2012(6) ALL MR 96
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR AND S.S. SHINDE, JJ.

Hanumant Bapurao Bagal & Ors. Vs. The State Of Maharashtra Through The Department Of Co-Operation & Ors.

Writ Petition No. 3641 of 2012,Writ Petition No. 3641 of 2012,Civil Application No. 1197 of 2012

15th May, 2012

Petitioner Counsel: Mr. SARANG ARADHYE, Mr. BHUSHAN WALIMBE
Respondent Counsel: Mr. P.P. KAKADE, Mr. P.G. SARDA

(A) Maharashtra Agricultural Produce Marketing (Development and Regulation) Act (1963), Ss.59, 14(3A) - Extension of tenure of Managing Committee - Invocation of extraordinary powers u/s.59 - Extension granted on two grounds - First, that several welfare schemes were being executed by present Managing Committee - Second, many member Societies involved in court litigation would be deprived of participating in election - Held, execution of welfare schemes is a continuous work to be undertaken by market committee and that cannot justify extension of tenure - Second ground was also not tangible so as to invoke extraordinary powers u/s.59 r/w.S.14(3A) - Impugned successive extension appears to be colourable exercise of powers. (Paras 12, 13)

(B) Maharashtra Agricultural Produce Marketing (Development and Regulation) Act (1963), S.15(A) - Appointment of Administrator - Managing committee failed to conduct elections even within extended time - Seeking further extension on ground of drought in concerned Taluka - Ground so raised though valid, not available to Managing Committee which is protracting election process intentionally - Therefore, Administrator or Board of Administrators to be appointed by the Authority. (Para 14)

(C) Maharashtra Agricultural Produce Marketing (Development and Regulation) Act (1963), Ss.14, 15(A) - Purport of Ss.14 and 15(A) - The term of office of Managing Committee may be extended from time to time but shall not exceed period of 1 year in aggregate from the date on which term of 5 years of Committee had expired. 2008(6) ALL MR 666 Ref. to. (Para 12)

Cases Cited:
Shekhar Ramchandra Badade Vs. State of Maharashtra & Ors., 2012(4) ALL MR 24 =W.P. No.1189/2012, Dt.19/3/2012 [Para 12]
Shivaji Krishnaji Bhalerao Vs. State of Maharashtra, 2008(6) ALL MR 666=2009(1) Bom. C. R. 142 [Para 12]


JUDGMENT

A. M. KHANWILKAR, J. :- Rule. Rule made returnable forthwith. Mr. Kakade, AGP, waives service for Respondent Nos. 1 to 5. Mr. Sarda waives service for Respondent No. 6.

2. By consent of Counsel for the respective parties, matter is taken up for final disposal, forthwith.

3. By this Writ Petition under Article 226 of the Constitution of India, the Petitioners, claiming to be members of Respondent No. 5 Agricultural Produce Market Committee, have challenged the order passed by Respondent No. 1, dated 19th April, 2012, granting 3rd extension to the Board of Directors of Respondent No. 5 Market Committee, which would come into effect from 26th May, 2012 till 25th November, 2012. The Petitioners seek direction that the Respondent No. 2 must take steps to hold/conduct the elections of the Respondent No. 5 Committee forthwith. They have further sought direction against Respondent No. 1 to initiate action against Respondent No. 5 Committee for appointment of Administrator, on account of failure of the Managing Committee of Respondent No. 5 to hold/conduct election prior to the expiry of their extended term.

4. The elections to install duly elected Managing Committee of Respondent No. 5 were conducted lastly in May, 2006. The newly elected Managing Committee took over the office in May, 2006. As a result, the tenure of this Managing committee came to an end in May, 2011. It was, therefore, obligatory on the part of the members of the Managing Committee to ensure that the elections to install new Managing Committee, before expiry of their term, was conducted. Instead, Managing Committee Resolution was passed on 1st November, 2010, almost 6 months in advance that, steps be taken for extension of the term of the Managing Committee, upto one year. The reason stated in this Resolution, is that, due to heavy rains in Solapur district, it has affected even Karmala Taluka, coupled with the fact that the election process in respect of Makai Sahakari Sakhar Karkhana Ltd, Bhilarwadi and Adinath Sahakari Sakhar Karkhana Ltd. Shelgaon, Bhalwani, within the Karmala Taluka, were likely to be announced and that, elections process of Vivid Karyakari Seva Co-operative Societies in Karmala Taluka is in progress and the election process with regard to some of the Societies is sub judice. Therefore, it may be appropriate to take extension of one year from May, 2011 till May, 2012. On the basis of the said Resolution, the Respondent No. 1, by order dated 10th March, 2011, acceded to the request of the Managing Committee of Respondent No. 5, but granted extension till 25th November, 2011, in exercise of powers under Section 14(3A) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 ('the Act' for short).

