Bombay High Court
Vishal Vishwanath Pratap Patil ... vs The State Of Maharashtra And ... on 4 May, 2023
Bench: Mangesh S. Patil, Arun R. Pedneker
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8472 OF 2015
WITH
CIVIL APPLICATION NO.6683 OF 2016
1. Rajkumar s/o Venkatrao Kalme,
Age: 50 Years, Occ.: Agri.,
R/o.: Sakhra, Post Murud Akola,
Tq. & District: Latur
2. Sadashiv s/o Sopan Gavhane,
Age: 42 Years, Occ.: Agri.,
R/o.: Salgara, Post Bori (Bk),
Tq. & Dist.: Latur
3. Bhairavnath s/o Anandrao Pisal,
Age: 40 Years, Occ.: Agri,
R/o: Pimpalgaon Amba,
Post Tandulja, Tq. & Dist.: Latur
4. Sahebrao s/o Kondiba Kshirsagar,
Age: 45 Years, Occ.: Agri.,
R/o.: Gadwad, At Post Gadwad,
Tq. & Dist.: Latur .. Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary,
in the Department of Agricultural
and Marketing, Mantralaya,
Mumbai- 32
2. The District Collector,
Latur, Tq. and Dist.: Latur
3. The District Deputy Registrar /
Returning Officer,
Cooperative Societies, Latur
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4. The Agricultural Produce Market
Committee at Latur,
through its Secretary
5. Manoj s/o Panditrao Patil,
Age: 40 Years, Occ.: Agri.,
R/o.: Umerga, Post: Bori,
Tq. and Dist.: Latur
6. Tukaram s/o Dhondiba Ade,
Age: 60 Years, Occ.: Agri.,
R/o.: Maharana Pratap Nagar,
Post.: Kasarkheda,
Tq. & Dist.: Latur .. Respondents
...
Advocate for Petitioners: Mr. Amit A. Mukhedkar
Addl.GP for Respondents No.1 to 3:
Mr. S. B. Yawalkar
Advocate for Respondent No.4: Mr. B. N. Patil
Advocate for Respondent No.5: Mr. D. J. Choudhary
Advocate for Applicant CA/6683/2016:
Mr. A. G. Ambetkar
...
AND
...
WRIT PETITION NO.6027 OF 2015
1. Vishal Vishwanath s/o Pratap Patil,
Aged 25 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
2. Venkat s/o Hariba Hajare,
Aged 50 years, Occu: Agril.,
R/o. Niwali, Tq. And Dist. Latur
3. Latabai Netaji Shinde,
Aged 40 years, Occu: Household,
R/o. Niwali, Tq. and Dist. Latur
4. Appasaheb s/o Narayan Londhe,
Aged 32 years, Occu : Agril.,
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R/o. Niwali, Tq. and Dist. Latur
5. Suadagar s/o Shankar Mane,
Aged 30 years, Occu: Agri.,
R/o. Niwali, Tq. and Dist. Latur
6. Shobha Shesherao Padule,
Aged 49 years, Occu: Household,
R/o. Niwali, Tq. and Dist. Latur
7. Suresh s/o Murlidhar Mayande,
Aged 40 years, Occu : Agril.,
R/o. Niwali, Tq. and Dist. Latur
8. Simabai w/o Vilasrao Kshirsagar,
Aged 38 years, Occu : Household,
R/o. Niwali, Tq. and Dist. Latur
9. Sau. Mangalbai w/o Pratap Patil,
Aged 52 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
10. Surekha w/o Subhash Rasal,
Aged 40 years, Occu : Agril.,
R/o. Niwali, Tq. and Dist. Latur
11. Anita Balaji Divate,
Aged 38 years, Occu.: Agril.,
R/o. Niwali, Tq. and Dist. Latur
12. Rajabhau s/o Maruti Rasal,
Aged 43 years, Occu : Agril.,
R/o. Niwali, Tq. and Dist. Latur
13. Sakhubai Vishnu Sagar,
Aged 52 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
.. Petitioners
Versus
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1. The State of Maharashtra,
Through the Secretary,
In the Department of Agricultural
Marketing, Mantralaya,
Mumbai-32
2. The District Collector,
Latur, Tq. and Dist. Latur
3. The District Deputy Registrar
Cooperative Societies, Latur &
Returning Officer
4. The Agricultural Produce Market
Committee, Latur,
Through its Secretary
5. Awdabai w/o Bharat Sirsath,
Aged 42 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
6. Hanmant s/o Vishwanath Jagdale,
Aged 48 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
7. Gopal s/o Mahadeo Dhokle,
Aged 32 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
8. Ramkishan s/o Shivaji Mane,
Aged 38 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
9. Padminbai Niloba Mayande,
Aged 50 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
10. Suresh s/o Dhondiba Londhe,
Aged 37 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
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11. Lalit s/o Digambar Shinde,
Aged 42 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
12. Chhaya Vaijnath Kshirsagar,
Aged 38 years, Occu: Agril.,
R/o. Niwali, Tq. and Dist. Latur
.. Respondents
...
Advocate for Petitioners: Mr. A. N. Irpatgire
Addl.GP for Respondents No.1 to 3:
Mr. S. B. Yawalkar
Advocate for Respondent No.4: Mr. B. N. Patil
Advocate for Respondent No.6:
Mr. Shrikant Y. Patil
Advocate for Respondents No.7, 8 & 11:
Mr. Amit A. Mukhedkar
...
AND
...
