Bombay High Court
The Grampanchayat Through Its ... vs The State Of Maharshtra And Others on 28 September, 2015
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8065 OF 2015
The Grampanchayat, Nadiwadi
Tq.Nilanga, Dist.Latur,
Through its Sarpanch,
Shri Sanjay S/o Sitaram Dorave,
Age-Major, Occu-Agriculturist,
R/o Nadiwadi, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8067 OF 2015
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The Grampanchayat, Wanjarwada
Tq.Nilanga, Dist.Latur,
Through its Member,
Shri Vishwnath S/o Rama Motilal,
Age-Major, Occu-Agriculturist,
R/o Wanjarwada, Tq.Nilanga,
Dist.Latur
PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8068 OF 2015
The Grampanchayat, Khadakumaraga
Tq.Nilanga, Dist.Latur,
Through its Member,
Shri Uttam S/o Parshuram Thokare,
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Age-Major, Occu-Agriculturist,
R/o Khadakumarga, Tq.Nilanga,
PETITIONER
Dist.Latur
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8069 OF 2015
The Grampanchayat, Baspur,
Tq.Nilanga, Dist.Latur,
Through its Sarpanch
Sow.Bharatbai W/o Laxman Kalage
Age-Major, Occu-Agriculturist,
R/o Baspur, Tq.Nilanga,
Dist.Latur PETITIONER
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VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing,
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8070 OF 2015
The Grampanchayat, Tagarkheda
Tq.Nilanga, Dist.Latur,
Through its Member,
Shri Dattu S/o Yoginath Langade,
Age-Major, Occu-Agriculturist,
R/o Tagarkheda, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
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Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8071 OF 2015
The Grampanchayat, Khadakumaraga
Tq.Nilanga, Dist.Latur,
Through its Member,
Shri Chandrakant S/o Kerba Mane,
Age-Major, Occu-Agriculturist,
R/o Waksa, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
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3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8072 OF 2015
The Grampanchayat, Malegaon,
Tq.Nilanga, Dist.Latur,
Through its Member,
Sow.Surekha W/o Kashinath Hulsure,
Age-Major, Occu-Agriculturist,
R/o Malegaon, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
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4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
ig WITH
WRIT PETITION NO.8073 OF 2015
The Grampanchayat, Hosur,
Tq.Nilanga, Dist.Latur,
Through its Sarpanch
Shri Shrimant s/o Pandurang Biradar,
Age-Major, Occu-Agriculturist,
R/o Hosur, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
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Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8074 OF 2015
The Grampanchayat, Khadakumaraga
Tq.Nilanga, Dist.Latur,
Through its Sarpanch,
Shri Ambadas S/o Maroti Pethe,
Age-Major, Occu-Agriculturist,
R/o Tadmugali, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
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Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
WITH
WRIT PETITION NO.8075 OF 2015
The Grampanchayat, Khadakumaraga
Tq.Nilanga, Dist.Latur,
Through its Member,
Shri Chandrakant S/o Virshetti Biradar,
Age-Major, Occu-Agriculturist,
R/o Hanchnal, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
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WITH
WRIT PETITION NO.8076 OF 2015
The Grampanchayat, Khadakumaraga
Tq.Nilanga, Dist.Latur,
Through its Member,
Shri Dinkar S/o Pandurang Tugave
Age-Major, Occu-Agriculturist,
R/o Shivur, Tq.Nilanga,
Dist.Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Department of Agricultural Marketing
Mantralaya, Mumbai-32,
2. The District Collector,
Latur, Tq. And Dist. Latur,
3. The District Deputy Registrar,
Co-operative Societies, Latur,
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
5. The Agricultural Produce Market Committee,
Aurad (Shahajani), Tq.Nilanga,
Dist.Latur,
Through its President/Secretary RESPONDENTS
Mr.G.V.Mohekar, Advocate for the petitioners.
Mr.S.G.Sangle, AGP for respondent Nos. 1 to 4.
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( CORAM : RAVINDRA V. GHUGE, J.)
RESERVED ON : 23/09/2015
DECIDED ON : 28/09/2015
JUDGMENT :
1. Rule. Rule made returnable forthwith by the consent of the
parties and heard finally.
2. All the petitioners in these petitions are the Gram Panchayats,
who are represented by their Sarpanch / Member. These petitioners
have put forth their grievance on behalf of the elected members of the
gram panchayats.
3. The respondents in each of these petitions are Statutory
Authorities. The Agricultural Produce Market Committee, Aurad,
(Shahajani) is respondent No.5, who has not caused an appearance
despite service.
4. Since an identical issue is involved in all these cases, this
Court (Coram : Sunil P.Deshmukh, J.) had considered these petitions
and had passed a common interim order dated 04/08/2015. It is in
these circumstances that all these petitions have been heard finally
khs/Sept. 2015/8065-d
together by the consent of the parties.
