Bombay High Court
Arun Babasaheb Dake And Others vs The State Of Maharashtra And ... on 10 March, 2016
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2364 OF 2016
1) Arun Babasaheb Dake,
Age-46 Years, Occu:Agri.,
R/o-Kathoda, Tq. & Dist-Beed,
2) Sadashiv Bhagwanrao Prabhale,
Age-50 Years, Occu:Agri.,
R/o-Kulshi, Tq. & Dist. Beed
3) Ankush Hariram Raut,
Age-48 Years, Occu:Agri.,
R/o-Masapur Devala,
Tq. & Dist-Beed
4) Kalpana Dilip Shirke,
Age-40 Years, Occu:Agri.,
R/o-Samnapur, Tq. & Dist. Beed
5) Arun Dashrath Gore,
Age-43 Years, Occu:Agri.,
R/o. Beed, Tq. & Dist-Beed
6) Sakharam Abaji Mhaske,
Age-47 Years, Occu:Agri.,
R/o-Palwan, Tq. & Dist-Beed
7) Rajabhau Balnath Ghumre,
Age-45 Years, Occu:Agri.,
R/o-Mainda, Tq. & Dist-Beed
8) Dinkar Prabhakar Thorat,
Age-46 Years, Occu:Agri.,
R/o-Kathoda, Tq. & Dist-Beed.
...PETITIONERS
::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:27:43 :::
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VERSUS
1) The State of Maharashtra,
Through its Secretary,
Cooperation Marketing and
Textile Department,
Mantralaya, Mumbai-32,
2) The Director,
Agricultural Marketing, Pune,
Central Building, Pune-1,
3) The District Collector, Beed,
4) The District Deputy Registrar,
Co-operative Societies, Beed,
5) The Assistant Registrar,
Co-operative Societies, Beed,
6) Agricultural Produce Market
Committee, Beed,
Through its Secretory.
...RESPONDENTS
...
Mr. Ajit B. Kale Advocate with Mr. G.K.
Thigale (Naik) Advocate for Petitioners.
Mr. V.H. Dighe, A.G.P. for Respondent
Nos.1 to 5.
Mr. D.D. Pokharkar Advocate for Respondent
No.6.
Mr. Kishor D. Khade Advocate for Intervenors.
...
CORAM: S.V. GANGAPURWALA AND
A.I.S. CHEEMA, JJ.
DATE : 10TH MARCH, 2016
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ORAL JUDGMENT [PER S.V. GANGAPURWALA, J.] :
1. Rule. Rule made returnable forthwith.
With the consent of the parties, the Petition is
taken up for final hearing.
2. The Petitioners herein are the elected
members of Respondent No. 6- Agricultural Produce
Market Committee (A.P.M.C.), having been elected
in the general elections held in the year 2011.
The First meeting was held on 15th February, 2011.
The term of the members is of five years from the
date of first meeting i.e. upto 14th February,
2016. The Petitioners filed an application on 11th
February, 2016 seeking extension of their term, as
elections have not taken place. The said
application is pending decision with the State
Government. However, on 26th February, 2016 the
District Deputy Registrar, Co-operative Societies,
Beed, passed an order appointing an administrator
and stated that the members of the committee shall
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cease to hold the office. The same is assailed in
the present Writ Petition.
3. Mr. Kale, the learned counsel for the
Petitioners submits that the Petitioners are not
at fault in not holding the elections before the
expiry of the term of the members. On 5th June
2015, the Petitioners have intimated the District
Deputy Registrar regarding preparation of
provisional voters list, calling of objections and
the final voters list, so as to hold the elections
within the prescribed period. According to the
learned counsel, as per the letter dated 11th
December, 2015 of the Respondent authority,
Petitioners deposited Rupees Two Lakhs as expenses
for the election on 25th January, 2016. As per the
letter dated 11th December, 2015 of the
authorities, the Petitioners gave the
provisional voters list of two constituencies.
