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2013 Supreme(Bom) 807
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & P.B. VARALE, JJ.
Vilas s/o Rangrao Mahalle & Others
Versus
The State of Maharashtra, through its Secretary, Co-operation & Marketing Department & Others
Writ Petition No. 201 of 2012
Decided On : 09-04-2013
For the Petitioners:M.G. Bhangde, Senior Advocate, V.V. Bhangde, R.M. Bhangde, Advocates.
For the Respondents:R1, R2, Mrs. B.H. Dangre, Additional GP, R5 & R7. S.P, Dharmadhikari, Senior Advocate with U.S. Dastane, R4, K.V. Deshmukh, R6, A.S. Kilor, Advocates.
Headnote:Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 - Sections 39-K and 60 - Power to devise mode & manner working of Board.
Board has power to devise mode and manner of its working under Section 39-K of Act and State Government has no power to frame any rules in this respect. - As composition of Board shows that it consists of almost 14 members and most of them are ex officio members, respondents have, therefore, urged that it is not possible for all an such members to sit together and to deliberate on large number of proposals under Section 45 received by respondent No. 10. Considering the tedious nature of this work, Allocation of said business has been given to a smaller body which can undertake that scrutiny more conveniently and easily. Here, one has to note provisions of Section 60 which confer power upon State Government to frame rules vide notification in the Official Gazette. Said section also does not enable State Government to frame any Rules about mode and manner of working of Board. Suffice it to say, therefore, that mode and manner of working has to be devised by respondent No. 10-Board. The same has to be under Section 39-K.
Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 - Sections 40 and 45 - MAPM Rules, 1967, Rule 117(4) - Inquiry report to director. -
When Inquiry Officer, submitted its report to Director, then Director have to extend hearing to person allegedly committed some wrong including member of market committee. - Therefore, after the report is received by the Director, the Director depending upon the error or lacunae pointed out, may take appropriate decision and may issue a direction falling under Section 40(d)(i) or (ii) and also under clause (e) as an interim measure. He may also take recourse to powers under Section 41-A. These sections do not contemplate any opportunity of hearing after such positive direction or restraining order by the Director. Rule 117 (4) will not apply when Director himself conducts the inquiry under Section 40. It is in this background that the Director has been obliged to pass order after receipt of the report.
The report is prepared by the Inquiry Officer to while decision upon it or action upon it is being taken by the Director who is not party to inequity. Hence, the Rule making body has found it appropriate that such non-party Director extends an opportunity of hearing to the person reported to be involved in any wrong doing including the member of the Market Committee before further course of action is decided by him in pursuance of such report. Similar law & view is accepted in the light of provisions of Article 311 of the Constitution of India in the case of Union of India and others v. Mohd. Ramzan Khan, AIR 1991 SC 471. Thus, when an authority or person not party to an inquiry is acting upon report or material appreciated by some third person (inquiry officer) and person against whom the material is to be used may or may not be aware of such material or report, the principles of natural justice necessitate that person sought to be proceeded against must be served with that inquiry report and the authority taking decision must give a reasonable opportunity to him. It is this principle which has been incorporated in the shape of Rule 117(4) by providing a hearing. However, for the purposes of Section 45, the provisions of Section 40 are not relevant at all. Section 45(1) springs into operation upon the opinion/satisfaction of the State Government.
This opinion of State Government may be founded on the proceedings of Market Committee called for by it under Section 43 or then on account of any information or complaint directly received by it or even on account of any inquiry including inquiry under Section 40. State Government does not & can not use that material to the prejudice of notice member or A.P.M.C. under Section 45 without affording him/it an opportunity to show cause & of hearing. Passing of order by the Director upon such inquiry under Section 40 is, therefore, not prerequisite & decisive. It is the opinion of State Government which is relevant and any order passed by the Director, therefore, cannot eclipse it. The State Government is superior authority and has been placed above the Director in the scheme of 1963 Act.
Against the opinion of the State Government or the material being used by it, the person proceeded against i.e. members of Market Committee get an opportunity to show cause. Thus, even if report under Section 40 is held sufficient by State Government to reach an opinion envisaged under Section 45(1), State Government is not empowered to use that report without extending an opportunity to such a person. Hence, the measures provided for in Rule 117(4) of 1967 Rules, to safeguard the members against adverse use of such report & adverse action are in built in Section 45(1) 1963 Act. In a given case, it may happen that a Director in exercise of powers under Rule 117(4) may not take any action and find no substance in inquiry report. That may not prohibit State Government in reaching a contrary opinion on the basis of the very same material for the purposes of Section 45 of 1963 Act.
Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 - Section 45(1) - Consultation process under.
Placing of report of Inquiry Officer, directly before Chairman instead of before Vice-chairman of Board, is violation of process of consultation under Section 45 of Act. - The Vice-Chairman of Board is a State Minister in Cabinet of State of Maharashtra and hence his remark on said report would definitely have an important bearing on the issue for the petitioners. It would have also weighed with the Chairman, a Cabinet Minister authorised to form the opinion. The said report was directly placed before the Managing Director and thereafter before the Chairman. Neither the Managing Director nor the Chairman have expressed any opinion. The General Manager did not specifically record any finding on breach or violation as alleged in show- cause notice because his report was to be looked into by the Vice-Chairman and the Chairman. He was authorized only to hear & report. He has only done that job & his report never goes to the Vice-Chairman. Moreover, the Chairman has not recorded any specific finding on alleged violation either in favour of action proposed or against it. He has overlooked the word "if" employed by the General Manager. In this situation, the scheme evolved through resolution mentioned supra by Board in its meeting has not been followed. The perusal of said resolution shows that it is a general arrangement evolved by Board and it is obvious that it wanted its role in consultation process to be judged by applying predecided norms on uniform basis. If arrangement evolved is statutorily sustainable, importance of role assigned to high ranking representatives of people by Board in it can not be allowed to be ignored. The said role is soul of said arrangement. Here that soul has been breached & defeated.
