JUDGMENT
V.A. Mohta, J.
1. This is a petition by Agriculture Produce Market Committee, Arvi (Petitioner No. 1) and its present Chairman (Petitioner No. 2). Five years term of the Market Committee constituted under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (“the Act”) is to expire on 6th July, 1987. The Under Secretary to Agricultural and Co-operation Department, State of Maharashtra on a querry made by local M.L.A. had informed him vide communication dated 15-4-1987 (Annexure K) that the instructions for staying the elections of the Market Committee have been issued to the Collector, Wardha, and Director of Marketing, Maharashtra State, Pune. Section 15-A of the Act empowers the District Deputy Registrar to appoint an Administrator upon expiry of 5 years term of the members of the Committee. Petitioners contend (i) that there is no justification for staying the election process; (ii) Section 15-A is directory in character and power can be exercised only when the sitting members of the Committee who are interested in continuing to remain in office are responsible for the delay in holding elections and (iii) section 15-A, if held to be mandatory is violative of Article 14.
2. Shri Badar, the learned Government Pleader appearing for all the respondents has informed us that there is no intention whatsoever to stay the process of election. He explained that in view of policy of the Government to establish Market Committee for each Taluka and formation of new Talukas, problem of modification of market areas arose. There was some problem about inclusion of certain villages in the Market area falling under the jurisdiction of Arvi Taluka from which new Taluka Karanja was carved out. Instructions were issued to stay the election process pending finalization of that matter. He has further brought to our notice that during the pendency of the petition a draft notification about intention to form a market Committee coterminous with revenue Tahsil has been declared and soon final notification will be published as required under the Act and as soon as that is done the work of preparation of voter’s list for the fresh election will take place and election programme declared. We see no reason to doubt the correctness of the stand taken by the Government. Grievance No. 1 thus does not survive.
3. This takes to the constitutions and vires of section 15-A. It is introduced by Maharashtra Ordinance No. 1 of 1984 brought into force with effect from 6th January, 1984. It was made into the Maharashtra Agricultural Produce Marketing (Regulation) Amendment Act, 1984 (Act No. X of 1984). Following is the Statement of Object and Reasons of the said Ordinance.
“The Maharashtra Agricultural Produce Marketing (Regulation) Act 1963, has been enacted inter alia to regulate the Marketing of Agricultural and certain other produce in Market areas and markets established there for in the State, and to constitute market committees in connection with or acting for purposes connected with such markets. The term of office of a committee when constituted for the first time was of two years and there after when elections were held the term of office of the members was of the five years, Prior to promulgation of the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment) Ordinance, 1984, the State Government had a power to extend any such term of office for a period not exceeding one year. The Act also provided that the term of office of out going members shall be deemed to extend to, and expire with the date if immediately proceeding the date of the first meeting of the market committee at which business was transacted after the election of members thereof. As a result of such provisions in the Act, some members of some committee took undue advantage and by initiating litigation somehow or other contrived to postpone holding of elections to the committee on due date and thus continued in office for an indefinite period. Unless and until elections to the committee were held the members thereof did not vacate office. There was no provision in the Act for bringing to an end the term of office of the committee after expiry of its term and to appoint an administrator. There was also no provision in the Act for removal of Chairman difficulties were felt in the matter of implementation of provisions of the Act effectively. Under the circumstances it was necessary to amend immediately section 14 of the Act suitably and also to make provisions for appointment of an Administrator on such committees who had been overstaying in office far beyond their term and so also to hold elections to such committees within a period of one year”.
Following major changes were introduced by the amending Act.
(a) Provision to section 14 (3) is deleted.
(b) Section 15-A is introduced.
(c) Section 21 is amended, and
(d) Section 23-A is introduced.