According to the learned counsel, the Petitioners
on 28th January, 2016 passed resolution that
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because of the official delay on the part of
authorities in completing the election process,
the extension of the term be sought. The
Petitioners, as such, made an application seeking
extension of the term of the Managing Committee.
The said application is pending with the
Respondent Authorities. No decision has been taken
by the Respondent Authorities on the said
application and abruptly an order is passed by the
District Deputy Registrar appointing the
administrator, so also stating that the term of
the present Managing Committee has come to an end.
The learned counsel submits that the said order is
arbitrary and not in consonance with the Proviso
to sub-section (3) of Section 14 of the
Maharashtra Agricultural Produce Marketing
(Development and Regulation) Act, 1963 (herein
after referred to as "the Act of 1963"). The
learned counsel submits that even if the term has
come to an end, the automatic cessation of the
membership does not take place, more particularly
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in view of Section 15A (1) (a) of the Act of 1963.
The learned counsel submits that the order nowhere
states about misfeasance or malfeasance on the
part of the Petitioners. Only on the ground that,
term has expired, impugned order has been passed
without taking into consideration pending
application of the Petitioners for extension of
the term. The Respondents have not applied their
mind with regard to the application of the
Petitioners for extension of term. Learned counsel
for the Petitioners relies on the Judgment of the
Division Bench of this Court in the case of
Babasaheb Apparao Akat & Ors. Vs. State of
Maharashtra & Ors., Reported in 2010 (2) Bom. C.R.
578.
4. The learned A.G.P., on instructions,
accepts that order on an application of the
Petitioners for extension of time has not been
passed by the State Government. The District
Deputy Registrar upon completion of the term of
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the Managing Committee, has passed the order
invoking its power under Section 15A of the Act of
1963. The learned A.G.P. submits that it is not
the right of the Petitioners to continue in office
even after the lapse of the term. The District
Deputy Registrar is empowered with the authority
to pass appropriate orders on the expiry of the
term of the Petitioners. No error has been
committed by the authority while passing the
impugned order.
5. Mr. Khade, the learned counsel represents
Intervenors who have filed Intervention
Application, and submits that, the Intervenor-
Applicant No. 2 is the Vice-Chairman of the
A.P.M.C. There are large scale defalcations on the
part of the Chairman. The audited accounts of the
A.P.M.C. would make the position clear. The
learned counsel submits that the term of the
Managing Committee has expired. Right to continue
in the office is not the constitutional right but
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the statutory right and the Petitioners can not
seek continuation in the office as of right. The
learned counsel relies on the Judgment of the
Division Bench of this Court in the case of Udhav
Shalikram Geete Vs. State of Maharashtra and
Others reported in 2014 (1) Mh.L.J. 879, so also
another Judgment of this Court at Nagpur in Writ
Petition No. 4480 of 2013, dated 17th October,
2013.
6. We have considered the submissions.
Before we proceed to deal with contentions advanced
by learned counsel for respective parties, it
would be appropriate to refer to relevant
provisions.
. Section 14(1) of the Maharashtra
Agricultural Produce marketing (Development and
Regulation) Act, 1963 reads as under:
"14. Election and term of office of members.
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-
(1) Subject to the provisions of sub-section
(2), the members shall be elected in the
manner prescribed by rules. Such rules may
provide also for the determination of
constituencies, the preparation and
maintenance of the list of voters, persons
qualified to be elected, disqualifications
for being chosen as, and for being a member,
the right to vote, the payment of deposit and
its forfeiture, the determination of election
disputes and all matters ancillary thereto
including provision regarding election
expenses."
. Section 14(3) with Proviso and Section
14(3-A) of the Act of 1963 reads as under:
"(3) Except as otherwise provided in this
Act, the members of a Market Committee (not
being a Committee constituted for the first
time) shall hold office for a period of five
years and the members of a Committee
constituted for the first time shall hold
office for a period of two years:
Provided that, the Market Committee
constituted for the fist time, may be
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replaced by the Government and the new
Committee so replaced shall hold office for
the remainder of the period.
