JUDGMENT
C.K. Thakker, C.J.
1. Rule. Mr. R.M. Patne, Assistant Government
Pleader, appears and waives service of notice of
rule on behalf of respondent Nos. 1 to 3. In the
acts and circumstances, the matter was taken up
for final hearing with the consent of parties.
2. This Writ Petition is filed by the
petitioners for an appropriate writ, direction or
order quashing and setting aside an order dated
January 22, 2003 passed by the District Deputy
Registrar, Co-operative Societies, Nashik,
respondent No. 2 herein, under Section 44 of the
Maharashtra Agricultural Produce Marketing
(Regulation) Act, 1963 (hereinafter referred to as
“the Act”), and the Maharashtra Agricultural
Produce Marketing (Regulation) Rules, 1967
(hereinafter referred to as “the Rules”).
3. The case of the petitioners in the petition
is that petitioner No. 1, Kalwan Agricultural
Produce Market Committee, is an Agricultural
Produce Market Committee constituted in accordance
with the provisions of the Act. Petitioner Nos. 2
to 16 are elected members of petitioner No. 1
Committee. Respondent No. 1 is the State of
Maharashtra. Respondent No. 2 is the District Deputy
Registrar to whom the powers have been delegated
by the State Government in respect of amalgamation
or division of Market Committees. Respondent No. 3
is the Director of Marketing, Pune, an authority
having supervisory control over Register of Co-
operative Societies. Respondent No. 4 is the State
Agricultural Marketing Board constituted under
Section 39-A of the Act.
4. According to the petitioners, petition No. 1
Committee was established in 1971 and was having a
market area of 179 villages in the territorial
limits of Kalwan Taluka in Nashik District. The
Managing Committee of petitioner No. 1 was
constituted in accordance with provisions of
Section 13 of the Act. On or about June 23, 1999, a
notification was issued under the Maharashtra Land
Revenue code, 1966 by which certain villages were
carved out from Kalwan Taluka and another Taluka
named Deola Taluka came to be established. Our of
179 villages which were with petitioner No. 1, 29
villages were included in Deola Taluka and
remaining 150 villages continued to remain in
market area of petitioner No. 1.
5. According to the petitioners, with a view to
achieving political goal, a proposal for division
of petitioner No. 1 Committee into two Committees
started in the year 1999 in purported exercise of
power under Section 44 of the Act and a decision
was taken to divide petitioner No. 1 Committee into
two Committees. The proposal and the decision were
strongly objected by petitioner No. 1 as well as by
the villagers which compelled the State Government
to revoke the decision. Thereafter, there was no
proposal by the respondents to make division of
petitioner No. 1 Committee into two Committees.
5. There was a fresh election of Managing
Committee in 2001 and petitioner Nos. 2 to 16 were
duly elected as members of Managing Committee. The
tenure of the Managing Committee is five years. It
is alleged by the petitioners that since persons of
their choice were not elected, respondents again
started initiating action of division of
petitioner No. 1 Committee into two separate Market
Committees. When the petitioners came to know
about such move, they objected. In spite of such
objection and without consulting the petitioner
Committee, or the State Marketing Board and without
affording opportunity of making representation
against such action, a decision was taken by
respondent No. 2 under Section 44 of the Act, by
which petitioner No. 1 Market Committee was divided
into two Market Committees, (i) Kalwan Agricultural
Produce Market Committee: and (ii) Deola
Agricultural Produce Market Committee. The said
action is illegal, contrary to law, not in
consonance with the provisions of the Act and
inconsistent with several decisions of the Supreme
Court as well as of this Court. The petitioners,
therefore, have approached this Court by filing the
present petition under Articles 226 and 227 of the
Constitution of India.
6. On February 11, 2003, a mention was made to
this Court to take up the matter as the petitioners
wanted ad-interim relief. The matter was taken up.
Notice was issued to the respondents and ad-interim
relief in terms of prayer Clause (b) was granted.
In prayer Clause (b), the petitioners prayed stay
of execution, operation and implementation of the
ordered dated January 22, 2003, passed by respondent
No. 2 in exercise of power under Section 44 of the
Act.
7. The respondents were then served with the
notices. Affidavits and counter-affidavits were
filed. Civil Application for joining parties as
well as for vacating interim relief were also filed
and appropriate orders were passed thereon. As
already stated, with the consent of parties, we had
taken the matter for final hearing.