5. The undisputed facts in these cases are as under :-
[a] Respondent No.5 APMC is situated at Aurad Shahajani and all
the petitioners gram panchayats fall within the jurisdiction of
the said APMC.
[b] The term of the gram panchayats was to end in July, 2015.
[c] Elections to the members of the gram panchayat for the new
terms were held on 23/04/2015 and the results of the elections
were declared on 24/04/2015.
[d] The term of the newly elected members commences from the
date they take charge in the gram panchayats, u/s 28 of The
Maharashtra Village Panchayats Act.
[e] All the newly elected members of the petitioner/gram
panchayats, represented by their Sarpanch / Members in these
petitions are aggrieved parties.
[f] The newly elected members of the petitioners / gram
panchayats have authorized their representatives by passing a
Resolution to espouse their cause and put forth their grievance
before the Election Officer and before this Court.
[g] On 22/05/2015, the final Voter's List was declared for the
respondent No.5 APMC.
[h] None of the newly elected members of the petitioners / Gram
Panchayats had taken charge as on 22/05/2015.
[i] On 22/06/2015, the election programme for respondent No.5
APMC was declared.
[j] 06/07/2015 was the last date for filing of the nomination
papers for contesting the elections of respondent No.5 APMC.
khs/Sept. 2015/8065-d
[k] In between 22/07/2015 and 28/07/2015, all the elected
members of the petitioners / Gram Panchayats assumed
charge.
[j] On 01/08/2015, the representatives of the newly elected
members as well as the Gram Panchayats filed objections /
complaints before respondent No.3 District Deputy Registrar
Co.operative Societies, Latur (in short, DDR) under Rule
36(15) of the Maharashtra Agricultural Produce Marketing
(Development and Regulation) Rules 1967 (hereinafter referred
to as the Rules of 1967), for seeking inclusion of their names in
the final list of voters.
[k] By the impugned order dated 01/08/2015, the DDR declined to
entertain the said complaint and accordingly rejected the
complaints.
[l] This Court, by its order dated 01/08/2015 had granted interim
relief in similar cases in WP No.7950/2015.
[m] This Court, therefore, by its order dated 04/08/2015, granted
interim relief to all these petitioners by virtue of which they
were permitted to cast their votes in a separate ballot box on
the date of polling 09/08/2015.
[n] Accordingly, the earlier members whose names appeared in the
final voters' list and the petitioners / members have cast their
votes in two separate ballot boxes and the results were not
declared under the orders of this Court.
[o] The contentions of the petitioners is that the earlier members
of the petitioners / Gram Panchayats have lost their right to
vote since their term ended on 23/04/2015.
[p] Though the newly elected members have taken charge in
between 22/07/2015 and 28/07/2015 and since the elections
khs/Sept. 2015/8065-d
were scheduled on 09/08/2015, they had a legal right to vote in
the elections.
[q] By interim orders of this Court, the votes cast by the outgoing
members of the petitioners / Gram Panchyats deserve to be
discarded and the results deserve to be declared on the basis of
the votes cast by the newly elected petitioners / members.
[r] Respondent No.3 has mechanically rejected the application /
complaint of the petitioners and thereby declined to include
their names in the final voters' list.
[s] The impugned order is cryptic in nature and evidences non
application of mind.
[t] The outgoing members have no right to cast their votes since
the right is created in the newly elected members.
[u] Respondent No.3 DDR is legally empowered to pass necessary
orders for including the names of the petitioners / members
and therefore the DDR was expected to follow the procedure
laid down in Rule 36(16) r/w Rule 36(13) and (14).
6. The petitioners have placed reliance upon the judgment of this
Court in the matter of Bhatu s/o Devidas Patil and another Vs. State
of Maharashtra and others, 2010(3) Mh.L.J. 903. In the said case,
the petitioners had challenged the deletion of their names before the
DDR which was turned down. They had approached this Court for
khs/Sept. 2015/8065-d
challenging the decision of the DDR and this Court had dismissed
their petition.
7. The learned AGP on behalf of respondent Nos. 1 to 4 /
Satutory Authorities submits that these petitions deserve to be
dismissed. Contention is that an application / complaint can be
entertained by the DDR or the Collector, as the case may be, only if
such application seeking inclusion in the Voters' list is filed at least 3
days prior to the last date for filing the nomination papers for
contesting the elections.
8. He submits that the list of voters is required to be revised at
least 6 months prior to the date of the term of the APMC. Elected
members of the Village Gram Panchayats within the jurisdiction of
the APMC are qualified as voters and for contesting elections of the
said APMC. The Voters' List is prepared society wise in the Co-
operative Societies Constituency and Panchayat wise in the case of
Village Panchayat Constituency.
9. He submits that after the provisional Voters' List is published,
objections are called for and are dealt with by the Collector or the
DDR as the case may be and a final Voters' List is published under
khs/Sept. 2015/8065-d
Rule 36(12).
