1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE G. NARENDAR WRIT PETITION NO.41506/2017 (APMC) C/W WRIT PETITION NO.41507/2017 (APMC) WRIT PETITION NO.41506/2017:
BETWEEN:
Nirmala Bagodi W/o Kanti Basava Bagodi, Aged about 40 years, R/at Rampur, Mallapur Post, Gangavathi Taluk, Koppal District.
... Petitioner (By Sri. Jayakumar S. Patil, Advocate) AND:
1. The State of Karnataka Represented by its Secretary, The Department of Agricultural Marketing, Vikasa Soudha, Bangalore – 560 001.
2. The Director of Agricultural Marketing No.16, 11th Raj Bhavan Road, PB No.5309, Bangalore – 560 001.
3. The Agricultural Produce Marketing Committee, Gangavathi Taluk, Represented by its Secretary, Gangavathi – 583 227, Koppal District.
4. Reddy Srinivas S/o Reddy Veeraraju, Aged about Major, R/o Indiranagar, Sriramnagar -583 282, Gangavathi Taluk, Koppal District.
... Respondents (By Sri. Y. Laxmi Narayana, Advocate for Sri. Diwakara K., for C/R4;
Sri. A.G. Shivanna for AAG A/w Sri. S.S. Mahendra, AAG for R1 & R2, Sri. Mallikarjun C. Basareddy, Advocate for R3 ) This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated: 23.8.2017 passed by the R-2 vide Annexure-J. Strike Down Section 17 (2) of the Karnataka Agriculture Produce Marketing (Regulation and Development) Act, 1966, amended by Karnataka Act No.38 of 2013, as unconstitutional.
WRIT PETITION NO.41507/2017:
BETWEEN:
Sri Chituri Durga Rao S/o Lachayya, Aged about 44 years R/at Barguru Camp, Gangavathi Taluk, Koppal District.
... Petitioner (By Sri. Jayakumar S. Patil, Advocate) AND:
1. The State of Karnataka Represented by its Secretary The Department of Agricultural Marketing, Vikasa Soudha Bangalore – 560 001.
2. The Director of Agricultural Marketing No.16, 11th Raj Bhavan Road, PB No.5309, Bangalore – 560 001.
3. The Agricultural Produce Marketing Committee, Gangavathi Taluk, Represented by its Secretary, Gangavathi – 583 227, Koppal District.
4. Reddy Srinivas S/o Reddy Veeraraju, Aged about Major, R/o Indiranagar Sriramnagar -583 282, Gangavathi Taluk, Koppal District .
... Respondents (By Sri. A.G. Shivanna, AAG for R1 & R2; A/w Sri Mahendra AGA, Sri. S.S. Mallikarjun C. Basareddy, Advocate for R3, Sri. Y. Laxmi Narayana, Advocate for Sri. Diwakara, K., Advocate for C/R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated: 23.8.2017 passed by the R-2 vide Annexure-N. Strike Down Section 17 (2) of the Karnataka Agriculture Produce Marketing (Regulation and Development) Act, 1966, amended by Karnataka Act No.38 of 2013, as unconstitutional.
These writ petitions having been listed for dictating order and having been reserved on 21.09.2017 for orders; this day the Court pronounced the following;
ORDER Heard the learned counsel for the petitioners led by Senior counsel Sri Jayakumar S. Patil, the learned Govt. Advocate on behalf of respondent Nos.1 and 2 led by learned Additional Advocate General Sri A.G. Shivanna, learned counsel Sri Mallikarjun C. Basareddy on behalf of respondent No.3 and the learned counsel for private respondents No.4 led by senior counsel Sri V. Laxminarayan.
2. The petitioner, in the first writ petition i.e., W.P. No. 41506/2017 and the petitioner in the second writ petition i.e., W.P. No.41507/2017 were both elected as members of the Agricultural Produce Marketing Committee, Gangavati and subsequently were elected as the Vice-President and President, respectively of the said Market Committee. That, both the petitioners have been held to have incurred disqualification, on account of their respective spouses having applied for and holding a license to function as a trader in market area. As both the petitioners are held to have suffered disqualification on similar grounds common question of law arises, hence both the petitions were heard together and arguments were addressed in common by both the petitioners and the respondents, as the facts involved also are of a similar pattern.
3. Facts of the case:
(i) The election to the third respondent – Market Committee was notified under a notification dated 16.12.2016. The election was notified to be held on 14.01.2017 to elect the representatives to the third respondent – Market Committee. In the said elections, both the petitioners had been declared elected and their names were published in the official Gazette dated 17.01.2017. Thereafter, the third respondent called for a meeting to be held on 04.02.2017 for the purpose of electing the President and Vice- President of the third respondent – Market Committee. Accordingly, on 04.02.2017, the petitioners were duly elected as Vice-President and President respectively of the Market Committee.
4. That on 08.02.2017, the fourth respondent filed a petition under the provisions of S.16 & 17 of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (hereinafter referred to as ‘the Act, 1966’ for the sake of brevity). Therein it was contended, that both the petitioners were disqualified to contest in the elections from Agriculturists Constituency, as their respective spouses were registered as traders and were holding trader license under the Act, 1966. That the names of the respective spouses were also found to be enlisted in the voters list, pertaining to the Traders Constituency.
5. The 2nd Respondent upon receipt of the petition, initiated proceedings under the provisions of Section 17 of the Act, 1966 and issued a notice of enquiry to the petitioners.
6. In reply to the notice, the first petitioner contended that the entity M/s Sri Neelakanteshwara Trading Company is a proprietary concern run by her husband Sri Kanti Basava Bagodi and that the license was granted on 17.04.2010. But, subsequently the license was surrendered by her husband on 20.04.2011 and that the Secretary of the 3rd respondent – Committee had issued a report reiterating the fact of surrender of the license. It was also additionally pleaded that the husband did not conduct any business from the date of issue till date of surrender. That the petitioner’s husband had also surrendered the receipts, bill books, audit report, etc. to the 3rd respondent – Committee. That, as the petitioner’s husband has not conducted any business in the last five years, i.e. prior to the date of the elections, the disqualification clause was not attracted to her. It was further pleaded that the complaint, by the 4th respondent, is on account of political differences and only to wreak political vengeance. That the initiation of the enquiry, despite report of the 3rd respondent holding that the petitioner does not hold any trade license is illegal. It was further contended that the 2nd respondent – authority was not authorised in law to enquire into the allegation of disqualification in respect of a elected member i.e., to adjudicate a pre-election disqualification. That the complainant, who is also a Director, on the board of the 3rd respondent – Committee is not entitled to call in question the election of a Co-director. That the enquiry itself is vitiated on account of the second notice issued pursuant to another complaint dated 22.02.2017.
(i). The second petitioner i.e., the petitioner in W.P. No. 41507/2017 also raised similar contentions. That the license was granted on 24.06.2015 and valid for a period of seven years upto 31.03.2021 and the name of the entity is Sri Laxmi Vinayaka Agencies Siddapur and that Smt. Chitturi Ramalaxmi, his wife, is the proprietrix. That though license was granted, the authorities have not communicated the grant of license nor have they got issued the receipts, bill books, weekly audit book, etc., to his wife. It was additionally contended that the name of spouse is not enrolled into the list of voters of the traders constituency.
(ii). In the interregnum another enquiry notice dated 20.02.2017 came to be issued on the receipt of another similar complaint by another director.
(iii). Aggrieved by the 2nd notice of enquiry, both the petitioners approached this Court by way of writ petition in W.P.No.10570/2017 and 10574/2017, respectively, calling in question the 2nd enquiry notice dated 20.02.2017 only and for a further relief to prohibit the second respondent therein from conducting any enquiry. This Court, by order dated 17.07.2017 was pleased to direct the petitioners and the private respondents to appear and partake in the enquiry by the second respondent. The parties were directed to appear before the second respondent on 25.07.2017 and the second respondent was also directed to hear and pass appropriate orders within two weeks.
7. It is stated that, pursuant to the order of this Court, in the afore-stated writ petitions, the petitioners and the complainants appeared before the second respondent. The parties were represented by their respective counsels. They let in evidence and were also permitted to cross-examine the witness, thereafter the second respondent passed the impugned order on 23.08.2017. But it is contended, that the respondent omitted to communicate the same as is evidenced by the attendance registers, evidencing the fact of the petitioners having attended the meeting called on 31.08.2017 and 05.09.2017 and also their attendance in the training programme held at Hubli on 23.08.2017. Hence, it is contended that the impugned order dated 23.08.2017 is ante dated.
8. Pleadings & Contentions on behalf of the petitioners:
(i). It is contended that the respective spouses, in their applications, made for obtaining the license in Form 41 at column No.7 have categorically stated that the status of the applicant is as an individual. That though the applications were made and granted, no communication was issued by third respondent intimating the grant of license. That the present Secretary, who was cross-examined has stated in this regard as “I don’t know anything about that”.
(ii). It is further contended that as per Rule 77 and other connected Rules, the Committee is required to communicate its decision or order as the case may be to the applicant either by personally tendering the same or forwarding the same by registered post acknowledgment due. It is further contended as per clause (xii) of Rule 77, a licensee is disentitled for renewal if during the period of license he has not transacted any business in the notified agricultural commodity and has obtained the license only to avail advantages accruing therefrom. That the spouse of the first petitioner has not carried on any trade in the notified commodities and hence, she ought not to be construed as a trader.
(iii). That the spouse of the first petitioner had held the license only for a period of three months and later he surrendered the same on 20.04.2011. That the impugned order is bad in the light of the fact that the second respondent – authority has failed to consider the fact of surrender of license on 20.04.2011.
(iv). The impugned order is also bad and unsustainable in the light of the fact that the authority has failed to appreciate the endorsement issued by the third respondent that no trade license is issued in the name of the petitioners. That the authority also failed to record the evidence clearly.
(v). That the authority is deprived of the jurisdiction to adjudicate a pre-election disqualification i.e., a disqualification which was obtaining as on the date of election and despite which the person has been permitted to contest and was also successful in the election. That despite the amendment to sub-section (2) of Section 17, the second respondent - Director is not conferred with the jurisdiction to decide a pre election disqualification in the light of the language employed in sub-section (1) of Section 17 of the Act, 1966. That the law in this regard is laid down by the Division Bench of this Court in the case of Parappa vs. Nandarayappa and others reported in 1998 (6) Kar.L.J. 557, wherein, it is laid down that the director of agricultural marketing gets jurisdiction to decide the disqualification aspect of a sitting member, only it has been caused subsequent to his election. But, is the disqualification was of a period anterior to the election having bearing on the validity of his election itself, then the said issue can be decided only by the jurisdictional Munsiff, in an election petition.
