Bombay High Court
Shri Ashok S/O Bapuraoji Davare And ... vs State Of Maharashtra Thr. Secretary ... on 16 January, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NOS. 4488 OF 2017, 3894 OF 2017, 1806
OF 2017, 6003 OF 2017, 6004 OF 2017 AND
CONTEMPT PETITION NO. 85 OF 2017
WRIT PETITION NO. 4488 OF 2017
1. Hemraj Marotrao Shingne,
aged 48 years, occ. Agriculturist,
R/o 8-2, Pevtha Village Banwadi,
Tq. Nagpur Gramin, Dist. Nagpur.
2. Vijay Fulchand Maraskolhe,
aged 42 years, occ. Agriculturist,
R/o Bhothali, Wardha Road,
Nagpur.
3. Fakira S/o Lataru Bankar,
aged 75 years, occ. Agriculturist,
R/o House No. 40, Rui Panjari
Road, Main Chowk, Pewatha
Post Rui, District - Nagpur.
4. Ishwar Chindhabha Shingane,
aged 55 years, occ. Agriculturist,
R/o Rui Panjari Road, Main Chowk,
Pewatha Post Rui, District Nagpur.
5. Ashok Madhukar Shingane,
aged 52 years, occ. Agriculturist,
R/o 8-A, Rui Road, Near BSNL
Tower, Pewtha, Nagpur.
6. Shankar Madhukarrao Shingne,
aged 40 years, occ. Agriculturist,
R/o Pewtha, Rui Nagpur.
7. Remu Barlu Roge,
aged 46 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
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8. Rambhau Krishnarao Mathankar,
aged 52 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
9. Murlidhar S/o Chintaman Junghare
aged 54 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
10. Vasudeo Sadashivrao Kodpe,
aged 52 years, occ. Agriculturist,
R/O Village Rama, Tq. Dist. Nagpur.
11. Shantaram Mahadeo Lalsare,
aged 42 years, occ. Agriculturist,
R/O Village Rama, Tq. Dist. Nagpur.
12. Dilip Bapurao Nagpure,
aged 46 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
13. Ramdas Bala Goche,
aged 65 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
14. Sadu Dama Roge,
aged 85 years, occ. Agriculturist,
R/o Village Rama, Tq. Dist. Nagpur.
15. Arun Leeladhar Mathankar,
aged 35 years, occ. Agriculturist,
R/O Village Rama, Tq. Dist. Nagpur. ... PETITIONERS
Versus
1. Principal Secretary, Department of
Cooperation, Marketing and Textile,
Hutatma Square Madam Cama Road,
Mantralaya Extension, Mumbai 400 032.
2. The Commissioner, Maharashtra State
Cooperative Society, Election Authority,
Administrative Building, Near Sunsen
Hospital, Pune 01.
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3. The Collector,
o/o Collectorate, Civil Lines,
Nagpur 440 001.
4. Agricultural Produce Market Committees
Nagpur, Tah. And District - Nagpur thr.
Its President, Ahmad Karimbhai Sheikh,
having its office at Kalmana Market,
Nagpur, Tah. & Dist. - Nagpur.
5. Ahmad Karimbhai Sheikh,
Aged 62 years, Occ. Agriculturist,
r/o Butibori, Tq. & Dist. Nagpur.
6. Shri Bhagwan Sampatrao Ghodmare,
Director, Vihirgaon Seva Sahakari
Sanstha, Vihirgaon, Tq. Dist. Nagpur.
7. Vasantrao Marotrao Landge,
President, Seva Sahakari Sanstha,
r/o Bahadura, Post. Vihirgaon,
Tq. & Dist. Nagpur. ... RESPONDENTS.
Dr. R.S. Sundaram with Ms. U.R. Tanna, Advocates for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 & 3.
Shri S.S. Ghate, Advocate for respondent No. 2.
Shri A.A. Naik, Advocate for respondent Nos. 4 & 5.
.....
WRIT PETITION NO. 3894 OF 2017
1. Sunil Gulabrao Kode,
aged about 40 years, occ. Agriculturist,
R/o At Post Salai Godhani,
Tah. & District - Nagpur.
2. Ratnakar Bapuraoji Kalbande,
aged about 50 years, occ. Agriculturist,
R/o Shankarpur, Post Khapri Railway,
Tah. & District - Nagpur.
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3. Shailendra Sharadrao Misal,
aged about 43 years, occ. Agriculturist,
R/o Kaldongri, At Post Salai Godhani,
Tahsil & District - Nagpur.
4. Dilip Harishchandra Nandagaoli,
aged about 54 years, occ. Agriculturist,
R/o At Post Mangrud, Dongargaon,
Tahsil & District - Nagpur. ... PETITIONERS
Versus
1. Principal Secretary, Department of
Co-Operation, Marketing And Textile,
Hutatma Rajguru Square, Madam
Kama Road, Mantralaya Extension,
Mumbai 32.
2. Collector/District Election Officer,
Civil Lines, Nagpur
3. Agricultural Produce Market Committees
Nagpur, Tah. And District - Nagpur thr.
Its President, Ahmad Karimbhai Sheikh,
having its office at Kalmana Market,
Nagpur, Tah. & Dist. - Nagpur.
4. Ahmad Karimbhai Sheikh,
Aged 62 years, Occ. Agriculturist,
r/o Butibori, Tq. & Dist. Nagpur. ... RESPONDENTS
Shri A.P. Raghute, Advocate for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 & 2.
Shri S.S. Ghate, Advocate for respondent No. 5.
.....
WRIT PETITION NO. 1806 OF 2017
1. Shri Ashok S/o Bapuraoji Davare,
Occ. Agriculturist, r/o At Peth,
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Post Vyahad, Tah. & Dist. Nagpur.
2. Shri Sunil S/o Mahadeorao Deshmukh,
Occ. Agriculturist, R/o At Varoda,
Post Rui, Tahsil & District - Nagpur.
3. Ahmadbhai Karimbhai Sheikh,
Agriculturist, R/o At Ward No. 1,
Old Vasti Butibori, Tah. & Dist. Nagpur.
4. Kishor Keshavrao Palandurkar,
Agriculturist, R/o Plot No. 170-B,
Pravesh Nagar,Wanjari Layout,
Tahsil & District - Nagpur.
5. Smt. Sunita W/o Gajanan Sabale,
Agriculturist, R/o At Daheli, Post Ashta,
Tahsil & District - Nagpur.
6. Shri Babarao S/O Shyamrao Shid,
Agriculturist, R/o Kawatha, Tah. &
District - Nagpur.
7. Shri Jagdish Krushi Patil,
Agriculturist, R/o At Banwadi,
Post Rui, Tahsil & Dist. Nagpur.
8. Shri Rajesh S/o Tawarlal Chabrani,
occupation - Business, R/o Plot No. 224,
Wardhaman Nagar East, Tahsil & District
- Nagpur.
9. Shri Dwarkaprasad S/o Shivprasad
Kakani, Agriculturist, R/o At Adyali,
Post - Vihirgaon, Tah. & Dist. Nagpur. ... PETITIONERS
Versus
1. State Of Maharashtra through its
Secretary, Ministry Department of
Co-Operation, Madam Cama Road,
Mantralaya, Mumbai 32.
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2. The District Deputy Registrar,
Co-operative Societies, Nagpur.
3. Shri Sachin Kurve,
Administrator of Agricultural Produce
Market Committee, Nagpur and the
Collector, Nagpur.
4. The Agricultural Produce Marketing
Committee, Nagpur through its
Secretary, having its office at Pandit
Jawaharlal Nehru Yard, Kalamna,
Nagpur 440 035.
5. Shri Ruprao s/o Sadashiv Shingne,
aged 56 years, Near Hanuman Mandir,
Mu-Pewatha Rui, Nagpur (Rural),
Nagpur 441 108.
6. Shri Dilop s/o Jadhaoraoji Mathankar,
r/o Flat No. 201, Plot No. 506,
Tajshree Plaza, Professor Colony, Near
Basket Ball Ground, Hanuman Nagar,
Nagpur 440 009.
7. Shri Deorao s/o Madhukar Kadu,
Khadgaon, Kalambi, Nagpur 441 501.
8. The District Collector,
Collectorate, Civil Lines, Nagpur. ... RESPONDENTS.
Shri A.M. Ghare, Advocate for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 & 2.
Shri U.D. Dastane with Sachin Sambre, Advocate for respondent No. 4.
Dr. R.S. Sundaram with Ms. U.R. Tanna, Advocates for respondent
Nos. 5 to 7 (Intervenors).
.....
WRIT PETITION NO. 6003 OF 2017
Ahmadbhai Karimbhai Sheikh,
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aged 61 years, occupation - Agriculturist,
r/o at Ward No. 1, Old Vasti Butibori,
Tahsil & District - Nagpur. ... PETITIONER
Versus
1. State of Maharashtra,
through its Secretary Ministry
Department of Co-operation,
Madam Cama Road, Mantralaya,
Mumbai 400 032.
2. The Collector, Nagpur. ... RESPONDENT
Shri A.M. Ghare, Advocate for the petitioner.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 to 2.
.....
WRIT PETITION NO. 6004 OF 2017
1. Ahmadbhai Karimbhai Sheikh,
aged 61 years, Occupation -
Agriculturist, r/o at Ward No. 1,
Old Vasti Butibori, Tahsil & District
- Nagpur.
2. Sunil S/o Mahadeorao Deshmukh,
aged 50 years, Occupation -
Agriculturist, r/o at Varoda,
Post Rui, Tahsil & District - Nagpur
3. Ashok S/O Bhapuraoji Davare,
aged 54 years, Occupation -
Agriculturist, r/o At Peth, Post
Vyahad, Tahsil & District - Nagpur.
4. Smt. Sunita W/o Gajanan Sabale,
aged 48 years, Occupation -
Agriculturist, r/o At Daheli, Post
Ashta, Tahsil & District - Nagpur.
5. Babarao S/O Shyamrao Shid
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aged 56 years, Occupation -
Agriculturist, r/o Kawatha,
Tahsil & District - Nagpur.
6. Shri Jagdish Krushi Patil,
aged 45 years, Occupation -
Agriculturist, r/o At Banwadi,
Post Rui, Tah. & Dist. Nagpur.
7. Shri Rajesh s/o Tawarlal Chabrani,
aged 44 years, Occupation -
Business, r/o Plot No. 224,
Wardhaman Nagar East, Tahsil &
District - Nagpur.
8. Shri Dwarkaprasad S/O Shivprasad
Kakani, aged 84 years, Occupation -
Agriculturist, r/o At Adyalim, Post
Vihirgaon, Tah. & Dist. - Nagpur.
9. Shri Kishor S/O Keshavrao Palandurkar,
aged 56 years, Occupation - Agriculturist,
r/o Pravesh Nagar, Plot No.1708, Wanjri
Layout, Post Uppalwadi, Tahsil and
District - Nagpur. ... PETITIONERS
Versus
1. The State Of Maharashtra,
through its Secretary, Ministry Department
of Co-Operation, Madam Cama Road,
Mantralaya, Mumbai 400 032.
2. The Director Of Marketing,
State Of Maharashtra, 3rd Floor,
Central Building, Pune 441 001.
3. Smt. Kadambari W/O Bhagat Balkawade,
CEO, Zilla Parishad, Nagpur cum
Administrator of Respondent No. 4 -
Agricultural Produce Market Committee,
Civil Lines, Nagpur
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4. The Agricultural Produce Market
Committee, Nagpur through its
Secretary, Nagpur, Tahsil & District
- Nagpur. ... RESPONDENTS
Shri A.M. Ghare, Advocate for the petitioner.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 to 2.
Shri Uday Dastane, Advocate for respondent Nos. 3 & 4.
.....
CONTEMPT PETITION NO. 85 OF 2017 IN
WRIT PETITION NO. 585 OF 2017
1. Bhagwan Sampatrao Ghodmare,
Director, Vihirgaon Seva Sahakari
Sanstha, Vihirgaon, Tahsil &
District - Nagpur.
2. Vasantrao Marotrao Landge,
President, Seva Sahakari Sanstha,
Bahadura, r/o Bahadura, Post -
Vihirgaon, Tah. & Dist. - Nagpur. ... PETITIONERS.
Versus
1. Shri Sunil Porwal, Additional Chief
Secretary, Department of Marketing
Maharashtra State, Mumbai.
2. Shri. S.S. Sandhu, Additional Chief
Secretary, Department of Marketing
and Textile, Maharashtra State,
Mumbai 400 032.
3. Shri. S.L. Bhosle,
District Deputy Registrar, Co-operative
Societies, having his office at Sahkar
Sadan, Building No. 8, Hindustan
Colony, Amravati Road, Nagpur.
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4. Shri Sachin Kurve,
The Collector, Nagpur, having his office
at Collectorate Building, Civil Lines,
Nagpur. ... RESPONDENTS
Shri A.A. Naik, Advocate for the petitioners.
Shri M.G. Bhangde, Sr. Advocate with Shri S.M. Ukey, Additional GP
for respondent Nos. 1 to 4.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATE OF RESERVING JUDGMENT : NOVEMBER 15, 2017.
