1 wp 5711.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5711 OF 2011 Shri Sai Vividh Karyakari Seva Sahkari Sanstha Maryadit, Through Chairman Madhav S/o Bhiva Babar and others .. Petitioners Versus The State of Maharashtra and others .. Respondents Shri Sandeep S. Deshmukh, Advocate for Petitioners. Shri K. B. Choudhari, A.G.P. for Respondent Nos. 1 to 4. Shri V. D. Hon, Advocate h/f Shri N. V. Gaware, Advocate for the Intervenor. WITH WRIT PETITION NO. 5910 OF 2011 Paresh Annasaheb Wable and others .. Petitioners Versus The State of Maharashtra and others .. Respondents Shri Sachin S. Kotkar, Advocate for Petitioners. Shri V. G. Shelke, A.G.P. for Respondent Nos. 1 to 4. 2 wp 5711.11 CORAM : S. V. GANGAPURWALA, J. DATE : 11TH AUGUST, 2011. PER COURT : . Both the petitions involve a common question of law and as such, are decided together. 2. The petitioners are the registered Co-operative Societies registered under the Maharashtra Co-operative Societies Act 1960. The petitioners in Writ Petition No. 5711/2011 were registered on 31.05.2011 and 09.06.2011, whereas the petitioners'/society in Writ Petition No. 5910/2011 were registered on 06.06.2011. 3. The respondent No. 3 published a notification on or about 01st July, 2011 declaring the election programme for finalization of voters list for the Agricultural Produce Market Committee, Shrigonda, Dist. Ahmednagar under the provisions of the Maharashtra Agricultural Produce Marketing (Development and Regulations) Act 1963 (hereinafter referred as the "Act of 1963" for the sake of brevity). The voters list was published on 02nd July, 2011. The last date for raising objection was 18.07.2011. The final voters list is to be published on 08th August, 2011. As per the said programme, on 02nd July, 2011 the voters list 3 wp 5711.11 pertaining to the Co-operative Societies Constituency came to be published. The names of the petitioner society its members of the managing committee did not appear in the said voters list. The petitioners raised an objection before the respondent No. 3. One Rajendra Nagwade also raised an objection for the inclusion of name of petitioners. The respondent No. 3 rejected the objection of the petitioners in Writ Petition No. 5711/2011 vide its order dated 28.07.2011 and held that the petitioners names cannot be included in the voters list. Whereas, no specific order was passed in respect of the petitioners in Writ Petition No. 5910/2011. The petitioners have assailed the said orders in the present writ petitions. 4. Shri S. S. Deshmukh, the learned counsel for petitioners in Writ Petition No. 5711/2011 during the course of his erudiate arguments canvased the following propositions : a) The cut off date fixed by the Returning Officer was 28.02.2011. It was erroneous on the part of the Returning Officer to reject the application solely on the ground that the petitioners societies were registered after the said date. The Returning Officer did not consider the proviso to Rule 36(2) of the Maharashtra Agriculture Produce Marketing (Development and 4 wp 5711.11 Regulations) Rules 1967 hereinafter referred to as Rules of 1967 for sake of brevity. Proviso to Sub Rule 2 to Rule 36 will have to be read along with other Sub Rules of Rule 36. b) While interpreting proviso to Sub Rule 2, Sub Rules 10, 11, 14 and 15 cannot be lost sight. The same will have to be considered. Reading of these sub rules of Rule 36, it is clear that the Returning Officer can amend/revise the voters list at any time prior to 3 days of the last date of filing of nomination paper. For the said purpose, the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Bhatu Devidas Patil and another Vs. State of Maharashtra and others reported in 2010 (Supp.) Bom. C. R. 827. c) The Act does not lay down any prohibition on the right of the societies to take part in the election of the A. P. M. C. from the Co-operative Societies Constituency. It does not lay down any lock in period. When the statute does not lay down any restriction, then interpreting proviso to Sub Rule 2 of Rule 36 of Rules of 1967 in any other manner so as to enable only those Co- operative Societies registered before the cut off date would not be inconsonance with the right envisaged under the Act in respect of the Co-operative Societies. 5 wp 5711.11 d) The word 'may' appearing in proviso to Rule 36(2) of the Rules of 1967 will have to be interpreted as mandatory. The same cast duty on the Returning Officer to revise the list in cases of contingencies such as Co-operative Societies been enrolled after the cut off date. The learned counsel relies on the judgment of the Apex Court in a case of Ambica Quarry Works, etc. V. State of Gujrat and others reported in AIR 1987 S. C. 1073(1) and further contends that the enabling words are always compulsory, where the words were to effectuate a legal right. e) The learned counsel further contends that power given to the Returning Officer under the proviso to Sub Rule 2 of Rule 36 is coupled with the duty and he has to exercise the powers when he is called upon to do so. In the present case, as the petitioners were enrolled after the cut off date and there was no embargo on their right to vote, then in such circumstances, it was imperative for the Returning Officer to revise the list. The object of giving said power of revising the list was to enable such societies to exercise right to vote. f) Though the word may, may sound like giving discretion to 6 wp 5711.11 the Returning Officer, still the same will have to be interpreted as shall as it is referable to the duty of the Returning Officer. The learned counsel relies on the judgment of the Apex Court in a case of State of Rajsthan and others Vs. Hari Shankar Rajendrapal reported in AIR 1966 S. C. 296. g) It is further contended by the learned counsel that the use of word may or shall is not a conclusive. The same will have to be interpreted with regard to the legislative intent, the scheme of the Act, purpose and object underlying the provisions. