Kiran Singh vs The Chief Administrator

Kuldip Singh, J.—Brief facts of the case are that the petitioner, who is Ex-Chairman of the Agricultural Market Committee, Palwal (for short ''the Committee'') has invoked the writ jurisdiction of this Court for quashing the impugned order dated 04.01.1993 (Annexure P3), vide which the petitioner was asked to show cause as to why the loss of Rs. 2,00,000/- caused by him to the Market Committee be not recovered from him. The petitioner also sought the quashing of recovery notice dated 22.11.1993 (Annexure P5), vide which the Assistant Collector, 2nd Class, Palwal asked the petitioner to deposit Rs. 2,00,000/- as arrears of land revenue.

The petitioner remained Chairman of the Market Committee, Palwal from 07.05.1990 till 12.05.1991. There were sixteen other members of the Market Committee. It is claimed that on 07.04.1960, respondent No. 2-Market Committee had allotted one plot to Murari Lal Ashok Kumar for Rs. 250/- through a unanimous resolution. Sale letter dated 06.09.1964 is Annexure P1. Later on, the possession of the said plot was delivered to said Murari Lal Ashok Kumar. An application of Murari Lal Ashok Kumar for allotment of plot in lieu of the plot allotted to him on 07.04.1960 was listed in the meeting of the Market Committee held on 19.03.1991. The information was obtained regarding said plot No. 280. It came out that from time to time, alterations have been made in the map of Grain Market, Palwal. Therefore, for this reason, the plot No. 280 could not be allotted to Murari Lal Ashok Kumar, according to old map. However, other plot holders were delivered the possession. Therefore, the Market Committee unanimously passed a resolution on 19.03.1991, allotting plot No. 201 to Murari Lal Ashok Kumar in lieu of earlier plot No. 280. The possession of plot No. 201 was accordingly delivered to him. The said resolution was annulled by the Chief Administrator, Haryana State Agricultural Marketing Board, while exercising powers u/s 33(4) (I) of Punjab Agricultural Produce Markets Act, 1961 (for short ''the Market Act''). Impugned notice, dated 04.01.1993 (Annexure P3) was also issued to the petitioner for depositing of Rs. 2,00,000/- as loss caused to the Market Committee due to his wrongful act. The petitioner wrote a letter to respondent No. 1 on 01.01.1993, seeking necessary information to submit the reply. Respondent No. 1 passed the impugned order dated 04.01.1993 (Annexure P3) asking the petitioner to deposit Rs. 2,00,000/-. The petitioner claims that he has not been given opportunity of hearing by a written notice as required under Sections 29 and 33(4)(I) of the Market Act. The petitioner also claims that all the seventeen members have passed the resolution/order and liability could not be exclusively fastened upon him. The action of the respondents is in violation of Sections 29 and 33(4)(I) of the Market Act and also hit by Article 14 and 16 of the Constitution of India.

The stand of respondent No. 2 is that the petitioner has got equally efficacious alternative remedy by way of filing revision before the State Government u/s 42 of the Market Act. Therefore, the writ petition is not maintainable.

It was further averred that u/s 18 of the Market Act, no permanent transfer of any immovable property could be made without prior approval of the Chief Administrator of the Board. Further stand was taken that the Market Committee had passed resolution No. 3, dated 16.10.1970, whereby it was decided that the plots sold before 26.05.1961 are approved, whereas plot sold on or after 26.05.1961 are not approved. The amount deposited by the applicants on or after 26.05.1961 was refunded. As the applications for allotment of plot on or after 26.05.1961 were rejected, therefore, there was no question of allotment of the plot to the applicants. The Secretary of the Committee could not sign the sale deed, as, in the absence of the Chairman of the Committee, the Vice-Chairman can issue the letter. The allotment can only be issued after the approval from the competent authority. It was denied that any sale deed was executed on 06.09.1964 in favour of Murari Lal Ashok Kumar, as claimed by the petitioner. It was stated that without waiting for the approval of the Chief Administrator, the petitioner issued a letter dated 21.03.1991, whereas the Chief Administrator annulled the resolution of the Market Committee on 05.04.1991. Therefore, the act of the petitioner is wholly illegal. The issuance of impugned show cause notice dated 04.01.1993 (Annexure P3) u/s 29(2) of the Market Act was admitted.

