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2011 DIGILAW 682 (BOM)

Ek Lakh Khan v. District Deputy Registrar

2011-06-17

R.M.SAVANT

body2011
JUDGMENT : 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 15/4/2011 passed by the District Deputy Registrar by which order the representation of the petitioners for appointment of the Administrator under Section 15A of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (for brevity referred to as ‘said Act’) came to be disposed of by holding that the implicit in the fact of postponement of the elections of the Agricultural Produce Marketing Committee (APMC), Ghatanji is the extension of tenure of the Managing Committee. 3. The facts, which are necessary to be stated for adjudication of the above petition can gainfully be stated thus. The petitioners are the Members of the Agricultural Produce Market Committee, Ghatanji. The elections to the said Market Committee had taken place some time in the year 2006 and the tenure of the Market Committee was admittedly to expire on 25/01/2011. In the meeting of the Market Committee dated 13/12/2010, a Resolution came to be passed being Resolution No.8, whereby it was resolved to request the State Government to extend the term of the Members for six months. The said Resolution was handed over to the respondent no.1 – District Deputy Registrar, who in turn transmitted it to the State Government. The State Government has the powers under Section 14(3) of the A.P.M.C. Act to extend the tenure of the Managing Committee, the State Government also has the power to postpone the elections of the Market Committee under Section 14(3)(A) of the said Act. The State Government also has the power to appoint an Administrator under Section 15A of the Act. The said statutory provisions would be adverted to a little later in this judgment. However, in so far as the Resolution passed by the A.P.M.C., Ghatanji for extension of tenure is concerned, the State Government by having a recourse to Section 14(3A) of the Act, instead of granting the extension has postponed the elections by period of six months i.e. up to 24/07/2011. 4. However, in so far as the Resolution passed by the A.P.M.C., Ghatanji for extension of tenure is concerned, the State Government by having a recourse to Section 14(3A) of the Act, instead of granting the extension has postponed the elections by period of six months i.e. up to 24/07/2011. 4. Since the term of the Managing Committee had already expired on 25/01/2011, the petitioners herein had filed Writ Petition No.1342 of 2011 inter alia seeking a direction against the respondent no.1 to consider exercising powers under Section 15A of the said Act for appointment of the Administrator for managing the affairs of the said APMC, Ghatanji. In the said petition, on a statement being made on behalf of the respondent no.1/State by the learned Additional Government Pleader that the issue, regarding exercise of power under Section 15A would be considered on its own merits by the District Deputy Registrar, the petition came to be disposed of. 5. It is pursuant to the disposal of the said petition wherein the statement came to be recorded of the Additional Government Pleader that the District Deputy Registrar ventured to consider the issue as regards appointment of the Administrator under Section 15A of the Act. As indicated earlier, by the impugned order dated 15/4/2011, the respondent no.1 has disposed of the issue as regards appointment of Administrator by inter alia holding that implicit in the order of the postponement of elections is the extension of tenure granted to the Managing Committee. In fact, as can be seen from the order that the District Deputy Registrar has stated that the postponement of elections should be understood, as the extension of tenure of the Managing Committee. 6. I have heard the learned counsel for the parties. 7. On behalf of the petitioners Shri Paliwal, the learned counsel contended that the power conferred under Section 14(3) of the Act, provide for extension of tenure to the Managing Committee has to be exercised in the manner postulated in the said Section and the extension of the tenure of the Managing Committee cannot be implied from the attended facts. The learned counsel, on a reading of the said provision, contended that the said provision postulates a Notification being issued in the official Gazette in respect of the extension of tenure to the Managing Committee. The learned counsel, on a reading of the said provision, contended that the said provision postulates a Notification being issued in the official Gazette in respect of the extension of tenure to the Managing Committee. The said provision also postulates that the said extension can be granted for a period of six months at a time and should not exceed the maximum period of one year. The learned counsel further contended that no such order or Gazette Notification has been brought to the notice of this court. The learned counsel further contended that Section 15A of the Act is in the nature of a mandatory provision which comes into operation in the event of the eventualities as mentioned therein. In support of the said submission, the learned counsel for the petitioner relied upon a Division Bench Judgment of this court reported in 1988 Mh.L.J. 228 in the matter of Agricultural Produce Market Committee, Arvi vs. State of Maharashtra and ors., wherein the Division Bench has inter alia held that the said provision was incorporated, as the Legislature had thought it fit to provide for appointment of the Administration as a matter of course leaving no discretion with any officer. The Division Bench has further held that Section 15A is mandatory in character and the view expressed by it is not only in consonance with the plain language used, but also the object sought to be achieved. The learned counsel for the petitioner would, therefore, contend that the continuing of the Market Committee beyond the tenure is illegal and cannot be countenanced in the teeth of the statutory provisions. 