Bombay High Court
Dinesh vs The Collector on 12 December, 2013
Bench: B.P. Dharmadhikari, A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 6532/2013.
Dinesh s/o Sheshrao Thakre,
Aged about 40 years;
Occupation - Agriculturist,
R/o. Ward no.3, Kunbipura, Katol,
Tahsil Katol, District Nagpur. .... PETITIONER.
VERSUS
1. The Collector, Nagpur
District Nagpur.
2. The Sub Divisional Officer as well as
Presiding Officer of Special Meeting of
No confidence Motion of Agriculture
Produce Market Committee, Katol,
Tahsil Katol, District Nagpur.
3. Vinayakrao Ramraoji Mankar,
Aged adult, Occ - Agriculturist;
r/o. At Post Ladgaon, Tahsil Katol,
District Nagpur.
4. Angadji s/o Madhodeo Bhaiswar,
Aged adult, Occ - Agriculturist;
r/o. At Mendki, Post Sonili, Tahsil Katol,
District Nagpur.
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5. Manik s/o Mahadeorao Lande,
Aged adult, Occ - Agriculturist;
r/o. At Kondhasawali, Post Ridhora, Tahsil Katol,
District Nagpur.
6. Sou. Vandanatai w/o Subhash Tekade,
Aged adult, Occ - Agriculturist;
r/o. At Post Kondhali, Tahsil Katol,
District Nagpur.
7. Bandu s/o Dnyaneshwar Rathod,
Aged adult, Occ - Agriculturist;
r/o. At Mahurkhora, Post Dudhala, Tahsil Katol,
District Nagpur.
8. Bhushan s/o Panjabrao Sawarkar,
Aged adult, Occ - Agriculturist;
r/o. At Jatazamari, Post Sawargaon, Tahsil Katol,
District Nagpur.
9. Ajay s/o Vijay Ladse,
Aged adult, Occ - Agriculturist;
r/o. Wandli, Tahsil Katol,
District Nagpur.
10. Ganesh s/o Mohanlal Kela,
Aged adult, Occ - Agriculturist;
r/o. At Tar Bazar, Katol, Tahsil Katol,
District Nagpur.
11. Gajananrao Mahadeorao Khodankar,
Aged adult, Occ - Agriculturist;
r/o. At Post Kondhali, Tahsil Katol,
District Nagpur.
12. Anil s/o Gangadhar Dhomne,
Aged adult, Occ - Agriculturist;
r/o. Annabhau Sathe Nagar, Katol, Tahsil Katol,
District Nagpur.
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13. Nagorao s/o Mahadeorao Hingwe,
Aged adult, Occ - Agriculturist;
r/o. At Khapri Barokar, Post Khursapar,
Tahsil Katol, District Nagpur.
14. Tarkeshwar s/o Mahadeorao Shelke,
Aged adult, Occ - Agriculturist;
r/o. At Fetri, Post Khangaon, Tahsil Katol,
District Nagpur.
15. Dinesh s/o Namdeorao Nikose,
Aged adult, Occ - Agriculturist;
r/o. At Post Yenwa, Tahsil Katol,
District Nagpur.
16. The Agriculture Produce Market
Committee, Katol, Tahsil Katol,
District Nagpur, through its
Secretary. .... RESPONDENTS .
-----------------------------------
Mr. M.G. Bhangde, Senior Advocate with Shri M.P. Khajanchi and Shri M.I.
Dhatrak, Advocates for Petitioner.
Mr. A.S. Fulzele, Asstt. Govt. Pleader for Respondent Nos.1 and 2.
Mr. H.D. Dangre, Advocate for Respondent Nos.3 to 15.
Mr. R. Dhore, Advocate for Respondent no.16.
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CORAM : B.P.DHARMADHIKARI &
A.S. CHANDURKAR
, JJ.
DATED : DECEMBER 12, 2013.
ORAL JUDGMENT. (Per A.S. Chandurkar, J)
Rule. Rule made returnable forthwith and heard finally with the
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consent of the learned Counsel appearing for the respective parties.
2. Challenge in the present Writ Petition is to a notice dated
02.12.2013, that has been issued by the respondent no.1 for convening a
special meeting of respondent no.16 - Market Committee, to consider the
motion of no confidence that was proposed to be moved against the
petitioner.
