Bombay High Court
Asaram Jijabhau Borade vs The State Of Maharashtra And ... on 13 July, 2017
Bench: S.P. Deshmukh
(Judgment) (1) W.P. No. 08768, 08784 &
08828 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 08768 of 2017
District : Jalna
Kishanrao s/o. Sarjerao More,
Age : 48 years,
Occupation : Agriculture,
R/o. Deogaon, Taluka Mantha,
District Jalna. .. Petitioner.
versus
1. The State of Maharashtra,
Through its Secretary,
Co-operation, Marketing and
Textile Department, Mantralaya,
Mumbai - 32.
2. The District Deputy Registrar,
Co-operative Societies, Jalna,
Taluka & District Jalna.
3. The Assistant Registrar Co-operative
Societies, Mantha, Taluka Mantha,
District Jalna.
4. The Agriculture Produce Market
Committee, Mantha,
Taluka Mantha, District Jalna,
Through its Secretary.
5. Pangri Budruk Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Pangri, Taluka Mantha,
District Jalna,
Through its Secretary.
6. Kirtapur Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Kirtapur, Taluka Mantha,
District Jalna,
Through its Secretary.
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(Judgment) (2) W.P. No. 08768, 08784 &
08828 of 2017
7. Jaypur Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Jaypur, Taluka Mantha,
District Jalna,
Through its Secretary.
8. Georai Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Georai,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
9. Shivangiri Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Shivangiri,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
10. Kendhali Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Kendhali,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
11. Mangrul Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Mangrul,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
12. Patoda Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Patoda,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
13. Vaidya Wadgaon Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Vaidya Wadgaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
14. Vidoli Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Vidoli,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
15. Savargaon Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Savargaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
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(Judgment) (3) W.P. No. 08768, 08784 &
08828 of 2017
16. Wadegaon (Pa) Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Wadegaon (Pa),
Taluka Mantha, Dist. Jalna,
Through its Secretary.
17. Devgaon Khavne Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Devgaon Khavane,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
18. Limbe Wadgaon Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Limbe Wadgaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
19. Pangri Gosavi Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Pangri Gosavi, Taluka Mantha,
District Jalna,
Through its Secretary.
20. Pakani Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Pakani,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
21. Uswad Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Uswad,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
22. Ambhora Kadam Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Ambhora Kadam,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
23. Kehal Wadgaon Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Kehal Wadgaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
24. Nansi Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Nansi,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
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(Judgment) (4) W.P. No. 08768, 08784 &
08828 of 2017
25. Mantha Taluka Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Mantha, Taluka Mantha,
District Jalna,
Through its Secretary. .. Respondents.
...........
Mr. Mahesh P. Kale, Advocate, for the petitioner.
Mr. Y.G. Gujarathi, Asst. Government Pleader, for
respondents no.01 to 03.
Mr. R.N. Dhorde, Senior Advocate, instructed by
Mr. V.R. Dhorde, Advocate, for respondents
no.05 and 08 (caveator).
Mr. S.S. Thombre, Advocate, for respondent
no.25 (caveator).
...........
With
Writ Petition No. 08784 of 2017
District : Jalna
Mr. Daulatrao Bhaurao Jadhav,
Age : 52 years,
Occupation : Social Worker,
Chairman, Vividh Karyakari Sahakari
Seva Society, Umerkhed,
Taluka Mantha, District Jalna. .. Petitioner.
versus
1. The State of Maharashtra,
Through its Secretary,
Co-operation and Textile Department,
Mantralaya, Mumbai - 32.
2. The Director of Marketing,
Maharashtra State,
Central Administrative Building,
Near Railway Station, Camp Area,
Pune, District Pune.
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(Judgment) (5) W.P. No. 08768, 08784 &
08828 of 2017
3. The District Deputy Registrar,
Co-operative Societies, Jalna.
4. The Assistant Registrar,
Co-operative Societies,
Mantha, District Jalna.
5. Sandip s/o. Bhujangrao Gore,
Age : 39 years, .. Respondents.
Occupation : Agriculture, (No.5 - Intervenor)
R/o. Vidoli, Taluka Mantha,
District Jalna.
...........
Mr. V.D. Sapkal, Advocate, for the petitioner.