Provided further that, where the general
election of members of a Committee could not
be held for reasons beyond the control of the
Committee before expire of the term of office
of its members as aforesaid, the State
Government may, by order in the Official
Gazette, extend from time to time, the term
of office of any such Committee, so however,
that the period for which the term of office
is so extended shall not exceed the period of
one year in the aggregate.
(3A) Where due to scarcity, draught, flood,
fire or any other natural calamity or rainy
season or any election programme of the State
legislature or the Parliament or a local
authority, coinciding with the election
programme of any Market Committee or such
other special reason, in the opinion of the
State Government, it is not in the public
interest to hold elections to any Market
Committee, the State Government may,
notwithstanding anything contained in this
Act or in any rules, or bye-law made
thereunder, or any other law for the time
being in force, for the reasons to be
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recorded in writing, by general or special
order, postpone the election of any Market
Committee for a period not exceeding six
months at a time which period may further be
extended, so, however, that the total period
shall not exceed one year in the aggregate."
. Section 15A (1) (a) of the Act of 1963
reads as under:
"15A. Provision for appointment of
Administrator after normal or extended term
of office of members expires.
(1) Notwithstanding anything contained in
sub-section (3) of section 15 or any other
provisions of this Act, where the term of
office of two years, five years, or as the
case may be, the extended term of office, if
any, under the proviso to sub-section (3) of
section 14[--------] of the members of any
Market Committee, has expired, the Director
or any officer not below the rank of the
District Deputy Registrar of Co-operative
Societies, authorised by him shall, by order
in writing, direct that -
(a) all members of the Committee shall, as
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from the date specified in the order, cease
to hold and vacate their offices as members
or otherwise;"
7. The term of the Managing Committee of
A.P.M.C. is of five years from the date of first
meeting. The scheme of the Act of 1963 does not
provide for axiomatic cessation of the membership
on expiry of the term. Section 15A (1) (a) of the
Act of 1963 specifically provides that all
members of the Committee shall, as from the date
specified in the order, cease to hold and vacate
their offices as members or otherwise. As such the
members of the Committee continue to hold the
office even after expiry of the term till an order
is passed by the appropriate authority about
cessation of their office.
8. The factual matrix as narrated above
along with the dates, are admitted and are not
disputed by any of the parties. The conspectus of
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the facts would show that the Petitioners being
members of the Managing Committee had taken steps
to hold the election. The amount for expenses of
the election was also deposited by them. Even the
affidavit in reply filed by the State through
Assistant Registrar Co-operative Societies, does
not dispute that the Petitioners have taken steps.
Relevant portion of the affidavit in a reply reads
as under :-
"3. I say and submit that, the office of
the Respondent No. 4 received letter dated 5-
6-2015 from the office of the Respondent No.
6- APMC for conducting election. I say and
has informed to submit holders list vide
letter dated 11-12-2015 of different
constituencies and accordingly the Respondent
No. 6 has submitted voters list on 25-1-2016.
4. I say and submit that, in the mean
while the Respondent authorities have also
received cheque dated 25-1-2016 of Rs. 2
Lakhs towards election expenditure.
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5. I say and submit that, as the term
of the present managing committee of the
Respondent No. 6- APMC was till 14-2-2016,
therefore, the Respondent No. 4 has exercised
the powers under section 14 of the said Act
and issued letter dated 26-2-2016 appointing
the Respondent No. 5 as an Administrator on
the Respondent No. 6- APMC. I say and submit
that, the office of the Respondents have
received letter/ proposal dated 11-2-2016 for
extension of time."
9. The aforesaid facts would make it
abundantly clear that the Petitioners can not be
faulted for elections not being held before the
expiry of their term. It is also accepted by the
Respondents that they had received the proposal
dated 11th February, 2016 from the Petitioners for
extension of time. It is also accepted by the
Respondents that the said proposal was not
forwarded by the District Deputy Registrar to the
Government and District Deputy Registrar does not
have authority to decide the said proposal. As
submitted by the State the District Deputy
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Registrar has to forward the said proposal for
extension of time to the State. It was for the
District Deputy Registrar to forward the same.
