Bombay High Court
Bk vs The Collector on 17 November, 2008
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 4531 OF 2008
Hemraj Ratiram Ambule,
aged - Adult, occupation -
Chairman A.P.M.C. Tirora
& Agriculturist, r/o Indora
(Bk), Tahsil - Tirora,
District - Gondia.
ig ... PETITIONER
Versus
1. The Collector, Gondia,
Tahsil & District - Gondia.
2. The District Deputy Registrar
Cooperative Societies, Gondia,
Tahsil & District - Gondia.
3. The Agricultural Produce Market
Committee, Tirora, through its
Secretary, Tirora, Tahsil - Tirora,
District - Gondia.
4. Shri K.B. Yashwante,
aged - Adult, Assistant Registrar,
Cooperative Societies and the
Presiding Officer of the Special
Meeting for considering motion
of No Confidence against the
Chairman A.P.M.C. Tirora,
Tahsil - Tirora, District - Gondia.
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5. Shri Rajkumar s/o Laxmanprasad
Kesarwani, aged adult, occupation
Business, r/o Main Road, Tirora,
Tahsil - Tirora, District - Gondia.
6. Shri Kusram s/o Ratan Sakharam,
aged adult, r/o Lonara, Post -
Navzari, Tq. Tirora, District - Gondia.
7. Chunnilal s/o Dhaduji Patale,
aged adult, r/o Dhadari,
Post Sarandi, Tq. Tirora, Dist. Gondia.
8. Rameshchandra s/o Durgaprasad Asati,
aged adult, r/o Tirora, Tq. Tirora,
District - Gondia.
9. Smt. Vacchalabai w/o Ramchandra
Serkure, aged adult, r/o Tirora,
Tirora District, Gondia.
10. Shri Raju s/o Markand Chamat,
aged adult, r/o Panjara, Post -
Mundikota, Tq. Tirora,
District - Gondia.
11. Shri Surajlal s/o Dulichand Katare,
aged adult, r/o Velati (Kh), Post -
Tirora, District - Gondia.
12. Shri Chintaman s/o Prabhudas
Rahangadale, aged - Adult, r/o
Khairbodi, Post - Gumgaon,
Tq. Tirora, District - Gondia.
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13. Shri Ganraj s/o Kulpat Rahangadale,
aged adult, r/o Paldongari, Post Karti
(Bk.) Tq. Tirora, District - Gondia.
14. Smt. Powaranbai w/o Haridasji Patale,
aged adult, r/o Mundikota, Post -
Mundikota, Tq. Tirora, Dist. Gondia. ... RESPONDENTS
Shri A.M. Ghare, Advocate for the petitioner.
Shri P.D. Kothari, AGP for Respondents No. 1 & 2.
Shri Subhash Paliwal, Advocate for Respondent No.3.
ig .....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT :NOVEMBER , 2008.
DATE OF PROUNCING THE JUDGMENT :NOVEMBER , 2008.
JUDGMENT :
Heard Shri Ghare, learned counsel for the petitioner, Shri Kothari, AGP for Respondents No. 1 & 2 and Shri Paliwal, learned counsel for the Respondent No. 3. Other Respondents have chosen not to appear though they are served. After hearing parties, I find that controversy needs to be decided finally.
Accordingly "Rule" is made returnable forthwith. Service of Rule on other Respondents is dispensed with.
::: Downloaded on - 09/06/2013 14:04:10 ::: 42. In this writ petition, the Chairman of Agricultural Produce Marketing Committee, Tirora, has challenged the proceedings and order dated 14.10.2008 by Respondent No.4 whereby said Respondent has found that motion of no confidence has been carried against him on 14.10.2008 with requisite majority of not less than 2/3rd Members as per provisions of Section 23A of The Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as APMC Act).
3. The petitioner has been elected initially as Member of Respondent No. 3 - APMC as per Gazette Notification dated 17.8.2005 along with 16 other Members and two ex-officio members. The further election to elect office bearers was conducted on 2.9.2005 and the petitioner has been elected as Chairman therein for a period of five years i.e. up to 1.9.2010.
Respondents No. 5 to 14 before this Court are the members who ::: Downloaded on - 09/06/2013 14:04:10 ::: 5 moved a motion for no confidence as per provisions of Section 23A of APMC Act and Collector, Gondia, i.e. Respondent No.1 convened a meeting on 14.10.2008 accordingly. The petitioner objected to said notice of meeting dated 3.10.2008 and submitted objection to the Collector on 7.10.2008. On 14.10.2008, he submitted a representation to the Presiding Officer (Respondent No.4 herein) pointing out that motion is required to be carried by not less than 2/3rd of total numbers of APMC and he pointed out that total number of members of Respondent No. 3 - APMC is prescribed to be 18 and the said required 2/3rd strength works out to 12. He also mentioned in his representation that provisions of Section 23A of the APMC Act do not contemplate 2/3rd of number of members present and voting in the meeting or then 2/3rd of number of existing strength of members of APMC.
