Writ Petition No. 7626 of 2024 · Bombaybench High Court
Case Details
2025:BHC-AUG:17243 17626.2024WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7626 OF 2024 The Agriculture Produce Market Committee, Latur, through its Incharge Secretary, Satish S/o Tatyarao Bhosale Aged 50 years, Occ : Service, R/o Latur, Tq. & Dist. Latur. ..PETITIONER VERSUS1.The State of Maharashtra, Through the Secretary, In the Department of Agricultural Marketing, Mantralaya, Fort, Mumbai-32. 2.The Director of Marketing, Maharashtra State, Central building, Pune. 3.The District Deputy Registrar, Co-operative Societies, Latur, Tq. & Dist. Latur. 4.The M/s. Siddhant Trading Company, Through its Proprietor, Laxmiraman S/o Narayandas Bhutada, Age : 61 years, Occ : Business, R/o Moti Nagar, Latur, Tq. & Dist. Latur. 5.M/s Gagan Hariprasad Malpani Through its Proprietor, Arti Gagan Malpani, Age : 40 years, Occ : Business, R/o Moti Nagar, Latur, Tq. & Dist. Latur. ..RESPONDENTS…Mr.A.N. Irpatgire, Advocate for petitioner Mr.V.M. Chate, AGP for respondent/State 27626.2024WP.odtMr. V.D. Sapkal, Senior Advocate i/b Mr.S.R. Sapkal a/w Mr.Yash A. Jadhav, Advocate for respondent no.4. …CORAM:ROHIT W. JOSHI, J.RESERVED ON :17th JUNE, 2025PRONOUNCED ON:03rd JULY, 2025 JUDGMENT :By the present petition, the petitioner haschallenged order dated 16.05.2024 passed by respondentno.2/Director of Marketing, State of Maharashtra, Pune inAppeal No.9/2024 filed by respondent no.4. 2.The petition was initially heard on 09.06.2025and 13.06.2025. On 13.06.2025, the learned Counsel for thepetitioner made a request seeking permission to permit him toplace on record list of dates and events. The matter wasadjourned to 17.06.2025. On 17.06.2025, the learnedCounsel for the petitioner filed a list of dates and eventsalongwith copy of order dated 13.02.2024 passed by DistrictDeputy Registrar, Co-operative Societies, Latur, copy of orderdated 11.03.2024, passed by Divisional Joint Registrar, Co-operative Societies, Latur Division Latur, copy of resolutiondated 21.02.2024, passed by Market Committee/petitionerand copy of resolution dated 10.01.2024, passed by Dispute 37626.2024WP.odtSettlement Sub-Committee. The learned Advocate for thepetitioner advanced further submissions on 17.06.2025. Theabove documents were handed over across the bar during thecourse of hearing and a formal pursis in this regard came tobe filed on record on 02.07.2025. The said documents weretaken on record on 17.06.2025 and for the purpose ofidentification and marked as ‘X1 to X4’. This Court has alsoperused record of Writ Petition 2122 of 2024, which was filedby the respondent no.4, prior to filing appeal before therespondent no.2. The petition was ordered to be listed on26.06.2025 for clarification with respect to certain aspects ofthe matter. 3.The petitioner is Agricultural Produce MarketCommittee established under Section 11 and incorporatedunder Section 12 of the Maharashtra Agricultural ProduceMarketing (Development and Regulation) Act, 1963(hereinafter referred to as “APMC Act”). Respondent No.4 wasallotted plot no.1/A/1 admeasuring 3000 Sq. Ft. (for short,“suit property”) on lease for a period of 29 years underregistered lease deed dated 31st October, 2017 commencingfrom 01.10.2010 and ending on 30.09.2039 by the petitioner 47626.2024WP.odt– APMC for doing business as commission agent in the marketarea of the petitioner – APMC. 4.Respondent No.5 was doing business as trader inthe market area of the petitioner – APMC. It is the case of thepetitioner that respondent no.5 had outstanding amount tothe tune of Rs.5,43,82,301/- payable to different farmers andcommission agents. The petitioner contends that respondentno.4 had taken guarantee for respondent no.5 and was,therefore, liable to clear the outstanding dues of respondentno.5. It is alleged by the petitioner that since respondent no.4did not clear the said dues, notice before attachment (order)dated 30.01.2024 was issued to respondent no.4. It is statedthat since respondent no.4 did not clear the dues despitereceipt of the said notice, possession of the suit property wastaken by the APMC on 16.02.2024 by drawing a panchanama.5.In this regard, it will be necessary to refer toclause 12 of the lease deed dated 31.10.2017, which providesthat in the event respondent no.4/lessee causes financialhardship or dupes or does not make payment of money or
Legal Reasoning
57626.2024WP.odteven if there is apprehension of money not being paid by thelessee to agriculturists, traders and purchasers during thecourse of business from the leasehold plot/suit property, thepetitioner – APMC shall have right to resume possession of theleasehold plot/suit property.6.Initially, on 01.02.2024, respondent no.4challenged the notice of attachment/order dated 30.01.2024by filing appeal before the District Deputy Registrar. TheDistrict Deputy Registrar did not entertain the appeal on theground of jurisdiction and passed order dated 13.02.2024intimating that the appropriate appellate authority is theDirector of Marketing / respondent no.2. 7.However, respondent no.4 filed appeal on16.02.2024 before the Divisional Joint Registrar, Co-operativeSocieties, Latur Division, Latur. The said appeal came to beregistered as Appeal No.9/2024. The said appeal was disposedof vide order dated 11.03.2024 in view of the fact thatrespondent no.4 filed a pursis seeking permission to withdrawthe appeal with liberty to file the same before the appropriateappellate authority. The Divisional Joint Registrar granted
Decision
