Ashok Yeshvantrao Kharade And ... vs Keshavrao Santoshrao Dehankar ...
2001 Latest Caselaw 407 Bom

JUDGMENT

B.N. Srikrishna, J.

1. This writ petition under Article 226 of the Constitution of India challenges the appointment of the 1st respondent as Chairman of the Agricultural Produce Market Committee, Katol, District Nagpur. The petitioners are agriculturists by occupation at Katol. The 1st respondent is carrying on the occupation as a trader at Katol. The 2nd respondent is the Agricultural Produce Market Committee, Katol, District Nagpur (for short "APMC").

2. In order to regulate marketing of agricultural and certain other produce in market areas and for establishing markets therefore, the State Legislature enacted the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (hereinafter referred to as "the Act"). The aim of the Act is to eliminate exploitation of agriculturists by middlemen and to eliminate unfair trading/marketing practices employed by such middlemen. Pursuant to section 11 of the Act, an APMC was established for the revenue area comprising Tahsil Katol, District Nagpur by the name Maharashtra Agricultural Produce Market Committee, Katol. Under the Act every APMC constituted under the Act is a body corporate with perpetual succession and common seal. It is also deemed to be the local authority for all purposes contemplated under section 12 of the Act. The Chairman of the Committee exercises several public functions and performs duties of a public nature. Rule 92 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as "the Rules") enunciates the functions and powers of the Chairman of the Committee. There does not appear to be any dispute that the Chairman holds a public office and, consequently, is amenable to writ jurisdiction.

3. The Act provides that every market committee shall be presided over by the Chairman elected by the APMC from amongst its elected agriculturists. Section 19 of the Act which deals with this subject reads as under :

(1) Subject to the provisions of sub-section (2) of section 13, every Market Committee shall be presided over by a Chairman, who shall be elected by the Committee from among its elected agriculturist members. The Committee shall also elect one of its elected agriculturist members to be the Vice-Chairman.

(2) Notwithstanding anything contained in sub-section (1), the Chairman or as the case may be, Vice Chairman holding office as such on the date of commencement of the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment) Act, 1987, shall continue to hold office as such Chairman or Vice-chairman, irrespective of the category of member, to which he belongs, until expiry of his term office unless he resigns, or is disqualified or removed earlier.

(3) Notwithstanding anything contained in sub-section (2), a member, Chairman or Vice Chairman shall, not continue to hold office as such member, Chairman or Vice Chairman of not more than one Agricultural Produce Market Committee, on the date of the commencement of the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment) Act, 1987".

4. Section 13 of the said Act reads as under :---

a) Ten members of the committee should be the agriculturist residing in the market area, sever of whom shall be elected by members of the managing committees of the agricultural credit societies and multi purpose co-operative societies functioning in the market area and three shall be elected by members of village panchayats functioning therein;

b) Two members to be elected by traders and commission agent holding licences to operate as such in the market area,

c) Chairman of the co-operative societies doing business of the processing or marketing of agricultural produce in the market area or in his absence a representative of the co-operative society,

d) Chairman of the panchayat samittee within the jurisdiction of which the market area or major portion thereof is situated or the representative elected by such panchayat samittee.

e) President or Sarpanch of the local authority (other than panchayat samittee) within the jurisdiction of which the principal market is situated or the representative elected by such authority,

f) The Deputy Registrar of co-operative societies of the district or his representative,

g) The assistant cotton extension officer or where there is no such officer the district agricultural officer of the department of agriculture".

5. On 11-1-99, the Sub-Divisional Officer, Katol, issued a notice calling a meeting on 22-1-99 of all the members of the respondent No. 2 committee for electing Chairman and Vice-Chairman of the 2nd respondent APMC. 16 out of 18 members of the 2nd respondent were present on that date. There was a contest for the post of Chairman between the 1st respondent and one Tarachand Ramraoji Gotmare. Respondent No. 1 secured 14 votes while Gotmare secured only 2 votes. Consequently, the 1st respondent was declared elected by the Sub-Divisional Officer, Katol who was the Election Officer for the election of Chairman and Vice Chairman of the 2nd respondent.