WRIT PETITION NO.7952 OF 2015
1. The Gram Panchayat Bolegaon (Bk.),
Tq. Shirur-Anantpal, Dist. Latur,
Through its Up-Sarpanch,
Prabhakar s/o Nivruttirao Bandgar,
Aged 47 years, Occu: Agril.,
R/o. Bolegaon, Tq. Shirur-Anantpal,
Dist. Latur
2. The Gram Panchayat Shend,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Sarpanch,
Bapurao s/o Satish Bhinge,
Aged 36 years, Occu: Agril.,
R/o. Shend, Tq. Shirur-Anantpal,
Dist. Latur
3. The Gram Panchayat Karewadi,
Tq. Shirur-Anantpal, Dist.Latur,
Through its Member,
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Mahipal s/o Venkatrao Patil,
Aged 40 years, Occu: Agril.,
R/o. Karewadi, Tq. Shirur-Anantpal,
Dist. Latur
4. The Gram Panchayat Halki,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Dhondiram s/o Yadavrao Dhok,
Aged 45 years, Occu: Agril.,
R/o. Halki, Tq. Shirur-Anantpal,
Dist. Latur
5. The Gram Panchayat Sakol,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Dnyonaba s/o Pancharinath Vhane,
Aged 28 years, Occu: Agril.,
R/o. Sakol, Tq. Shirur-Anantpal,
Dist. Latur
6. The Gram Panchayat Tipral,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Prayagbai Shivaji Birajdar,
Aged 37 years, Occu: Household,
R/o. Tipral, Tq. Shirur-Anantpal,
Dist. Latur
7. The Gram Panchayat Ghu. Sangvi,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Satish s/o Chandrapkash Patil,
Aged 40 years, Occu: Agril.,
R/o. Ghu. Sangvi, Tq. Shirur-Anantpal,
Dist. Latur
8. The Gram Panchayat Talegaon-Deoni,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Sarpanch
Pandit s/o Shesherao Shinde,
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Aged 28 years, Occu: Agril.,
R/o. Talegaon-Deoni,
Tq. Shirur-Anantpal, Dist. Latur
9. The Gram Panchayat Hippalgaon,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Dilip s/o Tukaram Gaddime,
Aged 47 years, Occu: Agril.,
R/o. Hippalgaon, Tq. Shirur-Anantpal,
Dist. Latur
10. The Gram Panchayat Sumthana,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Raju s/o Baburao Warkad,
Aged 40 years, Occu: Agril.,
R/o. Sumthana, Tq. Shirur-Anantpal,
Dist. Latur
11. The Gram Panchayat Honmal,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Mashesh s/o Viresh Vyavhare,
Aged 25 years, Occu: Agril.,
R/o. Honmal, Tq. Shirur-Anantpal,
Dist. Latur
12. The Gram Panchayat Shivpur,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Ashok s/o Madhav Lavande,
Aged 40 years, Occu: Agril.,
R/o. Shivpur, Tq. Shirur-Anantpal,
Dist. Latur
13. The Gram Panchayat Yerol,
Tq. Shirur-Anantpal, Dist. Latur,
Through its Member,
Anita w/o Nandkumar Tambolkar,
Aged 35 years, Occu: Agril.,
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R/o. Yerol, Tq. Shirur-Anantpal,
Dist. Latur
14. The Gram Panchayat Lakkad-Jawalga,
Tq.Shirur-Anantpal, Dist. Latur,
Through its Sarpanch,
Hirkanbai w/o Manohar Kamble,
Aged 50 years, Occu: Agril.,
R/o. Lakkad-Jawalga,
Tq. Shirur-Anantpal, Dist. Latur
.. Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary,
In the Department of Agricultural
Marketing, Mantralaya,
Mumbai-32
2. The District Collector,
Latur, Tq. and Dist. Latur
3. The District Deputy Registrar
Cooperative Societies, Latur
4. The Assistant Registrar,
Co-operative Societies, Nilanga /
The Returning Officer,
Agricultural Produce Market
Committee, Shirur-Anantpal,
Tq. Shirur-Anantpal, Dist. Latur
5. The Agriculture Produce Market
Committee, Shirur-Anantpal,
Dist. Latur
.. Respondents
...
Advocate for Petitioners: Mr. Ajinkya Reddy
Addl.GP for Respondents No.1 to 4:
Mr. S. B. Yawalkar
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Advocate for Respondent No.5:
Mr. Shrikishan S. Shinde
...
AND
...
WRIT PETITION NO.7950 OF 2015
1. The Gram Panchayat, Aurad Shahajani,
Tq. Nilanga, Dist. Latur,
Through its Member,
Wajiuddin Riyajuddin Saraf,
Aged 35 years, Occu: Agril.,
R/o. Aurad-Shahajani, Tq. Nilanga,
Dist. Latur
2. The Gram Panchayat, Takli,
Tq. Nilanga, Dist. Latur,
Through its Member,
Maruti s/o Kishanrao Biradar,
Aged 40 years, Occu: Agril.,
R/o. Takli, Tq. Nilanga,
Dist. Latur
3. The Gram Panchayat, Pirupatelwadi,
Tq. Nilanga, Dist. Latur,
Through its Member,
Balikabai Maruti Irlapalle,
Aged 38 years, Occu: Agril.,
R/o. Pirupatelwadi, Tq. Nilanga,
Dist. Latur
4. The Gram Panchayat, Sawri,
Tq. Nilanga, Dist. Latur,
Through its Member,
Saraswati w/o Kishor Sagre,
Aged 40 years, Occu: Agril.,
R/o. Sawri, Tq. Nilanga,
Dist. Latur .. Petitioners
Versus
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1. The State of Maharashtra,
Through the Secretary,
In the Department of Agricultural
Marketing, Mantralaya,
Mumbai-32
2. The District Collector,
Latur, Tq. and Dist. Latur
3. The District Deputy Registrar
Cooperative Societies, Latur
4. The Assistant Registrar,
Co-operative Societies, Ausa /
The Returning Officer,
Agricultural Produce Market
Committee, Aurad-Shahajani,
Tq. Nilanga, Dist. Latur
5. The Agriculture Produce Market
Committee, Aurad-Shahajani,
Tq. Nilanga, Dist. Latur .. Respondents
...
Advocate for Petitioners:
Mr. Ajinkya Reddy
Addl.GP for Respondent/State:
Mr. S. B. Yawalkar
...
AND
...
WRIT PETITION NO.10694 OF 2015
1. Pandharinath S/o Suryabhan Hulsure,
Age 40 years, Occu. Agriculture,
R/o. Tad Mugali, Tq. Nilanga,
Dist. Latur
2. Samiyoddin S/o Jainulaboddin Deshmukh,
Age 55 years, Occu. Agriculture,
R/o Halgara, Tq. Nilanga,
Dist. Latur
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3. Mohan S/o Laxmanrao Bhandare,
Age 55 years, Occu. Agri.,
R/o Aurad (Shahajani), Tq. Nilanga,
Dist. Latur .. Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary,
in the Department of Agricultural
and Marketing, Mantralaya,
Mumbai-32
2. The District Deputy Registrar
Cooperative Societies, Latur
3. The Assistant Registrar /
Returning Officer,
Co-operative Societies, Ausa,
Tq. Ausa, Dist. Latur
4. The Agricultural Produce Market
Committee at Aurad Shahajani,
Tq. Nilanga, Dist. Latur,
Through its Secretary .. Respondents
...
Advocate for Petitioners:
Mr. Shrikrishan S. Shinde
Addl.GP for Respondent/State:
Mr. S. B. Yawalkar
...
CORAM: MANGESH S. PATIL &
ARUN R. PEDNEKER, JJ.
Reserved on: 17.03.2023
Pronounced on: 04.05.2023
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JUDGMENT (Per Arun R. Pedneker, J.):
1. Heard.
2. We are called upon to answer the
reference made by the learned Single Judge on the
following issues:-
""I. Whether the erstwhile/former
(past) members of gram panchayat
be allowed to contest elections
to membership of APMC when they
are not members of gram panchayat
on the date of polling, taking
into account provisions of section 13 (1)
(a) (ii) and proviso to section 15 of the
Agriculture Produce Market Committee
(Development and Regulation) Act, 1963 ?
II. Whether despite extinguishment of
membership of gram panchayat on the date
of polling for elections to APMC,
erstwhile/former (past) members be deemed
to be voters only for the reason,
them being in voters' list
prepared pursuant to Rule 36 of the
Agriculture Produce Market Committee
Rules, 1967 Rules, and should they be
allowed to vote ?
