Chandgi Ram vs State of Haryana and others

A.D. Koshal, J.—The circumstances leading to this petition under Articles 226 and 227 of the Constitution of India are these. Prior to the 8th of May, 1970, when the Punjab Agricultural Produce Markets (Haryana Amendment) Ordinance (Haryana Ordinance No. 6 of 1970 and hereinafter referred to as the Ordinance) was promulgated, all the members, except one who was to be appointed by the State Government from amongst its officials, of every Market Committee in the State of Haryana used to be elected under the provisions of sub-section (2) of section 12 of the Punjab Agricultural Produce Markets Act, 1961 (hereinafter called the Act). The Ordinance amended the Act so as to substitute the method of nomination by the State Government for that of election in respect of all the members of a Market Committee. On the 18th of September, 1970, the Ordinance was replaced by the Punjab Agricultural Produce Markets (Haryana Amendment) Act (Haryana Act No. 25 of 1970 and hereinafter referred to as the Amending Act), the provisions of which are practically identical with those of the Ordinance.

On the 7th of January, 1971, the Government of Haryana issued a notification (Annexure "A" to the petition and hereinafter referred to as the notification) nominating respondents No. 5 to 13 as members of the Market Committee, Matlauda (hereinafter called the Committee). The nomination of respondent No. 5 was made in his capacity of a "producer" of the notified market area, Matlauda, and that of respondent No. 13 as a representative of the Co-operative Societies functioning in that area.

The petitioner, who is another "producer" of the said area, has prayed in the petition that the notification be quashed on the following grounds:

(i) The Ordinance and the Amending Act are ultra vires the Constitution of India in so far as they replace the method of election by that of nomination.

(ii) Respondent No. 7 is not a "producer" within the meaning of the definition of that terra as appearing in clause (o) of section 2 of the Act.

(iii) Respondent No. 13 belongs to village Pardhana which is no longer within the notified market area, Matlauda.

It is further prayed by the petitioner that respondents Nos. 1 to 4 (being the State of Haryana, the Agricultural Marketing Board, Haryana; the Deputy Commissioner, Karnal and the Sub-Divisional Officer, Panipat respectively) be directed not to permit respondents Nos. 5 to 14 to discharge the functions of members of the Committee and that respondents Nos. 5 to 14 be restrained from participating in the election of the Chairman and the Vice-Chairman of the Committee.

Ground (i) is without substance, in view of the decision of a Division Bench of this Court in Hargain Singh and others v. The State of Haryana and others Civil Writ No. 2756 of 1970, decided on the 4th of May, 1971, in which the vires of the Ordinance and the Amending Act have been upheld.

Ground (iii) was given up at the hearing by Shri P.S. Jain, Learned Counsel for the petitioner, and need not, therefore, be gone into.

In connection with ground (ii) Shri D.R. Puri Learned Counsel for respondent No. 7, and the learned Deputy Advocate General (Haryana) have raised a preliminary objection to the effect that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India without first approaching the Deputy Commissioner of the District in which respondent No. 7 carries on his avocation for determination of the question as to whether or not respondent No. 7 is a "producer" as defined in clause (o) of section 2 of the Act. That clause states:

(o) ''producer'' means a parson who in his normal course of avocation grows, manufactures, rears or produces, as the case may be, agricultural produce personally, through tenants or otherwise, but does not include a person who works as a dealer or a broker or who is a partner of a firm of dealers or brokers or is otherwise engaged in the business of disposal of agricultural produce other than that grown, manufactured, reared, or produced by himself, through his tenants or otherwise. If a question arises as to whether any person is a producer or not for the purposes of this Act, the decision of the Deputy Commissioner of the District in which the person carries on his business or profession shall be final:

Provided that no person shall be disqualified from being a producer merely on the ground that he is a member of a Co-operative Society;

Explanation:-The term ''producer'' shall also include a tenant.