6. The petitioners contend that the 1st respondent is disqualified under section 19 of the Act to get elected to the post of Chairman. According to the petitioners, only those members of the Market Committee who are agriculturist members within the meaning of section 13(i)(a) are eligible to contest the election for the post of Chairman. The petitioners contend that the 1st respondent at all material times was not an agriculturist member of the committee and, therefore, was ineligible to contest the election and unqualified to continue to occupy the office of the Chairman. It is contended that the 1st respondent's election to the post of Chairman is void ab initio since he was a member of the 2nd respondent No. 2, committee, in his capacity of the Chairman of a Co-operative society, by name The Agricultural Co-operative Ginning, Pressing Society Ltd., Katol, doing business of processing in the market area of respondent No. 2. It is also contended that the 1st respondent contested the election under section 13(1)(a) of the Act from the constituency of co-operative societies, functioning, in the market area of respondent No. 2 committee, but lost the said election. It is contended in the petition that the 1st respondent is by profession a trader and holds a licence as such and that his name appears at Serial No. 38 of the list of voters of Traders and Commission Agent for 1998. On these grounds, the petitioners pray for setting aside the election of the 1st respondent, for a declaration that the post of Chairman of the 2nd respondent committee has fallen vacant and a permanent injunction to restrain the 1st respondent from functioning as Chairman of the 2nd respondent.

7. When this petition came up for hearing before the Division Bench of R.K. Batta and P.S. Brahme, JJ., on 29-11-2000, the learned Judges were of the view that there was a difference of opinion between the judgment of two Division Bench judgments of this Court on this issue. The first is Chintaman s/o Raoji Meshram v. District Deputy Registrar, Co-operative Societies, Bhandara and others, which was followed by an unreported judgment of a Division Bench of this Court in Writ Petition No. 1813/1993, Mohan Saoji v. The Collector, Buldhana and others. The other judgment is Jalandar Jayaram Patil v. Collector, Thane and others, . The Division Bench of Batta and Brahme, JJ., was of the opinion that there is a conflict of views between the decided cases of different Division Benches on the question as to whether the Act and the Rules provide for distinct constituencies or whether no separate agriculturists constituency is carved out under the Act and the Rules. Hence, the learned Judges of the Division Bench were of the view that the following questions of law needed reference to a Full Bench for resolution of the conflict :---

"1) Whether separate and distinct constituency of agriculturists is carved out either under the Act or the Rules ?

2) Whether the Chairman of the Agricultural Produce Marketing Committee elected under section 19(1) of the said Act, must be an agriculturist member elected under section 13(1)(a) thereof ?"

8. Pursuant to the recommendation made by the Division Bench of Batta and Brahme, JJ., the learned Chief Justice has constituted this Full Bench to go into the issue and resolve the conflict. Though the task of the Full Bench would be complete the moment a decision is rendered resolving the conflict, Counsel on both sides took time on 29-1-2001, in view of the fact that there was no other issue raised in the writ petition, to consider whether the Full Bench itself should finally dispose of the writ petition. On 31-1-2001, when the writ petition was heard by the Full Bench, Counsel on both sides agreed that the Full Bench may pass final orders in the writ petition in the light of whatever view it takes with regard to the controversy. Hence, we propose to dispose of the writ petition by an order consistent with our views in the matter.

Legislative History

9. Since the reference has been made on a conflict of views, it would be necessary to refer to the conflicting judgments. Before we consider the different judgments, it would be appropriate to take a short resume of legislative history which has a material bearing on the controversy.

10. Prior to the Maharashtra Act No. 32 of 1970, section 2(b) of the Act defined the expression "Agriculturist" as under :---

"Agriculturist means a person who ordinarily by himself or higher level or otherwise is engaged in the production or growth of agricultural produce which has not been processed, but does not include trader, commission agent, processor may also be engaged in the production or growth of agricultural produce."

By the Amending Act, Maharashtra Act No. 32 of 1970 this definition was amended to read as under :---

"Agriculturist means a person who ordinarily by himself or by higher level (sic hired labour) or otherwise is engaged in the production or growth of agricultural produce which has not been processed but does not include trader, commission agent, processor or Broker, an employee of Government or of any co-operative society or of Market Committee or a partner in trading firm or any industrial concern in or a relation to agricultural produce although such trader, commission agent, processor, broker, an employee of Government or of any cooperative society or of any market committee or a partner may also be engaged in the production or growth of agricultural produce."

