Bombay High Court
Ganesh Sarjerao Pandarkar vs The State Of Maharashtra And Others on 4 July, 2019
Author: S. V. Gangapurwala
Bench: S. V. Gangapurwala, Arun M. Dhavale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12084 OF 2015
1. Belhekarwadi Vividh Karyakari Seva
Sahkari Society Ltd. At village
Belhekarwadi, Tq. Newasa,
Dist. Ahmednagar
Shri Dattatraya Maroti Belhekar,
Age : 58 Years, Occu. : Agri.,
R/o Village Belhekarwadi, Tq. Newasa,
Dist. Ahmednagar.
2. Shri Dattatraya Maroti Belhekar,
Age : 58 Years, Occu. : Agri.,
R/o Village Belhekarwadi, Tq. Newasa,
Dist. Ahmednagar.
3. Agricultural Produce Market Committee,
Newasa, Tq. Newasa, Dist. Ahmednagar,
Through its Chairman
Kadubal S/o Baburao Kardile,
Age : 60 Years, Occu. : Agril.,
R/o village Gidegaon, Tq. Newasa,
Dist. Ahmednagar.
4. Kadubal S/o Baburao Kardile,
Age : 60 Years, Occu. : Agril.,
R/o village Gidegaon, Tq. Newasa,
Dist. Ahmednagar.
5. Pandurang S/o Shrirang Nipunge,
Age : 57 Years, Occu. : Agril.,
R/o village Mukindpur,
Tq. Newasa, Dist. Ahmednagar. .. Petitioners
Versus
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1. The State of Maharashtra,
Through its Principal Secretary,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
2. The Hon'ble Minister,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
3. The Director of Marketing,
Pune.
4. The District Deputy Registrar,
Co-operative Societies,
Ahmednagar.
5. The Assistant Registrar,
Co-operative Societies,
Ahmednagar.
6. Bhagwan S/o Eknath Gangavane,
Age : 55 years, Occu. : Agril.,
R/o village Mahalaxmi Hiware,
Tq. Newasa, Dist. Ahmednagar.
7. Devidas S/o Sadashiv Salunke,
Age : 58 Years, Occu. : Agril.,
R/o village Bhaneshivara, Tq. Newasa,
Dist. Ahmednagar.
8. Dadasaheb S/o Damodhar Murkute,
Age : 50 Years, Occu. : Social Service & Agril.,
R/o At Post Deogaon, Tq. Newasa,
Dist. Ahmednagar.
9. The Advocate General,
High Court Bombay - 32. .. Respondents
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Shri R. N. Dhorde, Senior Advocate i/by Shri V. R. Dhorde,
Advocate for Petitioners
Shri V. J. Dixit, Senior Advocate appointed as Special Counsel
for Respondent Nos. 1 to 5 and 9.
Shri P. S. Pawar, Advocate for Respondent Nos. 6 to 8.
WITH
WRIT PETITION NO. 2443 OF 2016
1. Agricultural Produce Market Committee
Bhusawal, Tq. Bhusawal,
Dist. Jalgaon, through its Chairman
Sopan S/o Baliram Bharambe,
Age : 51 years, Occu. : Agril. & Social Service,
R/o village Sakri, Tq. Bhusawal,
Dist. Jalgaon.
2. Sopan S/o Baliram Bharambe,
Age : 51 years, Occu. : Agril. & Social Service,
R/o village Sakri, Tq. Bhusawal,
Dist. Jalgaon.
3. Subash Rajaram Patil,
Age : 49 Years, Occu. : Service & Agril.,
R/o Sunasgaon, Tq. Bhusawal,
Dist. Jalgaon. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
2. The Hon'ble Minister,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
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3. The Director of Marketing,
Pune.
4. The District Deputy Registrar,
Co-operative Societies,
Jalgaon.
5. The Assistant Registrar,
Co-operative Societies,
Bhusawal.
