Bombay High Court
Ramesh Tulashiram Narnavare And ... vs State Of Maha., Thr. Secretary, ... on 4 February, 2022
Bench: A.S. Chandurkar, Mukulika Shrikant Jawalkar
WP4731.21 and other connected WPs 1/24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4731 OF 2021
1. Subash S/o Wamanrao Patil,
Aged about 71 years, Occupation : Agriculturist,
R/o At Post Rantham, Tq. Malkapur,
Dist. Buldhana
2. Sujeet S/o Bhaurao Bhosale,
aged about 44 years, Occupation agriculturist,
R/o At Tighara Post Vivara
Tq. Malkapur, District Buldhana
3. Sunilkumar s/o Bhikulal Agrawal,
aged about 50 years, Occupation : trader,
R/o Malkapur, District Buldhana
4. Akram Khan Haidar Khan,
Aged 36 yrs, Occupation Hamal,
R/o Madartekadi, Parpet.
Tq. Malkapur, District Buldhana ... Petitioners
-versus-
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Malkapur, Tah and District Buldhana
(Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Khamgaon, having office at Malkapur,
District Buldhana (Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Malkapur through its Secretary, Tahsil and
Malkapur, District : Buldhana (Maharashtra State) ... Respondents.
WP4731.21 and other connected WPs 2/24
Shri A. M. Ghare, Advocate for petitioners.
Smt H. N. Jaipurkar, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri D. I. Jain, Advocate for respondent No.5.
Shri A. S. Mardikar, Senior Advocate with Shri Mohit Bobde, Advocate for
Intervenor.
------------------------------------------------------------------------------------------------------------------
with
WRIT PETITION NO.4733 OF 2021
1. Prakash S/o Bhagwantrao Tikar,
Aged 58 yrs, Occ. Agriculturist,
R/o At and Post Bori Adgaon, Khamgaon,
Tahsil Khamgaon, District Buldhana
2. Ashok S/o Sukhdev Hatkar,
Aged 55 yrs, Occ. Agriculturist,
R/o Hiwarkhed, Khamgaon,
Tahsil Khamgaon, District Buldhana
3. Vishnu S/o Parmeshwar Kalsundar,
Aged 34 yrs, Occ. Agriculturist,
R/o At and Post Ghatpuri,
Tahsil Khamgaon, District Buldhana
4. Sanjay Shitaldas Bhagdewani,
Aged 33 yrs, Occ. Trader,
R/o Zulelal nagar, Khamgaon,
Tahsil Khamgaon, District Buldhana
5. Sambhaji S/o Vitthal Tastode,
Aged 46 yrs, Occ. Hamal,
R/o Chandmari Fail, Khamgaon,
Tahsil Khamgaon, District Buldhana ... Petitioners
-versus-
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032.
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
WP4731.21 and other connected WPs 3/24
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Buldhana, Tah and District Buldhana
(Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Khamgaon, having office at Khamgaon,
District Buldhana (Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Khamgaon through its Secretary, Tahsil and
Khamgaon District : Buldhana (Maharashtra State) ... Respondents.
------------------------------------------------------------------------------------------------------------------------
Shri A. M. Ghare, Advocate for petitioners.
Smt K. R. Deshpande, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri S. S. Ghate, Advocate for respondent No.2.
Shri U. J. Deshpande, Advocate for Intervenor.
------------------------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4923 OF 2021
1. Manohar s/o Shankarrao Khadse,
Aged about 60 years, Occupation : Agriculturist,
R/o At Post Kharda, Tah. Deori,
Dist. Wardha.
2. Devanand s/o Wamanrao Bhagat,
aged about 40 years, Occupation agriculturist,
R/o At Kolona Post Goul,
Ta. Deoli, District Wardha.
3. Sushil Gayaprasad Tiwari,
aged about 68 years, Occupation : Hamal,
R/o At Post Pulgaon (Gandhi Chowk)
Ta. Deoli, District Wardha.
4. Ashok Narayanrao Parale,
Aged 65 years, Occupation Trader,
R/o Ward No.7, Near Bus Stop, Pulgaon,
Tah. Deoli, District Wardha. ... Petitioners
-versus-
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032.
WP4731.21 and other connected WPs 4/24
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Wardha, Tah and District Wardha
(Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Deoli/Karanja, District Wardha.
(Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Pulgaon, through its Secretary, Tahsil
Deoli District : Wardha (Maharashtra State) ... Respondents.
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Shri A. M. Ghare, Advocate for petitioners.
Ms. N. P. Mehta, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri N.R.Tekade, Advocate for respondent No.5.
------------------------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4924 OF 2021
1. Sandip S/o Manikrao Raut,
Aged about 50 years, Occupation : Agriculturist,
R/o Pujai, Post Bhankheda,
Ta. and Dist. Wardha.
2. Sunil s/o Hemraj Pant,
aged about 48 years, Occupation agriculturist,
R/o Sewagram,
Ta. Wardha, District Wardha.
3. Shriram Ajabrao Ingale,
aged about 62 years, Occupation : Hamal,
R/o Tigaon, Ta. and District Wardha.
4. Pawan s/o Ramgopalji Singhaniya,
Aged about 61 years, Occupation trader,
R/o Shivnagar, District Wardha. ... Petitioners
-versus-
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032.
WP4731.21 and other connected WPs 5/24
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Wardha, Tah and District Wardha.
(Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Wardha, having office at Wardha District-Wardha,
(Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Wardha through its Secretary, Tahsil Wardha,
District : Wardha (Maharashtra State) ... Respondents.
--------------------------------------------------------------------------------------------------------------------------
Shri A. M. Ghare, Advocate for petitioners.
Ms. N. P. Mehta, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri N.R.Tekade, Advocate for respondent No.5.
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WITH
WRIT PETITION NO.4925 OF 2021
1. Gunwant s/o Laxmanrao Kadu,
Aged about 54 years, Occupation : Agriculturist,
R/o at Chandarmal, Post Junona, Tah. Selu,
Dist. Wardha.
2. Nikhil s/o Ananta Kawalkar,
aged about 27 years, Occupation agriculturist,
R/o at Khadka, Post Kopara, Tah.Selu.
District Wardha.
3. Babanrao s/o Ramji Hinganekar,
aged about 69 years, Occupation : Trader,
R/o Ward No.13, Bhoipura, Post Sindi Railway Selu,
Sindi Railway, Dist. Wardha.
4. Gopal s/o Laxmanrao Koparkar,
Aged about 54 years, Occupation Hamal,
R/o 57, Ward No.6, At Post Sindhi Railway,
Tah. Selu, Dist. Wardha. ... Petitioners
-versus-
WP4731.21 and other connected WPs 6/24
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032.
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Wardha, Tah and District Wardha.
(Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Selu, having office at Selu District-Wardha,
(Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Sindi through its Secretary, Tahsil Selu,
District : Wardha (Maharashtra State) ... Respondents.
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Shri A. M. Ghare, Advocate for petitioners.
Ms. N. P. Mehta, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri N.R.Tekade, Advocate for respondent No.5.
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WITH
WRIT PETITION NO.4866 OF 2021
1. Ramesh Tulashiram Narnavare,
Aged 62 years, Occ.: Agriculturist,
R/o Dhanora, Tah. Hinganghat, Dist. Wardha,
Director of Vividh Karyakari Seva Society Dhanora.
2. Mrs. Nitu Sunil Dambhare,
Aged 33 years, Occ. Agriculturist,
R/o Dhochi, Tah. Hinganghat, Dist. Wardha.
Member of Grampanchayat, Dhochi.
3. Shubham Deorao Tadas,
Aged 27 years, Occ. Commission Agent.
R/o Nandgaon (Bo), Tah. Hinganghat, Dist. Wardha.
Commission Agent License Holder of APMC,
Hinganghat.
4. Anand Trilochand Kankariya,
Aged 46 years, Occ. Business.
R/o Hinganghat, Tah. Hinganghat, Dist. Wardha.
Trader License Holder of APMC, Hinganghat.
WP4731.21 and other connected WPs 7/24
5. Tajas Devrao Tadas,
Aged 30 years, Occ. Mapadi.
R/o Nandgaon, Tah. Hinganghat, Dist. Wardha.
Mapadi License Holder of APMC, Hinganghat. ..Petitioners
-versus-
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032.