On said date total 15 members were entitled to vote as per scheme of Section 13 of APMC Act. Total 12 members remained present for meeting on 14.10.2008. Out of them two were ex-
officio members not entitled to vote and remaining 10 were ::: Downloaded on - 09/06/2013 14:04:10 ::: 6 entitled to vote. Out of these 10, nobody demanded vote by secret ballot and all voted in favour of the motion of no confidence. Thus, 10 members entitled to vote out of 15 voted against the petitioner and remaining 5 who were entitled to vote did not attend that meeting. Therefore, there was no vote in favour of the petitioner. As 10 constitutes 2/3 of 15, Respondent No.4 declared the motion as passed. In relation to representation of the petitioner, Respondent No.3 observed that he was unable to take any decision thereupon and the said decision will be taken at appropriate time.
4. In this background Shri Ghare, learned counsel for the petitioner has at the outset contended that no further scrutiny of facts or law on the subject is essential as Respondent No.4 has not decided the objection of the petitioner at all. He contends that said objection ought to have been decided initially by Respondent No.4 and thereafter his application of mind can be examined by this Court in exercise of writ jurisdiction. On merits, ::: Downloaded on - 09/06/2013 14:04:10 ::: 7 he invites attention to provisions of Section 23A(1) of APMC Act, to state that the resolution of no confidence is required to be passed by majority of not less than 2/3 of total number of members entitled to vote at such meeting. He invites attention to provisions of Section 13(1) to state that total number of such members having right to vote is 18 in view of clauses (a) and (b) of sub-section (1). He further states that members of APMC occupying the positions in view of clause (c) onwards of that sub-section have no right to vote. He also invites attention to objection raised by the petitioner on 14.10.2008 in this respect to point out that requirement of total 12 members voting in favour of resolution was pointed out to Respondent No.4 well in advance and still Respondent No.4 has overlooked this mandate of law.
He invites attention to Notification published by the Collector, Gondia, whereby total 19 persons have been declared as Directors/ Members of APMC and out of them, persons at Sr. Nos.
17, 18 and 19 have no right to vote. He states that first 16 persons only had/have right to vote. According to him, total ::: Downloaded on - 09/06/2013 14:04:10 ::: 8 number of members of APMC entitled to vote being 18, 12 was the required strength of majority for passing motion of no confidence. In the alternative, he states that even if 16 is presumed to be such total number, still the requisite number will be 11 because "10" is not 2/3 of 16. He, therefore, states that motion of no confidence has not at all been passed against the petitioner and impugned proceeding dated 14.10.2008 as recorded is, therefore, liable to be quashed and set aside. He also invites attention to provisions of Section 18 to contend that Section 18 permits casual vacancies to be filled in by co-option and when by amendment to Section 13, total number of members increased to 18, the additional two seats have become available and vacancies of these two additional posts must be treated as "occurred otherwise" and must be filled in and ought to have been filled in via Section 18. He further states that one Tukaram Laxman Sapate was also declared elected in notification published on 17.8.2005 but he expired before that i.e. on 22.7.2008, hence that vacancy ought to have been filed in before ::: Downloaded on - 09/06/2013 14:04:10 ::: 9 proceeding further to hold meeting of no confidence. He argues that meeting as conducted by Respondent 4 , by presuming total number of members as 15, is illegal and void.
5. As against this Shri Paliwal, learned counsel invites attention to Section 14(4)(d) of the APMC Act to point out that when Respondent No.3 - APMC was constituted on 17.8.2005, it was only with 15 members as Tukaram Laxman Sapate whose name is included in said notification had already expired on 22.7.2005. He further states that the petitioner has been elected as Chairman of APMC on 2.9.2005 by 15 members only. Thus, the contention of the petitioner that total number of members of Respondent No 3 is either "18" or "16" is incorrect. He states that Respondent No.4 has correctly applied law by accepting the total number of members entitled to vote to be 15 and there is no breach of Section 23A(1) of the APMC Act. According to him, there is no substance in this writ petition and it is liable to dismissed.
