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Yadaorao Ramchandra Rao Majarkhede and ors. Vs. Agricultural Produce Market Committee, Arvi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 566 of 1971
Judge
Reported inAIR1974Bom181; 1974MhLJ338
ActsMaharashtra Agricultural Produce Marketing (Regulation) Act, 1964 - Sections 3, 4 and 59; Constitution of India - Article 226
AppellantYadaorao Ramchandra Rao Majarkhede and ors.
RespondentAgricultural Produce Market Committee, Arvi and ors.
Appellant AdvocateH.W. Dhabe and ;M.P.M. Pillai, Advs.
Respondent AdvocateV.A. Masodkar, Adv. and ;M.B. Mor, Asst. Govt. Pleader
Excerpt:
a) it was held that, in accordance with section 58 of the maharashtra agricultural produce marketing (regulation) act, 1964, the notification-dated 16.9.1967 issued by the state government delegating its power to the director is not ultra vires the power of the state government ; b) it was held that, if the language of a statute is ambiguous and its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the act, it is permissible not to give a literal meaning to the language used by the legislature ; c) it was held that, in accordance with section 3 of the maharashtra agricultural produce marketing (regulation) act, 1964, the failure to publish the notification regulating the marketing of any agricultural produce, in the newspaper does not.....chandurkar, j.1. this petition filed by the petitioners, who claim to be the agriculturists, is directed against the two notifications issued under sections 3 and 4 of the maharashtra agricultural produce marketing (regulation) act, 1963, hereinafter referred to as the marketing regulation act, and as also against the action taken by the collector, wardha, for holding elections to all the agricultural produce marketing committees in wardha district. notification was issued by the director of agricultural marketing and rural finance. maharashtra state, on june 3, 1970, by which the director declared his intention to extend the marketing area of the agricultural produce market committee, arvi, in arvi tahsil of the wardha district so as to include in its area of panchayat samiti, arvi and.....
Judgment:

Chandurkar, J.

1. This petition filed by the petitioners, who claim to be the agriculturists, is directed against the two notifications issued under Sections 3 and 4 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, hereinafter referred to as the Marketing Regulation Act, and as also against the action taken by the Collector, Wardha, for holding elections to all the Agricultural Produce Marketing Committees in Wardha District. Notification was issued by the Director of Agricultural Marketing and Rural Finance. Maharashtra State, on June 3, 1970, by which the Director declared his intention to extend the marketing area of the Agricultural produce Market committee, Arvi, in arvi Tahsil of the Wardha District so as to include in its area of panchayat Samiti, Arvi and panchayat Samiti Karanja established under the Maharashtra Zilla parishad and panchayat samities act, 1961, and proper Arvi Town in Arvi Tahsil of wardha District and to regulate the marketing of all the commodities mentioned in paragraph 2 of the said notification in the area so extended. Objections and suggestions, if any, were invited by the Director within a period of one month from the date of publication of the notification in the Government Gazette. Copies of these notification were sent to the Manager, Government Printing Press, nagpur, for being published in the next issue of the Maharashtra Government Gazette, the chairman, Agricultural Produce Market Committe, Arvi, the Divisional Joint Registratio. co-operative Societies, Nagpur, the Chief Executive Officer, Zilla parishad, wardha, the Regional publicity Officer, Nagpur, the Municipal Council, Arvi, the Mamlatdar or the block Development Officer, Arvi, as also the District Deputy Regoistrar, Co-operative Societies, wardha the district Agricultural Officer Wardha, and the co-operation and Industries Officer, Zilla Parishad, wardha with a request that a wide publicity should be given to the notification by passing it on the them market yard and prominent places. It appears that no objections or suggestions were received to these notification and, therefore, a notification under sub-section (3) of Section 4 of the Marketing Regulation Act was issued by the Director on 23-9-1970 relating to the Marketing of Agricultural Commodities as specified in the notification with effect from the date of the publication of the said notification. Copies of this notification were also sent to the persons and the authorities to whom the copies of the first notification were sent. While issuing this notification as also the first notificationb, the Director was acting in exercise of the powers which were delegated to him by the State Government in the exercise of its powers under Section 58 of the Marketing Regulation Act by notification No. APM/1063/27543-C-1, dated september 15, 1967, published in part IV-B of the Maharashtra Government Gazette dated september 28, 1967. The Collector, wardha, then fixed an election programme for election of all the Agricultural produce marketing committees in Wardha District. There were, five Agricultural produce marketing committees and in each of these there were three constituencies, Viz., (1) Traders' constituency, (2) Village panchayats Constituency and (3) Co-operative societies Constituency. The programme of elections prepared by the Collector was that the last date for filing in the nominations was March 31, 1971. The publication of the list of nominations after scrutiny was to be made on April 5, 1971, the date of withdrawal was fixed as April 25, 1971; date of polling was fixed as May 3, 1971, the date of counting of votes was fixed as May 7, 1971 and the date of publication of the results was fixed as May 9, 1971. By a memorandum dated March 17, 1971, the date of the election was changed to May 5, 1971., but no change was made in the date of counting of votes or for declaration of the result.

