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2012 DIGILAW 806 (UTT)

HITESH KUMAR SHARMA v. STATE OF UTTARAKHAND

2012-12-28

SUDHANSHU DHULIA

body2012
JUDGMENT Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. D. S. Patni, Advocate for the petitioners and Mr. U. K. Uniyal, Advocate General assisted by Mr. Paresh Tripathi, Additional Chief Standing Counsel for the State of Uttarakhand. 2. In all the abovementioned writ petitions before this Court, what is common is the challenge to the impugned order dated 06.09.2012 issued by the State Government by which a modification was made to its earlier order passed a day earlier i.e. on 05.09.2012. Vide order dated 05.09.2012 His Excellency, the Governor was pleased to grant approval for the appointment of the petitioners as Members/Chairman/Vice Chairman of the respective market committees. By this order (dated 05.09.2012), a list was declared by which first members were appointed and subsequently the Chairman out of the members were nominated, including the present petitioners. On the very next day i.e. 06.09.2012, the State Government again passed the order, inter-alia, cancelling the appointments of members/ Chairman/Vice Chairman of three Market Committees i.e. Mangalore, Jwalapur and Gadarpur. These modifications, which have been brought by the impugned order dated 06.09.2012, affect the present petitioners. 3. Before dealing with the arguments of learned counsel for the parties, it would be first worthwhile to narrate the purpose of these Marketing Committees in the State, the manner in which the members and Chairman of the Committee are to be appointed etc. The Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, 2011 (hereinafter referred to as Act) was enacted in order to provide for the effective regulation in marketing of agricultural produce, establishment and development of proper and modern marketing system, promotion of agricultural processing and agricultural export, superintendence and control of markets in the State of Uttarakhand and for the matters connected therewith or incidental thereto. For the said purposes, a Committee or more popularly known as “Agricultural Produce Marketing Committee” is constituted for each market area. Section 16 of the Act provides that for every market area, there shall be a Market Committee which shall have jurisdiction over the entire market area. Section 17 of the Act provides the provisions for constitution of a Committee, which shall consist of the members to be nominated by the State Government. Section 16 of the Act provides that for every market area, there shall be a Market Committee which shall have jurisdiction over the entire market area. Section 17 of the Act provides the provisions for constitution of a Committee, which shall consist of the members to be nominated by the State Government. Section 17 of the Act provides as under: “Constitution of the Committee 17.(1) The Committee, referred to in Section 16 shall consist of the following members to be nominated by the State Government in the manner as may be prescribed: (a) one representative of urban local bodies, exercising jurisdiction over the Principal Market yard or Sub-Market Yard, or part of either and the market area or any of its part; (b) one representative out of Zila Panchayat and one representative of Kshettra Panchayats exercising jurisdiction over the Principal Market Yard or Sub-Market Yard, or part of either and the market area or any of its part; (c) one representative of the Co-opeartive Marketing Societies holding license for transacting business in the Market Area; (d) one representative of commission agents carrying on business in the Market Area and holding licence therefore under this Act. (e) One representative of traders carrying on business in the Market Area and holding license therefore under this Act. (f) Seven representatives of producers of the Market Area; (g) One person of the Market Area who shall represent the interest of consumers; (h) Two Government officials of whom one shall be a representative of the Trade Tax Department and the other of the Food and Civil Supplies Department; (i) Secretary of the Market Committee who shall be the member secretary. (2) Out of the persons nominated under clause (f) of sub-section (1) (a) two members shall be residents of anyof the Gram Panchayat exercising jurisdiction over any part of the Market Area; (b) five members shall be producer seller in the Market Area who have obtained sale Vouchers in Form No.VI of last three years from the Committee, out of which, one member shall be belonging to the Schedueld Castes or the Scheduled Tribes and the other from Other Backward Classes of citizen; (3) Every committee shall have a Chairman nominated by the State Government from amongst the members referred to in clause (f) of sub-section (1) and a Vice Chairman nominated by the State Government from amongst the members of the committee. 