Bombay High Court
Randhir Govindrao Pawar And Another vs The District Collector And Others on 23 October, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:26453
Wp.9189.2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9189 OF 2024
1. Randhir s/o. Govindrao Pawar,
Age : 48 years, Occ. Agri.,
r/o. Patange Road, Ajay Nagar,
Omerga, Dist. Osmanabad
2. Rajendra s/o. Kishan Talikhede,
Age : 49 years, Occ. Agri.,
r/o. Gogalgaon, Tq. Omerga,
Dist. Dharashiv (Osmanabad) ..Petitioners
Vs.
The District Collector,
Dharashiv (Osmanabad)
and 15 others ..Respondents
----
Mr.S.S.Gangakhedkar, Advocate for petitioners
Mr.S.J.Salgare, AGP for respondent nos.1 and 16
Mr.A.G.Chaudhari, Advocate for respondent no.2
Mr.P.R.Katneshwarkar, Senior Advocate i/b. Mr.N.R.Pawade, Advocate
for respondent nos.3 to 15
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATED : OCTOBER 23, 2024
JUDGMENT (PER R.G.Avachat, J.) :
-
Rule. Rule made returnable forthwith and heard finally with
the consent of learned counsel for the parties.
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2. This petition, under Article 226 of the Constitution of
India, has been preferred with the following main relief:-
B. By issuing writ of certiorari or any other
directions writ or order in the like nature of writ
of certiorari, the impugned notice dated
20.08.2024 and 21.08.2024 issued by the
respondent no.1 conveyance special meeting on
27.08.2024 may kindly be quashed and set aside.
3. The petitioners herein are the Chairman and the Vice-
Chairman of the Agricultural Produce Market Committee (APMC),
Omerga, Dist. Dharashiv (Osmanabad). The requisite number of
members moved a no-confidence motion against these petitioners.
The District Collector, Dharashiv (respondent no.1), therefore, issued
notice dated 20.08.2024 to the Director, APMC, Omerga, and 12
other Directors, Chairman and Vice-Chairman, informing them that a
special meeting was convened on 27.08.2024 at 11.00 a.m. The
District Collector, thereafter, again issued notice on 21.08.2024 to
the District Deputy Registrar, Co-operative Societies, Dharashiv,
directing him to issue requisite notice to all the concerned and
preside over the meeting, wherein a resolution of no-confidence
would be put to vote. Both these notices are under challenge in this
Writ Petition.
3 Wp.9189.2024
4. On 26.08.2024, this Writ Petition was moved before
learned Single Judge of this Court. Learned Single Judge was pleased
to pass the following order:-
1. Leave to correct prayer Clause (B). Amendment to be carried
out within a period of three days from today.
2. Heard Mr. Gangakhedkar, learned Advocate appearing for the
petitioners.
3. The petitioners seek to challenge notices dated 20.08.2024
and 21.08.2024 issued by respondent no.1-Collector convening
special meeting dated 27.08.2024 in terms of Section 23-A of the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Act, 1963 (for short 'APMC Act, 1963'). Mr.
Gangakhedkar would submit that requisition notices for special
meeting were not sent to Collector under intimation to Directors.
Similarly, Collector has not recorded subjective satisfaction
before convening special meeting of Committee. On these two
grounds he urges that impugned notices be quashed and set
aside. To buttress his submissions he relies upon the judgment
of this Court in case of Dinesh s/o Sheshrao Thakre Vs. Collector,
Nagpur District, Nagpur, 2014(1)Mh.L.J. 460 particularly he
places his reliance on observations appearing in paragraph no.9,
which states thus:
"The object behind making a requisition and sending it to
the Collector under provisions of sub-section [2] of
Section 23A is, that it is for the Collector to arrive at a
subjective satisfaction that the requirement of the
aforesaid provisions namely that such requisition has
been duly signed by not less than half of the total number
of members entitled to vote, has been duly complied
with. Under sub -section [3] of the aforesaid Section, the
Collector has been given a period of fifteen days from the
date of receipt of such requisition to convene a special
meeting. While considering the provisions of sub-section
[2] and sub-section [3] of Section 23A of the said Act, it
is clear that the Collector has to act, once such a
requisition is made to him, with intimation to the
Director. The jurisdiction that has been conferred by the
aforesaid section is only on the Collector, and it is he who
has to take further steps as stipulated by sub-section [3]
of Section 23A in the matter of convening a special
meeting."
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4. Perusal of requisition submitted under Section 23-A of the
APMC Act, 1963 depicts that it has been signed by in all 13
Directors. In pursuance to the said requisition, the Collector has
issued impugned notices. Whether there was compliance of the
provisions contained under Section 23-A(2) and (3) of the
APMC Act, 1963, needs to be examined. However, for that part
proceeding in pursuance of the notices need not be stayed.
However, result of such proceeding can be directed to be kept in
abeyance till further hearing of this writ petition. Consequently,
following order is passed:
ORDER
a. Issue notice to the respondents, returnable on 23.09.2024.
The learned A.G.P. waives notice for respondent nos.1 and 16.
b. In addition to Court notice, the petitioners shall be at liberty
to serve other respondents by any other alternate mode as
permissible under law and file affidavit of service before the
returnable date. c. Till the next date of hearing, result of
proceeding initiated under impugned notices shall be kept in
abeyance.