(vi). That the second respondent has usurped the power of the Election Tribunal. That in terms of Section 38, an elected member is mandated to hold office for the entire stipulated term, That the right to hold office can be curtailed, only by resorting to a procedure contemplated under the act and in the manner known to law. That the, only procedure stipulated in this regard is the procedure envisaged under the provisions of Section 21 of the Act, 1966.
(vii). On the above pleadings, the petitioners have sought for issuance of writ of certiorari and quash the impugned order dated 20.08.2017 vide Annexure-J to the writ petitions. Secondly, the petitioners have also sought for striking down Section 17(2) of the Act, 1966 as amended vide Karnataka Act No.38/2013, as being unconstitutional.
(viii). An interim prayer was also sought for staying the operation and execution of the impugned order. As the learned Senior counsel’s contended that the matter being one pertaining to an elected office in a democratic set up, and on their consent, the same was heard on a priority basis. Hence, no interim order in the nature prayed for was granted. On the other hand, as requested by the counsel, the petitions were heard on day to day basis and the hearing was expedited.
9. Learned senior counsel Sri Jayakumar S Patil would contend that the only ground urged on behalf of the complainants, to hold that the petitioners have suffered a disqualification, is that their respective spouses have obtained traders license. He would draw the attention of the Court to the applications made by the respective spouses, produced as Annexures-N and R, in their respective writ petitions. He would submit, with particular reference to column 4/7, that the applicant has clearly mentioned that he intends carrying on business as an individual. He would further draw the attention of the Court to the related columns and would point out and state that the particulars sought under the application is all encompassing with regard to the fact of status of the applicant. That both the applicants have specifically mentioned that they are applying in their individual capacity. Further he would point out that the answering column/box against the entry ‘joint Hindu family’ has been scored out, indicating that the applicants had applied in their individual capacity and not in the capacity of a joint family or Joint Hindu family. Hence, the impugned order holding that the petitioners have attracted disqualification on the inference that they are related by marriage to the applicants is legally unsustainable, as no such category has been classified or stipulated under Section 16(1)(a) of the Act 1966.
10. He would draw the attention of the Court to the contentious provisions of Section 16 (1) (a) of the Act, 1966, and the same is extracted below for the sake of convenience.
“16. Disqualifications for membership.- Without prejudice to any other disqualifications provided in this Act.-
(1) a person shall be disqualified for being chosen as, or for being, a member of a market committee.-
(a) as a representative of agriculturists, if he or a firm in which he is a partner, or a body corporate (other than a co-operative society) in which he is a Director, or a joint family of which he is a member, does business as a trader, commission agent, broker, importer or exporter in any market area or was doing business as a trade, commission agent, broker, importer or exporter, till such date not later than five years immediately preceding the date of election”
(i). Taking the Court through the provision, he would contend that clause (a) of Section 16(1) debars four classes of persons only. Elaborating the said contention, he would contend that the Act envisages and entitles, only a living person as a member of the market committee. That there is no provision for a non-living entity to become a member of the market committee or to get elected as a representative of the agriculturist or of the traders as provided under Section 11 r/w Section 14 and 15 of the Act, 1966. Hence, viewed in this background, the provision has to be interpreted as only excluding four classes of persons from contesting as a representative from an agriculturists constituency. That is the person is a trader by himself or a person who is a partner of a firm, which is carrying on business as a trader or a person who, who is a Director of a body corporate, which is carrying on business as a trader or is a person who is a member of a joint family, which joint family carries on business as a trader. That apart from the above no other class of persons or person is debarred from contesting elections from the agriculturists constituency provided they are otherwise qualified to contest and their name is found enlisted as voters of the said constituency.
11. That holding of direct or indirect interest in a license or contract is not one of the category of persons stipulated under Section 16 of the Act, 1966 and hence, the disqualification of the petitioners is contrary to the mandate of the Act, 1966 and is unsustainable. He would contend that the concept of a direct or indirect, interest or share in a license or contract is alien to the Act of 1966.
12. Learned senior counsel would further draw the attention of the Court to similar provisions contained in other state enactments. That is the Sections 12(h), 128(1)(i) and 167(1)(k) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 or Section 16(1)(k) of the Karnataka Municipalities Act, which provide for disqualification on the ground of holding a direct or indirect interest.
13. He would further contend that a ground that the candidate is disqualified on account of a fact that the election is opposed to the objects of the act or opposed to public interest is not one of the grounds of disqualification envisaged under Section 16(1)(a) of the Act, 1966 nor does Section 16(1)(a) specifically stipulate that the spouse of a license holder is also disqualified. That in the absence of such a categorical classification, inferring the same is impermissible and illegal and unsustainable in law.
14. The learned senior counsel would contend that in the absence such specific stipulation under Section 16 of the Act, 1966, no sitting member can be disqualified under the provision of Section 17 on mere inferences, except only if the person comes within the four classes of persons referred to in Section 16 of the Act, 1966.
15. He would further contend that the Court ought to adopt the golden rule of interpretation, that is the rule of strict & literal interpretation of the language employed. That such a interpretation is mandated as the provision of disqualification is a penal provision resulting in termination of the remaining tenure and thereby affecting the larger interest of the constituency. That the Court must adopt a strict interpretation of the provision and in this regard he would rely on the rulings of this Court and the Apex Court.
16. Placing reliance on the ruling reported in 1995 5 Kar.L.J 268, he would draw the attention of the Court to paragraph 5. Therein, this Court has observed that disqualification proceedings are punitive in nature, resulting in severe consequences on the rights of the person to serve on the committee and that it will also have a bearing on his public life and may be seen as a reflection of his character. Reliance on the ruling is made to buttress the contention that the provision of Section 16 by placing an embargo on a certain class of persons to contest from an agriculturists constituency is punitive in nature.
17. The learned Senior counsel would place reliance on the ruling of the Apex Court reported in 2012(4) SCC 407 in support of his contention that the rule of interpretation applicable in the present case, in view of the punitive nature of the consequences, is the golden rule of strict & literal interpretation. He would draw the attention of this Court to the observations of the Apex Court in paragraphs 28, 29 and 35 to canvas the point, that when a case of removal is involved, it is obligatory on the part of the authority to strictly adhere to the statutory provisions as it results in an order having serious civil consequences. That an order having serious consequences, if passed without proper application of mind by adopting a casual approach has to be characterized as having been passed mala fide and such an order is liable to be quashed. He would further rely on paragraph 35 to contend that in a democratic institution, the elected member is accountable to the electorate, having been elected by a large number of voters and the electorate would be deprived of a representation. He would further rely on the observation of the Apex Court in the paragraphs 58 to 61, to contend that a complainant cannot be a party to the lis in the absence of a legally enforceable right and in instant case the complainant being a political adversary has no locus standi and at the most can lead evidence.
18. The learned Senior counsel would place reliance on the ruling of the Apex Court reported in 2001 (6) SCC 260 to advance the argument, that once elected a member is entitled to continue in his office, except and until, by a procedure prescribed under law, he is removed. In the instant case the respondents ought to have taken recourse to the provisions of Section 21 of the Act. In the light of the above, a duty is cast upon the authority to clearly state the clause under which the petitioners have incurred the disqualification. That it must be spelt out in clear terms and if it is obfuscated it vitiates the proceedings.
19. That the impugned order is based on non existent grounds and is a colorable exercise of power and requires to be struck down within the well settled parameters of judicial review of administrative action. He would place reliance on the ruling of the Apex Court reported in 2010(2) SCC 319 to additionally contend that the exercise of the power of removal, having serious consequences ought to be invoked for a strong and weighty reason only and the provision has to be interpreted & construed in a strict manner.
20. Learned Senior Counsel would contend, that though licenses have been granted no business has been carried out by the parties. Hence, even if assuming that there could be any disqualification by inference even the same is also not attracted as the respective spouses have not carried on any business for more than five years prior to date of deletion to attract disqualification. He would reiterate the effects of Rule 77.
21. The learned Senior Counsel would contend, that the concept of a spouse having direct or indirect right title or interest in the property or license held by the other spouse on the basis of relationship is not applicable to a Hindu family of husband and wife unlike under the Portuguese Civil Code. Whereby and on account of marriage, the spouse acquires equal right, title and interest in the property of the spouse. Elaborating on the said submission, he would contend that the concept of a husband and wife being one in unknown to Indian law unlike the British common law. In this regard and in support of the above contention, he would place reliance on two rulings of the Apex Court reported in 1969 (1) SCC 37 wherein the Hon’ble Apex Court held that the British common law rule of the husband and wife being one is the eye of law, has not been adopted in full force under our system of law and certainly not in our criminal jurisprudence. It was a case involving the prosecution of a person based on certain defamatory contents in the letter addressed by the husband to the wife and prosecution was lodged under section 499 read with Section 500 of IPC. He would further take this Court through the ruling of the Apex Court reported in 2012 (3) SCC 188. Therein the Hon’ble Apex Court, while dealing with the issue of disqualification, u/s 10 (f) of the Goa Panchayat Raj Act 1994, held that by operation of personal law i.e Portuguese Civil Court 1860 r/w S.5-A of the Income Tax Act 1961, resulted in a community of property and the spouse under the personal law became entitled to a share in the property of the other spouse. Hence the wife who was the member, acquired an interest in the contract awarded by the panchayat and thereby suffered a disqualification in the light of embargo placed on the members of the panchayat in having any direct or indirect share in the contract awarded. He would contend that such an inference is impermissible, as the petitioner has not acquired any such direct or indirect share.
22. The Learned Senior Counsel would place reliance on the ruling of the Apex Court reported in 2010 (2) SCC 319. And draw the attention of the Court to para 11, 24, 25 and 26 to reiterate his assertion regarding rule of interpretation.
23. The learned Senior counsel would contend that the reasons assigned by the authority alone, should constitute the basis for sustaining the order and the order of such a nature cannot be justified by supplementary reasons. In support of his contention he would place reliance on the ruling of the Apex Court, reported in 2017 (6) SCC 801. Placing reliance on the afore-stated ruling and also the ruling reported AIR 1952 SC 16, he would reiterate the contention that a public order passed by a public authority, meant to have a public effect, must be construed objectively and cannot be supplemented by an affidavit.
24. The learned Senior counsel would lastly contend that the impugned order is vitiated on account of the authority having permitted the complainants to partake in the enquiry contrary to the settled position in law and he would place reliance on the rulings of the Apex Court reported in 2012 (4) SCC 407; ILR 1998 (6) KLJ 557, and another ruling of the Apex Court reported in 2013 (4) SCC 465, to demonstrate the legal position that a complainant cannot be permitted to have a right of audition in the proceedings. This contention needs no in depth consideration, as it is required to be rejected at the threshold itself. The fact remains that it is the petitioners who arrayed them as party respondents at the first instance before this Court and have not agitated the direction of this Court permitting them to participate in the enquiry. The said order has become final. Now it is not open to the petitioner to contend otherwise. The petitioner having acquiesced to the participation of the complainant-respondents cannot now turn around and make their participation as a ground for vitiating the impugned order and are estopped by their own previous conduct.