Mr. Y.G. Gujarathi, Asst. Government Pleader, for
respondents no.01 to 04.
Mr. S.S. Thombre, Advocate, for respondent
no.5 (caveator).
...........
With
Writ Petition No. 08828 of 2017
District : Jalna
Asaram s/o. Jijabhau Borade,
Age : 42 years,
Occupation : Agriculture,
R/o. Borade Galli, Mantha,
Taluka Mantha,
District Jalna. .. Petitioner.
versus
1. The State of Maharashtra,
Through its Secretary,
Co-operation, Marketing and
Textile Department, Mantralaya,
Mumbai - 32.
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(Judgment) (6) W.P. No. 08768, 08784 &
08828 of 2017
2. The District Deputy Registrar,
Co-operative Societies, Jalna,
Taluka & District Jalna.
3. The Assistant Registrar Co-operative
Societies, Mantha, Taluka Mantha,
District Jalna.
4. The Agriculture Produce Market
Committee, Mantha,
Taluka Mantha, District Jalna,
Through its Secretary.
5. Pangri Budruk Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Pangri, Taluka Mantha,
District Jalna,
Through its Secretary.
6. Kirtapur Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Kirtapur, Taluka Mantha,
District Jalna,
Through its Secretary.
7. Jaypur Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Jaypur, Taluka Mantha,
District Jalna,
Through its Secretary.
8. Georai Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Georai,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
9. Shivangiri Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Shivangiri,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
10. Kendhali Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Kendhali,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
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(Judgment) (7) W.P. No. 08768, 08784 &
08828 of 2017
11. Mangrul Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Mangrul,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
12. Patoda Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Patoda,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
13. Vaidya Wadgaon Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Vaidya Wadgaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
14. Vidoli Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., vidoli,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
15. Savargaon Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Savargaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
16. Wadegaon (Pa) Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Wadegaon (Pa),
Taluka Mantha, Dist. Jalna,
Through its Secretary.
17. Devgaon Khavne Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Devgaon Khavane,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
18. Limbe Wadgaon Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Limbe Wadgaon, Taluka Mantha,
District Jalna,
Through its Secretary.
19. Pangri Gosavi Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Pangri Gosavi, Taluka Mantha,
District Jalna,
Through its Secretary.
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(Judgment) (8) W.P. No. 08768, 08784 &
08828 of 2017
20. Pakani Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Pakani,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
21. Uswad Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Uswad,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
22. Ambhora Kadam Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Ambhora Kadam, Taluka Mantha,
District Jalna,
Through its Secretary.
23. Kehal Wadgaon Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Kehal Wadgaon,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
24. Nansi Shetkari Dhanya Adhikosh
Sahkari Sanstha Ltd., Nansi,
Taluka Mantha, Dist. Jalna,
Through its Secretary.
25. Mantha Taluka Shetkari Dhanya
Adhikosh Sahkari Sanstha Ltd.,
Mantha, Taluka Mantha,
District Jalna,
Through its Secretary. .. Respondents.
...........
Mr. Santosh S. Jadhavar, Advocate, for the petitioner.
Mr. Y.G. Gujarathi, Asst. Government Pleader, for
respondents no.01 to 03.
Mr. R.N. Dhorde, Senior Advocate, instructed by
Mr. V.R. Dhorde, Advocate, for respondents
no.05 and 08 (caveators).
Mr. S.S. Thombre, Advocate, for respondent
no.25 (caveator).
...........
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(Judgment) (9) W.P. No. 08768, 08784 &
08828 of 2017
CORAM : SUNIL P. DESHMUKH, J.
DATE : 13TH JULY 2017
ORAL JUDGMENT :
01. Rule. Rule made returnable forthwith. Heard learned
counsel appearing for parties at length finally by consent.
02. Petitioners in these three petitions question propriety and
legality of orders passed turning down objections taken by them to
the list of voters published for the election of eleven members of
agriculturists' constituency of Agriculture Produce Market Committee,
Mantha.
03. In order to appreciate the matter in proper perspective,
succinct reference to a few facts may be worthwhile.
04. Respondent no.05 is Agriculture Produce Market
Committee, Mantha, established pursuant to provisions of the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Act, 1963 [hereinafter referred to as "APMC Act"].
