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2019 DIGILAW 381 (GAU)

Prabhat Kr. Das v. State of Assam

2019-03-26

UJJAL BHUYAN

body2019
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Ms. N.S. Thakuria, learned counsel for the petitioners; Ms. D. Das Barman, learned Government Advocate, Assam, for respondent Nos. 1, 4, 5, 6 and 7; Mr. R. Kalita, learned counsel appearing for respondent Nos. 2 and 3; and Mr. S. Hussain, learned counsel appearing for respondent No. 9. 2. Matter relates to removal of Chairman of Guwahan' Sub-Divisional Regulated Market Committee (committee). Respondent No. 9 is the Chairman. A meeting of the committee was held on 25.01.2018, wherein no confidence motion was brought against respondent No. 9. Out of the 11 members present and voting 8 of them expressed no confidence and voted to remove respondent No. 9 as Chairman of the committee. 3. Respondent No. 9 as the writ petitioner had earlier approached this Court seeking a direction to restrain holding of meeting to remove him, which was registered as WP(C) No. 368 of 2018. An interim order was passed on 24.01.2018, whereby a Single Bench of this Court permitted holding of the scheduled meeting on 25.01.2018, but declared that resolution adopted in such meeting should not be given effect to. The writ petition was finally disposed of on 2.2.2018, by taking a view that under Section 11(2) of the Assam Agricultural Produce Market Act, 1972 (1972 Act), final decision has to be taken by the State Government. 4. Ventilating the grievance that no decision has been taken by the State Government thereby allowing respondent No. 9 to continue in office, present writ petition has been filed. 5. Notice in this case was issued on 14.12.2018. 6. The fact that a meeting of the committee was held on 25.01.2018, in which 8 members out of 11 members present and voting had expressed no confidence motion on respondent No. 9, is not disputed. Resolution to that effect has been adopted. 7. Removal of Chairman and Vice Chairman is provided under Section 11(1) and (2) of the 1972 Act. Sub- Section (1) says that Chairman or Vice Chairman of any market committee may be removed from office by a resolution adopted by at least two third of the total number of members of the market committee present and voting at a meeting convened for the purpose. 7.1. Sub- Section (1) says that Chairman or Vice Chairman of any market committee may be removed from office by a resolution adopted by at least two third of the total number of members of the market committee present and voting at a meeting convened for the purpose. 7.1. On the other hand, Sub-Section (2) provides that the State Government may, after giving an opportunity to e Chairman or Vice-Chairman of a market committee from office if he persistently omits or refuses to carry out or disobeys the provisions of the 1972 Act or the Rules made thereunder or any directive issued by the competent authority or if he becomes incapable of so acting or is declared insolvent or is convicted by a criminal court for any offence involving moral turpitude or declared disqualified under any of the provisions of the 1972 Act and Rules made thereunder. 7.2. For ready reference, Section 11(1) and (2) of the 1972 Act is extracted hereunder:- "11. Removal of Chairman and Vice-Chairman. (1) The Chairman or the Vice-Chairman of any market committee may be removed from office by a resolution adopted by at least two-third of the total number of members of the market committee present and voting at the meeting convened for the purpose, in the manner prescribed. (2) The State Government may, after giving an opportunity to explain, remove the Chairman or Vice-Chairman of a market committee from office if he persistently omits or refuses to carry out or disobeys the provisions of the Act or the rules made thereunder or any directive issued by the competent authority under this Act or rules made thereunder from time to time, or if he becomes incapable of so acting or is declared insolvent or is convicted by a criminal court for any offences involving moral turpitude or declared disqualified under any of the provisions of this Act and the rules made thereunder." 8. In the earlier round of litigation, i.e., in WP (C) No. 368 of 2018, a Single Bench of this Court in the final order dated 02.02.2018, took the view that notwithstanding removal of a Chairman in the manner provided under Section 11(1), he can be removed by the State Government under Sub-Section (2) only after giving him an opportunity to explain the charge brought against him. Taking the view that since the said exercise was not completed and no order was passed by the State Government, learned Single Judge gave liberty to respondent No. 9 to explain his stand before the Government, as and when he was asked to do so and till such time, it was held that his functioning as Chairman should not be disturbed. Relevant portion of the final order dated 02.02.2018 is extracted hereunder:- "The matter pertains to the meeting convened on 25.01.2018 so as to discuss the agenda of