2. The case of the petitioners in the petition is that the notification dated september 23, 1970 was issued without publishing the said notification in accordance with Rules 3 and 4 of the Maharashtra Agricultural produce Marketing (Regulation) Rules, 1967, hereinafter referred to as the Rules. A similar challenge to the notification under section 3 of the marketing regulation Act is made by the petitioners. The petitioners claim that they had no notice at all of the publication of the notification under sections 3 and 4 and these notifications were therefore, illegal and ultra vires the provisions of the Rules and of section 3 and 4 of the Marketing Regulation Act. Another ground on which the petitioners challenged the two notification issued by the Directors was that the notifications have been issued by the Director to whom the State Government could not have delegated its power under the Act. They claimed that they were entitled to contest the elections but could no do so because they had no knowledge of the notification as also of the programme of the elections fixed by the Collector.

3. It is not disputed in this petition either by the respondent No. 1, who is the Agricultural produce Market Committee, Arvi, or by other respondents, Viz., the collector, the Director, the State of Maharashtra and the Returning Officer for elections that the notification were not published in any newspaper. The marketing committee also admitted that the notification were not published in the Panchayat Offices. The Marketing Committee, however, contested the right of the petitioners to stand for the election since, according to the Committee, the last date for filing the nomination forms had already expired. The real contest is between the petitioners and the other respondets. The other respondents have stated that the maximum publicity was given to the two notifications. It was alleged on the basis of the information received from the District Deputy Registrar, Co-operative Societities, Wardha, that the Marketing Committee and the Tahsildar concerned had pasted the notification in question on notice boards of the Marketing Committee and in the chavdis in the villages in the area of operation and that the villagers in the villages concerned were also informed about the said notification by beat of drums. In addition to this, according to the contesting respondents, pamphlets were printed and supplied to the Gram Panchayats concerned for the purpose of wide publicity. It was, therefore, denied that the notifications were not published as required by Rule 3. In their return the respondents have also alleged that since no suggestions or objections were received after the first notification dated June 3, 1970 was published, no further inquiry was required to be made and the notification under Section 4 has been validly issued. They controverted the allegation that the petitioners did not know of the election programme and, according to the contesting respondents, the petitioners could have easily noticed the election programme which was sent to the various officers such as the Marketing Committee, Arvi, Pulgaon, Block Development Officers, Panchayat Samitit, Arvi and Karanja the same on their notice boards and that the programme was accordingly published. It was also alleged that the programme was published by pasting it on the notice boards of various offices in Marathi language and that the publication was made in accordance with the Act and the Rules. It is also denied that the Director did not have power to issue notification under Sections 3 and 4 of the Marketing Regulation Act.

4. We shall first take up the contention of the learned Counsel for the petitioners that the notification dated September 16, 1967 issued by the State Government delegating its powers to the Director is ultra vires the powers of the State Government, because under Section 58 of the Marketing Regulation Act, the power of the State Government could be delegated not to the Director but only to any officer other than the Director. This, according to the learned Counsel, is the only construction possible on the provisions of section 58 of the Act without doing violence to the language of section 58. The notification, which is challenged is as follows:

'In exercise of the powers conferred by section 58 of theMaharashtra Agricultural produce Marketing (Regulation) Act, 1963, (Mah, XX of 1964), the Government of the Maharashtra hereby delegates to the officers specified in column 1 of the Schedule appended hereto, the powers exercisable by the Director of Agricultural Marketing and Rural Finance, State of Maharashtra, under the said Act as specified against them in column 2 of the said schedule.'