25. Lastly, the learned counsel would place reliance on the ruling of the Hon’ble Apex Court reported in 1985 (supplementary) SCC 205; and the ruling reported in 2016 (1) SCC 170 to contend that any uncertainty or vagueness would be fatal to its validity. That the statute should clearly and unambiguously convey the components of a tax law. That is if there is any ambiguity regarding any of the ingredients in the statute then there is no tax law. That the absence of a prescribed machinery and prescribed procedure would partake the character of a purely administrative affair and it is for legislature to do the needful. That this Court cannot substitute or fill the lacuna in the provision.
The learned Senior counsel would further contend that in the absence of a declaratory provision enabling the declaration of a vacancy or declaring or deeming it to have become vacant deprives the 2nd respondent of the authority to recourse the petitions. The very provision is rendered vulnerable and in fact invalidates the provision.
26. The learned senior counsel would contend that in the absence of an enabling provision investing the second respondent with the power to declare a seat as vacant as provided under Section 21 of the Act, impugned order stands vitiated. That, Section 28 does not provide for automatic cessation of membership on account of a disqualification suffered under Section 16. It is lastly contended by the learned senior counsel that there is no automatic cessation on the mere declaration of disqualification, hence, the impugned order calls for interference. He would contend that in the absence of such a provision the 2nd respondent is devoid of the power to issue such a declaration.
27. In this regard learned counsel would draw the attention of this Court to the provisions of the Karnataka Local Authorities (prohibition of defection) Act 1987 and the provisions of the Karnataka Co- operatives Societies Act 1959 and would contend that there is no similar declaratory power or operative provision which deals with the issue of a vacancy on the declaration of disqualification by the 2nd respondent. He would further contend that there is no operative provision empowering the 2nd respondent to pass a punitive order.
28. He would contend that the principle of casus omissus is inapplicable to the case on hand and what is not apparent cannot be read into the enactment thereby providing for removal, which is a punitive or operative provision.
Contentions on behalf of the official Respondents:
29. Per contra, the learned Additional Advocate General Sri Shivanna, appearing on behalf of respondent Nos.1 and 2 would contend that as per the objections before the authority, the case of the petitioner was based on four broad grounds. One, the license has been surrendered/the grant of license has not been intimated. Two, despite the license being live, no business has been carried on, by the spouses. Three, that no proper enquiry is conducted and finally that the Director, i.e. the 2nd respondent has no jurisdiction to conduct an enquiry, with regard to a pre-election dispute. He would contend that these were the four grounds before the authority and that the scope of objections has been enlarged before this Court. He would then take this Court through the provision of Section 2 (30) defining the word ‘person’ which reads as follows;
“ S:2 (30) “ Person” includes a joint Hindu family, a company or firm or association or a body of individuals, whether incorporated or not”
30. He would fairly admit that the words, family and joint family, are not defined in the statute. He would contend that it is settled law that in the absence of the statute defining a word, the Court has to resort to external aid to determine definition and would refer to the meaning assigned in the dictionary.
31. He would further draw the attention of the Court to the definition of the words, family and joint family, as defined under similar beneficial legislation like the Karnataka Land Reforms Act 1961 and the Karnataka Rent Act 1999. He would place reliance on the definition of the words family and joint family, defined under Section 2(12) and 2(17) of the K L R Act 1961, which define as follows;
“S.2 (12): “ Family” means,-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and (d) whether an individual and his or her spouse are both dead their minor sons and unmarried daughters;”
S.2 (17) “Joint Family”- means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence;”
Further, he would place reliance on Section 3 (d) of the K R Act 1999, which defines as follows;
“ S.3 (d) “ Family” in relation to a person means the wife or husband of such person and his or her dependents;”
32. He would also draw the attention of the Court to the distinction drawn by the Stamp Act in respect of family and would draw the attention to the explanation to Article 45, which explains a family in relation to a person to mean husband, wife, son, daughter, father, mother, brother etc. He would also place reliance on the provisions of Section 122 of the Indian Evidence Act, to demonstrate the recognition accorded under law, to the relationship of a husband and wife, on account of which the law considers the institution of marriage as privileged. Hence it has conferred a privilege against a person being compelled to disclose any communication between the married couple. He would contend that the only social relationship, on which such a privilege is accorded, is only that of a husband and wife and that is because of the sanctity attached to the relationship by our traditions and customs. He would also draw the attention of the Court to the provisions of the Protection of Women from Domestic Violence Act, 2005, with particular reference to the rights vested in the wife and as a pointer in this regard, he would refer to the provisions of Section 2(s) of the Act. He would contend that from the above definitions in similar beneficial and other legislation it can be construed that civil law recognizes husband and wife as one. He would draw the attention of the Court to the definition of a family in the Oxford English Dictionary, which defines it as follows;
“a group consisting of two parents and their children living together as a unit. A group of people related by blood or marriage. The children of a person or couple All the descendants of a common ancestor.
33. He would draw the attention of the Court to the provisions of Rule 76 (6) of the Act, 1966 and would point out that the license once issued is valid for a period of 10 years. He would contend that admittedly the10 years period has not been completed in respect of the licenses granted to the petitioners. In the light of this fact, if the petitioners are permitted to contest from the agriculturists constituency, it would amount to a travesty of justice and would strike at the very intendment and object of the Act. He would contend that the object of providing majority of the constituencies to agriculturists is with the object of ensuring the control of the Market Committees in the hands of agriculturists and the present attempt by the petitioners, whose spouses are otherwise registered as traders and enlisted as voters in the traders constituency, if permitted would amount to a back door entry. That it would also lead to a conflict of interest as the petitioners would be inclined to promote the cause of their spouses/family and thereby compromise the interest of the agriculturists for whose benefit the statute is framed. He would draw the attention of the Court to the statements of objects and reasons and would contend that it is the farmer for whose benefit the statute has been enacted. He would contend that the ruling in Parappa’s case is inapplicable in view of the amendment to Section 17 he would contend that the legislature deemed it proper and necessary to amend the provision in view of the opinion expressed by this Court in WP No.34952/2011 and would draw the attention to para No.4 of the said order, which reads as follows;
“ 4. There appears to be serious anomaly in law. In the case of person who is not eligible gets elected and there is no election petition filed, it leads to inequitable and anomalous position where the person who has incurred disqualification at the time of nomination, continues to be the member. Therefore, in order to obviate the same, the Legislature has to pay attention and bring about proper amendment to law to invest power upon the Director to consider the case of disqualification incurred by the member even prior to the election.”
34. It was in this background and to address this anomaly pointed out by this Court that the amendment was introduced. He would contend that the heading does not control the section. He would also draw the attention of the Court to the amendment carried out to Section 21 whereby disqualification as a ground, which was also to be adjudicated by the Election Tribunal or the Civil Judge has now been omitted and the authority to decide all disputes pertaining to disqualification have been in vested with the 2nd respondent. He would further contend that a plain reading of Sections 17 and 28 would suffice to negate the contention there is no operative provision and that the legislature has not only provided for vacancies as listed up by the learned Senior counsel but even in respect of vacancies arising otherwise. He would contend that if the contention of the learned Senior counsel interpreting Section 28 is accepted it would render nugatory, the word “otherwise” and it is settled law that such an interpretation is impermissible. He would also refer to the phrase in section 28 “or through such member becoming disqualified”. He would further contend that the language employed in Section 17 (1) is would suffice to demonstrate that the vacancy or cessation of membership is deemed to have become vacant and no separate order or declaration is required to declare the seat as vacant. He would contend that the principles of harmonious constructions squarely apply to the case on hand. He would contend that the provisions of Section 16 and 17(1) and (2) of the Act has to be interpreted in the background of the amendment to Section 17 and 21 of the Act and if the interpretation as made out by the learned Senior counsel for the petitioners is accepted, it would result in an anomalous situation where a person who is ineligible to even contest, if by devious means comes to occupy a seat in a democratic institution, he should continue to illegitimately enjoy the office despite the prohibition in law. In this regard he would place reliance on the ruling of the Hon’ble Apex Court reported in (2016) 3 SCC 619 and placed reliance on the observation of the Court on the following paragraphs;
“ 31. The aforesaid two reasons given by me, in addition to the reasons already indicated in the judgment of my learned Brother, would clearly demonstrate that the provisions of Section 15(2) of the Act require purposive interpretation so that the aforesaid objective/ purpose of such a provision is achieved thereby. The principles of “ purpose interpretation” or “ purposive construction” is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the “ purpose” behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the Court is supposed to realise the goal that the legal text is designed to realise. As Aharon Barak puts it:
“ Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.
32. Of the aforesaid three components, namely, language, purpose and discretion “ of the Court”, insofar as purposive component is concerned, this is the ratio juris, the purpose at the core of the text. This purpose is the values, goals, interests, policies and aims that text is designed to actualise. It is the function that the text is designed to fulfil.
33. We may also emphasise that the statutory interpretation of a provision is never static but is always dynamic. Though, the literal rule of interpretation, till some time ago, was treated as the “ golden rule”, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or any lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied by the courts, not only in this country but in many other legal systems as well.”
35. The learned Additional Advocate General would place reliance on the ruling of the Apex Court in the case of Central Bureau of Investigation Bank Securities and Fraud Cell vs. Ramesh Gelli and others, reported in (2016) 3 SCC 788 and draw the attention of the Court to the paragraph No 40 of the judgment, which reads as follows;
“40. Though the rule of casus omissus i.e., “what has not been provided for in the statute cannot be supplied by the courts”, is a strict rule of interpretation, there are certain well-known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Ltd. V. Asher noticed and approved by this Court may be taken note of (KB P.499: All Erp. 164 E-H).
“….The English language is not an instrument of mathematical precision, our Literature would be much the poorer if it were… He (The Judge) must set to work in the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to given ‘ force and life’ to the intention of the legislature…. . A Judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”
36. He would contend that there is no doubt that the license granted to the spouses of the petitioners amounts either to a contract or an order whereby the licensee is vested with certain rights and also acquires certain benefits in the 3rd respondent Market Committee, for example entitling him to acquire even immovable property developed by the 3rd respondent in nature of a shop or plot. He would also contend that it is not in doubt that the right granted by the 3rd respondent under the deed of license is a inheritable right that would enure to the petitioners.