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Hinganghat, Tah. Hinganghat
District Wardha. (Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Hinganghat, having office at Hinganghat, Tah.Hinganghat,
District-Wardha, (Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Hinganghat through its Secretary, Tahsil Hinganghat,
District : Wardha (Maharashtra State) ... Respondents.
--------------------------------------------------------------------------------------------------------------------------
Shri Anjan De, Advocate for petitioners.
Ms. K.R.Deshpande, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri S.S.Ghate, Advocate for respondent No.2.
Shri K.R.Lule, Advocate for respondent No.5.
------------------------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.4867 OF 2021
1. Naresh Ganpatrao Mandavkar
Aged 38 years, Occu.: Agriculturist,
R/o Ajada, Tah. Samudrapur, Dist. Wardha,
Director of Vividh Karyakari Seva Society Ajada.
2. Mrs. Indira Gajanan Avachat,
Aged 45 years, Occ. Agriculturist,
R/o Kandhali, Tah. Samudrapur, Dist. Wardha.
Member of Grampanchayat, Kandhali.
WP4731.21 and other connected WPs 8/24
3. Gajanan Bapurao Nighot
Aged 45 years, Occ. Commission Agent.
R/o Ralegaon, Tah Samudrapur, District Wardha.
Commission Agent License Holder of APMC,
Samudrapur.
4. Shalik Jagannath Vaidya,
Aged 55 years, Occ. Business.
R/o Lasanpuer, Tah. Samudrapur, Dist. Wardha.
Trader License Holder of APMC, Samudrapur.
5. Hemant Ramdasji Pahune,
Aged 35 years, Occ. Mapadi.
R/o Mandagaon, Tah. Samudrapur, Dist. Wardha.
Hamal-Mapadi License Holder of APMC, Samudrapur. ..Petitioners
-versus-
1. State of Maharashtra,
Through its Secretary, Department of
Co-operation, Marketing and Textile,
Mantralaya, Mumbai 400 032.
2. The State Co-operative Election Authority,
Maharashtra State, having Office at
Old Central Building, Ground Floor,
Pune 411003 (Maharashtra State)
3. District Co-operative Returning Officer
and District Deputy Registrar, Co-operative
Societies, Samudrapur, Tah. Samudrapur
District Wardha. (Maharashtra State)
4. Assistant Registrar Co-operative Societies,
Samudrapur, having office at Samudrapur,
District-Wardha, (Maharashtra State)
5. Agricultural Produce Market Committee (APMC),
Samudrapur through its Secretary, Tahsil Samudrapur and
District : Wardha (Maharashtra State) ... Respondents.
--------------------------------------------------------------------------------------------------------------------------
Shri Anjan De, Advocate for petitioners.
Ms. K.R.Deshpande, Assistant Government Pleader for respondent Nos.1,3 and 4.
Shri S.S.Ghate, Advocate for respondent No.2.
Shri K.R.Lule, Advocate for respondent no.5.
------------------------------------------------------------------------------------------------------------------
WP4731.21 and other connected WPs 9/24
CORAM : A.S.CHANDURKAR AND SMT. M. S. JAWALKAR, JJ.
THE ARGUMENTS WERE HEARD ON 28.01.2022
THE JUDGMENT IS PRONOUNCED ON : 04.02.2022
JUDGMENT (Per A.S.CHANDURKAR, J.)
Since identical challenges are raised in these writ petitions, they are
being decided together by this common judgment.
2. RULE. Rule made returnable forthwith and heard learned counsel for
the parties.
3. Writ Petition No.4731/2021 has been filed by four petitioners. The
petition no.1 is an elected Executive Committee member of a Co-operative Society
that functions within the jurisdiction of Agricultural Produce Market Committee,
Malkapur. The petitioner no.2 is an elected member of Gram Panchayat, Tighara
within the jurisdiction of the Market Committee. The petitioner nos. 3 and 4 claim
to hold traders license and hamal's license with the Market Committee. The
petitioners claim that they have a right to vote and contest the elections of the
Executive Committee of the concerned Market Committee.
In Writ Petition No.4733/2021 the petitioners no. 1 and 2 are elected
Executive Committee members of Co-operative Societies within the jurisdiction of
Agricultural Produce Market Committee, Khamgaon. The petitioner no.3 is a
member of Gram Panchayat, Ghatpuri within the jurisdiction of the Market
Committee. The petitioner nos. 4 and 5 claim to hold traders license and hamal's
license with the Market Committee.
