Partly allowed

Shri. Shekhar Ramchandra Badade v. the State of Maharashtra and Ors.

Bombay HC19 Mar 2012WP/1189/2012

Case brief

AI extract

What is this about?

The High Court held that continuing an Administrator to manage a Regional Market Committee beyond the statutory aggregate limit of three years is without authority of law and nullity, ordering immediate elections despite a pending proposal to bifurcate the committee's area.

What did the court decide?

Direction to respondents to take immediate steps for conduct of elections to constitute the duly elected Committee of the respondent No.5 Regional Market Committee forthwith.

Shri. Shekhar Ramchandra Badade Vs the State of… — Service and Employment | Bombay HC (2012)

1189.12

SQP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1189 OF 2012

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Shekhar Ramchandra Badade, Aged 32 years, Occ.: Agriculturist, Residing at & Post: Kodit (Bk.), Taluka Purandar, Dist.Pune. (Agriculturist Produce Market Committee,

Neera, Dist.Pune)

...Petitioner

Versus

1.The State of Maharashtra,

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2.The Principal Secretary, Cooperation, Marketing & Textile Department, Govt. of Maharashtra, Mantralaya, Mumbai 400 032.

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3.The Director of Marketing, State of Maharashtra, Pune.

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4.The District Deputy Registrar, Cooperative Societies, Pune.

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5.The Administrator, Pune District Agricultural Produce Market Committee constituted under the Maharashtra Agricultural Produce Marketing (Development & Regulation) Act, 1963,

Pune.

...Respondents

WITH

CIVIL APPLICATION NO.658 OF 2012 IN

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WRIT PETITION NO.1189 OF 2012

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1.Shivaji Dhondiba Kotwal,

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Age:45 years, Occu: Agriculturist,

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2.Limbaji Sakharam Jagtap,

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Age: 54 years, Occu: Agriculturist, Both R/at & Post Ashtapur, Tal.Haveli, Dist.Pune.

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...Applicants

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Versus

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1.Shekhar Ramchandra Badade, Age: 32 years, Occ.: Agriculturist, R/at & Post: Kodit (BK.), Tal. Purandar, Dist.Pune.

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2.The State of Maharashtra,

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3.The Principal Secretary, Cooperation Marketing & Textiles Department, Govt. of Maharashtra, Mantralaya, Mumbai 400 032.

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4.The Director of Marketing, State of Maharashtra, Pune.

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5.The District Deputy Registrar, Cooperative Societies, Pune.

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6.The Administrator, Pune District Agricultural Produce Market Committee Chhatrapati Shivaji Market Yard, Gul Tekdi, Pune 411 037. ...Respondents

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Mr.Ram Soni i/b Ram & Co. for Petitioner in WP/1189/12 & for Respondent No.1 in CA/658/12.

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Mr.S.R.Nargolkar, A.G.P. for Respondent Nos.1 to 4 in WP/1189/12 & for Respondent Nos.2 to 5 in CA/658/12.

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Mr.M.L.Patil for Respondent No.5 in WP/1189/12 & for Respondent No.6 in CA/658/12.

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Mr.Vijay Patil for Applicant/Intervenor in CA/658/12.

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CORAM:- A.M.KHANWILKAR AND N.M.JAMDAR, JJ. RESERVED ON :- MARCH 14, 2012. PRONOUNCED ON :- MARCH 19, 2012.

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JUDGMENT : (Per A.M.Khanwilkar, J.) :

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Heard Counsel for the parties. The matter is taken up for final disposal forthwith, by consent.

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The petitioner claims to be an agriculturist and agriculturist member of the Agricultural Produce Market Committee, Neera, District Pune, which is a constituent of Respondent No.5. He has filed this Writ Petition under Article 226 of the Constitution of India to issue direction to the respondents to forthwith hold elections to constitute the duly elected Committee of the respondent No.5 Pune District Agricultural Produce Market Committee. It is also prayed that direction be issued to the respondents to refrain from extending the appointment of the Administrator on the respondent No.5 any further.