67626.2024WP.odtliberty to file appeal before the appropriate appellate authorityand disposed of the appeal vide order dated 11.03.2024. 8.While the said appeal was pending, therespondent No.4 also filed a petition, being Writ PetitionNo.2122 of 2024 before this Court seeking a writ ofmandamus against the petitioner – APMC to de-seal the suitpremises and to restore its possession. Initially, vide orderdated 22.02.2024, notice was issued in the said petitionkeeping the point of maintainability of petition open.Respondent No.4 (petitioner therein) had made a statementthat there were no dues payable by him to the APMC or anyother statutory authority and in that view of the matter, orderwas passed directing that auction of the suit property shouldnot be conducted without following due process of law. Thesaid petition was subsequently disposed of as withdrawn videorder 07.03.2024. The order records that the matter washeard by this Court for some time and thereafter the petitionwas withdrawn on instructions from respondent no.4(petitioner in the said petition), who was present in the Court.9.Thereafter, respondent no.4 preferred appeal 77626.2024WP.odtunder section 52B of the APMC Act before respondent no.2 on12.03.2024. Respondent No.4 challenged the notice beforeattachment/order dated 30.01.2024 and prayed forrestoration of possession of the suit property in the saidappeal. It is stated in the appeal that there was no delay infiling of the appeal and assuming that there was delay, thesame should be condoned. 10.It will be pertinent to mention that in paragraph12 of the appeal, respondent no.4 had disclosed that earliertwo appeals were filed by him before the District DeputyRegistrar and Divisional Joint Registrar. Likewise, reference toWrit Petition No.2122/2024 filed by respondent no.4 is madein paragraph 14 of the memorandum of appeal. It is statedthat petition was withdrawn in view of alternate remedy offiling appeal before the Director of Marketing, respondentno.2. 11.The statement in paragraph 14 that writ petitionwas withdrawn in view of alternate remedy is not expresslydenied in the reply. In paragraph 10 of the reply, it is statedthat the petition filed before this Court was withdrawn by 87626.2024WP.odtrespondent no.4 on 07.03.2024. It will be pertinent to statethat the petitioner also did not raise any objection in the replythat appeal was not maintainable in view of withdrawal ofwrit petition vide order dated 07.03.2024. 12.Respondent No.2 has allowed the appeal videorder dated 16.05.2024, thereby quashing the notice beforeattachment/order dated 30.01.2024 and directing thepetitioner – APMC to deliver possession of the suit shop torespondent no.4. 13.The said order dated 16.05.2024 came to beassailed by the petitioner - APMC by filing appeal underSection 52B of the APMC Act before the Hon'ble Minister. Thesaid appeal, which was registered as Appeal No.12/2024,came to be allowed vide order dated 28.06.2024. This orderdated 28.06.2024 was challenged by respondent no.4 beforethis Court by filing Writ Petition No.6623/2024. The saidpetition was allowed holding that under the scheme of theAct, second appeal was not maintainable and the order passedby respondent no.2 - Joint Director of Marketing was not 97626.2024WP.odtamenable to further appeal before the State. 14.In this backdrop, the present petition is filedassailing the order dated 16.05.2024 passed by respondentno.2 allowing the appeal filed by respondent no.4. Variousgrounds have been raised in the body of the petition.However, during the course of hearing, Mr. A.N. Irpatgire,learned counsel for the petitioner has urged the followinggrounds :- (i)Respondent No.4 had furnished a guarantee to cleardues of respondent no.5 and despite repeated notices, hefailed to clear the dues amounting to Rs.5,43,82,301/- therebycommitting breach of clause 12 of the lease deed as also Rule20(1)(a) of the APMC Rules, 1967. (ii)Respondent No.4 had sublet the premises withoutpermission of petitioner and was also not conducting businessof agricultural produce thereby committing breach ofconditions of lease. (iii)Appeal under Section 52B is provided only against theorder passed or decision taken by Market Committee. In thepresent case, notice of attachment was issued followed by 107626.2024WP.odtaction of taking possession, which is not amenable to appealunder Section 52B. (iv)Respondent No.4 had approached multiple forums forthe same relief, and therefore, having regard to his conduct,the appeal ought to have been dismissed. (v)Appeal could not have been entertained in view ofwithdrawal of Writ Petition filed before this Court withoutseeking liberty to avail further remedies. (vi)Appeal filed by respondent no.4 was barred bylimitation. It is erroneously allowed without condoning delay.15.At the outset, Mr. Sapkal, the learned SeniorAdvocate for the respondent no.4 argued that the impugnedaction is taken on the ground that the respondent no.4 hadissued guarantee for respondent no.5, who was liable to paydues of various farmers, traders and brokers and therefore,unless liability of respondent no.5 is crystallized, the allegedguarantee by the respondent no.4 could not be invoked. Thiscontention was raised without prejudiced to his basicsubmission that the guarantee was only for a period of oneyear and the document was tampered to show that guarantee 117626.2024WP.odtwas continued. 