VILAS SAHEBRAO GADAKH Vs. DIVISIONAL JOINT REGISTRAR

JUDGEMENT

(1.) RULE. Respondent's waives service. By consent, rule made returnable forthwith. Respondent No. 18 Pimpalgaon (B) Agricultural Produce Marketing Committee (hereinafter referred to as the "market Committee") is formal respondent. Fresh service on respondent No. 18 is therefore dispensed with. The petitioner has filed this petition for a writ of mandamus or any other appropriate writ, order or direction for a declaration that respondent Nos. 3 to 13 are disqualified to continue as members of the Market Committee and are also disqualified for contesting the next elections or any bye elections for a period of six years under section 38-A of the Maharashtra Agriculture Produce Marketing (Regulation) Act, 1963 (hereinafter referred to as the Act ). The facts may be briefly stated as under :

(2.) ELECTIONS to the posts of members of the Committee of the respondent no. 18 market Committee were held in March 2000. Respondent Nos. 3 to 13 were declared to be elected. While the petitioner lost the election. Being aggrieved by the election results, the petitioner approached the Collector of Nasik by way of Election Petition No. 1 of 2000 under Rule 88 of the Election Rules. By an order dated 12/02/2001 the Collector, Nasik dismissed the election Petition. The petitioner carried an appeal bearing Appeal No. 1 of 2001 to the Additional Commissioner, Nasik Division, Nasik. The Additional commissioner, Nasik by his judgment and order dated 30/02/2001 partly allowed the appeal and set aside the elections of respondent Nos. 13 to 15. Being aggrieved by the order of the Additional Commissioner, setting aside the election, the respondent Nos. 3 to 12 approached this Court by way of a writ petition being Writ Petition No. 3484 of 2001. Respondent'no. 13'filed a separate writ petition bearing Writ Petition No. 3485 of 2001. Respondent nos. 14 and 15 also filed separate writ petitions in this Court.

(3.) PETITIONER alleges that the entire expenses for defending the election petition filed by the petitioner against the respondent Nos. 3 to 13 as also the expenses fordefending the appeal before the Additional Commissioner, Nasik and the expenses for filing of writ petitions challenging the order of the Additional Commissioner were incurred by respondent Nos. 3 to 13 not from their own pocket but out of the funds of the Market Committee. Petitioner alleges that vehicles belonging to the Market Committee bearing registration No. MH-15-1355. MH-15-7555 and MH-15-3389 were used by respondent Nosi 3 to 13 for the purposes of travel for defending the election petition, election appeal and filing of the writ petitions and even the travel allowances was claimed and recovered by them from the funds of the Market Committee. Services of the employees of the Market Committee including the secretary, two drivers and two peons were utilised by respondent Nos. 3 to 13 for defending the election Petition, Election Appeal as well as filing of the writ petitions namely writ Petition No. 3484 of 2001 and 3485 of 2001. The Market Committee was joined as respondent (being respondent No. 5 and respondent No. 7 respectively in the said two writ petitions) filed by respondent No. 3 to 13 and as such, respondent Nos. 3 to 13 could not have the funds and machinery of the market committee for the purposes of prosecuting the said writ petitions filed by them against the petitioner as well as the Market Committee. In Writ petition No. 3484 of 2001, there were 74 respondents and in Writ Petition No, 3485 of 2001 there were 84 respondents. Several copies of the writ petitions were therefore required to be made. Xerox copies of the original writ petition were made on the xerox machine1 of the Market Committee by Mr. Londhe, clerk employed in the Market Committee in the presence: of the secretary of the Market Committee Mr. Sanjay Patil, using stationery of the Market Committee. Expenses for making copies of the aforesaid two writ petitions were; incurred from the funds of the Market Committee. Services of the secretary of the Market Committee were availed for serving copies of the writ petitions through Pimpalgaon Baswant Court arid writs of service were produced before this Court by the secretary. According to the petitioner, ah amount of Rs. 79,137/- in all was spent by the respondent Nos. 3 to 13 out of the funds of the Market Committee for defending the election petitions, Appeal and filing of two writs,filed in their personal capacity by the respondent Nos. 3 to 13 according to the petitioner, incurring of the said expenses from the funds of the Market Committee was contrary to the provisions of Subjection (1) of section 38-A of the Act and the market Committee was required to recover the said amount from respondent Nos. 2 to 13 under sub-section (2) of section 38-A of the Act. On learning that the funds of the market Committee, wereillegally used, by respondent Nos. 3 to 13 for defending personal proceedings against them, the petitioner approached a member of Legislative Assembly (for short M. L. A.) of Taluka Niphad, who wrote a letter dated 12th October, 2002 to; the District Deputy Registrar pointing out the irregularities committed by respondent Nos. 3 to 13 and requesting him to take necessary action. It appears that on the application of the representations made by the M. L. A. Niphad, the District Deputy Registrar made an inquiry and came to the conclusion that an amount of Rs. 70,592,52 was spent out of the funds of the market Committee by respondent Nos, 3 to 13 for defraying the costs of the proceedings of the election appeal, and filing of writ petitions and sent a report to the Divisional Joint Registrar. The Divisional Joint Registrar to whom the powers of the Director under section 38-A of the Act, are delegated issued notices to the respondent Nos. 3 to 13,to attend the office for hearing before issuing necessary directions for the recovery under sub-section (2 ). of section 38-A of the Act. the petitioner also alleges that the'divisional. Joint Registrar orally directed the respondent Nos. 3 to 13 to pay the said amount before he passes a written order. It is not disputed before us that the amount of Rs. 70,592. 20 was deposited by respondent Nos. 3 to 13 in the Market Committee. However, the respondent Nos. 3 to 13 deny that any oral direction was issued by the Divisional Joint Registrar and submit that the amount was deposited by them by way of abundant caution.