Sadashivrao Ganpatrao Mahajan vs Unknown on 23 September, 2010

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH AT NAGPUR




                                                                                              
                            WRIT PETITION NO. 2851/2010




                                                                      
          Sadashivrao Ganpatrao Mahajan,
          aged 53 years, Occ. Agriculturist, r/o at Post
          Waradh, Tah. Ralegaon, Dist. Yavatmal.         .....PETITIONER




                                                                     
                               ...V E R S U S...

    1.    The Election Officer and Assistant




                                                       
          Registrar for election of Agriculture
          Produce Market Committee, Ralegaon,
                                     
          c/o District Deputy Registrar, Yavatmal.

    2.    Prafulla s/o Khushalrao Mankar,
                                    
          aged major, Occ. Agriculturist,  r/o at Saoner,
          Tah. Ralegaon, Dist. Yavatmal.

    3.    District Deputy Registrar, Cooperative Societies,
            


          Yavatmal, Tah. And Distt. Yavatmal.
         



    4.    State of Maharashtra, through the Secretary,
          Department of Co-operation, Marketing and
          Textiles, Mantralaya, Mumbai-32.             ....RESPONDENTS





    ------------------------------------------------------------------------------------------------
    Mr. S. Paliwal, Advocate for petitioner.
    Mr. N. W. Nambre, Government Pleader for respondent nos.1, 3 and 4
    Mr. A. M. Ghare, Advocate for respondent no.2.





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                                CORAM:- S. A. BOBDE &
                                            MRS. MRIDULA BHATKAR, JJ.

rd
DATE :-

23

SEPTEMBER
, 2010

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ORAL JUDGMENT (Per:- S. A. Bobde, J.)

1. The learned counsel for the petitioner seeks leave to

amend the prayer clause.

Leave granted. Amendment be carried out forthwith.

Amended slip be served on the respondents.

2. Rule. Rule returnable forthwith. Heard finally by

consent of the parties.

3. The petitioner has challenged order dated 03.06.2010

by which it is held that respondent no.2 is eligible to contest the

election of Agriculture Produce Market Committee, Ralegaon. The

petitioner has further prayed for direction to respondent nos. 2 and 3

to reject nomination papers of respondent no.2 for contesting the

election. During the pendency of the petition, respondent no.2

contested the election since there was no stay to the election and has

been declared elected to the Agriculture Produce Market Committee,

Ralegaon from Co-operative Society’s Constituency under Section

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13(1) (a) (i) of the Maharashtra Agricultural Produce Marketing

(Development and Regulation) Act, 1963 (hereinafter referred to as the

“APMC Act”).

4. In view of the fact that respondent no.2 has been

declared elected, Mr. Sambre, the learned Government pleader,

submits that the petitioner has an alternate remedy by way of election

petition under Rule 88 of the Maharashtra Agricultural Produce

Marketing (Regulation) Rules, 1967 (hereinafter referred to as the

“APMC Rules”). Mr. Paliwal, the learned counsel for the petitioner,

points out that Rule 88 of APMC Rules has, in fact, been deleted from

the book on 02.11.2007. Mr. Sambre, the learned Government

Pleader, however, submitted that the deletion of rule 88 was

accidental and that the rule has been restored by Notification in the

Official Gazette dated 13.08.2010. Rule 88 of the APMC Rules reads

as follows:-

“88. Determination of validity of election.

(1) If the validity of any election, including bye-election of
a member of a Market Committee is brought in question by

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any person qualified either to be elected or to vote at the
election to which such question refers, such person may,

within seven days after the date of the declaration of the

result of the election, apply in writing to the Collector.

(2) On receipt of an application under sub-rule (1), the

Collector shall after giving an opportunity to the applicant
to be heard and after making such inquiry as he deems fit,

pass an order confirming or amending the declared result of

election or setting the election aside. If the Collector sets
aside the election, he shall fix a date, as soon as

conveniently may be, for holding a fresh election.