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The petitioner asserts that the erstwhile Market Committee was suspended on 29^th July, 2003 and Administrator was appointed to manage the affairs of the said Committee. That arrangement has continued unbated. While the Administrator on the erstwhile Committee continued, the State

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Government in exercise of powers under Section 13 (1B) of the Maharashtra Agricultural Produce marketing (Development and Regulation) Act, 1963 (hereinafter referred to as `the Act'), established the respondent No.5 Committee vide Government Notification dated 10^th January, 2008. The said Notification reads thus:

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“CO-OPERATION, MARKETING AND TEXTILES DEPARTMENT Mantralaya Mumbai 400 032, dated the 10^th January 2008

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NOTIFICATION

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MAHARASHTRA AGRICULTURE PRODUCE MARKETING (DEVELOPMENT AND REGULATION) ACT, 1963.

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No.Kurbas, 2007/C.R. 138/11-C.- Whereas, the Agriculture Produce Market Committee, Pune has been established in the name of “Krushi Utpanna Bazaar Samiti, Pune”, by Govt. notification Agriculture and Co-operation Department No.APM 2067/9843-C1, dated the 23^rd March 1971 issued under section 44 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963;

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Whereas, the Agriculture Produce Market Committee, Pune submitted a proposal to the Director of Marketing, M.S.Pune for declaration of Agriculture Produce Market Committee, Pune as a “Regional Market Committee” for “Pune District” as Most of the agriculture produce brought for the purpose of marketing in the market area comes from brought for the purpose of marketing in the market area comes from outside the market area of Pune City and Haveli Talukas and for better representation to farmers who produce the Agriculture produce from outside the market area and for efficient regulation of Marketing of Agriculture produce in the Market area as well as to provide additional facilities like Packaging, cold storage, grading etc. for securing maximum price for agricultural produce;

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Whereas, the Director of Agricultural Marketing, Maharashtra State, Pune has examined and recommended the proposal submitted by the Agriculture Produce Market Committee, Pune to the State Government and the Government of Maharashtra is satisfied with the proposal.

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Now therefore, in exercise of powers conferred under sub-section ( 1B ) of section 13 of the Maharashtra Agriculture Produce Marketing (Development and Regulation) Act, 1963 (Mah XX of 1964). The Government of Maharashtra hereby declares that with effect from the date of publication of this notification in Maharashtra Government Gazette the “Krushi Utpanna Bazaar Samiti”, Pune is declared as a “Regional Market Committee” for Pune district consisting of 14 Talukas Namely (1) Pune City (2) Haveli (3) Bhor (4) Velhe (5) Daund (6) Indapur (7) Baramati (8) Purandar (9) Rajgurunagar (10) Shirur (11) Ambegaon (12) Junnar (13) Mulshi and (14) Maval and is called in the name of “Pune Zilha Krushi Utpanna Bazaar Samiti, Pune” having its Market area as Haveli Taluka and Pune City (herein after referred to as the “Said Market Area”) for the purpose of this Act for regulating the Agricultural produces, which are already regulated by the existing Market Committee, And further declares as follows namely :-

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In this notification unless the context requires otherwise :-

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(a) “Declaration day” means date on which this notification is published in the official Gazette.

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(b) “Existing Market Committee” means Agriculture Produce Market Committee, Pune” or “Krushi Utpanna Bazaar Samiti”, Pune having its market area as Haveli & Pune” City Talukas.

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(c) “Successor Market Committee” means Pune Zilla Krushi Utpanna Bazaar Samiti Pune for Pune District established under Clause-1 of this notification i.e. the Regional Market Committee for Pune District having its Market area as Haveli Taluka and Pune City.

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Whereas, the constitution of Regional Market Committee is not yet clearly defined and in exercise of power conferred by section 59 of Maharashtra Agriculture Produce Marketing (Development and Regulation) Act, 1963 Government hereby exempts Pune Zilla Krushi Utpanna Bazaar Samiti, Pune from sub-section (2) of section 13 of Maharashtra Agriculture Produce Marketing (Development and Regulation) Act, 1963 and appoints Shri Balasaheb Jayram Deshmukh, Deputy Registrar Co-operative Societies, as an Administrator of Pune Zilla Krushi Utpanna Bazaar Samiti Pune.

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The Administrator of the Successor Market Committee shall hold office as per provisions in sub-section (3) of section 14 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963.