05. Term of the managing committee of an Agriculture
Produce Market Committee is generally of five years. The term of
the last managing committee of Agriculture Produce Market
(Judgment) (10) W.P. No. 08768, 08784 &
08828 of 2017
Committee, Mantha, had expired around 19th November, 2015.
However, no elections pursuant to provisions of APMC Act and the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Rules, 1967 [hereinafter referred to as "APMC Rules"]
had been held before or at expiry of the term. The term of the
managing committee had been extended by a period of six months
which expired on 19th May, 2016. Thereafter the Agriculture
Produce Market Committee was under administration of a non-
government committee appointed pursuant to provisions of the
APMC Act.
06. As elections were not being held, a writ petition had been
filed in high court bearing no. 8478 of 2016. Under order dated
22nd December, 2016, division bench of this court had directed the
Agriculture Produce Market Committee to comply with requirements
in relation to deposit of election expenses within a month and to
complete process of election within a period of six months from the
date of order. The administrative committee had been restrained
from taking any policy decision under the same.
07. It appears that on 23rd May, 2017, after the order had
been passed, the District Deputy Registrar had published list of
voters. In said list, it appears, according to the petitioners,
(Judgment) (11) W.P. No. 08768, 08784 &
08828 of 2017
members of managing committees of about 21 co-operative societies
had been shown as voters in the agriculturists' constituency.
Primary objection to their enrollment as voters has been on the
ground that registration of said 21 societies had been in the month
of May, 2017 itself. According to petitioners, members of managing
committees of said societies do not qualify eligibility criterion under
APMC Rule 36(2) which according to petitioners postulates that the
societies be existing six months before or at least on the cut off date.
Albeit, there is some dispute in respect of the same by the
concerned respondents in writ petition no. 8768 of 2017 stating that
this was not the objection and objection had been to registration of
societies and request had been to remove their names. It is the
contention of petitioners that 21 societies, members of managing
committees of which have been shown in the voters' list on 23rd
May, 2017, have not been registered six months before or on cut off
date as required. Their members could not be voters and they would
neither be eligible to vote nor to contest ensuing election to
Agriculture Produce Market Committee, Mantha. Their further
contention is that this vital aspect involved in the matter has not
received attention at all and has been ignored, overlooked, sidelined
and there was no application of mind to the same and their
objections have been turned down. Thus, the order is untenable,
invalid and improper.
(Judgment) (12) W.P. No. 08768, 08784 &
08828 of 2017
08. During the course of submissions, Mr. M.P. Kale, Mr. V.D.
Sapkal and Mr. S.S. Jadhavar, learned counsel appearing for
respective petitioners submit, the record reflects that cut off date
declared by District Deputy Registrar had been 31st December, 2016
and, as such, it had been incumbent that the societies ought to have
been in existence six months before or at least on said date.
According to learned counsel, basic eligibility criteria does not get
satisfied in the present matter in respect of members of managing
committees of 21 societies. The societies having been registered as
recently as in first or at the most second week of May, 2017, they
are fatally deficient to comply with eligibility criteria as is given under
rule 36(2) of the APMC Rules. Learned counsel for petitioners for the
said purpose rely on Rule 36(2) of the APMC Rules which reads as
under :-
36. Voters' list.
(1) .......................................
........................
(2) Every such list shall be revised before
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 or, the the
District Deputy Registrar, as the case may be,
may direct the revision of such list also at
any other time before any general election is
due.
(3) ...............................
(Judgment) (13) W.P. No. 08768, 08784 &
08828 of 2017
09. According to Mr. Sapkal, learned counsel who has led
arguments advanced on behalf of the petitioners, the proviso stands
worked out pursuant to communication dated 08-02-2017
whereunder it has been clearly stipulated that cut off date is 31-12-
2016. Thus, according to him, the discretion given to the District
Deputy Registrar stands exhausted while he has declared cut off date
to be 31-12-2016 being any other time since elections were being
held beyond expiry of the term of the market committee. This being
the state of affairs, looking at the matter, in any event and
particularly since 21 societies not being registered six months before
or at least on the cut off date, members of said societies are not
qualified and are not eligible to be included in the voters' list and
thus their objections ought to have been allowed. It is further
contended on behalf of petitioners, that this basic issue the authority
has not at all dealt with under the order while declining the
objections taken by the petitioner.
