1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4783 OF 2009
Ashok Bhumanna Chepurvar,
Age-50 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
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...
Mr.S.B. Talekar Advocate for Petitioner.
Mr.V.H. Dighe, A.G.P. for Respondent
Nos.1 to 4.
Mr.S.V. Adwant Advocate for Respondent No.5.
...
WITH
CIVIL APPLICATION NO.1502 OF 2010
Ashok Bhumanna Chepurvar,
Age-50 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...APPLICANT.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
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WITH
CIVIL APPLICATION NO.1503 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...APPLICANT.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
WITH
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4
CIVIL APPLICATION NO.1966 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
Shri Niranjan Begaji Ingole,
Age-60 years, Occ:Agriculture,
R/o-Basmat, Dist-Hingoli.
... INTERVENOR.
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WITH
CIVIL APPLICATION NO.1969 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
Shri Radhakishan Govindrao Sabane,
Age-45 years, Occu:Hamal,
R/o-Basmat, Dist-Hingoli.
... INTERVENOR.
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WITH
CIVIL APPLICATION NO.1971 OF 2010
Ashok Bhumanna Chepurvar,
Age-51 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...PETITIONER.
VERSUS
1) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
2) The Director of Marketing,
Central Building at Pune,
3) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
4) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
5) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
Shri Vishwanath Dinaji Gaware,
Age-52 years, Occu:Agriculture,
R/o-Piprala, Tq-Basmat,
Dist-Hingoli.
... INTERVENOR.
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WITH
CIVIL APPLICATION NO.1973 OF 2010
1) Uttam Ramrao Kadam,
Age-56 years, Occ: Business,
R/o-Pimparala, Tq-Basmat,
Dist-Hingoli,
2) Sakharam Dattarao Narwade,
Age-50 years, Occu:Business,
R/o-Guj, Tq-Basmat,
Dist-Hingoli.
3) Sudhir Yadavrao Wankhede,
Age-40 years, Occu:Business,
R/o-Basmat, Dist-Hingoli.
4) Narayan Vaijinath Khadegaonkar,
Age-35 years, Occu:Business,
R/o-Khadegaon, Tq-Basmat,
Dist-Hingoli.
5) Manik Tukaram Shinde,
Age-50 years, Occu:Business,
R/o-Basmatnagar, Tq-Basmat,
Dist-Hingoli.
6) Sangamnath Gangaram Rajewar,
Age-35 years, Occu:Business,
R/o-Basmat, Dist-Hingoli.
7) Nasir Ahmed Sagir Ahmed,
Age-45 years, Occu:Business,
R/o-Factory Road, Basmat,
Tq-Basmat, Dist-Hingoli.
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8) Sadanand Vishwanth Yeshwante,
Age-45 years, Occu:Business,
R/o-Lingi, Tq-Basmat,
Dist-Hingoli,
9) Jayashri Sudhir Wankhede,
Age-32 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
10) Suresh Balaji Jakkalwar,
Age-40 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
11) Abhijit Sakharam Kulkarni,
Age-36 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
12) Anusaya Vijay Shingapure,
Age-35 years, Occu:Business,
R/o-Basmat, Tq-Basmat,
Dist-Hingoli.
...APPLICANTS.
VERSUS
1) Ashok Bhumanna Chepurvar,
Age-50 years, Occ: Business,
R/o-Mondha Road, Basmat Nagar,
Dist-Hingoli
...ORI.PETITIONER.
2) The State of Maharashtra,
Through Secretary,
Marketing Department,
Mantralaya, Mumbai 400 032,
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3) The Director of Marketing,
Central Building at Pune,
4) The District Deputy Registrar
of Co-operative Societies,
Hingoli,
5) The Assistant Registrar,
Co-operative Societies,
Basmat Nagar, Dist-Hingoli,
6) Krushi Utpanna Bazar Samiti,
Basmat, Through its Secretary,
Market Yard, Basmat Nagar,
Dist-Hingoli.
...RESPONDENTS.
...
Mr.S.B Talekar Advocate for Applicant in Civil
Application No.1502 of 2010 and 1503 of 2010.
Mr.V.D. Salunke Advocate for Intervenor in
Civil Application No.1966 of 2010.
Mr.C.V.Korhalkar Advocate for Intervenor in
Civil Application No.1969 of 2010.
Mr.A.S. Deshpande Advocate for Intervenor in
Civil Application No.1971 of 2010.
Mr.A.D. Shinde Advocate for Applicants in
Civil Application No.1973 of 2010.
...
CORAM: A.M. KHANWILKAR AND
S.S. SHINDE, JJ.
DATE : 22ND FEBRUARY, 2010.
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JUDGMENT (PER A.M. KHANWILKAR, J.) :
1. Heard learned counsel for the parties. Rule.
Rule made returnable forthwith. By consent of the
learned counsel for the parties, the matter was
taken up for final hearing at the stage of
admission itself.