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With effect from the declaration day the following consequences shall cause namely :-

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(a) All properties moveable and immovable and all interest of what so ever nature and kind therein vested in the Existing Market Committee with existing market yard and all other existing sub-market yards, immediately before the declaration day shall be deemed to be transferred to and vest in the Successor Market Committee.

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(b) All the rights and liabilities of the Existing Market Committee (including those arising under any agreement or contract) shall be deemed to be the rights, liabilities and obligations of the Successor Market Committee.

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(c) All sums due to the Existing Market Committee whether under the provisions of any Act or otherwise shall be recoverable by the Successor Market Committee and for the purposes of such recovery, the Successor Market Committee shall be competent to take any measure or institute any proceedings which it would have been open to Existing Market Committee before the declaration day.

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(d) The unexplained balance in the market fund constituted under the Maharashtra Agricultural produce marketing (Development and Regulation) Act, 1963 of the Existing market Committee and all sums due to an Existing Market Committee recovered by the Successor market Committee and such sums as the State Government may direct in this behalf shall form part and be paid into the market fund of the Successor Market Committee.

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(e) All contracts made with and all instruments executed on behalf of, an Existing Market Committee shall be deemed to have been made with or by or on behalf of the Successor Market Committee and shall have effect accordingly.

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(f) All proceedings pending before any authority of an existing market Committee immediately before the declaration day shall be deemed to be transferred to such Successor Market Committee.

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(g) All suits and legal proceedings pending on the declaration day in or to, which any Existing Market Committee was a party, the Successor Market Committee shall be deemed to be party therefor.

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(h) Anything done or any action taken (including any appointment, delegation or declaration made, notification, order, rule, direction or notice issued, by-laws, licenses granted, fees levied and collected by an Existing Market Committee) shall in so far as such thing or action is not

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inconsistent with the provisions of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 be deemed to have been done by the Successor market Committee and shall continue in force unless and until superseded by anything duly done or any action duly taken under the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963.

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(i) All officers and servants in the employment of an Existing market Committee immediately before the declaration day specified in the staff schedule shall be deemed to be transferred to the service of the Successors Market Committee. The Successor market Committee may add amend or alter the staff schedule as and when so required with the permission of the concerned authority and also may revised the pay scales of the staff as and when so required with the permission of the concerned authority.

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(j) Any service rendered by any person under an Existing Market Committee shall be deemed to be service rendered under the Successor Market Committee.

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(k) All permissions, approvals, sanctions, by Government, SemiGovernment or any other authorities of the Existing Market Committee are applicable to Successor Market Committee.

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(l) The Successor Market Committee may add, amend or alter its own bye-laws as and when so required with the approval from the concerned authority.

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By order and in the name of the Governor of Maharashtra,

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PRADEEP S. INDULKAR,

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Deputy Secretary to Government”

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In this background, the petitioner has approached this Court by way

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of present Writ Petition praying for the following reliefs :

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“(a) That this Hon'ble Court be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction in the nature of Writ of Mandamus, thereby directing the Respondents to forthwith hold elections to the Pune District Agricultural Produce Market Committee, Respondent No.5 herein.

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(b) That this Hon'ble Court may be further pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of Writ of Mandamus, thereby directing the Respondents not extend the appointment of the Administrator any further.

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(d) Such further and other reliefs as the nature and circumstances of the case may require be granted to the Petitioner.”

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The petitioner asserts that the relief as claimed in this petition ought to be granted, as, in law, the Government cannot continue the dispensation of Administrator to manage the affairs of the respondent No.5 Regional Market Committee for indefinite period. This Petition is resisted by the respondents. Reply affidavits have been filed by respondents 1 to 4 and respondent No.5 respectively.

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Preliminary objection regarding maintainability of this petition is raised by respondent Nos.1 to 4 on the ground that the petitioner has filed this Petition without approaching the authorities concerned about his grievance on the basis of which relief is claimed in this petition. To buttress this submission, reliance is placed on the Judgment of the Apex Court in the case of Saraswati Industrial Syndicate Ltd. & Ors. vs. Union of India reported in AIR 1975 SC 460 = (1974) 2 SCC 630. The respondent No.5 has questioned the locus of the petitioner to maintain this Petition. On merits, the respondents 1 to 4 have justified their action on the

