Arjun vs District Deputy Registrar Co-operative Societies And Ors

Rule. Heard finally with consent of counsel for the parties present. In view of order proposed to be passed, service on respondent no.3 is dispensed

with.

The petitioner is aggrieved by the order passed by the District Deputy Registrar, Co-operative Societies in proceedings under the Maharashtra

Agricultural Produce Marketing (Development & Regulation) Act, 1963 [for short, ""the Act""] removing the petitioner as Member of the Agricultural

Produce Market Committee, Buldana.

The general elections to the respondent no.3 - Market Committee were held in June, 2015. The petitioner was elected as a Member on 18th June,

2015. His election was on the post reserved for candidates from the Economically Weaker Community. The respondent no.4 on 4th August, 2017

made a complaint to the District Deputy Registrar that the petitioner was not eligible to continue as a member of the Market Committee. Similar

complaints were also made by respondent nos. 5 to 7 on 16th October, 2017. On that basis, the respondent no.1 initiated proceedings by referring to

the provisions of Rule 88 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967. Thereafter, by considering

the contentions of the petitioner and respondent nos. 4 to 7 and by relying upon the Maharashtra Agricultural Produce Market Committee (Election to

Committee) Rules, 2017 [for short, ""the Rules of 2017""], it was held by the impugned order that in view of provisions of Rule 10 (1) (k), the petitioner

was not entitled to continue as a member as he did not qualify for such membership from the Economically Weaker Community. He was accordingly

removed as a member by the order dated 2nd April, 2018. Being aggrieved, the said order is challenged in the present Writ Petition.

Shri N. B. Kalwaghe, learned counsel for the petitioner, submitted that the order passed by the respondent no.1 is without jurisdiction in view of the

fact that the petitioner is sought to be removed after a period of more than two years from his election. It was submitted that the petitioner having

been elected in June, 2015 and that election not having been challenged, it was not permissible for the respondent no.1 to entertain the proceedings at

this late stage and seek removal of the petitioner. It was submitted that the delay of more than two years was condoned by the respondent no.1

without there being any jurisdiction to condone such delay under the provisions of the Act or the Rules framed thereunder. It was then submitted that

by the impugned order, the delay was condoned and the petitioner was also removed as a member. Adjudication on both aspects could not have been

done by a common order as the jurisdiction to entertain the proceedings was derived only after the delay was condoned. It was then sought to be

urged that the petitioner was rightly elected as a member from the Economically Backward Community and the finding recorded that he did not belong

to that category was incorrect. In support of his submissions, he placed reliance on the following decisions:- [a] Kamlesh Babu & others Vs. Lajpat

Rai Sharma & others [ [ (2008) 12 SCC 577], [b] State of Punjab & others Vs. Bhatinda District Co-operative Milk Producers Union Ltd. [ [ (2007)

12 SCC 363], [c] Umesh Tukaram Kamble & others Vs. Shamrao Sakharam Patil & others [ [ 2008 (2) Mh.L.J. 727, ][d] Lata Madhukar Thakre

Vs. Distt. Deputy Registrar, Co-operative Societies, Yavatmal & others [ [ 2016 (2) Mh.L.J. 863,] [e] Shankar Ramrao Rangnekar Vs. Narayan

Sakharam Sawant & others [ [ 2013 (1) Mh.L.J. 706], and [f] Reji Thomas & others Vs. The State of Kerala & others [ [ Civil Appeal No. 4001 of

2018; decided on 19th April, 2018 (Coram : Kurian Joseph, Mohan M. Shantanagoudar & Navin Sinha, JJ.] 2016 (2) Mh.L.J. 863],

Shri R. D. Karode, learned counsel for respondent nos. 4 to 7, raised a preliminary objection that an alternate statutory remedy was available to the

petitioner for challenging the order passed by the respondent no.1. Without availing that remedy, the petitioner had approached this Court directly

which was not permissible. He then submitted that the respondent no.1 had the necessary jurisdiction to condone the delay and entertain the

proceedings on merit. As the petitioner was not eligible to continue as member of the Market Committee, the proceedings for his removal were rightly

entertained and decided by the respondent no.1. The finding recorded that the petitioner did not belong to Economically Backward Community was

based on a proper appreciation of the matter and that conclusion did not call for any interference. For that purpose, he sought to rely upon the

provisions of the Income Tax Act. It was, therefore, submitted that there was no reason to interfere with the impugned order.

