Bombay High Court
Namdev Bhagwanrao Ghule vs The State Of Maharashtra And ... on 23 March, 2016
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11866 OF 2015
Shri Namdev Bhagwanrao Ghule,
Age : 58 Years, Occu. : Agril.,
R/o Dhamdham, Post Wazar,
Tq. Jintoor, Dist. Parbhani. .. Petitioner
Versus
1.
The State of Maharashtra,
Through Secretary,
Co-operation Department,
Mantralaya, Mumbai.
2. Managing Director,
Maharashtra State Agricultural
Marketing Board, Pune.
3. District Deputy Registrar,
Co-operative Societies, Parbhani,
Dist. Parbhani.
4. The Administrator Board,
Agricultural Produce Market Committee,
Jintoor, Dist. Parbhani.
5. Administrator Board,
Agricultural Produce Market Committee,
Bori, Tq. Jintur, Dist. Parbhani.
6. The Secretary,
Agricultural Produce Market Committee,
Jintoor, Dist. Parbhani. .. Respondents
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Shri V. D. Hon, Senior Advocate i/by Shri Subhash V. Mundhe,
Advocate for the Petitioner.
Shri A. M. Phule, A.G.P. for Respondents/State.
Shri B. N. Patil, Advocate for the Respondent No. 2.
Shri V. D. Salunke, Advocate for the Intervenor.
CORAM : S. V. GANGAPURWALA
A. M. BADAR, JJ.
CLOSED FOR JUDGMENT ON : 26.02.2016
JUDGMENT PRONOUNCED ON : ig 23.03.2016
JUDGMENT (Per S. V. Gangapurwala, J.) :-
. The petitioner assails order/notification dated 01.12.2015
thereby bifurcating Agricultural Produce Market Committee
Jintur (for short "A.P.M.C. Jintur") and constituting Agricultural
Produce Market Committee, Bori (for short "A.P.M.C. Bori").
2. Mr. Hon, the learned senior counsel submits that, the
A.P.M.C. Jintur is established in the year 1961. At that time
there were 231 villages, but lateron due to establishment of new
taluka only 170 villages are covered under the area of operation
of A.P.M.C. Jintur. Village Bori is also under the area of
operation of A.P.M.C. Jintur. Said village is hardly 13 to 15
kilometers away from Jintur. Most of the villages in the area of
operation of A.P.M.C. Jintur are situated around Jintur within
25 to 30 K.M. radius. Jintur A.P.M.C. is near to all the villages
and surrounding agriculturists. Earlier because of the local M.
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L. A. the Government had issued notification on 01st March 2004
bifurcating A.P.M.C. Jintur. The said notification was
challenged in Writ Petition No. 1822 of 2004. This Court set
aside the said notification on 26.02.2015. Same attempt is made
vide notification dated 01.12.2015 by bifurcating A.P.M.C. Jintur.
3. The learned senior counsel further submits that, vide order
dated 21.02.2015, the respondent No. 3 has superseded A.P.M.C.
Jintur and appointed administrator/board as per Sec. 15 of the
Maharashtra Agricultural Produce Marketing (Regulation) Act,
1963 (hereinafter for the sake of brevity referred as to the "Act of
1963"). The said order was challenged in Writ Petition No. 2146
of 2015. The said petition was disposed of on the basis of
statement made by the Assistant Government Pleader that, they
are going to conduct the election of A.P.M.C. Jintur. Instead of
holding elections, the impugned notification has been issued
bifurcating A.P.M.C. Jintur.
4. The learned senior counsel submits that, the procedure
required to be followed at the time of bifurcating A. P. M. C. is
not at all adhered. This Court in Writ Petition No. 1822 of 2004
had set aside the earlier notification bifurcating A.P.M.C. Jintur
on the ground that there is no effective consultation with the
A.P.M.C. as per Sec. 44 of the Act of 1963. Inspite of the
aforesaid judgment, the impugned notification is passed which is
contrary to the judgment. The procedure laid down U/Sec. 44 of
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the Act of 1963 has been given go-bye. There has to be effective
consultation with the Market Committee and the State
Marketing Board. According to the learned senior counsel, vide
the impugned notification 39 villages are deleted from A.P.M.C.
Jintur for establishment of A.P.M.C. Bori. The question of
financial viability would arise. The financial condition of
A.P.M.C. Jintur is very weak. While bifurcating A.P.M.C. Jintur
this aspect has not been considered. The learned senior counsel
relies on the judgment of the Division Bench of this Court in the
case of Shivram Sonbaji Girhipunje and others Vs.
State of Maharashtra and others reported in 2010(1)
Mh.L.J. 602.