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of Bachahan Devi and another Vs. Nagar Nigam, Gorakhpur and another reported in (2008) 12 S. C. C. 372. Shri Deshkumh, the learned counsel submits that the intention of the legislation in providing proviso is to enable the Co-operative Society registered or enrolled after the cut off date to be given an opportunity to vote. If the same is not interpreted in that manner, then it would render the proviso redundant . h) The Sub Rule 15 of Rule 36 will also have to be considered. Sub Rule 15 of Rule 36 permits that the name of any person can 7 wp 5711.11 be included in the voters list, even 3 days before the last date of filing nomination i. e. even after publication of final voters list. When inclusion in the name of voters list is permissible as late as three days prior to the last date of filing nomination, then there is no reason for not including the name of the petitioner society in the voters list, even prior to the finalization of the voters list. Sub Rule 15 and proviso to Sub Rule 2 of Rule 36 will have to be read together and all these provisions will have to be read harmoniously. i) The petitioners are eligible to be included in the voters list and allowed to take part in the election of the A. P. M. C. 5. Shri V. D. Hon, the learned counsel holding for Shri N. V. Gaware, the learned counsel for the intervenor with all his persuasive skill submits that : i) The scheme of Rule 36 in totality will have to be considered. Proviso will have to be read in consonance with the main Rule. ii) Proviso cannot be read in isolation. The same would be subject to sub Rule 2 of Rule 36. 8 wp 5711.11 iii) If the scheme of Rule 36 is perused, then Sub Rule 2 gives power to the Returning Officer to revise the list at least six months before the General Elections are due that would be laying down cut off date. Proviso to said Sub Rule 2 gives the discretion to the Collector to direct the revision of such list at any other time before any General Election is due. That discretion given under proviso cannot be read in such a manner that it would override sub Rule 2. The provisions up to Sub Rule 6 of Rule 36 are to the extent of publication of provisional list. Thereafter, the objections can be taken to the said list and the same has to be decided under Sub Rule 7 to 10 and thereafter the final list is published. The inclusion of name in the list 3 days prior to the filing of nomination as provided in Sub Rule 15 of Rule 36 would be in respect of those persons who are eligible to vote as on the date of the publication of the list, but their names are not included and no further. The petitioners were enrolled much subsequent to the cut off date and as such, their names are rightly not included in the voters list. 6. Shri Choudhari, the learned Assistant Government Pleader also submits that, the petitioners' names are rightly not included in the voters list as they were not enrolled nor were 9 wp 5711.11 constituted as on the date when list was revised by the Returning Officer. 7. Before adverting to the arguments advanced by the learned counsel for respective parties, it would be appropriate to refer to the relevant provisions and the Rules relied by the learned counsel. The Maharashtra Agricultural Produce Marketing (Development And Regulation) Act, 1963, 1. ............. 2. ............. 14. Election and term of office of members : (1) Subject to the provisions of sub-section (2), the members shall be elected in the manner prescribed by rules. 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. (2) If for any reason any person, co-operative society or its managing committee or a 10 wp 5711.11 Panchayats Samiti or local authority fails to elect any members, the Director shall give notice in writing to them requiring them to elect members within one month from the date of the notice; and on the failure again to elect members within the aforesaid period, the Director shall appoint on behalf of such persons, co-operative society, committee, Panchayat Samiti or the local authority the required number of persons who are qualified to be elected under sub section (1) [or (1A)] of section 13. (3) Except as otherwise provided in this Act, the members of a Market Committee (not being a Committee constituted for the first time) shall hold office for a period of [five years], and the members of a Committee constituted for the first time shall hold office for a period of two years : [Provided that, the Market Committee constituted for the first time, may be replaced by the Government and the new Committee so replaced shall hold office for the remainder