10. It is further submitted that the petitioners were under an
obligation to file an application for inclusion in the Voters' List, at
least 3 days prior to the last date for nomination. Having not so
done, the DDR has rightly rejected their applications by the
impugned order. He further submits that an application under Rule
36(15) can be filed only by a person whose name is not entered in the
final List of Voters or through his representative if so authorized in
his behalf.
11. Respondent No.5 APMC, though served, has chosen to remain
absent.
12. I have considered the contentions of the litigating sides as
recorded hereinabove.
13. It would be apposite to reproduce Rule 36 (1 to 16) of the Rules
of 1967 hereunder :-
"36. Voters' list.--
(1) The Collector shall call upon the District Deputy Registrar of
Co-operative Societies to prepare and furnish to him a list of
khs/Sept. 2015/8065-d
members of the Managing Committees of the Agricultural Credit
Societies and the Multipurpose Co-operative Societies and call
upon the Block Development Officer to prepare and furnish to him
a list of members of the Village Panchayat showing distinctly the
members belonging to the Scheduled Caste and Scheduled
Tribes functioning in the market area and the Market Committee
to prepare and furnish to him the list of traders and hamals and
weigh men licensed by the Committee within such time as may
be specified by him. Thereafter, the Collection shall cause to be
prepared separately for each of the Constituencies a voters' list
for holding the elections to the Market Committees :
Provided that, where a person is qualified to vote from traders
constituency or from Hamals' and Weigh men's Constituency, his
name shall appear in the respective registers maintained by the
Market Committee at least 3 months before the preparation of
such lists.]
(2) Every such list shall be revised before each general election,
at least six months before the date on which the term of the
Market Committee is due to expire :
Provided that, the Collector may 5[* * *] direct the revision of
such list also at any other time before any general election is
due :
(3) The voters' list for Co-operative Societies' Constituency shall
be prepared society wise. The voters' list for Village Panchayat's
Constituency shall be prepared panchayatwise, indicating the
details regarding members belonging to the Scheduled Caste
khs/Sept. 2015/8065-d
and Scheduled Tribes etc. every list of voters for all the
constituencies mentioned in sub-rule (1) of rule 35 shall
provide, in alphabetical order, the name, age, residence and the
category of the voters to which he belongs.]
(4) * * * *
(5) * * * *
(6) Every such list shall be published in Marathi provisionally
within a period of one month from its receipt by the Collector in
such manner as the Collector may deem fit.
(7) At the time of publishing the list of voters a notice shall be
published in like manner calling upon persons entered in the list
to lodge in the manner herein prescribed any objection that they
have to make to the list as published, and upon persons
claiming to be entered in the list, to lodge their claim in the
manner herein prescribed.
(8) Such claim or objection shall be made in writing and shall
specify the constituency in question, the grounds on which the
right of any person to be entered in the list is asserted or denied,
the evidence which the claimant or objector intends to lead, the
address of the claimant or objector, his number, if any, in the list
and in the case of an objection, the number in the list of the
person to whose entry objection is taken and the constituency in
the list for which he is entered.
(9) Every claim or objection shall be delivered or sent by post so
as to reach the office of the Collector before the date fixed by the
Collector in that behalf being a date not later than one month
khs/Sept. 2015/8065-d
from the date of publication of the list.
(10) The Collector, after hearing the evidence, if any, adduced on
behalf of the parties and after further inquiry, if any, shall pass
order on the claim or objection, and the order of the Collector
relating to such claim or objection shall be final.
(11) The Collector shall cause the lists to be amended in
accordance with the orders passed under sub-rule (10) and
shall cause them to be published finally in Marathi in such
manner as he may deem fit.
(12) If, after the final publication of the list of voters, under sub-
rule (11), the Collector on application or otherwise, is satisfied
after such inquiry as he deems fit that any entry or entries in
the list is or are erroneous or defective in any particular respect,
the Collector may cause a list of amendments to be prepared;
and thereupon the provisions of sub-rules (3) to (11) shall apply
in the case of such list in the like manner as they apply in the
case of the list of voters.
(13) Copies of such final lists including the final list of
amendments and additions shall be made available for
inspection and sale in whole or in part in the offices of the
Collector, the Market Committee and the Village Panchayat
concerned or at any other place as the Collector may specify in
this behalf.
(14) The final list as also the final list of amendments shall be
republished under sub-rule (11) and shall remain in force and
continue in operation as the list of voters for the purpose of any
khs/Sept. 2015/8065-d
bye-election, until it is revised as provided by this rule.
(15) Any persons whose name is not entered in the final list of
voters as republished under sub-rule (14) may at any time but
not later than 3 days before the last date for nomination apply to
the Collector for inclusion of his name in the list.
(16) On receipt of the application under sub-rule (15), the
Collector shall, if satisfied that the applicant is entitled to have
his name entered in the list, direct his name to be entered in the
list and cause an amendment to the list to be prepared; and
thereupon the provisions of sub-rules (13) and (14) shall mutatis
mutandis apply to such amendments]."
