Writ Petition No.4960 of 2008

2nd December, 2008

Petitioner Counsel: Shri. P. C. MADKHOLKAR
Respondent Counsel: Shri. D. B. PATEL,Shri. R. L. KHAPRE,Shri. NILESH ADBE

Cases Cited:
Chandkhan Vs. W. N. Gound, Returning Officer, Malegaon, 1972 Mh.L.J. 792 [Para 4,15]
Shamrao Krishnarao Kadu Vs. Nandkishore Ghansyamdas Jaiswal, 1973 Mh.L.J. 667 [Para 4,16]
Sudhakar Shankarlal Naval Vs. Arunlal Goverdhandas Gujrathi, 1976 Mh.L.J. 210 [Para 4,17]
Jyoti Basu Vs. Debi Ghosal, AIR 1982 SC 983 [Para 9]

JUDGMENT

JUDGMENT :- By this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the order dated 20th November, 2008, passed by Respondent No.2 - District Deputy Registrar in Appeal preferred by Respondent No.5 against acceptance of nomination paper of present petitioner for election to the post of Member of Respondent No.4 A.P.M.C. Khamgaon. Respondent No.3 is the Election Officer for the said elections which are conducted as per provisions of the Maharashtra Agricultural Produce Marketing (Development & Regulation) Act, 1967 (hereinafter referred to as APMC Act) and Maharashtra Agricultural Produce (Agricultural Development and Regulation) Rules, 1967 (hereinafter referred to as APMC Rules).

2. The Respondent No.1 before this Court is the State Government of Maharashtra. As per the election programme, the elections are scheduled on 14th December, 2008. On 24th November, 2008, it was pointed out to this Court that remedy of filing election petition earlier available vide Rule 88 of APMC Rules is not now available as said Rule 88 has been deleted. None of the parties have raised any objection to maintainability of writ petition before this Court against the order of Respondent No.2.

3. The election programme for elections of Respondent No.4 came to be published on 10th November, 2008 and the scrutiny of nominations took place on 10th November and 11th November, 2008. As there was no objection to the nomination paper of the present respondent, the same was accepted on 11th November, 2008. The respondent No.5 filed appeal before respondent No.2 under Rule 51 of APMC Rules on or about 17.11.2008 and challenged acceptance of nomination paper of the petitioner. The list of validly nominated candidate was to be published on 21.11.2008 and before that i.e. on 20.11.2008 respondent No.2 - District Deputy Registrar allowed the appeal. This court in its order dated 24th November, 2008, rejected the request of petitioner to include his name in the list of validly nominated candidates which came to be published on 25.11.2008 after observing that if ultimately the petitioner succeeds, his name can be directed to be added and he can be permitted to contest the election. The matter was directed to be place don 27.11.2008 for final hearing. Accordingly the parties have been heard finally.