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ground that proposal has been received by the District Deputy Registrar regarding bifurcation of territorial limits of the respondent No.5 Regional Market Committee, so as to segregate some of the Talukas from its purview and instead to establish Taluka Market Committee for the concerned Talukas. That proposal has been forwarded for consultation to State Marketing Board on 22^nd February, 2012 as required under Section 44 of the Act, which decision is still awaited. It is stated that after the decision to divide the Market Committee is finally accepted, as a follow-up action, steps for division of the market areas, market assets, staff, etc. will have to be taken. That can be done only after two separate Notifications are issued for two Market Committees. The Joint Director of Marketing, Maharashtra State, Pune in his affidavit has then stated that the entire process of division shall be completed within a period of six months and that process shall be completed in right earnest. In substance, the stand taken by the respondents to justify the continuation of Administrator and for non-holding of election to constitute the duly elected Committee or democratically elected body of the respondent No.5 Regional Market Committee, is that, conduct of election at this stage is not only impractical but would result in avoidable expenditure. Inasmuch as, the constituency of the market areas which are proposed to be segregated from the respondent No.5 Regional

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Market Committee will participate in the said election and again later on participate in the fresh elections to be held for the newly established Taluka Market Committees for the respective areas. That will inevitably result in multiplicity of expenses and providing for logistical support. The reply affidavit does not offer any explanation as to how the Authorities could continue the Administrator even after the specified statutory period of initial two years and upon extension of time, up to maximum of one year in the aggregate which has admittedly expired long back in January, 2011. But after the arguments were concluded, the learned Government Pleader sought permission to rely on the Government Order dated 23^rd September, 2011, copy whereof was handed in to us. The English version of the said document reads thus :

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“Number : AMC-0410/788/M.No.160/11-S Co-operation, Marketing & Textiles Department Mantralaya, Mumbai 400 032. Date : 23 September 2011

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Read : Letter bearing O.W. No.Marketing-5/APMC Pune/ExtensionAdm./2140/11, dated 27^th may 2011 of Director of Marketing, Pune.

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ORDER

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Whereas term of an Administrator of the Market Committee viz. Pune District Agriculture Produce Market Committee, District Pune, has come to an end on the Dt.29/1/2011 and,

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Whereas a process of Haveli Agricultural Produce Market Committee under Pune District Agricultural Produce Market Committee is underway, moreover Director of Marketing, Pune through District Deputy Registrar, Co-operative Societies, Pune, has made a request to extend the term of the office of Administrator and,

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Whereas Director of Marketing, Pune has submitted the said proposal to the Government for further action and,

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Whereas in pursuance of the request made by the Market Committee, the Government has satisfied that it would become proper to extend the term of the office of Administrator.

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Therefore, in pursuance of the powers delegated under the provision of Section 13 (2) and section 59 of Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, by granting exemption from the provision of Section 14(3), the Government's approval is hereby granted to extend the term of the office of Administrator of the Market Committee viz Pune District Agricultural Produce Market Committee, District Pune, from the Dt. 20/1/2011 to 13/3/2012.

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By order and in the name of the Governor of Maharashtra.

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Sd/- (Signature illegible) (Ajinkya Bagade) Section Officer, Co-operation, Government of Maharashtra Co-operation, Marketing and Textile Department

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Copy :

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Director of Marketing, Maharashtra State, Pune Managing Director, Maharashtra State Agricultural Produce, Marketing Board, Gultekdi, Pune – 37. District Deputy Registrar, Co-operative Societies, Pune Administrator, Pune District Agricultural Produce, Market Committee, Pune Select file (11-S).”

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We would first deal with the preliminary objection regarding maintainability of the petition. According to the respondent Nos.1 to 4, the petitioner could not have directly approached this Court without approaching the Authorities with his grievance. The said respondents have placed reliance on the decision of the Apex Court in the case of

