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2020 DIGILAW 1267 (KAR)

C. Narendra Babu v. State Of Karnataka

2020-06-29

S.R.KRISHNA KUMAR

body2020
JUDGMENT S.R.Krishna Kumar, J. - W.P.No.6772/2020 is filed by the petitioner seeking quashing of the impugned order dated 21.04.2020 vide Annexure-C passed by the 3rd respondent Department of Agricultural Marketing of the State of Karnataka and for a direction to the respondents 1 to 3 to continue the elected existing committee of 4th respondent and for other reliefs. W.P.No.7197/2020 is filed by the petitioner seeking to quash the aforesaid order dated 21.04.2020 as well as the subsequent order dated 30.40.2020 (Annexure-D). In this petition, petitioner has also sought for a direction to the respondents 1 and 2 to extend the benefits to the Market Committee of which the petitioner was a Chairman in terms of the Government Order dated 21.03.2020 (Annexure-B) issued by the State Government in respect of co-operative societies/Banks and for other reliefs. 2. Brief facts giving rise to the present petitions are as follows:- (i) Pursuant to an election held on 16.01.2015, Sri.C.Narendra Babu (petitioner in W.P.No.7197/2020) and Sri.V.Somashekar (petitioner in W.P.No.6772/2020), were elected as members of the Bangalore Fruit and Vegetable (Spl.) Agricultural Produce Market Committee under the provisions of the Karnataka Agricultural Produce Marketing (Regulation & Development), Act 1966 (for short 'the APMC Act'). While the aforesaid Sri.C.Narendra Babu as elected as the Chairman of the said Committee on 10.07.2019, Sri.V.Somashekar remained only a member of the committee. The term of five (5) years of the said committee was commenced on 24.04.2015 when the first meeting was held and the said term came to an end on 23.04.2020 in accordance with Sections 38 and 39 of the APMC Act. (ii) Prior to expiry of the term, the Director of the Department of Agricultural Marketing wrote a letter dated 20.01.2020 to the Deputy Commissioner (Revenue), Bengaluru, requesting him to conduct elections to the said committee. Pursuant thereto, the Deputy Commissioner not only got published the final voters list on 19.02.2020 as required by Rule 5 of the APMC Rules, 1968, but also prepared a rough draft notification dated 24.02.2020 containing the calendar of events. (iii) Further steps could not be taken to conduct the elections, in view of Covid-19 exigency and the term of the committee was coming to an end on 23.04.2020. (iii) Further steps could not be taken to conduct the elections, in view of Covid-19 exigency and the term of the committee was coming to an end on 23.04.2020. Under these circumstances, invoking Section 42(2) of the APMC Act, the Department of Agricultural Marketing passed the impugned order dated 21.04.2020 appointing the Tahsildar to exercise the powers and perform the functions of the Market Committee from the date of expiry of the term of the committee i.e., from 23.04.2020 onwards until the Market committee is reconstituted and its Chairman is elected. Subsequently, invoking the proviso to Section 42(2), the Director of Agricultural Marketing passed the impugned order dated 30.04.2020 appointing the Addl.Director, Law Enforcement Cell, Department of Agricultural Marketing in the place of Tahsildar. (iv) Meanwhile, by Order dated 19-3-2020 (Annexure-B in W.P.7197/2020), the State Government took a decision to postpone holding of elections in respect of co-operative societies and co-operative banks having regard to the covid-19 exigency until further orders. Under the said order, the State Government also directed the existing management/administrative committees of the said co-operative societies and co-operative banks to continue till fresh elections are conducted and the newly elected bodies come into existence. Further, on 28-5-2020, the State Election Commission has issued a press release stating that elections to all gram panchayats in the state would be postponed on account of the covid-19 exigency. 3. W.P.No.6772/2020 was filed on 11.05.2020. However, the order dated 30.04.2020 was not impugned in this petition and neither was it referred to by the petitioner and the challenge made in this petition was only in respect of the earlier order dated 21.04.2020 appointing the Tahsildar. This petition came up before this Court on 13.05.2020, on which day, this Court passed the following order:- "In view of the above, it is appropriate to direct the Tahsildar to take up day today administrative matters of the fourth respondent and he shall not take any policy decision and shall ensure the conduct of the election in terms of the bye-law and in terms of relevant provisions of the Act and Rules as soon as lifting of lock down imposed on account of spreading of Covid-19 in the country". 4. Pursuant to the said order passed by this Court, the Tahsildar has once again assumed charge of the said Market Committee. 5. 4. Pursuant to the said order passed by this Court, the Tahsildar has once again assumed charge of the said Market Committee. 5. In this context, it is relevant to state that aforesaid order was passed by this Court directing the Tahsildar to administer the committee since the subsequent order dated 30.04.2020 was not brought to the notice of the Court by either side. 6. Subsequently, W.P.No.7197/2020 was filed challenging both orders dated 21.04.2020 and 30.04.2020 and for other reliefs. 