P.R. Bora, J.
1. Heard. Rule. By consent of learned Counsel for the parties, Rule is made returnable and heard forthwith.
2. The order dated 24.12.2013, passed by the District Deputy Registrar, Cooperative Societies, Yavatmal, under Section 45(1) of Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as `the APMC Act') superseding the Agricultural Produce Market Committee, Ghatanji (hereinafter referred to as 'APMC, Ghatanji') and appointing an administrator to look after the affairs of the said Market Committee, is under challenge in the present petition. Petitioners are the members of the Board of Directors of the APMC, Ghatanji. On the date of passing of the impugned order, petitioner no.1 was the Chairman (Sabhapati) of the said Market Committee.
3. Facts giving rise for filing of the present petition are, in brief, thus:
Shri Prakash Dhande, who claims himself to be an active worker of Maharashtra Navnirman Sena, preferred two complaints to the District Deputy Registrar, Cooperative Societies Yavatmal (respondent no.1). In the first complaint dated 18.11.2012, his allegation was that the Board of Directors headed by petitioner no.1 was not discharging their duties as prescribed in the APMC Act which had resulted in causing huge losses to the Market Committee, Ghatanji. It was further alleged that no proper accounts were maintained of the market fee as well as supervision fee to be collected from the traders. It was also alleged that ignoring the welfare and interests of the farmers, the petitioners were making favours to the traders.
4. In the second complaint dated 21.11.2012, Shri Dhande has complained that the traders and the existing Board of Directors headed by petitioner no.1, in connivance with each other, were exploiting the farmers and, more particularly, the cotton growers by illegally and unauthorizedly reducing the price of cotton per quintal after purchasing the same at a particular rate in open auctions. Shri Dhande has made a grievance that though the complaints were made in this regard, the Market Committee did not take any action against the erring traders and the brokers.
5. After receiving the complaints as aforesaid, respondent no.1 directed the Assistant Registrar, Cooperative Societies, Ghatanji (hereinafter referred to as âARCS, Ghatanjiâ), to make an enquiry and submit report. The ARCS, Ghatanji, accordingly, conducted an enquiry and submitted his report to respondent no.1 on 21st March, 2013. The ARCS, Ghatanji, in his aforesaid report, held that there was substance in the complaint made by Prakash Dhande. Vide his letter dated 2nd May, 2013, respondent no.1 sought explanation from the Market Committee, Ghatanji, on two reports submitted by the ARCS, Ghatanji, in respect of the two complaints made by Prakash Dhande. On 16.5.2013, petitioner no.1 submitted his explanation to respondent no.1. He denied the allegations in the complaint of Prakash Dhande. He also seriously objected the conclusions drawn by ARCS, Ghatanji in his two reports submitted to respondent no.1. Petitioner no.1 also forwarded relevant documents in support of the contentions raised by him in the explanations submitted by him.
6. It appears that the explanation so submitted by petitioner no.1 on 16.5.2013 did not find favour by respondent no.1. On 20.6.2013, respondent no.1, therefore, issued a show cause notice to the Chairman, Vice Chairman and the managing Committee members of the Market Committee, Ghatanji, calling explanation from them on the points raised in the said notice. About ten points of objections were raised in the said notice.
7. Vide order passed on 25th July, 2013, respondent no.1 appointed a Three Member Committee (hereinafter mentioned as âInquiry Committeeâ) under Section 40(b) of the APMC Act to hold enquiry into the affairs of the Market Committee, Ghatanji. Five points were formulated by respondent no.1 for conducting such enquiry. This Inquiry Committee, as a part of enquiry, visited office of the Market Committee, Ghatanji, and inspected the relevant documents, registers, proceeding books, receipt books, account books, etc. The Committee submitted its report to respondent no.1 on 23.8.2013 on all the five points incorporated in order dated 25th July, 2013. The report so submitted by the said Committee reveals that it did not notice any serious illegality or irregularity as was alleged in the complaints made by Prakash Dhande.
8. In the meanwhile, the members of the Board of Directors of the Market Committee, Ghatanji, submitted their respective explanations to respondent no.1 to the notice dated 20.6.2013 issued by him. Prakash Chatrapati Dhambare independently submitted his explanation. Shri Sanjay Nikade and six others jointly submitted their explanation whereas the present petitioners also jointly submitted their explanation to respondent no.1. Respondent no.1 then forwarded a letter to respondent no.2 seeking its opinion in regard to the action proposed in the show cause notice dated 20.6.2013. Respondent no.1 furnished to respondent no.2 the copy of the show cause notice dated 20.6.2013, the replies received to the said notice in three sets from the members of the Board of Directors of the Market Committee, Ghatanji, and also the report dated 23.8.2013 submitted by the Inquiry Committee under Section 40(b) of the APMC Act. Respondent no.2 Board then sought remarks / opinion from respondent no.1. Respondent no.1, accordingly, submitted the same vide its letter dated 14th Oct., 2013. Respondent no.2 Board in its meeting held on 20.12.2013, passed a resolution No. (3)(6) and in pursuance of the said resolution, forwarded its opinion to respondent no.1 with a covering letter dated 23.12.2013. On receiving such opinion from respondent no.2, respondent no.1 passed the impugned order on 24.12.2013, and thereby superseded the Market Committee, Ghatanji, and appointed one Shri B.D.Rathod, the then Assistant Registrar, Cooperative Societies, Arni, as Administrator to look after the affairs of the Market Committee, Ghatanji, until further orders.