III. Whether the persons constituting
gram panchayat on the date of polling of
elections to APMC would not be entitled
to vote in said elections in their
capacity as gram panchayat members
forming village panchayat
constituency for four members to be
elected from that constituency to APMC
in given/present situation and
whether in such a case, procedural rules
should not be required to be flexed
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and interpreted by harmonious,
reconciliatory approach and adaptation of
the same to the present/given situation,
having regard to object, intention and
purpose underlying main provisions
of Agriculture Produce Market
Committee (Development and
Regulation) Act, 1963 ?"
IV. Whether in the present/given
situation village panchayat
constituency can be by-passed and kept
away from having its representatives
elected to the posts of Chairman and/or
Vice Chairman ?"
Brief History
3. The object of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963 is to develop and regulate
the marketing of agricultural and certain other
produce in the market areas to be established in
the State and to confer upon the market committees
powers for the purposes of connecting with such
markets and to establish market fund for the
purpose of the market committees. The Act
provides for securing more assured regulation of
marketing the agricultural and also certain other
produce in market areas and the markets to be
established in the State. The Act ensures
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agriculturists in any part of the State the
benefit of marketing their produce in market. The
Act is intended to secure fair price to the
agriculturists for his produce. The object of the
Act is to protect sellers of agricultural produce
who are mostly rural people and who are
unorganised in their selling activities.
4. The market committee is to be looked
primarily by 15 agriculturists, who are residing
in the area of operation of the agricultural
market committee. Of the 15 agriculturists, 11
shall be elected by members of the managing
committees of the Agricultural Credit Societies
and Multipurpose Co-operative Societies
functioning in the market area (hereinafter
referred to as "the Societies") and 4 shall be
elected by members of village panchayats
functioning in the market area. Two members are
elected from the traders and commission agent
holding license to operate in other market area.
One member is elected from the Hamals and Weighmen
operating as such in the market area.
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5. The composition of the market committee
are from all the stakeholders in the functioning
of the market.
6. The present questions of law formulated
revolve around the category covered under Section
13(1)(a)(i) & (ii) of the Maharashtra Agricultural
Produce Marketing (Development and Regulation)
Act, 1963. As noted above, 11 agriculturists are
elected from the societies and four agriculturists
are to be elected by the members of village
panchayats functioning in the market area.
However, since the term of the societies and the
village panchayats is for a specified period there
are situations where the elected members of the
societies and the village panchayats who are the
voters of the APMC, cease to be the members of the
societies and the panchayats as on the date of the
poll as the APMC, as new village panchayat members
and committee members of the societies are elected
by virtue of expiration of the term of the
societies and the panchayats. However, in terms of
Section 15, if any voter contests elections as a
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representative of a constituency and if the person
holding office ceases to be the representative of
the constituency, which he represents, his term
comes to an end being co-terminous with the tenure
of such constituency. As such, a person may be in
the voters list at the time of elections and, so
also, may contest elections but before he enters
into the office his terms comes to an end, and the
whole exercise of electing him becomes an exercise
in futility. The learned Single Judge was faced
with this situation and also the various
pronouncements of this court, wherein there was no
concurrence on the issue.
The learned Single Judge, thus, referred
these matters to the larger bench and,
accordingly, these matters are placed before us by
the administrative order.
7. After referring the above questions of
law to a larger bench, the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963 as well as the Rules framed
thereunder have undergone substantial change. Rule
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36 of the Maharashtra Agricultural Produce
Marketing (Development and Regulation) Rules,
1967, which forms the basis of the voters list is
deleted. The Maharashtra Agricultural Produce
Market Committee (Election to Committee) Rules,
2017 are also enacted.
8. The relevant provisions required to be
noted to deal with issues at hand. Section 13 of
the Maharashtra Agricultural Produce Marketing
(Development and Regulation) Act, 1963 is relevant
and reads as under :-
"13. Constitution of Market Committees
(1) Subject to the provisions of sub-
section (2) every Market Committee shall
consist of the following members,
namely:-
(a) "fifteen agriculturists residing in
the market area (being persons who are
not less than twenty one years of the age
on the date specified, from time to time,
by the State Co-operative Election
Authority, if required with the help of
the Collector or the District Deputy
Registrar, as the case may be, in this
behalf), as specified below:-;
(i) eleven (of which, two shall be women,
one shall be a person belonging to Other
Backward Classes and one shall be a
person belonging to De-notified Tribes
(Vimukta Jatis) or Nomadic Tribes) shall
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be elected by members of the Managing
Committees of the Agricultural Credit
Societies and Multi-Purpose Co-operative
Societies (within the meaning of the
Maharashtra Co-operative Societies Act,
1960 and the rules made thereunder) which
disburse the crop loan to its members,
functioning in the market area:
Provided that, where the Market Committee
is situated in Tribal areas, one person
belonging to the Scheduled Tribes shall
be elected in place of the election of
the person belonging to the De-notified
Tribes (Vimukta Jatis) or Nomadic Tribes
as aforesaid; and
(ii) four (of which, one shall be a
person belonging to the Scheduled Castes
or Scheduled Tribes and one shall be a
person belonging to Economically Weaker
Section), shall be elected by members of
village panchayats functioning in the
market area;
(b) two shall be elected by traders and
commission agents, holding licences for
not less than two years to operate as
such in the market area];
(b-1) one member shall be elected by
hamals and weighmen operating as such in
the market area;
[(c) * * *];
..."
* Rule 36 of the Maharashtra
Agricultural Produce Marketing
(Development and Regulation) Rules, 1967
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prior to the deletion by Notification
dated 16.12.2017, reads as under:-
"36. Voters' list.
(1) The Collector shall call upon the District Deputy
Registrar of Cooperative Societies to prepare and
furnish to him a list of members of the Managing
Committees of the Agricultural credit societies and
the multipurpose cooperative societies and call upon
the Block Development Officer to prepare and furnish
to him a list of members of the Village Panchayat's
showing distinctly the members belonging to the
Scheduled Caste and Scheduled Tribes functioning in
the market area and the market committee to prepare
and furnish to him the list of traders and hamals and
weighmen licenced by the committee within such time
as may be specified by him. Thereafter, the Collector
shall cause to be prepared separately for each of the
constituencies a voters list for holding the
elections to the market committees:
Provided that where a person is qualified to
vote from traders constituency or from Hamals and
weighmens constituency his name shall appear in the
respective register maintained by the market
committee at least 3 months before the preparation of
such lists.
Provided further that, in respect of the Market
Committees, whose elections are to be held by the
District Deputy Registrar, under clause (a) of sub-
section (1) of section [14] of the Act, the District
Deputy Registrar shall cause such list to be
prepared.
(2) Every such list shall be revised before general
election at least six months before the date on which
the term of the market committee is due to expire:
Provided that the Collector or, the District Deputy
Registrar, as the case may be, may direct the
revision of such list also at any other time before
any general election is due.
(3) The voters list for Cooperative societies
constituency shall be prepared societywise. The
voters list for village panchyats constituency shall
be prepared panchayatwise, indicating the details
regarding members belonging to the Scheduled Caste
and Scheduled Tribes, etc. Every list of voters for
all the constituencies mentioned in sub-rule (1) of
rule 35 shall provide, in alphabetical order, the
name, age, residence and the category of the voters
to which he belongs.