Proviso to Section 14 (3) had empowered the Government to extend the term of the office bearers of the Committee for a maximum period of one year. Section 21 had provided for continuance of the term of the Chairman and Vice-Chairman until their successors enter upon their office. By amendment expression “or the Administrator appointed under section 15-A assumes office” is introduced in the end of section 21. Section 23-A contains a new provision for moving no confidence motion against Chairman or Vice-Chairman. Section 15-A reads thus:
“15A. (1) Notwithstanding anything contained in sub-section (3) of section 15 of any other provisions of the Act, where the term of office of two years, five years or as the case may be ‘the extended term of office’ if any, under the proviso to sub-section (3) of section 14 as in force immediately before the commencement of the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment) Act, 1984, of the members of any Market Committee, has expired, the Director or any officer not below the rank of the District Deputy Registrar, Co-operative Societies, authorised by him, shall, by order in writing direct that
(a) all members of the Committee shall, as from the date specified in the order, cease to hold and vacate their offices as members or otherwise; and
(b) the person appointed by the Director or such authorised officer, from time to time, shall be the Administrator to manage the affairs of the Committee during the period from the date specified in the order upto the day on which the first meeting of the reconstituted Committee after the election is held, where there is a quorum (hereinafter in this section referred to as “the said period”). Such election shall be held within a period of one year from the date the Administrator assumes office.
Provided that, this period of one year may be extended, from time to time by the State Government in exceptional circumstances, to a period not exceeding two and half years in the aggregate by notification in the Official Gazette, for reasons, which shall be stated in the notification;
(1A) Notwithstanding anything contained in sub-clause (b) of sub-section (1), as it stood before the commencement of the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment and Validation) Act, 1985, where the Administrator has been appointed to manage the affairs of any Committee but election to such committee has not been held within a period of one year as required under Clause (b) of sub-section (1), the period of holding election to such Committee shall be extended and shall be deemed always to have been extended upto, and inclusive of the 31st Day of March, 1986.
(2) During the said period, all the powers and duties of the Committee and its various authorities under this Act and the rules and bye-laws made thereunder or any other law for the time being in force shall be exercised and performed by the Administrator.
(3) The Administrator may delegate any of his powers and duties to any officer of the time being serving under him or under the Committee.
(4) The Administrator shall receive such remuneration from the Market Fund as the Director or authorised officer may, from time to time, by general or special order, determine.”
3. All acts and things done, during the period commencing from the date on which the period of one year referred to in Clause (b) of sub-section (1) of section 15-A had expired and ending on the date of commencement of the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment and Validation) Act, 1985 (hereinafter referred to as ‘ the said period’) by the Administrator appointed to manage the affairs of any Committee referred to in sub-section (1-A) of section 15-A, shall be valid and shall be deemed always to have been valid, and no suit or other proceeding shall be instituted, maintained or continued against any such Administrator on the ground that election to the Committee was not held within the period of one year from the date on which such Administration had assumed office and that he had no authority to do such acts or things during the said period.
4. Our attention is invited to the unammended sub-section (3) of section 15 of the Act which provides for deemed extension of the term of the office of the outgoing members upto a day preceeding the date of first meeting of the new body under section 15 in support of a contention that the word “shall” used in section 15-A should be read as ‘may’ section 15(3), argument proceeds, would be rendered otiose otherwise. The submission is that section 15(3) gives unequivocal right to continue even after expiry of the full fixed term until a day before the first meeting of the new body is held, it is provision for ‘ deemed’ extension which was not intended to be curtailed as is clear from the fact that while proviso to section 14(3) was deleted section 15(3) was not. We are unable to see any logic behind this submission. Even if it is held that provision of is merely directory and not mandatory, on proper exercise of the so called directory power the deemed extension must come to an end. There is a deemed extension but for the intervening events statutorily prescribed. Section 15(3) cannot be read in isolation and will have to be harmoniously construed with the other provisions of the Act and the objects thereof. Principally it is correct that the use of the word ‘shall’ is not conclusive of the matter and depending upon the context and legislative intent it can be read as ‘may’. But the point is, is there any reason to depart from the normal rule of construction of giving natural and usual meaning to the word “shall” employed in the statute. It will not be out of place to notice that in other statutes made by the legislature word ‘may’ is used wherever the intention was to make the appointment of Administrator directory. Section 48-A of the Maharashtra Municipalities Act, 1965, is one such example.