(3) Any person aggrieved by the decision of the Collector

may within seven days from the date on which the decision

is communicated to him, appeal to the Commissioner
appointed under Section 6 of the Maharashtra Land

Revenue Code, 1966 (Mah. XLI of 1966) against such
decision of the Collector subject to the decision of the
Commissioner appointed under Section 6 of the
Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966)

in appeal shall be final.”

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In the circumstances, we see no difficulty in directing

the petitioner to avail of the alternate remedy under the APMC Rules.

5. Mr. Paliwal, the leaned counsel for the petitioner,

however, points out that the APMC Rules have to be laid before each

House of the State Legislature while it is in Session for a total period

of thirty days, as required by Section 60 sub section (4) of the APMC

Act. Rule 88 of the APMC Rules, not having been so laid before each

House while it is in Session for a total period of thirty days, the Rule

cannot be said to have come into force and, therefore, the remedy

provided by the Rule is also not available. Sub Section (4) of Section

60 of the APMC Act, which provides for laying the Rules before the

Legislature reads, as follows.:-

“60. Rules
(1) …..

(2) …..

(3) …..

(3A)…..

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(4) Every rule made under this section shall be laid, as soon
as may be after it is made, before each House of the State

Legislature while it is in session for a total period of thirty

days which may be comprised in one session or in two
successive sessions, and if, before the expiry of the session in
which it is so laid or the session immediately following.

Both Houses agree in making modification in the rule or
both Houses agree that the rule should not be made, the rule

shall from the date of publication of a notification in the

Official Gazette of such have effect only in such modified
form or be of no effect, as the case may be; so however that

any such modification or annulment shall be without
prejudice to the validity of anything previously done or
omitted to be done under that rule.”

Mr. Paliwal, the learned counsel for the petitioner,

further submits that a rule cannot be said to have been brought into

force until a period of thirty days is over because it is open to the

House to modify the rule or to nullify it completely. The learned

counsel further states that rule 88 of the APMC Rules was published

on the last date of sitting of the House of Legislature on 13.08.2010

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and that it is possible that the ensuing Winter Session of the House

does not extend to a period of thirty days as has been the case in the

past and, therefore, it cannot be brought into force even in the next

Session since the Session, during which the Rule is laid before the

House, must have a duration of thirty days.

6. It is, therefore, necessary to construe the laying clause

as contained in Sub Section (4) of Section 60 of the APMC Act. On a

plain reading of Sub Section (4), it cannot be said that rules must be

laid before each House of the Legislature only in one Session with a

duration of thirty days. Sub Section (4) of Section 60 itself

contemplates that rules should be laid before each House of the State

Legislature while it is in Session for a total period of thirty days and

that the thirty days may be in one Session or in two successive

Sessions. The argument, thus, must be rejected.

7. It is, however, important to consider whether the

“laying clause” is directory or mandatory and whether, therefore, a

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rule enacted by the Government comes into force only upon being

laid before each house of the Legislature. In Hukam Chand etc…vs..

Union of India and ors.; AIR 1972 SC 2427, the Supreme Court

noted the existence of three categories of “laying clauses” generally

employed by the Legislatures. They are; (i) Laying without further

procedure; (ii) Laying subject to negative resolution; and (iii) Laying

subject to affirmative resolution.

8. Examples of the three kinds of clauses are described

pithily in Mathura Prasad Yadava ..vs.. Inspector General, Railway

Protection Force, Railway Board, New Delhi and ors.; 1974

M.P.L.J.373 in para 9. They are;

i) Laying without further procedure:-

An example of this category is Section 3 (6) of the Essential

Commodoties Act, 1955, which provides that “every order made shall

be laid before both the Houses of the Parliament as soon as as may be

after it is made.”

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ii) Laying subject to a negative resolution:-

An example of this category is given as Section 21 (3) of the

Railway Protection Force Act. i.e. the Rule is enacted subject to

modification or annulment by the Legislature.

iii) Laying subject to affirmative resolution:-

An example of this category is given as Section 28 (2) of the

Mines And Mineral (Regulation and Development) Act, 1955, which

reads “no rules made shall come into force until they have been

approved whether with or or without modifications by each House of

Parliament.”