37. He would contend that it is undisputed that both the petitioners and their spouses are Hindus and governed by Hindu law and it is not in doubt that both under Sections 10 and 15 of Hindu Succession Act, the respective spouses fall in the category entitling them to a right at the first instance and hence he would contend that the contention of the learned Senior counsel that the application which describes the status as individual does not tantamount to depriving or denying any interest of the spouse in the right accrued under the deed of license. In this regard he would place reliance on ruling of the Hon’ble Apex Court reported in (2012) 3 SCC 188, wherein the Hon’ble Apex Court has extracted and placed reliance on the contents of P. Ramanatha Aiyar’s book and the observation of the Apex Court in the case of Gulam Yasin Khan, the Court held at para No.17 and 21 as follows;
“Interest. - Legal concern, right, pecuniary stake the legal concern of a person in the thing or property or in the right to some of the benefits or use from which the property is inseparable; such a right in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. The word is capable of different meanings, according to the context in which it is used or the subject matter to which it is applied. It may have even the same meaning as the phrase ‘ right title and interest’ but it has been said also to mean any right in the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property.
‘Interest means concern, advantage, good; share, potion, part, or participation’.
21. While considering Section 15 (1) of the CP Municipalities Act which provided for the disqualification to the elections of the Municipal Committees, this Court in Gulam Yasin Khan held that the purpose and the object of prescribing several disqualification in that provision is to ensure the purity of the administration of the Municipal Committees and in that sense the different clauses of disqualification should not receive unduly narrow or restricted construction. We also hold the view that the prohibition in Section 10(f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the appellant has incurred disqualification under Section 10 (f) of the 1994 Act. We hold accordingly”.
On the above grounds the learned Additional Advocate General would pray this Court to reject the writ petition.
38. Contention on behalf of the 3rd respondent:
On a query from this Court with regard to the document produced at Annexure-E by the petitioner in the first writ petition purportedly an acknowledgment by the 3rd respondent, the in-charge Secretary of the 3rd respondent-Committee filed an affidavit and has categorically denied receipt of the same and has deposed at para No.9 to 11 as under;
“9. It is submitted that the alleged letter dated 20.4.2011 vide Annexure-E is not forthcoming in the committee records. I also verified from the Tapal Register which was maintained by one Kallaiah Swamy Hiremath. In the said register, there is no entry regarding receipt of the said alleged letter dated 20.4.2011. In the said register, there were 3 letters were received by the committee. The copy of the said Tapal registration extract from the date 20.4.2011 and 21.4.2011 is herewith produced as Annexure-R8.
10. It is further submitted that the alleged signature found on the letter dated 20.4.2011 vide Annexure-E, one Angadi has signed. I also verified the attendance register for the month of April 2011. There were 20 staff members to the APMC, Gangavathi and they have also signed to the said attendance register for entire month of the April, 2011. But no such signature which is available in the alleged letter dated 20.4.2011 is not tallying with the attendance register. The copy of the said attendance register for the month of April 2011 is herewith produced as Annexure-R9.
11. It is submitted that the signature available on the alleged letter dated 20.4.2011 vide Annexure-E is not at all received by the committee. Hence the said alleged letter which is produced by the petitioner is hereby denied.”
39. The learned counsel for the 3rd respondent would reiterate the contentions by the learned Additional Advocate General. He would draw the attention of the Court to the Annexure-R7, the copy of a license issued in favour of the entity called ‘Neelakanteshwara Trading Company’ dated 17.4.2010 and also the resolution passed on 7.4.2010 and would state that the license is valid till 2019-20. He would also draw the attention of the Court to Anenxure-R3, 4 and 5 which are the voters list and it is seen that the said Neelakanteshwara Trading Company is enlisted as a voter at Sl.No.504 of the first list and the name of the voter/ representative of the company is described as Bagodi Kantibasava S/o Veerbhadrappa Taloor. It is not in dispute that the said Bagodi Kantibasava is the husband of the 1st petitioner. The learned counsel for the 3rd respondent would further draw the attention of the Court to paragraph No.6 of the affidavit wherein the deponent has categorically stated that the voters’ list has been prepared in the year 2016 after verifying the traders license register. It is further contended by the learned counsel that the petitioner has obtained the endorsement from the Asst. Secretary on 24.7.2017 and the Asst. Secretary has issued the endorsement under the Right to Information Act.
40. In respect of the 2nd petition also, the 3rd respondent has preferred an affidavit by the in- charge Secretary and the learned counsel would draw the attention of the Court to Anenxure-R6 which is the license, Annexure-5 is the voters’ list and would point out the entry at Sl.No.464 wherein the name of the trading unit entity is described as ‘Sri Laxmi Vinayaka Agencies, Siddapura’ and the name of the voter is described as C.Ramalaxmi W/o Chittoori Durgarao who is none other than the 2nd petitioner. That, apart the learned counsel would draw the attention to Annexur- R6 and would submit that the 2nd petitioner who was a member of then Market Committee was in fact a participant in the meeting of the 3rd respondent- committee held on 30.10.2012 to allow the application and grant the license infavour of the trading entity, Sri.Laxmi Vinayaka Agencies and he would contend that the allegations to the contrary and pleading innocence or ignorance is contrary to the material on record. That the 2nd petitioner had also received the sitting fee of Rs.380/- and has acknowledged attendance and receipt of the sitting fee and he would place reliance on Annexures-R-7, R-8 and R-9. He would further clarify that the information has been issued by the RTI officer one Sri. Y.M. Mallikarjunayya, Market Supervisor. The learned counsel would contend that the voters’ list of the traders constituency has been prepared after verifying the traders license register and would affirm the correctness of the entries in the voters’ list.
Contentions on behalf of the Private Respondents:
41. The 4th respondent in both the writ petitions has preferred separate statements of objections. The learned Senior counsel Sri. V. Lakshimanarayana, appearing on behalf of the private respondents would draw the attention of the Court to Section 11 to demonstrate the constitution of 3rd respondent- Committee. He would submit that the Committee consists of 11 members to be elected by the agriculturists in the market area. He would contend that in respect of traders, only one member is permitted to be elected as a representative by the traders registered in the market area. He would submit that the very numbers are indicative of the object of the enactment. Out of the total number of members, numbering 18, 12 are elected member is and out of the 12, 11 are elected by the agriculturists. The remaining 6 are nominated and yet again 3 of them are required to be agriculturists. He would draw the attention to the first proviso to Section 11 and contend that the market Committee would be constituted even without there being a representative of the traders.
42. He would further draw the attention of the Court to the provisions of Section 13 and contend that the entire elections are under the superintendence direction and control of the 2nd respondent. Though, it is the Deputy Commissioner who conducts the elections, it is subject to the instructions issued by the 2nd respondent. The learned senior counsel would take this Court through Sections 14 and 15.
43. The learned senior counsel coming to the provisions of Section 16(1)(a), he would contend that when the larger body of joint family is brought within the mischief of Section 16(1)(a) it cannot be gainfully argued that it does not include the smaller unit of family.
44. He would draw the attention of the Court to the definition provision at Section 2 and submit that the definitions are contextual definition and are to be understood in the context they are used and strict and literal meaning ought not to be placed on them as otherwise it could result in inherent or unintended contradictions, which the legislature desired to avoid. He would contend that the mere fact that the name of the petitioner is found in the voter list dis-entitles her to contest and at the most, she is only entitled to vote in view of the bar under Section 16 (1)(a). He would place reliance on Black’s Dictionary 8th Edition to draw support in respect of his contention with regard to family and joint family. A family is described as follows;
“ 1. A group of persons connected by blood, by affinity, or by law, esp. within two or three generations. 2. A group consisting of parents and their children.
3. A group of persons who live together and have a shared commitment to a domestic relationship.”
45. Enlarging and elaborating on the above contentions, he would contend that the submission on behalf of the petitioners that only members of the joint family are prohibited and not members of a family is a contradiction in terms. He would submit that there cannot be a joint family without there being multiple families. He would contend that it cannot be disputed that the petitioners and their respective spouses constitute, as husband and wife, a family as defined by the Dictionary. That being the undisputed fact, he would contend that the petitioners would automatically come within the rigor of Section 16(1)(a). He would contend that in view of the contextual definition it must be understood and read to include even a family. In support of his contention he would place reliance on the decision of Hon’ble Apex Court reported in (1997) 2 SCC 253. The Hon’ble Apex Court in a case arising out of the T.N. Buildings (Lease and Rent Control) Act, 1960 examined the issue as to whether a foster son comes within the definition of family within the meaning of Section 2(6-A). Interpreting the clause, the Hon’ble Apex Court has been pleased to observe as follows;
“ 10. Apparently, it appears that the definition is conclusive as the word “ means” has been used to specify the members, namely, spouse, son, daughter, grandchild or dependent parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens with the words “ in this Act, unless the context otherwise requires” which indicates that the definitions, as for example, that of “ family”, which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislature.
11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted.
12. Where the definition or expression, as in the instant case, is preceded by the words “ unless and context otherwise requires”, the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied.
13. This Court in K. Balakrishna Rao v. Haji Abdulla Sait reported in (1980) 1 SCC 321 while considering the definition clause of this Act which is under our consideration, held: (SCC p.337, para 24) “ A definition clause does not necessarily in any statute apply in all possible contexts in which the word which is defined may be found therein. The opening clause of Section 2 of the principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein unless the context otherwise requires.
14. In its ordinary and primary sense, the term “ family” signifies the collective body of persons living in one house or under one head or manager or one domestic government. In its restricted sense, “ family” would include only parents and their children. It may include even grandchildren and all the persons of the same blood living together. In its broader sense, it may include person who are not connected by blood depending upon the context in which the word is used.
x x x x 17. This Court in Corpn. Of the City of Nagpur v. Nagpur Handloom Cloth Market Co. Ltd. reported in AIR 1963 SC 1192, while interpreting the word “ family” observed as under:
“ But the expression ‘ family’ has according to the context in which it occurs, a variable connotation. It does not in the setting of the rules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement. Even a single person may be regarded as a family, and a master and servant would also be so regarded”.
It was further observed as under:
“ The expression ‘family’ must therefore take colour from the expression ‘occupy’ used in the same rule. In our view the expression ‘family’ in the context in which it occurs, means no more than a person or a group of persons.”
46. Elucidating further he would further draw the attention to the contentious provision of Section 16 and would state that on a conjoint reading of Sub- Section 30 of Section 2 of definition provision and Section 16, the inescapable conclusion that one can arrive at, is that the word ‘person’ used would also include a person like the petitioners whose spouses are licensed traders. He would further lay great stress on the language of Section 2, which reads as follows;
“ 2. Definitions- In this Act, unless the context otherwise requires.”