10. In support of their submissions, learned counsel for
petitioners have laid stress on a decision of Hon'ble learned single
judge of this court in the case of Shri Sai Vividh Karyakari Seva
Sahkari Sanstha Maryadit & others Vs. State of Maharashtra & others
[2012(2) Mh.L.J. 274]. It is submitted that the ratio in said case
(Judgment) (14) W.P. No. 08768, 08784 &
08828 of 2017
applies on all fours to present matter since situation is closely similar
to, or almost is, the same.
11. Mr. Sapkal, in addition to aforesaid judgment has
referred to and relied on a decision of Hon'ble division bench of this
court in writ petition no. 5799 of 2008 (Eknath s/o. Vithalrao Kadam
Vs. The State of Maharashtra & others) dated 22nd October, 2008
which has been referred to by the Hon'ble learned single judge in the
judgment supra. That was a case relating to inclusion of three new
villages in the voters' list. The Hon'ble learned single judge has
quoted observations from aforesaid judgment of division bench in
paragraph 20 as under :-
" In the matter at hands, there is no dispute that
term of last elected managing committee was to expire
on 28.07.2008 (in fact now expired). Consequently,
Rule 36(2) of the Maharashtra Agricultural Produce
Marketing (Regulation) Rules, 1967, required the
Collector to revise the voters' list on or before
28.01.2008. If that be so, anybody admitted to the
membership or voters' list after 28.01.2008 would not
be in a position to vote at the election for managing
committee which is to take over on expiry of the term of
earlier managing committee which ended on
28.07.2008. "
(Judgment) (15) W.P. No. 08768, 08784 &
08828 of 2017
12. Mr. Sapkal also refers to a judgment of Hon'ble division
bench of this court in the case of Eknath Ashiram Alekar & others Vs.
State of Maharashtra & others [1989 (3) Bom.C.R. 165] and places
emphasis on paragraphs no.32, 33 and 34 therein whereunder the
court had intercepted inclusion of 3000 voters and had restrained
them from participating elections concerned. He submits that
present case is one wherein this court should intervene as in
aforestated case. According to Mr. Sapkal, the position undisputedly
is that 21 societies concerned have been registered only in May,
2017 and members of their managing committees do not qualify as
voters in view of provisions of Rule 36(2) of the APMC Rules as has
been observed in the judgments referred to above.
13. Mr. Sapkal also additionally adverts to section 27 of the
Maharashtra Co-operative Societies Act, 1960, particularly, sub-
section (3) thereof. He submits that on that count as well members
of managing committee of 21 societies are not qualified. Said
section 27(3) reads, thus :-
"(3) A society which has invested any part of its funds in the
shares of any federal society, may appoint one of its members to
vote on its behalf in the affairs of that federal society; and
accordingly such member shall have the right to vote on behalf of
the society :
Provided that, any new member society of a federal society
shall be eligible to vote in the affairs of that federal society only
(Judgment) (16) W.P. No. 08768, 08784 &
08828 of 2017
after the completion of the period of three years from the date of
its investing any part of its fund in the shares of such federal
society :
Provided further that, where the election is to a reserved
seat under section 73-B, no person shall have more than one
vote. "
14. Countering aforesaid submissions, Mr. R.N. Dhorde,
learned senior advocate, Mr. S.S. Thombre, learned counsel and Mr.
Y.G. Gujarathi, learned assistant government pleader, appearing for
respective respondents, submit that final list of voters is published
and election programme has already been declared and, as such, it
would not be proper to interdict ongoing election process. Learned
senior advocate purports to rely on various judgments in this respect
and contends that the scope of the petition in writ petition is limited
to the nature of objections taken before the concerned authority and
cannot be expanded beyond that and the respondents cannot be
taken by surprise.
