2017(4) ALL MR 347
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

SMT. VASANTI A. NAIK AND MRS. SWAPNA JOSHI, JJ.

Gajanan s/o. Tulshiram Deole & Ors. Vs. The State of Maharashtra & Ors.

Writ Petition No.607 of 2015

25th April, 2017.

Petitioner Counsel: Mr. A.M. GHARE
Respondent Counsel: Mrs. GEETA TIWARI

(A) Maharashtra Agricultural Produce Marketing (Development and Regulation) Act (1963), S.45 - Supersession of Market Committee - Without prior consultation with State Marketing Board - Validity - Proviso to S.45(1) provides that consultation with State Marketing Board is mandatory - Consultation should be 'previous' consultation - Consultation, post decision should be of no consequence - Also opinion of State Marketing board should be one way or other i.e. it should convey either Market Committee needs to be superseded and/or members need to be removed or that no action needs to be taken against Market Committee or its members - Mere opinion that action should be taken in accordance with law is not effective opinion - Supersession of Market Committee on basis of such opinion, improper. 1986 (2) SCALE 89 Rel. on. (Para 6)

(B) Maharashtra Agricultural Produce Marketing (Development and Regulation) Act (1963), S.45(1) Proviso - Supersession of Market committee - Term 'previous consultation' - Meaning of - Opinion expressed by State Marketing Board after order of supersession of Market Committee is passed would not mean 'previous consultation' as is provided under proviso to Section 45(1) of Act. 2014(6) ALL MR 278 Rel. on. (Para 6)

Cases Cited:
Kewal Ram Vs. Maharashtra State Cooperative Societies and others, 1986(2) SCALE 89 [Para 4,6]
Tukaram Narayanrao Vs. State of Mahrashatra, 1998(2) ALL MR 384 [Para 4,6]
Abhishek Thakare and others Vs. The District Deputy Registrar, C.S.,Yavatmal and others, 2014(6) ALL MR 278 [Para 4,6]
Suresh Yenodkar Vs. State of Maharashtra and others, 2017(2) ALL MR 217 [Para 4]


JUDGMENT

SMT. VASANTI A. NAIK, J. :- Rule. Rule made returnable forthwith. The Writ Petition is heard finally with the consent of the learned counsel for the parties.

2. By this Writ Petition, the petitionersBoard of Directors of the Agricultural Produce Market Committee, Malegaon have challenged the order of the District Deputy Registrar, Cooperative Societies, Washim superseding the Board of Directors of the Market Committee, under Section 45 of the Maharashtra Agricultural Produce Marketing (Development & Regulation) Act, 1963 (hereinafter referred to as 'the Act' for the sake of brevity).

3. The petitioners were the elected Directors of the Market Committee, Malegaon. Certain complaints were made against the Directors of the Market Committee and a preliminary enquiry was conducted in the complaint by the Assistant Registrar, Cooperative Societies, Malegaon. According to the Assistant Registrar, there was some substance in the complaints made against the petitioners. After securing the report from the Assistant Registrar, the District Deputy Registrar served a notice under section 45 (1) of the Act, asking the petitioners as to why the Market Committee should not be superseded or the members be removed, in view of the default committed by them. The petitioners replied to the showcause notice, but their reply did not find favour with the District Deputy Registrar. By the impugned order dated 31.01.2015, the District Deputy Registrar superseded the Market Committee. The petitioners have challenged the said order in the instant petition.

4. Inter alia, it is submitted on behalf of the petitioners that the impugned order is liable to be set aside, as the provisions of Section 45(1) of the Act have not been complied with, before the order of supersession was passed. It is stated that the State Marketing Board was not 'previously consulted', as the State Marketing Board had not expressed its opinion one way or the other in regard to the supersession of the Market Committee. It is submitted that it is wellsettled that before superseding a Market Committee under the provisions of the Act, it would be necessary for the State Government to consult the State Marketing Board and to secure its opinion about the supersession of the Market Committee. It is submitted that consultation with the State Marketing Board is held to be mandatory and it has to be effective and merely a show must not be made that the State Marketing Board was consulted. It is stated that after the District Deputy Registrar sought the opinion of the State Marketing Board, the State Marketing Board, vide communication, dated 12.09.2014, only conveyed to the District Deputy Registrar that appropriate action be taken against the Market Committee in accordance with law. It is submitted that the said expression by the State Marketing Board would not be an opinion in the eye of law and it therefore cannot be said that there was an effective consultation with the State Marketing Board by the District Deputy Registrar, before passing the order under Section 45 of the Act, in respect of supersession of the Market Committee. The learned counsel relied upon the judgment of the Honourable Supreme Court in the case of Kewal Ram vs. Maharashtra State Cooperative Societies and others, reported in 1986(2) SCALE page 89, to submit that the expression "previously consulted" means that the opinion must be taken into account one way or the other, before reaching the conclusion, whether or not the Market Committee could be superseded. It is submitted that though the judgment in the matter of Tukaram Narayanrao vs. State of Mahrashatra, reported in 1998(2) ALL MR 384 takes a somewhat different view in the matter, it would be necessary to note that the judgment of the Hon'ble Supreme Court in the case of Kewalram (supra) was not cited before the Court when the said judgment was rendered. It is submitted that in a recent decision of this Court, in the case of Abhishek Thakare and others vs. The District Deputy Registrar, C.S.,Yavatmal and others, reported in 2014(6) ALL MR 278, this Court has, after considering the decisions in the cases of Kewalram (supra) and Tukaram (supra), has held that the expression 'previously consulted' means the opinion of the State Marketing Board one way other other, must be taken into account before reaching the conclusion whether or not to supersede the Market Committee. It is submitted that in the case of Abhishek Thakare (supra), this Court was considering the order of the State Marketing Board, which runs into several pages, but it was only stated by the State Marketing Board that action in accordance with law could be taken. Reliance is also placed by the learned counsel for the petitioners on the judgment in the case of Suresh Yenodkar vs. State of Maharashtra and others, reported in 2017(2) ALL MR 217, to substantiate his submission.

