1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.488 OF 2010 1. Babasaheb s/o Apparao Akat, Age: 47 years, Occ: Agriculture, R/o. Jai Bhavani Niwas, Station Road, Partur, Tq. Partur, District Jalna. 2. Bhujangrao s/o Narayanrao Dhumal, Age: 48 years, Occ: Agriculture, R/o. Shevga, Tq. Partur, District Jalna. 3. Sau. Sindhutai w/o. Bharatrao Bhumbar, Age: 32 years, Occ: Household, R/o. Yenora, Tq. Partur, Dist. Jalna. 4. Uddhavrao s/o Apparao Bidawe, Age: 45 years, Occ: Agriculture, R/o. Satona Bk, Tq. Partur, District Jalna. 5. Dineshkumar s/o. Ramvilas Holani, Age: 35 years, Occ: Business, R/o. New Mondha, Partur, Tq. Partur, Dist. Jalna. 6. Dnyaneshwarrao s/o. Uttamrao Late, Age: 38 years, Occ: Agriculture, R/o. Devala, Tq. Partur, District Jalna. 7. Suresh s/o. Annasaheb Solunke, Age: 38 years, Occ: Agriculture, R/o. Jai Bhavani Colony, New Mondha, Partur, Tq. Partur, Dist. Jalna. 2 8. Paraji s/o. Kauraji Mule, Age: 45 years, Occ: Agriculture, R/o. Pimparkheda, Post Watur, Tq. Partur, Dist. Jalna. 9. Sampatrao s/o. Ashruba Mule, Age: 50 years, Occ: Agriculture, R/o. Babultara, Tq. Partur, District Jalna. 10. Shrikrishna s/o. Dadarao Rajbinde, Age: 50 years, Occ: Agriculture, R/o. Shridhar Jawala, Tq. Partur, District Jalna. 11. Ankush s/o. Bhagoji Telgat, Age: 52 years, Occ: Agriculture, R/o. Old Partur, Tq. Partur, District Jalna. .. Petitioners Versus 1. The State of Maharashtra, Through Secretary, Marketing, Mantralaya, Mumbai. 2. The Director of Agricultural Marketing, Central Building, Pune, Tq. and Dist. Pune. 3. The Divisional Joint Registrar, Co-operative Societies, Aurangabad Division,Tq. & Dist. Aurangabad. 4. The District Deputy Registrar, Co-operative Societies, Jalna, Tq. & District Jalna. 5. The Assistant Registrar, Co-operative Societies, Partur, Tq. Partur, Dist. Jalna. 3 6. Mr. A.R. Puri, Assistant Registrar, Co-operative Societies, Ambad and Administrator, Agricultural Produce Market Committee, Latur, Partur, Tq. Partur, Dist.Jalna. 7. The Agricultural Produce Market Committee, Partur, Tq. Partur, Dist. Jalna Through its Secretary. .. Respondents WITH CIVIL APPLICATION NO. 1063 OF 2010 Raosaheb s/o Bhimrao Kaldate, Age: 58 years, Occ: Agriculture, R/o. Amba, Tq. Partur, District Jalna. .. Applicant Versus 1. Babasaheb s/o Apparao Akat, Age: 47 years, Occ: Agriculture, R/o. Jai Bhavani Niwas, Station Road, Partur, Tq. Partur, District Jalna. 2. Bhujangrao s/o Narayanrao Dhumal, Age: 48 years, Occ: Agriculture, R/o. Shevga, Tq. Partur, District Jalna. 3. Sau. Sindhutai w/o. Bharatrao Bhumbar, Age: 32 years, Occ: Household, R/o. Yenora, Tq. Partur, Dist. Jalna. 4 4. Uddhavrao s/o Apparao Bidawe, Age: 45 years, Occ: Agriculture, R/o. Satona Bk, Tq. Partur, District Jalna. 5. Dineshkumar s/o. Ramvilas Holani, Age: 35 years, Occ: Business, R/o. New Mondha, Partur, Tq. Partur, Dist. Jalna. 6. Dnyaneshwarrao s/o. Uttamrao Late, Age: 38 years, Occ: Agriculture, R/o. Devala, Tq. Partur, District Jalna. 7. Suresh s/o. Annasaheb Solunke, Age: 38 years, Occ: Agriculture, R/o. Jai Bhavani Colony, New Mondha, Partur, Tq. Partur, Dist. Jalna. 8. Paraji s/o. Kauraji Mule, Age: 45 years, Occ: Agriculture, R/o. Pimparkheda, Post Watur, Tq. Partur, Dist. Jalna. 9. Sampatrao s/o. Ashruba Mule, Age: 50 years, Occ: Agriculture, R/o. Babultara, Tq. Partur, District Jalna. 10. Shrikrishna s/o. Dadarao Rajbinde, Age: 50 years, Occ: Agriculture, R/o. Shridhar Jawala, Tq. Partur, District Jalna. 11. Ankush s/o. Bhagoji Telgat, Age: 52 years, Occ: Agriculture, R/o. Old Partur, Tq. Partur, District Jalna. 5 12. The State of Maharashtra, Through Secretary, Marketing, Mantralaya, Mumbai. 13. The Director of Agricultural Marketing, Central Building, Pune, Tq. and Dist. Pune. 14. The Divisional Joint Registrar, Co-operative Societies, Aurangabad Division, Tq. & Dist. Aurangabad. 15. The District Deputy Registrar, Co-operative Societies, Jalna, Tq. & District Jalna. 16. Mr. A.R. Puri, Assistant Registrar, Co-operative Societies, Ambad and Administrator, Agricultural Produce Market Committee, Latur, Partur, Tq. Partur, Dist.Jalna. 17. The Agricultural Produce Market Committee, Partur, Tq. Partur, Dist. Jalna Through its Secretary. .. Respondents ... Mr. D.J. Chaudhari, Advocate for petitioners. Mr. N.B. Khandare, Government Pleader, for respondents. Mr. V.D. Salunke, Advocate holding for Mr. V.A. Bagal, Advocate for the Intervenor. ... 