16.In order to meet this contention, the learnedadvocate for the petitioner has placed on record aresolution/decision dated 10.01.2024 by Dispute Sub-Committee, whereby decision is taken to issue a final notice torespondent nos.4 and 5 calling upon them to make paymentof outstanding dues of farmers and traders and in the event offailure on their part to clear the dues, possession of theirrespective leasehold plots should be resumed. He has alsoplaced on record extract of minutes of meeting of the MarketCommittee of the petitioner held on 23.01.2024, in which thesaid resolution/decision dated 10.01.2024 taken by DisputeSub-Committee is accepted and ratified by the MarketCommittee. The Dispute Sub-Committee is a body constitutedunder Section 10 of the APMC Act for settling disputesbetween buyers and sellers or their agents relating to quality,weight, payments or any other matter in relation to marketingof agricultural produce.17.Per-contra, Mr. V.D. Sapkal, learned SeniorAdvocate appearing for respondent no.4 contended that theaction of the petitioner in taking possession of the suit 127626.2024WP.odtproperty is without authority of law. He contends thatissuance of an order of eviction under Section 32E is sine quanon for resumption of possession of the property leased by thepetitioner - APMC. He contends that order under the saidprovision is required to be passed by giving the lesseereasonable opportunity of being heard. It is contended thatthe petitioner - APMC had no authority to resume possessionwithout passing any order contemplated under Section 32E. 18.Mr. Sapkal contends that respondent no.4 hadtaken guarantee for respondent no.5 only for a period of oneyear i.e. from 2012 to 2013 and not thereafter. He contendsthat the document of guarantee is fabricated by the MarketCommittee for which criminal case is initiated against theconcerned persons of the Market Committee. As regards Rule20(1)(a), he contends that the said provision contemplatesimmediate payment of agricultural produce on its weighmentor measurement by purchasers. He contends that assumingthat respondent no.4 had furnished guarantee for respondentno.5 and has not paid the dues payable by respondent no.5, itcannot be said that respondent no.4 had committed breach ofrule 20(1)(a), since, responsibility of making immediate 137626.2024WP.odtpayment will obviously be of the purchaser. 19.As regards clause 12 of the lease deed, thecontention of the learned Senior Advocate is that alleged duesare not relatable to business of respondent no.4 as commissionagent, and therefore, the said clause is not attracted. 20.As regards breach of other alleged conditions oflease, he states that the impugned action is taken only onaccount of alleged failure to clear the dues of respondent no.5and not on any other grounds. 21.With respect to limitation, the contention is thatrespondent no.4 was bonafide in prosecuting remedies beforethe forums as per legal advise and that he has made a honestdisclosure of the remedies availed by him in every proceedingthat he has prosecuted. It is further contended that possessionwas illegally taken on 16.02.2024 and the appeal filed on16.03.2024 is within limitation. According to him, cause ofaction arose on 16.02.2024 and not on 30.01.2024. 147626.2024WP.odt22.As regards withdrawal of petition and filing ofappeal, the contention of the learned Senior Advocate is thatthe petition was withdrawn only in view of alternate remedy.He contends that notice was issued in the petition keeping thepoint of alternate remedy open and on subsequent date whenthe matter was being prosecuted, the petition was withdrawnwith a view to avail of alternate remedy. 23.As regards maintainability of appeal, he contendsthat the word "decision" in Section 52B must receive a widerand broader interpretation as compared to word "order". Hestates that appeal under section 52B is provided against theorder as well as decision. He contends that two separate termsare incorporated in the provision with a specific object towiden the scope of Appellate jurisdiction.24.Lastly, he contends that even if it is assumed thatthe order dated 16.05.2024 is not sustainable having regard topoint of maintainability and limitation, yet the order shouldnot be disturbed in exercise of jurisdiction either under Article226 and Article 227 of the Constitution of India. His 157626.2024WP.odtcontention is that it is well settled that while exercisingjurisdiction under Article 226 or 227 of the Constitution ofIndia, this Court should not interfere with an illegal order ifsuch interference will have the effect of reviving another actor order, which is illegal and not in accordance with law. He,therefore, contends that the petition is liable to be dismissed.FINDINGS25.Perusal of the notice before attachment dated30.01.2024 will indicate that it makes a reference to Section32E of the Act. It is stated in the notice that respondent no.4had furnished guarantee for proprietorship undertakingnamed Gagan Hariprasad Malpani (Proprietor Mrs. Arti GaganMalpani). It is further stated that the said Mrs. Malpani hadpurchased agricultural produce worth Rs.5,43,82,301/- andnot made payment of the said amount despite repeateddemands by broker, which is in breach of rule 20(1)(a) of theAPMC Rules, 1967. It is then stated that respondent no.4 isalso liable to clear the said liability since he has executedguarantee in favour of said Mrs.Malpani. In view of theaforesaid, respondent no.4 is directed by the said notice/orderdated 30.01.2024 to remove his goods and other belongingsfrom the suit property and hand over possession thereof to the 167626.2024WP.odtpetitioner – APMC. Pursuant to this notice/order dated30.01.2024 actual physical possession is taken on 16.02.2024.The notice before attachment/order dated 30.01.2024 is inthe nature of order directing respondent no.4 to vacate thesuit property. Appeal under Section 52B against the noticedated 30.01.2024 was therefore maintainable. 