High Court
Legal Reasoning
WP-11010-2021+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL WRIT PETITION NO. 11010 OF 2021Ramesh Prakash Sonwane & Others...PetitionersVersusThe State of Maharashtra & Others...RespondentsWITHCIVIL WRIT PETITION NO. 10990 OF 2021Chatrabhuj Baliram Lamb & Others...PetitionersVersusThe State of Maharashtra & Others...Respondents***• Mr. K. J. Suryawanshi, Advocate for the Petitioner inWP/111010/2021• Mr. V. D. Salunke, Advocate for Petitioner inWP/10990/2021• Mr. S. G. Sangle, Addl. GP for the Respondent/State• Mr. S. G. Jadhavar, Advocate for the Respondent No. 6• Mr. N. L. Jadhav, Advocate for Respondent Nos. 7 & 8***CORAM:R. M. JOSHI, JRESERVED ON:SEPTEMBER 30, 2025PRONOUNCED ON:OCTOBER 04, 2025ORDER : 1.These Petitions take exception to the orderdated 02.09.2021 passed by the Director of Marketing,Maharashtra State, Pune, setting aside the order ofallotment of the plots on lease by Agricultural ProduceMarket Committee, Dharur, Beed (for short ‘MarketUmeshPAGE 1 OF 18 WP-11010-2021+.odtCommittee’).2.The facts, which led to the filing of thesePetitions, can be narrated in brief as under:Petitioners are individuals who claim to havebeen allotted the plots by APMC on lease adhering tothe procedure under the Maharashtra AgriculturalProduce Marketing (Development and Regulation) Act,1963 (for short ‘the Act’) being followed. It is thecase of the Petitioners that Market Committee decidedto allot the plots to the agriculturist and tradersdealing in the agricultural products. For this purpose,revised development plan was submitted to the Directorof Marketing who approved the development plan on20.12.2018 whereby approval was granted for lease of214 plots. A layout plan was also approved and out of214 plots, 192 plots were allotted to the respectivepersons and 22 plots remained vacant.3.It is further case of the Petitioners thatMarket Committee approved resolution in meeting dated14.01.2020 for allotment of the 22 vacant plots byinviting applications from eligible candidates.Accordingly, notice was published in the newspapers onUmeshPAGE 2 OF 18 WP-11010-2021+.odt26.05.2020 inviting such applications for allotment ofthe vacant plots. Pursuant to the said advertisement,in all 30 applications were received and thoseapplications were kept for consideration before theBoard of Directors of Market Committee in meeting heldon 16.06.2020. During the scrutiny, it was found thatout of 30 applications 8 applications were out of areaof operation of Respondent – Market Committee andhence, they came to be rejected being ineligible. Theremaining 22 applications including the applications ofthe Petitioners were accepted by the Board of Directorsby passing resolution in the said meeting. MarketCommittee, therefore, submitted proposal to theDirector of Marketing for allotment of the plots to 22eligible persons. Director of Marketing by order dated09.07.2020 granted approval to the allotment of 22plots including plots allotted to the Petitioners. Onreceipt of approval, plots were allotted in favour ofPetitioners and others and lease agreements wereexecuted on 16.07.2020 for a period of 10 years. As perlease agreements, Petitioners have deposited therequisite deposit, annual rent and transfer fees withMarket Committee. Consequently, possession was handedUmeshPAGE 3 OF 18 WP-11010-2021+.odtover of respective plots to the lessees includingPetitioners.4.It is the case of the Petitioners thatChandrakant Lagad and four others made an applicationto Respondent No. 2 i.e., Minister of CooperationMarketing and Textile Department seeking cancellationof the approval given for allotment of the plots andresolution dated 16.06.2020. Director of Marketingcalled upon District Deputy Registrar of Co-operativeSocieties (for short ‘DDR’) to make an enquiry andsubmit report pursuant to the complaint applicationdated 06.01.2021 made by said persons. Accordingly,Assistant Registrar, Co-operative Societies (for short‘ARS’) was asked to conduct enquiry and to submitreport. A notice came to be issued on 11.02.2021 by theARS to the Market Committee seeking explanation on theapplications/complaints. Market Committee submitted itsreply on 24.03.2021 giving details about the procedurefollowed for the allotment of the 22 plots. ARSsubmitted report on 27.04.2021 stating that theCommittee has followed due procedure for the allotmentof the plots and the same has been approved by theUmeshPAGE 4 OF 18 WP-11010-2021+.odtDirector of Marketing on 09.07.2020.5.It is further case of the Petitioners that oneSadik Inamdar also lodged complaint with Secretary, Co-operation Department on 03.05.2021 and Respondent Nos.3 to 6 were asked by Respondent No. 1 to submit thereport within 15 days. On the said complaint of SadikInamdar, Respondent No. 3 – Director of Marketingstayed his own order dated 09.07.2020 granting approvalto the allotment of plots. Thereafter, DDR appointedthree members