of the period:] [ [Provided further that], where the general election of members of a Committee could not be held for reasons beyond the control of the Committee before expiry of the term of office of its 11 wp 5711.11 members as aforesaid, the State Government may, by order in the Official Gazette, extent from time to time, the term of office of any such Committee, so however, that the period for which the term of office is so extended shall not exceed the period of one year in the aggregate.] [(3A) Where due to scarcity, draught, flood, fire or any other natural calamity or rainy season or any election programme of the State legislature or the Parliament or a local authority, coinciding with the election programme of any Market Committee or such other special reason, in the opinion of the State Government, it is not in the public interest to hold elections to any Market Committee, the State Government may, notwithstanding anything contained in this Act or in any rules, or bye-laws made thereunder, or any other law for the time being in force, for the reasons to be recorded in writing, by general or special order, postpone the election of any Market Committee for a period not exceeding six months at a time which period may further be extended, so however, that the total period shall not exceed one year in the aggregate.] [(4)(a)As soon as possible, after the result of 12 wp 5711.11 any by-election or, subject to the provisions of sub-clause (b), all the results of the general election, are available, the Collector [or, as the case may be, the District Deputy Registrar, who has conducted the elections] shall publish or caused to be published the names or names of, elected members or members of a Committee in the Official Gazette and also in a newspaper in the Marathi language circulating in the market area. The publication of the name or names in a newspaper as aforesaid shall, for the purposes of this section, be deemed to be sufficient publication of the name or names of the elected member or members of the Market Committee. (b) If at a general election the names of any persons to be elected under sub-section (1) or (1A) of section 13 cannot for any reason be published as aforesaid, and if with the available election results, the Committee will consist of not less than twelve members, then the Collector [or, as the case may be, the District Deputy Registrar, who has conducted the elections] shall publish the names of these members in the Official Gazette and also in a newspaper as aforesaid. (c) As regards the remaining elections, the 13 wp 5711.11 Collector [or, as the case may be, the District Deputy Registrar, who has conducted the elections] shall subsequently publish the names of members in the like manner as and when the results of such elections are available, or as the case may be, on failure to elect, the names of persons duly appointed under sub-section (2), if any. (d) After every general election, upon the publication of the names of all the members of the Committee under clause (a), or as the case may be, the publication of such names as would render the Committee to consist of not less than twelve members as aforesaid, in a newspaper under this sub-section the Market Committee shall be deemed to be duly constituted.] The Maharashtra Agricultural Produce Marketing (Development And Regulation) Rules, 1967. 1. ............. 2. ............. 36. Voters' list. [(1) The Collector shall call upon the District Deputy Registrar of Cooperative Societies to prepare and furnish to him a list of members 14 wp 5711.11 of the Managing Committees of the Agricultural credit societies and the multipurpose cooperative societies and call upon the Block Development Officer to prepare and furnish to him a list of members of the Village Panchayat's showing distinctly the members belonging to the Scheduled Caste and Scheduled Tribes functioning in the market area and the market committee to prepare and furnish to him the list of traders and hamals and weighmen licenced by the committee within such time as may be specified by him. Thereafter, the Collector shall cause to be prepared separately for each of the constituencies a voters list for holding the elections to the market committees: Provided that where a person is qualified to vote from traders constituency or from Hamals and weighmens constituency his name shall appear in the respective register maintained by the market committee at least 3 months before the preparation of such lists.] [Provided further that, in respect of the Market Committees whose elections are to be held by the District Deputy Registrar, under clause (a) of sub -section (1) of section [14] of the Act, the District Deputy Registrar shall cause such list to be prepared.] (2) Every such list shall be revised before general election at least six months before the date on 15 wp 5711.11 which the term of the market committee is due to expire; Provided that [the Collector or, the District Deputy Registrar as the case may be,] may [-------] direct the revision of such list also at any other time before any general election is due. [(3) The voters list for Cooperative societies constituency shall be prepared societywise. The voters list for village panchayats constituency shall be prepared panchayatwise, indicating the details regarding members