It is contended that the clause itself provides a remedy to a party aggrieved by the nomination of the Committee of a person who is ineligible therefor and that the petitioner had no right to rush to this Court before having recourse to that remedy. The contention, in my opinion, cannot prevail. No doubt this Court does not normally entertain petitions praying for the issuance of writs in cases where another remedy is available and has not been resorted to; but that is not a rule of law but one of policy, convenience and discretion and is in the nature of a curb which this Court has placed on itself and which will be disregarded in cases where the other remedy available is merely illusory and not an effective remedy. In the present case the impugned nomination has been made by the State Government and the Deputy Commissioner, who is the authority empowered by the clause to determine the question whether or not a person is a producer for the purpose of the Act, is an officer of that Government. Rule 8 of the Punjab Agricultural Produce Markets (General) Rules, 1962, as amended by the Punjab Agricultural Produce Markets (General) Haryana Second Amendment Rules, 1970, states:

(1) For the purpose of enabling the State Government to nominate members under sub-section (2) of section 12, the Deputy Commissioner of the district concerned should send to the State Government a panel of names equal to double the number of members to be nominated on the Committee.

(2) The panel of names received under sub-rule (1) shall not be binding upon the State Government.

It is normally from amongst the persons whose names are recommended by the Deputy Commissioner in pursuance of the above-quoted rule that the State Government makes its choice of persons to be nominated to a Market Committee. It is not disputed that the name of respondent No.7 for being nominated to the Committee as a producer was recommended by the Deputy Commissioner of the district to the State Government who accepted the recommendation. For all practical purposes, therefor, the nomination of respondent No. 7 to the Committee is the act of the Deputy Commissioner himself on which the State Government has set its seal. In these circumstances an appeal to the Deputy Commissioner by the petitioner will be more or less an exercise in futility. The remedy provided by clause (o), if resorted to in the present case, would thus not be an effective remedy and I am not, therefore, inclined to refuse to exercise the extraordinary jurisdiction vested in this Court under Articles 226 and 227 of the Constitution of India.

The preliminary objection is, therefore, overruled.

I shall now discuss the merits of ground (ii), it is not disputed that in order to be eligible for nomination to the Committee as a representative of producers, respondent No. 7 must have fulfilled, as on the date of the notification, the requirements of the definition of "producer" given in clause (o) quoted above. Those requirements are:

(a) He grows, manufactures, rears or produces agricultural produce, whether personally, through tenants or otherwise.

(b) He does so in his normal course of avocation.

(c) He does not work as a dealer or broker nor is a partner of a firm of dealers or brokers nor is otherwise engaged in the business of disposal of agricultural product; other than that grown, etc., by himself.

It is the case of the petitioner that although respondent No. 7 fulfilled requirement (a) on the 7th of January, 1971, in as much as he was a grower of agricultural produce, he did not fulfil the other two qualifications for he did not grow any agricultural produce in his normal course of avocation and was a partner in a firm of "dealers" in agricultural produce. On the other hand respondent No. 7 has pleaded that he grows agricultural produce in the normal course of his avocation and that he ceased to be a partner in the firm known as Messrs Kanahya Lal Ganga Ram, which was admittedly a firm of dealers, on the 26th of March, 1970. In order to resolve the dispute, a reference to the affidavits furnished by the parties is necessary.

In paragraph 8 of the affidavit filed by the petitioner in support of the petition it is stated:

Shri Bhagat Ram respondent is a working partner of M/s. Kanahya Lal Ganga Ram which holds a licence No. 33 u/s 10 of the Act and Shri Bhagat Ram is one of the two partners of this firm. Shri Bhagat Ram does not in the normal course of his avocation grow any agricultural produce. The mere owing of a small area of agricultural land would not bring Shri Bhagat Ram respondent within the definition of the producer.

According to the affidavit filed by respondent No. 7 in reply to the petition the stand taken is that although he became a partner of Messrs Kanahya Lal Ganga Ram in 1968 but that he withdrew from the partnership on the 26th of March, 1970, through a writing of that date which he executed in favour of his partner Beli Ram. That document has been produced in original for the inspection of the Court and states, inter alia:

I have fully inspected all the books of account of firm Kanahya Lal Ganga Ram, Matlauda Mandi, Tehsil Panipat, and accounts have been settled (hisab fehmi kar lee hai). From today I have separated from the firm after all giving and taking (jumla len den karke). From today I have no connection or relation of any kind with the firm aforesaid nor shall I have (any such connection or relation) in future. * * *