9. As it reveals from the averments in the petition, the impugned order is challenged mainly on the ground that there was no consultation, much less effective consultation between respondent nos. 1 and 2 before passing of the order of supersession.
Shri A.M.Ghare, learned Counsel appearing for the petitioners, submitted that, while passing resolution No.(3)(6) in its meeting dated 20.12.2013, the Board of Directors of respondent no.3 has not at all considered the reply jointly submitted by the present petitioners to the show cause notice dated 20.6.2013 issued by respondent no.1. Shri Ghare further submitted that, in the aforesaid meeting of the Board of Directors of respondent no.2, consideration has been given only to the replies submitted by the other members of the Board of Directors of Market Committee, Ghatanji. Learned Counsel submitted that the said members are politically against the group of the present petitioners. Shri Ghare further submitted that respondent no.2 has also not considered the report dated 23.8.2013 submitted by the Inquiry Committee appointed by respondent no.1 under Section 40(b) of the APMC Act. Shri Ghare further submitted that respondent no.3 has also not considered the additional reply submitted by the present petitioners on 26.8.2013 to the show cause notice dated 20.6.2013. According to the learned Counsel, non consideration of the replies by the present petitioners to the show cause notice and the report of the statutory enquiry committee has vitiated the opinion given by respondent no.2 and it cannot be said and accepted as consultation as contemplated under Section 45(1) of the APMC Act. According to Shri Ghare, the impugned order is liable to be set aside on this solitary ground.
10. Respondent no.1 in his affidavit in reply has submitted that since there were certain irregularities found in the audit reports and since there were complaints against Market Committee, Ghatanji, before him as well as before the ARCS, Ghatanji, regarding violations of Sections 31 and 34 of the APMC Act, as well as bye-law Nos. 17 and 19, initially enquiry was conducted by ARCS, Ghatanji. It is further contended that the report dated 26.3.2013, submitted by ARCS, Ghatanji, specifically pointed out misappropriation, mismanagement and illegal transactions in the affairs of the Market Committee, Ghatanji. It is further contended that before passing the impugned order, sufficient opportunity of hearing was given to the members of the Market Committee, Ghatanji and after considering the explanations submitted by all of them, the impugned order has been passed. It is further contended that before passing the impugned order, respondent no.1 has forwarded the entire material to respondent no.2 and had sought its opinion as envisaged in proviso to Section 45(1) of the APMC Act. It is further contended that respondent no.2, after considering the entire material before it, has given its opinion, thereby approving the action proposed in the show cause notice dated 20.6.2013 issued by respondent no.1.
11. Respondent no.4 has also filed his reply supporting the actions initiated by respondent no.1 and fully supporting the impugned order. Respondent no.4 has contended that the allegations made by him against the petitioners have been duly proved from the documents, which have come on record, and even from the reply submitted by the present petitioners, to the show cause notice dated 20.6.2013. Shri Dangare, learned Counsel for respondent no.4 submitted that the allegation made by respondent no.4 that the traders were exploiting the farmers by illegally and unauthorizedly reducing the rates and were carrying out alterations in the Sauda Pattis has been duly proved. Shri Dangre further submitted that the further allegation made by respondent no.4 that there were huge arrears of Market fee and supervision fee towards traders and the same were not recovered for months together has also been duly proved. Learned Counsel further submitted that merely because the names of the petitioners are not specifically mentioned in the opinion given by respondent no.2, it cannot be said that the contentions raised by the petitioners in reply to the show cause notice dated 20.6.2013, have not been considered by respondent no.2. Learned Counsel submitted that conscious reading of the opinion given by respondent no.2 would reveal that all the contentions raised by the petitioners have been considered by respondent no.2.
