JUDGMENT
S.S. Sandhawalia, C.J.
1. Whether Rule 88 of the Bihar Agricultural Produce Markets Rules, 1975, prescribing a quorum for the Assessment Sub-Committee, constituted under Section 27A(1) of the Bihar Agricultural Produce Markets Act, 1960, is ultra vires of the said section or of Section 52 of the said Act ? Whether the prescription of a quorum for any quasi-judicial body would suffer from an inherent vice of invalidity ? These are the twin significant questions necessitating this reference to the Full Bench. Equally at issue is the correctness of the view in the two Division Bench judgments rendered at the admission stage itself in Civil Writ Jurn. Case No. 285 of 1985 (Shree Murli Manohar Rice and Dal Mills v. State of Bihar disposed of on the 1st February, 1985), and Civil Writ Jurn. Case No. 983 of 1985 (R) (Ganesh Prasad v. State of Bihar disposed of on the 29th August, 1985).
2. The facts are not in dispute and otherwise lie in a narrow compass. Messrs Ram Autar Santosh Kumar, the petitioner Firm, carries on the business of tobacco commission agent in the main market yard Garhwa and is admittedly a licensee under the provisions of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter to be referred to as the Act). Respondent No. 4, the Secretary of the Market Committee, Garhwa, issued a notice in Form C, under the provisions of Section 27A(5) and (7), directing the petitioner firm to appear before the said respondent on the 26th of April, 1985, with all the relevant records and evidence regarding the assessment of market fees, in compliance therewith, the petitioner firm appeared before the Assessment Sub-Committee, which, by its order (Annexure-2), held the petitioner firm liable for the payment of Rs. 3831.69 paise as market fees over and above the amount already paid. Consequent thereto, a demand notice No. 379 dated the 10th of May, 1985 (Annexure-3), was then issued against the petitioner.
3. Aggrieved by the above, the present writ petition has been preferred to challenge the order of assessment primarily on the ground that the same was made only by two out of the three members of the Assessment Sub-Committee as envisaged by Section 27A(1) of the Act. At the admission stage itself, the Division Bench noticed the significance of the question, whether an order of assessment made by two members of the Assessment Sub-Committee under Section 27A(1) of the Act would be illegal or not ? Finding a conflict or precedent within the Court itself on the point, the Motion Bench referred the matter to a larger Bench for an authoritative adjudication thereon and that is how it is before us now.
4. The learned counsel for the petitioner assailed the very validity of Rule 88 on the ground that it was contrary to and ultra vires of Section 27A(1) and otherwise not within the ambit of Section 52 of the Act. In the alternative, it was contended that any quasi Judicial body must act in the totality of its members and the prescription for a quorum therefor is inherently unconstitutional.
5. Since the controversy here in regard to the First question must inevitably turn on the very provisions of the Statute, it is apt to notice the relevant parts thereof at the very outset in extenso : —
“Section 25 : quorum of meeting :– Seven members shall form the quorum for a meeting of the Market Committee.
Section 27A( 1) : Accounts of purchase and sale and assessment of market fee : Every Market Committee shall have an assessment sub-committee consisting of the Chairman, Vice-Chairman and the Secretary of the Market Committee for the purpose of assessment and levy of fee, in the manner prescribed.
Section 52 : Power to make rules. (1) The State Government may make rules not inconsistent with this Act, for carrying out the purpose of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, the State Government may make rules with respect to all or any of the following matters : — ……….
(vii) the management, control and regulation of a Market and the fees which may be levied by the Market Committee, and subject to the provisions of this Act, the recovery and disposal of such fees;………
(xxxvii) any other matter for which there is no provision in this Act and for which provision is, in the opinion of the State Government, necessary for giving effect to the purposes of this Act.
Rule 88 : Assessment of market fee : Assessment Sub-Committee constituted under Sub-section (1) of Section 27A shall have a quorum of (wo members. Provided that the Sub-Committee consisting of two members may in its discretion refer the case to a bench consisting of all the members of the Sub-Committee.
