The Agricultural Produce Market ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 4240 Bom

                                      (1)
                                                            WP-4066_ 2018 .odt

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                      WRIT PETITION NO. 4066 OF 2018

 The Agricultural Produce Market
 Committee, Beed, through its
 I/C Secretary
 Shri Ashok Atmaram Waghire.                                      Petitioner.

          Versus

 1.       The State of Maharashtra
          Through its Secretary,
          Revenue and Forest Department,
          Mantralaya, Mumbai - 32.

 2.       The Divisional Commissioner,
          Aurangabad Division,
          Aurangabad.

 3.       The Collector,
          Beed, District Beed.                               Respondents.


                                 ***
               Mr. S.S. Thombre, advocate holding for
              Mr. S.B. Solanke, advocate for petitioner.
        Mr. S.P. Sonpawale, A.G.P. for respondents no. 1 to 3.
                                 ***

                               CORAM : SUNIL P. DESHMUKH &
                                       ABHAY AHUJA, JJ.

Date : 9th March 2021.

ORDER AND JUDGMENT : (PER ABHAY AHUJA, J.)

1. Rule. Rule is made returnable forthwith. With the

consent of the counsel for the parties, the matter is heard

finally.

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2. By this petition filed under Article 226 of the

Constitution of India, petitioner is seeking a writ directing

the respondents to release the ex-gratia amount of

Rs.9,45,665/- to petitioner for the animal camp run at

Gaulwadi, District Beed for a period from 09.01.2016 to

31.01.2016 and from 01.02.2016 to 16.02.2016.

3. Brief background is that petitioner being an

Agricultural Produce Market Committee has its aims and

objects to assist the agriculturists, inter alia, by providing

fodder to the needy agriculturists to maintain their cattle, etc.

Due to acute drought condition in the season of 2015-2016 in

Beed, Latur and Osmanabad Districts, when the rainfall was

less than average and the strength of animals being more in

the three Districts and there being scarcity of fodder, the

Government took a decision to form cattle camps which would

receive ex-gratia financial assistance from the Government for

maintaining the cattle in the said camp and issued

Government Resolution dated 20.08.2015 to implement the

said decision. As per condition no. 2 of the said Government

Resolution, to avail the ex-gratia financial assistance, the

minimum number of cattle was of 500 and maximum of 3000

cattle in a camp. However, the Collector was empowered to

relax the condition of minimum cattle to the extent of 250.

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The farmers were also required to take cattle home for 8 to 10

days; the Tahasildar and Deputy Collector were authorized to

inspect the camps. As per condition no. 12 of the said

Government Resolution against big cattle, payment to be

received was Rs. 70/- per day and against small cattle

payment to be received was Rs. 35/- per day. The

responsibility of making the payment was on the Collector.

4. The said Government Resolution was widely

advertised and pursuant to such advertisement, the petitioner

applied for permission to open the camp at Gaulwadi in

August 2015 as there were huge number of cattle, particularly

milky cattle. The Collector approved the proposal and

granted permission to the petitioner to open cattle camp by

order dated 07.12.2015. It is submitted that due to drought

condition, there was water as well as fodder scarcity and

therefore both these necessities had to be purchased with

own / borrowed funds, so that the cattle do not starve.

5. Petitioner submits that the camp was inspected by

Tahasildar and Deputy Collector time to time. Talathi and

Circle Inspector have given daily visits to the camp and

maintained visit book. The officers have maintained daily

report of the cattle available, which includes the period

01.01.2016 to 29.02.2016. It is submitted by the petitioner

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that till 17.02.2016 there were 500 cattle, on 31.03.2016 the

number was 548 and on 30.04.2016 it was 571. It is

submitted that the visit book was maintained from

24.12.2015 to 08.06.2016 pursuant to the directives of the

Collector.

6. During the period 01.01.2016 to 31.01.2016 and

01.02.2016 to 16.02.2016 the number was less than 500, but

between 250 to 480. It is submitted that the Collector issued

a letter dated 16.11.2015 and relaxed the strength of cattle

upto 250. Petitioner submits that though from 09.01.2016

16.02.2016, the strength of the cattle was below 500, but

more than 300 and again from 17.02.2016 it was above 500

upto 08.06.2016 and after that, it was reduced upto

09.02.2016 and camp was closed on 10.02.2016. It is

submitted that ex gratia payment as per the report was paid

by the respondents as and when there were more than 500

cattle. However, for the period of 38 days from 09.01.2016 to

31.01.2016 to 16.02.2016, no payment was made on the

ground that the cattle maintained was less than 500.

7. Petitioner submits that even though it maintained

more than 300 cattle during the period mentioned, no

payment was made for the short period, and therefore, they

approached the Collector, however, the said request was

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turned down, after which the petitioner approached the

Commissioner by way of representation on 07.02.2017. It is

submitted that the Commissioner directed the Collector to

relax the condition of minimum 250 cattle, however, the same

was turned down by letter dated 23.03.2017 on the ground

that even though vide order dated 07.12.2015 the permission

was granted for a reduced minimum number to 250, however

after taking stock of the ground situation, the Collector had

vide order dated 08.01.2016 once again increased the

minimum number to 500. Aggrieved by this rejection,

petitioner has made representations dated 03.08.2017 and

12.10.2017 to the Collector and Tahasildar respectively

requesting them to make the payment in accordance with the

decision of this court in Writ Petition No. 4756 of 2017 dated

14.06.2017 in the case of Late Dr. Limbajirao Muktarao

Pansambal Dudh Vyavasayik Shakari Dudh Sansthancha,

Dudhy Utpadak Vs Purvatha Sahakari Sangha Maryadit,

Shirur, Taluka Shirur (Ka), District Beed vs The State of

Maharashtra and others.