2)
The Petitioner claims to be a trader, being a
commission agent. He has a shop in the market yard
of the Respondent No.5 Krushi Utpanna Bazar
Samiti, Basmat. The term of the market committee
expired some time in November, 2006, however, the
same was extended up to 30th September, 2008 by
the appropriate Authority vide order dated 23rd
March, 2007, 14th November, 2007 and lastly on
25th May, 2008. Admittedly, there is no further
extension to the committee after 30th September,
2008. Nevertheless, the same committee continued
to manage the affairs of the Respondent No.5
committee. It is stated that the committee
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published a list of 327 members who were either
traders or commission agents or shop keepers in B
class during the year 2005-2006. This list was
published on 12th August, 2006. It is stated that
the Petitioner took objection regarding renewal of
license in respect of 113 members named in the
said list. According to the Petitioner the said
members were neither resident of Basmat within the
area of operation of the Respondent No.5 Committee
nor were engaged in the business in the said area
during the relevant period. That is evident from
the fact that none of them paid the market fees
during the relevant period.
3. In support of the stand that the said persons
were not residents of Basmat, the Petitioner
relies on the letter dated 14th January, 2009,
issued under the signature of Chief Executive
Officer of Municipal Council, Basmat Nagar, which
mentions that 49 persons named by the Petitioner
were not residents of Basmat Nagar. Insofar as
assertion that the named persons have not paid
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market fees during the relevant period, reliance
is placed on the communication dated 22nd January,
2009 issued under the signature of the Secretary
of the Respondent No.5 Committee addressed to the
Petitioner. Along with the said communication, a
chart indicating the payment of market fees during
the period 2004-2005, 2005-2006 and 2006-2007
against the name of each of the 153 persons was
enclosed. As per the communication dated 22nd
January, 2009, it is obvious that the Respondent
No.5 accepts the position that out of 153 persons
named by the Petitioner, only 2 have paid market
fees for all the three years and 12 paid the
market fees for one year or more for the relevant
period between 2004-2005 to 2006-2007. Whereas, at
least 139 persons have not paid the market fees at
all during that period.
4. It is the case of the Petitioner that he took
up the issue before the Assistant Registrar,
complaining about at least 113 license holders who
were purportedly traders, were not doing business
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within the area of operation of Respondent No.5
Committee. The Assistant Registrar, by his
communication dated 9th May, 2008 informed the
Petitioner that after due enquiry, it has been
found that out of the 113 license holders, only 13
license holders were ineligible and for which
reasons their licenses have been cancelled by the
Respondent No.5 Committee by order dated 1st
April, 2008. In other words, the Petitioner partly
succeeded in the enquiry before the Assistant
Registrar to the extent of 13 license holders.
Insofar as remaining 100 license holders (traders)
are concerned, the Assistant Registrar, after due
enquiry, rejected the claim of the Petitioner. It
is noticed that this order has become final.
5. Some time on 18th December, 2008 provisional
list in respect of traders constituency of the
Respondent No.5 Committee was published which was
prelude to the conduct of elections to elect new
Committee. The Petitioner on 30th December, 2008,
made application to the Secretary of the
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Respondent No.5 Committee under the Right to
Information Act, 2005 calling upon the Respondent
No.5 to furnish details about the named 153
license holders. In response to the said enquiry,
the Secretary of the Respondent No.5 Committee
furnished the requisite information vide his
communication dated 22nd January, 2009 and also
forwarded the chart indicating the addresses and
the amount of market fee paid by each of the
member during the period 2004-2005 to 2006-2007.
As aforesaid, from this chart it is noticed that
only 2 license holders at sr. Nos. 34 and 146 paid
market fees for all the three financial years and
12 license holders paid market fees for one or
more years.
6. In response to the draft voters list, several
members of the Respondent No.5 Committee raised
objection regarding the inclusion of names of
ineligible persons in the list of license holders
therein. The objections filed in the prescribed
form by different members have been placed on
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record as Exhibit H collectively. By this separate
17 objections filed by the respective members,
objections were taken regarding wrongful inclusion
of in all 209 ineligible persons.
7. Insofar as the Petitioner before this Court is
concerned, he took objection only in respect of
wrongful inclusion of names of 10 persons named by
him who were at serial Nos. 3, 5 to 9, 337, 339,
340 and 342 respectively in the traders
constituency on the ground that the said persons
were not doing any business nor have had any shops
within the area of operation of Respondent No.5
Committee. In support of the contention that the
said persons did not have any shop within the area
of operation of Respondent No.5 Committee, the
Petitioner placed reliance on the communication
dated 9th January, 2009 received by him from the
Government Labour Officer under the provisions of
the Right to Information Act, 2005. It mentions
that out of the 160 named persons in his
application, only 8 persons were possessing
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license under the Mumbai Shops and Establishments
Act, 1948. The said communication also records
that in all probabilities, the shops of other
named persons was either outside the Basmat
Municipal Council area or in the rural area, for
which reason they have not obtained license under
the Mumbai Shops and Establishments Act, 1948.