DATE OF PRONOUNCEMENT : JANUARY 16, 2018.
JUDGMENT :(PER B.P. DHARMADHIKARI, J.) All these petitions relate to elections of Agricultural Produce Market Committee (APMC), Nagpur. As the facts are little vexed, we find it appropriate to very briefly state the controversy before embarking upon facts in each petition. It needs to be added here that all these petitions are heard & being decided together as jointly requested.
2. The tenure of elected Board of Directors of APMC, Nagpur, was to expire on 09.03.2017. The office of the Collector, Nagpur, therefore, proceeded to prepare voters list for holding ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:48 ::: wp4488.17 11 next general election and 31.08.2016 was determined as cut off date for examining eligibility of voters. The provisional voters list was prepared on 01.12.2016 and by 26.12.2016, objections were invited. 09.01.2017 was the date scheduled for hearing of objections to the voters list and final voters list was to be published on 13.01.2017.
3. On 10.01.2017, State Government issued an order mentioning Section 14(3) and 14(3)(A) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (Agricultural Produce Market Committee Act, hereafter) extending its term till 07.09.2017 and postponing the elections. This order dated 10.01.2017 was challenged in Writ Petition No. 585 of 2017 by the Members constituting Board of Directors. On 09.03.2017, this Court quashed and set aside that order. Then the petitioners in Writ Petition No. 1806 of 2017 filed MCA No. 287 of 2017 seeking its review and objected to setting aside of extension granted till 07.09.2017 to elected Board of Directors. On 22.03.2017, when this review was pending, State Government passed an order under Section 15A of APMC Act and appointed ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:48 ::: wp4488.17 12 the Collector, Nagpur, as Administrator over the APMC. Questioning this appointment, Writ Petition No. 1806 of 2017 came to be filed and on 24.03.2017, the implementation of said order dated 22.03.2017 was stayed. However, this interim order was passed in MCA No. 287 of 2017. On 31.7.2017, this interim order is accepted & continued as interim order in Writ Petition No. 1806 of 2017 itself. With the result, elected body continued in office.
4. On 21.07.2017, the judgment dated 09.03.2017 was reviewed and the direction in the order of the State Government dated 10.01.2017 continuing elected body or extending its tenure stood restored.
5. In judgment dated 09.03.2017 in Writ Petition No. 585 of 2017, the Collector was asked to proceed further as per law in the matter of holding of elections of APMC. On 20.05.2017, the Collector published fresh Election Programme for drawing provisional voters list. This also was assailed in Writ Petition No. 1806 of 2017. As per that programme, the Collector ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:48 ::: wp4488.17 13 was to publish final voters list on 24.07.2017.
6. On 13.06.2017, the Hon'ble Governor for the State of Maharashtra published an Ordinance no. XI of 2017 amending provisions of APMC Act and giving individual farmers, holding prescribed eligibility qualifications, a right to vote in the election of APMC. The Collector thereafter published final voters list in pursuance of earlier Election Programme dated 20.05.2017. As per this Election Programme, the individual farmers were not included in voters list and, therefore, were not entitled to vote. Writ Petition Nos. 3894 of 2017 and 4488 of 2017 have been, therefore, filed by such farmers claiming that elections must be held as per mandate of Ordinance no. XI of 2017 after drawing proper voters list in which they are included as voters.
7. The Legislative Assembly and Legislative Council for the State assembled on 24.07.2017 and said Ordinance was tabled in Lower House. During Session, the Ordinance was cleared only by the Legislative Assembly on 8.8.2017 and was transmitted to the Legislative Council. Before later could apply ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 14 mind, the Session was over on 11.08.2017. As per Art. 213(2)(a) of the Constitution of India, its life was to expire on 3 rd September, 2017. Maharashtra ordinance no. XVII of 2017 containing identical provision is then promulgated on 31.8.2017.
8. This re-promulgation has given rise to Writ Petition No. 6003 of 2017 where the direction is sought to complete the election process by using the voters list prepared by treating 31.08.2016 as cut off date ignoring the amending Ordinances. On 7.9.2017, this Court has passed orders on CAW 2026 of 2017 in WP 1806 of 2017 & allowed State to pass appropriate orders as per law about the fate of elected board as its extended tenure was to end on 7.9.2017. Due to this liberty, on 8.9.2017 the Director of Marketing resorted to S. 15A of the APMC Act and appointed the Chief Executive Officer of Zilla Parishad as Administrator on APMC.
9. The said Board of Directors then filed Writ Petition No. 6004 of 2017 and they challenged this order dated 08.09.2017 passed by the Director of Marketing appointing the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 15 Administrator to manage the affairs of APMC.
10. It needs to be noted here that Civil Application No. 2026 of 2017 (supra) was moved in Writ Petition No. 1806 of 2017 opposing continuation of interim orders granted therein on 31.07.2017. By these orders passed in Writ Petition No. 1806 of 2017, elected body in office was permitted to continue until further orders. On 07.09.2017, Civil Application No. 2026 of 2017 was disposed of with clarification that Court had not restrained the State Government from passing any other orders under any other provisions of law. Because of this liberty granted, on 08.09.2017 the Director of Marketing appointed an Administrator on the respondent - APMC. It appears that in the meanwhile in Writ Petition No. 647 of 2017 (Bombay), directions were issued to new Electing Authority formed under the Ordinance to complete election process within four months. Even on 12.07.2017, similar directions were issued to that authority by a Bench at Bombay in Writ Petition Nos. 329 of 2017 and 11131 of 2016. By amendment in APMC Act vide Ordinances mentioned supra, the responsibility to hold elections has been shifted from ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 16 Collector to new a authority and that new authority has been directed to complete elections of some APMCs by the Bombay Bench.
11. It is in this background that we have heard the parties. The prayers made in Writ Petition Nos. 3894 of 2017 and 4488 of 2017, by which the farmers seek a right to vote in election of APMC, Nagpur, are not being opposed by the State Government. The State Government is opposing Contempt Petition and efforts made by the elected Board of Directors either to continue in office beyond 07.09.2017 & in defence, it presses need of holding such Election by giving farmers a right of vote because of amendment. The Board of Directors has in Contempt, sought action against the Collector, Nagpur, for not proceeding further with Election Programme from the stage at which it was left incomplete i.e. from 09.01.2017 onwards. On this count only and because of directions contained in the judgment of this Court dated 09.03.2017, they also claim that the Ordinance XVII of 2017 effecting amendments to APMC Act re-promulgated subsequently is not applicable. They also have challenged the Ordinance ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 17 independently in Writ Petition No. 6003 of 2017, urging that it amounts to fraud on statute and on the Constitution as it has not been passed by both the Houses. Thus, the State claims that after judgment of this Court dated 09.03.2017, law has changed and elections cannot be conducted as per voters list prepared on 31.08.2016.
12. Shri Naik, learned counsel addressing the Court in Contempt Petition No. 85 of 2017 has submitted that the directions of this Court in judgment dated 09.03.2017 are clear and respondent No. 1 - Collector in Writ Petition No. 585 of 2017 ought to have "proceeded further" with the elections of APMC Nagpur as per law. Hence, election programme obstructed by the State Government on 10.01.2017 should have been resumed and carried further. He has invited our attention to communication dated 12.01.2017 sent by the office of the District Deputy Registrar to the Collector, Nagpur, pointing out that because of orders of the State Government dated 10.01.2017, it would be appropriate to adjourn/ suspend the publication of final voters list then due on 13.01.2017. The representations were made by the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 18 petitioners on 18.03.2017 and 25.03.2017 for resumption of election process and also giving hint of a possible approach to this Court. He submits that orders of this Court dated 24.03.2017 on MCA No. 287 of 2017, in para 12 also note obligation of the Collector to proceed further with election. Para 10 of said order dated 24.03.2017 is also relied upon by him to submit that this Court then also expected the Collector to "resume" the Election Programme which was left incomplete. He has pointed out that elected Board of Directors is not at all at fault in this matter and the Collector has not come up with any valid justification for violating the Court orders. According to Rule 36 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967, (hereinafter referred to as 1967 Rules), voters list needed revision six months before general elections and accordingly as elections were due by 09.03.2017, consciously date 31.08.2016 was chosen as date for drawing voters list. The office of the Collector thereafter ignored the direction and fixed new cut off date as period of more than six months had expired after 31.08.2016. This new cut off date was decided as 31.03.2017. He contends that this is arbitrary and high handed action on the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 19 part of the office of the Collector, with a view to assist the State Government in its design to postpone somehow the elections of APMC. He further states that the office of the Collector has in reply before this Court stated that it would be preparing a fresh election programme and it would need time of 25 weeks roughly after receipt of voters list. The office of the Collector got voters list on 24.04.2017. According to him, therefore, the reply itself is inconsistent and constitutes breach of directions given by this Court on 9.3.2017 which have attained finality. He has also invited our attention to additional affidavit filed by the Collector in Contempt Petition which takes note of publication of provisional voters list on 20.05.2017 and points out that objections were invited till 15.06.2017. Number of objections received are also then pointed out by the Collector. The Collector has also pointed out that election programme was already published and voters list of Primary Agricultural Credit Societies and Gram Panchayat constituencies were published and claimants/ farmers which were not the Members of Managing Committees of Primary Agricultural Credit Societies nor Gram Panchayat members, were excluded from voters list. He submits ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 20 that the Collector has then declared on oath that he was acting on directions issued by this Court on 09.03.2017 and conducting elections as per old Act. He also points out that the Collector has then specifically referred to Writ Petition No. 3894 of 2017 filed by the farmers for addition of their names as voters.
13. Along with this reply, the office of the Collector has also annexed Maharashtra Ordinance No. IX of 2017 published on 13.06.2017. Shri Naik, learned counsel submits that this Ordinance has come into force later on and hence change in constituencies or authority conducting election, is not relevant. The office of the Collector, therefore, rightly took a decision and declared that the elections would be conducted as per old unamended law.
14. In this backdrop, he invites attention to reply affidavit filed by the Additional Chief Secretary of Marketing in Contempt Petition. He submits that said respondent has tendered unconditional apology and then pointed out that because of new amendments effected by the Ordinance, the elections are to be ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 21 arranged accordingly by new functional authority designated to conduct the it viz., the State Cooperative Election authority. The Additional Chief Secretary has pointed out that the Collector no longer possessed power to conduct such elections. The Additional Chief Secretary of Co-operation has also filed similar affidavit and pointed out that issue of election is not being handled or looked into by him. Respondent No. 3 in Contempt petition i.e. District Deputy Registrar, has submitted that the petitioners have no locus to maintain such Contempt Petition and has pointed out that elections of APMC, Nagpur, are to be conducted by the District Collector as income of APMC exceeded five crores.
15. Shri Naik, learned counsel, submits that this new Ordinance has not been resorted to by the Collector at all and hence the Collector ought to have resumed and completed elections left incomplete after 10.01.2017. He has urged that defence taken by the respective Additional Chief Secretaries is nothing but contempt of this Court. He has relied upon Rule 36(2) of 1967 Rules to urge that as the period of six months had not expired, it was not necessary to prepare fresh voters list and ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 22 proviso thereof on these lines, is subordinate to Rule 36(2). He has also taken support from Rule 36(10) giving finality to decision of Collector & urged that steps taken till 10.01.2017 could not have been defeated and avoided.
16. Inviting attention to provisions of Rule 43 of 1967 Rules, prescribing time schedule and stages for conduct of elections, he submits that accordingly after 10.01.2017, dates for various should have been fixed. Those dates could have been determined again after 09.03.2017. He contends that as Election Programme had already commenced, shelter of amendments to APMC Act cannot be taken. The submission of other respondents that election process did not commence till 13.06.2017 is incorrect. He points out that the Election Programme published by the Collector on 20.05.2017 is in Contempt of this Court. He has also taken us through provisions of Section 2(r2) and Section 3 of Ordinance to urge that amendments made thereby are perspective and cannot be even construed as retrospective. Without prejudice, he adds that here in any case, even as per the Collector, election process had commenced on 20.05.2017. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 23
17. To explain how concept of election is to be understood, he draws support from Rules 35 and 36 of 1967 Rules as also Article 324(1) of the Constitution of India. He has relied upon the judgment of the Hon'ble Apex Court in the case of N.P. Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. & Ors., reported at AIR (39) 1952 SC 64. For very same purpose, he has also cited the judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Upadak Sanstha & Anr. vs. State of Maharashtra & Ors., reported 2002 (1) Mh. L.J. 659, Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. vs. Collector of Kolhapur & Anr., reported at 2005 (4) Mh. L.J. 515. He submits that such amending Act is always perspective and for being retrospective, it must be made so specifically and expressly. To explain this proposition, he has relied upon the judgment in the case of Zile Singh vs. State of Maharashtra & Ors., reported at (2004) 8 SCC 1, Shyam Sunder & Ors. vs. Ram Kumar & Anr., reported at (2001) 8 SCC 24 and Union of India thr. Director of Income Tax vs. Tata Chemicals Limited, reported at 2014 (6) SCC
335. While concluding his arguments, he has invited our ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 24 attention to the order dated 21.07.2017 in MCA No. 287 of 2017, particularly para 7 thereof. He submits that the Collector has nowhere stated that after the Ordinance was issued, he obtained any clarification and, therefore, he did not proceed further. On the contrary, the office of the Collector has maintained need to hold elections as per old Act.