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(4) -----------
(5) -----------
(6) ...
...
(7) At the time of publishing the list of voters a
notice shall be published in like manner calling upon
persons entered in the list to lodge in the manner
herein prescribed any objection that they have to
make to the list as published, and upon persons
claiming to be entered in the list, to lodge their
claim in the manner herein prescribed.
(8) ...
(9) ...
(10) The Collector or the District Deputy Registrar,
as the case may be, after hearing the evidence, if
any, adduced on behalf of the parties and after
further inquiry, if any shall pass order on the claim
or objection, and the order of the Collector or the
District Deputy Registrar, as the case may be,
relating to such claim or objection shall be final.
(11) The Collector or the District Deputy Registrar,
as the case may be, shall cause the lists to be
amended in accordance with the orders passed under
sub-rule (10) and shall cause them to be published
finally in Marathi in such manner as he may deem fit.
(12) If, after the final publication of the list of
votes, under sub rule (11), the Collector or the
District Deputy Registrar, as the case may be, on
application or otherwise, is satisfied after such
inquiry as he deems fit that any entry or entries in
the list is or are erroneous or defective in any
particular respect, the Collector or the District
Deputy Registrar, as the case may be, may cause a
list of amendments to be prepared; and thereupon the
provisions of sub-rule (3) to (11) shall apply in the
case list in the like manner as they apply in the
case of the list of voters.
(13) Copies of such final lists including the final
list of amendments and additions shall be available
for inspection and sale in whole or in part in the
offices of the Collector, the Market Committee and
the Village Panchayat concerned or at any other place
as the Collector or the District Deputy Registrar, as
the case may be, may specify in this behalf.
21 wp 8472.2015+
(14) The final list as also the final list of
amendments shall be republished under sub-rule (11)
and shall remain in force and continue in operation
as the list of voters for the purpose of any bye-
election, until it is revised as provided by this
rule.
(15) Any persons whose name is not entered in the
final list of voters as republished under sub-rule
(14) may at any time but not later than 3 days before
the last date for nomination apply to the Collector
or the District Deputy Registrar, as the case may be,
for inclusion of his name in the list.
(16) On receipt of the application under sub-rule
(15) the Collector or the District Deputy Registrar,
as the case may be, shall, if satisfied that the
applicant is entitled to have his name entered in the
list, direct his name to be entered in the list and
cause an amendment to the list to be prepared; and
thereupon the provisions of sub-rules (13) and (14)
shall mutatis mutandis apply to such amendments."
** By notification dated
16.12.2017, Rules 36 to 40 of the
Maharashtra Agricultural Produce
Marketing (Development and Regulation)
Rules, 1967 along with other rules were
also deleted and they are as under:-
"3. Rules, 35, 35A, 35AA, 35A1A, 35B, 35BB, 36 to 40,
40A, 41, 41A, 41B, 41C, 41D, 41E, 41F, 43 to 54, 54A,
55 to 60, 60A, 60B, 60C, 61, 61A, 61B, 62 to 71, 71A
and 72 to 90 of the principal Rules shall be
deleted."
By notification dated 18.12.2017, the
Maharashtra Agricultural Produce Market
Committee (Election to Committee) Rules,
2017, are enacted. The relevant rules 5,
6, 7 and 8 read as under:-
"5. Preparation of list of voters
22 wp 8472.2015+
(1) For the purpose of electing fifteen
agriculturists, two members to be elected
by traders and commission agents and one
member to be elected by hamals and
weighmen as provided by clauses (a), (b)
and (b-1) of sub-section (1) of section
13 of the Act, every market area shall
consists of,-
(A) Co-operative Societies' Constituency;
(B) Village Panchayat's Constituency;
(C) Trader's Constituency; and
(D) Hamals and Weighmen's Constituency.
(2) Each such Constituency shall consist
of the whole of the Market area.
(3) For the purpose of electing twelve
agriculturists, five representatives to
be elected by Traders and Commission
Agents as provided by sub-clauses (i) and
(ii) of Clause (a) of sub-section (1A) of
section 13 of the Act, every market area
shall consists of,-
(A) Agriculturists Constituency;
(B) Trader's and Commission Agents
Constituency.
(4) For the purpose of electing fifteen
agriculturists, two members to be elected
by traders and commission agents and one
member to be elected by hamals and
weighmen as provided by sub clauses (i).
(ii), (iii) and (iv) of clause (c) of
sub-section (1B) of section 13 of the
Act, every market area shall consists of-
(A) Agriculturists Constituency;
(B) Trader's Constituency;
(C) Hamals and Weighmen's Constituency;
6. Preparation of voters' list
23 wp 8472.2015+
(1) The District Election Officer shall
call upon the District Deputy Registrar
of Co-operative Societies to prepare and
furnish to him a list of members of the
Managing Committees of the Agricultural
Credit Societies and the Multipurpose Co-
operative Societies and call upon the
Block Development officer to prepare and
furnish to him a list of members of the
Village Panchayats showing distinctly the
members belonging to the Scheduled Caste
and Scheduled Tribes functioning in the
market area before 180 days of expiry of
term of the Market Committee or within
such time as may be specified by him. The
District Election Officer shall provide
or cause to provide, a list of members of
the Managing Committees of the
Agricultural Credit Societies and the
Multipurpose Co-operative Societies as
received from the District Deputy
Registrar and a list of members of the
Village Panchayat's as received from the
Block Development Officer, to the
Secretary of the APMC for preparation of
primary voters list for election to the
concerned Constituency.
..
On receipt of such lists, the
District Election Officer shall prepare a
voters list separately for each of the
Revenue Divisions and every such list
shall be published on the notice board of
the respective offices of District
Election Officer, the District Deputy
Registrar of the Co-operative Societies
and the office of the Collector of the
respective districts in the respective
Revenue Division and in any other manner
as District Election Officer may deem
fit.
24 wp 8472.2015+
(1B) For the purposes of electing
the representatives of the agriculturists
under sub-clauses (i), (ii), (iii) and
(iv) of clause (c) of sub-section (1B) of
section 13 of the Act, the concerned
Collector shall call upon the concerned
District Deputy Registrar of Co-operative
Societies, to prepare the voter's list as
per the constitution of the Divisional or
Regional Market Committee.
On receipt of such lists, the
concerned Collector shall prepare a
voters list separately for each of the
district and taluka and every such lists
shall be published on the notice board of
the respective offices of the concerned
Collector and the concerned District
Deputy Registrar of Co-operative
Societies.
(2) within thirty days of receipt of list
from the District Election Officer, a
provisional voters list in Form 4 shall
be prepared by the Secretary of the
Market Committee. The voters list for Co-
operative Societies Constituency shall be
prepared society-wise.
The voters list for Village
Panchayats Constituency shall be prepared
Village Panchayat-wise, indicating the
details regarding members belonging to
the Scheduled Caste and Scheduled Tribes,
etc.
..