9. The Supreme Court has referred to the decision of the

Madhya Pradesh High Court with approval in M/s. Atlas Cycle

Industries Ltd. and ors. ..vs.. The State of Haryana (1979) 2

Supreme Court Cases 196; relied on by the petitioner, and held that

the laying clause, which falls for consideration before it i.e. Section 3

(6) of the Essential Commodities Act (supra) was directory in nature

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and belonged to the first category. The relevant observations are as

under:-

“22. Now at page 317 of the aforesaid Edition of Craies on
Statute Law, the question whether the direction to lay the
rules before Parliament is mandatory or merely directory

and whether laying is a condition precedent to their
operation or may be neglected without prejudice to the effect
of the rules are answered by saying that “each case must

depend on its own circumstances or the wording of the

statute under which the rules are made”. In the instant
case, it would be noticed that sub-section (6) of Section 3 of

the Act merely provides that every order made under Section
3 by the Central Government or by any officer or authority

of the Central Government shall be laid before both Houses

of Parliament, as soon as may be after it is made. It does
not provide that it shall be subject to the negative or the
affirmative resolution by either House of Parliament. It also

does not provide that it shall be open to the Parliament to
approve or disapprove the order made under Section 3 of the
Act. It does not even say that it shall be subject to any

modification which either House of Parliament may in its
wisdom think it necessary to provide. It does not even
specify the period for which the order is to be laid before

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both Houses of Parliament nor does it provide any penalty
for non-observance of or non-compliance with the direction

as to the laying of the order before both House of

Parliament. It would also be noticed that the requirement as
to the laying of the order before both House of Parliament is
not a condition precedent but subsequent to the making of

the order. In other words, there is no prohibition to the
making of the orders without the approval of both Houses of

Parliament. In these circumstances, we are clearly of the

view that the requirement as to laying contained in sub-
section (6) of Section 3 of the Act falls within the first

category, i.e. “simple laying” and is directory not
mandatory.”

It is clear that Sub Section (4) of Section 60 of the

APMC Act does not prescribe “simple laying” without further

procedure. The rule, after enactment introduces a further procedure

i.e. of laying before both Houses of Legislature. So also, the said

clause does not prescribe laying subject to affirmative resolution since

there is no requirement that draft of the rules must be approved by

each House of Legislature before they come into force. Thus, on a

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plain construction, sub Section (4) of Section 60 of the APMC Act can

be said to prescribe a laying subject to negative resolution and,

therefore, directory. Such a clause has been described by Craies as

follows:-

“Negative resolution.- Instruments so laid have immediate
operative effect but are subject to annulment within forty
days without prejudice to a new instrument being made. The

phraseology generally used is “subject to annulment in

pursuance of a resolution of either House of Parliament”.
This is by far the commonest form of laying. It acts mostly

as a deterrent and sometimes forces a Minister (in Sir Cecil
Carr’s phrase) to “buy off opposition” by promising some
modification.”

10. The real question, that comes for consideration, in the

present case is whether Rule 88 of the APMC Rules came into force on

its enactment and publication in the Official Gazette or whether the

coming into force is postponed to the laying of the Rule before the

two Houses of Legislature and its modification or annulment by the

Houses i.e. subject of a negative resolution. There is no doubt that,

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Sub Section (4) of Section 60 of the APMC Act has an immediate

operative effect and is subject to annulment or modification. The

intention of the Legislature that a Rule should come into effect

immediately subject to a negative resolution of the House of

Legislature is evident from the last part of sub section (4) of Section

60, which provides that the modification or annulment shall be

without prejudice to the validity of anything previously done or

omitted to be done under that rule. This postulates that things can be

done under the Rule as soon as it is enacted and that such thing done

should be treated as laid even if the Rule is modified or nullified by

the Legislature.