5. Once again, at the request of the Managing Committee of Respondent No. 5, the Respondent No. 1, by subsequent order dated 26th September, 2011, passed in exercise of powers under Section 14(3A) of the Act, granted second extension to the Managing Committee of Respondent No. 5 from 26th November, 2011 till 25th May, 2012. Even before expiry of the second extension, the Managing Committee failed and neglected to hold the elections to install duly elected Managing Committee. On the other hand, the Managing Committee approached Respondent No. 1 for extension of its tenure on the grounds stated in the Resolution passed by it. The Respondent No. 1 readily acceded to the said request and granted extension to the tenure of the Managing Committee, well in advance even on this occasion. The Respondent No. 1 once again in exercise of powers under Section 14(3A) read with Section 59 of the Act, vide order dated April 19, 2012, granted further (third) extension to the tenure of the Managing Committee, on this occasion till 25th November, 2012. This decision of Respondent No. 1, giving extension in succession to the Managing Committee is the subject matter of challenge in this Petition.

6. According to the Petitioners, Section 14(3A) enables the competent authority to extend the tenure of the Managing Committee but, that extension has to be granted only when satisfaction is recorded that, it is not possible for the Managing Committee for the reasons beyond its control to hold elections before the expiry of its tenure. For reasons such as, due to scarcity, drought, flood, fire or any other natural calamity or rainy season or any election programme of the State Legislature or the Parliament or a local authority, "coinciding with the election programme of any market Committee" or such other special reason. In other words, the Managing Committee, whose term is likely to expire, is under obligation to ensure that the elections are held before expiry of its term and it is only in exceptional situation, it may apply for extension of the tenure, to the State Government, who in turn, should be satisfied about the stated cause and grant extension only if it is not in public interest to hold elections to the concerned Market committee.

7. In the Resolution dated 1st November, 2010, amongst other reasons, it was stated that due to heavy rains in District - Solapur, which has also affected Karmala Taluka, the election cannot be held in time and for which reason, one year's extension should be asked. In the first place, the term of the Managing Committee was to expire in May, 2011. By that time, the ground regarding heavy rains would not survive as it was not coinciding with the election programme to be held in and around May, 2011. Further, the election programme is not required to be announced 6 months in advance, but keeping sufficient margin before expiry of the term of the Managing Committee. As aforesaid, in the present case, it was expiring in May, 2011, but for reasons best known to the Managing Committee, it thought it necessary to take extension almost 6 months in advance and that too for a period of 1 year from May, 2011. This decision is suggestive of the fact that the Managing committee was bent upon to take extension at least up to one year to begin with, as is evident from the Resolution dated 1st November, 2010. Thus, it was not a bonafide ground.

8. The second reason mentioned is that the election of two Co-operative sugar factories in Karmala Taluka were likely to be announced. Section 14(3A) refers to only election programme of the State Legislature or Parliament or a Local Authority must coincide with the election programme of the Market Committee. The Co-operative sugar factories, by any standard, would not fit into the prescribed category. The 3rd reason is still interesting. It is stated that the elections of Vividh Karyakari Seva Co-operative Societies in Karmala Taluka were already in progress and the election process in respect of some of those Societies was sub judice before the Court. Once again, there is no co-relation between the elections of the Managing Committee of the Market Committee and that of the Vividh Karyakari Seva Co-operative Societies albeit in the same Taluka and that ground is not recognized by Section 14(3A) of the Act.

9. It was argued that from the circumstances emerging from the record, it was more than evident that the members of the present Managing Committee were bent upon to ensure that it would remain in office beyond the statutory period by resorting to all possible excuses, which were not germane for grant of extension. Further, the Respondent No. 1, without application of mind to this aspect, kept on granting extensions as requested by the Managing Committee. Firstly, vide order dated 10th march, 2011, two months in advance before term was to expire and again on 26th September, 2011, almost two months in advance before the first extended term was to expire and lastly, by order dated 19th April, 2012, granting extension till 25th November, 2012. The Petitioners did not challenge the first extension in anticipation that the Managing Committee would take steps to install duly elected Managing Committee before the extended tenure. The Managing Committee, however, failed to do so and had the audacity to take extension on extraneous grounds. Even before the period of second extension, the Managing Committee failed to install duly elected Managing Committee. Instead, requested the Respondent No. 1 to exercise the extraordinary powers under Section 59 read with 14(3A) of the Act. The exercise of that power is completely colourable exercise of power, as there was no genuine reason to invoke extraordinary powers but, it has been done only to favour the members of the Managing Committee, who had failed to ensure that the elections were held before the expiry of their term, so as to install duly elected Committee. Accordingly, taking any view of the matter, the order dated 19th April, 2012 cannot be sustained in fact and in law. According to the Petitioners, allowing the members of the Managing committee, who had intentionally defaulted in conducting the elections within the statutory period, are being rewarded by the Respondent No. 1 by granting successive extensions. Instead, because of the failure to hold the elections within the statutory time, the Respondent No. 1 was under obligation to appoint Administrator or Board of Administrator to look after the affairs of the Market Committee, under Section 15(A).