10. The District Deputy Registrar, in the
impugned order, has observed that as the term of
the members of the Managing Committee has come to
an end and they have ceased to hold the office,
the office has fallen vacant and that is why the
administrator is being appointed. Apart from the
said cause, no other reason is given while
appointing the administrator. The District Deputy
Registrar, on the premise that on expiry of the
term the post of the members become vacant, has
passed the impugned order. The same is not in
consonance with the statute. As stated above the
cessation of the membership is not axiomatic on
completion of term. The members ceased to hold
office upon the order being passed by the
authority. The same is also held by the Division
Bench of this Court in the case of Babasaheb
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Apparao Akat & Ors. Vs. State of Maharashtra &
Ors., referred supra.
11. The contention of the Respondent that the
Petitioners do not have any constitutional right
to hold the post, need not be debated. The same is
settled proposition of law. Right to hold post is
statutory right governed by the provisions of the
statute. Right to be appointed, elected,
nominated, is right flowing from the statute and
the members are entitled to hold the office as
laid down by the statute.
12. There also can not be any dispute with
the proposition that the District Deputy Registrar
has the powers to order cessation of the office of
the members. We could have appreciated the
arguments of the Respondents in this regard, had
the appropriate authority rejected the application
of the Petitioners for extension of time on the
grounds permissible. In the present case, the
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application of the Petitioners for extension of
time was not decided at all. No decision was taken
on the same. In fact the same was not even
forwarded to the State Government by the District
Deputy Registrar and after lapse of about fifteen
days, has passed the impugned order.
13. According to the learned A.G.P., the
District Deputy Registrar had negatived the
request of the Petitioners. We had asked the
A.G.P. whether the powers are delegated to the
District Deputy Registrar for entertaining the
application for extension of term as laid down
under Proviso to sub-section (3) of Section 14 of
the Act of 1963. The learned A.G.P. candidly
accepts that no such powers are delegated to the
District Deputy Registrar. It is trite that when
the statute requires particular thing to be done
in a particular manner, it has to be done in that
manner only, otherwise not to be done at all. The
order has not been passed by the State Government
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on an application of the Petitioners for extension
of the term of the Managing Committee. On the
contrary, the District Deputy Registrar himself
negatives the claim of the Petitioners. The same
is not permissible, being without authority.
14. The impugned order no where shows that
the District Deputy Registrar has exercised his
powers on account of malfeasance or misfeasance on
the part of the Petitioners, and only on the
ground that the term of the present Managing
Committee has come to an end, appointed an
administrator. The application of the Petitioners
has not be considered by the appropriate
authority.
15. Considering the aforesaid conspectus of
the matter, we are inclined to set aside the
impugned order and pass following order :-
O R D E R
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(I) The impugned order is quashed and set
aside.
(II) The District Deputy Registrar shall
forward the application / proposal of the
Petitioners for extension of term to the
appropriate authority.
(III) The appropriate authority shall take
decision on the said application / proposal
for extension of the term of the Managing
Committee, on its own merits, in accordance
with law, preferably within four weeks.
(IV) Till the application / proposal of the
Petitioners for extension of the term is
decided by the appropriate authority, the
Petitioners i.e. Managing Committee shall
not take any policy decision.
(V) Pendency of the application / proposal
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of the Petitioners for extension of term
will not be an impediment for proceeding
ahead with the elections of the Respondent
No. 6 - A.P.M.C. The same shall be held as
per programme which is being declared for
preparation of the voters list etc.
(Exhibit - R-1, Page 43).
(VI) Rule made absolute in above terms. No
Costs.
[A.I.S. CHEEMA, J.] [S.V. GANGAPURWALA, J.]
asb/MAR16