8. As aforesaid, the Petitioner took objection
only in respect of 10 persons named in the draft
voters list, referred to in his application dated
16th January, 2009. The District Deputy Registrar,
disposed of all the objections together by common
order dated 20th February, 2009 on the finding
that all the 17 objections filed by different
members in respect of in all 209 names appearing
in the draft voters list in traders constituency
raised similar grounds. He has held that detailed
enquiry was undertaken and it was noticed that
objections regarding only 6 names can be sustained
as the record does not indicate that necessary
steps were taken for renewal of their licenses. He
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further found that in respect of remaining 203
traders named in the draft voters list, all paper
formalities for renewal of their licenses as well
as payment of fees by them has been fulfilled, for
which reason it was not possible to delete their
names from the voters list. Consistent with this
finding, the 17 objections were disposed of by
deleting the names of only 6 voters from the
voters list out of the objections to 209 names.
This decision of the District Deputy Registrar
dated 20th February, 2009 is subject matter of
challenge in the present Petition as the names of
203 voters have been retained in the voters list.
9. The final voters list accordingly includes the
names of remaining 203 persons in the traders
constituency. In the present Petition, therefore,
besides challenging the order passed by the
District Deputy Registrar dated 20th February,
2009, the Petitioner prays for appropriate writ to
direct the District Deputy Registrar of Co-
operative Societies (Respondent No.3) and the
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Assistant Registrar, Co-operative Societies
(Respondent No.4) to hold the enquiry regarding
the validity of the licenses issued to 153 members
whose names have been mentioned in Exhibit G to
the Petition and further to initiate proceedings
against them to cancel their licenses from the
final voters list of the traders constituency of
the Respondent No.5 Committee and to delete their
names from the final voters list.
10. The present Petition has been filed on 7th
July, 2009. The Petition as originally filed, the
order dated 20th February, 2009 was not
specifically challenged. The Petitioner has
amended the Petition on 8th February, 2010 and has
now challenged the said order dated 20th February,
2009 passed by the Respondent No.3. Besides
amending the Petition, the Petitioner has taken
out Civil Application No.1503 of 2010 praying for
liberty to allow them to implead 153 members named
in Exhibit G to the Petition as Respondents in the
present Petition. This application has been taken
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out in the context of preliminary objection raised
on behalf of the Respondents during the course of
hearing regarding the maintainability of the
Petition due to non impleadment of the said 153
persons as party Respondents even though the
relief claimed by the Petitioner was to directly
affect them. Besides, the Petitioner has filed
Civil Application No.1502 of 2010 praying for
interim injunction restraining the said 153
members named in Exhibit G to the Petition, whose
names are included in final voters list from
participating in the ensuing election process till
the disposal of this Petition.
11. This Petition as well as Civil Applications
have been resisted by the Respondents. The
Respondent No.5 relies on the affidavit of
Balasaheb Gangadharrao Katore, its Secretary,
dated 1st February, 2010. In the first place, it
is asserted that the Petitioner does not possess a
valid license as commission agent after 31st
August, 2008 and, therefore has no locus to file
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the present Petition. It is further stated that
all licenses have been granted or renewed by the
Committee as per Section 7 of the Maharashtra
Agricultural Produce Marketing (Development and
Regulation) Act, 1963 (hereinafter referred to
‘the Act of 1963’) read with Rule 6 of the
Maharashtra Agricultural Produce Marketing
(Regulation) Rules, 1967 (hereinafter referred to
as ‘the Rules of 1967’), in favour of the traders
covered under category B only after satisfying
that they have complied with all the requirements
necessary for issuance/renewal of the license, by
following due process of law. The said Respondent
placed on record a chart indicating the date of
issuance of license, date of renewal thereof and
the date on which license fee has been paid, along
with the names and addresses of the concerned 153
license holders. It is asserted that names of each
of these 153 license holders are found in the
register maintained by the Committee as on 31st
December, 2007 and was sent at least three months
before the date to the Respondent No.3 for
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finalization of the voters list. It is stated that
as per the amended provisions, the names of
traders who were holding licenses for two
preceding years are required to be enlisted in the
voters list and therefore their names were
considered by the Committee while preparing the
list of voters forwarded to the Respondent No.3.
12. According to the Respondent No.5, the voters
list which is published under Rule 36 of the Rules
of 1967 is conclusive evidence for the purposes of
determining as to whether any person is qualified
to vote as is provided by Rule 37 and for which
reason the grievance of the Petitioner cannot be
looked into at this stage. It is further stated
that the Petitioner had raised objection regarding
wrongful renewal of license of 113 license holders
and that enquiry was undertaken by the appropriate
Authority who accepted the objection of the
Petitioner only in respect of 13 licensees and
those licenses were eventually cancelled. In other
words, the challenge to the renewal of license of
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remaining 100 licensees stood negatived after due
enquiry. Nevertheless, the Petitioner has once
again included the names of all the 113 traders
who are part of the list of 153 traders Exhibit G.
Therefore, it is not possible to reopen the
enquiry in respect of those 113 traders.
