Mahender Singh v. The State of Rajasthan & Ors.

Order

: 20.05.2011 HON’BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON’BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.B.S.Sandhu, for the petitioner. <><><> The petitioner has prayed for declaring Sections 7 (1) (a) (v) and 7 (1) (a) (vi) of the Rajasthan Agricultural Produce Markets Act, 1961 (for short, ‘the Act of 1961”) to be declared as ultra vires as also the Rules 6-A and 6-B of the Rajasthan Agricultural Produce Markets Rules, 1963 (for short, “the Rules of 1963”). Further, the prayer made is that the respondents may be restrained from nominating the members under Section 7 (1) (a) (v) and 7 (1) (a) (vi) of the Act during the pendency of the peti. Section 7 of the Act of 1961 contains the provisions in respect of constitution of Market Committee. The said provisions were amended on 11.5.2005. On 26.9.2005, the Rules 6-A and 6-B were inserted in the Rules of 1963. 2

In the market area of Sriganganagar, there are two Cooperative Marketing Societies to whom licenses have been granted by the Krishi Upaj Mandi Samiti. One member is a representative of these marketing societies as provided in Section 7 of the Act of 1961. The elections of the Marketing Societies were held in the year 2009. The petitioner was elected as the Chairman of the Ganganagar Kisan Kraya Vikraya Sahkari Samit Ltd. The members of the Cooperative Marketing Societies to represent in the Market Committee are to be elected out of the members of the Managing Committee of the Marketing Societies. The petitioner is said to be eligible to be elected as the representative of the Cooperative Marketing Societies. It is submitted that prior to the amendment in the Rules of 1963 in the year 2005, the representative of the Cooperative Marketing Society was to be elected from the constituency of cooperative society. However, by the amendment of the Rules, the State Government has provided that the representative of the Cooperative Marketing Societies shall be nominated by the State Government. The petitioner has submitted that under Section 7(2) of the Act of 1961, in the event of the failure of any organization, person or authority to elect a member, the State Government can nominate a member on behalf of such organization, person or authority, who is qualified to be elected as member of the Market 3 Committee. Thus, the Act of 1961 permits nomination of only two persons. In the Act of 1961, there is no provision authorizing the State Government to nominate the representative of Cooperative Marketing Society or Central Cooperative Financing Agency. While amending the Rules in the year 2005, the State Government has taken away the power of nomination out of the Cooperative Marketing Society and Central Cooperative Financing Agency. The State Government has now decided to hold elections for the Krishi Upaj Mandi Samiti. The elections are to be held, for which, the provisions have been initiated. The petitioner is aggrieved by the provisions of rules 6-A & 6-B of the Rules of 1963 and Sections 7 (1) (a) (v) and 7 (1) (a) (vi) of the Act of 1961. The State Government has taken away the power of Societies to elect a member and there is no rational behind the Rules 6-A and 6-B of the Rules 1963, they are violative of Article 14 of the Constitution of India. In case, Sections 7 (1) (a) (v) and 7 (1) (a) (vi) of the Act of 1961 are read as enabling provisions, then they are also liable to be struck down being illegal and arbitrary. In other local authorities, there is provision for election amongst its members to represent the local authorities i.e. Municipalities or Gram Panchayat etc. The State Government cannot take the power to nominate a member. Out of 17 members, 5 have to be nominated by the State Government. The State Government has, thus, taken 4 upon itself the power to nominate the representatives of Cooperative Marketing Society and Central Cooperative Financing Agency, whereas there is a provision for election of representative in the democratic body. The provisions are violative of Articles 14 and 19 (1) (c) of the Constitution of India. Hence, this writ petition has been preferred. Learned counsel appearing on behalf of the petitioner has submitted that Sections 7 (1) (a) (v) and 7 (1) (a) (vi) of the Act of 1961 and Rules 6-A & 6-B of the Rules of 1963 are illegal and arbitrary. The power to nominate could not have been taken over by the State Government. The provisions, as amended, are violative of Article 14 and 19 (1) (c) of the Constitution of India. In order to appreciate the submission, it is necessary to consider Section 7 (1) (a) of the Act of 1961. The provision of Section 7 (1) of the Act of 1961 provides for the constitution of A-Class Market Committee, which consists of following members:- “(i) Eight shall be agriculturists elected in the prescribed manner by such agriculturists or institutions of the market area as the State Government may prescribe; (ii) Two shall be traders or brokers elected in the prescribed manner by traders and brokers licenced by the market committee; (iii) One shall be the person elected in the prescribed manner by weighmen, measures, surveyors, warehousemen and other persons licensed by the market committee; 5 (iv) One shall be the member of Legislative Assembly, as nominated by the State Government; (v) One shall be the representative of Co-operative Marketing Societies in the market area for which it is established as the State Government may prescribe; (vi) One shall be the representatives of Central Co- operative Financing Agency in the market area for which it is established as the State Government may prescribe; (vii) One shall be the person elected from amongst its own members by the Municipal Board or Municipal Council or Municipal Corporation or Gram Panchayat in which the principal market yard is situated; (viii) Two shall be