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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Writ Petition No. 139 of 2010
1) Agriculture Produce Market
Committee, Ralegaon,
District-Yavatmal.
2) Prashant s/o Amrutrao Tayade,
Aged 32 years,
R/o Pimpalkhuti, Post-Zadgaon,
Tahsil-Ralegaon, District-Yavatmal.
3) Sudhir s/o Ramdasji Javade,
Aged about 40 years,
R/o Kinhi (Javade),
Tahsil-Ralegaon, District-Yavatmal. .. PETITIONERS
.. Versus ..
1) The State of Maharashtra,
through Secretary,
Department of Cooperation,
Mantralaya, Mumbai-32.
2) The District Deputy Registrar,
Cooperative Societies, Yavatmal.
3) Prafulla s/o Khushalrao Mankar,
Aged-Adult, Occ. Agriculturist &
Director of A.P.M.C. Ralegaon,
R/o Tah. and Dist. Yavatmal. .. RESPONDENTS
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Mr. Subhash Paliwal, Advocate for the petitioners,
Mr. Ravi Kadam, Advocate General with Mrs. B.H. Dangre,
Additional Government Pleader for the respondents 1 and 2,
Mr. A.M. Ghare, Advocate for the intervenor.
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CORAM:-S.A.BOBDE AND
SMT. VASANTI A. NAIK, JJ.
DATED :-02-03-2010.
ORAL JUDGMENT (Per S.A. Bobde, J)
1. Rule, returnable forthwith. Heard by consent of the
learned Advocate for the parties.
2. The petitioners have challenged the order dated 6-1-2010
passed by the respondent No.1-the State of Maharashtra by
which the earlier order postponing the elections to the
Agriculture Produce Market Committee, Ralegaon has been
cancelled and the elections are directed to be held. The
petitioners have also challenged the consequential order dated
8-1-2010 passed by the District Deputy Registrar, Co-operative
Societies, Yavatmal directing the appointment of an
Administrator on the A.P.M.C., Ralegaon.
3. The petitioners are the Agriculture Produce Market
Committee, Ralegaon, District Yavatmal; the Vice-Chairman of
the said A.P.M.C.; and an agriculturist of village Kinhi. The
A.P.M.C., Ralegaon was constituted for a period of five years.
The first meeting was held on 26.4.2004 and the term expired
on 25-6-2009. Thereafter the Government exercised powers
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under Section 14(3-A) of the Maharashtra Agricultural Produce
Marketing (Regulation) Act, 1963 and postponed the elections
for a period of six months i.e. upto 25-12-2009. The term of the
Committee was not extended.
4. Apparently, elections to as many as 25 Agricultural Seva
Sahakari Societies at the village level had not been held. The
matter was brought to this Court and this Court by an order
dated 24-11-2009 held that the elections to the Agricultural
Seva Sahakari Societies should be held before the elections to
the A.P.M.C. are declared.
5. On 23-12-2009 the respondent No.1 State of Maharashtra
issued an order in the name of the Governor of Maharashtra
postponing the elections from 26-12-2009 by a period of six
months on the following ground; that the Director of Marketing
has formed an opinion to that effect, that this Court has passed
an order directing that the elections to the Seva Sahakari
Societies should be held first and that season of cotton and
soyabean have commenced the said crops are coming into
market in large quantities and it would not be proper to
interrupt the sale and purchase due to the elections. This order
was issued under Section 14(3-A) of the Maharashtra
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Agricultural Produce Marketing (Regulation) Act, 1963.
6. Thereafter much before the end of the period for which
the elections are postponed the State suddenly decided to
cancel the earlier order postponing the elections. This was done
by the impugned order dated 6-1-2010. This order is
significantly not issued by or in the name of the Governor of
Maharashtra, but is issued by the Joint Secretary, State of
Maharashtra simply stating that the postponement of elections
made by the earlier order dated 23-12-2009 is cancelled. The
order further directs the District Deputy Registrar of Co-
operative Societies to supercede the Board of Directors of the
A.P.M.C. and appoint an Administrator. In pursuance of this
order, the District Deputy Registrar has issued the other
impugned communication dated 8-1-2010 referring to the
impugned order of the State Government dated 6-1-2010 and
directing that the offices of the Directors of the petitioner-
A.P.M.C. shall be vacated and directing the appointment of an
Administrator till the first meeting of a newly elected
committee under Section 15 of the Maharashtra Agricultural
Produce Marketing (Regulation) Act, 1963. Both these
communications are challenged in this writ petition.