8. Per contra, it is submitted on behalf of the Market Committee and the State Government that in terms of the order of postponement of the elections, the voters’ list is under preparation and that the election programme is likely to be announced in the near future. It is therefore submitted that the interference by this court in its writ jurisdiction at this point of time is not warranted. The learned counsel for the respondents sought to rely upon the judgment of a Division Bench of this court reported in 2010(4) Mh.L.J.360 in the matter of Babasaheb Apparao Akat and ors. It is therefore submitted that the interference by this court in its writ jurisdiction at this point of time is not warranted. The learned counsel for the respondents sought to rely upon the judgment of a Division Bench of this court reported in 2010(4) Mh.L.J.360 in the matter of Babasaheb Apparao Akat and ors. vs. State of Maharashtra and ors., wherein it has been held that the appointment of Administrator straightway is not justified in the absence of any allegation of maladministration or misfeasance committed by members of Committee. Relying on this judgment, it is contended that it is not the case of the petitioners that the Committee which has been granted extension is mal-administering the APMC. The impugned order is also sought to be justified by the learned counsel for the respondents on the touchstone of Section 15(3) of the A.P.M.C. Act so as to contend that the tenure of the Managing Committee would be deemed to be extended. The learned counsel for the respondents further contended that Section 15A of the Act is not attracted as the order is passed under Section 14(3A) of the Act and also further contended that an alternative remedy is available to the petitioners. 9. In the context of the challenge to the impugned order passed by the District Deputy Registrar, it would be relevant to reproduce the statutory provisions which are in contention in the present petition. The said provisions are Sections 14(3), 14(3A), 15(3) and 15A of the Act. 14. 9. In the context of the challenge to the impugned order passed by the District Deputy Registrar, it would be relevant to reproduce the statutory provisions which are in contention in the present petition. The said provisions are Sections 14(3), 14(3A), 15(3) and 15A of the Act. 14. 14(3): Except as otherwise provided in this Act, the members of a Market Committee (not being a Committee constituted for the first time) shall hold office for a period of [five years], and the members of a Committee constituted for the first time shall hold office for a period of two years: [Provided that, the Market Committee constituted for the first time, may be replaced by the Government and the new Committee so replaced shall hold office for the remainder of the period:] [Provided further that], where the general election of members of a Committee could not be held for reasons beyond the control of the Committee before expire of the term of office of its members as aforesaid, the State Government may, by order in the Official Gazette, extend from time to time, the term of office of any such Committee, so however, that the period for which the term of office is so extended shall not exceed the period of one year in the aggregate.] [(3A) Where due to scarcity, drought, flood, fire or any other natural calamity or rainy season or any election programme of the State legislature or the Parliament or a local authority, coinciding with the election programme of any Market Committee or such other special reason, in the opinion of the State Government, it is not in the public interest to hold elections to any Market Committee, the State Government may, notwithstanding anything contained in this Act or in any rules, or byelaw made thereunder, or any other law for the time being in force, for the reasons to be recorded in writing, by general or special order, postpone the election of any Market Committee for a period not exceeding six months at a time which period may further be extended, so, however, that the total period shall not exceed one year in the aggregate.] 15(3): The term of office of outgoing members shall be deemed to extend to, and expire with, the date immediately preceding the date of such first meeting. 15A. 15A. Provision for appointment of Administrator after normal or extended term of office of members expires. (1) Notwithstanding anything contained in subsection (3) of section 15 or any other provisions of this Act, where the term of office of two years, five years, or as the case may be, the extended term of office, if any, under the proviso to subsection (3) of section 14 [ ] of the members of any Market Committee, has expired, the Director or any officer not below the rank of the District Deputy Registrar of Cooperative Societies, authorized by him shall, by order in writing, direct that (a) all members of the Committee shall, as from the date specified in the order, cease to hold and vacate their offices as members or otherwise; and (b) [the Administrator or the Board of Administration appointed by the Director or such authorized officer shall manage the affairs of the Committee], during the period from the date specified in the order up to the day on which the first meeting of the reconstituted Committee after the election is held, where there is a quorum (hereinafter in this section referred to as “the said period”). Such election shall be held within a period of [Six months] from the date the [Administrator or the Board of Administrators] assumes office: [Provided that, this period of [Six months] may be extended, from time to time by the State Government, in exceptional circumstances, to a period not exceeding [one year] in the aggregate, by notification in the Official Gazette, for reasons, which shall be stated in the notification. [(1A) Notwithstanding anything contained in clause (b) of subsection (1) as it stood before the commencement of the Maharashtra Agricultural Produce Marketing Regulation) (Amendment and Validation) Act, 1985, where the Administrator has been to manage the affairs of any Committee but election to such Committee has not been held within a period of one year as required under clause (b) of sub section (1), the period of holding election to such Committee shall be extended and shall be deemed always to have been extended up to, and inclusive of, the 31st day of March, 1986] (2) During the said period, all the powers and duties of the Committee and its various authorities under this Act and the rules and byelaws made thereunder or any other law for the time being in force shall be exercised and performed by [the Administrator or the Board of Administrators] (3) The [Administrator or the Board of administrators) may delegate any of his powers and duties to any office for the time being deserving under him or under the Committee. (4) The [Administrator or the members of the Board of Administrators] shall receive such remuneration from the Market Fund as the director or authorized officer may, from time to time, by general or special order, determine.]] 