14. It is undisputed that though the petitioners / members were
elected on 24/04/2015, they have assumed charge in between
22/07/2015 and 28/07/2015.
15. The phraseology in Rule 36(15) and 36(16) clearly indicates that
any person / s, whose name is not entered in the final List of Voters,
can file an application to the Collector or DDR for inclusion of his
name in the list, not later than 3 days before the last date for
nomination. Such application can be entertained by the Collector /
DDR and upon being satisfied, a direction can be issued to enter his
name in the list and cause an amendment to the list. Thereafter, by
following the procedure under Rule 36(13) and 36(14) which mutatis-
khs/Sept. 2015/8065-d
mutandis applies to the amendment caused, the final amended
Voters' List can be declared.
16. It is, therefore, evident that an individual, whose name is not
entered in the final Voters List, can approach the competent
authority for inclusion of his name. Ordinarily speaking, there is no
provision for enabling a representative to agitate / espouse the cause
of the aggrieved person. Nevertheless, considering the submission
that the grievance of an individual, can be put forth by his
representative and since there was no objection to such
representation before the DDR, I am not required to deal with this
aspect as the petitioners have been authorized to represent the
elected members in all these petitions through a resolution passed.
17. The interim relief granted by this Court by order dated
01/08/2015 in WP No.7950/2015 reads as under :-
"3. Petitioners are gram panchayats situated in various
talukas in Latur district.
4. After hearing learning counsel for petitioners and learned
Assistant Government Pleader it starkly surfaces that the
circumstances in present writ petition are almost identical with
those involved in writ petition number 6027 of 2015.
khs/Sept. 2015/8065-d
5. To succinctly state, presently gram panchayats grouped
in this writ petition are constituted by new members elected in
April, 2015. The terms of the gram panchayats pursuant to
earlier election was to be over in July, 2015. Till then, the
members elected in earlier elections were to continue as
members and the new members elected in 2015 were to
assume charge in July, 2015.
6.
In the interregnum, it appears that Agricultural Produce
Market Committee, Aurad (Shahjani) had declared its elections
and present group of gram panchayats functions within its
area of operation. Pursuant to provisions under section 13(1) (a)
(ii) of the Maharashtra Agricultural Produce Market Committee
(Regulations) Act, 1963, four of the members, constituting
Maharashtra Agricultural Produce Market Committee, are to be
elected from gram panchayats functioning within its area of
operation.
7. Voting of the Agricultural Produce Market Committee,
Aurad (Shahajani) is scheduled on 09-08-2015. The period of
filing nomination is long over in June, 2015. As such, learned
counsel for petitioners fairly submits that the members of group
of gram panchayats-petitioners are not contesting to seats
constituting managing committee of Agricultural Produce Market
Committee, Aurad (Shahajani). However, they intend to
exercise their franchise.
khs/Sept. 2015/8065-d
8. According to learned counsel for petitioners, taking into
account decision which has been considered while passing
order on 10-07-2015 in writ petition no.6027 of 2015 viz; 2010
(3) Mh. L.J. 903, Bhatu Devidas Patil v. State of Maharashtra and one
decision of division bench in Purshottam vs. A.P.M.C. Wardha,
reported in 2013 (6) Mh.L.J. 688 , relied on by him today, for
being a voter, the basic requirement is that a person should be
a member of the grampanchayat. He further goes on the
submit that, however, having regard to the election schedule
and the rules of the Agricultural Produce Market Committee
since the names of present members of the petitioner-gram
panchayats do not figure in the voters' list which still shows old
members of the petitioners gram panchayats, similar situation
arises in this matter as in writ petition no.6027 of 2015 and as
such similar order be passed in this matter.
9. Learned Assistant Government Pleader does not dispute
aforesaid factual scenario, however, considers that separate
petitions by each of the petitioner-gram panchayats would be
necessary as host of other questions are likely to arise.
10. Learned counsel for petitioner had been fair enough to
accede to the request of learned Assistant Government Pleader
and states that he would file separate petitions in respect of
each of the gram panchayats, however, feels that by the time
this arrangement is made, interest of the present petitioners-
gram panchayats be protected by passing order as in writ
petition no.6027 of 2015.
khs/Sept. 2015/8065-d
11. Under the circumstances, following order is passed.
12. Looking at aforesaid scenario, names of petitioners be
provisionally considered to be included in the voters list in the
ensuing elections to managing committee of Agriculture Produce
Market Committee, Aurad (Shahajani) and petitioners be
allowed to cast their votes. Since date of nomination is over,
learned advocate for the petitioners fairly does not insist upon
to let the petitioners file nominations in said elections.
