Committee for six years.
2. Before tracing the contours of factual matrix, it will be proper to refer to few provisions of M.P.Krishi Upaj Mandi (Allotment of Land and Structures) Rules, 2009 (hereinafter referred to as Rules of 2009). Rule 3 deals with general principles of allotment and sub- Rule 4 provides that no person shall be alloted more than one plot or structure. Rule 4 provides for reservation of plots and structures to the extent of 10% for SC, ST etc. Rule 5 provides for Publication of advertisement. Rule 8 provides for constitution of auction committee, whereunder for the purpose of conduct of auction and scrutiny of the offers received the auction committee is empowered consisting of Chairman and three Members. In the instant case auction committee consisted of following persons. :-
(1) Shri Someshwar Patel - Chairman(Chairperson) Auction Committee President, Krishi Upam Mandi Samiti, Indore.
(2) Shri Mahendra Singh Chouhan -Member Auction Committee Joint Director, Regional Office, Indore.
(3) Shri O.P.Malviya - Member, Auction Committee Assistant Engineer, Regional Office, Indore.
(Representative of Executive Engineer) (4) Shri R.S.Mandloi - MemberâSecretary,Auction Committee Dy.Collector/Secretary, Krishi Upaj Mandi Samiti Indore.
Rule 10(6) provides for third auction if the market committee does not accept the bid/offer received in the first and second attempt.
3. It is deducible from record that petitioner, consequent upon his election as Member of the Market Committee, was elected as Chairman for the period 22/7/2007 to 22/7/2011; five year term. Thereafter, he has been re-elected as Chairman with effect from 7/1/2013 for five years upto January, 2018.
4. In the year 2009, 88 shops in the premises of Mandi were available for auction and 9 shops out of the said 88 shops i.e. 10% were reserved for SC, ST and OBC class of people, as provided for under Rule 4 of the Rules of 2009.
Market Committee conducted the auction on 14/10/2009 for 88 shops fixing the upset price at Rs.1.834 lacs. Bids offered for unreserved shops ranged from 20.32 lacs to 31.54 lacs per shop. Bids offered for reserved shops ranged from 22.26 lacs to 33.51 lacs per shop by 44 bidders. Only 55 successful bidders for un- reserved shops deposited the requisite amount within time prescribed. Remaining 33 shops (24 of un-reserved and 9 of reserved category) were available for re-auction. Advertisement was issued for second auction and the auction was conducted on 7/3/2011 for aforesaid 33 shops with the upset price fixed at Rs.7.64309 lacs. The bids offered for unreserved 24 shops ranged from 23.31 lacs to 29.05 lacs, while the bids offered by 14 bidders for 9 reserved shops ranged from 8.95 lacs to 9.75 lacs. Thereafter, the nine reserved shops were finalized for nine bidders by the Auction Committee.
5. It appears that a complaint was made by one Bablu Kumar Suresh Kumar Birhe to the Lok Ayukta alleging favoritism, nepotism and glaring irregularities in the matter of conducting auction by the Auction Committee on 7/3/2011 in relation to 9 shops reserved for SC, ST and OBC category, in the context of sharp contrast in bid prices offered for such shops in the auctions held in the years 2009 and 2011, as detailed above. Thereafter, the said complaint was forwarded by the Lokayukta vide letter No./1650/Ja.Pra. 121/2011 dated 6/7/2011 to M.P. State Agricultural Marketing Board (Annexure R/1) and on the orders of the Deputy Director, Mandi Board, a fact finding enquiry was held. In the fact finding enquiry, it was found on the basis of record of Market Committee that there had been serious irregularities in the auction so held.
One Sunil Birhe, Proprietor, Sai Nath Vegetable Company, though filed an affidavit with the stipulation that he is annexing the caste certificate, but, the same was acknowledgment of application made to Collector, Indore for obtaining caste certificate and not caste certificate as such. Without caste certificate though he was ineligible to bid, yet, was permitted.
Likewise, one Santosh Kumar Jairam Das Bagwar filed an affidavit to the effect that he belonged to reserved category, but he filed caste certificate of one Rupesh Kumar Bagwar and not of himself and the caste certificate of 1991 presented by him in respect of his caste status was not attested by gazetted officer. Therefore, he was also not eligible to participate in the bid. Besides, three members of the same family namely Nitin Bhola Singh Bhatkariye, Sachin Bhola Singh Bhatkariye, Vipin Bhola Singh Bhatkariye and Shriram Vegetable Company, Indore, had all participated in the bidding without submitting details of annual turnover of their firms, giving rise to serious suspicion that the aforesaid three members though bidding independently were in fact of the same family involved in joint and common business.
