Bombay High Court
Bhagwan Sampatrao Ghodmare, ... vs Shri Sunil Porwal, Additional ... on 16 January, 2018
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NOS. 4488 OF 2017, 3894 OF 2017, 1806
OF 2017, 6003 OF 2017, 6004 OF 2017 AND
CONTEMPT PETITION NO. 85 OF 2017
WRIT PETITION NO. 4488 OF 2017
1. Hemraj Marotrao Shingne,
aged 48 years, occ. Agriculturist,
R/o 8-2, Pevtha Village Banwadi,
Tq. Nagpur Gramin, Dist. Nagpur.
2. Vijay Fulchand Maraskolhe,
aged 42 years, occ. Agriculturist,
R/o Bhothali, Wardha Road,
Nagpur.
3. Fakira S/o Lataru Bankar,
aged 75 years, occ. Agriculturist,
R/o House No. 40, Rui Panjari
Road, Main Chowk, Pewatha
Post Rui, District - Nagpur.
4. Ishwar Chindhabha Shingane,
aged 55 years, occ. Agriculturist,
R/o Rui Panjari Road, Main Chowk,
Pewatha Post Rui, District Nagpur.
5. Ashok Madhukar Shingane,
aged 52 years, occ. Agriculturist,
R/o 8-A, Rui Road, Near BSNL
Tower, Pewtha, Nagpur.
6. Shankar Madhukarrao Shingne,
aged 40 years, occ. Agriculturist,
R/o Pewtha, Rui Nagpur.
7. Remu Barlu Roge,
aged 46 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
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8. Rambhau Krishnarao Mathankar,
aged 52 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
9. Murlidhar S/o Chintaman Junghare
aged 54 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
10. Vasudeo Sadashivrao Kodpe,
aged 52 years, occ. Agriculturist,
R/O Village Rama, Tq. Dist. Nagpur.
11. Shantaram Mahadeo Lalsare,
aged 42 years, occ. Agriculturist,
R/O Village Rama, Tq. Dist. Nagpur.
12. Dilip Bapurao Nagpure,
aged 46 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
13. Ramdas Bala Goche,
aged 65 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
14. Sadu Dama Roge,
aged 85 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
15. Arun Leeladhar Mathankar,
aged 35 years, occ. Agriculturist,
R/O Village Rama, Tq. Dist. Nagpur. ... PETITIONERS
Versus
1. Principal Secretary, Department of
Cooperation, Marketing and Textile,
Hutatma Square Madam Cama Road,
Mantralaya Extension, Mumbai 400 032.
2. The Commissioner, Maharashtra State
Cooperative Society, Election Authority,
Administrative Building, Near Sunsen
Hospital, Pune 01.
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3. The Collector,
o/o Collectorate, Civil Lines,
Nagpur 440 001.
4. Agricultural Produce Market Committees
Nagpur, Tah. And District - Nagpur thr.
Its President, Ahmad Karimbhai Sheikh,
having its office at Kalmana Market,
Nagpur, Tah. & Dist. - Nagpur.
5. Ahmad Karimbhai Sheikh,
Aged 62 years, Occ. Agriculturist,
r/o Butibori, Tq. & Dist. Nagpur.
6. Shri Bhagwan Sampatrao Ghodmare,
Director, Vihirgaon Seva Sahakari
Sanstha, Vihirgaon, Tq. Dist. Nagpur.
7. Vasantrao Marotrao Landge,
President, Seva Sahakari Sanstha,
r/o Bahadura, Post. Vihirgaon,
Tq. & Dist. Nagpur. ... RESPONDENTS.
Dr. R.S. Sundaram with Ms. U.R. Tanna, Advocates for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 & 3.
Shri S.S. Ghate, Advocate for respondent No. 2.
Shri A.A. Naik, Advocate for respondent Nos. 4 & 5.
.....
WRIT PETITION NO. 3894 OF 2017
1. Sunil Gulabrao Kode,
aged about 40 years, occ. Agriculturist,
R/o At Post Salai Godhani,
Tah. & District - Nagpur.
2. Ratnakar Bapuraoji Kalbande,
aged about 50 years, occ. Agriculturist,
R/o Shankarpur, Post Khapri Railway,
Tah. & District - Nagpur.
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3. Shailendra Sharadrao Misal,
aged about 43 years, occ. Agriculturist,
R/o Kaldongri, At Post Salai Godhani,
Tahsil & District - Nagpur.
4. Dilip Harishchandra Nandagaoli,
aged about 54 years, occ. Agriculturist,
R/o At Post Mangrud, Dongargaon,
Tahsil & District - Nagpur. ... PETITIONERS
Versus
1. Principal Secretary, Department of
Co-Operation, Marketing And Textile,
Hutatma Rajguru Square, Madam
Kama Road, Mantralaya Extension,
Mumbai 32.
2. Collector/District Election Officer,
Civil Lines, Nagpur
3. Agricultural Produce Market Committees
Nagpur, Tah. And District - Nagpur thr.
Its President, Ahmad Karimbhai Sheikh,
having its office at Kalmana Market,
Nagpur, Tah. & Dist. - Nagpur.
4. Ahmad Karimbhai Sheikh,
Aged 62 years, Occ. Agriculturist,
r/o Butibori, Tq. & Dist. Nagpur. ... RESPONDENTS
Shri A.P. Raghute, Advocate for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 & 2.
Shri S.S. Ghate, Advocate for respondent No. 5.
.....
WRIT PETITION NO. 1806 OF 2017
1. Shri Ashok S/o Bapuraoji Davare,
Occ. Agriculturist, r/o At Peth,
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Post Vyahad, Tah. & Dist. Nagpur.
2. Shri Sunil S/o Mahadeorao Deshmukh,
Occ. Agriculturist, R/o At Varoda,
Post Rui, Tahsil & District - Nagpur.
3. Ahmadbhai Karimbhai Sheikh,
Agriculturist, R/o At Ward No. 1,
Old Vasti Butibori, Tah. & Dist. Nagpur.
4. Kishor Keshavrao Palandurkar,
Agriculturist, R/o Plot No. 170-B,
Pravesh Nagar,Wanjari Layout,
Tahsil & District - Nagpur.
5. Smt. Sunita W/o Gajanan Sabale,
Agriculturist, R/o At Daheli, Post Ashta,
Tahsil & District - Nagpur.
6. Shri Babarao S/O Shyamrao Shid,
Agriculturist, R/o Kawatha, Tah. &
District - Nagpur.
7. Shri Jagdish Krushi Patil,
Agriculturist, R/o At Banwadi,
Post Rui, Tahsil & Dist. Nagpur.
8. Shri Rajesh S/o Tawarlal Chabrani,
occupation - Business, R/o Plot No. 224,
Wardhaman Nagar East, Tahsil & District
- Nagpur.
9. Shri Dwarkaprasad S/o Shivprasad
Kakani, Agriculturist, R/o At Adyali,
Post - Vihirgaon, Tah. & Dist. Nagpur. ... PETITIONERS
Versus
1. State Of Maharashtra through its
Secretary, Ministry Department of
Co-Operation, Madam Cama Road,
Mantralaya, Mumbai 32.
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2. The District Deputy Registrar,
Co-operative Societies, Nagpur.
3. Shri Sachin Kurve,
Administrator of Agricultural Produce
Market Committee, Nagpur and the
Collector, Nagpur.
4. The Agricultural Produce Marketing
Committee, Nagpur through its
Secretary, having its office at Pandit
Jawaharlal Nehru Yard, Kalamna,
Nagpur 440 035.
5. Shri Ruprao s/o Sadashiv Shingne,
aged 56 years, Near Hanuman Mandir,
Mu-Pewatha Rui, Nagpur (Rural),
Nagpur 441 108.
6. Shri Dilop s/o Jadhaoraoji Mathankar,
r/o Flat No. 201, Plot No. 506,
Tajshree Plaza, Professor Colony, Near
Basket Ball Ground, Hanuman Nagar,
Nagpur 440 009.
7. Shri Deorao s/o Madhukar Kadu,
Khadgaon, Kalambi, Nagpur 441 501.
8. The District Collector,
Collectorate, Civil Lines, Nagpur. ... RESPONDENTS.
Shri A.M. Ghare, Advocate for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 & 2.
Shri U.D. Dastane with Sachin Sambre, Advocate for respondent No. 4.
Dr. R.S. Sundaram with Ms. U.R. Tanna, Advocates for respondent
Nos. 5 to 7 (Intervenors).
.....
WRIT PETITION NO. 6003 OF 2017
Ahmadbhai Karimbhai Sheikh,
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aged 61 years, occupation - Agriculturist,
r/o at Ward No. 1, Old Vasti Butibori,
Tahsil & District - Nagpur. ... PETITIONER
Versus
1. State of Maharashtra,
through its Secretary Ministry
Department of Co-operation,
Madam Cama Road, Mantralaya,
Mumbai 400 032.
2. The Collector, Nagpur. ... RESPONDENT
Shri A.M. Ghare, Advocate for the petitioner.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 to 2.
.....
WRIT PETITION NO. 6004 OF 2017
1. Ahmadbhai Karimbhai Sheikh,
aged 61 years, Occupation -
Agriculturist, r/o at Ward No. 1,
Old Vasti Butibori, Tahsil & District
- Nagpur.
2. Sunil S/o Mahadeorao Deshmukh,
aged 50 years, Occupation -
Agriculturist, r/o at Varoda,
Post Rui, Tahsil & District - Nagpur
3. Ashok S/O Bhapuraoji Davare,
aged 54 years, Occupation -
Agriculturist, r/o At Peth, Post
Vyahad, Tahsil & District - Nagpur.
4. Smt. Sunita W/o Gajanan Sabale,
aged 48 years, Occupation -
Agriculturist, r/o At Daheli, Post
Ashta, Tahsil & District - Nagpur.
5. Babarao S/O Shyamrao Shid
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aged 56 years, Occupation -
Agriculturist, r/o Kawatha,
Tahsil & District - Nagpur.
6. Shri Jagdish Krushi Patil,
aged 45 years, Occupation -
Agriculturist, r/o At Banwadi,
Post Rui, Tah. & Dist. Nagpur.
7. Shri Rajesh s/o Tawarlal Chabrani,
aged 44 years, Occupation -
Business, r/o Plot No. 224,
Wardhaman Nagar East, Tahsil &
District - Nagpur.
8. Shri Dwarkaprasad S/O Shivprasad
Kakani, aged 84 years, Occupation -
Agriculturist, r/o At Adyalim, Post
Vihirgaon, Tah. & Dist. - Nagpur.
9. Shri Kishor S/O Keshavrao Palandurkar,
aged 56 years, Occupation - Agriculturist,
r/o Pravesh Nagar, Plot No.1708, Wanjri
Layout, Post Uppalwadi, Tahsil and
District - Nagpur. ... PETITIONERS
Versus
1. The State Of Maharashtra,
through its Secretary, Ministry Department
of Co-Operation, Madam Cama Road,
Mantralaya, Mumbai 400 032.
2. The Director Of Marketing,
State Of Maharashtra, 3rd Floor,
Central Building, Pune 441 001.
3. Smt. Kadambari W/O Bhagat Balkawade,
CEO, Zilla Parishad, Nagpur cum
Administrator of Respondent No. 4 -
Agricultural Produce Market Committee,
Civil Lines, Nagpur
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4. The Agricultural Produce Market
Committee, Nagpur through its
Secretary, Nagpur, Tahsil & District
- Nagpur. ... RESPONDENTS
Shri A.M. Ghare, Advocate for the petitioner.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 to 2.
Shri Uday Dastane, Advocate for respondent Nos. 3 & 4.
.....
CONTEMPT PETITION NO. 85 OF 2017 IN
WRIT PETITION NO. 585 OF 2017
1. Bhagwan Sampatrao Ghodmare,
Director, Vihirgaon Seva Sahakari
Sanstha, Vihirgaon, Tahsil &
District - Nagpur.
2. Vasantrao Marotrao Landge,
President, Seva Sahakari Sanstha,
Bahadura, r/o Bahadura, Post -
Vihirgaon, Tah. & Dist. - Nagpur. ... PETITIONERS.
Versus
1. Shri Sunil Porwal, Additional Chief
Secretary, Department of Marketing
Maharashtra State, Mumbai.
2. Shri. S.S. Sandhu, Additional Chief
Secretary, Department of Marketing
and Textile, Maharashtra State,
Mumbai 400 032.
3. Shri. S.L. Bhosle,
District Deputy Registrar, Co-operative
Societies, having his office at Sahkar
Sadan, Building No. 8, Hindustan
Colony, Amravati Road, Nagpur.
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4. Shri Sachin Kurve,
The Collector, Nagpur, having his office
at Collectorate Building, Civil Lines,
Nagpur. ... RESPONDENTS
Shri A.A. Naik, Advocate for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 to 4.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATE OF RESERVING JUDGMENT : NOVEMBER 15, 2017.
DATE OF PRONOUNCEMENT : JANUARY 16, 2018.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
All these petitions relate to elections of Agricultural
Produce Market Committee (APMC), Nagpur. As the facts are
little vexed, we find it appropriate to very briefly state the
controversy before embarking upon facts in each petition. It needs
to be added here that all these petitions are heard & being
decided together as jointly requested.