6. Vasant S/o Pandharinath Patil,
Age : 53 Years, Occu. : Social Service & Agril.,
R/o Juna Satara, Khadwadi at Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
7. Ulhas S/o Pandit Borole,
Age : 45 Years, Occu. : Contractor & Agril.,
R/o Deepnagar, Nimbhora,
Tq. Bhusawal, Dist. Jalgaon.
8. Sanjay S/o Waman Savakare,
Age : 45 Years, Occu. : Social Service,
R/o Jamner Road, Professor Colony,
Back side of Mukesh Medical,
Near Mahadeo Temple, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
9. The Advocate General,
State of Maharashtra, Mumbai. .. Respondents
Shri R. N. Dhorde, Senior Advocate i/by Shri V. R. Dhorde,
Advocate for Petitioners
Shri V. J. Dixit, Senior Advocate appointed as Special Counsel
for Respondent Nos. 1 to 5 and 9.
Shri R. S. Deshmukh, Advocate h/f Shri Y. R. Dayama, Advocate
for Respondent Nos. 6 and 7.
The Respondent No. 8 is served.
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WITH
WRIT PETITION NO. 3268 OF 2016
Sanjay Tukaram Autade,
Age : 41 Years, Occu. : Chairman of
Super Agricultural Produce Marketing
Committee, Aurangabad,
Shri Chatrapati Shivaji Maharaj
Bazar Sankul Sevabhai Sanstha,
Jadhavwadi, Aurangabad,
R/o Harsool, Tal. & Dist. Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
2. The Hon'ble Minister,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
3. The Director of Marketing,
Pune.
4. The District Deputy Registrar,
Co-operative Societies,
Aurangabad.
5. The Deputy Registrar (Taluka),
Co-operative Societies,
Aurangabad.
6. Harish S/o Dattopant Pawar,
Age : 52 Years, Occu. : Business,
R/o N - 12, CIDCO, Manager,
Aurangabad, Dist. Aurangabad.
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7. Sajanrao S/o Manikrao Mate,
Age : 65 Years, Occu. : Business,
R/o Jaipur, Tal. & Dist. Aurangabad.
8. The Advocate General,
State of Maharashtra, Mumbai. .. Respondents
Shri S. S. Thombre, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Advocate appointed as Special Counsel
for Respondent Nos. 1 to 5 and 8.
Shri Pradeep Deshmukh, Advocate h/f Shri Y. P. Deshmukh,
Advocate for Respondent Nos. 6 and 7.
WITH
WRIT PETITION NO. 3615 OF 2018
Ganesh Sarjerao Pandarkar,
Age about 38 years, Occ. : Agri.,
R/o village Limpangan, Tq. Shrigonda,
Dist. Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Co-operation, Marketing and Textile
Department, Mantralaya, Mumbai.
2. The Director of Marketing,
Pune.
3. The District Deputy Registrar,
Co-operative Societies,
Ahmednagar.
4. Agriculture Produce Market Committee,
Shrigonda, Tq. Shrigonda,
Ahmednagar.
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5. Nandkumar S/o Maroti Kokate,
Age : 65 Years, Occu. : Agril.,
R/o Village Limpangan, Tq. Shrigonda,
Dist. Ahmednagar.
6. Arjun S/o Ramchandra Shelke,
Age : Major Years, Occu. : Agril.,
R/o village Thete Savangi, Tq. Shrigonda,
Dist. Ahmednagar. .. Respondents
Shri R. N. Dhorde, Senior Advocate i/by Shri V. R. Dhorde,
Advocate for Petitioners
Shri V. J. Dixit, Senior Advocate appointed as Special Counsel
for Respondent Nos. 1 to 3.
Shri S. N. Suryawanshi, Advocate for the Respondent No. 4.
Shri N. B. Suryawanshi, Advocate for Respondent Nos. 5 and 6.
CORAM : S. V. GANGAPURWALA AND
ARUN M. DHAVALE, JJ.
