WRIT PETITION 4030 OF 2018

8th November 2019

Petitioner Counsel: Shri R.L. Khapre Shri Shantanu Ghate Shri R.J. Kankal
Respondent Counsel: Shri Pankaj Jibhkate Shri P.D. Meghe Shri P.S. Tembhare
Act Name: Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 Constitution of India, 1950

Section :
Section 15(1) Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963

Cases Cited :
Paras 11, 13: Purushottam s/o. Pandharinath Tonpe Vs. Agricultural Produce Market Committee, Wardha and Ors., 2013(6) Mh.L.J.688
Paras 11, 12, 13: Hukumchand s/o. Govindrao Amdhare & ors. Vs. The Collector, Nagpur and Ors., Writ Petition 3130 of 2015
Para 12: Gajanan Ramkisan Pacharne Vs. The Hon’ble State Minister & Ors., Writ Petition 4092 of 2013
Para 13: Mir Islam Ali Vs. Panchayat Samiti, Telhara and Ors, 1973 Mh.L.J.8671

JUDGEMENT

Petitioners were elected as Director and ViceChairman respectively of respondent 1 – Agricultural Produce Market Committee (“APMC” for short) in the election held on 18.1.2017.

2. As on the date of the election of the APMC, petitioner 1 was a member of the Managing Committee of Seva Sahakari Society, Satnur and petitioner 2 was a member of Managing Committee of Seva Sahakari Society, Nandwardhan.

3. It is not in dispute, that the petitioner 1 sought reelection, and was defeated in the election of Seva Sahakari Society, Satnur the result of which was declared on 29.4.2017 and petitioner 2 did not contest the election to the Managing Committee of the Seva Sahakari Society, Nandwardhan.

4. Respondent 3 passed an order dated 15.9.2017 in purported exercise of power under section 15(1) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (“Act” for short) and Rule 41(1)(c) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 (“Rules” for short) removing the petitioners from their respective offices on the premise that they ceased to be Directors of Seva Sahakari Society, Satnur and Seva Sahakari Society, Nandvardhan.

5. The order of removal was challenged in appeal, which is dismissed by respondent 1 vide order dated 7.3.2018.

6. Being aggrieved, petitioners are invoking writ and supervisory jurisdiction under Articles 226 and 227 of the Constitution of India.

7. I have heard Shri R.L. Khapre, the learned counsel for the petitioners, Shri Pankaj Jibhkate, the learned counsel for respondent 1, Shri P. D. Meghe, the learned counsel for respondent 4, Shri P. S. Tembhare, the learned Assistant Government Pleader for respondents 2 & 3 and the learned counsel Shri Uday Dastane.

8. The issue which falls for consideration, is whether a person who is elected by members of the Managing Committee of the Agricultural Credit Societies and Multi-purpose Cooperative Societies to the Managing Committee of the APMC, ceases to hold office as such in the event he or she ceases to be a member of the Managing Committee of the parent society. The answer hinges on the interplay between section 13 and Proviso to section 15 of the Act. The import and implication of Rules 35 and 36 and the significance thereof may have to be addressed.