(ii) When an assessment is made by all the three members of the Sub-Committee and the members are of divided opinion on any point, such point or points shall be decided in accordance with the opinion of the majority, provided that the assessment is made by a bench consisting of only two persons, such point or points shall be referred to the third person and shall be decided in accordance with the opinion of the majority.”
6. Now to truly appreciate the rival contentions, it seems not only apt but indeed necessary to notice the legislative background albeit with some brevity. Agricultural Produce Market Act was enacted way back in the year 1960. It would appear that as originally enacted the power to levy and assess the market fee was vested in the Committee itself by Section 27 which was in somewhat general term as under : —
“Section 27 : Power to levy fees : — (1) The Market Committee shall levy and collect market fees on the agricultural produce brought in the market area, at such rate not exceeding 30 naye paise per Rs. 100/- worth of agricultural produce, as may be prescribed.
(2) The fee realised from the buyer under Sub-section (1) shall be recoverable by the buyer from seller as a market charge.”
7. Apparently the assessment of fees by the Market Committee itself without prescribing in detail the procedure therefor, raised problems and proved somewhat unpracticable and unsatisfactory. To remedy the said situation, Ordinance 41 of 1974 was promulgated, whereby the old Section 27 was substituted and a detailed Section 27A headed as the ‘accounts of purchase and sale and assessment of market fee’ and consisting of eleven sub-sections was inserted in the Act. By virtue of Sub-section (1) thereof it was mandated that every market Committee shall have an Assessment Sub-Committee consisting of the Chairman, Vice-Chairman and the Secretary of the Market Committee for the purpose of the assessment and levy of market fees in the manner prescribed. It is significant that soon thereafter, the Bihar Agricultural Produce Markets Rules, 1962, were repealed and the present Bihar Agricultural Produce Market Rules, 1975, were promulgated and substituted in its place. Part VII of the said Rules pertains to assessment, appeal, revision etc. and the very first Rule 88 therein provided in terms for a quorum of two members for the Assessment Sub-Committee constituted under Section 27A(1) of the Act. Not only that, it further provided for the procedure in case of any difference of opinion amongst its members. It may be noticed that the original Ordinance 41 of 1974 was continued by successive Ordinances till its provisions were permanently incorporated in the Statute by the Amending Act 60 of 1982.
8. Now elaborating his first contention. Mr. Dey, learned counsel for the petitioner, had submitted that Section 27A has not in express, terms either provided or mentioned for the prescription of quorum for the Assessment Sub-Committee constituted under Sub-section (1) thereof. Reliance was placed on Section 23 of the Act which itself provides for a Quorum of seven members for the meetings of the Market Committee itself. Reference was then made to Section 52 and in particular to Sub-section (1) thereof and items (i) to (xxvii) of the same for contending that neither of these in terms spelt out the framing of rules for the fixing of any Quorum. On these premises, it was contended that Rule 88 ran counter to Section 27A and being otherwise not within the scope of Section 52, it was ultra vires of the Act and should be struck down.
9. Though the aforesaid contention might bring some credit to the ingenuity of the learned counsel, it seems to me that it is patently fallacious on a closer analysis. Herein what would first meet the eye is the fact that Section 27A(1) on which basic reliance is placed on behalf of the petitioner, itself in terms lays down that the assessment and levy of fees has to be done “in the manner prescribed”. Reference in this context may be made to the defining Section 2 and Clause (n) thereof which is in the following terms : —
“Section 2(n) : “prescribed” means prescribed by rule”, In view of the above, it seems manifest that Section 27A(1) itself spells out the prescription of a rule for effectuating its provisions. Therefore, in a way the said subsection is itself an authority and mandate for the framing of the necessary rules for its implementation. That being so, Rule 88 which is framed after express reference to Section 27 A has to be read along with the said sub-section. Indeed, by virtue of the settled rule in Baburam Upadhyay’s case, (AIR 1961 SC 751), that statutory, rules framed under the powers conferred by an Act become part and parcel of the Act, the said rule is in a way an integral part of Section 27A(1) itself. When so viewed, Section 27A(1) and Rule 88 are merely parts of a single whole and no question of any conflict or repugnance therein arises.