11. Section 13 as originally enacted made provision that every market committee shall consist of the following members :---

(a) "Ten Agriculturists residing in Market area (not less than 21 years of age on the date specified from time to time by the Collector in this behalf) seven of whom shall be elected by members of managing committee of the agricultural credit societies, and multi purpose co-operative within the meaning of Maharashtra Co-operative Societies Act, 1960, and the rules made thereunder functioning in the market area".

(b) Three to be elected by traders and commission agents holding licence to operate as such in the marketing area.

(c) Deputy Registrar of Co-operative Societies in the District or his representative who shall have no right to vote.

12. As a result of amendments made by the Maharashtra Act No. 32 of 1970, Maharashtra Act No. 27 of 1987 and Maharashtra Amending Act No. 20 of 1991, the said section at the material time read as under :---

13(1) Subject to the provisions of sub-section (2), every Market Committee shall consist of the following members, namely :---

(a) thirteen agriculturists residing in the market area (not being less than twenty one years of age on the date specified from time to time by the Collector in this behalf), as specified below, ---

(i) nine (of which two shall be women members) shall be elected by members of the managing committees of the agricultural credit societies and multipurpose co-operative societies (within the meaning of the Maharashtra Co-operative Societies Act, 1960, and the rules made thereunder), functioning in the market area; and

(ii) four (of which one shall be a person belonging to the Scheduled Castes or schedules tribes and one shall be a person belonging to economically weaker section), shall be elected by members of the village panchayats functioning therein;)

(b) two shall be elected by traders and commission agents, holding licences to operate as such in the market area;

(b-1) one member shall be elected by hamals and weighman operating as such in the market area;

(c) one shall be the Chairman of the co-operative society doing business of processing or marketing of agricultural produce in the market area; or in his absence a representative of the co-operative society elected by its Managing Committee;

Provided that, if there be more than one such co-operative societies in the market area, then the Chairman of any one of such co-operative societies or in his absence a representatives, elected by the managing committees of such societies;

(d) one shall be the Chairman of the Panchayat Samittee within the jurisdiction of which the market area or major portion thereof is situated of the representative elected by such Panchayat Samittee;

(e) one shall be the President or Sarpanch of the local authority (other than a Panchayat Samittee) within the jurisdiction of which the principal market is situated or the representative elected by such local authority;

(f) the Deputy Registrar of Co-operative Societies of the district or his representative, who shall have no right to vote.

(g) the Assistant Cotton Extension Officer or, where there is no such officer, the District Agricultural Officer of the Department of Agricultural; neither of them shall have the right to vote.

(1-A)(a) Notwithstanding anything contained in sub-section (1) of this section or in section 4 or other provisions of this Act, the area comprising Greater Bombay and Turbhe Village in Thane Taluka of Thane District and such other area or areas as may be specified by the State Government by notification in the Official Gazette, from time to time (hereinafter referred to as "the Bombay market area") shall be deemed to be a market area for the purposes of this Act, and the Market Committee for that area to be called by the name of the Bombay Agricultural Produce Market Committee shall, subject to the provisions of sub-section (2), consists of the following members, namely :---

(i) twelve representatives of agriculturists elected by the agriculturist members of the other Agricultural Produce Market Committees in the State, two such members to be elected from each Revenue Division;"

13. Prior to amendment by Amending Act No. 27 of 1987, section 19 provides as under :---

"Subject to provisions of sub-section (2) of section 13 every Market Committee shall be presided over by the Chairman, who shall be elected by committee from among its elected member."

The section as amended by Amending Act No. 27 of 1987 at the material time read as under :---

"Subject to the provisions of sub-section (2) of section 13, every Market Committee shall be presided over by a Chairman, who shall be elected by the committee from among its (elected Agriculturist members). The committee shall also elect one of its (elected Agriculturist members) to be the Vice-Chairman."