8. In the affidavit in reply filed by the
Chairman, Deola Agricultural Produce Market
Committee, it was stated that action was taken by
the second respondent in exercise of power under
Section 44 of the Act and the petitioners have no
right to make grievance against such action. It was
also stated that the process of bifurcation and
division of Kalwan Agricultural Produce Market
Committee was not a development of “over night”. It
had started in 1999 when a separate Taluka, viz.
Deola Taluka, came to be established. The
Marketing Board vide its letter dated July 3,
1999, informed the Director of Marketing that in
the 61st meeting of the Directors of Agricultural
Marketing Board held on 30th June, 1999, the issue
was discussed that Kalwan Agricultural Produce
Market Committee should be bifurcated into two
Committees, and the said action would be
financially viable. The Marketing Board had
approved it and gave its consent for such
bifurcation. A copy of the letter is annexed to the
affidavit. The deponent further stated that the
second respondent sent a report/proposal dated
August 1, 2002 to the Government of Maharashtra for
such division. The Director of Agricultural
Marketing vide his letter dated August 12, 2002,
informed the General Manager of Maharashtra State
Agricultural Marketing Board that the second
respondent had sent a proposal on August 1, 2002,
regarding division of Agricultural Produce Market
Committee at Kalwan and Deola. The second
respondent vide his letter dated August 29, 2002,
submitted his report to the Government in favour of
division. The Maharashtra State Marketing
Federation vide its letter dated September 7, 2002,
informed respondent No. 2 that a meeting of Board of
Directors of Marketing Federation was held on 22nd
August, 2002 in which the proposal was discussed
and a recommendation was made for such division.
It was denied by the deponent that there was no
proper consultation or the action was otherwise
arbitrary or illegal. Even petitioner No. 1 had
discussed the proposal for its division on January
24, 2002 and bifurcation was proposed. It was,
therefore, prayed that the petition deserves to be
dismissed.
9. A counter affidavit is also filed by
Assistant Registrar, Co-operative Societies, Nashik
on behalf of Respondent No. 2. It was stated in the
said affidavit that the procedure of bifurcation of
Agricultural Produce Market Committee, Kalwan into
two Committees; Kalan and Deola started in 1999.
At that time, however, the Government reviewed the
decision of bifurcation, and hence the process was
stopped. Regarding consultation with the Market
Committee and the State Marketing Board, it was
denied that there was no consultation. Respondent
No. 2 had forwarded Resolution No. 8 dated January
24, 2002, to the Government which showed effective
consultation with Market committee by respondent
No. 2. The proposal of bifurcation was sent through
respondent No. 3, Director of Marketing, Pune, to
respondent No. 4 i.e. State Marketing Board, who
conveyed its decision by a letter dated September
7, 2002. Thus, there was effective consultation
with the Marketing Board. Referring to the
phraseology used in Section 44 of the Act that “the
State Government ‘may’ after consulting the Market
Committees or Committee as the case may be and the
State Marketing Board”, it was submitted by the
deponent that the provision regarding consultation
was not “mandatory”. However, the facts revealed
that there was such consultation. It was,
therefore, submitted that the action taken by the
authorities was in accordance with law and the
respondents had no right to challenge it. The
petition, therefore, deserve to be dismissed.
10. In a further affidavit, petitioner No. 2
reiterated what was stated in the petition. It was
also stated that after the election of new Managing
Committee on December 21, 2001, first meeting for
electing Chairman and Vice-Chairman was held on
January 10, 2002. On January 17, 2002, an agenda
of meeting scheduled to be held on January 24,
2002, was issued. There were in all seven subjects
on the agenda. The subject regarding proposed action
of division of Agricultural Produce Market
Committee was no included. At the time of meeting.
however, a reference was casually made by some of
the members and the matter was discussed. There was
no resolution approving the proposed action. One
Mr. Popat had opposed the proposal of division of
Agricultural Produce Market Committee. The State
Government called a report vide its letter dated
July 11, 2002 about the feasibility of division of
Agricultural Produce Market Committee. The said
letter was also referred to in the report dated
August 1, 2002 submitted by respondent No. 2 to the
State Government. On the basis of the said report,
the Director of Marketing wrote a letter on August
12, 2002 to respondent No. 4 for its opinion as to
whether such division would be economically
feasible. On August 29, 2002, respondent No. 2
prepared a report regarding economic feasibility of
the division. Surprisingly, however, by a letter
dated September 7, 2002, a Resolution approving the
proposed action was taken. Thus, there was nothing
to show that petitioner No. 1 Committee or the
State Marketing Board was ever consulted. The
action was, therefore, illegal and contrary to law.