6. However, the aforesaid fact finding enquiry was not finalized, at that point of time, due to pendency of writ petitions before this Court in the context of aforesaid auction. However, no sooner the W.P. Nos. 2705/11 and 2905/11 were dismissed by this Court, the fact finding enquiry report was submitted to the respondent no.2- Managing Director on 7/4/2015. The Enquiry Officer therein found that irregularities and illegalities in the auction held on 7/3/2011, as detailed above, were in contravention to the Rules of 2009, as allotment of shops to three members of the same family engaged in common business was in violation of Rule 3(4) thereof. Besides the Market Committee was found to be negligent in the matter of verification of caste status of bidders. It was also found that though the Secretary of Market Committee had drawn attention about the sharp difference/contrast in the bids offered for 9 reserve category shops in the auction held in 2009 vis-a-vis those received for the same shops in the auction held in 2011, yet the Market Committee remained unmindful of the same. The report further stated that, as a matter of fact, Auction Committee, looking to the aforesaid glaring difference in bid amounts, instead of taking guidance from the higher Authorities and deciding to conduct third re-auction under Rule 10(6) of the Rules of 2009, finalized the auction.
7. On the basis of aforesaid fact finding enquiry, a show-cause notice was issued to the petitioner on 15/7/2015 (Annexure P/3). Petitioner filed reply (Annexure P/4) thereto on 1/9/15. After submission of reply, petitioner was also afforded personal hearing on 9/1/17 and 30/1/17. It appears that during the course of enquiry, a joint report of Dy. Director and Executive Engineer, Indore dated 2/7/16 as regards market value of the shops based on their strategic location, as well as, enquiry report of Collector dated 5/11/16 based on Collector Guidelines of 2009 as regards valuation of the nine reserved shops were also obtained. Copies of aforesaid both the reports were also supplied to the petitioner. Besides, commercial rates of plots of land as per Government Guidelines were also obtained from Dy.Registrar, Indore and copy thereof was also supplied to the petitioner.
8. Respondent no.2, upon due consideration of the reply, submitted by the petitioner, contentions advanced during the course of hearing and material placed on record by both the parties including the aforesaid reports of Dy. Director, Collector and Dy.Registrar, has recorded comprehensive findings to the effect that there is a sharp contrast in the bids offered for 9 reserved shops in the years 2009 and 2011. As such, there was unfairness in the conduct of auction by the Auction Committee; favoritism and nepotism had been extended to members of the same family; there was ignorance/avoidance of note of Secretary in the deliberations of the Market Committee on 15/3/11; and in view of substantive difference in bid prices in respect of 9 reserved shops in the auctions held on 14/10/2009 and 7/3/2011 i.e. in the range of 22.26 lacs to 33.51 lacs obtained in the year 2009 offered by 44 bidders vis-a-vis 8.95 lacs to 9.75 lacs obtained in the year 2011 offered by 14 bidders, the Auction Committee, in all fairness, ought to have resorted to third auction as contemplated under Rule 10(6) of the Rules of 2009. That was not done and in a hurried manner the auction of 2011 was finalized in favour of 9 bidders for the reserved category shops. It has also been observed in clause 5.5 of the order that all Committee members since are jointly and severally responsible for the serous negligence and misconduct, therefore, departmental action was initiated against all the members of the Auction Committee summoned on 7/3/2011 by the M.P. State Agricultural Marketing Board. Thereafter, the impugned order was passed under sections 55(1) and 55(2) of the Adhiniyam of 1972, against the petitioner. Enquiry on complaint filed before the Lokayukt is still pending consideration.
9. It further transpires from the record that at a later stage the aforesaid allotment of shops was cancelled by the Market Committee on the directions of Joint Director, M.P. State Agriculture Marketing Board made vide communication dated 29/12/16 (Annexure P/9). The corresponding communications to respective shop holders are annexed to the writ petition as Annexure P/10 (Colly). It also transpired during the course of arguments that the aforesaid orders of cancellation of allotments are subject matter of writ petition pending consideration before this Court.