12. After having considered the pleadings of the parties, it is quite clear that whether there was any previous consultation between respondent nos. 1 and 2 before passing the impugned order is the moot issue involved in the present petition. As stated earlier, it is the specific contention of the petitioners that there was no previous consultation at all between respondent nos. 1 and 2. As has been argued by Shri Ghare, learned Counsel appearing for the petitioners, the opinion given by respondent no.2 on the strength of the resolution passed in the meeting of Board of Directors of respondent no.2, cannot be held to be `consultation' much less `effective consultation'. To substantiate his contention that the previous consultation with respondent no.2 by respondent no.1 before passing an order of supersession of the Market Committee was not an empty formality, Shri Ghare placed reliance on the judgment of this Court in the case of Appasaheb Sheshrao Chavan Vs. State of Maharashtra (2000 (1) Bom.C.R. 657). In the said matter, the issue involved was bifurcation of some Market Committees in the State of Maharashtra under Section 44 of the APMC Act. Section 44 of the APMC Act also provides for consultation with the State Marketing Board before taking any decision of amalgamation or division of the Market Committee. In the course of discussion, the Division Bench also referred to the provisions under Section 45 of the APMC Act and referring to the observations made in the earlier judgment by another Division Bench of this Court in the case of Market Committee, Dharni, made following observations in paragraph no.25 of the judgment, which are thus:
â25. This Court in the case of Agricultural Produce Market Committee, Dharni, cited (supra), held that mere sending of the copy of the show cause notice without anything more cannot amount to consultation within the meaning of the statutory provision. No opinion could be given only on the basis of show cause notice issued. It also held that there is a corresponding duty also on the body whose consultation is mandatory to give its opinion. The corresponding duty to give opinion is also to be performed truthfully, observing the spirit for which the provision is made. A federal body is considered to be a body of experts, which is able to take a detached view of the matter and therefore it has to be consulted. An authority making a proposal may have extraneous considerations influenced by the local conditions in its mind and a second opinion to be given by the federal body may weigh with the body making the proposal. Such an exchange of views is necessary between those bodies and executive functionaries. Therefore, the judicial pronouncements have laid down the following propositions regarding consultation â
(1) Consultation, if so provided in the Statute, is mandatory before taking further steps of dissolution, supersession, division, amalgamation or bifurcation, etc.:
(2) Consultation has to be effective and, therefore, all the material necessary for taking the steps must have been placed before the body to be consulted:
(3) The body to be consulted has a corresponding duty to give its opinion. It cannot merely say that steps, according to law may be taken. This is no opinion expressed by the body consulted.â
Learned Counsel also relied upon judgment in the case of Ravindra M.Gaikwad Vs. State of Maharashtra (2001EQ(BOM)0827: MHLR20013420).
In the said matter, consultation under Section 78 of the Maharashtra Cooperative Societies Act, 1961, before passing any order of removal of member from the Board of Directors was for consideration. Shri Ghare submitted that the aforesaid provision in the Maharashtra Cooperative Societies Act is similar to the provision incorporated in Section 45 of the APMC Act. Learned Counsel invited our attention to the following conclusion recorded by this Court in the said matter that,
âIt is necessary not only for the authority who is required to consult the federal society to place all the materials relevant to the matter before the Federal Society for the purpose of consultation but, it is equally necessary for the federal society to impart its views on the point on which consultation is sought forâ.
Relying on the aforesaid two judgments, learned Counsel submitted that respondent no.2 Board has failed in discharging its duty of imparting its views on the point on which consultation was sought for. In such circumstances, according to the learned Counsel, the opinion given by respondent no.2 cannot be held to be `consultation' much less `effective consultation' and, consequently, the order passed without such consultation is liable to be vitiated.
