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2002 DIGILAW 422 (KAR)

SOMANATH v. VIJAYAKUMAR

2002-07-05

N.K.JAIN, S.B.MAJAGE

body2002
( 1 ) THIS writ appeal is against the order of the learned Single Judge dated 17th June, 2002 passed in W. P. No. 21020 of 2002 (Somanath v vijayakurnar and Others ), dismissing the writ petition with costs holding that the direction to allow the application Annexures-G and H for disqualification as prayed in the petition cannot be given. ( 2 ) IT is alleged that the election to the Committee of 17 Members of agricultural Produce Marketing Committee, Bijapur was held on 8-1-2000. Thereafter, the appellant was elected as Chairman of the Marketing committee defeating respondent 1. It is alleged that the election of respondents 1 and 2 to the Committee is directly hit by Section 16 (l) (a) of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (for short 'the Act') as they are traders and not agriculturists. It is stated that the appellant does not belong to the group of the 6th respondent, who is a District Minister. When the appellant-Chairman refused to post the nephew (sister's son) as a Cess Collector in the main market yard, respondent 6 wanted the Chairman of his own choice, and he made the other members to initiate 'no confidence motion' against the appellant as per Annexure-F, dated 17-4-2002. Since some of the members complained, on verification, the appellant filed a petition under Section 17 of the Act along with application for stay (Annexures-G and H) before respondent 5 on 9-5-2002 stating that respondents 1 to 3 are to be disqualified. Since the 5th respondent did not pass any order on Annexure-H, the appellant-petitioner filed the writ petition on 21-5-2002 seeking for directions to respondent 5 to allow the application produced as Annexure-H pending final disposal of the petition filed as per Annexure-G; and to complete the disqualification proceedings as against the respondents 1 and 2 within a period of two weeks; and to stay no confidence motion initiated as per Annexure-F, till the disposal of disqualification proceedings; and not to allow the 3rd respondent to participate in any meeting or proceedings of the APMC, Bijapur. The same was dismissed by the learned Single Judge on 17-6-2002. Hence, this writ appeal. ( 3 ) MR. Umesh R. Malimath, learned Counsel for the appellant-petitioner submits that the learned Single Judge has erred in relying on the decision in Parappa v Nandarayappa and Others. The same was dismissed by the learned Single Judge on 17-6-2002. Hence, this writ appeal. ( 3 ) MR. Umesh R. Malimath, learned Counsel for the appellant-petitioner submits that the learned Single Judge has erred in relying on the decision in Parappa v Nandarayappa and Others. He submits that the case relied on is not applicable to the facts of the given case as in that case an election petition was pending and whereas in the instant case no election petition is pending. He submits that the learned Single Judge also erred in not directing the Director to dispose off the proceedings within two weeks and till then not staying 'no confidence proceedings'. He submits that the learned Single Judge has erred in not directing the 5th respondent not to allow the 3rd respondent to participate in the meeting as his membership is cancelled. He, therefore, submits that the order of learned Single Judge is liable to be set aside. He relied on the decisions of the Supreme Court in Election Commission, India v Saka venkata Rao and in Inderjit Barua and Others v Election Commission of India. ( 4 ) ON the other hand, Mr. Jayakumar S. Patil, learned Counsel for respondents 1 and 2 submits that the learned Single Judge has rightly dismissed the writ petition. He submits that the propositions laid down in the decisions relied on by the appellant-petitioner's Counsel are rather against the appellant-petitioner. He submits that the Division bench in Parappa's case, supra, on considering Sections 16 and 17 of the act and the jurisdiction of the Director to decide disqualification aspect of a sitting member, has held that "a reading of Section 17 of the Act makes it abundantly clear that the Director of Agricultural Marketing gets jurisdiction to decide the disqualification aspect of a sitting member, only if it has been caused to him subsequent to his election. But if the disqualification was of a period anterior to the election having a bearing on the validity of his election itself, then the said issue can be decided only by the jurisdictional munsiff in an election petition. Taking of any contrary view will only lead to overlapping of jurisdiction which has to be always avoided in view of the principles of interpretation" and that the said principle laid down is fully applicable to the facts of this case. Taking of any contrary view will only lead to overlapping of jurisdiction which has to be always avoided in view of the principles of interpretation" and that the said principle laid down is fully applicable to the facts of this case. He submits that mere pendency of an election petition in the above case will not be helpful for the appellant-petitioner to contend that the decision in Parappa's case, supra, is not applicable. He also submits that the decision in Election Commission's case, supra, is fully applicable to the facts of this case. According to him, Section 16 of the Act is almost same as that of Article 191 (1) of the Constitution and their Lordships while repelling the suggestion made by the Attorney-General, have held that Articles 190 (3) and 192 (1) of the Constitution were applicable only to disqualification to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent's disqualification which arose long before his election. It was held in para 15, as follows:"it was said that on the view that Articles 190 (3) and 192 (1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under