CLOSED FOR JUDGMENT ON : 02.05.2019
JUDGMENT PRONOUNCED ON : 04.07.2019.
JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The petitioners are assailing the validity of Section 13(1C) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as the "Act of 1963) introduced by Amendment Act No. XXXV of ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 8 wp 12084.15 2016 on 17.10.2016 with effect from 16.06.2016. The petitioners initially challenged the ordinance dated 16.06.2015 for amendment to Sec. 13 in the Act of 1963 and subsequent ordinances continuing the same dated 21.08.2015 and 16.01.2016. The said ordinance has converted into Act.
3. Mr. Dhorde, the learned senior advocate for petitioners in Writ Petition No. 12084 of 2015, Writ Petition No. 2443 of 2016 and 3615 of 2018 has strenuously made following submissions.
A. By virtue of the amendment, Sub Section (1C) has been inserted in Section 13 of the Act of 1963, by which the State Government may appoint special invitees on every market committee, who shall be expert in the field of agriculture, agricultural processing, agricultural market, law, economics or commerce. The learned senior advocate further submits that, sub Section (1C) to Section 13 of the Act of 1963 is unconstitutional and has been introduced for political considerations viz; accommodating the persons belonging to the ruling party in the State. No guidelines or rules are framed for appointment of the persons as special invitees on the market committees. There is no nexus with the object to be achieved by amending Sec. 13 and, therefore, the same is violative of Article 14, 19(1)(c) and 19(1)(g) of the Constitution of India. The amended provision is unguided and, therefore, is in contravention of the Constitution of India and is ultravires and, ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 9 wp 12084.15 therefore, the same needs to be struck down.
B. Intention behind introducing said amendment is only to accommodate the persons belonging to ruling party and, therefore, the purpose which is sought to be achieved would never be achieved.
C. By virtue of the amended provisions, the State Government reserved power to appoint two or four special invitees on market committee along with newly elected body, enabling political interference in the affairs of the market committee and in the functioning of duly elected body. It is only with a view to accommodate their close people, the said provision is incorporated.
D. If, in fact, experts are to be appointed as special invitee, it should have been left to the democratically elected body to appoint them as is the provision applicable to the Municipal Council or Municipal Corporation.
E. The very purpose of keeping the control on appointing or nominating the persons on market committee by the State Government without guidelines and rules speaks volume regarding the arbitrariness on the part of the State Government. Same has been done arbitrarily to keep control on duly elected body of the opponent and to control the affairs of A.P.M.C. ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 10 wp 12084.15 F. The learned senior advocate further submits that, respondents No. 6 to 8 had contested elections of A.P.M.C. They lost the same. They are closely involved with the ruling party and as such are rehabilitated by nominating them as expert members. It is further submitted that, in view of the provision of Sec. 13(1F) of the Act of 1963, the Deputy Registrar of Co- operative societies of the District or his representative also is an ex-officio member on the market committee. Therefore, there is no necessity to appoint any person as an expert. Respondents No. 6 to 8 are defeated candidates and, therefore, to appoint them as experts, is only a ploy to rehabilitate them. The exercise of powers is arbitrary. With a clear view to accommodate the political workers of party, initially ordinance was issued. It is further clarified in the letter dated 13.08.2015, except the Government, nobody should appoint the expert members.
G. There are no guidelines fixed, nor any rules are framed for appointment of expert persons. Exclusive and arbitrary powers are vested with the State Government.
H. The respondents are trying to subvert the democratically and constitutionally established market committee by appointing respondents No. 6 to 8 to have keep control. The same is against the basic structure of the constitution and provisions of Sec. 13(1A) of the Act of 1963. Sec. 13(1C)(a) of the Act of 1963 is ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 11 wp 12084.15 contrary to the provisions of Sec. 13(1A) of the Act of 1963 and, therefore, same is illegal, arbitrary and liable to be set aside.
I. No procedure is prescribed for making applications to appoint experts. The power is centralized with the Hon'ble Minister of the ruling party.