4. Advocate Shri. P. C. Madkholkar for petitioner has contended that respondent No.2 has erroneously entertained the appeal as filed by respondent No.5, because respondent No.5 had not raised any objection to the nomination paper of the petitioner. He contends that the provisions of Rule 51 need to be interpreted strictly in its proper spirit and as respondent No.5 failed to raise any objection, the respondent No.2 ought to have dismissed his appeal. According to him, the election is governed by the sections & rules of above mentioned APMC Act and Rules therein and as such there is no question of holding that respondent No.5 was an aggrieved person. He further contends that as no objection was raised to the nomination paper of the present petitioner before respondent No.3, the petitioner was not aware of the alleged defaults and he, therefore, could not get any opportunity to point out the correct position. He invites attention to certificate dated 4.11.2008 issued by the Secretary of Respondent No.4 - APMC certifying that as on that date, A.P.M.C. had nothing to recover from the petitioner. He contends that the very fact that the name of the present petitioner was appearing in the Voters' list prepared under Rule 36, proves his eligibility to contest the election. He further states that there ought to be an order of disqualification against the petitioner by Director after following the procedure as prescribed under Rule 41(3) of APMC Rules and in absence of such order, the petitioner cannot be treated as disqualified. He urges that disqualification contemplated by Rule 41(1)(i) is not automatic and mere existence of arrears or them clearance of arrears in lump-sum is not sufficient to declare the person as disqualified. In support of his contentions, he invites attention to judgments reported at 1972 Mh.L.J. 792 (Chandkhan Vs. W. N. Gound, Returning Officer, Malegaon); 1973 Mh.L.J. 667; (Shamrao Krishnarao Kadu Vs. Nandkishore Ghansyamdas Jaiswal and others) and 1976 Mh.L.J. 210 (Sudhakar Shankarlal Naval Vs. Arunlal Goverhandas Gujrathi). He argues that the provisions of law in this respect are very clear and there has to be a notice of demand by APMC to the petitioner and then there has to be failure on the part of the petitioner to clear the amount as demanded therein. He relies upon the provisions of Rule 32(5)(a) to point out the procedure and states that if the disqualification is held to be automatic, said provision is rendered nugatory. He invites attention to provisions of Rule 36 to point out that Voters' List is finalized after receipt of objections and after it is finalized, it is conclusive as prescribed for under Rule 37. He invites attention to Rule 38 to point out his eligibility. He further states that Rule 50 prescribes the procedure for scrutiny of nomination papers to be undertaken by respondent no.3 and that procedure was properly followed. He contends that even for the purpose of scrutiny, the list of Voters is final and conclusive as per Rule 50(7).

5. He points out that Respondent No.5 who raised the objection in appeal has subsequently withdrawn from election as he has withdrawn his candidature and respondent No.5 was, therefore, introduced by somebody only to eliminate the petitioner from getting elected. He points out that if the petitioner is to be declared disqualified, principles of natural justice need to be followed and the petitioner did not get any opportunity to show cause or any opportunity of hearing as required by Rule 41, Sub-Rule 3. He further states that petitioner has been, therefore, victimized and his writ petition needs to be allowed.

6. Advocate Shri. Nilesh Adbe for respondent no.5, as also Shri. D. B. Patel, learned Assistant Government Pleader contends that procedure prescribed under Rule 41(3) is only for the purposes of unsitting a sitting member and is not applicable to the person like petitioner, who wants to contest the election. They also invites attention to provisions of Rule 41(1)(k) to state that such person who has been disqualified is separately treated by the said provision. It is also pointed out that respondent No.3 can raise objection on his own motion and hence, is also competent to declare the petitioner disqualified. They invites attention to provisions of Rule 32(2) r/w. Section 31(3) to contend that the duty to pay the amount arises immediately and there is no question of any notice being served upon the petitioner for that purpose. Advocate Adbe states that the judgments of this Court relied upon by the petitioner are about consideration of all together different provisions and those judgments are not relevant in present adjudication. Advocate Shri. Patel, learned Assistant Government Pleader stats that disqualification is all together an independent issue and has got no bearing upon recovery of the dues to be effected from the petitioner.

7. Advocate Khapre for respondent No.4 APMC states that on the date on which nomination paper was filed, the respondent No.4 - A.P.M.C. had nothing to recover from the petitioner. He further states that all relevant details are placed by the A.P.M.C. on record.

8. In his brief reply, Advocate Shri. Madkholkar, points out that there cannot be any automatic disqualification in view of provisions of Rule 32(5)(a) and he further states that Rule 50(2) contemplates summary inquiry into the objection by respondent No.3- Election Officer. He further states that when Returning Officer raises the objection suo-muto because of Sub-Rule 5, he is under obligation to give time to petitioner to rebut the objection. He contends that this procedure has not been followed. He invites attention to impugned order dated 20th November, 2008, passed by respondent No.3 in appeal to show that the said authority has not considered any of these challenges and has failed to apply its mind.