5. Reliance is placed also on the statement of objects and reasons in support of the contention that provisions are merely directory. True it is that the stated object behind section 15-A is to prevent abuse of provisions of deemed extension contained in section 15(3) by holding and or delaying the process of new election and holding of first meeting as provided under section 15 and thereby to continue to remain in office beyond the fixed tenure on the part of the existing members, but that does not mean the legislative intention was to exercise the power only in cases where the postponement is achieved at the instance of the members. There are subtle ways of achieving the result through some one else by successfully remaining behind the screen. Practical life being what it is, it may not be always possible to establish the real person and or brain behind such a move. The legislature mindful of such practical difficulty and possibility appears to have adopted a policy to appoint an administrator as a matter course leaving no discretion with any officer. Discretion can be abused, incorrect allegation about wrongful and mala fide exercise of discretion can be levelled. Thus in our judgment section 15-A is mandatory in character. This view is not only in consonance with the plain language used but also the object sought to be achieved.
6. Now we will take up for consideration the point that the mandatory provision of appointing an administrator till a day preceding first meeting of the new body under section 15 on expiry of a fixed term without taking into consideration the reasons behind the time gap between the two dates renders the section 15-A discriminatory and arbitrary. We see neither any arbitrariness nor discrimination in the said provision. No doubt it recognises no distinction between members of the committee who are responsible for postponement of fresh election and who are not, but that does not mean that for that reason the provision is hit by Article 14. Reasons as to why such policy is adopted are already indicated by us and need not be repeated.
7. It is pertinent to notice also the changes brought about by the Amending Act. There was no provision in the Act for removal of Chairman and Vice-Chairman on a motion of no confidence. They are incorporated in section 23-A. Provision for extending the period of term of office by one year maximum contained in section 14(3) is removed. Section-21 which permitted the Chairman and Vice-chairman to continue to hold office until their successors enter upon their office is so amended as to bring their term to an end even on assumption of office by Administrator appointed under section 15-A. Section 15(3) was not deleted or amended perhaps with a view to avoid creation of vaccum. Scheme of section 15-A contemplates that after the term is over an order, specifying the date as to from when the members of the Committee shall cease to hold and vacate their offices and appointment of Administrator during the specified date upto the day on which the first meeting of the reconstituted elected committee as required by the Act takes place, has to be made. New elections have to be held within a period of one year from the date the Administrator assumes office subject to the proviso to section 15-A(1)(b) which provides for extension of period not exceeding two and half years in the aggregate in exceptional circumstances to be stated in the notification.
8. It is contended that section 15-A is arbitrary also because of absence of provision of hearing the committee before appointing an Administrator. Strong reliance is placed in support on certain observations made in the case of Vidarbha Nagarpalika Parishad v. State, 1985 Mh.L.J. 887 (Full Bench) in which section 43-A of the Maharashtra Municipalities Act, 1965 was discussed. Section 48-A reads thus :
“48-A(1). Notwithstanding anything contained in section 40 or any other provisions of this Act, where the term of office of five years of the Councillors of any Council has expired and the State Governments is of opinion that in the changed circumstances the continuance of such Councillors in office is not necessary or expedient the State Government may, at any time, even during the period the term stands extended under sub-section (1) or (3) of section 40, by order published in the Official Gazette, direct that—
(a) all Councillors of the Council (including the President and the Vice-President) shall as from the date specified in order, cease to hold and shall vacate their offices as Councillors or otherwise; and
(b) the person appointed by the state Government from time to time, shall be the Administrator to manage the affairs of the Council, during the period from the said date upto the day preceding the date on which the first meeting of the reconstituted Council after the general election is held, where there is a quorum. Such general election shall be held within a period of one year, from the date of publication of order issued under this sub-section in the Official Gazette:
Provided that this period of one year may be extended from time to time, by the State Government, in exceptional circumstances to a period not exceeding two and half years in the aggregate, by notification in the Official Gazette, for reasons, which shall be stated in the notification .
(2) During the said period, all the powers and duties of the Council and its various authorities under this Act or any other law for the time being in force shall be exercised and performed by the Administrator.
(3) The Administrator may delegate any of his powers and duties any officer for the time being serving under the Council.
(4) The Administrator shall receive such remuneration from the Municipal fund, as the State Government may, from time to time, by general or special order, determine”.