13. Shri Dangre, learned Counsel appearing for respondent no.4 strongly opposed the submissions made by Shri Ghare. Shri Dangre submitted that the petitioners are making unnecessary ado that their contentions have not been considered by respondent no.2 while giving its opinion. Shri Dangre submitted that the allegations that no proper accounts were maintained, there were huge arrears of the Market fees and supervision fees towards the traders, that the traders were exploiting agriculturists by unauthorizedly and illegally reducing rate of cotton after purchasing the same in auction, and were making alterations in Sauda Pattis, were the allegations not only against the petitioners but against the entire Board. Learned Counsel submitted that from the replies submitted by other members of the Board of Directors of the Market Committee, Ghatanji, the facts which have come on record, were sufficient to give opinion for respondent no.2. Learned Counsel submitted that the opinion given by respondent no.2 cannot be termed as `vague' or `no opinion'. Placing his reliance on the judgment of the Division Bench of this Court in the case of Tukaram Narayanrao Khandebharad vs. State of Maharashtra and others. (1998 (1) Mh.L.J.679), learned Counsel submitted that the respondent no.2 Board has not in any manner expressed any opinion adverse to the proposal which was sent to it. Inviting our attention to the observations made in paragraph no.9 of the said judgment that, had it been the opinion of the Board that it was not agreeable to the action of supersession, it would have, undoubtedly, explained the same in specific words. Learned Counsel argued that the Board has not suggested any demur with the proposed action but, has given latitude to the District Deputy Registrar to proceed with the action on merits, according to law. Learned Counsel further invited our attention to the conclusion recorded by the Court in the aforesaid matter that such opinion given by the Board, certainly, could not be called to be refusal to give any opinion. Learned Counsel then invited our attention to the observations made in paragraph no.10 of the said judgment, which are thus:
â10. However, we would approach the problem from other angle also. Was it really necessary for the State Marketing Board to give its opinion one way or the other? We feel that the Board was free to express its opinion in any manner. The Board could have even expressed its opposition to the proposal of supersession. Question is, could such refusal be said to be fatal to the ultimate decision on the part of the DDR Our earnest opinion is that even if the Board had refused to agree with the proposal of supersession, the DDR could still have proceeded ahead with the action, the only requirement being that it had to be shown that the DDR had taken into consideration the opinion of the Board, a body which was bound to be consulted. If the DDR had shown that he was alive to the contrary opinion on the part of the State Marketing Board, and in spite of the same, had decided to proceed, in our view, the process of consultation would still have been complete.â
Learned Counsel submitted that, as observed by the Division Bench of this Court, even after having consulted the Marketing Board, the ultimate decision was to be taken by the District Deputy Registrar. Learned Counsel submitted that when the District Deputy Registrar has given full consideration to the contentions raised by the petitioners, they cannot make any complaint that their contentions were not considered by the Marketing Board while giving its opinion. Learned Counsel submitted that the District Deputy Registrar has clearly averred in the impugned order that he has obtained the opinion of respondent no.2 Board before passing the impugned order. According to learned Counsel, the process of consultation was completed on obtaining the opinion of the Marketing Board by the District Deputy Registrar.
Shri Dangare further submitted that the consultation does not mean concurrence. In order to substantiate his said contention, learned Counsel relied upon judgment of the Hon'ble Apex Court in the case of State of Jammu and Kashmir Vs. A.R.Zakki and others (AIR 1992 SC 1546). Distinguishing judgment of this Court in the case of Vilas Rangrao Mahalle and others vs. State of Maharashtra and others (2013 (4) Bom.C.R. 375), Shri Dangare submitted that in the said matter Marketing Board has evolved a broad procedure for giving opinion as sought for by the District Deputy Registrar of his proposed action to supersede the Market Committee, Amravati, and since that was not scrupulously followed, it was held by this Court that there was no effective consultation.
Shri Dangre submitted that in the instant case, before giving the opinion as sought by the District Deputy Registrar, Yavatmal, the issue was discussed in the meeting of the Board of Directors and after due deliberations, the Board has passed a resolution to convey to the District Deputy Registrar, Yavatmal, that he may proceed with his proposed action of supersession of the Marketing Committee, Ghatanji, in accordance with law. Learned Counsel submitted that no fault can be found in the impugned order.
14. In the light of the arguments advanced on behalf of the parties, now it is to be examined whether the opinion as communicated by respondent no.2 Board can be treated as legal and valid compliance with requirement of Section 45(1) of the APMC Act.
15. It is the specific allegation of the petitioners that respondent no.2 Board has not at all considered the reply submitted by them to the notice dated 20.6.2013 issued by respondent no.1. The contention so raised by the petitioners cannot be appreciated unless the allegations raised against them in the show cause notice dated 20.6.2013 and reply given by the petitioners to the said allegations are looked into.
16. In the notice dated 20th June, 2013, issued by respondent no.2 to APMC Ghatanji and its members, following ten points of objections were raised:
(i) That, the business and the affairs of the Market Committee were not being carried out as per the statutory provisions of the APMC Act, and the Rules and regulations framed thereunder.
(ii) That, there were huge arrears of market fee and supervision fee at the year ending on 31st March, 2012, however, no sincere efforts were being done to recover the said amounts. It was also alleged that at the time of audit even on demand, the names of the traders who were in arrears of market fee and supervision fee were not supplied. It was also alleged that the accounts were not properly maintained of the market fee and supervision fee. It was also contended that inspite of an objection being raised in the audit report of the previous year that account of each of the trader is to be separately maintained, the same was not complied with.
(iii) That though in auction the cotton brought by Shri Pradip Raut, was purchased at the rate of Rs.3895/- per quintal, subsequently, the said rate was illegally and unauthorizedly reduced by the traders by Rs.15/- per quintal.
(iv) That when the Assistant Registrar visited the office of the Market Committee, selected documents were shown to him and the auction receipts (Sauda Pattis) more particularly wherein the rates were subsequently reduced were not shown.
