Bombay High Court
Mr. Ganesh S/O. Mohanlal Kela And ... vs Divisional Joint Registrar, ... on 12 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4067 OF 2015.
1. Mr. Ganesh Mohanlal Kela,
aged 40 years, Occupation
Business, R/o Tar Bazar, Katol,
Tahsil-Katol, District Nagpur
(Maharashtra State).
2. Shri Gajanan Mahadeo Khodankar,
aged 51 years, Occupation Business,
R/o Bazar Chowk, Kondhali, Tahsil
Katol, District Nagpur (Maharashtra
State). ... PETITIONERS
VERSUS
1. Divisional Joint Registrar,
Co-operative Societies, Nagpur
Division, Nagpur, having its office
at Sitabuldi, Nagpur (Maharashtra
State).
2. District Deputy Registrar,
Co-operative Societies, Nagpur,
having its office at Amraoti Road,
Nagpur (Maharashtra State).
3. Agricultural Produce Market
Committee, Katol, through its
Secretary, Katol, Tahsil Katol,
District Nagpur (Maharashtra State).
4. Mr. Dinesh Sheshadri Thakre,
aged Major, Occupation Not Known,
R/o Katol, Tahsil Katol, District
Nagpur (Maharashtra State). ... RESPONDENTS
....
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Shri H.D. Dangre, Advocate for the petitioners.
Shri S.B. Bissa, Assistant Government Pleader respondent Nos.1 and 2.
Shri R.B. Dhore, Advocate for respondent No.3.
Shri T.S. Kene, Advocate for respondent No.4.
....
CORAM : PRASANNA B.VARALE, J.
DATE OF RESERVING THE JUDGMENT : 14TH JANUARY, 2016.
DATE OF PRONOUNCING THE JUDGMENT : 12TH APRIL, 2016.
JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel appearing on behalf of the respective
parties.
2. By way of present petition, the petitioners are challenging the
order dated 02.05.2015 passed by the Divisional Joint Registrar,
Cooperative Societies, Nagpur in Appeal No. 2/2015 and 3/2015 and the
order passed by the District Deputy Registrar, Cooperative Societies dated
20th December, 2014.
3. The petitioners are the license holders as commission agents
(Adtiya) in the Agricultural Produce Market Committee, Katol. The
petitioners are operating as commission agents since year 2009 and they
were eligible to become the members of the Agricultural Produce Market
Committee from the constituency meant for the traders and commission
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agents as per the provisions of Section 13(a)(b) of the Agricultural Produce
Marketing Committee Act (APMC Act). The petitioners were elected as the
members of the APMC, Katol in the election held in the year 2012. The
respondent No.4 Shri Dinesh Thakre was also an elected member of the
APMC in the year 2012 subsequently elected as Chairman and he was
working as the Chairman of APMC till 26th December, 2013. On 26th
December, 2013, no confidence motion was passed against respondent
No.4. The respondent No.4, in challenge to the resolution passed in the
Special Meeting dated 26.12.2013 wherein the no confidence motion was
passed against the respondent No.4, preferred the writ petition before this
Court. Initially, an interim order was passed in favour of the petitioners.
Subsequently, vide order dated 12.02.2014, this Court dismissed the writ
petition filed by respondent No.4. The respondent No.4 approached the
Hon'ble Apex Court and by an interim order dated 14.03.2014, the Apex
Court, while issuing notices, stayed the judgment and the order of this
Court as well as the no confidence motion resolution dated 26th December,
2013. On 09.01.2015, a Special Leave Petition filed by respondent No.4
came to be dismissed.
4. Shri Dangre, the learned Counsel for the petitioners
vehemently submitted that the petitioners who were the licence holders
and the elected members of the APMC, Katol, were operating their
business as traders. The licences issued to the petitioners were renewed
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from time to time. By inviting my attention to the copy placed on record at
Annexures-1 and 2, Shri Dangre submitted that the licences of the
petitioner were renewed till 31st March, 2016 under the signature of the
Secretary or the Administrator as the case may be. The learned Counsel for
the petitioners submitted that the petitioners along with the other
members had moved the no confidence motion against respondent No.4
and on 26th December, 2013, no confidence motion was passed against
respondent No.4 with majority of votes i.e. 13 against 04. It is further
submitted that the petitioners have applied for renewal of their licences for
the year 2014-15. The copies of such applications are also placed on
record.