47. Further pointing out to sub-Section 30 of Section 2 he would state that the definition of a ‘person’ is a inclusive definition and not an exhaustive one as the word ‘person’ is defined to “include” a joint Hindu family, a company or firm or association or a body of individuals, whether incorporated or not. He would contend that even assuming that they are not a family, it can still be concluded that they constitute a body of individuals not incorporated. If the above, is read in conjunction with Section16, then the word “person” in provision would refer to and include a person like the petitioners and it is the natural corollary of a conjunctive reading of the above provisions.
48. He would contend that the disqualification involved in the present case does not tantamount to a removal, he would place reliance on catena of rulings of the Hon’ble Apex court to buttress the argument and he places reliance on the following in this regard. 2007 (3) SCC 184, 2013 (7) SCC 653, 1998(4) SCC 626. He would further place reliance on the ruling of the Hon’ble apex Court reported in 2014 (7) SCC 99 to demonstrate the distinction between an election petition and disqualification proceedings. Elaborating further he would submit that the mere omission to object to the nomination would not entitle the disqualified candidate from enjoying office on account of the fact that he or she is successful in the elections. In this regard he would place reliance on the ruling of the Apex Court reported in 2008 (17) SCC 311. He would submit that the election is a continuous process consisting of several stages and embracing many steps, of which nomination is one. He would contend that nomination is the foundation of a candidates right to go to the polls and if the persons is disqualified on the date of nomination he cannot be chosen as a candidate as the disqualification is attached to him on the said date. In this regard, he would place reliance on the ruling of the Apex Court reported in AIR 1957 SC 871 and (1952) SCR 218. He would also rely on the ruling of the Apex court in 1999 (2) SCC 627 to demonstrate the contention that merely because some grounds are available to set aside the elections it would not absolve the competent authority from exercising the power under the disqualification laws. He would also place reliance on the ruling reported in 2014 (7) SCC 99. He would also place reliance on a catena of rulings of the Hon’ble Apex Court with regard to the point of automatic cessation in the event of a declaration, declaring the candidate as disqualified. He would place reliance on the rulings reported in 2013 (7) SCC 653, 1999 (2) SCC 627, 2009 (9) SCC 648 and AIR 1954 SC 653.
49. It is not in doubt that the present disqualification does not involve a pronouncement on the validity or legality of the election process, but he would contend that unlike in case of a removal, the present adjudication is in the nature of summary enquiry as the authority is merely required to pronounce as to whether in the facts and circumstances the pre-election prescription is attracted or not. The authority only decides, as to whether the prohibition set out under the enactment is applicable to the person who is alleged to suffer the disqualification.
50. He would further contend that the core and soul of Section 16(1) (a) is to prevent a trader and members of his family from aspiring to become representative of the agriculturists as it involves a conflict of interest. He would further contend that the legislature has used the word joint family in Section 16(1)(a) and not a Hindu joint family as included in sub- section 30 of Section 2. He would contend that the same is not without significance. Elaborating further he would submit that it is well accepted fact that it is not only Hindus who live as joint family, but even Sikhs, Muslims etc. also live in joint families. He would further contend that even as per the petitioners’ contention, it is a proprietary concern, which is not registered and hence is not a juristic person. He would contend that agriculture is a State subject and the state is fully empowered to pass a law either prospectively or retrospectively, he would also place reliance on a catena of rulings to demonstrate the fact of the State being vested with the power to withdraw the cases pending before the court and to transfer them for determination by an Authority. He would place reliance on the ruling of the Hon’ble Apex Court reported in AIR 1995 SC 807 and AIR 1961 SC 1087.
51. Learned senior counsel would contend that the entry of the names of the spouses in the voters’ list of the traders constituency is paramount proof and that the entries in the traders voters’ list has not been questioned by the petitioners or their spouses and that this court cannot go into the validity of the entries in the voters’ list and the voters’ list is irrefutable evidence of the fact that the spouses of the petitioners are the registered traders as on the date of the notification and the date of election.
52. The learned counsel placing reliance on the ruling reported in 2005 (1) SCC 754 would contend that in respect of disqualification, this court ought to adopt a practical view to arrive at an appropriate conclusion. Elaborating further he would contend that the disqualification provision must have a reasonable nexus with the object sought to be achieved by the enactment and the provision ought to be interpreted keeping in mind the scope and object of the enactment.
53. The senior learned counsel on the point of interpretation of the statue would place reliance on a catena of rulings of the Hon’ble Apex Court reported in 2008 (13) SCC 369, 2009 (16) SCC 659, 2013(3) SCC 1 and contend that the construction to be placed should not be one that could lead to some absurdity or repugnance or inconsistency with the enactment and that the grammatical and ordinary sense of the word ought to be modified to avoid the absurdity and inconsistency. Further elaborating on the said submission he would contend, to achieve the same the court must fall back on principle of purposive construction in the facts in the present case. He would further contend that if two interpretations are possible, the narrower of the interpretation which would fail to achieve the manifest purpose and object of the legislation should be avoided and the construction which would not render the legislation futile should be accepted. He would submit that the legislature enacts the statute as a workable document and it is the duty of the courts to place a construction that would advance the object of the enactment and not construction that would go to defeat the purpose of the provision or render the statute on nullity.
54. Lastly, the learned senior counsel dwell on the contention of fraud he would contend that both the petitioners have played a fraud upon the court and he would submit that the 1st petitioner has endeavored to create an alibi in the form of surrender of license. He would contend that the said contention is falsified by the very voters’ list. He would contend that the voters’ list is prepared on the strength of the entries the Traders License Register. He would submit that the petitioners who were the vice-president and president have actively attempted to screen and suppressed the material from the authority and even have gone to the extent of concocting documents like the document at Annexure-E dated 20.4.2011 in the first writ petition. He would contended that, the petitioners accepting the seat of power have engineered the RTI responses by sub-ordinate. He would also draw the attention of the court to the information provided under the R T I Act. He would submit that neither during the enquiry nor before this court has the petitioners placed any material to prove the point of surrender of license or non communication of the license. He would submit that the petitioners in fact are guilty of perjury for having attempted to subvert the due process of law by suppressing material fact. He would submit that the petitioners have not approached the court with clean hands and on that short ground alone they are liable to be non-suited. He would contend that fraud vitiates every solemn process including the judicial proceedings. He would contend that the misrepresentation by itself is fatal and this court after deny any equitable relief. He would place reliance of the Hon’ble Apex Court namely, rulings reported in 2012 (1) SCC 476, 2006 (7) SCC 416, AIR 1962 SC 814, 2005 (6) SCC 149, 2000 (1) SCC 666, 2007 (14) SCC 108, 2008 (12) SCC 481, 2009 (13) SCC 569, 2013 (9) SCC 363, and several other rulings. He would contend that the present writ petitions are an abuse of process of the court. Placing reliance on the ruling of the Apex Court reported in 2013 (2) SCC 398, he would contend that it has been consistently held and off restated by the Apex court that the duty of the court and the judge is to discern truth as truth is the basis of the justice delivery system. Elaborating further he would contend that a litigant is bound to make a full and true disclosure of facts. He would place reliance on the legal maxim “jure nature aequum est neminem cum ulterious determinto at injuria firi locupletiorem” meaning thereby that it is a law of nature that one should not be enriched by the laws or injury to another. The learned senior counsel would also elaborate on the aftermath of suppression of facts.
Reply by Petitioners 55. In reply, the learned senior counsel appearing on behalf of the petitioners would contend that there is no category as contended by the respondents and also that the respondents have not demonstrated, that the category “ individual” is contrary to the law or the statute. He would contend that the license provides for an individual to seek and make an application. He would further submit that if it was the intention of the legislature to make relationship as a basis for disqualification the legislature would have accordingly provided as are under Section 29 (c) of the Karnataka Co-operative Societies Act, 1959. The disqualification on the basis of relationship is alien to the APMC Act, 1966. He would further contend that the person described in Section 2 (30) of the APMC Act, 1966 cannot be equated with the word “person” used in section 16. He would contend that there can be a disqualification only of a living person and not a juristic person. The learned senior counsel would submit that it can never be understood to mean that merely because the husband is a licensee the wife also can be construed as a licensee. In this regard he would place reliance on the ruling reported in 2012 (3) SCC 188. He would also state a poser to the court asking whether under any law be it any statute or customary law the property of the husband can be treated as the property of the wife. He would contend that the impugned order passed on the grounds of morality or other grounds cannot be the grounds for disqualification and the disqualification must be relatable to a ground or basis enumerated in the statute. Elaborating further he would draw the attention of the court to the provision of Section 16 and would contend that acting against the objective of the enactment is not a ground of disqualification provided under the Act and to buttress his argument he would place reliance on the ruling reported in 1969 (1) SCC 37. He would further reiterate that the only operative provision is Section 28 and it deals with the case of the resignation (S.40), removal (S.44) not accepting office, becoming disqualified (S.17(1)), election being set aside. He would further contend that the word or otherwise used in Section 28 will take the colour from its preceding words that is species of contingencies over which neither the Act nor legislature have any control and hence the provision of Section 17 (2) cannot be imported or read into Section 28 and hence the impugned order holding that the petitioners ceases to be a member is without authority of law as the Director is not vested with such a jurisdiction.
In Reply:
56. The learned senior counsel appearing on behalf of the Private respondents would contend that the issue of automatic cessation of office on declaration of a candidate being declared as disqualified is no more res integra and would place reliance on the ruling of the Apex Court in Lilly Thomas’s case. He would contend that the word otherwise has to be read ejusdem generis. He would contend once the pronouncement is made by the competent authority holding that the candidate was disqualified to contest the elections, it would relate back to the date of election and hence no formal declaration of the member having vacated the office is required. He would contend that the petitioners cannot be permitted to take undue advantage of the absence of definition of word family under the APMC Act, 1966. He would submit that in the light of the laid down by the Hon’ble Apex Court Muthu’s case reported in 1997 (2) SCC 53 the only inescapable conclusion one can arrive is that the word joint family would also include the family. He would contend that if the interpretation as placed by the petitioners is accepted then it would advance the mischief which the provision seeks to prevent, the mischief being prohibiting members of the traders’ family from seeking election as representative of the agriculturists. He would submit that question of legality or virus of Section 16 and 17 does not arise, in view of the established law whereby the Apex Court has consistently upheld the provisions relating to disqualification on various grounds like having more than two children, not having a functional toilet, not possessing the minimum qualification etc. He would submit that the disqualification provision is enacted keeping in mind the larger public interest and that it has a reasonable nexus with the object sought to be achieved by the Act.
57. He would contend that the interpretation of a provision should always be one of reading up and not read it down as settled by the Apex court in Kapoor’s case reported in 2001 (7) SCC 231. He would also place reliance on the said ruling in support of his contention regarding contextual interpretation. He would further place reliance on a catena of decision of the Apex Court with regard to the applicability of rule of purposive interpretation to prevent the mischief as made out by the intendment of the Act. He would place reliance on the ruling reported in 1974 SCC 415 and 1969 SCC 269, 2016 (2) SCC 445, 2003 (2) SCC 628. The learned senior counsel prayed for the dismissal of the writ petition.
