Bhagwan Sampatrao Ghodmare, ... vs The State Of Maharashtra, Thr. The ...
2017 Latest Caselaw 633 Bom

   wp585.17                                                                   1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                     WRIT PETITION  NO.  585  OF  2017

  1. Bhagwan Sampatrao Ghodmare,
     Director, Vihirgaon Seva Sahakari 
     Samiti, Vihirgaon, Tahsil and
     District - Nagpur.

  2. Vasantrao marotrao landge,
     President, Seva Sahakari Sanstha,
     Bahadura, resident of Bahadura,
     Post - Vihirgaon, Tahsil and 
     District - Nagpur.                      ...   PETITIONERS

                    Versus

  1. The State of Maharashtra
     through its Secretary, Department
     of Co-operation, Madam Cama 
     Road, Mumbai 400 032.

  2. The Director of Marketing,
     Maharashtra State Agricultural
     Marketing Board, Multekdi,
     Pune - 37.

  3. The District Deputy Registrar,
     Co-operative Societies, Nagpur.

  4. The Collector, Nagpur.

  5. The Agricultural Produce Marketing
     Committee, Nagpur, through its 
     Member, having its office at Pandit
     Jawaharlal Nehru Yard, Kalamna,
     Nagpur 440 035.                         ...   RESPONDENTS


  Shri A.A. Naik, Advocate for the petitioners.
  Shri P. Tembhare, AGP for respondent Nos. 1, 3 & 4.
  Shri S.W. Sambre, Advocate for respondent No. 5. 
                     .....



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    wp585.17                                                                            2




                                 CORAM :       B.P. DHARMADHIKARI &
                                               MRS. SWAPNA JOSHI, JJ.

MARCH 09, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Considering the nature of controversy, by issuing

rule and making it returnable forthwith, we have heard the

matter finally with the consent of Shri Naik, learned counsel for

the petitioners, Shri Tembhare, learned AGP for respondent

Nos. 1, 3 & 4 and Shri Sambre, learned counsel for respondent

No. 5.

2. The petitioners are agriculturists in the jurisdiction

of Respondent No. 5 - Agricultural Produce Market Committee

(APMC). Petitioner No. 1 is the Director of Vihirgaon Seva

Sahakari Sanstha, Vihirgaon, Tahsil and District - Nagpur and

Petitioner No. 2 is the President of Seva Sahakari Sanstha,

Bahadura, Post - Vihirgaon, Tahsil and District - Nagpur. Their

societies are members of Respondent No. 5 - Agricultural

Produce Market Committee, Nagpur, and the petitioners claim

that they are voters in the elections of APMC i.e. for electing its

Directors. The order dated 10.01.2017 passed under Section

14(3) and (3-A) of the Maharashtra Agricultural Produce

Marketing (Development and Regulation) Act, 1963,

(hereinafter referred to as the Act), is questioned on the ground

that without recording any opinion properly, as mandated by

those provisions, mechanically proposal put up by the

subordinates has been accepted and elections are postponed.

3. Shri Naik, learned counsel in addition submits that

in 2012 elections of local authorities like Nagpur Municipal

Corporation, Zilla Parishad, Nagpur and Respondent No. 5 -

APMC were simultaneously conducted. As such, the fact that

the elections of these local authorities are being held, cannot be

sufficient to postpone elections of Respondent No. 5 - APMC.

By reading out impugned order and legal provisions, he submits

that non application of mind by respondent No. 1 is apparent

because the grounds prescribed in the statute and the reasons

expected in support thereof, do not find any evaluation in the

impugned communication. Lastly, it is submitted that the

election process has already started inasmuch as on

01.12.2016, objections were invited and thereafter provisional

list of voters was published on 26.12.2016. The final list of

voters was also ready thereafter and it was to be published on

13.01.2017. Thus, election process had already commenced

and it could not have been interdicted.

4. Shri Sambre, learned counsel for respondent No. 5

- APMC does not dispute the fact that the election process had

already started. He submits that Respondent No. 5 - APMC

was ready and willing to proceed further with the election

process. He, however, adds that respondent No. 5 has no

particular say in the matter and it will abide by the directions of

this Court.

5. The learned AGP is relying upon the impugned

order and provisions of Section 14(3) and (3-A) of the Act.

According to him, the order expressly mentions satisfaction of

the State Government and the grounds on which it is based. He

submits that in present facts, distinction sought to be drawn

between the reasons and ground is non existent. According to

him, as the elections of local body viz. Nagpur Municipal

Corporation and Zilla Parishad, Nagpur, were also

simultaneously announced, the contingencies contemplated in

Section 14(3-A) are satisfied and hence action cannot be said to

be either without jurisdiction or erroneous. He, therefore,

prays for dismissal of writ petition. According to him, in this

situation, as election can be postponed, the fact that stage of

publication of final list of voters was reached, is itself not

decisive.

