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Vinayakrao Mahadeo Rao Kaore and ors. Etc. Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petn. Nos. 1215, 1216 and 1290 of 1984
Judge
Reported inAIR1985Bom94; 1984MhLJ910
ActsMaharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 - Rule 41 and (41(1); Maharashtra Agricultural Produce Marketing (Regulation) (Amendment) Rules, 1984; Maharashtra Agricultural Produce Marketing ( Regulation) Act, 1964 - Sections 14 and 60; Constitution of India - Article 245
AppellantVinayakrao Mahadeo Rao Kaore and ors. Etc.
RespondentState of Maharashtra and anr.
Appellant AdvocateD.K. Deshmukh,;V.A. Naik and;V.G. Palshikar, Advs.
Respondent AdvocateM.M. Gadkari, Adv., ;Deshbhratar, A.G.P. and;W.W. Sambre, Govt. Pleader
Excerpt:
.....non-payment of dues of a co-operative society a disqualification or being elected as a member of market committee, was illegal, void and inoperative. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the..........and to provide for purposes connected with the matters aforesaid'. under section 11, the state government has to establish a market committee for each market area for regulating the marketing of different kinds of agricultural produce. section 29 defines the powers and duties of such committees. sub-section (1) of section 13 lays down the constitution of market committee. clauses (a), (b) and (c) of that sub-section specify categories of elected members and the mode of their election. they show that elected members of the market committee consist, amongst others, of ten agriculturists residing in the market area, 'seven of whom shall be elected by members of the managing committees of the agricultural credit societies and multipurpose co-operative societies within the meaning.....
Judgment:

Ginwala, J.

1. The petitioners in these three petitions, who are members of various Agricultural Produce Market Committees constituted under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (hereinafter referred to as 'the Act'), challenge the validity of cl. (k) of sub-rule (1) of R.41 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as 'the Rules') as they stand disqualified under that clause. These three petitions, therefore, can be disposed of by a common judgment.

2. In order to appreciate the controversy involved in these petitions, it would be convenient at this stage to refer to relevant provisions of the Act and the Rules. The preamble of the Act states that it has been enacted 'to regulate the marketing of agriculture and certain other produce in market areas and markets to be established therefor in the State and to confer powers upon Market Committees to be constituted in connection with or acting for purposes connected with such markets and to establish Market Fund for purposes of the Market Committees and to provide for purposes connected with the matters aforesaid'. Under section 11, the State Government has to establish a Market Committee for each market area for regulating the marketing of different kinds of agricultural produce. Section 29 defines the powers and duties of such committees. Sub-section (1) of Section 13 lays down the constitution of Market Committee. Clauses (a), (b) and (c) of that sub-section specify categories of elected members and the mode of their election. They show that elected members of the Market Committee consist, amongst others, of ten agriculturists residing in the market area, 'seven of whom shall be elected by members of the managing committees of the agricultural credit societies and multipurpose co-operative societies within the meaning of the Maharashtra Co-operative Societies Act, 1960, and the rules made thereunder, functioning in the market area and these shall be elected by members of village panchayats functioning therein'. Besides this, three members are elected by traders and commission agents holding licences to operate as such in the market area. The Chairman of the Co-operative Society doing business of processing or marketing of agricultural produce in the market area is one of the members. In his absence its representative has to be elected by its managing committee. In case there are more than one such co-operative societies functioning in the market area, the Chairman of anyone of them or in his absence a representative elected by the managing committees of such societies, becomes a member. Rest of the members of the Market Committee are ex-officio members. Sub-section (1) of S. 14 provides that the members shall be elected in the manner prescribed by rules. It further states that such rules may provide also for the determination of constituencies, the preparation and maintenance of the list of voters, persons qualified to be elected, disqualifications for being chosen as, and for being a member, the right to vote, the payment of deposit and its forfeiture, the determination of election disputes and all matters ancillary thereto including provisions regarding election expenses. Section 60 confers powers on the State Government to make rules for carrying into effect the purposes of the Act. Clause (d) of sub-section (2) of Section 60, in particular, empowers the State Government to make rules under section 14 for prescribing the manner in which members may be elected including all matters referred to in that section. In exercise of the powers conferred by sub-sections (1) and (2) of Section 60 of Act, the State Government framed the rules called Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967. Rule 41 thereof, which appears to have been added on 5th August, 1971, was in the following terms before clause (k) was added to it :

