Bombay High Court
Gajanan S/O Tulshiram Deole And ... vs The State Of Maharashtra Through ... on 25 April, 2017
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 607/2015
1) Gajanan s/o Tulshiram Deole
Aged adult, 45 years
2) Bapurao s/o Shriram Kute
Aged adult, 52 years
3) Sau. Prayagbai w/o Bharat Jogdand
Aged adult, 41 years
4) Ravikumar s/o Bhagwandas Bhutda
Aged adult, 38 years
5) Dr.Jagdish s/o Gyanrao Ghuge
Aged adult, 55 years
6) Sanjay s/o Narayan Ghuge
Aged adult, 56 years
7) Shivaji s/o Raghoji Kale
Aged adult, 62 years
8) Anandrao s/o Awadoot Deole
Aged adult, 44 years
All 1 to 8 occu: cultivators
R/o Malegaon Tah. Malegaon
Dist.Washim. ..PETITIONERS
v e r s u s
1) The State of Maharashtra
Through its Secretary
Cooperative Department, Mantralya, Mumbai-32.
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2) The Director of Marketing
Market yard, Gultekdi, Pune.
3) The Divisional Joint Registrar
Cooperative Societies, Amravati.
4) The District Deputy Registrar
Cooperative Societies, Washim.
5) The Agricultural Produce Market Committee
Malegaon, Dist. Washim
Through its Secretary
6) Maharashtra State Agricultural Marketing
Board, Pune, having its office at
Plot No.R-7, Market Yard,
Gultekdi, Pune
Through its Director. ..RESPONDENTS
...........................................................................................................................
Mr. A.M.Ghare, Advocate for the petitioners
Mrs. Geeta Tiwari, Assistant Government Pleader for respondents 1 to 4
Respondent nos.5 and 6 served.
...........................................................................................................................
CORAM: SMT. VASANTI A. NAIK &
MRS . SWAPNA JOSHI, JJ
.
DATED : 25 April, 2017
th
ORAL JUDGMENT: (PER SMT. VASANTI A. NAIK, J.)
Rule. Rule made returnable forthwith. The Writ Petition is heard finally
with the consent of the learned counsel for the parties.
2. By this Writ Petition, the petitioners-Board of Directors of the
Agricultural Produce Market Committee, Malegaon have challenged the order
of the District Deputy Registrar, Cooperative Societies, Washim superseding
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the Board of Directors of the Market Committee, under Section 45 of the
Maharashtra Agricultural Produce Marketing (Development & Regulation) Act,
1963 (hereinafter referred to as 'the Act' for the sake of brevity).
3. The petitioners were the elected Directors of the Market Committee,
Malegaon. Certain complaints were made against the Directors of the Market
Committee and a preliminary enquiry was conducted in the complaint by the
Assistant Registrar, Cooperative Societies, Malegaon. According to the Assistant
Registrar, there was some substance in the complaints made against the
petitioners. After securing the report from the Assistant Registrar, the District
Deputy Registrar served a notice under section 45 (1) of the Act, asking the
petitioners as to why the Market Committee should not be superseded or the
members be removed, in view of the default committed by them. The
petitioners replied to the show-cause notice, but their reply did not find
favour with the District Deputy Registrar. By the impugned order dated
31.01.2015, the District Deputy Registrar superseded the Market Committee.
The petitioners have challenged the said order in the instant petition.
4. Inter alia, it is submitted on behalf of the petitioners that the impugned
order is liable to be set aside, as the provisions of Section 45(1) of the Act
have not been complied with, before the order of supersession was passed. It is
stated that the State Marketing Board was not 'previously consulted', as the
State Marketing Board had not expressed its opinion one way or the other in
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regard to the supersession of the Market Committee. It is submitted that it is
well-settled that before superseding a Market Committee under the provisions
of the Act, it would be necessary for the State Government to consult the State
Marketing Board and to secure its opinion about the supersession of the
Market Committee. It is submitted that consultation with the State Marketing
Board is held to be mandatory and it has to be effective and merely a show
must not be made that the State Marketing Board was consulted. It is stated
that after the District Deputy Registrar sought the opinion of the State
Marketing Board, the State Marketing Board, vide communication, dated
12.09.2014, only conveyed to the District Deputy Registrar that appropriate
action be taken against the Market Committee in accordance with law. It is
submitted that the said expression by the State Marketing Board would not be
an opinion in the eye of law and it therefore cannot be said that there was an
effective consultation with the State Marketing Board by the District Deputy
Registrar, before passing the order under Section 45 of the Act, in respect of
supersession of the Market Committee. The learned counsel relied upon the
judgment of the Honourable Supreme Court in the case of Kewal Ram vs.
Maharashtra State Cooperative Societies and others, reported in 1986(2)
SCALE page 89, to submit that the expression "previously consulted" means
that the opinion must be taken into account one way or the other, before
reaching the conclusion, whether or not the Market Committee could be
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superseded. It is submitted that though the judgment in the matter of
Tukaram Narayanrao vs. State of Mahrashatra, reported in 1998 (2) All
MR Page 384 takes a somewhat different view in the matter, it would be
necessary to note that the judgment of the Hon'ble Supreme Court in the case
of Kewalram (supra) was not cited before the Court when the said judgment
was rendered. It is submitted that in a recent decision of this Court, in the case
of Abhishek Thakare and others vs. The District Deputy Registrar,
C.S.,Yavatmal and others, reported in 2014 (6) All MR Page 278, this Court
has, after considering the decisions in the cases of Kewalram (supra) and
Tukaram (supra), has held that the expression 'previously consulted' means
the opinion of the State Marketing Board one way other other, must be taken
into account before reaching the conclusion whether or not to supersede the
Market Committee. It is submitted that in the case of Abhishek Thakare
(supra), this Court was considering the order of the State Marketing Board,
which runs into several pages, but it was only stated by the State Marketing
Board that action in accordance with law could be taken. Reliance is also
placed by the learned counsel for the petitioners on the judgment in the case
of Suresh Yenodkar vs. State of Maharashtra and others, reported in
2017(2) All MR Page 217,to substantiate his submission.