26.As stated above, the notice specifically refers toSection 32E of the Act, which confers jurisdiction on theMarket Committee to evict person occupying leaseholdpremises on the grounds mentioned in the said provision.Possession can be resumed under the said provision when thepremises are not used for the purpose for which the same areallotted, or are misused or when an encroachment iscommitted on the land of the Market Committee. It is furtherprovided in the provision that an order of eviction needs to bepassed in compliance of principles of natural justice aftergranting a reasonable opportunity of being heard to theperson concerned. 27.Undisputed facts of the case will indicate that the 177626.2024WP.odtpetitioner has not afforded opportunity of hearing torespondent no.4 prior to issuance of the notice/order dated30.01.2024. It will be pertinent to mention here that althoughthe notices dated 12.06.2024, 16.06.2024 and 27.01.2024are issued to respondent no.4, the said notices are pertainingto non-user of premises for sale of agricultural produce forwhich the premises are allotted and subletting the premisesfor running the grocery store, electrical store, restaurant,residential purpose and for installation of a digital banner onthe roof of the said premises. In view of the aforesaidallegations, it is alleged that respondent no.4 has committedbreach of clauses 5 and 8 of the lease deed. 28.It will be pertinent to mention here thatnotice/order dated 30.01.2024 is not issued on any of theaforesaid grounds. As stated above, the notice/order dated30.01.2024 is issued on the ground that respondent no.4 hasfailed to clear the dues of respondent no.5 although he hasstood as guarantor for respondent no.4. 29.It is apparent on the face of record that the 187626.2024WP.odtnotice/order dated 30.01.2024 is passed without issuing anyprior show-cause notice on the ground on which the evictionis ordered. It is also a matter of record that opportunity ofhearing is also not granted to respondent no.4 before issuanceof order/notice dated 30.01.2024. Possession pursuant to thenotice/order dated 30.01.2024 is taken on 16.02.2024. Theaction on the part of the petitioner is clearly in breach ofstatutory mandate of Section 32E and in utter disregard tothe principles of natural justice. The action on the part of thepetitioner in taking possession of the suit property as aforesaidis most arbitrary and high handed, and therefore,unsustainable in law.30.Apart from this, the order of eviction underSection 32E is required to be passed by the MarketCommittee. Perusal of the notice/order dated 30.01.2024 willdemonstrate that the same is issued under the signature ofAssistant Secretary and Authorized Officer of the petitioner –APMC. Notice/order makes a reference to some office letterdated 30.01.2024 bearing outward no.1604. However, thisdocument is not placed on record. There is no reference to thesaid document bearing outward no.1604 in the petition. On a 197626.2024WP.odtquery made for the learned Counsel for the petitioner, it isinformed that the said document is an authorisation by theMarket Committee in favour of the Officer under whosesignature the impugned notice/order dated 30.01.2024 isissued. Material on record will indicate that the MarketCommittee of the petitioner – APMC has not taken anydecision under Section 32E. It is apparent that thenotice/order dated 30.01.2024 is not preceded by anydecision taken by the Market Committee and as such the sameis issued without any jurisdiction. It needs to be mentionedthat the Market Committee is a body established andincorporated for every market area as per Sections 11 and 12respectively of the APMC Act. It comprises of 15 agriculturistsresiding within the market area, two representatives of tradersand commission agent and one representative of hamals andweighmen. The Market Committee is constituted forimplementation of provisions of the Act, Rules and Bye-lawswithin the territory of market area and to regulate andsuperintendence and manage the marketing of agriculturalproduce in market area.31.It is thus clear beyond any doubt that the Market 207626.2024WP.odtCommittee has not taken any decision or passed any order ofeviction as contemplated by Section 32E of the Act. Theorder/notice dated 30.01.2024 is therefore issued without anyauthority of law. The said order/notice is therefore, void ab-initio and nonest.32.As stated above, during the course of replyarguments, learned counsel for the petitioner has tendered aresolution/decision dated 10.01.2024 by Dispute Sub-Committee of the petitioner – APMC wherein it is mentionedthat final notice should be issued to respondent nos.4 and 5and in the event the payments are not made possession of theplots leased to respondent nos.4 and 5 should be resumed andthereafter if the amount is not paid within further period ofseven days, the respective plots of respondent nos.4 and 5should be leased out to other willing individuals by publicauction. The Dispute Sub-Committee has authorized theChairman, Secretary and Assistant Secretaries to takeappropriate steps in this regard. The learned advocate for thepetitioner has also placed on record the resolution dated23.01.2024 passed by the Market Committee of the petitioner– APMC granting approval to the aforesaid resolution/decision 217626.2024WP.odtdated 10.01.2024 of the Dispute Sub-Committee. The learnedcounsel for the petitioner, therefore, contends that thedecision to evict respondent no.4 is taken by the MarketCommittee.33.There is no pleading in the petition or even in thereply filed in the appeal filed by respondent no.4 before theJoint Director of Marketing with respect to the said resolutionsdated 10.01.2024 and 24.01.2024 passed by the Dispute Sub-Committee and Market Committee of the petitioner. There isnothing to infer that the decision taken by the Dispute Sub-Committee on 10.01.2024 is communicated to respondentno.4. The notice/order dated 30.01.2024 also does not referto the said resolution dated 10.01.2024 by the Dispute Sub-Committee as also subsequent resolution dated 24.01.2024 bythe Market Committee. The contention of the petitioner thatimpugned order/notice is issued on the basis of the saidresolution dated 10.01.2024 passed by Dispute Sub-Committee does not appear to be correct. The contention iscertainly not borne from record. It appears to be anafterthought to overcome the inherent defects in theorder/notice dated 30.01.2024. 