J. There are already proper representatives elected of the agriculturists by the agriculturists as provided U/Sec. 13 of the Act of 1963. Sec. 13(1A)(a)(ii) of Act 1963 provides for directors to be elected from the village panchayat functioning in the area. Section 13(1)(ii)(b) takes care of representation of the traders.
K. The appointment of expert directors is misusing the executive powers under the garb of exercising legislative powers by the State Government. The learned senior advocate relies on the following judgments of the Apex Court as well as this Court.
I. Smt. Damayanti Naranga Vs. The Union of India and others reported in AIR 1971 SC 966.
II. Babaji Kondaji Garad and others Vs. Nasik Merchants Co-operative Bank Ltd., Nasik and others reported in AIR 1984 SC 192.
IV. State of M. P. and another Vs. Baldeo Prasad reported in AIR 1961 SC 293.
IV. Karvenagar Sahakari Griha Rachana Sanstha Maryadit ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 12 wp 12084.15 Pune and another Vs. State of Maharashtra and others reported in 1989 Mh.L.J. 320.
4. Mr. Thombre, the learned advocate appearing for the petitioner in Writ Petition No. 3268 of 2016 echoed the arguments canvassed by Mr. Dhorde, the learned senior advocate.
5. Mr. V. J. Dixit, the learned senior advocate (appointed as Special Counsel) appearing for the respondent/State made following submissions :
a. In order to ensure more efficient and smooth functioning of market committee, the Government of Maharashtra considered it expedient to appoint experts in the field of agriculture, agricultural processing, agricultural marketing, law, economics and commerce as special invitees on market committees so that the market committee will be benefited by knowledge of such experts. The amendment in issue in fact is in consonance with the object sought by the Act of 1963.
b. There is always a presumption of the constitutionality of the statute. The constitutional validity of the statutory provision can be challenged only on the ground of (I) legislative competence and (ii) violation or inconsistency with Part-III of the Constitution. The amendment introduced is with the laudable ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 13 wp 12084.15 object. The experts would give necessary inputs and the same would benefit the working of the A.P.M.C. c. The learned senior advocate relies on the judgment of the Apex Court in a case of Centre for Public Interest Litigation Vs. Union of India and others reported in (2016) SCC 408 and submits that, the Court would not be able to interfere to have judicial review of Government policy.
d. The experts are appointed. It cannot be said that the appointment of experts is unregulated. The guidelines have been given under circular dated 13th August 2015. It would be as per the guidelines provided under circular dated 13 th August, 2015, the expert persons would be appointed.
6. Mr. P. W. Pawar, learned advocate for respondent Nos. 6 to 8 in Writ Petition No. 12084 of 2015, Mr. R. S. Deshmukh, the learned counsel holding for Mr. Y. R. Dayama, the learned advocate for respondent Nos. 6 and 7 in Writ Petition NO. 2443 of 2016, Mr. Pradeep Deshmukh, the learned advocate for respondent Nos. 6 and 7 in Writ Petition No. 3268 of 2016 and Mr. N. B. Suryawanshi, the learned advocate for respondent Nos. 5 and 6 in Writ Petition No. 3615 of 2018 i. e. for the persons who are nominated directors as experts contend that, these respondents appointed are experts in the particular field. They have the necessary expertise. Mr. Deshmukh, the learned ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 14 wp 12084.15 counsel relies on the judgment of the Apex Court in a case of Gurudevdatta VKSSS Maryadit and others Vs. State of Maharashtra and others reported in AIR 2001 SC 1980 and submits that, the Courts would not infer a legislative malice in passing a statute.
7. Before we advert to the contentions advanced by the learned advocate for respective parties, it would be appropriate to refer to the relevant provisions of the Act of 1963.
The Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963
1. ............
2. ...........
13. Constitution of Market Committees.
(1) ............
(1A) ...........