Section 58, of the regarding the contruction of which, much debate has taken place, reads as follows:-

'The State Government, by notification in the Official Gazette, and subject to such conditions, if any, as it may think fit to impose, delegate all or any of the powers conferred upon it or on the Director to any other officer or person specified in the notification.' (underlining is ours).

It may be stated that by an Act No. 32 of 1970, which came into force on September 3, 1970, section 58 was amended by substituting the words 'upon it to the Director or any other officer or person;specified in the notification,' in place of the words interlined by us. The amended section now reads as follows: The state Government may, be notification in the official Gazette, and subject to such conditions, if any, as it may think fir to impose, delegate all or any of the powers conferred upon it to the Director or any powers of the Director, to any other officer or person, specified in the notification.'

5. Section 2 (f) of the Act defines the 'Director as meaning a person appointed as the Director of Agricultural Marketing and Rural Finance for the state of maharashtra. Even in this definition an amendment was made by an Act No. 32 of 1970 The amended definition now stands as meaning a person appointed as the Director of Agricultural Marketing for the State of Maharashtra.

6. Now, the contention of the learned Counsel for the petitioners is that the Section as it was originally framed and which alone falls for consideration before us, must be read as a whole and it if is so read, the only contruction which is possible is that the powers which are conferred upon the state Government can be delegated to an officer or a person specified in the notification but other than the Director. The contention is that the words 'to any other officer or person' clearly indicate that the intention of the legislature as disclosed by the words used in section 58 was that the power to delegate was to be exercised not in favour of the Director where the powers of the State Government were to be delegated but that they were to be delegated to an officer or person other than the director. Mr. Dhabe relies on certain principles of contruction of statutes to which a reference has been made by the supreme Court in shahadra (Delhi) Saharanpur Light Rly. Co. Ltd., V.S.S. Rly. Workers Union : (1969)ILLJ734SC . In paragraph 6 of the judgment, the supreme court has observed as follows:

'But the intention of the legislature, as observed by Lord Watson in Salomon V.A. Salomon and Co. Ltd., 1897 AC 22 'is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact.' It is well settled that the meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation and the primary duty of the court is to find the natural meaning of the words used in the context in which they occur, that context including any other phrase in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. In R.V. Wimbledon Justices, 1953-1 QB 380,Lord Goddard said; 'Although in construing an Act of parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there ................' similarly, in R.V. Mansel, Jones (1889) 23 QBD 29 Lord Coleridge said that it was the business of the courts to see what parliament had said instead of reading into an Act what ought to have been said. So too, in Latham V. Lafone (1887) 2 Ex 115, Martin B. said' 'I think the proper rule for construing this statute is to adhere to its words strictly; and it is my strong belief that, by reasoning on long drawn inferences and remote consequences, the courts have pronounced many judgments affecting debts and actions in a manner that the persons who originated and prepared the Act never dreamed of.' In the light of these principles we ought, therefore, to give a literal meaning to the language used by parliament unless the language is ambiguous or its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act.' Relying on these observation, it is contended that the grammatical and literal meaning should be given to the words 'to any other officer or person' and if such literal meaning is given, the provision clearly contemplates that the powers under the Act conferred upon the State Government could be delegated to any officer or person other than the Director.