the persons nominated by the State Government.” It is apparent that 11 persons are to be elected out of agriculturists, traders, brokers, weighmen, measures, surveyors, warehousemen etc. as provided in Section 7(a) (i) to (iii). With respect to nomination, one shall be the member of Legislative Assembly as nominated by the State Government; one shall be the representative of Co-operative Marketing Societies in the market area as the State Government may prescribe as provided in Section 7 (1) (a) (v) of the Act of 1961. It is further provided in Section 7 (1) (a) (iv) that one shall be the representatives of Central Co-operative Financing Agency in the market area for which it is established as the State Government may prescribe. It is also provided in Section 7 (1) (a) (vii) that one person to be elected from amongst its own members by the Municipal Board or Municipal Council or Municipal Corporation or Gram Panchayat in which the principal market yard is situated. Two 6 members shall be the persons nominated by the State Government. The State Government has prescribed the manner under Section 7(1) (a) (v) and 7 (1) (a) (vi) of the Act of 1961. Under Rule 6-A and 6-B, the State Government has the power to nominate the representatives of Cooperative Marketing Society or Central Cooperative Financing Agency. The Central Cooperative Financing Agency includes the Central Cooperative Bank, Primary Land Development Bank and Urban Cooperative Bank in the district in which the Market Committee is situated. The submission of learned counsel is that the State Government could not have taken the power to nominate the members under Rules 6-A and 6-B, it should have been by way of election in consonance with the spirit of Articles 14 and 19 (1) (c) of the Constitution of India cannot be accepted. The election is a statutory right. The method and manner in which particular body has to be constituted depends upon legislature. The body is constituted under statutory power of Section 7(1)(a) of the Act of 1961. No unfettered right can be claimed with respect to the constitution of statutory bodies in a particular manner. The State Government has provided in Section 7 (1) (a) that as many as eight members to be elected out of agriculturists; two to be elected out of traders and brokers; one out of weighmen, measures, surveyors, warehousemen etc; one to be elected 7 by the Municipal Board or Municipal Council or Municipal Corporation or Gram Panchayat as the case may and the provision for nominating one of the Legislative Assembly member, one member of Cooperative Marketing Socieites and one member of Central Co-operative Financing Agency. The State Government has considered it appropriate to make the provisions for nominating the representative, which provision cannot be said to be violative of any of the fundamental right of the petitioner. As election is statutory right, as such, nomination by the State Government cannot be said to violative of Article 14 and 19 (1) (c) of the Constitution of India. Most of members are elected one. In State of U.P. Vs. C.O.D. Chheioki Em;oyees’ Co- operative Society Ltd. AIR 1997 SC 1413, the Hon’ble Supreme Court held that though Article 19 (1) (c) of the Constitution gives freedom to form association, it is controlled by the provisions of the Act. In the absence of elected members belonging to the weaker sections and women elected, nomination of them by the Government was held to be constitutional and not violative of Article 19 (1) (c) of the Constitution. In Toguru sudhakar Reddy & Anr. Vs. The Govt. of Andhra Pradesh & Ors., reported in AIR 1994 SC 544, the Hon’ble Apex Court held that the provision providing 8 nomination by Registrar of two women members to certain class of societies is not arbitrary. The members were to be nominated from among the women members of the general body of such societies. The Hon’ble Apex Court upheld the power to nominate and decision of the High Court. The State Government has provided for the nomination under Section 7 (1) (a) (v) of the Act of 1961 as there may be large number of marketing societies in the marketing area for which market committee has been established. Similarly, Central Cooperative Financial Agency also consist of various banks etc. in the market area. Thus, while providing method of election by and large for majority of members, method of nomination has been provided considering the complex situation, which cannot be said to be illegal or arbitrary. Merely on the basis election is to be made to represent the Municipal Board, Municipal Council or Municipal Corporation or Gram Panchayat. It is not necessary that similar provision should have been made for election of representative of the Cooperative Marketing Societies operating in the market area. There may be large number of Cooperative Marketing Societies in the area. Thus, the method of nomination cannot be said to be illegal and arbitrary impinging upon right to form association. It is not a case of election within a co-operative society but formation of a body as provided in the Act of 1961 itself, which is governed by the legislative provision, creation 9 of market committee is not an act of volition. There being no homogeneous body of electors, the provision of nomination cannot be said to be defeating democratic right. Similarly, same principle applies in Central Cooperative Financing Agency, which includes the Central Cooperative Bank, Primary Land Development Bank and Urban Cooperative Bank etc. In our view, the provisions of 7 (1) (a) (v) and 7 (1) (a) (vi) of the Rajasthan Agricultural Produce Markets Act, 1961 and Rules 6-A and 6-B of the Rajasthan Agricultural Produce Markets Rules, 1963 cannot be said to be ultra vires. Consequently, we do not find any merit in this writ petition and the same is hereby dismissed. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), C.J. NK