2. The tenure of elected Board of Directors of APMC,
Nagpur, was to expire on 09.03.2017. The office of the Collector,
Nagpur, therefore, proceeded to prepare voters list for holding
next general election and 31.08.2016 was determined as cut off
date for examining eligibility of voters. The provisional voters list
was prepared on 01.12.2016 and by 26.12.2016, objections were
invited. 09.01.2017 was the date scheduled for hearing of
objections to the voters list and final voters list was to be
published on 13.01.2017.
3. On 10.01.2017, State Government issued an order
mentioning Section 14(3) and 14(3)(A) of the Maharashtra
Agricultural Produce Marketing (Development and Regulation)
Act, 1963 (Agricultural Produce Market Committee Act, hereafter)
extending its term till 07.09.2017 and postponing the elections.
This order dated 10.01.2017 was challenged in Writ Petition No.
585 of 2017 by the Members constituting Board of Directors. On
09.03.2017, this Court quashed and set aside that order. Then
the petitioners in Writ Petition No. 1806 of 2017 filed MCA No.
287 of 2017 seeking its review and objected to setting aside of
extension granted till 07.09.2017 to elected Board of Directors.
On 22.03.2017, when this review was pending, State Government
passed an order under Section 15A of APMC Act and appointed
the Collector, Nagpur, as Administrator over the APMC.
Questioning this appointment, Writ Petition No. 1806 of 2017
came to be filed and on 24.03.2017, the implementation of said
order dated 22.03.2017 was stayed. However, this interim order
was passed in MCA No. 287 of 2017. On 31.7.2017, this interim
order is accepted & continued as interim order in Writ Petition
No. 1806 of 2017 itself. With the result, elected body continued
in office.
4. On 21.07.2017, the judgment dated 09.03.2017 was
reviewed and the direction in the order of the State Government
dated 10.01.2017 continuing elected body or extending its tenure
stood restored.
5. In judgment dated 09.03.2017 in Writ Petition No.
585 of 2017, the Collector was asked to proceed further as per
law in the matter of holding of elections of APMC. On
20.05.2017, the Collector published fresh Election Programme for
drawing provisional voters list. This also was assailed in Writ
Petition No. 1806 of 2017. As per that programme, the Collector
was to publish final voters list on 24.07.2017.
6. On 13.06.2017, the Hon'ble Governor for the State of
Maharashtra published an Ordinance no. XI of 2017 amending
provisions of APMC Act and giving individual farmers, holding
prescribed eligibility qualifications, a right to vote in the election
of APMC. The Collector thereafter published final voters list in
pursuance of earlier Election Programme dated 20.05.2017. As
per this Election Programme, the individual farmers were not
included in voters list and, therefore, were not entitled to vote.
Writ Petition Nos. 3894 of 2017 and 4488 of 2017 have been,
therefore, filed by such farmers claiming that elections must be
held as per mandate of Ordinance no. XI of 2017 after drawing
proper voters list in which they are included as voters.
7. The Legislative Assembly and Legislative Council for
the State assembled on 24.07.2017 and said Ordinance was
tabled in Lower House. During Session, the Ordinance was
cleared only by the Legislative Assembly on 8.8.2017 and was
transmitted to the Legislative Council. Before later could apply
mind, the Session was over on 11.08.2017. As per Art. 213(2)(a)
of the Constitution of India, its life was to expire on 3 rd
September, 2017. Maharashtra ordinance no. XVII of 2017
containing identical provision is then promulgated on 31.8.2017.
8. This re-promulgation has given rise to Writ Petition
No. 6003 of 2017 where the direction is sought to complete the
election process by using the voters list prepared by treating
31.08.2016 as cut off date ignoring the amending Ordinances. On
7.9.2017, this Court has passed orders on CAW 2026 of 2017 in
WP 1806 of 2017 & allowed State to pass appropriate orders as
per law about the fate of elected board as its extended tenure was
to end on 7.9.2017. Due to this liberty, on 8.9.2017 the Director
of Marketing resorted to S. 15A of the APMC Act and appointed
the Chief Executive Officer of Zilla Parishad as Administrator on
APMC.
9. The said Board of Directors then filed Writ Petition
No. 6004 of 2017 and they challenged this order dated
08.09.2017 passed by the Director of Marketing appointing the
Administrator to manage the affairs of APMC.
10. It needs to be noted here that Civil Application No.
2026 of 2017 (supra) was moved in Writ Petition No. 1806 of
2017 opposing continuation of interim orders granted therein on
31.07.2017. By these orders passed in Writ Petition No. 1806 of
2017, elected body in office was permitted to continue until
further orders. On 07.09.2017, Civil Application No. 2026 of
2017 was disposed of with clarification that Court had not
restrained the State Government from passing any other orders
under any other provisions of law. Because of this liberty
granted, on 08.09.2017 the Director of Marketing appointed an
Administrator on the respondent - APMC. It appears that in the
meanwhile in Writ Petition No. 647 of 2017 (Bombay), directions
were issued to new Electing Authority formed under the
Ordinance to complete election process within four months. Even
on 12.07.2017, similar directions were issued to that authority by
a Bench at Bombay in Writ Petition Nos. 329 of 2017 and 11131
of 2016. By amendment in APMC Act vide Ordinances mentioned
supra, the responsibility to hold elections has been shifted from
Collector to new a authority and that new authority has been
directed to complete elections of some APMCs by the Bombay
Bench.
11. It is in this background that we have heard the parties.
The prayers made in Writ Petition Nos. 3894 of 2017 and 4488 of
2017, by which the farmers seek a right to vote in election of
APMC, Nagpur, are not being opposed by the State Government.
The State Government is opposing Contempt Petition and efforts
made by the elected Board of Directors either to continue in office
beyond 07.09.2017 & in defence, it presses need of holding such
Election by giving farmers a right of vote because of amendment.
The Board of Directors has in Contempt, sought action against the
Collector, Nagpur, for not proceeding further with Election
Programme from the stage at which it was left incomplete i.e.
from 09.01.2017 onwards. On this count only and because of
directions contained in the judgment of this Court dated
09.03.2017, they also claim that the Ordinance XVII of 2017
effecting amendments to APMC Act re-promulgated subsequently
is not applicable. They also have challenged the Ordinance
independently in Writ Petition No. 6003 of 2017, urging that it
amounts to fraud on statute and on the Constitution as it has not
been passed by both the Houses. Thus, the State claims that after
judgment of this Court dated 09.03.2017, law has changed and
elections cannot be conducted as per voters list prepared on
31.08.2016.
12. Shri Naik, learned counsel addressing the Court in
Contempt Petition No. 85 of 2017 has submitted that the
directions of this Court in judgment dated 09.03.2017 are clear
and respondent No. 1 - Collector in Writ Petition No. 585 of 2017
ought to have "proceeded further" with the elections of APMC
Nagpur as per law. Hence, election programme obstructed by the
State Government on 10.01.2017 should have been resumed and
carried further. He has invited our attention to communication
dated 12.01.2017 sent by the office of the District Deputy
Registrar to the Collector, Nagpur, pointing out that because of
orders of the State Government dated 10.01.2017, it would be
appropriate to adjourn/ suspend the publication of final voters list
then due on 13.01.2017. The representations were made by the
petitioners on 18.03.2017 and 25.03.2017 for resumption of
election process and also giving hint of a possible approach to this
Court. He submits that orders of this Court dated 24.03.2017 on
MCA No. 287 of 2017, in para 12 also note obligation of the
Collector to proceed further with election. Para 10 of said order
dated 24.03.2017 is also relied upon by him to submit that this
Court then also expected the Collector to "resume" the Election
Programme which was left incomplete. He has pointed out that
elected Board of Directors is not at all at fault in this matter and
the Collector has not come up with any valid justification for
violating the Court orders. According to Rule 36 of the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Rules, 1967, (hereinafter referred to as 1967 Rules),
voters list needed revision six months before general elections and
accordingly as elections were due by 09.03.2017, consciously date
31.08.2016 was chosen as date for drawing voters list. The office
of the Collector thereafter ignored the direction and fixed new cut
off date as period of more than six months had expired after
31.08.2016. This new cut off date was decided as 31.03.2017.
He contends that this is arbitrary and high handed action on the
part of the office of the Collector, with a view to assist the State
Government in its design to postpone somehow the elections of
APMC. He further states that the office of the Collector has in
reply before this Court stated that it would be preparing a fresh
election programme and it would need time of 25 weeks roughly
after receipt of voters list. The office of the Collector got voters
list on 24.04.2017. According to him, therefore, the reply itself is
inconsistent and constitutes breach of directions given by this
Court on 9.3.2017 which have attained finality. He has also
invited our attention to additional affidavit filed by the Collector
in Contempt Petition which takes note of publication of
provisional voters list on 20.05.2017 and points out that
objections were invited till 15.06.2017. Number of objections
received are also then pointed out by the Collector. The Collector
has also pointed out that election programme was already
published and voters list of Primary Agricultural Credit Societies
and Gram Panchayat constituencies were published and
claimants/ farmers which were not the Members of Managing
Committees of Primary Agricultural Credit Societies nor Gram
Panchayat members, were excluded from voters list. He submits
that the Collector has then declared on oath that he was acting on
directions issued by this Court on 09.03.2017 and conducting
elections as per old Act. He also points out that the Collector has
then specifically referred to Writ Petition No. 3894 of 2017 filed
by the farmers for addition of their names as voters.
13. Along with this reply, the office of the Collector has
also annexed Maharashtra Ordinance No. IX of 2017 published on
13.06.2017. Shri Naik, learned counsel submits that this
Ordinance has come into force later on and hence change in
constituencies or authority conducting election, is not relevant.
The office of the Collector, therefore, rightly took a decision and
declared that the elections would be conducted as per old
unamended law.
14. In this backdrop, he invites attention to reply affidavit
filed by the Additional Chief Secretary of Marketing in Contempt
Petition. He submits that said respondent has tendered
unconditional apology and then pointed out that because of new
amendments effected by the Ordinance, the elections are to be
arranged accordingly by new functional authority designated to
conduct the it viz., the State Cooperative Election authority. The
Additional Chief Secretary has pointed out that the Collector no
longer possessed power to conduct such elections. The Additional
Chief Secretary of Co-operation has also filed similar affidavit and
pointed out that issue of election is not being handled or looked
into by him. Respondent No. 3 in Contempt petition i.e. District
Deputy Registrar, has submitted that the petitioners have no locus
to maintain such Contempt Petition and has pointed out that
elections of APMC, Nagpur, are to be conducted by the District
Collector as income of APMC exceeded five crores.
15. Shri Naik, learned counsel, submits that this new
Ordinance has not been resorted to by the Collector at all and
hence the Collector ought to have resumed and completed
elections left incomplete after 10.01.2017. He has urged that
defence taken by the respective Additional Chief Secretaries is
nothing but contempt of this Court. He has relied upon Rule
36(2) of 1967 Rules to urge that as the period of six months had
not expired, it was not necessary to prepare fresh voters list and
proviso thereof on these lines, is subordinate to Rule 36(2). He
has also taken support from Rule 36(10) giving finality to
decision of Collector & urged that steps taken till 10.01.2017
could not have been defeated and avoided.
16. Inviting attention to provisions of Rule 43 of 1967
Rules, prescribing time schedule and stages for conduct of
elections, he submits that accordingly after 10.01.2017, dates for
various should have been fixed. Those dates could have been
determined again after 09.03.2017. He contends that as Election
Programme had already commenced, shelter of amendments to
APMC Act cannot be taken. The submission of other respondents
that election process did not commence till 13.06.2017 is
incorrect. He points out that the Election Programme published
by the Collector on 20.05.2017 is in Contempt of this Court. He
has also taken us through provisions of Section 2(r2) and Section
3 of Ordinance to urge that amendments made thereby are
perspective and cannot be even construed as retrospective.
Without prejudice, he adds that here in any case, even as per the
Collector, election process had commenced on 20.05.2017.
17. To explain how concept of election is to be
understood, he draws support from Rules 35 and 36 of 1967
Rules as also Article 324(1) of the Constitution of India. He has
relied upon the judgment of the Hon'ble Apex Court in the case of
N.P. Ponnuswami vs. The Returning Officer, Namakkal
Constituency, Namakkal, Salem Dist. & Ors., reported at AIR (39)
1952 SC 64. For very same purpose, he has also cited the
judgment in the case of Shri Sant Sadguru Janardan Swami
(Moingiri Maharaj) Sahakari Dugdha Upadak Sanstha & Anr. vs.
State of Maharashtra & Ors., reported 2002 (1) Mh. L.J. 659,
Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. vs. Collector of
Kolhapur & Anr., reported at 2005 (4) Mh. L.J. 515. He submits
that such amending Act is always perspective and for being
retrospective, it must be made so specifically and expressly. To
explain this proposition, he has relied upon the judgment in the
case of Zile Singh vs. State of Maharashtra & Ors., reported at
(2004) 8 SCC 1, Shyam Sunder & Ors. vs. Ram Kumar & Anr.,
reported at (2001) 8 SCC 24 and Union of India thr. Director of
Income Tax vs. Tata Chemicals Limited, reported at 2014 (6) SCC
335. While concluding his arguments, he has invited our
attention to the order dated 21.07.2017 in MCA No. 287 of 2017,
particularly para 7 thereof. He submits that the Collector has
nowhere stated that after the Ordinance was issued, he obtained
any clarification and, therefore, he did not proceed further. On
the contrary, the office of the Collector has maintained need to
hold elections as per old Act.