10. Learned counsel for the petitioner, taking exception to the impugned order has made following submissions:-
(i) Petitioner is an elected Chairman of the Market Committee for a term of 5 years (7/1/13 to January, 2018). The allegations in the show-cause notice dated 15/7/15 are of the period between 2009 to 2011 while petitioner was Chairman of the Market Committee in his previous tenure which had already expired on 22/7/2011. As such, the show-cause notice itself is bad in law and without jurisdiction for the reason that petitioner, as Chairman in the second term, could not have been subjected to show-cause notice containing allegations of his prior term. To bolster his submission, learned counsel placed reliance on decision of Gujrat High Court in the case of Ajitsinh R. Jadeja Vs. State of Gujrat (AIR 2009 Gujarat 171).
(ii) In the alternative, it is submitted that the show-cause notice dated 15/7/2015 served upon the petitioner, while working as Chairman of the Market Committee, contain allegations while he was Chairman of the Market Committee in his earlier term. As such, action, if any, could have been taken only under section 55(2) and not 55(1) of the Adhiniyam of 1972. Therefore, petitioner has been subjected to double jeopardy by invocation of powers not vested in respondent no.2. For this, reliance has been placed on decision of Division Bench in the case of Biharilal Vs. State (1983 JLJ 757).
(iii) The proceedings initiated against the petitioner under sections 55(1) and 55(2) of the Adhiniyam are of the nature of quasi judicial proceedings and this is settled position of law. Learned counsel refers to judgment of Hon'ble Apex Court in the case of Ravi Yashwant Bhoir Vs. Collector ((2012)4 SCC 407) and submits that it was imperative and obligatory on the part of respondent no.2 to have strict adherence to provisions of the Adhiniyam of 1972 and appropriate safeguards and protection akin to principles of natural justice. Besides, looking to the serious consequences flowing from exercise of powers under section 55(1) and 55(2) of the Adhiniyam of 1972, respondent no.2 was obliged to apply its mind to the allegations, reply thereto and material placed on record meticulously before reaching a decision. Petitioner since was not allowed to participate in the enquiry held before submission of report by the Collector dated 5/11/16 and the joint report dated 2/7/16, though copies thereof were supplied to him, before the same was acted upon by respondent no.2, the said enquiry was vitiated.
(iv) The decision for allotment of 9 reserved shops to 9 reserve category bidders was upon the deliberations of entire Auction Committee and not of the petitioner alone. Likewise, the finalization thereof on 15/3/11 was by all the members of the Market Committee. Hence, petitioner cannot be singled out in attributing misconduct and negligence on his part to justify penalty under sections 55(1) and 55(2) of the Adhiniyam of 1972. Even otherwise, the allegation of loss to respondents in the matter of finalization of bids of 9 reserved shops has no foundation, as comparison of bids of 2009 and 2011 is totally misconceived and misdirected as none of the bidders of 2009 came forward to deposit the bid amount for their bids against 9 reserved shops.
Therefore, the alleged loss is self styled notional loss and could not have been pressed into service for invoking the provisions of section 55(1) and 55(2) of the Adhiniyam of 1972. In any case, since the allotments made by the Auction Committee and approved by the Market Committee on 15/3/2011 have been cancelled on 27/1/17 though on the orders of M.P. State Agriculture Marketing Board dated 29/12/2016, the impugned order, even otherwise, cannot be allowed to stand.
11. Per contra, Shri Sunil Jain, learned Senior Counsel and Additional Advocate General has made following submissions:-
(i) In the light of provision under section 59 of the Adhiniyam of 1972, petitioner has an alternative, efficacious and expeditious remedy of filing an appeal, therefore, the writ petition deserves to be dismissed. Learned counsel relied upon order of the co-ordinate Bench dated 13/12/16 passed in W.P.No.3750/16 and that dated 11/5/16 in W.P. No.3332/16.
(ii) Since petitioner held the post of Chairman in his first term and also in second term by virtue of being member of Market Committee, therefore, even if allegations levelled against him relate to his tenure as Chairman, respondent no.2 is not precluded from taking action against the petitioner under sections 55(1) and 55(2) of the Adhiniyam of 1972, as 55(1) deals with removal of members imposing disqualification of re-election or re-nomination as Member of Market Committee for six years and 55(2) provides for removal of Chairman or Vice Chairman with further disqualification of re-election as Chairman or Vice Chairman during the remainder of his term. In this behalf, learned counsel relied upon decision of Division Bench of this Court in Ram Singh Vs. State of M.P.(1991 MPLJ 835).
(iii) In the enquiry initiated against the petitioner by the Additional Director, M.P.State Agricultural Board concluded vide his report dated 7/4/15, he was given due opportunity of submission of reply and opportunity of hearing and documents viz. enquiry reports detailed above were supplied to him and it was only upon due consideration of the entire material placed on record, that the impugned order under sections 55(1) and 55(2) of the Adhiniyam of 1972 was passed. As such, there has been strict compliance of principles of natural justice and fair play.
