Bombay High Court
Ashok Bhumanna Chepurvar vs The State Of Maharashtra on 22 February, 2010
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4783 OF 2009
Ashok Bhumanna Chepurvar,
Age-50 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
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...
Mr.S.B. Talekar Advocate for Petitioner.
Mr.V.H. Dighe, A.G.P. for Respondent
Nos.1 to 4.
Mr.S.V. Adwant Advocate for Respondent No.5.
...
WITH
CIVIL APPLICATION NO.1502 OF 2010
Ashok Bhumanna Chepurvar,
Age-50 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...APPLICANT.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
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WITH
CIVIL APPLICATION NO.1503 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...APPLICANT.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
WITH
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4
CIVIL APPLICATION NO.1966 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
Shri Niranjan Begaji Ingole,
Age-60 years, Occ:Agriculture,
R/o-Basmat, Dist-Hingoli.
... INTERVENOR.
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5
WITH
CIVIL APPLICATION NO.1969 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
Shri Radhakishan Govindrao Sabane,
Age-45 years, Occu:Hamal,
R/o-Basmat, Dist-Hingoli.
... INTERVENOR.
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WITH
CIVIL APPLICATION NO.1971 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
Shri Vishwanath Dinaji Gaware,
Age-52 years, Occu:Agriculture,
R/o-Piprala, Tq-Basmat,
Dist-Hingoli.
... INTERVENOR.
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7
WITH
CIVIL APPLICATION NO.1973 OF 2010
1) Uttam Ramrao Kadam,
Age-56 years, Occ: Business,
R/o-Pimparala, Tq-Basmat,
Dist-Hingoli,
2) Sakharam Dattarao Narwade,
Age-50 years, Occu:Business,
R/o-Guj, Tq-Basmat,
Dist-Hingoli.
3) Sudhir Yadavrao Wankhede,
Age-40 years, Occu:Business,
R/o-Basmat, Dist-Hingoli.
4) Narayan Vaijinath Khadegaonkar,
Age-35 years, Occu:Business,
R/o-Khadegaon, Tq-Basmat,
Dist-Hingoli.
5) Manik Tukaram Shinde,
Age-50 years, Occu:Business,
R/o-Basmatnagar, Tq-Basmat,
Dist-Hingoli.
6) Sangamnath Gangaram Rajewar,
Age-35 years, Occu:Business,
R/o-Basmat, Dist-Hingoli.
7) Nasir Ahmed Sagir Ahmed,
Age-45 years, Occu:Business,
R/o-Factory Road, Basmat,
Tq-Basmat, Dist-Hingoli.
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8) Sadanand Vishwanth Yeshwante,
Age-45 years, Occu:Business,
R/o-Lingi, Tq-Basmat,
Dist-Hingoli,
9) Jayashri Sudhir Wankhede,
Age-32 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
10) Suresh Balaji Jakkalwar,
Age-40 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
11) Abhijit Sakharam Kulkarni,
Age-36 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
12) Anusaya Vijay Shingapure,
Age-35 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
...APPLICANTS.
VERSUS
1) Ashok Bhumanna Chepurvar,
Age-50 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...ORI.PETITIONER.
2) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
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3) The Director of Marketing,
Central Building at Pune,
4) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
5) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
6) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
...
Mr.S.B Talekar Advocate for Applicant in Civil
Application No.1502 of 2010 and 1503 of 2010.
Mr.V.D. Salunke Advocate for Intervenor in
Civil Application No.1966 of 2010.
Mr.C.V.Korhalkar Advocate for Intervenor in
Civil Application No.1969 of 2010.
Mr.A.S. Deshpande Advocate for Intervenor in
Civil Application No.1971 of 2010.
Mr.A.D. Shinde Advocate for Applicants in
Civil Application No.1973 of 2010.
...
CORAM: A.M. KHANWILKAR AND
S.S. SHINDE, JJ.
DATE : 22ND FEBRUARY, 2010.
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JUDGMENT (PER A.M. KHANWILKAR, J.) :
1. Heard learned counsel for the parties. Rule.
Rule made returnable forthwith. By consent of the learned counsel for the parties, the matter was taken up for final hearing at the stage of admission itself.
2) The Petitioner claims to be a trader, being a commission agent. He has a shop in the market yard of the Respondent No.5 Krushi Utpanna Bazar Samiti, Basmat. The term of the market committee expired some time in November, 2006, however, the same was extended up to 30th September, 2008 by the appropriate Authority vide order dated 23rd March, 2007, 14th November, 2007 and lastly on 25th May, 2008. Admittedly, there is no further extension to the committee after 30th September, 2008. Nevertheless, the same committee continued to manage the affairs of the Respondent No.5 committee. It is stated that the committee ::: Downloaded on - 09/06/2013 15:38:24 ::: 11 published a list of 327 members who were either traders or commission agents or shop keepers in B class during the year 2005-2006. This list was published on 12th August, 2006. It is stated that the Petitioner took objection regarding renewal of license in respect of 113 members named in the said list. According to the Petitioner the said members were neither resident of Basmat within the area of operation of the Respondent No.5 Committee nor were engaged in the business in the said area during the relevant period. That is evident from the fact that none of them paid the market fees during the relevant period.