(v) That, a complaint was received from one Gajanan Dethe in regard to illegal and unilateral reduction in the rate of cotton after it was purchased in an open auction. In so far as Point Nos.3, 4 and 5 are concerned, it was the common allegation that Members of the APMC Ghatanji were helping the traders to exploit the cotton growers.
(vi) That there are huge arrears of market fee and supervision fee. It was contended that APMC Ghatanji and its members have shown utter negligence and carelessness in recovering the arrears of the Market Fee and supervision fee. Reference was particularly given of the arrears towards Rana Ginning amounting to Rs.16.84 lacs.
(vii) That there were no accounts or necessary particulars available in respect of the market fee to the tune of Rs.2,40,129/-.
(viii) That APMC Ghatanji, and its members, instead of making sincere efforts to recover huge arrears of Rs.21 lacs from the traders, were borrowing huge amounts by way of loan from respondent no.3 Board at the cost of the farmers. It was also alleged that though the traders were defaulters of market fee and supervision fee, their licenses were renewed.
(ix) That despite repeated cautions no improvement was seen in the management of APMC Ghatanji.
(x) That, the explanation submitted by petitioner no.1 on 16.5.2013 to the enquiry reports bearing Nos. 775 and 777 of 2013 is not satisfactory.
17. To the aforesaid points of objections, the petitioners have given a detailed para-wise reply on 14.8.2013, gist of which is reproduced hereinbelow:
Point No.1:
The petitioners denied the allegation that they were not following the statutory provisions, Rules and regulations thereunder.
Point No.2 :
The entire arrears of the financial year ending on 31.3.2012 were recovered. Arrears were of only the current financial year. The personal ledgers were maintained of each trader. In the audit report of the previous year, it was clearly averred that the entries of the arrears of market fee and supervision fee were taken of the year ending 31.3.2012 of each individual trader. The arrears shown to the extent of Rs.16,41,461/- were recovered.
Point No.3:
There was no such complaint from said Pradip Raut. In his statement he has made it clear that he has no grievance.
Point No.4
At the time of auction the rate of cotton is decided on the basis of sample collected from the fore however, when the carrier containing cotton is unloaded, it is noticed that the percentage of moisture is much more than that was in the sample on the basis of which the rate was fixed in the auction. In such circumstances, the rate is reduced in the permissible limits mutually and or with consent of the cotton grower. In most of the cases, the rate is reduced with consent of the farmers leaving no scope for any complaint. Nevertheless, in genuine cases where it appears that the reduction was unreasonable, the Market Committee has taken necessary steps. To avoid exploitation of the cotton growers at the hands of the traders and brokers, instructions are displayed at conspicuous place in the Market Committee. There is no substance in the accusation of favouring traders and causing loss to the cotton growers. Three Sauda Patties are prepared; the original goes to the cotton grower, the second goes to auction purchaser and the third remains with the Market Committee and, in such circumstances, the Market Committee could not provide to the Registrar copy of Sauda Patti given to the farmer or to the trader. Allegation is false that in connivance with the traders, A.P.M.C., is exploiting the cotton growers by reducing the rate of cotton.
Point No.5:
Gajanan Dethe is near relative of complainant Prakash Dhande and it was his modus operandi to unnecessarily harass the Market Committee people by making false complaints. In the past also some such complaints were made and ruckus was created in the premises of the Market Committee and heavy damage was caused to the property of the Market Committee. The Market Committee was required to file a criminal case against said Shri Prakash Dhande.
Point No.6:
At the end of every month, the accounts are submitted to the concerned trader and demand is raised of the Market fee and supervision fee. Rana Ginning has cleared all the dues. Damages have also been recovered from said Rana Ginning by imposing upon it penal interest at the rate of twelve and half per cent, per annum.
Point No.7:
Accounts are regularly kept and maintained in usual course of business and there is no misappropriation of a single rupee. Out of total amount of Rs.1,30,94,718/- only a sum of Rs.54,447/- is unrecovered. All sincere efforts are being made to recover the said amount also from Lakhmai Ginning.
Point Nos. 8 and 9:
Arrears have been recovered within reasonable period and no such allegation can be made that the Market Committee was negligent in recovering the amount. In so far as amount borrowed from Marketing Board is concerned, it has been submitted that it has been done in the interest of agriculturists.
Point No.10:
The explanation given on 16.5.2013 is based on facts and it correctly answers the queries raised in the report.