15. Learned counsel for respondents submit that there is
hardly any substance in contentions advanced on behalf of
petitioners. According to them, the eligibility criterion being
contended on behalf of petitioners cannot be said to be eligibility
criterion at all. It is submitted that eligibility crieria for being voter
has been contained in the substantive provision, especially section
(Judgment) (17) W.P. No. 08768, 08784 &
08828 of 2017
13(1)(a)(i) of the APMC Act. Said provision is re-produced herein
below for ready reference :-
13. Constitution of Market Committees.
(1) Subject to the provisions of Sub-section
(2), every Market Committee consists of the
following members, namely :-
(a) Fifteen agriculturists residing in the
market area (being persons whose names appear
in the voter's list for the concerned
constituency and who are not less than
twenty one years of age on the date
specified, from time to time, by the
Collector or the District Deputy Registrar,
as the case may be, in this behalf, as
specified below :-
(i) eleven (of which, two shall be
women, one shall be a person belonging
to Other Backward Classes and one
shall be a person belonging to De-
notified Tribes (Vimukta Jatis) or
Nomadic Tribes) shall be elected by
members of the Managing Committees of the
Agricultural Credit Societies and Multi-
purpose Co-operative Societies (within
the meaning of the Maharashtra Co-
operative Societies Act, 1960 and the
rules made thereunder), functioning in
the market area:
Provided that, where the market
Committee is situated in Tribal areas,
one person belonging to the Scheduled
Tribes shall be elected in place of
the election of the person belonging
to the De-notified Tribes (Vimukta
Jatis) or Nomadic Tribes as aforesaid.
16. It is being submitted by learned counsel for respondents,
that once aforesaid eligibility criteria is satisfied by the members of
managing committees of 21 societies, subordinate legislation would
(Judgment) (18) W.P. No. 08768, 08784 &
08828 of 2017
not be able to overwhelm legislative intent underlying the
substantive provision as is being sought to be argued by learned
counsel for petitioners. It is further being submitted that it is
difficult to consider that Sub-Rule 2 of Rule 36 of the APMC Rules can
be construed to lay down any eligibility criterion. It is further being
submitted that while decisions of Hon'ble learned single judge and
the Hon'ble division bench are being referred to and relied on, in
either case, Section 13(1)(a)(i) had not fallen for consideration
before the courts.
17. The next limb of submission on behalf of respondents is
that even otherwise, the persons concerned who would be affected
by adverse order are not party to the petitions nor they are before
the court in any role. This, according to the learned counsel for
respondents, is a gross case of material deficiency and, as such, in
the absence of the persons concerned who are voters and have been
listed as such and such capacity having been finally approved, their
valuable right of being voters cannot be taken away in their absence.
Learned counsel submit that the case of Eknath Ashiram Alekar &
others (supra) wherein the court had considered in the facts of that
case there had been some representation on behalf of the persons
concerned, whereas in the present case, there is no representation
at all on behalf of any such persons.
(Judgment) (19) W.P. No. 08768, 08784 &
08828 of 2017
18. Learned counsel for respondents go on to submit that
even otherwise, cut off date which is pressed in service to be 31st
December, 2016, would not be said to be a cut off date for the
present constituency i.e. agriculturists' constituency as it does not
emerge anywhere on record that such a date had been
communicated by the authorities to the concerned persons save and
except communication issued by the District Deputy Registrar in
response to a query by the secretary of Agriculture Produce Market
Committee, Mantha. According to the learned counsel, the cut off
date referred to in said communication had not been known to any
other constituent categories, nor it is a case that the same had been
communicated to other authorities concerned. It would emerge from
a communication by the District Deputy Registrar to the authorities
under the letter dated 07-11-2016, it was step being taken pursuant
to rule 36(1). They further submit that pursuant to said
communication, the list for the first time came to be published on
23rd May, 2017 containing names of members of managing
committees of 21 societies. In accordance with other rules,
thereafter, objections have been taken which have been turned down
and final list of voters has been published and election programme
has been duly declared.
