S. C. SOBAGAIAH v. DEPUTY COMMISSIONER — 1970 DIGILAW 121 (KAR)

( 1 ) AT the election held on 16th July 1970 to the Kunigal Agricultural produce Market Committee, the petitioner and the 3rd respondent were among the persons elected. The petitioner is an individual; the 3rd respondent is the Taluk Agricultural Produce Co-operative Marketing Society, kunigal. ( 2 ) AMONG the various constituencies from which members are elected to the Taluk Agricultural Produce Market Committee (hereinafter referred to as the Market Committee), there are two constituencies with which we are concerned in this case, viz. , the constituency of Commission Agents which is entitled to elect one member to the Market Committee and the constituency of the Taluk Marketing Co-operative Societies which is entitled to elect one member. The 3rd respondent is a society forming part of the second mentioned constituency entitled to elect one member. Sometime before the election, the 3rd respondent-Society also secured a licence to work as Commission Agents under the Agricultural Produce Marketing (Regulation) Act of 1966. At the election mentioned above, the 3rd respondent society figured as a candidate for election from both the said two constituencies. As required by Rule 4 of the Mysore Agricultural Produce Marketing (Regulation) Rules, 1968, the 3rd respondent-Society nominated its president B. Channappa as the person to represent it in the Commission agents' constituency and also nominated one of its directors Mohammad khasim as its representative in the Taluk Marketing Co-operative Societies' constituency. It succeeded in both the constituencies. ( 3 ) THE results of the election were published in the Mysore Gazette dated 27th July 1970. Almost immediately thereafter, the Tahsildar of kunigal Taluk as the prescribed Officer under S. 41 of the Act issued notices to elected members convening a meeting of the Market Committee to be held on 11th August 1970 (today ). ( 4 ) THIS Writ, Petition was presented on 6th August 1970 and brought up for first orders yesterday. As Mr. Thilak Hesde, who was present on behalf of the 3rd respondent, took notice on Ms behalf and Mr. Shyamasundar government Pleader, took notice on behalf of the first two respondents- the Deputy Commissioner of Tumkur District and the Tahsildar of Kunjgal taluk, and as the first meeting of the Market Committee was scheduled to be held today, we posted the Writ Petition for hearing and final disposal this morning. Shyamasundar government Pleader, took notice on behalf of the first two respondents- the Deputy Commissioner of Tumkur District and the Tahsildar of Kunjgal taluk, and as the first meeting of the Market Committee was scheduled to be held today, we posted the Writ Petition for hearing and final disposal this morning. ( 5 ) THE grievance nut fonward by the petitioner is that the 3rd respondent- society which is elected to the Market Committee from two constituencies was bound to make a choice of the constituency it proposes to represent as required by S. 19 of the Act. that it had failed to do so and that the Deputy Commissioner, who was bound to take action upon the 3rd respondent's failure to make a choice has also not acted in spite of the representation made to him by one Lingaiah one of the members elected to the market Committee. The prayers are for the issue of appropriate writ or direction calling upon the Deputy Commissioner to make the choice of the constituency which the 3rd respondent mav be or can be permitted to represent, and preventing the 3rd respondent from casting more than one vote at the election of Chairman and Vice-Chairman scheduled to he held today. ( 6 ) THE main answer to these contentions,-apart from other technical objections,-made in the counter affidavit filed by Channappa, President of the 3rd respondent-Society, is that this is not a case to which the provisions of S. 19 apply, that the Society therefore was not bound to make a choice between the two constituencies from which it had been elected to the Market commtitee and that therefore the 3rd respondent would be well within its right to record one vote through its President Channappa as representing the Commissoin Agents' constituency and another vote through its director mohammad Khasim as representing the Taluk Marketing Society constituency. ( 7 ) S. 19 of the Act on the interpretation of which the resolution of this controversy depends, reads as follows:"prohibition of Simultaneous Membership.- (1) If a person is elected by more than one constituency, he shall by a notice in writing signed by him and delivered to the Deputy Commissioner within the prescribed time, choose any one of the constituencies which he shall serve, and the choice shall be final. (2) When any such choice has been made, the constituency or each of the constituencies other than the constituency which such a person has chosen to serve, shall be called upon to elect another person. (3) If the candidate does not make the choice referred to in sub- sec. (1), the Deputy Commissioner shall determine by lot the constituency which he shall serve, and the constituency or each of the constituencies other than the- constituency which he should serve shall be called upon to elect another person. Explanation.