High Court
Legal Reasoning
1 Cr. W.P. 163 / 2022 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 163 OF 2022Balaji S/o Baliram Bande,Age : 58 years, Occu : Social Work,Member APMC Mukhedfrom Vividh Karyakari SevaSahakari Sanstha Mukhed,presently Vice-Chairman,R/o Shivaji Nagar, Mukhed,Tq. Mukhed, Dist. Nanded.. Petitioner Versus1] The State of Maharashtra, Through Secretary, Home Department, Mantralaya, Mumbai 400 0322] The Superintendent of Police, Nanded Dist. Nanded3] The Police Inspector, Police Station, Mukhed, Tq. Mukhed, Dist. Nanded4] Directorate of Marketing, Maharashtra State, Pune Central Building, 3rd Floor, Pune.. RespondentsWITHCRIMINAL APPLICATION NO. 1525 OF 2022(Khushal S/o. Shankarrao Patil and Anr.Vs.The State of Maharashtra and others)...Advocate for petitioner : Mr. S.B. GastgarAddl.PP for the respondent – State : Mr. M.M. NerlikarAdvocate for the applicants in 1525/2022 : Mr. D.J. Choudhary... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE : 16-02-2024JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule. Rule is made returnable forthwith. At thejoint request of the parties, the matter is heard finally at the stage ofadmission. 2 Cr. W.P. 163 / 2022 2.The petitioner is seeking following relief :“B] By issuing writ of Mandamus or any other writ, order or directionin the like nature direct the respondent No. 2 and 3 to registerF.I.R. against the concerned Board of Directors includingChairman, Vice-Chairman, Secretary and others who involved inallotment of total 106 plots during the year 2000 and 2001 fromSub-Market Committee Jamb (Bk.) Tq. Mukhed Dist. Nanded asper report dated 20.11.2020 forwarded by Police Station Mukhedto Superintendent of Police Nanded for further against theconcerned Board of Directors including Chairman, Vice-Chairman, Secretary and others who again in the year 2021illegally allotted 30 plots and conduct thorough investigation intothe matter. ”3.The learned advocate for the petitioner would take usthrough the record and would strenuously submit that there is rampantmisappropriation by the office bearers of the Agricultural ProduceMarket Committee (APMC), while allotting the plots to the members bydifferent lease deeds. He would submit that without having previoussanction under section 12(1) of the Maharashtra Agricultural ProduceMarketing (Development and Regulation) Act, 1963, the plots wereallotted by executing lease deeds for a meager amount of Rs.500/- peryear that too for 34 years. Agricultural land which was purchased bythe APMC was not even converted to non-agricultural use. Thepetitioner being member of APMC had reported the matter to Policeand enquiry has been conducted by the Police Inspector of MukhedPolice Station. He submitted report but still no criminal action has beeninitiated by registering the FIR. He would advert our attention to thereport of the Police Inspector (Exhibit – ‘O’). He would, therefore,submit that this is a fit case wherein this Court can exercise the powers 3 Cr. W.P. 163 / 2022 under Article 226 of the Constitution of India for directing registration ofthe crime.4.Learned advocate for the petitioner places reliance onDivision Bench decisions of this Court in :i) Raghunath S/o Tukaram Sonkamble Vs. The State of Maharashtraand others (Criminal Writ Petition no. 530 of 2018 decided on26 March 2019)ii) Rajabhau S/o. Shriram Phad Vs. The State of Maharashtra andothers (Criminal Writ Petition no. 1309 of 2018 decided on10 June 2019)5.Per contra, the learned APP would oppose the petition. Hewould submit that the allegations are in respect of functioning of theAPMC which is under supervision and control of the MarketingFederation. The Assistant Registrar of the Co-operative Societies hassubmitted the affidavit in reply on behalf of the respondent no. 4 who isa Director of Marketing, Maharashtra State. He would submit that theaffidavit is in detail and expressly mentions as to how sanction wasgranted to the lay out plan by the letter dated 09-07-2015 under section12(1) of the Act. If the petitioner was aggrieved by such allotment,remedy of appeal under section 52(B) was available before the Stategovernment. The petitioner never resorted to it.6.He would further submit that accounts of the marketingcommittee are audited annually by the auditors of the Co-operativeDepartment as mandated by rule 116(2) of the Maharashtra AgriculturalProduce Marketing (Development and Regulation) Rules, 1967. He
Legal Reasoning