5. Perusal of the application shows that there is an endorsement
on the application directing one Shri Kalmegh to accept the application
and the fees. It is further stated that the applicant is working as a trader in
the market committee area and there is no arrears of any fees against the
petitioners. The receipts are also placed on record to show that the
petitioners have deposited the requisite licence fees. The District Deputy
Registrar, Cooperative Societies, Nagpur, vide order dated 20th December,
2014, held on the complaint received at the instance of respondent No.4
that the petitioners and one Anil Dhomne ceased to hold the memberships
of the APMC as the licences granted to the petitioners and Shri Dhomne
expired on 31st March, 2014. The District Deputy Registrar, Cooperative
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Societies, Nagpur in his order further declared the petitioners and Shri
Dhomne disqualified under Section 51(1) of the APMC Act, 1967 and
consequently disentitled them from holding the memberships.
6. In an appeal preferred before the Divisional Joint Registrar,
Cooperative Societies, Nagpur, the Divisional Joint Registrar, Cooperative
Societies, the appeal of Shri Anil Dhomne is allowed; whereas the appeal
preferred by the petitioners is dismissed. Shri Dangre, the learned Counsel
for the petitioners vehemently submitted that both the authorities namely
the District Deputy Registrar, Cooperative Societies, Nagpur as well as the
Divisional Joint Registrar, Cooperative Societies, Nagpur grossly erred in
declaring the petitioners disqualified and disentitled them to hold the
memberships. The submission of Shri Dangre is that the petitioners on
expiry of period of licences in the year 2012-13, immediately approached
the APMC, Katol with a request for renewal. The Secretary was directed to
accept the applications as well as the requisite licence fees. It is submitted
that it was not only the petitioners but there were nearly two hundred
applications pending for renewal of licence from different categories. The
learned Counsel for the petitioners submitted that the crucial period was
the submission of the applications for renewal of the licences till the
Special Leave Petition was dismissed filed by respondent No.4 against the
dismissal of his writ petition. Shri Dangre, the learned Counsel for the
petitioners submitted that on 26th December, 2013, no confidence motion
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was passed against respondent No.4. Initially, there was an interim order
passed by this Court and subsequently this Court dismissed the writ
petition.
7. As stated above, the Special Leave Petition was filed and an
interim order was passed by the Hon'ble Apex Court initially on 14.03.2014
and the SLP was dismissed on 09.01.2015. It is submitted by Shri Dangre,
the learned Counsel for the petitioners that the applications for renewal of
the licences of the petitioners were pending before the Committee and at
that crucial period, the respondent No.4 was holding the charge. It is
submitted that the respondent No.4 was having no majority with him but
under the interim order of the Apex Court, the respondent No.4 was
holding charge. Shri Dangre, the learned Counsel for the petitioners
submitted that in view of the provisions of the APMC Act and more
particularly Section 7 of the APMC Act read with Rule 6 of the Rules, there
is a deeming provision for renewal of the licence. It is the submission of
the learned Counsel for the petitioners that as the petitioners were
conducting their business and were operating as traders having licences
for years together and for the year 2014-15, the application for renewal was
pending before the authorities. As such, there was no impediment for the
District Deputy Registrar to hold that the petitioners were holding the due
licences. It is submitted by Shri Dangre that the District Deputy Registrar
on the ground namely the resolution seeking renewal of the licence was
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objected and the petitioners were also the members in the meeting
objecting the resolution and on another ground that the petitioners caused
influence on the Secretary, passed an erroneous order. Shri Dangre, the
learned Counsel for the petitioners submitted that the District Deputy
Registrar ought not to have held that in the meeting, the resolution of
renewal of the licence was rejected and the petitioners were party to the
said decision. The learned Counsel invited my attention to the
proceedings of the meetings dated 03.05.2014 and 24.01.2015. He then
submitted that the appellate authority also committed a gross error. He
also submitted that on the same backdrop of the facts, the appellate
authority allowed the appeal of the other trader Anil Dhomne; whereas
dismissed the appeal of the petitioners. It is the submission of Shri Dangre
that both the authorities i.e. District Deputy Registrar and the Divisional
Joint Registrar failed to consider the provisions of the Act in its proper
perspective and these authorities were required to follow the provisions in
the manner as prescribed in the Act and the deviation by these authorities
is not permissible. Shri Dangre has placed heavy reliance on the judgment
of the Apex Court in the case of Dipak Babaria and another .v. State of
Gujarat and others (reported in 2014(3) SCC, 502).
8. Shri Bissa, the learned Assistant Government Pleader for
respondent Nos.1 and 2 as well as Shri Kene, the learned Counsel for
respondent No.4 support the orders passed by the District Deputy
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Registrar and the Divisional Joint Registrar.
