Bombay High Court
Sadashivrao Ganpatrao Mahajan vs The Election Officer And Assistant on 23 September, 2010
Author: S. A. Bobde
Bench: S. A. Bobde, Mridula Bhatkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 2851/2010
Sadashivrao Ganpatrao Mahajan,
aged 53 years, Occ. Agriculturist, r/o at Post
Waradh, Tah. Ralegaon, Dist. Yavatmal. .....PETITIONER
...V E R S U S...
1. The Election Officer and Assistant
Registrar for election of Agriculture
Produce Market Committee, Ralegaon,
c/o District Deputy Registrar, Yavatmal.
2. Prafulla s/o Khushalrao Mankar,
aged major, Occ. Agriculturist, r/o at Saoner,
Tah. Ralegaon, Dist. Yavatmal.
3. District Deputy Registrar, Cooperative Societies,
Yavatmal, Tah. And Distt. Yavatmal.
4. State of Maharashtra, through the Secretary,
Department of Co-operation, Marketing and
Textiles, Mantralaya, Mumbai-32. ....RESPONDENTS
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Mr. S. Paliwal, Advocate for petitioner.
Mr. N. W. Nambre, Government Pleader for respondent nos.1, 3 and 4
Mr. A. M. Ghare, Advocate for respondent no.2.
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CORAM:- S. A. BOBDE &
MRS. MRIDULA BHATKAR, JJ.
rd
DATE :-
23
SEPTEMBER
, 2010
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2
ORAL JUDGMENT (Per:- S. A. Bobde, J.)
1. The learned counsel for the petitioner seeks leave to amend the prayer clause.
Leave granted. Amendment be carried out forthwith.
Amended slip be served on the respondents.
2. Rule. Rule returnable forthwith. Heard finally by consent of the parties.
3. The petitioner has challenged order dated 03.06.2010 by which it is held that respondent no.2 is eligible to contest the election of Agriculture Produce Market Committee, Ralegaon. The petitioner has further prayed for direction to respondent nos. 2 and 3 to reject nomination papers of respondent no.2 for contesting the election. During the pendency of the petition, respondent no.2 contested the election since there was no stay to the election and has been declared elected to the Agriculture Produce Market Committee, Ralegaon from Co-operative Society's Constituency under Section ::: Downloaded on - 09/06/2013 16:28:46 ::: 3 13(1) (a) (i) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as the "APMC Act").
4. In view of the fact that respondent no.2 has been declared elected, Mr. Sambre, the learned Government pleader, submits that the petitioner has an alternate remedy by way of election petition under Rule 88 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as the "APMC Rules"). Mr. Paliwal, the learned counsel for the petitioner, points out that Rule 88 of APMC Rules has, in fact, been deleted from the book on 02.11.2007. Mr. Sambre, the learned Government Pleader, however, submitted that the deletion of rule 88 was accidental and that the rule has been restored by Notification in the Official Gazette dated 13.08.2010. Rule 88 of the APMC Rules reads as follows:-
"88. Determination of validity of election.
(1) If the validity of any election, including bye-election of a member of a Market Committee is brought in question by ::: Downloaded on - 09/06/2013 16:28:46 ::: 4 any person qualified either to be elected or to vote at the election to which such question refers, such person may, within seven days after the date of the declaration of the result of the election, apply in writing to the Collector.
(2) On receipt of an application under sub-rule (1), the Collector shall after giving an opportunity to the applicant to be heard and after making such inquiry as he deems fit, pass an order confirming or amending the declared result of election or setting the election aside. If the Collector sets aside the election, he shall fix a date, as soon as conveniently may be, for holding a fresh election.
(3) Any person aggrieved by the decision of the Collector may within seven days from the date on which the decision is communicated to him, appeal to the Commissioner appointed under Section 6 of the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966) against such decision of the Collector subject to the decision of the Commissioner appointed under Section 6 of the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966) in appeal shall be final."::: Downloaded on - 09/06/2013 16:28:46 ::: 5
In the circumstances, we see no difficulty in directing the petitioner to avail of the alternate remedy under the APMC Rules.
5. Mr. Paliwal, the leaned counsel for the petitioner, however, points out that the APMC Rules have to be laid before each House of the State Legislature while it is in Session for a total period of thirty days, as required by Section 60 sub section (4) of the APMC Act. Rule 88 of the APMC Rules, not having been so laid before each House while it is in Session for a total period of thirty days, the Rule cannot be said to have come into force and, therefore, the remedy provided by the Rule is also not available. Sub Section (4) of Section 60 of the APMC Act, which provides for laying the Rules before the Legislature reads, as follows.:-
"60. Rules (1) .....
(2) .....
(3) .....