6 CORAM : A.M. KHANWILKAR & S.S. SHINDE, JJ. DATE : 5TH FEBRUARY, 2010 PER COURT : (PER A.M. KHANWILKAR, J.) In terms of order dated 28th January, 2010 matter has been notified for final disposal. Rule. Rule made returnable forthwith. Heard Counsel for the parties including the Advocate for the intervenor. The intervenor claims to be an agriculturist residing in the jurisdiction of the respondent No. 7 Committee as well as voter of Grampanchayat Constituency of A.P.M.C. Partur. He claims that he is interested in contesting the proposed election of A.P.M.C. Partur. 2. By this petition, the petitioners have challenged the orders dated 14-01-2010 and 20-01-2010 passed by the respondent Nos. 1 and 4 respectively of appointment of Administrator on respondent No. 7 Committee. It is further 7 prayed that respondent Nos.1 and 2 may be directed to decide the proposals of the petitioners dated 28-07-2009 and 14-12-2009 pending with the respondents for granting extension to the petitioners to act as the members of respondent No. 7 Market Committee till the conclusion of election and further to grant extension to the petitioners in that behalf. It is also prayed that respondent No.4 be directed to complete the election process of respondent No. 7 Committee within period of two months without disturbing the election process. 3. The petitioners are the elected members of respondent No. 7 Market Committee. The election was held on 15-06-2004. Their term of office was to expire on completion of five years from the date of assuming office as elected members i.e. on 11-07-2009. Much before the term was to expire, respondent No. 7 passed Resolution on 06-01-2009 to hold the election to elect new members of the Managing Committee. On 8 28-04-2009, respondent No. 4 called voters list in respect of various Constituencies by issuing letters to various authorities. Respondent No. 5 directed respondent No. 7 to submit voters list vide letter dated 04-05-2009. Voters list was prepared on 02-06-2009 as per the direction of respondent No. 4 and submitted within specified time. It is also noticed that respondent No. 7 deposited expenses of Rs.50,000/- for election by way of advance on 10-06-2009. In other words, respondent No. 7 took all necessary steps for holding election before the expiry of the term of the present Committee but for some fortuitous circumstances beyond their control, the election could not be taken to its logical end, due to intervening circumstances such as Parliamentary and Assembly Elections. It is the case of the petitioners that neither the petitioners nor the respondent No. 7 can be blamed for the situation which has arisen, as all efforts were taken in right earnest for conducting election before the expiry of term in July 2009. 9 4. So much so, that since the election could not be held in time, proposals were submitted to respondent Nos. 1 and 2 to extend the term until election can be completed. The proposals were submitted on 28-07-2009 and 14-12-2009. However, no decision was taken by the appropriate authority on the said proposals. Instead, the impugned order came to be issued by the respondent No.1 on 14-01-2010, followed by another order 20-01-2010 by the respondent No. 4 whereby the appropriate authority has invoked powers under Section 15A of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (hereinafter referred to as the Act) and appointed respondent No.6 as the Administrator to manage the affairs of respondent No. 7 Agricultural Produce Market Committee on the ground that the term of office of the elected body has already expired. This action is challenged by way of present petition which was immediately filed and moved on 10 21-01-2010. On the same day, we passed the order directing the parties to maintain status quo. It is the case of the respondents that before the order was passed, the charge has already been taken over by the respondent No. 6 of the respondent No.7 Committee. 5. Besides the official respondents (Nos. 1 to 6), the present writ petition is resisted by the Intervenor who has filed application for Intervention through Advocate Shri. V.A. Bagal and is represented by the Counsel. The argument of the Intervenor is that once the term has expired and in absence of order extending the term, the only option available was to appoint Administrator. That is the regime prescribed by law. No other arrangement can be permitted. Our attention was invited to Section 15A of the Act in support of this argument. 