18. Shri A.M. Ghare, learned counsel appearing for the
petitioners in Writ Petition No. 1806 of 2017, has submitted that
the Election Programme published by the office of the Collector
on 20.05.2017 is unsustainable in the wake of earlier orders
passed by this Court on 09.03.2017. In said writ petition, there is
also challenge to order dated 22.03.2017 issued by respondent
No. 2 - District Deputy Registrar, appointing the Collector,
Nagpur as an Administrator. However, it is not in dispute that
this order was stayed by this Court and never came into effect.
Order dated 22.03.2017 could have operated only till 7.9.2017 &
hence, challenge thereto does not survive after said date. In the
light of liberty given by this Court in its order dated 07.09.2017,
the orders under Section 15A of APMC Act were then passed on
08.09.2017 and since then the Chief Executive Officer of Zilla
Parishad, Nagpur, is functioning as an Administrator. That order
dated 08.09.2017 has been questioned in Writ Petition No. 6004
of 2017.
19. Shri Ghare, learned counsel further submits that fresh
Election Programme has been published on 20.05.2017 by the
Collector, Nagpur, only with a view to buy time for the State
Government to enable it to publish Ordinance No. IX of 2017
effecting material amendments to AMPC Act. He further states
that steps to amend were being taken by the State Government
since long and the Collector acted under political pressure. He
contends that these malafides are specifically raised by him as
grounds in other matter. Attention is invited to Rule 35 of 1967
Rules to urge that it shows four constituencies through which
Board of Directors of APMC is elected. The Ordinance, if applied
affects only one constituency and not the others. The Ordinance,
therefore, must be read as perspective. He further submits that
while appointing Administrator on 08.09.2017, the State
Government has not applied mind as expected of it by this Court
vide its order dated 07.09.2017. According to him, facts do not
warrant displacement of elected body at all. He invites attention
to the provisions of Section 13(3) to urge that second proviso
thereto contemplates two extensions and hence, here elected
board could have been given one more extension after
07.09.2017. This Court on 07.09.2017 did not permit the
respondents to pass order under Section 15A. He has relied upon
analogy of Order VI, Rule 17 of the Civil Procedure Code and
judgment in the case of Department of Telecommunications vs.
Gujarat Cooperative Milk Marketing Federation Limited, reported
at 2010 (10) SCC 86, to substantiate all these contentions which
form part of Civil Application No. 2026 of 2017.
20. Shri Bhangde, learned Senior Advocate, opposing the
Contempt Petition submitted that Contempt is quasi criminal
proceeding and proof beyond doubt, is essential. There has to be
specific and proper plea charging an individual for that purpose.
According to him, Contempt has been filed on 04.04.2017 and
hence the facts or events prior to that date and after 09.03.2017
are only relevant. The developments after 04.04.2017 are not
germane. Not proceeding with election or not holding of election
is the only contempt alleged and there is no personal allegations
against respondent No. 4. Inviting attention to the judgment
delivered on 09.03.2017, he states that there is no specific or
express direction "to resume" the election. On the contrary,
respondent No. 4 - Collector is asked to hold election "as per
law". Hence, when the office of the Collector has proceeded
further to conduct election as per law and there are no malafides
in the matter, validity of said act needs to be challenged in an
independent or fresh writ petition and it cannot form subject
matter of contempt.
21. The contentions based upon new election process
initiated on 20.05.2017 or change of relevant date for preparation
of voters list or then Ordinances issued by the State Government,
therefore, are not relevant and hence the Contempt Petition as
filed is erroneous and misconceived. He further states that in
Contempt Petition, though the reply affidavit has been filed on
04.09.2017, it was sworn at Bombay on 01.09.2017 and on
01.09.2017 this Court had not heard the Contempt Petition but
parties were generally consulted to decide the mode and manner
of proceeding further with hearing of all these matters/ petitions.
He also states that arguments based upon the observations in the
order dated 24.03.2017 are erroneous because it is an interim
order in Review Application No. 287 of 2017. That review has
been allowed on 21.07.2017 and interim orders ceased to operate
thereafter. The decision of the Collector to fix date 31.03.2017 as
cut off date does not form subject of Contempt Petition.
22. Inviting attention to the additional affidavit, he
submits that new Ordinance has come into force and the entire
pattern or mode of holding elections of APMC have undergone a
sea-change. The office of the Collector, therefore, is confused and
hence have expressly submitted to jurisdiction of this Court and
requested it for passing appropriate orders. He submits that the
Collector has also tendered unconditional apology.
23. In brief reply, at this stage, Shri Naik, learned counsel
submits that at one stage the Collector assures that he would hold
elections as per old "unamended provisions" and at other stage he
in additional affidavit on 22.8.2017 also points out the
Ordinance. Thereafter, Collector under the guise of submitting to
the jurisdiction of this Court, also seeks appropriate orders. All
this could have been avoided by simply obtaining a clarification
from the High Court. This inconsistent conduct, therefore, adds
to Contempt.
24. Inviting attention to the fact that the office of the
Collector is not opposing Writ Petition No. 4488 of 2017, Shri
Naik, learned counsel, submits that the office of the Collector has
not furnished any explanation for non compliance between
09.03.2017 and 04.04.2017. Stage envisaged by Rule 36(9)(1)
was over on 09.01.2017 and said office should have published
official voters list under Rule 36(10) immediately after
09.03.2017. Not taking that step and filing an affidavit dated
22.08.2017 for appropriate orders is nothing but contempt.
25. Dr. Sundaram, learned counsel, addressing the Court
in Writ Petition No. 4488 of 2017, submits that the petitioners
therein are agriculturists and they are not concerned with
previous litigation. The Ordinance No. IX of 2017 has been re-
promulgated on 31.08.2017 and hence is valid even now. Section
3 thereof amends Section 13 of APMC Act and agriculturists
holding 10 R of land on a "specified" date are given recognition as
members of APMC if they have sold their products at least thrice
to APMC in the preceding five years. He points out that date for
determination of membership of such farmers/ agriculturists is to
be specified by the State Cooperative Election Authority.
26. To demonstrate that for the purposes of present
controversy or then the elections of APMC, stage of preparation of
voters list cannot be the date of commencement of election
process, he relies upon the proviso to Rule 36(2). He further
submits that Rule 36(12) and (15) show that errors can be
corrected even thereafter and in this situation, till finalization of
voters list, the Election process cannot commence. He adds that
Rule 43 substantiates the legislative intent to commence election
process only after finalization of voters list while specifying
various stages in the election. He has drawn support from the
judgment in the case of Raghavendra V. Deshpande & Ors. vs.
Agricultural Produce Market Committee, Solapur & Ors., reported
1980 Mh. L.J. 423 (placitum (b) & (c); and Shri Sant Sadguru
Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Upadak
Sanstha & Anr. vs. State of Maharashtra & Ors., (supra), to
buttress his submissions.
27. The emphasis on legislation after amendment is to see
that farmers for whose benefit APMC exists must also have role
in its constitution and composition. The amendment brought out
is, therefore, of vital importance for all farmers and for
agricultural economy. The judgment delivered by this Court on
09.03.2017 in Writ Petition No. 585 of 2017 and MCA No. 287 of
2017 cannot upset the law. He invites attention to the
observations of the Hon'ble Apex Court in paras 7 & 8 in the
judgment in the case of General Manager, Department of
Telecommunications, Thiruvananthapuram vs. Jacob s/o
Kochuvarkey Kalliath (Dead) by LRs and Ors., reported at 2003 (9)
SCC 662. He further adds that when there is a direction to hold
elections "as per law", the law envisaged is law applicable at the
time of elections. Our attention is drawn to the orders passed in
Writ Petition No. 329 of 2017 and 11131 of 2016 at Bombay on
12.07.2017. He submits that Division Bench there has rightly,
after noticing legislative mandate, found it proper to ignore all
other solutions. The order dated 11.09.2017 passed in Writ
Petition No. 647 of 2017 is also relied upon by him to show that
there the Division Bench at Nagpur has directed State Election
Authority to act as per law. The Ordinance No. IX of 2017 applies
to all elections and here when the period of five years for which
Board of Directors of APMC function, cannot be computed from
09.01.2017 or 10.01.2017, the Ordinance must apply and farmers
must be given right to vote.
28. Shri Raghute, learned counsel, in Writ Petition No.
3894 of 2017 has adopted the arguments of Dr. Sundaram,
learned counsel. He submits that the election programme in
present matter did not & can't start before the date on which the
Ordinance promulgated or re-promulgated and as Board of
Directors have to function for a period of five years in future, the
law prevailing at this stage must be applied. He has invited our
attention to preamble of Government Resolution dated
04.02.2017 to show that the State Government had then pointed
out that the question of giving voting right to farmers was under
its consideration and constituted a Committee to study & to
report to it within one month. Because of importance of this
issue, on 18.05.2017, decision to postpone elections of APMCs
were taken. On 18.05.2017, the State Government consequently
postponed elections in all cases except where there was specific
court direction or stage of nomination was already reached. Still
on 19.05.2017, the Deputy District Election Officer directed
publication of new provisional voters list on 20.05.2017. He
contends that legislative intention to give real and effective
representation to farmers cannot be permitted to be defeated in
present matter. He has drawn support from the judgment in the
case of Bombay Dyeing & Mfg. Co. Ltd. (3) vs. Bombay
Environmental Action Group & Ors., reported at (2006) 3 SCC 434
(paras 204, 205, 206 and 312). According to him, on 09.03.2017
when this Court delivered judgment in Writ Petition No. 585 of
2017, factual matrix was different & also the election process had
not begun and it has still not begun. He therefore prays for
postponing the elections of APMC Nagpur by adhering to this
state directive.
29. Dr. Sundaram as also Shri Raghute, learned counsel
submit that the State Government is accepting plea of farmers
and have accordingly filed their reply. They, therefore, pray for
allowing their writ petitions. According to them, all other matters
before this Court cannot and do not survive after coming into
force of the Ordinance & their writ petitions.
30. At this stage, Shri Naik, learned counsel, has invited
our attention to the Ordinance published on 13.06.2017 to show
that provisional voters list was published on 25.05.2017 and final
voters list on 24.07.2017. The Ordinance applies to an election
conducted immediately after such publication. He draws support
from the judgment in the case of N.P. Ponnuswami vs. The
Returning Officer, Namakkal Constituency, Namakkal, Salem Dist.
& Ors., (supra) 64 (para 7), Shri Sant Sadguru Janardan Swami
(Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. vs.
State of Maharashtra & Ors., 2002 (1) Mh. L.J. 659 (paras 4, 7, 9
& 12) and Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. vs.
Collector of Kolhapur & Anr., (supra) (paras 11 & 12).
31. Shri Ghare, learned counsel in Writ Petition No. 1806
of 2017, has submitted that on 18.05.2017, the State Government
postponed elections of other APMCs to facilitate its desire to issue
Ordinance to include farmers as voters. The amendment of such
a nature should have been introduced normally in respective
Houses and there was no emergency necessitating issuance of
Ordinance. It is also pointed out by him that the Collector,
Nagpur had at one time rejected request of farmers to add them
as voters in voters list. He has in this backdrop submitted that
Rule 36(2) of APMC Rules envisages a list to which reference is
made in Rule 36(1) and the creation of groups/ constituencies in
Rule 35A, B, C to show that the skill therein is not materially
affected. Rule 35 (1) A, B, C, D have remained as it is even after
amendment and, therefore, the Ordinance is necessarily
perspective. He relies upon judgments in the case of Gorie Gouri
Naidu (Minor) & Anr. vs. Thandrouthu Bodemma & Ors., reported
at AIR 1997 SC 808 (Para 4) and Vallapally Plantations Pvt. Ltd.
vs. State of Kerala, reported at AIR 1999 SC 1796 (Paras 1, 2, 6 &
23) to urge that when dispute is adjudicated upon, change in law
thereafter cannot affect the outcome of adjudication. He,
therefore, submits that prayers made in Writ Petition No. 1806 of
2017 vide prayer clauses A-1 and B need to be allowed.
32. In Writ Petition No. 6003 of 2017, he adds that when
State postpones elections on 18.05.2017, the State Government
has excluded those APMCs where Court has issued specific
directions to conduct elections or then steps under Rule 43(1) of
1967 Rules have been taken and submission of nomination paper
has begun. Here, the Collector, therefore, did not obey the
directions issued on 09.03.2017. He could have diligently
published stage wise programme in terms of Rule 43(1)
immediately and by 18.05.2017, the stage of nomination paper
could have been over. The amending ordinance could not have
then, even on said count, applied to APMC Nagpur. Keeping in
mind all these contingencies, State Government through the
Collector, deliberately issued another election programme on
20.05.2017 to stage a farce that it is affected by the Ordinance.
33. The order dated 18.05.2017 which is not impugned in
any Writ Petition postpones the elections till 17.11.2017. Thus,
necessary amendment could have been introduced democratically
before 17.11.2017 and deliberated upon by the elected
representatives. There was no emergency necessitating the
Ordinance. Has the power been used with oblique motive only to
avoid elections of Nagpur Agricultural Produce Market
Committee? Report of a Committee was called for within one
month on 04.02.2017 i.e. prior to budget session of the Houses
which commenced on 9th March,2017. Both Houses were also
Summoned on 24.07.2017 and the Legislative Assembly cleared
the Ordinance before 11.08.2017. On that day, Houses were
prorogued and hence Legislative Council could not look into the
Ordinance. With the result, the Ordinance XI of 2017 lapsed on
03.09.2017. He draws support from the judgment in the case of
Krishna Kumar Singh & Anr. vs. State of Bihar & Ors., reported at
(2017) 3 SCC 1, (paras 58, 91 and 102) to demonstrate this. As
the Ordinance does not become law and has lapsed, it does not
enable farmers to claim right to vote or then it does not enable
State Government to postpone the elections of APMC Nagpur.