WP4731.21 and other connected WPs 10/24
In Writ Petition No.4923/2021 the petitioner no.1 is an elected
Executive Committee member of a Co-operative Society within the jurisdiction of
Agricultural Produce Market Committee, Deoli. The petitioner no.2 is an elected
member of Gram Panchayat, Kolona Chore within the jurisdiction of the Market
Committee. The petitioner nos. 3 and 4 claim to hold traders license and hamal's
license with the Market Committee.
In Writ Petition No.4924/2021 the petitioner no.1 is an elected
Executive Committee member of a Co-operative Society within the jurisdiction of
Agricultural Produce Market Committee, Wardha and the petitioner no.2 is an
elected member of Gram Panchayat, Sewagram within the jurisdiction of the
Market Committee. The petitioner nos. 3 and 4 claim to hold traders license and
hamal's license with the Market Committee.
In Writ Petition No.4925/2021 the petitioner no. 1 is an elected
Executive Committee member of a Co-operative Society within the jurisdiction of
Agricultural Produce Market Committee, Sindi. The petitioner no.2 is an elected
member of Gram Panchayat, Khadka within the jurisdiction of the Market
Committee and the petitioner nos.3 and 4 claim to hold traders license and hamal's
license with the Market Committee.
In Writ Petition No.4866/2021 the petitioner no. 1 is an elected
Executive Committee member of a Co-operative Society within the jurisdiction of
the Agricultural Produce Market Committee, Hinganghat, the petitioner no.2 is an
elected member of Gram Panchayat, Dhochi, within the jurisdiction of the Market
Committee, the petitioner no.3 holds a commission agent license and the petitioner
WP4731.21 and other connected WPs 11/24
nos.4 and 5 claim to hold traders license and mapadi license respectively with the
Market Committee.
In Writ Petition No.4867/2021 the petitioner no.1 is an elected
Executive Member of a Co-operative Society within the jurisdiction of the
Agricultural Produce Market Committee, Samudrapur. The petitioner no.2 is a
member of Gram Panchayat, Kandhali within the jurisdiction of the Market
Committee. The petitioner no.3 holds a commission agent license, the petitioner
no.4 holds a trader's license and the petitioner no.5 holds a hamal-mapadi license
with the Market Committee.
4. By these writ petitions the petitioners pray that the State Co-operative
Election Authority (Election Authority, for short) as well as other officers under the
Maharashtra Agricultural Produce Marketing (Development and Regulation) Act,
1963 (for short, 'the MAPM Act') be directed to forthwith complete the elections to
the Executive Committee of the respective Market Committees pursuant to the
election programme as already declared. While seeking this relief the petitioners
have also prayed that it be declared that the judgment in Writ Petition
No.11669/2021 (Vishwanath Baburao Kadam vs. State of Maharashtra and others)
decided on 18.11.2021 at the Aurangabad Bench be declared as not being
applicable to the respective Market Committees who have been arrayed as
respondents herein. By amending the writ petitions a challenge is also raised to
the order dated 22.11.2021 that has been issued by the Election Authority
cancelling the process of finalization of the provisional voters' list and further
directing that the elections to the Executive Committee of the respective Market
WP4731.21 and other connected WPs 12/24
Committees be held after elections of the Primary Co-operative Societies within the
jurisdiction of the respective Market Committees are held.
5. Before considering the challenges as raised, it would be necessary to
refer to earlier adjudication by this Court that has been referred to by the learned
counsel for the parties in support of their respective contentions.
Writ Petition No.2802/2021 (Suresh Maroti Gorale and ors. vs. State of
Maharashtra and ors.) was filed before the Nagpur Bench. The petitioners therein
were members of Primary Agricultural Credit Societies within the jurisdiction of
Agricultural Produce Market Committee, Katol. It was their grievance that without
holding elections of the Managing Committee of such Primary Agricultural Credit
Societies, the election programme of Agricultural Produce Market Committee, Katol
had been declared. It was prayed that the elections to the Executive Committee of
the Market Committee be directed to be held after elections of the Primary
Agricultural Credit Societies were held. During the course of hearing a preliminary
objection was raised to the maintainability of the said writ petition on the ground
that the petitioners had no locus to raise grievance with regard to the elections of
the Market Committee and secondly, the election process of the elections to the
Market Committee had commenced and the last date of submission of nomination
form was 01.09.2021. While hearing the writ petition, the Division Bench upheld
both the said objections and the writ petition was held to be not maintainable as
the petitioners had no locus standi to seek such prayers and as the election process
had already commenced, no interference at that stage was called for. By observing
that the Court did not want to go into the merits of the matter the writ petition
WP4731.21 and other connected WPs 13/24
came to be dismissed.