13. The Respondent Nos. 3 and 4 have filed
affidavit of Ashok Ramchandra Giri, Assistant
Registrar, who has more or less supported the
stand of the Respondent No.5 and has stated that
153 members are eligible and their licenses have
been renewed from time to time. It is further
stated that the election programme has already
commenced with publication of notification on 31st
December, 2009 and it may not be appropriate to
interfere with the same at this stage. Further,
pursuant to the said notification, 183 members
submitted their nominations and after scrutiny and
withdrawal, 39 members are contesting as
candidates and the election has been scheduled on
21st February, 2010. Therefore, no interference is
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warranted at the hands of this Hon’ble Court.
14. The Petitioner has filed rejoinder affidavits
dated 16th February, 2010 and 17th February, 2010
reiterating his stand and further asserting that
the wrongful inclusion of ineligible voters was at
the behest of the present Chairman who is very
powerful and influential person and close
confident of Ex-Minister and the sitting M.L.A.
The Petitioner has refuted the stand of the
Respondent No.5 that the Petitioner is not a
trader and did not have a valid license. The
Petitioner has relied on the fact that the
Petitioner was called upon to pay the license fees
on 5th May, 2009 and that the Petitioner has paid
amount towards the shop rent as recently as on
14th January, 2010. Besides, the Petitioner has
filed his nomination form and is contesting from
the traders constituency which has been accepted.
It is stated that inspite of this a false and
misleading plea is taken by the Respondent No.5
about the locus of the Petitioner. The Petitioner
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has asserted that 153 persons named in Exhibit G
were neither residing in the area of operation of
the Respondent No.5 Committee nor were doing
business in the said area, which is evident from
the fact that no market fee has been paid by at
least 139 persons out of the 153 persons and
market fee only for one year or more has been
paid by 12 persons. It is submitted that the fact
that the said persons have failed to pay market
fees, presupposes that they were not doing the
business in the area of operation of the
Respondent No.5 Committee during the relevant
period and for which reason the action of renewing
their license by the Respondent No.5 Committee
was in excess of authority and contrary to the
provisions of law. According to the Petitioner
even though the election programme has commenced,
that would not be an impediment to set right the
defective voters list relating to traders
constituency which consists of 327 members, out of
which grant/renewal of license to as many as 139
persons who have failed to pay any market fee
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during the relevant period as also 12 persons who
have paid market fee only for one year or more,
has become questionable. Since the grant/renewal
of license of such persons itself was illegal, it
would necessarily follow that names of those
persons could not be continued in the voters list
of eligible voters. It is submitted that since
large number of licenses have been renewed in
excess of authority, that would have material
impact on the validity of elections in respect of
traders constituency and at any rate such
elections cannot be termed as free and fair
elections.
15. During the pendency of this Petition, four
Intervention Applications have been filed, being
Civil Application No.1966 of 2010 by Niranjan
Begaji Ingole, Civil Application No.1969 of 2010
by Radhakishan Govindrao Sabane, Civil Application
No.1971 of 2010 by Vishwanath Dinaji Gaware and
Civil Application No.1973 of 2010 by Uttam Ramrao
Kadam and 11 others. Insofar as Civil Application
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Nos. 1966 of 2010, 1969 of 2010 and 1971 of 2010
are concerned, the same have been filed by members
of the Respondent No.5 Committee falling under
different constituencies. These applications have
been filed on the apprehension that the Court may
accede to the request of the Petitioner to stay
the entire election. However, it is noticed that
the incidental relief claimed in the present
Petition to question the validity of the election
process is only in respect of the traders
constituency. Even the counsel appearing for the
Petitioner, in all fairness, stated before the
Court that the Petitioner was not interested in
staying the entire election process but wanted his
grievance to be redressed in respect of challenge
to the inclusion of ineligible voters of traders
constituency. In the circumstances, nothing would
survive for consideration in these three Civil
Applications.
16. Insofar as Civil Application No.1973 of 2010
is concerned, the same is filed by persons who
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have been named in the list of 153 persons,
Exhibit G stated to be ineligible for grant/
renewal of license. According to them, in the
light of decision of our High Court in the case of
Shree Adinath Sahakari Sakhar Karkhana Ltd. and
another vs. State of Maharashtra and others, 2006
(6) Mh. L.J. Page 309, the Writ Petition should be
dismissed for non joinder of necessary parties. We
would consider this aspect a little later.
17. Before proceeding further, we would think it
apposite to deal with the preliminary objection
regarding the locus of the Petitioner as he does
not possess a valid license. This objection is
founded on the contents of Form No.1 produced by
the Petitioner at Exhibit A to the Petition, which
discloses that the license issued to the
Petitioner was to remain valid till 31st August,
2008 and there is no endorsement of further
renewal thereof. We are intrigued by the stand
taken by the Respondent No.5 Committee in this
behalf. For, the Respondent No.5 was obviously
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aware that the Petitioner had paid rent for shop
No.13 in the sum of Rs.59,930/- as recently as on
14th January, 2010. Besides, the Secretary of the
Respondent No.5 had called upon the Petitioner to
pay market fee and supervision fee and in any case
the Petitioner is one of the candidate contesting
the ensuing election and his nomination has been
accepted from traders constituency by the
Returning Officer on 16th January, 2010. It is too
late in the day for the Respondent No.5 to now
contend that the Petitioner has no locus to pursue
the present action. Accordingly, we reject this
preliminary objection.