6. Shri Naik, learned counsel, in reply, submits that

today only in Writ Petition No. 6676 of 2016, this Court has

taken note of status quo order passed by the Hon'ble Apex

Court. Because of those orders, election of Zilla Parishad,

Nagpur, cannot be conducted in near future. He adds that

when in last election of APMC, simultaneous conduct of other

elections was not found to be an obstacle, the impugned order

passed on 10.01.2017, is unwarranted.

7. Section 14(3) of the Act stipulates that the members

of Marketing Committee hold office for a period of five years.

Second proviso thereto mentions that when elections to elect

new Board of Directors cannot be held for reasons beyond the

control of Committee before expiry of such term, the State

Government may from time to time extend the term of office of

such Committee. Section 14(3-A) envisages a situation where

due to Election programme of local body coincides with the

election of Market Committee and in the opinion of the State

Government, it is not in "public interest" to hold election to

Market Committee, the State Government can by a general or

special order, for the reasons to be recorded in writing,

postpone the elections of Market Committee for a period not

extending six months. The power of State Government under

Section 14(3-A) is overriding in nature because it operates

notwithstanding anything contained in APMC Act.

8. In this background, when the impugned order dated

10.01.2017 is looked into, it takes note of the fact that the date

of expiry of term of body of Board of Directors is 08.03.2017.

Thereafter it points out representation received by the State

Government for grant extension to Board of Directors as

election to local bodies were scheduled in January and March

2017. As per those representations, Respondent No. 3 - District

Deputy Registrar submitted a proposal to the State

Government. After mentioning these developments, the

impugned order observes that considering the grounds

mentioned above, the State Government was satisfied that it

would be appropriate to give extension to the Board of

Directors. In view of this, in the operative order after

mentioning Section 14(3) and (3-A) of the Act, extension of six

months up to 07.09.2017 has been allowed. The existing Board

of Directors have been asked to complete the process of election

during that period. Thus, the existing Board of Directors of

respondent No. 5 - APMC is permitted to continue till

07.09.2017.

9. This order, therefore, nowhere reveals the process

of application of mind for satisfaction reached by the State

Government or even a opinion by it that holding of

simultaneous elections would not be in public interest. The

provisions of Section 14(3) and second proviso are attracted

consequently because APMC cannot be held to be at fault for

not completing the election process within time. However, the

basic extension granted under Section 14(3-A) is the reason for

not holding elections within that time. Thus, the backbone of

order is only Section 14(3-A). Section 14(3-A) reads as under :

"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 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."

Thus, scarcity, draught or election programme are

the contingencies / grounds envisaged therein. If these

contingencies / circumstances are prevailing, and the State

Government finds that it would not be in public interest to hold

elections of Market Committee, then only the powers under

Section 14(3-A) can be invoked. Thus, grounds or

contingencies mentioned in sub-section (3-A) of the Act, by

itself are not sufficient to postpone the elections. Those

grounds must be found sufficient by the State Government to

postpone elections because of public interest involved in the

matter. Thus, bearing of those grounds on public interest is

required to be demonstrated by the State Government in the

impugned order. This exercise of application of mind will

constitute reasons for postponing the elections. In the

impugned order, except for mentioning receipt of

representation demanding extension and simultaneous holding

of elections of Municipal Corporation and Zilla Parishad, there

is no such application of mind. This assumes importance

because in 2012 when last elections of APMC were conducted,

the exercise was undertaken simultaneously. This exercise

which then could be undertaken simultaneously and was not

against public interest, cannot be now presumed to be against

public interest. Special reasons or circumstances prevailing

now which do not permit simultaneous conduct of elections or

then which render it against public interest, therefore, ought to

have been mentioned in the order dated 10.01.2017. Same are

lacking even in the reply affidavit. Those reasons and

application of mind accordingly is conspicuously absent in

present matter.

10. Co-relationship between elections of local body and

"public interest" has to emerge only through reasons to be

"recorded". Unless such reasons are recorded, impact of

"grounds" adverse to public interest cannot be appreciated by

anybody. Though "opinion" or satisfaction to be reached by the

State Government may be subjective, still logical consideration

of relevant material having nexus with the object i.e. public

interest is the sine-qua-non to take recourse to power under

section 14(3-A) of the Act. Bare perusal of impugned order

dated 10.01.2017 here reveals failure to adopt this procedure

and render it arbitrary.

11. In this situation, it is not necessary for us to look

into other contentions raised by the petitioners. We, therefore,

quash and set aside the impugned order dated 10.01.2017. We

direct respondent No. 1 to proceed further with the election of

Respondent No. 5 - APMC as per law.

12. Rule is made absolute accordingly. However, in the

facts and circumstances of the case, there shall be no order as

to costs.

           JUDGE                                                   JUDGE
                                           ******

  *GS.