Writ Petition No.11669/2021 ( Vishwanath Baburao Kadam vs. State of
Maharashtra and others) and other writ petitions were filed before the Aurangabad
Bench by the petitioners who claimed to be the members of Primary Agricultural
Societies that were entitled to participate in the elections of the Market Committee.
It was their grievance that the term of the Managing Committee of the Primary
Agricultural Societies had come to an end and if the elections to the various
Marketing Committees were held, the members of the Primary Agricultural
Societies would be precluded from participating in the election process of those
Market Committees. The State Government through the Ministry of Co-operation,
Marketing and Textile Department submitted before the Court that it would be
desirable and appropriate to first hold elections of Primary Agricultural Societies
before the elections of the Managing Committee of the Market Committees were
held. After noting that out of total 144 Primary Agricultural Societies, the
members/Directors of 126 Societies would not be in a position to participate in the
elections of the Market Committee as their term was over, the Division Bench in
the light of the stand as taken directed that the elections of the Primary
Agricultural Societies be first conducted and thereafter the elections of the Market
Committees be held.
In Writ Petition No.7375/2021 ( Dattu Namdeo Kale vs. State Co-
operative Elections Authority, Maharashtra State and others) decided at the
Principal Seat on 22.11.2021 the decision in Vishwanath Baburao Kadam (supra)
was cited and by adopting that view the elections of Primary Agricultural Societies
were directed to be first conducted and thereafter the elections of the Market
WP4731.21 and other connected WPs 14/24
Committees were directed to be held.
In Writ Petition No.12666/2021( Dattatray Ramrao Shinde and anr. Vs.
State of Maharashtra and others.) filed at the Aurangabad Bench it was found that
the elections to various Primary Agricultural Societies had been declared and the
election process of the Agricultural Produce Market Committee had not
commenced. It was held that since the election process of the Market Committee
had not commenced, the Authorities could proceed to hold the elections of the
Primary Agricultural Societies in a phased manner. The order dated 06.12.2021 in
that writ petition was subsequently corrected on a motion made for speaking to
minutes and reference to the order passed in Suresh Maroti Gorale (supra) was
added in paragraph 3 of that order.
6. In the light of the judgment in Vishwanath Baburao Kadam (supra) the
Election Authority on 22.11.2021 in exercise of powers under Section 14 A (1)(a)
of the MAPM Act read with Rule 3(4) of the Maharashtra Agricultural Produce
Market Committee (Elections of Committee) Rules, 2017 (for short, the Rules of
2017) proceeded to cancel the process of elections of various Market Committees
and observed that independent orders would be passed in the matter of holding
elections of the eligible Primary Multi-Purpose Co-operative Societies.
The petitioners have thus sought to challenge the order dated
22.11.2021 and have also sought a declaration that the judgment of the
Aurangabad Bench in Vishwanath Baburao Kadam (supra) be declared as not
applicable to the Market Committees in question. In other words, the process of
election for the respective Market Committees is prayed to be completed in terms
WP4731.21 and other connected WPs 15/24
of the programme as declared.
7. On 24.11.2021 when Writ Petition Nos. 4731/2021 and 4733/2021
were taken up for admission, an ad-interim order was passed staying the effect and
operation of the order dated 22.11.2021 passed by the Election Authority to the
extent it applied to the respective Market Committees and the Authorities were
directed to proceed with the election process of the Market Committee in
accordance with law. Considering the urgency as sought to be made by the learned
counsel for the petitioners, the learned counsel for the parties sought to place on
record their written notes of arguments to enable expeditious adjudication of the
writ petitions. Since virtual mode of hearing commenced from 17.01.2022 the
parties were permitted to place on record their written notes of arguments. The
written notes of arguments having been placed on record by the contesting parties,
the matters were taken up for adjudication.
