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2024 DIGILAW 807 (ALL)

Rajendra Kumar Mishra v. State of U. P.

2024-03-14

ANJANI KUMAR MISHRA, JAYANT BANERJI

body2024
JUDGMENT : 1. Short counter affidavit filed today in the Court is taken on record. 2. Heard learned counsel for the petitioner and learned counsel appearing for the Mandi Parishad at length. 3. Under challenge in the present petition are the orders dated 22.7.2022 passed by the respondent No. 2, Director, State Krishi Utpadan Mandi Parishad, U.P. Kishan "Mandi Bhawan" Bibhuti Khand, Gomati Nagar, Lucknow, passed in revision No.10 of 2022 (Kripa Shankar Pandey Vs. Secretary, Utpadan Mandi Samiti, Prayagraj), and the order dated 21.3.2023 passed by the respondent No. 2 on a recall application filed by the petitioner for recalling the aforesaid order dated 22.7.2022. 4. The contention of learned counsel for the petitioner is that the petitioner is a partner of a firm by the name of M/s Vikas Trading Company, with the other partner being the respondent No. 4, Kripa Shankar Pandey. It is stated that license for running the business was granted by Krishi Utpadan Mandi Samiti, Mundera, Prayagraj in 1991 in the name of the firm and since then business of the firm was being carried out in the allotted shop, the license being renewed from time to time. It is stated that in the year 2019, the respondent No. 4 illegally applied for renewal of the license in the name of the firm but projected himself as the proprietor of the firm without knowledge of the petitioner. It is stated that in view of the dispute so occasioned, the matter came to be considered by the Secretary, Krishi Utpadan Mandi Samiti, Mundera, Prayagraj, respondent No. 3, who, by an order dated 15.6.2022, held that the firm M/s Vikas Trading Company is a partnership firm in which the petitioner and respondent No. 4 are partners and the respondent No. 4 would permit the petitioner to sit in the shop and carry on his commercial activities from there. It is stated that thereafter, the respondent No. 3 issued a license only in the name of the petitioner with effect from 1.7.2019 to 30.6.2024. 5. The respondent No. 4 then filed the aforesaid revision without making the petitioner a party. By the impugned order dated 22.7.2022, an illegal and ex parte order was passed by the respondent No. 2 without affording any opportunity of hearing to the petitioner. 5. The respondent No. 4 then filed the aforesaid revision without making the petitioner a party. By the impugned order dated 22.7.2022, an illegal and ex parte order was passed by the respondent No. 2 without affording any opportunity of hearing to the petitioner. Learned counsel has emphasized that denial of opportunity of hearing to the petitioner by the revisional authority has caused prejudice to the petitioner and as such the order is wholly illegal and deserves to be set aside. It is stated that even otherwise, against the order of the Secretary, an appeal would lie under Section 25 of the Uttar Pradesh Krishi Utpadan Mandi Act, 1964,[Act, 1964] and the revision itself was not maintainable. 6. It has been argued by the learned counsel for the petitioner that under the provisions of the Act, 1964, the revisional authority is the Board constituted under Section 26-A of the Act, 1964. No delegation of the revisional powers of the Board has been made and, therefore, the order passed by the respondent No. 2 is without jurisdiction. It is further stated that the Secretary is Chief Executive Officer, who is competent to issue a license as provided in sub-section (2) of Section 9 of the Act, 1964 and, accordingly, the order dated 15.6.2022 issued by the respondent No. 3 is a valid order and the revisional authority ought not to have interfered in the order. 7. A short counter-affidavit of the respondent No. 3 has been filed by the learned counsel appearing for the Krishi Utpadan Mandi Samiti. In the short counter-affidavit, an order of the Board bearing No. 1/252/84-6830 dated 21.3.1974 has been enclosed. It appears therefrom that the revisional powers of the Board have been delegated to the Director in exercise of powers under Section 33 of the Act, 1964. With regard to the authority of the Secretary alone to pass the order dated 15.6.2022, in paragraph No. 4 of the short counter affidavit it has been submitted that that order was passed by the Secretary without any power being delegated to him. 8. Learned counsel for the petitioner has not been able to dispute the aforesaid order of the Board dated 21.3.1974 delegating certain powers provided under various provisions of the Act, 1964 to the Director. 8. Learned counsel for the petitioner has not been able to dispute the aforesaid order of the Board dated 21.3.1974 delegating certain powers provided under various provisions of the Act, 1964 to the Director. Learned counsel for the petitioner has also not been able to show any material to demonstrate that the Secretary, respondent No. 3 had the authority to pass the order dated 15.6.2022. 