3. In support of the stand that the said persons were not residents of Basmat, the Petitioner relies on the letter dated 14th January, 2009, issued under the signature of Chief Executive Officer of Municipal Council, Basmat Nagar, which mentions that 49 persons named by the Petitioner were not residents of Basmat Nagar. Insofar as assertion that the named persons have not paid ::: Downloaded on - 09/06/2013 15:38:24 ::: 12 market fees during the relevant period, reliance is placed on the communication dated 22nd January, 2009 issued under the signature of the Secretary of the Respondent No.5 Committee addressed to the Petitioner. Along with the said communication, a chart indicating the payment of market fees during the period 2004-2005, 2005-2006 and 2006-2007 against the name of each of the 153 persons was enclosed. As per the communication dated 22nd January, 2009, it is obvious that the Respondent No.5 accepts the position that out of 153 persons named by the Petitioner, only 2 have paid market fees for all the three years and 12 paid the market fees for one year or more for the relevant period between 2004-2005 to 2006-2007. Whereas, at least 139 persons have not paid the market fees at all during that period.
4. It is the case of the Petitioner that he took up the issue before the Assistant Registrar, complaining about at least 113 license holders who were purportedly traders, were not doing business ::: Downloaded on - 09/06/2013 15:38:24 ::: 13 within the area of operation of Respondent No.5 Committee. The Assistant Registrar, by his communication dated 9th May, 2008 informed the Petitioner that after due enquiry, it has been found that out of the 113 license holders, only 13 license holders were ineligible and for which reasons their licenses have been cancelled by the Respondent No.5 Committee by order dated 1st April, 2008. In other words, the Petitioner partly succeeded in the enquiry before the Assistant Registrar to the extent of 13 license holders.
Insofar as remaining 100 license holders (traders) are concerned, the Assistant Registrar, after due enquiry, rejected the claim of the Petitioner. It is noticed that this order has become final.
5. Some time on 18th December, 2008 provisional list in respect of traders constituency of the Respondent No.5 Committee was published which was prelude to the conduct of elections to elect new Committee. The Petitioner on 30th December, 2008, made application to the Secretary of the ::: Downloaded on - 09/06/2013 15:38:24 ::: 14 Respondent No.5 Committee under the Right to Information Act, 2005 calling upon the Respondent No.5 to furnish details about the named 153 license holders. In response to the said enquiry, the Secretary of the Respondent No.5 Committee furnished the requisite information vide his communication dated 22nd January, 2009 and also forwarded the chart indicating the addresses and the amount of market fee paid by each of the member during the period 2004-2005 to 2006-2007.
As aforesaid, from this chart it is noticed that only 2 license holders at sr. Nos. 34 and 146 paid market fees for all the three financial years and 12 license holders paid market fees for one or more years.
6. In response to the draft voters list, several members of the Respondent No.5 Committee raised objection regarding the inclusion of names of ineligible persons in the list of license holders therein. The objections filed in the prescribed form by different members have been placed on ::: Downloaded on - 09/06/2013 15:38:24 ::: 15 record as Exhibit H collectively. By this separate 17 objections filed by the respective members, objections were taken regarding wrongful inclusion of in all 209 ineligible persons.
7. Insofar as the Petitioner before this Court is concerned, he took objection only in respect of wrongful inclusion of names of 10 persons named by him who were at serial Nos. 3, 5 to 9, 337, 339, 340 and 342 respectively in the traders constituency on the ground that the said persons were not doing any business nor have had any shops within the area of operation of Respondent No.5 Committee. In support of the contention that the said persons did not have any shop within the area of operation of Respondent No.5 Committee, the Petitioner placed reliance on the communication dated 9th January, 2009 received by him from the Government Labour Officer under the provisions of the Right to Information Act, 2005. It mentions that out of the 160 named persons in his application, only 8 persons were possessing ::: Downloaded on - 09/06/2013 15:38:24 ::: 16 license under the Mumbai Shops and Establishments Act, 1948. The said communication also records that in all probabilities, the shops of other named persons was either outside the Basmat Municipal Council area or in the rural area, for which reason they have not obtained license under the Mumbai Shops and Establishments Act, 1948.
8. As aforesaid, the Petitioner took objection only in respect of 10 persons named in the draft voters list, referred to in his application dated 16th January, 2009. The District Deputy Registrar, disposed of all the objections together by common order dated 20th February, 2009 on the finding that all the 17 objections filed by different members in respect of in all 209 names appearing in the draft voters list in traders constituency raised similar grounds. He has held that detailed enquiry was undertaken and it was noticed that objections regarding only 6 names can be sustained as the record does not indicate that necessary steps were taken for renewal of their licenses. He ::: Downloaded on - 09/06/2013 15:38:24 ::: 17 further found that in respect of remaining 203 traders named in the draft voters list, all paper formalities for renewal of their licenses as well as payment of fees by them has been fulfilled, for which reason it was not possible to delete their names from the voters list. Consistent with this finding, the 17 objections were disposed of by deleting the names of only 6 voters from the voters list out of the objections to 209 names.