18. Shri A.M. Ghare, learned counsel appearing for the petitioners in Writ Petition No. 1806 of 2017, has submitted that the Election Programme published by the office of the Collector on 20.05.2017 is unsustainable in the wake of earlier orders passed by this Court on 09.03.2017. In said writ petition, there is also challenge to order dated 22.03.2017 issued by respondent No. 2 - District Deputy Registrar, appointing the Collector, Nagpur as an Administrator. However, it is not in dispute that this order was stayed by this Court and never came into effect. Order dated 22.03.2017 could have operated only till 7.9.2017 & hence, challenge thereto does not survive after said date. In the light of liberty given by this Court in its order dated 07.09.2017, the orders under Section 15A of APMC Act were then passed on ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 25 08.09.2017 and since then the Chief Executive Officer of Zilla Parishad, Nagpur, is functioning as an Administrator. That order dated 08.09.2017 has been questioned in Writ Petition No. 6004 of 2017.
19. Shri Ghare, learned counsel further submits that fresh Election Programme has been published on 20.05.2017 by the Collector, Nagpur, only with a view to buy time for the State Government to enable it to publish Ordinance No. IX of 2017 effecting material amendments to AMPC Act. He further states that steps to amend were being taken by the State Government since long and the Collector acted under political pressure. He contends that these malafides are specifically raised by him as grounds in other matter. Attention is invited to Rule 35 of 1967 Rules to urge that it shows four constituencies through which Board of Directors of APMC is elected. The Ordinance, if applied affects only one constituency and not the others. The Ordinance, therefore, must be read as perspective. He further submits that while appointing Administrator on 08.09.2017, the State Government has not applied mind as expected of it by this Court ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 26 vide its order dated 07.09.2017. According to him, facts do not warrant displacement of elected body at all. He invites attention to the provisions of Section 13(3) to urge that second proviso thereto contemplates two extensions and hence, here elected board could have been given one more extension after 07.09.2017. This Court on 07.09.2017 did not permit the respondents to pass order under Section 15A. He has relied upon analogy of Order VI, Rule 17 of the Civil Procedure Code and judgment in the case of Department of Telecommunications vs. Gujarat Cooperative Milk Marketing Federation Limited, reported at 2010 (10) SCC 86, to substantiate all these contentions which form part of Civil Application No. 2026 of 2017.
20. Shri Bhangde, learned Senior Advocate, opposing the Contempt Petition submitted that Contempt is quasi criminal proceeding and proof beyond doubt, is essential. There has to be specific and proper plea charging an individual for that purpose. According to him, Contempt has been filed on 04.04.2017 and hence the facts or events prior to that date and after 09.03.2017 are only relevant. The developments after 04.04.2017 are not ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 27 germane. Not proceeding with election or not holding of election is the only contempt alleged and there is no personal allegations against respondent No. 4. Inviting attention to the judgment delivered on 09.03.2017, he states that there is no specific or express direction "to resume" the election. On the contrary, respondent No. 4 - Collector is asked to hold election "as per law". Hence, when the office of the Collector has proceeded further to conduct election as per law and there are no malafides in the matter, validity of said act needs to be challenged in an independent or fresh writ petition and it cannot form subject matter of contempt.
21. The contentions based upon new election process initiated on 20.05.2017 or change of relevant date for preparation of voters list or then Ordinances issued by the State Government, therefore, are not relevant and hence the Contempt Petition as filed is erroneous and misconceived. He further states that in Contempt Petition, though the reply affidavit has been filed on 04.09.2017, it was sworn at Bombay on 01.09.2017 and on 01.09.2017 this Court had not heard the Contempt Petition but ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 28 parties were generally consulted to decide the mode and manner of proceeding further with hearing of all these matters/ petitions. He also states that arguments based upon the observations in the order dated 24.03.2017 are erroneous because it is an interim order in Review Application No. 287 of 2017. That review has been allowed on 21.07.2017 and interim orders ceased to operate thereafter. The decision of the Collector to fix date 31.03.2017 as cut off date does not form subject of Contempt Petition.
22. Inviting attention to the additional affidavit, he submits that new Ordinance has come into force and the entire pattern or mode of holding elections of APMC have undergone a sea-change. The office of the Collector, therefore, is confused and hence have expressly submitted to jurisdiction of this Court and requested it for passing appropriate orders. He submits that the Collector has also tendered unconditional apology.
23. In brief reply, at this stage, Shri Naik, learned counsel submits that at one stage the Collector assures that he would hold elections as per old "unamended provisions" and at other stage he ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 29 in additional affidavit on 22.8.2017 also points out the Ordinance. Thereafter, Collector under the guise of submitting to the jurisdiction of this Court, also seeks appropriate orders. All this could have been avoided by simply obtaining a clarification from the High Court. This inconsistent conduct, therefore, adds to Contempt.
24. Inviting attention to the fact that the office of the Collector is not opposing Writ Petition No. 4488 of 2017, Shri Naik, learned counsel, submits that the office of the Collector has not furnished any explanation for non compliance between 09.03.2017 and 04.04.2017. Stage envisaged by Rule 36(9)(1) was over on 09.01.2017 and said office should have published official voters list under Rule 36(10) immediately after 09.03.2017. Not taking that step and filing an affidavit dated 22.08.2017 for appropriate orders is nothing but contempt.
25. Dr. Sundaram, learned counsel, addressing the Court in Writ Petition No. 4488 of 2017, submits that the petitioners therein are agriculturists and they are not concerned with ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 30 previous litigation. The Ordinance No. IX of 2017 has been re- promulgated on 31.08.2017 and hence is valid even now. Section 3 thereof amends Section 13 of APMC Act and agriculturists holding 10 R of land on a "specified" date are given recognition as members of APMC if they have sold their products at least thrice to APMC in the preceding five years. He points out that date for determination of membership of such farmers/ agriculturists is to be specified by the State Cooperative Election Authority.
26. To demonstrate that for the purposes of present controversy or then the elections of APMC, stage of preparation of voters list cannot be the date of commencement of election process, he relies upon the proviso to Rule 36(2). He further submits that Rule 36(12) and (15) show that errors can be corrected even thereafter and in this situation, till finalization of voters list, the Election process cannot commence. He adds that Rule 43 substantiates the legislative intent to commence election process only after finalization of voters list while specifying various stages in the election. He has drawn support from the judgment in the case of Raghavendra V. Deshpande & Ors. vs. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 31 Agricultural Produce Market Committee, Solapur & Ors., reported 1980 Mh. L.J. 423 (placitum (b) & (c); and Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Upadak Sanstha & Anr. vs. State of Maharashtra & Ors., (supra), to buttress his submissions.
27. The emphasis on legislation after amendment is to see that farmers for whose benefit APMC exists must also have role in its constitution and composition. The amendment brought out is, therefore, of vital importance for all farmers and for agricultural economy. The judgment delivered by this Court on 09.03.2017 in Writ Petition No. 585 of 2017 and MCA No. 287 of 2017 cannot upset the law. He invites attention to the observations of the Hon'ble Apex Court in paras 7 & 8 in the judgment in the case of General Manager, Department of Telecommunications, Thiruvananthapuram vs. Jacob s/o Kochuvarkey Kalliath (Dead) by LRs and Ors., reported at 2003 (9) SCC 662. He further adds that when there is a direction to hold elections "as per law", the law envisaged is law applicable at the time of elections. Our attention is drawn to the orders passed in ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 32 Writ Petition No. 329 of 2017 and 11131 of 2016 at Bombay on 12.07.2017. He submits that Division Bench there has rightly, after noticing legislative mandate, found it proper to ignore all other solutions. The order dated 11.09.2017 passed in Writ Petition No. 647 of 2017 is also relied upon by him to show that there the Division Bench at Nagpur has directed State Election Authority to act as per law. The Ordinance No. IX of 2017 applies to all elections and here when the period of five years for which Board of Directors of APMC function, cannot be computed from 09.01.2017 or 10.01.2017, the Ordinance must apply and farmers must be given right to vote.
28. Shri Raghute, learned counsel, in Writ Petition No. 3894 of 2017 has adopted the arguments of Dr. Sundaram, learned counsel. He submits that the election programme in present matter did not & can't start before the date on which the Ordinance promulgated or re-promulgated and as Board of Directors have to function for a period of five years in future, the law prevailing at this stage must be applied. He has invited our attention to preamble of Government Resolution dated ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 33 04.02.2017 to show that the State Government had then pointed out that the question of giving voting right to farmers was under
its consideration and constituted a Committee to study & to report to it within one month. Because of importance of this issue, on 18.05.2017, decision to postpone elections of APMCs were taken. On 18.05.2017, the State Government consequently postponed elections in all cases except where there was specific court direction or stage of nomination was already reached. Still on 19.05.2017, the Deputy District Election Officer directed publication of new provisional voters list on 20.05.2017. He contends that legislative intention to give real and effective representation to farmers cannot be permitted to be defeated in present matter. He has drawn support from the judgment in the case of Bombay Dyeing & Mfg. Co. Ltd. (3) vs. Bombay Environmental Action Group & Ors., reported at (2006) 3 SCC 434 (paras 204, 205, 206 and 312). According to him, on 09.03.2017 when this Court delivered judgment in Writ Petition No. 585 of 2017, factual matrix was different & also the election process had not begun and it has still not begun. He therefore prays for postponing the elections of APMC Nagpur by adhering to this ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 34 state directive.
29. Dr. Sundaram as also Shri Raghute, learned counsel submit that the State Government is accepting plea of farmers and have accordingly filed their reply. They, therefore, pray for allowing their writ petitions. According to them, all other matters before this Court cannot and do not survive after coming into force of the Ordinance & their writ petitions.
30. At this stage, Shri Naik, learned counsel, has invited our attention to the Ordinance published on 13.06.2017 to show that provisional voters list was published on 25.05.2017 and final voters list on 24.07.2017. The Ordinance applies to an election conducted immediately after such publication. He draws support from the judgment in the case of N.P. Ponnuswami vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist.
& Ors., (supra) 64 (para 7), Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. vs. State of Maharashtra & Ors., 2002 (1) Mh. L.J. 659 (paras 4, 7, 9 & 12) and Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. vs. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 35 Collector of Kolhapur & Anr., (supra) (paras 11 & 12).
31. Shri Ghare, learned counsel in Writ Petition No. 1806 of 2017, has submitted that on 18.05.2017, the State Government postponed elections of other APMCs to facilitate its desire to issue Ordinance to include farmers as voters. The amendment of such a nature should have been introduced normally in respective Houses and there was no emergency necessitating issuance of Ordinance. It is also pointed out by him that the Collector, Nagpur had at one time rejected request of farmers to add them as voters in voters list. He has in this backdrop submitted that Rule 36(2) of APMC Rules envisages a list to which reference is made in Rule 36(1) and the creation of groups/ constituencies in Rule 35A, B, C to show that the skill therein is not materially affected. Rule 35 (1) A, B, C, D have remained as it is even after amendment and, therefore, the Ordinance is necessarily perspective. He relies upon judgments in the case of Gorie Gouri Naidu (Minor) & Anr. vs. Thandrouthu Bodemma & Ors., reported at AIR 1997 SC 808 (Para 4) and Vallapally Plantations Pvt. Ltd. vs. State of Kerala, reported at AIR 1999 SC 1796 (Paras 1, 2, 6 & ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 36
23) to urge that when dispute is adjudicated upon, change in law thereafter cannot affect the outcome of adjudication. He, therefore, submits that prayers made in Writ Petition No. 1806 of 2017 vide prayer clauses A-1 and B need to be allowed.
32. In Writ Petition No. 6003 of 2017, he adds that when State postpones elections on 18.05.2017, the State Government has excluded those APMCs where Court has issued specific directions to conduct elections or then steps under Rule 43(1) of 1967 Rules have been taken and submission of nomination paper has begun. Here, the Collector, therefore, did not obey the directions issued on 09.03.2017. He could have diligently published stage wise programme in terms of Rule 43(1) immediately and by 18.05.2017, the stage of nomination paper could have been over. The amending ordinance could not have then, even on said count, applied to APMC Nagpur. Keeping in mind all these contingencies, State Government through the Collector, deliberately issued another election programme on 20.05.2017 to stage a farce that it is affected by the Ordinance. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 37
33. The order dated 18.05.2017 which is not impugned in any Writ Petition postpones the elections till 17.11.2017. Thus, necessary amendment could have been introduced democratically before 17.11.2017 and deliberated upon by the elected representatives. There was no emergency necessitating the Ordinance. Has the power been used with oblique motive only to avoid elections of Nagpur Agricultural Produce Market Committee? Report of a Committee was called for within one month on 04.02.2017 i.e. prior to budget session of the Houses which commenced on 9th March,2017. Both Houses were also Summoned on 24.07.2017 and the Legislative Assembly cleared the Ordinance before 11.08.2017. On that day, Houses were prorogued and hence Legislative Council could not look into the Ordinance. With the result, the Ordinance XI of 2017 lapsed on 03.09.2017. He draws support from the judgment in the case of Krishna Kumar Singh & Anr. vs. State of Bihar & Ors., reported at (2017) 3 SCC 1, (paras 58, 91 and 102) to demonstrate this. As the Ordinance does not become law and has lapsed, it does not enable farmers to claim right to vote or then it does not enable State Government to postpone the elections of APMC Nagpur. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 38 To explain the effect of such Ordinance which could not become law, he draws support from the judgment of the Hon'ble Apex Court in the case of Krishna Kumar Singh & Anr. vs. State of Bihar & Ors., (supra) (particularly paras 59, 60, 61, 63, 64, 90 and 91). Paras 93 and 95 are pressed into service to explain the three fold test applied by the Hon'ble Apex Court to evaluate the impact of such an exercise. He argues that the State Government has not explained either impact of or then why effect of such an Ordinance cannot be undone in present matter. He also relies upon the discussion by the Hon'ble Apex Court in paras 105.2, 105.8, 105.12 and 105.13. According to him, in present matter, position has still not become irreversible. Statutory Rules to give effect to and to implement the amendments introduced by the Ordinance are still to be finalized. Hence, the amendments are unworkable.
