Bombay High Court
Radhakisan Deorao Pathade And ... vs The State Of Maharashtra And ... on 29 October, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
(1) wp-6382-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6382 OF 2021
1. Radhakisan S/o. Deorao Pathade,
Age 45 years, Occ. Agri. and Chairman
of the Super APMC, Aurangabad,
Dist. Aurangabad.
2. Damodhar Harichandra Navpute,
Age 66 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad.
3. Devidas Balaji Kirtishahi,
Age 57 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad.
4. Bhagchand S/o Rustum Thombre,
Age 60 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad.
5. Babasaheb S/o Punjaram Mugdal,
Age 40 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad.
6. Shriram S/o Bhausaheb Shelke,
Age 48 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad.
7. Ganesh S/o Sandu Dahihande,
Age 53 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad.
8. Shivaji S/o Uttamrao Wagh,
Age 41 years, Occ. Agri. and Director
of the Super APMC, Aurangabad,
Dist. Aurangabad. ..Petitioners
VERSUS
::: Uploaded on - 30/10/2021 ::: Downloaded on - 31/10/2021 04:02:19 :::
(2) wp-6382-2021
1. The State of Maharashtra,
Through its Principal Secretary,
Co-operation, Marketing and
Textile, Department, Mantralaya,
Mumbai-32.
2. The Hon'ble Minister,
Co-operation, Marketing and
Textile, Department, Maharashtra State
Mantralaya, Mumbai-32.
3. The Director of Marketing,
Maharashtra State, Pune.
4. The District Deputy Registrar,
Co-operative Societies, Aurangabad.
5. Super Agricultural Produce Market
Committee, Aurangabad,
Through its Secretary.
6. The Administrator,
Super Agricultural Produce Market
Committee, Aurangabad. ..Respondents
...
Mr. S. S. Thombre, Advocate for the Petitioners.
Mr. S. G. Karlekar, AGP for Respondent Nos.1 to 4.
Mr. K. J. Suryawanshi, Advocate for Respondent
No.5.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
Closed for Orders on : 17.08.2021.
Order Pronounced on : 29.10.2021
JUDGMENT (Per S. V. Gangapurwala, J.) :-
1. The application filed by petitioners for
extension of the term of the board of directors of
respondent no.5-Super Agricultural Produce Market
Committee (hereinafter referred to as 'A.P.M.C.')
is rejected, so also under order dated 07.05.2021
(3) wp-6382-2021
administrator is appointed. The said orders are
assailed in the present writ petition.
2. The petitioners claim to be elected
directors of respondent no.5-Super Agricultural
Produce Market Committee, Aurangabad. The term of
the elected directors came to an end on 04.08.2020.
3. The election could not be held prior to
04.08.2020 that is before the expiry of the term of
board of directors. The board of directors passed
resolution for extension of one year purportedly
under Section 14(3) of the Maharashtra Agricultural
Produce Marketing (Development and Regulations)
Act, 1963 (hereinafter referred to as 'Act, 1963')
and is amended from time to time. The said
resolution was forwarded to the District Deputy
Registrar alongwith proposal for extension. Under
order dated 23.07.2020, the proposal for extension
was refused by respondent no.1 and administrator
was appointed. The petitioners assailed the same
by filing writ petition before this Court. This
Court vide order dated 01.03.2021, the order
appointing administrator and rejecting the proposal
of petitioners for extension of their term was set
aside and respondents-Authorities were directed to
take decision afresh. Pursuant thereto, respondent
no.2 issued notices for hearing on the proposal for
extension of the term. The petitioners had filed
detailed say. The respondent no.2 after hearing
the parties rejected the proposal of the
petitioners for extension of the term of the board
(4) wp-6382-2021
of directors and respondent no.4 is appointed as
administrator. The said orders are assailed in the
present Writ Petition.