This decision of the District Deputy Registrar dated 20th February, 2009 is subject matter of challenge in the present Petition as the names of 203 voters have been retained in the voters list.
9. The final voters list accordingly includes the names of remaining 203 persons in the traders constituency. In the present Petition, therefore, besides challenging the order passed by the District Deputy Registrar dated 20th February, 2009, the Petitioner prays for appropriate writ to direct the District Deputy Registrar of Co-
operative Societies (Respondent No.3) and the ::: Downloaded on - 09/06/2013 15:38:24 ::: 18 Assistant Registrar, Co-operative Societies (Respondent No.4) to hold the enquiry regarding the validity of the licenses issued to 153 members whose names have been mentioned in Exhibit G to the Petition and further to initiate proceedings against them to cancel their licenses from the final voters list of the traders constituency of the Respondent No.5 Committee and to delete their names from the final voters list.
10. The present Petition has been filed on 7th July, 2009. The Petition as originally filed, the order dated 20th February, 2009 was not specifically challenged. The Petitioner has amended the Petition on 8th February, 2010 and has now challenged the said order dated 20th February, 2009 passed by the Respondent No.3. Besides amending the Petition, the Petitioner has taken out Civil Application No.1503 of 2010 praying for liberty to allow them to implead 153 members named in Exhibit G to the Petition as Respondents in the present Petition. This application has been taken ::: Downloaded on - 09/06/2013 15:38:24 ::: 19 out in the context of preliminary objection raised on behalf of the Respondents during the course of hearing regarding the maintainability of the Petition due to non impleadment of the said 153 persons as party Respondents even though the relief claimed by the Petitioner was to directly affect them. Besides, the Petitioner has filed Civil Application No.1502 of 2010 praying for interim injunction restraining the said 153 members named in Exhibit G to the Petition, whose names are included in final voters list from participating in the ensuing election process till the disposal of this Petition.
11. This Petition as well as Civil Applications have been resisted by the Respondents. The Respondent No.5 relies on the affidavit of Balasaheb Gangadharrao Katore, its Secretary, dated 1st February, 2010. In the first place, it is asserted that the Petitioner does not possess a valid license as commission agent after 31st August, 2008 and, therefore has no locus to file ::: Downloaded on - 09/06/2013 15:38:24 ::: 20 the present Petition. It is further stated that all licenses have been granted or renewed by the Committee as per Section 7 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to 'the Act of 1963') read with Rule 6 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as 'the Rules of 1967'), in favour of the traders covered under category B only after satisfying that they have complied with all the requirements necessary for issuance/renewal of the license, by following due process of law. The said Respondent placed on record a chart indicating the date of issuance of license, date of renewal thereof and the date on which license fee has been paid, along with the names and addresses of the concerned 153 license holders. It is asserted that names of each of these 153 license holders are found in the register maintained by the Committee as on 31st December, 2007 and was sent at least three months before the date to the Respondent No.3 for ::: Downloaded on - 09/06/2013 15:38:24 ::: 21 finalization of the voters list. It is stated that as per the amended provisions, the names of traders who were holding licenses for two preceding years are required to be enlisted in the voters list and therefore their names were considered by the Committee while preparing the list of voters forwarded to the Respondent No.3.
12. According to the Respondent No.5, the voters list which is published under Rule 36 of the Rules of 1967 is conclusive evidence for the purposes of determining as to whether any person is qualified to vote as is provided by Rule 37 and for which reason the grievance of the Petitioner cannot be looked into at this stage. It is further stated that the Petitioner had raised objection regarding wrongful renewal of license of 113 license holders and that enquiry was undertaken by the appropriate Authority who accepted the objection of the Petitioner only in respect of 13 licensees and those licenses were eventually cancelled. In other words, the challenge to the renewal of license of ::: Downloaded on - 09/06/2013 15:38:24 ::: 22 remaining 100 licensees stood negatived after due enquiry. Nevertheless, the Petitioner has once again included the names of all the 113 traders who are part of the list of 153 traders Exhibit G. Therefore, it is not possible to reopen the enquiry in respect of those 113 traders.
13. The Respondent Nos. 3 and 4 have filed affidavit of Ashok Ramchandra Giri, Assistant Registrar, who has more or less supported the stand of the Respondent No.5 and has stated that 153 members are eligible and their licenses have been renewed from time to time. It is further stated that the election programme has already commenced with publication of notification on 31st December, 2009 and it may not be appropriate to interfere with the same at this stage. Further, pursuant to the said notification, 183 members submitted their nominations and after scrutiny and withdrawal, 39 members are contesting as candidates and the election has been scheduled on 21st February, 2010. Therefore, no interference is ::: Downloaded on - 09/06/2013 15:38:24 ::: 23 warranted at the hands of this Hon'ble Court.