13. Under the circumstances, the petitioners be allowed to
cast votes in the elections to managing committee of Agriculture
Produce Market Committee, Aurad (Shahajani) scheduled on 9th
August, 2015. Their votes, however, be kept in a separate ballot
box. Votes cast by erstwhile members of Gram Panchayt
pursuant to the voters list as is subsisting under the orders of
the authorities in respect of aforesaid elections shall also be
kept in separate ballot box. Counting of votes in respect of four
posts with reference to section 13 (1) (a) (ii) of the Maharashtra
Agriculture Produce Marketing (Regulations) Act, shall be stalled
until further orders."
18. In these petitions also, this Court, by its order dated
04/08/2015, had granted interim relief as under :-
"1. Notice to respondents returnable on 12-08-2015. Learned
Assistant Government Pleader waives notice for respondent
khs/Sept. 2015/8065-d
no.1 to 4.
2. Learned Counsel for the petitioners submits that this is one
of the grampanchayats functioning within the area of operation
of respondent no.5-Agricultural Produce Marketing Committee,
Aurad (Shahajani). He submits, petitioners granpanchayats'
present members who have assumed charge in July, 2015, are
similarly situated like petitioners in writ petition no.7950 of
2015. He, therefore, urges for similar relief as has been
granted in said writ petition.
3. Having regard to aforesaid following order is passed.
4. Looking at aforesaid scenario, names of petitioners be
provisionally considered to be included in the voters list in the
ensuring elections to managing committee of Agriculture
Produce Market Committee, Aurad (Shahajani) and petitioners
be allowed to cast their votes. Since date of nomination is
over, learned advocate for the petitioners fairly does not insist
upon to let the petitioners file nominations in said elections.
5. Under the circumstances, the petitioners be allowed to caste
votes in the elections to managing committee of Agriculture
Produce Market committee, Aurad (Shahajani) scheduled on 9th
August, 2015. their votes, however, be kept in a separate
ballot box. Votes cast by erstwhile members of Gram
Panchayat pursuant to the voters list as is subsisting under
the orders of the authorities in respect of aforesaid elections
khs/Sept. 2015/8065-d
shall also be kept in separate ballot box. Counting of votes in
respect of four posts with reference to section 13(1)(a)(ii) of the
Maharashtra Agriculture Produce Marketing (Regulation) Act,
shall be stalled until further orders."
19. This Court had dealt with a similar issue in the case of Bhatu
Devidas Patil (Supra). It would be apposite to refer to the relevant
paragraphs of the judgment as under :-
"1. By way of present petition, the petitioners have
challenged the order dated 16th November 2009, passed by the
District Deputy Registrar, Cooperative Societies, Jalgaon, vide
which the names of the petitioners have been deleted from the
voters' list of the Gram Panchayat constituency finalized for the
elections of Agricultural Produce Market Committee, Amalner.
2. Mr. V.D. Hon, learned Counsel appearing for the
petitioners, submits that the programme for holding general
elections to the Agricultural Produce Market Committee,
Amalner, was declared on 19th January 2009. He submits that
vide the said programme, the eligibility date for enrollment in
the electoral roll, in so far as members of the Grampanchayat is
concerned, was notified as 12th November 2008. He submits
that though the election was scheduled in the month of March,
the same came to be postponed on account of elections to the
Legislative Assembly. He submits that subsequently, vide order
dated 26th October 2009, another communication was issued
by the District Deputy Registrar, respondent No. 2 herein,
regarding finalization of the voters' list. According to the said
khs/Sept. 2015/8065-d
programme, the date which was fixed for taking objections was
5th November 2009. The date for deciding objections under Rule
36(10) of the Maharashtra Agricultural Produce Marketing
(Regulation) Rules, 1967 (hereinafter referred to as "the said
Rules") was fixed on 16th November 2009 and the date for
publication of final voters' list was fixed on 19th November
2009. It is submitted that though the names of the petitioners
were included in the provisional voters' list vide order dated
16th November 2009, their names have been excluded and
some other names have been included vide the impugned
order. Mr. Hon, learned Counsel appearing for the petitioners,
submits that since the cut off date, in so far as the
Grampanchayat constituency is concerned, was 12th November
2008, the respondent No. 2 has erred in deleting the names of
the petitioners and including the new names.
3. Section 13 of the Maharashtra Agricultural Produce
Marketing (Regulation) Act, 1963 (For short, hereinafter referred
to as "the said Act") deals with "Constitution of Market
Committees". The relevant portion of Section 13 of the Act is
reproduced as under:
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:
khs/Sept. 2015/8065-d
(i)....
(ii) four (of which one shall be a person belonging to the
Scheduled Castes or Scheduled Tribes and one shall be a
person belonging to economically weaker section), shall be
elected by members of the village panchayats functioning
therein.
Perusal of Section 13(1)(a)(ii) would, therefore, reveal that four
persons, one of which shall be a person belonging to Scheduled
Castes or Scheduled Tribes and one of whom shall be belonging
to economically weaker section, are to be elected to the Market
Committee by the members of village panchayats. It can thus be
clearly seen that the electoral college for electing a person from
the said constituency, consists of members of the Village
Panchayat functioning in the area of Agricultural Produce
Market Committee.