::: Downloaded on - 09/06/2013 14:04:10 ::: 106. Shri Kothari, learned AGP appearing for Respondents No. 1 & 2 has also supported the arguments of Shri Paliwal, learned counsel and contended that when APMC was constituted with 15 members, 15 has to be treated as total number of persons as per Section 23A(1) of the APMC Act. He, therefore, prays for dismissal of writ petition with costs.
7. Section 14(4)(d) stipulates that upon publication of names of the members of committee as mentioned therein Market Committee is deemed to have been duly constituted. It is not in dispute that when Respondent No. 3 APMC came to be constituted in pursuance of Gazette notification dated 17th August 2005, it consisted of total 16 members entitled to vote (including one already dead) as per Scheme of Section 13 of the APMC Act. The elections for the post of member of Respondent No. 3 were held in July 2005 and one Tukaram Sapate (deceased) contested that election and died thereafter on ::: Downloaded on - 09/06/2013 14:04:10 ::: 11 22.7.2005. However, he was also declared elected in notification published on 17.8.2005. Thus in fact there were only 15 members entitled to vote in view of provisions of Section 13 when Respondent No. 3 is deemed to have been constituted. The increase in strength to 18 is in view of amendment which has come into force from 22.1.2008 after constitution of Respondent No. 3 on 17.8.2005. This increase in number of seats to 18 does not result in creation of any vacancy and bare reading of Section 18 of the APMC Act shows that procedure prescribed therein for filling in casual vacancy is attracted when a post earlier occupied by member becomes available or vacant in the contingencies mentioned therein. The manner in which seats become vacant as stipulated in this Section are death, resignation or removal of member or any incapacity of such holder to act as member.
When no election was held for filling in these increased posts of members, it is apparent that there cannot be any casual vacancy and word "or otherwise" appearing in said Section cannot be used to urge that a "vacancy" is created even by increase in strength of ::: Downloaded on - 09/06/2013 14:04:10 ::: 12 members by amendment to Section 13 . It is therefore clear that increase in strength of members by amendment with effect from 22.1.2008 is not relevant for the purposes of present controversy.
8. Section 23A - basic motion of no confidence and its relevant provisions are as under: --
"(1) A Chairman or a Vice-Chairman shall cease forthwith to be Chairman or Vice-Chairman as the case maybe, if the Market Committee by resolution passed by a majority of not less than 2/3rd of total number of members (excluding the members who have no right to vote) at a special meeting so decides.
(2) The requisition for such special meeting shall be signed by not less than one half of the total number of members (excluding the members who have no right to vote) and shall be sent to the Collector under intimation to the Director."
Plea that "18" is the number of total members relevant for impugned no-confidence motion/resolution has been raised in this background to point out that only ten members having voting powers voted in support of the motion and hence, it is not by ::: Downloaded on - 09/06/2013 14:04:10 ::: 13 requisite 2/3rd majority. Respondents state that 10 out of total 15 is exact 2/3 of total number of members.
9. (A) In "Jivendra Nath Kaul vs. Collector/District Magistrate and Another" reported at (1992) 3 SCC 576, the Hon'ble Apex Court noticed that Section 87-A of U. P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961, required motion of no confidence to be carried by more than half of the total number of members of the the Zilla Parishad and the said expression only meant the number of members as existed on the date of constitution of Zilla Parishad. There on the date of its composition the Zilla Parishad had total 62 members and 56 out of them moved a no-confidence motion. 34 members were present in the meeting and 33 members including one Mr. Anand and Mr. Verma voted in support of motion while one member voted against it. The motion was, therefore, declared as carried against the president/petitioner before the Hon'ble Apex Court.
Challenges relevant for determining controversy before me raised ::: Downloaded on - 09/06/2013 14:04:10 ::: 14 before Hon'ble Apex Court are as Mr. Anand and Mr. Verma were holding office of profit, their nomination on the Zilla Parishad was illegal and hence they could not have been party to either motion for no-confidence or to resolution of no-confidence. It was further contended that the required "more than half of the total number of members of the Zilla Parishad for the time being"
did not vote in favour of motion. The relevant sub-sections (12) and (13) of Section 87A read-- "(12) The motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the Board.