9. Section 13, as it stood before 2018 amendment, reads thus:
13. Constitution of Market Committees.
(1) Subject to the provisions of sub-section (2), every Market Committee consist of the following;
[a) [fifteen agriculturist residing in the market area (being persons whose names appear in the voter's list for the concerned constituency and who are not less than twenty-one years of age on the date specified, from time to time, by the Collector or the District Deputy Registrar, as the case may be, in this behalf), as specified below :—]
(i) eleven (of which, two shall be women, one shall be a person belonging to Other Backward classes and one shall be a person belonging to De-notified Tribes (Vimukta Jatis) or Nomadic Tribes) shall be elected by the members of the Managing Committees of the Agricultural Credit Societies and multi purpose Cooperative Societies (within the meaning of the Maharashtra Co-operative Societies Act, 1960 and the rules made thereunder), functioning in the market area :
Provided that, where the Market Committee is situated in Tribal area, one person belonging to the Scheduled Tribes shall be elected in place of the election of the person belonging to the De-notified Tribes (Vimukta Jatis) or Nomadic Tribes as aforesaid ; and
(ii) four (of which, one shall be a person belonging to Scheduled Castes or Scheduled Tribes and one shall be a person belonging to Economically Weaker Section), shall be elected by members of the village panchayats functioning therein ;]
[(b) two shall be elected by traders and commission agents, holding licences for not less than two years to operate as such in the market area;]
[(b-l) one member shall be elected by hamals and weighmen operating as such in the market area;]
(c) one shall be the Chairman of the co-operative society doing business of processing or marketing of agricultural produce in the market area [having its registered office situated in the same market area]; or in his absence a representative of the cooperative society elected by its managing committee : Provided that, if there be more than one such Co-operative societies in the market area, then the Chairman of any one of such co-operative societies or in his absence a representative, elected by the managing committees of such society ;
(d) one shall be the Chairman of the Panchayat Samiti within the jurisdiction of which the market area or major portion thereof is situated of the representative elected by such Panchayat Samiti;
(e) one shall be the President or Sarpanch of the local authority (other than a Panchayat Samiti)within the jurisdiction of which the principal market is situated or the representative elected by such local authority ;
[(f) the Deputy Registrar of Co-operative Societies of the district or his representative, who shall have no right to vote;]
(g) the Secretary of the Market Committee, who shall have no right to vote;]
[l-a) A person who is a member of the Market Committee under clauses (c), (d)and (e) shall have a right to take part in the discussions of the Committee, but shall have no right to vote at a meeting thereof.]