removal of the Chairperson of the Guwahati Sub-Divisional Market Committee, i.e. the writ petitioner herein. Ms. Thakuria has informed this Court that pursuant to the interim order dated 24.01.2018, the meeting of the Marketing Committee was held on 25.01.2018 wherein, the No Confidence Motion brought against the writ petitioner was carried and therefore, the writ petition be closed as infructuous. Mr. S. Saikia, learned standing counsel, ASMB has invited the attention of this Court to the provision of Section 11(1) and (2) of the Assam Agricultural Products Market Act, 1972(Act of 1972) to submit that no decision has been taken by the State Govt. yet, to remove the petitioner from the post of Chairman in terms of the resolution adopted in the meeting held on 25.01.2018. He submits that the Secretary of the Committee is yet to forward the resolution to the Marketing Board for taking steps in accordance with Section 11(1) and (2) of the Act. From a perusal of the relevant provisions of the statute, I find that the Chairperson of the Market Committee can be removed by the State Govt. under Section 11(2) of the Act of 1972 only after giving him an opportunity of explaining the charges brought against him, which exercise is admittedly, not yet completed. Having regard to the edict Section 11(2) of the Act of 1972, I deem it appropriate to close this writ petition by granting liberty to the petitioner to explain his stand before the Govt. as and when he is asked to do so. It is not is dispute that under the provision of the Act of 1972, the Chairperson of the Market Committee would continue in office until such time he is removed by the Govt. in accordance with Section 11(2) of the Act. as and when he is asked to do so. It is not is dispute that under the provision of the Act of 1972, the Chairperson of the Market Committee would continue in office until such time he is removed by the Govt. in accordance with Section 11(2) of the Act. It is, therefore, provided that the petitioner's functioning as the Chairperson shall not be disturbed until an order is passed by the Govt. under Section 11(2) of the Act. If the petitioner continues to remain aggrieved even thereafter, it would be open for him to approach this Court by filing a petition afresh. With the above observation, this writ petition stands disposed of." 9. With utmost respect, I am unable to persuade myself to agree with the view expressed by my learned brother in the order dated 02.02.2018. In my understanding, Sub-Section (1) of Section 11 of the 1972 Act is independent of Sub-Section (2). Sub-Section (1) and Sub-Section (2) visualizes two different situations and Sub- Section (1) is not dependant on Sub-Section (2). A Chairman or Vice-Chairman of a market committee can be removed either under Sub-Section (1) or under Sub-Section (2) of Section 11. They can be removed under Sub- Section (1) if a resolution is adopted by at least two-third of the total number of members of the market committee present and voting. In so far Sub-Section (2) is concerned, for the grounds and reasons mentioned thereunder which have been noted above, the State Government may remove a Chairman and Vice-Chairman, but before such removal, they should be given an opportunity to explain. 9.1. In other words, under Sub-Section (1) a Chairman or Vice-Chairman can be removed from office by the members of the market committee if the condition stipulated therein is fulfilled. On the other hand, power is also given to the State Government to remove a Chairman or Vice-Chairman on the grounds mentioned therein. Both the provisions operate in two different fields. But as per the order dated 02.02.2018, even after a Chairman or Vice Chairman is removed under Sub-Section (1), a further order of removal is required to be passed by the State Government under Sub-Section (2) of Section 11, which in my view may not be the correct interpretation of Section 11(1) and (2) of the 1972 Act. 10. But as per the order dated 02.02.2018, even after a Chairman or Vice Chairman is removed under Sub-Section (1), a further order of removal is required to be passed by the State Government under Sub-Section (2) of Section 11, which in my view may not be the correct interpretation of Section 11(1) and (2) of the 1972 Act. 10. In that view of the matter, order of the learned Single Judge dated 02.02.2018 may perhaps require reconsideration. 11. Thus, the following questions of law arise for consideration:- 1. Whether a Chairman or Vice-Chairman of a market committee who is removed under Sub-Section (1) of Section 11 of the 1972 Act is further required to be removed by the State Government under Sub-Section (2) of Section 11 of the said Act? 2. Whether the final order dated 2.2.2018 passed in WP(C) No. 368 of 2018 lays down the correct legal position? 12. Considering the above and the legal issue involved, I am of the view that this matter may be placed before a Division Bench for a conclusive pronouncement on the issue. 13. Registry to place the matter before Hon'ble the Chief Justice on the administrative side.