(Judgment) (20) W.P. No. 08768, 08784 &
08828 of 2017
19. Learned counsel for respondents contend, assuming that
arguments advanced on behalf of petitioners in respect of the cut off
date have some substance, but it would be meaningful to the
elections being held pursuant to provision of rule 36(2) of the APMC
Rules, but it would not be able to have a hold, in the case where
proviso is required to be invoked. The provision under Rule 36(2)
reads thus :-
"36(2) Every such list shall be revised
before general election at least six months
before the date on which the term of the
market committee is due to expire. "
While the proviso reads as under :-
" Provided that the Collector or, the
District Deputy Registrar, as the case may
be, may direct the revision of such list also
at any other time before any general election
is due. "
According to them, it cannot be said that requirement of six months
is sine qua non for exercise of power vested in the Collector or the
District Deputy Registrar pursuant to aforesaid proviso. They
purport to submit, pursuant to communication dated 07-11-2016,
the communicator of letter dated 07-11-2016 himself had published
list containing the names of members of managing committee of 21
registered societies to which objection has been taken. Pursuant to
rules following rule 36(2) the same has been turned down. Learned
(Judgment) (21) W.P. No. 08768, 08784 &
08828 of 2017
counsel further go on to submit that even otherwise, sub-rule 2 of
rule 36 only speaks about revision of list. It does not by itself make
it a voters' list for election. The proviso enables Collector / District
Deputy Registrar to revise the voters' list at any other time than as
referred to in sub-rule 2 of rule 36 of the APMC Rules. That power is
being exercised by the District Deputy Registrar under the list
published on 23rd May, 2017. That can hardly be faulted with for
being beyond authority.
20. In support of their submission, learned senior advocate
Mr. Dhorde refers to and relies on a decision of Hon'ble division
bench of this court in the case of Karbhari Piraji Deokar Vs. State of
Maharashtra & others [1999(1) Mh.L.J. 858] observing thus :-
"8. Another submission made by Shri Hon, learned
counsel for the petitioner, is that the qualifying date should
have been at least six months prior to the expiry of the term
of the previous committee. In support of this contention,
Shri Hon relies on sub-rule (2) of rule 36 of the said Rules,
which is as under :
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 :
(Judgment) (22) W.P. No. 08768, 08784 &
08828 of 2017
Provided that the Collector may direct the
revision of such list also at any other time before
any general election is due.
Therefore, this sub-rule requires that the voters list
will have to be revised, meaning thereby that the persons
who qualified and acquired the right to vote since the time
of the earlier list have to be included; so also the names of
those persons, who have lost their voting rights for variety
of reasons, such as death, cancellation of licence, or any
other reason, will have to be struck off from the list. This
revision is to take place at least six moths before the
general election is due; but the proviso gives a discretion
to the Collector to revise the list even at a subsequent date.
It is a matter of common knowledge that the election
schedules are often disturbed because of various reasons
and if the elections are delayed; and the Collector thinks it
fit, then, instead of revising it on the basis of qualifying
date prior to six months when the term of the market
committee is due to expire, the Collector may choose any
other date. Here, in the instant case, the Collector has
chosen 30th September, 1998 as a qualifying date, which
was perfectly within the powers of the Collector.
Therefore, even this submission will have to be rejected. "
21. Learned counsel for respondents further purport to
submit that this decision reflects upon a contingency coming close to
(Judgment) (23) W.P. No. 08768, 08784 &
08828 of 2017
the one involved in present matter and deals with the same and has
given exposition accordingly referred to herein above.
22. Mr. Dhorde further refers to a judgment of Full Bench of
this court in the case of Rajkumar L. Kesarwani Vs. Returning Officer
[2006(1) Mh.L.J. 445] pursuant to which, according to him,
amendments have been carried out to Rule 13(1)(a)(i). It is being
submitted that since members of the society who have now right to
vote and contest the election in view of substantive provision of Rule
13(1)(a)(i) are not before the court, in their absence, their franchise
cannot be taken away.
23. Learned counsel for respondent purports to dispel,
argument on behalf of petitioners, with reference to Section 27 of
the Maharashtra Co-operative Societies Act, submitting that the
same would not apply to APMC Act, a special enactment.
24. Shri Sai Vividh Karyakari Seva Sahkari Sanstha Maryadit
(supra) had been dealing with holding of regular elections before the
term of the committee was due to expire. In said case, a provisional
voters' list had been declared on 01st July, 2011 which did not
include the petitioners therein - societies' members as voters.