14. The Petitioner has filed rejoinder affidavits dated 16th February, 2010 and 17th February, 2010 reiterating his stand and further asserting that the wrongful inclusion of ineligible voters was at the behest of the present Chairman who is very powerful and influential person and close confident of Ex-Minister and the sitting M.L.A. The Petitioner has refuted the stand of the Respondent No.5 that the Petitioner is not a trader and did not have a valid license. The Petitioner has relied on the fact that the Petitioner was called upon to pay the license fees on 5th May, 2009 and that the Petitioner has paid amount towards the shop rent as recently as on 14th January, 2010. Besides, the Petitioner has filed his nomination form and is contesting from the traders constituency which has been accepted.
It is stated that inspite of this a false and misleading plea is taken by the Respondent No.5 about the locus of the Petitioner. The Petitioner ::: Downloaded on - 09/06/2013 15:38:24 ::: 24 has asserted that 153 persons named in Exhibit G were neither residing in the area of operation of the Respondent No.5 Committee nor were doing business in the said area, which is evident from the fact that no market fee has been paid by at least 139 persons out of the 153 persons and market fee only for one year or more has been paid by 12 persons. It is submitted that the fact that the said persons have failed to pay market fees, presupposes that they were not doing the business in the area of operation of the Respondent No.5 Committee during the relevant period and for which reason the action of renewing their license by the Respondent No.5 Committee was in excess of authority and contrary to the provisions of law. According to the Petitioner even though the election programme has commenced, that would not be an impediment to set right the defective voters list relating to traders constituency which consists of 327 members, out of which grant/renewal of license to as many as 139 persons who have failed to pay any market fee ::: Downloaded on - 09/06/2013 15:38:24 ::: 25 during the relevant period as also 12 persons who have paid market fee only for one year or more, has become questionable. Since the grant/renewal of license of such persons itself was illegal, it would necessarily follow that names of those persons could not be continued in the voters list of eligible voters. It is submitted that since large number of licenses have been renewed in excess of authority, that would have material impact on the validity of elections in respect of traders constituency and at any rate such elections cannot be termed as free and fair elections.
15. During the pendency of this Petition, four Intervention Applications have been filed, being Civil Application No.1966 of 2010 by Niranjan Begaji Ingole, Civil Application No.1969 of 2010 by Radhakishan Govindrao Sabane, Civil Application No.1971 of 2010 by Vishwanath Dinaji Gaware and Civil Application No.1973 of 2010 by Uttam Ramrao Kadam and 11 others. Insofar as Civil Application ::: Downloaded on - 09/06/2013 15:38:24 ::: 26 Nos. 1966 of 2010, 1969 of 2010 and 1971 of 2010 are concerned, the same have been filed by members of the Respondent No.5 Committee falling under different constituencies. These applications have been filed on the apprehension that the Court may accede to the request of the Petitioner to stay the entire election. However, it is noticed that the incidental relief claimed in the present Petition to question the validity of the election process is only in respect of the traders constituency. Even the counsel appearing for the Petitioner, in all fairness, stated before the Court that the Petitioner was not interested in staying the entire election process but wanted his grievance to be redressed in respect of challenge to the inclusion of ineligible voters of traders constituency. In the circumstances, nothing would survive for consideration in these three Civil Applications.
16. Insofar as Civil Application No.1973 of 2010 is concerned, the same is filed by persons who ::: Downloaded on - 09/06/2013 15:38:25 ::: 27 have been named in the list of 153 persons, Exhibit G stated to be ineligible for grant/ renewal of license. According to them, in the light of decision of our High Court in the case of Shree Adinath Sahakari Sakhar Karkhana Ltd. and another vs. State of Maharashtra and others, 2006 (6) Mh. L.J. Page 309, the Writ Petition should be dismissed for non joinder of necessary parties. We would consider this aspect a little later.
17. Before proceeding further, we would think it apposite to deal with the preliminary objection regarding the locus of the Petitioner as he does not possess a valid license. This objection is founded on the contents of Form No.1 produced by the Petitioner at Exhibit A to the Petition, which discloses that the license issued to the Petitioner was to remain valid till 31st August, 2008 and there is no endorsement of further renewal thereof. We are intrigued by the stand taken by the Respondent No.5 Committee in this behalf. For, the Respondent No.5 was obviously ::: Downloaded on - 09/06/2013 15:38:25 ::: 28 aware that the Petitioner had paid rent for shop No.13 in the sum of Rs.59,930/- as recently as on 14th January, 2010. Besides, the Secretary of the Respondent No.5 had called upon the Petitioner to pay market fee and supervision fee and in any case the Petitioner is one of the candidate contesting the ensuing election and his nomination has been accepted from traders constituency by the Returning Officer on 16th January, 2010. It is too late in the day for the Respondent No.5 to now contend that the Petitioner has no locus to pursue the present action. Accordingly, we reject this preliminary objection.
18. Insofar as the grievance made by the Applicants in Civil Application No.1973 of 2010 that the Writ Petition should be dismissed for non joinder of necessary parties, we would dispose of the same on three counts. Firstly, because we find merits in the stand taken by the Petitioner that the Petitioner is not seeking relief directly against the said persons. The Petitioner has ::: Downloaded on - 09/06/2013 15:38:25 ::: 29 merely asked for direction against Respondent Nos.