11. We have heard the learned counsel for the
parties. Mr. P.N. Joshi, the learned counsel for
the petitioners contended that the action is
illegal, unlawful and inconsistent with the
provisions of Section 44 of the Act and deserves
to be quashed. He submitted that it is settled law
that before bifurcation or division of an
Agricultural Produce Market Committee, the State
Government is bound to consult the Market
Committee or Committees and also the State
Marketing Board, which has not been done in the
instant case. The counsel urged that there was non-application
of mind on the part of the State in not
giving due importance to the condition precedent
that such an action would be required for “securing
efficient regulation of marketing of agricultural
produce in the marketing area”. In absence of such
satisfaction, proceedings could not have been
initiated under Section 44 of the Act. The action
is also mala fide and has been taken in
colourable exercise of power, since some of the
persons who were elected as members of the Managing
Committee were not liked by the respondents. The
action would adversely affect petitioner Nos. 2 to
16, as they had been elected as members of the
Managing Committee only in December, 2001 and the
tenure of such office is five years. The impugned
action curtail that statutory period which could
not have been done. On all these grounds, it was
submitted that the impugned decision deserves to
be quashed and set aside.
12. Mr. C.J. Sawant, Senior Advocate, appearing on
behalf of the intervenors supported the action
taken by the respondents. It was submitted that
there was consultation with petitioner No. 1
Committee as well as with the State Marketing
Board. It was at the instance of petitioner No. 1
Committee which had passed a Resolution favouring
and recommending division of Kalwan Agricultural
Produce Market Committee into two Committees,
Kalwan and Deola, that the proceedings were
initiated. The Marketing Board was also of the same
opinion and on the basis of such decisions, the
action was taken under Section 44 of the Act.
Neither petitioner No. 1 Committee nor petitioner
Nos. 2 to 16 have right to challenge legal and
valid exercise of power by the authorities. It was
submitted that it is well settled that consultation
does not mean concurrence or consent, and even if
it is assumed for the sake of argument that
petitioner No. 1 or petitioner Nos. 12 to 16 did not
agree to such division, statutory power under
Section 44 could be exercised by the authority,
provided conditions laid down therein were
fulfilled. According to the counsel, the action was
in exercise of statutory power which did not
deprive the petitioners of any benefit nor resulted
in civil consequences. It was, therefore, not
necessary to issue show cause notice, call for
explanation, afford opportunity of hearing or
observe principles of natural justice. An action of
supersession of a body stands on a totally
different footing and considerations relevant to
supersession would not apply to amalgamation or
division of Committee. It was also submitted that
even in past, there was such proposal for division
of Marketing Committee. Hence, the action can never
be termed as mala fide or colourable exercise of
power. It was, therefore, submitted that the
decision does not deserve to be interfered with by
this Court in exercise of extraordinary
jurisdiction under Article 226 of the Constitution.
13. Mr. Patne, learned Assistant Government
Pleader, supported the stand taken by Mr. Sawant.
He submitted that even in past such exercise was
undertaken but petitioner No. 1 Committee approached
this Court. This Court entertained the petition
and granted interim relief. Thereafter, once again
the process was undertaken and in bona fide
exercise of power and after consulting the Market
Committee and the State Marketing Board, the
present action has been taken, which is legal and
valid.
14. Having heard the learned Counsel for the
parties, in our opinion, on a short ground of non-compliance
with the conditions laid down in Section
44 of the Act, the petition deserves to be
allowed.
15. Section 44 of the Act provides for
amalgamation or division of Market Committees and
it reads as under:
Amalgamation or division of Market
Committees.–(1) Where the State
Government is satisfied that for securing
efficient regulation of marketing of any
agricultural produce in any market area,
it is necessary that two or more Market
Committees therein should be amalgamated
or any Market Committee therein should be
divided into two or more Market
Committees, then the State government
may, after consulting the Market
Committees or Committee, as the case may
be, and the State Marketing Board by
notification in the Official Gazette,
provide for the amalgamation or division
of such Market Committees into a single
Market Committee or into two or more
Market Committees, for the market area in
respect of the agricultural produce
specified in the notifications with such
constitution, property, rights, interests
and authorities and such liabilities,
duties and obligations (including
provision in respect of contracts,
assets, employees, proceedings, and such
incidental, consequential and
supplementary matters as may be necessary
to give effect to such amalgamation or as
the case may be, the division) as may be
specified in the notification.”