18. On perusal of the opinion given by respondent no.2, it is noticed that though respondent no.2 has as it is reproduced the points of objections raised in the notice dated 20.12.2013, and has also considered the replies given by Prakash Chatrapati Dambare as well as Sanjay Kashinath Nikade and other six, there is no reference of the reply and the additional reply submitted by the present petitioners. On having noted the contents of the opinion given by respondent no.2, we find it difficult to accept the argument advanced by Shri Dangare that there may not be specific mention of the names of the petitioners but their contentions are considered by respondent no.2. We have specifically mentioned hereinabove the contentions of the petitioners in brief in the reply submitted by them to the show cause notice. In the opinion given by respondent no.2, we do not find even a slight reference of the contentions raised by the petitioners in their reply to the show cause notice dated 20.6.2013. As held in the case of Agricultural Produce Market Committee, Dharni and others vs. District Deputy Registrar, Cooperative Societies, Amravati (1996 Mh.L.J.374), it is necessary not only for the authority who is required to consult the federal society, to place all the materials relevant to the matter, before the federal society for the purpose of consultation but, it is equally necessary for the federal society to impart its views on which consultation is sought for. In the case of Appasaheb Chavhan Vs. State of Maharashtra (2000 (1) Bom.C.R. 657), it is said that,
âDuty cast on the Marketing Board is to be performed truthfully observing the spirit in which the provision is made. A federal body like the Marketing Board, is considered to be a body of experts, which is able to take detached view of the matter and, therefore, to be consulted. An authority initiating an action may have extraneous considerations due to local hands and hence, second opinion to be given by the federal body impartially may weigh with it.â
If the opinion given by respondent no.2 Board is viewed in the context to the observations made as aforesaid, it appears to us that while giving the opinion, respondent No.2 Board was duty bound to take into account the reply given by the present petitioners to the show cause notice dated 20.6.2013.
19. It is quite evident that the allegations or points of objections raised in the show cause notice dated 20.6.2013 were against the present petitioners who were in power and who were managing the affairs of the Market Committee, Ghatanji, at the relevant time. In the replies submitted by the other members of the Market Committee, namely, Prakash Chatrapati Dambare as well as Sanjay Kashinath Nikade and other six, it is their contention that if at all any irregularity or illegality has been committed, petitioner no.1 Abhishekh Thakare and the other members of the Market Committee in his group are responsible for the same as they are managing the day-today affairs of the Market Committee. In both the above circumstances, it was must for respondent no.2 Board to consider the contentions raised by the petitioners in their reply to the show cause notice dated 20.6.2013. In any case, it cannot be accepted that without considering the reply given by the petitioners, any opinion could have been formed in respect of the action proposed in the show cause notice dated 20.6.2013. It is not the case that copy of reply and the additional reply submitted by the petitioners were not supplied to the Marketing Board. From the opinion given by respondent no.2, it is difficult to gather as to why the Board has not considered the reply given by the petitioners to the show cause notice dated 20.6.1993 when the Board has considered the reply submitted by Prakash Chatrapati Dambare as well as Sanjay Kashinath Nikade and six others. It has to be stated that the parawise reply given by Prakash Chatrapati Dambare as well as Sanjay Kashinath Nikade and other six, is word to word same and inspite of that, in the opinion given by the Board, cognizance has been taken of both the said replies and both the said replies are reproduced. There is nothing on record to show as to why the reply submitted by the petitioners was kept out of consideration while giving opinion by respondent no.2 Board.
In view of this, the opinion given by respondent no.2 Board cannot amount to consultation within the letter and spirit of proviso to Section 45(1) of the APMC Act. No opinion could have been given by respondent no.2 Board without considering the reply given by the petitioners to the show cause notice issued by the District Deputy Registrar.
20. In Suresh Dnyandeo Khumkar and others vs. State of Maharashtra (1987 Mh.L.J. 474), except sending copy of the show cause notice, no other relevant material was sent to the federation so that it could form its opinion and send it to the District Deputy Registrar. Even copy of the reply submitted by the members of the managing Committee replying to the show cause notice had not been sent to the federation. In the circumstances, the Court held that there was no consultation, much less any effective consultation as contemplated by Section 78 of the Maharashtra Cooperative Societies Act. Consequently, the order of supersession was set aside and quashed by the High Court on the ground that the reply submitted by the members of the managing committee, replying to the show cause notice had not been sent to the federation and only a copy of show cause notice was sent. The same analogy can be applied to the facts of the present case. In the instant case, copy of the reply was sent to the Marketing Board but was not considered by it. However, the effect will be the same that there was no compliance with the requirement in the matter of consultation.
21. Secondly, we find substance in the contentions raised by the petitioners that the Marketing Board has not recorded any definite opinion whether, on the basis of material placed before it, it has formed an opinion that the petitioners are guilty of the allegations made against them and further that any action as proposed by the District Deputy Registrar needs to be initiated. Though the opinion of respondent no.2 i.e. Resolution No.(3)/(6) runs into around ten printed pages, it is a mere reproduction of the points of objection raised in the show cause notice dated 20.6.2013 and the gist of the reply submitted to the said notice by Prakash Chatrapati Dambare as well as Sanjay Kashinath Nikade and other six. On reading of the said opinion, it is difficult to say that any opinion as sought for by respondent no.1 has been given by respondent no.2.