8. Affidavit in reply dated 29.04.2019 has also been

filed on behalf of respondent No. 3 admitting that the District

Collector, Beed has vide order dated 16.11.2015 pursuant to

the discretion given in Government Resolution dated

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20.08.2015, relaxed minimum number of cattle upto 250 till

17.01.2016 and stating that bills of cattle camps having

minimum 250 animals will be paid. However, since the

District Collector, Beed has subsequently issued order dated

08.01.2016 increasing the minimum number of cattle upto

500 as per the terms and conditions of the Government

Resolution dated 20.08.2015, the petitioner is not eligible for

payment on the days on which cattle are less than 500.

Learned A.G.P., therefore, submits that the payment to be

made is ex-gratia financial assistance and there is no right

created in the petitioner by law. He, therefore, submits that

the petition deserves to be dismissed.

9. We have heard learned counsel for the petitioner

Shri S.S. Thombre, holding for learned counsel Shri. S.B.

Solanke and learned A.G.P. Shri S.P. Sonpawale for the

respondents and with their assistance perused the papers

and proceedings as well as the decision of this court in Writ

Petition No. 4756 of 2017 (supra) wherein this Court has in

almost similar circumstances dealing with the Government

Resolution dated 20.08.2015, granted relief therein.

10. Just like in the case referred to above, in this case

also the condition of minimum of 500 animals, on its own

showing, was relaxed by the State to a minimum of 250

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animals. That is clear from paragraph 8 of the affidavit-in-

reply when it refers to an order dated 16.11.2015, which

mentions that the condition of minimum 500 animals as per

Government Resolution dated 20.08.2015 has been relaxed to

250 animals and that bills of the cattle camp having

minimum 250 animals will be paid.

11. Similarly, though there is a subsequent order

dated 08.01.2016, however, the order dated 16.11.2015, in our

view, would be applicable to the present petitioner as the

camp was functional from 07.12.2015 and this is admitted in

the affidavit-in-reply. If indeed the camp was so functional,

then, the subsequent variation or change in the scheme

should not work to the detriment of petitioner. The number of

cattle may go down below the requisite number, but the

payment cannot be withheld as there are reasons for

reduction. We are therefore of the view that the petitioner's

case deserves to be considered for release of ex-gratia

payment.

12. At this stage, we are reminded of Article 48 of the

Constitution of India being the Directive principle of State

policy which refers to the organisation of agriculture and

animal husbandry. For the sake of convenience the said

Article is reproduced as under :

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"48. Organisation of agriculture and animal husbandry -

The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle"

It is in this context that the scheme for cattle

camps has been envisaged to take steps for preservation of

cattle.

13. It would also be worthwhile to quote paragraph 11

of the decision in Writ Petition No. 4756 of 2017 (supra) cited

above, as under :

"11. True it is that there is a subsequent order on 08/01/2106. However, the Government may say so, but the order dated 16/11/2015 is applicable to the present petitioner. In the affidavitinreply, there is no denial of a factual statement by the petitioner that its camp was functional from November - 2015. If indeed it was so functional, then, the subsequent variation or change in the Scheme should not work to the detriment of the petitioner. The number of cattle may go down below the requisite number but the entire payment cannot be withheld. Secondly, there are reasons assigned for the reduction. Thirdly, the petitioner participated in a welfare measure initiated pursuant to the exercise of the executive power vesting in the State. Article 162 of the Constitution was invoked and the public was invited to assist the State. Hence, there was a definite assurance or promise of reimbursement of the expenses of the cattle camp albeit a conditional one. If they are fulfilled then the denial is definitely arbitrary and unjust. A right has accrued on account of the Government Resolution".

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Very true that it is important to appreciate that

Petitioner herein has also participated in the same welfare

measure initiated by the State pursuant to the exercise of

executive power vested in the State and Article 162 of the

Constitution of India was invoked and the public was invited

to assist the State. We are also of the view, that there was a

definite assurance or promise of reimbursement of expenses

of the cattle camp albeit a conditional one. If they are

fulfilled, then denial is definitely arbitrary and unjust. A right

has accrued on account of the Government Resolution.

14. Once the petitioner has placed its case for a

sympathetic consideration of the State, stating that the cattle

camp was operational during the period, the cattle were being

maintained at all times therein, they were 500 in number, but

had to be intermittently and that too for some time taken

away and brought again by the farmers, we do not think that

the petitioner's claim for Rs. 9,45,665/- can be termed as

illegal. In our view, the same should have been honoured.

The claim is also backed up by the record of the statutory

authorities. The cattle camp was set up from 07.12.2015 and

satisfies all the requirements stipulated in the Government

Resolution dated 20.08.2015. There is no denial by the

authority on that front. The bill of the petitioner for a

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substantial period has been cleared and it is only a period of

38 days for which the amount has to be realized.

15. In view of the above discussion, we allow the writ

petition. Rule is made absolute in terms of prayer clause "B".

16. Rs. 9,45,665/- be released to petitioner as

expeditiously as possible, preferably within a period of 2

months from the receipt of writ of this order, along with

simple interest at the rate of Rs. 5 % per annum till

realization of the amount.

17. It is made clear that we are not expressing any

opinion in general terms on the entitlement of those cattle

camp owners in whose case, the condition of minimum

number of cattle was held to be not satisfied because of the

subsequent Government Resolution or order of the Collector

and this order is passed only in the peculiar facts and

circumstances of this case.

( ABHAY AHUJA, J. ) ( SUNIL P. DESHMUKH, J. )

VD_Dhirde