7. Now, while there is no doubt that the principles which are set out by the Supreme Court are well settled it is also well settled that if the language is ambiguous or its literal sense gives rise to an anomaly or results in something which would defez the purpose of the Act, the statute is not required to be construed according to the literal meaning of the words as pointed out by the Supreme Court in the observations quoted above. We must ascertain from the provisions of section 58 as to what was the object of enacting that provision. It is obvious that section 58 was intended to provide for delegation of all or any of the powers conferred upon not only the State Government but also the Director. The intention to provide for delegation of powers of the State Government is manifest in the provisions of section 58 of the Act. The question is who ther this intention is achieved by snorting the section by giving the words therein their literal meaning. Now, so far as the provision relating to delegation of all on any power conferred on the Director is concerned, the wording of section 58 does not present any difficulty at all. As already pointed out above, the Director contemplated by section 2 (f) is an officer of the state Government and he is also defined as a person appointed as Director of Agricultural Marketing for the state of Maharashtra. It is clear that if the powers of the Director under the Act had to be delegated such powers could be delegated only to an officer or a person statute uses the words 'to any other officer or person' with reference to the delegation of the powers of the Director the officer or person contemplated thereby is an officer or person other than the Director. The use of the word 'other' always indicates that what is contemplated is something different from and not the same as the one in question where,therefore, section 58 uses the words 'any other officer or person', the word 'other' was issued in order to indicate that the officer or person to whom the powers are to be delegated would be an officer or person other than the Director though the same purpose could have been achieved even without using the word other. So far as this part of the section is concerned, there is no difficulty in construing it according to the well established principles of giving the words a literal meaning and following a grammatical contruction. we are, however faced with some difficulty when it has to be found out whether these words could be similarly construed with reference to the delegation of the powers of the state government as contemplated by Section 58. If the use of the word 'other' contemplates that the officer or the person on whom the powers are to be conferred is an officer or person other than the officer or person earlier named, then such a construction would lead to mean that the State itself was an officer or a person. It is apparent on reading of section 58 that the legislature could have made an independent provision enabling the State Government to delegate its powers without providing in the same provisions for the delegation of the powers without providing in the same provisions for tjhe delegation of the powers of the State Government and the Director. It is not disputed before us that S. 58 is a composite provision dealing with the delegation of powers of the State Government as also the powers which are conferred on the Director by the Act. If the section is read as enabling the State Government to delegate its powers in the manner as canvassed by the learned Counsel for the petitioners, the relevant part of the section will read as follows:

'The State Government may........... delegate all or any powers conferred upon it.......to any other officer or person specified in the notification.'

If so read, the effect of the section will be that the State Government will have to be treated as an officer in contradistinction with 'other officer or person' to whom the powers are to be delegated. It cannot be disputed that the State Government cannot be equated with an officer or a person as it is an independent entity itself. If the state Government cannot be equated with an officer, which is the only result possible if the literal meaning of the word 'other' is taken into account, then in our view, the words of the section do not give effect to the intention of the legislature. The result is that the very purpose for which section 58 was enacted is frustrated because the provisions relating to delegation of its powers by the state cannot become effective because the state is neither an officer nor a person in which sense alone the word 'it' can be construed. A rational construction of the section can be achieved only if the use of word 'other' is treated as superfluous. It is permissible to do violence to the words in a statute where applying the words of a statute literally would defeat the obvious intention of the legislation and produces an unreasonable result. Maxwell in his Interpretation of Statutes has observed in Chapter 10 has follows:-

'In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. 'An intention to produce an unreasonable result is not to be imputed to a statute if there is some other contruction available.' Where to apply words literally would 'defeat the obvious intention of the legislation and produce a wholly unreasonable result,' We must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction.'

We may also refer to a decision of Darling, J., in Rex V. Ettridge 1909 2 KB 24, in which while delivering the judgment of the court of Appeal, the learned Judge observed:

'We are of opinion that we may in reading this statute reject words, transpose them, or even imply words if this be necessary to give effect to the intention and meaning of the Legislature, and this is to be ascertained from a careful consideration of the entire statute.

The question in that case turned on a construction of the powers of the Court of Appeal in Section 4 of the Criminal Appeal Act, 1970 Section 3 of the Act provided that ' a person convicted on indictment may appeal under that Act to the court of criminal Appeal........ with the leave of the court of criminal Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.' sub-section (3) of section 4 of that Act provided as follows: 'On an appeal against the sentence the court of criminal Appeal shall, if they think that a different sentence ought to have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law, by the verdict......(underlining is ours) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal.'

The appellant before the court of criminal Appeal was a person who had pleaded guilty and the argument there was that since the judgment of conviction was pronounced without any verdict and was in consequence of the plea of guilty, the Court had no power to substitute any other sentence for the one which was quahed. The argument on behalf of the prosecution there was that the words 'by the verdict' may be rejected by the court and the statute read as though they were not ther. Darling, J., rejecting the contention of the accused, observed as follows:

'It appears to us unreasonable to place the Court of Criminal Appeal in the position of having either to leave the sentence untouched or to release the guilty person unpunished. No reason for making such a difference between the treatment of a person convicted on his own confession and that of one convicted bya jury has been suggested to us, not can we imagine one. Ig such difference were intended, it is nowhere affirmatively expressed, but it merely to be inferred from the presence in section 4, sub-section (3) of the words 'by the verdict'. Why these words are there we may guess unprofitably but cannot certainly say. They are not necessary to enable the court to pass a substituted sentence for one quashed where the appellant has been found guilty by a jury, and we cannot believe that they were deliberately inserted for the express purpose of disabling the court or limiting its power on the consideration of an appeal against sentence by one who has pleaded guilty. Yet, were we to hold that these words 'warranted in law by the verdict' do apply to a case in which sentence has followed on a plea of guilty, we could give them no other effect. Where there has been a verdict these words are plainly superfluous.