What has been opined by the respondent Board is that, it may be communicated to the District Deputy Registrar, Cooperative Societies, Yavatmal that action in accordance with law may be initiated against the members of the Board of Directors of the Market Committee, Ghatanji. As held by the Division Bench of this Court in Appasaheb Sheshrao Chavan vs. State of Maharashtra (1999EQ(Bom)083), the Marketing Board cannot merely say that steps according to law can be taken. The Division Bench held that the same cannot be said to be opinion as contemplated under Section 45(1) of the APMC Act. In so far as reliance placed by Shri Dangare, learned Counsel appearing for respondent no.4, on the judgment of the Division Bench of this Court in the case of Tukaram Khandebharad (cited supra) is concerned, the said judgment has been distinguished by this Court in the subsequent judgment in the case of Vilas Rangrao Mahalle and others Vs. State of Maharashtra and others, to which one of us (B.P.Dharmadhikari, J.) was a party. While delivering judgment in Tukaram's case, the judgment in S.Kewalram Vs. Maharashtra State Cooperative Societies (1986(2) SCALE 89) was not brought to the notice of the said Bench and hence was not considered by the said Bench. In the case of S.Kewalram (cited supra), the Hon'ble Apex Court has made it abundantly clear that the expression âpreviously consultedâ means 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 Supreme Court has observed as under:
"The impugned order of supersession of A.P. M.C. Armori dated 3-9-85 has been passed without consulting the Federation of Market Committees as enjoined by proviso to section 45(1) of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963. The learned Counsel for the respondents has placed reliance on the affidavit in reply to show that a request was made to the Federation in order to elicit its opinion in regard to the proposed supersession but that the Federation had not given reply one way or the other. The expression "previously consulted" means 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. It is no good answer to say that the opinion of the Federation could not be taken into account because no opinion was expressed by it. In the eye of law supersession cannot be said to have been made in consultation with the Federation. A reply from the Federation one way or the other should have been insisted upon and the opinion expressed by the Federation should have entered into the reckoning before the conclusion to supersede was reached. The order therefore is unsustainable in law."
It is evident that the Marketing Board has not recorded findings of facts and has left it open for consideration to the District Deputy Registrar, Cooperative Societies, Yavatmal. In this situation, it is apparent that the provisions of Section 45(1) of the APMC Act are not complied with in the present matter and respondent no.2 Board has failed in discharging its obligation.
22. Shri Dangre, learned Counsel appearing on behalf of respondent no.4 has exerted too much on the facts to demonstrate how guilt of petitioners has been established on record. He has taken us through reply of petitioners to show cause notice and also through the order impugned in the present petition. During arguments, he has also attempted to demonstrate how judgment in case of Vilas Rangrao Mahalle .vrs. State of Maharashtra (supra), is incorrect. However, he made no comments upon the judgment of Hon'ble Apex Court reported at (2013) 7 SCC 25 (State of Madhya Pradesh .vrs. Sanjay Nagyach and others). He actually did not touch the said judgment and has not dealt with the contention of Shri Ghare, learned Counsel on the basis of said judgment. The Hon'ble Apex Court has considered the issue of previous consultation in the said judgment and in the process in paragraph no.23 has observed that body to be consulted, must be informed of the action which the Authority consulting proposes to take. Thus, after applying mind to the reply filed by the petitioners, the District Deputy Registrar, should have formed his opinion about the further course of action and communicated it to the Marketing Board as proposed action/order. Admittedly that has not been done. In view of this judgment of Hon'ble Apex Court, we do not find it necessary to deal with various arguments of Shri Dangre, learned Counsel on the scope of concept of previous consultation.
23. Here it is also important to note that the Marketing Board forwarded the communication on 23.12.2013 to the District Deputy Registrar and informed the said authority about the resolution of the Marketing Board. This communication has been forwarded from Pune, and thereafter the impugned order has been passed by the District Deputy Registrar at Yavatmal on 24.12.2013. Thus, immediately after receipt of the said order, the impugned order has been passed. The communication forwarded by the Board also finds mention therein. On copy of the communication produced on record by the District Deputy Registrar, the date on which it is received is mentioned as 24.12.2014. Obviously it has to be 24.12.2013. Only question is when the year 2014 had not dawned, how seal of date 24.12.2014 can be put by office of respondent no.1. The order of respondent no.1 (typed Marathi copy) runs into 21 pages and it does not show any application of mind to the facts at hand. It is in this background, that we find the communication sent by the Board seeking more details from the office of the District Deputy Registrar important. The said communication dated 18.11.2013 finds mention in the Board resolution dated 20.12.2013. The Board has found that District Deputy Registrar, Yavatmal (respondent no.1) had not submitted a clear proposal to it and hence, resolution mentions that Marketing Board had on 18.11.2013 informed the respondent no.1 accordingly. Resolution also mentions that till passing of the said resolution, no clarification was received by the Marketing Board from respondent no.1. This mention in resolution again shows that the respondent no.2 Marketing Board did not have satisfactory and sufficient material before it to express any opinion and, therefore, again the process of consultation is faulty. Marketing Board definitely could have insisted upon the reply from respondent no.1 and thereafter only should have taken a suitable decision. There was no question of any time limit and we find that the respondent no.2 Marketing Board as also respondent no.1 have acted with undue haste. In this view of the matter, we cannot at this stage delve well upon correctness or otherwise of the alleged misconduct mentioned in the show cause notice.