9. The perusal of judgment of Hon'ble Apex Court in AIR 1982 SC 983 (Jyoti Basu and others Vs. Debi Ghosal and others), particularly paragraph 8 thereof shows that the right to elect is a statutory right and so is the right to be elected. The right to dispute election is, therefore, to be exercised in terms of provisions of the statute and outside such statutory provision, there is no such right to challenge it. As election itself is statutory creation, it is subject to statutory limitation. These observations are pointed out to urge that respondent No.5 could not have filed any appeal against the acceptance of nomination paper of present petitioner. It is to be noted that Rule 51 of APMC Rules provide for an appellate forum and the appeal lies to the Collector within a period of 7 days. The appeal can be filed against the decision of a Returning Officer accepting or rejecting the nomination paper. Here the Returning Officer (Respondent No.3) accepted the nomination paper of the present petitioner and that order was challenged in appeal under Rule 51. However, the contention is respondent No.5 was not aggrieved by the decision of Returning Officer, accepting the nomination paper of the petitioner. Argument of petitioner is that only candidate who has objected the nomination paper of the petitioner could have preferred such appeal as he can be said to be aggrieved by rejection of his objection and therefore, by decision of Returning Officer accepting the nomination paper. It is difficult to read express language of Rule 51(1) on these lines. The sub-rule clearly contemplates the appeal by aggrieved candidate. In present matter, there is a decision of Returning Office accepting the nomination paper of the petitioner and respondent No.5 wanted to point out that petitioner was disqualified. He was, therefore, definitely aggrieved by acceptance of nomination paper. If the arguments of petitioner are accepted, Rule 51(1) will be required to be read as any candidate aggrieved by decision of Returning Officer rejecting his contention about the nomination paper may present an appeal to the Collector. That is not the language used and appeal has been provided against decision of Returning Officer accepting or rejecting the nomination paper after scrutiny. The decision is to be taken by the Returning Officer whether there is any objection raised before him or not. A candidate learning about disqualification of his rival after scrutiny and acceptance of nomination paper is not precluded from filing such an appeal. There cannot be any estoppel in such matters if purity of democracy is to be retained. The appeal is, therefore, maintainable at the instance of a candidate and present respondent No.5 was at the relevant time a candidate for said election. It is to be noted that under Sub-Rule 2 of Rule 51, the decision of Collector on an appeal and subject to said decision, the decision of Returning Officer accepting or rejecting the nomination of a candidate, is declared final and conclusive. It is to be noted that after scrutiny of nomination papers as per Rule 50(8), the Returning Officer has to prepare a list of candidates whose nominations have been accepted and affix that list on a notice board. This list is said to be under provisions of Rule 51. The stage of withdrawal of candidature provided for in Rule 52 is reached thereafter. It is, therefore, clear that on the date on which the appeal was filed and appeal was decided, the respondent no.5 was candidate for the election. It is not the case of petitioner that respondent No.5 had withdrawn before the adjudication of appeal by respondent No.2. I, therefore, find that appeal as filed by respondent no.5 was very much maintainable under Rule 51 of APMC Rules.

10. The respondent No.2 has found petitioner disqualified because of violation of Section 31(3) of APMC Act and Rule 32(2) of APMC Rules. Rule 31(3) mandates that the trader has to pay market fee immediately after weighment or measurement of the agricultural produce and trader who fails to pay the market fee as fixed, is liable to pay penalty prescribed in Act/Rules in addition to such Rules. The provision of Rule 32(2) is on same line and the market fee is required to be paid immediately after the weighment or measurement of declared agricultural produce. This provision, therefore, clearly shows that duty to pay market fee arises immediately after measuring or weighment of agricultural produce. If it is not so paid, the person not paying it becomes liable to penalty. The provisions of Rule 32(5) (a) requiring market committee to give petitioner a notice to pay the market fee or of any dues payable to it are attracted only for the purposes of recovery of market fees when it is not paid as contemplated by Rule 32(2). If, after the notice is served, person receiving it fails to pay the amount as demanded within specified time, the market committee has been given option to call upon such person to show cause why action to recover the amount of fee should not be taken against him. Under sub-clause (b) of this sub-rule (5), the market committee has been enabled to recover the amount mentioned in the order passed after service of show cause from the security deposit kept with it by the petitioner. Thus, it is apparent that the provisions of Rule 32(5) contain a machinery for recovery of market fee/other dues with penalty if the trader fails to pay it immediately. The section and rules cast obligation upon the petitioner to clear the same immediately after weighment or measurement. The liability to pay market fee or obligation or duty to pay to market committee does not arise after receipt of notice as sought to be contended by the petitioner.