Where (as in this case) there has been no verdict they cannot be read in any way which would not defeat what was plainly the intention of the Legislature.'

The court of appeal thus held, ignoring those words, that even in a case where the appeal was by a person, who had pleaded guilty, after the sentence was quahed, the new sentence could be substituted.

8. The validity of the contention of the petitioners, therefore, ultimately turns on whether we can impute to the legislature the intention to make the delegation of the powers of the State Government impossible when the very purpose of the provision is to provide for such delegation. The purpose and the intention with which section 58 was framed, can clearly be achieved by leaving out of consideration the word 'other'. It is difficult for us to accept the contention that the Legislature had intended that the State Government could delegate its powers to any other officer or person except the Director, as contended by the learned counsel for the petioners, which. according to him, is alone the proper construction possible after giving the words their literal meaning. We cannot forget that the various provisions in the Act indicate that the legislature contemplated that most of the important functions under the Act were to be performed by the Director. Under Section 2 (2) of the Act, the Director has been empowered to decide whether a person is or is not an agriculturist for the purpose of the Act and his decision has been treated as final under the Act. Establishment of markets is one of the most important purposes of the Act and that power and duty is by Section 5 of the Act given to the Director. The Director has not only to establish a particular market, but he has also been given the power to establish subsidary markets. The power to grant licence, which is incidental to the regulation of the market, has been given to the Director in a case where the Market Committee has not started functioning. In a case where the market Committee grants or refuses to grant or renew the licence, or cancels the licence, the Director has been made an appellate authority to go into the correctness of the decision of the Market Committee. The duty of fixing the date of the first meeting of the Market Committee is also that of the Director under Section 15 (2) of the Act. Under section 16 (1) resignation of his office by the Chairman of the Market Committee has to be addressed to the Director. Under section 22 (2) date for the election meeting for the election of the Chairman and the Vice-chairman of the Market Committee has to be fixed by the Director and presided over by him or by some other person authorised by him in this behalf. Even the dispute with regard to the validity of an election of a chairman or the vice-chairman is to be decided by the Director in a case where he is the presiding officer. In any other case the officer presiding has to refer the dispute to the Director for decision. The decision of the Director, subject to an appeal to the State Government, is final. Section 29 indicates that he exercises control over the function of the Market Committee because the committees have to provide facilities for marketing of such agricultural produce as the Director may from time to time direct. Even the Market Committee has to obtain approval of the Director under Section 30 where the Market Committee appoints one or more sub-committees for delegating the powers of the Market Committee. Section 40 is an important section, which is to be found in Ch. VIII, which is headed as 'control' and the Director has been given wide and extensive powers for the supervision over the affairs of the Market Committee. There is an obligation on the officers, servants hand the members of the Market Committee to furnish all information to the Director where the affairs of the Market Committee are investigated. The Director is also empowered to make an order with regard to seizure of account books amended funds and property of the Market Committee under certain conditions. Under Section 56 (2), it is provided that no prosecution under the Act shall be instituted except by the Director or any officer authorised by him in that behalf or by the secretary or any other person duly authorised by the Market Committee in the behalf. A review of the different provisions of the Act clearly indicates that virtually the duty and the function of implementing the Act is vested in the Director. It is difficult to comprehend that when the provision with regard to delegation of the powers of the State Government was to be made, the legislature intended that the only one person who, under the Act, is entrusted with several important powers and function was to be deliberately left out and that the legislature intended that the powers of the State Government were to be delegated only to person other than the Director.

