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1989 DIGILAW 284 (PAT)

Kasturi Lal v. State of Bihar

1989-08-11

S.ROY

body1989
JUDGMENT Satyeshwar Roy, J.-The petitioners who are traders under the Bihar Agricultural Produce Markets Act, 1960 (the Act) of Jamshedpur Market Area have filed this application for issuing a writ of quo-warranto calling upon the Sub-divisional Officer, Dhalbhum (respondent no. 4) to show under what authority he is holding the post and acting as Administrator of Jamshedpur Area Market Committee (hereinafter called 'the Market Committee' ) and for a mandamus directing the respondents to hold election in respect of the Market Committee. 2. In terms of section 9 of the Act, the Market Committee was constituted which is evidenced by the notification dated 17th February, 1984, a copy of which is Annexure-1 to this writ petition. Section 9 (5) of the Act provides that the term of the Market Committee shall be of three years and thereafter within a period of six months, election shall have to be held. If no election is held within six months after the expiry of that period the power and duties of a Market Committee shall be exercised by an officer appointed by the State Government. The election shall be held within six months after a person is so authorised by the State Government. It further provides that if for any unforeseen reason the election cannot be held within six months as aforesaid, the State Government may extend the period of holding election by a further period of six months. There is no dispute that within six months after expiry of the constitution of the Market Committee as evidenced by Annexure-1, no election was held and the Market Committee continued for six months more i.e. up to 17.8.1987. The Market Committee ceased to exist after that period and the State Government in exercise of its power appointed Shri B.K. Tripathy, Sub-Divisional Officer, Dhalbhum as the person authorised to discharge the duties and functions of the Market Committee. This was done by notification as contained in Annexure-2 dated 13th October, 1987. It appears from Annexure-2 that Shri Tripathy was so authorised for the period 18.2.1987 to 17.8.1987 and 18.8.1987 to 17.2.1988. 3. So far the first period was concerned, the notification was without jurisdiction because the validly constituted Market Committee was entitled to continue for six months after the expiry of three years i. e. six months after the expiry of 17.2.1987 and the term, therefore, of the Market Committee expired on 17.8.1987. 3. So far the first period was concerned, the notification was without jurisdiction because the validly constituted Market Committee was entitled to continue for six months after the expiry of three years i. e. six months after the expiry of 17.2.1987 and the term, therefore, of the Market Committee expired on 17.8.1987. Shri Tripathy, therefore, could have validly discharged the functions and duties of the Market Committee from 18.8.1987 to 17.2.1988. Shri Tripathy had, however, been transferred on 18 9.1987 i.e. before the issuance of Annexure-2 and when the Mate Government realised its mistake, it issued another notification dated 19.2.1988 by which Shri Shivendra, the Sub-Divisional Officer, Dhalbhum was authorised to discharge the duties and functions of the Market Committee from 19.9.1987 to 17.2.1988. Without going into the question, whether notification would have been given retrospective effect and even assuming that both Shri Tripathy and Shri Shivendra were validly authorised at least on and from 18.2.1988, there has been no authorisation by the State Government under section 9 (5) of the Act. There is no dispute with regard to these facts. 4. The State has not filed any counter affidavit. A counter-affidavit his been filed on behalf of respondent no. 5 which has been sworn by an Assistant of the office of the Market Committee, Jamshedpur. Annexure-All corresponds to Annexure-1. I have already dealt with that. Annexure-A is a copy of the order dated 14.10.1988 issued by the Managing Director, Bihar Agricultural Marketing Board (respondent no. 3) authorising Shri Shivendra, Sub-Divisional Officer, Dhalbhum from 18.8.1988 to 15.9.1988 and Shri J.R.K. Rao, Sub-Divisional Officer, Dhalbhum from 16.9.1988 to 15.2.1988 or till the Market Committee was constituted, whichever was earlier, to discharge the duties and functions of the Chairman of the Market Committee. This was purported to have been issued in exercise of the power under section 37 of the Act which reads as follows ;- "37.Power of tile Board to make arrangements for the performance of the duties and functions of the Market Committee and the Chairman in certain cases. This was purported to have been issued in exercise of the power under section 37 of the Act which reads as follows ;- "37.Power of tile Board to make arrangements for the performance of the duties and functions of the Market Committee and the Chairman in certain cases. Where a Market Committee is unable or not competent due to any order or decision of a court or any other cause to perform the duties, imposed by or under this Act the Board shall make such arrangements as it deems fit for the performance of the duties and functions of such Market Committee and of the Chairman of the Committee." 5. From the plain reading of this section it will appear that the Board can make arrangements under certain situation only in a case where validly constituted Market Committee exists, In a case where the Market Committee does not exist, in law the Boa rd has no jurisdiction to pass any order under section 37 of the Act. 6. Mr. Mishra, learned counsel appearing on behalf of respondent no. 5 submitted that the Board can exercise its power under section 37 of the Act not only in a case where validly constituted Market Committee is unable to function due to some order or decision of the court, but also in a case where validly constituted Market Committee does not exist like the case in question. If the contention made on behalf of respondent no. 5 is accepted, then part of sub-section (5) of section 9 becomes otiose. This is against all canons of interpretation of statute. Further from Annexure-A it appears that the Sub-Divisional Officer, Dhalbhum was appointed as the officer authorised to discharge the duties, and functions of the Chairman of the Market Committee. The function and duty of the Chairman has been enumerated in section 22 of the Act. In view of the fact that no validly Market Committee existed on the date Annexure-A was issued i.e. 14.10.1988, the Board has no jurisdiction under section 37 of the Act to pass an order as contained in Annexure-A Annexure-A. therefore, must he quashed. The function and duty of the Chairman has been enumerated in section 22 of the Act. In view of the fact that no validly Market Committee existed on the date Annexure-A was issued i.e. 14.10.1988, the Board has no jurisdiction under section 37 of the Act to pass an order as contained in Annexure-A Annexure-A. therefore, must he quashed. It must be held that no person has been authorised or could be authorised under the existing law to discharge the duties and functions either of the Market Committee or the Chairman of the Market Committee and the Sub-Divisional Officer, Dhalbhum has no jurisdiction to act as Chairman of the Jamshedpur Market Committee. 7. In the result, this application is allowed with the aforesaid directions and observations but in the circumstances of the case, there will be no order as to costs. 8. The matter, however, cannot he left at that place. The Market Committee has property. It has employees. It daily earns revenue. Arrangement for protection of property, payment of salary to employees, deposit of fund in treasury/bank and for discharging such other functions of the Market Committee which are routine function shall have to be made. It is, therefore, ordered that till Market Committee is constituted under the existing Jaw, the Sub-divisional Officer, Dhalbhum shall discharge the routine functions.