(1) JUDGMENT REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7974 OF 2009 1. Bhatu s/o. Devidas Patil, Age : 34 years, Occupation : Agriculture, R/o. Talwade, Taluka : Amalner, District : Jalgaon. 2. Ramkrishna s/o. Abhiman Patil, Age : 36 years, Occupation : Agriculture, R/o. Talwade, Taluka : Amalner, District : Jalgaon. .. Petitioners versus 1. The State of Maharashtra, Through the Secretary, Marketing Department, Mantralaya, Mumbai. 2. The District Deputy Registrar, Cooperative Societies, Jalgaon, District : Jalgaon. 3. Sau. Chhaya w/o. Anil Patil, Age : 30 years, Occupation : Household, R/o. Talwade, Taluka : Amalner, District : Jalgaon. .. Respondents. (2) .......................... Mr. V.D. Hon, Advocate, for the petitioners. Mr. S.G. Nandedkar, Assistant Government Pleader, for respondent nos.1 and 2. .......................... CORAM : B.R. GAVAI, J. DATE : 26TH NOVEMBER 2009. ORAL JUDGMENT : 1. By way of present petition, the petitioners have challenged the order dated 16th November 2009, passed by the District Deputy Registrar, Cooperative Societies, Jalgaon, vide which the names of the petitioners have been deleted from the voters' list of the Gram Panchayat constituency finalized for the elections of Agricultural Produce Market Committee, Amalner. 2. Mr. V.D. Hon, learned Counsel appearing for the petitioners, submits that the programme for holding general elections to the Agricultural Produce Market Committee, Amalner, was declared on 19th January 2009. He submits that vide the said programme, the eligibility date for enrollment in the electoral roll, in so far as members of the Grampanchayat is concerned, was notified as 12th November 2008. He submits that though the election was scheduled in the month of March, the same came to be postponed on account of elections to the Legislative (3) Assembly. He submits that subsequently, vide order dated 26th October 2009, another communication was issued by the District Deputy Registrar, respondent no.2 herein, regarding finalization of the voters' list. According to the said programme, the date which was fixed for taking objections was 5th November 2009. The date for deciding objections under Rule 36(10) of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as "the said Rules") was fixed on 16th November 2009 and the date for publication of final voters' list was fixed on 19th November 2009. It is submitted that though the names of the petitioners were included in the provisional voters' list vide order dated 16th November 2009, their names have been excluded and some other names have been included vide the impugned order. Mr. Hon, learned Counsel appearing for the petitioners, submits that since the cut off date, in so far as the Grampanchayat constituency is concerned, was 12th November 2008, the respondent no.2 has erred in deleting the names of the petitioners and including the new names. 3. Section 13 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (For short, hereinafter referred to as "the said Act") deals with "Constitution of Market Committees". The relevant portion of Section 13 of the Act is reproduced as under : " Subject to the provisions of sub-section (2), every Market Committee shall consist of the following members, namely : (4) (a) thirteen agriculturists residing in the market area (not being less than twenty-one years of age on the date specified from time to time by the Collector in this behalf), as specified below - (i) ................................................................. (ii) four (of which one shall be a person belonging to the Scheduled Castes or Scheduled Tribes and one shall be a person belonging to economically weaker section), shall be elected by members of the village panchayats functioning therein. " (Emphasis supplied) Perusal of Section 13(1)(a)(ii) would, therefore, reveal that four persons, one of which shall be a person belonging to Scheduled Castes or Scheduled Tribes and one of whom shall be belonging to economically weaker section, are to be elected to the Market Committee by the members of village panchayats. It can thus be clearly seen that the electoral college for electing a person from the said constituency, consists of members of the Village Panchayat functioning in the area of Agricultural Produce Market Committee. 4. Rule 36 of the said Rules deals with "Voters' list". The relevant Sub-Rules, for the purpose of the present petition, would be Sub- Rules 9 to 16, which read thus : (5) "36. Voters' list - (1) to (8) ....................................................................... (9) Every claim or objection shall be delivered or sent by post so as to reach the office of the Collector before the date fixed by the Collector in that behalf being a date not later than one month from the date of publication of the list. (10) The Collector, after hearing the evidence, if any, adduced on behalf of the parties and after further inquiry, if any, shall pass order on the claim or objection, and the order of the Collector relating to such claim or objection shall be final. (11) The Collector shall cause the lists to be amended in accordance with the orders passed under sub-rule (10) and shall cause them to be published finally in Marathi in such manner as he may deem fit. (12) If, after the final publication of the list of voters, under sub-rule (11), the Collector on application or otherwise, is satisfied after such inquiry as he deems fit that any entry or entries in the list is or are erroneous or defective in any particular respect, the Collector may cause a list of amendments to be prepared; and thereupon the