Bhupen Roy vs State of Assam and Others

P.G. Agarwal, J.—Heard Shri K.N. Choudhury, learned Counsel for the Petitioner and Mr. A.K. Phukan, learned Advocate General appearing for the State of Assam.

The Petitioner, Shri Bhupen Roy, Chairman, Assam State Agricultural Marketing Board, for short ''the Board'' was served with a show cause notice vide letter No. AGA.364/98/27 Dated: 27th August, 2001 u/s 3(7) of the Assam Agricultural Produce Market Act, 1972, read with Rule 3(5) of the connected Rules, 1975 to show cause as to why he should not be removed from the post of Chairman of the Board. As many as, 3 charges were mentioned in the said notice and the Petitioner was given 3 week''s time to furnish his reply. Petitioner has filed the present writ petition praying for quashing of the said notice. The Respondents have challenged the maintainability of the writ petition on the ground that this was a show cause notice only and the Petitioner is at liberty to raise objection in his reply and thereafter the matter will be disposed of by the concerned authority in accordance with law. Learned Counsel for the writ Petitioner, on the other hand, submits that charge No. 1 is not legally tenable and as such it may be quashed by the court. So far the Charge No. 2 and 3 are concerned, it is seen that these are questions of facts which the Petitioner is required to reply and there is no scope for quashing of the said charges in this writ petition.

Upon hearing the learned Counsel for both the sides it is felt that the question of law is involved in the matter and as such it is proposed to consider the matter. The Charge No. 1 reads as follows:

Charge No. 1: You were appointed as Chairman of the Assam State Agricultural Marketing Board u/s 3(1)(a) of the Assam Agricultural Produce Market Act, 1972 as amended vide Notification No. AGA.616/75/pt.V/54 dated 6.11.96 for the first term.

Subsequently, you were again appointed as Chairman of the Assam State Agricultural Marketing Board under provision of the same Section of the Act vide Notification No. AGA.364/98/6 dated 31.12.98 for the consecutive second term.

Again vide Notification No. AGA.364/98/16 dated 27.3.2001 under provision of the same Marketing Board for the consecutive third term and since then you are functioning as Chairman of the Board.

Under provision of Sub-section (5) of Section 3 of Assam Agricultural Produce Market Act, 1972 as amended from time to time, no person shall be nominated as Chairman of the Board consecutive for more than two terms. After serving for a long time in the Assam State Agricultural Marketing Board, you are fully, conversant with the different provisions of the Assam Agricultural Produce Market Act, 1972 as amended and the Rules framed thereunder. Your appointment as Chairman of the Board for consecutive third term is in violation of provision of Sub-section (5) of Section 3 of the Act and attracts disqualification for holding the office of the Chairman. You did not raise any objection to continue as Chairman of the Board in violation of the provision of the Act and Rules framed thereunder and also did not bring it to the notice of the Govt. of Assam in Agricultural Department before you assumed the charge of the Chairman for the third consecutive term, instead you are continuing to function as Chairman. Now, therefore, in view of the illegalities involved you are considered to be disqualified for holding the office of the Chairman of the Board any more.

According to the Petitioner the Board was constituted vide order dated 22nd December, 1995 with Shri Hemanta Talukdar as Chairman. The term was for 3 years from the date of its first meeting held on 29.12.92. However, vide Annexure-2 dated 6th November, 1996 the Petitioner was appointed as Chairman with effect from the date of publication of the notification. Sub-clause (4) of Section 3 provides, "The term of the Office of the Chairman and non-official members of the Board shall be 3 years." In view of the above, Shri K.N. Choudhury, learned Counsel for the Petitioner has submitted that this period of 3 years in case of Petitioner should be counted from the date of notification, i.e. 6th November, 1996. I find no force in the above submission in view of the specific provisions contained in Sub-clause (8) of Section 3 of the Act which provides that in case of resignation or removal of the Chairman, such person (new incumbent) shall remain in the office for the remaining period of the Chairman or his predecessor. The term of Shri Hemanta Roy as Chairman was till the end of December, 1998 and as such the Petitioner was rightly allowed to continue as Chairman of the Board till that period. Vide Annexure-4 dated 31st December, 1998 the Petitioner was appointed as Chairman of the Board on expiry of the term. There is no dispute at the Bar that in view of Annexure-4 and in view of the provisions of Sub-clause(4) of Section 3 of the Act, the Petitioner was to continue till 31st December, 2001. However, vide notification dated 30th March, 2001, it was provided as below:

ORDERS BY THE GOVERNOR NOTIFICATION

Dated Dispur, the 30th March, 2001. No. AGA, 364/98/16: In exercise of the powers conferred u/s 3(1) of the Assam Agricultural Produce Market (Amendment) Act, 2000 the Governor of Assume is pleased to appoint the following persons as members of the Assam State Agricultural Marketing Board with immediate effect and until further orders.

Shri Bhupen Roy, MLA Chairman

2...

3...

4...

5...

6...

7...

8...

9...

10...

11...

12...

13...

14...

15...

16...

17...

18...

19...

Sd/-L/Rynjah Principal Secy. To the Govt. of Assam, Agricultural Department.

...

...

The above notification is the bone of contention between the parties. The Respondent State claims that it amounts to reappointment of the Petitioner as Chairman for the 3rd term which is specifically barred under the proviso to Sub-clause (e) of Clause (5) of Section 3 of the Act. The proviso reads as follows:

Provided further that no person shall be nominated as Chairman of the Board consecutively for more than two terms.

The provision of law is very specific and there cannot be any dispute that no person can be nominated as Chairman consecutively for more than two terms. Learned Counsel for the writ Petitioner however submits that Annexure-5 as quoted above, does not amount to reconstitution of the Board or nomination of the writ Petitioner as Chairman for the third term. The question that arises for determination is whether the Board was reconstituted with the writ Petitioner as Chairman vide notification dated 30th March, 2001 or whether certain persons were appointed as Members of the Board in view of the amendment of the Act in the meantime providing for a broad based Board having more members.

In order to examine the matter in its proper perspective, as desired by this Court, learned Advocate General has produced the relevant file. On perusal of the same it is seen that after the expiry of the period of the Board, the Petitioner was appointed as Chairman vide order dated 31.12.98 vide Annexure-4. However, from, the note sheet dated 18.12.99 and 7.3.2000 it is seen that the Board was not reconstituted on the ground that an amendment in the Act was under process. The specific direction was "Let us wait till the Act is amended which is under process". The Act was in the meantime amended under Sub-clause (a) of Section 3 of the Act, the Board was required to be constituted within six months of the suppression of the earlier Board which in the present case expired on 29.12.98. The fact that no Board was constituted is clear from the letter No. MB/1999/2000/179 dated 18th December, 1999, issued by the Secretary of the Board and addressed to the Commissioner and Secretary to the Govt. of Assam, Agricultural Department.

From Annexure-5 dated 30th March, 2000, it is seen that the members of the Board were appointed as per the amended provisions of the Act. The language of the notification is very clear. The fact that the name of the writ Petitioner appears at Sl. No. 1 as Chairman is not relevant as Petitioner was never appointed as Chairman vide Notification dated 30th March, 2001. The Petitioner was already appointed as Chairman vide Notification dated 31.12.98 and as he was existing Chairman, his name was merely shown in the Annexure-5. Thus this is not a case of re-constitution of the Board by the impugned Notification dated 30th March, 2001. The writ Petitioner was not appointed as Chairman for the three consecutive term. He was appointed as Chairman for the first term in the year 1996 and for the second term vide notification dated 31.12.98 and the term has not expired as yet. The Petitioner has not invited any disqualification as stated in the Charge No. 1, quoted above. In view of the above, the Charge No. 1 of the impugned notice stands quashed, Petitioner will be however required to show cause in respect of Charge No. 2 and 3. As the Petitioner has approached this Court for quashing of the entire show cause notice, we provide Anr. seven days time to file his show cause as required under the Rules. Respondent authority shall consider the show cause, if any filed within the time frame given by us and proceed in accordance with law. The writ petition stands disposed accordingly. There shall be no order as to costs. Let the records produced by the learned Advocate General be returned.