5. Reading of the aforesaid order would indicate that the
grievance of the petitioners was non-compliance of sub-sections (2)
and (3) of Section 23A of the Maharashtra Agricultural Produce
Marketing (Development and Regulation) Act, 1963 ("A.P.M.C. Act",
for short) and nothing more.
6. We have heard learned counsel for the petitioners and
learned Senior Counsel for the respondent and learned AGP as well.
We have also perused the affidavit-in-reply filed by the Assistant
Registrar, Co-operative Societies. The affidavit-in-reply would
indicate that the requisition letter signed by thirteen members of
5 Wp.9189.2024
APMC, Omerga, for no-confidence motion against the Chairman and
Vice-Chairman was moved on 19.08.2024. The requisition was on
the requisite stamp paper of Rs.100/-. It has further been submitted
in the affidavit-in-reply that on the directions of the District Collector,
he verified the same and satisfied himself about due compliance
regarding moving of the no-confidence motion. Accordingly, he even
made report to the District Collector.
7. In view of the order referred to herein above passed by
learned Single Judge, the prayer of the petitioners in this Writ Petition
has already been depicted therein. It would, therefore, be necessary
to refer Section 23A of the A.P.M.C. Act, which reads thus:-
23A. Motion of no-confidence against Chairman or Vice-
Chairman:
(1) A Chairman or a Vice-Chairman shall cease forthwith to
be Chairman or Vice-Chairman, as the case may be, if the
Market Committee by a resolution passed by a majority of
not less than two-thirds of the total number of members
(excluding the members who have no right to vote) at a
special meeting so decides.
(2) The requisition for such special meeting shall be
signed by not less than one-half of the total number of
members (excluding the members who have no right to
vote) and shall be sent to the Collector under intimation to
the Director.
(3) The Collector shall, within fifteen days from the date
6 Wp.9189.2024
of receipt of the requisition under sub-section (2), convene
a special meeting of the Committee:
Provided that, when the Collector convenes such
special meeting of the Committee, he shall give intimation
thereof to the Chairman, or as the case may be, Vice-
Chairman and also to the Director.
(4)(a) A special meeting to consider a resolution under
sub-section (1) shall be presided over by the Collector or
the officer authorized by him in this behalf, but the
Collector or such officer or the Director (if present) shall
have no right to vote at such meeting.
(b) The members of the Committee who have no right to
vote may take part in the discussions, but shall not vote.
(5) If the motion of no confidence is not carried as
aforesaid or if the meeting could not be held for want of
quorum, no such requisition for considering a fresh such
motion expressing want of confidence in the same
Chairman or Vice-Chairman shall be made until after the
expiry of six months from the date of such meeting.
8. The wording of sub-sections (2) and (3) of Section 23A of
the A.P.M.C. Act indicates that intimation of the requisite no-
confidence motion shall be given by the Collector to the Director.
Proviso to sub-section (3) of Section 23A also mandates that
intimation of the special meeting to have been convened, shall be
given to the Chairman, or as the case may be, the Vice-Chairman
and also the Director. The word "shall" appearing in both the sub-
sections was subject of interpretation in the judgment of this Court in
the case of Prabhakar s/o. Kashinath Selokar Vs. State of
7 Wp.9189.2024
Maharashtra, (Writ Petition No.1429 of 2017 and connected
matter, decided on 04.05.2017). The Division Bench in
paragraph 6 of the said judgment, observed thus:-
6. The only ground on which both the learned counsel are
harping is that the intimation is not given to the Director.
In case of K. Narsimha vs. H. C. Singri Gowda and ors. AIR
1966 SC 330 the question fell for consideration before the
Lordships of the Honourable Apex Court was as to in such
matters what provisions should be construed to mandatory
and what provisions should be construed to be directory.
Their Lordships of Honourable Apex Court have considered
that in such matters the question of prejudice has to be
taken into consideration. The party will have to point out
that by noncompliance of such provision, prejudice has
caused to the party. The petitioners are not in a position to
point out what prejudice has been caused to them by either
not sending the requisition to the Director or by not
sending a copy of notice of the meeting to the Director. In
the facts of the present case no prejudice has been caused
to the petitioners. We are of the considered view that such
provisions will have to be construed as directory and not
mandatory. In that view of the matter, the contention of the
learned counsel in that regard is without substance.
9. In view of the view taken by the Division Bench in the
case of Prabhakar s/o. Kashinath Selokar (Supra), we find the
petition liable to be dismissed.
10. Learned counsel then placed on record some documents,
indicating that the Assistant Registrar/Deputy Registrar, Co-operative
Societies, had called the petitioners on the morning of the day on
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which the meeting was convened. They put up before him their
grievance. The petitioners by his inaction got prejudiced as the
authority concerned did not take cognizance thereof.
11. Admittedly, the matter went far ahead. The meeting
took place, as scheduled. Voting on no-confidence motion took
place, the result whereof has not been declared in view of the order
dated 26.08.2024.
12. Since we find no merit in the Writ Petition, the same is
liable to be dismissed. Hence, the Writ Petition is dismissed. Rule is
discharged. Interim relief stands vacated.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
