Chinnappa Reddy, J.:-
(1) The petitioners are merchants of anakapalli. They have been making persistent efforts to thwart the levy of fees by the anakapalli market committee. This writ petition is one such attempt. They object to the levy of fees on two grounds : (1) section 12 of andhra pradesh agricultural produce and livestock markets act, 1966 is ultra vires in so far as it authorises the levy of fees on transactions taking place outside the market established by the market committee, though within the notified market area. (2) the notification declaring the notified market area is invalid as the condition precedent to the declaration was not fulfilled.
(2) The government of andhra pradesh, purporting to set under section 5 (1) (i) of the andhra pradesh agricultural produce and livestock markets act, by g. O. Respondent. No. 899 dated 11 - 7 - 1969, nominated nine persons to represent the growers of agricultural produce and owners of livestock on the agricultural market committee of anakapalli. The nomination of those nine persons was set aside by narasimham, c. J. , and kuppuswamy, j. , in w. P. No. 1256/70 (andh pra) on the ground that there was no consultation with the director of marketing as contemplated by section 5 (1) (i) of the act. The judgment of the high court was pronounced on 27 - 7 - 1971. In the interregnum the market committee had functioned as if it had been properly constituted. Several acts had been done, notifications issued and proceedings taken by the committee. We may mention here that the total number of members of the anakapalli market committee is sixteen and the quorum for a meeting of the market committee of sixteen members is nine under rule 29 of the andhra pradesh agricultural produce and livestock markets act 1969. Without the participation of some at least nine of the member representing the growers of agricultural produce and owners of livestock there could never be a meeting of the anakapalli agricultural market committee as the total number of the remaining members was only seven. Without the participation of those members no action could have been taken by the committee under any of the provisions of the act. One of the notification issued by the market committee was that declaring the limits of the anakapalli market under section 4 (3) (c) of the act. The notification was published in the andhra pradesh gazette part ii dated 5 - 3 - 1970 at page 249. By this notification the entire area within the limits of anakapalli municipality was declared to be market area of anakapalli market. The notification by the market committee was followed up by a notification by the government under section 4 (4) of the act. , declaring the area within the radius of 29 kilometers around the office of the agricultural market committee, anakapalli as the notified market area. A result of the notification by the government was that the market committee was thereafter enabled to levy fee on any notified agricultural produce, livestock or products of livestock purchased or sold in the market area. It is the levy of this fee that is questioned in the application for the issue of a writ.
(3) The first submission of sri babul reddy learned counsel for the petitioners was that section 12 of the act which authorised the levy of fees was ultra vires to the extent of the transactions carried on outside the limits of the market area, but within the limits of the notified market area. According to him, the act did not contemplate the rendering of any services in respect of transactions carried on beyond the limit of the markets and, therefore, no fees was leviable. We do not agree with this submission. According to the scheme of the act, the government first notifies an area as a notified area under section 3 of the act. Thereafter the government constitutes a market committee for the notified area. The market committee then establishes in the notified area such number of markets as directed by the government. Under section 4 (3) (c) of the market committee is required to declare by notification the limits of every market established by it. The limits of every market so declared is known as the market area of that market. Thereafter the government is required to declare by notification the market area and such other area adjoining thereto as may be specified to be a notified market area for the purpose of the act. Under section 12 the market committee is empowered to levy fees on any notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area and not merely in the market area. The learned counsel argued that fees were not leviable because the market committee was required to perform no service and provide no facility outside the limits of the market area. The argument proceeded on the assumption that sales and purchases of notified agricultural product, livestock and products of livestock outside the market (sic). It says notwithstanding anything to sub - section (1) , no person shall purchase or sell any notified agricultural produce, livestock and products of livestock in a notified market area outside the market in that area. Another unfounded assumption of the learned counsel was that the activities of the market committee and the facilities provided by it were confined by the act to the market area only. The establishment maintenance and improvement of the market is one of the purpose for which the market committee fund might be expended under section 15 of the act. The other services such as the provision and maintenance of standard weights and measures, the collection and dissemination of information regarding all matters relating to crop statistics and marketing in respect of notified agricultural produce, livestock and products of livestock schemes for the extension or cultural improvement of notified agricultural produce including the grant of financial aid to scheme for such extension or improvement within such area undertaken by other bodies or individuals, propaganda for the improvement of agriculture, livestock and products of livestock and thrift, the promotion of grading services, measures for the preservation of the food grains, etc. , are not services which are confined to the market area only. They are services which are required to be performed by the market committee and which may be rendered throughout the notified market area without being confined to the market. Further, the facilities provided in the market are available for the use of every grower of agricultural produce and owner of livestock within the notified market area. It is too much to expect the market committee to provide the same facilities as are available in the market area in every nook and corner of the notified market area. It is up to the growers of agricultural produce and owners of livestock to avail themselves of the facilities afforded in the market. None can complain against the levy of licence fees on the ground that some may not avail themselves of the facilities available in the market. We are unable to hold that section 12 of the act is ultra vires either in whole or in part.