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Saraswati Industrial Syndicate Ltd. (supra). The observations in the said decision will have to be understood in the context of controversy considered by the Apex Court in that case in the light of Section 15 of the Essential Commodities Act, 1955 which bars bringing action against the Authority for taking decision in good faith. As a matter of fact, in the same decision, the Court has restated the well recognised principle that a writ or order in the nature of a mandamus would lie when there is failure to perform a mandatory duty. In the present case, the issue raised is about the inaction of the Authorities to ensure installation of democratically elected Committee of the respondent No.5 Regional Market Committee, even after lapse of the maximum statutory period. Thus, the present petition pertains to the grievance of continuation of Administrator even after expiry of statutory period of aggregate three years from the Committee constituted for the first time vide Notification dated 10^th January, 2008, being without authority of law and nullity. We fail to understand as to why the petitioner must be non-suited because he has directly approached this Court complaining about the failure of the Authority to fulfil the mandate of Statute and more particularly, when the law obliges the Authority to ensure that the democratically elected

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Committee is installed within the statutory period. Even if we were to accept this preliminary objection, in the fact situation of the present case, no fruitful purpose would be served by relegating the petitioner before the Appropriate Authority. In that, in the present case, the Appropriate Authority has already expressed its mind on merits of the contention in the form of reply affidavit filed to oppose this Writ Petition. Understood thus, the preliminary objection raised by respondents 1 to 4 does not commend to us.

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We may now turn to the preliminary objection raised by respondent No.5. According to the respondent No.5, the petitioner has no locus standi

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to seek relief as prayed qua the respondent No.5 Regional Market Committee. In para 10 of their reply affidavit, it is stated that the petitioner is a trader who has been granted license by the respondent No.5 and he is a trader in vegetables, onions and potatoes, for that reason, cannot represent the agriculturists. This plea clearly overlooks the constitution of the Regional Market Committee specified in terms of Section 13(1B). Clause c(ii) thereof provides that one representative from the agriculturists elected

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by the agriculturists members of the Agricultural Produce Market Committee from each Taluka included in the area of operation of the

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Regional Market Committee. Indeed, the petitioner in the Writ Petition has asserted that the petitioner is an agriculturist and an agriculturist member of the Market Committee which is a constituent of respondent No.5. However, going by the stand taken by the respondent No.5 itself, the petitioner is a trader. Assuming that the petitioner is not an agriculturist but, from the averments in paragraph 10 of the reply affidavit of the respondent No.5, it is conceded that he is a trader. Clause c(iii) of Section 13 (1B) of the Act stipulates that two representatives, elected by the traders and commission agents, holding licenses to operate as such in the market area should be the members of the Market Committee. The petitioner would be therefore espousing the interest of the said constituency. Even for this reason, we are not impressed with the preliminary objection regarding locus standi of the petitioner.

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That takes us to the real controversy. The question is: whether there is outer limit provided for constitution of the Regional Market Committee. Indisputably, pursuant to the Notification dated 10^th January, 2008 the respondent No.5 has been established in respect of all the 14 Talukas (referred to in the Notification) in the Pune District. Those areas have come under the control of respondent No.5 Regional Market Committee,

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including the market area of Haveli Taluka and Pune City. Section 13, in particular, sub-Section (1B) and sub-section (2) thereof r/w Section 14 of the Act, will be of some significance. The necessity to nominate Chairman and Vice-chairman from amongst the agriculturists when Market Committee such as respondent No.5 Regional Market Committee is constituted for the first time is spelt out from sub-section (2) of Section 13 of the Act. The second proviso to sub-section (2) stipulates that the State Government may, if it considers expedient, instead of nominating the members of the Market Committee as referred to in Clause (c) of subsection (1B) constituted for the first time, appoint an Administrator or the Board of Administrators, and the Administrator or the Board of Administrators, so appointed, shall, for all purposes, be considered to be the committee constituted for the first time. The period for which the Administrator or the Board of Administrators so appointed can hold the office, is discerned from sub-section (3) of Section 14. It provides that the members of Committee constituted for the first time shall hold office for a period of two years. The second proviso to sub-section (3) of Section 14 however stipulates 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 (read

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Administrator), 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 term of office is so extended shall not exceed the period of one year in the aggregate. In other words, the “maximum period” up to which the Administrator appointed by the State Government in exercise of powers under Sub-section (2) of Section 13 in respect of the Market Committee constituted for the first time can continue to hold office, is, initially for a period of two years and further period of aggregate one year, if extended. There is no other provision which permits the State Government to continue the regime of managing the affairs of the Regional Market Committee constituted for the first time through the Administrator beyond the specified period of aggregate three years. It may be useful to refer to sub-section (3A) of Section 14. The same reads thus:

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“(3A) 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 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.”