7. When W.P.No.7197/2020 came up before this Court and submissions were made by the learned counsel for the petitioner that there were three mutually inconsistent orders passed by the Department of Agricultural Marketing and this Court, this Court was of the opinion that instead of examining the said issue, it would be appropriate to hear and dispose of both the matters together. Accordingly, both matters were tagged with each other and taken up for final disposal. 8. I have heard the learned counsel for the petitioners and learned Addl.Advocate General for the respondents. I have also heard the learned counsel for 4th respondent in W.P.No.7197/2020 and perused the material on record. 9. Learned counsel for the petitioners submit that Sections 38 and 39 of the APMC Act mandate that much prior to expiry of the term of five (5) years of the committee, the State Government was duty bound to take all necessary steps to ensure that elections were conducted and the newly elected body was in place. It is contended that it is well settled in Election law that there should not be a gap / vacuum between expiry of the term of an elected body and the newly elected committee assuming charge. The State Government was not entitled to postpone elections unless the same was on account of exceptional or unavoidable circumstances. Section 13 (4) of the APMC Act does not permit postponement of the elections but it only allows the State Government to postpone the poll i.e., voting in the elections. It is therefore contended that the State Government having not conducted elections prior to the term of the committee coming to an end as mandatorily required under Sections 38 and 39 of the APMC Act, the impugned orders dated 21.04.2020 and 30.04.2020 are vitiated and the same deserve to be set aside. 10. It is therefore contended that the State Government having not conducted elections prior to the term of the committee coming to an end as mandatorily required under Sections 38 and 39 of the APMC Act, the impugned orders dated 21.04.2020 and 30.04.2020 are vitiated and the same deserve to be set aside. 10. Learned counsel further submits that it was not in dispute that on 19.03.2020, the State Government took a decision not only to postpone elections in respect of cooperative societies and co-operative banks, the Government also directed the existing committees to continue even after expiry of their term till fresh elections were held having regard to the Covid-19 exigency. It was contended that the APMC Act and the committee formed thereunder stand on the same footing as a co-operative society particularly when both were under the control of the co-operative department which had the same Minister. In other words, it is contended that the APMC committee is to be construed / treated as a co-operative society for all practical purposes and consequently, the benefit extended to a co-operative society under the aforesaid order dated 19.03.2020 is to be extended to the APMC committee also on the doctrine of parity. It is also contended that the State Government has postponed the elections to all local bodies and local boards having regard to the Covid-19 exigency. 11. In this context, it is contended that since the APMC committee and the other statutory bodies / boards / co-operative societies / co-operative banks stand on the same footing, non-inclusion of the APMC committees in the order dated 19.03.2020 amounts to hostile discrimination particularly when the APMC committees were legitimately expecting to be treated in a similar manner having regard to the prevailing Covid-19 exigency. It is therefore contended that since the APMC committee was entitled to the benefit of doctrine of parity qua Covid-19 exigency, the APMC committee was entitled to continuation till fresh elections are held for constitution of a new committee. Under these circumstances, it is submitted that the impugned orders dated 21.04.2020 and 30.04.2020 invoking the provisions contained in Section 42(2) of the APMC Act without taking into account the doctrine of parity are vitiated and the same deserve to be quashed by this Court. 12. In support of their contentions, learned counsel for the petitioners has placed reliance on the following decisions in both the writ petitions:- 1. 12. In support of their contentions, learned counsel for the petitioners has placed reliance on the following decisions in both the writ petitions:- 1. Ugar Sugar Works Limited Vs Delhi Administration and others, (2001) 3 SCC 635 ; 2. Federation of Railway Officers Association and others Vs Union of India, (2003) 4 SCC 289 ; 3. D.N.Jeevaraj Vs State of Karnataka, (2016) 2 SCC 653 ; 4. Badrinath Vs Government of Tamil Nadu and others, (2000) 8 SCC 395 ; 5. Vidarbha Nagarpalika Parishad vs. State of Maharashtra And Ors. Etc, (1986) AIR Bombay 147 ., on 22 July, 1985 - 6. Kishan Singh Tomar Vs Municipal Corporation of the city of Ahmedabad & others, (2006) 8 SCC 352 ; 7. A.V. Muniswamy Vs State of Karnataka - W.P.No. 18744 & 16208 of 1984; 8. Sri. Manjunath G and others Vs The State of Karnataka Department of APMC and