To explain the effect of such Ordinance which could not become
law, he draws support from the judgment of the Hon'ble Apex
Court in the case of Krishna Kumar Singh & Anr. vs. State of Bihar
& Ors., (supra) (particularly paras 59, 60, 61, 63, 64, 90 and 91).
Paras 93 and 95 are pressed into service to explain the three fold
test applied by the Hon'ble Apex Court to evaluate the impact of
such an exercise. He argues that the State Government has not
explained either impact of or then why effect of such an
Ordinance cannot be undone in present matter. He also relies
upon the discussion by the Hon'ble Apex Court in paras 105.2,
105.8, 105.12 and 105.13. According to him, in present matter,
position has still not become irreversible. Statutory Rules to give
effect to and to implement the amendments introduced by the
Ordinance are still to be finalized. Hence, the amendments are
unworkable.
34. Inviting attention to challenge in Writ Petition No.
6004 of 2017, he submits that the order or direction issued by the
State Government on 08.09.2017 purportedly under Section 15A
has not been produced on record by the respondents. The
Director of Marketing expressly refers to said orders/ letter of
Government in "reference" part at Sr. No. 1 and still the
respondents have suppressed it. The order under Section 15-A is,
therefore, not passed independently by the Director of Marketing
as a free agent. He submits that as observed by this Court in its
order dated 24.03.2017, new body could have been in office by
13.04.2017. Hence, only to avoid elections of APMC Nagpur, the
exercise of issuing Ordinance was resorted to with oblique
motive. It was also not permitted to be tabled before both the
Houses as otherwise it would have been rejected and the State
Government would have failed in its design. He submits that
recourse to Section 15-A was not allowed by this Court when it
passed orders on 07.09.2017 and at the most High Court then
permitted invocation of powers under Section 45 of the APMC
Act. The impugned order dated 08.09.2017 issued under Section
15-A militates with the directions of this Court. He further
submits that defence by the State Government that elected body
of APMC did not seek extension and hence the power under
Section 14(3) was not exercised is equally erroneous. When the
amendment as proposed has not materialized, Rules to implement
amendment are still not framed and the petitioners are not at
fault for all this, tenure of elected board extended up to
07.09.2017 should have been further extended under Section
14(3) for a period of six more months. He argues that the State
Government wanted to usurp administration of APMC and hence
wrong or improper defences are raised before this Court. To
demonstrate how charge was taken from elected body by
Administrator (Chief Executive Officer), he relies upon assertions
contained in para 15 of the Writ Petition No. 6004 of 2017.
35. To explain dictionary meaning of words "proceed" and
"further" he has relied upon certain Dictionaries to urge that it
clearly implies proceeding further beyond a point or stage already
reached and to march thereafter.
36. Shri Bhangde, learned Senior Advocate, while
replying to arguments in Writ Petition No. 6004 of 2017, submits
that there in the impugned order, three factors have been looked
into and the petitioners have not challenged the letter of
Government dated 08.09.2017. He further submits that interim
orders dated 24.03.2017 passed by this Court merged with final
orders dated 21.07.2017 on Review proceedings. On order dated
21.07.2017, he submits that only consideration then was to find
out whether on 10.01.2017, Section 14(3) was invoked or not.
The said order is not relevant for considering controversy which
has arisen thereafter. The later order of this Court on Civil
Application No. 2026 of 2017 dated 07.09.2017 permits State
Government to take appropriate decision on further continuation
of the elected board of directors. These orders are, therefore, not
relevant for judging validity of action taken under Section 15A.
He relies upon the judgment delivered on 22.04.2014 in Writ
Petition No. 4238 of 2013 and other connected matters
particularly page Nos. 23, 25 and 29 of said judgment to buttress
his contention that after tenure of elected body has expired,
mandate in Section 15A needs to be obeyed. The Administrator
appointed accordingly has to take charge immediately and neither
the petitioners nor anybody else has any legal right to oppose this
step. He further submits that if any extension is to be sought, the
proposal for it must come from elected body and there is no
obligation on State Government to grant such extensions suo
motu. He, therefore, prays for dismissal of Writ Petition No. 6004
of 2017.
37. While replying to arguments of Shri Ghare, in Writ
Petition No. 6003 of 2017, learned senior advocate, Shri Bhangde
submits that the petitioners therein do not possess locus and after
the Ordinance XI issued on 13.06.2017, the farmers got right to
vote and the State Cooperative Election Authority has to conduct
elections. This arrangement does not cause any injury and no
legal right of the petitioners is violated. He further adds that this
Ordinance is re-promulgated on 31.08.2017 and hence it is in
force even now. As such, the petitioners are not the persons
aggrieved and their writ petition is liable to be dismissed. He has
taken support from the judgment in the case of Mohan
Chowdhury vs. The Chief Commissioner, Union Territory of Tripura,
reported at AIR 1964 SC 173 (para 8), Ayaaubkhan Noorkhan
Pathan vs. State of Maharashtra & Ors., reported at 2013 (4) SCC
465 (paras 9 & 10). He also submits that the petitioner in Writ
Petition No. 6003 of 2017 is an agriculturist and his rights are
intact. He further adds that right to contest or vote, being
statutory rights, are always subject to change in Statute and can
be controlled by proper amendments.
38. Shri Bhangde, learned Senior Advocate submits that
in Writ Petition No. 6003 of 2017, there is no challenge to the
Ordinance issued on 13.06.2017. The said Ordinance is in
conformity with Article 213 of the Constitution of India. He
attempts to distinguish judgment of the Hon'ble Apex Court in the
case of Krishna Kumar Singh & Anr. vs. State of Bihar & Ors.,
(supra) by submitting that there several Ordinances were issued
repeatedly and the Government avoided to place the same before
the State Legislature. Here, the Legislative Assembly could pass
Ordinance XI of 2017 on 24.06.2017 but Legislative Council
(Upper House) could not get time to consider it. In the matter
before the Hon'ble Apex Court, the Ordinances were never placed
before the Legislature. He relies upon Article 197 of the
Constitution of India to show that the Legislative Assembly is
superior to the Legislative Council and hence failure of the
Legislative Council to consider the Ordinance, cannot be treated
as fatal. He also relies upon the judgment in the case of Dr. D.C.
Wadhwa & Ors. vs. State of Bihar & Ors., reported at (1987) 1 SCC
378, particularly observations at page 393 to show the
circumstances in which Governor can re-promulgate the
Ordinance.
39. Shri Bhangde, learned Senior Advocate, submits that
in Writ Petition Nos. 1806 of 2017, 3894 of 2017 and 4488 of
2017, issue is whether the Ordinance applies to elections of APMC
Nagpur. The election in such circumstances does not mean and
cannot commence from the process of preparation of list of
voters. Section 14-A (1)(a) is relied upon by him to show that
this provision also recognizes process of preparation of list of
voters as a distinct exercise from that of the conduct of elections.
"Election" therefore in APMC Act implies essential steps like filing
of nominations and further stages. He draws support from the
judgment in the case of Indrajit Barua & Ors. vs. Election
Commission of India & Ors., reported at (1985) 4 SCC 722
(particularly para 12). Rule 43 of the 1967 Rules is pressed into
service in this background to show that sub-rule (1) therein
expressly comes into picture after publication of final voters list.
Thus, the distinction in process of preparation of voters list and
process of election is maintained in Rule 43. Therefore, the
Ordinance bringing into force amendment has to apply even to
APMC Nagpur as its "election" never commenced. He further
submits that on 09.03.2017, High Court did not prohibit State
Government from either starting a fresh process or then resuming
the same process. On the contrary, direction was given to the
State Government to act "as per law". When due to time lapsed,
preparation of fresh voters list became necessary, the use of its
power by the State Government in larger interest in this situation
cannot be faulted with and old process cannot continue. Fresh
voters list needed to be prepared as general elections were to be
conducted and in such circumstances, the petitioners cannot rely
upon Rules 36(2).
40. He repeats that decision of the Collector to fix
"31.03.2017" as cut off date for drawing list of voters is not in
challenge. On 10.04.2017, the office of the Collector after fully
evaluating facts, decided to fix 31.03.2017 as cut off date and this
decision cannot be faulted with at this juncture. All steps
thereafter are only consequential. He invites our attention to
reply of respondent No. 8 - Collector in Writ Petition No. 1806 of
2017, filed on record on 21.09.2017 to explain developments
between 09.03.2017 to 10.04.2017.
41. He has relied upon the judgment in the case of Balaji
Chandra Hazara vs. Shewdhari Jadhav reported at 1978 (2) SCC
559, Ganeshmal Jashraj vs. Government of Gujarat & Anr.,
reported at (1980) 1 SCC 363, R.S. Nayak vs. A.R. Antulay,
reported at (1984) 3 SCC 86, Balaji Digambarrao Kotgire vs.
Enquiry Authority/ Chief Manager, Disciplinary Action Department,
Oriental Bank of Commerce, New Delhi & Ors., reported at (2011)
6 Mh. L.J. 599, to show that whenever courts of law found it
necessary, they have directed the respondents/ parties to begin
the exercise from a particular stage. Here, on 09.03.2017, this
Court has not issued any such specific direction but expected the
Collector to follow law.
42. To demonstrate effect of not challenging the order of
the Collector, fixing "31.03.2017" as date for drawing the voters
list on 10.04.2017, he cites the judgment in the case of Amarjeet
Singh vs. Devi Ratan, reported at (2010) 1 SCC 417, Edukanti
Kistamma vs. S. Venkatareddy, reported at (2010) 1 SCC 756. He
relies upon Section 13(1)(A) to show that there while mentioning
15 agriculturists "specified date", plays important role and without
such date, said provision cannot operate. The said date needs to
be specified by the Collector "from time to time". Therefore, fixing
cut off date was/ is essential. He further points out that because
of amendment to Section 14-A and substitution of its sub-section
(1) and sub-section (2), the Collector has ceased to be that
authority with effect from 13.06.2017. The prescription of new
fresh cut off date and a accordingly a new voters list in present
matter by the new agency viz. the State Cooperative Election
Authority is must and it has to undertake that exercise afresh.
Hence, the steps in that direction by the Collector initiated on
20.05.2017 or before that have now become irrelevant and
redundant.
43. He cites the judgment in the case of Sarlabai Arjun
Baja vs. State of Maharashtra, reported at 1993 (2) Mh. L.J. 1127
(para 22) to explain why fresh election programme is necessary.
The judgment in the case of Howrah Municipal Corporation & Ors.
vs. Ganges Rope Co. Ltd. & Ors., reported at (2004) 1 SCC 663
(paras 16, 34 & 36) is relied upon to submit that there cannot be
any discrimination amongst voters to whom amendment applies.
The observations of the Hon'ble Apex Court in the case para 8 of
its judgment in the case of General Manager, Department of
Telecommunications, Thiruvananthapuram vs. Jacob s/o
Kochuvarkey Kalliath (Dead) by LRs and Ors. (supra), are also
relied upon by him. To explain effect of the Collector loosing
power to conduct elections, he relies upon the judgment in the
case of Durga Hotel Complex vs. Reserve Bank of India & Ors.,
(2007) 5 SCC 120 (paras 7, 10 & 14). To explain need to adopt
liberal approach and purposive interpretation when the
Ordinance is made for benefit of the farmers, he is seeking
support from the judgment in the case of Securities and Exchange
Board of India vs. Alliance Finstock Limited & Ors., reported at
2015 (16) SCC 731. He further points out that in Writ Petition
No. 1806 of 2017, the Collector has filed an affidavit on
20.09.2017 which reveals that his view is not inconsistent with
the stand of the State Government and the office of the Collector
has pointed out that new legal provisions as amended by the
Ordinance must prevail.
44. To explain judgment in the case of Vallapally
Plantations Pvt. Ltd. vs. State of Kerala, (supra) and in the case of
Gorie Gouri Naidu (Minor) & Anr. vs. Thandrouthu Bodemma &
Ors., (supra), relied upon by Shri Ghare, Shri Bhangde, learned
Senior Advocate submits that in those matters, disputed issues
were already settled and are not allowed to be opened again
judicially. Here, on 09.03.2017, when the judgment in Writ
Petition No. 585 of 2017 expected respondents to act as per law,
change in law is very relevant.
45. Shri Dastane, learned counsel appearing in Writ
Petition No. 6004 of 2017 for newly appointed Administrator
CEO, relies upon the submissions to explain the circumstances in
which the Administrator was required to take charge at 9 O' clock
in the morning.
46. With leave of Court, Dr. Sundaram, learned counsel
for the petitioners in Writ Petition No. 4488 of 2017 submits that
with effect from 31.10.2017, draft rules have been published and
old rules are deleted. As the Ordinance has already amended the
APMC Act, earlier Rules become redundant and now for the first
time, no incongruity in amended provisions of parent Statute and
rules can be urged. To explain the position, he relies upon the
judgment in the case of ITW Signode India Ltd. vs. Collector of
Central Excise, (2004) 3 SCC 48 (paras 7 & 11) and in Atul
Nanasaheb Kambe & Ors. vs. Collector, Akola & Ors., reported at
2008 (5) Mh. L.J. 452.
47. Because of contentions raised by Shri Bhangde and in
reply arguments in Writ Petition No. 6003 of 2017, Shri Ghare,
learned counsel invites attention to the pleadings in paras 1 & 4
as also Ground No. VII to demonstrate locus of the petitioners.