4. Rule 36 of the said Rules deals with "Voters' list". The
relevant Sub-rules, for the purpose of the present petition,
would be Sub-rules 9 to 16, which read thus:
36. Voters' list
(1) to (8)....
(9) Every claim or objection shall be delivered or sent by
post so as to reach the office of the Collector before the date
fixed by the Collector in that behalf being a date not later than
one month from the date of publication of the list.
khs/Sept. 2015/8065-d
(10) The Collector, after hearing the evidence, if any,
adduced on behalf of the parties and after further inquiry, if
any, shall pass order on the claim or objection, and the order of
the Collector relating to such claim or objection shall be final.
(11) The Collector shall cause the lists to be amended in
accordance with the orders passed under Sub-rule (10) and
shall cause them to be published finally in Marathi in such
manner as he may deem fit.
(12) If, after the final publication of the list of voters,
under Sub-rule (11), the Collector on application or otherwise, is
satisfied after such inquiry as he deems fit that any entry or
entries in the list is or are erroneous or defective in any
particular respect, the Collector may cause a list of
amendments to be prepared; and thereupon the provisions of
Sub-rules (3) to (11) shall apply in the case of such list in the
like manner as they apply in the case of the list of voters.
(13) Copies of such final lists including the final list of
amendments and additions shall be made available for
inspection and sale, in whole or in part in the offices of the
Collector, the Market Committee and the Village Panchayat
concerned or at any other place as the Collector may specify in
this behalf.
(14) The final list as also the final list of amendments
shall be republished under Sub-rule (11) and shall remain in
force and continue in operation as the list of voters for the
khs/Sept. 2015/8065-d
purpose of any bye-election, until it is revised as provided by
this rule.
(15) Any persons whose name is not entered in the final
list of voters as republished under Sub-rule (14) may at any
time but not later than 3 days before the last date for
nomination apply to the Collector for inclusion of his name in
the list.
(16) On receipt of the application under Sub-rule (15), the
Collector shall, if satisfied that the applicant is entitled to have
his name entered in the list, direct his name to be entered in the
list and cause an amendment to the list to be prepared; and
thereupon the provisions of Sub-rules (13) and (14) shall mutatis
mutandis apply to such amendments.
From the perusal of Sub-rule 9 of Rule 36, it would reveal that a
person is entitled to raise an objection to the Collector on the
date fixed. Sub-rule 10 requires the Collector, after making an
inquiry, to pass order on the claim or objection. Sub-rule 11
mandates the Collector to cause the list, after amendments
carried out in accordance with the orders passed under Sub-
rule (10), to be published in Marathi, in the manner prescribed.
Sub-rule 12 further permits the Collector, even after publication
of final list of voters', to carry out amendments in the voters' list,
if he finds that any entry or entries in the list is or are
erroneous or defective. Sub-rule 13 requires such final list,
including amendments and additions, to be made available for
inspection and sale in the office of the Collector, the Market
khs/Sept. 2015/8065-d
Committee and the Village Panchayat concerned. Sub-rule 14
provides that the list so published under Sub-rule (11) shall
remain in force and continue in operation as the list of voters for
the purpose of any bye-election, until it is revised as provided
by this rule. Sub-rule 15 provides that any persons whose name
is not entered in the final list of voters as republished under
Sub-rule (14), may at any time but not later than 3 days before
the last date for nomination, apply to the Collector for inclusion
of his name in the list. Sub-rule 16 requires that if the Collector
is satisfied that the person is entitled to have his name entered
in the list, he shall direct inclusion of such person in the list and
cause an amendment to the list to be prepared and thereupon
the provisions of Sub-rules (13) and (14) shall mutatis mutandis
apply to such amendments.
5. As already discussed herein above, in view of
provisions of Section 13 of the said Act, it is the members of the
Grampanchayat who are entitled to elect a representative from
that constituency. It is, therefore, clear that the basic
qualification to be voter from the said constituency is to be a
member of the Grampanchayat. In the present case, admittedly,
after publication of provisional list of voters, there is change in
the constituency of the Grampanchayat of which members were
newly elected in the elections held on 26th March 2009. As
already observed herein above, it is only the persons who are
members of the Grampanchayat who are entitled to be voters
from the said constituency. From the documents annexed with
the petition, it is clear that the members who are elected in the
khs/Sept. 2015/8065-d
elections held on 26th March 2009 had applied to the
respondent No. 2 for inclusion of their names and deletion of the
names of earlier members. In view of subsequent elections held
on 26th March 2009, the respondent No. 2 has deleted names
of the petitioners and included the names of the persons who
are elected. I find that the action taken by the respondent No. 2
is totally in consonance with the provisions of the Act, read with
Sub-rule 10 of Rule 36 of the said Rules.