18. Insofar as the grievance made by the
Applicants in Civil Application No.1973 of 2010
that the Writ Petition should be dismissed for non
joinder of necessary parties, we would dispose of
the same on three counts. Firstly, because we find
merits in the stand taken by the Petitioner that
the Petitioner is not seeking relief directly
against the said persons. The Petitioner has
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merely asked for direction against Respondent Nos.
3 and 4 to hold enquiry into the question of
validity of licenses issued to the named 153
persons mentioned in Exhibit G and to initiate
action to cancel their licenses by following due
process of law. The interest of said 153 members
would be affected only if Respondent Nos. 3 and 4
were to initiate proceedings for cancellation of
their licenses by following due process of law and
not before that. So long as the licenses
granted/renewed in favour of the said persons were
in force, they would continue to remain in the
voters list subject to fulfilling other
requirements if any. It is only upon cancellation
of their license, the names of concerned members
would be struck off from the voters list and that
would happen only after due enquiry to be
initiated by the appropriate Authority against
such persons. Secondly, we find that the
Petitioner was not claiming relief of interdicting
the election process as such but has raised issues
regarding improper grant/ renewal of license by
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the Respondent No.5 Committee in favour of persons
who were ineligible and which action was in the
teeth of the mandatory provisions since the said
persons were not residing in the area of operation
of the Respondent No.5 Committee and also did not
carry on any business in that area and have failed
to pay the market fee for the relevant period. In
the case of Shree Adinath Sahakari Sakhar
Karkhana Ltd. and another vs. State of Maharashtra
and others (supra), the challenge was directly to
the wrongful inclusion of 4139 individuals in the
final voters list as members of the Petitioner
society therein. Be that as it may, the Petitioner
has filed Civil Application No.1503 of 2010 and
has sought liberty to implead all the 153 members
in the traders constituency referred to in Exhibit
G as party Respondents to the Writ Petition. In
the light of the said Civil Application, the
objection raised by the Intervenors does not have
any force.
19. Reverting to the merits, the grievance of
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the Petitioner is that grant/ renewal of licenses
to the concerned persons, is contrary to the
mandate of law and that the Respondents have acted
in excess of authority. According to the
Petitioner, only persons residing within the
area of operation of the Respondent No.5
Committee, were entitled for grant/ renewal of
license. Secondly, they should be carrying on
business within the area of operation during the
relevant period, which is a condition precedent
for renewal of their license. The fact of non
payment of market fees by the concerned 153
persons to the Respondent No.5 Committee, during
the relevant period presupposes that they were not
carrying on business within the market area. In
such a situation, the Respondents in the first
place ought not to have renewed their licenses and
in any case ought to have initiated action for
cancellation or suspension of licenses qua such
persons and if adverse decision was to be taken,
such persons would cease to be in the voters list.
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20. Before we analyze these aspects, it needs to
recapitulated that the list of 327 traders/
licensees whose licenses were granted/renewed
during the year 2005-2006 was published in August,
2006. The Petitioner filed objection in respect of
113 licensees named in the said list. That
objection was considered by the Assistant
Registrar and accepted only in part to the extent
of 13 license holders. In respect of remaining 100
license holders the Assistant Registrar noted that
their license has been renewed by the Committee
and they have paid the fees. In other words, the
inclusion of remaining 100 members in the said
list was upheld by the Assistant Registrar. This
decision of the Assistant Registrar has attained
finality. By the same order, the Assistant
Registrar, however, found that only 13 members
were ineligible for renewal of license and
therefore their licenses were cancelled on 1st
April, 2008. Significantly, the names of those 100
members whose grant/renewal of license has been
upheld, are not forthcoming. According to the
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Respondents, the Petitioner in the list annexed at
Exhibit G of 153 members, has once again included
the names of 113 members in relation to whom after
enquiry the Assistant Registrar rejected the claim
of the Petitioner qua 100 license holders.
21. Further, it is noticed that the Petitioner
filed objection after the publication of draft
voters list and questioned the wrongful inclusion
of only 10 members as mentioned in document
annexed at Exhibit H collectively at page 70. The
other 16 objections in respect of 199 members were
taken by 16 different applicants. Those applicants
have not questioned the decision of the District
Deputy Registrar dated 20th February, 2009 before
us. Indeed, the Petitioner can legitimately pursue
his grievance at least in respect of 10 members
referred to in his objection filed before the
Respondent No.3. Insofar as those 10 persons are
concerned, the Respondent No.3 has negatived the
objection filed by the Petitioner on the finding
that those persons have completed all paper
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formalities and have also paid the fees to the
Respondent No.5 Committee. That is a finding of
fact, which cannot be interfered with in this
proceedings unless it is perverse. From the chart
appended to the reply affidavit filed by the
Respondent No.5 Committee, it is seen that license
has been granted/ renewed in favour of each of
these 153 members and they have paid fees in that
behalf on different dates much prior to the cut-
off date i.e. 31st December, 2007. We have no
reason to doubt the stand taken by the Respondents
that the objection to the names of said 113
persons culminated with the order passed by the
Assistant Registrar dated 9th May, 2008. Out of
the 153 persons referred to in Exhibit G, on
excluding names of said 113 persons which are
common, the Petitioner could have made grievance
in respect of 40 remaining license holders.