9. The learned Counsel appearing on behalf of the petitioners referred us to a decision of this court in State v. N.A. Rahimbhoy, : AIR1957Bom78 , in which a passage from Queen V. Bishop of oxford, (1879) 4 QBD 245 was quoted with approval. In that case it was observed that the Act ought to be so construed that no part of it became superfluous, void or insignificant. We have already referred earlier to the decision of the Supreme Court which is an authority for the proposition that if the language is ambiguous and its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act, it is permissible not to give a literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act, it is permissible not to give a literal meaning to the language used by the legislature. The construction, which we have adopted, does not affect the provision even so far as it relates to the Director. Even if we treat the word 'other' in the context of indicating the officer or person to whom the powers of the Directors are to be delegated as superfluous, the intention of the legislature is still effectively carry out out. While the use of the word 'other' no doubt indicates that the officer or person other than the Director was econtemplated, even without it the same meaning is alone possible on a plain and grammatical contruction, because if the powers of the Director are to be delegated, they must necessarily be delegated to a person other than the Director himself. The word 'other' in our view therefore must be held to be superfluous, because it is only then that effect can be given to the intention of the legislature. We are not, therefore, inclined to accept the contention of the petitioners that it was incompetent for the State to delegate its powers to the Director as was done by the impugned notification. Consequently, we must hold that the notification dated September 16, 1967 is not ultra vires the powers of the state Government and the impugned notification under Sections 3 and 4 of the Marketing Regulation Act cannot be challenged on the ground that they are issued by the Director without authority of law.

10. That brings us to the second contention raised on behalf of the petitioners. The contention is that the manner of publication of notification under Sections 3 and 4 of the Marketing Regulation Act has not been resorted to inasmuch as the notifications were not published in any of the newspapers, viz., Arvi Samachar and Arvi Times, which are published in Marathi from Arvi and in Tarun Bharat which is circulated widely in Arvi Tahsil. Similarly it is argued that the publication is not also made in the manner prescribed by Rule 3 of the rules. Since a reference to the relevant provisions of Section 3 and 4 and Rule 4 is necessary, we reproduce the relevant parts of those provisions. Section 3 of the Marketing Regulation Act reads as under:

'The State Government may, by notification in the Official Gazette, declare its intention of regulating the marketing of such agricultural produce, in such area, as may be specified in the notification. The notification may also published in the language of the area in any newspaper circulating therein, and shall also be published in such other manner as in the opinion of the State Government is best calculated to bring to the notice of persons in the area, the intention aforesaid'.

Section 4 reads as under;........A notification under this section may also be published in the language of the area in a newspaper circulating therein and shall also be published in such other manner as in the opinion of the State Government is best calculated to being to the notice of persons in the area the declaration aforesaid.

Rule 3 of the Rule is as follows:-

'A notification under section 3 declaring the intention of the State Government of regulating the marketing of any agricultural produce in any area specified in such notification and the notification under section 4 regulating the marketing of agricultural produce in any area shall, in addition to their publication in any newspaper circulating in any such area as required by that section, also be published by affixing copies thereof at the Chavdis of each village included in such area and by exhibiting them on the notice board in the office of the Mamalatdar, Tahsildar, Mahalkari or Naib Tahsildar and of the Panchayat samiti within whose jurisdiction such area is situated. The State Government shall also require a revenue Officer specified in this behalf to give wide publicity to the notification by beat of drums in any such area'.

Now, we may at the outset point out that there is no positive averment in the petition as to whether the petitioners have made any attempts to find out how and in what manner the notification under section 3 and 4 were published. We are not, therefore, inclined to go into the challenge to the notification on the ground of want of proper publication except to a limited extent, viz., whether failure to publish the notifications under section 3 and 4 in a newspaper would vitiate the notifications as contended on behalf of the petitioners. It is an admitted fact that the notifications were not published in any newspaper. Now, the provisions of sections 3 and 4 with regard to the publication of the notifications contemplated thereby are identical. The object of the provisions regarding the publication in section 3 and 4 of the Act is that the notifications under section 3 and 4 must come to the notice of the persons who are going to be affected there by in the area in which the notifications were to be operative. But it must be noted that in both the sections3 and 4, when publication in any newspaper in the area is contemplated, the legislature has advisedly used the words 'may also be published in the language of the area in any newspaper circulated therein.' In the same provisions while the word 'may' is used while referring to the publication in a newspaper, the legislature while providing for additional publication in such other manner as in ther opinion of the State Government is best calculated to being to the notice of the persons in the area, has used the word 'shall'