10. The Respondents have resisted this Petition on the argument that the exercise of powers by Respondent No. 1 for granting 3rd extension to the Managing Committee till 25th November, 2012, vide order dated 19th April, 2012 was just and appropriate. The Respondent No. 1 has exercised its discretion to extend the tenure of Managing Committee by invoking powers under Section 14(3A) read with Section 59 of the Act. It had to do so because of the peculiar facts of the present case and since two extensions for aggregate period of one year were already granted under Section 14(3A) of the Act. Besides the respondents, the interveners have also supported the impugned decision and are opposing the present Petition. According to the intervener Societies, they could not cast their votes in the election of the Respondent No. 5 as the present directors and provisional directors and Body of the next 5 years is yet to be elected.

11. Having considered the arguments of both the sides and going through the impugned orders, we have no hesitation in taking the view that the exercise of power by the Respondent No. 1 in the fact situation of the present case is colourable exercise of powers. We agree with the submission of the Petitioners that there was no tangible reason for granting the first extension vide order dated 10th March, 2011. However, since that order was not challenged by the Petitioners or any other member of the Respondent No. 5 Committee, we do not intend to dilate on the ground stated in the Resolution passed by the Managing Committee dated 1st November, 2010, even if we have to agree with the criticism of the Petitioners that none of the reason is germane to exercise of powers under Section 14(3A) of the Act in favour of the Managing Committee, whose intention was to continue in office even beyond the statutory period and intentionally did not take steps for conducting elections to install the newly elected Managing Committee within the statutory period much less the extended period. For the same reason, we do not think it necessary to elaborate on the second extension given by Respondent No. 1 till 25th May, 2012 vide order dated 26th September, 2011, even though we may agree with the Petitioners that the second extension was nothing but rewarding the members of the managing Committee for reasons which were not germane for exercising powers under Section 14(3A) of the Act and in spite of their failure to ensure that duly elected Committee was installed within the extended tenure which was the mandate while granting first extension.

12. As regards exercise of power by the Respondent No. 1 under Section 59 read with Section 14(3A) of the Act for granting third extension to the Managing Committee till 25th November, 2012 is concerned, we have no hesitation in taking view that the same is answered in the recent decision of this court in case of Shekhar Ramchandra Badade vs. State of Maharashtra & Ors. in Writ Petition No. 1189/2012, decided on 19th March, 2012 : [2012(4) ALL MR 24]. We are in agreement with the submission of the Petitioners that the point in issue is also covered by the another Division Bench decision of this Court (Aurangabad Bench) in the case of Shivaji Krishnaji Bhalerao vs. State of Maharashtra, 2009(1) Bom. C. R. 142 : [2008(6) ALL MR 666]. In that case, the Court was called upon to consider the question, as to whether Respondent Nos. 1 to 3 acted illegally by appointing Respondent Nos. 4 to 10 as members of the Board of Administrators of the APMC. The Court considered the purport of Section 14 and 15(A) of the Act, in Paragraph Nos. 10 and 11 of the reported judgment. The Court restated that the term of office of the Managing Committee may be extended from time to time but shall not exceed the period of 1 year in the aggregate. The law does not permit extension of the term of Managing Committee beyond the period of 1 year in the aggregate from the date on which the term of 5 years of the Committee had expired. Further, exercise of such power is not because of default on the part of the Committee but for the reasons set out in Sub Section (3A) of Section 14 of the Act. As regards the impugned order dated 19th April, 2012, the reasons stated in invoking powers under Section 14(3A) read with Section 59 of the Act are as follows:

Firstly, that presently several welfare schemes up to one crore value, for the benefit of the Agriculturists are being executed through Respondent No. 5, such as creation of new Shetkari Bhavan, Tarring of road at Animal Market and in the Main Market, drainage on both sides of the road etc. We fail to understand as to how these activities have any correlation to the non-holding of elections to install the new Managing Committee, within time. The impression given, however, is that the present Managing Committee is indispensable and it alone can undertake these works. Execution of welfare schemes is a continuous work to be undertaken by the Respondent No. 5 Market Committee and that cannot justify extension of tenure of the same Managing Committee beyond the statutory period. The power under Section 59 of the Act has to be exercised with circumspection and only in extraordinary situation. More so, not to favour the members of the Committee who have persistently defaulted in conducting/holding election for installing the duly elected Managing Committee within the statutory period and also the two extended terms.

