Member of APMC ceases to be a member upon ceasing to be the member of Managing Committee: Bombay High Court

 on 08 03 2021 on 22 03 1 wp4030.18IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH : NAGPURWRIT PETITION NO.4030 OF 2018.1.Ashok Dadaji Rechankar Aged 47 yrs. Major Occupation Agriculture R o Sakmur Gondpipri Chandrapur.2.Adv. Manoj Bapurji Nagapure Aged 46 yrs. Major Occupation Agriculturist R o Nandwardhan PostDhamangaon Gondpipri Chandrapur. PETITIONERSV E R S U S1.Agriculture Produce MarketCommittee through its Secretary Gondpipri Chandrapur.2.Divisional Joint Registrar ofCooperative Societies Nagpur.3.District Deputy Registrar Co operative Societies Chandrapur Dist : Chandrapur.4.Shri Sudhakar Laxmanrao Kundojwar Aged about 75 years Occ : Agriculturist R o Vitthalvadi Tah : Gondpipri Dist. Chandrapur. RESPONDENTS Shri R. L. Khapre Senior Advocate a w. Shri S.S. Ghate Advocateand Shri R.J.Kankale Advocate for petitioners.Shri Pankaj Jibhkate Advocate for respondent No.1.Mrs. K. S. Joshi I c. Government Pleader for respondent Nos.2 and3.Shri P. D. Meghe Advocate for respondent No.4. on 08 03 2021 on 22 03 2 wp4030.18Advocates Assisted the Court :Shri U.S.Dastane AdvocateShri A.M. Ghare AdvocateShri Firdos Mirza Advocate CORAM : Z. A. HAQ MANISH PITALE AND AMIT B. BORKAR JJ. RESERVED ON : 17.12.2020.PRONOUNCED ON : 24 02 2021JUDGMENT:1.This reference has been made to the Full Bench pursuant to the order dated 8th November 2019 of the learnedSingle of this Court for considering the following question of law:“Whether the members of the APMC who are elected by themembers of the Managing Committee of the AgriculturalCredit Societies and Multi purpose Cooperative Societies orthe members of the Village Panchayat functioning in themarket area cease to be members of the APMC on ceasingto be the members of the Managing Committee of thesocieties or the members of the Village Panchayat in viewof the proviso to Section 15 of the Act ”.2.The learned Single Judge felt the need to make thisreference in view of conflicting decisions of the Division Benches ofthis Court one holding that the members of the AgriculturalProduce Market Committeewho are elected bythe Managing Committees of the Societies would cease to be on 08 03 2021 on 22 03 3 wp4030.18members of the APMC in the event they ceased to be members ofthe Managing Committees of their parent Society. Mh. L.J. 688 andHukumchand s o Govindrao Amdhare and Ors. Vs. The Collector Nagpur and Ors. and then anotherdecision in which it is held that even though tenure of theManaging Committee members of the Cooperative Society mayhave expired the representative capacity of Managing CommitteeMember is not wiped out and he continues to represent the saidSociety even thereafter.Act 1963does notapply to such member. He further submitted that proviso to Section15of the APMC Act will apply to Section 13 of the APMC Act on 08 03 2021 on 22 03 5 wp4030.18save and except sub clauseof sub sectionof Section 13. Hesubmitted that Rules 35 and 36 of the Maharashtra AgriculturalProduce MarketingRules 1967 cannot take away right created under Section 13of the APMCAct. He submitted that the petitioners are not elected asrepresentatives of a Cooperative Society but are elected by virtueof their office as Managing Committee members of a CooperativeSociety. He submitted that there is a clear distinction between aperson who ceases to be qualified after contesting an election and aperson who is disqualified. He submitted that disqualification mustbe specifically provided under a statute which has not beenprovided under the APMC Act. He submitted that the petitioners areelected as members of the APMC in their rights not asrepresentative of the Cooperative Societies. In support of hissubmission that persons elected in their capacity as ManagingCommittee Members of the Cooperative Society would not fallwithin the category of “representative” as per the proviso to Section15of the said Act he placed reliance on the judgment of theSupreme Court in the case of N.S.Varadahachari Vs. G.V. Pai andanother reported in AIR 1973 SC 38 Kuldip Nayar Vs. Union ofIndia and Ors. reported in AIR 2006 SC 3127. on 08 03 2021 on 22 03 6 wp4030.186.Shri U.S.Dastane learned Advocate who assisted theCourt invited our attention to Sections 16 60of the APMCAct Rule 41(k) of the Maharashtra Agricultural ProduceMarketingRules 1967and submitted that the member of APMC whois elected by the Managing Committee of the Cooperative Society would cease to be a member of APMC in the event he ceases to be amember of the Managing Committee of his parent society as he isdisqualified under the Act.7.Smt. K.S. Joshi learned In charge Government Pleaderalso