11. Both sections 3 and 4, while they make it obligatory on the state Government to publicise the notification, the manner of publication is left to the state Government. The State Government is required to publicise the notification in such manner as is best calculated to bring the notification to the notice of persons in the area to which the election relates. As contrasted with the provisions referring to the duty of the State Government of publishing the notification in such manner as it thinks best, the publication of the notification in the newspaper is not made obligatory. We cannot leave out of consideration the object of making the provisions with regard to publication. The object is to bring the notification to the notice of the public. This can be done in several ways. Publication of the notification in a newspaper is one of the ways, no doubt, but both Section 3 and 4 make it clear that while the State Government is required to publicise the notification in a manner other than by publication in the newspaper, importance is sought to be given to the manner of publication, which the State Government thinks will best serve the purpose of the publication. The provisions of Rule 3 of the Rules also do not assist the petitioners because even there the emphasis is one the publication by affixing copies of the notifications at the Chavdis of each village included in the area in question and by exhibiting them on the notice boards in the office of the Mamalatdar, Tahsildar, Mahalkari or Naib-Tahsildar and of the Panchayat Samiti within whose jurisdiction such area is situated. The rule, no doubt, mentions that this form of publication is to be made in addition to the publication in any newspaper. But the rule refers back to Section 3 and 4 where it states that the publication is to be made by the State Government in the manner referred to above in addition to the publication of the notifications in any newspaper on the notification any newspaper circulating in any such area as required by that section. If Sections 3 and 4 themselves do not make publication in a newspaper mandatory the rule cannot be construed as requiring something more to be done than what is provided in the section, especially when the reference is made to the manner of publication as required by Section 3 and 4. The rule 3 also requires that the State Government shall requires that the State Government shall be half to give wide publicity to the notification by beat of drums in any such area. It is well know that normally the large part of the agricultural population, which is illiterate, does not subscribe or read newspapers. The newspapers cater to a negligible section of the community who are only literate and if the purpose of publication is to bring to the notice of the persons affected by the notifications, then that would be best served by adopting the method of publication by which a large section of the village community can be reached. That is why it appears that it has been made obligatory on the State Government to find out for itself the best manner of publication possible and that is also why the provisions of Rule 3 have been made requiring the State Government to have the copies of the notification affixed on the notice boards in the office of the authorities specified under Rule 3, which are many a time visited by the agriculturists. Beat of drums is a known method of publication and that has always been found to carry the matters to be publicised to the villagers positive ly. The failure, therefore, of the state Government or of the Director to publish the notification in the newspapers name by the petitioners cannot vitiate the notification in any way. The petitioners are even silent with regard to the extent of the circulation of the newspapers referred to by them and there is nothing known about the extent of the circulation of those newspapers: in the return filed on behalf of the contesting respondents it ha been positively alleged that the notifications have nen published not only by beat of drums but by pasting them on the notice boards of the Marketing Committees and Chavdis in the Village in the area of their operation. It is also said that the pamphlets were printed and were supplied to the Gram Panchayats concerned for the purpose of wide publicity. We have already pointed out above that the petitioners are not in a position to make any positive statement switch regard to the nature of the publicity given to the notification in question. It is not their case that the notifications were not published at all, or that in some villages the notifications were not notified by beat of drums or by other methods referred to by the contesting respondents in their affidavit, It is not, therefore, possible to entertain the challenge on behalf of the petitioners that the notifications are vitiated on the ground that they have not been properly published.

12. The last contention which was sought to be raised was that the election programme framed by the Collector was not published in the manner laid down by R. 43 (2). Rule 43 (2) provides that the Collector shall, not less than 45 days before the date fixed for the poll, publish in Marathi the dates so appointed by means of a notice in a newspaper circulating in the market area and paste copies of such notice on the notice board of the Market Committee and in village chavdis and other conspicuous places in the villages included in the market area. In our view, this contention ha now become purely academic. The collector had fixed the date of polling as May 5, 1971, by his memorandum dated March 17, 1971. The election programme which was fixed by the collector has now become ineffective since the elections were stayed by this court vide order dated 29-4-1971. The Collector will now have to go through the procedure all over again of making out a fresh programme of election and it is not necessary to go into the contention whether the election programme originally notified is vitiated by any non-compliance with the provisions of Rule 43 (2) of the Rules, as alleged.

13. In the view which we have taken, the petition stands dismissed. It will now be open to the collector to hold elections after making out a fresh programme of elections. The petitioners shall apy the costs of the respondents 2 to 5 in one set. They shall also pay the costs of the respondent No. 1.

14. petition dismissed.


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