However, the Petitioner challenged inclusion of
only 10 persons in the voters list, on the ground
that grant/ renewal of license in their favour was
inappropriate. That challenge has been examined
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and negatived by the Respondent No.3. The
Petitioner cannot be heard to make grievance about
the wrongful inclusion of other names in the
voters list in the present Petition, especially
when other 16 objectors who had objected to the
names of in all 199 members, have not chosen to
assail the decision of the Respondent No.3. Thus
understood, we are of the opinion that the
challenge to the draft voters list in respect of
wrongful inclusion of 153 trader/ members must
fail. That, however, would not preclude the
Petitioner to pursue his remedy against the
appropriate authority to enquire into the validity
of renewal of licenses of those 153 persons and/or
to initiate action to cancel their licenses. In as
much as, the consideration for examining the
objection regarding the wrongful inclusion in the
voters list is limited to see as to whether that
persons has had a license in force on the relevant
date and paid the fees.
22. Insofar as the argument of the Petitioner that
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the renewal of license was inappropriate as the
concerned members were not residing within the
area of operation of the Respondent No.5
Committee, we find that neither the Act nor the
Rules or bye-law make such a provision. On the
other hand, Section 2 (1) (t) of the Act of 1963
defines the term “trader” to mean a person who
buys or sells agricultural produce, as a principal
or as duly authorized agent of one or more
persons. Section 6 of the Act of 1963 provides
that, no person shall, on and after the date on
which the declaration is made under sub-section
(1) of section 4, without or otherwise than in
conformity with the terms and conditions of, a
license can use any place in the market area for
the marketing of the declared agricultural produce
or operate in the market area. Sub-section (2) of
Section 6 provides that nothing in sub-section (1)
shall apply to sales by retail; sales by an
agriculturist who sells his own produce; nor to
sales to by a person where he himself sells to
another who buys for his personal consumption or
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the consumption of any member of his family.
Section 7 deals with the mechanism of grant or
renewal of licenses. It stipulates that the market
committee, after due inquiries, may grant or renew
a license for the use of any place in the market
area for marketing of the agricultural produce or
for operating therein as a trader, commission
agent, broker, processor, weighman, measurer,
surveyor, warehouseman or in any other capacity in
relation to the marketing of agricultural produce;
or may, after recording its reasons in writing
therefor, refuse to grant or renew any such
license. Sub-section (3) of Section 7 provides
that any trader who desires to operate in more
than one market area, may apply to such authority
or officer notified by the State Government for
grant or renewal of license with such details as
may be prescribed. Another relevant Section to
analyze this controversy would be Section 8 of the
Act of 1963, which authorizes the market
committee for reasons to be recorded in writing,
to suspend or cancel a license. The five grounds
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(a) to (e), specified in sub-section (1) of
Section 8 do not provide that the person should be
residing in the area of operation of the
Committee. We would assume that clause-(b) can be
invoked if the license holder commits breach of
any of the terms or conditions of license. The
terms and conditions of license can be discerned
from Form No.1 found in the Rules of 1967. Even on
fair reading of every clause thereof, it is not
possible to countenance the argument that the
license holder should necessarily be a resident
within the area of operation of the Committee. On
the other hand, the scheme of the Chapter II of
the Act would indicate that a person can be
granted license who is thereafter authorized to
use any place in the market area for marketing of
agricultural produce or for operating therein in
the stated capacity. Significantly, Section 7 (3)
envisages that a person can operate in more than
one market area. If so, it is unfathomable that
such a person is expected to be resident of such
multiple market areas. Suffice it to observe that
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the scheme of Chapter II of the Act nor the Rules
of the model license conditions mandate that the
trader should be residing in the market area as
such.
23. Insofar as the challenge on the ground that
the grant/ renewal of license in favour of named
153 persons is in excess of authority because the
said persons were not doing any business in the
market area or area of operation of the
Respondent No.5 Committee during the relevant
period is concerned, the Petitioner has relied on
the document such as information disclosed to him
by the officials which would indicate that about
139 members have not paid any market fees during
the relevant period at all and that only 8 members
have shops and establishments license within the
area of Basmat Nagar Municipal Council, which is
indicative of the fact that such persons were not
carrying on business within the area of operation
of the Respondent No.5 Committee. Insofar as the
information disclosed in communication dated 9th
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January, 2009 by the information officer, that by
itself cannot be the basis to hold that only 8
members out of 160 members, were legitimately
carrying on their business within the area of
operation of the Respondent No.5 Committee. The
communication merely records that out of 160
names, only 8 have shops and establishment
license. It also records that in all
probabilities, the other persons may be having
shops outside the Basmat Nagar area or in rural
area. In other words, this communication is not
conclusive of the fact that the remaining 152
persons were not carrying on business within the
limits of “area of operation of the Respondent No.