6. It is not in dispute that the term of the present Committee expired on 11-07-2009. On 11 expiry of the term, in absence of extension of term, consequences under Section 15A ought to follow. Indubitably, Section 15A does not contemplate automatic cessation of office of the members of the Committee whose term has expired. It postulates that the competent authority is obliged to take recourse to the said provision and pass appropriate order. Until such order is passed, in law, the actions of the Committee whose term has expired would still be valid and binding as if taken by duly elected Committee. In as much as, the members of the Committee, shall, as from the date specified in the order, cease to hold and vacate their offices as members, by virtue of Section 15A(1)(a). 7. In the present case, however, we have noticed that respondent No. 7 submitted proposal for extension of the term highlighting the fact that the elections could not be held before the expiry of the term for no fault of the present Committee and for that reason, it was just and 12 proper to extend the term which can be extended upto a period of one year as provided by the second proviso under sub section 3 of Section 14 of the Act. The appropriate authority instead of first considering the said proposals, after lapse of about five months from the submission of the proposals proceeded to straightway appoint Administrator to take over the affairs of the respondent No. 7 Committee. Section 14 of the Act is of some relevance for considering the controversy at hand. We are concerned with Section 14(3) which provides that except as otherwise provided in the Act, the members of the Market Committee shall hold office for a period of five years - as is applicable to the present case. Second proviso under the said sub section, however, stipulates that where the general election of members of a Committee could not be held "for the reasons beyond the control of the Committee" before expiry of the term of office of its members, the State Government may, by order in the official Gazette extend the term 13 of the office of any such Committee which can be upto a period of one year in the aggregate. This is obviously an enabling provision. It bestows power in the respondent No. 1 to extend the term of the Committee in specified situation. That power is coupled with duty to act in time and decide justly and reasonably. If the State Government were to consider the proposals submitted by the petitioners, to respondent Nos.1 and 2, the period of present Committee could be extended maximum upto 10th July 2010. However, the proposals were kept pending by the appropriate authority for reasons best known to it. Instead, the impugned orders came to be issued to appoint the Administrator to take over the affairs of respondent No. 7 Committee. On conjoint and harmonious reading of Second proviso under Section 14(3) and Section 15 of the Act, the appropriate authority had at least two different options to deal with the present situation. For, it is not the case of the authority or for that matter the 14 intervenor that the present members of the Committee were responsible for not holding the election of the Committee before the expiry of their term. On the other hand, the material on record would go to show that respondent No. 7 commenced the exercise of conducting the election well in advance, as back as on 06-01-2009. The fact that the election could not be held due to intervening Parliamentary and Assembly elections, is also not in dispute. There is nothing on record or brought to our notice by the official respondents or the Intervenor, which would remotely suggest that there was any allegation of mal-administration or mis-feasance committed by the members of the present Committee. In such a situation, ordinarily, the appropriate authority ought to favourably consider the proposal for extending the term of the present Committee by invoking the second proviso under Section 14(3) of the Act. Assuming that the appropriate authority was inclined to appoint the Administrator, it 15 was open to it to appoint the present members as the Board of Administrators, instead of appointing the respondent No. 6 as the sole Administrator. In other words, more than one option was available to the appropriate authority in the fact situation of the present case. Obviously, none of these options have been considered and the appropriate authority straightway proceeded to appoint the sole Administrator to look after the affairs of the Committee. That cannot be countenanced more particularly when no reason is stated in the impugned order or for that matter any contemporaneous record to justify one of the particular mode amongst the available modes. 