4. Mr. Thombre, learned counsel for
petitioners submits that, non-holding of the
election before the expiry of the term of board of
directors was not on account of default of the
petitioners, but because of the Covid-19 pandemic
situation. The State Government had postponed the
election and in way prohibited the conduct of
election because of Covid-19 pandemic. In such
circumstance the extension ought to have been
granted. The learned counsel refers to Section
14(3) of the Act, 1963. The learned counsel
further contends that, only because false and
frivolous complaint is filed against the board of
directors that would not be a ground to deny the
extension of the terms. The Act, 1963 does not
discriminate grant of extension on the ground that
enquiry is pending. The petitioners are not at all
held guilty of any charges. The respondents have
issued circular extending the term of the board of
directors on account of prohibition imposed by the
State in holding the election of the A.P.M.C. to
all the Board of Directors of A.P.M.C. except where
enquiries are pending. The said circular does not
stand reason.
5. The learned counsel further submits that,
on 10.07.2020 the State Government issued
resolution thereby resolving that, due to Covid-19
(5) wp-6382-2021
pandemic the elections are not possible and for six
months the elections are postponed and extension
was granted to the Managing Committee.
Subsequently, fresh policy decision is taken
extending the elections further. The learned
counsel further submits that, the charges framed
against petitioners in an enquiry are frivolous.
No allegations and misappropriation appear. Some
allegations of irregularities are made, which also
are inconsequential and does not lead to the guilt
of petitioners.
6. The administrative action of respondent is
discriminatory. The equals are treated unequally.
The Court will apply the principles of
proportionality. The learned counsel relies on the
judgment of the Apex Court in a case of Om Kumar
Vs. Union of India reported in 2001 (2) SCC 386 and
another judgment of the Apex Court in a case of U.
P. Power Corporation Ltd. Vs. Ayodhya Prasad Mishra
& Anr. reported in 2008 (10) SCC 139.
7. The learned counsel relying upon the
judgment of the Division Bench of this Court in the
case of Babasaheb Apparao Akat and Others Vs. State
of Maharashtra and Others reported in 2010 (2) Bom.
C.R. 578 submits that Section 15(A) of the Act,
1963 does not contemplate automatic cessation of
office of the members of the Committee whose term
has expired. In the said case, the Court extended
the term as the elections could not be held before
the expiry of the term for no fault of the present
(6) wp-6382-2021
Committee. The State Government is obliged to
extend the term upto one year in aggregate. He
also relies on the another judgment of this Court
in the case of Shaikh Burhan Shaikh Mannu Vs. State
of Maharashtra and Others reported in 2003 (2)
Mh.L.J. 861. The learned counsel also relies on
the judgment of the Division Bench of this Court in
the case of Bhagwan Sampatrao Ghodmare and Another
Vs. State of Maharashtra and Others reported in
2017 (4) AIR Bom R 688 and the judgment of the
Division Bench of this Court in Writ Petition No.
7513/2016 dated 09.08.2016.
8. The learned A.G.P. submits that, the term
of the board of directors expired on 04.08.2020 and
the administrator was appointed on 05.08.2020. The
petitioners challenged the said order by filing
Writ Petition No.5164/2020 rejecting the
application for extension of the term of the board
of directors. This Court set aside the orders, as
reasons were not given. The authority thereafter
granted opportunity of hearing to petitioners and
considering that, there are complaints against the
members of the board of directors of the
petitioners, so also the enquiry report. The
respondent no.2 passed reasoned order on 04.05.2021
rejecting the proposal for extension of the board
of directors. There are serious complaints about
the mis-utilization of funds of more than Rs.88
crores by petitioners in the affairs of Market
Committee. The enquiry was directed to be made by
(7) wp-6382-2021
respondent no.4 and submit the report. The
respondent no.4 under order dated 21.09.2020
ordered enquiry under Section 40(A) and (B) of the
Act, 1963. Three members committee headed by the
Deputy Registrar Co-operative Societies, Taluka
Aurangabad was appointed. The three members
committee made an enquiry and final report is
submitted on 19.03.2021 observing that petitioners
have committed irregularities in the affairs of
respondent no.5-Market Committee. Considering the
serious allegations made against petitioners and
irregularities found in the enquiry report the
proposal for extension was rejected and thereafter,
the respondent no.4 is appointed as Administrator.