34. Inviting attention to challenge in Writ Petition No. 6004 of 2017, he submits that the order or direction issued by the State Government on 08.09.2017 purportedly under Section 15A has not been produced on record by the respondents. The ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 39 Director of Marketing expressly refers to said orders/ letter of Government in "reference" part at Sr. No. 1 and still the respondents have suppressed it. The order under Section 15-A is, therefore, not passed independently by the Director of Marketing as a free agent. He submits that as observed by this Court in its order dated 24.03.2017, new body could have been in office by 13.04.2017. Hence, only to avoid elections of APMC Nagpur, the exercise of issuing Ordinance was resorted to with oblique motive. It was also not permitted to be tabled before both the Houses as otherwise it would have been rejected and the State Government would have failed in its design. He submits that recourse to Section 15-A was not allowed by this Court when it passed orders on 07.09.2017 and at the most High Court then permitted invocation of powers under Section 45 of the APMC Act. The impugned order dated 08.09.2017 issued under Section 15-A militates with the directions of this Court. He further submits that defence by the State Government that elected body of APMC did not seek extension and hence the power under Section 14(3) was not exercised is equally erroneous. When the amendment as proposed has not materialized, Rules to implement ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 40 amendment are still not framed and the petitioners are not at fault for all this, tenure of elected board extended up to 07.09.2017 should have been further extended under Section 14(3) for a period of six more months. He argues that the State Government wanted to usurp administration of APMC and hence wrong or improper defences are raised before this Court. To demonstrate how charge was taken from elected body by Administrator (Chief Executive Officer), he relies upon assertions contained in para 15 of the Writ Petition No. 6004 of 2017.
35. To explain dictionary meaning of words "proceed" and "further" he has relied upon certain Dictionaries to urge that it clearly implies proceeding further beyond a point or stage already reached and to march thereafter.
36. Shri Bhangde, learned Senior Advocate, while replying to arguments in Writ Petition No. 6004 of 2017, submits that there in the impugned order, three factors have been looked into and the petitioners have not challenged the letter of Government dated 08.09.2017. He further submits that interim ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 41 orders dated 24.03.2017 passed by this Court merged with final orders dated 21.07.2017 on Review proceedings. On order dated 21.07.2017, he submits that only consideration then was to find out whether on 10.01.2017, Section 14(3) was invoked or not. The said order is not relevant for considering controversy which has arisen thereafter. The later order of this Court on Civil Application No. 2026 of 2017 dated 07.09.2017 permits State Government to take appropriate decision on further continuation of the elected board of directors. These orders are, therefore, not relevant for judging validity of action taken under Section 15A. He relies upon the judgment delivered on 22.04.2014 in Writ Petition No. 4238 of 2013 and other connected matters particularly page Nos. 23, 25 and 29 of said judgment to buttress his contention that after tenure of elected body has expired, mandate in Section 15A needs to be obeyed. The Administrator appointed accordingly has to take charge immediately and neither the petitioners nor anybody else has any legal right to oppose this step. He further submits that if any extension is to be sought, the proposal for it must come from elected body and there is no obligation on State Government to grant such extensions suo ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 42 motu. He, therefore, prays for dismissal of Writ Petition No. 6004 of 2017.
37. While replying to arguments of Shri Ghare, in Writ Petition No. 6003 of 2017, learned senior advocate, Shri Bhangde submits that the petitioners therein do not possess locus and after the Ordinance XI issued on 13.06.2017, the farmers got right to vote and the State Cooperative Election Authority has to conduct elections. This arrangement does not cause any injury and no legal right of the petitioners is violated. He further adds that this Ordinance is re-promulgated on 31.08.2017 and hence it is in force even now. As such, the petitioners are not the persons aggrieved and their writ petition is liable to be dismissed. He has taken support from the judgment in the case of Mohan Chowdhury vs. The Chief Commissioner, Union Territory of Tripura, reported at AIR 1964 SC 173 (para 8), Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Ors., reported at 2013 (4) SCC 465 (paras 9 & 10). He also submits that the petitioner in Writ Petition No. 6003 of 2017 is an agriculturist and his rights are intact. He further adds that right to contest or vote, being ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 43 statutory rights, are always subject to change in Statute and can be controlled by proper amendments.
38. Shri Bhangde, learned Senior Advocate submits that in Writ Petition No. 6003 of 2017, there is no challenge to the Ordinance issued on 13.06.2017. The said Ordinance is in conformity with Article 213 of the Constitution of India. He attempts to distinguish judgment of the Hon'ble Apex Court in the case of Krishna Kumar Singh & Anr. vs. State of Bihar & Ors., (supra) by submitting that there several Ordinances were issued repeatedly and the Government avoided to place the same before the State Legislature. Here, the Legislative Assembly could pass Ordinance XI of 2017 on 24.06.2017 but Legislative Council (Upper House) could not get time to consider it. In the matter before the Hon'ble Apex Court, the Ordinances were never placed before the Legislature. He relies upon Article 197 of the Constitution of India to show that the Legislative Assembly is superior to the Legislative Council and hence failure of the Legislative Council to consider the Ordinance, cannot be treated as fatal. He also relies upon the judgment in the case of Dr. D.C. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 44 Wadhwa & Ors. vs. State of Bihar & Ors., reported at (1987) 1 SCC 378, particularly observations at page 393 to show the circumstances in which Governor can re-promulgate the Ordinance.
39. Shri Bhangde, learned Senior Advocate, submits that in Writ Petition Nos. 1806 of 2017, 3894 of 2017 and 4488 of 2017, issue is whether the Ordinance applies to elections of APMC Nagpur. The election in such circumstances does not mean and cannot commence from the process of preparation of list of voters. Section 14-A (1)(a) is relied upon by him to show that this provision also recognizes process of preparation of list of voters as a distinct exercise from that of the conduct of elections.
"Election" therefore in APMC Act implies essential steps like filing of nominations and further stages. He draws support from the judgment in the case of Indrajit Barua & Ors. vs. Election Commission of India & Ors., reported at (1985) 4 SCC 722 (particularly para 12). Rule 43 of the 1967 Rules is pressed into service in this background to show that sub-rule (1) therein expressly comes into picture after publication of final voters list. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 45 Thus, the distinction in process of preparation of voters list and process of election is maintained in Rule 43. Therefore, the Ordinance bringing into force amendment has to apply even to APMC Nagpur as its "election" never commenced. He further submits that on 09.03.2017, High Court did not prohibit State Government from either starting a fresh process or then resuming the same process. On the contrary, direction was given to the State Government to act "as per law". When due to time lapsed, preparation of fresh voters list became necessary, the use of its power by the State Government in larger interest in this situation cannot be faulted with and old process cannot continue. Fresh voters list needed to be prepared as general elections were to be conducted and in such circumstances, the petitioners cannot rely upon Rules 36(2).
40. He repeats that decision of the Collector to fix "31.03.2017" as cut off date for drawing list of voters is not in challenge. On 10.04.2017, the office of the Collector after fully evaluating facts, decided to fix 31.03.2017 as cut off date and this decision cannot be faulted with at this juncture. All steps ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 46 thereafter are only consequential. He invites our attention to reply of respondent No. 8 - Collector in Writ Petition No. 1806 of 2017, filed on record on 21.09.2017 to explain developments between 09.03.2017 to 10.04.2017.
41. He has relied upon the judgment in the case of Balaji Chandra Hazara vs. Shewdhari Jadhav reported at 1978 (2) SCC 559, Ganeshmal Jashraj vs. Government of Gujarat & Anr., reported at (1980) 1 SCC 363, R.S. Nayak vs. A.R. Antulay, reported at (1984) 3 SCC 86, Balaji Digambarrao Kotgire vs. Enquiry Authority/ Chief Manager, Disciplinary Action Department, Oriental Bank of Commerce, New Delhi & Ors., reported at (2011) 6 Mh. L.J. 599, to show that whenever courts of law found it necessary, they have directed the respondents/ parties to begin the exercise from a particular stage. Here, on 09.03.2017, this Court has not issued any such specific direction but expected the Collector to follow law.
42. To demonstrate effect of not challenging the order of the Collector, fixing "31.03.2017" as date for drawing the voters ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 47 list on 10.04.2017, he cites the judgment in the case of Amarjeet Singh vs. Devi Ratan, reported at (2010) 1 SCC 417, Edukanti Kistamma vs. S. Venkatareddy, reported at (2010) 1 SCC 756. He relies upon Section 13(1)(A) to show that there while mentioning 15 agriculturists "specified date", plays important role and without such date, said provision cannot operate. The said date needs to be specified by the Collector "from time to time". Therefore, fixing cut off date was/ is essential. He further points out that because of amendment to Section 14-A and substitution of its sub-section (1) and sub-section (2), the Collector has ceased to be that authority with effect from 13.06.2017. The prescription of new fresh cut off date and a accordingly a new voters list in present matter by the new agency viz. the State Cooperative Election Authority is must and it has to undertake that exercise afresh. Hence, the steps in that direction by the Collector initiated on 20.05.2017 or before that have now become irrelevant and redundant.
43. He cites the judgment in the case of Sarlabai Arjun Baja vs. State of Maharashtra, reported at 1993 (2) Mh. L.J. 1127 ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 48 (para 22) to explain why fresh election programme is necessary. The judgment in the case of Howrah Municipal Corporation & Ors. vs. Ganges Rope Co. Ltd. & Ors., reported at (2004) 1 SCC 663 (paras 16, 34 & 36) is relied upon to submit that there cannot be any discrimination amongst voters to whom amendment applies. The observations of the Hon'ble Apex Court in the case para 8 of its judgment in the case of General Manager, Department of Telecommunications, Thiruvananthapuram vs. Jacob s/o Kochuvarkey Kalliath (Dead) by LRs and Ors. (supra), are also relied upon by him. To explain effect of the Collector loosing power to conduct elections, he relies upon the judgment in the case of Durga Hotel Complex vs. Reserve Bank of India & Ors., (2007) 5 SCC 120 (paras 7, 10 & 14). To explain need to adopt liberal approach and purposive interpretation when the Ordinance is made for benefit of the farmers, he is seeking support from the judgment in the case of Securities and Exchange Board of India vs. Alliance Finstock Limited & Ors., reported at 2015 (16) SCC 731. He further points out that in Writ Petition No. 1806 of 2017, the Collector has filed an affidavit on 20.09.2017 which reveals that his view is not inconsistent with ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 49 the stand of the State Government and the office of the Collector has pointed out that new legal provisions as amended by the Ordinance must prevail.
44. To explain judgment in the case of Vallapally Plantations Pvt. Ltd. vs. State of Kerala, (supra) and in the case of Gorie Gouri Naidu (Minor) & Anr. vs. Thandrouthu Bodemma & Ors., (supra), relied upon by Shri Ghare, Shri Bhangde, learned Senior Advocate submits that in those matters, disputed issues were already settled and are not allowed to be opened again judicially. Here, on 09.03.2017, when the judgment in Writ Petition No. 585 of 2017 expected respondents to act as per law, change in law is very relevant.
45. Shri Dastane, learned counsel appearing in Writ Petition No. 6004 of 2017 for newly appointed Administrator CEO, relies upon the submissions to explain the circumstances in which the Administrator was required to take charge at 9 O' clock in the morning.
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46. With leave of Court, Dr. Sundaram, learned counsel for the petitioners in Writ Petition No. 4488 of 2017 submits that with effect from 31.10.2017, draft rules have been published and old rules are deleted. As the Ordinance has already amended the APMC Act, earlier Rules become redundant and now for the first time, no incongruity in amended provisions of parent Statute and rules can be urged. To explain the position, he relies upon the judgment in the case of ITW Signode India Ltd. vs. Collector of Central Excise, (2004) 3 SCC 48 (paras 7 & 11) and in Atul Nanasaheb Kambe & Ors. vs. Collector, Akola & Ors., reported at 2008 (5) Mh. L.J. 452.