(iv) Petitioner has not been discriminated in action for misconduct and neglect in the matter of finalization of bids pursuant to auction dated 7/3/2011 and all the members of the Auction Committee have been departmentally proceeded against. In this regard, learned counsel referred to para 5.5 of the impugned order and para 6 of the counter affidavit, as well as, Annexure R/6, to which there is nothing in the rejoinder.
(v) Petitioner, as Chairman of the Auction Committee and also that of Market Committee, despite having been pointed out by the Secretary of the Market Committee the factum of glaring difference in bid prices received for 9 reserve category shops in the years 2009 and 2011, maintained blissful silence and did not deliberately act upon the same. Conduct of the petitioner tantamount to âremiss in discharge of dutyâ as well within meaning of Section 55(2) of the Act. As a matter of fact, instead of approving the aforesaid auction sale, petitioner ought to have resorted to the provisions of Rule 10(6) of the Rules of 2009 and conducted re-auction (third auction), but no such steps were taken.
(vi) That apart, the factum of favoritism and nepotism has also come on record in the fact finding enquiry relating to three members of the same family offering bids with marginal difference touching the upset price replacing a well concerted and organized method adopted by such persons in offering bids to defeat the fair auction tantamounting to cartel formation and also being contrary to the provision as contained in Rule 3(4) of the Rules of 2009.
Therefore, looking to the gravity and seriousness of allegations and its repercussion in the public eyes tantamouning to grave misconduct and negligence, it was considered fit to remove the petitioner from the post of Chairman of Market Committee and also disqualify him from being re-elected or re-nominated as Member for 6 years under sections 55(1) and 55(2) of the Adhiniyam of 1972. As such, no illegality has been committed and the judgment in the case of Ravi Yashwant Bhoir (Supra) relied on by the petitioner, being distinguishable on facts, has no application to the facts in hand.
(vii) The fact of cancellation of shops on 27/1/17 itself shows that the auction finalized by the Auction Committee and Market Committee chaired by the petitioner was vulnerable and not liable to be accepted. That apart, merely cancellation of allotment of shops subsequently, shall not provide a ground to the petitioner to gain premium against misconduct and negligence committed by him while finalizing the shops under auction sale.
12. Heard, learned counsel for the parties.
13. Before adverting to contentions advanced by either party on merits, it is expedient to deal with objection as against maintainability of this petition. Learned counsel for the respondent state contends that in view of section 59, petitioner has alternative, expeditious and efficacious remedy of filing revision against the impugned order passed under section 55 of the Adhiniyam of 1972. The objection, as a matter of fact, may not detain us any longer in view of division bench judgment of the Court in the case of Biharilal ( Supra) wherein the Division Bench held that section 59 does not contemplate remedy to delinquent intending to question an order passed against him under Section 55 of the Adhiniyam of 1972. It appears that the learned Single Judge while disposing of W.P. Nos.3750/16 and 3332/16 relegating the petitioners therein to file revision under section 59 before the competent Authority prescribed therein was not apprised of the judgment of the Division Bench in the case of Bihari Lal ( Supra). Besides, it appears that the learned Single Judge has not addressed on the issue of availability of remedy of appeal against merits of the order passed under Section 55 of the Adhiniyam. It is settled law that scope of jurisdiction of revision and appeal are distinct in character and in substance {Lachhman Dass Vs. Santokh Singh (1995) 4 SCC 201, State of U.P. Vs. Udai Narayan and another (1999) 8 SCC 741, James Joshph Vs. State of Kerala (2010) 9 SCC 642 and Kamla Devi Vs. Kushal Kanwar and another (2006) 13 SCC 295 referred to} and, by no stretch of imagination, they can be construed to be substitute to each other. Under such circumstances, the orders of learning single judge are per incurim in nature and of no assistance to the respondent-State. In the opinion of this Court, power under section 59 of the Adhiniyam of 1972 conferred upon the Managing Director and the State Government are of limited nature to adjudge legality or propriety of the decision taken or order passed and to regulate the proceedings of the Committee in the hands of Managing Director and that of the Managing Director in the hands of State Government. Such provision cannot be construed to have scope of appellate jurisdiction as the appellate authority is required to examine the merits of the order impugned on facts and in law with due advertence to the material place on record, as well as, legality, justifiability, propriety of the findings/conclusions drawn by the Authority passing the impugned order, whereas revisional authority has no power to re-assess and re-appreciate the evidence unless the statute specifically confers on it that power. This limitation is implicit in the concept of revision itself. Hence, this Court is in respectful agreement with the ratio laid down in the case of Bihari Lal ( Supra). Accordingly, the objection against maintainability of the petition is hereby overruled and rejected.