The discretion has been properly exercised by the
Government. To get the extension is not vested
right of petitioners nor is fundamental right. The
learned A.G.P. relying upon the judgment of the
Apex Court in the case of Narayan Govind Gavate and
Others Vs. State of Maharashtra and Others reported
in (1977) 1 SCC 133 submits that formation of
opinion is subjective matter. The authority was
acting within the scope of its powers and had some
material, however meager, on which it could
reasonably base its opinion, the Courts may not
interfere. In the present case the enquiry was
before the authority, wherein petitioners are
indicted of committing irregularities.
9. Mr. Suryawanshi, learned counsel for
respondent no.5 submits that, it is not obligatory
(8) wp-6382-2021
on the part of the Government to extend the term of
the A.P.M.C. further period of five years. The
learned counsel relies on the judgment of the
Division Bench of this Court in the case of Udhav
Shalikram Geete Vs. State of Maharashtra and Others
reported in 2014 (1) Mh.L.J. 879. He also relies
on the judgment of Division Bench of this Court at
Nagpur Bench in Writ Petition No.4488/2017 with
connected writ petitions dated January 16, 2018.
10. We have considered the submissions
canvassed by the learned counsel for the parties.
11. The factual matrix is not disputed. The
petitioners are some of the members of board of
directors of respondent no.5-Market Committee. The
term of the board of directors came to an end on
04.08.2020. On or about 10.07.2020, the State
Government issued resolution thereby postponing the
elections for six months. The petitioners sought
extension of their term. The said request was
initially rejected by respondents on 23.07.2020.
The petitioners approached this Court by filing
Writ Petition No.5164/2020 and praying to quash and
set aside the letter dated 23.07.2020. The
petitioners also sought extension of their term on
05.08.2020. The respondent no.4 was appointed as
administrator. The said order was also challenged.
This Court under judgment and order dated
01.03.2020 allowed the Writ Petition bearing Writ
Petition No.5164/2020 filed by petitioners thereby
set aside the order rejecting the application for
(9) wp-6382-2021
extension predominantly on the ground that, no
reasons are given by the authority while rejecting
the application of petitioners and authority was
directed to reconsider the proposal for extension
of time and the grounds set out by petitioners. It
appears that, thereafter opportunity of hearing was
given to petitioners and under impugned order dated
04.05.2021 rejected the proposal for extension of
the term of board of directors of respondent no.5
and under order dated 07.05.2021 appointed
respondent no.4 as administrator. During the
pendency of the present writ petition in place of
Administrator, the authority appointed the board of
administrators of private persons under order dated
22.07.2021 and permission was sought to amend the
petition by filing Civil Application No.6036/2021.
The Court observed that, all further process would
be subject to the decision in the present Writ
Petition.
12. It further appears that, the State
Government has taken a policy decision to postpone
the election up to 23.10.2021 of the A.P.M.C. on
account of prevailing Covid-19 pandemic and further
extended the term of the Managing Committee of the
board of directors of A.P.M.C. against whom
enquiries are not pending. The said policy
decision it appears is taken under its general
order dated 22.04.2021.
13. The State and its Authorities have power
and discretion to grant extension to the term of
(10) wp-6382-2021
the board of directors of A.P.M.C. under
circumstances detailed under Section 14 of the Act,
1963. For ready reference provisions are
reproduced hereunder:
14. Election and term of office of members.
(1) Subject to the provisions of sub-section
(2), the members shall be elected in the
manner prescribed by rules. Such rules may
provide also for the determination of
constituencies, the preparation and
maintenance of the list of voters, persons
qualified to be elected, disqualification
for being chosen as, and for being a
member, the right to vote, the payment of
deposit and its forfeiture, the
determination of election disputes and all
matters ancillary thereto including
provision regarding election expenses.