14. The Objects and Reasons of the Bill of Amendment Act No. 27 of 1987 which amended section 13 (vide section 8) are :---

"It amends section 13 of the Principal Act so as to give representation to members belonging to Scheduled Castes and Scheduled Tribes on the Market Committee. Provision is also made to give representation on the Market to hamals and weighmen operating in the market area the Chairman and Vice-Chairman of the Committee and to be nominated from amongst the agriculturists members."

15. Section 12 of the Act which amends section 19 of the Principal Act provides :---

"It amends section 19 of the Principal Act so as to provide that the Chairman and Vice-Chairman shall be elected from amongst agriculturist members."

The Conflict

16. In Chintaman Meshram's case (supra) the 3rd respondent was an 'agriculturists' as defined under the Act and also the Chairman of one of the co-operative societies doing business of processing/marketing of agricultural produce in the market area of the APMC. Since there were more than one such societies in the market area, election for the membership of the APMC took place under the proviso to section 13(1)(c) and the 3rd respondent was duly elected. The election of the 3rd respondent was challenged on the ground that he was not an agriculturists from the agriculturists constituency within the meaning of Rule 41(2). The Division Bench negatived the contention by taking notice of the change made in the law. It pointed out that, prior to Amending Act 27 of 1987 any "elected member" was qualified for holding the sensitive post of Chairman or Vice Chairman. The Amending Act 27 of 1987 made several amendments in the Act. The term "agriculturists" was amended so as to exclude therefrom certain categories of persons. Section 13(1) also introduced an independent category of hamals and weighman. Section 13(2) was amended by addition of a proviso by which the Chairman and Vice Chairman of the Committee constituted for the first time could be nominated from amongst the "agriculturists" members. Section 19 was amended so as to substitute the words "elected members" by the words "elected agriculturists members". Later, a corresponding change was brought about in Rule 35 also. The Division Bench noted that, despite all these changes brought about in the law, Rule 40 and 41(2) remained unaltered. Against this background of change in law, the Division Bench in Chintaman Meshram's (supra) was of the view that the only change intended to be brought about in the law was qualification for the post of Chairman or Vice Chairman. Previously, any elected member could hold the post, but now he must additionally be "an agriculturist". Since the 3rd respondent was both an elected member as well as agriculturist, the Division Bench was of the view that he was qualified to hold the post of Chairman. The contention that only an agriculturist falling under section 13(1)(a) and no other agriculturist was qualified to hold the post of Chairman or Vice Chairman was specifically negatived. The Division Bench emphasised the newly added proviso to section 13(2) as supportive of the view it was inclined to take. In the constitution of the first committee, which is nominated, there will be no question of any one falling under section 13(1)(a). Since the phraseology used in the proviso to section 13(2) and in section 19 is similar, by the accepted canon of interpretation that same meaning has to be ascribed to the same words used in different parts of the same enactment, the Division Bench derived support to its view. It was also pointed out by the Division Bench that no separate constituency for agriculturists is carved out either under the Act or under the Rules. Section 13(1)(a) deals with membership from two constituencies : (i) certain co-operative societies and (ii) village panchayat. The fact that only agriculturists can represent those two constituencies was held to be immaterial. Dealing with Rule 41(2) which used the expression "agriculturists constituency", the Division Bench was of the view that, Rule 41(2) merely lays down as to which "trader" or which "agriculturist" can be chosen as a member in the respective category. It was pointed out that this was an old rule which had not been changed even after Amending Act 27 of 1987. In any event, the Division Bench held that the rules could not be so read as to override the Act. In this view of the matter, the challenge to the election of the 3rd respondent therein was negatived.

17. This judgment in Chintaman Meshram's case (supra) was followed by another judgment of the Nagpur Bench in Writ Petition No. 1813 of 1993 Mohan Saoji v. The Collector, Buldhana and others per Dhabe and Wahane, JJ., in Mohan Saoji's case the principal challenge was that when the respondent No. 3 was elected as Chairman, he was not an agriculturist member elected under section 13(1)(a) of the Act and consequently was not qualified to be elected as Chairman under section 19 of the Act. The Division Bench rejected the contention by following the ratio laid down in Chintaman Meshram's case (supra).