(4) The next submission of sri babul reddy was that the notification by the government declaring the notified market area of anakapalli market was invalid. His argument ran thus : under the scheme of the act the declaration of the notified market area by the government had to be preceded by a declaration of the market area (i. E. The limits of the market) by the market committee. The declaration of the market area said to have been made by the market committee and published in andhra pradesh gazette on 5 - 3 - 1970 was no declaration in law as there was no legally constituted market committee in existence at that time. In w. P. No. 1256 of 1970 (andh pra) the high court found that the nomination of nine out of sixteen members of the committee was invalid. The market committee was, therefore, illegally constituted and incompetent to make the declaration. If the declaration of the market area by the illegally constituted market committee was invalid, it followed that there was no legally defined market area and hence no notified market area either.
(5) It is true that in w. P. No. 1256 of 1970 (andh pra) it was held that the appointment of nine members of the market committee by the government was held to be illegal as there was no consultation with the director of marketing as prescribed by section 5 of the act. But the declaration under section 4 (3) (c) was made before the appointment of the members of the committee was declared invalid by the high court. On the date when the declaration under section 4 (3) (c) was made the high court had not yet declared the appointment of the members of the committee invalid and the committee was undoubtedly functioning as if it was legally constituted committee. It was doing so under colour of the appointment made by the government in purported exercise of the governments powers under section 5 of the act. There was thus in existence on the date of the declaration under section 4 (3) (c) a de facto market committee. The question for consideration, therefore, is whether the acts of the de facto committee can be upheld as valid in law.
(6) As we shall presently point out, it is now a well - established doctrine that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of the officers de jure. (pulin behari v. King emperor, (1912) 15 cal lj 517 at p. 574). The doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who held office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine.
(7) In england, the de facto doctrine was recognised from the earliest times. In pulin behari v. King emperor (1912) 15 cal lj 517, sir asutosh mookerjee j. , traced the first of the reported cases where the doctrine received judicial recognition as the case of abbe de fontaine decided in 1431. Mookerjee j. , noticed that even by 1431 the de facto doctrine appeared to be quite well known. After 1431 the doctrine was again and again reiterated by english judges, mookerjee, j. , referred to these cases and said :
"from this period, the de facto doctrine rapidly spread in england and became firmly established, as is clear from a long series of decisions dealing with the various features and expanding its principles to meet the requirements of diverse circumstances and different items. We may briefly state that these cases illustrate the following positions : first, that a person presented by an usurping patron, who was wholly without authority to present, was a good person de facto : abbey of fontaine, (1431) yb 9 h6 fol 32. Secondly that a clerk of a lord of the manor holding a manorial court without any authority whatever and deriving colour only from his known relation to the lord of the manor as a simple clerk,, was a good officer de facto knowles v. Luce, (1580 moore kb 109) ; thirdly so of the servant of a steward holding a manorial court without authority from the steward or the law : lord dacres case (1553) 1 leonarad 288) ; fourthly, so of the deputy of a deputy to whom authority could not be delegated; leak v. Howel, ( (1596) cro eli 533) ; fifthly so of the steward of a manor appointed not by the lord who alone had the power to appoint, but by county officers who had no authority whatever to appoint : harris v. Jays, (1599 cro eli 699) ; sixthly reaffirmation of the doctrine by lord holt that the deputy of a deputy has sufficient colour to make him a de facto officer ; parker v. Kett, ( ( 1693 - 1701) 1 ld ravm 658 = 12 mod 467) , which is not inconsistent with the decision in rex v. Lide, ( ( 1738) andres 163) and, seventhly the adoption of lord holts definition that an officer de facto is none other than he who has the reputation of being the officer he assumes to be. Although he is not such in point of law, by lord ellenborough in rex v. Redform level, ( (1805) 6 east 356) ; amongst later decisions in which the existence of the de facto doctrine as well - settled rule of law, is fully acknowledged, may be mentioned. Margaret v. Hannan, ( ( 1819) 3 b and ald 266 = 22 rr 378). R. V. Herefordshire, jj ( (1819) 1 chitty 700) r. V. Slythe, ( (1826) 6, b and c 240 = 30 rr 312) , de grave v. Monmouth ( (1830) 4 c andp 111) , r. V. Dolgelly, ( (1838) 8 a and e 561) , penney v. Slade ( (1839) 5 bing nc 319) , r. V. St. Clement, ( (1840) 12 a and e 177) , r. V. Mayor of cambridge, ( (1840) 12 a and e 702) , r. V. Cheshire,, ( (1840) 4 jur 484) scadding v. Lorant, (1851) 3 hlc 418) affirming ( (1849) 13 qb 706) , lancaster v. Heaton, ( (1858) 8 e andb 952) , waterloo v. Cull, ( (1858) 1 el and el 213) and mahorry v. East holyford, ( (1875) lr 7 hl 869 = ir 9 cl 306)."