submitted that once the member of a Managing Committee of acooperative society ceases to be such member he no longer wouldbe entitled to continue as a Member of APMC and is deemed tohave vacated his office.8.Shri A.M. Ghare learned Advocate who also assistedthe Court submitted that unless a person is a member of ManagingCommittee of the Cooperative Society he is not entitled to become amember of Marketing Committee. He submitted that for beingelected as a member of the Agricultural Produce Market Committee a person needs to be agriculturist and a member of ManagingCommittee of the Agricultural credit Society or multipurposecooperative society for being qualified under Clauseof Sub on 08 03 2021 on 22 03 7 wp4030.18Sectionof Section 13 of the APMC Act. Learned advocate byinviting our attention to the Full Bench decision of this Court in thecase of Rajkumar s o Laxmanprasad Kesarwani Vs. ReturningOfficer and Tahsildar reported in 2006Mh.L.J. 445 submittedthat the word “constituency” has been added after the Full Benchdecision. He submitted that it is the status of office bearers of theCooperative Society which qualifies a person for being elected as amember of the Marketing Committee. He submitted that there is aclear distinction between a person holding office as a member ofthe Marketing Committee and by virtue of his capacity as representative . Learned advocate by inviting our attention toRules 45 and 41of the Rules of 1967 submitted that thescheme of the Act and Rules does not permit a person to continue asa Member of Marketing Committee after he ceases to be a memberof the Managing Committee of the Cooperative Society.9.Shri Firdos Mirza learned Advocate who also assistedthe Court by inviting our attention to Section 13 of the APMC Act Rules 35 and 36 of the Rules of 1967 and proviso to Section 15 ofthe APMC Act submitted that a person who is elected by virtue ofholding the office of Member of the Managing Committee ceases tobe such member of Marketing Committee once he ceases to beMember of Managing Committee. By relying on word on 08 03 2021 on 22 03 8 wp4030.18“representative” in sub sectionof Section 13 of the APMC Actsubmitted that the word “representative” occurring in the proviso toSection 15of APMC Act refers to the word “representative” insub sectionof Section 13 the APMC Act. He submitted thatthe member of the Managing Committee of a Cooperative Societywould fall within the category “holding office” in the proviso toSection 15of the APMC Act. He submitted that once a personceases to be a member of the Managing Committee constitutedunder Section 13 of the APMC Act the constitution of MarketingCommittee would become illegal and would render proviso tosection 15(1) otiose.10.To address the question referred and for betterappreciation of the contentions urged by the learned Advocates forthe parties it would be advantageous to reproduce relevantprovisions of the Act and Rules which call for our interpretation.11.Section 13(1)(a)(i) and(ii) of the APMC Act whichprovides for constitution of Market Committees reads as under:“13. Constitution of Market Committees.(1) Subject to the provisions of sub sectionevery Market Committeeconsist of the following 1[2[ ] members] namely :—3[a) 21[fifteen agriculturist residing in the market areaas specified below :—](i) elevenor Nomadic Tribes) shall be electedby the members of the Managing Committees of the Agricultural CreditSocieties and multi purpose Co operative Societiesfunctioning in the market area :Provided that where the Market Committee is situated in Tribal area oneperson belonging to the Scheduled Tribes shall be elected in place of theelection of the person belonging to the De notified Tribesfourshall be elected by members of the village panchayatsfunctioning therein ]4[(b) two shall be elected by traders and commission agents holdinglicences for not less than two years to operate as such in the marketarea ]5[(b l) one member shall be elected by hamals and weighmen operatingas such in the market area ](c)one shall be the Chairman of the co operative society doing business ofprocessing or marketing of agricultural produce in the market area6[having its registered office situated in the same market area] or in hisabsence a representative of the co operative society elected by itsmanaging committee :Provided that if there be more than one such Co operative societies inthe market area then the Chairman of any one of such co operativesocieties or in his absence a representative elected by the managingcommittees of such society on 08 03 2021 on 22 03 10 wp4030.18(d) one shall be the Chairman of the Panchayat Samiti within thejurisdiction of which the market area or major portion thereof is