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7. Mr. Paliwal, the learned Advocate for the petitioners
primarily submitted that the impugned order dated 6-1-2010
passed by the respondent No.1 under the signature of the Joint
Secretary is illegal not having been issued by an order in the
name of the Governor of Maharashtra as required by Article
166 of the Constitution of India, even though the earlier order
postponing the elections was so issued and authenticated
under Article 166 of the Constitution of India. According to the
learned Advocate, the respondent No.1, having postponed the
elections to the A.P.M.C., Ralegaon by order or in the name of
the Governor of Maharashtra, was bound in law to withdraw the
same if it wished to do so in a like manner i.e. by order or in the
name of the Governor of Maharashtra. Not having done so, the
impugned order withdrawing the earlier order by which
elections are postponed is contrary to Section 21 of the General
Clauses Act, 1897, which reads follows :-
“21. Power to issue, to include power to add
to amend, vary or rescind notifications,
orders, rules or bye-laws – Where, by any
Central Act or Regulations, a power to issuenotifications, orders, rules, or bye-laws is
conferred, then that power includes a power,
exercisable in the like manner and subject to the
like sanction and conditions (if any), to add to,
amend, vary or rescind any notifications, orders,::: Downloaded on – 09/06/2013 15:39:46 :::
6rules or bye-laws so issued”
8. The learned Advocate General for the State of
Maharashtra submitted that the order withdrawing the earlier
order must be taken to be in compliance with Section 21 of the
General Clauses Act, 1897, even though it is not issued by
order or in the name of the Governor of Maharashtra; since it
has been substantially issued in like manner as required by
Section 21 of the General Clauses Act, 1897 by following the
same procedure that was followed in issuing the earlier order.
9. The learned Advocate General primarily relied on a
decision of R. Chitralekha vs. State of Mysore and others,
1964 SC 1823 for the proposition that though the order in
question there was defective in form it was open to the State
Government to prove by other means that such an order had
been validly made and that the provisions of Article 166 of the
Constitution of India are only directory and not mandatory in
character and, if they are not complied with, it can be
established as a question of fact that the impugned order was
issued in fact by the State Government or the Governor.
Therefore, the learned Advocate General submitted if it
can be established that the subsequent order withdrawing
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the earlier order was issued by substantially following the
procedure followed earlier, the subsequent order would be
sustainable. It was further submitted that the earlier order
postponing the elections in this case was issued by the State
Government by order and in the name of the Governor after
considering the letter of the Director of Marketing and after
referring to various circumstances.
10. This decision was expressed by an order made in the
name of the Governor of Maharashtra. According to the
learned Advocate General, since the subsequent order dated
6-1-2010 has also been issued by the State Government though
with reference to a letter of the District Deputy Registrar dated
22-12-2009, the subsequent order must be taken to have been
issued in like manner, particularly since there is no statute
which regulates the procedure for issuing such order. The
submission in short is that since both orders are based on some
report of an officer and are based on decisions taken by the
State Government the subsequent order must be taken to have
been issued in like manner.
11. Since the main contention of the respondent-State is that
on the basis of the Judgment of the Hon’ble Supreme Court
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cited (Supra) that it is permissible for the State to establish as a
question of fact that the impugned order was issued in fact by
the State Government or the Governor, it is necessary to
examine whether the procedure adopted by the State while
issuing the earlier order was complied with while withdrawing
the order subsequently, particularly since there is no statute
which regulates the procedure. At the outset, is may be
observed that it is not sufficient for the State Government to
point out that the subsequent order was also issued by the
State Government and therefore, Section 21 is complied with.
Section 21 of the General Clauses Act, 1897 requires the
subsequent order to be issued in like manner. The term in “like
manner” clearly connotes a similarity in the manner in which
the order is issued, not merely a formal similarity in the
statement that it is issued in the name of the Governor.
12. Section 21 of the Bombay General Clauses, 1897
imposes an important administrative safe-guard. In fact, it
ensures that an order made in the name of Governor of the
State after having gone through and vetted by high Officers
does not suffer a withdrawal or a negation through some other
channel, by-passing those officers who were instrumental in
the issuance of the initial order and thereby by-passing
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the reasons for issuing the first order. It may not be possible to
insist that every officer in the chain be the same when the
subsequent order is issued, but at least the officers who gave
the main inputs to the Government and on the basis of whose
opinion the first order was issued must be the same. It is,
therefore, necessary to see whether the sound principle of
administration enacted by Section 21 of the General Clauses
Act, 1897 has been followed in the present case.
13.