24. The process of consultation as explained by the Hon'ble Apex Court in case of State of Madhya Pradesh .vrs. Sanjay Nagayach (supra) could not have been completed in this manner.
25. Thirdly, it is a matter of record that respondent no.1 on 25th July, 2013, has appointed a Committee of three members to conduct an enquiry into the affairs of the Market Committee, Ghatanji, by invoking provisions under Section 40(b) of the APMC Act. The petitioners have placed on record documents evidencing that the said Inquiry Committee had, on 7.8.2013, visited the office of the Market Committee Ghatanji and has inspected the entire record pertaining to the points which were formulated while directing enquiry under Section 40(b) of the APMC Act. There is no dispute that the said Inquiry Committee submitted its report to respondent no.1 on 23.8.2013. The said report is available on record. The letter dated 28.8.2013, sent by respondent no.1 to the General Manager of respondent no.2 discloses that the aforesaid report submitted by Inquiry Committee was forwarded to respondent no.2 by respondent no.1 to facilitate it to give its opinion on the issue of supersession of Market Committee, Ghatanji.
26. In the opinion given by it, respondent no.2 Board has not even referred to the said inquiry report. It was argued by Shri Ghare, learned Counsel for the petitioner that when enquiry was directed under Section 40(b) of the APMC Act to enquire into the affairs of the Market Committee, Ghatanji, as provided under Rule 117(4) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967, the report of the said Inquiry Committee ought to have been submitted to the Director and the Director should have passed such order thereon as may be considered just by him after giving reasonable opportunity of being heard to the concerned persons, including the Members of the Market Committee. Shri Ghare submitted that since this mandatory provision has not been followed, the entire action initiated by respondent no.1 gets vitiated.
27. Shri Dangre, learned Counsel for respondent no.4 opposed the submissions so made on behalf of the petitioners. He submitted that the report or order under Rule 117(4) is totally irrelevant in the context of Section 45(1) of the APMC Act. Shri Dangre further submitted that in the instant case when respondent no.1 has disagreed with the report so submitted under Section 40(b) of the APMC Act, and the said report has not been used for the purposes of invoking Section 45(1) of the APMC Act, the grievance raised by the petitioners that no order has been passed under Section 117(4) of the Rules, loses its significance.
28. Even if the controversy as regards compliance contemplated under Rule 117(4) is kept aside, when the said report was forwarded by respondent no.1 to respondent no.2, it ought to have been looked into and considered by respondent No.2 Board while expressing its opinion in regard to the action proposed against A.P.M.C., Ghatanji, and its Board of Directors. Respondent no.1 may have disagreed with the conclusions recorded in the said report under Section 40(b) of the APMC Act, it was not open for respondent no.2 not to consider the said report or to keep it out of consideration when it was having a statutory force. For this reason also, we are of the opinion that there was no effective consultation between respondent nos. 1 and 2.
29. After having considered the facts and circumstances on record, we hold that there was no effective consultation between respondent nos. 1 and respondent no.2 on the issue of supersession of Market Committee, Ghatanji, as contemplated under Section 45(1) of the APMC Act. The opinion, as communicated by respondent no.2, on 23rd Dec., 2013, to respondent no.1 cannot be treated as a legal and valid compliance with requirements of Section 45(1) of the APMC Act. As such, the impugned action cannot sustain and is liable to be set aside. The writ petition, therefore, succeeds.
In the result,
it is held that there was no effective consultation as mandated by Section 45(1) of the A.P.M.C. Act in between respondent nos. 1 and 2 before passing order dated 24.12.2013 by respondent no.1, impugned in the present petition. The said order is quashed and set aside, consequently, the petitioners are restored to their original position.
The writ petition is, thus, allowed by making Rule absolute accordingly. However, in the facts and circumstances, there shall be no order as to costs.
In view of the order passed as above, Civil Application No.48/2004 stands disposed of.