5. Mrs. Tiwari, the learned Assistant Government Pleader appearing for
the respondent nos.1 to 4 has supported the order of the District Deputy
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Registrar, superseding the Market Committee. It is submitted that before taking
the decision of superseding the Market Committee under Section 45 of the Act,
the District Deputy Registrar had specifically sought the opinion of the State
Marketing Board and the State Marketing Board, vide communication dated
12.09.2014, had informed the District Deputy Registrar to take appropriate
action in accordance with law. It is stated on instructions from the Manager
of the State Marketing Board, who is present in the Court today, that after
the impugned order was passed on 31.01.2015, the District Deputy Registrar,
again, asked the State Marketing Board to give an opinion one way or the
other and the State Marketing Board has opined that the Market Committee
needs to be superseded.
6. On hearing the learned counsel for the parties, we find that the
impugned order dated 31.03.2015 cannot be sustained, as the same is passed
without effective consultation with the State Marketing Board. The provisions
of Section 45(1) of the Act empower the State Government to supersede the
Market Committee and/or to remove its members as the case may be, when it
is of the opinion that the Market Committee is not competent to perform
and/or is persistently making default in performance of duty imposed on it,
under the Act. The proviso to sub-section (1) of the Section 45, however,
stipulates that no Market Committee could be superseded without prior
consultation with the State Marketing Board. It is held by this Court, time and
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again, that the consultation with the State Marketing Board is mandatory and
the consultation has to be effective. It is held that the State Government
cannot just make a mere show of having consulted the State Marketing Board
and the consultation has to be effective. So also, the proviso to sub-section (1)
of Section 45 of the Act provides that the consultation should be previous
consultation and the State Marketing Board cannot be consulted after the
decision is taken. In the instant case, after the District Deputy Registrar asked
the State Marketing Board to give its opinion in regard to the supersession of
the Market Committee by supplying the material in respect of the complaints
and the report of the Assistant Registrar of the Cooperative Societies, by a
single line order-communication, dated 12.09.2014, it was informed by the
State Marketing Board to the District Deputy Registrar that appropriate action
may be taken in accordance with law. What is expected from the State
Marketing Board is an opinion one way or the other and it would be
necessary for the State Marketing Board to convey its opinion that either the
Market Committee needs to be superseded and/or the members need to be
removed or that no action needs to be taken against the Market Committee or
its members on the basis of material available before it. The Hon'ble Supreme
Court has held in the judgment in the case of Kewalram (supra),that the
opinion of the Federation one way or the other must be taken into account
before reaching the conclusion whether or not to supersede. The Hon'ble
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Supreme Court went on to add that it is not a good answer to say that the
opinion of the Federation could not be taken into account because no opinion
was expressed by it. It is further observed that a reply from the Federation,
one way or the other should be insisted upon. In the instant case, probably,
the District Deputy Registrar realised the mistake committed by him in
superseding the Market Committee, under Section 45 (1) of the Act, by
considering the communication of the State Marketing Board, dated
12.09.2014, which was not an opinion in the eye of law. A mere statement in
the communication that appropriate action may be taken would not be an
opinion of the State Marketing Board. When a specific opinion is sought by the
State Government whether a Market Committee should be superseded or not,
it would be necessary for the State Marketing Board to convey to the State
Government that in the circumstances of the case,the Market Committee needs
to be superseded or the Market Committee should not be superseded. If the
so called opinion, which is conveyed by the State Marketing Board vide
communication, dated 12.09.2014 is said to be an opinion as is contemplated
under section 45 (1) of the Act, 'previous consultation' would be an empty
formality. If an opinion like the one expressed by the State Marketing board
vide communication dated 12.09.2014 is expressed by the State Marketing
Board, it would be necessary for the State Government or the authority under
the Act, to which the power under section 45(1) is delegated, to ask the State
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Marketing Board to express its opinion one way or the other. In the instant
case, after realising the folly of taking a decision without the 'opinion' of the
State Marketing Board, the District Deputy Registrar could not have asked the
State Marketing Board to express its opinion one way or the other and then
supported the earlier impugned decision on the basis of a post-decisional
opinion. We are afraid that the opinion expressed by the State Marketing
Board after the order of supersession of the Market Committee is passed on
31.01.2015 would not mean 'previous consultation' as is provided under the
proviso to Section 45(1) of the Act. The proviso to Section 45(1) of the Act,
as stated herein-above speaks of 'previous consultation'. A consultation post
the decision, would be of no consequence. We are supported in our view by
the judgment in the case of Abhishek Thakare (supra). While rendering the
judgment in the case of Tukaram (supra) this Court did not have an occasion
to consider the law laid down by the Hon'ble Supreme Court in the judgment
in the case of Kewalram (supra), but this Court had, after considering the
law laid down in the case of Kewalram (supra) as also the law laid down in
the case of Tukaram (supra), and a catena of decisions, has held in the
judgment in the case of Abhishekh Thakare (supra) that the State Marketing
Board would fail in its obligation if it does not express its opinion in regard to
the supersession of the Market Committee one way or the other. In the
circumstances of the case, the order superseding the Market Committee is
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liable to be set aside.
7. Hence, for the reasons aforesaid, the Writ Petition is allowed. The
impugned order is quashed and set aside. The respondents are free to take
action in accordance with law.
Rule is made absolute in the aforesaid terms, with no order as to costs.
JUDGE JUDGE
sahare