Provided that, in case of the Market
Committee where the elections could not
be held before the expiry of the term of
the Committee due to unforeseen
situations or any other reason, a
provisional list of the voters shall be
prepared, on the basis of the date fixed
by the State Co-operative Election
Authority:
25 wp 8472.2015+
Provided also that, the provisional
voters list of the Market Committee on
which an Administrator or Board of
Administrators is appointed under second
proviso of sub- section (2) of section
13, section 15A or section 45 of the Act,
shall be prepared on the bass of the date
fixed by the State Co-operative Election
Authority.
...
7. Claims and objections to the
provisional voters list
(1) When the provisional voters list is
published for inviting claims and
objections, any omission or error in
respect of name or address or other
particulars in the list may be brought to
the notice of the concerned District
Election Officer in writing by any person
whose name appears in provisional list of
the Market Committee or by any
agriculturist or any person who claims to
be eligible for contesting the election
to Committee during office hours, within
ten days from the date of publication of
the provisional voters list.
(2) Every claim or objection shall be in
writing and state the grounds on which
the claim is based or the objection is
raised, as the case may be, and may
accompany with the proof thereof, if any.
(3) The District Election Officer shall,
or as directed by the State Co-operative
Election Authority, after making such
enquiries as deem necessary in this
behalf, consider each claim or objection,
and give his decision thereon in writing
to the persons concerned within ten days
from the last date prescribed for
26 wp 8472.2015+
receiving the claims and objections.
Thereafter final voters list shall be
published within the period of fifteen
days from the last date prescribed for
receiving the claims and objections. The
list finalized by the District Election
Officer after deciding all claims and
objection shall be final list of voters.
(4) The copies of the final list of
voters in Form 5 shall be displayed on
the notice board of the District Election
Officer and also on the notice board of
the Market Committee at least ten days
before the declaration of the election
programme and in no case later than
fifteen days from the finalization of
claims and objections.
(5) ...
8. Right to vote
(1) Every person whose name is entered
in the final voters list of respective
constituency shall be entitled to vote in
that constituency:
Provided that, no person shall vote at
any election in any constituency, if he
is subject to any disqualification under
the law for the time being in force.
(2) No person shall vote at any
election, if he is confined in a prison
whether under a sentence of imprisonment
or otherwise or is in lawful custody of
the police.
Provided that, nothing in this sub-rule
shall apply to a person who is subjected
to preventive detention under any law for
the time being in force.
27 wp 8472.2015+
(3) Subject to any disqualification
incurred by a person, the voters lists
published finally under sub-rules (3) of
rule 7 shall be conclusive evidence for
the purpose of determining whether any
person is qualified to vote, or as the
case may be or is not qualified to be
elected at any election.
Provided that, any candidate contesting
election under clause (a) of sub-section
(1) of section 13 shall not be considered
to be disqualified for the reason that
his name does not appear in the voters'
list."
** Thereafter on 07.02.2023,
following amendment was brought up in
Rule 7 of the Maharashtra Agricultural
Produce Market Committee (Election to
Committee) Rules, 2017, Sub-rule 5 was
added as under:-
"(5) In case of newly elected
committee of the Agricultural Credit
Societies, Multi-purpose Co-operative
Societies and Village Panchayats or where
due to co-option of members of the
Managing Committee by the Agricultural
Credit Societies, Multi-purpose Co-
operative Societies and Village
Panchayats, any person whose name is not
entered in the final list of voters as
published under sub-rule (3), may at any
time but not later than five working days
before the last date of making
28 wp 8472.2015+
nominations, apply to the District
Election Officer; and the District
Election Officer or the person authorized
by him, shall conduct an inquiry, in case
the inquiry is conducted by the person
authorized by the District Election
Officer in this behalf, he shall submit
the report of inquiry to the District
Election Officer. Thereafter, the
District Election Officer, as he deems
fit, may make necessary changes in the
final voter list."
9. This court in the cases of,
1] Writ Petition No. 10493 of 2016 and
10494 of 2016, dated 20.10.2016 (Satish
Ramchandra Rajput and others Vs. District
Deputy Registrar and others reported in
2016 (10) CPMH 35
2] Writ Petition No.11517 of 2016 and
11803 of 2016, dated 29.11.2016 (Vividh
Karyakari SevaSahkari Sanstha Ltd. and
another Vs. The State of Maharashtra and
others)
3] Writ Petition No.9197 of 2015 with
connected petitions, dated 20.08.2016
(Subhash Rabhaji Barde and others Vs. The
State of Maharashtra and others)
4] Sangali Urban Co-operative Bank Vs.
The State of Maharashtra and others, 2015
(6) ALL MR 629
5] Adivasi Seva Sahkari Sanstha, Halda
Vs. Hon'ble Collector, Gondia and
another, 2011 (5) Mh.L.J. 745
while interpreting Rule 36 held that
names of the newly elected members or of
29 wp 8472.2015+
the village panchayat so also of the
societies within the area of operation of
APMC can be included in the final voters
list even after the period stipulated in
Rule 36(15) of the APMC Rules, 1967.
10. In the cases of,
[1] Bhatu Devidas Patil and another Vs.
State of Maharashtra and others, 2010 (3)
Mh.L.J. 903,
[2] Shri Sai Vividh Karyakari Seva
Sahakari Sanstha Maryadit and others Vs.
State of Maharashtra and others, 2012 (2)
Mh.L.J. 274,
[3] Gram Panchayat, Nadiwadi Vs. State
of Maharashtra and others, 2016 (1)
Mh.L.J. 780,
&
[4] Purshottam s/o Pandharinath Tonpe
Vs. Agriculture Produce Market Committee,
Wardha and others, 2013 (6) Mh.L.J. 688
it was held that there can be no addition
of any members in the final voters list of the
APMC for the constituency of the village panchayat
constituency as also to the societies constituency
by an application after the expiry of the period
30 wp 8472.2015+
mentioned in Rule 36 for filing an application for
inclusion of names in the final voters list.
11. It was noticed that the Rule 36(2)
provided for revision of voters list 6 months
before the expiry of term of the market committee.
Rule 36(15) also provided that in case of a person
whose name is not entered in the final list as
published under sub-rule (14) may at any time but
not later than 3 days before the last date of
nomination apply to the Collector or the District
Deputy Registrar, as the case may be, for
inclusion of his name in the list. The learned
Single Judge noticed that in view of Bhatu's
Judgment and Purshottam Tonpe's Judgment that to
contest election to the membership of the market
committee, the membership of the constituent
society or gram panchayat is sine qua non,
however, the voters list prepared may not be
revised beyond the particular date.
12. This court in the case of Shri Sai Vividh
Karyakari Seva Sahkari Sanstha Maryadit and others
31 wp 8472.2015+
Vs. State of Maharashtra and others, 2012 (2)
Mh.L.J. 274, it was held as under:-
"18......If the argument of the learned
counsel for the petitioner is accepted
that at any time i.e. up to three days
prior to the last date of filing the
nomination the list can be revised, then
that would lead to anomalous situation
and different cut off date would be
required to be provided for different
constituencies. The proviso cannot be
stretched so far."
