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2019 DIGILAW 781 (GAU)

Prabhat Kr Das v. State of Assam

2019-06-24

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Ms. NS Thakuria, learned counsel for the petitioners, Mr. B. Chakraborty, learned counsel appearing for the respondent No.9, Mr. SMT Chisti, learned counsel for the respondent No.4, Mr. RD Choudhury, learned Senior Government Advocate appearing for the respondent Nos.1 and 6 and Ms. P. Tamuli, learned counsel appearing for the respondent Nos. 2 and 3. 2. The respondent No.9 Md. Ataur Rahman was elected as the Chairman of the Guwahati Sub-Divisional Market Committee under the respondent Assam State Agricultural Marketing Board as per the first meeting of the committee held on 17.11.2017. The petitioners herein being dissatisfied with the functioning of the respondent No.9 Chairman had requisitioned a meeting of the committee by the letter dated 06.01.2018 calling for a discussion on a no confidence motion against the Chairman. Thereupon, a letter No.GSMC/Esstt/ 801/2016- 17/125 dated 20.01.2018 was issued by the Secretary of the Guwahati Sub-Divisional Market Committee informing the Vice-Chairman and the other members that the meeting so requisitioned was fixed on 25.01.2018. 3. The letter of 20.01.2018 of the Secretary was assailed by the respondent No.9 herein in a writ petition being WP(C) No.368/2018. In the WP(C) No.368/2018, an interim order dated 24.01.2018 was passed allowing the authorities to hold the meeting as fixed on 25.01.2018. Thereafter, the meeting was held on 25.01.2018 and the respondent No.9, who was the petitioner therein, was removed as the Chairman of the Sub-Divisional Market Committee. In the resultant situation, an issue had arisen as to whether the resolution for removal of the respondent No.9 as the Chairman require an approval of the Government under 11(2) of the Assam Agricultural Produce Market Act, 1972 (in short Act of 1972). To be precise, the issue that had arisen was as to whether Section 11(1) and 11(2) of the Act of 1972 are interlinked or they are independent of each other. Sections 11(1) and 11(2) are as follows:- "11(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. Sections 11(1) and 11(2) are as follows:- "11(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. 11(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 there under." 4. The learned Single Judge in his order dated 02.02.2018 while giving a final consideration to the said writ petition, had arrived at a conclusion that the Chairperson of the Sub-Divisional Market Committee would continue to remain in office till such time he is removed by the Government in terms of Section 11(2) of the Act of 1972. Upon considering the provisions of Sections 11(1) and 11(2), the learned Single Judge had arrived at his conclusion that the Chairman of the Sub-Divisional Market Committee can be removed by the State Government under Section 11(2) of the Act of 1972 only after giving him an opportunity of explaining the charges brought against him. 5. Accordingly, the writ petition was disposed of by the order of 02.02.2018 allowing the respondent No.9 herein to remain in the office till such time the appropriate order is passed by the State Government. 6. The present writ petition is preferred by the Vice-Chairman and the other members of the Sub-Divisional Market Committee who had moved the no-confidence motion against the respondent No.9 for the purpose of a direction to the State Government to give a final consideration to the resolution of no confidence passed by the Committee against the respondent No.9. 7. 6. The present writ petition is preferred by the Vice-Chairman and the other members of the Sub-Divisional Market Committee who had moved the no-confidence motion against the respondent No.9 for the purpose of a direction to the State Government to give a final consideration to the resolution of no confidence passed by the Committee against the respondent No.9. 7. While considering the present writ petition, the learned Single Judge by the order dated 26.03.2019 had arrived at a prima-facie conclusion that the provisions of Sections 11(1) and 11(2) of the Act of 1972 are independent of each other and therefore, after a resolution for removal of the Chairman is passed under Section 11(1) of the Act of 1972, there is no further requirement of the State Government to approve the same under Section 11(2) of the Act of 1972. 8. As there exists a divergence of view between the learned Single Judge in the order dated 02.02.2018 in WP(C) No.368/2018 and that of the prima-facie view taken by the learned Single Judge in the order dated 26.03.2019 in WP(C) No.8521/2018, two questions of law for a decision was framed in the order dated 26.03.2019 as to whether a Chairman or Vice Chairman of a Market Committee who is removed under Section 11(1) of the Act of 1972 is further required to be removed by the State Government under Section 11(2) of the Act of 1972 and further as to whether the final order dated 02.02.2018 passed in WP(C) No.368/2018 lays down the correct legal position. Accordingly, the matter stood referred to the Division Bench for its view. 9. In course of the argument, the learned counsel for the parties have produced before this Court the provisions of Rule-11 of the Assam Agricultural Produce Market General Rules 1975 (in short Rules of 1975), which had been framed under the Act of 1972. Rule-11 of the Rules of 1975 is as follows:- "11. Removal of Chairman or Vice-Chairman of the Committee:- Section 11(1) and 11(2)- (1) For the purpose of removal of the Chairman of the Committee at least two-thirds of the total number of members of the Committee shall give requisition of a meeting of the Committee to the Secretary of the Committee. Such requisition shall contain the reasons for which the members desire