Shri H. Dhumale, learned Asstt. Govt. Pleader, appeared for respondent nos. 1 and 2.

In reply, it was submitted by the learned counsel for the petitioner that as a challenge was raised that the impugned order was without jurisdiction,

the Writ Petition was maintainable and it was not necessary for the petitioner to invoke the said statutory remedy as the petitioner's removal was not

in accordance with law.

I have heard the learned counsel for the parties at length and I have perused the documents placed on record.

It is not in dispute that the petitioner was elected a Member of the Market Committee in the elections conducted in June, 2015. Said election was

from a seat reserved for the Economically Weaker Community of the society. It is further not in dispute that the respondent no.4 filed his complaint on

4th August, 2017, while the respondent nos. 5 to 7 filed their complaint on 16th October, 2017. After these complaints were filed, the Maharashtra

Agricultural Produce Market Committee (Election to Committee) Rules, 2017 came into force with effect from 18th December, 2017. Perusal of the

impugned order indicates that the petitioner has been removed as a member in view of the disqualification prescribed by Rule 10 (1) (k) of the Rules

of 2017.

From the aforesaid, it can be seen that when the complaints were made by the respondent nos. 4 to 7, the Rules of 2017 were yet to come into

force. The complaints were filed prior those Rules coming into force and the adjudication by the respondent no.1 is by relying upon those Rules for

removing the petitioner. When the complaints were filed, the Rules of 2017 were not in force and Rules of 1967 were holding the field. This is one

aspect which touches the jurisdiction of the District Deputy Registrar to entertain the proceedings.

Another legal infirmity which is found in the impugned order is that the delay in initiating the proceedings and the adjudication on merits has been

done by the same order. This Court in Shankar Ramrao Rangnekar [supra] has held that the jurisdiction to entertain the proceedings on merits is

derived only after the delay is condoned. It has been further held that adjudication of the application for condonation of delay and on merits by the

same order is an exercise beyond jurisdiction. As noted above, by the impugned order, the respondent no.1 not only condoned the delay, but also

adjudicated the proceedings on merits by the same order. This is another legal infirmity which touches the jurisdiction of the respondent no.1.

It is well settled that existence of alternate remedy is not a bar for exercising jurisdiction under Article 227 of the Constitution of India. If there is

no dispute on facts and in view of the settled legal position if it is found that the order impugned is without jurisdiction, this Court can exercise its

jurisdiction under Article 227 of the Constitution. I find that the present case is a fit one to exercise jurisdiction.

As it is found that the impugned order suffers from jurisdictional infirmities, namely adjudication of the application for condonation of delay along

with merits of the matter and secondly applying the provisions of the Rules of 2017 when the same came into force after complaints were made

renders the impugned order invalid.

Accordingly, the following order is passed:-

[a] The order dated 2nd April, 2018 passed by the respondent no.1 is quashed and set aside.

[b] The respondent no.1 shall re-consider the complaint dated 4th August, 2017 made by the respondent no.4 and 16th October, 2017 made by the

respondent nos. 5 to 7 afresh in accordance with law.

[c] All questions including the question whether delay can be condoned in those proceedings are kept open for being considered in accordance with

law.

[d] Therespondent no.1 shall give due opportunity to all parties and decide the proceedings on their own merits and in accordance with law. For said

purpose, the parties shall appear before the respondent no.1 on 15th May, 2018 and the proceedings be decided expeditiously and preferably within a

period of three months from that date.