A.D. Koshal, J. - (1.) 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.
(2.) 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.
(3.) 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: 8. (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.;