(13) If the motion......... which shall not be less than one half of the total number of members of the Board for the time being, no notice of any subsequent motion of no-confidence in the same president shall be received until after expiry of period of 12 months from the date of the meeting." In present matter we are concerned with subsection (12). Hon'ble Apex Court at the end of paragraph 5 of judgment has observed as under:--
"The Allahabad High Court interpreted "for ::: Downloaded on - 09/06/2013 14:04:10 ::: 15 the time being" in sub Section (13) of Section 87A to mean the members of the Board as they existed on the date of its constitution and not on the date when motion of no confidence was considered. So far sub Section (12) of Section 87A of the Act was concerned the High Court interpreted the expression "total number of members of the Board" to mean the total number of members who were functioning as such at the relevant time which means on the date of meeting and did not include member or members who had been removed from office. We are of the view that High Court judgment in Bhaiya Lal's case does not lay down correct law. The High Court has not given natural meaning to the expression contained in sub Section's (12) and (13) of section 87A of the Act. The only meaning which can be given to expression "half of the total number of members of the Board" is the members as existed on the date of its constitution. The total number of members on the date of the composition of the Municipal Board, Mugul Sarai was 16 and as such notwithstanding the removal of members/members the motion of no confidence could only be passed in the motion was supported by more than eight votes. The High Court's interpretation is on the face of it contrary to plain ::: Downloaded on - 09/06/2013 14:04:10 ::: 16 language of the sub Section. Similarly the High Court fell into grave error by not appreciating the plain meaning of the words "for the time being" in subsection 13 of section 87A of the Act. "For the time being" means at the moment or existing position. These words indicate the actual membership in existence on the date of motion of no-confidence. The High Court on the basis of strained reasoning has given interpretation which does not flow from the simple language sub Section (12) and (13) of Section 87 a of the Act. We, therefore hold that the High Court judgment in Bhaiyya Lal case does not lay down the correct law and we overrule the same."
(B). In AIR 2003 S.C. 3230 -Union Territory of Chandigarh v. Rajesh Kumar Basandhi, the above judgment of Hon'ble Apex Court is noticed & then following view is expressed about language used in sub-sections (12) & (13) :---
"14. A perusal of the above position clearly indicates that different phraseology, has been used in the two sub-sections. In sub-section (12) the expression "for the time being" has not been used. On the other hand it says that motion would be deemed to have been carried ::: Downloaded on - 09/06/2013 14:04:10 ::: 17 by majority of more than half of the total number of members. This has been taken to mean the total strength of the members of the Board irrespective of subsequent removals, if any. But for the purpose of sub-
section (13) where the expression "for the time being"
has been used, would mean the existing position at the moment; that is to say actual number of members in existence on the date of motion of no-confidence. Thus the actual number of existing members may fluctuate or vary from time to time, i.e. one-half of the total number of members for the time being would subsequently may also vary depending on the fact as to how many members are actually there when the motion of no-
confidence was moved. This position which emerges from the above decision, in our view, does not advance the case of the appellant in any manner. Rather it would be in support of the meaning of the phrase "for the time being" to the effect that in general sense, of time indefinite and refers to state of facts which would arise in future and may vary from time to time."
(C). In present case it is important to note that words like "for the time being" do not appear in provisions under ::: Downloaded on - 09/06/2013 14:04:10 ::: 18 consideration before me. In view of this position it is also apparent that the words "of total number of members " used in Section 23A above refers to strength of members of respondent No. 3 APMC on the date of its constitution i.e. 17/8/2005 as per provisions of Section 14 (4) (d) of APMC Act. Though elections were held for 16 posts (with voting rights), one of the successful candidates Tukaram Sapate expired after voting but before publication of notification as per provisions of Section 14 (4) (d) by the Collector. Hence on the date of its constitution Respondent No. 3 has only 15 members with voting rights. The contention that requisite strength for carrying out resolution of no-confidence has to be worked out by calculating 2/3rd of either 18 or 16 is, therefore, without any substance. It is also to be noted that it is these 15 members only who elected present petitioner as chairman on 2.9.2005.
10. Contention of Shri Ghare, learned counsel that Respondent No. 4 - Presiding officer ought to have passed some ::: Downloaded on - 09/06/2013 14:04:10 ::: 19 orders on representations made by Petitioner is without any substance. Here, his failure or omission to do so does not advance the case of Petitioner in any way. Respondent No. 4 was appointed as Presiding officer and he could not have taken any decision at his level on all the aspects of questions as raised in said representation. It is not in dispute that he has correctly recorded the proceedings. In any case, in present facts no prejudice is caused to Petitioner thereby. Respondent No. 4 has also correctly considered the position in relation to total number of members having voting powers as on the date of constitution of Respondent No 3 APMC.
11. No case is, therefore, made out warranting any interference. Writ Petition is accordingly dismissed, however, without any order as to costs.
JUDGE ******* *GS.
::: Downloaded on - 09/06/2013 14:04:10 ::: 20At this stage, Shri Ghare, learned counsel for the petitioner requests that the interim order should be continued for a period of two weeks from today.
Request rejected.
ig JUDGE
*******
*dragon/GS.
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