47. Because of contentions raised by Shri Bhangde and in reply arguments in Writ Petition No. 6003 of 2017, Shri Ghare, learned counsel invites attention to the pleadings in paras 1 & 4 as also Ground No. VII to demonstrate locus of the petitioners. He submits that statutory rights are being violated and the obligation to hold election is being defeated. Again, he attempts to explain the situation by inviting attention to the judgment in the case of Mohan Chowdhury vs. The Chief Commissioner, Union ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:49 ::: wp4488.17 51 Territory of Tripura, reported at AIR 1964 SC 173 (particularly paras 5, 6, 7 & 8) and Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Ors., (supra). He submits that in Ground VIII, the petitioners have pointed out use of power by the State Government for extraneous reasons & malafides in issuing or re- promulgating the Ordinance. Inviting attention to paragraph 64 in the judgment of larger bench of the Hon'ble Apex Court in the case of Krishna Kumar Singh & Anr. vs. State of Bihar & Ors., (supra), he argues that principle in Dr. D.C. Wadhwa & Ors. vs. State of Bihar & Ors., (supra), relied upon by Shri Bhangde, learned Senior Advocate is distinguished & not approved in said para by said larger bench. He reiterates that the State Government did not place Ordinance XI of 2017 immediately before the Legislative Assembly and Legislative Council, but it is introduced just three days prior to end of the Session. The State Government could have extended session to facilitate consideration of that Ordinance but that also has not been done. Number of APMCs whose elections were due is also not pointed out to justify the recourse to exceptional power and hence, mere constitutional supremacy of Lower House in present matter is not ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 52 decisive.
48. While replying to the arguments of Shri Bhangde, learned Senior Advocate in Writ Petition No. 6004 of 2017, he claims that there was/is no hurdle for permitting the elected body (Board) to continue even beyond 08.09.2017 and on 31.07.2017, this Court did not permit the Director of Marketing to pass any orders to the contrary. The State Government itself, therefore, should have produced its directions issued on 08.09.2017 to the Director of Marketing but the same have been deliberately suppressed.
49. While replying to arguments in Writ Petition No. 1806 of 2017, Shri Ghare, learned counsel states that the Court of law or High Court need not always define course of action after remand. Case law cited in this connection by Shri Bhangde, learned Senior Advocate is in quasi judicial matters either in landlord-tenant dispute or in service matters and has got no bearing on present controversy. Judgment in the case of Y. Ramanjaneyulu vs. State of A.P. & Ors., reported at (1985) 2 SCC ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 53 723 (particularly paras 3 & 10) is relied upon by him. He submits that in APMC Act, preparation of voters list is integral part of polling. He invites attention to Section 14-A(1)(b) and the provisions of Rules 36, 37 and 88 in support. He also submits that under Rule 88, disputed list of voters can also be a ground for setting aside of election. Thus, the process begins from the stage of publication of the provisional voters list and culminates with declaration of result after counting of the ballots.
50. He further states that the Collector in present matter did not possess power to proceed de novo with election and arguments by Shri Bhangde, learned Senior Advocate or recourse to various precedents by him for this purpose is misconceived. As the demand is to implement the command to continue with election programme left incomplete on 10.01.2017, there need not be independent challenge to the act of the Collector fixing "31.03.2017" as cut off date. Shri Ghare, learned counsel, therefore, prays for allowing Writ Petition Nos. 1806 of 2017, 6003 of 2017 and 6004 of 2017.
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51. Though the respondent - State has questioned locus of the petitioners and relied upon judgments to buttress their submission that after expiry of their tenure as elected Directors, the petitioners cease to possess any interest or the right, we find that the petitioners have questioned action of the State Government displacing them and attempting to appoint initially the Collector as Administrator and thereafter, the Chief Executive Officer of Zilla Parishad, Nagpur, as Administrator on second occasion. On first occasion as the tenure of elected body was found already extended till 08.09.2017, this Court did not permit the Collector to take charge and function as Administrator. With the result, the elected Board of Directors could not be displaced. As such it cannot be argued by the respondents that these elected Directors who were in office on 09.01.2017 and did question successfully the postponement of the General Election of APMC in Writ Petition No. 585 of 2017, could not have maintained Writ Petition No. 1806 of 2017 challenging an effort to cut short their extended tenure by appointing the Collector, Nagpur, as Administrator on 22.03.2017. This Court in review has restored the order of the State extending their tenure till 07.09.2017. As ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 55 Writ Petition No. 1806 of 2017 filed by them with prayer to permit Board to continue and to complete the election process, is maintainable, contention that as there is no fault on their part, they cannot be substituted by Administrator even after 07.09.2017 and must be allowed to continue in office by quashing the order appointing the administrator passed on 08.09.2017, therefore, needs to be examined on merits. It cannot be said that as elected Directors whose extended term expired on 07.09.2017 and who are already before this Court in WP 1806 of 2017, loose their locus or a right to claim further continuation contending that they are not at fault in not completing the election process before 07.09.2017.
52. Not only this, their effort is only to see that Board of Directors elected as per law do only administers the affairs of APMC, Nagpur. The Ordinance to amend APMC Act came to be issued twice. Again as Ordinance expands the voter-base, as also changes in the authority to conduct the election, it cannot be said that such an Ordinance cannot be challenged by them as citizens closely associated with agricultural produce. Because of the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 56 directions contained in judgment dated 09.03.2017, we can not stop them from pleading non-applicability of such Ordinances. These petitioners are also the contesting respondents in petitions filed by the farmers. Hence, challenge to their locus is misconceived.
53. In other writ petitions, apart from elected Board of Directors there are other persons as petitioners. In Writ Petition No. 4488 of 2017 and Writ Petition No. 3894 of 2017, agriculturists are before this Court pointing out Ordinance and claiming right to vote. Their prayer is not to hold elections of APMC Nagpur till all eligible agriculturists/ farmers are included in the voters list. These petitions cannot be said to be not maintainable and farmers who have filed it, cannot be denied the locus. In fact, the learned Senior Advocate has expressly stated that the State Government is not opposing these two writ petitions.
54. While opposing these petitions of farmers, these members of Board of Directors have contended that the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 57 Ordinance is nothing but a fraud on statute. Such a contention is independently raised by them even in Writ Petition Nos. 6003 of 2017 and 6004 of 2017. Two petitions filed by farmers are being opposed by them also by taking shelter of directions dated 9.3.2017 in WP 585 of 2017. Hence without looking into correctness or otherwise of their submissions, even farmers' petitions cannot be decided. In nut-shell we find challenge to locus of petitioners in writ petitions 1806, 6003 & 6004 of 2017 filed by the erstwhile members of Board of Directors unsustainable.
55. It is to be noted that the Ordinance to amend A.P.M.C. Act was earlier issued as Maharashtra Ordinance No. XI of 2017 on 13.06.2017. This was during pendency of Review Petition in Writ Petition No. 585 of 2017 and the earlier orders of the State Government dated 10.01.2017 extending tenure of elected body for a period of six months. In the light of these developments that elected body could continue up to 07.09.2017.
56. The Ordinance was again re-promulgated on ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 58 31.10.2017 as Ordinance No. XVII of 2017 and because of this action, an Administrator is appointed on A.P.M.C. The task is entrusted to the Chief Executive Officer of Zilla Parishad and these orders are passed after the leave given by this Court vide its orders dated 07.09.2017 to the State Government to take necessary decision.
57. Thus, because of this liberty and pending Writ Petitions/ challenges, it cannot be said that the elected Board of Directors lack/lose locus to maintain their challenges. The fate of their challenge on merits cannot be decisive of their locus. They claim right to continue even beyond 07.09.2017 and submit that till democratically elected Board of Directors assume charge, they must be allowed to function. Their other contention is, because of judgment of this Court dated 09.03.2017, the election then left incomplete on 10.01.2017 has to proceed further and, therefore, voters list as finalized in January 2017 must only be used for conducting elections. Again, it cannot be said that subsequent events or issuance of Ordinance estop them from raising such contention. As we find that the petitioners possess necessary ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 59 status and locus, writ petitions filed by them need to be considered on merit. In view of these reasons, we do not wish to go into the judgments on which reliance has been placed by Shri Bhangde, learned Senior Advocate for the State to support absence of locus in the erstwhile members of Board of Directors. As this Court after 07.09.2017 did not grant any interim order, the members continuing as Directors have ceased to function as such and affairs are now being managed by the Chief Executive Officer, Zilla Parishad, Nagpur. But then their status as voters in election of A.P.M.C., Nagpur, is not in dispute.
58. The respondent - State has further submitted that as election never started, in view of the Ordinance, direction contained in the judgment of this Court dated 09.03.2017 to proceed further is not attracted. There is dispute between the parties about the scope of "election" process in APMC Act. Whether voters list is an integral part of process of election or then it can be severed and Court can hold that mere publication of voters list is not commencement of election process is, therefore, the dispute. This dispute arises because of language ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 60 employed in Ordinance No. XVII of 2017 or then earlier Ordinance No. XI of 2017. The language employed in proviso sought to be inserted in Section 13(1)(a) stipulates that during the period of five years from commencement of said Ordinance, in an election conducted immediately after such date of commencement, the agriculturist residing in market area who satisfy requirement of holding agricultural lands as mentioned therein, are eligible for voting. Not only this but till that date, in view of Section 14(2), earlier the Collector was the authority empowered to hold such election. However, that power has now been made over to newly constituted authority under the ordinance by name "the State Cooperative Election Authority". If election as envisaged in this Ordinance includes the stage of preparation of voters list also, Shri Ghare, learned counsel submits that in the light of directions contained in the judgment of this Court dated 09.03.2017, the election must proceed further. The respondent urge that election as envisaged in Ordinance commences only from the stage of filing of nomination paper and all relevant dates stage-wise are to be fixed under Rule 43 of APMC Rules, 1967. As such, according to them, in this situation ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 61 the finalization of list of voters under Rule 36 of 1967 Rules is an irrelevant factor.
59. This Court in judgment dated 09.03.2017 delivered in Writ Petition No. 585 of 2017 has directed respondent No. 1 "State Government" to proceed further with the election of APMC as per law. Shri Ghare, learned counsel emphasizes on words "to proceed further with the election" while the respondents highlight the words "as per law".
60. The Division Bench of this Court in the case of Raghavendra Vasantrao Deshpande & Ors. vs. Agricultural Produce Market Committee, Solapur & Ors., reported at 1980 Mh. L.J. 423, has construed the word election in APMC Act only. It observes that the word election normally embraces the entire process to be gone through to return a candidate to the appropriate body for which election has to be held, including the process starting with at least the commencement of filing of nomination papers and ending with declaration of result. It cannot be restricted merely to that part of process which deals with actual voting or counting ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 62 of votes and declaration of names of elected candidates.
61. Shri Bhangde, learned Senior Advocate has relied upon the judgment in the case of Indrajit Barua & Ors. vs. Election Commission of India & Ors., reported at (1985) 4 SCC 722. This judgment shows a finding in para 12 that the Hon'ble Apex Court did not accept that preparation of electoral roll is also process of election. The Hon'ble Apex Court there finds that election of a candidate is not open to challenge on the score of electoral roll being defective. Holding the election to the Legislature and holding elections according to law are found to be matters of paramount importance. The earlier discussion shows that after extracting a passage from Halsbury's Law of England, the Hon'ble Apex Court has noticed that the word "election" can be used and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have important bearing on the result of the election. Discussion by the Hon'ble Apex Court in para 10 shows that the detailed provisions have been made in the registration of electoral rolls to raise objection to the names of disqualified ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 63 persons and if for some reason a electoral roll is not revised as required by sub-section (2) of Section 21, the unrevised roll is not affected in any way and continues to be the electoral roll holding the field. In para 12, an earlier Constitution Bench decision of the Hon'ble Apex Court in the case of Lakshmi Charan Sen vs. A.K.I.M. Hassan Uzzaman, reported at (1955) 4 SCC 689, has been taken note of to hold that preparation and revision of Electoral Roll is a continuous process, not connected with any particular election. When a election is to be held, the Electoral Roll existing at that juncture is to be used. The Hon'ble Apex Court has also pointed out support to this proposition emerging from Section 23(3). In present matter, we will comment on the scheme of "APMC election" little later.
62. At this stage, it will be appropriate to look into the communication dated 18.05.2017 issued by the State Government. This communication mentions that the State Government was desirous of giving all farmers in the State, right to vote in election of APMC and, therefore, postponed elections of all APMCs. The APMCs in whose case steps under Rule 43 of ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 64 1967 Rules had been initiated by the Collector or DDR, & the stage of nomination was on, have only been excluded. Thus, State Government has because of its desire, as evident from the Maharashtra Ordinance No. XI of 2017 or XVII of 2017, postponed elections of APMCs. The facts on record show that even in the case of Nagpur APMC, stage of submission of nomination paper had never arrived as the Collector, Nagpur, had not framed any Election Programme in terms of Rule 43 of 1967 Rules. Hence, communication dated 18.05.2017 also enables the respondent - State to claim that elections of Nagpur APMC cannot be conducted until and unless all farmers are given right to vote. Here, it is important to note that in any Writ Petition including the writ petition No. 6003 of 2017, the petitioners - Members of Board of Directors of APMC have not challenged this communication dated 18.05.2017. At the most there is a challenge to the Ordinance No. XVII of 2017 or earlier lapsed Ordinance only. This direction issued on 18.05.2017 is prior to even the first Ordinance no. XI of 2017. Legally, the decision to postpone the elections of APMCs is preparatory to & independent of or distinct from the policy decision attempted to be ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 65 implemented through the impugned Ordinances. It needed to be assailed independently & the State Government could have given some reasons in defense.