enquiry committee for making enquiry intothe allegations. It is the case of the Petitioners thatthe enquiry report dated 27.04.2021 of ARS was notconsidered. It is alleged by the Petitioners thatthough there was three members enquiry committee, thereport is signed by only one member. It is alleged thatunder the pressure of Respondent No. 4 incorrect reportcame to be submitted by the said Committee on29.06.2021. Director of Marketing issued notice dated12.07.2021 to the complainant and Respondent Nos. 4 and6 and hearing was scheduled on 29.07.2021. MarketCommittee submitted its written say reiterating thatthe due procedure has been followed while allottingUmeshPAGE 5 OF 18 WP-11010-2021+.odtplots to the Petitioners and others. It is claimed bythe Petitioners that no notice was given to thePetitioners in the said enquiry and after gettingknowledge of the hearing, Petitioners applied forintervention and their intervention came to be allowed.A specific plea was raised before the DirectorMarketing that he has no authority to review his ownorder and if any person is aggrieved by the order ofgrant of approval of the Director Marketing, an Appealcould have been preferred against the same. It isclaimed that in absence of challenge to the said orderof granting approval, no proceedings are maintainablebefore Director Marketing. 6.It is the grievance of the Petitioners that inspite of this objection, Director Marketing passedimpugned order dated 02.09.2021 cancelling allotment of22 plots as per resolution no. 6 dated 14.01.2020 andresolution no. 10 dated 16.06.2020.7.At the outset, learned Counsel for contestingRespondents and learned AGP raised objection withregard to the maintainability of the Petitions on theground that an order passed by the Director MarketingUmeshPAGE 6 OF 18
Legal Reasoning
WP-11010-2021+.odtis appealable under Section 52B of the Act and as such,Petitions are not maintainable. This submission isresisted by the Counsels for the Petitioners bysubmitting that the Director of Marketing had nojurisdiction to pass any order and to review theapproval granted to the allotment of the plots to thePetitioners. In support of their submissions that sincethe order is without jurisdiction, the Petitions wouldbe maintainable, reference is made to the judgment ofHon’ble Supreme Court in case of Harbanslal Sahnia vsIndian Oil Corporation Limited, 20013 AIR(SC) 2120.8.On merit, it is the contention of the learnedCounsels for the Petitioners that admittedly Directorof Marketing granted approval to the decision ofallotment of plots to the Petitioners and others byorder dated 09.07.2020 and there is nopower/jurisdiction vested with the said Authority torecall his own order. It is submitted that the orderimpugned amounts to reviewing the order passed by theDirector Marketing granting approval to the allotmentof plots. Thus, it is contended that since the order iswithout jurisdiction, deserves interference. It isUmeshPAGE 7 OF 18 WP-11010-2021+.odtfurther argued that there is sufficient material onrecord in the form of reply of the Market Committee soalso the report of the ARS dated 27.04.2021 indicatingthat prior to the allotment of the plots, procedure ascontemplated by the Act, was duly followed. It isfurther argued that unless the order of approval is setaside by the Appellate Authority in appropriateproceedings, it is not open to cancel allotment assought to be done by passing impugned order. In thisregard, reference is made to the provisions of the Act,more particularly, Section 58, which provids for thepower of the State government to delegate the powers ofany Authority to another Officer. It is submitted thatin exercise of said powers, State Government has issueda notification whereby the powers of the DirectorMarketing are delegated to the DDR and as such, theDirector had no jurisdiction to entertain theproceedings. Thus, sum and substance of the contentionsof the learned Counsels for the Petitioners is that theprocedure adopted by the Director of Marketing iscontrary to the statutory provisions and in absence ofthe powers of review, the order impugned cannotsustain. UmeshPAGE 8 OF 18 WP-11010-2021+.odt9.Learned Counsel for contesting Respondentssupported the impugned order. It is submitted that itwas open for the Director of Marketing to invoke thepowers under Section 41-A of the Act to recall theorder passed on the ground that the procedure, asrequired for the purpose of allotment of the plots, wasnot duly followed. In this regard, it is his submissionthat publication of advertisement ought to have beendone in the newspaper widely circulated in the area,but the newspaper in which publication is done, has nocirculation in the concerned Taluka. It is furtherargued that as per the report of the Enquiry Committeeonly 22 applications were received against 22 plots, istotally suspicious. It is his submission that underSection 12(1) of the Act the prior approval of theDirector of Marketing was mandatory before publicationof allotment and since the same has not been done, theorder impugned is justified. 