Article 329 of the Constitution read with Section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent's construction of the constitutional provisions. On the other hand, the Attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under Section 100 of the Parliamentary Statute referred to above". On the other hand, the Attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under Section 100 of the Parliamentary Statute referred to above". He also relied on the Division Bench of this Court in Govindappa v somasekhar Ishwarappa and Others, wherein while considering Sections 29-C (7) and 70 of the Karnataka Co-operative Societies Act, it is held that "having regard to the non obstante clause in Section 70 (1) and to the principle of harmonious construction of statutes, it has to be held that sub-section (7) of Section 29-C applies only to cases where a member has incurred a disqualification subsequent to the election". The Division bench further held that where the alleged disqualification was one incurred prior to the election, it could be decided only in a proceeding commenced under Section 70 of the Act and the Arbitrator appointed for the purpose under Section 71 (l) (c) has jurisdiction to hear and decide the election petition. The Division Bench, while referring to the passage from the judgment in Election Commission's case, supra, also held that"it is seen from the above passage that in order to avoid conflict of decisions by two different authorities, it is necessary to recognise the distinction between disqualification suffered prior to the election and disqualification incurred subsequent to the election". He submits that the decision in Inderjit Barua's case, supra, is also applicable to the facts of this case, wherein their Lordships on the contention that Election commission be directed to suo motu carry out revision under Rule 25 of the Electoral Registration Rules, 1960, held that "we cannot direct the election Commission to carry out such revision which under the law it may do on its own". ( 5 ) ON the basis of the above principles, learned Counsel for respondents 1 to 3 submit that one having disqualification on the date of election can be disqualified only through election petition and not otherwise and in the instant case, the election was initially held in the year 2000 and the respondents are working and as the situation of 'no confidence motion' arose, the appellant-petitioner filed an interim application before the 5th respondent on 9-5-2002 praying to restrain respondents 1 to 3 from participating in any of the meetings of the Agricultural Produce marketing Committee, Bijapur including 'no confidence motion' meeting till final disposal of the main case pending on the application filed as per Annexure-G. He submits that the appellant-petitioner cannot seek directions of this nature and this Court, neither on the ground of locus standi nor on merits, can issue the directions as prayed for. He further submitted that the "no-confidence" motion is pending and this appeal is nothing but an attempt to stall moving of the 'no confidence motion' in the meeting to be held on 28-6-2002, and therefore, this appeal is liable to be dismissed with costs. ( 6 ) LEARNED Counsel for the 4th respondent submits that as argued, the appellant cannot seek any direction not to hold meeting to consider 'no confidence motion' merely on the basis of the prayer made by filing an interim application before the 5th respondent and he cannot invoke section 17 of the Act as the disqualification has not been incurred after election. He further submits that the respondents have been functioning as elected members for the last two years and the appellant-petitioner, at no point of time, raised said objection, and therefore, the learned single Judge has rightly dismissed the writ petition with costs and this appeal is liable to be dismissed. ( 7 ) LEARNED Counsel for the appellant-petitioner made some averment attributing mala fides the 6th respondent. However, he sought for deletion of respondent 6 as he did not want to press the appeal against him and accordingly, respondent 6 was deleted at his risk on 21-6-2002. Otherwise also, merely, on the basis of the averment, without any substantial material, no mala fides can be attributed. However, he sought for deletion of respondent 6 as he did not want to press the appeal against him and accordingly, respondent 6 was deleted at his risk on 21-6-2002. Otherwise also, merely, on the basis of the averment, without any substantial material, no mala fides can be attributed. ( 8 ) THE main argument of the learned Counsel for the appellant-petitioner is that the disqualification of a member can be considered at any time and once he is disqualified, he is not entitled to hold the post and section 16 (l) (a) of the Act will be attracted even if the petitioner has incurred disqualification before the election and not incurred after the election. ( 9 ) WE have heard the learned Counsel for the parties and perused the materials on record, relevant provisions and case-laws. ( 10 ) TO appreciate the argument, it is necessary to look into Sections 16 and 17 of the Act. Section 16 of the Act deals with the disqualification of a person for being a member of a market committee and the relevant provision i. e. , section 16 (l) (a) of the Act reads as under:" (1) A person shall be disqualified for being chosen as, or for being, a member of a market committee. (a) as a representative of agriculturists, 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, commission agent, broker, importer or exporter in any market area or was doing business as a trader, commission agent, broker, importer or exporter, till such date not later than five years immediately preceding the date of election". Section 17 of the Act deals with the disqualification of a sitting member and it reads as under:"17. Disqualification