3. Respondent no.16 - Market Committee comprises of 18 Directors,
and petitioner is its elected Chairman. The respondent nos. 3 to 15 who are
also Directors of the Market Committee forwarded a requisition dated
28.11.2013 to the District Deputy Registrar, Cooperative Societies, Nagpur.
In said requisition, it was stated that the aforesaid respondents proposed to
move a motion of no confidence against the petitioner. A request was made
to the District Deputy Registrar to convene a meeting of the Market
Committee for considering the motion of no confidence. On 28.11.2013,
the District Deputy Registrar forwarded the aforesaid communication to the
office of the respondent no.1 Collector, for further action. Thereafter on
02.12.2013, a notice was issued by the respondent no.1 to convene a special
meeting under the provisions of Section 23A of the Maharashtra Agricultural
Produce Marketing (Development and Regulation) Act, 1963 (hereinafter
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referred to as "the 1963 Act" for short). The aforesaid meeting was
scheduled on 13.12.2013. It is this notice of special meeting which has been
challenged in the present petition.
4. Shri M.G. Bhangde, learned Senior Counsel appearing along with
Shri M.P. Khajanchi and Shri M.I. Dhatrak, learned Counsel for petitioner
has contended that the notice as issued is not in accordance with law. It is
submitted that under the provisions of Section 23A (2) of the 1963 Act, a
requisition for holding a special meeting for considering a motion of no
confidence is required to be sent to the Collector under intimation to the
Director. It is submitted that in the present case, the requisition was
addressed to the District Deputy Registrar, Cooperative Societies, who
thereafter forwarded the same to the Collector. It is therefore submitted
that in absence of any requisition being sent to the Collector as
contemplated by Sub-section [2] of Section 23A, the Collector had no
jurisdiction to issue a notice convening the special meeting. It was further
submitted that the period as mentioned for holding the special meeting was
not in accordance with the period as specified in the bye-laws of the
respondent no.16 Committee. It was submitted that under Bye law no.36 of
the aforesaid byelaws, a notice of 10 days was required to be given from the
period of issuance of notice for holding said meeting. It is submitted that
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the notice in question, though issued on 02.12.2013 was received by the
petitioner on 03.12.2013, while the meeting was to be held on 13.12.2013.
It was therefore, submitted that the period of 10 clear days as required by
byelaw no.36 was not available to the petitioner, and hence, the said notice
was bad in law. It was further submitted that the respondent nos. 13 to 15
stood disqualified on account of their continuous absence for last three
meetings in terms of provisions of Section 24 of the 1963 Act. It was
submitted that the aforesaid three Directors had participated in the meeting
in which it was resolved to move a motion of no confidence against the
petitioner. However, as they had incurred disqualification on account of
their absence without leave in three consecutive meetings of the Market
Committee, they were not eligible to be counted as members, while
determining the requisite figure as prescribed by Section 23A[2] of the 1963
Act. It was submitted that if the aforesaid three Directors were excluded,
there were no requisite number of members and hence, respondent no.1
could not have convened a special meeting to consider the motion of no
confidence.
5. Shri H.D. Dangre, learned Counsel appearing on behalf of
respondent nos. 3 to 15 has opposed the petition and has relied upon the
reply affidavit. It is submitted that the requisition was duly sent to the
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Collector by the District Deputy Registrar on its receipt and hence, there was
due compliance of the requirement of Section 23A(2) of the 1963 Act. It
was submitted that once such a requisition was sent to the Collector, the
Collector was duty bound to have considered the same and proceeded
further in accordance with law. It is submitted that on that basis, a notice
convening special meeting was issued. It was further submitted that the
petitioner had got the requisite notice of 10 days, as required by bye-law
no.36 and the due requirement of provisions of Section 23A were complied.
The Collector had within 15 days from receiving the requisition convened
the special meeting by notice dated 02.12.2013. It is submitted that as the
petitioner received the aforesaid notice on 03.12.2013 and as the meeting
was scheduled on 13.12.2013, the requisite period of 10 days was duly
satisfied as required by bye-law no.36. It was further submitted that the
words "clear days" have not been used while stipulating the period of 10
days and, hence, there was due compliance with the aforesaid provision. It
was further submitted that there was no vacancy caused on account of
absence of respondent nos. 13 to 15 for the last three meetings, as alleged.
It is submitted that leave applications had been duly forwarded by the
aforesaid Directors and there was no order passed on the said applications.