3 and 4 to hold enquiry into the question of validity of licenses issued to the named 153 persons mentioned in Exhibit G and to initiate action to cancel their licenses by following due process of law. The interest of said 153 members would be affected only if Respondent Nos. 3 and 4 were to initiate proceedings for cancellation of their licenses by following due process of law and not before that. So long as the licenses granted/renewed in favour of the said persons were in force, they would continue to remain in the voters list subject to fulfilling other requirements if any. It is only upon cancellation of their license, the names of concerned members would be struck off from the voters list and that would happen only after due enquiry to be initiated by the appropriate Authority against such persons. Secondly, we find that the Petitioner was not claiming relief of interdicting the election process as such but has raised issues regarding improper grant/ renewal of license by ::: Downloaded on - 09/06/2013 15:38:25 ::: 30 the Respondent No.5 Committee in favour of persons who were ineligible and which action was in the teeth of the mandatory provisions since the said persons were not residing in the area of operation of the Respondent No.5 Committee and also did not carry on any business in that area and have failed to pay the market fee for the relevant period. In the case of Shree Adinath Sahakari Sakhar Karkhana Ltd. and another vs. State of Maharashtra and others (supra), the challenge was directly to the wrongful inclusion of 4139 individuals in the final voters list as members of the Petitioner society therein. Be that as it may, the Petitioner has filed Civil Application No.1503 of 2010 and has sought liberty to implead all the 153 members in the traders constituency referred to in Exhibit G as party Respondents to the Writ Petition. In the light of the said Civil Application, the objection raised by the Intervenors does not have any force.
19. Reverting to the merits, the grievance of ::: Downloaded on - 09/06/2013 15:38:25 ::: 31 the Petitioner is that grant/ renewal of licenses to the concerned persons, is contrary to the mandate of law and that the Respondents have acted in excess of authority. According to the Petitioner, only persons residing within the area of operation of the Respondent No.5 Committee, were entitled for grant/ renewal of license. Secondly, they should be carrying on business within the area of operation during the relevant period, which is a condition precedent for renewal of their license. The fact of non payment of market fees by the concerned 153 persons to the Respondent No.5 Committee, during the relevant period presupposes that they were not carrying on business within the market area. In such a situation, the Respondents in the first place ought not to have renewed their licenses and in any case ought to have initiated action for cancellation or suspension of licenses qua such persons and if adverse decision was to be taken, such persons would cease to be in the voters list.
::: Downloaded on - 09/06/2013 15:38:25 ::: 3220. Before we analyze these aspects, it needs to recapitulated that the list of 327 traders/ licensees whose licenses were granted/renewed during the year 2005-2006 was published in August, 2006. The Petitioner filed objection in respect of 113 licensees named in the said list. That objection was considered by the Assistant Registrar and accepted only in part to the extent of 13 license holders. In respect of remaining 100 license holders the Assistant Registrar noted that their license has been renewed by the Committee and they have paid the fees. In other words, the inclusion of remaining 100 members in the said list was upheld by the Assistant Registrar. This decision of the Assistant Registrar has attained finality. By the same order, the Assistant Registrar, however, found that only 13 members were ineligible for renewal of license and therefore their licenses were cancelled on 1st April, 2008. Significantly, the names of those 100 members whose grant/renewal of license has been upheld, are not forthcoming. According to the ::: Downloaded on - 09/06/2013 15:38:25 ::: 33 Respondents, the Petitioner in the list annexed at Exhibit G of 153 members, has once again included the names of 113 members in relation to whom after enquiry the Assistant Registrar rejected the claim of the Petitioner qua 100 license holders.
21. Further, it is noticed that the Petitioner filed objection after the publication of draft voters list and questioned the wrongful inclusion of only 10 members as mentioned in document annexed at Exhibit H collectively at page 70. The other 16 objections in respect of 199 members were taken by 16 different applicants. Those applicants have not questioned the decision of the District Deputy Registrar dated 20th February, 2009 before us. Indeed, the Petitioner can legitimately pursue his grievance at least in respect of 10 members referred to in his objection filed before the Respondent No.3. Insofar as those 10 persons are concerned, the Respondent No.3 has negatived the objection filed by the Petitioner on the finding that those persons have completed all paper ::: Downloaded on - 09/06/2013 15:38:25 ::: 34 formalities and have also paid the fees to the Respondent No.5 Committee. That is a finding of fact, which cannot be interfered with in this proceedings unless it is perverse. From the chart appended to the reply affidavit filed by the Respondent No.5 Committee, it is seen that license has been granted/ renewed in favour of each of these 153 members and they have paid fees in that behalf on different dates much prior to the cut-
off date i.e. 31st December, 2007. We have no reason to doubt the stand taken by the Respondents that the objection to the names of said 113 persons culminated with the order passed by the Assistant Registrar dated 9th May, 2008. Out of the 153 persons referred to in Exhibit G, on excluding names of said 113 persons which are common, the Petitioner could have made grievance in respect of 40 remaining license holders.