situatedof the representative elected by such Panchayat Samitione shall be the President or Sarpanch of the local authoritythe Deputy Registrar of Co operative Societies of the district or hisrepresentative who shall have no right to vote ]8(g) the Secretary of the Market Committee who shall have no right tovote ]9[l a) A person who is a member of the Market Committee under clauses(c) shall have a right to take part in the discussions of theCommittee but shall have no right to vote at a meeting thereof.]10[[(lA)(a) Notwithstanding anything contained in sub sectionof thissection or in section 4 or other provisions of this Act the area comprisingGreater Bombay and Turbhe Village in Thane Taluka of Thane District11[and such other area or areas as may be specified by the StateGovernment by notification in the Official Gazette from time to time](hereinafter referred to as "the Bombay Market area") shall be deemed tobe a market area for the purposes of this Act and the Market Committeefor that area to be called by the name of the Bombay AgriculturalProduce Market Committee shall subject to the provisions of sub section(2) consist of the following 12[ members] namely:twelve representatives of agriculturists elected by the agriculturistmembers of the other Agricultural Produce Market Committee in theState 13[two such members] to be elected from each Revenue Division 14[(ii) five representatives elected by the traders and commission agents holding licences to operate as such in the Bombay market area asspecified below —(A)one representative dealing in onion potato and garlic elected by andfrom amongst themselves one representative dealing in food grains pulses edible and non edible oils elected by and from amongst themselves one nominated representative of the Navi Mumbai MunicipalCorporation five representativesorNomadic Tribes) to be nominated by the State Government ](vii)the Director of Agricultural Marketing Maharashtra State Pune ]15(viii)[ ]16[(b) a person who is a member of the Market Committee undersub clauses(iv) orshall have a right totake part in the discussions of the Committee but shall not have aright to vote at a meeting thereof].”12.Section 13 of the APMC Act provides for theconstitution of the Market Committee. Under Section 13 of theAPMC Act Market Committee is to be constituted from amongstvarious members elected as well as nominated. Section 13 of theAPMC Act creates a Market Committee for the specified area. This on 08 03 2021 on 22 03 12 wp4030.18Committee has to be constituted as provided by the provisions ofSection 13(1)(a) toof the APMC Act. Under clauseof sub sectionof Section 13 of the APMC Act member of managingcommittee from the cooperative societies gets a right to elect elevenmembers to the Market Committee. Under clauseof sub section(1)(a) of Section 13 of the APMC Act member of village panchayatgets a right to elect four members to the Market Committee. Theprovision of electing a member of Managing Committee of thecooperative societies or member of village panchayat to the MarketCommittee is with the object that the interest of the cooperativesocieties and village panchayats is protected while conducting theaffairs of the Market Committee in co ordination with cooperativesocieties or village panchayats.13.The membership of the Committee as per sub section(1) of section 13 of said Act can be broadly divided into threecategories. The first category consists of the elected members fromdifferent sections such as agriculturists traders commission agents etc. whereas the second category consists of the representatives ofpanchayat samitis and other local authorities mentioned in Section13speaks about the term of office ofMembers of the Managing Committee. It reads as follows:“(1) The term of office of members of a MarketCommittee shall be deemed to commence on the dateof the first meeting of the Market Committee atwhich business is transacted:Provided that a person who is a member by virtue ofhis being a representative or holding office orholding licence belonging to any of the categories ofmembers referred to in sub sectionorofsection 13 shall hold office as such member so longonly as he continues to be such representative or tohold such office or such licence and on his ceasing tobe such representative or holding such office orlicence he shall cases to be such member and he shallbe deemed to have vacated his office.”15. On careful reading of proviso to section 15of theAPMC Act it appears that it has no concern with the members whoare directly elected from the different categories such asagriculturists traders commission agents etc but the intention on 08 03 2021 on 22 03 14 wp4030.18and the purpose of this proviso is crystal