From today nothing is due to the firm from me or vice versa. * * * *

The affidavit of respondent No. 7 proceeds to say that a sum of Rs. 25473.30 was found due to him from the said firm on a settlement of accounts and that it was paid to him on the 4th of March, 1971, by Shri Beli Ram above mentioned. It adds that agriculture was the main avocation of respondent No. 7 who had his family holding in village Nehra and had also been "jointly managing and arranging cultivation of about 350 bighas of land with a tractor of Shri Moti Ram son of Shri Ram Krishan of village Alupur'''', apart from cultivating agricultural land in village Matlauda. Affidavits of Beli Ram above mentioned, of Lalji Mal and Ganga Dhari, the two marginal witnesses to the document dated the 26th of March, 1970, and of Moti Ram aforesaid were also put in by respondent No. 7 in support of his assertions

These allegations were repudiated by the petitioner in his counter-affidavit wherein it was averred that respondent No. 7 had continued to be a partner in firm Kanahya Lal Ganga Ram all along, that he had never withdrawn from it and that apart from the family holding which consisted only of 5 bighas of land in which respondent No. 7 had a mere one-sixth share, he was not engaged in cultivation of any other land anywhere and that his stand to the contrary was false.

I have heard Learned Counsel for the parties at length and have no hesitation in holding that on the 7th of January, 1971, respondent No. 7 was not a producer within the meaning of the definition of that term as appearing in clause (o) of section 2 of the Act. The entire land cultivated by him on that date was no more than a one-sixth share in 5 bighas as alleged by the petitioner. No details of the land at Matlauda and Alupur which respondent No. 7 claims to have been cultivating, have been furnished to the Court, so much so that even the affidavit of Moti Ram is silent on the point. Under the circumstances neither that affidavit nor the one sworn by respondent No. 7 himself can be considered reliable documents. Had there been any truth in the assertion that respondent No. 7 was carrying on agricultural operations in a big way, there was no difficulty at all in the way of his obtaining certified copies of the relevant khasra girdawari entires and filing them in Court. Not only have such copies not been filed but even the statements made by the petitioner in his counter-affidavit have not been repudiated and those statements under the circumstances, must be considered trustworthy.

The position of respondent No. 7 on the point of his withdrawal from the partnership is no better and the payment of Rs. 25473.30 to him by Beli Ram appears to be a manipulated affair. That this is so is clear from the document dated the 26th of March, 1970, which states in categorical terms that nothing was due to respondent No. 7 from the firm with which all accounts had been settled. There is another document which belies respondent No. 7 in this behalf and that is Annexure "Z/1" to the counter-affidavit filed by the petitioner. It is comprised of a return of food-grains handled by Messrs Kanahya Lal Ganga Ram for the period from the 16th of December, 1970, to the 31st of December, 1970, and was filed by that firm with the Committee. It bears the signature of respondent No. 7 who is described as a partner of firm Kanahya Lal Ganga Ram. It is thus quite clear that respondent No. 7 continued to be a partner of the firm above-mentioned till the 31st of December, 1970, in any case a conclusion which knocks the bottom out of the case propounded by respondent No. 7 that he had withdrawn from that firm more than 9 months earlier. As it is, the account-books of that firm have not been produced so that the best evidence available to respondent No. 7 about his withdrawal from the partnership has been withheld from the Court. A presumption must accordingly be raised that if the said account-books had been produced they would have gone against the case of respondent No. 7.

It is not the case of respondent No 7 that he separated from Messrs Kanahya Lal Ganga Ram after the 31st of December, 1970. His claim that he had separated from the firm more than 9 months earlier having been negatived, at must be presumed that he continued to be a partner of that firm till the 7th of January, 1971, which is the date of the notification. That firm being admittedly a firm of "dealers" he could not be regarded as a "producer" as defined in the Act. Besides, the entire land under the cultivation of respondent No. 7 on that date has not been shown to be any more than one-sixth of 5 bighas. The exploitation of such a meagre area of land could certainly not be regarded as his normal avocation which really appears to have been his business as a partner in Firm Kanahya Lal Ganga Ram-a firm of "dealers''''. On the relevant date, therefore, he did not fulfil two essential requirements of the definition of the term "producer" and was therefore, ineligible to be nominated to the Committee as such. The notification must, therefore, be and is hereby quashed to the extent to which it declares his nomination to the Committee as representative of the producers. It toes without saying that he cannot function as a member of the Committee whether for the purpose of taking part in the election of its Chairman or its Vice-Chairman or for any other purpose. The parties are left to bear their own costs.