(1C)(a) The State Government may, by an order in the
Official Gazette, appoint,---
(i) four special invitees on every Market
Committee whose income from fees levied and collected under sub-section (1) of section 31 in the immediate preceding market year exceeds rupees five crores, and
(ii) two special invitees, on every Market Committee whose income from fees levied and ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 15 wp 12084.15 collected under sub-section (1) of section 31 in the immediate preceding market year is upto rupees five crores, who shall be the experts in the field of agriculture, agricultural processing, agricultural marketing, law, economics and commerce.
(b) The special invitees appointed under clause (a) shall have a right to take part in the discussions of the Market Committee, but shall have no right to vote at a meeting thereof.
8. One of the principal objects sought to be achieved by the Act of 1963 is securing fair price to the agriculturist for his produce, by elimination of middlemen and other detracting factors. The Act is also intended to regulate marketing of agricultural and certain other produce. The Act provides for better regulation of buying and selling of agricultural produce and the establishment of market for agricultural produce in the State. The original Act of 1963 is amended substantively by Maharashtra Act 48 of 2005 and new concepts of direct marketing, farmer-consumer market and private markets are introduced. The L. A. Bill No. IV of 2016 was introduced in the Legislative Assembly on 10th March, 2016 to amend the Act in order to ensure more efficient and smooth functioning of the market Committees constituted under said Act. The Statement of objects and reasons annexed to the Bill reads thus :
"2. In order to ensure more efficient and smooth functioning of ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 16 wp 12084.15 the Market Committees constituted under the said Act, the Government of Maharashtra considered it expedient to appoint experts in the field of agriculture, agricultural processing, agricultural marketing, law, economics or commerce as special invitees on the Market Committees so that the market committee will be benefited by the knowledge of such experts. It was also proposed to provide that special invitees shall have a right to take part in the discussions of the Committees, but shall not have a right to vote. For that purpose, it was proposed to insert a new sub- section (1C) in section 13 of the said Act."
9. The purpose and object of the enactment would also be relevant in considering the challenge to the validity of Sec. 13(1C) of the Act of 1963.
10. The legislation is subject to only constitutional limitations. The Apex Court in a case of Gurudevdatta VKSSS Maryadit and others Vs. State of Maharashtra and others (supra) observed that, the Courts cannot infer legislative malice in passing a statute. The interference is restrictive in nature and that too on the constitutional aspect and not beyond the same. Legislative malice is beyond the pale of jurisdiction of the law Courts.
11. It is a settled position that, while dealing with question of constitutional validity of a statute, the presumption is always on the constitutionality. The statute enacted by the Parliament or ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 17 wp 12084.15 State Legislature cannot be declared unconstitutional lightly. The law made by the Parliament or the State Legislature can be struck down by the Courts on two grounds viz (1) Lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision.
12. Twice the ordinance was issued and subsequently converted into Act by introducing Sec. 13(1C). The petitioners have also nowhere disputed the legislative competence of the State in amending the Statute.
13. The Legislature has the necessary competence in amending the Act of 1963 inter alia introducing Section 13(1C).
14. In a case of Karvenagar Sahakari Griha Rachana Sanstha Maryadit Pune and another Vs. State of Maharashtra and others (supra) relied on by Mr. Dhorde, the learned senior advocate, the Division Bench of this Court was considering the amendments to the bye-laws. The Court held that, in exercise of powers U/Sec. 79A of the Maharashtra Co-operative Societies Act, the Government cannot compel ownership housing society to accept a sub society of flat holders on the land and such sub- society as a member of the society. The said direction was held to be violative of Article 19(1)(c) of the Constitution i. e. right to form association. The power U/Sec. 14 of the Maharashtra Co-
::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 :::18 wp 12084.15 operative Societies Act were transgressed by the Registrar.
In the present case challenge is to the validity of statutory provision. The challenge to the constitutional validity of the statutory provision has to be on a different pedestal than the directions issued to amend the bye-laws of the society.