63. In Writ Petition No. 6004 of 2017, the said petitioner in Writ Petition No. 6003 of 2017, along with eight other Directors question the order dated 08.09.2017 passed under Section 15-A, appointing respondent No. 3 - Chief Executive Officer, Zilla Parishad, Nagpur as Administrator on APMC Nagpur. Thus, they do not challenge decision of State to postpone the elections dated 18.05.2017 mentioned supra. If the policy decision dated 18.05.2017 is valid, then even if Ordinance XVII of 2017 is quashed, the appointment of the Administrator may be required to be continued.
64. In Writ Petition No. 1806 of 2017, the very same Board members question by amendment the Election programme dated 20.05.2017 by which the Collector, Nagpur had embarked upon exercise of drawing fresh voters list. In unamended writ petition filed on 23.03.2017, the effort is to see that election ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 66 programme left incomplete on 09.01.2017 should be prosecuted further. Though this petition has been amended on 07.09.2017, but then there is no challenge to above referred order postponing election of several APMCs dated 18.05.2017. The order dated 18.05.2017 expressly gives benefit to all farmers if election process of their APMC has not reached the stage of nomination when the Ordinance was/ is promulgated. Why the processes or even election processes where stage of nomination is not reached, can not be canceled by communication dated 18.05.2017 is not explained by the erstwhile Board members.
65. In the light of case laws looked into supra, in the light of arguments advanced, we have to now examine scheme of 1967 Rules to find out whether preparation of voters list needs to be recognized as an integral part of process of election in scheme of APMC Act and whether any conflict can be worked out in directions contained in judgment of this Court dated 09.03.2017 on one hand and above referred decision of the State Government dated 18.05.2017 or then the the decision of Collector to draw fresh voters list & his act of publishing a programme dated ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 67 20.5.2017. However, it is of paramount importance to note that the parties have not attempted to explain why a honest desire to give effective or direct voice to large number of agriculturists in Board elections should not be sufficient to abandon even an election at any of its stages. If need for such direct participation by the farmers is realized by the State Legislature, why it has to wait for next 5 years as election process under Rule 43 of 1967 Rules has attained a particular stage is the cardinal issue on which no arguments are advanced before us.
66. The Division Bench judgment of this Court in the case of Digambar Sadashiv Ghorpade and others Vs. Election Registration Officer, Kolhapur and others reported at 2003 (1) Mah.L.J. 669, has held that in Election Petition under Rule 88 of 1967 Rules, validity of the electoral roll can be questioned. This Division Bench judgment or law laid down therein has not been urged to be wrong by anybody particularly the respondents. In fact, the respondents have not even submitted that in Election Petition under Rule 88 of 1967 Rules, voters list cannot be assailed. The law laid down by the Hon'ble Apex Court in the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 68 case of Indrajit Barua & Ors. vs. Election Commission of India & Ors. (supra) or then principles therein, therefore, are not relevant in present matter.
67. Rule 36 of 1967 Rules deals with voters list and it is contained in Chapter III which is on subject of Constitution of Market Committee. This Chapter (Part I) begins with Rule 35 which is on the subject of Preparation of list of voters and it continues up to Disqualifications of membership, for which a provision is contained in Rule 41. Then before Rule 41A, there is a title "Administrative machinery for the Conduct of Election". Rule 41A contains a provision for Appointment of Returning Officer and other rules stipulating other steps including procedure for casting of vote etc. all appear in this part I. This continues up to Rule 71A which deals with the contingency of Fresh Poll. Part II thereafter is about counting of votes. Rule 43 which speaks about dates etc. for various stages of election is contained under this head "Administrative machinery for the Conduct of Election". The bare perusal of scheme in Rule 36 shows importance given to the right to vote. The voters list is to ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 69 be prepared constituency-wise and then it is to be revised before every general election at least six months in advance. Thus it is not a list which is always available or remains valid independent of its revision. Sub-rule 6 and sub-rule (7) of Rule 36 show how objections to such provisional list are to be raised. Sub-rule (10) authorizes the Collector to hear the party and to look into evidence and to pass suitable orders on the objections/ claims. This order is made final. The voters list needs to be amended accordingly as per sub-rule (11). Even thereafter under sub-rule (12) any error in the voters list can be corrected. As per sub-rule (14), the final list of voters after amendment remains in force as the list of voters for the purposes of any bye-elections, until it is revised as per Rule 36. However, under sub-rule (15) even thereafter a person whose name is not entered in final list can seek addition of his name not later than three days before the last date of nomination. It, therefore, appears that exercise of finalization of voters list continues independent of the stage of nomination to be fixed under Rule 43. Under Rule 43(1), the Collector has to fix last date for making nominations. This date has to be as per election programme which specifies various ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 70 stages of election. The Election Programme under rule 43(1) is to be drawn not earlier than 15 days and not later than 30 days of the display of final list of voters. The last date of making nomination has to be 15 days from the date of declaration of Election Programme. Thus, this scrutiny of scheme as contained in Part I from Rules 35 to 41 show how list of voters is to be drawn. Rule 41A onwards contained under distinct "Head" show how machinery & procedure for conduct of election is specified distinctly and that machinery has been given duty of drawing Election programme.
68. Section 14A of APMC Act dealing with Election also show that task of preparation of voters list and conduct of actual election has been viewed distinctly. Thus, till 3 days before last date prescribed for making of nominations, electoral roll can undergo changes.
69. The Division Bench of this Court in the case of Raghavendra Vasantrao Deshpande & Ors. vs. Agricultural Produce Market Committee, Solapur & Ors., (supra), has held that the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 71 election process of A.P.M.C. includes the process starting with the filing of nomination papers and ending with declaration of result. We are not inclined to take a different view of the matter. The preparation or finalization of voters list is an independent exercise which needs to be understood as such. The decision of State Government dated 18.05.2017 is conducive to same finding. Concept of "election" employed or its sweep implied in S. 3(1)(e) of the Ordinance does not appear to be different to us. This section of amending ordinance substitutes clause (e) in S. 13(1) of the APMC Act. In any case, when importance is given to right to vote till last possible moment, obvious intention is to have true representation of concerned interests in APMC i.e. its Board. In present case, we find that if the farmers are recognized and made eligible as voters validly to inculcate true democratic character in the APMC, they can not be denied right of inclusion in voters list by an exercise of treating incomplete exercise of drawing of voters list as unseverable part of casting of vote.
70. The perusal of Maharashtra Ordinance No. XI of 2017 or then Ordinance No. XVII of 2017 along with S.O.R. therewith ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 72 reveals need felt by the State Government to give representation to individual agriculturists satisfying the norms prescribed by it, a right to vote in such election of APMC. Such agriculturalists must be residing in area of operation of APMC and hold minimum 10 R of land. In addition, he should have also sold agricultural produce at least three times in preceding five years in concerned A.P.M.C. Thus, such agriculturalist only gets a right to vote. The first Ordinance in this respect has come on 13.06.2017 and re- promulgated Ordinance is dated 31.08.2017.
71. This intention to give more voice to farmers and decision of State Government also finds mention in the order dated 18.05.2017 by which it decided to postpone the elections of APMCs where stag of nomination have not reached.
72. As already stated supra, in present matters correctness of said communication dated 18.05.2017 is not in dispute. The petitioners through Shri Ghare, learned counsel and contempt petitioners in Contempt Petition No. 85 of 2017 through Shri Naik, learned counsel bank upon the directions contained in judgment dated 09.03.2017 delivered by us. In that judgment in ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 73 para 11, we have observed as under :
"In this situation, it is not necessary for us to look into other contentions raised by the petitioners. We, therefore, quash and set aside the impugned order dated 10.01.2017. We direct respondent No. 1 to proceed further with the election of Respondent No. 5 - APMC as per law."
73. This direction has been later on explained in MCA No. 287 of 2017 on 21.07.2017. In para 8 of that order granting review. This Court has observed as under :
"Writ Petition No. 585 of 2017 could have been simply disposed of by pointing out error on part of State Government in taking recourse to Section 14(3-A) of APMC Act and above facts, without disturbing the other part of order under Section 14(3) of the APMC Act. Unfortunately or inadvertently this was not the issue argued and raised before this Court. We, therefore, find that the prayer in review application to the extent it seeks continuation of elected body under Section 14(3) of the APMC Act for a period of six months needs to be allowed."
74. Thus, after this order, direction of State Government ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 74 containing in its order dated 10.01.2017 to the extent it permits elected body to continue for six months was maintained and the direction postponing elections under Section 14(3-A) was quashed and set aside. Thus, this Court found that on 10.01.2017 legally on the ground of on going election process of other local bodies, general elections of APMC, Nagpur, could not have been postponed. This Court, therefore, permitted board/body then in office to continue for a period of six months and directed the State Government to proceed further with election of APMC as per law. There is no direction to complete the election process within said period of 6 months. We have not, could not have and also at that juncture, can not be presumed to have prohibited any legislative exercise having bearing on that election.
75. As already stated supra, in present matters correctness of said communication dated 18.05.2017 is not in dispute. The petitioners through Shri Ghare, learned counsel and contempt petitioners in Contempt Petition No. 85 of 2017 through Shri Naik, learned counsel, bank upon the directions contained in para 11 of the judgment dated 09.03.2017 delivered by us. In that ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 75 judgment in para 11, we have observed as under :
"In this situation, it is not necessary for us to look into other contentions raised by the petitioners. We, therefore, quash and set aside the impugned order dated 10.01.2017. We direct respondent No. 1 to proceed further with the election of Respondent No. 5 - APMC as per law."
This direction has been later on explained in MCA No. 287 of 2017 on 21.07.2017. In para 8 of that order in review, this Court has observed as under :
"Writ Petition No. 585 of 2017 could have been simply disposed of by pointing out error on part of State Government in taking recourse to Section 14(3-A) of APMC Act and above facts, without disturbing the other part of order under Section 14(3) of the APMC Act. Unfortunately or inadvertently this was not the issue argued and raised before this Court. We, therefore, find that the prayer in review application to the extent it seeks continuation of elected body under Section 14(3) of the APMC Act for a period of six months needs to be allowed."
76. Thus, after this order, direction of State Government ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 76 contained in its order dated 10.01.2017 to the extent it permits elected body to continue for six months was maintained and the direction postponing elections under Section 14(3-A) was quashed and set aside. Thus, this Court found that on 10.01.2017 legally on the ground of on going election process of other local bodies, general elections of APMC, Nagpur, has not been legally postponed. This Court, therefore, permitted body i.e. Board of Directors then in office to continue for a period of six months more and directed the State Government to proceed further with general election of APMC as per law.
77. The desire of State Government to give voting rights to individual farmers was not then before the Court. It cannot be argued that in the light of this direction issued on 09.03.2017, State Legislature is prohibited from enacting a law to give voting right to agriculturists in the elections of A.P.M.C. If it can enact such a law, it is apparent that it can also promulgate an Ordinance. The validity of promulgation or re-promulgation of an Ordinance is an altogether independent issue which need not detain us at this juncture. However, on 09.03.2017, it cannot be ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 77 said that this Court has prohibited any legislative exercise by the competent body. This Court on that day did not issue a direction to declare election programme under Rule 43 or to complete the general elections within stipulated time and to put newly elected body in office within that time. When the petitioners who obtained directions on 09.03.2017 also sought its modification in review which was pending till 21.07.2017, they on the other hand could not have sought its implementation before 21.07.2017. As it is not shown that this Court then had restrained the State Legislation giving right to individual agriculturists to vote in elections of A.P.M.C., We, therefore, find no inconsistency in our direction and the order of State Government dated 18.05.2017 postponing elections of all A.P.M.C. mentioned supra.
78. Though the erstwhile members of Board of Directors have challenged before us the Ordinance No. XI of 2017 or XVII of 2017, they have not questioned legislative competence of State in the matter. Thus, State Legislation has power to grant individual farmer a right to vote in election of A.P.M.C. When voters list for election of A.P.M.C. of Nagpur itself can be ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 78 subjected to some changes till three days prior to last date prescribed for filing of nomination, it cannot be said that State Legislature was/ is in any way incapacitated from passing suitable law within its powers. It appears that even after a Court mandate, in certain circumstances, such a provision in public interest could have been incorporated by the State Legislature. We, in this situation, do not find any substance in the contention that because of directions issued on 24.03.2017, the respondents ought to have completed the elections by taking recourse to Rule 43 and publishing a schedule containing various stages to complete the election as stipulated therein. This Court has expected State Government to proceed further with the election as per law. The State (Executive) accordingly has taken note of change in law and proceeded further. We cannot hold that it was restrained by this Court from proceeding further accordingly.