He submits that statutory rights are being violated and the
obligation to hold election is being defeated. Again, he attempts
to explain the situation by inviting attention to the judgment in
the case of Mohan Chowdhury vs. The Chief Commissioner, Union
Territory of Tripura, reported at AIR 1964 SC 173 (particularly
paras 5, 6, 7 & 8) and Ayaaubkhan Noorkhan Pathan vs. State of
Maharashtra & Ors., (supra). He submits that in Ground VIII, the
petitioners have pointed out use of power by the State
Government for extraneous reasons & malafides in issuing or re-
promulgating the Ordinance. Inviting attention to paragraph 64
in the judgment of larger bench of the Hon'ble Apex Court in the
case of Krishna Kumar Singh & Anr. vs. State of Bihar & Ors.,
(supra), he argues that principle in Dr. D.C. Wadhwa & Ors. vs.
State of Bihar & Ors., (supra), relied upon by Shri Bhangde,
learned Senior Advocate is distinguished & not approved in said
para by said larger bench. He reiterates that the State
Government did not place Ordinance XI of 2017 immediately
before the Legislative Assembly and Legislative Council, but it is
introduced just three days prior to end of the Session. The State
Government could have extended session to facilitate
consideration of that Ordinance but that also has not been done.
Number of APMCs whose elections were due is also not pointed
out to justify the recourse to exceptional power and hence, mere
constitutional supremacy of Lower House in present matter is not
decisive.
48. While replying to the arguments of Shri Bhangde,
learned Senior Advocate in Writ Petition No. 6004 of 2017, he
claims that there was/is no hurdle for permitting the elected body
(Board) to continue even beyond 08.09.2017 and on 31.07.2017,
this Court did not permit the Director of Marketing to pass any
orders to the contrary. The State Government itself, therefore,
should have produced its directions issued on 08.09.2017 to the
Director of Marketing but the same have been deliberately
suppressed.
49. While replying to arguments in Writ Petition No. 1806
of 2017, Shri Ghare, learned counsel states that the Court of law
or High Court need not always define course of action after
remand. Case law cited in this connection by Shri Bhangde,
learned Senior Advocate is in quasi judicial matters either in
landlord-tenant dispute or in service matters and has got no
bearing on present controversy. Judgment in the case of Y.
Ramanjaneyulu vs. State of A.P. & Ors., reported at (1985) 2 SCC
723 (particularly paras 3 & 10) is relied upon by him. He submits
that in APMC Act, preparation of voters list is integral part of
polling. He invites attention to Section 14-A(1)(b) and the
provisions of Rules 36, 37 and 88 in support. He also submits
that under Rule 88, disputed list of voters can also be a ground
for setting aside of election. Thus, the process begins from the
stage of publication of the provisional voters list and culminates
with declaration of result after counting of the ballots.
50. He further states that the Collector in present matter
did not possess power to proceed de novo with election and
arguments by Shri Bhangde, learned Senior Advocate or recourse
to various precedents by him for this purpose is misconceived. As
the demand is to implement the command to continue with
election programme left incomplete on 10.01.2017, there need
not be independent challenge to the act of the Collector fixing
"31.03.2017" as cut off date. Shri Ghare, learned counsel,
therefore, prays for allowing Writ Petition Nos. 1806 of 2017,
6003 of 2017 and 6004 of 2017.
51. Though the respondent - State has questioned locus
of the petitioners and relied upon judgments to buttress their
submission that after expiry of their tenure as elected Directors,
the petitioners cease to possess any interest or the right, we find
that the petitioners have questioned action of the State
Government displacing them and attempting to appoint initially
the Collector as Administrator and thereafter, the Chief Executive
Officer of Zilla Parishad, Nagpur, as Administrator on second
occasion. On first occasion as the tenure of elected body was
found already extended till 08.09.2017, this Court did not permit
the Collector to take charge and function as Administrator. With
the result, the elected Board of Directors could not be displaced.
As such it cannot be argued by the respondents that these elected
Directors who were in office on 09.01.2017 and did question
successfully the postponement of the General Election of APMC in
Writ Petition No. 585 of 2017, could not have maintained Writ
Petition No. 1806 of 2017 challenging an effort to cut short their
extended tenure by appointing the Collector, Nagpur, as
Administrator on 22.03.2017. This Court in review has restored
the order of the State extending their tenure till 07.09.2017. As
Writ Petition No. 1806 of 2017 filed by them with prayer to
permit Board to continue and to complete the election process, is
maintainable, contention that as there is no fault on their part,
they cannot be substituted by Administrator even after
07.09.2017 and must be allowed to continue in office by quashing
the order appointing the administrator passed on 08.09.2017,
therefore, needs to be examined on merits. It cannot be said that
as elected Directors whose extended term expired on 07.09.2017
and who are already before this Court in WP 1806 of 2017, loose
their locus or a right to claim further continuation contending
that they are not at fault in not completing the election process
before 07.09.2017.
52. Not only this, their effort is only to see that Board of
Directors elected as per law do only administers the affairs of
APMC, Nagpur. The Ordinance to amend APMC Act came to be
issued twice. Again as Ordinance expands the voter-base, as also
changes in the authority to conduct the election, it cannot be said
that such an Ordinance cannot be challenged by them as citizens
closely associated with agricultural produce. Because of the
directions contained in judgment dated 09.03.2017, we can not
stop them from pleading non-applicability of such Ordinances.
These petitioners are also the contesting respondents in petitions
filed by the farmers. Hence, challenge to their locus is
misconceived.
53. In other writ petitions, apart from elected Board of
Directors there are other persons as petitioners. In Writ Petition
No. 4488 of 2017 and Writ Petition No. 3894 of 2017,
agriculturists are before this Court pointing out Ordinance and
claiming right to vote. Their prayer is not to hold elections of
APMC Nagpur till all eligible agriculturists/ farmers are included
in the voters list. These petitions cannot be said to be not
maintainable and farmers who have filed it, cannot be denied the
locus. In fact, the learned Senior Advocate has expressly stated
that the State Government is not opposing these two writ
petitions.
54. While opposing these petitions of farmers, these
members of Board of Directors have contended that the
Ordinance is nothing but a fraud on statute. Such a contention is
independently raised by them even in Writ Petition Nos. 6003 of
2017 and 6004 of 2017. Two petitions filed by farmers are being
opposed by them also by taking shelter of directions dated
9.3.2017 in WP 585 of 2017. Hence without looking into
correctness or otherwise of their submissions, even farmers'
petitions cannot be decided. In nut-shell we find challenge to
locus of petitioners in writ petitions 1806, 6003 & 6004 of 2017
filed by the erstwhile members of Board of Directors
unsustainable.
55. It is to be noted that the Ordinance to amend A.P.M.C.
Act was earlier issued as Maharashtra Ordinance No. XI of 2017
on 13.06.2017. This was during pendency of Review Petition in
Writ Petition No. 585 of 2017 and the earlier orders of the State
Government dated 10.01.2017 extending tenure of elected body
for a period of six months. In the light of these developments that
elected body could continue up to 07.09.2017.
56. The Ordinance was again re-promulgated on
31.10.2017 as Ordinance No. XVII of 2017 and because of this
action, an Administrator is appointed on A.P.M.C. The task is
entrusted to the Chief Executive Officer of Zilla Parishad and
these orders are passed after the leave given by this Court vide its
orders dated 07.09.2017 to the State Government to take
necessary decision.
57. Thus, because of this liberty and pending Writ
Petitions/ challenges, it cannot be said that the elected Board of
Directors lack/lose locus to maintain their challenges. The fate of
their challenge on merits cannot be decisive of their locus. They
claim right to continue even beyond 07.09.2017 and submit that
till democratically elected Board of Directors assume charge, they
must be allowed to function. Their other contention is, because
of judgment of this Court dated 09.03.2017, the election then left
incomplete on 10.01.2017 has to proceed further and, therefore,
voters list as finalized in January 2017 must only be used for
conducting elections. Again, it cannot be said that subsequent
events or issuance of Ordinance estop them from raising such
contention. As we find that the petitioners possess necessary
status and locus, writ petitions filed by them need to be
considered on merit. In view of these reasons, we do not wish to
go into the judgments on which reliance has been placed by Shri
Bhangde, learned Senior Advocate for the State to support
absence of locus in the erstwhile members of Board of Directors.
As this Court after 07.09.2017 did not grant any interim order,
the members continuing as Directors have ceased to function as
such and affairs are now being managed by the Chief Executive
Officer, Zilla Parishad, Nagpur. But then their status as voters in
election of A.P.M.C., Nagpur, is not in dispute.
58. The respondent - State has further submitted that as
election never started, in view of the Ordinance, direction
contained in the judgment of this Court dated 09.03.2017 to
proceed further is not attracted. There is dispute between the
parties about the scope of "election" process in APMC Act.
Whether voters list is an integral part of process of election or
then it can be severed and Court can hold that mere publication
of voters list is not commencement of election process is,
therefore, the dispute. This dispute arises because of language
employed in Ordinance No. XVII of 2017 or then earlier
Ordinance No. XI of 2017. The language employed in proviso
sought to be inserted in Section 13(1)(a) stipulates that during
the period of five years from commencement of said Ordinance,
in an election conducted immediately after such date of
commencement, the agriculturist residing in market area who
satisfy requirement of holding agricultural lands as mentioned
therein, are eligible for voting. Not only this but till that date, in
view of Section 14(2), earlier the Collector was the authority
empowered to hold such election. However, that power has now
been made over to newly constituted authority under the
ordinance by name "the State Cooperative Election Authority". If
election as envisaged in this Ordinance includes the stage of
preparation of voters list also, Shri Ghare, learned counsel
submits that in the light of directions contained in the judgment
of this Court dated 09.03.2017, the election must proceed further.
The respondent urge that election as envisaged in Ordinance
commences only from the stage of filing of nomination paper and
all relevant dates stage-wise are to be fixed under Rule 43 of
APMC Rules, 1967. As such, according to them, in this situation
the finalization of list of voters under Rule 36 of 1967 Rules is an
irrelevant factor.
59. This Court in judgment dated 09.03.2017 delivered in
Writ Petition No. 585 of 2017 has directed respondent No. 1
"State Government" to proceed further with the election of APMC
as per law. Shri Ghare, learned counsel emphasizes on words "to
proceed further with the election" while the respondents highlight
the words "as per law".
60. The Division Bench of this Court in the case of
Raghavendra Vasantrao Deshpande & Ors. vs. Agricultural Produce
Market Committee, Solapur & Ors., reported at 1980 Mh. L.J. 423,
has construed the word election in APMC Act only. It observes
that the word election normally embraces the entire process to be
gone through to return a candidate to the appropriate body for
which election has to be held, including the process starting with
at least the commencement of filing of nomination papers and
ending with declaration of result. It cannot be restricted merely
to that part of process which deals with actual voting or counting
of votes and declaration of names of elected candidates.
61. Shri Bhangde, learned Senior Advocate has relied
upon the judgment in the case of Indrajit Barua & Ors. vs. Election
Commission of India & Ors., reported at (1985) 4 SCC 722. This
judgment shows a finding in para 12 that the Hon'ble Apex Court
did not accept that preparation of electoral roll is also process of
election. The Hon'ble Apex Court there finds that election of a
candidate is not open to challenge on the score of electoral roll
being defective. Holding the election to the Legislature and
holding elections according to law are found to be matters of
paramount importance. The earlier discussion shows that after
extracting a passage from Halsbury's Law of England, the Hon'ble
Apex Court has noticed that the word "election" can be used and
has been appropriately used with reference to the entire process
which consists of several stages and embraces many steps, some
of which may have important bearing on the result of the
election. Discussion by the Hon'ble Apex Court in para 10 shows
that the detailed provisions have been made in the registration of
electoral rolls to raise objection to the names of disqualified
persons and if for some reason a electoral roll is not revised as
required by sub-section (2) of Section 21, the unrevised roll is not
affected in any way and continues to be the electoral roll holding
the field. In para 12, an earlier Constitution Bench decision of the
Hon'ble Apex Court in the case of Lakshmi Charan Sen vs. A.K.I.M.
Hassan Uzzaman, reported at (1955) 4 SCC 689, has been taken
note of to hold that preparation and revision of Electoral Roll is a
continuous process, not connected with any particular election.
When a election is to be held, the Electoral Roll existing at that
juncture is to be used. The Hon'ble Apex Court has also pointed
out support to this proposition emerging from Section 23(3). In
present matter, we will comment on the scheme of "APMC
election" little later.
62. At this stage, it will be appropriate to look into the
communication dated 18.05.2017 issued by the State
Government. This communication mentions that the State
Government was desirous of giving all farmers in the State, right
to vote in election of APMC and, therefore, postponed elections of
all APMCs. The APMCs in whose case steps under Rule 43 of
1967 Rules had been initiated by the Collector or DDR, & the
stage of nomination was on, have only been excluded. Thus,
State Government has because of its desire, as evident from the
Maharashtra Ordinance No. XI of 2017 or XVII of 2017,
postponed elections of APMCs. The facts on record show that
even in the case of Nagpur APMC, stage of submission of
nomination paper had never arrived as the Collector, Nagpur, had
not framed any Election Programme in terms of Rule 43 of 1967
Rules. Hence, communication dated 18.05.2017 also enables the
respondent - State to claim that elections of Nagpur APMC
cannot be conducted until and unless all farmers are given right
to vote. Here, it is important to note that in any Writ Petition
including the writ petition No. 6003 of 2017, the petitioners -
Members of Board of Directors of APMC have not challenged this
communication dated 18.05.2017. At the most there is a
challenge to the Ordinance No. XVII of 2017 or earlier lapsed
Ordinance only. This direction issued on 18.05.2017 is prior to
even the first Ordinance no. XI of 2017. Legally, the decision to
postpone the elections of APMCs is preparatory to & independent
of or distinct from the policy decision attempted to be
implemented through the impugned Ordinances. It needed to be
assailed independently & the State Government could have given
some reasons in defense.