10.Learned AGP has also supported the impugnedorder by citing the powers of the Director Marketingunder Section 41-A of the Act. It is his submissionthat on complaint when it is brought to the notice ofUmeshPAGE 9 OF 18 WP-11010-2021+.odtthe said Authority about illegalities being committedby the Market Committee in the allotment of the plots,it was open for the Director to seek an enquiry intothe same and once the order has been passed, the onlyremedy would be under Section 52B of the Act. On theseamongst other ground, dismissal of the Petitions issought. 11.At the outset, this Court would like to dealwith the objection raised about the maintainability ofthe Petitions. It is sought to be argued on behalf ofthe Respondents that since the Appeal is provided underSection 52B of the Act against the order passed by theDirector Marketing, the Petitions are not maintainable.This contention is resisted by the Petitionerschallenging the jurisdiction/Authority of the DirectorMarketing to entertain any such issue. 12.For the purpose of deciding this issue, itwould be relevant to take note of certain facts.Admittedly, Market Committee had obtained approval fromthe Director Marketing on 20.12.2018 for lease of 214plots. A layout plan was approved in respect of 214plots. However, only 192 plots were allotted to theUmeshPAGE 10 OF 18 WP-11010-2021+.odtrespective persons and 22 plots remained vacant. It isin respect of these remaining plots, Market Committeepassed resolution on 14.01.2020 for allotment of thesaid plots by inviting applications from eligiblecandidates. A notice came to be published in thenewspaper on 26.05.2020. In all 30 applications werereceived, out of 22 were found eligible for allotmentand accordingly, permission was obtained from DirectorMarketing on 09.07.2020. Pursuant thereto, leaseagreements were executed, requisite amounts weredeposited by the Petitioners and other lessees andpossession of the plots were handed over to thelessees. These facts indicate that the entire processof the allotment of the plots was completed withapproval of the Director Marketing. 13.In the context of these facts, if Section 41-A of the Act is perused, the same indicates that thepowers under Section 41-A are to be exercised beforethe final decision has been taken. The said provisionreads thus:Section 41A - Powers of the Directors toprohibit execution of resolution passed ororder made by Committee, etc.UmeshPAGE 11 OF 18 WP-11010-2021+.odt(1) The Director may, on his own motion, oron report or complaint received by him, byorder, prohibit the execution of aresolution passed or order made by theCommittee or its Chairman or Vice-Chairmanor any of its officer or servants of theMarket Committee, if he is of the opinionthat such resolution or order isprejudicial to the public interest or islikely to hinder efficient running of thebusiness in any market area, principalmarket yard or sub-market yard or isagainst the provision of this Act or therules or bye-laws made there under.(2) Where the execution or furtherexecution of a resolution or order isprohibited by an order made under sub-section (1) and continuing in force, itshall be the duty of the Committee, if sorequired by the Director, to take anyaction which the Market Committee wouldhave been entitled to take, if theresolution or order had never been passedor made and which is necessary forpreventing the Chairman or Vice-Chairman orany of its officers or servants from doingor continuing to do anything under suchresolution or order.A bare perusal of the said provision clearlyindicate that it would be open for the DirectorMarketing to enquire into the complaint in respect ofresolution passed by the Committee or order made byCommittee or Chairman/Vice Chairman and to stay theUmeshPAGE 12 OF 18 WP-11010-2021+.odtsame so also to set it aside in appropriate case. Thesaid provision, however, could be exercise only to thestage of decision of Committee or Officers/Authoritiesof Committee. Once the decision of Committee getsapproval of the Director Marketing, it does not remainto be a decision which could be taken exception byinvoking Section 41A of the Act. Having regard to thenature of powers of Director Marketing the same areexercisable only to the stage before approval ofdecision/resolution of Committee. It does notcontemplate any power with the Director Marketing torecall/review his own order. In the instant case, sincethe decision of the Committee duly approved by DirectorMarketing of allotment of the plots has been culminatedinto actual execution of agreement, receipt ofrequisite amounts and handing over of the possession,and by no stretch of imagination it remains to stage ofresolution by Committee and hence, it cannot be saidthat the same is covered by Section 41A of the Act. 14.Perusal of the Act does not indicate vestingof powers with Director Marketing of recalling his ownorder, since appeal has been provided against the same.UmeshPAGE 13 OF 18 WP-11010-2021+.odtIt is thus clear that Director Marketing has exercisedthe powers, which were not available to him. Once anorder is passed on 09.07.2020 of granting approval tothe allotment of the plots to the Petitioners andothers, only remedy probably available for aggrievedpersons was to prefer an Appeal under Section 52B ofthe Act. In absence of any power to review his ownorder, the impugned order must be held to be withoutjurisdiction. 