[(2)--------------------.]
(3) Except as otherwise provided in this Act,
the members of a Market Committee (not
being a Committee constituted for the first
time) shall hold office for a period of
[five years], and the members of a
Committee constituted for the first time
shall hold office for a period of two
years:
[Provided that, the Market Committee
constituted for the first time, may be
replaced by the Government and the new
Committee so replaced shall hold office for
the remainder of the period:]
[[Provided further that], where the general
election of members of a Committee could
not be held for reasons beyond the control
of the Committee before expire of the term
of office of its members as aforesaid, the
State Government may, by order in the
Official Gazette, extend from time to time,
the term of office of any such Committee,
so however, that the period for which the
(11) wp-6382-2021
term of office is so extended shall not
exceed the period of one year in the
aggregate.]
[............................................................]
[(3A)Where due to scarcity, draught, flood, fire
or any other natural calamity or rainy
season or any election programme of the
State legislature or the Parliament or a
local authority, coinciding with the
election programme of any market Committee
or such other special reasons, in the
opinion of the State Government, it is not
the public interest to hold elections to
any Market Committee, the State Government
may, notwithstanding anything contained in
this Act or in any rules, or bye-law made
thereunder, or any other law for the time
being in force, for the reasons to be
recorded in writing, by general or special
order, postpone the election of any Market
Committee for a period not exceeding six
months at a time which period may further
be extended, so, however, that the total
period shall not exceed one year in the
aggregate.]
[(4)(a)As soon as possible, after the result of
any by-election or, subject to the
provisions of sub-clause (b), all the
results of the general election, are
available, [the State Co-operative
Election Authority] shall publish or
caused to be published the name or names
of, elected member or members of a
Committee in the Official Gazette and
also in a newspaper in the Marathi
language circulating in the market area.
The publication of the name or names in
a newspaper as aforesaid shall, for the
purposes of this section, be deemed to
be sufficient publication of the name or
names of the elected member or members
of the Market Committee.
(b) If a a general election the names of
any persons to be elected under sub-
(12) wp-6382-2021
section (1) or (1A) of Section 13
cannot for any reasons be published as
aforesaid, and if with the available
election results, the Committee will
consist of not less than twelve
members, then [the State Co-operative
Election Authority] shall publish the
names of these members in the Official
Gazette and also in a newspaper as
aforesaid.
(c) As regards the remaining elections,
[the State Co-operative Election
Authority] shall subsequently publish
the names of members in the like manner
as and when the results of such
elections are available, or as the case
may be, on failure to elect, the names
of persons duly appointed under sub-
section (2), if any.
(d) After every general election, upon the
publication of the names of all the
members of the Committee under clause
(a), or as the case may be, the
publication of such names as would
render the Committee to consist of not
less than twelve members as aforesaid,
in a news paper under this sub-section
the Market Committee shall be deemed to
be duly constituted.]
14. Proviso to Sub-section 3 of Section 14 of
the Act, 1963 provides that, the members of the
Market Committee shall hold the office for a period
of five years. It further provides that, where the
general election of members of a committee could
not be held for reasons beyond the control of the
Committee before expiry of the term of office of
its members as aforesaid, the State Government may,
by order in the Official Gazette, extend from time
to time, the term of office of any such Committee,
(13) wp-6382-2021
so however, that the period for which the term of
office is so extended shall not exceed the period
of one year in the aggregate.
15. Section 3(A) of Section 14 provides that,
where due to scarcity, drought, flood, fire or any
other natural calamity or rainy season or any
election programme of the State Legislature or the
Parliament or a local authority, coinciding with
the election programme of any Market Committee or
such other special reason, in the opinion of the
State Government, it is not in the public interest
to hold elections to any Market Committee, the
State Government may, notwithstanding anything
contained in this Act or in any rules, or bye-law
made thereunder, or any other law for the time
being in force, for reasons to be recorded in
writing, by general or special order, postpone the
election of any Market Committee for a period not
exceeding six months at a time which period may
further be extended, so, however, that the total
period shall not exceed one year in the aggregate.