5. The learned senior counsel further submits that, the
allocation of villages to the newly created Market Committee is
unscientific and unreasonable. The villages near to A.P.M.C.
Jintur have been allotted in the area of A.P.M.C. Bori. The same
is illogical and unreasonable. In the instant case, there is no
resolution passed by A.P.M.C. Jintur for bifurcation of A.P.M.C.
Jintur into A.P.M.C. Bori. In absence of Market Committee,
administrative board has sent the proposal on 28.02.2015. This
shows that, there is no effective consultation. The learned senior
counsel submits that, in Writ Petition No. 2146 of 2015, when
this Court was to restore charge to A.P.M.C. Jintur at that time
intentionally the authorities had made a statement that they are
going to conduct the elections of A.P.M.C. Jintur. However,
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instead of conducting elections, the respondents started the
process of bifurcating the A.P.M.C. Jintur.
6. The learned senior counsel submits that, as per Sec. 44 of
the Act of 1963, the authority has to consult with the Market
Committee. Sec. 11 of the Act of 1963 clearly indicates that,
there must be Chairman, Vice Chairman and other members.
But there are no elected members in the said A. P. M. C. The
administrative board is of Government officers. In absence of
any elected board, the members of the administrative board have
sent the proposal with the help of local M.L.A. The law does not
permit the administrative board to take such type of policy
decision. The same is illegal. Further the impugned notification
if perused, shows that after decision of Agricultural Marketing
Board, Pune, there is no consultation with the A.P.M.C. Jintur.
The impugned notification is politically motivated. The learned
senior counsel relies on the judgment of this Court in the case of
Sopanrao Onkarrao Sathe and another Vs. State of
Maharashtra and others reported in 2011(1) Mh.L.J.
739.
7. The learned senior counsel submits that, the respondents
have failed to consider that A.P.M.C. Jintur has a loan
outstanding for development of sub market yards. If the said
A.P.M.C. is bifurcated, it will create great problem to A.P.M.C.
Jintur as it would affect the financial condition. It is submitted
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that, till today newly constituted Bori A.P.M.C. has not started
its work. The District Deputy Registrar was the President of the
administrative Board. The D. D. R. himself and one another
member of the administrative board passed a resolution for
bifurcation. The D. D. R. states that, he himself has consulted
with the Maharashtra State Agricultural Board, Pune. The
same is against the propriety. The D. D. R. ought to have allowed
the election of A.P.M.C. Jintur to be completed and the elected
managing committee only could have proceeded to take the
decision whether to bifurcate A.P.M.C. Jintur or not. In absence
of Managing Committee, D.D.R. himself has done all these
activities, which is improper. According to the learned senior
counsel since fifteen years, there is sub market at Bori. So by
creating another A.P.M.C. Bori, no purpose would be served. The
said notification be set aside.
8. The learned Assistant Government Pleader for
respondents/State submits that, bifurcating an A.P.M.C. is an
administrative decision. The allocation of villages, aspect of
financial viability and convenience has been considered by the
authorities. The Court would not go into the correctness of the
said question. The learned A. G. P. relies on the judgment of the
Division Bench of this Court in a case of Agricultural
Produce Market Committee Vs. State of Maharashtra
reported in 2007(6) Bom.C.R. 537.
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9. According to the learned A. G. P. before issuing the
order/notification dated 01.12.2015, the respondents have
considered various aspects in the interest of farmers of the said
area. Before bifurcating said A.P.M.C. it has been considered
that, since 1971 sub yard is established at Bori. So the
agriculturists residing near the vicinity of Bori use to approach
sub yard Bori. The other factors are also considered, such as
total area under cultivation and total yield of agriculturists
residing in Bori vicinity. The chart of the same is annexed along
with the affidavit in reply. The survey was conducted. The
agriculturists residing in the vicinity of Bori were required to
travel 15 to 20 K.M. to approach A.P.M.C. Jintur. If A.P.M.C.
Bori is established, the transportation cost of agriculturists
would be reduced. The A.P.M.C. Bori is constituted, the
administrator has taken charge and looking and managing the
day today affairs of the market committee since 01.12.2015. The
A.P.M.C. Jintur has also transfered amount in the account of
A.P.M.C. Bori towards administrative expenses. Sufficient
infrastructure is available at A.P.M.C. Bori i. e. 03.03H land,
five godowns, office building, auction place in the market and six
employees are working with A.P.M.C. Bori from the date of
establishment of market yard. Though the board of
administrators is appointed for A.P.M.C. Jintur, the said board
can exercise powers of the said committee as per Sec. 15A(2) of
the Act of 1963. Consultation is effectively conducted. The
decision is taken purely in the interest of farmers. The decision
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to bifurcate the A.P.M.C. Jintur and create A.P.M.C. Bori is
taken by the authorities after consultation with A.P.M.C. Jintur
and Director of Marketing Board, Pune.