others, (2017) ILR(Kar) 227 ; 9. Katrappa Haldal and etc, Vs State of Karnataka and others, (1984) AIR Karnataka 34 ; 10. U.P Viswas Evam Vikas Parishad Vs Gyam Devi (dead) by Lrs and others, (1995) 2 SCC 326 ; 13. Per contra, learned Addl.Advocate General submitted that the provisions of Section 42(2) contain a non obstante clause which operates and permits the Tahsildar to take over the management of the APMC committee immediately upon the expiry of the term of the committee. It is submitted that Section 42(2) operates by default and the same is a stand alone / independent / exclusive provision which permits the Tahsildar to take over the management of the committee. In fact, no separate order such as the order dated 21.04.2020 even needs to be passed by the State Government and all that the said order did was to confirm the fact that in view of the undisputed position that term of the committee was coming to an end on 23.04.2020, the Tahsildar was assuming charge of the management of the committee with effect from that date. Similarly, the order dated 30.04.2020 appointing the Director by virtue of the proviso to Section 42(2) of the APMC Act was passed. It is therefore contended that both the orders were passed strictly in accordance with the provisions of Section 42(2) and no fault can be found with the same. 14. Similarly, the order dated 30.04.2020 appointing the Director by virtue of the proviso to Section 42(2) of the APMC Act was passed. It is therefore contended that both the orders were passed strictly in accordance with the provisions of Section 42(2) and no fault can be found with the same. 14. Learned AAG further submitted that the petitioners did not have a vested right over the post of a member of the committee particularly when the term of the committee had come to an end by efflux of time. In this context, it is submitted that mere failure on the part of the State Government to conduct elections as required under Sections 38 and 39 of the APMC Act will not enure to the benefit of the petitioners to contend that the impugned orders passed under Section 42(2) of the APMC Act are illegal or arbitrary. He further submits that elections could not be held for the obvious reason i.e., Covid-19 exigency which is nothing but a vis major event. It is further submitted that the State has no intention in indefinitely postponing the elections to the APMC committee. In fact, learned AAG undertook before this Court that the State Government would conduct elections as soon as possible after Covid-19 exigency comes to an end in our State. Under these circumstances, it is submitted that the petitioners are not entitled to take advantage of this exigency and resume their term till elections are held despite being fully aware that the State Government is not a position to conduct elections and as such, the reliefs sought for by the petitioners were liable to be rejected. 15. In so far as the claim of the petitioners for parity with co-operative banks / co-operative societies is concerned, learned AAG submitted that the decisions taken by the State Government to postpone elections and to continue the previously elected committees to function on account of Covid-19 exigency was purely a policy decision taken by the State Government only in respect of the cooperative societies / co-operative banks that were the subject matter of the said policy decisions. Before taking the said policy decisions, all the factors were taken into account by the State Government. Before taking the said policy decisions, all the factors were taken into account by the State Government. The various parameters considered by the State Government before taking the said policy decisions are completely different from the parameters in respect of the APMC committee of which the petitioners are members. It is therefore contended that the APMC committee and the co-operative societies / cooperative banks stand on completely different footing and as such, the question of invoking the doctrine of parity does not arise. So also, neither is the principle of hostile discrimination nor legitimate expectation applicable to the facts of the instant case particularly when no request in this regard seeking parity has been made by the petitioners prior to filing the present petition. He submits that Courts should not interfere or review policy decisions of the Government and the said prayer made by the petitioners in W.P.No.7197/2020 is liable to be rejected. In support of his contentions, the learned AAG placed reliance on the following decisions:- 1. entitled Uttar Pradesh Power Corporation Ltd., Vs. Ayodhya Prasad Mishra and another, (2008) 10 SCC 139 (paragraphs 36,37,40); 2. entitled State of Uttar Pradesh & others vs. Chowdhary Randeer Singh and another, (2008) 5 SCC 550 (paragraph 13); 17 3. entitled Madhya Pradesh Ration Vikreta Sangh Society vs. State of Madhya Pradesh, (1981) AIR SC 2001 (paragraph 8); 4. entitled Union of India and another vs. J.D.Suryavamshi, (2011) 13 SCC 167 (paragraph 9 to 12); 5. entitled M/s. Laxmi Ratan Cotton Mills Ltd., vs. State of Uttar Pradesh and others, (2009) AIRSCW 20 .