13. In case of Grampanchayat, Nadiwadi Vs.
State of Maharashtra and others , 2016 (1) Mh.L.J.
780, it was held as under:-
"20. The dates and sequence of
events in the Bhatu Case (supra)
are relevant. After the publication of
the provisional list of voters dated 16-
11-2009, there was a change in the
elected members of the Gram Panchayats.
Such elected members had moved
applications under Rule 36(15) more
than 3 days prior to the date fixed
for filing nomination as provided
under Rule 36(15). By order dated
16-11-2009, the DDR deleted the
names of the outgoing members of
the Gram Panchayat Constituency and
included the names of newly elected
members of the Gram Panchayat. In this
backdrop, this Court concluded in
paragraph Nos. 6 to 8 that no error was
found in the order passed by the DDR. The
petition filed by outgoing members was,
therefore, dismissed.
32 wp 8472.2015+
21. With regard to the effect of
Rule 36, this Court has concluded
in the matter of Shri Sai Vividh
Karyakari Seva Sahakari Sanstha Maryadit
and others vs. State of Maharashtra and
others, 2012(2) Mh.L.J. 274 that the
cutoff date as provided under Rule 36(2),
cannot be revised. Similarly, by placing
reliance upon the judgment of this Court
in the Bhatu Case (supra), this Court
held in paragraph Nos. 13 to 18 as
under :--
"13. Rule 35 of the Rules of 1967
deals with the various
constituencies, the duties of the
Collector. The Collector is
required to prepare the voters
list separately for each of the
District and Talukas. Rule 36 deals
with voters list, wherein powers
are given to the Collector to
call upon the District Deputy
Registrar of the Co-operative
Societies to prepare and furnish
to him the list of the members
of the Agricultural Credit
Societies and the Multi Purpose Co-
operative Societies. So also
separate list for each of the
constituencies. Sub-rule (2) of
Rule 36 lays down a mandate that
every such list shall be revised
before the general election at least
six months before the date on which
the term of market committee is due
to expire. Reading sub-rule (2) of
Rule 36 it is manifest that the
list has to be revised at
least six months before the due
date of the expiry of the term
of the market committee. The
proviso to sub-rule (2) gives
the power and authority to the
33 wp 8472.2015+
Collector to direct the revision
of such lists also at any
other time before any general
election is due. Much emphasis
was placed by Shri Deshmukh,
the learned Counsel on this
proviso to submit that the said
proviso gives power to revise the
list at any time before any
general election is due, it
cast duty on the Collector to
revise the list as and when the new
members are enrolled.
14. The proviso to a particular
provision of a statute only
embraces the field which is
covered by the main provision.
A proviso cannot be construed as
enlarging the scope of an enactment,
when it can be fairly and properly
construed without attributing to it
that effect. A proviso has no
repercussion on the interpretation
of enacting portion of the
section so as to exclude
something by implication which
is embraced by clear words in
the enactment. The general rule
in construing an enactment
containing a proviso is to
construe them together and read
the whole section/Rule, inclusive
of the proviso in such a manner that
they naturally throw light on each
other and result in harmonious
conclusions so that neither of them
is made redundant or otiose,
15. The proviso to sub-rule (2) of
Rule 36 will have to be interpreted
on the touch stone of the
aforesaid principles. The
phraseology of sub-rule (2) of
Rule 36 is unambiguous and when the
meaning of the proviso does not
34 wp 8472.2015+
admit of any ambiguity, a literal
meaning is to be attached to it.
Sub-rule (2) of Rule 36 lays
down that every such list shall
be revised before the general
election atleast six months
before the date on which the
term of market committee is due
to expire. It lays down a
mandate and obligation that the list
shall be revised at least six months
before the term of market committee
is due to expire. Once the said list
is revised as per sub-rule (2),
then in such circumstances, the
same would be the voters list.
The scheme of Rule 36 is such
that after the list of voters
is published, then objections are
invited as per sub-rule (7) of Rule
36. The objections having been
received are to be decided by
the Collector and the order passed
by the Collector on the said
objection is made final by virtue
of sub-rule (10) of Rule 36.
As per the decision on the
objections the list is to be amended
and final list is to be published as
per sub-rule (11) of Rule 36.
16. Proviso to sub-rule (2) of Rule
36 will have to be read harmoniously
with Rule 2. It will have to be read
in a manner that both co-exists and
head on collusion between the two
shall have to be avoided. The
proviso cannot be interpreted in
a manner which would render
sub-rule (2) of Rule 36 as a
useless lumber or a dead
letter. Sanctity will have to be
given to the mandate cast upon the
Collector or the authority to
revise the list at least six
35 wp 8472.2015+
months before the date on which
the term of market committee is
due to expire. If the proviso
is interpreted in the manner that
even after the publication of list
of voters as provided in sub-rule
(2), the Collector can still revise
the cut off date, then the same
would not be in consonance with the
mandate. It would be doing violance
to the language and the
phraseology of sub-rule (2) of
Rule 36.
17. Much emphasis was laid by the
learned Counsel for the petitioner
on the interpretation of word
'may' in the said proviso that
said word may in the proviso shall
be interpreted as shall.
18. In sub-rule (2) the legislature
has used the word shall, whereas in
proviso the legislature has used
the word 'may'. The fact that
the legislature in its wisdom has
used the word 'may' in proviso and
shall in sub-rule (2), clearly
speaks about its intention. It
strengthens the inference that the
said words are sed in their
primary sense and the literal
meaning should be attached to
it. The said word 'may' in the
proviso gives discretion to the
authority i.e. in certain
contingencies such list can be
revised before the general election
is due. The same would be under
certain contingencies, the same
cannot be read in a blanket
manner. In the case of Bhatu
Devidas Patil referred supra,
this Court had held that the
members of the Village Panchayat had
changed and so their names were
36 wp 8472.2015+
required to be included in the
voters list. The Gram Panchayat
was already in existence and
was in the list of voters
which was revised six months
prior to the due date of
election. But during the
interregnum, the members of the
Panchayat had changed and so
their names were required to be
included. This Court had held that
the same is permissible. In the
present cases, the petitioners
were registered as Co-operative
Societies in May and June, 2011
i.e. just three to four months
before the date when the general
elections were due and after the
voters list was revised. If the
argument of the learned Counsel for
the petitioner is accepted that at
any time i.e. up to three days prior
to the last date of filing the
nomination the list can be
revised, then that would lead
to anomalous situation and
different cut of date would be
required to be provided for
different constituencies. The
proviso cannot be stretched so far."
22. As such, this Court considered
that the Collector/Returning Officer
(DDR) can republish the list if he
finds that the names of any persons
were not entered in the final list of
voters and such inclusion is permissible
prior to 3 days from the last date of
filing of the nomination papers. In
paragraph No. 18, it was therefore
concluded that the argument of the
petitioner that the application for
inclusion of name in the Voters'
37 wp 8472.2015+
List can be entertained at any
time, if is accepted, that would lead
to an anomalous situation.
23. I do not find that Rule 36(15)
needs any further interpretation. The
Collector/DDR can entertain an
application under Rule 36(15) for
inclusion of names in the final Voters
List only if such application is filed at
least 3 days prior to the last date for
nomination.