10. Reliance of learned counsel for the petitioner on Section 25 of the Act far from aiding him, to my mind, boomerangs on his stand. The provision thereof would indicate that the prescription of quorum is not only visualised but has expressly been provided in the Act itself. This has to be viewed in the context of the fact that prior to the amendment in 1974, the power to levy and assess market fee was vested in the Market Committee itself. That being so, by virtue of Section 25, a quorum for the statutory body competent to levy and assess market fee was itself spelt out by virtue of Section 25. What the subsequent ordinance by insertion of Section 27A(1) and the promulgation of Rule 88 does is the substitution of an Assessment sub-Committee for levy and assessment of market fees and prescription of quorum therefor. The scheme is, thus, wholly consistent and in consonance with what the law even earlier was. Now what may be prescribed by an Act itself may equally be added or supplemented by the rule if they come within the ambit of the arena spelt out for the prescription thereof, I find not the least conflict or contradiction in prescription of a quorum by a statutory rule framed under the Act. Indeed far from being so, it is normally the usual procedure that the details like prescription of quorum etc. are usually left to subordinate legislation by way of statutory rules, bye-laws, regulations, or even by the resolution of a competent body. Indeed such a provision is plainly in the nature of being supplementary or complementary. To contend that the prescription of a quorum for a statutory body is in any way inherently contradictory to a provision constituting the same, appears to me as totally untenable.
11. Learned counsel for the respondent has also rightly pointed out that on settled canons of construction, even if the Act is silent on a point and there is a gap, the same can obviously be filled in by statutory rules to carry out its primal purposes. In order to vitiate a rule framed under an Act, it must be shown that it is in a direct headlong and glaring conflict with the parent provision. There is a presumption of constitutionality and if the statutory rule and the Act can be harmonised effect must be given to both. Herein, I find not the remotest conflict or contradiction betwixt the Act and Rule 88 and there appears to be no ground whatsoever for quashing or striking it down on that score.
12. Learned counsel for the petitioner’s ancillary contention that Section 52 does not warrant the framing of Rule 88 again is patently untenable. Reference herein must first be made to Sub-section (1) which authorises the State Government to make rules for carrying out the purposes of the Act. I have already in terms held that the aforesaid rule is in no way inconsistent with any provision of the Act itself. That being so, the general power of framing rules for effectuating the purposes of the Act, would plainly authorise and sanctify the framing of such a rule. Indeed as has already been pointed out, Section 27A(1) when it employs language ”in the manner prescribed” in effect mandates the framing of a rule in this context. Rule 88, therefore is both within the mandate of said provision and the generality of power conferred by Sub-section (1) of Section 52.
13. It is true that Sub-section (2)of Section 52 and the thirty-seven clauses thereof do not expressly use or employ the word “quorum”. But neither principle nor precedent warrants the stand that the specific word or language must necessarily be employed for laying out the larger perimeter within which rules are to be framed for carrying out the purposes of the Act. It is to be kept in mind that Sub-section (2) of Section 52 in terms lays down that the same is without prejudice to the generality of the powers conferred under Sub-section (1). Yet again, Clause (xxxvii) of Sub-section (2) of Section 52 authorises expressly the framing of rule on any other matter for which there is no provision in the Act and which in the opinion of the State Government requires to be provided for giving effect to the purposes of the Act. Learned counsel for the respondents had, therefore, rightly contended that if necessary the rule comes squarely within Clause (xxxvii) of Section 52(2) as well.