79. Shri Bhangde, learned Senior Advocate has relied upon certain judgments to explain how such direction to proceed further needs to be understood. The judgments relied upon by him are mostly in matters where the Hon'ble Apex Court or High ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 79 Court remanded the matter back to lower Courts/ quasi judicial authority and then directed a particular course to be adopted. Those judgments like judgment in the case of Balai Chandra Hazra vs. Shewdhari Jadhav (supra); Ganeshmal Jashraj vs. Government of Gujarat & Anr., (supra); R.S. Nayak vs. A.R. Antulay, (supra); Balaji Digambarrao Kotgire vs. Enquiry Authority/ Chief Manager, Disciplinary Action Department, Oriental Bank of Commerce, New Delhi & Ors., (supra) are, therefore, not of much assistance here.
80. Shri Ghare, learned counsel has relied upon the dictionary meaning of the word "proceed" and "further" to submit that it essentially envisages taking a step further from a particular point or beyond a particular line. Again in the light of finding recorded supra, we find said reliance on the dictionary meaning misconceived in present facts. This meaning does not advance the case of petitioners in Writ Petition Nos. 1806/2017, 6003/2017 & 6004 of 2017 at all. It is not in dispute that a right to contest or to vote in an election is a statutory right and, therefore, can be controlled by statute. We, therefore, need not comment on the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 80 precedents which support this proposition..
81. Shri Ghare, learned counsel has relied upon the judgment in the case of Gorie Gouri Naidu (Minor) & Anr. vs. Thandrouthu Bodemma & Ors., (supra), to urge that even an erroneous decision can operate as res judicata between the parties. The judgment dated 09.03.2017 in Writ Petition No. 585 of 2017 does not militate with power of State Legislature in any way. Moreover, the agriculturists on whom voting rights are being bestowed were not the parties to said judgment dated 08.09.2017. In this respect Shri Raghute, learned counsel, appearing on behalf of the farmers has rightly invited our attention to the judgment of the Hon'ble Apex Court in the case of Bombay Dyeing & Mfg. Co. Ltd. (3) vs. Bombay Environmental Action Group & Ors., (supra). There, the Hon'ble Apex Court in para 312 has observed that an order of Court needs to be construed having regard to the text and context in which the same was passed. The judgment cannot be read as a statute and it needs to be understood in the light of factual matrix involved therein. This precedent reveals that any observation made in the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 81 judgment cannot be read in isolation and in a different context. Thus, we find that our directions issued on 09.03.2017 in Writ Petition No. 585 of 2017 also need to be construed keeping in mind the facts and law then prevailing.
82. However, to urge that new provisions giving voting rights to individual agriculturists apply to the elections in dispute before us, few judgments have been cited. Again as we find that when general elections of Nagpur APMC though due in February, 2017 have still not taken place & Board now elected will be in office for five years after their election, the use of law prevalent on the date of election can not be labeled as retrospective use thereof. The term of Board i.e. of term of office of members forming the Market Committee has not already commenced from 09.03.2017 but it will commence from future date after their election as per S. 15(1) of APMC Act.
83. Dr. Sundaram, learned counsel has, however relied upon the judgment in the case of Howrah Municipal Corporation & Ors. vs. Ganges Rope Co. Ltd. & Ors., reported at (2004) 1 SCC ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 82
663. There, the question was whether any vested right was created in favour of a company to seek sanction for construction of additional three floors irrespective of amendment to Building Rules. The Hon'ble Apex Court observes that the Building Rules were amended after company made necessary compliances. By amendment, restrictions were imposed on height of building. The Hon'ble Apex Court observes that Building Rules were amended by the State Government and Municipal Corporation can have no bonafides or malafides in the matter. The Hon'ble Apex Court notes that provisions of the Corporation Act contemplated an express sanction to be granted by the Corporation before allowing any person to construct or erect a building. Thus, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions. The question whether such a vested right can be deemed to be created by the fixation of time-limit by the Court in its order for considering the application for sanction has been answered in negative after noting that the provisions of the Act under consideration, did not provide for "deemed sanction" or "deemed rejection" after expiry of the prescribed period fixed for ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 83 deciding the application for sanction. In controversy before us, the erstwhile members of APMC can not claim any vested right and the agriculturists for whose benefit the amendment to APMC Act is being proposed, were not parties to WP 585 of 2017. The impugned legislative exercise also did not exist on 09.03.2017 or before 13.06.2017.
84. In the judgment in the case of General Manager, Department of Telecommunications, Thiruvananthapuram vs. Jacob s/o Kochuvarkey Kalliath (Dead) by LRs. & Ors., reported at (2003) 9 SCC 662, the Hon'ble Apex Court has looked into a direction issued by the High Court to complete acquisition proceedings within time specified by it. The Hon'ble Apex Court observes that there was nothing in the order of High Court that Award of Land Acquisition could not have been passed beyond the time permitted by it. A statutory provision vested power in the authorities to declare Award within a time which was more than the time granted by the High Court. The Hon'ble Apex Court holds that direction of High Court cannot be read to stifle any authority from exercising its powers under the statute or deprive ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 84 a statutory provision of its enforceability. The judgment in the case of Durga Hotel Complex vs. Reserve Bank of India & Ors., reported at (2007) 5 SCC 120, relied upon by Shri Sundaram, learned counsel, is about need of adopting a purposive interpretation. Judgment in the case of Securities and Exchange Board of India vs. Alliance Finstock Limited & Ors., reported at (2015) 16 SCC 731, is again on same lines. Para 15 therein shows that if necessary such purposive construction would warrant even a retrospective effect.
85. In the light of discussion already undertaken supra, we do not find it necessary to dwell more on these judgments.
86. Shri Ghare, learned counsel has urged that the Ordinance as promulgated or re-promulgated is with oblique motive and aimed singularly at A.P.M.C. Nagpur. He has also submitted that though agriculturists are being made eligible to vote, the rules necessary to implement this decision are still not in place. Shri Sundaram, learned counsel, has submitted that after amendment to principal Act, rules become subservient to it. Shri ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 85 Bhangde, learned counsel, has submitted that though in Writ Petition No. 6004 of 2017, there is challenge to communication dated 08.09.2017 issued by the Director of Marketing, appointing CEO, Zilla Parishad, Nagpur, as Administrator of A.P.M.C., basic order of the State Government dated 08.09.2017 has not been questioned.
87. We find that answer to or need to answer these issues depends upon the question whether the Ordinance No. XI of 2017 or then XVII of 2017 can be sustained or not.
88. Shri Ghare, learned counsel, however, has relied upon the judgment in the case of Valloapally Plantations Pvt. Ltd. vs. State of Kerala, reported at AIR 1999 SC 1796, to urge that finality once reached cannot be undone by such an Ordinance or other Executive exercise. We have already held that the judgment dated 09.01.2017 in Writ Petition No. 585 of 2017 cannot be said to be final and binding in present scenario as farmers were not parties to it and their interest in the process has cropped up after promulgation of Ordinance No. XI of 2017 on 13.06.2017. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 86 Moreover, in judgment before the Hon'ble Apex Court, the issue was finally decided by Courts and by consequential order dated 18.05.1979, said adjudication was also accepted by Taluk Land Board and was given effect to. Thereafter in some other matter, other Division Bench took another view of legal provisions. This view is mentioned in para 3 of the judgment of the Hon'ble Apex Court. Because of this ""other view on law", Board invoked its power and attempted to re-open the proceedings. The contentions of land owner Trust, which opposed such reopening, are mentioned in para 6 of the judgment and conclusions are given in para 23. The Hon'ble Apex Court has found that the issue which was finally settled judicially between the parties could not have been affected because of change in judicial view/ interpretation of law. That is not the position in present matter. The legal provisions not then in contemplation on 09.03.2017 have emerged and necessitate appropriate evaluation and a solution.
89. In this background, the consideration of Ordinance No. XI of 2017 or XVII of 2017 is necessary. The Ordinance No. XI of 2017 expired on 03.09.2017 and hence to continue the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 87 operation of provisions in the said Ordinance, new Ordinance i.e. Maharashtra Ordinance No. XVII of 2017 has been re- promulgated on 31.08.2017. Thus, the very same provisions continued to operate. As already noted supra, the Government Resolution dated 04.02.2017 shows that State Government already was examining feasibility of conferring right to vote upon the agriculturists. Thus, the issue appears to be under consideration and deliberation at least since prior to February 2017 and hence for last about 10 months. In this backdrop, when on 10.01.2017 elections of A.P.M.C. of Nagpur were postponed, this reason of exploring possibility of conferring right to vote on an individual agriculturist has not been used. Said reason has been used for the first time in the order dated 18.05.2017. However, then the Ordinance for this purpose was promulgated on 13.06.2017 and before that i.e. on 20.05.2017, the Collector, Nagpur, published election programme of A.P.M.C. Nagpur. If version of the Collector is to be accepted, as per this election programme, individual agriculturists are not to be given right to vote.
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90. The contention that the excuse of conferring right to vote on an individual farmer is being used with an oblique motive to prevent elected representatives of politically opponent party from managing the affairs of A.P.M.C. is in this context. However, the order dated 18.05.2017 issued by the State Government or its order dated 20.05.2017 and various directions issued by this Court at Bombay or at Nagpur reveal that the move of the Government did affect elections of other A.P.M.Cs. also. In case of other A.P.M.Cs., validity of exercise of State was not questioned and hence the individual agriculturists have been permitted to vote as per mandate of Ordinance No. XI of 2017. We, therefore, find no substance in the allegation of malafides against the Government.
91. It is always open to Legislature to confer voting rights upon the individual agriculturists and such a policy decision and change in law perhaps may not be open to attack in writ jurisdiction on the ground of malafides. However, as no arguments in this respect or on wisdom behind it, are advanced before us, we need not comment upon it.
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92. As noted supra, the Winter Session of State Legislature was held at Nagpur between 11.12.2017 to 22.12.2017. What happened to Ordinance No. XVII of 2017 during this Session, is not known. If it is converted into an Act, the situation may call for a different approach. If it has not been so converted, adoption of a settled perspective will be necessary. But till the date of pronouncing this judgment, the State has not pointed out any such development in any of the Legislative houses.
93. The perusal of the Larger Bench judgment of the Hon'ble Apex Court in the Krishna Kumar Singh & Anr. vs. State of Bihar & Ors., reported at (2017) 3 SCC 1 reveals a decision by majority. The facts there show that Bihar Government continued to re-promulgate Ordinance and the same were never put before the Legislative Assembly. It is in that background that majority of the Judges have answered the question arising out of re- promulgation. In paras 75 & 76, the Larger Bench has considered the theory of enduring rights and in para 90 has observed that an Ordinance which has ceased to operate is not void. During its ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:50 ::: wp4488.17 90 tenure, the Ordinance has same force and effect as a law enacted by the Legislature. In para 93, the Larger Bench points out threefold test and then the effort to be made by the Court to mould the relief also find consideration in para 94. The judgment of the Constitution Bench of Apex Court in D.C. Wadhwa (supra) was delivered on 20-12-1986 is considered in para 101 where the larger bench endorses that there can not be an "ordinance-raj" in the country. In an earlier paragraph, this Larger Bench holds that not placing an Ordinance at all before the legislature is an abuse of constitutional process, a failure to comply with a constitutional obligation. A Government which has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the Ordinance which it has failed to place at all is valid till it ceases to operate. In present facts, the first assembly session after the study report was in March, 2017. Next two sessions were respectively in July,2017 & December,2017. Thus, after the desire surfaced, the Sate got two or three opportunities to bring an amendment as per the Constitution. As elections to A.P.M.C. Nagpur have not been held at all, the theory of enduring rights need not detain us more. Ordinance also ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 91 proposed conferring voting rights on an individual farmer only for five years. We, therefore, can safely follow & use the conclusions reached by Larger Bench. The conclusions in para 105 show that the requirement of laying an Ordinance before the State Legislature is a mandatory constitutional obligation and failure to comply with it is a serious constitutional infraction and abuse of the constitutional process. Re-promulgation of Ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. In view of these clinching observations of the Hon'ble Apex Court, it is apparent that as re-promulgated Ordinance No. XVII of 2017 has not been introduced in State Legislative Assembly at all in winter session, the controversy has to be answered against the State. The proposed provision which enables an individual agriculturist to cast vote requires specification of a date with reference to which his eligibility is looked into. As per Section 3 of Ordinance, in Section 13(1)(a) of APMC Act, for the words "21 years of age on the date specified from time to time by the Collector", the words "21 years of age on the date specified from time to time by the State Cooperative Election Authority" are substituted. Thus, this date is to be ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 92 specified from time to time by the State Cooperative Election Authority and till such date is specified, eligibility of an individual to vote in election of A.P.M.C. cannot be ascertained. As eligibility can not be examined, even provisional voters list of such agriculturist members can not be drawn even to-day.