'41. Disqualification of membership.-(1) A person shall be disqualified for being chosen as, or for being, a member of a Market Committee -

(a) If he has been convicted by a Court in India of any offence and sentenced to imprisonment for a term exceeding six months unless such disqualification has been removed by an order of the State Government;

(b) if he has not attained the age of 21; or

(c) if he is of unsound mind and stands to be declared by a competent court; or

(d) if he is an undischarged insolvent; or

(e) if he is a deaf-mute; or

(f) if he has failed to pay any fees or charges due to the Market Committee; or

(g) if he is a servant of the Market Committee or holds a licence from such committee other than that of a trader or commission agent; or

(h) if he has directly or indirectly or by his partner any share or interest in any contract or employment with or on behalf of or under the Market Committee; or

(i) if he has committed breach of the Act or the rules or bye-laws made thereunder more than once; or

(j) if he has failed to make payment to any seller or his commission agent within 24 hours from the date on which a written demand was made in that behalf by such seller or his commission agent.'

Clause (k), which has been added by the Maharashtra Agricultural Produce Marketing (Regulation) (Amendment) Rules, 1984 made on 8th March, 1984, in exercise of the powers conferred by sub-section (1) and clauses (d) and (u) of sub-section (1) of S. 14 of the Act, is in the following terms :

'(k) if he is in default any society within the meaning of cl. (27) of S. 2 of the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), in respect of any loan, advances or dues from him, either as a borrower or as a surety, for such period as is specified in this behalf in the bye-laws of the concerned society, or for a period exceeding three months, whichever is less.' It is this clause which is under challenge in these petitions.

3. Apart from contending that cl. (k) cannot disqualify the existing members since they had no opportunity to pay dues of the co-operative societies concerned to save themselves from being disqualified the petitioners contend that the addition of the clause itself is illegal and beyond the rule making power of the State Government. It is submitted that the rule making power conferred on the State Government by the Act must be exercised in consonance with and in conformity with the provisions thereof and in keeping with the very object and scheme of the Act. It is contended that the Act has been, as seen above, put on the Statute Book with the avowed object of regulating the marketing of agricultural and certain other produce in market areas and for other ancillary purposes and any rule which is made under the power conferred by the Act must subserve this object and purpose and cannot travel beyond it. It is urged that the fact that a member of the Market Committee is in default to any co-operative society in respect of any loan, advances or dues from him can have no bearing whatsoever on his discharging his duties as a member of the Market Committee and cannot conflict with his function as such. It is argued that if non-payment of dues of local authorities or Government is not taken as disqualification for being member of the Market Committee, there is absolutely no reason why mere non-payment of dues of a co-operative society should be made disqualification for being such member. It is submitted that the provision incorporated in the clause under challenge is not only arbitrary but unreasonable and travels beyond the rule making power conferred on the State Government by the above said provisions of the Act. Sub-section (1) of S. 14 confers powers on the State Government to make rules, amongst others, for providing disqualifications for being chosen as, and for being a member of the Market Committee. Sub-section (1) of S. 60 lays down that the State Government may, by notification in the Official Gazette, make rules for carrying into effect the purposes of the Act. Sub-section (2) specifies the matters in particular in respect of which the State Government may make rules without prejudice to the generality of the provision contained in sub-section (1). As seen above, the purpose of the Act as indicated by the preamble and the various provisions and scheme of the Act, is to regulate the marketing of agricultural and certain other produce in market areas and markets to be established in the State. It would, therefore, appear that any rule which may be made by the State Government has to conform to the purpose and scheme of the Act. The legislature has delegated the power to the State Government to make rules. The power is not so wide as to include making any rule which does not subserve the purpose of the Act. Sub-section (1) of S. 60 specifically confers the power to make the rules 'for carrying into effect the purposes of' the Act. Hence any rule effect the purposes of the Act. Hence any rule made by the State Government in the purported exercise of the rule making power will have to be adjudged for its validity, keeping in view the object and purpose of the Act. As held by the Supreme Court in Board of Directors of Andhra Pradesh Co-operative Central Land Mortgage Bank Ltd. v. Chittoor Primary Co-operative Land Mortgage Bank Ltd., : [1974]3SCR440 , the rule making power conferred on the Government for carrying out all or any of the purposes of the Act must be confined to such of the purposes as are enumerated or indicated in the preamble or in any of the provisions of the Act. In Kerala State Electricity Board v. Indian Aluminium Co. Ltd., : [1976]1SCR552 , the Supreme Court has gone on record to say that notwithstanding the subordinate legislation being held on the table of the House of Parliament or the State Legislature and being subject to such modification, annulment or amendment as they may make, the subordinate legislation cannot be said to be valid unless it is within the scope of the rule-making power provided in the statute. Hence before a rule is held valid, it must answer the test as to whether it is made for carrying out the purposes of the Act.