14. The first contention of petitioner questions the legality, validity and propriety of the show-cause notice dated 15/7/15 on the premise that imputations therein are not of the present tenure of the petitioner i.e. 7/1/2013 to January 2018, but, in fact, are of his previous tenure i.e. 22/7/2007 to 22/7/2011. According to the petitioner, action under Section 55(1) can be taken only in the matter of misconduct or neglect in performing duties as member and under Section 55(2), in the matter of misconduct or neglect or remiss in discharge of duty as Chairman or Vice Chairman but only of the current tenure and not otherwise.
15. To address on this contention it is considered apposite to reiterate nature and purpose of Mandi Adhiniyam, 1972 in furtherance of its aims and objects; The Mandi Adhiniyam, 1972 has been enacted to provide benefit to the agriculturists and also to regulate the sale and purchase of agricultural produce in order to save the exploitation of agriculturists. The Act, as a matter of fact, is a beneficiary legislation and the purpose thereof is to improve the standard of marketing services; to provide fair trading in the markets and to safeguard the health and sanitation of the users of market. Besides, to ensure that Commission agents do not have any opportunity to exploit there dominating position and to make illegal and excessive commission at the cost of the producers.
To achieve the aforesaid purpose, the Adhiniyam of 1972, inter alia, makes provision for establishment of markets (Chapter II), constitution of market committees (Chapter III), conduct of business and powers and duties of the Market Committee (Chapter IV). Chapter X provides for control of the Managing Director into the affairs of the Market Committee, removal of members, Chairman and Vice Chairman of Market Committee and supersession of Market Committee etc. including the power to call for proceedings of the Market Committee. Section 58 in this chapter provides for liability of present or past chairman, vice chairman etc. for loss, waste or miss-application etc. and empowers the Managing Director to conduct enquiry either himself or through other officer subordinate to him, by order in writing, in that behalf to enquire into, amongst others, in the matter of conduct relating to application of money or other property belonging to or under the control of such Market Committee, resulting into loss or deficiency or gross negligence or misconduct or misappropriation etc. etc. Section 59 provides for power of the Managing Director to call for proceedings of Market Committee either on own motion or on application made to him and examine the proceedings of any Market Committee as to the illegality proprietary of any decision taken or order passed and as to the regularity of the proceedings the Committee. If in any case, it appears to the Managing Director that such decision or order or proceeding so called for should be modified, annulled, reversed or remitted for reconsideration, he may pass such order as he may deem fit. Provided that the aforesaid power is subject to proviso that no order shall be passed under sub-section (1) without giving reasonable opportunity of hearing to the parties affected thereby. The aforesaid power is same in the hands of state government with regard to the proceedings conducted by the Managing Director. As such there is effective and pervasive control of the Managing Director over the affairs of the Market Committee and on the conduct of business and activities of the members constituting the Market Committee including the Chairman or the Vice Chairman.
Section 17 in chapter IV provides for power and duties of the Market Committee. Sub-section (2) inter alia empowers to construct, manage and maintain market yards in the market area amongst other duties contained therein to ensure effective working of the Market Committee.
The Rules of 2009 have been framed to regulate activities of the market committee in the matter of allotment of land and structures in the context of its duties under subsection 2 of section 17, under which Auction Committee headed by the petitioner has accepted and finalized bids of nine shops earmarked for reserved category in the auction held on 7/3/2011 for the bids ranging from 8.95 lacs to 9.75 lacs.; genesis of the controversy involved in this petition.