-For purposes of this section, 'constituency' shall include any of the institutions referred to in clauses (iv) to (vii) of subsection (1) of Section 11. " ( 8 ) THE language of the section leaves no room for doubt that it is not open to a person to represent more than one constituency in the Marketing committee. The argument, however, on behalf of the 3rd respondent is that S. 19 operates only if one that is elected to the Committee is a person and that a 'person' is defined in Cl. (30) of S. 2 of the Act as follows, viz. ,"person includes a firm and a joint Hindu family. "and that therefore a co-operative society does not come within the meaning of the term 'person'. ( 9 ) APART from the indications found in other connected provisions of the statute, the argument cannot, in our opinion, be accepted even upon the language of the definition When the statute defines a 'person' as including or inclusive of a firm or a Hindu undivided family. it does not mean that a group of persons to come within the definition of the term 'person' could only be either a firm or a Hindu undivided family. The same term 'person' is defined in the Mysore General Clauses Act as follows:"person shall include anv companv or association or body of individuals, whether incorporated or not. "this definition would apply to all Acts of the Mysore Legislature unless there is anything repugnant in the subject or context. If we look at the definitions alone In the two Acts, there is nothing to suggest that one excludes the other. "this definition would apply to all Acts of the Mysore Legislature unless there is anything repugnant in the subject or context. If we look at the definitions alone In the two Acts, there is nothing to suggest that one excludes the other. If we look at the context of the statute, particularly the context of S. 19 and connected sections, it becomes clear that the statute not only does not contain anything which makes the application of the definition of the General Clauses Act repugnant but actually invokes that definition. ( 10 ) TO begin with, Ss. 15 and 16 of the Mysore Agricultural Produce marketing (Reflation) Act, 1966, dealing with qualifications and disqualifications for candidature and membership of the Market Committee, clearly uses the word 'person' as inclusive of a co-operative society. S. 15 opens with the sentence-"every person, unless disqualified under the provisions of this act or any other law for the time being in force, shall be qualified to be elected as a member of the market committee. "section 16 states that-"without prejudice to any other disqualifications provided in this act,-a person shall be disqualified for being chosen as, or for being, a member of a market committee ",and enumerates persons to which its provisions apply. Clause (c) of sub- sec. (1) of S. 16 reads as follows:"as a representative of commission agents, if he has ceased to be a licensed commission agent, or if he, or a firm in which he is a partner or a body corporate (other than a co-operative society) in which he is a Director or a joint family of which he is a member, does business as a trader. "the direct purpose of that clause is to disqualify a person for election from the commission agents' constituency if, in addition to commssion agency work, he carries on trade also. It will be seen that while referring to this activity of carrying on trade, the clause refers not only to an individual but also to a firm, a body corporate and a co-operative society, and exempts co-operative society from the operation of the disqualification. The clause undoubtedly proceeds upon the basis that a person entitled to stand for election to a market committee is not only an individual, a firm or a joint hindu family but also any body corporate including a co-operative society. The clause undoubtedly proceeds upon the basis that a person entitled to stand for election to a market committee is not only an individual, a firm or a joint hindu family but also any body corporate including a co-operative society. ( 11 ) FURTHER, if such were not the meaning of the word 'person', and if we are to accept the argument that a co-operative society does not at all come within the meaning of the term 'person', then no co-operative society is qualified to stand for election because S. 15, which confers the qualification, describes the one that is qualified as a person. ( 12 ) MR. Manjappa for the petitioner also suggested that even a commission agent is defined as a person who docs a particular type of work or business and that if the argument on behalf of the 3rd respondent is extended to that situation also, it will be impossible for a co-operative society to become a commission agent. ( 13 ) RULE 4 of the Rules of 1968 mentioned above reads:"names of persons authorised by firms, societies, etc. . to vote to be reported.-Every firm or corporation or co-operative society qualified to vote in a traders' constituency or in a commission agents' constituency under these rules shall nominate a person to vote on its behalf and intimate in writing the name of the person so nominated to the Committee and the Deputy Commissioner or any officer authorised by him in this behalf, not later than the date fixed in this behalf by the deputy Commissioner. "this rule also proceeds upon the basis that not only firms but also corporations and co-operative societies are persons entitled to vote and stand for election. ( 14 ) WE have no doubt, therefore, that the word 'person' occurring in s. 19 does include a co-operative society. Hence, if a co-operative society is elected to a market Committee from two or more constituencies at the same election, it is bound under the said section to make a choice of the constituency it proposes to serve and give notice thereof in writing to the Deputy commissioner. Hence, if a co-operative society is elected to a market Committee from two or more constituencies at the same election, it is bound under the said section to make a choice of the constituency it proposes to serve and give notice thereof in writing to the Deputy commissioner. ( 15 ) EVEN so, it has been argued