16. There cannot be any debate that, since
24.03.2020 the entire nation is undergoing through
torrid time because of Covid 19 pandemic. For many
months the majority of the work in the nation was
at standstill. The cause for not holding the
election or postponing the election of the Market
Committee can be one construed under Sub-section
3(A) of Section 14 of the Act, 1963. Under Section
15(A) of the Act, 1963 powers are given to appoint
(14) wp-6382-2021
the Administrator or the Board of Administrators
after the term of the Market Committee has expired
and that further upon the expiry of term or
extended period of term they shall cease to hold
and vacate their offices as members or otherwise.
The power has been given to the State to extend the
term in certain exigencies and contingencies.
Embargo is placed on the length of the period of
extension viz. it shall not be more than one year
in aggregate.
17. The term of petitioners came to an end on
04.08.2020. One year from 04.08.2020 has also come
to an end. The maximum period for which the
extension could have been granted under the proviso
to Sub-section 3(A) of Section 14 of the Act, 1963
has also expired. The present situation arisen due
to the Covid-19 pandemic is an extraordinary
situation. It can be construed as the supervening
circumstances/situation beyond control of the normal
human being, thereby making impossible to hold the
election in this period. The State Government was
also conscious of this fact and so under policy
decision from time to time extended the period for
holding the elections. At present the said period
is extended upto 23.10.2021. Under the said policy
decision the State has ordered that, the Managing
Committee against whom the enquiries are pending
would not get the extensions of their term.
18. Right to hold the office as a member of
board of directors is not fundamental right, but is
(15) wp-6382-2021
merely a statutory right. Dehors the statute, the
petitioners do not have a right to hold the office
and to continue in the office. Once the term of
Managing Committee has come to an end, it is
discretion of the State/Authority to grant
extension. No doubt, the said discretion is not a
ordinary or unregulated discretion, but discretion
to be exercised judiciously, reasonably and the
same should not smack of arbitrariness. In this
case, the Administrator was appointed immediately
after rejecting the application of the petitioners
for extension of the term and subsequently
Administrative Committee is appointed.
19. The reasons for not extending the term of
the Managing Committee of respondent no.5-A.P.M.C
(The petitioners are some of the members of the
board of directors) is that, the complaint was
received from the agriculturist that, the board of
directors have committed illegalities in expending
Rs.88.33 crores. The Enquiry Committee is
constituted as per Section 15(3) and 40 (A and B)
of the Act, 1963 under order dated 21.09.2020. On
19.03.2021 the enquiry report is submitted by the
Enquiry Committee and the report indicates that
the irregularities are committed by the board of
directors and they have also transgressed the bye-
laws. The extravagant expenses have been made as
per the enquiry report and for said reason the
extension has been refused. In the present case,
this Court would not sit in an appeal over the
(16) wp-6382-2021
enquiry report, nor this Court would consider the
extent of the sufficiency of material nor it would
be appropriate to give any findings in respect of
the enquiry report, as same may prejudice either of
the parties. The Apex Court in the case of Narayan
Govind Gavate and Others Vs. The State of
Maharashtra and Others (supra) has observed that
once the Court comes to the conclusion that the
authority concerned was acting within the scope of
its powers and had some material, however meager,
on which it could reasonably base its opinion, the
Courts should not and will not interfere.