6. It can also be seen that in view of Sub-rule 12 of Rule
36, even after the final list is published, the Collector is
empowered to make corrections in the list, if any error or defect
is found in a particular respect. Not only this, but Sub-rule 15 of
Rule 36 entitles a person whose name is not entered in the final
list of voters as republished under Sub-rule (14), to make an
application as lat as 3 days before the last date for nomination.
If the Collector is satisfied, the Collector is required to include
name of such person in the voters' list.
7. I am, therefore, of the considered view that if there is
change in the constitution of the Grampanchayat, by virtue of
election, the persons who represent the Grampanchayat and
who are entitled to vote would be in a position to make an
application even after publication of final list of voters in view of
Sub-rule 12 of Rule 36 of the said Rules and even, as late as 3
days prior to the date fixed for nomination as provided under
Sub-rule 15.
8. Since the basic qualification to vote in the election, from
the constituency concerned, is to be a member of the
khs/Sept. 2015/8065-d
Grampanchayat, no error could be found with the approach
adopted by the respondent No. 2 in passing the order impugned
in the present petition. The petition is devoid of any merit."
20. The dates and sequence of events in the Bhatu Case (supra) are
relevant. After the publication of the provisional list of voters dated
16/11/2009, there was a change in the elected members of the Gram
Panchayats. Such elected members had moved applications under
Rule 36(15) more than 3 days prior to the date fixed for filing
nomination as provided under Rule 36(15). By order dated
16/11/2009, the DDR deleted the names of the outgoing members of
the Gram Panchayat Constituency and included the names of newly
elected members of the Gram panchayat. In this backdrop, this
Court concluded in paragraph Nos. 6 to 8 that no error was found in
the order passed by the DDR. The petition filed by outgoing
members was, therefore, dismissed.
21. With regard to the effect of Rule 36, this Court has concluded
in the matter of Shri Sai Vividh Karyakari Seva Sahakari Sanstha
Maryadit and others Vs. State of Maharashtra and others, 2012(2)
Mh.L.J. 274 that the cut-off date as provided under Rule 36(2),
cannot be revised. Similarly, by placing reliance upon the judgment
khs/Sept. 2015/8065-d
of this Court in the Bhatu Case (supra), this Court held in paragraph
Nos. 13 to 18 as under :-
" 13. Rule 35 of the Rules of 1967 deals with the various
constituencies, the duties of the Collector. The Collector is
required to prepare the voters list separately for each of the
District and Talukas. Rule 36 deals with voters list, wherein
powers are given to the Collector to call upon the District
Deputy Registrar of the Co-operative Societies to prepare and
furnish to him the list of the members of the Agricultural
Credit Societies and the Multi Purpose Co-operative Societies.
So also separate list for each of the constituencies. Sub-rule
(2) of Rule 36 lays down a mandate that every such list shall
be revised before the general election at least six months
before the date on which the term of market committee is due
to expire. Reading sub-rule (2) of Rule 36 it is manifest that
the list has to be revised at least six months before the due
date of the expiry of the term of the market committee. The
proviso to sub-rule (2) gives the power and authority to the
Collector to direct the revision of such lists also at any other
time before any general election is due. Much emphasis was
placed by Shri Deshmukh, the learned Counsel on this
proviso to submit that the said proviso gives power to revise
the list at any time before any general election is due, it cast
duty on the Collector to revise the list as and when the new
members are enrolled.
14. The proviso to a particular provision of a statute
only embraces the field which is covered by the main
khs/Sept. 2015/8065-d
provision. A proviso cannot be construed as enlarging the
scope of an enactment, when it can be fairly and properly
construed without attributing to it that effect. A proviso has no
repercussion on the interpretation of enacting portion of the
section so as to exclude something by implication which is
embraced by clear words in the enactment. The general rule
in construing an enactment containing a proviso is to construe
them together and read the whole section/Rule, inclusive of
the proviso in such a manner that they naturally throw light
on each other and result in harmonious conclusions so that
neither of them is made redundant or otiose,
15. The proviso to sub-rule (2) of Rule 36 will have to be
interpreted on the touch stone of the aforesaid principles. The
phraseology of sub-rule (2) of Rule 36 is unambiguous and
when the meaning of the proviso does not admit of any
ambiguity, a literal meaning is to be attached to it. Sub-rule
(2) of Rule 36 lays down that every such list shall be revised
before the general election atleast six months before the date
on which the term of market committee is due to expire. It lays
down a mandate and obligation that the list shall be revised
at least six months before the term of market committee is due
to expire. Once the said list is revised as per sub-rule (2), then
in such circumstances, the same would be the voters list. The
scheme of Rule 36 is such that after the list of voters is
published, then objections are invited as per sub-rule (7) of
Rule 36. The objections having been received are to be
decided by the Collector and the order passed by the Collector
khs/Sept. 2015/8065-d
on the said objection is made final by virtue of sub-rule (10) of
Rule 36. As per the decision on the objections the list is to be
amended and final list is to be published as per sub-rule (11)
of Rule 36.