provisions of sub-rules (3) to (11) shall apply in the case of such list in the like manner as they apply in the case of the list of voters. (13) Copies of such final lists including the final list of amendments and additions shall be made available for inspection and sale, in whole or in part in the offices of the Collector, the Market Committee and the Village Panchayat concerned or at any other place as the Collector may specify in this behalf. (6) (14) The final list as also the final list of amendments shall be republished under sub-rule (11) and shall remain in force and continue in operation as the list of voters for the purpose of any bye-election, until it is revised as provided by this rule. (15) Any persons whose name is not entered in the final list of voters as republished under sub-rule (14) may at any time but not later than 3 days before the last date for nomination apply to the Collector for inclusion of his name in the list. (16) On receipt of the application under sub-rule (15), the Collector shall, if satisfied that the applicant is entitled to have his name entered in the list, direct his name to be entered in the list and cause an amendment to the list to be prepared; and thereupon the provisions of sub-rules (13) and (14) shall mutatis mutandis apply to such amendments. " From the perusal of Sub-Rule 9 of Rule 36, it would reveal that a person is entitled to raise an objection to the Collector on the date fixed. Sub-Rule 10 requires the Collector, after making an inquiry, to pass order on the claim or objection. Sub-Rule 11 mandates the Collector to cause the list, after amendments carried out in accordance with the orders passed under sub-rule (10), to be published in Marathi, in the manner prescribed. Sub-Rule 12 further permits the Collector, even after publication of final list of voters', to carry out amendments in the voters' list, if he finds that any entry or entries in the list is or are erroneous or defective. Sub-Rule 13 requires such final list, including amendments and additions, to be made available for inspection and sale in the office of the Collector, the Market Committee and the Village Panchayat concerned. Sub-Rule 14 provides that the list so published under Sub- (7) Rule (11) shall remain in force and continue in operation as the list of voters for the purpose of any bye-election, until it is revised as provided by this rule. Sub-Rule 15 provides that any persons whose name is not entered in the final list of voters as republished under Sub-Rule (14), may at any time but not later than 3 days before the last date for nomination, apply to the Collector for inclusion of his name in the list. Sub-Rule 16 requires that if the Collector is satisfied that the person is entitled to have his name entered in the list, he shall direct inclusion of such person in the list and cause an amendment to the list to be prepared and thereupon the provisions of Sub-Rules (13) and (14) shall mutatis mutandis apply to such amendments. 5. As already discussed herein above, in view of provisions of Section 13 of the said Act, it is the members of the Grampanchayat who are entitled to elect a representative from that constituency. It is, therefore, clear that the basic qualification to be voter from the said constituency is to be a member of the Grampanchayat. In the present case, admittedly, after publication of provisional list of voters, there is change in the constituency of the Grampanchayat of which members were newly elected in the elections held on 26th March 2009. As already observed herein above, it is only the persons who are members of the Grampanchayat who are entitled to be voters from the said constituency. From the documents annexed with the petition, it is clear that the members who are elected in the elections held on 26th March 2009 had applied to the respondent no.2 for inclusion of their names and deletion of the names of earlier members. In view of subsequent elections held on 26th March 2009, the respondent no.2 has deleted names of the (8) petitioners and included the names of the persons who are elected. I find that the action taken by the respondent no.2 is totally in consonance with the provisions of the Act, read with Sub-Rule 10 of Rule 36 of the said Rules. 6. It can also be seen that in view of Sub-Rule 12 of Rule 36, even after the final list is published, the Collector is empowered to make corrections in the list, if any error or defect is found in a particular respect. Not only this, but Sub-Rule 15 of Rule 36 entitles a person whose name is not entered in the final list of voters as republished under sub-rule (14), to make an application as lat as 3 days before the last date for nomination. If the Collector is satisfied, the Collector is required to include name of such person in the voters' list. 7. I am, therefore, of the considered view that if there is change in the constitution of the Grampanchayat, by virtue of election, the persons who represent the Grampanchayat and who are entitled to vote would be in a position to make an application even after publication of final list of voters in view of Sub-Rule 12 of Rule 36 of the said Rules and even, as late as 3 days prior to the date fixed for nomination as provided under Sub-Rule 15. 8. Since the basic qualification to vote in the election, from the constituency concerned, is to be a member of the Grampanchayat, no error could be found with the approach adopted by the respondent no.2 in passing the order impugned in the present petition. The petition is devoid of any merit. (9) 9. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7974