63. In Writ Petition No. 6004 of 2017, the said petitioner
in Writ Petition No. 6003 of 2017, along with eight other
Directors question the order dated 08.09.2017 passed under
Section 15-A, appointing respondent No. 3 - Chief Executive
Officer, Zilla Parishad, Nagpur as Administrator on APMC
Nagpur. Thus, they do not challenge decision of State to
postpone the elections dated 18.05.2017 mentioned supra. If the
policy decision dated 18.05.2017 is valid, then even if Ordinance
XVII of 2017 is quashed, the appointment of the Administrator
may be required to be continued.
64. In Writ Petition No. 1806 of 2017, the very same
Board members question by amendment the Election programme
dated 20.05.2017 by which the Collector, Nagpur had embarked
upon exercise of drawing fresh voters list. In unamended writ
petition filed on 23.03.2017, the effort is to see that election
programme left incomplete on 09.01.2017 should be prosecuted
further. Though this petition has been amended on 07.09.2017,
but then there is no challenge to above referred order postponing
election of several APMCs dated 18.05.2017. The order dated
18.05.2017 expressly gives benefit to all farmers if election
process of their APMC has not reached the stage of nomination
when the Ordinance was/ is promulgated. Why the processes or
even election processes where stage of nomination is not reached,
can not be canceled by communication dated 18.05.2017 is not
explained by the erstwhile Board members.
65. In the light of case laws looked into supra, in the light
of arguments advanced, we have to now examine scheme of
1967 Rules to find out whether preparation of voters list needs to
be recognized as an integral part of process of election in scheme
of APMC Act and whether any conflict can be worked out in
directions contained in judgment of this Court dated 09.03.2017
on one hand and above referred decision of the State Government
dated 18.05.2017 or then the the decision of Collector to draw
fresh voters list & his act of publishing a programme dated
20.5.2017. However, it is of paramount importance to note that
the parties have not attempted to explain why a honest desire to
give effective or direct voice to large number of agriculturists in
Board elections should not be sufficient to abandon even an
election at any of its stages. If need for such direct participation
by the farmers is realized by the State Legislature, why it has to
wait for next 5 years as election process under Rule 43 of 1967
Rules has attained a particular stage is the cardinal issue on
which no arguments are advanced before us.
66. The Division Bench judgment of this Court in the case
of Digambar Sadashiv Ghorpade and others Vs. Election
Registration Officer, Kolhapur and others reported at 2003 (1)
Mah.L.J. 669, has held that in Election Petition under Rule 88 of
1967 Rules, validity of the electoral roll can be questioned. This
Division Bench judgment or law laid down therein has not been
urged to be wrong by anybody particularly the respondents. In
fact, the respondents have not even submitted that in Election
Petition under Rule 88 of 1967 Rules, voters list cannot be
assailed. The law laid down by the Hon'ble Apex Court in the
case of Indrajit Barua & Ors. vs. Election Commission of India &
Ors. (supra) or then principles therein, therefore, are not relevant
in present matter.
67. Rule 36 of 1967 Rules deals with voters list and it is
contained in Chapter III which is on subject of Constitution of
Market Committee. This Chapter (Part I) begins with Rule 35
which is on the subject of Preparation of list of voters and it
continues up to Disqualifications of membership, for which a
provision is contained in Rule 41. Then before Rule 41A, there is
a title "Administrative machinery for the Conduct of Election".
Rule 41A contains a provision for Appointment of Returning
Officer and other rules stipulating other steps including
procedure for casting of vote etc. all appear in this part I. This
continues up to Rule 71A which deals with the contingency of
Fresh Poll. Part II thereafter is about counting of votes. Rule 43
which speaks about dates etc. for various stages of election is
contained under this head "Administrative machinery for the
Conduct of Election". The bare perusal of scheme in Rule 36
shows importance given to the right to vote. The voters list is to
be prepared constituency-wise and then it is to be revised before
every general election at least six months in advance. Thus it is
not a list which is always available or remains valid independent
of its revision. Sub-rule 6 and sub-rule (7) of Rule 36 show how
objections to such provisional list are to be raised. Sub-rule (10)
authorizes the Collector to hear the party and to look into
evidence and to pass suitable orders on the objections/ claims.
This order is made final. The voters list needs to be amended
accordingly as per sub-rule (11). Even thereafter under sub-rule
(12) any error in the voters list can be corrected. As per sub-rule
(14), the final list of voters after amendment remains in force as
the list of voters for the purposes of any bye-elections, until it is
revised as per Rule 36. However, under sub-rule (15) even
thereafter a person whose name is not entered in final list can
seek addition of his name not later than three days before the last
date of nomination. It, therefore, appears that exercise of
finalization of voters list continues independent of the stage of
nomination to be fixed under Rule 43. Under Rule 43(1), the
Collector has to fix last date for making nominations. This date
has to be as per election programme which specifies various
stages of election. The Election Programme under rule 43(1) is to
be drawn not earlier than 15 days and not later than 30 days of
the display of final list of voters. The last date of making
nomination has to be 15 days from the date of declaration of
Election Programme. Thus, this scrutiny of scheme as contained
in Part I from Rules 35 to 41 show how list of voters is to be
drawn. Rule 41A onwards contained under distinct "Head" show
how machinery & procedure for conduct of election is specified
distinctly and that machinery has been given duty of drawing
Election programme.
68. Section 14A of APMC Act dealing with Election also
show that task of preparation of voters list and conduct of actual
election has been viewed distinctly. Thus, till 3 days before last
date prescribed for making of nominations, electoral roll can
undergo changes.
69. The Division Bench of this Court in the case of
Raghavendra Vasantrao Deshpande & Ors. vs. Agricultural Produce
Market Committee, Solapur & Ors., (supra), has held that the
election process of A.P.M.C. includes the process starting with the
filing of nomination papers and ending with declaration of result.
We are not inclined to take a different view of the matter. The
preparation or finalization of voters list is an independent
exercise which needs to be understood as such. The decision of
State Government dated 18.05.2017 is conducive to same finding.
Concept of "election" employed or its sweep implied in S. 3(1)(e)
of the Ordinance does not appear to be different to us. This
section of amending ordinance substitutes clause (e) in S. 13(1)
of the APMC Act. In any case, when importance is given to right
to vote till last possible moment, obvious intention is to have true
representation of concerned interests in APMC i.e. its Board. In
present case, we find that if the farmers are recognized and made
eligible as voters validly to inculcate true democratic character in
the APMC, they can not be denied right of inclusion in voters list
by an exercise of treating incomplete exercise of drawing of voters
list as unseverable part of casting of vote.
70. The perusal of Maharashtra Ordinance No. XI of 2017
or then Ordinance No. XVII of 2017 along with S.O.R. therewith
reveals need felt by the State Government to give representation
to individual agriculturists satisfying the norms prescribed by it, a
right to vote in such election of APMC. Such agriculturalists
must be residing in area of operation of APMC and hold minimum
10 R of land. In addition, he should have also sold agricultural
produce at least three times in preceding five years in concerned
A.P.M.C. Thus, such agriculturalist only gets a right to vote. The
first Ordinance in this respect has come on 13.06.2017 and re-
promulgated Ordinance is dated 31.08.2017.
71. This intention to give more voice to farmers and
decision of State Government also finds mention in the order
dated 18.05.2017 by which it decided to postpone the elections of
APMCs where stag of nomination have not reached.
72. As already stated supra, in present matters correctness
of said communication dated 18.05.2017 is not in dispute. The
petitioners through Shri Ghare, learned counsel and contempt
petitioners in Contempt Petition No. 85 of 2017 through Shri
Naik, learned counsel bank upon the directions contained in
judgment dated 09.03.2017 delivered by us. In that judgment in
para 11, we have observed as under :
"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."
73. This direction has been later on explained in MCA No.
287 of 2017 on 21.07.2017. In para 8 of that order granting
review. This Court has observed as under :
"Writ Petition No. 585 of 2017 could have
been simply disposed of by pointing out error on part of
State Government in taking recourse to Section 14(3-A)
of APMC Act and above facts, without disturbing the
other part of order under Section 14(3) of the APMC
Act. Unfortunately or inadvertently this was not the
issue argued and raised before this Court. We,
therefore, find that the prayer in review application to
the extent it seeks continuation of elected body under
Section 14(3) of the APMC Act for a period of six
months needs to be allowed."
74. Thus, after this order, direction of State Government
containing in its order dated 10.01.2017 to the extent it permits
elected body to continue for six months was maintained and the
direction postponing elections under Section 14(3-A) was
quashed and set aside. Thus, this Court found that on 10.01.2017
legally on the ground of on going election process of other local
bodies, general elections of APMC, Nagpur, could not have been
postponed. This Court, therefore, permitted board/body then in
office to continue for a period of six months and directed the
State Government to proceed further with election of APMC as
per law. There is no direction to complete the election process
within said period of 6 months. We have not, could not have and
also at that juncture, can not be presumed to have prohibited any
legislative exercise having bearing on that election.
75. As already stated supra, in present matters correctness
of said communication dated 18.05.2017 is not in dispute. The
petitioners through Shri Ghare, learned counsel and contempt
petitioners in Contempt Petition No. 85 of 2017 through Shri
Naik, learned counsel, bank upon the directions contained in para
11 of the judgment dated 09.03.2017 delivered by us. In that
judgment in para 11, we have observed as under :
"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."
This direction has been later on explained in MCA No.
287 of 2017 on 21.07.2017. In para 8 of that order in review,
this Court has observed as under :
"Writ Petition No. 585 of 2017 could have
been simply disposed of by pointing out error on part of
State Government in taking recourse to Section 14(3-A)
of APMC Act and above facts, without disturbing the
other part of order under Section 14(3) of the APMC
Act. Unfortunately or inadvertently this was not the
issue argued and raised before this Court. We,
therefore, find that the prayer in review application to
the extent it seeks continuation of elected body under
Section 14(3) of the APMC Act for a period of six
months needs to be allowed."
76. Thus, after this order, direction of State Government
contained in its order dated 10.01.2017 to the extent it permits
elected body to continue for six months was maintained and the
direction postponing elections under Section 14(3-A) was
quashed and set aside. Thus, this Court found that on 10.01.2017
legally on the ground of on going election process of other local
bodies, general elections of APMC, Nagpur, has not been legally
postponed. This Court, therefore, permitted body i.e. Board of
Directors then in office to continue for a period of six months
more and directed the State Government to proceed further with
general election of APMC as per law.
77. The desire of State Government to give voting rights
to individual farmers was not then before the Court. It cannot be
argued that in the light of this direction issued on 09.03.2017,
State Legislature is prohibited from enacting a law to give voting
right to agriculturists in the elections of A.P.M.C. If it can enact
such a law, it is apparent that it can also promulgate an
Ordinance. The validity of promulgation or re-promulgation of an
Ordinance is an altogether independent issue which need not
detain us at this juncture. However, on 09.03.2017, it cannot be
said that this Court has prohibited any legislative exercise by the
competent body. This Court on that day did not issue a direction
to declare election programme under Rule 43 or to complete the
general elections within stipulated time and to put newly elected
body in office within that time. When the petitioners who
obtained directions on 09.03.2017 also sought its modification in
review which was pending till 21.07.2017, they on the other hand
could not have sought its implementation before 21.07.2017. As
it is not shown that this Court then had restrained the State
Legislation giving right to individual agriculturists to vote in
elections of A.P.M.C., We, therefore, find no inconsistency in our
direction and the order of State Government dated 18.05.2017
postponing elections of all A.P.M.C. mentioned supra.
78. Though the erstwhile members of Board of Directors
have challenged before us the Ordinance No. XI of 2017 or XVII
of 2017, they have not questioned legislative competence of State
in the matter. Thus, State Legislation has power to grant
individual farmer a right to vote in election of A.P.M.C. When
voters list for election of A.P.M.C. of Nagpur itself can be
subjected to some changes till three days prior to last date
prescribed for filing of nomination, it cannot be said that State
Legislature was/ is in any way incapacitated from passing suitable
law within its powers. It appears that even after a Court
mandate, in certain circumstances, such a provision in public
interest could have been incorporated by the State Legislature.
We, in this situation, do not find any substance in the contention
that because of directions issued on 24.03.2017, the respondents
ought to have completed the elections by taking recourse to Rule
43 and publishing a schedule containing various stages to
complete the election as stipulated therein. This Court has
expected State Government to proceed further with the election
as per law. The State (Executive) accordingly has taken note of
change in law and proceeded further. We cannot hold that it was
restrained by this Court from proceeding further accordingly.
79. Shri Bhangde, learned Senior Advocate has relied
upon certain judgments to explain how such direction to proceed
further needs to be understood. The judgments relied upon by
him are mostly in matters where the Hon'ble Apex Court or High
Court remanded the matter back to lower Courts/ quasi judicial
authority and then directed a particular course to be adopted.