On a plain reading of two orders i.e. earlier order
postponing the election and subsequent order withdrawing the
earlier order, Section 21 of the General Clauses Act, 1897 has
not been complied with. The earlier order postponing the
election was passed on the specific recommendations of the
Director of Marketing, who is the Head of Department under the
Maharashtra Agricultural Produce Marketing (Regulation) Act,
1963 and is also the Commissioner of Co-operation under the
Co-operative Societies Act. That Officer had cited the following
reasons for postponing the elections namely; that the elections
of the Seva Sahakari Societies, which forms the collegium
which elect Directors to the A.P.M.C., had not been held and
that this Court had ordered that those elections be held before
the A.P.M.C. elections. The Director had also stated that
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purchase and sale of cotton and soyabean had started and
elections would disrupt the purchase and sale of those
commodities. The purchase and sale of these commodities are
vital to the needs of the community. It is on the basis of the
report of the Director of Marketing that the Government came
to the decision that the elections to the Marketing Committee
should be postponed. Now while withdrawing this decision, it
appears that the channel from which the original inputs were
obtained by the Government for taking the decision, is
completely ignored. The subsequent order merely makes a
reference to the impugned earlier order dated 23-12-2009
postponing the elections and then in a cursory and terse
manner states that the earlier order postponing the elections of
the A.P.M.C., Ralegaon is hereby cancelled. There is no
reference whatsoever to the opinion of the Director of
Marketing which was taken in the first instance for postponing
the elections, but there is a reference to some letter written by
a District Deputy Registrar of Yavatmal without even referring
to its contents. The substance of the procedure followed earlier
has not been followed; the form in which the earlier order was
expressed has not been followed. As stated earlier, the
subsequent order has not been issued by order and in the
name of Governor. We are, therefore, of the opinion that the
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term in ‘like manner’ which refers to both form and substance
has not been complied with while issuing the impugned order.
14. Smt. Dangre, the learned Additional Government Pleader
for the respondent who supplemented the submission on behalf
of learned Advocate General relied on the judgment of the
Hon’ble Supreme Court in Ram Bali Rajbhar vs. The State of
West Bengal and others, (1975) 4 SCC 47. In that case,
their Lordships held that an order by the State Government to
revoke or modify a detention order would be sustainable if it
was done in a similar and not identical manner and there was
nothing illegal if the State Government referred a second
representation to the Advisory Board under Section 14 of the
Maintenance of Internal Security Act in conditions analogous to
those in which the reference could be made under Section 10 of
the Act. Their Lordship observed “in other words, the
subsequent reference would result from a necessarily implied
power of the Government, to act, so far as possible, in a like
manner to the one it has to adopt in confirming or revoking the
initial detention order under Section 12 of the Act.”
The facts of that case as well as scheme of the law under
which it was decided are not similar to the present case. Even
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otherwise we have come to the conclusion that the
Government has not acted as far as possible in a like manner
adopted while making the first order. The respondents have
not demonstrated that it was not possible to follow
substantially the same procedure that was followed when
making the initial order, and who asked the Government to
cancel the earlier order. Strangely the letter of the District
Deputy Registrar of Co-operative Societies dated 22-12-2009
referred to in the subsequent order is not even addressed to
the Government but is a letter written by the District Deputy
Registrar to the Director of Marketing stating that it might be
appropriate to appoint an Administrator for the petitioner-APMC
and soliciting the opinion of the Director of Marketing.
Significantly, for reasons best known to it, the Government did
not wait for the opinion of the Director of Marketing and acted
on the letter written by the District Deputy Registrar to the
Director of Marketing, though only a copy of the letter was
endorsed to it.
15. It was contended by Shri Ghare, the learned Advocate for
the intervenor that the impugned order to supercede the
petitioner-APMC has been passed under Section 15-A of the
Maharashtra Agricultural Produce Marketing (Regulation) Act,
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1963. According to the learned Advocate, the term of the
Committee of the A.P.M.C. was not extended at any point of
time under Section 14(3) of the Maharashtra Agricultural
Produce Marketing (Regulation) Act, 1963. Since the term of the
Committee had admittedly expired on 25-12-2009, the power
to supercede this Committee and appoint an Administrator
could have been exercised independently of the issue of
postponing of the elections. Therefore, merely because the
order withdrawing the postponement of election is liable to be
set aside, the order appointing an Administrator does not
become vulnerable.
16. We see no merit in this argument since the question is
not whether the power to appoint an Administrator can be
exercised independently of the order to postpone the elections
or cancel such postponement, the question is whether in fact
this power has been exercised independently. We find that the
impugned order withdrawing the order postponing the elections
itself gives a direction to the District Deputy Registrar to take
action for appointing an Administrator since the Government
has decided to withdraw the order postponing the elections. In
quiet obedience, the District Deputy Registrar has referred to
the order directing him to appoint an Administrator and
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complied with it. We thus find that the District Deputy
Registrar has acted under dictation in regard to powers which
he is supposed to exercise independently. We are thus of the
opinion that the impugned order directing an Administrator is
vitiated and liable to be set aside on this ground also, vide
Purtabpur Co. vs. Cane Commissioner, AIR 1970 SC 1896.
17. We accordingly set aside the impugned order dated
6-1-2010 passed by the respondent No.1 and subsequent
impugned order dated 8-1-2010 passed by the respondent
No.2. We make it clear that the authorities are free to take
such actions, as may be advised in accordance with law, in
regard to holding of elections. Petition allowed with costs. Rule
made absolute in above terms.
Steno copy of this order be furnished to the parties, as
per rules.
JUDGE JUDGE
adgokar
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