227626.2024WP.odt34.As is apparent from the scheme of Section 52B,jurisdiction to pass order of eviction is vested with the MarketCommittee. The Dispute Sub-Committee does not have anyjurisdiction in this regard. The decision of the Dispute Sub-Committee for resumption of possession is, therefore, void-ab-initio and nonest being without jurisdiction. It is well settledthat an order without jurisdiction is a nullity in the eyes of lawand void-ab-initio. Such an order which is nonest and void-ab-initio cannot be validated by subsequent ratification orapproval by the authority competent to pass such order ortake such decision. It is like still born child to which lifecannot be infused. The resolution/decision dated 10.01.2024by the Dispute Sub-Committee, resolution dated 23.01.2024by the Market Committee as well as the notice/order dated30.01.2024 by the Market Committee are thus void-ab-initio.It is a settled legal principle that an order which is passed byperson not having authority to pass the same is void in itsinception and cannot be validated or ratified by the body orperson who is competent to pass such order. Legal position inthis regard is settled by catena of judgments. For the sake ofready reference mention can be made to a Division Bench 237626.2024WP.odtjudgment of this Court in the matter of College of Engineeringof Yeshwant Rural Education Society Vs. Asmita Basole andOrs. Reported in 1987 MH.L.J 676 (Paragraph-10).35.As mentioned above, jurisdiction to pass order ofeviction under Section 32E is vested with the MarketCommittee. The petitioner has made a submission that thenotice/order was issued on the basis of a decision taken byDispute Sub-Committee on 10.01.2024. The action accordingto the petitioner is based on decision of Dispute Sub-Committee, which has no authority to pass order of eviction.The decision is thus taken at the behest of a body which doesnot have any jurisdiction or authority in the matter andtherefore the impugned notice/order is bad in law. Thepower under Section 32E is a quasi judicial power. TheMarket Committee has to consider as to whether order ofeviction should be passed or not in the given set of facts. TheMarket Committee itself has to apply mind. It is well settledthat when a particular authority is designated to decide anymatter, the application of mind to take the decision should beby the said authority itself. The authority cannot act oninstructions of any other person, body or authority. The 247626.2024WP.odtimpugned notice/order of eviction is therefore bad in law.36.The petitioner and respondent no.4 have maderespective submissions on the aspect of guarantee, clause 12Rule 20(1)(a) of the APMC Rules, 1967. However, since, theimpugned action is held to be without jurisdiction, it will notbe appropriate to deal with the said contention on merits inthe present petition.37.The next contention of the petitioner is thatrespondent no.4 has sublet the premises to third persons andis not using the premises for the purpose for which they werelet to him. The impugned order/notice for resumingpossession is not issued on this ground. The petitioner cannotpress these grounds into service to defend the impugnednotice/decision dated 30.01.2024. 38.The learned Counsel for the petitioner argues thatthe notice dated 30.01.2024 is neither an order nor a decision,and therefore, the same could not have been challenged byfiling appeal under Section 52B is also liable to be rejected in 257626.2024WP.odtview of the contents of the said notice/order. The notice/orderdated 30.01.2024 is in the nature of direction to respondentno.4 to remove his belongings from the suit property and tohand over vacant physical possession thereof to the petitioner-APMC. It is stated that in the event respondent no.4 does notcomply with the notice/order, the petitioner – APMC shall takesteps for resuming possession of the suit property. Thedocument dated 30.01.2024, although titled as “notice beforeattachment” in essence it is an order for evicting the suitproperty and handing over possession of the same. It alsoneeds to be mentioned that the said document specificallyrefers to Section 32E of the APMC Act, which empowers theMarket Committee of APMC to pass order of eviction. 