16. Now turning to facts of the case, a complaint was filed in the office of Lokayukt in the year 2011 in the matter of auction of nine reserve shops conducted on 7/3/2011. The complaint was processed and thereafter made over to M.P. State Agricultural Marketing Board. Thereafter, a fact finding enquiry was though held but was not further processed/finalized due to pendency of W.P. Nos. 2705/11 and 2905/11. However, no sooner the aforesaid writ petitions got dismissed, the enquiry report was furnished to respondent no.2 whereafter show-cause notice was issued to the petitioner. As such, petitioner's conduct has been under investigation since 2011. The Managing Director has power and authority to examine, on his own motion, and call for proceedings of any Market Committee as to legality or propriety of any decision taken even in the cases of past and present Chairman. Hence, no exception to the show-cause notice can be allowed to be taken as canvassed by the petitioner. As discussed above, the underlying policy of the Adhiniyam of 1972 is to ensure regulation of markets for sale or purchase of market produce in a fair manner within the market yard, with a paramount object to protect the agriculturists from exploitation. The aforesaid policy further extends to securing a market yard by the Market Committee as contemplated in subsection (2) of section 17 of the Adhiniyam of 1972, whereunder Market Committee is required to construct, maintain and manage market yards and sub-market yards etc. etc., as well as, provide facilities for the marketing of agricultural produce, in furtherance whereof the Rules of 2009 have been framed. If the conduct of the Chairman of Market Committee and Auction Committee is found to be vulnerable in conducting and finalizing auction sale of market shops prejudicial and detrimental to the interest of Mandi, the same can always be inquired into for appropriate action, albeit the same needs to have reasonably close proximity with the tenure of such person being a member, Vice Chairman or Chairman of the Market Committee. That apart, Section 55 of the Adhiniyam of 1972 does not expressly provide that misconduct or neglect should be of the present tenure. As such, judgment of Gujarat High Court in the case of Ajitsinh (Supra) is found to be distinguishable in nature particularly regard being had to provisions of section 58 and 59 of the Adhiniyam of 1972, as no such provision appears to be involved therein and dealt with. However, the first contention is rejected.
17. The second contention relates to justifiability of invocation of powers under section 55(1) and 55(2) of the Adhiniyam of 1972. According to the petitioner, the imputation in the impugned show- cause notice dated 15/7/2015 are of the period when the petitioner was chairman of the Market Committee and the show-cause Notice has also been issued when the petitioner is chairman of the Market Committee. None of the allegations in the impugned show-cause notice relate to misconduct or neglect of the petitioner as member of the Market Committee. As such Section 55(1) has no application to the facts of the case, therefore, the punishment debarring the petitioner for 6 years from being re-elected or re-nominated as member of the Market Committee from the date of his removal is patently illegal and without jurisdiction.
For ready reference, sections 55(1) and 55(2) are quoted thus:-
55. Removal of Member, Chairman and Vice-
Chairman of Market Committee. - [(1) The Managing Director may on his own motion or on a resolution passed by a majority of two-third of the members constituting the Market Committee for the time being remove any member of the Market Committee for misconduct or neglect of or incapacity to perform his duty and on such removal he shall not be re-elected or re-nominated as a member of the Market Committee for a period of six years from the date of such removal :
Provided that no order of such removal shall be passed unless such member has been given a reasonable opportunity of showing cause why such order should not be passed.
(2) The Managing Director may remove any Chairman or Vice-Chairman of a Market Committee from his office, for misconduct, or neglect of or incapacity to perform his duty or for being persistently remiss in the discharge of his duties and on such removal the Chairman or Vice-
Chairman, as the case may be, shall not be eligible for re-election as Chairman or Vice-Chairman during the remainder of his term of office as member of Market Committee :
Provided that no order of removal shall be passed unless the Chairman or Vice-Chairman, as the case may be, has been given a reasonable opportunity of showing cause why such order should not be passed.
18. In the opinion of this court, for application of section 55(1) or section 55(2) of the Adhiniyam of 1972, the following twofold test is required to be applied:-
(1) relatability of the allegations to the post of the delinquent i.e. whether the allegations pertain to the period when he was Member, or, whether pertain to the period when he was Chairman/ Vice chairman of the Market Committee.
(2) the status of the delinquent on the date of issuance of show Cause Notice.
For example, if the allegations against delinquent are of the period when he held the post of Chairman, but show-cause notice was served upon him while he was a member, he may be proceeded under Section 55(1) in terms of Division Bench judgment in the case of Ram Singh (Supra). On the other hand, if allegations made against a delinquent are of the period when he held post of Chairman and show Cause Notice was also served upon him when he was a Chairman, then he can only be proceeded under section 55(2) in terms of judgment in the case of Bihari Lal (Supra) and not under Section 55(1) of the Adhiniyam of 1972.