14. Though the matter appears to be clear on principle it seems to be equally covered by an authoritative precedent. Before the Full Bench in Dhirendra Kumar Akela v. Bihar State Agricultural Marketing Board, 1985 BBCJ 40 : (1985 Lab IC 315), a similar contention was raised that Rule 64(ii)(c) was ultra vires the provision of Section 52. Repelling such a contention after an exhaustive discussion, the Full Bench had concluded as follows : —
“Against this larger vista can it possibly be said that a rule expressly conferring the power of transfer of the employees of the Market Committees by the Board would go beyond the avowed purpose of the Act investing superintendence, control and discipline of the Market Committees in the hands of the Board? To my mind the answer is plain that such a power would squarely be within the parameters of the larger purposes of the parent Act. Therefore, in the alternative, Rule 64(ii)(c) would be equally within the framework of the generality of the power conferred by Section 52(1) for the framing of the rules.”
15. To conclude on this aspect, the answer to the first part of the question posed at the outset is rendered in the negative. It is held that Rule 88 of the Rules prescribing a quorum for the Assessment Sub-Committee under Section 27A is perfetly intra vires of the Act.
16. The stage is now set for considering the larger question whether the prescribing of a quorum for any quasi-judicial body suffers from an inherent vice of invalidity. Herein, the inspiration for this submission stems from a passing observation in M/s. Ganesh Prasad’s case (supra). It has been said therein as a dictum that if a quasi-judicial or judicial body has been constituted then the entire body must function and a person is entitled to the consideration of his case by all the individuals constituting the judicial or quasi-judicial body. Undoubtedly this view lends considerable weight to the stand taken on behalf of the petitioner, which has been equally, stoutly and frontally assailed on behalf of the respondents. It is significant that neither principle nor precedent has been cited in support of what was thought to be axiomatic. On a closer and a sharper analysis which follows, it would be manifest that any such sweeping statement of the law is untenable.
17. Perhaps, at the very outset, one may pinpoint that in a Full Bench we are not inclined to stray into academic questions but must confine ourselves to what directly falls for adjudication herein. Reference to Section 27A and the detailed provisions of its eleven sub-sections would indicate that the Assessment Sub-Committee constituted thereby has been conferred with both quasi-judicial and administrative functions. There is, however, no manner of doubt that having been conferred the power of the assessment of market fees, it necessarily discharges quasi-judicial functions also in this regard. What, however, has to be highlighted is that the Assessment Sub-Committee is not a Court or judicial body stricto sensu. We are, therefore, not called upon even remotely to the legal position with regard to Courts of law or pristinely judicial bodies. The consideration, herein is thus pointedly confined to statutory bodies performing quasi-judicial functions as well.
18. Learned counsel for the petitioner taking his clue from M/s. Ganesh Prasad’s case (supra), took up the stand that the very provision of a quarum for any quasi-judicial body was inherently illegal and, therefore, providing that two members of the Assessment Sub-Committee can function as such was on the face of it invalid. According to him, any such assessment made by two out of the three members would be per se illegal. Somewhat conjecturally it was submitted that the third member, if he had participated, might well have taken a contrary view or even converted the other two to his own.
19. The submission aforesaid has to be viewed against a somewhat larger canvas. Undoubtedly, there are various statutory provisions, which, in terms, provide for or allow the prescription of a quorum for quasi-judicial bodies and indeed even for judicial ones. Reference in this connection may first be made to Sections 5(4) and 6(3) of the Industrial Disputes Act, 1947. Again, Section 44(2) of the Motor Vehicles Act, 1939, is equally prescriptive of a quorum. The recently enacted, Administrative Tribunals Act, 1985, provides in Section 5(5) thereof that if one of the persons constituting a Bench of the Tribunal is unable to discharge his functions owing to absence, illness or any other cause, the remaining two persons may function as a Bench. Another similar provision is Section 13(1) of the Sikh Gurudwaras Act, 1925. The said Act provides for a tribunal, which is almost judicial in character and is composed of 3 members and is presided over by a sitting or retired High Court Judge. Nevertheless, Section 13 thereof is in the following terms :–
“13(1) No proceeding shall be taken by a tribunal unless at least two members are present, provided that notices and summonses may be issued by the president or a member nominated by the President for this purpose.