However, the Petitioner challenged inclusion of only 10 persons in the voters list, on the ground that grant/ renewal of license in their favour was inappropriate. That challenge has been examined ::: Downloaded on - 09/06/2013 15:38:25 ::: 35 and negatived by the Respondent No.3. The Petitioner cannot be heard to make grievance about the wrongful inclusion of other names in the voters list in the present Petition, especially when other 16 objectors who had objected to the names of in all 199 members, have not chosen to assail the decision of the Respondent No.3. Thus understood, we are of the opinion that the challenge to the draft voters list in respect of wrongful inclusion of 153 trader/ members must fail. That, however, would not preclude the Petitioner to pursue his remedy against the appropriate authority to enquire into the validity of renewal of licenses of those 153 persons and/or to initiate action to cancel their licenses. In as much as, the consideration for examining the objection regarding the wrongful inclusion in the voters list is limited to see as to whether that persons has had a license in force on the relevant date and paid the fees.
22. Insofar as the argument of the Petitioner that ::: Downloaded on - 09/06/2013 15:38:25 ::: 36 the renewal of license was inappropriate as the concerned members were not residing within the area of operation of the Respondent No.5 Committee, we find that neither the Act nor the Rules or bye-law make such a provision. On the other hand, Section 2 (1) (t) of the Act of 1963 defines the term "trader" to mean a person who buys or sells agricultural produce, as a principal or as duly authorized agent of one or more persons. Section 6 of the Act of 1963 provides that, no person shall, on and after the date on which the declaration is made under sub-section (1) of section 4, without or otherwise than in conformity with the terms and conditions of, a license can use any place in the market area for the marketing of the declared agricultural produce or operate in the market area. Sub-section (2) of Section 6 provides that nothing in sub-section (1) shall apply to sales by retail; sales by an agriculturist who sells his own produce; nor to sales to by a person where he himself sells to another who buys for his personal consumption or ::: Downloaded on - 09/06/2013 15:38:25 ::: 37 the consumption of any member of his family.
Section 7 deals with the mechanism of grant or renewal of licenses. It stipulates that the market committee, after due inquiries, may grant or renew a license for the use of any place in the market area for marketing of the agricultural produce or for operating therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of agricultural produce;
or may, after recording its reasons in writing therefor, refuse to grant or renew any such license. Sub-section (3) of Section 7 provides that any trader who desires to operate in more than one market area, may apply to such authority or officer notified by the State Government for grant or renewal of license with such details as may be prescribed. Another relevant Section to analyze this controversy would be Section 8 of the Act of 1963, which authorizes the market committee for reasons to be recorded in writing, to suspend or cancel a license. The five grounds ::: Downloaded on - 09/06/2013 15:38:25 ::: 38
(a) to (e), specified in sub-section (1) of Section 8 do not provide that the person should be residing in the area of operation of the Committee. We would assume that clause-(b) can be invoked if the license holder commits breach of any of the terms or conditions of license. The terms and conditions of license can be discerned from Form No.1 found in the Rules of 1967. Even on fair reading of every clause thereof, it is not possible to countenance the argument that the license holder should necessarily be a resident within the area of operation of the Committee. On the other hand, the scheme of the Chapter II of the Act would indicate that a person can be granted license who is thereafter authorized to use any place in the market area for marketing of agricultural produce or for operating therein in the stated capacity. Significantly, Section 7 (3) envisages that a person can operate in more than one market area. If so, it is unfathomable that such a person is expected to be resident of such multiple market areas. Suffice it to observe that ::: Downloaded on - 09/06/2013 15:38:25 ::: 39 the scheme of Chapter II of the Act nor the Rules of the model license conditions mandate that the trader should be residing in the market area as such.
23. Insofar as the challenge on the ground that the grant/ renewal of license in favour of named 153 persons is in excess of authority because the said persons were not doing any business in the market area or area of operation of the Respondent No.5 Committee during the relevant period is concerned, the Petitioner has relied on the document such as information disclosed to him by the officials which would indicate that about 139 members have not paid any market fees during the relevant period at all and that only 8 members have shops and establishments license within the area of Basmat Nagar Municipal Council, which is indicative of the fact that such persons were not carrying on business within the area of operation of the Respondent No.5 Committee. Insofar as the information disclosed in communication dated 9th ::: Downloaded on - 09/06/2013 15:38:25 ::: 40 January, 2009 by the information officer, that by itself cannot be the basis to hold that only 8 members out of 160 members, were legitimately carrying on their business within the area of operation of the Respondent No.5 Committee. The communication merely records that out of 160 names, only 8 have shops and establishment license. It also records that in all probabilities, the other persons may be having shops outside the Basmat Nagar area or in rural area. In other words, this communication is not conclusive of the fact that the remaining 152 persons were not carrying on business within the limits of "area of operation of the Respondent No. 5 Committee" as such.