15.At this stage, it would be pertinent to takenote of the judgment of Hon’ble Supreme Court in caseof Harbanslal Sahnia (supra). Hon’ble Supreme Court inthe said judgment has observed that rule of exclusionof writ jurisdiction by availability of alternateremedy has no application at least in threecontingencies i.e., (i) where the Petition seeksenforcement of fundamental rights, (ii) where there isfailure of principles of natural justice and (iii)where the order of the proceedings are wholly withoutjurisdiction or the vires of an Act and is challenged.Herein this case, Director of Marketing had nojurisdiction under Section 41-A to recall his own orderUmeshPAGE 14 OF 18 WP-11010-2021+.odtof granting approval dated 09.07.2020 and as such, theproceedings before the Director Marketing was withoutjurisdiction. Hence, this Court has no hesitation tohold that the Writ Petitions are maintainable and,therefore, are entertained.16.Coming back to the merit of the ordersimpugned, it is necessary to take note of the certainfacts, at the cost of repetition, that there is alreadyan order passed by the Director Marketing on 09.07.2020granting approval to the allotments of the plots to thePetitioners and others. This is preceded by thedecision of Committee of allotment of plots on20/12/2018. Admittedly, the said decision was approvedby Director Marketing and it is implemented to theextent of allotment of 192 plots out of 214 plots. Theorder of Director Marketing has not been challengedunder the provisions of the Act before AppellantAuthority. 17.Apart from this, it is necessary to take notethat none of the Petitioners are ever issued with anynotice to show cause as to why the plots allotted tothem should not be cancelled. Perusal of the impugnedUmeshPAGE 15 OF 18 WP-11010-2021+.odtorder indicates that on the basis of report of threemember committee it is observed that there is a breachof condition of non completion of construction withinstipulated time. First of all, perusal of the conditionof lease agreement indicates that such period ofconstruction is three years, which has been said to bethree months in the impugned order. Moreover, even ifthere was any such breach of the conditions of lease,it was incumbent on the part of the Authority to issuenotices to the Petitioners and others to show cause asto why action should not be taken against them forbreach of the condition of lease. In no circumstanceswithout issuance of notice to the concerned, allotmentcould not be cancelled. Once admittedly, there is nonotice issued to the Petitioners and others in thisregard, question of the Authority being permitted totake this as ground for cancellation of the allotmentdoes not arise.18.One more aspect deserves considerable hereinthis case is about there being no grievance/complaintmade by any person who was interested in the lease ofthe plot but could not get opportunity to apply forUmeshPAGE 16 OF 18 WP-11010-2021+.odtwant of knowledge of the advertisement. Pertinently,one of the complainant himself was party to theresolution passed by the Committee of allotment of theplots to Petitioner and others. This Court also findssubstance in the contention of the counsel for thePetitioner that on the face of it observations of threemembers Committee that there was 22 applications for 22plots is not correct, since admittedly so 30applications were received. Moreover, there is completeignorance of the report of ARS holding that there iscompliance of due procedure before allotment of plots.In the afore stated circumstances, assessing the orderimpugned from any angle, this Court finds that theorder impugned cannot sustain. 19.The order impugned passed by the DirectorMarketing being without jurisdiction and moreover notin compliance of the principles of natural justice andinconsistent with material facts on record, cannotsustain. Petitioners, therefore, have made out a casefor causing interference in the impugned order.Accordingly, impugned orders are set aside. Petitionsstand allowed in the aforestated terms. UmeshPAGE 17 OF 18 WP-11010-2021+.odt20.It is however clarified that in case there isbreach of any conditions of lease by Petitioners or anyother lessees of the plots, it would be open for theAuthorities to take action in accordance with law. (R. M. JOSHI, J.) UmeshPAGE 18 OF 18