clear. A person goes to theAgricultural Produce Market Committee by virtue of holding officesuch as a member of Managing Committee of a co operative societyor a member of village panchayat because he is clothed with thecapacity of being a member of Managing Committee or a member ofthe village panchayat. As long as he holds the membership hecontinues to function as a member of that Market Committee. Assoon as he ceases to be the member of Managing Committee of aco operative society or member of the village panchayat he ceasesto be the member of the Market Committee where he has to sit byvirtue of his office in his parent organization. This appears to be thegeneral scheme of the proviso to sub section(1) of Section 15 of theAPMC Act.16. The proviso to Section 15(1) of the APMC Actenvisages a situation where by virtue of holding office as a memberof the managing committee of cooperative society or member ofvillage panchayat a person is sent on the Market Committee ceases to continue to be such member of Managing Committee orvillage panchayat and as soon as he ceases to continue to hold suchoffice then necessarily the term of office of that person as a memberof the Market Committee must be cut short and such person mustbe deemed to have vacated his office as a member of Marketing on 08 03 2021 on 22 03 15 wp4030.18Committee. It is not therefore correct to say that once a person hasbeen elected on the Market Committee he must continue as amember of the Market Committee for the full term of five years. Ifthis contention is to be accepted then the proviso to section 15(1)of the APMC Act will be rendered meaningless and can never begiven effect to. The proviso contemplates a situation where theperson elected by virtue of holding office can cease to hold officeeven during the term of the Market Committee. The words “shallhold office so long only as he continues to be such representative orto hold such office” used in the proviso to Section 15(1) of theAPMC Act mandates that during the term of office of the member ofa Market Committee such person who is a member by virtue ofoffice can be discontinued as a member of Marketing Committee.17.A person so elected by the members of the ManagingCommittee from the cooperative societies and village panchayatsbecomes a member of the Market Committee. It was in this mannerthat the petitioners became members of the Market Committee.When such essential qualification extinguishes their right tocontinue as members of the Market Committee would automaticallycome to an end. When such members cease to be members ofManaging Committee of cooperative society or members of thevillage panchayat foundation of their right vanishes. When on 08 03 2021 on 22 03 16 wp4030.18qualification under section 13(1)(i) of the APMC Act itself does notsurvive any further continuation of the petitioners as Members ofthe APMC would not arise. The position that emerges fromprovisions which we have referred to above shows that the MarketCommittee established under section 13of the APMC Act has atenure of five years. This tenure is subject to the proviso to Section15 of the APMC Act. This tenure is bound to be curtailed if anyeventuality mentioned in that proviso occurs.18.If the argument advanced by Shri Khapre learnedSenior Advocate is accepted it would allow continuance of amember of Managing Committee of cooperative society who hasceased to be such member of managing committee which haselected him to the managing Committee. Such interpretation woulddefeat the very object of sending of a member of ManagingCommittee from the cooperative societies or village panchayats tothe Market Committee. It is to be noted that qualification for beinga member of Market Committee is attached to continuance as amember of the Managing Committee of cooperative society orvillage panchayat. If his status as a member of the ManagingCommittee at any time is lost the membership of the MarketCommittee would be deemed to have ceased . on 08 03 2021 on 22 03 17 wp4030.1819. Rules 35 of the Rules of 1967 provides for preparation of a listof voters and division of the market area into constituencies and itreads thus:“35. Preparation of list of voters. Division of MarketArea into constituencies. For the purpose ofelecting 10 agriculturists two members to be electedby Hamals and weighmen as provided by clauses(b) andof sub sectionof section 13 everymarket area shall consist of Co operative Societies Constituency Village Panchayat s Constituency Traders Constituency and Hamals and weighmen s Constituency.]”The next Rule 36of the Rule of 1967 which provides of voters list reads as under:“Voters list. The Collector shall call upon theDistrict Deputy Registrar of Co operative