24. Insofar as the chart Exhibit G furnished to the Petitioner by the Respondent No.5 Committee, it does reveal that only 2 members have paid market fee for all the three financial years i.e. between 2004-2005 to 2006-2007. Out of 153 members at least 139 members have not paid any market fee ::: Downloaded on - 09/06/2013 15:38:25 ::: 41 for the three preceding financial years, whereas 12 members have paid market fee either for one year or more than one financial year. The fact that no market fee has been paid by the concerned members, that would certainly be indicative of the fact that the concerned trader was not carrying on any business within the limits of area of operation of the Respondent No.5 Committee during such period. Assuming that he was carrying on the licensed business he has failed to pay the market fee. That may be in violation of the terms of the license and a ground for cancellation of license.
To counter this submission, it was argued that there is nothing to indicate that the licensee has to continuously carry on business in the market area and having failed to do so, would result in cancellation or non renewal of his license.
25. In our view, on conjoint reading of Section 6 and 7 of the Act of 1963, it would appear that the person who intends to carry on business in the market area for marketing of the agricultural ::: Downloaded on - 09/06/2013 15:38:25 ::: 42 produce or for operating therein in the stated capacity, is obliged to obtain license from the Committee of such market area. Obviously, the license is granted only to the aspiring persons who "actually or genuinely intend" to carry on business during the license period and not as an idle formality so as to increase the number of traders on the rolls of the Committee. The language of definition of term "trader" as also Section 6 would suggest that the person should be engaged in the activity of buying and selling of agricultural produce within the market area in praesenti. The fact that a license holder is expected to carry on business in the market area, is reinforced from condition No.6 of the license which postulates that the licensee 'shall carry on business' in the stated capacity only and at such places for which the license is issued and unless the licensee carries on any other business under a license granted under the said rules, shall not carry on any other business of a market functionary in the market area or in any market ::: Downloaded on - 09/06/2013 15:38:25 ::: 43 therein. A priori, if the license holder discontinues his business or fails to carry on business in the market area during the relevant period, the question of renewal of license of such license holder does not arise.
26. Assuming that the license has been renewed, it is always open to the market committee to cancel or suspend such license by invoking powers under Section 8 (1) (b) of the Act of 1963 - which postulates that such action can be resorted to where the holder of license or any servant or any one acting on his behalf with his express or implied permission, commits a breach of any of the terms or conditions of the license. The power is coupled with the duty, inter-alia to uphold the interest of genuine traders operating in the market area. The grant or "renewal of license"
therefor, can and should be only to persons who are genuinely interested in carrying on business in the market area for marketing of the agricultural produce or for operating therein in ::: Downloaded on - 09/06/2013 15:38:25 ::: 44 the stated capacity during the relevant period. If that activity is not pursued without any sufficient cause, merely because the person may declare his intention to undertake such activity, cannot be the basis to renew the license. As aforesaid, in the present case admittedly 139 members have not paid market fee during the preceding three financial years between 2004-2005 to 2006-2007, which is indicative of the fact that they were not carrying on business within the market area at all. Payment of license fee cannot absolve the person from continuing to carry on the business in the market area. The renewal of license could be only in favour of those license holders who are actually and genuinely engaged in carrying on business within the market area in the stated capacity. The fact that such members are willing to pay license fee or renewal fee, would not take the matter any further as the factum of payment of license fee is no indication of the fact that the person is in fact carrying on the business in the market area. A person who is not ::: Downloaded on - 09/06/2013 15:38:25 ::: 45 actually engaged in carrying on business in the market area would obviously renew his license for purposes other than carrying on business in the market area including to contest in the elections of the Committee so as to become part of the Management or affairs of the Committee. Such person will have no inkling about the difficulties and problems faced by the traders community in the market area. Therefore, renewal of license of such person would be antithesis to the democratic values and more so free and fair elections qua the traders constituency.
27. Having said this, we would accede to the prayer of the Petitioner to direct the Respondent Nos. 3 and 4 to hold enquiry into the validity of licenses granted/ renewed in favour of ineligible persons in particular, referred to in Exhibit G who have not engaged themselves in carrying on the business for marketing of the agricultural produce in the market area in the stated capacity during the license period without any sufficient cause.
::: Downloaded on - 09/06/2013 15:38:25 ::: 46We are conscious of the fact that after the enquiry, it is possible that the appropriate authority may have to initiate action for cancellation of license already granted to such ineligible persons whose number may be quiet substantial. Even so, we do not intend to interfere with the order passed by the Respondent No.3 impugned in this Petition dated 20th February, 2009 so as to reopen the challenge regarding inclusion of names of such ineligible traders in the final voters list. This is so because as we have already noticed that the challenge in respect of 113 license holders has been duly enquired by the Assistant Registrar vide order dated 9th May, 2008, and it is negatived in respect of at least 100 license holders, which order has become final. Moreover the Petitioner raised objection regarding wrongful inclusion of ineligible persons in the voters list of only 10 licensed traders, which claim has been negatived by the Respondent No.3. So long as the license issued in favour of a trader was in force ::: Downloaded on - 09/06/2013 15:38:25 ::: 47 and he has paid the fees, as per the extant Regulation, his name would continue to appear in the voters list. It is only upon cancellation of his licence, the question of excluding his name from the voters list would arise. That will be done with prospective effect. Admittedly, the election is being held on the basis of voters list as on 31st December, 2007 and the cancellation of license would be prospective - to be done hereinafter. That cannot be the basis to interdict the present election process, which is already in progress and has reached at the advanced stage of polling on 21st February, 2010. In the circumstances, it may not be possible to grant substantive relief in terms of prayer clauses (B) and (F) as prayed by the Petitioner. Those prayers will have to be negatived. The Petitioner however, would succeed only in respect of prayer clause (A), which action will have to be proceeded by following due process of law. This however, shall not preclude the Petitioner to pursue his remedy of raising an election dispute under Rule 88 of ::: Downloaded on - 09/06/2013 15:38:25 ::: 48 the Rules after conclusion of the elections, if so advised. All questions in the said proceedings will have to be decided on its own merits.