16. Proviso to sub-rule (2) of Rule 36 will have to be
read harmoniously with Rule 2. It will have to be read in a
manner that both co-exists and head on collusion between the
two shall have to be avoided. The proviso cannot be
interpreted in a manner which would render sub-rule (2) of
Rule 36 as a useless lumber or a dead letter. Sanctity will
have to be given to the mandate cast upon the Collector or the
authority to revise the list at least six months before the date
on which the term of market committee is due to expire. If the
proviso is interpreted in the manner that even after the
publication of list of voters as provided in sub-rule (2), the
Collector can still revise the cut off date, then the same would
not be in consonance with the mandate. It would be doing
violance to the language and the phraseology of sub-rule (2) of
Rule 36.
17. Much emphasis was laid by the learned Counsel for
the petitioner on the interpretation of word 'may' in the said
proviso that said word may in the proviso shall be interpreted
as shall.
18. In sub-rule (2) the legislature has used the word
shall, whereas in proviso the legislature has used the word
'may'. The fact that the legislature in its wisdom has used the
word 'may' in proviso and shall in sub-rule (2), clearly speaks
khs/Sept. 2015/8065-d
about its intention. It strengthens the inference that the said
words are sed in their primary sense and the literal meaning
should be attached to it. The said word 'may' in the proviso
gives discretion to the authority i.e. in certain contingencies
such list can be revised before the general election is due. The
same would be under certain contingencies, the same cannot
be read in a blanket manner. In the case of Bhatu Devidas
Patil referred supra, this Court had held that the members of
the village panchayat had changed and so their names were
required to be included in the voters list. The gram panchayat
was already in existence and was in the list of voters which
was revised six months prior to the due date of election. But
during the interregnum, the members of the panchayat had
changed and so their names were required to be included.
This Court had held that the same is permissible. In the
present cases, the petitioners were registered as Co-operative
Societies in May and June 2011 i.e. just three to four months
before the date when the general elections were due and after
the voters list was revised. If the argument of the learned
Counsel for the petitioner is accepted that at any time i.e. up
to three days prior to the last date of filing the nomination the
list can be revised, then that would lead to anomalous
situation and different cut of date would be required to be
provided for different constituencies. The proviso cannot be
stretched so far."
22. As such, this Court considered that the Collector / Returning
khs/Sept. 2015/8065-d
Officer (DDR) can republish the list if he finds that the names of any
persons were not entered in the final list of voters and such inclusion
is permissible prior to 3 days from the last date of filing of the
nomination papers. In paragraph No.18, it was therefore concluded
that the argument of the petitioner that the application for inclusion
of name in the Voters' List can be entertained at any time, if is
accepted, that would lead to an anomalous situation.
23. I do not find that Rule 36(15) needs any further interpretation.
The Collector / DDR can entertain an application under Rule 36(15)
for inclusion of names in the final Voters List only if such application
is filed at least 3 days prior to the last date for nomination.
24. In the instant case, the last date for nomination was
06/07/2015. The petitioners / members assumed charge under
Section 28 of the Maharashtra Village Panchayats Act as members of
the petitioners / Gram Panchayats in between 22/07/2015 and
28/07/2015, by which time, the date for filing nominations was over.
The date for withdrawal of applications was also over. Polling was
scheduled on 09/08/2015. The final Voters' List under Rule 36(13)
and (14) was therefore finalized.
khs/Sept. 2015/8065-d
25. There is no provision cited by the petitioners that the Voters
List could be revised or amended by filing an application after the
last date for nomination is over. These petitioners had filed their
applications under Rule 36(15) on 01/08/2015, which is 25 days
after the last date for nomination.
26. As such, considering the view taken by this Court in the case
of Bhatu Devidas (supra) and Shri Sai Vividh (supra), neither can
Rule 36(15) be relaxed so as to give any latitude to the petitioners or
to any aggrieved person to file an application under Rule 36(15)
within 3 days from the last date for nomination nor can such latitude
be given to the aggrieved person to file such an application after the
last date for nomination has lapsed.
27. In the light of the above, these petitions fail. The ballot papers
/ votes cast by those newly elected members of the Gram
panchayats / petitioners, whose names were not included in the final
Voters' List and which have been preserved in a separate ballot box,
are directed to be discarded. The results of the elections to
respondent No.5 APMC on the basis of the ballot papers of the voters,
whose names are found in the final Voters' List shall be opened in
accordance with the procedure laid down in Law for enabling the
khs/Sept. 2015/8065-d
counting of votes and for declaration of the election results.
28. Rule is, therefore, discharged. No order as to costs.
29. Pending civil applications, in the light of the above do not
survive and are therefore disposed of.
( RAVINDRA V. GHUGE, J.)
khs/Sept. 2015/8065-d