15. In a case of Smt. Damayanti Naranga Vs. The Union of India and others (supra), the Apex Court observed that, the Parliament passed Hindi Sahitya Sammelan Act, 1962 so as to transfer all the properties and assets of the original society to the new Sammelan. The act would contravene Article 19(1)(f) of the Constitution of India. It is further observed that, if the law is passed not merely for ensuring proper management and administration of the property, but to totally deprive the persons in whom the property vested, of their right to hold, the property, the law cannot be justified on the touch stone of reasonable restriction under Article 19(5) of the Constitution.
16. In the present case, the purpose for introducing Sec. 13(1C) of the Act of 1963 is evident from object and reasons as culled out above that is to appoint experts in the field of agriculture, agricultural process and so on as special invitees on the market committees so that the market committee will be benefited by knowledge of such experts and it does not deprive any person of its right to get elected as is provided U/Sec. 13 of ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 19 wp 12084.15 the Act of 1963.
17. In case of Babaji Kondaji Garad and others Vs. Nasik Merchants Co-operative Bank Ltd., Nasik and others (supra) the Apex Court was dealing with introduction of Section 73B of the Maharashtra Co-operative Societies Act. The Apex Court held that, the reserve seats are to be filed in by election. Failing the election, one can resort to appointment or co-option. The first and the foremost pride of place is accorded to election, because a representative institution ordinarily must be democratically elected.
In the present matters, the market committee is constituted by elected members. By introduction of Sec. 13(1C) only, special invitees who shall be experts are appointed Sec. 13(1C)(b) of the Act of 1963 puts an embargo on their right to vote at a meeting. These special invitees are not empowered to vote at the meeting. They would not in any manner be in a position to interfere with the decision. They can only provide their expertise knowledge that may be beneficial for the decision to be arrived at by the market committee. They would in no manner affect the constitution of the market committees. On the contrary the market committee will have the advantage of their expertise that would aid in the decision making by the market committee. The market committee would be governed by elected body. The elected body is not bound to accept the ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 20 wp 12084.15 suggestions of the special invitees. The appointments of experts would in no way affect the powers of the democratically elected body.
17. It has been held by the Apex Court in the case of Gurudevdatta VKSSS Maryadit and others Vs. State of Maharashtra and others (supra) that, the Courts cannot infer legislative malice in passing a statute. Inference is restrictive in nature, nor a statutory provision can be held to be unconstitutional only on the ground that the special invitees appointed by the Government are not experts. If experts are not appointed as special invitees that at the most may be a ground to impeach the appointments made. The appointment if made of persons who are not expert, would not be sufficient to construe the statutory provision as unconstitutional.
18. In view of the above, Section 13(1C) of the Act of 1963 cannot be held to be unconstitutional.
19. This takes us to the next question of the petitioners challenging the appointments of the respondents as special invitees U/Sec. 13(1C) of the Act of 1963. The basic contention of the petitioners is that, unbridled powers and unregulated discretion vest with the State Government in nominating the special invitees resorting to Sec. 13(1C) of the Act of 1963. The special invitees are appointed at the pleasure of the Government.