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In the present case, the State Government has not exercised power to extend the tenure of the Administrator and/or to postpone the conduct of election to constitute the democratically elected committee of respondent No.5 in terms of this provision. That is not the case made out in the reply affidavit nor emerging from the order dated 23^rd September, 2011 produced before us during the arguments referred to above. There is no other provision which empowers the State Government to continue the regime of Administrator in respect of Regional Market Committee constituted for the first time in terms of Section 13(1B) of the Act beyond aggregate period of three years. Thus understood, the continuation of the Administrator in respect of respondent No.5 Regional Market Committee on and after expiry of aggregate three years from the date of its constitution for the first time pursuant to Notification dated 10^th January, 2008, is without authority of law and nullity.

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To get over this position, Government Pleader would contend that the State Government in the present case has exercised powers under Section 59 of the Act. As aforesaid, although this fact is not stated in the reply affidavit, our attention was invited to the order issued under the signature of

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Section Officer, Cooperation Department, Maharashtra State dated 23^rd September, 2011. Before we turn to the purport of that order, it may be apposite to advert to Section 59 of the Act, which reads thus:

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“59. Power to exempt Market Committees, etc., provisions of Act.

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The State Government may, by a general or special order in the Official Gazette, exempt any Market Committee or any class of persons from any of the provisions of this Act or any rules made thereunder, or may direct that such provision shall apply to such Market Committee or to such class of persons with such modifications not affecting the substance thereof as may be specified in that order:

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Provided that, no order to the prejudice of any Market Committee shall be passed without an opportunity being given to such Market Committee to represent its case.”

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On bare perusal of this provision, it is true that the State Government

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has power to exempt any Market Committee from any of the provisions of the said Act or any Rules made thereunder or may direct that such provision shall apply to the Market Committee with such modifications not affecting the substance thereof as may be specified in that order. Notably, the proviso to sub-section 59 envisages that before passing any order in exercise of powers under Section 59, which are prejudicial to the Market Committee, the State Government shall afford opportunity of being heard to the concerned Market Committee to represent its case. Although this is a salutary provision, the same is rendered otiose in the fact situation of the

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present case. For, it is the State Government, who, during the term of Administrator on the erstwhile Market Committee, vide Notification dated 10^th January, 2008, established respondent No.5 Regional Market Committee. It then proceeded to nominate Administrator for the said newly established Regional Market Committee - who is the Government Official – to manage the affairs of the Regional Market Committee since its inception. No democratically elected Committee has been put in place to manage the affairs of the respondent No.5 since its establishment. The members of the respondent No.5 have been therefore denied the opportunity to ventilate their grievance about the prejudice caused to them either in respect of proposal to bifurcate the market areas of respondent No.5 or on account of continuation of the Administrator to manage the affairs of respondent No.5. It may be useful to advert to the case of Shivamrut Dudh Utpadak Sahakari Sangh Maryadit & Ors. v. State of Maharashtra & Ors., reported in 2004 (5) Bom.C.R. 165. The Division Bench of this Court had occasion to consider the purport of Section 157 of the Maharashtra Cooperative Societies Act, 1960 vis-a-vis Sections 77-A, 73-G and 73-H of the same Act. Even in that case, from the establishment of the Society, the Board of Directors was nominated by the State Government, which continued to hold the office for two decades. The Court frowned upon that

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dispensation forced upon the Society by invoking power under Section 157 of the Act of 1960. Notably, Section 157 of the Co-operative Societies Act is similar to Section 59 of the present Act. The Court opined that continuation of the Board of Directors nominated by the State Government indefinitely would make all the provisions relating to election of Society nugatory, otiose and meaningless. The Court held that the rule is that a Board of Directors must be elected, and not nominated, unless there are exceptional circumstances which must be reflected in the Notification. The Court, for the reasons noted in the said reported decision, held that nominating the Board of Directors by the State for indefinite period must be declared unlawful and ultra vires the power and authority of the State Government. In paragraph 37 of the reported decision, the Court upheld the argument of the petitioners that the members of the Society, i.e., the petitioners before the Court and other intermediate Societies were denied opportunity of consultation before taking the decision, as there was no elected body. The concurrence was that of the Board of Directors (in the present case, Administrator) nominated by the State Government, which was puppet of the State Government. Therefore, concurrence for such action can neither be said to be concurrence, nor was real and meaningful consultation.