Now, in the instant case allegations against the petitioner are of the period when he was Chairman and show-cause notice has also been issued when he is Chairman, therefore, section 55(1) has no application to the facts of the case. The contention of learned counsel for the respondent-State that as the petitioner is Chairman of the Market Committee by virtue of being member of the Market Committee, therefore, even if the show-cause notice covers the tenure of petitioner as Chairman and notice is also served upon him when he is Chairman, it shall not make any difference, cannot be countenanced, as both sections deal with different class of persons viz. Members under section 55(1) and Chairman and Vice Chairman under Section 55(2) of the Adhinyam of 1972 with different nature of punishments. Hence, the impugned order, to the extent, it debars the petitioner from being re-elected or re- nominated as a member of the Market Committee for a period of six years from the date of such removal, is held to be in excess of authority and jurisdiction and, therefore, cannot be sustained in law and on facts.
18. The third and fourth contentions of the petitioner relate to justifiability of the action under section 55(2) of the Adhiniyam of 1972 on the ground of non observance of principles of natural justice while removing the petitioner from the post of Chairman and also holding him ineligible for re-election as Chairman or Vice Chairman during the remainder of his term of office as member the Market Committee on three broad propositions - (i) denial of equality before law and equal protection of law; discrimination under Article 14 of the Constitution (ii) no loss to the Market Committee having been caused due to cancellation of Auction of 2011 subsequently and (iii) Looking to nature of power under Section 55(1) and 55(2) of the Adhiniyam, 1972 and serious consequences flowing therefrom in the matter of removal of elected member and the Chairman or Vice Chairman of Market Committee proceedings thereunder are quasi judicial in nature. (2012) 4 SCC 407 relied upon.
The Adhiniyam of 1972 does not provide for any express rules or procedure to be followed for proceeding under section 55(1) and (2) thereof. Nevertheless, section 55 itself contemplates that before action is taken against a delinquent, show-cause and reasonable opportunity of hearing is required to be afforded to him.
As discussed in the preceding paragraphs unfolded facts emanating from the record, petitioner was issued show-cause on 15/7/15 calling upon him to file reply. Reply has been filed by the petitioner on 1/9/15. Petitioner has been afforded opportunity of personal hearings on 9/1/17 and 30/1/17. He has also been supplied copies of report of Dy.Director dated 2/7/16 as regards market value of the shops based on their strategic location and that of 5/11/16 based on Collector Guidelines as regards valuation of the nine reserved shops. Thereafter, on detailed submission of the reply submitted by the petitioner, the impugned order has been passed. In the opinion of this Court, there is no violation of principles of natural justice in the matter of action taken against the petitioner under section 55(2) of the Adhiniyam of 1972. Hence, challenge in that behalf is hereby rejected. Further, contention of the petitioner that he has been discriminated in the matter of imposition of punishment on the premise that decision of acceptance of bids and allotment of shops of 9 reserved category shops was a joint decision of the Auction Committee constituted under section 8 of the Rules of 2009 and the same has also been resolved by the Market Committee in its meeting dated 15/3/11 cannot be countenanced as the same is dehors the facts on record in the light of the facts relating to action taken against the other Committee members as detailed in paragraph 5.5 of the impugned order and para 6 of the counter- affidavit. Therefore, as all the members since have been proceeded against. Hence, plea of discrimination and violation of Article 14 of the Constitution is hereby rejected. Besides, the Lokayukt enquiry is also in contemplation/pending in that behalf. To deal with the contention that there was no loss to the Market Committee, it is expedient to reiterate that section 55(2) of the Adhiniyam of 1972 does not contemplate financial loss to Market Committee as condition precedent for initiating action of removal of Chairman or Vice Chairman of the Market Committee from his Office for misconduct or neglect or remiss in discharge of his duties.