(3A).....::: Downloaded on - 09/06/2013 16:28:46 ::: 6
(4) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following.
Both Houses agree in making modification in the rule or both Houses agree that the rule should not be made, the rule shall from the date of publication of a notification in the Official Gazette of such have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule."
Mr. Paliwal, the learned counsel for the petitioner, further submits that a rule cannot be said to have been brought into force until a period of thirty days is over because it is open to the House to modify the rule or to nullify it completely. The learned counsel further states that rule 88 of the APMC Rules was published on the last date of sitting of the House of Legislature on 13.08.2010 ::: Downloaded on - 09/06/2013 16:28:46 ::: 7 and that it is possible that the ensuing Winter Session of the House does not extend to a period of thirty days as has been the case in the past and, therefore, it cannot be brought into force even in the next Session since the Session, during which the Rule is laid before the House, must have a duration of thirty days.
6. It is, therefore, necessary to construe the laying clause as contained in Sub Section (4) of Section 60 of the APMC Act. On a plain reading of Sub Section (4), it cannot be said that rules must be laid before each House of the Legislature only in one Session with a duration of thirty days. Sub Section (4) of Section 60 itself contemplates that rules should be laid before each House of the State Legislature while it is in Session for a total period of thirty days and that the thirty days may be in one Session or in two successive Sessions. The argument, thus, must be rejected.
7. It is, however, important to consider whether the "laying clause" is directory or mandatory and whether, therefore, a ::: Downloaded on - 09/06/2013 16:28:46 ::: 8 rule enacted by the Government comes into force only upon being laid before each house of the Legislature. In Hukam Chand etc...vs..
Union of India and ors.; AIR 1972 SC 2427, the Supreme Court noted the existence of three categories of "laying clauses" generally employed by the Legislatures. They are; (i) Laying without further procedure; (ii) Laying subject to negative resolution; and (iii) Laying subject to affirmative resolution.
8. Examples of the three kinds of clauses are described pithily in Mathura Prasad Yadava ..vs.. Inspector General, Railway Protection Force, Railway Board, New Delhi and ors.; 1974 M.P.L.J.373 in para 9. They are;
i) Laying without further procedure:-
An example of this category is Section 3 (6) of the Essential Commodoties Act, 1955, which provides that "every order made shall be laid before both the Houses of the Parliament as soon as as may be after it is made."::: Downloaded on - 09/06/2013 16:28:46 ::: 9
ii) Laying subject to a negative resolution:-
An example of this category is given as Section 21 (3) of the Railway Protection Force Act. i.e. the Rule is enacted subject to modification or annulment by the Legislature.
iii) Laying subject to affirmative resolution:-
An example of this category is given as Section 28 (2) of the Mines And Mineral (Regulation and Development) Act, 1955, which reads "no rules made shall come into force until they have been approved whether with or or without modifications by each House of Parliament."
9. The Supreme Court has referred to the decision of the Madhya Pradesh High Court with approval in M/s. Atlas Cycle Industries Ltd. and ors. ..vs.. The State of Haryana (1979) 2 Supreme Court Cases 196; relied on by the petitioner, and held that the laying clause, which falls for consideration before it i.e. Section 3 (6) of the Essential Commodities Act (supra) was directory in nature ::: Downloaded on - 09/06/2013 16:28:46 ::: 10 and belonged to the first category. The relevant observations are as under:-
"22. Now at page 317 of the aforesaid Edition of Craies on Statute Law, the question whether the direction to lay the rules before Parliament is mandatory or merely directory and whether laying is a condition precedent to their operation or may be neglected without prejudice to the effect of the rules are answered by saying that "each case must depend on its own circumstances or the wording of the statute under which the rules are made". In the instant case, it would be noticed that sub-section (6) of Section 3 of the Act merely provides that every order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be after it is made. It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament. It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under Section 3 of the Act. It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide. It does not even specify the period for which the order is to be laid before ::: Downloaded on - 09/06/2013 16:28:46 ::: 11 both Houses of Parliament nor does it provide any penalty for non-observance of or non-compliance with the direction as to the laying of the order before both House of Parliament. It would also be noticed that the requirement as to the laying of the order before both House of Parliament is not a condition precedent but subsequent to the making of the order. In other words, there is no prohibition to the making of the orders without the approval of both Houses of Parliament. In these circumstances, we are clearly of the view that the requirement as to laying contained in sub- section (6) of Section 3 of the Act falls within the first category, i.e. "simple laying" and is directory not mandatory."