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Be that as it may, the order dated 23^rd September, 2011, even if read as it is, it is noticed that the same is issued in exercise of powers under Section 13(2) and 59 of the Act so as to exempt the respondent No.5 from the application of Section 14(3) of the Act; and by the same order, the tenure of Administrator was extended from 20^th January, 2011 to 13^th March, 2012. In the first place, there is nothing on record to show as to whether the order so passed has been published in the official Gazette which is the requirement of Section 59 of the Act. In absence of such publication, the said order, even if existing, will be of no avail. Further, it is evident that the tenure of the Administrator has been extended only till 13^th March, 2012 which period has already expired on the day when this matter was argued i.e. 14^th March, 2012. In that sense, the order relied by the Government Pleader does not take the matter any further. Thus, it is not necessary for us to examine as to whether the power exercised by the State Government under Section 59 to exempt the respondent No.5 from application of Section 14(3) of the Act was justified or otherwise. As of now, no general or special order issued by the State Government, which is published in the official Gazette, to extend the tenure of the Administrator beyond 14^th March, 2012, to manage the affairs of the respondent No.5

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Regional Market Committee has been brought to our notice. As and when such order is passed, the efficacy and/or validity thereof can be considered on its own merits in accordance with law. All questions in that behalf are left open.

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For the aforesaid reason, we cannot do better than issuing direction to the respondents to forthwith hold elections to install the democratically elected Committee of the respondent No.5 Regional Market Committee. The argument of impracticability or avoidable expenditure, in our opinion, cannot legitimise the continuation of the Administrator to manage the affairs of the respondent No.5, that too, unabated. We are conscious of the fact that the respondents 1 to 4 have gone on record on affidavit that the entire process of division shall be completed within a period of six months and that process shall be completed in right earnest. However, as there is no challenge to the proposed decision of the State Government to bifurcate the respondent No.5 so as to separate the market areas, market assets, staff, etc. from the existing Regional Market Committee and for establishment of separate Market Committee for the carved out areas, it is not necessary for us to consider the efficacy of the assurance given by the respondents 1 to 4 on affidavit to complete the said process within six months period. There is

¶159

1189.12

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¶161

no guarantee that the said process will not be objected to at a later stage after a formal decision in that behalf is taken. As aforesaid, it is also not necessary for us to consider whether the action of the State of Government of bifurcation fulfills the aspirations of members of respondent No.5 flowing from proviso to Section 59 of the Act. For the time being, we would confine to the limited grievance of the petitioner that the members of the newly established Regional Market Committee have been disrobed of installing a democratically duly elected Committee on its own.

¶162

For the reasons mentioned above, we partly allow this Writ Petition with direction to the respondents to take immediate steps for conduct of elections to constitute the duly elected (democratically elected) Committee of the respondent No.5 Regional Market Committee forthwith.

¶163

As regards prayer clause (b) of the Petition, even though we have found that continuation of Administrator on and after 14^th March, 2012 is without authority of law, we may refrain from issuing any direction to the respondents that the respondents should not extend the tenure of the Administrator until the culmination of election. Such direction may not be appropriate for at least two reasons. Firstly, if the State Government has

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1189.12

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authority to extend the tenure of Administrator even beyond the period specified in Section 14(3) of the Act, the State Government is free to invoke that power subject to challenge thereto on grounds as may be permissible in law. Secondly, in absence of duly elected Committee and also of noncontinuation of Administrator to manage the affairs of the Committee, it will result in a piquant situation. In that, there will be complete hiatus with regard to the affairs of the respondent No.5 Committee.

¶167

Accordingly, in the peculiar facts of the present case, we partly allow

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this Petition only in terms of prayer clause (a) on the above terms.

¶169

In view of the above, Civil Application for intervention is also disposed of.

¶170

(N.M.JAMDAR, J.) (A.M.KHANWILKAR, J.)

Shri. Shekhar Ramchandra Badade v. the State of Maharashtra and Ors.

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Shri. Shekhar Ramchandra Badade v. the State of Maharashtra and Ors.

Case brief

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