11. The contention of petitioner is that as his name is included in voters list, he is deemed to be eligible for contesting the election and impugned order declaring him disqualified is without any legal basis. The procedure for preparation of voters list is prescribed in Rule 36 and under its sub-rule (7), the provisional list is required to be published inviting objections and after considering those objections under sub-rule (10) thereof, the Collector's order upon it has been made final. Rule 37 declares that this voters list published finally under Rule 36 is conclusive evidence for the purposes of determining whether the person is qualified to vote or qualified to be elected at any election. However, it opens with the words "subject to any disqualification incurred by a person". It is, therefore, obvious that the list so published, is subject to the disqualification if incurred by any person whose name appeared in it. Under Rule 38(2), it is declared that every person whose name appears in the list of voters prepared for a traders' constituency is qualified to be elected by the traders' constituency unless he is disqualified under APMC Rules, 1967. Rule 39 which confers Right to Vote again states that a person shall not vote at any election in any constituency if he is subject to any disqualification under these rules. It is, therefore, apparent that voters list prepared under Rule 36 is final and conclusive either for right to vote or right to contest, but then if the person whose name appears therein is subject to any disqualification, he can neither vote nor contest the election.

12. Rule 41 prescribes disqualification of membership. The relevant provisions contained in Sub-Rule (1) read as under :

"Rule 41.- (1) A person shall be disqualified for being chosen as or for being a member of a market committee,-

(a) ..........

(b) .........

(c) .........

(d) .........

(e) .........

(f) .........

(g) ........

(h) ........

(i) if he has committed breach of the Act or the rule or bye-laws made there-under more than once; or

(j) .......

(k) if he is disqualified by the Act of these rules."

The opening words, therefore, clearly shows that disqualification mentioned in Rule 41 apply for a member to continue as such a member and also are attracted in case of a person who desires to be chosen as member. The provisions of Section (2)(k) defines "member" to mean a "member of a market committee". The petitioner who was contesting the election for being elected as a member of market committee, therefore, is not a member and he is a person as mentioned in Rule 41(1). The person, therefore, necessarily mean a "voter" whose name is included in the list prepared under Rule 36 as mentioned above. If such voter has committed breach of APMC Act or APMC Rules or bye-laws made thereunder, more than once, he is disqualified for being chosen as member. Similarly, if a person is disqualified by the APMC Act or APMC Rules, he is not entitled to be elected or not entitled to continue as member. The difference in wordings of Clause (i) and Clause (k) above is eloquent. Clause (i) contemplates breach of the Act or Rules, while Clause (k) contemplates disqualification by Act or Rules. The disqualification under the Act or Rules is vide Rule 41(3) and said sub-rule (3) reads as under:

"Sub-rule (3) - When any question arises as to whether a person has become subject to any of the disqualification mentioned in sub-rule (1) the question shall be decided by the Director within thirty days of its reference. On the decision of the Director or the decision in appeal, as the case may be, a person who is disqualified, shall cease to hold office from the date of the decision by the Director, or by the Appellate authority, as the case may be. The Collector (or the District Deputy Registrar), as the case may be, shall, on receipt of such decision, hold the bye-election provided the remaining period of the term of the Committee is not less than one year from the date of decision."