9. Shri Kene, the learned Counsel for respondent No.4 submitted
that the respondent No.4 was functioning as the Chairman of APMC, Katol
from the date of election in the year 2012 till 12.02.2014 and thereafter from
14.03.2014 till 09.01.2015. It is further the submission of Shri Kene that
during this period, the respondent No.4 was discharging his duties by
following the provisions of law. He further submitted that the licences of
the petitioners were expired in the year 2014 and there was no renewal of
their licences thereafter. The petitioners were the valid licence holders till
28.02.2014 only and as the petitioners were holding the valid licences,
subsequently they were disqualified from being the members of the APMC.
Shri Kene, the learned Counsel for respondent No.4 further submitted that
the resolution passed by the subsequent Chairman giving a retrospective
effect of renewal cannot and could not have overcome the hurdle of
rejection of the licences of the petitioners. The learned Counsel for
respondent No.4 placed reliance on the judgment of this Court in Writ
Petition No. 3130 of 2015 (Hukumchand Govindrao Amdhare and
others .v. The Collector, Nagpur and others decided on 15 th and 18 th
December, 2015).
10. On the backdrop of the submission of the learned Counsel
appearing on behalf of the respective parties, I have gone through the
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material placed on record. The material shows that the petitioners have
submitted their applications for renewal of the licences for the year 2014-
15. It was directed to the Secretary to accept the renewal applications and
the requisite fees. The material shows that the petitioners have also
deposited the requisite fees. It further shows that the applications of the
petitioners were received and were the subject matter of the monthly
meeting dated 03.05.2014 of the APMC for approval. The petitioner No.1
Shri Ganesh Kela finds place at serial No.29 under the caption of Renewal
Application traders and petitioner No.2 is at serial No.18. It is also not in
dispute that no confidence motion was passed against respondent No.4 in
the meeting dated 26.12.2013 and one Shri Tarkeshwar Shelke was elected
as the President of APMC. It will be useful to refer to the proceedings of the
meeting dated 03.05.2014. At the relevant time, the respondent No.4 was
the President of the APMC. Perusal of the proceedings shows that there
were eight steps for the consideration of the members. These steps were
namely approval to the earlier meeting, approval to the accounts of
February and March, 2014, approval to certain construction works and
step No.8 was consideration of the applications for renewal of licences.
11. Perusal of the proceedings shows that 12 members present in
the meeting objected the consideration of all the eight steps. It was stated
by the members including the petitioners that they have lost the
confidence in the President i.e. respondent No.4 and on that ground they
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raised an objection to all the subjects in the meeting. The District Deputy
Registrar, by referring to this meeting, arrived at a conclusion that the
petitioners were present in the meeting, ought to have passed the
resolution of renewal of the licence and as the resolution is not passed by
majority, the petitioners have failed to seek approval to their renewal of
licences.
12. As stated above, the proceedings clearly shows that the
petitioners and the other members raised objection to all the eight subjects
on the ground that they have lost confidence in respondent No.4 and on
this ground, they have objected all the subjects placed for consideration in
the meeting. There is considerable merit in the submission of Shri Dangre
that the District Deputy Registrar has grossly erred in appreciating these
facts and also the appellate authority i.e. Divisional Joint Registrar erred in
upholding the decision of the District Deputy Registrar. The other ground
on which the District Deputy Registrar passed the order of disqualification
of the petitioners is that the petitioners have influenced the Secretary for
issuance of granting deeming effect of the licence. The District Deputy
Registrar has not referred to any such material at which he is arrived at the
conclusion that there was an influence brought on the Secretary by these
petitioners. On the contrary, Shri Dangre, the learned Counsel for the
petitioners was justified in submitting that in view of the provisions of the
APMC Act namely Section 7 read with Rule 6(2)(4) of the Rules which deals
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with grant of licence, a deeming provision is made out.
It will be useful to refer to the said provisions. Section 7 deals with the
grant of licences and provides that if the Market Committee fails to grant or
renew or refuse a licences within a period of sixty days from the date of
receipt of the application therefor, the licences shall be deemed to have
been granted or renewed, as the case may be.
Rule 6 reads thus :
"7. Grant of licences.
(1) Subject to rule made in that behalf, a Market
Committee may, after making such inquiries as it deems fit,
grant or renew a licence for the use of any place in the
market area for Marketing of the agricultural produce or for
operating therein as a trader, commission agent, broker,
processor, weighman, measurer, surveyor, warehouseman
or in any other capacity in relation to the marketing of
agricultural produce; or may, after recording its reasons in
writing therefor, refuse to grant or renew any such licence :
[Provided that, if the Market Committee fails to
grant or renew or refuse a licences within a period of sixty
days from the date of receipt of the application therefor, the
licences shall be deemed to have been granted or renewed,
as the case may be.]"