It was averred that the petitioner did not submit reply, which was to be submitted within one month i.e. 03.02.1993 and rather sent a letter on 09.02.1993, asking for certain documents. Therefore, the matter was referred to the Collector for making the recovery.

We have heard learned counsel for the parties and have also carefully gone through the file.

The short question, which has been arisen before us, is as to whether provisions of Section 29 of the Market Act were followed to impose penalty of Rs. 2,00,000/- upon the petitioner? Section 29 of the Act provides as under:

"29. Liability of member or employee of committees or the Board-(1) Every person shall be liable for the loss, waste or misapplication of any money or other property belonging to a committee, if such loss, waste or misapplication is proved to the satisfaction of the Board to be the direct consequence of his neglect or misconduct in the performance of duties as a member or an employee of the committee, and he may, after being given an opportunity by a written notice to show cause why he should not be required to make good the loss, be surcharged with the value of such property or the amount of such loss by the Board, and if the amount is not paid within one month from the expiry of the period of appeal prescribed by sub-section (3) it shall be recoverable as arrears of land revenue:

Provided that no such person shall be called upon to show cause after the expiry of a period of four years from the occurrence of such loss, waste or misapplication or after the expiry of two years from the time of his ceasing to be a member of an employee, whichever expires first.

(2) Every person shall be liable for the loss, waste or misapplication of any money or other property belonging to the Board, if such loss, waste or misapplication is proved to the satisfaction of the State Government to be the direct consequence of his neglect or misconduct in the performance of duties as a member or an employee of the Board, and he may, after being given an opportunity by a written notice to show cause why he should not be required to make good the loss, be surcharged with the value of such property or the amount of such loss by the State Government, and if the amount is not paid within one month from the expiry of the period of appeal prescribed by subsection (3) it shall be recoverable as arrears of land revenue :

Provided that no such person shall be called upon to show cause after the expiry of a period of four years from the occurrence of such loss, waste or misapplication or after the expiry of two years from the time of his ceasing to be a member or an employee, whichever expires first.

(3) The person against whom an order under sub-section (1) or sub-section (2) is made may, within one month of the service of such order, appeal to the State Government which shall have the power of confirming, modifying or disallowing the surcharge."

A perusal of Section 29 of the Market Act shows that in case of loss or waste due to the neglect or mis-conduct of any member or employee of the Committee, he could be asked to make good the loss after issuing a show cause notice. If the amount mentioned in the show cause notice is not paid within one month, the same is liable to be recovered as arrears of land revenue.

A perusal of show cause notice dated 04.01.1993 reveals that the petitioner was asked to show cause why he should not surcharged to make good the loss amounting to Rs. 2,00,000/- caused by him to the Market Committee. Even if, no reply is received within the period of one month, the Chief Administrator was required to pass an order imposing the penalty of Rs. 2,00,000/- to be recovered from the petitioner. But no order after serving show cause notice was passed. In fact, copy of the show cause notice dated 04.01.1993 was sent to the Deputy Commissioner, Gurgaon, for recovery without passing any order. Show cause notice (Annexure P3) cannot be treated as order of recovery in terms of Section 29 of the Act.

Therefore, without going into the merits of the controversy, we quash recovery notice dated 22.11.1993 (Annexure P5) issued by the Assistant Collector, 2nd Class, Palwal, asking the petitioner to deposit the penalty of Rs. 2,00,000/-, as arrears of land revenue, as no order of imposition of penalty of Rs. 2,00,000/- has been passed by the Chief Administrator.

However, it will be always open to the Chief Administrator to proceed further with the show cause notice dated 04.01.1993 (Annexure P3) and pass an appropriate order, in accordance with law after giving an opportunity of hearing to the petitioner, as required u/s 29 of the Market Act. The petition is accordingly allowed to the above noted extent.