It is, therefore, apparent that when question arises in this respect, such question is required to be decided by Director within 30 days of its reference. If the director finds such person disqualified, he ceases to hold the office from the date of decision by the Director. The said decision of Director is subject to appeal before the State Government as contemplated by Rule 41(5). It is, therefore, apparent that the machinery provided for under sub-rule (3) is applicable where a person is already elected as member and is occupying the office. When the Director or the State Government finds member to be disqualified, it is apparent that, in that event, only provision of Rule 41(1)(k) will operate. If this distinction between Clause (i) and Clause (k) is lost sight of, both the provisions then overlap each other and one of them is rendered nugatory. Thus, when both these provisions are read together with provisions of Sub-rule (3), it becomes clear that a person who has committed breach of APMC Act or Rules, is also disqualified for being chosen as member, though there may not be actual declaration of his disqualification. The contention of petitioner that unless and until procedure under Rule 41(3) is followed, the petitioner cannot be declared as disqualified, therefore, has got no merit.

13. The petitioner has also urged that as there was no objection raised to his nomination paper before respondent No.3 - Returning Officer, he did not get opportunity to show that he is not defaulter. One of his contention is, if procedure provided for under rule 32(5) is not held to apply in such case, then said provision i.e. Rule 32(5)(a) is rendered meaningless. It is to be noted that present petitioner was heard by respondent No.2 while deciding his appeal. The petitioner also filed 'no due certificate' issued by APMC in his favour on 4th November, 2008, along with his nomination paper. The contention that petitioner, therefore, was not aware of the requirement of law in this situation cannot be accepted. Under Rule 50, sub-rule (2), duty is cast upon the Returning Officer to examine nomination paper and then reject the nomination paper if he finds candidate is disqualified for being chosen. In present matter, as there was no objection raised, there was no question of any summary inquiry by the Returning Officer and Returning Officer also in view of certificate of APMC did not find it necessary to hold summary inquiry as contemplated by Rule 50(2). But then that does not mean that Returning Officer could not have declared petitioner as disqualified. The decision of disqualification for the purposes of election is to be taken by the Returning Officer and such decision of Returning Officer is subject to appeal before the Collector. In present matter, those powers are exercised by respondent No.2 District Deputy Registrar. There is no objection raised to exercise of those powers by respondent No.2. The decision of respondent No.2 on appeal and subject to such decision, the decision of Returning Officer accepting or rejecting nomination paper has been made final and conclusive under APMC Rules. It is to be noted that the decision of disqualification of a member under Rule 41(3) is to be taken by Director and the decision of Director is subject to further appeal before the State Government. Thus, the Scheme of APMC Rules, 1967, clearly contemplates that for the purposes of election, the decision whether the candidate is disqualified for being chosen is to be reached by Returning Officer and his decision is subject to appeal before respondent No.2 and decision of respondent No.2 in present matter is final and conclusive. I, therefore, do not find any merit in these contentions. As already discussed above, the procedure under Rule 32 (5)(a) is not required to be followed to find out whether person has breached the provisions of APMC Act or APMC Rules. The said provisions are to be followed to enable respondent no.4. APMC to recover its dues from the petitioner.