"6. Licensed trader, broker and commission agent.
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(1) ...
(2) On receipt of any application together with the
proper amount of the fees, if any, and information referred
to in sub-rule (1), the Director, or as the case may be,
Market Committee may, subject to the provisions of rule 5
and this rule, after, satisfying himself or itself on the
following points, grant the applicant a licence in Form I, or,
as the case may be, renew it in that Form (such licence
being issued or renewed, except, in a case where it is
granted by the Director, under the signature of the
Chairman), namely :
(a) (i) solvency certificate;
(ii) cash security or bank's or third person's
guarantee, [if a solvency certificate is not
produced];
(iii) capacity for providing adequate equipment for
smooth conduct of the business;
(iv) conduct of the applicant;
[(v) ------ ]
(b) in the case of renewal of a licence, also whether
[on the basis of a statement to be furnished by the licencee
showing the business transacted and the amount of dues
paid or payable to the Market Committee in the last
preceding market year] the applicant has traded or not in
the market area or whether the person has overtraded :
Provided that, no licence shall be issued to any
applicant unless he executes an agreement in the form
approved by the Director agreeing to abide by the
provisions of the Act, these rules and the bye laws.
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(3) ...
(4) Notwithstanding anything contained in sub-
rule (2), the Director, or as the case may be, the Market
Committee may for reasons to be recorded in writing refuse
to grant or renew a licence to any person, who in his or its
opinion, is not solvent or in the case of renewal of licence, if
the person has not traded in the market area for more than
a week without valid reasons or who had committed any
act, or abstained from carrying out his normal business,
with the intention of willfully obstructing, suspending or
stopping the marketing of declared agricultural produce in
the market area and in consequence thereof, the marketing
of declared agricultural produce in the market area, the
marketing of any such produce had been obstructed,
suspended, or stopped. If any licence is not granted or
renewed the applicant shall be informed of the same and
the reasons therefor and the licence fee, if paid, shall be
refunded to the applicant.
(5) [(a) On receipt of the application for grant or for
renewal of the licence, the Market Committee
shall record the date on such application with
an entry in the register prescribed in this behalf,
and shall complete the inquiry, as deemed fit
and shall dispose of such application, within
thirty days of its receipts.
(b) When the licence is deemed to have been
granted to the applicant, or renewed, as the
case may be, under section 7 of the Act, the
secretary of the market committee shall issue
the licence to the applicant.]"
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13. The submission of Shri Dangre, the learned Counsel for the
petitioners is that in the case of petitioners, firstly Section 7(1) deals with a
deeming provisions and secondly Rule 6 cast a duty on the director or
market committee to inform the licence holders about the reasons if the
licence is not granted or renewed. There is also prescribed time limit for
completing the enquiry in cases of grant or renewal of the licence on
receiving the application and the receipts of payment of the requisite fees.
Shri Dangre, the learned Counsel submitted that in case of the petitioners,
neither the petitioners were informed about non grant of their renewal nor
the enquiry was conducted as such the authorities have failed to comply
with the aforesaid provisions of the rules.
14. There is also considerable merit in the submission of Shri
Dangre that the appellate authority on the similar facts and in view of the
provisions particularly Section 7(1) of the APMC Act, allowed the appeal of
Shri Anil Dhomne; whereas dismissed the appeal of the petitioners on the
backdrop of the meeting dated 03.05.2014. As this Court is of the opinion
that the petitioners in the meeting dated 03.04.2015 by expressing their no
confidence on the President i.e. respondent No.4 objected all the subjects
placed in the meeting including the subject of the consideration of the
renewal application, the said meeting could not have considered giving an
adverse effect to the interest of the petitioners.
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15. Shri Kene, the learned Counsel for respondent No.4 submitted
that by the decision of passing the resolution in the meeting dated
24.01.2015 giving retrospective effect to the grant of licence, the petitioners
could not have been presumed to be holding the valid licence for the year
2014-15. The learned Counsel for respondent No.4 though placed reliance
on the judgment of this Court in Writ Petition No. 3130 of 2015 (cited
supra), in my opinion, considering the facts of the present case and the
material which is discussed in details, the judgment of this Court in Writ
Petition No. 3130 of 2015 (cited supra) cannot be made applicable to the
present petition.
16. Considering all the above referred aspects, in my opinion, the
orders impugned in the petition passed by the District Deputy Registrar
and the Divisional Joint Registrar are clearly unsustainable and the same
are hereby quashed and set aside.
17. In the result, the writ petition is allowed. Rule is made absolute
in aforesaid terms.
JUDGE
*rrg.