28. For the view we have taken, it may not be necessary to burden this Judgment with the reported decisions relied upon by the counsel for the parties as the same do not have bearing on the view that we have taken. To complete the record we may only make reference to those decisions. The Petitioner relied on the Supreme Court decision in the case of Bar Council of Delhi vs. Union of India, A.I.R. 1980 Supreme Court, 1612 (Paras 8 and 10), Ahmednagar Zillha S.D.V. & P. Sangh vs. State of Maharashtra and others, 2004 (1) S.C.C. Page 133 (Paras 3 to 6), Pundlik vs. State of Maharashtra, A.I.R. 2005 Supreme Court, Page 3746 (Paras 16 and 17), and the decision of Division Bench of this Court in Dattatraya Kachru Chine vs. State of Maharashtra, 2005 (4) Mh. L.J. Page 243 (Para 23), Bapu Maruti Rakshe vs. State of ::: Downloaded on - 09/06/2013 15:38:25 ::: 49 Maharashtra, 2007 (3) Bom. C.R. Page 615 (Paras 8 and 9) and decision of Single Judge of this Court in Shivajirao Prataprao Chaulukya vs. State of Maharashtra, 2009 (2) Bom. C.R. Page 580 (Paras 14 and 18), and lastly K. Venkatachalam vs. A. Swamickan & Anr., 1999 (4) S.C.C. Page 526 (Para
27). The counsel for the Respondents have distinguished these decisions and instead have relied on the Judgment of our High Court in the case of Digambar Sadashiv Ghorpade and others vs. Election Registration Officer, Kolhapur, 2003 (1) Mah. L.J. Page 669 (Paras 13, 31) and Judgment in Patan Proper Fal ans Shak Bhaji Kharid Vechan Sahakari Mandli Ltd., Patan vs. Pali Shak Bhaji and Fal Ful Adi Ugarnarao-ni-Kharid Vechan Shakari Mandli Ltd., A.I.R. 1987 Gujrat, Page 33 (Paras 26 to 28) and decision of the Apex Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another, (2001) 8 Supreme Court Cases, Page 509 (Paras 8 to 12).
::: Downloaded on - 09/06/2013 15:38:25 ::: 5029. Accordingly, we are not inclined to interfere with the ensuing elections which would culminate with the polling and declaration of the result on 21st February, 2010 and 22nd February, 2010 respectively, particularly on account of our finding that the election is held on the basis of the voters list as on 31st December, 2007 and even if the license granted/renewed in favour of ineligible persons were to be cancelled, that decision would have prospective effect and cannot have any bearing on the final voters list as on 31st December, 2007. The enquiry to be undertaken by the Respondent Nos. 3 and 4, however, will have to abide by the procedure prescribed for cancellation of licenses. Further, if the Respondent No.5 Committee is required to consider request for renewal of license of any trader hereafter, may have to examine such application keeping in mind as to whether the said incumbent has in fact or not carrying on business within the market area for marketing of the agricultural produce or for operating therein in the stated ::: Downloaded on - 09/06/2013 15:38:25 ::: 51 capacity during the previous financial years without any sufficient cause.
30. Accordingly, this Petition partly succeeds.
Rule is made absolute only in terms of prayer clause (A), which reads thus:
"(A) To direct the Respondent Nos.3 and 4 to hold an inquiry as to the validity of the licenses issued to 153 members whose names are included in the list at Exhibit G and to initiate proceedings so as to cancel their licenses by following due process of law by issuing writ of mandamus or any other appropriate writ, order or directions, as the case may be"
31. Insofar as Civil Applications for intervention ::: Downloaded on - 09/06/2013 15:38:25 ::: 52 are concerned, the same are disposed of for the afore-stated reasons. Insofar Civil Application filed by the petitioner for liberty to implead 153 persons as party Respondents as well as Civil Application for interim relief against those persons, both these Civil Applications are also disposed of in terms of this order.
32. Interim order is vacated forthwith.
[S.S. SHINDE, J.] [A.M. KHANWILKAR, J.] asb/FEB10/wp4783.09 ::: Downloaded on - 09/06/2013 15:38:25 :::