Reply by official Respondents:
58. Learned Additional Advocate General would reiterate that the amendment to the Act 1966 have been carried out on the orders of this court pointing out the inherent lacuna with regard to the adjudication of a pre- election disqualification or a disqualification that existed as on the date of the election on account of which the candidate was disentitled even to participate in the election. He would contend the provisions of disqualification enacting for disqualification and the source of authority for the State to enact are no more res integra and have been upheld by the Apex Court under all enactments governing the election and formation of bodies governing democratic institutions. He would pray for dismissal of the writ petitions.
Reasoning and Conclusion:
59. In the light of the above discussion, the second prayer, praying for striking down Section 17(2) as being unconstitutional is taken up first for consideration by this court. Though such a relief is prayed and certain pleadings are made, no serious arguments are canvassed before the court with regard to the same. Even otherwise no substantial grounds are made out either in the pleadings or in the written submissions demonstrating the provision to be ultra virus or unconstitutional.
60. It is not in doubt that the enactment is one aimed at the welfare of farmers and as a measure in this direction the farm produce have been notified to ensure safe market practices. Entry 14 of List II of the 7th schedule of the Constitution of India pertains to agriculture and List-II being in the State List it is well within the domain of the State legislature to enact legislation. That being so, the State is entitled to enact the legislation.
61. Further, the law regarding the constitutional validity of a provision dealing with disqualification has been upheld by the Hon’ble Apex Court on numerous occasions. Some of which have been referred herein above. The petitioners have not demonstrated as to how the provision is unconstitutional. It is neither pleaded or argued that the provision is discriminatory, arbitrary or violative of the fundamental or statutory right nor is it canvassed that the legislature is devoid of the power to legislate the said provision. Hence, the second prayer requires to be rejected and is accordingly rejected.
62. Now, coming to the contentious issue of disqualification, it is to be seen whether the reasoning adopted by the authority for holding that the petitioners have suffered a disqualification on the ground that the petitioners are members of a family whose other member holds a traders’ license is sustainable in law?
63. The undisputed facts as can be culled out from the pleadings by the parties is that the husband of the petitioner in the first writ petition and the wife of the petitioner in the second writ petition have applied for and have been granted a license to operate as a trader’s in the market area. That, the license has been issued by the 3rd respondent- Market Committee. That, the spouses of the petitioners apart from the license are also registered under the relevant sale tax laws and have been assigned registered numbers. It is also not in dispute that the licenses were current and live as on the date of the election notification. It is also not in dispute that the respective trade entities are run by the spouses of the petitioners and the names of the spouses of the petitioners is also found on the electoral rolls of the traders constituency. In this background, the authority held that as the family member of the petitioners are registered as traders, the disqualification set out under Section 16 gets attracted and accordingly declared that the petitioners stood disqualified and consequentially the authority held that the seats represented by the petitioners stood vacated.
64. On a plain reading of the provisions of section 16 what is contemplated is made apparent by the very heading of the section and the language employed in sub-section (1). The legislature has not only chosen to provide the disqualification to contest but also from continuing in the post. Thereafter it attempts to broadly classify “the persons” who are ineligible to contest or be a representative of the agriculturists. The classification in clause (a) is not an a exhaustive enumeration of the persons who are made ineligible to act as representatives of agriculturists. The provision is only indicative, it is not exhaustive definition. Hence, the contention of the learned senior counsel that in the clause (a) of sub-section (1) debars only four classes of people is misplaced. It not only debars the persons described therein but also their family members. The rigor of the prohibition imposed under the clause is made apparent by the imposition, by which a person who was earlier a trader is not qualified to become a representative of the agriculturists, till the completion of a moratorium five year period, prior to the date of election. This stringent condition is by itself ample proof of the intent of the legislature and object of the provision. Thus, it is to be held that the legislature while crafting Section 16 (1) has not only provided for a prohibition, which disentitles a person from contesting the elections but also provides a bar for the continuance of such person even if he be elected. The language used is “ for being chosen as, or for being, a member of a market committee”. Thus, the person who is ineligible to contest is not only prohibited from contesting but if in fortuitous circumstances, gets elected even such a person is brought within the ambit of the provision by the phrase “or for being, a member of the market committee”. Hence, the contention that the provision of section 16(1) does not provide for a prohibition with regard to continuance of an ineligible candidate in office is unsustainable. This court concludes as above after a conjunctive reading of section 16 (1) and clause (a) and (b). Sub-section (2) deals with eligibility criteria which are attracted even in respect of a person who otherwise was eligible to contest from the agriculturists constituency and act as a representative of the farmers.
65. The learned senior counsel would endeavor to stress and emphasize on the relative importance of the status as declared in the application as provided in the Form-41. On a closer scrutiny of Section 16 (1)(a) it becomes apparent that the provision only contemplates the status of the contestant. If the provisions of Section 2(30) and Section 16(1)(a) are read conjointly, invariably the only and logical conclusion that one could arrive at is that the Act lays emphasis on the status of the contestant i.e., as to whether the contestant is a trader or hails from a family of traders or is associated with the juristic entity carrying on business as a trader.
66. The learned senior counsel appearing on behalf of the petitioners has relied on a catena of judgments to demonstrate that the removal can only be on a ground already enumerated in the provision and it cannot be on inference. This court has no quarrel with the proposition and the law laid down in this regard by the Hon’ble Apex Court, but on a closer scrutiny it is seen that the rulings on which reliance is placed pertain to either removal on account of the disqualification acquired by the candidate subsequent to the election or the removal of a candidate by the Government on the ground that the elected member was unfit to continue in office. None of the rulings pertain to a disqualification, acquired anterior to the election. The rulings do not relate the law with regard to a pre- election disqualification and its consequences.
67. In the light of the rival submissions, it is seen that disqualification referred to and involved in the case on hand is a prescribed disqualification i.e., a prohibition enacted by the legislature prohibiting certain classes of persons from contesting from constituencies to represent agriculturists. From the reading of the provision, it is apparent that disqualification are two fold; 1) one a threshold bar, in the nature of a prohibition, disentitling certain class of persons from even contesting from the agriculturists constituency, 2) second a disqualification which may occur subsequent to the elections. In the first type of disqualification, the person cannot even contest the elections. In the second type of disqualification, the candidate is eligible to validly contest the election but on account of certain other prescriptions in the provision the candidate is forced to be removed. For example: on his being sentenced by a criminal court or if he is declared as un-dishcarged insolvent or if he is declared to be of unsound mind.
68. It cannot be disputed that the legislation in question is a remedial and beneficial legislation. As it aims at remedying the unequal bargaining power as exists between the soulful farmer and the merchant class. In otherworlds it is an attempt by the legislature to place the farmer and the trader on the same stratum. Mere perusal of the provisions enacted suffice to conclude that the enactment is a self contained code with regard to the object it desires to achieve.
69. The enactment is another piece of beneficial legislation and is concluded so by this Court in view of the slew of provisions contained therein which are primarily aimed at protecting the interest of the farming community which strives to produce the notified commodities with or without the munificence of mother nature. It is apparent that the enactment is in favour of the farmers and to protect their interests. A pointer in this direction is the composition of the committee. As contended by the respondents the legislature has reserved 11 out of 12 Constituencies that go to election in favour of agriculturists. That apart of the nominated members three are required to be agriculturists by themselves. These figures speaks volumes about the object of the Act. In the light of this fact alone there can be no two opinion about the fact that the focus of the act, is the farmer. It is also amplifies the intention of the legislature, i.e., to vest the administration of the market committee in the agriculturists. The one another provision which aids this Courts in arriving at such a conclusion is the fact that the act provides for a constitution of the market committee even in the absence of a representative of the traders.
70. Now the crucial questions that arise are is as to how the provision is to be interpreted. Whether the strict rule of interpretation or the purposive rule of interpretation is to be adopted and as to whether the scope and object of the enactment can be made the basis for the interpretation of a provisions of Section 16(1)(a) ?
In answering the above questions this Court is required to traverse the authoritative pronouncements by the Hon’ble Apex Court. The dictum of these rulings is the key to the conclusions by this Court. This court has examined the various rulings rendered by the Apex Court across a spectrum of cases and the reasoning rendered by the Apex Court involving issues regarding interpretation of provisions. The cases settled by the Apex Court arises in various fields of law i.e., under the Representation of Peoples Act, litigation of commercial nature, cases under the Co-operative field cases arising under the Prevention of Corruption Act etc., wherein the Apex Court has unequivocally held that the interpretative exercise ought to be a purposive one and the object of the enactment is also of, relevance to arrive at a purposeful interpretation. This court relies on the dicta of the following cases to conclude as that rule of interpretation to be adopted is one purposive interpretation and scope and object of the enactment are also to be relied on for arising at a purposeful interpretation.
71. The Hon’ble Apex Court in the ruling reported in (2005) 1 SCC 754 - K.Prabhakaran vs. P.Jayarajan, it has been please to hold as follows :-
“54. The purpose of enacting disqualification under Section 8(3) of the RPA is to prevent criminalization of politics. Those who break the law should not make the law.
Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics, and the House -- a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred and have no reservation from indulging into criminality to win success at an election. Thus, Section 8 seeks to promote freedom and fairness at elections, as also law and order being maintained while the elections are being held. The provision has to be so meaningfully construed as to effectively prevent the mischief sought to be prevented. The expression 'a person convicted of any offence' has to be construed as all offences of which a person has been charged and held guilty at one trial. The applicability of the expression "sentenced to imprisonment for not less than 2 years" would be decided by calculating the total term of imprisonment for which the person has been sentenced.”
“55. Shri K.K.Venugopal, learned senior counsel appearing for respondent in one of the appeals, submitted that Section 8 of the RPA is a penal provision and, therefore, should be construed strictly. We find it difficult to countenance the submission. Contesting an election is a statutory right and qualifications and disqualifications for holding the office can be statutorily prescribed. A provision for disqualification cannot be termed a penal provision and certainly cannot be equated with a penal provision contained in a criminal law. If any authority is needed for the proposition the same is to be found in Lalita Jalan and Anr.
v. Bombay Gas Co. Ltd. and Ors. which has held Section 630 of the Companies Act, 1956 not to be a penal provision. The Court has gone on to say (SCC p.119, para 18), "the principle that statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case."