5 Committee” as such.
24. Insofar as the chart Exhibit G furnished to
the Petitioner by the Respondent No.5 Committee,
it does reveal that only 2 members have paid
market fee for all the three financial years i.e.
between 2004-2005 to 2006-2007. Out of 153 members
at least 139 members have not paid any market fee
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for the three preceding financial years, whereas
12 members have paid market fee either for one
year or more than one financial year. The fact
that no market fee has been paid by the concerned
members, that would certainly be indicative of the
fact that the concerned trader was not carrying on
any business within the limits of area of
operation of the Respondent No.5 Committee during
such period. Assuming that he was carrying on the
licensed business he has failed to pay the market
fee. That may be in violation of the terms of the
license and a ground for cancellation of license.
To counter this submission, it was argued that
there is nothing to indicate that the licensee has
to continuously carry on business in the market
area and having failed to do so, would result in
cancellation or non renewal of his license.
25. In our view, on conjoint reading of Section 6
and 7 of the Act of 1963, it would appear that the
person who intends to carry on business in the
market area for marketing of the agricultural
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produce or for operating therein in the stated
capacity, is obliged to obtain license from the
Committee of such market area. Obviously, the
license is granted only to the aspiring persons
who “actually or genuinely intend” to carry on
business during the license period and not as an
idle formality so as to increase the number of
traders on the rolls of the Committee. The
language of definition of term “trader” as also
Section 6 would suggest that the person should be
engaged in the activity of buying and selling of
agricultural produce within the market area in
praesenti. The fact that a license holder is
expected to carry on business in the market area,
is reinforced from condition No.6 of the license
which postulates that the licensee ‘shall carry
on business’ in the stated capacity only and at
such places for which the license is issued and
unless the licensee carries on any other business
under a license granted under the said rules,
shall not carry on any other business of a market
functionary in the market area or in any market
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therein. A priori, if the license holder
discontinues his business or fails to carry on
business in the market area during the relevant
period, the question of renewal of license of such
license holder does not arise.
26. Assuming that the license has been renewed, it
is always open to the market committee to cancel
or suspend such license by invoking powers under
Section 8 (1) (b) of the Act of 1963 – which
postulates that such action can be resorted to
where the holder of license or any servant or any
one acting on his behalf with his express or
implied permission, commits a breach of any of the
terms or conditions of the license. The power is
coupled with the duty, inter-alia to uphold the
interest of genuine traders operating in the
market area. The grant or “renewal of license”
therefor, can and should be only to persons who
are genuinely interested in carrying on business
in the market area for marketing of the
agricultural produce or for operating therein in
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the stated capacity during the relevant period. If
that activity is not pursued without any
sufficient cause, merely because the person may
declare his intention to undertake such activity,
cannot be the basis to renew the license. As
aforesaid, in the present case admittedly 139
members have not paid market fee during the
preceding three financial years between 2004-2005
to 2006-2007, which is indicative of the fact that
they were not carrying on business within the
market area at all. Payment of license fee cannot
absolve the person from continuing to carry on the
business in the market area. The renewal of
license could be only in favour of those license
holders who are actually and genuinely engaged in
carrying on business within the market area in the
stated capacity. The fact that such members are
willing to pay license fee or renewal fee, would
not take the matter any further as the factum of
payment of license fee is no indication of the
fact that the person is in fact carrying on the
business in the market area. A person who is not
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actually engaged in carrying on business in the
market area would obviously renew his license for
purposes other than carrying on business in the
market area including to contest in the elections
of the Committee so as to become part of the
Management or affairs of the Committee. Such
person will have no inkling about the difficulties
and problems faced by the traders community in the
market area. Therefore, renewal of license of such
person would be antithesis to the democratic
values and more so free and fair elections qua the
traders constituency.
27. Having said this, we would accede to the
prayer of the Petitioner to direct the Respondent
Nos. 3 and 4 to hold enquiry into the validity of
licenses granted/ renewed in favour of ineligible
persons in particular, referred to in Exhibit G
who have not engaged themselves in carrying on the
business for marketing of the agricultural produce
in the market area in the stated capacity during
the license period without any sufficient cause.