10. In so far as Section 14(3) of the Act is concerned, as can be seen, the same confers a power on the State Government to grant extension of tenure to the Managing Committee for such period from time to time, so however, that the period for which the term of office is so extended shall not exceed a period of one year. However, the said Section postulates that the State Government shall issue an order and publish it in the official Gazette as regards the said extension. In so far as Section 14(3A) of the Act is concerned, the same confers a power on the State Government to postpone the elections in the eventualities mentioned therein namely; due to scarcity, drought, flood, fire or any other natural calamity or rainy season or any election programme of the State legislature or the Parliament or a local authority, coinciding with the election programme of any Market Committee or such other special reason which in the opinion of the State Government is in public interest. The said section postulates that the postponement of the elections has to be done by the State Government for the reasons to be recorded in writing by general or special order and for a period not exceeding six months at a time. So however, the total period shall not exceed one year in the aggregate. Reading of Section 15 of the Act spells out the date on which the tenure of the Managing Committee commences and Sub-Section 3 thereof postulates that the term of office of the outgoing members shall be deemed to extend to, and expire with, the date immediately preceding the date of such first meeting. In so far as Section 15A of the Act is concerned, the said provisions starts with non abstante clause and provides for the appointment of Administrator after normal or extended term of office of members expires. 11. Now coming back to the facts of the instant case, it is pertinent to note that by Resolution No.8 dated 13/12/2010 the Committee had resolved to request the State Government to extend the term of the members for a period of six months. By order dated 29/12/2010 though the request sought for extension of tenure, the State Government ordered the postponement of the elections of the A.P.M.C., Ghatanji for period of six months up to 27/7/2011 and therefore, it would have to be understood that the State Government did not grant extension of tenure to the Managing Committee, as for the extension of tenure, the statutory provisions postulate that an order is required to be passed by the State Government which is to be published in the official Gazette, admittedly no such order is passed by the State Government. The reasoning given by the District Deputy Registrar that implicit in the fact of the postponement of the elections is the fact of the extension of tenure granted to the Managing Committee can only be stated to be rejected in the context of the statutory provisions. The extension of tenure of the Managing Committee, as can be seen from the above, is covered by a statutory regime provided under the said Act and is not a trivial matter as is sought to be made by the District Deputy Registrar to say that it would have to be understood that the extension to the tenure is granted because of the postponement of the elections. 12. 12. The reliance of the respondents upon the judgment of the Division Bench of this court in the case of Babasaheb Apparao Akat (supra) is misplaced in view of the fact that the fact situation in the said case were different, in as much as, the Committee members had approached the State Government for extension of time which application was rejected by the State Government resulting in the filing of the proceedings before this court. Such is not the case here. As indicated above, the tenure of the Managing Committee has already expired on 25/01/2011. What has been done by the State Government is only the postponement of the elections by the order dated 29/12/2010 without there being any order under Section 14(3) of the Act of the extension of tenure of the Managing Committee. It is in the said context that the District Deputy Registrar was obliged to consider the application filed by the petitioner, and consider the issue as regards the appointment of the Administrator by having recourse to Section 15A of the said Act. As mentioned herein above, the order passed by the District Deputy Registrar does not stand to scrutiny in the teeth of the statutory provisions. As contended by the learned counsel for the petitioner, the judgment of the Division Bench in A.P.M.C., Arvi case (supra) would be squarely applicable in the facts of the instant case. The Division Bench whilst considering the provisions of Section 15A of the Act has also considered the provisions of Section 15(3) of the said Act and has held that the provisions of Section 15A of the Act are mandatory and leave no room for choice. 13. The submission of the learned counsel for the respondents that there is an alternate remedy or that since order has been passed under Section 14(3A) of the Act the tenure of the Managing Committee would stand extended, cannot be countenanced for the reasons mentioned herein above. In so far as the alternative remedy is concerned, it is well settled that the same is a matter of discretion and is not an inviolable rule. The abject failure of the statutory authority to act in terms of the statutory provision is writ large in the proceedings. In that view of the matter, the instant petition would have to be allowed and is accordingly allowed. The abject failure of the statutory authority to act in terms of the statutory provision is writ large in the proceedings. In that view of the matter, the instant petition would have to be allowed and is accordingly allowed. Rule is accordingly made absolute in terms of prayer clauses (i) and (ii). Needless to say that the Administrator appointed would conduct the elections to the A.P.M.C., Ghatanji in terms of the elections programme so as to facilitate the elected body to be in place. Authenticated copy of the order be supplied to the parties. At this stage, oral application for stay is made. In the facts and circumstances of the case, prayer is rejected.