8. The principal grounds of challenge raised by the petitioners for seeking
a direction that the Election Authority was not legally justified in cancelling the
elections of the Executive Committee of the Market Committee are that (a) the
Election Authority on 15.11.2021 having published the programme for preparation
and finalization of the voters' list after inviting objections to the provisional voters'
list, it could not have cancelled the elections to the Executive Committee of the
Market Committee as the election process had commenced. It was incorrect on the
part of the Election Authority to contend that the election process would
commence only on finalisation of the voters' list. There was no embargo for
holding elections of Primary Agricultural Societies before holding elections of the
WP4731.21 and other connected WPs 16/24
Executive Committee of the Market Committee. The decision dated 22.11.2021 of
the Election Authority was not a policy decision but the outcome of the judgment in
Vishwanath Baburao Kadam (supra) and (b) that as the order in Suresh Maroti
Gorale (supra) passed on 02.09.2021 refusing to accept the prayer for holding the
elections of Primary Agricultural Societies prior to the elections of the Executive
Committee of the Market Committee was not cited and considered in the case of
Vishwanath Baburao Kadam (supra) the latter adjudication was rendered per
incuriam.
According to the Election Authority, (a) the election process had not
commenced since what was undertaken was the preparation of the provisional
voters' list and the election programme as contemplated by Rule 18 of the Rules of
2017 had not been published. Reliance is sought to be placed on the decisions in
Writ Petition No.4488/2017 ( Hemraj Marotrao Shingne and others vs. Principal
Secretary) decided on 16.01.2018 and Chandrashekhar Shivram Mudkanna vs.
State of Maharashtra 2016 (2) Mh. L. J. 818 and (b) the writ petition in Suresh
Maroti Gorale (supra) having been dismissed as not maintainable, the decision in
Vishwanath Baburao Kadam (supra) was not rendered per incuriam.
The intervenors have supported the stand taken by the Election
Authority and they have relied upon the decision in The State of Goa and anr. vs.
Fouziya Imtiaz Shaikh and anr. (2021) 8 SCC 401.
9. We have gone through the written notes of arguments filed by the
learned counsel for the parties and we have given due consideration to the
respective contentions.
WP4731.21 and other connected WPs 17/24
Point (a) It is undisputed that with regard to each Market Committee
the provisional voters' list was published sometime in November, 2021 and
objections were invited to such provisional voters' list. It is at that stage that the
Election Authority on 22.11.2021 issued the impugned order and cancelled holding
of elections to the Executive Committee of various Market Committees. It would
therefore be first necessary to consider whether "election process" as contended by
the petitioners had actually commenced or that preliminary steps were taken for
progressing towards the actual "election process". The petitioners contend that the
stage of preparation of the voters' list is also a part of the election process and
hence the Election Authority had no jurisdiction to cancel the elections. The
question whether preparation of electoral rolls and its revision is part of "election"
as contemplated by Article 329 (b) of the Constitution of India has been the subject
matter of consideration in various decisions. Reference to two decisions in this
context would suffice. In Lakshmi Charan Sen and others vs. A.K.M. Hassan
Uzzaman (1985) 4 SCC 689 the Constitution Bench of the Hon'ble Supreme Court
observed that preparation and revision of electoral rolls is a continuous process not
connected with any particular election. It observed that it would be difficult,
consistent with such view to hold that preparation and revision of electoral rolls is
part of "election" within the meaning of Article 329(b) of the Constitution of India.
This was reiterated by another Constitution Bench in Indrajit Barua and others vs.
Election Commission of India and others (1985) 4 SCC 722 by referring to the
decision in Lakshmi Charan Sen (supra). It was reiterated that preparation of
electoral rolls was not part of "election" within the meaning of Article 329 (b) of
WP4731.21 and other connected WPs 18/24
the Constitution of India. In Election Commission of India through Secretary vs.
Ashok Kumar and others (2000) 2 SCC 216 it was held by the Hon'ble Supreme
Court that the term "election" occurring in Article 329 of the Constitution of India
would mean and include the entire process from issuance of notification under
Section 14 of the Representation of the People Act, 1951 to the actual declaration
of the results thereafter.