10. [[(lA)(a) Notwithstanding anything contained in sub-section (1) of this section or in section 4 or other provisions of this Act, the area comprising Greater Bombay and Turbhe Village in Thane Taluka of Thane District 11[and such other area or areas as may be specified by the State Government by notification in the Official Gazette from time to time] (hereinafter referred to as '"the Bombay Market area") shall be deemed to be a market area for the purposes of this Act, and the Market Committee for that area to be called by the name of the Bombay Agricultural Produce Market Committee shall, subject to the provisions of sub-section (2), consist of the following 12[---- members], namely:-
(i) twelve representatives of agriculturists elected by the agriculturist members of the other Agricultural Produce Market Committee in the State, 13[two such members] to be elected from each Revenue Division;
[(ii) five representatives, elected by the traders and commission agents, holding licences to operate as such in the Bombay market area, as specified below,—
(A) one representative dealing in onion, potato and garlic, elected by and from amongst themselves ;
(B) one representative dealing in fruits, elected by and from amongst themselves ;
(C) one representative dealing in vegetables, elected by and from amongst themselves ;
(D) one representative dealing in foodgrains, pulses, edible and non-edible oils, elected by and from amongst themselves ;
(iii) one nominated representative of the Navi Mumbai Municipal Corporation ;
(iv) one nominated representative of the Mumbai Municipal Corporation ;
(v) one nominated representative of the Mumbai Metropolitan Region Development Authority constituted under the Mumbai Metropolitan Region Development Act, 1974 ;
[(vi) five representatives (of which, two shall be women, one shall be a person belonging to the Scheduled Castes or the Scheduled Tribes, one shall be a person belonging to the Other Backward Classes and one shall be a person belonging to the De-notified Tribes (Vimukta Jatis) or Nomadic Tribes), to be nominated by the State Government;]
(vii) the Director of Agricultural Marketing, Maharashtra State, Pune ;]
(viii) [--------------------]
(ix) [---------------------]
[(b) a person who is a member of the Market Committee under sub-clauses (iii), (iv), (v) or (vii)of clause (a), shall have a right to take part in the discussions of the Committee, but shall not have a right to vote at a meeting thereof.]
[(1)B) (a) Notwithstanding anything contained in any provisions of this Act, the State Government may, by notification in the Official Gazette, declare any Agricultural Produce Market Committee to be the Divisional Market Committee for more than one districts or Regional Market Committee for more than one talukas.
(b) The area specified by the State Government by notification in the Official Gazette, from time to time, shall be deemed to be the market area for the purposes of this Act and the Market Committee for that area shall be called by the name as may be notified by the State Government and it shall function as the Divisional or Regional Market Committee.
(c) The Divisional or Regional Market Committee shall, subject to the provisions of sub-section (2), consist of the following members, namely :—
(i) two representatives of the agriculturists, elected by the agriculturist members of the Agricultural Produce Market Committee from each district included in the area of operation of the Divisional Market Committee; or
(ii) one representative from the agriculturists elected by the agriculturist members of the Agricultural Produce Market Committee from each taluka included in the area of operation of the Regional Market Committee ;
(iii)two representatives elected by the traders and commission agents, holding licences to operate as such in the market area ;
(iv) one representative, elected by the hamals and weighmen operating as such in the market area ;
(v) one representative of the State Marketing Board ;
(vi) one representative of the Municipal Corporation or Municipal Council functioning at the Head Quarters of the Market Committee ;
[(vi-a) four representatives (of which, one shall be woman, one shall be a person belonging to the Scheduled Castes or Scheduled Tribes, one shall be a person belonging to the Other Backward Classes and one shall be a person belonging to the De-notified Tribes (Vimukta Jatis) or Nomadic Tribes) to be nominated by the State Government :
Provided that, where the Divisional or Regional Market Committee is situated in Tribal Areas, the State Government shall nominate the person belonging to the Scheduled Tribes in place of the person belonging to the De-notified Tribes (Vimukta Jatis) or Nomadic Tribes;]
(vii) the Director of Marketing, Maharashtra State; Pune or his representative.
(d) A person who is a member of the Market Committee under sub-clauses (v),(vi)and (vii) of clause (c), shall have a right to take part in the discussions of the committee, but shall not have right to vote at a meeting thereof;]
[1C)(a) The State Government may, by an order in the Official Gazette, appoint, -
(i) four special invitees, on every Market Committee whose income from fees levied and collected under sub section (1) of section 31 in the immediate preceding market year exceeds rupees five crores and
(ii) two special invitees, on every Market Committee whose income from fees levied and collected under sub section (1) of section 31 in the immediate preceding market year is upto rupees five crores, who shall be the experts in the field of agriculture, agriculture processing, agricultural marketing law, economics or commerce.
(b) The special invitees appointed under clause (a) shall have a right to take part in the discussions of the Market Committee, but shall have no right to vote at a meeting thereof.
(c) The term of the special invitees shall be co-terminus with the term of the members of a Market Committee.]
(2) When a Market Committee is constituted for the first time, [whether under sub section (1) 20[,(1A) or (1B)] all the members thereof and the Chairman and Vice-Chairman shall be nominated by the State Government:
[Provided that, the Chairman and Vice – Chairman shall be so nominated from amongst the agriculturists members.]
[Provided further that, the State Government may, if it considers expedient, instead of nominating the members of the Market Committee constituted for the first time, appoint an Administrator or the Board of Administrators, and the Administrator or the Board of Administrators, so appointed, shall, for all purposes, be considered to be the committee constituted for the first time.]

10. Section 15 reads thus:
15. Commencement of term of office of members.
(1)The term of office of members of a Market Committee shall be deemed to commence on the date of the first meeting of the Market Committee at which business is transacted :
[Provided that, a person who is a member by virtue of his being a representative, or holding office, or holding licence belonging to any of the categories of members referred to in sub-section (1) or (1A) of section 13, shall hold office as such member so long only as he continues to be representatives or to hold such office or such licence and on his ceasing to be such representative or holding such office or licence he shall cease to be such member and he shall be deemed to have vacated his office.
Explanation:- For the purpose of this section, the date of the first meeting of the Market Committee at which business is transacted shall be the date of the meeting called [-----] under sub section (1) of section 22 for the election of the Chairman and Vice-Chairman.] [(2)………………]
(3) The term of office of outgoing members shall be deemed to extend to, and expire with, the date immediately preceding the date of such first meeting.

11. My attention is invited to two decisions of the Division Bench in Purushottam s/o. Pandharinath Tonpe vs. Agricultural Produce Market Committee, Wardha and Ors, 2013(6) Mh.L.J.688 and Hukumchand s/o. Govindrao Amdhare & ors ..vs.. The Collector, Nagpur and Ors., Writ Petition 3130 of 2015 which have taken a view that members of the APMC who are elected by the Managing Committees of the societies would cease to be members of the APMC in the event they cease to be members of the Managing Committees of their parent society.