(8) In seadding v. Lorant, (1851) 3 hlc 418 the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and not de jure. The lord chancellor observed as follows : - - -
"with regard to the competency of the vestry men, who were vestry men de facto but not vestry men de jure, the make the rate, your lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whole title to the office o the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the properties of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also led to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands."
(9) The de facto doctrine has received judicial recognition in the united states of america also. In state v. Gardner (cases of constitutional law by mc gonvey and howard : third ed. 102) the question arose whether the offer of a bribe to a city commissioner whose appointment was unconstitutional was an offence. Bradbury, j. , said
"we think that principle of public policy, declared by the english courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is an applicable to the conditions now presented as they were to be conditions that then confronted the english judiciary. We are not required to find a name by which officers are to be know, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers."
(10) In norton v. Shelby county, ( (1886) 118 us 425 = 30 law ed. 178) field, j. , observed as follows: - -
"the doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority s to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be allied in question. In cooleys"
Constitutional limitations, english edition, volume ii p. 1355 it is said,
"an officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His colour of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed or made in favour of a party not having the legal qualifications; or it may come from the public acquiescence in the qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the state or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow fro them for the protection of the public and of third parties. There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collateral."
(11) The de facto doctrine has been recognised by indian courts also. We have already referred to pulin behari v. King emperor, (1912) 15 cal lj 517 where mookerjee, j. , traced the history of the doctrine in england, mookerjee, j. , further observed as follows :
"the substance of the matter is that the necessity, to protect the interest of the public and the individual where the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted at his or their pleasure, the collaterally challenge the authority of and to refuse obedience to the government of the state and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, in subordination and disorder of the worst kind would be encouraged. For the good order and peace of society their authority must be upheld until in some regular mode their title is directly investigated and determined."
(12) The de facto doctrine was invoked by the allahabad high court in jai kumar v. State, (1968 all lj 877) (fb) to uphold the judgments of the district judges whose appointments had been declared invalid by the supreme court. Dwivedi, j. , after referring to the rule against collateral challenge and the de facto doctrine said.
"the first rule establishes that the acts of a de facto judge are not suffered to be questioned because of the want of valid appointment, in a collateral proceeding. His title may be challenged only in a proceeding for a writ of quo warranto or in a suit for a declaration of his status or legal character, to which he is a party. These two proceedings are direct proceedings to challenge his title. Any other proceeding is a collateral proceeding. Accordingly, his title cannot be challenged in a proceeding before him, or in appeal or revision from his order or in a proceeding for certiorari. The second rule establishes that the acts of a de facto judge are suffered to be valid as to the public and the litigants before him until his title is investigated and determined against him in a direct proceeding. A de facto judge is one who has the reputation of being the judge although he is not a judge in the eye of law."
(13) In i. J. Rajasekhar v. G. Immanuel, (criminal appeal no. 728/1974) kuppuswami and kuktadar, jj. , upheld the judgments of district judges whose appointment has been declared unconstitutional by the supreme court. The de facto doctrine was invoked. Kuppuswami, j. , observed :
"logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as valid judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date. Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity."
Though, the allahabad and the andhra pradesh high courts were concerned with the question of the validity of judgments of de facto judges, the very observations of the learned judges extracted by us show that the de facto doctrine is a doctrine of general applicability which may properly be invoked to validate acts of de facto public officers. We have, therefore, no doubt that the declaration of market area published in the andhra pradesh gazette on 5 - 3 - 1970 is valid despite the fact that the market committee was illegally constituted. In the result the writ petition is dismissed with costs. Advocates fee rs. 100. 00.
(14) Petition dismissed.