From the aforesaid decisions, it becomes clear that the process of
finalization of voters' list has been held to fall beyond the term "election" insofar as
Article 329(b) of the Constitution of India is concerned. On the same analogy, it
will have to be held in the present case that since the provisional voters' list was
published and objections were invited to that provisional voters' list when the order
dated 22.11.2021 was passed, the actual process of "election" as understood
generally could not be said to have commenced. Perusal of the order dated
22.11.2021 issued by the Election Authority indicates this aspect as it has been
stated therein that the process of calling for objections to the provisional voters' list
was being cancelled by that order. Hence for aforesaid reasons the contention
raised by the petitioners that the election process for electing members of the
Executive Committee of the various Market Committees having commenced, the
Election Authority had no jurisdiction to cancel the elections cannot be accepted.
There is no legal and statutory bar pointed out which precludes the Election
Authority from postponing/cancelling the process of finalization of provisional
voters' list for elections to the Executive Committee of the Market Committee
under the MAPM Act.
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10. Point (b) For considering the question as to whether the decision in
Vishwanath Baburao Kadam (supra) dated 18.11.2021 is rendered per incuriam for
failure to notice and consider the decision Suresh Maroti Gorale (supra), it would
be necessary to consider both the decisions. In Suresh Maroti Gorale (supra) the
petitioners were members of Agricultural Credit Societies who had prayed that the
elections of the Agricultural Credit Societies should be first held before holding
elections of the Managing Committee of Market Committee, Katol. The Division
Bench upheld the preliminary objections raised to the maintainability of the writ
petition by observing that since the petitioners were not voters at the elections of
the Executive Committee of the Market Committee, Katol, they had no locus standi
to seek the reliefs as sought in the writ petition coupled with the fact that the
election process had already begun and 01.09.2021 was the last date of submission
of nomination forms while the elections were scheduled on 03.10.2021. The
aforesaid case was decided on 02.09.2021 thus holding the writ petition to be not
maintainable. The Court in paragraphs 15 and 16 expressly stated that it did not
enter into the merits of the matter and thereafter dismissed the writ petition
finding it to be not maintainable. It is thus clear on a complete reading of the order
dated 02.09.2021 that the writ petition in Suresh Maroti Gorale (supra) was not
entertained since it was not found maintainable. The Court therefore did not enter
into the merits of the prayers made therein namely, the request to hold elections of
the Primary Agricultural Societies first before holding the elections of the Executive
Committee of the Market Committee, Katol.
In Vishwanath Baburao Kadam (supra) decided on 18.11.2021 the
Court noticed that out of 144 Primary Agricultural Societies, the members of about
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126 such Societies would not be able to participate in the elections as the term of
those Societies had come to an end. In paragraph 10 of the said decision it was
observed as under :
10. "We can understand if the few Primary Agricultural Societies
are not in position to participate in the elections and for that
purpose the elections of the APMC may not be stalled but here
the majority of the Primary Agricultural Societies
(Directors/members) would not be in a position to participate in
the elections as is illustrated in case of Beed. Out of 144 Primary
Agricultural Societies, the members/Directors of 126 societies
would not be in a position to participate in the elections because
the term is over".
Thereafter considering the stand taken by the State Government of deciding to
conduct elections of Primary Agricultural Societies prior to elections of Market
Committees, directions to do so were issued.
From the aforesaid adjudication, it is clear that the Court was of the
view that since about 126 Societies out of 144 Societies through their members
would not be in a position to participate in the elections of the Market Committee
as their elective term was over and in the light of the stand taken by the State
Government, it was directed that the elections of the Primary Agricultural Societies
be first conducted.
11. We are not in a position to accept the contention urged on behalf of the
petitioners that since the order passed in Suresh Maroti Gorale (supra) was not
considered by the Court in Vishwanath Baburao Kadam (supra), the latter
judgment is rendered per incuriam. As stated above, the writ petition preferred by
Suresh Maroti Gorale and others was not entertained for want of locus of the
petitioners therein. Even if that decision was not cited before the Aurangabad
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Bench, the same would not have any bearing on the adjudication in Vishwanath
Baburao Kadam (supra) wherein absence of representatives of 126 Societies out of
144 Societies primararily weighed with the Court while deciding those
proceedings. Since the Court in Suresh Maroti Gorale (supra) expressly stated that
it had not entered into the merits of the prayers made therein as it found that the
writ petition itself was not maintainable, we do not find that said adjudication
would render the judgment in Vishwanath Baburao Kadam (supra) per incuriam.