12. A contrary view is taken by the Division Bench in Writ Petition 4092 of 2013 (Gajanan Ramkisan Pacharne ..vs.. The Hon’ble State Minister & Ors) and other connected matters decided on 19.1.2015 and it would be relevant to reproduce the following enunciation by the Division Bench in the said decision.
“Shri Kilor, learned counsel submits that Shamrao needed to be a elected as a managing committee member to claim continuation. Shamrao occupied that status till the year 2009 and thereafter, did not contest the election for the post of Managing Committee Member of Credit Cooperative Society, Dhodak. Proviso to Section 15[1] contemplates a member of A.P.M.C., who holds that office being representative belonging to any category of members referred to in Subsection [1] or [1][a] of Section 13. Such representative holds office as Director of A.P.M.C. so long as he continues to be such representative. Section 13[1] [a][i] requires a person to be elected by members of the Managing committees of Agricultural Credit Cooperative Societies and Multipurpose Cooperative Societies. Shamrao was accordingly elected. This election therefore, has got nothing to do with his status or position as member of the managing committee of Dhodak Credit Cooperative Society. The said provision does not mandate that a person to be elected must also be a Committee Member. Hence, even though the tenure of managing committee members of Dhodak Credit Cooperative Society may have expired in the year 2009, representative capacity of Shamrao is not wiped out and he therefore, continues to represent said society even thereafter. Proviso to Section 15[1], therefore does not have any application”.
Perusal of the decision of the Division Bench in Writ Petition 3130 of 2015 Hukumchand s/o. Govindrao Amdhare & ors ..vs.. The Collector, Nagpur and Ors shows that the Division Bench decision in Writ Petition 4092 of 2013 (Gajanan Ramkisan Pacharne ..vs.. The Hon’ble State Minister & Ors) was considered thus:
“While deciding Writ Petition No.4092 of 2013 and Others, the provisions of Rules 35, 36 and the other rules were not brought to the notice of this Court. In the reported decision, this Court has considered the provisions of the Rules of 1967 while holding that the member of the market committee elected from the Village Panchayats Constituency would be deemed to have vacated the office of the market committee after he ceases to be the member of the village panchayat. In our view, only a person, whose name finds place in the voters list under Rule 36 of the Rules of 1967, could be elected as a member of the market committee under section 13(1)(a) and since the respondent nos.4 to 7 had ceased to be the members of the managing committee of the Agriculture Credit Societies and Village Panchayat, they also ceased to be the members of the market committee”.

13. Shri Uday Dastane, the learned counsel has brought to my notice a Division Bench decision in Mir Islam Ali ..vs.. Panchayat Samiti, Telhara and Ors, 1973 Mh.L.J.8671. Shri Uday Dastane would submit that the view taken by the two Division Bench decisions in Purushottam s/o. Pandharinath Tonpe vs. Agricultural Produce Market Committee, Wardha and Ors. (2013(6) Mh.L.J.688) and Hukumchand s/o. Govindrao Amdhare & ors. ..vs.. The Collector, Nagpur and Ors., (Writ Petition 3130 of 2015) is consistent with the ratio decidendi of Mir Islam Ali ..vs.. Panchayat Samiti, Telhara and Ors .

14. In view of the sharp cleavage of opinion between the Division Bench decisions, in my considered view, it would be appropriate to request the Hon’ble the Chief Justice to constitute an appropriate Bench to consider and answer the question involved in this petition.

15. The question involved would be whether the members of the APMC who are elected by the members of the Managing Committee of the Agricultural Credit Societies and Multi-purpose Cooperative Societies or the members of the Village Panchayat functioning in the market area ceases to be members of the APMC on ceasing to be the members of the Managing Committee of the societies or the members of the Village Panchayat, in view of the proviso to section 15 of the Act.

16. The Registrar (Judicial) is directed to place the issue before the Hon’ble Chief Justice for constitution of larger Bench.