Societiesto prepare and furnish to him a list of members ofthe Managing Committees of the AgriculturalCredit Societies and the Multipurpose Co operativeSocieties and call upon the Block DevelopmentOfficer to prepare and furnish to him a list ofmembers of the Village Panchayat showingdistinctly the members belonging to the ScheduledCaste and Scheduled Tribes functioning in themarket area and the Market Committee to prepareand furnish to him the list of traders and hamalsand weighmen licenced by the Committee withinsuch time as may be specified by him. Thereafter the Collection shall cause to be preparedseparately for each of the Constituencies a voters list for holding the elections to the MarketCommittees :Provided that where a person is qualified to vote from traders constituency or from Hamals and on 08 03 2021 on 22 03 18 wp4030.18Weighmen s Constituency his name shall appear inthe respective registers maintained by the Market Committee at least 3 months before the preparation of such lists.]”20.The language of Rules 35and 36 of Rules of 1967lends support to the view that a person elected to market committeeby virtue of his office as a Member of Managing Committee ceasesto be such member upon ceasing to be such Managing Committeemember. As per sub Ruleof Rule 35 of the Rules there are fourconstituencies for the purpose of electing members of the MarketCommittee. A person who is member of the Managing Committeeof the Agricultural credit society or multipurpose CooperativeSociety would have the right to contest from the CooperativeSocieties constituency. A member of the Village Panchayat would beentitled to contest from Village Panchayat constituency. Sub Rule(1) of Rule 36 mandates Collector to prepare a list of members ofthe Managing Committees of Agricultural Credit Societies Multi Purpose Cooperative Societies and members of the VillagePanchayats. It is only by virtue of holding office of ManagingCommittee of an Agricultural Cooperative Society or Multi PurposeCooperative Society or member of Village Panchayat that the namesof members of the managing committee and members of villagepanchayat are included in the Voters list of Market Committee. on 08 03 2021 on 22 03 19 wp4030.18Only those persons are entitled to contest the election of MarketCommittee whose names appear in the Voters list. 21. During the course of arguments much was debated onthe question as to whether a member of Managing Committeeelected from Cooperative Constituency or Village PanchayatConstituency can be termed as “representative” or a person “holdingoffice”. On meaningful reading of Section 13andSection 13and Section 15of the APMC Act we find amarked distinction in the description of members of MarketCommittee. Whereas sub clauseto sub clauseof sub section(1) of Section 13 does not refer to any of the members to be electedto the Market Committee as representative but sub clauseofsub Sectionof Section 13 refers to all the members ofMarketing Committees as representatives of their respectivecategories. It is in this context that the three categories ofmembers mentioned in the proviso to sub sectionof Section 15need to be interpreted. A person who is elected as a memberunder sub clauseof sub sectionof Section 13 represents thegroup of all Agricultural Credit Societies or Multi PurposeCooperative Societies or Village Panchayats functioning in themarket area. Once such member of a Managing Committing or amember of Village Panchayat is elected as a member of Marketing on 08 03 2021 on 22 03 20 wp4030.18Committee he not only represents his parent cooperative society orVillage Panchayat but he represents an entire group of all suchAgricultural Credit Societies or Multi Purpose Cooperative Societiesor Village Panchayats functioning in the market area. Therefore forthe purpose of the proviso to sub sectionof Section 15 suchmember of Managing Committee is not a representative of hisparent society but he is elected by virtue of “holding office” of amember of Managing Committee of the Agricultural Credit Society Multi Purpose Cooperative Society or Village Panchayat functioningin the market area. We are therefore of the view that the term“representative” in the proviso to sub sectionof Section 15 is inthe context of “representatives” mentioned in sub clauseof sub sectionof Section 13.22. The judgments of the Supreme Court in the case ofN.S.Varadahachari Vs. G.V. Pai and another reported in AIR 1973 SC38 Kuldip Nayar Vs. Union of India and Ors. reported in AIR 2006SC 3127 relied upon by Shri Khapre learned senior advocate insupport of his submission that persons elected in their capacity asManaging Committee Members of the Cooperative Society wouldnot fall within category of “representative” in proviso to Section 15(1) of the said Act are of no help for the purpose of deciding theissue involved in the present petition as both the judgments arose on 08 03 2021 on 22 03 21 wp4030.18out of provisions of the Representation of People Act 1951 wherethe statutory scheme of election of a representative is entirelydifferent from the scheme of the constitution of marketingcommittee under the APMC Act . There is no proviso in theRepresentation of People Act like the proviso to sub sectionofSection 15 of APMC Act.23. In view of our detailed discussion made above we holdthat a member of Managing Committee of Agricultural CreditSocieties Multi Purpose Cooperative Societies and VillagePanchayats continues as member of the Market Committee byvirtue of his holding of office of such Managing Committee orVillage Panchayat and not as a representative of his parentCooperative Society or Village Panchayat.24. In the result we answer the question referred to us asunder:(i) The member of the APMC who is elected by membersof the Managing Committee of Agricultural Credit Societies andMulti Purpose Cooperative Societies or members of VillagePanchayats functioning in the market area ceases to be member ofthe APMC on ceasing to be the member of Managing Committee of on 08 03 2021 on 22 03 22 wp4030.18the Societies or Village Panchayats in view of the proviso to Sub Sectionof Section 15 of the Act.(ii)We overrule the decision of the Division Bench in WritPetition No.4092 2013We direct the Registry to place the matter beforeappropriate bench for disposal in accordance with law.(iv)This Court records its appreciation for the valuableassistance rendered by Advocates Shri U S Dastane Shri A.M. Ghareand Shri Firdos Mirza .JUDGE JUDGE JUDGEAmbulkar. 

Summary: The member of the Agricultural Produce Market Committee, who is elected by members of the Managing Committee of Agricultural Credit Societies and Multi-Purpose Cooperative Societies or members of Village Panchayats functioning in the market area ceases to be member of the APMC on ceasing to be the member of Managing Committee of the Societies or Village Panchayats. A bench of Z. A. HAQ, MANISH PITALE AND AMIT B. BORKAR, JJ; while adjudicating the matter in the case of Ashok Dadaji Rechankar v. Agriculture Produce Market; [WRIT PETITION NO.4030 OF 2018], dealt with the tenure of a member of APMC. The petitioners were elected as Director and Vice-Chairman respectively of the respondent no.1 – APMC in the election held on 18th January 2017, by virtue of they being Managing Committee Members of a Cooperative Society. The term of the petitioner no.1 came to an end on 29th April 2017. The term of petitioner no.2 came to an end around August 2017. The respondent no.3 passed an order on 15th September 2017 removing the petitioners from their posts as Director and Vice Chairman respectively on the premise that the petitioners ceased to be Managing Committee members of their parent Cooperative Societies. The appeal against the said order being dismissed by the respondent no.1, the petitioners approached this Court by invoking Articles 226 and 227 of the Constitution of India. The learned Single Judge noticing conflicting views of the Division Benches of this Court directed placing the issue before the Hon’ble the Chief Justice for the constitution of larger Bench. Shri R. L. Khapre, learned Senior Advocate, submitted that the member of the marketing committee continues to function even after he ceases to be a member of the Managing Committee of the Cooperative Society. He submitted that the petitioners are not elected as representatives of a Cooperative Society but, are elected by ‘virtue of their office’ as Managing Committee members of a Cooperative Society. He submitted that there is a clear distinction between a person who ceases to be qualified after contesting an election and a person who is disqualified. He submitted that disqualification must be specifically provided under a statute, which has not been provided under the APMC Act. He submitted that the petitioners are elected as members of the APMC in their rights, not as representative of the Cooperative Societies. Shri A.M. Ghare, learned Advocate, who also assisted the Court, submitted that unless a person is a member of Managing Committee of the Cooperative Society, he is not entitled to become a member of Marketing Committee. He submitted that for being elected as a member of the Agricultural Produce Market Committee, a person needs to be agriculturist and a member of Managing Committee of the Agricultural credit Society or multipurpose cooperative society for being qualified under Clause (a) of Sub- Section (1) of Section 13 of the APMC Act.