The words misconduct and negligence are not defined in the Act, therefore, the dictionary meaning in law/judicial dictionaries and judicial precedences are taken help of to appreciate import thereof under Section 55 of the Act. The Black's Law Dictionary, 6th Edition at Page 999 defines misconduct thus :-
â A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.â In P.Ramanatha Aiyar's Law Lexicon, 3rd Edition, at Page 3027, the term misconduct has been defined as under :-
âThe word âmisconductâ is a relative term, has to be construed with reference to the subject- matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. âMisconductâ literally means wrong conduct or improper conduct.â In the case of M.M.Malhotra Vs. Union of India, (2005) 8 SCC 351 (Paras 17 and 22), the Hon'ble Supreme Court has defined the misconduct in an inclusive manner as follows :-
â....... The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. Thus the word âmisconductâ is not capable of precise definition. But at the same time though incapable of precise definition, the word âmisconductâ on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. ..............â The word âNegligenceâ M.S.Grewal Vs. Deepchand Sood, (2001) 8 SCC 151, the Hon'ble Supreme court has given lucid inclusive meaning of negligence to the following effect :-
â....... Negligence in common parlance means and implies âfailure to exercise due care, expected of a reasonable prudent personâ. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his Act. ..........â
19. Petitioner being Chairman of the Market Committee and Auction Committee, not only had an onerous responsibility and accountability for securing financial interests of the Market Committee, but also for ensuring fairness in auction proceedings in the eyes of public thus safeguarding the process from allegations of favoritism and nepotism as well as extended area of vulnerability. A bare perusal of the self contained comprehensive impugned order suggests that while in the first auction held on 14/10/2009 as against upset price of Rs.1.834 lacs for 88 shops including 9 reserved shops, 44 bidders had made the bids for 9 reserved shops with bid amount ranging from 22.26 lacs to 33.51 lacs, whereas, in the second auction held on 7/3/2011 as against upset price of Rs.7.64309 lacs, 14 bidders had made the bids for 9 reserved shops with bid amount ranging from 8.95 lacs to 9.75 lacs. As such, there was sharp contrast or substantial difference in the bid offers of 2009 and 2011 for the 9 reserved shops and this difference in price of bids could not have been blinked away by the petitioner. Besides, market value of shops did rise with passage of time as well informed reports referred in the impugned order explicitly spell out. In all fairness, he ought to have resorted to third auction as contemplated under Rule 10(6) of the Rules of 2009, as rightly pointed out in the impugned order. There is no reply forthcoming in the reply submitted by the petitioner that why he has not taken recourse to third auction under the aforesaid provision of Rules of 2009. That apart, the petitioner ignored and maintained a blissful silence on the aforesaid difference of prices of bids though pointed out by the Secretary of the Market Committee while approving the bids in 2011. Besides, even in the deliberations of the Auction Committee, the aforesaid glaring fact is not found to have been discussed before finalization of the bids of such 9 persons (the Auction Committee deliberations are at Page 126 onwards annexed to the counter affidavit of respondent no.2). Respondent no.2 has also taken note of the fact that three members of the same family having common business, had in fact, formed a cartel to control the bid prices of shops by marginally increasing the same from upset price giving rise to unfair trade practice (Union of India v. Hindustan Development Corporation (1993) 3 SCC 499 referred to) . Petitioner was obliged to verify as to whether such persons could be considered in the light of Rule 3(4) of the Rules of 2009. That was not done. It was incumbent upon the petitioner and other Committee members to ensure that such concerted attempts on the part of members of one family among the nine bidders are not allowed to be encouraged and precipitated.
The judgment reported in (2012) 4 SCC 407 (Ravi Yashwant Bhoir Vs. District Collector, Raigad & Anr.) relied upon by learned counsel for the petitioner in support of his contention against action under Section 55(2) has been carefully perused. The principle underlying the decision is beyond the pale of any doubt as consistently it has been held that nature of power under a statute empowering the authority to remove an elected member is quasi judicial in nature and required to be examined with care and caution. Bachhittar Singh Vs. State of Punjab (AIR 1963 SC
395), Union of India Vs. H.C.Goel (AIR 1964 SC 364). However, the aforesaid judgment is distinguishable on facts looking to the nature of the allegations against the petitioner and the scope of Section 55(2) qua the facts of the case in the judgment in reference and the relevant provisions of Maharashtra Municipal Council Act, 1965. Scope under Section 55(2) is wider dealing with misconduct, negligence and persistent remiss in discharge of official duty as against misconduct and disgraceful conduct under the Maharashtra Municipal Council Act, 1965; contours of powers to examine facts of a given case.
20. Consequently, this Court is of the opinion exercise of powers by respondent No.2 under Section 55(2) is in conformity with settled principles of law with due advertence to relevant material on record and the impugned order dated 28.3.2017 passed is impeccable in nature.
21. Upshot of aforesaid discussion results in success of the writ petition partly to the extent that the impugned order removing the petitioner as member of the Market Committee and debarring him from being re-elected or re-nominated as member of the Market Committee for a period of six years form the date of such removal under section 55(1) of the Adhiniyam of 1972, is hereby quashed. However, the impugned order removing the petitioner from the post of Chairman of Market Committee and further holding him ineligible for re-election as Chairman or Vice Chairman for remainder of his term of office as member of Market Committee under section 55(2) of the Adhiniyam is hereby affirmed. Interim order granted on 4.4.2017 stands vacated. No order as to costs.
(Rohit Arya) Judge 18/08/2017 Patil (ROHIT ARYA) JUDGE