4(a) the terí of the committee constituted under sub-section (1) shall be two years from the date of production of the constitution of the Committee under sub-section (6) if not terminated earlier by the State Government. (b) the term of the office of the Chairman, the Vice Chairman and the members shall be co-terminus with the committee; (c) a non-official member shall cease to hold his office if he ceases to be a licensee of committee or otherwise ceases to work in the committee as trader or commission agent as the case may be. (5) …………….. (6) …………….. 4. The “producers” of a market area are not only important because they have the largest representations in the market area, but, there is a statutory requirement that the Chairman of the Market Committee has to be nominated from amongst 7 nominated members, who are the representatives of producers of the market area. Vide order dated 05.09.2012 His Excellency the Governor was pleased to grant approval for appointment of each of the market committee and, by the same order, 7 members were nominated and from amongst them, the Chairman of the Committee was appointed. 5. Section 19 of the Act provides provisions for removal of members, Vice Chairman and Chairman of the Committee, which reads as under: “Removal of members, Vice-Chairman and Chairman of the Committee 19. The State Government may, on the recommendation of the Managing Director, remove any member including the Chairman or the Vice-Chairman if he has been found guilty of neglect or misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member or has been adjudged insolvent and the vacancy of such members shall be filled in accordance with the provisions of sub-section (3) of Section 17 or Section 18 as the case may be; Provided that no such member shall be removed from office unless he has been given a reasonable opportunity of being heard.” 6. The facts which are being dealt with here pertain to Writ Petition No.1907 of 2012 (M/S), however, since there is a common question of law involved in these petitions, the decision thereon will be applicable to the other writ petitions as well. 7. The facts which are being dealt with here pertain to Writ Petition No.1907 of 2012 (M/S), however, since there is a common question of law involved in these petitions, the decision thereon will be applicable to the other writ petitions as well. 7. For the sake of convenience, it must be mentioned that Writ Petition No.1907 of 2012 (M/S) pertains to the market area of Mangalore, Haridwar wherein the cancellation of the nomination has been under challenge. In so far as Writ Petition No.1908/2012 (M/S) and No.1921/2012 (M/S) are concerned, the cancellation of the nomination of the market area Gadarpur and Jwalapur respectively have been challenged. 8. According to the petitioners, by an order dated 05.09.2012, His Excellency the Governor was pleased to grant approval for each of the market committees and by the same order, 7 members were nominated who were the producers of the market area. From amongst these members, petitioners Hitesh Sharma and Rambhool Saini were appointed as Chairman and Vice Chairman respectively for the market committee Manglore, Haridwar. Upendra Chaudhary and Dharm Chandra Khera were appointed as Chairman and Vice Chairman respectively for the market committee, Gadarpur. Petitioner Sanjay Chopra was appointed as Chairman for the market committee, Jwalapur. 9. According to the petitioners, on the very next day i.e. 06.09.2012 they gave their joining on their respective posts in the market committees. Each of the petitioners has also annexed the certificate to show that on the very next date, they had joined on the posts on which they were assigned. Interestingly, this certificate has been signed by the petitioners themselves showing that they have joined on their respective posts in the concerned market committee. On the same day, though impugned order dated 06.09.2012 was passed. So far as Manglore and Jwalapur and Gadarpur Market Committees are concerned, their nominations as members, Chairman and Vice Chairman have been cancelled by His Excellency the Governor and rest of the list as per order dated 05.09.2012 has not been touched. 10. On the same day, though impugned order dated 06.09.2012 was passed. So far as Manglore and Jwalapur and Gadarpur Market Committees are concerned, their nominations as members, Chairman and Vice Chairman have been cancelled by His Excellency the Governor and rest of the list as per order dated 05.09.2012 has not been touched. 10. The principal argument raised on behalf the petitioners is that they were nominated as members and then as Chairman of the respective market committees under section 17 of the Act and that as per Section 19 of the Act, the State Government cannot remove a member, Chairman or Vice Chairman unless there is recommendation of the Managing Director that the person has been found guilty of neglect or misconduct in the discharge of his duties or any disgraceful conduct or has become incapable of performing his duties. Learned counsel for the petitioners further contends that Section 19 of the Act also provides that no member of the Committee shall be removed from the office unless he has been given a reasonable opportunity of being heard. 