39.The learned counsel for the petitioner has alsoraised objection with respect to conduct of the petitioner inapproaching various authorities raising challenge to thenotice/decision dated 30.01.2024 and action of takingpossession on 16.02.2024. It is true that respondent no.4 hadinitially challenged the notice/order dated 30.01.2024 byfiling appeal before District Deputy Registrar. District DeputyRegistrar had passed order dated 13.02.2024 observing that 267626.2024WP.odtappeal under Section 52B of the APMC Act lies beforerespondent no.2/Joint Director of Marketing and accordingly,the appeal filed before him was disposed of observing thatrespondent no.4 should file appeal before the aforesaidauthority. However, rather than filing appeal before the JointDirector of Marketing, respondent no.4 filed appeal before theDivisional Joint Registrar of Co-operative Societies. Notice inthe said appeal was issued on 16.02.2024. The said appealcame to be disposed of vide order dated 11.03.2024permitting respondent no.4 to withdraw the said appeal withliberty to file appeal before the competent authority. It willalso be pertinent to mention that after filing of the said appealbefore the Divisional Joint Registrar and while the said appealwas pending, respondent no.4 had filed petition before thisCourt on 21.02.2024, being Writ Petition No.2122/2024seeking a writ of mandamus against the petitioner – APMC tode-seal the suit premises and hand over its possession torespondent no.4 ( petitioner in the said petition). This petitionis filed while appeal before the Divisional Joint Registrar waspending. As stated above, this petition was disposed of videorder dated 07.03.2024. The order dated 07.03.2024 recordsthat after the matter was heard for some time, learned counsel 277626.2024WP.odtfor respondent no.4 (petitioner) sought permission towithdraw the petition on instructions from respondent no.4(petitioner), who was personally present in the Court. Theorder dated 07.03.2024 does not indicate that liberty wasgranted to the petitioner to take recourse to appropriate legalproceeding. It is thereafter that on 12.03.2024, respondentno.4 has filed appeal under Section 52B of the APMC Actbefore the competent authority i.e. respondent no.2. 40.It must however be stated that in the appeal filedbefore respondent no.2, respondent no.4 has made adisclosure of earlier two appeals and writ petition filed byhim. Respondent No.4 has not suppressed the said fact fromrespondent no.2. An averment is made in appeal filed beforerespondent no.2 that writ petition was withdrawn in view ofalternate remedy of filing appeal. This statement in the appealis not disputed by the petitioner in the reply filed beforerespondent no.2. Although, it is alleged that the interim orderwith respect to conducting auction after following the dueprocess was obtained on 22.02.2024 on an incorrect statementthat respondent no.4 (petitioner) did not have anyoutstanding dues towards the petitioner – APMC (respondent 287626.2024WP.odtin the said petition), the statement that the petition waswithdrawn in view of alternate remedy is not disputed. It ismerely stated that the said petition was withdrawn on07.03.2024.41.Likewise even W.P. 2122/2024 the petitioner hasmade a disclosure of the fact that he had preferred appealsagainst the order dated 30.01.2024, initially before theDistrict Deputy Registrar and subsequently before DivisionalJoint Registrar. The petitioner although approached differentforums did not suppressed the said fact.42.The learned counsel for the petitioner hashowever contended that the principles of Order XXIII Rule 1will be applicable in the present case and since the petitionfiled before this Court was withdrawn without specific liberty,subsequent appeal will not be maintainable. He contends thatthe appeal was liable to be rejected in view of unconditionalwithdrawal of writ petition. In this regard, it will be profitableto refer to the decision of the Hon’ble Supreme Court in thecase of Sarguja Transport Service Vs. State Transport 297626.2024WP.odtAppellate Tribunal, M.P., Gwalior and Ors. reported in AIR1987 SC 88. The Hon’ble Supreme Court has held that theprinciple of Order XXIII Rule 1(3) is also applicable topetitions. It is held that while principle of res-judicata maynot be applicable in case of withdrawal of petition, theprinciples underlying Order XXIII Rule 1 will be applicable. Itis held that when a petition is withdrawn without seekingliberty to file fresh petition, subsequent petition will not bemaintainable. However, the Hon’ble Supreme Court has alsoheld that while a subsequent petition may not be maintainableother remedies like filing a civil suit or petition under Article32 of the Constitution of India will not be barred in view ofwithdrawal of writ petition filed before the High Court. Therelevant observations in paragraph no.9 of the judgment arereproduced hereinbelow for ready reference:- "9. .... While the withdrawal of a writ petition filed ina High Court without permission to file a fresh writpetition may not bar other remedies like a suit or apetition under Article 32 of the Constitution of Indiasince such withdrawal does not amount to resjudicata, the remedy under Article 226 of theConstitution of India should be deemed to have beenabandoned by the petitioner in respect of the causeof action relied on in the writ petition when he 307626.2024WP.odtwithdraws it without such permission."43. The observations of the Hon’ble Supreme Courtwith respect to civil suit will also apply to statutory appeal.The contention of the learned counsel for the petitioner thatthe appeal could not have been entertained in view ofwithdrawal of writ petition without liberty, is therefore, liableto be rejected. 44.The next contention by the learned counsel forthe petitioner is that the appeal filed by respondent no.4 wasbarred by limitation. The learned counsel draws attention toSection 52B of the Act to contend that the prescribed period oflimitation is of 30 days. Mr. Sapkal, the learned seniorCounsel argues that the appeal is filed within limitation.According to him the cause of action for filing appeal arose on16.02.2024, when possession of the suit property was taken.The contention of Mr. Sapkal is that the decision to takepossession is dated 16.02.2024 and therefore limitation shallcommence from 16.02.2024. He contends that appeal filed on16.03.2024 is filed within limitation. 