Under section 48-A appointment of an Administrator is discretionary is clear from the use of the word “may”. Government is supposed to form an opinion and that opinion has to be in the changed circumstances. Thus several factual aspects became relevant. In that setting it was held that even during ‘deemed’ term appointment of an Administrator can be made without hearing the persons in office and recording reasons. It is difficult to see how ratio of that decision can be applied to section 15-A which is mandatory in nature and operates merely on happening of an event of expiry of a period of fixed term. Reliance was also placed upon the case on Union of Indian and another v. Tulsiram Patel, and the case of Central Inland Water Transport Corporation Ltd. and another v. Broje Nath Ganguly and another, . These cases do not lay down that absence of provision of hearing makes every enactment bad. Those very cases lay down that right of hearing can be modified or even excluded if circumstances so warrant. All really depends upon the scheme and purpose of each enactment. After all hearing is not an empty formality. It has a purpose. What is to be heard where scheme justifiedly provides for appointment of an Administrator merely on expiry of a fixed tenure. After all right to continue even after fixed term is over is given by a statute and is not a fundamental right. The statute which gives right can modify it or even take it back. Section 15-A provides for an intervening factor.
9. It is contended that absence of hearing vitiates section 15-A also because on the appointment of the Administrator serious consequences follow and some of the functions of the market committee cannot be performed. When questioned, Shri Deshmukh, the learned Counsel for the petitioner pointed out his finger at sections 10, 29(2)(d) and 43 of the Act which provide for construction of a Board for settlement of disputes. Our attention was also invited to Rule 97 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967, which provides for the constitution of the Board which consists of the members of the market committee. If there is no market committee, the arguments proceeds, no Board can be constituted as result there will be no machinery or settlement of disputes during the regime of the Administrator. Reliance is placed in support of this contention on the case of Agricultural Produce Market Committee, Yavatmal and others v. Divisional Joint Registrar, Co-op. Societies Amravati and others, 1984 Mh.L.J. 885. In the above case question arose whether revisional jurisdiction contained in section 43 could be exercised over the decision of the Board under the Act. This Court has held that the Board is different from the Market Committee and section 43 of the Act does not include within its ambit the revisional jurisdiction of the State Government over the Board. We fail to see how this decision which is rendered at Nagpur four days after section 15-A was brought into force at all deals with the question involved. Section 15-A(2) empowers the Administrator to perform functions of the Committee and various authorities under the Act. Such provision is always made in enactments dealing with an Administrator. The apprehension expressed is wholly unfounded. It is pertinent to note that sub-section (3) of section 15-A permits delegation of any of his powers to any officer. Our attention was invited to the word “its” used in sub-section (2) of section 15-A and it is contended that as the Board is not an authority of the Market Committee it does not come within the purview of the said sub-section. This argument does not appeal to us. Such interpretation would lead to absurd result and make the post of an Administrator unworkable.
10. It is lastly submitted that section 15-A violates the elementary principles of democracy inasmuch as in no case new body can take charge from the old body and Administrator must intervene. We do not think so. It is not as if fresh election cannot take place earlier to the date of the expiry of the period of the fixed tenure. Indeed it is expected that election process is initiated at right time in advance and the elections are actually held as far possible before the expiry of the term so that is no vacuum and there is no occasion to appoint an Administrator. We do not see any limitation in the power of holding of the election during the term of an old body. Taking charge is a different subject. In this connection useful reference may be made to the following observations made in Vidarbha Nagar Palika Parishad’s case (supra) which are binding on us:
” The power of suppression vested under section 48-A is to be exercised only in view of the changed circumstances; or it can be exercised under section 313 only when default is committed by the Council. Otherwise the Act contemplates general election being held before the expiry of the term of office of the sitting Councillors so that one elected body is succeeded by another elected body”.
We see no reason as to why the same principle should not apply to the Act and the rules.
11. Our attention was invited to certain observations made by the Division Bench (Special Revision Application No. 1716/1975 decided on 8th/11th October, 1976) to the effect that election process cannot be initiated during the regime of the old body. In (Writ Petition No. 722/1987, decided on 6th April, 1987) this Court has held that election can take place during the term of the office of the old body, and the observations made in Special Civil Application No. 1776/1975 were in peculiar background.
12. Petition dismissed. Rule discharged. No order as to caste Oral request for stay of operation of this judgement is rejected.