It is clear that Sub Section (4) of Section 60 of the APMC Act does not prescribe "simple laying" without further procedure. The rule, after enactment introduces a further procedure i.e. of laying before both Houses of Legislature. So also, the said clause does not prescribe laying subject to affirmative resolution since there is no requirement that draft of the rules must be approved by each House of Legislature before they come into force. Thus, on a ::: Downloaded on - 09/06/2013 16:28:46 ::: 12 plain construction, sub Section (4) of Section 60 of the APMC Act can be said to prescribe a laying subject to negative resolution and, therefore, directory. Such a clause has been described by Craies as follows:-
"Negative resolution.- Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a new instrument being made. The phraseology generally used is "subject to annulment in pursuance of a resolution of either House of Parliament".
This is by far the commonest form of laying. It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr's phrase) to "buy off opposition" by promising some modification."
10. The real question, that comes for consideration, in the present case is whether Rule 88 of the APMC Rules came into force on its enactment and publication in the Official Gazette or whether the coming into force is postponed to the laying of the Rule before the two Houses of Legislature and its modification or annulment by the Houses i.e. subject of a negative resolution. There is no doubt that, ::: Downloaded on - 09/06/2013 16:28:46 ::: 13 Sub Section (4) of Section 60 of the APMC Act has an immediate operative effect and is subject to annulment or modification. The intention of the Legislature that a Rule should come into effect immediately subject to a negative resolution of the House of Legislature is evident from the last part of sub section (4) of Section 60, which provides that the modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule. This postulates that things can be done under the Rule as soon as it is enacted and that such thing done should be treated as laid even if the Rule is modified or nullified by the Legislature.
11. We are fortified in this view by the judgment in Bailey ..vs.. Williamson 1873 LR VIII QUB 118 referred to by the Supreme Court in M/s. Atlas Cycle Industries Ltd. and ors. (supra).
That was a case in which the appellant was convicted under Section 4 of the Parks Regulations Act, 1872. The relevant observations in the judgment are as under:-
::: Downloaded on - 09/06/2013 16:28:46 ::: 14"...the appellant was convicted under Section 4 of the Act for that he did unlawfully act in contravention of Regulation 8 contained in the first Schedule annexed thereto by delivering a public address not in accordance with the rules of the said Park but contrary to the Statute, and it was inter alia contended on his behalf that in the absence of distinct words in the statute stating that the rules would be operative in the interval from the time they were made to the time when Parliament should meet next or if Parliament was sitting then during the month during which Parliament had an opportunity of expressing its opinion upon them, no rule made as supplementing the schedule could be operative so as to render a person liable to be convicted for infraction thereof unless the same had been laid before the Parliament, it was held overruling the contention that the rules became effective from the time they were made and it could not be the intention of the Legislature that the laying of the rules before Parliament should be made a condition precedent to their acquiring validity and that they should not take effect until they are laid before and approved by Parliament. If the Legislature had intended the same thing as in Section 4, that the rules should not take effect until they had the sanction of the Parliament, it would have expressly said so by employing negative language."::: Downloaded on - 09/06/2013 16:28:46 ::: 15
In the light of the above observations, we further find that Sub Section (4) of Section 60 of the APMC Act must be considered to be as directory.
Further, Rule 88 of the APMC Rules must be taken to have come into force in view of the judgment of the Supreme Court in Jan Mohammad Noor Mohammad Bagban ..vs.. State of Gujarat;
AIR 1966 SC 385; where the Constitution Bench has observed as under:-
"The rule under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no Legislature in session, the Legislature having been suspended during the emergency arising out of World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946. Section 26 (5) of Bombay ::: Downloaded on - 09/06/2013 16:28:46 ::: 16 Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under Section 26(1). It is true that Legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. Granting that the provisions of sub-section (5) of Section 26 by reason of the failure to place the rules before the Houses of Legislature were violated, we are of the view that sub-section (5) of Section 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. (Emphasis supplied). The rules have been in operation since the year 1941 and by virtue of Section 64 of the Gujarat Act 20 of 1964, they continue to remain in operation."
12. We, thus, hold that Sub Section (4) of Section 60 of the APMC Act is directory in regard to the laying rules before the House of Legislature and that rule 88 of the APMC Rules, which provides for ::: Downloaded on - 09/06/2013 16:28:46 ::: 17 questioning an election by way of election petition, has come into force on 13.08.2010 i.e. the date of its publication in the Official Gazette.
13. In this view of the matter, the petitioner must avail of the remedy provided by rule 88 of the APMC Rules. We are not inclined to entertain this petition. The same is, therefore, dismissed.
However, in the extraordinary circumstances of the present case, we direct that the election petition, if presented by the petitioner within a period of seven days from today, shall be entertained without any objection of delay.
Rule discharged. No order as to costs.
Authenticated copy of this order be supplied to the learned counsel for the parties.
JUDGE JUDGE
kahale
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