317626.2024WP.odt45.The contention of Mr. Sapkal is liable to berejected. The petitioner has taken possession 16.02.2024,pursuant to a decision, which was already taken. The decisionis reflected in notice/order dated 30.01.2024. 46. It is clear from the record that respondent no.4had filed appeal before the District Deputy Registrar on01.02.2024, which implies that the notice/order dated30.01.2024 was served on him on or before 01.02.2024. Italso needs to be stated that undisputedly, the District DeputyRegistrar had passed order dated 13.02.2024 in the saidappeal relegating respondent no.4 to the appropriate appellateauthority i.e. Joint Director of Marketing. Despite specificorder dated 13.02.2024 naming the competent appellateauthority, respondent no.4 filed appeal before the DivisionalJoint Registrar. No explanation is offered for filing appealbefore the Divisional Joint Registrar, except a bald statementthat the appeal was filed as per legal advise. It must also bementioned that the said appeal came to be disposed of videorder dated 11.03.2024 and while the said appeal waspending, respondent no.4 had filed petition before this Court, 327626.2024WP.odtbeing writ petition no.2122/2024, which was withdrawn on07.03.2024 and thereafter, the appeal filed before theDivisional Joint Registrar was disposed of on 11.03.2024. It isthis backdrop that the appeal is filed on 16.03.2024. 47.It is clear that respondent no.4 has approachedmultiple forums ventilating his grievance. Although, it can beaccepted that the appeal preferred before the District DeputyRegistrar was under a bonafide mistake, there is no reason fornot filing appeal before the Director of Marketing since theDistrict Deputy Registrar had pointed out in the order dated13.02.2024 that the competent authority to decide the appealwas the Director of Marketing. Likewise, there is no plausibleexplanation for filing the petition while said appeal waspending. In such circumstances, appeal is filed on 16.03.2024,which is beyond the prescribed period of limitation. In myconsidered opinion, respondent no.4 cannot take shelter ofprinciple underlying Section 14 of the Limitation Act forexcluding the period spent in prosecuting the appeal beforethe District Deputy Registrar, Divisional Joint Registrar andwrit petition before this Court. The appeal is clearly barred bylimitation. 337626.2024WP.odt48.The respondent no.4 did not file any separateapplication for condonation of delay. In the memorandum ofappeal, a statement is made that if the appeal is found to bebarred by limitation, delay caused be condoned. However,there is no specific prayer for condonation of delay. It will alsobe pertinent to mention that respondent no.2 authority hasnot condoned the delay while allowing the appeal. 49.It is well settled proposition of law that aproceeding which is barred by limitation cannot be decided onmerits without first condoning the delay. The authority getsjurisdiction to deal with merits of the matter in a proceedingfiled beyond prescribed period of limitation only if the delay iscondoned. The order dated 16.05.2024 passed by respondentno.2 is therefore illegal.50.It is also necessary to consider as to whether theDirector while acting as an Appellate Authority under Section52B has the power to condone delay caused in filing ofappeal. In this regard, it will be pertinent to mention that 347626.2024WP.odtthere is no provision under the Act or Rule enablingrespondent no.2 to condone the delay caused in filing appealunder Section 52B. In this context, it is necessary to refer toChapter VI of APMC Rules, 1967, which deals with Officersand Servants of Market Committee. Rule 104, which isincluded in Chapter VI provides that any officer or servantaggrieved by any punishment imposed under the said Rulescan file appeal challenging the punishment before theDirector. Rule 104(2) provides for limitation of 30 days forfiling the appeal. Rule 104(2) also confers jurisdiction tocondone the delay for sufficient cause while entertainingappeal under rule 104(1). The scheme of the Act and Ruleswill indicate that where it was intended to confer jurisdictionon the Director to condone the delay provision in that regardis incorporated in the Rules. Whereas, specific power forcondonation of delay is conferred with respect to appeals tobe filed by employees of the APMC no such power is conferredwith respect to appeals filed by other persons such as thepetitioner, who aggrieved by an order of eviction. Thelegislative intent is therefore clear that the delay caused infiling appeal by any individual other than employee of APMCcannot be condoned. 357626.2024WP.odt51.Apart from this, the general power ofcondonation of delay under Section 5 of the Limitation Actcannot be invoked by respondent no.2 since respondent no.2is an administrative authority conferred with quasi-judicialpower. Respondent No.2 is not a 'court', and therefore, notentitled to invoke Section 5 of the Limitation Act. The legalposition in this regard is clarified by the Hon'ble SupremeCourt in the matter of Ganesan vs. The Commissioner, TheTamil Nadu Hindu Religious and Charitable EndowmentsBoard and Ors, reported in 2019 (7) SCC 108. In thisjudgment the Hon'ble Supreme Court has taken intoconsideration almost all its earlier judgments on the point andhas held that power of condonation of delay under Section 5of this Act is vested only with a 'Court' and not anyadministrative authority performing quasi judicial function.It is held that unless the statute under which theadministrative authority exercises jurisdiction confers powerto condone the delay such authority would not havejurisdiction to decide any case filed beyond prescribed periodof limitation. 