Bombay High Court
Gangadhar Ramchandra Bhinge And ... vs Maruti Hanmanta Khede And Others on 29 October, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4248 OF 2021
Maruti s/o Hanmanta Khede
Age : 57 years, Occu : Agriculture,
R/o. Pimpalgaon (Ku), Tq. Biloli,
District Nanded .. Petitioner
Versus
1. The State of Maharashtra,
Through the Secretary,
In the Department of Agricultural
Marketing, Mantralaya, Fort Mumbai.
2. The Director of Marketing,
Maharashtra State, Pune.
3. The District Deputy Registrar,
Co-operative Societies, Nanded
Tq. And Dist. Nanded.
4. The Administrator,
Agriculture Produce Market
Committee, Kundalwadi,
Dist. Nanded.
5. The State Co-operative Election
Authority, Maharashtra State,
Central Building, Pune.
6. The District Collector &
District Election Officer, Nanded. .. Respondents
Mr. A. N. Irpatgire, Advocate for the Petitioner.
Mr. S. G. Karlekar, A. G. P. for Respondent Nos. 1 to 4, & 6.
Mr. S. K. Kadam, Advocate for Respondent No. 5.
Mr. Sushant V. Dixit, Advocate for Intervener.
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WITH
CIVIL APPLICATION NO. 5103 OF 2021
IN WRIT PETITION NO. 4248 OF 2021
Gangadhar Ramchandra Bhinge and others .. Applicants
Versus
Maruti Hanmanta Khede and others .. Respondents
CORAM : S. V. GANGAPURWALA &
R. N. Laddha, JJ.
Date on which reserved for judgment : 07th October, 2021.
Date on which judgment pronounced : 29th October, 2021.
JUDGMENT (Per S. V. Gangapurwala, J.) :
. Rule. Rule made returnable forthwith. With the consent of parties
taken up for final hearing.
2. The petitioner challenges the order dated 07.01.2020 issued by
the respondent No. 3 appointing administrator over the respondent
No. 4/APMC. The petitioner further seeks directions not to appoint the
administrative committee over the said APMC.
3. During the course of arguments, Mr. Irpatgire, learned counsel
for the petitioner did not agitate the order appointing administrator
over the APMC and restricted his arguments to the extent that the
administrator shall not be replaced by the administrative committee. It
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appears that, under communication dated 17.03.2021 issued by the
State to the District Deputy Registrar, Co-operative Societies, Nanded
informed that the persons named in the said letter are approved for
including their names in the list of administrative committee of non
Government persons.
4. Mr. Irpatgire, learned counsel submits that there is no reason to
replace the administrator by the non Government persons in the
administrative committee. The Administrative committee is of political
persons. They cannot replace the administrator viz. a Government
officer.
5. The learned A.G.P. submits that the petitioner has no reason to
challenge the appointment of the administrator and /or the
administrative committee. The term of the managing committee was
over. The respondent No. 3 in exercising its power under Section 15A
of the Maharashtra Agricultural Produce Marketing (Development and
Regulation) Act, 1963 (hereinafter referred to as 'Act of 1963') has the
authority to appoint the administrator upon completion of the term.
6. Mr. Dixit, learned counsel for the intervener i.e. the persons
whose names are approved for appointment as members of the
administrative committee over the said APMC submits that on
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26.02.2021, the respondent No. 4 submitted the proposal to
respondent No. 3 with names of eligible persons for appointment as
members of the administrative committee. The respondent No. 4 has
approved the list of members i.e. present applicants in the civil
application to be included in the administrative committee and further
directed respondent No. 4 to issue necessary orders appointing the
applicants as members of the administrative committee. The petitioner
has no statutory right to seek such directions. The rights of the
petitioner are not affected. The original writ petitioner was member of
the administrative committee and no steps were taken to hold the
election. No funds were deposited and no steps were taken to prepare
draft electoral rolls. Considering all the relevant aspects of the matter,
the decision is taken to appoint the applicants as members of the
administrative committee. In view of that, no such relief as claimed by
the petitioner can be granted.
7. The learned counsel for the petitioner relies on the judgment of
the Division Bench of this Court in Writ Petition No. 10162 of 2017
dated 28.08.2017 to submit that in order to ensure transparency and
fairness in the process of election, it is desirable that affairs of the
APMC shall be administered by the officer of the State Government so
that the democratic process of installing elected representative in the
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office can be undertaken and completed.