4 Cr. W.P. 163 / 2022 would submit that it is the stand of the respondent no. 4 in the affidavitin reply that at the most, it could be a matter of some irregularity andnecessary steps are being taken to streamline the affairs of the APMCin question. He would specifically advert our attention to the statementin the affidavit in reply in paragraph no. 13, wherein, it has beenexpressly mentioned that no loss has been caused to the APMC andthere was no misappropriation.7.Learned APP Mr. Nerlikar would also advert our attentionto the Police report (Exhibit – ‘O’) and submits that even this reportdoes not indicate about there being any misappropriation or any losshaving been caused to the APMC.8.Lastly, the learned APP would submit that if at all thepetitioner is still interested in setting the criminal law in motion, he canresort to appropriate efficacious remedy of filling a private complaintunder section 200 of the Code of Criminal Procedure or by soliciting adirection under section 156(3) of the Code of Criminal Procedure.9.Having heard both the sides and having perused therecord, in our considered view, the petition is without any merits.10.All the allegations are in respect of the functioning of theAPMC, Mukhed and the alleged misappropriation in allotment of theplots. True it is that in the Police report (Exhibit – ‘O’), the concernedPI has mentioned that the then chairman and secretary of the APMC 5 Cr. W.P. 163 / 2022 had purchased the land without the permission of the Director ofMarketing. There was no mutation. There was no lay out and the plotswere allotted without previous sanction. Though according to the readyreckoner, valuation of the land was Rs.1,71,000/-, the chairman andthe secretary of the APMC valued the land at Rs.45,000/- and therebyhas cheated the State government and the APMC. It also mentionsthat when it was expected that each land holder would be liable to paydevelopment charges @ Rs.10,000/-, lesser development charge wasrecovered in respect of the same. Even the development chargeswere not recovered and consequently, there was a loss of thegovernment and the APMC to the tune of Rs.6,65,000/-.11.As is pointed out by the learned APP, Director of Marketingwhich was added subsequently as respondent no. 4 in view of thepeculiar state of affairs. The affidavit filed on its behalf clearly refutesany loss or misappropriation. This affidavit in paragraph no. 13 and 14mentions as under:-“13. I say and submit that, as provided under Rule 116 Sub-rule (6A), theAuditor shall Report to the Committee and the Director of the officesauthorized by him, in this behalf, any material defect or irregularityobserved by him in the expenditure or in the recovery of money due tothe Committee on in the accounts of the committee and any loss, wasteor misappropriation of moneys or other property, owned by or vested inthe committee, if such loss is a direct consequence of neglect ormisconduct of persons or person directly or indirectly Responsible forsuch loss, waste or misappropriation. The Auditor shall send a copy ofsuch report to the Director.I further say and submit that, the office of Respondent No. 4 hasnot received any report under sub rule [6A] of rule 116 from GovernmentAuditor during the period 01.04.2000 to 31.03.2022. Hence, it can beinferred that no material defects showing any loss, waste ormisappropriation of moneys or other property owned by A.P.M.C. 6 Cr. W.P. 163 / 2022 Mukhed is brought to the notice of Respondent No. 4. Hence, it is crystalclear that, the charges levelled by the petitioner are vague and baselessand no criminal action is required in absence of any statutory reportunder Sub rule [6A] of rule 116.14. I say and submit that, the annual statutory audit of the A.P.M.C.Mukhed for the year 2022-2023 is not completed yet. It is submitted that,all the issues raised by the petitioner will be communicated to theGovernment Auditor for inspection during the course of Audit and actionif any required, shall be taken after receipt of statutory audit report.”12.It is to be noted that even the respondent no. 4 has noinhibition, rather expressly mentions that he could initiate action if it isso required, pursuant to some statutory report submitted under Rule116 sub rule 6(1) of the APMC Rules. This clearly demonstrates thatas of now even the respondent no. 4 who is the Director of Marketing isnot averse to initiation of action provided there is a statutory auditreport. However, he is emphatic in stating that as of now there is noreport regarding any misappropriation albeit he admits that there areseveral irregularities which he even seeks to rectify.13.In our considered view, the petitioner is not entitled to seekany benefit from the orders passed by this Court in the case ofRaghunath S/o Tukaram Sonkamble and Rajabhau S/o. ShriramPhad (supra). The facts in those matters were peculiar which areconspicuously absent in the matter in hand. Rather, in the peculiarfacts and circumstances that this Court had exercised the power underArticle 226 of the Constitution of India in directing registration of thecrime. However, those orders do not lay down any ratio which could beresorted to as is being submitted on behalf of the petitioner.
Decision
7 Cr. W.P. 163 / 2022 14.In view of such peculiar state of affairs and the stand beingtaken by the respondent no. 4, in our considered view, no writ can beissued directing registration of crime for the present.15.The petition is dismissed.16.The money deposited by the petitioner pursuant to theorder of this Court, for entertaining the petition, shall be refunded tohim immediately.17.Rule is discharged.18.Criminal Application no. 1525 of 2022 is disposed of. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/