Further there was no declaration that the aforesaid Directors had ceased to
be members of the Market Committee. It was also submitted that the
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absence could be excused as the applications in that regard were duly made.
The learned Counsel therefore, submitted that the impugned notice was
issued in accordance with law, and hence sought dismissal of the Writ
Petition. It was also submitted that the provisions of Section 23A with
regard to holding of special meeting were independent from the provisions
of Bye-law no.36, and hence, the provision in said bye-law could not be
incorporated for nullifying the said notice.
6. Shri A.S. Fulzele, learned Assistant Government Pleader appearing
on behalf of respondent no.1 sought for time on the ground that he was
awaiting instructions.
7. Shri R. Dhore, learned Counsel appearing on behalf of respondent
no. 16 has filed affidavit on behalf of the Secretary and has placed reliance
upon the communications on record resulting in issuance of the impugned
notice.
8. In reply, learned Senior Counsel appearing for petitioner has by
relying upon a decision of Hon'ble Apex Court in the case of Chandra
Kishore Jha .vrs. Mahavir Prasad and others (1999) 8 SCC 266), submitted
that in absence of 10 clear days notice, the impugned notice dated
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02.12.2013 was not in accordance with law. Relying on the aforesaid
decision, it was also submitted that, if the statute required a thing to be
done in a particular manner, then the same was required to be done in that
manner alone and not in any other manner. Reliance was also placed upon
a judgment of learned Single Judge of Madras High Court in case of M.
Mokkaiyan, President, Vaigai .vrs. The Assistant Director and others
(1999) 2 Mh.L.J. 80), while submitting that the Authority who has been
given powers to convene a meeting can alone exercise such powers and said
powers cannot be exercised by any other authority. Similarly, the decision
in case of Neeraja Rajendranath Mishra .vrs. Kalyan Dombivali Municipal
Corporation School Board and others ( 2003 (2)Mh.L.J. 491) was also
relied upon to make a distinction between 'notice' and 'clear notice'. It was
submitted that the date on which the impugned notice was issued and the
date on which the meeting was scheduled were required to be excluded and
only thereafter, can it be said that a clear notice of 10 days was given to the
petitioner. Similarly, reliance was also placed on an unreported judgment of
Division Bench of this Court in case of Madhukar Wamanrao Jagtap .vrs.
Krishna Babaji Jagtap and others (Special Civil Application No. 74/1963
decided on 05.07.1963), to canvass that unless a proper notice, as
prescribed by the Rules was received by the concerned Authority, no action
thereon can be taken. The learned Senior Counsel has also relied upon the
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dictionary meaning of word "requisition". By referring to the aforesaid
meaning as stated in Black's Law Dictionary as well as in Oxford Advance
Learner's Dictionary, it was submitted that the word 'requisition' means "a
demand in writing or formal request or requirement."
9. Provisions of Sub-sections [1], [2] and [3] of Section 23A of 1963
Act are relevant and they read as under :
"23A. Motion of no-confidence against Chairman
or Vice-Chairman.
(1) A Chairman or a Vice-Chairman shall cease
forthwith to be Chairman or Vice-Chairman as the
case may be, if the Market Committee by a resolution
passed by a majority of not less than two-third of the
total number of members (excluding the members who
have no right to vote) at a special meeting so decides.
(2) The requisition of such special meeting shall
be signed by not less than one half of the total number
of members (excluding the members who have no right
to vote) and shall be sent to the Collector under
intimation to the Director.
(3) The Collector shall, within fifteen days from
the date of receipt of the requisition under sub-section
[2], convene a special meeting of the Committee:
Provided that, when the Collector
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convenes such special meeting of the Committee, he
shall give intimation thereof to the Chairman, or as
the case may be, Vice-Chairman and also to the
Director."
Sub-section [2] of Section 23A requires that a requisition for a
special meeting should be signed by not less than half of the total number of
members who are entitled to vote and shall be sent to the Collector, under
intimation to the Director. Sub-section [3] requires that within fifteen days
from the date of receipt of the requisition under sub-section [2], a special
meeting of the Market Committee should be convened and the Collector
should give intimation thereof to the Chairman and also to the Director.
While considering the aforesaid provisions, it would be necessary to keep in
mind the fact that the aforesaid provisions relate to removal of an elected
member by passing a motion of no confidence. The Hon'ble Apex Court in
case of Ravi Yashwant Bhoir .vrs. District Collector, Raigad and others
(2012) 4 SCC 407 has held that a right to hold an elective post is a statutory
right and no person can claim any absolute or vested right to the said post.