“59. In Shibu Soren v. Dayanand Sahya - a three-Judge Bench of this Court was seized of the question of examining a disqualification on account of the person at that time holding an office of profit. The Court held that such a provision is required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and the relevant statutory provisions. While "a strict and narrow construction" may not be adopted which may have the effect of "shutting of many prominent and other eligible persons to contest elections" but at the same time "in dealing with a statutory provision which imposes a disqualification on a citizen, it would not be unreasonable to take merely a broad and general view and ignore the essential points". (SCC p.447, para 36) What is at stake is the right to contest an election and hold office. "A practical view, not pedantic basket of tests" must, therefore, guide courts to arrive at appropriate conclusion. The disqualification provision must have a substantial and reasonable nexus with the object sought to be achieved and the provision should be interpreted with the flavour of reality bearing in mind the object for enactment.”
72. The above observation of the Apex Court clearly nullifies the assertions on behalf of the petitioners that the provisions providing for disqualification are penal provisions. The Apex Court has rejected a similar contention. The Apex Court while dealing with the question of interpretation has also held that a strict and narrow construction may not be adopted even if it as the effect of shutting of many prominent and other eligible persons to contest the elections. It further held that the provision must have a substantial and reasonable nexus with the object sought to be achieved and it should be interpreted with the flavour of reality bearing in mind the object for enactment.
73. The Hon’ble Apex Court in the case State of Gujrat and another vs. Justice R.A.Mehata (Retired) and others, reported in (2013) 3 SCC 1, the Apex Court while dealing with the issue of primacy of opinion in the appointment of the Lokayukta who was please to hold as follows :-
“96. In the process of statutory construction, the court must construe the Act before it, bearing in mind the legal maxim ut res magis valeat quam pereat - which mean - it is better for a thing to have effect than for it to be made void, i.e., a statute must be construed in such a manner, so as to make it workable. Viscount Simon, L.C. in the case of Nokes v. Doncaster Amalgamated Collieries Ltd., (1940) 3 All E.R. 549, stated as follows:
"......if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility, the should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result." ”
“ 97. Similarly in Whitney v. Inland Revenue Commissioner, 1926 AC 37, it was observed as under:
"A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable." ”
“ 98. The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction, which carries forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred, looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. "The courts strongly lean against any construction which stands to reduce a statute to futility. The provision of the statute must be so construed so as to make it effective and operative." The court must take a pragmatic view and must keep in mind the purpose for which the statute was enacted, as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus, legislative futility must be ruled out. A statute must be construed in such a manner so as to ensure that the Act itself does not become a dead letter, and the obvious intention of the legislature does not stand defeated, unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances the remedy and "to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico". The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable statute. (Vide:
M. Pentiah & Ors. v Muddala Veeramallappa & Ors., AIR 1961 SC 1107; S.P.Jain v.
Krishna Mohan Gupta & Ors., AIR 1987 SC 222; Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors., AIR 1987 SC 1023; Tinsukhia Electric Supply Co. Ltd. v. State of Assam & Ors., AIR 1990 SC 123; UCO Bank & Anr. v.
Rajinder Lal Capoor, (2008) 5 SCC 257; and Grid Corporation of Orissa Limited & Ors. v.
Eastern Metals and Ferro Alloys & Ors., (2011) 11 SCC 334).”
74. The Hon’ble Apex Court in the case of Tata Power Company Limited vs. Reliance Energy Limited reported in (2009) 16 SCC 659, observe as follows :-
“67. A statute, as is well known, must be construed having regard to Parliamentary intent. For the said purpose it is open to a court not only to take into consideration the history of the legislation including the mischief sought to be remedied but also the objects and purpose it seeks to achieve.”
“79. For the purpose of deciphering the object and purport of the Act, it is well known, the Court can look to the statement of objects and reasons thereof.”
“97. However, when the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read that provision in its context. The legal principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clause which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have some what different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words `unless there is anything repugnant to the subject or context'. [See Whirlpool Crporation v. Registrar of Trade Marks, Mumbai and others, { (1998) 8 SCC 1 ; Garhwal Mandal Vikas Nigam Ltd. v. Krishna Travel Agency,{ (2008) 6 SCC 732 } and National Insurance Co. Ltd. v. Deepa Devi.”
“99. To assign the same meaning to the word "supply" in Section 23 of the Act, as is assigned in the interpretation section, it is, in our opinion, necessary to take recourse to the doctrine of harmonious construction and read the statute as a whole. Interpretation of Section indisputably must be premised on the scheme of the statute. For the purpose of construction of a statute and in particular for ascertaining the purpose thereof, the entire Act has to be read as a whole and then chapter by chapter, section by section and word by word.
{See Reserve Bank of India, v. Peerless General Finance and Investment Co. Ltd, [ (1987) 1 SCC 424 ] ; Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, [ (1992) 2 SCC 343 ] and National Insurance Co. Ltd. v. Swaran Singh.”
“100. Thus, in a case where interpretation of a Section vis-`-vis the scheme of the Act, the purport and object of the legislation, particularly having regard o the mischief it seeks to remedy; the chapter heading as also the marginal note, in our opinion, are relevant.”
“101. - PURPOSIVE CONSTRUCTION “Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn like nitrogen, out of air ; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose. [See Justice Frankfurtir, Some Reflextions on the reading of Statutes, 47 Columbia LR 527, at page 538 (1947); Union of India v. Ranbaxy Laboratories Ltd. and others ; { (2008) 7 SACC 502 }and D. Purushotam Reddy and another vs. K. Sateesh”.
From a reading of the above paragraphs, it is apparent that the Apex Court has deemed it necessary for the courts to adopt a harmonious construction and read the statute as a whole and in a case involving interpretation of a Section vis-à-vis the scheme of the Act then the purport and the object of the legislation have to be examined to identify the mischief the provision seeks to remedy. It has further held that the legislation with an aim to obviate some mischief or inadequacy etc. and the legislation is evidenced by the language of the statue.
75. The Hon’ble Apex Court in the case of Shailesh Dhairyawan vs. Mohan Balakrishna Lulla, reported in (2016) 3 SCC 619, has been pleased to observe as follows:-
“31. The aforesaid two reasons given by me, in addition to the reasons already indicated in the judgment of my learned Brother, would clearly demonstrate that provisions of Section 15(2) of the Act require purposive interpretation so that the aforesaid objective/ purpose of such a provision is achieved thereby. The principle of 'purposive interpretation' or 'purposive construction' is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the 'purpose' behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the Court is supposed to realise the goal that the legal text is designed to realise. As Aharan Barak puts it:
“Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.” ”
“ 32. Of the aforesaid three components, namely, language, purpose and discretion 'of the Court', insofar as purposive component is concerned, this is the ratio juris, the purpose at the core of the text. This purpose is the values, goals, interests, policies and aims that the text is designed to actualize. It is the function that the text is designed to fulfil.”
“33. We may also emphasize that the statutory interpretation of a provision is never static but is always dynamic. Though literal rule of interpretation, till some time ago, was treated as the 'golden rule', it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced. Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand strategy for statutory interpretation, and in its place they offered purposivism, this principle is now widely applied by the Courts not only in this country but in many other legal systems as well.”
From a reading of the above, it is apparent that the Hon’ble Apex Court has taken into consideration the fact that it is not within human power to foresee the manifold situations which may arise and it is not possible for the legislature to provide for them in the statute in an ambiguous manner. In this regard, the Apex Court has quoted with approval the principles summarised by Lord Denning. It has also placed reliance on its own ruling rendered in the case of Rattan Chand Hira Chand vs. Askar Nawaz Jung with regard to the rule of interpretation.
76. The Hon’ble Apex Court in the case of Zelia M. Xavier Fernades E Gonsalves vs. Joana Rodrigues and others reported in (2012) 3 SCC 188, while dealing with the issue of disqualification from membership of Panchayat has yet again adopted the purposive rule of interpretation and has observed as follows :-
“8. Section 11 provides that if any question arises as to whether a member of a panchayat has become subject to any disqualification referred to in Section 10, it shall be referred to the State Election Commission for decision and is decision thereon shall be final. The purpose and object of providing for disqualification for membership of the panchayat in clause (f) of Section 10 is to ensure that there is no conflict between the private interest of the member and his duty as a member of the panchayat. It is based on general principle of conflict between duty and interest. Insofar as the present matter is concerned, we have to consider the applicability of clause (f) of Section 10 to the extent, “he has …. Indirectly any share or monetary interest in … any contract … by or on behalf of the panchayat” in the fact situation noticed above.”
“21. While considering Section 15 (l) of the CP Municipalities Act which provided for the disqualificatons to the elections of the Municipal Committees, this Court in Gulam Yasin Khan held that the purpose and the object of prescribing several disqualification’s in that provision is to ensure the purity of the administration of the Municipal Committees and in that sense the different clauses of disqualifciatons should not receive unduly narrow or restricted construction. We also hold the view that the prohibition in Section 10(f) should not receive unduly narrow or restricted construction. In what we have considered above, the answer to the first question must be in the affirmative and it must consequently be held that the appellant has incurred disqualification under Secton10(f) of the 1994 Act……”
77. The Hon’ble Apex Court in the case of Central Bureau of Investigation, Bank Securities and Fraud Cell vs. Ramesh Gelli and others, reported in (2016) 3 SCC 788, it has observed that while interpreting the provisions of the Prevention of Corruption Act, 1988, read the same in conjunction with the provisions of Section 21 and Section 409 of the IPC and the Banking Regulation Act, 1949 to conclude that even office bears of a private bank would come within the definition of a public servant. The Hon’ble Apex Court construed so by invoking the rule of casus omissus.