18. This was the settled position in law till a doubt was created by the judgment by another Division Bench of Ashok Agarwal & S.S. Nijjar, JJ., in Jalandar Jayaram Patil v. Collector, Thane & others (supra). Relying on Rules 35, 38 and 41(2), that Division Bench was of the view that the Rules provided for distinct constituencies for traders and agriculturists, that Rule 41(2)(ii) provided that for a member to be eligible for being elected in the agriculturist's constituency, his main source of income would be from agriculture; conversely, if he possesses's a trader's or commission agent's or broker's licence, he will not be eligible to contest from the agriculturists constituency. The Division Bench was of the view that the petitioner therein who was a trader and held a trader's licence was not eligible to contest from the agriculturist's constituency. Rule 46 which enables the same person to be nominated in two or more constituencies if he is otherwise duly qualified. The view was taken that the rule did not permit the traders to contest from the agriculturists' constituence, though the rule can permit members who are agriculturists, Hamals and Weighman, to contest from the aforesaid constituencies at one and the same time. It is this view taken by the judgment of the Division Bench in Jalandar case (supra) which has thrown up a doubt.

Our View

19. We are inclined to agree with the view taken by the Division Bench of Mohta and Ghodeswar, JJ., in Chintaman Meshram case (supra) as preferable to the view taken in Jalandar. The proviso to section 13(2) is of importance. The proviso, which was added by the 1997 Amendment Act, deals with the situation when a market committee is situated for the first time. To such a market committee, all members and the Chairman and the Vice Chairman are required to be nominated by the State Government. The proviso states :-

"Provided that, the Chairman and Vice Chairman shall be so nominated from amongst the agriculturist members."

It is obvious that there exists no constituency at this point of time as the appointment is by nomination by the State Government. The only qualification imposed by the statute is that the nominated persons must be "agriculturists members". Section 13(1) provides for "members of the market committee" and 13(1)(a) talks of "agriculturists". We are in agreement with the view expressed by the Division Bench in Chintaman Meshram case (supra) that the expression "agriculturists" used in section 13(1)(a) and in 13(2) proviso must be given the same meaning. If the view canvassed by the petitioner were to be accepted, then section 13(1)(a) should be interpreted to mean as carving out a separate agriculturist's constitutency; but this meaning would obviously fail when applied to the same expression in the proviso of section 13(2). This is precisely what the Division Bench pointed out in Chintaman Meshram case (supra).

20. The Objects and Reasons of the Amending Act 27 of 1987 which brought about this change also provide support to the view taken by the Division Bench in Chintaman Meshram. We have extracted the notes attached to sections 8 and 12 of the Amending Act which make it clear that the intention of the Act was to amend section 13 so that, inter alia, provision would be made for "Chairman and Vice Chairman of the Committee to be nominated from amongst the agriculturists members". Further, section 19 of the Principal Act was amended so as to provide that the Chairman and Vice Chairman shall be elected from amongst agriculturists members. There is no indication here of an intention to create a separate agriculturist's constituency or that the Chairman or the Vice Chairman had to be elected only from amongst the 10 agriculturists members elected under section 13(1)(a) of the Act. In our judgment, the reason for the amendment, as evidenced in the statements of objects attached to the Act that Act 27 of 1987, makes it abundantly clear that the view in Chintaman Meshram's is preferable.

21. The only place where the expression "agriculturists constituency" is used is in the rule. The Act itself was changed from before 1970 to 1987, and subsequently. Though the Principal Act underwent several changes, the rules do not appear to have kept pace with the amendments. Rule 41, which needed change, was apparently not changed by the rules making authority. We agree with the view of the Division Bench in Chintaman Meshram that the rule cannot override the intention evidenced in the statute itself. In our judgment, too, there is no room for doubt while interpreting section 13(1)(a). Section 13(1)(a) does not prescribe a constituency of agriculturists. It only prescribes that 13 agriculturists (of different prescriptions) shall be elected as members of the market committee. Section 19 which prescribes the qualifications of the Chairman merely says that the Chairman "shall be elected by the committee from amongst its elected agriculturists members". Similarly, the committee is also required to elect "one of its elected agriculturists members to be the Vice Chairman". In our judgment, the only requirement of section 19 is that the Chairman elected by the market committee shall be : (a) member who is elected, and, (b) who is also an 'agriculturist'. Any elected member could hold office of the Chairman earlier, but now, after the amendment of section 19, the words "elected members" were replaced by the words "elected agriculturists members". This means that the Chairman, in addition to being an elected member, must also be an 'agriculturist'. In our judgment, there is no other qualification introduced in section 19 that the person to be elected as Chairman must be from amongst the agriculturist members elected under section 13(1)(a). We, therefore, agree with the view expressed in Chintaman Meshram (supra) and overrule the view taken in Jalandar Patil (supra).