10. Mr. Patil, the learned counsel for the respondent No.
2/Maharashtra State Agricultural Marketing Board, Pune
Division submits that there is effective consultation as required
under the statute. Letter dated 09.07.2015 from D.D.R. Parbhani
in respect of giving consultation on the issue of bifurcation was
received by the respondent No. 2. The respondent No. 2 held its
meeting of Board of Directors on 19.11.2015. In the said meeting
the subject in respect of bifurcation was discussed in detail. The
resolution No. 4 was passed after considering the said proposal.
There is an effective consultation and subsequently letter dated
27.11.2015 was issued to the D.D.R. Parbhani. After considering
and studying the situation and the complete data, decision was
taken by the Board of Directors and the resolution was passed.
The learned counsel submits that, A.P.M.C. Jintur was
sanctioned loan of Rs. 1,00,00,000/- (Rs. One crore only) by the
respondent No. 2 for the development of main market at Jintur
sub market at Bori. The said amount is not disbursed as yet.
Now that amount will be distributed amongst the two market
committees and will be recovered separately from their income.
11. Mr. Salunke, the learned counsel for the intervenor
submits that, the petitioner does not have any locus standi to file
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present petition. The petitioner is not affected as A.P.M.C.
Jintur exists. A.P.M.C. Bori is formed for the benefit and
convenience of agriculturists. The petitioner is not elected
member of A.P.M.C. Jintur. The present petition at the behest of
such a petitioner is not maintainable. Total procedure for
bifurcation of A.P.M.C. Jintur is followed. The D. D. R. has
effectively consulted with the State Marketing Board. The
learned counsel relies on the judgment dated 14.06.2002 passed
by this Court in Writ Petition No. 2928 of 1991 to submit that,
the resolution passed by the market committee is sufficient
consultation.
12. We have considered the submissions canvassed by the
learned counsel for respective parties. Before we advert to the
contentions put forth by the learned counsel for respective
parties, it would be necessary to refer to the relevant provisions
of the Act of 1963.
THE MAHRASHTRA AGRICULTURAL
PRODUCE MARKETING (DEVELOPMENT AND
REGULATION) ACT, 1963
1. .........
2. .........
15. .........
15A. (1) Notwithstanding anything contained
in sub-section (3) of section 15 or any other provisions
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of this Act, where the term of office of two years, five
years or as the case may be, the extended term of
office, if any, under the proviso to sub-section (3) of
Section 14 of the member of any Market Committee has
expired, the Director or any officer not below the rank
of the District Deputy Registrar of Co-operative
Societies, authorised by him shall by order in writing
direct that --
(a) all members of the Committee shall, as
from the date specified in the order, cease to hold and
vacate their offices as members or otherwise; and
(b) [the Administrator or the Board of
Administrators appointed by the Director or such
authorised officer shall manage the affairs of the
Committee], during the period from the date specified
in the order upto the day on which the first meeting of
the reconstituted Committee after the election is held,
where there is a quorum (hereinafter in this section
referred to as "the said period") such election shall be
held within a period of [six months] from the date [the
Administrator or the Board of Administrators] assumes
office:
Proviso ---------------
(1A) ..................
(2) During the said period, all the powers and
duties of the Committee and its various authorities
under this Act and the rules and bye-laws made
thereunder or any other law for the time being in force
shall be exercised and performed by [the Administrator
or the Board of Administrators].
16. ...........
17. ..........
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44. (1) Where the State Government is satisfied
that for securing efficient regulation or marketing of
any agricultural produce in any market area [and for
ensuring the economic viability of the Market
Committee], it is necessary that two or more Market
Committees therein should be amalgamated or any
Market Committees, therein should be divided into two
or more Market Committees, then the State
Government may, after consulting the Market
Committees or Committee, as the case may be, [and the
[State Marketing Board]] by notification in the Official
Gazette, provide for the amalgamation or division of
such Market Committees into a single Market
Committee or into two or more Market Committees, for
the market area in respect of the agricultural produce
specified in the notification with such constitution,
properly, rights, interest and authorities and such
liabilities, duties and obligations (including provisions
in respect of contracts, assets, employees, proceedings
and such incidental consequential and supplementary
matters as may be necessary to give effect to such
amalgamation or as the case may be, the division] as
may be specified in the notification.
13. The order/notification dated 01.12.2015 bifurcating
A.P.M.C. Jintur and establishing A.P.M.C. Bori is assailed by the
petitioner on following counts.
(i) Absence of effective consultation as required U/Sec.
44 of the Act of 1963.