9. As a matter of fact, under sub-section (2) of Section 9 of the Act, 1964, it is the committee constituted under the Act, 1964 that is authorized to grant license to a person. Under Section 17 of the Act, 1964 the powers of the Committee include issuance or renewal of license and conditions and restrictions thereof, suspension or cancellation of license issued or renewed under the Act and to levy and collect specified fees. The functions, powers, and duties of the Secretary are specified in Section 24, which reads as follows: "24. Functions, Powers and duties of the Secretary.- (1) The Secretary of a Committee shall be its chief executive officer, and shall, subject to the provisions of this Act, perform such functions, exercise such powers and discharge such duties, as may be prescribed, or provided for in the bye-laws or as the Board or the Director, may, by order in writing direct; Provided that when more than one secretaries are posted in a Committee, the Director shall nominate one of the Secretaries to be its Chief executive officer and shall determine the functions to be performed, powers to be exercised and duties to be discharged by each of them. (2) Without prejudice to the generality of the foregoing provisions, but subject to the provisions of this Act and the rules and bye-laws made thereunder the Secretary shall — (a) exercise all powers of superintendence and control over — (i) all officers and servants of the Committee so as to ensure proper and efficient discharge of the duties assigned to them by or under this Act ; and (ii) the affairs of the Committee ; (b) report cases of neglect, misconduct or dereliction of duty by an employee of the Committee to the appointing authority for necessary action, and where so empowered, take disciplinary action against any of the employees of the Committee. (c) ensure proper execution of all orders issued by the Board, the Chairman or the Committee; (d) ensure proper maintenance of — (i) accounts of all moneys received and of all moneys expended for and on behalf of the Committee ; (ii) records of disputes coming up for decision under this Act or the rules or bye-laws framed thereunder ; and (iii) a record of the disputes settled by him in such form as may be prescribed. (3) All licenses under this Act shall be issued under his signatures." 10. The functions, powers, and duties of the secretary are prescribed in Rule 63 of the U.P. Krishi Utpadan Mandi Rules, 1965, which reads as follows: "63. Functions, Powers and Duties of the Secretary [Section 24].— (1) The Secretary shall be the Chief Executive Officer of the Market Committee and shall carry into effect the resolutions of the Market Committee. (2) All other Officers and Servants of the Committee shall be subject to his control. He shall also be responsible for directing their work in such manner as to ensure proper and efficient working of the Market Committee. (3) It shall be the duty of the Secretary to supervise the work of the Officers and Servants of the Committee and to take necessary disciplinary action against any of the Officers and Servants of the Committee for their neglect, misconduct, dereliction of duty etc., subject to the approval of the Chairman or the Committee. (4) The Secretary shall be responsible for the proper execution of all orders issued by the Chairman of the Committee. He shall take or cause action to be taken against any of the Officers and Servants of the Committee in accordance with the directions given by the Chairman of the Committee. (5) Subject to the control of the Chairman, or in his absence of the Vice-Chairman of the Market Committee, the Secretary shall be responsible for maintaining proper accounts of money received and/or expended for or on behalf of the Committee. (6) The Secretary shall conduct all routine correspondence and attend to other office work and all correspondence with the Director or Officers subordinate to the Director shall be conducted through, the Chairman or with the previous approval of the Chairman. (6) The Secretary shall conduct all routine correspondence and attend to other office work and all correspondence with the Director or Officers subordinate to the Director shall be conducted through, the Chairman or with the previous approval of the Chairman. (7) The Secretary shall be responsible for maintaining complete records of all the disputes which come up for decision before the Disputes Sub-Committee in such manner as may be specified in the bye-laws of the Committee. (8) The Secretary shall maintain a record of the disputes settled by him in the form and manner as may be specified in the bye-laws of the Committee. (9) On receipt of a complaint either written or oral regarding any matter concerning sale or purchase of specified agricultural produce, in the Market Area, the Secretary shall conduct an enquiry and shall make a report of the same to the Chairman for taking such action as he may think necessary, in accordance with the provisions of the Act, these rules and the bye-laws. (10) It shall be the duty of the Secretary to ensure that proper payments to sellers in the Market Yards are made and no irregularities in making weighmen of the specified agricultural produce, in the Market Yards are committed. (11) The Secretary shall advise the Committee and its Chairman in all matters relating to the regulation of the sale and purchase of agricultural produce, in