4. A close scrutiny of the various statutes dealing with election matters would reveal that the object of prescribing disqualifications for being chosen or for being a member of an elected body is to ensure that only those persons who are competent to hold the office and whose personal interest will not conflict with their duty as a member are elected. It is with this end in view that disqualifications on account of age, previous convictions, unsoundness of mind, insolvency and the like are prescribed in so far as the capacity and competency of such persons are concerned. Similarly disqualification like being in service of the elected body, owing dues to it or being a party to a subsisting contract with it are prescribed o ensure that duty does not conflict with interest. In a democratic set up every citizen has a right to represent the people on elected bodies. Curtailment of this right has to be kept to the minimum and has to the confined to the object of seeing that person capable of discharging duties as members are elected. In other words, there must be nexus between the disqualification and the function which such person would be called upon to discharge on his being elected. Any disqualification which has no such nexus is bound to be held as arbitrary.

5. Disqualification specified in clauses (a) to (j) in sub-rule (1) of R. 41 have been prescribed with this object in view. Clauses (a) to (d) would indicate that the disqualifications specified therein are related to the incapacity or incapability of the person concerned to work as a member. Clauses (f) to (j) are inserted as any person answering the descriptions in these clauses would be unable to discharge his functions disinterestedly as his duty as a member would conflict with his interest as an individual. Now prima facie this cannot be said in so far as cl. (k) is concerned. One can understand a person who owes anything to the Market Committee being disqualified because in that case his interest would conflict with his duty and he may try to postpone the payment of the dues by utilising his office as a member, but it is difficult to see why failure to pay the dues of a Co-operative Society by any person should make him disqualified for being member of the Market Committee, particularly when any such failure has no relation whatsoever with the Market Committee. The only ground which has been advanced in support of the rule by the learned counsel for the respondent is that some of the members have to be elected by members of the managing committees of agricultural credit societies and multipurpose co-operative societies and one has to be Chairman of co-operative society doing business of processing or marketing of agricultural produce in the market area. It is submitted that if these members are connected with the co-operative movement, it is but necessary that they must have clean record of advancing the movement and they themselves should not be guilty of being defaulters in payment of their dues. It is difficult to uphold this contention firstly because the impugned provision does not confine itself to the seven members who are to be elected by members of the managing committee of the agricultural credit societies and multipurpose co-operative societies or to the Chairman of the co-operative society doing business in the market area. The clause embraces even the three members who are to be elected by the members of the Village Panchayats and three who are to be elected by traders and commission agents. The clause is all pervasive. Now it does not stand to reason as to why three agriculturists who are to be elected by the members of the village panchayats and three persons who are to be elected by traders and commission agents should be disqualified simply because they have failed to pay their dues to the co-operative societies concerned within the specified time particularly when the payment of dues even of any local authority or the Government is not made a disqualification. The impugned clause on the face of it and in the light of the provisions of the Act appears to travel beyond the limits of rule-making power of the State Government as it cannot be said to have been made for carrying into effect the purposes of the Act which as seen above are to regulate the marketing of agricultural produce and markets to be established therefor. We, therefore, conclude that cl. (k) has to be struck down on this ground.

6. In the result, the petitions are allowed and it is hereby declared that Cl. (k) of sub-rule (1) of R. 41 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 is illegal, void and inoperative. Rule is made absolute in Writ Petition No. 1215 of 1984 in terms of prayer clauses (A). (B) and (B1), in Writ Petition No. 1216 of 1984 in terms of prayer clauses (A) and (B) and in Writ Petition No. 1290 of 1984 in terms of prayer clauses (a) and (b). In the circumstances of the case, there shall be no order as to costs.

7. Petitions allowed.


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