94. Draft Rules have been published by the State Government on 31.10.2017 in terms of sub-sections (1) & (2) clause (d) and (u) of Section 60 of A.P.M.C. Act. The draft rules have been published as required by sub-section (3) for information of all persons likely to be affected with notice that draft rules would be considered by the Government on or after 30.11.2017. Whether Rules have been finalized or not, is not pointed out to this Court by anybody till date. These draft rules in Rule 2(21) define "voter" and for the purposes of this controversy, an agriculturist residing in the market area holding minimum 10 R of land and is not less than 18 years of age, if he has sold agricultural produce at least three times in preceding five years before date of declaration of provisional voters list programme, is a voter. Thus, it is the date of publication of ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 93 programme for finalizing voters list with reference to which eligibility of an individual farmer will be ascertained, if these draft rules are accepted and finalized. It is axiomatic that these new rules can find birth only if the Ordinance is valid and APMC Act is held to be amended accordingly.
95. In Ordinance No. XVII of 2017 vide Section 3(1) (e), a clause has been substituted as clause (e) and it reads :
"Provided that, during the period of five years from the date of commencement of the Maharashtra Agriculture Produce Marketing (Development and Regulation) (Amendment and Continuance) Ordinance, 2017, in an election conducted immediately after such date of commencement; all the agriculturists residing in the market area who hold minimum 10 R land and who are not less than eighteen years of age on the date specified by the State Co-operative Election Authority shall be eligible for voting unless otherwise ineligible to vote."
This clause, therefore, enables an agriculturist residing in market area holding minimum 10 R of land and not below 18 years of age on the date specified by State Co-operative Election Authority as eligible for voting. The said right to vote is for a ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 94 period of five years from the date of commencement of an Ordinance. Again, in view of earlier discussion, we need not comment more on these provisions.
96. These provisions can operate if the Ordinance is valid or then the A.P.M.C. Act is legally amended. Above mentioned judgment of the Larger Bench of the Hon'ble Apex Court is delivered on 02.01.2017. Hence, in February, 2017 when the State called for a study report, it was aware of the settled legal position. Thus, on 13.06.2017, when State Government got Ordinance No. XI of 2017 promulgated, it was duty bound and could not have overlooked or avoided to follow the constitutional mandate . Question whether for the reasons beyond its control, it could not then get the Ordinance approved in Legislative Council, has remained only an academic subject, after the very same Ordinance came to be re-promulgated on 31.08.2017. This re- promulgated Ordinance No. XVII of 2017, if valid, can at the most operate for a period of six weeks after 11.12.2017 because of mandate in Article 213(2)(a). Before 11.12.2017, it has operated for over a period of three months. The particular ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 95 composition and constitution of Members of Committee or Board of Directors of A.P.M.C. as per law approved by both the Houses of State Legislature is in vogue since 1967. Almost after 50 years, change therein has been proposed by extending an individual farmer a right to vote. As already observed supra, wisdom behind this policy decision may not be justiciable. However, this Ordinance itself has not been approved by the State Legislature as per Constitution of India till date.
97. Events noted supra show that since February 2017, need to amend provisions of A.P.M.C. Act is being examined by the State Government. The State Government, therefore, could have taken timely steps not only to issue Ordinance but also to introduce a proper amendment bill in appropriate House for suitably amending A.P.M.C. Act. The State Government has not extended the Session in August 2017 to enable its Legislative Council to consider Ordinance No. XI of 2017, though aware of its obligation to the Constitution and thereafter has not taken necessary steps to see that re-promulgated Ordinance becomes law at least in its next Session held between 11.12.2017 and ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 96 22.12.2017. No compliance with the constitutional obligation is brought on record by the State till today. We, therefore, find that in these facts, re-promulgated Ordinance cannot have any effect after 22.12.2017 and it cannot confer any right to vote on any individual agriculturist.
98. It is, therefore, unnecessary to consider whether the new Rules have come into force or then, is there inconsistency between amendments added by the impugned Ordinance & said Rules. For the same reasons, We need not dwell upon rival arguments on malafide use of power by the State.
99. In view of this finding, as elections have not been held till this date and as individual agriculturists do not have right to vote in general election of A.P.M.C. Nagpur, it is apparent that writ petitions filed by such individual farmers i.e. Writ Petition Nos. 3894 of 2017 and 4488 of 2017 cannot succeed.
100. Insofar as issue of Contempt committed by the office of the Collector is concerned, it is clear that the legal position was ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 97 not settled and hence the State Government through the Collector points out that the office of the Collector would hold elections without permitting individual agriculturist to cast vote. The other officers of the State Government in the wake of Ordinance have come up with a case that individuals need to be given a right to vote. Again at that juncture when the Ordinance was holding the field, the prevailing confusion cannot be perceived as misplaced or erroneous. Advantage thereof will definitely be to the office of the Collector at Nagpur. As already seen by us , on 22.03.2017, the State did appoint an Administrator on APMC, Nagpur as its order dated 10.01.2017 extending tenure of the Board of Directors was set aside by this Court on 09.03.2017. This act of appointing the administrator is not and could not have been assailed as contempt. This appointment came to be stayed in MCA No. 287 of 2017 filed for review to restore that part of order dated 10.01.2017. W.P. No. 1806 of 2017 filed challenging this appointment is being decided by this common judgment. MCA 287 of 2017 was allowed on 21.07.2017. As such, till 21.07.2017, the fate of the administrator itself was uncertain. Had this Court then passed some other order on said MCA, the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 98 prayer for completing the election process by resuming it from the stage reached on 10.01.2017 might not have survived. Judgment dated 09.03.2017 in WP 585 of 2017 was in clouds during this period. As such, at least till 21.07.2017, there can not have been any prayer for resumption of the election process. No grievance about any avoidance to comply or contempt, therefore could have been made before 21.07.2017 as judgment dated 09.03.2017 was under review till then. Ordinance XI of 2017 was very much in force on 21.07.2017. Prayers demanding elections in compliance therewith were then already pending before this Court in writ petitions mentioned supra. CA for intervention filed by the farmers was allowed in MCA 287 of 2017 and they opposed restoration of elected members on Committee by pointing out need to hold elections as per changed position. In WP 1806 of 2017, also Dr. Sundaram has on behalf of intervenors opposed prayers to restore the erstwhile elected members back to Board as also supported the programme published by the Collector on 20.05.2017. In this background, confusion in the office of Collector can not be viewed either as unwarranted or constituting contempt.
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101. The judgment delivered by this Court on 09.03.2017 in Writ Petition No. 585 of 2017 cannot be interpreted to prohibit State Legislature from enacting a law to give voting rights to individuals in election of A.P.M.C. The State Legislature can in an appropriate case extend such a right even in cases where there is a direction by a Court to hold elections as per law. When a competent Court specifies a particular course of action, law enacted to circumvent it will be required to be viewed differently. In present facts, there is no such specific direction and the election was to be held as per law.
102. The petitioners in Writ Petition No. 585 of 2017 or then in Writ Petition No. 1806 of 2017 ceased to be Directors initially on 09.03.2017 when their tenure of five years expired. They also ceased to be so when extension given to them on 10.01.2017 for a period of six months expired on 08.09.2017. The effect of expiry of such tenure is looked into in various judgments of this Court. In Writ Petition No. 4238 of 2013 and other connected matters decided on 22.04.2014, Bench at Nagpur has held that provisions of Section 15A(1) of A.P.M.C. Act come ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 100 into force after expiry of tenure and it is mandatory in character. The provisions of said section are considered in paras 11 and 12 in the said judgment and this Court has found that elected Board of Directors has no right to continue after the expiry of tenure. One of us (B.P. Dharmadhikari, J.) is a party to that judgment. In the light of this judgment, it is apparent that elected Board members, who are petitioners in above mentioned matters have no right to continue thereafter. The very same Board members are petitioners in Writ Petition Nos. 6003 of 2017 and 6004 of 2017. There they challenge appointment of Administrator under Section 15A by an order dated 08.09.2017 and also question re- promulgated Ordinance. It is to be noted that though the Ordinance No. XI of 2017 earlier promulgated was not specifically assailed by them, their effort in Writ Petition No. 1806 of 2017 is to have elections in terms of unamended A.P.M.C. Act i.e. by adhering to list of voters already finalized and by sticking to stages completed till 10.01.2017. If that petition is to be allowed, it follows that it was not necessary for them to expressly challenge Ordinance No. XI of 2017. Be that as it may, in changed circumstances, they have found it necessary to challenge ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 101 re-promulgated Ordinance No. XVII of 2017. To that extent, as general elections of APMC Nagpur have not been held for term beyond 09.03.2017 till this date, writ petitions filed by them cannot be said to be not tenable or misconceived.
103. The petitioners in Writ Petition No. 6003 of 2017 and 6004 of 2017 were elected as Directors of A.P.M.C., Nagpur, for five years and functioned as such till 07.09.2017. They are members of A.P.M.C. and possess necessary locus to maintain the challenge. They can always insist that the provisions of A.P.M.C. Act, 1967, operating since 1967 must be implemented. Their right to question the re-promulgation is independent & not eclipsed by any previous adjudication. They are within their rights to urge that till A.P.M.C. Act, 1967, is validly amended, individual agriculturalists cannot be given a right to vote.
104. We have already held above that re-promulgated Ordinance cannot have any effect and elections need to be conducted as if there is no amendment to A.P.M.C. Act, 1967. Briefly, individual agriculturists cannot be given a right to vote. ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 102 However, this does not imply that list as prepared by the Collector with reference to date "31.08.2016" needs to be used even for this election.
105. The Scheme of Rule 36 of 1967 Rules has been briefly looked into by this Court in this judgment already. The intent in the Rule is to see that all eligible voters get right to vote and have their say in the formation of A.P.M.C. The A.P.M.C. so formed or its Board of Directors so elected function for further period of five years. Hence, at this stage if we permit elections to be conducted by using list of voters finalized with reference to 31.08.2016 as cut off date, several eligible members may be denied right of participation in constitution of A.P.M.C. The local bodies or Managing Committees of Co-operative Societies comprised in Rule 35(1)(A)(B) may have undergone changes during this period. There may be new licenses issued and, therefore, addition to Trader's Constituency or to Hamals' and weighmen's constituencies. Thus, these new persons/ office bearers will have no role to play in formation of A.P.M.C., Nagpur. Moreover, those who have lost such representative capacity, cannot be ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 103 permitted to participate in formation of A.P.M.C. merely because on 31.08.2016, they possessed that capacity. When elections of A.P.M.C. are to be held for a period of next five years, the voters now eligible as per law must be permitted to cast vote so as to make A.P.M.C. a truly democratic & representative authority.
106. In December 2016 when the Collector began this exercise of preparing voters list, he chose 31.08.2016 as the cut off date. The process could not be completed because of intervention by the State in January 2017. Today, period of one year has expired from said date. It is to be noted that in reply before this Court the office of Collector has itself pointed out that due to time lost after 31.08.2016, it prepared a voters list as on 31.03.2017 in furtherance of exercise undertaken on 20.05.2017. We, therefore, find that the office of the Collector has to prepare a proper voters list by treating "31.08.2017" as cut off date.
107. Taking overall view of the matter, we find that the Collector cannot be said to have willfully disobeyed and committed contempt of this Court. Accordingly, we dismiss ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 104 Contempt Petition No. 85 of 2017.
108. As we find that an individual agriculturist cannot claim any right to vote, Writ Petition Nos. 3894 of 2017 and 4488 of 2017 are also dismissed.
109. Insofar as Writ Petition Nos. 1806 of 2017, 6003 of 2017 and 6004 of 2017, are concerned, as we find nothing wrong in appointing an Administrator on A.P.M.C., Nagpur, by an order dated 08.09.2017, Writ Petition No. 6004 of 2017 is dismissed only to that extent. As we have found re-promulgated Ordinance bad, Writ Petition No. 6003 of 2017 is partly allowed. As the voters list need to be drawn afresh as directed above, we quash & set aside the election programme dated 20.05.2017 published by the office of Collector. Writ Petition No. 1806 of 2017 is also partly allowed.
110. We direct the Collector, Nagpur, to conduct the elections of A.P.M.C., Nagpur, as per law by drawing fresh voters list by treating 31.08.2017 as cut off date and to complete the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 02:00:51 ::: wp4488.17 105 same at the earliest and in any case by 31.03.2018. The Chief Executive Officer, Zilla Parishad, Nagpur, functioning as Administrator shall continue to do so. However, he shall manage only day-to-day affairs as care-taker authority without taking any major financial or policy decisions till then.
111. Writ Petition Nos. 1806 of 2017, 6003 of 2017 and 6004 of 2017 are thus partly allowed and disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
112. At this stage, the learned Additional Government Pleader seeks stay of this order so as to enable the respondent - State to approach the Hon'ble Apex Court. It is also stated that in Winter Session the Ordinance has been converted into an enactment. Shri Raghute, learned counsel as also learned Additional Government Pleader state that the affidavits informing about the same are filed in office.
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113. It is apparent that after the matter was closed for judgment, by adhering to the procedure in Bombay High Court Appellate Side Rules, 1960, the developments have not been brought on record. The Registry, therefore, could not place those affidavits or developments before us. No steps are taken to bring these affidavits to the notice of Court. Considering the nature of directions issued by this Court, we are not inclined to grant the request made by learned Additional Government Pleader. Request rejected.
JUDGE JUDGE
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*GS.
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