24. ...
25. ..."
14. The learned Single Judge held that
Rule 36 of the Maharashtra Agricultural Produce
Marketing (Development and Regulation) Rules, 1967
somewhat creates an hurdle in the rights conferred
under Section 13 of the the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963. The Rule 36 provided that
the voters list had to be revised 6 months prior
to the date of expiry of the term of the APMC.
However, the election to the the societies and the
village panchayats do not coincide with the
elections of the APMC and, practically, it is not
possible for a perfect syncronization. Thus,
situation is created wherein the persons who are
newly elected cannot cast vote as they do not find
their names in voters list and outgoing members
cast vote merely because their names continue in
the voters list.
38 wp 8472.2015+
15. The second problem the learned Single
Judge faced was that the person who was on the
voters list was also entitled to contest the
elections. However, Section 15 of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963 makes it imperative that the
term of the managing committee members is
co-terminus with the membership of the
constituency they represent. Thus, a person who
contests the elections may not be in a position to
hold the post even if elected and, thus, the
exercise would be futile.
16. This is how the issues are referred to
the larger bench. Thereafter, the legislature
having noticed similar issues has brought about
various changes in the Act and the Rules itself.
It has deleted by notification dated 16.12.2017
Rule 35 to 41F, 43 to 54 etc. By notification
dated 18.12.2017, the Maharashtra Agricultural
Produce Market Committee (Election to Committee)
Rules, 2017 were formulated and further by
notification dated 07.02.2023, Rule 7 of the 2017
Rules is amended and Sub-rule 5 is added to
Rule 7.
17. Having examined the provisions above, we
now proceed to answer the questions raised. The
answers are given applying the present law.
39 wp 8472.2015+
18. The Maharashtra Agricultural Produce
Market Committee (Election to Committee) Rules,
2017 are formulated by notification dated
18.12.2017. In terms of the Maharashtra
Agricultural Produce Market Committee (Election to
Committee) Rules, 2017,
Rule 5, provides for preparation of list
of voters of various constituencies.
Rule 6(1) provides for preparation of
voters' list. The District Election Officer shall
call upon the District Deputy Registrar of co-
operative societies to prepare and submit a list
of members of village panchayats before 180 days
of the expiry of term of the market committee or
within such time as may be specified by him. The
District Election Officer shall provide a list of
members of the managing committee of the
agricultural credit societies and the list of
members of the village panchayats as received from
the Block Development Officer to the Secretary of
the APMC for preparation of voters list for
election to the concerned constituency. On receipt
of such a list, the District Election Officer
shall prepare a voters list for village panchayats
constituency which shall be prepared village
panchayatwise including the details regarding the
members belonging to the Scheduled Caste and
provides that in case the elections not being held
before the expiry of the terms of the committee
40 wp 8472.2015+
the provisional voters list shall be prepared on
the basis of a date fixed by the cooperative
election authority.
Rule 8 provides for right to vote. Every
person whose name is entered in the final voters
list of the respective constituency shall be
entitled to vote in that constituency. Provided
that, no person shall vote at any election in any
constituency, if he is subject to any
disqualification under the law for the time being
in force.
Rule 9 sub-rule 3 provides that every
person whose name is included in the voters list
prepared under Rule 6 and 7 shall, unless
disqualified under the rules, be qualified to be
elected to the market committee.
Rule 8 sub-rule 3 provides for, subject
to any disqualification incurred by a person, the
voters lists published finally under sub-rule (3)
of rule 7 shall be conclusive evidence for the
purpose of determining whether any person is
qualified to vote, or as the case may be or is not
qualified to be elected at any election. Provided
that, any candidate contesting election under
clause (a) of sub-section (1) of section 13 shall
not be considered to be disqualified for the
reason that his name does not appear in the
Voters' list.
In Rule 7 sub-rule 5 is added which
provides that in case of a newly elected committee
41 wp 8472.2015+
of the agricultural credit societies and village
panchayats any person whose name is not entered in
the final list of voters as published under sub-
rule 3, may at any time but not later than 5
working days before the last date of making
nominations, apply to the District Election
Officer; and the District Election Officer after
making necessary inquiry may make necessary
changes to the final voters list.
19. Thus, reading all the provisions above,
the clear position that emerges is that the
provisional voters list is prepared of every
market committee's separate constituencies on the
basis of the record as available 180 days before
the expiry of the term of the market committee or
within such time as may be specified by the
District Election Officer. In case of a market
committee where the elections could not be held
before the expiry for the terms of the committee
due to unforeseen situation or of any other reason
a provisional list of voters is prepared on the
basis of a date fixed by the State Cooperative
Election Authority. Thereafter, the claims and
objections are invited on the provisional voters
list and final voters list is published after
deciding the claims and objection. In view of the
amended sub-rule 5 of rule 7 in case of a newly
elected member of the agricultural credit
societies, multipurpose co-operative societies and
42 wp 8472.2015+
the village panchayats whose names are not entered
in the final voters list as published under sub-
rule 3 of rule 7 may at any time but not later
than 5 working days before the last date of making
nominations apply to the District Election Officer
for necessary changes in the final voters list.
20. Now we deal with the question of law
no.2, as under:-
"II. Whether despite extinguishment of
membership of gram panchayat on the date
of polling for elections to APMC,
erstwhile/former (past) members be deemed
to be voters only for the reason,
them being in voters' list
prepared pursuant to Rule 36 of the
Agriculture Produce Market Committee
Rules, 1967 Rules, and should they be
allowed to vote ?"
Rule 8 Maharashtra Agricultural Produce
Market Committee (Election to Committee) Rules,
2017 provides that every person whose name is
entered in the final voters list of respective
constituency shall be entitled to vote in that
constituency, provided that, no person shall vote
at any election in any constituency, if he is
subject to any disqualification under the law for
the time being in force. The Sub-rule 3 of Rule 8
also provides subject to any disqualification
incurred by a person, the voters lists published
finally under sub-rule (3) of rule 7 shall be
conclusive evidence for the purpose of determining
43 wp 8472.2015+
whether any person is qualified to vote, or as the
case may be or is not qualified to be elected at
any election. Thus, a person whose name is in the
final voters list is entitled to vote in the
elections. However, in the event, the voter incurs
disqualification, he is not entitled to vote even
if his name is on the final voters list.
21. The question is whether the proviso which
provides that no person shall vote at any election
in any constituency, if he is subject to any
disqualification under the law for the time being
in force would mean that whether a voter by virtue
of the Section 13(1) of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963 which provides for the
elections to APMC by the members of the village
panchayats as also by the said societies would
incur a disqualification by virtue of being no
more members of the village panchayat or the said
societies, as on the date of voting ?