::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 :::21 wp 12084.15 The State Government has discretion in appointing special invitees. Legislature has not framed rules or guidelines to be adhered to in appointing special invitees U/Sec. 13(1C) of the Act of 1963. Circular is issued on 13.08.2015 prescribing qualification for the persons to be appointed as special invitees/experts U/Sec. 13(1C) of the Act of 1963. It is in regional language and reads thus :
:- 5-00 dksVh fdaok R;kis{kk tkLr vkfFkZd O;ogkj vlysY;k jkT;krhy d`"kh mRiUu cktkj lfeR;kaoj 4 rK O;Drhaph fo'ks"k fueaf=r Eg.kwu fu;qDrh dj.;kph rlsp :- 5-00 dksVhis{kk deh okf"kZd myk<ky vlysY;k d`"kh mRiUu cktkj lferhP;k lapkyd eaMGkoj 2 rK O;Drhaph fo'ks"k fueaf=r Eg.kwu fu;qDrh dj.;kpk v/;kns'k fn- 16-6-2015 jksth dk<.;kr vkysyk vkgs- Hkkjrh; jkT; ?kVusP;k dye 213 ¼2½ vUo;s v/;kns'k dk<Y;kuarj ;s.kkÚ;k vf/kos'kukP;k ifgY;k fnolkiklwu lnj v/;kns'k lgk vkBoM;kalkBh oS/k jkgrks- R;k vuq"kaxkus fo/kkueaMGkps ikolkGh vf/kos'ku fn- 13-07-2015 jksth lq: >kysys gksrs- rsOgkiklwu lgk vkBoMs Eg.ktsp 42 fnol gksbZi;Zar Eg.ktsp fn- 23-08-2015 i;Zar lnj v/;kns'k ykxw jkghy- rRiwohZ v/;kns'kkrhy rjrwnhizek.ks 'kklukl rK O;Drhaph fo'ks"k fueaf=r Eg.kwu fu;qDrh dj.;kl vuqKs;rk jkgrs-
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20. In all these matters, the respondents/special invitees are appointed as experts in agricultural field except in Writ Petition No. 3268 of 2016, wherein respondent No. 6 is appointed as an expert in agricultural marketing. Initially he was also appointed as an expert from agriculture on 10 th March, 2016. Thereafter, fresh order is issued to the effect that, the said respondent No. 6 was wrongly appointed as expert from agriculture, but is appointed as an expert in agricultural marketing.
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21. For a person to be appointed as an expert in agriculture as per the guidelines detailed in the circular dated 13 th August, 2015, the person should be personally involved in agricultural operation, should possess knowledge of agriculture, should have 7/12 extract and the person possessing graduate qualification in agriculture and who has been recognized by the State as a progressive farmer is to be preferred.
22. We had called the learned senior advocate appearing for the State to place on record the procedure followed and the considerations weighed with the State Government while appointing these persons as experts.
23. In Writ Petition No. 12084 of 2015, the respondent Nos. 6 and 7 are nominated as experts from agriculturist category. Perusing the file produced on record by the State, it appears that, their names were recommended by the member of Legislative Assembly as they were hardened workers of the ruling political party (Bhartiya Janta Party). There is nothing on record to suggest that, they possess degree in agriculture or are state awardee progressive farmer. There is nothing on record to show that some other names were also considered by the State Government. It is further contended that, these respondents No. 6 and 7 had contested the election of managing committee of the A. P. M. C. and were declared unsuccessful.
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24. In Writ Petition No. 2443 of 2016, the respondents No. 6 and 7 contested the election of the A.P.M.C. and they lost the election and subsequently are appointed as experts from agriculture category. The papers produced by the State nowhere show that the State Government considered about them possessing the degree qualification in agriculture or that they are state awardee progressive farmers.
25. In Writ Petition No. 3268 of 2016, the respondents No. 6 and 7 had contested the election and lost. The respondent No. 6 initially was declared to have been nominated on 10.03.2016 as an expert from agriculturist category. Thereafter on 18.03.2016 a fresh declaration was issued to the effect that, he is nominated from agricultural marketing category. The respondent No. 7 appears to have been appointed as special invitee from agriculturist category. The recommendation appears to be from the leader of the ruling political party in the State. While appointing them, it does not appear that the requirement as laid down in the guidelines were adhered too. For a person to be appointed as an expert/special invitee from agriculture marketing, the guidelines require that the person should be doing business in the market committee. So also shall be using and should have the licence of doing business in agricultural equipments, fertilizer, seeds, so also should have three years audited accounts. He should possess M.B.A. (Marketing) qualification and should have knowledge in said field in doing ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 25 wp 12084.15 sale with private institutions also. All these aspects do not seem to have been considered while nominating these persons.
