members of Village Panchayat in some case may lose their right
to contest the election from the constituency, but in that regard
nothing can be done. Such approach needs to be taken to
remove the ambiguity, if any, felt in the aforesaid provisions.
19. The learned counsel for petitioners placed reliance
on the observations made in some reported and unreported
cases of this Court. Copy of the decision given in Writ Petition
No. 5799/2008 [Eknath s/o. Vithalrao Kadam Vs. The
State of Maharashtra & Ors.] decided by the Division
Bench of this Court on 22nd October 2008 is produced. The
decision shows that inclusion and non inclusion of some of
Village Panchayats, its members as voters in voters list of one
Marketing Committee was under challenge. Election of Manwat
A.P.M.C. was declared. In the past, some Village Panchayats were
attached to different Marketing Committees like Sailu and Jintur.
The term of members of Marketing Committee Manwat was to
expire on 27.7.2008 and the final list of voters was published on
24.9.2008. The Writ Petition was decided on 22.10.2008. As per
the record, these Village Panchayats were attached to Manwat
Marketing Committee after 28.1.2008 and it was held that the
period of six months given in Rule 36 of the Rules is mandatory
and due to that Rule, the Village Panchayats ought to have been
WP No. 9197/2015 & Ors.
attached to Manwat Marketing Committee prior to 28.1.2008 and
then their members could have been included. The remaining
portion of Rule 36 providing for amendment was not brought to
the notice of this Court and further, provision of section 13 was
also not referred for consideration of the right of the members of
these Village Panchayats.
20. In the case reported as 2012 (2) Mh.L.J. 274 [Shri.
Vivid Karyakari Seva Sahkari Sanstha Maryadit and Ors.
Vs. State of Maharashtra and Ors.], this Court (other Hon'ble
Judge) referred the procedure given in Rule 36 of the Rules. In
that matter, rights of one co-operative society claiming right to
vote in co-operative societies constituency's was under
consideration. Thus, the constituency was different and facts of
the reported case were also different. In this case also, the
provision of section 13(1)(a)(i) was not referred and the
implication of Rule 36 (1) of the Rules was not considered.
21. Reliance was placed on the decision given in Writ
Petition No. 8065/2015 and other connected matters
decided on 28.9.2015 [The Grampanchayat, Nadiwadi Vs.
The State of Maharashtra and Ors.]. The facts of this case
show that the date of nomination was 8.7.2015 and the
WP No. 9197/2015 & Ors.
members of various Village Panchayats who were before the
Court had assumed the charge between 22.7.2015 and
28.7.2015. This Court (other Hon'ble Judge) had held that since
members of these Village Panchayats whose term had expired
even before the date of nomination were entitled to vote in the
election which was to take place on 9.8.2015 as they were on
final voters list. In this case also, the provision of section 13(1)
(a)(ii) was not referred.ig
22. It appears that in Writ Petition No. 8472/2015
and other connected matters [Rajkumar Venkatrao Kalme
and Ors. Vs. The State of Maharashtra and Ors.] decided
on 29th October 2015, this Court (other Hon'ble Judge) has
requested the Hon'ble Chief Justice to refer these points to
Larger Bench. This Hon'ble Judge apparently disagreed with the
proposition made in aforesaid three cases in the past and
referred the observations made by the Division Bench of this
Court in the case reported as 2013 (6) Mh.L.J. 688
[Purshottam s/o. Pandharinath Tonpe Vs. Agriculture
Produce Market Committee, Wardha and Ors.]. By referring
the provision of section 13(1)(a)(ii) of the Act in this case
Division Bench of this Court has laid down that the entitlement
of a member of Village Panchayat to hold office as member of
WP No. 9197/2015 & Ors.
Marketing Committee continues only till the time the member is
representing the Village Panchayat. This Court has expressed
that in view of the interpretation of the relevant provisions done
by the Division Bench, the interpretation done in the aforesaid
case on which reliance is placed in the present matter by the
learned counsel for petitioner cannot be accepted. The Hon'ble
Judge has referred following points for constitution of larger
bench.
"I. Whether the erstwhile/former (past)
members of gram panchayat be allowed to contest
elections to membership of APMC when they are
not members of gram panchayat on the date of
polling, taking into account provisions of section
13 (1) (a) (ii) and proviso to section 15 of the
Agriculture Produce Market Committee
(Development and Regulation) Act, 1963?
II. Whether despite extinguishment of
membership of gram panchayat on the date of
polling for elections to APMC, erstwhile/former
(past) members be deemed to be voters only for
the reason, them being in voter's list prepared
pursuant to Rule 36 of the Agriculture Produce
Market Committee Rules, 1967, and should they
be allowed to vote ?
III. Whether the persons constituting gram
panchayat on the date of polling of elections to
WP No. 9197/2015 & Ors.
APMC would not be entitled to vote in said
elections in their capacity as gram panchayat
members forming village panchayat constituency
for four members to be elected from that
constituency to APMC in given/present situation
and whether in such a case, procedural rules
should not be required to be flexed and
interpreted by harmonious, reconciliatory
approach and adaptation of the same to the
present/given situation, having regard to object,
intention and purpose underlying main provisions
of Agriculture Produce Market Committee
(Development and Regulation) Act, 1963 ?
IV. Whether in the present/given situation
village panchayat constituency can be by-passed
and kept away from having its representatives
elected to the posts of Chairman and/or Vice
Chairman ?"
23. Before this Court, there is decision of Division Bench
of this Court given in case of Purshottam Tonpe cited supra.
This Court has already quoted the relevant provisions of both the
Act and the Rules. This Court took matters for decision as they
are election matters and in election matters when specific
provisions of law are available for decision, the election matters
cannot be kept pending only because there is difference of
opinion expressed in few decisions given by some Hon'ble
WP No. 9197/2015 & Ors.
Judges. This Court can use the interpretation done by this Court
in Division Bench case of Purshottam Tonpe in support of view
taken by this Court in the present matters.
24. In view of the discussion made above, this Court
holds that there is no possibility of interference in the decision
given by Returning Officer in favour of the sitting members by
which the sitting members are allowed to vote in the elections.
25. In the result, all the petitions are dismissed. Civil
Application filed for intervenor is allowed and disposed of. The
votes of the newly elected candidates of Village Panchayats are
to be counted and the results of the four Village Panchayat
constituencies are to be declared. The votes given by previous
members of Village Panchayats are not to be counted and they
stand discarded. Other civil applications, if any, stand disposed
of.
[ T.V. NALAWADE, J. ]
ssc/