(2) Where more Market Committees than
one are established in any market area
under Sub-section (1), the State
Government may, notwithstanding anything
contained in this Act, issue general or
special directions as to which of the
Market Committees shall exercise the
powers, perform the duties and discharge
the functions of the Market Committee
under this Act, in which they are
jointly interested or which are of a
common nature.
(3) Where any direction are issued
under Sub-section (2), the cost incurred
by a Market Committee in pursuance of the
directions shall be shared by the other
Market Committees concerned in such
proportion as may be agreed upon, or, in
default of agreement, as may be
determined by the State Government or
such officer as that Government may
direct in this behalf. The decision of
the State Government of such officer
shall be final.”
Now, it cannot be gainsaid that whenever an Act
provides for consultation with the bodies likely to
be affected, such consultation is mandatory and not
directory. Moreover, such consultation must be
real, effective and meaningful (vide
Chandramouleshwar Prasad v. High Court of Patna,
; Union of India v. Sankalchand
Himatlal Sheth, ; S. Kewal Ram v.
District Registrar of Co-operative Societies,
(1986) 2 SCALE 398; Agricultural Produce Market
Committee, Dharni and Ors. v. District Deputy
Registrar, Co-operative Societies, Amravati, 1986
Mah LJ 374; Shalikram Shivram Khabragade and Ors. v.
Divisional Joint Registrar, Co-operative Society,
Nagpur and Ors., ; and Vithal
Sampatrao Fartade v. State of Maharashtra and Ors.
W.P. 2864 of 2001 decided on January 29, 2003). It,
therefore, cannot successfully be contended that
consultation is directory, enabling or permissive.
Section 44, no doubt, uses the expression “may”,
but considering the ambit and scope of the
provision and keeping in mind the fact that such
power can only be exercised to achieve the object
et out in the said section, it must be held that
no action can be taken by the State
Government before consulting the Market Committee
or the State Marketing Board.
16. Moreover, the point is concluded by more than
one decision of this Court. It may be profitable to
refer to a recent decision in Appasaheb Sheshrao
Chavan and Ors. v. State of Maharashtra and Ors.,
. In Appasaheb Sheshrao,
several petitions were filed against the decision
of bifurcation of Committees. The Court was called
upon to consider whether the provision relating to
consultation was mandatory? Considering the
relevant provisions of law, this Court held that
consultation with the bodies referred to in the Act
was mandatory, and final decision can be taken only
after such consultation. A decision taken without
consulting such bodies could not be said to be a
decision in the eye of law and must be declared
void and non-est. Though, some of the petitions
were dismissed, other petitions were allowed by the
Division Bench holding that there was no
consultation with the Committee on the proposal of
bifurcation or division of Committees. For
instance, in Writ Petition Nos. 4436 of 1998 and
4912 of 1998, the Court held that bifurcation of
Pathri Committee into two separate Market
Committees viz. Pathri and Hadgaon had been done
without consultation. No doubt, it was stated that
a Resolution was passed in the meeting dated 17th
June, 1998 regarding bifurcation of Committees, but
it was not a subject in the agenda of the meeting
and the question was not discussed. The Court also
noted that it was contended by the petitioners that
the power to be exercised under Section 44 of the
Act must precede by the procedure calling for
objections, if any, from all those likely to be
affected. As it was not done, the action was
illegal and contrary to law. Similarly, in Writ
Petition No. 5003 of 1998, Jalna Market Committee
was bifurcated into two market Committees, Jalna
Market Committees and Badnapur Market Committee. The
Director of Market Committee informed the
Government about bifurcation of the said Committee
on February 17, 1995. The communication was
considered in a meeting dated April 28, 1995 by the
Market Committee and the proposal was opposed. The
Chairman of the Committee expressed the opinion in
favour of bifurcation. It was held that such
action could not be said to be in consonance with
law. Hence, the order was set aside. The Court
also observed that the consultation must be real,
effective and meaningful and in the absence of such
consultation, the action cannot be said to be in
accordance with law.