Petitioners therein had raised objection in respect of the same before
(Judgment) (24) W.P. No. 08768, 08784 &
08828 of 2017
concerned authority and their objection had been rejected on 28-07-
2011 and petitioners were not included in voters' list. Thus,
petitioners were before this court. It is with reference to same the
decision appears to have been rendered in the matter.
25. Having heard submissions on behalf of learned counsel
appearing for respective parties as aforesaid, one thing clearly
emerges that the persons to be affected are not before this court. In
their absence, it is difficult to go ahead and it would not be proper
and decide a matter taking away their rights as accrued and
available under the provisions of APMC Act and APMC Rules.
26. It would not be out of place to refer to that section 14 of
the APMC Act requires members of APMC be elected in the manner
prescribed by rules. Such rules inter alia may provide for
preparation and maintenance of list of voters, persons qualified to be
elected, disqualifications from being chosen as members, right to
vote etc.
27. Rule 37 of the APMC Rules, subject to disqualification
incurred by person, the voters' list published finally under rule 36
accords status of conclusive evidence for the purpose of determining
whether any person is qualified to vote or is not qualified to be
(Judgment) (25) W.P. No. 08768, 08784 &
08828 of 2017
elected.
28. Rule 38 of the APMC Rules prescribes that a person, who
is an agriculturist and who is residing in market area, shall unless
disqualified under the rules, be qualified to be elected.
29. Rule 39 of the APMC Rules provides as under :-
"39. Right to vote. --
(1) No person who is not, and except as expressly
provided by these rules, every person who is for the
time being, entered in the list of voters of any
constituency shall be entitled to vote in that
constituency.
(2) No person shall vote at any election in any
constituency if he is subject to any disqualification
under these rules. "
30. Rule 41 of the APMC Rules is in respect of
disqualifications for membership of a person, for being chosen or for
being a member of market committee and further provides that a
person shall not be chosen as a member representing the co-
operative societies' constituency for agriculturists, if his main income
is not from agriculture or if he possesses traders', commission
agents' or broker licence or has interest in joint family or a firm
which has a trader's or commission agents' or broker licence and
question of disqualification is to be decided by director upon
(Judgment) (26) W.P. No. 08768, 08784 &
08828 of 2017
reference.
31. A question has been raised about rule 36(2) at all being
impliedly laying down any eligibility criterion for being a voter or for
right to contest. It has been urged to consider that rule 36
empowers the authorities to amend the lists before and even after
preparation of final voters' list. Question has also been raised may
have to be addressed to as to whether a revision of list pursuant to
rule 36(2) is a final voters' list or is a step in preparation of final
voters' list. Also lots of other questions have been raised in the
petitions which would not be amenable to decision without proper
opportunity to parties. Further, it is disputed that 31st December,
2016 being declared as cut off date. In the submission on behalf of
petitioners, said date is to be taken as a cut off date on the basis of
a communication from the respondent. As a matter of fact, the
State and its authorities purport to oppose the petitions.
32. It does not appear that section 27 of the Maharashtra
Co-operative Societies Act, 1960 would carry forward the point for
petitioners.
33. Persons, whose names have been enlisted as voters in
the relevant constituency in the present matter are not said to be
(Judgment) (27) W.P. No. 08768, 08784 &
08828 of 2017
persons who are disqualified or there is no dispute about them being
possessing qualifications under rule 38 of the APMC Rules. There
does not appear to be any express prohibition for their inclusion in
voters' list albeit it is contended that it would not be in accordance
with rule 36(2). A final voters' list has been published pursuant to
Rule 36 of the APMC Rules and rule 39 of the APMC Rules gives
entitlement to the persons who have been entered into list of voters
of any constituency.
34. In view of aforesaid, it does not appear to be appropriate
at this stage to intercept the ongoing process. This is not a case
wherein powers of this court deserve to be exercised since the
petitioners would not be remediless and can pursue other remedies
as would be available in accordance with law.
35. For the foregoing reasons, Writ Petitions are not
entertained and are accordingly dismissed. Rule stands discharged.
In the circumstances, parties shall bear their own costs.
( Sunil P. Deshmukh )
JUDGE
...........
puranik / WP8768.17etc