(2) In case of a difference of opinion between the members of a tribunal, the opinion of the majority shall prevail;
Provided that if only two members are present of whom one is the President and if they are not in agreement, the opinion of the President shall prevail, and, if the President be not present, and the two remaining members are not agreed, the question in dispute shall be kept pending until the next meeting of the tribunal at which the President is present; the opinion of the majority, or of the President when only two members are present, shall be deemed to be the opinion of the tribunal.”
It would be manifest from the above that there is no dearth of statutory provisions wherein by express mandate, a quorum is provided not only for quasi-judicial bodies but even for tribunals whose functions appear to be primarily judicial. Learned counsel for the petitioner was unable to cite any authority invalidating the prescription of a quorum in such like forums.
20. In this context one may perhaps equally highlight the anomalous result which must flow herein from holding that each and every member of the Assessment Subcommittee must always attend throughout each and every proceeding of an assessment. Would it be necessary that all the three members must sit together like a regular Full Bench of a Court of Law to hear and decide every case of the assessment of Market fee ? Would it be even possible or practicable to do so ? If one of the members of the Assessment Sub-Committee was taken ill or, otherwise becomes unable to attend for some time the whole proceedings in all the existing cases be stalled and the other members of the Committee debarred from functioning or deciding the cases by themselves. If such were to be the situation, each member can stall the function of the Assessment Sub-Committee to thestateof total paralysis. The Assessment Sub-Committee would be eventually rendered nugatory during the period of absence of any of its members. Identical situation would arise in the case of illness, or failure to attend even one of the many meetings for one or the other reasons for each one of its members. An interpretation which would lead to such anomalous, if not mischievous, results has, therefore, to be avoided even on the larger canons of construction.
21. Learned Counsel for the petitioner has contended that if the Vice-Chairman, who was the third member was present he might have taken a different view or might have materially affected the result of the decision. This may well be, though it is equally possible that the third member might have agreed with other two members. There is no manner of doubt that the presence or absence of one or the other members of a quasi-judicial legislative or administrative body may make a difference one way or the other in its ultimate decision. This contingency is basic and inherent in every statutory body for which a quorum has been lawfully prescribed.
Indeed, the legal result of a valid prescription of quorum is that the presence of a minimum number of members becomes, in fact, the Committee itself. To put it tersely, the quorum is the Assessment Sub-Committee. Therefore, to draw any distinction as to what would be the result if one or the other members of the Sub-Committee either chose to attend or not is to travel in the realm of surmises and conjecture rather than that of existing facts,
22. I am inclined to subscribe to the view that the issue is now well governed by the binding precedent and it is, therefore, unnecessary to labour the point on principle. Ret’erence in this connection may first be made to Ishwar Chandra v. Satya Narayan Sinha, AIR 1972 SC 1812. Therein a high power Committee, consisting of three members, that is, a retired Chief Justice of the Madhya Pradesh High Court, a sitting Judge of the same Court and a retired Judge of the Allahabad High Court, had been constituted under Section 13 of the University of Sagar Act, 1946. No quorum was provided in this Committee. But, nevertheless, only two members had attended the meeting which was put in issue. Upholding the validity of the proceeding, their Lordships observed as under : —
“It is also not denied that the meeting held by two of the three members on the 4th April, 1970, was legal because sufficient notice was given to all the three members. If, for one reason or the other, one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid.”
23. However, the decision which directly governs the issue is The Punjab University, Chandigarh v. Vijay Singh Lamba, AIR 1976 SC 1441. This was on an appeal directed against the majority view in the Full Bench judgment in Vijay Singh Lamba v. Punjab University, Chandigarh, AIR 1976 Punj and Har 143, to which one of us was a party. What was put in issue therein was the proceeding of the Standing Committee constituted by the Punjab University for dealing with unfair means cases. This consisted of a retired Judge of the High Court, the Registrar of the University and an Advocate who was a former Minister of the Punjab State. It was not in dispute that the said Standing Committee was a quasi-judicial body. Its proceeding was challenged on the identical ground that only two out of its three members had attended the meeting in pursuance of a quorum prescribed by the Syndicate. The majority struck down the proceedings on the ground that these had not been passed by all the members of the Standing Committee. Their Lordships of the Supreme Court, on appeal, whilst reversing the majority view and approving the minority opinion, held as follows : —
“Apart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meeting of the Standing Committee. If the quorum consists of 2 members, any 2 out of the 3 members, can perform the functions of the Standing Committee, though the Committee may be composed of 3 members. When Regulation 32.1 speaks of the Committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the Committee and who, by forming the quorum, can validly and lawfully discharge the functions of the Committee and transact all business on behalf of the Committee.”