of sitting member. (1) If any member of the market committee. (a) becomes subject to any of the disqualifications mentioned in Section 16"; (b ). . . . . . . . . Section 17 of the Act deals with the disqualification of a sitting member and it reads as under:"17. Disqualification of sitting member. (1) If any member of the market committee. (a) becomes subject to any of the disqualifications mentioned in Section 16"; (b ). . . . . . . . . (2) Whenever the question whether a person is or has become subject to disqualification under sub-section (1) arises, the Director of Agricultural Marketing shall either suo motu or on a report from the Secretary to the market committee or otherwise, and after giving an opportunity to the member concerned to be heard and holding such enquiry as he deems fit, decide the question, and his decision shall be final". ( 11 ) A bare reading of Section 16 of the Act makes it clear that an individual who is a partner of a firm, or a Director of a body corporate other than co-operative society, or a joint family of which he is a member, does business as a trader, or was carrying on business as a trader, commission agent, broker, importer or exporter for a period of more than 5 years immediately preceding the date of election, is disqualified for being a member of a market committee as a representative of agriculturists. Section 17 makes it clear that a sitting member can be disqualified, if he is or has become subject to disqualification under sub-section (1) of the Section of the Act. ( 12 ) HOWEVER, the controversy, as stated, has already been resolved and further it is not necessary at this stage to go into the issue and interpret the words 'is or has become subject to disqualification', which requires to be considered by the director. 'no confidence motion' has to be faced if such a situation arises. No one can seek direction to stall or get over the 'no confidence motion' on the alleged ground that a member is disqualified from the very beginning. ( 13 ) AS per the facts culled out, it is found that the appellant- petitioner has filed this appeal challenging the membership of the respondents 1 to 3 to the Committee of the 4th respondent on the ground of disqualification and cessation of membership. ( 13 ) AS per the facts culled out, it is found that the appellant- petitioner has filed this appeal challenging the membership of the respondents 1 to 3 to the Committee of the 4th respondent on the ground of disqualification and cessation of membership. The appellant-petitioner has also made averments of mala fides against respondent 6 that as he had refused to post the nephew of 6th respondent as a Cess Collector, respondent 6 wants a man of his choice to be a Chairman of the 4th respondent and made the other members to initiate 'no confidence motion". Admittedly, in the instant case, the respondents 1 and 2 were elected as members to the committee of the 4th respondent in the year 2000 and the appellant-petitioner has challenged their membership now in the year 2002, i. e. , after two years. The appellant-petitioner, in between these two years, has never challenged the membership of the said respondents, nor he challenged the nomination of the said respondents at the time of election, but he allowed them to continue as members of the 4th respondent and it was only after 'no confidence motion' was initiated against him, by notice dated 17-4-2002, the appellant-petitioner, by the present proceedings, is seeking for disqualification of the said respondents. Under the circumstances, this writ appeal cannot be entertained for the reason that a person, who has not come before this court at appropriate time and with clean hands, does not have any right of being heard and is not entitled for any relief particularly, after the 6th respondent, against whom averments of mala fides are made, has been deleted and nothing remains to be considered and seeking disqualification of respondents 1 to 3 at this stage is nothing but to get through the 'no confidence motion'. ( 14 ) THE learned Single Judge relied on the decision in Parappa's case, supra, wherein it is observed that no individual person has any statutory right to invoke the jurisdiction of the Director, though a complaint is made, the Director can consider such complaint as an information only for the purpose of invoking his suo motu jurisdiction, and rightly held that the request for stay of proceedings at Annexures-G and H cannot be granted. The learned Single Judge while repelling the arguments of the learned Counsel for the appellant-petitioner observed further that in the absence of any details and in the light of no additional material, a mere self-serving statement cannot be accepted by a Court of law and that the allegation was made only to get over the 'no confidence' proceedings and to stall the same against the petitioner and rejected the entire mala fides allegations are devoid of merits. The learned Single judge has rightly not granted any of the prayers sought for by the appellant-petitioner. Under the circumstances, it cannot be said that there is any error or illegality in the order of the learned Single Judge, which calls for interference. ( 15 ) AS stated, it is not necessary to go into the argument and to express any opinion at this stage, whether or not the respondents 1 and 2 are disqualified for being members of the Committee as that is to be decided by the Director. Moreover, this Court on 26-6-2002, while reserving the judgment, allowed the meeting for consideration of 'no confidence motion' to continue. In view of what we have discussed above, we find no error or illegality in the order of the learned Single Judge so as to call for interference. Writ appeal is liable to be dismissed with costs. Since we have not issued any notice and heard the caveators. costs are made easy. Accordingly, writ appeal is dismissed. --- *** --- .