8. In our opinion, in law, the approach of the appropriate authority in issuing the orders dated 14-01-2010 and 20-01-2010, therefore, cannot be sustained, in the fact situation of the present case. In the circumstances, this petition ought to succeed. We would however, 16 leave it open to the appropriate authority to consider the course of either extending the term of the present Committee upto one year, from the date of expiry of the term which event has occurred on 11-07-2009. In the alternative, it will be open to the appropriate authority to resort to the dispensation of the Board of Administrator, of which members of the present Committee can be continued as members of that Board. The impugned decision is set aside and instead it is left open to the appropriate authority to pass orders as may be advised in accordance with law, on the proposals submitted by the petitioners dated 28-07-2009 and 14-12-2009 or to appoint the Board of Administrators, as the case may be. That be done within Ten days from today. Further, the respondents would be obliged to ensure that the election of respondent No.7 is conducted expeditiously, irrespective of the nature of further order that would be passed by the appropriate authority. It will be obligatory for 17 the authority to ensure the election programme is notified as per the statutory requirement since the final voters list has already been published on 22-01-2010. The Government Pleader appearing for the official respondents, on instructions, stated that it will be possible to conclude the election within two months from today. This assurance is accepted. 9. Learned Counsel for the petitioners invited our attention to the controversy regarding taking over of the charge by the respondent No. 6. According to the petitioners, charge is still retained by the existing committee as it has not been formally handed over to respondent No. 6. According to respondent No. 6, charge was taken in the morning session of 21-01-2010. On instructions, learned Government Pleader stated that respondent No. 6 has issued circular that he has taken over the charge of the respondent No. 7 Committee. We are afraid, it is not possible to countenance such a stand. We 18 are informed that there are no rules regarding the procedure for taking over the charge by the Administrator. Even so, to observe fairness while taking over charge, respondent No. 6 ought to have in the first place called upon the Secretary to hand over the charge to him and upon his refusal, taken appropriate steps as would be necessary. But the respondent No. 6 cannot be heard to say that he can unilaterally declare that he has already taken over the charge. Taking over charge of the office and affairs of the Committee is a matter of moment and a formal event which has to be completed by adhering to the process of formal taking over and handing over of the keys and records of the Committee. That procedure obviously has not been followed in the present case. Assuming there are no rules framed regarding the procedure for taking over charge, the analogy of mechanism provided in section 26 of the Act could have been observed by respondent No.6 if the office bearers were to refuse to hand over 19 charge of their office inspite of being called upon to do so. Accordingly, we are of the view that the charge, in law, still continues with the present Committee which was in office at the relevant time. In that view of the matter, the order of status quo passed on 21-01-2010 will enure in favour of present Committee. In other words, the present Committee could legitimately continue to discharge its activities, however, shall not take any policy decision for a period of Ten days from today during which time, the appropriate authority is expected to issue necessary directions as may be advised. Subject to issuance of such directions, the affairs of the Committee should be administered as indicated by the appropriate authority. 10. Accordingly, this petition succeeds on the above terms. Rule made absolute on the terms indicated above. 11. In view of the above order, even 20 Intervention Application stands disposed of. ( S.S. SHINDE, J. ) ( A.M. KHANWILKAR, J.) sut/FEB10/wp488.10