13. The next reason stated in the impugned order dated 19th April, 2012 is that many Vividh Karyakari Seva Co-operative Societies within Karmala Taluka are involved in Court litigation and if the election process of Respondent No. 5 Market Committee is announced, most of the members of the said Societies will be deprived from voting. In the first place, this can be no reason to invoke extraordinary powers under Section 59 read with Sec. 14(3A) of the Act. It is not recognised as a tangible reason by the said provisions. Moreover, the member societies are entangled in Court matters and are likely to miss out on their voting rights, does not mean that the election process of Respondent No. 5 Market Committee should be postponed indefinitely. There is no guarantee that the Court litigation of those Societies will come to end within the extended term. Further, in respect of these Societies, it is open to the Authorities under the Co-operative Societies Act to issue suitable directions, so that their representatives can participate in the election process of Respondent No. 5. At any rate, there is nothing to indicate from the record as to how many number of Societies (Vividh Karyakari Seva Co-operative Societies) of Respondent No. 5 Market Committee were engaged in Court matter and in what manner it would have decisive impact on the election process of Respondent No. 5 Market Committee. A general statement is made that large number (without mentioning the figure) of Vividh Karyakari Seva Co-operative Societies of Respondent No. 5 are engaged in Court litigation and would be therefore deprived from participating in the election process of Respondent No. 5 Committee.

14. The next reason stated in the impugned order is that due to scarcity situation during the period 2011-12, 19 villages of Karmala Taluka have been declared as scarcity affected and there is drought situation in the Taluka. Assuming that this is a genuine reason and could be invoked in exercise of powers under Section 59 read with 14(3A) of the Act, the question is whether the members of the managing Committee, who were responsible for protracting the election process and having failed to conduct the elections before May, 2011 and even during their extended term, should be rewarded by extending the tenure of Managing Committee in exercise of extraordinary powers under Section 59 of the Act. In such a situation, we agree with the petitioners that the appropriate authority "must" appoint Administrator in exercise of powers under Section 15(A) of the Act, who, in turn, would take steps to ensure that the newly elected Managing Committee is installed in office at the earliest and not leave it to the same members of the Managing Committee, who are interested in clinging on to the affairs of the Committee.

15. Accordingly, we have no hesitation in quashing and setting aside the impugned order dated 19th April, 2012 and instead, direct the Appropriate Authority, referred to in Section 15(A), to exercise powers under the said provision and appoint Administrator on the Respondent No. 5 on or before 25th May, 2012, who in turn, must take all necessary steps to ensure that the newly elected Managing Committee of the Respondent No. 5 is installed in office at the earliest.

16. The Petition is allowed in terms of prayer clauses (a-2), (b)and (c), on the above terms, which read thus:

(a-2) That after going through the same, the impugned order dated 19th April, 2012, passed/issued by the Respondent No. 1 thereby granting an Extension for the Third Occasion to the Board of Directors of the Respondent No. 5 (Extension from 26th May, 2012 to 25th November, 2012) be quashed and set aside;

(b) By an appropriate writ, order or direction of this Hon'ble court forthwith the Respondent more particularly the Respondent No. 2, the Collector, Solapur be kindly ordered and directed to hold/conduct the General Elections of the Respondent No. 5 Agriculture Produce Market Committee, Karmala forthwith;

(c) That by an appropriate orders or directions of this Hon'ble Court the Respondent No. 1 be ordered and directed to initiate action against the Respondent No. 5 i.e. Agricultural Produce Market Committee, Karmala, for Appointment of an Administrator on the said Respondent No. 5 on account of failure of Managing Committee of the Respondent No. 5 having failed to hold/conduct an Election prior to the expiry of their term;

17. In view of disposal of Writ Petition, nothing survives in the Intervention Application. The same is also disposed of.

18. At this stage, Counsel for the Respondents pray for stay of operation of this order, as the respondents may consider filing of Appeal before the Apex Court. Ordinarily, we may have considered this request, but, in the peculiar facts of the present case, no indulgence needs to be shown to the Respondents. Hence, prayer for stay is rejected.

Ordered accordingly.