Those judgments like judgment in the case of Balai Chandra
Hazra vs. Shewdhari Jadhav (supra); Ganeshmal Jashraj vs.
Government of Gujarat & Anr., (supra); R.S. Nayak vs. A.R.
Antulay, (supra); Balaji Digambarrao Kotgire vs. Enquiry
Authority/ Chief Manager, Disciplinary Action Department,
Oriental Bank of Commerce, New Delhi & Ors., (supra) are,
therefore, not of much assistance here.
80. Shri Ghare, learned counsel has relied upon the
dictionary meaning of the word "proceed" and "further" to submit
that it essentially envisages taking a step further from a particular
point or beyond a particular line. Again in the light of finding
recorded supra, we find said reliance on the dictionary meaning
misconceived in present facts. This meaning does not advance the
case of petitioners in Writ Petition Nos. 1806/2017, 6003/2017 &
6004 of 2017 at all. It is not in dispute that a right to contest or
to vote in an election is a statutory right and, therefore, can be
controlled by statute. We, therefore, need not comment on the
precedents which support this proposition..
81. Shri Ghare, learned counsel has relied upon the
judgment in the case of Gorie Gouri Naidu (Minor) & Anr. vs.
Thandrouthu Bodemma & Ors., (supra), to urge that even an
erroneous decision can operate as res judicata between the
parties. The judgment dated 09.03.2017 in Writ Petition No. 585
of 2017 does not militate with power of State Legislature in any
way. Moreover, the agriculturists on whom voting rights are
being bestowed were not the parties to said judgment dated
08.09.2017. In this respect Shri Raghute, learned counsel,
appearing on behalf of the farmers has rightly invited our
attention to the judgment of the Hon'ble Apex Court in the case of
Bombay Dyeing & Mfg. Co. Ltd. (3) vs. Bombay Environmental
Action Group & Ors., (supra). There, the Hon'ble Apex Court in
para 312 has observed that an order of Court needs to be
construed having regard to the text and context in which the
same was passed. The judgment cannot be read as a statute and
it needs to be understood in the light of factual matrix involved
therein. This precedent reveals that any observation made in the
judgment cannot be read in isolation and in a different context.
Thus, we find that our directions issued on 09.03.2017 in Writ
Petition No. 585 of 2017 also need to be construed keeping in
mind the facts and law then prevailing.
82. However, to urge that new provisions giving voting
rights to individual agriculturists apply to the elections in dispute
before us, few judgments have been cited. Again as we find that
when general elections of Nagpur APMC though due in February,
2017 have still not taken place & Board now elected will be in
office for five years after their election, the use of law prevalent
on the date of election can not be labeled as retrospective use
thereof. The term of Board i.e. of term of office of members
forming the Market Committee has not already commenced from
09.03.2017 but it will commence from future date after their
election as per S. 15(1) of APMC Act.
83. Dr. Sundaram, learned counsel has, however relied
upon the judgment in the case of Howrah Municipal Corporation
& Ors. vs. Ganges Rope Co. Ltd. & Ors., reported at (2004) 1 SCC
663. There, the question was whether any vested right was
created in favour of a company to seek sanction for construction
of additional three floors irrespective of amendment to Building
Rules. The Hon'ble Apex Court observes that the Building Rules
were amended after company made necessary compliances. By
amendment, restrictions were imposed on height of building. The
Hon'ble Apex Court observes that Building Rules were amended
by the State Government and Municipal Corporation can have no
bonafides or malafides in the matter. The Hon'ble Apex Court
notes that provisions of the Corporation Act contemplated an
express sanction to be granted by the Corporation before allowing
any person to construct or erect a building. Thus, merely by
submission of application for sanction for construction, no vested
right is created in favour of any party by statutory operation of
the provisions. The question whether such a vested right can be
deemed to be created by the fixation of time-limit by the Court in
its order for considering the application for sanction has been
answered in negative after noting that the provisions of the Act
under consideration, did not provide for "deemed sanction" or
"deemed rejection" after expiry of the prescribed period fixed for
deciding the application for sanction. In controversy before us,
the erstwhile members of APMC can not claim any vested right
and the agriculturists for whose benefit the amendment to APMC
Act is being proposed, were not parties to WP 585 of 2017. The
impugned legislative exercise also did not exist on 09.03.2017 or
before 13.06.2017.
84. In the judgment in the case of General Manager,
Department of Telecommunications, Thiruvananthapuram vs. Jacob
s/o Kochuvarkey Kalliath (Dead) by LRs. & Ors., reported at
(2003) 9 SCC 662, the Hon'ble Apex Court has looked into a
direction issued by the High Court to complete acquisition
proceedings within time specified by it. The Hon'ble Apex Court
observes that there was nothing in the order of High Court that
Award of Land Acquisition could not have been passed beyond
the time permitted by it. A statutory provision vested power in
the authorities to declare Award within a time which was more
than the time granted by the High Court. The Hon'ble Apex Court
holds that direction of High Court cannot be read to stifle any
authority from exercising its powers under the statute or deprive
a statutory provision of its enforceability. The judgment in the
case of Durga Hotel Complex vs. Reserve Bank of India & Ors.,
reported at (2007) 5 SCC 120, relied upon by Shri Sundaram,
learned counsel, is about need of adopting a purposive
interpretation. Judgment in the case of Securities and Exchange
Board of India vs. Alliance Finstock Limited & Ors., reported at
(2015) 16 SCC 731, is again on same lines. Para 15 therein
shows that if necessary such purposive construction would
warrant even a retrospective effect.
85. In the light of discussion already undertaken supra,
we do not find it necessary to dwell more on these judgments.
86. Shri Ghare, learned counsel has urged that the
Ordinance as promulgated or re-promulgated is with oblique
motive and aimed singularly at A.P.M.C. Nagpur. He has also
submitted that though agriculturists are being made eligible to
vote, the rules necessary to implement this decision are still not in
place. Shri Sundaram, learned counsel, has submitted that after
amendment to principal Act, rules become subservient to it. Shri
Bhangde, learned counsel, has submitted that though in Writ
Petition No. 6004 of 2017, there is challenge to communication
dated 08.09.2017 issued by the Director of Marketing, appointing
CEO, Zilla Parishad, Nagpur, as Administrator of A.P.M.C., basic
order of the State Government dated 08.09.2017 has not been
questioned.
87. We find that answer to or need to answer these issues
depends upon the question whether the Ordinance No. XI of 2017
or then XVII of 2017 can be sustained or not.
88. Shri Ghare, learned counsel, however, has relied upon
the judgment in the case of Valloapally Plantations Pvt. Ltd. vs.
State of Kerala, reported at AIR 1999 SC 1796, to urge that
finality once reached cannot be undone by such an Ordinance or
other Executive exercise. We have already held that the judgment
dated 09.01.2017 in Writ Petition No. 585 of 2017 cannot be said
to be final and binding in present scenario as farmers were not
parties to it and their interest in the process has cropped up after
promulgation of Ordinance No. XI of 2017 on 13.06.2017.
Moreover, in judgment before the Hon'ble Apex Court, the issue
was finally decided by Courts and by consequential order dated
18.05.1979, said adjudication was also accepted by Taluk Land
Board and was given effect to. Thereafter in some other matter,
other Division Bench took another view of legal provisions. This
view is mentioned in para 3 of the judgment of the Hon'ble Apex
Court. Because of this ""other view on law", Board invoked its
power and attempted to re-open the proceedings. The contentions
of land owner Trust, which opposed such reopening, are
mentioned in para 6 of the judgment and conclusions are given in
para 23. The Hon'ble Apex Court has found that the issue which
was finally settled judicially between the parties could not have
been affected because of change in judicial view/ interpretation of
law. That is not the position in present matter. The legal
provisions not then in contemplation on 09.03.2017 have
emerged and necessitate appropriate evaluation and a solution.
89. In this background, the consideration of Ordinance
No. XI of 2017 or XVII of 2017 is necessary. The Ordinance No.
XI of 2017 expired on 03.09.2017 and hence to continue the
operation of provisions in the said Ordinance, new Ordinance i.e.
Maharashtra Ordinance No. XVII of 2017 has been re-
promulgated on 31.08.2017. Thus, the very same provisions
continued to operate. As already noted supra, the Government
Resolution dated 04.02.2017 shows that State Government
already was examining feasibility of conferring right to vote upon
the agriculturists. Thus, the issue appears to be under
consideration and deliberation at least since prior to February
2017 and hence for last about 10 months. In this backdrop, when
on 10.01.2017 elections of A.P.M.C. of Nagpur were postponed,
this reason of exploring possibility of conferring right to vote on
an individual agriculturist has not been used. Said reason has
been used for the first time in the order dated 18.05.2017.
However, then the Ordinance for this purpose was promulgated
on 13.06.2017 and before that i.e. on 20.05.2017, the Collector,
Nagpur, published election programme of A.P.M.C. Nagpur. If
version of the Collector is to be accepted, as per this election
programme, individual agriculturists are not to be given right to
vote.
90. The contention that the excuse of conferring right to
vote on an individual farmer is being used with an oblique motive
to prevent elected representatives of politically opponent party
from managing the affairs of A.P.M.C. is in this context.
However, the order dated 18.05.2017 issued by the State
Government or its order dated 20.05.2017 and various directions
issued by this Court at Bombay or at Nagpur reveal that the move
of the Government did affect elections of other A.P.M.Cs. also. In
case of other A.P.M.Cs., validity of exercise of State was not
questioned and hence the individual agriculturists have been
permitted to vote as per mandate of Ordinance No. XI of 2017.
We, therefore, find no substance in the allegation of malafides
against the Government.
91. It is always open to Legislature to confer voting rights
upon the individual agriculturists and such a policy decision and
change in law perhaps may not be open to attack in writ
jurisdiction on the ground of malafides. However, as no
arguments in this respect or on wisdom behind it, are advanced
before us, we need not comment upon it.
92. As noted supra, the Winter Session of State
Legislature was held at Nagpur between 11.12.2017 to
22.12.2017. What happened to Ordinance No. XVII of 2017
during this Session, is not known. If it is converted into an Act,
the situation may call for a different approach. If it has not been
so converted, adoption of a settled perspective will be necessary.
But till the date of pronouncing this judgment, the State has not
pointed out any such development in any of the Legislative
houses.
93. The perusal of the Larger Bench judgment of the
Hon'ble Apex Court in the Krishna Kumar Singh & Anr. vs. State of
Bihar & Ors., reported at (2017) 3 SCC 1 reveals a decision by
majority. The facts there show that Bihar Government continued
to re-promulgate Ordinance and the same were never put before
the Legislative Assembly. It is in that background that majority of
the Judges have answered the question arising out of re-
promulgation. In paras 75 & 76, the Larger Bench has considered
the theory of enduring rights and in para 90 has observed that an
Ordinance which has ceased to operate is not void. During its
tenure, the Ordinance has same force and effect as a law enacted
by the Legislature. In para 93, the Larger Bench points out
threefold test and then the effort to be made by the Court to
mould the relief also find consideration in para 94. The judgment
of the Constitution Bench of Apex Court in D.C. Wadhwa (supra)
was delivered on 20-12-1986 is considered in para 101 where the
larger bench endorses that there can not be an "ordinance-raj" in
the country. In an earlier paragraph, this Larger Bench holds that
not placing an Ordinance at all before the legislature is an abuse
of constitutional process, a failure to comply with a constitutional
obligation. A Government which has failed to comply with its
constitutional duty and overreached the legislature cannot
legitimately assert that the Ordinance which it has failed to place
at all is valid till it ceases to operate. In present facts, the first
assembly session after the study report was in March, 2017. Next
two sessions were respectively in July,2017 & December,2017.
Thus, after the desire surfaced, the Sate got two or three
opportunities to bring an amendment as per the Constitution. As
elections to A.P.M.C. Nagpur have not been held at all, the theory
of enduring rights need not detain us more. Ordinance also
proposed conferring voting rights on an individual farmer only for
five years. We, therefore, can safely follow & use the conclusions
reached by Larger Bench. The conclusions in para 105 show that
the requirement of laying an Ordinance before the State
Legislature is a mandatory constitutional obligation and failure to
comply with it is a serious constitutional infraction and abuse of
the constitutional process. Re-promulgation of Ordinances is a
fraud on the Constitution and a subversion of democratic
legislative processes. In view of these clinching observations of
the Hon'ble Apex Court, it is apparent that as re-promulgated
Ordinance No. XVII of 2017 has not been introduced in State
Legislative Assembly at all in winter session, the controversy has
to be answered against the State. The proposed provision which
enables an individual agriculturist to cast vote requires
specification of a date with reference to which his eligibility is
looked into. As per Section 3 of Ordinance, in Section 13(1)(a) of
APMC Act, for the words "21 years of age on the date specified
from time to time by the Collector", the words "21 years of age on
the date specified from time to time by the State Cooperative
Election Authority" are substituted. Thus, this date is to be
specified from time to time by the State Cooperative Election
Authority and till such date is specified, eligibility of an individual
to vote in election of A.P.M.C. cannot be ascertained. As eligibility
can not be examined, even provisional voters list of such
agriculturist members can not be drawn even to-day.
