wp196.11.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.196/2011 M/s. Pankaj Kumar Neeraj Kumar and its partners -vs- Nagpur Krushi Utpanna Bazar Samiti and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri R.R.Joharapurkar, learned counsel for the petitioner Shri U. Dastane, learned counsel for the respondent No.1 Shri R.Shah, learned counsel for the respondent Nos.2 to 4 Shri D.B. Patel, learned AGP for the respondent No.4. CORAM : SMT. VASANTI A. NAIK, J. DATE : 29.08.2011. By this petition, the petitioner impugns the order passed by the Director of Marketing, Maharashtra State, Pune on 22nd November, 2010 dismissing an appeal filed by the petitioner under the provisions of Section 52B of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963. The petitioner is a partnership firm and claims that it was holding shop block No.45 which was allotted to the respondent No.2 by the respondent No.1, Agricultural Produce Marketing Committee, Nagpur. It is the case of the petitioner that without issuing any notice to the petitioner, the shop block was seized from the petitioner and the petitioner was dispossessed from the shop block on 24/04/2009. According to wp196.11.odt 2/4 the petitioner, the Agricultural Produce Marketing Committee ought to have issued notice to the petitioner, as both the Agricultural Produce Marketing Committee and the respondent No.2 were aware that the petitioner was in occupation of the shop block. The petitioner claims that after securing the necessary information under the Right To Information Act, the petitioner filed an appeal against his dispossession and the action taken by the Agricultural Produce Marketing Committee before the Joint Registrar under Section 52B of the Act of 1963. When the petitioner noticed that the appeal was not tenable, the petitioner withdrew the same on 20/08/2009 and instead filed an appeal before the respondent No.4, the Director of Marketing, sometime in the first week of September, 2009 along with an application for condonation of delay in filing the appeal. The Director of Marketing, however, by the impugned order dated 22/11/2010 dismissed the appeal by holding that the appeal was not tenable under Section 52B of the Act of 1963 and also because it was not filed within a period of thirty days from the alleged action of the Agricultural Produce Marketing Committee. On hearing the learned counsel for the parties and on perusal of the impugned order dated 22/11/2010, it appears that the respondent No.4 was justified in dismissing the appeal filed by the petitioner on the ground that it was not tenable under the provisions of Section 52B of the Act of 1963. The case of the petitioner surely did not fall within the provisions of wp196.11.odt 3/4 Sub-section (1) of Section 52B of the Act of 1963. The Agricultural Produce Marketing Committee had taken action against the respondent No.2, the allottee of the shop block after issuing notice to the respondent No.2. As the respondent No.2 did not have any objection to the notice issued by the Agricultural Produce Marketing Committee, the Agricultural Produce Marketing Committee took the possession of the shop block on 24/04/2009. The dispute related to the Agricultural Produce Marketing Committee and the respondent No.2, as according to the Agricultural Produce Marketing Committee, the petitioner had no concern with the shop block and the petitioner was illegally occupying the same. In this background, the respondent No.4 held that the matter did not relate to an action or decision taken by the Agricultural Produce Marketing Committee under any of the provisions of the Act. Since the shop block was not allotted or leased to the petitioner by the Agricultural Produce Marketing Committee, the respondent No.4 held that the appeal filed under Section 52B of the Act of 1963 was not tenable. Though there is a dispute raised by the learned counsel for the parties in regard to the applicability of the provisions of Section 5 of the Limitation Act to an appeal filed before the respondent No.4 under Section 52B of the Act of 1963 and the learned counsel for the parties had relied on the decisions of the Hon’ble Supreme Court reported in (1985) 3 Supreme Court Cases 590 and 1995 Supp (4) Supreme Court wp196.11.odt 4/4 Cases 578, it would not be necessary for this Court to deal with this aspect of the matter, as the respondent No.4 had rightly held that the appeal filed by the petitioner under Section 52B of the Act of 1963 was not tenable. If the appeal is not tenable, it would be a futile exercise to remand the matter to the respondent No.4 to consider whether the provisions of Section 5 of the Limitation Act apply to the proceedings under Section 52B of the Act of 1963 or not and in case, they apply whether the delay in filing the appeal ought to have condoned. The finding recorded by the respondent No.4 in regard to the tenability of the appeal under Section 52B of the Act of 1963 is just and proper and calls for no interference in exercise of the writ jurisdiction. The respondent No.4 has rightly held that it was for the petitioner to avail the appropriate remedy to challenge the action of the respondent Nos.1 and 2 in case, the petitioner was aggrieved by the same. In the result, the petition fails and is dismissed with no order as to costs. JUDGE KHUNTE