removal of the Chairman. Such requisition shall contain the reasons for which the members desire removal of the Chairman. (2) The Secretary of the Committee on receipt of the repulsion of the meetings for removal, of the Chairman shall convene the requisitioned meeting within 20 days from the date of receipt of the requisition. (3) The requisitioned meeting shall be presided over by the Vice-Chairman of the Committee or in the absence of the Vice-Chairman by any other member so elected by the members present for the purpose. The Chairman shall not be invited to attend such meeting. The quorum of such a meeting shall be two-thirds of the total numbers of members of the Committee. (4) The resolution for removal of the Chairman shall be moved by one of the members requisitioning the meeting and shall be supported by another or more members. (5) The resolution shall thereafter be discussed by the members and put to vote by the Chairman elected for the meeting. (6) The voting shall be by secret ballot stating for or against the resolution and the voting shall be conducted by the Secretary of the Committee. (7) Just after the closing of the voting the Secretary shall count the votes for or against and place the result before the Chairman of the meeting. The resolution shall be adopted by at least two-third majority of the total number of members of the Committee present and voting at the meeting convened for the purpose. (8) The Secretary of the Committee shall through Board Communicate the decision of the meeting convened for removal of the Chairman to the State Government for necessary action as per Section 11(2) of the Act. (9) For Removal of the Vice-Chairman of the Committee the procedure as stated in Sub-Rule (1) to (8) shall be applicable substituting the word 'Vice- Chairman" in place of 'Chairman' in these Sub-Rules." 10. We have taken note of that the provisions of Rule 11(1) to Rule 11(7), which provided for the procedure to be followed in conducting the meeting of the committee for passing the resolution of removal of the Chairman or Vice Chairman. But Rule 11(8) clearly provides that the Secretary of the committee shall through the Board communicate the decision of the meeting convened for removal of the Chairman to the State Government for necessary action as per Section 11(2) of the Act of 1972. 11. But Rule 11(8) clearly provides that the Secretary of the committee shall through the Board communicate the decision of the meeting convened for removal of the Chairman to the State Government for necessary action as per Section 11(2) of the Act of 1972. 11. We also take note of the provisions of Section 11(1) of the Act of 1972, which inter-alia provides that 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 the members present and voting at the meeting convened for the purpose, in the manner prescribed. The provision that the process for adopting the resolution has to be in the manner prescribes shows that the procedure to be followed had been prescribed and provided. Upon going through the provision of the Act of 1972 and the Rules of 1975, the only provision prescribing the procedure to be followed can be found under Rule-11 of the Rules of 1975. On a conjoint reading of Section 11(1) of the Act of 1972 and Rule-11 of the rules of 1975, we are of the view that the procedure provided under Rule-11 of the Rules of 1975 is mandatorily required to be followed while exercising the powers of removal of Chairman or Vice Chairman under Section 11(1) of the Act of 1972. 12. As the manner prescribed under Rule-11 of the Rules of 1975 clearly provides that after the decision in the resolution of the committee is taken, the same is required to be communicated to the State Government for doing the needful as per Section 11(2) of the Act of 1972, therefore, it is the requirement of Section 11(1) itself that it is for the State Government to take its final decision on the removal of the Chairman as provided under Section 11(2) of the Act of 1972. 13. As the writ petition is preferred for a direction to the Government authorities to take its decision on the resolution of removal passed against the respondent No.9, we deem it to be futile to again send back the matter to the learned Single Judge for passing the consequential order. 14. 13. As the writ petition is preferred for a direction to the Government authorities to take its decision on the resolution of removal passed against the respondent No.9, we deem it to be futile to again send back the matter to the learned Single Judge for passing the consequential order. 14. We also take note of the fact that in WP(C) No.368/2018, an interim order dated 24.01.2018 was passed, by which the Sub-Divisional Marketing Committee was allowed to go ahead with the meeting for considering the no confidence motion against the respondent No.9, but the result thereof be not acted upon. Accordingly, the meeting for no confidence was held on 25.01.2018. 15. We have been informed that the resolution of the meeting held on 25.01.2018 had in the meantime been transmitted by the Secretary of the Board to the appropriate authority under the State Government for its consideration. 16. Accordingly, as a conjoint reading of Section 11(1) of the Act of 1972 and Rule 11 of the rules of 1975 requires a final consideration to be given by the State Government to such resolution as provided under Section 11(2) of the Act of 1972, we direct the Commissioner and Secretary to the Government of Assam in the Agriculture Department to give a final consideration to the resolution dated 25.01.2018 and pass a final order thereon. The requirement of the Commissioner and Secretary be done within a period of one month from the date of receipt of a certified copy of this order. 17. The reference is answered accordingly and the writ petition stands disposed of in the above manner.