20. In the present case, this Court would
interfere, if, the discretion exercised by the
respondent is arbitrary and/or administrative
action is discriminatory and/or equals are treated
unequally, thereby invoking Article 14 of the
Constitution of India as is held by the Apex Court
in the case of Om Kumar Vs. Union of India (supra)
and U. P. Power Corporation Ltd. Vs. Ayodhya Prasad
Mishra & Anr. (supra) referred to by the learned
counsel for petitioners. In a case of Babasaheb
Apparao Akat and Others Vs. State of Maharashtra
and Others (supra) the Authority sat over the
proposal for extension of the term instead of first
considering the said proposals, after lapse of
about five months from the submission of the
proposals proceeded to straightway appoint
Administrator to take over the affairs. In the
present case after rejecting the application of
(17) wp-6382-2021
petitioners for extension, the Administrator is
appointed. In a case of Shaikh Burhan Shaikh Mannu
Vs. State of Maharashtra and Others (supra) the
Division Bench of this Court held that, for failure
of the Collector to hold the elections, the elected
body should not suffer and the Market Committee was
directed to hold the election. In a case of
Shivaji Krishnaji Bhalerao Vs. State of Maharashtra
& Others reported in 2008 (6) AIR Bom R 291 this
Court directed respondent no.3 therein to act as
Administrator, as it could not be shown that the
Committee took steps to hold the election during
the extended term also. In a case of Bhagwan
Sampatrao Ghodmare and Another Vs. State of
Maharashtra and Others (supra) the Division Bench
of this Court observed that, public interest is the
sine-qua-non to take recourse to power under
section 14(3-A) of the Act, 1963.
21. In the present case, the enquiry report
indicts the petitioners for irregularities
committed during their term. The policy decision
is taken by the State that, the board of directors
against whom no eqnuiry is pending shall not be
granted extension. The board of directors against
whom no allegations are made of any erroneous
conduct cannot be said to be on par with those
board of directors against whom allegation are made
and who are indicted for the irregularities. It
cannot be said that, equals are treated unequally.
The board of directors of A.P.M.C. conducting affairs
(18) wp-6382-2021
adhering to the rules, regulations cannot be
treated on par with those who did not conduct the
affairs of the A.P.M.C. in accordance with the
statute, rules and/or committed affairs in flagrant
violation of rules and the statue and/or bye-laws.
The ground of discrimination as such cannot be
raised nor it can be said that such a decision is
arbitrary or unreasonable and/or disproportionate
with the object to be achieved. The impugned order
as such cannot be faulted with.
22. The respondent had initially appointed the
Administrator and during the pendency of the writ
petition has substituted the Administrator with the
Board of Administrators and/or the Administrative
Committee. The Administrative Committee consists
of private persons. The same is also assailed. We
had observed that, the said appointment is subject
to the decision in the present writ petition. The
necessity to replace the Administrator with the
Board of Administrative Committee of private person
is not specified in the order. The appointment of
Board of Administrators cannot be for the purpose
of political rehabilitation. The Administrator was
already functioning. The order appointing the
Administrative Committee does not spell out that,
the Administrator was not functioning properly.
The State Government had already exercised its
discretion in appointing the Administrator. No
reason appears in the order appointing
Administrative Committee of private persons for
(19) wp-6382-2021
dislodging the Administrator. In normal course the
Administrator ought to have been allowed to
function. Of course, unless there are some
allegations against him, the replacement by
Administrative Committee of private person in place
of the Government personnel as Administrator ought
not to be for political rehabilitation. The
Administrative Committee is also constituted of
twelve persons. The order also further states
that, the persons who are members of the
Administrative Board/Committee against whom
criminal cases are pending, their appointments
would be subject to the decision of the Court. We
fail to understand the rational for the same. On
one hand board of directors are not granted
extension against whom enquiries are pending and on
the other hand members against whom criminal cases
are pending there appointments are made subject to
the decision of the Court. Such decision lacks
rational and creates doubt about the intentions
rather fortifies that appointing persons against
whom cases are pending to the Administrative
Committee is for political rehabilitation. The
said aspects also needs to be considered by the
Government in right perspective. As we have not
interfered with the order rejecting application for
extension of the term of the Managing Committee,
the subsequent orders of appointment of
Administrator or Administrative Committee is not
required to be dealt with.
(20) wp-6382-2021
23. Writ Petition, as such stands dismissed,
however, with no orders as to costs.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/September-2021