24 To conclude on this aspect, the answer to the question posed at the outset is rendered in the negative and it is held that the prescription of a quorum for a quasi judicial body does not suffer from any inherent vice of invalidity.
25. It remains to advert to the two Division Bench judgments in Ganesh Prasad v. State of Bihar (supra) and Shree Murli Manohar Rice and Dal Mills v. State of Bihar (supra), which indeed have necessitated this reference. In a way these exhibit the pitfalls of deciding somewhat difficult and meaningful issues at the threshold stage of admission itself. It would appear that originally, on the 1st of February, 1985, the matter came up at the admission stage before a Division Bench in M/s. Shree Murali Manohar Rice and Dal Mills v. State of Bihar (supra) which was summarily disposed of in a few lines on the ground that because the assessment order has been passed by two members of the Assessment Sub-Committee only, therefore, there had been contravention of the provisions of Section 27-A, and the same was quashed. Neither principle nor precedent seems to have been cited before the Bench nor were the material provisions of Rule 88 and its validity even referred to. Counsel for the respondents was patently remiss in not bringing to the notice of the Bench the earlier Division Bench decision in Mahesh Udyog v. The Chairman, Agricultural Produce Market Committee, (CWJC No. 4604 of 1983, disposed of on the 3rd November, 1983), wherein it was categorically observed as follows : —
“From a bare reference to Section 27A(1) of the Act, it is apparent that although the Assessment Committee is to be constituted having three members, but the quorum provided under Rule 88 of the Rules is two only. As such, the order of assessment cannot be invalid on that ground.”
It is plain from the above that the view expressed was in headlong conflict with the earlier judgment, and, is in a way per incuriam.
26. However, the identical point again came before a Division Bench in Ganesh Prasad v. State of Bihar (supra). Even though the unequivocal observations of the earlier Division Bench in Mahesh Udyog v. The Chairman, Agricultural Produce Market Committee (supra) were brought to the notice of the Motion Bench, it was observed cryptically that the same was distinguishable. As has already been noticed, it was held as a dictum that no quorum could be prescribed for a quasi judicial body. Apart from the fact that the order ran counter to the decision in Mahesh Udyog v. The Chairman, Agricultural Produce Market Committee (Civil Writ Jurn. Case No. 4604 of 1983 (supra)), the same is directly in conflict with what has been authoritatively laid down in The Punjab University, Chandigarh v. Vijay Singh Lamba, AIR 1976 SC 1441 (supra).
27. With the deepest deference, it is, therefore, to be held that the views in Ganesh Prasad v. State of Bihar, and, Shree Murali Manohar Rice and Dal Mills v. State of Bihar (supra) do not lay down the law correctly. Equally they are contrary to direct precedent in the Punjab University, Chandigarh v. Vijay Singh Lamba, AIR 1976 SC 1441, and, therefore, cannot hold the field. Both these judgments are consequently overruled and the earlier view in Mahesh Udyog v. The Chairman. Agricultural Produce Market Committee (Civil Writ Jurn. Case No. 4604 of 1983) is hereby affirmed.
28. Once the meaningful legal questions arising herein have been answeted, it is plain that there is no merit in the primary ground Iraised on behalf of the petitioner that the assessment herein is not valid because of the same having been rendered by only two members of the Assessment Sub-Committee. This writ petition, therefore, must fail and is hereby dismissed. In view of some conflicting precedent within the Court, I decline to burden the petitioner with costs.
Satyeshwar Roy, J.
29. I agree.
Ramchandra Prasad Sinha, J.
30. I also agree.