the light of the provisions of the Act, these rules and the bye-laws framed thereunder and his opinion shall be recorded in the proceedings of the Committee. (12) The Secretary shall grant casual leave to the Officers and Servants of the Committee. For other kinds of leave, the Secretary shall recommend the same to the Chairman who shall take action to sanction such leave in accordance with the leave rules applicable to Officers and Servants of the Committee. (13) The Secretary shall submit to the Chairman by thirtieth April each year his annual confidential remarks in respect of the work and worth of the Officers and Servants appointed by the Committee. (14) The Secretary shall submit to the Chairman his recommendations in respect of the annual increments of the Officers and Servants appointed by the Committee within thirty days from the date any such increment falls due. (14) The Secretary shall submit to the Chairman his recommendations in respect of the annual increments of the Officers and Servants appointed by the Committee within thirty days from the date any such increment falls due. (15) The Secretary shall, on the orders or with the prior approval of the Chairman or on the orders of Director, call meetings of the Market Committee and shall have the right to attend, speak at, and otherwise take part in the Meeting of the Committee: Provided that the Secretary shall not have the right to vote in the Meetings of the Committee.” 11. No resolution or order of the Committee has been shown that authorized the Secretary to pass the order dated 15.6.2022. As a matter of fact, with regard to the licenses, sub-section (3) of Section 24 provides that all licenses under the Act shall be issued under the signature of the Secretary. Disputes with regard to the licenses cannot be decided by the Secretary without an appropriate and approved resolution being passed by the Committee. 12. A perusal of the impugned revisional order dated 22.7.2022 passed by the respondent No. 2 reflects that it has solely considered the jurisdiction of the respondent No. 3, Secretary, in passing the order dated 15.6.2022 and has held that in the eyes of law, the order passed by the Secretary is not correct. It was observed that with regard to the partnership firm there is a dispute as to its ownership and neither in the Act nor in the Rules is there any provision for the Secretary to pass such an order. It is mentioned in the order that whether the nature of the firm is that of partnership or proprietorship is within the jurisdiction of the competent court, and, accordingly, the order dated 15.6.2022 was set aside. 13. Further on the recall application filed by the petitioner, the impugned order dated 21.3.2023 was passed in which it was observed that in the order dated 22.7.2022, the dispute between the parties with regard to the partnership was observed to be taken to the competent court where all relevant issues could be raised and, therefore, there was no reason to file the recall application. Accordingly, the application was rejected. 14. Accordingly, the application was rejected. 14. The contention of learned counsel for the petitioner is that the revisional court could not decide the matter, as a right of appeal lay under Section 25 of the Act, is misplaced. As is evident from the record, that the Director exercising revisional jurisdiction under Section 32 of the Act, 1964, has dealt only with the question of jurisdiction of the respondent No.3, Secretary, to pass the order dated 15.6.2022, and has held that he has no jurisdiction. The order dated 15.6.2022 was, accordingly, set aside. In the circumstances, the order passed by the respondent No. 2 is justified and is upheld. 15. With regard to the argument that no opportunity of hearing was afforded by the revisional authority while passing the impugned order, the petitioner had to demonstrate that any real prejudice has been caused to him by the order impugned. As noted above, the revisional authority has dealt with the aspect of only the jurisdiction of the respondent No. 3 to pass the order dated 15.6.2022. The petitioner has not been able to demonstrate before this Court that the Secretary had jurisdiction to decide the dispute of grant of license to the partnership firm, as was sought to be done by the order dated 15.6.2022. Under the circumstances, it is held that no prejudice was caused to the petitioner by not affording him any opportunity of hearing. 16. Therefore, on the admitted and undisputed facts, given the admission made in the short counter affidavit, only one conclusion is possible that is that order of the secretary dated 15.6.2022 cannot be sustained. No other conclusion is possible. Further, it is important to note that interference in the matter, that is to say, quashing of the order passed in revision by the Director, respondent No.2, would result in revival of the order dated 15.6.2022 which is ex-facie without jurisdiction. Under the circumstances the impugned order requires no interference. [Ref: Aligarh Muslim University and others Vs. Mansoor Ali Khan (2000) 7 SCC 529 ] 17. In view of the reasons afforded, interference in the matter is declined and this petition is, accordingly, dismissed.