belonging to the Scheduled Caste and Scheduled Tribes, etc. Every list of voters for all the constituencies mentioned in sub-rule (1) of rule 35 shall provide, in alphabetical order, the name, age, residence and the category of the voters to which he belongs.] [(4) -----------------] [(5) -----------------] (6) Every such list shall be published in Marathi provisionally within a period of one month from its receipt by the Collector in such manner as the Collector may deem fit : [Provided that, in respect of the Market Committees, whose elections are to be held by the District Deputy Registrar under clause (a) 16 wp 5711.11 of sub-section (1) of section [14] of the Act, the District Deputy Registrar shall himself publish such list in such manner as he may deem fit.] (7) At the time of publishing the list of voters a notice shall be published in like manner calling upon persons entered in the list to lodge in the manner herein prescribed any objection that they have to make to the list as published, and upon persons claiming to be entered in the list, to lodge their claim in the manner herein prescribed. (8) Such claim or objection shall be made in writing and shall specify the constituency in question, the grounds on which the right of any person to be entered in the list is asserted or denied, the evidence which the claimant or objector intends to lead, the address of the claimant or objector, his number, if any, in the list [-------] and in case of an objection, the number in the list of the person to whose entry objection is taken and the constituency in the list for which he is entered. (9) Every claim or objection shall be delivered or sent by post so as to reach the office of the Collector [or the District Deputy Registrar, as the case may be,] before the date fixed by the Collector [or the District Deputy Registrar, as the case may be,] in that behalf being a date not later than one month from the date of 17 wp 5711.11 publication of the list. (10) The Collector [or the District Deputy Registrar, as the case may be,] 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 [or the District Deputy Registrar, as the case may be,] relating to such claim or objection shall be final. (11) The Collector [or the District Deputy Registrar, as the case may be,] 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 votes, under sub rule (11), the Collector [or the District Deputy Registrar, as the case may be,] 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 [or the District Deputy Registrar, as the case may be,] may cause a list of amendments to be prepared, and thereupon the provisions of sub-rule (3) to (11) shall apply in the case 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 18 wp 5711.11 list of amendment and additions shall be available for inspection and sale in whole or in part in the [office of the Collector, the Market Committee and the Village Panchayat concerned] or at any other place as the Collector [or the District Deputy Registrar, as the case may be,] may specify in this behalf. (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 [or the District Deputy Registrar, as the case may be,] for inclusion of his name in the list. (16) On receipt of the application under sub-rule (15) the Collector [or the District Deputy Registrar, as the case may be,] shall, if satisfied that the applicant is entitled to have his name etered 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.]] 19 wp 5711.11 37. ............... [[38. Persons to be qualified to be elected. (1) Every person who is an agriculturist, and who is residing in the market area and is not less than twenty-one years of age on such date as the Collector [or the District Deputy Registrar, as the case may be,] may be for the purpose of any election or bye-election specify in this behalf shall, unless disqualified under these rules, be qualified to be elected. [..............] (2) Every person whose name is in the list of voters of the Traders Constituency shall unless disqualified under these rules, be qualified to be elected by the Traders' Constituency.[.................] Explanation - A person shall be deemed to reside ordinarily within the market area, if he (a) has actually resided therein for an aggregate period of not less than 180 days during the calendar year preceding that in which the list of voters for the time being under preparation for Co- operative Societies or Village Panchayats' constituency is provisionally published under sub-rule 20 wp 5711.11 (6) of rule 36, or (b) has maintained within the market area for an aggregate period of not less than 180 days during the calendar year preceding that in which the lists of voters for the time being under preparation for such area is provisionally published under sub-rule (6) of rule 36, a dwelling for himself in- charge of his departments or servants and has listed such dwelling during the year first mentioned in connection with his business, in the constituency. (3) If any question arises whether any person is or is not an agriculturist residing in the market area for the purpose of this rule, the matter shall be decided by the [Collector] as provided by sub-section (2) of section 2.]] [(4) Every Person whose name is included in the list of voters prepared under rule 35-A shall unless disqualified under these rules, be