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. 2 ... 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. 3 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 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. 5 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. 6 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. 7 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. 8 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, 9 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. 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 26 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 27 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 28 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 29 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.