367626.2024WP.odt52.Faced with this peculiar situation, Mr. V.D. Sapkal,learned Senior Advocate for respondent no.4 contends thatalthough, the impugned order passed by respondent no.2 maynot be strictly in accordance with law, setting aside the saidorder would result in revival of another illegal act by thepetitioner - APMC which infact is void ab-initio. He, therefore,contends that having regard to the consequence of quashing ofthe impugned order, this Court should not exercise itsjurisdiction either under Article 226 or 227 of the Constitutionof India. The learned advocate places reliance in support ofthis contention on the judgment of the Hon'ble Supreme Courtin the matter of Mohammad Swalleh and others Vs. ThirdAdditional District Judge, Meerut and another reported in (1988) 1 SCC 40, particularly paragraph no.7 thereof, whichreads as under :- "7. It was contended before the High Court that noappeal lay from the decision of the PrescribedAuthority to the District Judge. The High Courtaccepted this contention. The High Court finally heldthat though the appeal laid before the District Judge,the order of the Prescribed Authority was invalid andwas rightly set aside by the District Judge. On thatground the High Court declined to interfere with theorder of the learned District Judge. It is true that 377626.2024WP.odtthere has been some technical breach because ifthere is no appeal maintainable before the learnedDistrict Judge, in the appeal before the learnedDistrict Judge, the same could not be set aside. Butthe High Court was exercising its jurisdiction underArticle 226 of the Constitution. The High Court hadcome to the conclusion that the order of thePrescribed Authority was invalid and improper. TheHigh Court itself could have set it aside. Therefore inthe facts and circumstances of the case justice hasbeen done though, as mentioned hereinbefore,technically the appellant had a point that the orderof the District Judge was illegal and improper. If wereiterate the order of the High Court as it is settingaside the order of the Prescribed Authority inexercise of the jurisdiction under Article 226 of theConstitution then no exception can be taken. Asmentioned hereinbefore, justice has been done andas the improper order of the Prescribed Authorityhas been set aside, no objection can be taken."53.The learned Senior Advocate has also placedreliance on the decision of this Court in the matter of AshokManikrao Khopade Vs. State of Maharashtra reported in 2000All MR (Cri) 901 and on the judgment of Patna High Court inthe matter of Chintamani Sharan Nath Sahadeo Vs. Statereported in AIR 1990 Patna 165 to canvas the same 387626.2024WP.odtproposition.54.The impugned order passed by the respondentno.2/Director, suffers from a jurisdictional error, in as much asthe said authority has allowed an appeal, which is barred bylimitation without condoning the delay. As held above, thesaid Authority also does not have the power to condone delay.The order passed by the respondent no.2 is certainlyunsustainable on this ground. However, it must also bementioned that the order is correct on merits and if the appealwas filed within limitation, no fault could have been foundwith the same. As held above, the order passed by thepetitioner - Market Committee which is set aside by theimpugned order is also without jurisdiction and is nonest andvoid ab-initio. It is also passed in disregard to the statutorymandate of Section 32E of the APMC Act and also in breach ofprinciples of natural justice. Therefore, by quashing theimpugned order dated 16.04.2024 another order which isper-se illegal and without jurisdiction shall stand revived.55.The respondent no.4 was allotted the suit 397626.2024WP.odtproperty on lease for a period of 29 years. The lease issubsisting up to the year 2039. It is well settled that lease is aproperty by itself. In view of the findings recorded above, it isclear that the respondent no.4 is being deprived of right toproperty on the basis of an order which is passed withoutjurisdiction. The order is also passed without following thestatutory mandate of granting opportunity of hearing in factthe Competent Authority has not passed any order. It hasrather confirmed a resolution by body which does not havejurisdiction to direct eviction. In such manner, the respondentno.4 is deprived of equal protection of law i.e. Section 32E ofthe APMC Act. It is reiterated that the action on the part ofpetitioner does not indicate an error within jurisdiction butcomplete lack of jurisdiction. In the considered opinion of thisCourt, The petitioner is depriving the respondent no.4 of rightto property pursuant to an order which is passed withoutjurisdiction as also without following the statutory mandateand due process of law. In such circumstances, it will beappropriate not to interfere with the impugned order,although, the same is not strictly legal being passed in anappeal barred by limitation, since, the effect of setting aside ofthe order will be to revive another order and action which is 407626.2024WP.odtwithout jurisdiction and is taken in breach of law.56.It will be open for the petitioner to takeappropriate action against the respondent no.4 in accordancewith law including action of eviction under Section 32E on allavoidable grounds including ground of failure to honouralleged guarantee as also on other grounds of alleged breachof lease conditions such as non user of leasehold property forthe purpose for which the same is allotted, subletting withoutauthority and installation of a signboard without properpermission.57.For the reasons recorded above, the petition isdismissed with no orders as to cost. [ROHIT W. JOSHI, J.] sga/2025