22. The disqualification provided under the
proviso of Rule 8 of the Maharashtra Agricultural
Produce Market Committee (Election to Committee)
Rules, 2017 would come into play the moment the
voter of the societies and village panchayat
constituency ceases to be a member of the village
panchayat or the elected members of the said
societies. The disqualification provided in the
44 wp 8472.2015+
proviso of the Rule 8(1) will come into play and
the member would not be eligible to vote although
his name is in the final voters list, if he has
incurred disqualification by virtue of being not
qualified under Section 13(1) of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963. Thus, the person, who is in
the final voters list if he ceases to be a member
of village panchayat on the date of election would
not be entitled to vote on account of prohibition
contained in proviso to rule 8(1) of the Election
Rules 2017.
23. The voters list is to be prepared on the
basis of the inclusion made in the final voters
list of the newly elected members and the final
voters list can be amended up till the time
provided under sub-rule 7(5) of the Maharashtra
Agricultural Produce Market Committee (Election to
Committee) Rules, 2017 and any further change
after that will not give finality to the voters
list and will create confusion.
24. However, there would arise a situation
where the existing members of village panchayats,
ceases to be the members of the village panchayats
and continue on the voters list for not being
replaced by newly elected committee members.
However voters, who have ceased to be the members
of village panchayat will be barred from voting on
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account of bar contained in proviso to rule 8 of
the Maharashtra Agricultural Produce Market
Committee (Election to Committee) Rules, 2017.
Proviso to the rule 8 provides that even if a
voter is on the final voters list, if he incurres
any disqualification, he would be barred from
voting. Loosing membership to the constituency the
voter represents amounts to disqualification to
represent that constituency and would be barred
from voting from that constituency on account of
having lost membership of constituency he
represents.
Thus, every member of village panchayat
on the final voters list and if not disqualified
for exercising his right to vote for having ceased
to be a member of the village panchayat on the
date of voting has a right to vote in the APMC
elections for the constituency he represents.
Question of law '2' is answered accordingly.
25. Now we deal with the question of law
no.1, as under:-
"I. Whether the erstwhile/former
(past) members of gram panchayat
be allowed to contest elections
to membership of APMC when they
are not members of gram panchayat
on the date of polling, taking
into account provisions of section 13 (1)
(a) (ii) and proviso to section 15 of the
Agriculture Produce Market Committee
(Development and Regulation) Act, 1963 ?"
46 wp 8472.2015+
In view of Section 15 of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963 the elected person cannot be
the member of the managing committee of the APMC
if he is ceases to be a member of the constituency
the elected member represents and in the event the
elected member is disqualified as he is no more a
member of the village panchayat, in such a
situation elections to such post would be a futile
exercise. The situation is inevitable. The tenure
of the managing committee of an APMC, and the
tenure of the managing committee of a society and
that of a grampanchayat need not coincide, rather
invariably their terms would come to an end on
different dates. Any member / voter who has filed
valid nomination by virtue of being on the final
voters list till the last date of nomination would
continue to contest the election although he has
ceased to be the member of the Village Panchayat
on the date of voting. After valid nomination it
is not possible to replace the nominated candidate
till the elections. In the event, a nominated
candidate looses membership of the constituency he
represents before the elections, in view of
section 15, the elected member will not be able to
take charge. If the elected member is unable to
take charge then the post left vacant will have to
be refilled as per the provisions of law. Similar
situation would arise even after entering into the
office of the managing committee of the APMC and,
47 wp 8472.2015+
thereafter, the person may cease to be a member of
the village panchayat or the said societies and
correspondingly loose his membership of the
managing committee of the APMC. Question of law
no.1 is answered accordingly.
26. Now we deal with the question of law
no.3, as under:-
"III. Whether the persons constituting
gram panchayat on the date of polling of
elections to APMC would not be entitled
to vote in said elections in their
capacity as gram panchayat members
forming village panchayat
constituency for four members to be
elected from that constituency to APMC
in given/present situation and
whether in such a case, procedural rules
should not be required to be flexed
and interpreted by harmonious,
reconciliatory approach and adaptation of
the same to the present/given situation,
having regard to object, intention and
purpose underlying main provisions
of Agriculture Produce Market
Committee (Development and
Regulation) Act, 1963 ?"
The legislature was aware of the
situation which arose under the earlier rule 36
that various newly elected members were left out
from the final voters list of the societies and
the village panchayats constituency and has
provided for their inclusion after the publication
of the final voters list in terms of rule 7(5).
Rule 7(5) is added for inclusion of the newly
48 wp 8472.2015+
elected members whose names are not in the final
voters list. However, there is a bar created that
the application by the newly elected members for
inclusion of their names in the voters list should
not be later than 5 working days before the last
date of making nominations. The provisional voters
list is prepared on the basis of the date
specified by the election authority or on the
basis of information as may be made available of
the voters before 180 days of expiry of the term
of the market committee. The said provisional
voters list is finalized in terms of rule 7(3).
Thereafter, further inclusion is provided under
rule 7(5) in the voters list. The legislature has
provided a cut-off date under rule 7(5). Sanctity
has to be given to the time provided for making
the application under rule 7(5) and the last date
for application as prescribed under rule 7(5) of
the Election Rules 2017 has to be strictly
followed. In absence of the time stipulated making
application under rule 7(5) of the Election Rules
2017, there would be no finality to the voters
list.
All the Judgments relied by the parties
have dealt with earlier Rule 36 of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Rules, 1967 which stands deleted. The
legislature was fully aware of the problems being
faced by the newly elected members of the
societies and the village panchayats being left
49 wp 8472.2015+
out of the final voters list of the APMC. The
legislature has brought about a solution by
incorporating rule 7(5) and brought about a cut-
off date to give finality to the voters list
although there could be situation where the
members of the societies and the village
panchayats are elected after the period stipulated
in rule 7(5) who would still be left out. However,
a balance is struck between the rights of the
newly elected members of the societies and the
village panchayats to be included in the final
voters list and to give finality to the voters
list, application for inclusion under Rule 7(5)
can be made only five days before the last date of
making nominations taking into consideration the
time that may be required to process applications
of the newly elected members of the societies and
the village panchayats.
27. The application for inclusion of the
newly elected members in the final voters list
cannot be beyond the period prescribed in
Rule 7(5). Question of law No.3 is answered
accordingly.
28. Now we deal with the question of law
no.4, as under:-
"IV. Whether in the present/given
situation village panchayat
constituency can be by-passed and kept
away from having its representatives
50 wp 8472.2015+
elected to the posts of Chairman and/or
Vice Chairman ?"
Every person on the final voters list is
entitled to contest election unless disqualified
by any other law and in the event the person
looses membership to the constituency he
represents the person will loose his seat even if
elected to the APMC. However, the village
panchayat constituency cannot be by-passed and
kept away from having it's representatives elected
to the post of Chairman and / or Vice-chairman.
The Chairman and the Vice-chairman is elected from
the elected members of the APMC. The village
panchayat constituency has 4 members and the
societies constituency has 11 members in the
market committee. If the seat of Chairman and
Vice-chairman falls vacant, it can be filled in by
taking recourse to Section 25, as such the said
society constituency or the village panchayat
constituency would not be bypassed and kept away
from having its representatives elected to the
post of Chairman and Vice-chairman.
29. Reference is answered accordingly.
[ARUN R. PEDNEKER, J.] [MANGESH S. PATIL, J.]
marathe