(ii) The weak financial condition of A.P.M.C. Jintur.
(iii) The same is unreasonable.
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14. The scope of judicial review of administrative decisions has
its inherent limitations. In such cases, judicial review is
concerned with reviewing not the merits of the decision, but the
decision making process. The Court does not have the expertise
to correct the administrative decisions. The Court would confine
itself to the question of legality i. e. whether the decision making
authority exceeded its powers, committed an error of law,
committed breach of rules or abused its powers and that there is
no procedural impropriety.
15. This Court would not sit as an appellate authority over the
decision taken by the Committee. This Court would be concerned
with regard to the adherence to decision making process. The
State Government while taking decision to divide and bifurcate
any market committee into two or more market committees has
to satisfy that same is necessary for securing efficient regulation
of marketing of agricultural produce in the market area. The
said satisfaction is a subjective satisfaction based on objective
assessment of the relevant factors.
16. In the instant case, while taking a decision to bifurcate
A.P.M.C. Jintur and establish A.P.M.C. Bori, the respondents
have considered that the distance between Jintur and Bori is 15
to 20 K.M. It is difficult for farmers to travel 15/20 K.M. to
A.P.M.C. Jintur. The other factors such as the financial viability,
the number of villages that would be attached, agricultural
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produce received by the A.P.M.C. Jintur and A.P.M.C. Bori is
also considered. So also has conducted survey regarding the
quantity of agricultural produce that is likely to be received in
future by Jintur and Bori independently. The respondents have
also considered the income, expenditure of A.P.M.C. Jintur and
A.P.M.C. Bori for last five years, the financial viability and
feasibility of A.P.M.C. Jintur and A.P.M.C. Bori, if A.P.M.C.
Jintur is divided. The convenience of agriculturists also is one of
the factor that has been considered by respondents. All these
factors were considered prior to taking the decision of bifurcating
A.P.M.C. Jintur. The respondents have done the necessary
exercise. As such, it can be safely concluded that, the
respondents have considered relevant factors while taking
decision to divide A.P.M.C. Jintur and establish A.P.M.C. Bori.
17. The petitioner has harped more on the aspect of non
adherence to the requirement of effective consultation. The
object of consultation is to render decision making process
meaningful, so that it may serve its needed purpose. The
meaning of consultation varies from case to case, depending upon
its fact, situation and the context of the statute, as well the object
it seeks to achieve. There cannot be any straight jacket formula
in this regard. Ordinarily and broadly consultation means
communication of the views between the consultee and the
consultor. Direct discussion is not an indispensable ingredient of
any consultation. The extent, nature and importance of
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consultation depends on the subject, object and the context
thereto under a particular statute. No hard and fast rule can be
laid down with regard to the manner in which consultation must
take place. It is for the Court to determine in each case in the
light of the facts and circumstances, whether the consultation as
appearing in the provision has taken place or not.
18. In the present case at the relevant time elected body was
superseded and the administrative board was acting as
Committee. Sec. 15A(2) of the Act of 1963 succinctly lays down
that during the period, the administrative board is appointed, all
the powers and duties of the committee and its various
authorities under the Act, the Rules and bye-laws made
thereunder or any other law for the time being in force shall be
exercised and performed by the administrator. The
administrative board/administrator as such steps into the shoes
of the Managing Committee and is empowered to take the
decision, which otherwise can be taken by the Committee.
Administrator/board has passed a resolution on 28.02.2015 for
establishing separate A.P.M.C. Bori. The Maharashtra State
Marketing Board, Pune in its meeting considered and discussed
said resolution. It took into consideration the income,
expenditure for last five years of A.P.M.C. Jintur and A.P.M.C.
Bori. It also considered that if A.P.M.C. Bori is independently
established, then both A.P.M.C.s' that is A.P.M.C. Jintur and
A.P.M.C. Bori would be financially sound. The transportation
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charges of the agriculturists in the vicinity of Bori would be
reduced and thereafter approved the said proposal. The same
was discussed by the Marketing Board on 19.11.2015 and the
same was referred to the D. D. R. Parbhani. As such it would be
seen that the mandate of consultation as contemplated U/Sec. 44
of the Act of 1963 has been complied. Various aspects were
discussed and considered. The complete material was before the
Marketing Board. The same would satisfy the test of
consultation.
19. Considering the above, challenge to the said
order/notification fails. The respondents have exercised the
powers in proper manner. There is no error in the decision
making process. The writ petition as such is dismissed. No
costs.
20. As on merits, we have negatived the contentions of the
petitioner, the contention with regard to the locus standi of the
petitioner as raised by the intervenor is not considered.
Sd/- Sd/-
[ A. M. BADAR, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/March 16