(paragraph 16); 6. entitled Dilipkumar Garg and another vs. State of Uttar Pradesh and others, (2009) 4 SCC 753 (paragraphs 15 & 16); 7. Balco Employees Union (Regd). Vs. Union of India, (2002) 2 SCC 333 ; 8. Directorate of Film Festival vs. Gourav Ashwin Jain, (2007) 4 SCC 737 (paragraph 16); 9. Sri. Manjunath G and Others vs. The State of Karnataka, Department of APMC and others, (2017) ILR(Kar) 227 . 16. Balco Employees Union (Regd). Vs. Union of India, (2002) 2 SCC 333 ; 8. Directorate of Film Festival vs. Gourav Ashwin Jain, (2007) 4 SCC 737 (paragraph 16); 9. Sri. Manjunath G and Others vs. The State of Karnataka, Department of APMC and others, (2017) ILR(Kar) 227 . 16. Before adverting to the rival contentions, it is necessary to bear in mind that it is trite law that ordinarily, a policy decision of the Government cannot be the subject matter of judicial review unless it is shown to be arbitrary, irrational, unreasonable, discriminatory, malafide or an outcome of colorable exercise of power as held by the Apex Court and this Court in several decisions referred to supra. 17. The material on record in the instant case indicates that the foundation/basis of all the claims/contentions of the petitioners is the aforesaid Order dated 19-3-2020 passed by the State Government whereby it was resolved that elections to co-operative societies and co-operative banks would stand postponed and that the existing management/administrative committees thereof would continue till fresh elections are conducted and the newly elected bodies come into existence. A perusal of the said order will also indicate that the same is clearly a policy decision taken by the State Government. 18. Indisputably, as on 19-3-2020 when the said order was passed, neither had the term of the instant APMC committee expired nor had the impugned order dated 21-4-2020 been passed. Further, petitioners had not even put forth their claims for parity etc., before the State Government either prior to 19-3-2020 or even thereafter as on until they filed the present petitions challenging the orders dated 21-4-2020 and 30-4-2020. In other words, no representation/claim was submitted or put forth by the petitioners before the State Government and its authorities either prior to the order dated 19-3-2020 or the orders dated 21-4-2020 and 30-4-2020 so as to vitiate the said orders. 19. It is also relevant to state that the order dated 19- 3-2020 is not sought to be quashed in these petitions and on the other hand, petitioners place reliance and seek support from the said order in support of their contentions. 19. It is also relevant to state that the order dated 19- 3-2020 is not sought to be quashed in these petitions and on the other hand, petitioners place reliance and seek support from the said order in support of their contentions. In the light of these facts and circumstances, I am of the considered opinion that all the claims/contentions put forth/urged by the petitioners in the instant writ petitions and the reliefs' sought for by them are clearly premature and not permissible in law. Accordingly, petitioners are not entitled to any relief in the present petitions. 20. However, it is open for the petitioners to submit a representation to the respondents ventilating their grievances and in the event the same are not addressed by the State Government, petitioners would be entitled to approach this Court for suitable reliefs available in law. Under these circumstances, without expressing any opinion on the merits of the claims/contentions urged on behalf of the petitioners, I am of the view that the present petitions are premature and the petitioners would be entitled to submit suitable representation to the State Government to consider their claims/grievance. Upon such representations being submitted to the Government, the authorities concerned would be bound to consider the same and pass suitable orders in accordance with law. 21. In the result, I pass the following:- ORDER Both the writ petitions are disposed off with the directions as indicated hereunder; (i) Liberty is reserved in favour of the petitioners to submit a representation to the State Government and put forth all their claims and contentions and seek redressal of all their grievances. (ii) If such representations are made by the petitioners, the State Government is directed to consider the same and pass appropriate orders in accordance with law and the observations made in this order within a period of two weeks from the date of receipt of the representations. (iii) It is directed that the State Government shall hold the elections in respect of the Bangalore Fruit and Vegetable (Spl.) Agricultural Produce Market Committee at the earliest after the Covid-19 exigency comes to an end. (iv) It is also directed that till the elections are conducted and a new committee assumes charge, the Tahsildar who was appointed vide order dated 21.04.2020 shall manage only the day to day administrative affairs of the APMC committee without taking any policy decisions. (iv) It is also directed that till the elections are conducted and a new committee assumes charge, the Tahsildar who was appointed vide order dated 21.04.2020 shall manage only the day to day administrative affairs of the APMC committee without taking any policy decisions. (v) All rival contentions between the parties are kept open. No order as to costs.