8. Mr. Dixit, learned counsel for the intervener relies on the
judgment of the Apex Court in a case of Oriental Bank of Commerce
Vs. Sunder Lal Jain & Anr. reported in 2008 (2) SCC 280 to submit
that writ of mandamus can be granted only in a case where there is a
statutory duty imposed upon the officer concerned and there is a
failure on the part of the officer to discharge the statutory obligation. In
the present case, no statutory duty has been infringed, nor there is any
statutory duty to appoint the administrator and not the administrative
committee. Mandamus cannot be issued. The learned counsel also
relies on the judgment of the Apex Court in a case of State of Kerala Vs.
A. Lakshmikutty reported in 1986 (4) SCC 632 to submit that for
issuing a writ of mandamus there must be a judicially enforceable right
for the enforcement of which a mandamus will lie.
9. We have considered the submissions canvassed by the learned
counsel for respective parties.
10. The Government under Section 15A of the Act of 1963 has the
powers to appoint the administrator and/or the administrative
committee after the period of term of the managing committee is over.
The discretion vests with the authorities either to appoint the
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administrator and/or the administrative committee.
11. The discretion that vests with the authority is not merely an
ordinary, unregulated or a capricious discretion, but a discretion that
has to be exercised in a reasonable manner and the exercise of
discretion should not smack of arbitrariness. Arbitrariness has no role
in the society governed by rule of law. Arbitrariness is antithesis to the
rule of law, justice, equity, fair play and good conscious.
12. In the present case, the authority had already exercised the
discretion and appointed Assistant Registrar, Co-operative Societies,
Biloli as the administrator. The said administrator replaced the then
administrative committee. In the order dated 07.01.2020 appointing
administrator in place of administrative committee, the District Deputy
Registrar observed that the administrative committee did not undertook
the process of election, nor even deposited the funds for conduct of
elections with the election authority, nor even took steps to prepare the
voters list. The members of the administrative committee of whom the
petitioner was also member derelicted their duties and in view of that
appointed the Assistant Registrar, Co-operative Societies, Biloli as an
administrator in place of the then administrative committee. Now, the
Government is trying to replace the said administrator by a new
members of the administrative committee.
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13. For replacing the administrator with the new members of the
administrative committee strong reasons would be required. It is not
that at the whims and pleasure of the authorities the administrator
and/or the administrative committee would be substituted. We can
understand if there are some allegations against the administrator of
non performance of the duty, then certainly in its place, the authority
can replace the administrator by another administrator or by a
administrative committee may be of Government officers or otherwise,
but the administrative committee cannot be appointed only as a tool for
political rehabilitation. The directions issued by the office of the Co-
operative Marketing and Textile Department to appoint the applicants
of the civil application as administrative members carries a rider that
the appointment of members of the administrative committee against
whom offences are registered would be subject to the decision of the
Court.
14. We fail to understand as to how the members of the
administrative committee against whom criminal cases are pending can
be appointed to replace the existing administrator. This would
demonstrate that the discretion exercised is arbitrary and without
application of mind. The authority had already exercised its discretion
while replacing the then administrative committee by the Assistant
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Registrar Co-operative Societies as an administrator for the incapability,
incompetency of the members of the administrative committee. Now,
while issuing directions for replacing a Government officer officiating
as an administrator by a administrative committee the department has
nowhere observed that the administrator's functioning and working is
improper or is not performing his duties. When the administrator is
sought to be replaced by a administrative committee consisting of
private persons strong reasons would be required to be recorded by the
authority. The reasons depict the application of mind of the authority
passing the order. Reasons are now considered to be one of the pillars
of the principles of natural justice. By arbitrarily replacing a
Government officer officiating as an administrator against whom there
is no complaint nor any allegations of incompetency by private persons
as members of administrative committee without assigning any reasons
is arbitrary. It raises a doubt about the intentions of appointing the
private persons for the purpose of political rehabilitation. The same
cannot be the object of appointing the administrative committee of non
Government persons.
15. In view of the aforesaid, we direct the authorities not to appoint
the administrative committee in place of administrator. The respondent
No. 5 may consider starting process for election of the members of the
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managing committee on the APMC. Of course, considering the ground
realities, the circumstances prevailing and the orders of the State
Government for conducting the elections.
16. We have directed the respondents not to replace the
administrator by the administrative committee as is referred to in the
communication dated 26.02.2021 and 17.03.2021 annexed with the
Civil Application No. 5103 of 2021 as the reasons are not forthcoming
to replace the administrator.
17. Rule is made absolute accordingly. No costs.
18. In view of disposal of the writ petition, civil application does not
survive, as such civil application is disposed of.
( R. N. Laddha ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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