14. Thus, Returning Officer i.e. Respondent no.3 is competent to find out whether petitioner has committed breach of APMC Act or APMC Rules. The Appellate Authority, therefore, is also entitled to find out whether there is any such disqualification incurred by the petitioner under APMC Rules, 1967. Breaches of the Act or Rules is itself sufficient to hold that petitioner is disqualified. The obligation to pay market fee arises immediately after the measurement or weighment of the declared market produce. In present case it has been established that the petitioner has never paid market fee immediately upon such weighment or measurement of agricultural produce. The arguments advanced by petitioner before respondent No.2 itself show that petitioner did not pay amount immediately and APMC was required to serve demand notices upon him. The respondent no.2 - Appellate Authority has considered this argument and noted that there were 14 demand notices, served by APMC upon the petitioner, and after service of those demand notices by the respondent, the petitioner has cleared the amount mentioned therein after 2-3 months and thus he has breached Rule 32. Respondent No.2 - Appellate Authority has concluded that he has time and again breached Section 31(2) and Rule 32(2). These findings clearly shows application of mind by said authority to the facts before it. Respondent No.5 along with his reply on affidavit produced the relevant details of payment. The same are also produced by Respondent No.4 A.P.M..C as Annexures -I (a to m) along with affidavit by the Secretary of Respondent No.4 - A.P.M.C. More than 12 notices issued to the petitioner from time to time are filed by respondent No.4 and respondent no.5 - A chart separately prepared mentioning receipts is also made available to this Court. Perusal of said chart reveals that market fees for the months of October, November and December, 2006, have been paid on 9th February, 2007. The market fees for the month of January, February and March, 2007 are paid on 11th April, 2007. The market fees are thus paid of 2-3 months together on many occasions and market fees from the month of April, 2008 to August, 2008 are paid on 4th November, 2008. 4th November, 2008 is the date on which market committee has issued 'no due certificate' in favour of the petitioner. Thus, in present matter, several breaches committed by the petitioner of provisions of Section 31(3) and Rule 32(2) are rightly found established by respondent No.2 Appellate Authority. Though in its written submission filed before this Court respondent No.4, A.P.M.C. has tried to explain why late payments have been accepted by it, that does not in any way arrest the application of these provisions of law.

15. The judgment of this Court reported at (Chandkhan Vs. W. N. Gound, Returning Officer, Malegaon) (Supra) considers provision of Bombay Village Panchayat Act, more particularly Section 14(h). There the question was whether failure to pay fees for writ of demand issued under Section 129(2) of Bombay Village Panchayat Act, resulted in disqualification under Section 14 was considered and it was noticed that legislation used the phraseology under Section 14(h), which made the reference only to bill as contemplated by Section 129(1) and hence intention of legislature was apparent. Non-payment by a member after receipt of amount of tax or fees due from him within three months from the date on which the tax or fee was demanded, resulted in disqualification. This Court found that failure to pay fees for writ of demand do not result in such disqualification. It is apparent that this court has considered the scheme of Bombay Village Panchayat Act and the ruling has no application in facts before me where totally different scheme is contemplated by provisions of APMC Act and APMC Rules.

16. Shamrao Krishnarao Kadu Vs. Nandkishore Ghansyamdas Jaiswal and others (Supra) considers the provisions of Maharashtra Municipalities Act, 1965, and particularly provisions of Section 45, to find out when vacancy occurs. It is noted that the vacancy occurs only when the Collector passes an order of disqualification of councilor and councilor continues to hold office legally till such order is passed. In present matter, the petitioner is not holding the office of member of A.P.M.C. and as such there is no question of any vacancy. The disqualification of breach of Act or Rules more than once is to be considered by Returning Officer and Appellate Authority only as per provisions of APMC Act and APMC Rules. This judgment also, therefore, has no application.

17. The last judgment pointed out is Sudhakar Shankarlal Naval Vs. Arunlal Goverhandas Gujrathi (Supra), which again considers provisions of Bombay Municipalities Act. The said judgment interprets provisions of Section 16(1)(h) thereof and concludes that mere existence of arrears does not entail disqualification. This is because of express language of said Section 16(1)(h) which stipulates that a person in arrears of any sum due by him to Municipal Council after presentation of a bill therefor to him under Section 150 is disqualified. Thus for disqualification, not only liability, but demand therefor is essential as per language of that section. As already observed above, here under Section 31(3) and Rule 32(2) the duty to pay market fee arises immediately after weighment or measurement of agricultural produce. Hence, this ruling again has no application in the present facts.

18. The discussion above, therefore, shows that on several occasions, the petitioner has violated the provisions of Section 31(3) and Rule 32(2) and thus has committed breach of APMC Act or APMC Rules more than once. He has, therefore, been rightly found to be disqualified by respondent No.2. No case is, therefore, made out warranting interference in the matter. Writ petition is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Petition dismissed.