22. Counsel referred to the judgment in R.K. Porwal v. State of Maharashtra, , at paragraph 11, Bapubhai Ratanchand Shah v. State of Bombay, , Muhammadbhai Khudabux Chippa and another etc. v. The State of Gujarat and another, etc., to contend that the interpretation put on the terms of the statute must be consistent with and enabling the purposes of the statute to be carried forward.

23. Reference is made to and to show the object of the Maharashtra Agricultural Produce Marketing Act was to control the market activities and prevent exploitation of agriculturist by middlemen. Reliance is placed on Baburam and others v. State of U.P. and another, 1995(2) S.C. 689 to show that when two interpretations are possible, one that promotes object of the statute and preserves its smooth working should be preferred. A.I.R. 1990 S.C. 789, Suresh Chand v. Gulam Chisti, is cited in support of the proposition that, ordinarily, the rule of construction is that the same expression where it appears more than once in the same statute, must receive the same meaning unless the context suggests otherwise. Jamnabai Purshottam Asar v. State, is relied upon for contending that normally it is not legitimate to cut down the import of a statutory provision by reference to the rules which are framed under the statute, though under special circumstances recourse to the rules may be necessary for interpreting the statute. D.S. Garewal v. The State of Punjab and another, and A.V. Nachane and another v. Union of India and another, were relied upon to contend that the amplitude of the provision of the statute cannot be cut down by rules framed thereunder by the rule making authority.

Order on the writ petition.

24. We therefore answer the two questions referred to us thus:---

"(1) No separate constituency of agriculturists is carved out under the Act. The Rules are unamended and have failed to keep pace with the Amendments to the Act.

(2) No, he need not be. It is sufficient if he is an elected member and an 'agriculturist' by occupation."

25. Counsel have agreed that the writ petition may be disposed of in the light of our judgment. We find that the 3rd respondent is an 'agriculturist' as defined in section 2(1)(b) of the Act. In our view, he does not fall within the exclusion from the definition of "agriculturist" in section 2(1)(b). The 2nd respondent contested the election through the co-operative constituency and his name appeared at Sr. No. 13 in the final list (Annexure I) to the return filed by the 3rd respondent. The 1st respondent denies holding any trader's or commission agent's licence in his personal capacity and it is not shown to the contrary. The 1st respondent was only the President of the Co-operative Society by name Agricultural Co-operative Ginning, Pressing Society Ltd., Katol. The exclusion from the definition of "agriculturist" in section 2(1)(b) applies to the following:---

(a) a trader,

(b) a commission agent,

(c) processor,

(d) broker,

(e) an employee of Government or of any co-operative society or of any Market Committee or a partner in trading firm or an industrial concern in or in relation to agricultural produce although such trader, commission agent, processor, broker, an employee of Government or any of any co-operative society or of any market committee or a partner may also be engaged in the production or growth of agricultural produce.

The 1st respondent is not an 'employee' of any co-operative society engaged in the processing activity. He is the President of such a processing society and, consequently, he is not liable to be excluded from the definition of "agriculturist" in section 2(1)(b) of the Act. It is not in dispute that the 1st respondent is an elected member. We hold that he is also an agriculturist. The fact that he was not elected as an agriculturist, within the meaning of section 13(1)(a), is wholly irrelevant and immaterial. In our judgment, the 1st respondent is fully qualified to hold the post of Chairman. The contention in the writ petition is misconceived and the petition is liable to be dismissed.

26. In the result, we dismiss the writ petition and discharge the rule.

27. In the circumstances of the case, there shall be no costs.