17. In the instance case also, reliance was sought
to be placed on a Resolution dated January 24, 2002
(Exhibit-C). An English translation is supplied by
the learned Counsel for the petitioners. In the
said Resolution, it was stated that a general
meeting of petitioner No. 1 Committee was held on
that day, i.e. on January 24, 2002 and Resolution
No. 8 was passed. It is clear from the agenda of the
meeting that bifurcation of Committee was not one
of the subjects to be discussed nor was it
incorporated in the agenda which was prepared on
January 17, 2002. The subject was taken as an
additional subject with the permission of the chair
on the date of the meeting. From Resolution No. 8
also, it is clear that no decision regarding
bifurcation or division of Kalwan Agricultural
Produce Market Committee into two Committees viz.
Kalwan and Deola was taken and the action was
approved but the matter was discussed and
unanimously a note was taken regarding such
discussion.
18. The relevant sentence reads as under:
ojhy izek.ks ppkZ dj.ksu vkyh- ckcu uksn /ks.;ku
;koh vls lokZuers Bjys-
The English translation as supplied reads thus:
“The discussion took place as above. It
was unanimously agreed to take note of
this matter.”
It further appears that though at the end it was
stated that the Resolution was passed unanimously,
from the body of the Resolution, it is clear that
the proposal was opposed by Popat Dhana Khairnar
Upasabhapati of the Samiti. Thus, it cannot be
said that on January 24, 2002, a decision was taken
by petitioner No. 1 Committee and a Resolution was
passed to bifurcate or divide petitioner No. 1
Committee into two Committees. It is, therefore,
not correct to say that a decision was taken
regarding bifurcation as has been submitted by the
respondents, that petitioner No. 1 Committee had
agreed and passed a Resolution for division of
Kalwan Committee into two Committees.
19. Even on interpretation of law, the action
cannot be said to be in accordance with law. In our
opinion, the learned counsel for the petitioner is
right in contending that petitioner No. 1 Committee
was required to be consulted on the proposal
regarding amalgamation or division of Market
Committee. It is only after such proposal is mooted
out that Market Committees or Committee, as the
case may be, and the State Marketing Board should
be consulted. As is clear from the record and even
admitted by the respondents that the proposal
started from August 1, 2002 by a communication of
respondent No. 2 to respondent No. 1-the State of
Maharashtra. Thereafter on August 12, 2002, the
Director of Agriculture, Marketing, on August 12,
2002, informed the General Manager of Maharashtra
State Agricultural Marketing Board as well as
respondent No. 2 regarding dividing or bifurcating
Agricultural Produce Market Committee, Kalwan, into
two Agricultural Produce Market Committees,
Kalwan and Deola. Hence, what was required by law
was the consultation of petitioner No. 1 Committee
as also State Marketing Board in connection with
the proposal dated August 1, 2002. Any action
taken prior to August 1, 2002, could not be said to
be in exercise of power under Section 44 of the
Act. Therefore, even if any Resolution was passed
earlier to such proposal, it could not be said to
be in accordance with the provisions of the Act. A
division or bifurcation of Committees required to
be made under Sub-section (1) of Section 44 as
regarding the proposal of bifurcation or division.
Since that proposal was moved on August 1, 2002,
the consultation would be only after August 1, 2002
and before the impugned order dated January 23,
2003. As no consultation had ever been made during
the said period, the contention of the learned
counsel for the petitioners must be upheld that
there was no consultation and the order deserves to
be set aside.
20. For the foregoing reasons, in our opinion,
the petition deserves to be allowed and is
accordingly allowed. The order dated January 22,
2003 passed by respondent No. 2 is hereby quashed
and set aside. Since we are upholding the
contention of the learned counsel for the
petitioners that there was no consultation with the
petitioner No. 1 Committee as envisaged by Sub-section
(1) of Section 44 of the Act and the action
deserves to be quashed and set aside on that
ground, we are not expressing any opinion on mala
fide or colourable exercise of power on the part
of the respondents, as contended by the
petitioners. The petition is accordingly allowed.
Rule is made absolute. In the facts and
circumstances, however, there shall be no order as
to costs.
Parties be given copies of this order duly
authenticated by the Sheristedar/Private Secretary.