on behalf of the 3rd respondent that though S. 19 (1) requires time to be prescribed within which such written notice of his choice has to be sent by a candidate elected from more than one constituency, the Rules do not prescribe any such time or set any time limit therefor and that therefore the Writ Petition itself must be regarded as premature. ( 16 ) WE find that rules do not make any provision in this regard. But that does not mean that omission to prescribe any time makes the main provision of the section itself inoperative. The proper view to take in matters of this nature is that the section does come into operation and that, in the absence of any time limit prescribed by the Rules as required by the section, the duty imposed or liability placed on any person has to be discharged within a reasonable time and in such a way as to subserve the object of the particular section. ( 17 ) THE object of the section is perfectly clear, viz. , that one person can represent only one constituency and no more. The idea which is not new to elections will be clear from the demarcation of constituencies and the allocation of the number of members to each constituency. It is found in S. 11 that the constituency of agriculturists alone is given the privilege of electing seven members and the constituency of traders to elect two members; the rest of the constituencies elect only one member each. If one member is permitted to represent more constituencies than one, then in the case of the agriculturists' constituency and the traders' constituency, the quantum of representation given to them will stand abridged and in the case of other constituencies, one or more of the constituencies will certainly go without any representation. It is this result that is sought to be prevented by the express prohibition contained in S. 19 of the Act. It is this result that is sought to be prevented by the express prohibition contained in S. 19 of the Act. ( 18 ) THE idea of representation is that a member elected to represent a constituency should vote on behalf of the said constituency or in the interest of the constituency at the meeting of the market committee through its own elected representative. The said act of voting is done at a meeting. Hence the ultimate object of electing a person to represent a constituency is achieved when the person elected by the said constituency attends a meeting of the committee and votes at the meeting. ( 19 ) IT follows therefore that the above object can be achieved or fully achieved only if the choice required by S. 19 (1) of the Act is made before the person required to make the choice starts functoning as a member. ( 20 ) TWO other provisions of the statute which have relevance on this part of the case are Ss. 20 and 41. The former prescribes a limitation of 15 days from the publication of the results in the Gazette under S. 27 of the act for an election petition challenging any election. Sub-section (2) of the latter requires that the first meeting of the market committee after its reconstitution, should be held within four weeks from the date of commencement of the term of office of the members of the said cmmmittee. Under S. 39, the term of office commences immediately after the expiry of the term of office of the out-going members or on the date of publication of the results under S. 27, whichever is later. ( 21 ) IT is reasonable therefore to hold that the member bound to make a choice of the constituencies under S. 19 (1) cannot be charged with delay in the discharge of that obligation at least till the limitation of 15 days prescribed for an election petition has expired. The outer limit, as already pointed out by us, is the commencement of his functioning as a member, i. e. , before he attends, for the first time, a meeting of the committee. ( 22 ) THAT being the correct position in law in our opinion, the remaining question is whether and if so, what type of writ or direction or order should be made or issued in this Writ Petition. ( 22 ) THAT being the correct position in law in our opinion, the remaining question is whether and if so, what type of writ or direction or order should be made or issued in this Writ Petition. ( 23 ) AS the first meeting of the Market Committee was scheduled to be held today, the petitioner could not have claimed on the 6th of this month when he presented this Writ Petition that the 3rd respondent had failed to discharge the liability or obligation placed upon him by S. 19 (1 ). We also record that of the two representatives of the 3rd respondent-Society representing it in two constituencies from which it has been elected, one of them, president Channappa was present in Court yesterday and has sworn to an affidavit and he is also present in Court today. The apprehension of the Petitioner therefore that the 3rd respondent is thinking of casting two votes has disappeared. As, in the circumstances the 3rd respondent itself could not be said to have exceeded the limit of time reasonably available to it on the date of the presentation of this Writ Petition, the further complaint that the Deputy Commissioner has not taken the second step also did not exist on that date. ( 24 ) NOW that the legal contention of the 3rd respondent that it was not bound to make a choice under S. 19 has been disposed of and the law in that regard declared, the Deputy Commissioner will certainly discharge his statutory function in the light of the declaration of law made by us. ( 25 ) WE therefore do not consider it necessary to issue any writ or direction in this Writ Petition. ( 26 ) THIS disposes of the Writ Petition. One copy to be served on Mr. Shyamasundar, Government Pleader. --- *** --- .