If the resolution of Board is to be accepted, it needs to be adhered to in full and not in part. When it makes a provision for hearing, such argument is not open. He has also pointed out that there is no grievance about non-supply of entire material by Board for the purposes of consultation. Though correct, Court finds this submission hardly relevant in the background of finding recorded above. As the Board has not adhered to its own resolution, Court is not in a position to hold that Board has communicated what it felt as Board to respondent No. 2 in terms of law. The impugned process of consultation under Section 45 as followed is, therefore, faulty and unsustainable.
The resolution authorized General Manager only to conduct hearing and to submit his report through Vice-Chairman to Chairman. The requisite finding to constitute an opinion of Board was to be reached by the Chairman as per that resolution. Court has already found that there is no such finding or even an attempt by the Chairman. In this situation, it is apparent that the provisions of Section 45(1) are not complied with in present matter and respondent No. 10-Board has failed to discharge its obligation.
Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 - Section 52-B - Appeal against order of Director.
An appeal under Section 52-B of Act, against Order of Director passed on report of Inquiry Officer is maintainable. - Section 52-B of 1963 Act is a remedy of appeal available to any person aggrieved by the decision taken or order passed under any of the provisions of this Act. The acceptance of report by the Director under Rule 117(4) by itself does not result in any adverse action and a person cannot be said to be aggrieved by acceptance of report. However, when the Director uses that report and issues directions as envisaged in Section 40(d) or (e) or then Section 41-A, the said directions or orders can be questioned in Section 52-B as then a member or person can be said to be aggrieved because of those directions. If the report is not acted upon or not used, no prejudice can be suffered by any member and hence his appeal under Section 52-B will not be maintainable.
By this petition filed under Article 226 & 227 of the Constitution of India, 15 Directors of Agricultural Produce Market Committee, Amravati (Respondent No. 4) question the order dated 27.12.2011 passed by Respondent No. 2 – District Deputy Registrar, Cooperative Societies, superseding it under Section 45 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, (hereinafter referred to as 1963 Act) & appointing an Administrator on it. The Maharashtra Agricultural Produce Marketing (Development and Regulation), Rules, 1967 framed under this Act are hereinafter referred to as 1967 Rules.
2. This Court has on 16.01.2012, restrained Administrator from taking charge of A.P.M.C. and thus elected body viz., petitioners still continue to function.
3. The Notice under Section 45 of 1963 Act for supersession is on various grounds which require scrutiny of material on record as the petitioners wish to contend that the Charges are not proved against them. But then during arguments, parties agreed to passing of an order on preliminary objections raised by the petitioners first and thereafter if necessary, to proceed with further hearing of the petition on merits of those charges ie alleged perversity. Accordingly, this judgment is being delivered only in the light of arguments advanced on the preliminary contentions about absence of effective previous consultation with State Agricultural Marketing Board ie Respondent 10 & correctness of procedure followed by Respondent No. 10 – Board there for and need of an order under Rule 117 (4) of 1967 Rules on enquiry report under S. 40 of 1963 Act.
4. The impugned order under Section 45 is dated 27.12.2012 and the petitioners have been elected on Board of Directors of Respondent No. 4 – A.P.M.C. for a period of five years in May 2008. Few of these Directors complained of some illegalities and irregularities on 18.01.2010 and Respondent No. 2 then appointed an Inquiry Officer to hold Inquiry into the same as per Section 40(b) of 1963 Act. The Inquiry Officer submitted his report on 15.06.2010 and according to the petitioners, District Deputy Registrar (D.D.R.) then ordered re-inquiry into three points. The very same Inquiry Officer submitted his report on those points on 08.03.2011. On 01.04.2011, copies of both reports were sent to the Agricultural Produce Marketing Committee (A.P.M.C.) and its explanation was called for. A.P.M.C. submitted its explanation on 25.04.2011. The petitioners state that on 01.06.2011, A.P.M.C. also submitted an independent explanation on ongoing recruitment process and this explanation has no relevance with Inquiry Reports submitted by the Inquiry Officer but then Respondent No. 2 – D.D.R. has preferred to consider it as further explanation of A.P.M.C. in proceedings under Section 40. On 12.07.2011, a show cause notice under Section 45 of 1963 Act for supersession of elected body and for appointment of Administrator came to be issued. On 09.08.2011, the petitioners submitted reply to it. Section 45 obliges Respondent No. 2 to previously consult Respondent No. 10 – Board and accordingly the D.D.R. forwarded the papers to Respondent No. 10 – Board. On 22.10.2011, Respondent No. 10 – Board passed a resolution evolving a procedure for its consideration and on 01.11.2011, the General Manager of Respondent No. 10 – Board sent a notice of hearing. On 05.11.2011, the petitioners were heard and thereafter General Manager on 19.12.2011 wrote to Respondent No. 2 – D.D.R. to proceed in the matter in accordance with law. The impugned order dated 27.12.2011 has been passed thereafter.
5. Shri Bhangde, learned Senior Advocate, learned counsel for the petitioners, in this background, submits that the General Manager was authorized to hear the petitioners and he had to submit his report to the Vice Chairman, who as per Constitution of Board, is a State Minister. The State Minister was then to forward it to the Chairman of Board, who has to be