11. We are fortified in this view by the judgment in

Bailey ..vs.. Williamson 1873 LR VIII QUB 118 referred to by the

Supreme Court in M/s. Atlas Cycle Industries Ltd. and ors. (supra).

That was a case in which the appellant was convicted under Section 4

of the Parks Regulations Act, 1872. The relevant observations in the

judgment are as under:-

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“…the appellant was convicted under Section 4 of the Act for
that he did unlawfully act in contravention of Regulation 8

contained in the first Schedule annexed thereto by delivering

a public address not in accordance with the rules of the said
Park but contrary to the Statute, and it was inter alia
contended on his behalf that in the absence of distinct words

in the statute stating that the rules would be operative in the
interval from the time they were made to the time when

Parliament should meet next or if Parliament was sitting

then during the month during which Parliament had an
opportunity of expressing its opinion upon them, no rule

made as supplementing the schedule could be operative so as
to render a person liable to be convicted for infraction
thereof unless the same had been laid before the Parliament,

it was held overruling the contention that the rules became

effective from the time they were made and it could not be
the intention of the Legislature that the laying of the rules

before Parliament should be made a condition precedent to
their acquiring validity and that they should not take effect
until they are laid before and approved by Parliament. If
the Legislature had intended the same thing as in Section 4,

that the rules should not take effect until they had the
sanction of the Parliament, it would have expressly said so
by employing negative language.”

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In the light of the above observations, we further find

that Sub Section (4) of Section 60 of the APMC Act must be

considered to be as directory.

Further, Rule 88 of the APMC Rules must be taken to

have come into force in view of the judgment of the Supreme Court in

Jan Mohammad Noor Mohammad Bagban ..vs.. State of Gujarat;

AIR 1966 SC 385; where the Constitution Bench has observed as

under:-

“The rule under Act 22 of 1939 were framed by the

Provincial Government of Bombay in 1941. At that time
there was no Legislature in session, the Legislature having

been suspended during the emergency arising out of World

War II. The session of the Bombay Legislative Assembly was
convened for the first time after 1941 on May 20, 1946 and
that session was prorogued on May 24, 1946. The second

session of the Bombay Legislative Assembly was convened on
July 15, 1946 and that of the Bombay Legislative Council
on September 3, 1946 and the rules were placed on the

Assembly Table in the second session before the Legislative
Assembly on September 2, 1946 and before the Legislative
Council on September 13, 1946. Section 26 (5) of Bombay

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Act 22 of 1939 does not prescribe that the rules acquired
validity only from the date on which they were placed before

the Houses of Legislature. The rules are valid from the date

on which they are made under Section 26(1). It is true that
Legislature has prescribed that the rules shall be placed
before the Houses of Legislature, but failure to place the

rules before the Houses of Legislature does not affect the
validity of the rules, merely because they have not been

placed before the Houses of the Legislature. Granting that

the provisions of sub-section (5) of Section 26 by reason of
the failure to place the rules before the Houses of Legislature

were violated, we are of the view that sub-section (5) of
Section 26 having regard to the purposes for which it is
made, and in the context in which it occurs, cannot be

regarded as mandatory. (Emphasis supplied). The rules

have been in operation since the year 1941 and by virtue of
Section 64 of the Gujarat Act 20 of 1964, they continue to

remain in operation.”

12. We, thus, hold that Sub Section (4) of Section 60 of the

APMC Act is directory in regard to the laying rules before the House of

Legislature and that rule 88 of the APMC Rules, which provides for

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questioning an election by way of election petition, has come into

force on 13.08.2010 i.e. the date of its publication in the Official

Gazette.

13. In this view of the matter, the petitioner must avail of

the remedy provided by rule 88 of the APMC Rules. We are not

inclined to entertain this petition. The same is, therefore, dismissed.

However, in the extraordinary circumstances of the present case, we

direct that the election petition, if presented by the petitioner within a

period of seven days from today, shall be entertained without any

objection of delay.

Rule discharged. No order as to costs.

Authenticated copy of this order be supplied to the

learned counsel for the parties.

                                  JUDGE                                   JUDGE





    kahale




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