However, he cannot be removed without strictly adhering to the provisions
provided by the legislature for his removal.
The object behind making a requisition and sending it to the
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Collector under provisions of sub-section [2] of Section 23A is, that it is for
the Collector to arrive at a subjective satisfaction that the requirement of the
aforesaid provisions namely that such requisition has been duly signed by
not less than half of the total number of members entitled to vote, has been
duly complied with. Under sub -section [3] of the aforesaid Section, the
Collector has been given a period of fifteen days from the date of receipt of
such requisition to convene a special meeting. While considering the
provisions of sub-section [2] and sub-section [3] of Section 23A of the said
Act, it is clear that the Collector has to act, once such a requisition is made to
him, with intimation to the Director. The jurisdiction that has been
conferred by the aforesaid section is only on the Collector, and it is he who
has to take further steps as stipulated by sub-section [3] of Section 23A in
the matter of convening a special meeting.
10. Requisition dated 28.11.2013 is stated to be signed by respondent
nos. 3 to 15. The same is however, addressed to the District Deputy
Registrar, Cooperative Societies, Nagpur. In the said requisition, a request
has been made to the District Deputy Registrar, to convene a special meeting
of the Market Committee to consider the motion of no-confidence against
the petitioner. It was forwarded by the said Authority to the office of
respondent no.1, on the basis of which the impugned notice for holding a
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special meeting has been issued. It is therefore, clear that as required by
provisions of Section 23A[2] of 1963 Act, there is no requisition that is made
to the Collector. On the contrary such requisition has been made to the
District Deputy Registrar. The District Deputy Registrar under the scheme
of Section 23A of 1963 Act has no role whatsoever to play. Neither there is
a request made in the aforesaid requisition dated 28.11.2013 to the
Collector to convene a special meeting to consider the motion of no
confidence, nor requisitionists request him to forward it to the Collector. It
is therefore, clear that a requisition that was received by the District Deputy
Registrar on 28.11.2013 was forwarded by him to the office of the Collector
of his own and on that basis, a notice for special meeting as issued on
02.12.2013. The impugned notice has been issued by the Collector without
there being any requisition to him to convene a special meeting by
requisitionists. Infact the Collector in the present case is not at all called
upon to convene a special meeting as he did not receive any such requisition
from respondent nos. 3 to 15. Such requisition was made by them to the
District Deputy Registrar who had no authority whatsoever to take any
action in the said matter. It is difficult for the Collector to infer an
unequivocal intention of requisitionists to call for a meeting. We, therefore,
find the notice dated 02.12.2013 is upon a requisition which is not in
accordance with the provisions of Section 23A of the 1963 Act.
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11. In so far as the decision relied upon by the learned Senior Counsel
in case of Chandra Kishore Jha .vrs. Mahavir Prasad and others (supra) is
concerned, the principle laid down therein can hardly be debated. The
power and authority having been given to the Collector to convene a special
meeting on receiving a requisition, the same is required to be exercised with
due care and caution. Exercise of such power should reveal proper
application of mind to the requisition that has been duly submitted. In the
present case, the respondent no.1 has without jurisdiction acted upon a
requisition not addressed to him, but to the District Deputy Registrar. In so
far as the dictionary meaning of the word "requisition" is concerned, it is
clear that a demand in writing or a formal request is required to be made to
such authority who has the jurisdiction to take its cognizance and further
necessary steps.
12. Having held that the notice dated 02.12.2013 is not in accordance
with the provisions contained in Section 23A of the 1963 Act, other
challenges to the aforesaid notice are required to be referred to. In so far as
the submission relating to notice period being short, the cognizance and
notice itself have been found to be contrary to law, there is no necessity to
consider the aforesaid submission in the present facts. In so far as the issue
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pertaining to the alleged disqualification of respondent nos. 13 to 15 is
concerned, again the same is not required to be gone into at this stage. We
express no opinion on the said issue and keep the same open for its due
consideration, as and when such occasion arises.
13. In the result, we hold that the notice dated 02.12.2013, being
contrary to the provisions of Section 23A of the 1963 Act, is quashed and set
aside. Writ Petition is allowed. Rule is made absolute in the terms of prayer
clause (i), with no order as to cost.
JUDGE JUDGE
Rgd.