11. It has been further argued that neither there is any charge of guilt of misconduct in the discharge of duties nor any opportunity of hearing was provided to them while passing the impugned order. Therefore, there is a clear violation of the principle of natural justice and more particularly of Section 19 of the Act and the impugned order is hence liable to be quashed. 12. This Court, while admitting these writ petitions and while issuing notices to the respondents, has passed an interim order dated 11.09.2012 restraining the respondents not to nominate any new member or Chairman for the concerned market committee. 13. In the counter affidavit, it has merely been stated that modifications in the earlier order have been done by the impugned order and that the contention of the petitioners that they have been removed is not correct and only the appointment letter has been modified. Nothing has further been stated in the counter affidavit. 14. During the course of argument, the learned Advocate General has taken the court through various provisions of Acts and tried to show that the rights of the petitioners have not accrued as yet, and that only a notification has been issued showing that the members, Vice Chairman, Chairman have been nominated. 14. During the course of argument, the learned Advocate General has taken the court through various provisions of Acts and tried to show that the rights of the petitioners have not accrued as yet, and that only a notification has been issued showing that the members, Vice Chairman, Chairman have been nominated. Moreover, the entire “market committee” has not been “constituted” as yet. Learned Advocate General further submits that as per Section 17(1) of the Act, the Committee shall consist of the members to be nominated by the State Government and that the Committee legally comes into existence only when the constitution of the committee constituted under the Act is notified in the Gazette by the Managing Director with the prior approval of the State Government. 15. Sub-clause (4)(a) of Section 17 of the Act further provides that the term of the Market Committee is of two years from the date of publication of the constitution of the committee. Learned Advocate General has argued that the same has not been done as yet and since the market committee has not come into existence, the petitioners have no rights to remain on the post in question. Only after the constitution of the committee and after its publication in the gazette, would any right accrue to the petitioners. Consequently rights as claimed by the petitioners under Section 19 of the Act are presently not available to them as there is no market committee in existence since neither all members have been nominated nor is there any publication in the gazette. 16. After hearing learned counsel for the parties, this court has examined the issue from all aspects. One factor, which is absolutely clear, is that while making these nominations under Section 17 of the Act, there is neither any transparency nor any criteria or yardsticks to choose a person, either as a member or later as a Chairman or Vice Chairman. It is only a nomination from the representative of producers of the market area. It is purely a “pick and choose” policy of the Government. Definitely, there is no election process of any kind in the matter. In other words, it is clearly a nomination from the backdoor and consequently one who gets a nomination from the backdoor can always be removed by the same door, subject to the limitations of the statute which governs the subject. Definitely, there is no election process of any kind in the matter. In other words, it is clearly a nomination from the backdoor and consequently one who gets a nomination from the backdoor can always be removed by the same door, subject to the limitations of the statute which governs the subject. As already observed above by this Court the protection under Section 19 of the Act is presently not available to the petitioners. Moreover, under Section 19 of the Act also provides that no such member shall be removed from office unless he has been given a reasonable opportunity of being heard. The submission of the learned counsel for the petitioners that there was a clear violation of the principles of natural justice seems to be attractive at first, but on a closer scrutiny, the court finds that it cannot be sustained for another reason that is that the members, Chairman or Vice Chairman have no rights independent to rights of the market committee or rights independent to the existence of the Committee, and since the market committee has not come into existence as yet, as already referred above, these rights cannot be claimed by the petitioners. 17. In view of the aforesaid, there is no anomaly in the impugned order. Therefore, the writ petition is liable to be dismissed and is dismissed accordingly. 18. No order as to costs.