In that view of the matter, we do not find that the petitioners have any legal basis
to urge that the latter decision in Vishwanath Baburao Kadam (supra) was
rendered per incuriam. In the passing we may note that in Dattatraya R.Shinde
(supra) decided on 06.12.2021 the position has been clarified by observing in
paragraphs 3 and 4 as under :
"3. Mr.Dighe, learned counsel for respondents No.2 and 5
placed on record the order dated 24.11.2021 in Civil
Application No.1860 of 2021 and Writ Petition No.4731 of
2021 of the Division at Nagpur the judgment dated 2 nd
September, 2021 in Writ Petition No.2802 of 2021 and
submitted that in the said cases election programme was
declared. However, as observed in the present case, elections
of Primary Agricultural Societies are to commence in phase
wise manner and elections of APMC has not been declared as
yet and election process is not initiated. Even voters list is not
finalised. In most of the Agricultural societies, Administrative
Board / Authorized Officer are appointed and managing
Committee's term is not extended.
4. In Writ Petition No.11669 of 2021 and other connected
writ petitions, decided by this Court under order dated 18 th
November, 2021, it was brought to our notice that in none of
the matters, the election programme of APMCs was declared.
Even voters lists were not finalized. As the election programme
for the election of APMCs was not declared, hence we
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entertained the petitions and in the matters where the election
programmes were declared, the same were dismissed by
passing separate orders".
These observations make the position amply clear and nothing further is required
to be said in the matter.
12. Besides, the aforesaid, another vital aspect that cannot be ignored is
that during the pendency of the proceedings on 21.01.2022 the Joint Secretary
(Marketing), Co-operation, Marketing and Textile Department has issued a fresh
order in exercise of power conferred by Section 59 of the MAPM Act. By this order
the Executive Committees of Market Committees that were functioning and against
whom there was no actual enquiry undertaken were permitted to so continue by
extending their term till formation of a new Executive Committee or for a period of
three months from 23.01.2022, whichever occurred earlier. The rider put was that
no policy decision could be taken in the extended period except with prior
permission of the State Government. In other words, for a period of three months
from 23.01.2022, the Executive Committees of various Market Committees that
were functioning have been given extension for a period of three months. Thus,
there is no vacuum now remaining nor is there any urgency to hold elections to the
Executive Committee of such Market Committees. This subsequent order dated
21.01.2022 is not under challenge in these writ petitions. The State Government
being empowered to issue such directions under Section 59 of the MAPM Act, the
same would be another reason for not accepting the prayers made by the
petitioners.
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13. Another vital aspect that requires consideration is that the right to
participate in any electoral process is purely a statutory right. There is no
involvement of any common law right in the matter. In Ashok Kumar and others
(supra) it has been clarified that any action taken or orders issued by the Election
Commission are open to judicial review on the well-settled parameters permitting
judicial review of decisions of statutory bodies such as on a case of malafides or
arbitrary exercise of power being made out or the statutory body having acted in
breach of law.
This position has been reiterated in Fouzia Imtiaz Shaikh and anr.
(supra) by observing that judicial review of an order of the State Election
Commission is available on grounds of review of administrative orders.
There is no material on record to hold that the issuance of the order
dated 22.11.2021 is actuated by any malafides or is the outcome of any arbitrary
exercise of power. Since the provisional voters' list has been published, the
election process by issuance of notification for conduct of elections under Rule 18
of the Rules of 2017 has not commenced.
14. Hence for all these reasons and in the absence of breach of any
statutory provision, we do not find that the petitioners have made out any case for
interference in writ jurisdiction. In absence of breach of any legal right, there
would be no scope to interfere with the decision of the Election Authority which
has merely cancelled the stage of preparation of the provisional voters' list with a
view to hold elections of Primary Agricultural Societies before conducting elections
to the Executive Committee of the Market Committees.
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15. The writ petitions therefore stand dismissed. All civil applications are
also disposed of. Rule stands discharged with no order as to costs.
(SMT. M.S.JAWALKAR, J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
04.02.2022 13:25