5. Mrs. Tiwari, the learned Assistant Government Pleader appearing for the respondent nos.1 to 4 has supported the order of the District Deputy Registrar, superseding the Market Committee. It is submitted that before taking the decision of superseding the Market Committee under Section 45 of the Act, the District Deputy Registrar had specifically sought the opinion of the State Marketing Board and the State Marketing Board, vide communication dated 12.09.2014, had informed the District Deputy Registrar to take appropriate action in accordance with law. It is stated on instructions from the Manager of the State Marketing Board, who is present in the Court today, that after the impugned order was passed on 31.01.2015, the District Deputy Registrar, again, asked the State Marketing Board to give an opinion one way or the other and the State Marketing Board has opined that the Market Committee needs to be superseded.

6. On hearing the learned counsel for the parties, we find that the impugned order dated 31.03.2015 cannot be sustained, as the same is passed without effective consultation with the State Marketing Board. The provisions of Section 45(1) of the Act empower the State Government to supersede the Market Committee and/or to remove its members as the case may be, when it is of the opinion that the Market Committee is not competent to perform and/or is persistently making default in performance of duty imposed on it, under the Act. The proviso to subsection(1) of the Section 45, however, stipulates that no Market Committee could be superseded without prior consultation with the State Marketing Board. It is held by this Court, time and again, that the consultation with the State Marketing Board is mandatory and the consultation has to be effective. It is held that the State Government cannot just make a mere show of having consulted the State Marketing Board and the consultation has to be effective. So also, the proviso to subsection(1) of Section 45 of the Act provides that the consultation should be 'previous' consultation and the State Marketing Board cannot be consulted after the decision is taken. In the instant case, after the District Deputy Registrar asked the State Marketing Board to give its opinion in regard to the supersession of the Market Committee by supplying the material in respect of the complaints and the report of the Assistant Registrar of the Cooperative Societies, by a single line order-communication, dated 12.09.2014, it was informed by the State Marketing Board to the District Deputy Registrar that appropriate action may be taken in accordance with law. What is expected from the State Marketing Board is an opinion one way or the other and it would be necessary for the State Marketing Board to convey its opinion that either the Market Committee needs to be superseded and/or the members need to be removed or that no action needs to be taken against the Market Committee or its members on the basis of material available before it. The Hon'ble Supreme Court has held in the judgment in the case of Kewalram (supra), that the opinion of the Federation one way or the other must be taken into account before reaching the conclusion whether or not to supersede. The Hon'ble Supreme Court went on to add that it is not a good answer to say that the opinion of the Federation could not be taken into account because no opinion was expressed by it. It is further observed that a reply from the Federation, one way or the other should be insisted upon. In the instant case, probably, the District Deputy Registrar realised the mistake committed by him in superseding the Market Committee, under Section 45 (1) of the Act, by considering the communication of the State Marketing Board, dated 12.09.2014, which was not an opinion in the eye of law. A mere statement in the communication that appropriate action may be taken would not be an opinion of the State Marketing Board. When a specific opinion is sought by the State Government whether a Market Committee should be superseded or not, it would be necessary for the State Marketing Board to convey to the State Government that in the circumstances of the case,the Market Committee needs to be superseded or the Market Committee should not be superseded. If the so called opinion, which is conveyed by the State Marketing Board vide communication, dated 12.09.2014 is said to be an opinion as is contemplated under section 45 (1) of the Act, 'previous consultation' would be an empty formality. If an opinion like the one expressed by the State Marketing board vide communication dated 12.09.2014 is expressed by the State Marketing Board, it would be necessary for the State Government or the authority under the Act, to which the power under section 45(1) is delegated, to ask the State Marketing Board to express its opinion one way or the other. In the instant case, after realising the folly of taking a decision without the 'opinion' of the State Marketing Board, the District Deputy Registrar could not have asked the State Marketing Board to express its opinion one way or the other and then supported the earlier impugned decision on the basis of a postdecisional opinion. We are afraid that the opinion expressed by the State Marketing Board after the order of supersession of the Market Committee is passed on 31.01.2015 would not mean 'previous consultation' as is provided under the proviso to Section 45(1) of the Act. The proviso to Section 45(1) of the Act, as stated hereinabove speaks of 'previous consultation'. A consultation post the decision, would be of no consequence. We are supported in our view by the judgment in the case of Abhishek Thakare (supra). While rendering the judgment in the case of Tukaram (supra) this Court did not have an occasion to consider the law laid down by the Hon'ble Supreme Court in the judgment in the case of Kewalram (supra), but this Court had, after considering the law laid down in the case of Kewalram (supra) as also the law laid down in the case of Tukaram (supra), and a catena of decisions, has held in the judgment in the case of Abhishekh Thakare (supra) that the State Marketing Board would fail in its obligation if it does not express its opinion in regard to the supersession of the Market Committee one way or the other. In the circumstances of the case, the order superseding the Market Committee is liable to be set aside.

7. Hence, for the reasons aforesaid, the Writ Petition is allowed. The impugned order is quashed and set aside. The respondents are free to take action in accordance with law.

Rule is made absolute in the aforesaid terms, with no order as to costs.

Petition allowed.