26. In Writ Petition No. 3615 of 2018, the respondent Nos. 5 and 6 are appointed as experts from agriculturist category. Their names are also recommended by the Hon'ble Minister of the ruling party. Four names were recommended, out of that two names have been selected and they are appointed. It does not appear that, the State Government considered as to whether they possess the degree in agriculture or are state awardee progressive farmers.
27. This Court is aware that, exercise of powers of judicial review in such matters has certain inherent limitations. The duty of the Court in such matters is to confine itself to the question of legality. It has to be considered whether the decision making authority exceeded its powers, committed an error of law, reached decision which no reasonable man would have reached or otherwise abused his powers. This Court is not expected to act as a Court of appeal. Nevertheless, it can examine whether the decision making process was reasonable, rational and not arbitrary. However, if the executive has functioned arbitrarily and the appointments are made dehors the required considerations as per the guidelines or not in consonance with the requirement of the statute or that their appointments would not sub-serve the purpose of amended ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 26 wp 12084.15 provision of Sec. 13 (1C) of the Act of 1963, then this Court would certainly exercise power of judicial review to rein in any unbridled executive functioning.
28. Though, Section 13(1C) of the Act of 1963 gives discretion to the State Government to appoint special invitee in the committee, that is not an arbitrary, unregulated discretion, but shall have to be exercised in consonance with the object and purpose of introduction of Sec. 13(1C) of the Act of 1963 and in consonance with the guidelines detailed by the State.
29. In all these matters, majority of these respondents appointed as special invitees had contested the election of the concerned A.P.M.C. and had lost. Some had contested the election from trader's constituency and are appointed as experts from agriculturist and one from agriculture marketing category.
30. As observed, in forgoing discussion, the very object and purpose of appointing experts in the field of agriculture, agricultural processing, agricultural marketing, law, economics and commerce as special invitees on the market committees is to ensure more efficient and smooth functioning of the market committee and that market committee would be benefited from knowledge possessed by them. The guidelines reproduced above, sets out the requirement that should be possessed by the person to be considered for appointment as an expert/special invitee ::: Uploaded on - 06/07/2019 ::: Downloaded on - 10/07/2019 08:49:17 ::: 27 wp 12084.15 U/Sec. 13(1C) of the Act of 1963. Preference has to be given to a person holding degree in agricultural, should be personally doing agriculture and is recognized by the State Government as a progressive farmer and a state awardee agriculturist while appointing these persons. We do not find that such an exercise has been conducted by the State Government. The appointments are made at the recommendations of the members of the ruling party. Such appointments would frustrate the very purpose and object of nominating experts as special invitees inter alia the very purpose of introducing Sec. 13(1C) of the Act of 1963.
31. The decision making process has not been properly followed. The requirements to be considered as per circular dated 13th August, 2015 have not been adhered. The discretion exercised by the State in nominating these persons appears to be arbitrary. In the light of that, the said appointments cannot be sustained, even in exercise of our limited jurisdiction of judicial review. The appointments of respondent Nos. 6 and 7 made as special invitees U/Sec. 13(1C) of the Act of 1963 as such are set aside in each of these petitions.
32. Before parting with the judgment, we would suggest the State to frame rules and/or comprehensive guidelines to be adhered to while appointing special invitees U/Sec. 13(1C) of the Act of 1963.
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33. In the result we pass following order.
34. The challenge to the constitutional validity of Sec. 13(1C) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 is negatived. Appointments of respondents No. 6 and 7 in each of these writ petitions are quashed and set aside. The State Government is at liberty to make appointments of special invitees U/Sec. 13(1C) of the Act of 1963 of appropriate persons.
34. Rule accordingly disposed of. No costs.
35. We have returned back the original file produced by the learned senior counsel appearing for the State to the learned Government Pleader.
Sd/- Sd/-
[ARUN M. DHAVALE, J.] [S. V. GANGAPURWALA, J.]
bsb/July 19
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