94. Draft Rules have been published by the State
Government on 31.10.2017 in terms of sub-sections (1) & (2)
clause (d) and (u) of Section 60 of A.P.M.C. Act. The draft rules
have been published as required by sub-section (3) for
information of all persons likely to be affected with notice that
draft rules would be considered by the Government on or after
30.11.2017. Whether Rules have been finalized or not, is not
pointed out to this Court by anybody till date. These draft rules
in Rule 2(21) define "voter" and for the purposes of this
controversy, an agriculturist residing in the market area holding
minimum 10 R of land and is not less than 18 years of age, if he
has sold agricultural produce at least three times in preceding five
years before date of declaration of provisional voters list
programme, is a voter. Thus, it is the date of publication of
programme for finalizing voters list with reference to which
eligibility of an individual farmer will be ascertained, if these
draft rules are accepted and finalized. It is axiomatic that these
new rules can find birth only if the Ordinance is valid and APMC
Act is held to be amended accordingly.
95. In Ordinance No. XVII of 2017 vide Section 3(1) (e), a
clause has been substituted as clause (e) and it reads :
"Provided that, during the period of five years from
the date of commencement of the Maharashtra Agriculture
Produce Marketing (Development and Regulation)
(Amendment and Continuance) Ordinance, 2017, in an
election conducted immediately after such date of
commencement; all the agriculturists residing in the
market area who hold minimum 10 R land and who are
not less than eighteen years of age on the date specified by
the State Co-operative Election Authority shall be eligible
for voting unless otherwise ineligible to vote."
This clause, therefore, enables an agriculturist residing
in market area holding minimum 10 R of land and not below 18
years of age on the date specified by State Co-operative Election
Authority as eligible for voting. The said right to vote is for a
period of five years from the date of commencement of an
Ordinance. Again, in view of earlier discussion, we need not
comment more on these provisions.
96. These provisions can operate if the Ordinance is valid
or then the A.P.M.C. Act is legally amended. Above mentioned
judgment of the Larger Bench of the Hon'ble Apex Court is
delivered on 02.01.2017. Hence, in February, 2017 when the
State called for a study report, it was aware of the settled legal
position. Thus, on 13.06.2017, when State Government got
Ordinance No. XI of 2017 promulgated, it was duty bound and
could not have overlooked or avoided to follow the constitutional
mandate . Question whether for the reasons beyond its control, it
could not then get the Ordinance approved in Legislative Council,
has remained only an academic subject, after the very same
Ordinance came to be re-promulgated on 31.08.2017. This re-
promulgated Ordinance No. XVII of 2017, if valid, can at the
most operate for a period of six weeks after 11.12.2017 because
of mandate in Article 213(2)(a). Before 11.12.2017, it has
operated for over a period of three months. The particular
composition and constitution of Members of Committee or Board
of Directors of A.P.M.C. as per law approved by both the Houses
of State Legislature is in vogue since 1967. Almost after 50 years,
change therein has been proposed by extending an individual
farmer a right to vote. As already observed supra, wisdom behind
this policy decision may not be justiciable. However, this
Ordinance itself has not been approved by the State Legislature
as per Constitution of India till date.
97. Events noted supra show that since February 2017,
need to amend provisions of A.P.M.C. Act is being examined by
the State Government. The State Government, therefore, could
have taken timely steps not only to issue Ordinance but also to
introduce a proper amendment bill in appropriate House for
suitably amending A.P.M.C. Act. The State Government has not
extended the Session in August 2017 to enable its Legislative
Council to consider Ordinance No. XI of 2017, though aware of its
obligation to the Constitution and thereafter has not taken
necessary steps to see that re-promulgated Ordinance becomes
law at least in its next Session held between 11.12.2017 and
22.12.2017. No compliance with the constitutional obligation is
brought on record by the State till today. We, therefore, find that
in these facts, re-promulgated Ordinance cannot have any effect
after 22.12.2017 and it cannot confer any right to vote on any
individual agriculturist.
98. It is, therefore, unnecessary to consider whether the
new Rules have come into force or then, is there inconsistency
between amendments added by the impugned Ordinance & said
Rules. For the same reasons, We need not dwell upon rival
arguments on malafide use of power by the State.
99. In view of this finding, as elections have not been held
till this date and as individual agriculturists do not have right to
vote in general election of A.P.M.C. Nagpur, it is apparent that
writ petitions filed by such individual farmers i.e. Writ Petition
Nos. 3894 of 2017 and 4488 of 2017 cannot succeed.
100. Insofar as issue of Contempt committed by the office
of the Collector is concerned, it is clear that the legal position was
not settled and hence the State Government through the Collector
points out that the office of the Collector would hold elections
without permitting individual agriculturist to cast vote. The other
officers of the State Government in the wake of Ordinance have
come up with a case that individuals need to be given a right to
vote. Again at that juncture when the Ordinance was holding the
field, the prevailing confusion cannot be perceived as misplaced
or erroneous. Advantage thereof will definitely be to the office of
the Collector at Nagpur. As already seen by us , on 22.03.2017,
the State did appoint an Administrator on APMC, Nagpur as its
order dated 10.01.2017 extending tenure of the Board of
Directors was set aside by this Court on 09.03.2017. This act of
appointing the administrator is not and could not have been
assailed as contempt. This appointment came to be stayed in
MCA No. 287 of 2017 filed for review to restore that part of
order dated 10.01.2017. W.P. No. 1806 of 2017 filed challenging
this appointment is being decided by this common judgment.
MCA 287 of 2017 was allowed on 21.07.2017. As such, till
21.07.2017, the fate of the administrator itself was uncertain.
Had this Court then passed some other order on said MCA, the
prayer for completing the election process by resuming it from the
stage reached on 10.01.2017 might not have survived. Judgment
dated 09.03.2017 in WP 585 of 2017 was in clouds during this
period. As such, at least till 21.07.2017, there can not have been
any prayer for resumption of the election process. No grievance
about any avoidance to comply or contempt, therefore could have
been made before 21.07.2017 as judgment dated 09.03.2017 was
under review till then. Ordinance XI of 2017 was very much in
force on 21.07.2017. Prayers demanding elections in compliance
therewith were then already pending before this Court in writ
petitions mentioned supra. CA for intervention filed by the
farmers was allowed in MCA 287 of 2017 and they opposed
restoration of elected members on Committee by pointing out
need to hold elections as per changed position. In WP 1806 of
2017, also Dr. Sundaram has on behalf of intervenors opposed
prayers to restore the erstwhile elected members back to Board as
also supported the programme published by the Collector on
20.05.2017. In this background, confusion in the office of
Collector can not be viewed either as unwarranted or constituting
contempt.
101. The judgment delivered by this Court on 09.03.2017
in Writ Petition No. 585 of 2017 cannot be interpreted to prohibit
State Legislature from enacting a law to give voting rights to
individuals in election of A.P.M.C. The State Legislature can in an
appropriate case extend such a right even in cases where there is
a direction by a Court to hold elections as per law. When a
competent Court specifies a particular course of action, law
enacted to circumvent it will be required to be viewed differently.
In present facts, there is no such specific direction and the
election was to be held as per law.
102. The petitioners in Writ Petition No. 585 of 2017 or
then in Writ Petition No. 1806 of 2017 ceased to be Directors
initially on 09.03.2017 when their tenure of five years expired.
They also ceased to be so when extension given to them on
10.01.2017 for a period of six months expired on 08.09.2017.
The effect of expiry of such tenure is looked into in various
judgments of this Court. In Writ Petition No. 4238 of 2013 and
other connected matters decided on 22.04.2014, Bench at Nagpur
has held that provisions of Section 15A(1) of A.P.M.C. Act come
into force after expiry of tenure and it is mandatory in character.
The provisions of said section are considered in paras 11 and 12
in the said judgment and this Court has found that elected Board
of Directors has no right to continue after the expiry of tenure.
One of us (B.P. Dharmadhikari, J.) is a party to that judgment. In
the light of this judgment, it is apparent that elected Board
members, who are petitioners in above mentioned matters have
no right to continue thereafter. The very same Board members
are petitioners in Writ Petition Nos. 6003 of 2017 and 6004 of
2017. There they challenge appointment of Administrator under
Section 15A by an order dated 08.09.2017 and also question re-
promulgated Ordinance. It is to be noted that though the
Ordinance No. XI of 2017 earlier promulgated was not specifically
assailed by them, their effort in Writ Petition No. 1806 of 2017 is
to have elections in terms of unamended A.P.M.C. Act i.e. by
adhering to list of voters already finalized and by sticking to
stages completed till 10.01.2017. If that petition is to be allowed,
it follows that it was not necessary for them to expressly
challenge Ordinance No. XI of 2017. Be that as it may, in
changed circumstances, they have found it necessary to challenge
re-promulgated Ordinance No. XVII of 2017. To that extent, as
general elections of APMC Nagpur have not been held for term
beyond 09.03.2017 till this date, writ petitions filed by them
cannot be said to be not tenable or misconceived.
103. The petitioners in Writ Petition No. 6003 of 2017 and
6004 of 2017 were elected as Directors of A.P.M.C., Nagpur, for
five years and functioned as such till 07.09.2017. They are
members of A.P.M.C. and possess necessary locus to maintain the
challenge. They can always insist that the provisions of A.P.M.C.
Act, 1967, operating since 1967 must be implemented. Their right
to question the re-promulgation is independent & not eclipsed by
any previous adjudication. They are within their rights to urge
that till A.P.M.C. Act, 1967, is validly amended, individual
agriculturalists cannot be given a right to vote.
104. We have already held above that re-promulgated
Ordinance cannot have any effect and elections need to be
conducted as if there is no amendment to A.P.M.C. Act, 1967.
Briefly, individual agriculturists cannot be given a right to vote.
However, this does not imply that list as prepared by the Collector
with reference to date "31.08.2016" needs to be used even for
this election.
105. The Scheme of Rule 36 of 1967 Rules has been briefly
looked into by this Court in this judgment already. The intent in
the Rule is to see that all eligible voters get right to vote and have
their say in the formation of A.P.M.C. The A.P.M.C. so formed or
its Board of Directors so elected function for further period of five
years. Hence, at this stage if we permit elections to be conducted
by using list of voters finalized with reference to 31.08.2016 as
cut off date, several eligible members may be denied right of
participation in constitution of A.P.M.C. The local bodies or
Managing Committees of Co-operative Societies comprised in
Rule 35(1)(A)(B) may have undergone changes during this
period. There may be new licenses issued and, therefore,
addition to Trader's Constituency or to Hamals' and weighmen's
constituencies. Thus, these new persons/ office bearers will have
no role to play in formation of A.P.M.C., Nagpur. Moreover,
those who have lost such representative capacity, cannot be
permitted to participate in formation of A.P.M.C. merely because
on 31.08.2016, they possessed that capacity. When elections of
A.P.M.C. are to be held for a period of next five years, the voters
now eligible as per law must be permitted to cast vote so as to
make A.P.M.C. a truly democratic & representative authority.
106. In December 2016 when the Collector began this
exercise of preparing voters list, he chose 31.08.2016 as the cut
off date. The process could not be completed because of
intervention by the State in January 2017. Today, period of one
year has expired from said date. It is to be noted that in reply
before this Court the office of Collector has itself pointed out that
due to time lost after 31.08.2016, it prepared a voters list as on
31.03.2017 in furtherance of exercise undertaken on 20.05.2017.
We, therefore, find that the office of the Collector has to prepare a
proper voters list by treating "31.08.2017" as cut off date.
107. Taking overall view of the matter, we find that the
Collector cannot be said to have willfully disobeyed and
committed contempt of this Court. Accordingly, we dismiss
Contempt Petition No. 85 of 2017.
108. As we find that an individual agriculturist cannot
claim any right to vote, Writ Petition Nos. 3894 of 2017 and 4488
of 2017 are also dismissed.
109. Insofar as Writ Petition Nos. 1806 of 2017, 6003 of
2017 and 6004 of 2017, are concerned, as we find nothing
wrong in appointing an Administrator on A.P.M.C., Nagpur, by an
order dated 08.09.2017, Writ Petition No. 6004 of 2017 is
dismissed only to that extent. As we have found re-promulgated
Ordinance bad, Writ Petition No. 6003 of 2017 is partly allowed.
As the voters list need to be drawn afresh as directed above, we
quash & set aside the election programme dated 20.05.2017
published by the office of Collector. Writ Petition No. 1806 of
2017 is also partly allowed.
110. We direct the Collector, Nagpur, to conduct the
elections of A.P.M.C., Nagpur, as per law by drawing fresh voters
list by treating 31.08.2017 as cut off date and to complete the
same at the earliest and in any case by 31.03.2018. The Chief
Executive Officer, Zilla Parishad, Nagpur, functioning as
Administrator shall continue to do so. However, he shall manage
only day-to-day affairs as care-taker authority without taking any
major financial or policy decisions till then.
111. Writ Petition Nos. 1806 of 2017, 6003 of 2017 and
6004 of 2017 are thus partly allowed and disposed of. However,
in the facts and circumstances of the case, there shall be no order
as to costs.
JUDGE JUDGE
112. At this stage, the learned Additional Government
Pleader seeks stay of this order so as to enable the respondent -
State to approach the Hon'ble Apex Court. It is also stated that in
Winter Session the Ordinance has been converted into an
enactment. Shri Raghute, learned counsel as also learned
Additional Government Pleader state that the affidavits informing
about the same are filed in office.
113. It is apparent that after the matter was closed for
judgment, by adhering to the procedure in Bombay High Court
Appellate Side Rules, 1960, the developments have not been
brought on record. The Registry, therefore, could not place those
affidavits or developments before us. No steps are taken to bring
these affidavits to the notice of Court. Considering the nature of
directions issued by this Court, we are not inclined to grant the
request made by learned Additional Government Pleader.
Request rejected.
JUDGE JUDGE
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*GS.