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We are conscious of the fact that after the
enquiry, it is possible that the appropriate
authority may have to initiate action for
cancellation of license already granted to such
ineligible persons whose number may be quiet
substantial. Even so, we do not intend to
interfere with the order passed by the Respondent
No.3 impugned in this Petition dated 20th
February, 2009 so as to reopen the challenge
regarding inclusion of names of such ineligible
traders in the final voters list. This is so
because as we have already noticed that the
challenge in respect of 113 license holders has
been duly enquired by the Assistant Registrar
vide order dated 9th May, 2008, and it is
negatived in respect of at least 100 license
holders, which order has become final. Moreover
the Petitioner raised objection regarding wrongful
inclusion of ineligible persons in the voters list
of only 10 licensed traders, which claim has been
negatived by the Respondent No.3. So long as the
license issued in favour of a trader was in force
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and he has paid the fees, as per the extant
Regulation, his name would continue to appear in
the voters list. It is only upon cancellation of
his licence, the question of excluding his name
from the voters list would arise. That will be
done with prospective effect. Admittedly, the
election is being held on the basis of voters list
as on 31st December, 2007 and the cancellation of
license would be prospective – to be done
hereinafter. That cannot be the basis to interdict
the present election process, which is already in
progress and has reached at the advanced stage of
polling on 21st February, 2010. In the
circumstances, it may not be possible to grant
substantive relief in terms of prayer clauses (B)
and (F) as prayed by the Petitioner. Those prayers
will have to be negatived. The Petitioner however,
would succeed only in respect of prayer clause
(A), which action will have to be proceeded by
following due process of law. This however, shall
not preclude the Petitioner to pursue his remedy
of raising an election dispute under Rule 88 of
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the Rules after conclusion of the elections, if so
advised. All questions in the said proceedings
will have to be decided on its own merits.
28. For the view we have taken, it may not be
necessary to burden this Judgment with the
reported decisions relied upon by the counsel for
the parties as the same do not have bearing on the
view that we have taken. To complete the record we
may only make reference to those decisions. The
Petitioner relied on the Supreme Court decision in
the case of Bar Council of Delhi vs. Union of
India, A.I.R. 1980 Supreme Court, 1612 (Paras 8
and 10), Ahmednagar Zillha S.D.V. & P. Sangh vs.
State of Maharashtra and others, 2004 (1) S.C.C.
Page 133 (Paras 3 to 6), Pundlik vs. State of
Maharashtra, A.I.R. 2005 Supreme Court, Page 3746
(Paras 16 and 17), and the decision of Division
Bench of this Court in Dattatraya Kachru Chine vs.
State of Maharashtra, 2005 (4) Mh. L.J. Page 243
(Para 23), Bapu Maruti Rakshe vs. State of
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Maharashtra, 2007 (3) Bom. C.R. Page 615 (Paras 8
and 9) and decision of Single Judge of this Court
in Shivajirao Prataprao Chaulukya vs. State of
Maharashtra, 2009 (2) Bom. C.R. Page 580 (Paras 14
and 18), and lastly K. Venkatachalam vs. A.
Swamickan & Anr., 1999 (4) S.C.C. Page 526 (Para
27). The counsel for the Respondents have
distinguished these decisions and instead have
relied on the Judgment of our High Court in the
case of Digambar Sadashiv Ghorpade and others vs.
Election Registration Officer, Kolhapur, 2003 (1)
Mah. L.J. Page 669 (Paras 13, 31) and Judgment in
Patan Proper Fal ans Shak Bhaji Kharid Vechan
Sahakari Mandli Ltd., Patan vs. Pali Shak Bhaji
and Fal Ful Adi Ugarnarao-ni-Kharid Vechan Shakari
Mandli Ltd., A.I.R. 1987 Gujrat, Page 33 (Paras 26
to 28) and decision of the Apex Court in Shri Sant
Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha and another, (2001) 8
Supreme Court Cases, Page 509 (Paras 8 to 12).
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29. Accordingly, we are not inclined to interfere
with the ensuing elections which would culminate
with the polling and declaration of the result on
21st February, 2010 and 22nd February, 2010
respectively, particularly on account of our
finding that the election is held on the basis of
the voters list as on 31st December, 2007 and even
if the license granted/renewed in favour of
ineligible persons were to be cancelled, that
decision would have prospective effect and cannot
have any bearing on the final voters list as on
31st December, 2007. The enquiry to be undertaken
by the Respondent Nos. 3 and 4, however, will have
to abide by the procedure prescribed for
cancellation of licenses. Further, if the
Respondent No.5 Committee is required to consider
request for renewal of license of any trader
hereafter, may have to examine such application
keeping in mind as to whether the said incumbent
has in fact or not carrying on business within the
market area for marketing of the agricultural
produce or for operating therein in the stated
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capacity during the previous financial years
without any sufficient cause.
30. Accordingly, this Petition partly succeeds.
Rule is made absolute only in terms of prayer
clause (A), which reads thus:
“(A) To direct the Respondent
Nos.3 and 4 to hold an inquiry
as to the validity of the
licenses issued to 153 members
whose names are included in the
list at Exhibit G and to
initiate proceedings so as to
cancel their licenses by
following due process of law by
issuing writ of mandamus or any
other appropriate writ, order
or directions, as the case may
be”
31. Insofar as Civil Applications for intervention
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are concerned, the same are disposed of for the
afore-stated reasons. Insofar Civil Application
filed by the petitioner for liberty to implead 153
persons as party Respondents as well as Civil
Application for interim relief against those
persons, both these Civil Applications are also
disposed of in terms of this order.
32. Interim order is vacated forthwith.
[S.S. SHINDE, J.] [A.M. KHANWILKAR, J.]
asb/FEB10/wp4783.09
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