“40. Though the rule of casus omissus i.e. “what has not been provided for in the statute cannot be supplied by the Courts” is a strict rule of interpretation there are certain well known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Limited v. Asher, (1949) 2 AllER 155 at page 164 noticed and approved by this Court may be taken note of. (KB p.499 : All ER p.164 E-H) “The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were ....He (The Judge) must set to work in the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature.....A judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”
“41. In Magor and St. Mellons Rural Distt. Council v. Newport Corpn. The learned Judge restated the above principels in a somewhat different from to the following effect : (All ER p.1236 A) “…We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filing in the gaps and making sense of the enactment tan by opening it up to destructive analysis.” ”
“42. Though the above observations of Lord Denning in Seaford Court Estates case had invited sharp criticism in his own country we find reference to the same and implict approval thereof in the judicial quest to define the expression “industry” in Banalore Water Supply & Sewerage Board v. A Rajappa, Para 147 and 148 of the opinion of M.H.Beg. C.J in Bangalore Water Supply and Sewerage Board, which are quoted below, would clearly indicate the acceptance of this Court referred to earlier : (SCC p.285) “147. My learned Brother has relied on what was considered in England a somewhat unorthodox method of construction in Seaford Court Estates Ltd., v. Asker, where Lord Denning L.J., said (KP p.499 : All ER p.164 G-H)”
‘…when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament….. and then he must supplement the written words so as to give ‘force and life’ to the intention of legislature. …. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.’ When this case went up to the House of Lords it appears that the Law Lords disapproved of the bold effort of Lord Denning to make ambiguous legislation more comprehensive. Lord Simonds found it to be ‘a naked usurpation of the legislative function under the thin disguise of interpretation.’ ‘These heroics are out of place’ and Lord Tucker said ‘Your Lordships would be acting in a legislative rather than a judicial capacity if the view put forward by Denning, L.J., were to prevail.’ 148. Perhaps, with the passage of time, what may be described as the extension of a method resembling the ‘arm-chair rule’ in the construction of wills. Judges can more frankly step into the shores of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state. In M.Pentiah v. Muddala Veeramallappa, Sarkar,J., approved of the reasoning, set out above, adopted by Lord Denning. And, I must say that, in a case where the definition of ‘industry’ is left in the state in which we find it, the situation perhaps calls for some judicial heroics to cope with the difficulties raised.” ”
78. In the light of the above rulings, this Court concludes that the provision providing for disqualification both pre election and post election are validly enacted by the State. The provisions of Section 16 and Section 17(2) are intra vires the powers for the State to enact the same and do not suffer from any arbitrariness. Further more in the exercise of interpreting the provision this Court concludes that the rule of interpretation to be adopted is the purposive rule of interpretation. Having concluded so, it is a duty cast on this Court to ensure the construction harmonizes with the object of the Act and would not result in an absurdity.
79. The Hon’ble Apex Court in the case of Vipulbhai M. Chaudhary –Vs- Gujarat Co-operative Milk Marketing Federation Limited and others reported in (2015) 8 SCC 1, has observed as under :-
“46. In the background of the constitutional mandate, the question is not what the statute does say but what the statute must say. If the Act or the Rules or the bye-laws do not say what they should say in terms of the Constitution, it is the duty of the Court to read the constitutional spirit and concept into the Acts. “Insofar as in its Act Parliament does not convey its intention clearly, expressly and completely, it is taken to require the enforcement agencies who are charged with the duty of applying legislation to spell out the detail of its legal meaning. This may be done either- (a) by finding and declaring implications in the words used by the legislator, or (b) by regarding the breadth or other obscurity of the express language as conferring a delegated legislative power to elaborate its meaning in accordance with pubic policy (including legal policy) and the purpose of the legislation.”
“47. The conventional view is that the legislature alone makes the law. But as Bennion puts it:
“The truth is that courts are inescapably possessed of some degree of legislative power. Enacted legislation lays down rules in advance. The commands of Parliament are deliberate prospective commands. The very concept of enacted legislation postulates an authoritative interpreter who operates ex post facto. No such interpreter can avoid legislating in the course of exercising that function.
It can be done by regarding the breadth or other obscurity of the express language as conferring a delegated legislative power to elaborate its meaning in accordance with public policy (including legal policy).””
“48. According to Donaldson, J:
“The duty of the courts is to ascertain and give effect to the will of Parliament as expressed in its enactments. In the performance of this duty the Judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from whom issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a silence and the Judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing.” ”
“49. In the celebrated case of Seaford Court Estates Ltd. v. Asher, Lord Denning has succinctly summarised the principle on the role of the Court. To quote: (QB writ petition. 498-99) “…. Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity … a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature. …Put into homely metaphor it is this: A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.””
“50. In Rattan Chand Hira Chand v. Askar Nawaz Jung, this Court, at para 17 of the Judgment, has also dealt with the principles in the following words: (SCC p. 77) “17. … The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is therefore, not only necessary but obligatory on the courts to step into fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society. So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed.””
80. In the light of the above decisions, it is apparent that the Apex Court has laid down that in the event of ambiguity in a provision the Court while interpreting it has to place reliance on the rule of purposive interpretation. In the instant case the querry raised by the learned Senior Counsel Sri Jayakumar S Patil, is that the provisions of Section 16(1)(a) do not bring within its ambit, of family, and the reference is to a joint family only and hence the order impugned is based on inferences and unsustainable. On examination of the provision it is seen that sub-Section 1 commences with the phrase ‘a person shall’. It is true that the word ‘family’ is not defined under the Act, but the word ‘person’ is defined as to include a joint Hindu Family a company or firm or association or a body of individuals whether incorporated or not. Thus, if the definition of word ‘person’ and the provision of Clause (a) of Section 16(1) are read in conjunction and if the rule of purposive construction is applied, the only inevitable conclusion that one could arrive at is that the word ‘joint family’ denoting a larger body would also include the unitary family of a husband and a wife. The Court is constrained to arrive at this interpretation, in view of the definition of word ‘person’ which is meant to include even an “association of individuals”. That apart, the classes of person included under Clause (a) and the definition of ‘person’ make the intention of the legislature very obvious. The intendment of the legislature can be gathered from the description of the classes of person. To sum-up the entire focus of the enactment is to prevent not only a trader but also his associates and his family members be they a partner or director, a firm, joint family, joint Hindu family, company and even an incorporated body and body of individuals. The phrase body of individuals whether incorporated or not assumes significance and cannot be interpreted in a narrow sense, to refer to a company alone as it is commonly known that incorporation refers to a company. The legislature has already included the company in the definition of person. Hence, can it be said that the reference to ‘a body of individuals’ is superfluous ? Such an interpretation is what the Apex Court has positively disapproved. It is settled law that the courts in the course of interpreting cannot place an interpretation which would render nugatory any of the provisions of an enactment. Even assuming for argument sake that the petitioner and their respective spouses, who admittedly constitute a family as defined by the dictionary and under various other enactments referred supra and as settled by the Apex Court in the case of K.V.Muthu vs. Angamuthu Ammal, the word ‘family’ would not just mean husband and wife but the children, grand children and dependent parent which virtually amounts to a joint family. Further, one other reason why this Court construes so is on account of the law settled by the Apex Court that the construction or interpretation placed should not only be not repugnant to the context in which it is used but the interpretation should aid the achievement of the purpose which is sought to be served by the Act. A construction, which would defeat or is likely to defeat the purpose of the Act has to be ignored and not accepted. This Court draws sustenance for the above interpretation in the light of the law laid down by the Hon’ble Apex Court in the case of K.V.Muthu vs. Angamuthu Ammal reported in (1997) 2 SCC 53, wherein at paragraph Nos.14 and 15, the Hon’ble Apex Court defined a ‘family’ as follows :-
“14. In its ordinary and primary sense, the term “family” signifies the collective body of persons living in one house or under one head or manager or one domestic government. In its restricted sense, “family” would include only parents and their children. It may include even grandchildren and all the persons of the same blood livign together. In its broader sense, it may include persons who are not connected by blood depending upon the context in which the word is used.
15. There is a consensus among the High Courts in India that the world “family” is a word of great flexibility and is capable of different meanings.”
What flows from the above is that the word ‘family’ is not merely referable to only a husband and wife and children but would also include grandchildren and dependent parents, which in the essence signifies, a joint family in common parlance. If such an interpretation, that “a joint family includes a family” is not placed it could lead to an absurdity and one can gainfully ague that the year does not include a month or a month does not include a week or a week does not include a day. This Court also draws sustenance for such an interpretation from the language of the provision itself. On a plain reading the Clause (a) not only engulfs a corporate entity or a juristic person carrying on business but also the individuals attached to such entities be a Director or a Partner or an associate but even a member of a joint family which does business as a trader. Admittedly the constituents of a joint family include (wife, husband, etc.). Hence, where one’s spouse is registered as a trader it must necessarily be interpreted that the other spouse would also come within the prohibited class of persons under Section 16(1) and such an interpretation alone would advance the object of the provision of disentitling a trader and all connected with the trader, from being a representative of the agriculturist.
81. On the contrary if the interpretation placed by the petitioner is accepted it could lead to a situation where a business house (trader) run by a joint family and possessing agricultural lands, would easily qualify to be enlisted in the voter’s lists of the Agriculturists Constituency and using their clout and influence amongst the farmers, who trade their produces with them, would easily get the entire 12 constituencies (11 agriculturists + 1 trader) represented by the Members of their family. It is exactly this mischief which the provisions seek to remedy and if the interpretation as placed by the petitioners is accepted it is this very mischief that would be advanced.
82. It is not in dispute that there is some opacity in the language of the provision and the definition. Whether the petitioners or persons similarly situated like them can be permitted to take advantage of the opacity in the drafting of the provision and obscurity in the meaning of joint family ? The answer can only be an resounding and a emphatic No. For otherwise as detailed in the above it could lead to bizarre and absurd situations whereby persons using deviant methods would be enabled to negate and defeat the object of the enactment.
83. Hence, this Court concludes that the petitioners and their respective spouses who constitute a family, as husband and wife, come within the ambit of the word ‘joint family’ and thus fall within the prohibited class of persons who are not entitled to be chosen as a representative of agriculturists. Even otherwise as the provision begins with the word ‘person’ and if the same is read in conjunction with the definition which includes an association of a person, then the trader and the spouse would also constitute one such association of persons. Hence, the word ‘joint family’ used in the provision of Section 16(1(a) must be read to include not only a husband and wife but also an association of persons.
84. In the light of the above interpretation placed by this Court on the provision of Section 16(1)(a) the questions formulated are answered against the petitioners by holding that the petitioner come within the ambit of Clause (a) of Section 16(1)(a).
85. Now coming to the other limb of the argument by the petitioners that the impugned order is unsustainable or inexecutable in view of the fact that there is no operative provision that enables the removal of a elected member who suffers from a pre election disqualification. The said contention is contrary to law and the answer lies in the provisions of Section 17 relating to Disqualification of a sitting member.
“17. Disqualification of sitting member :
1) If any member of the market committee :-
(a) becomes subject to any of the disqualifications mentioned in section 16 : or (b) other than an ex-officio member absents himself for more than there consecutive ordinary meetings unless leave so to absent himself has been granted by the market committee, his seat shall be deemed to be or to have become, as the case may be, vacant and the same shall immediately be intimated to the member in writing by the market committee:
Provided that where an application is made by a member to the market committee for leave to absent himself and the market committee fails to inform the applicant of its decision on the application within a period of two months from the date of the application, the leave applied for shall be deemed to have been granted by the market committee.
(2) Whenever the question whether a person is or has become subject to disqualification under sub-section(1) arises, the Director of Agricultural Marketing shall]1 either su motu or on a report from the Secretary to the market committee or otherwise, and after giving an opportunity to the member concerned to be heard and holding such enquiry as he deems fit, decide the question and his decision shall be final.”
(Emphasis supplied) 86. From a reading of the above it is apparent that once the member becomes subject to any of the disqualifications set out in Section 16, the seat held by a such member is deemed to have become vacant. Hence, the vacation of the seat is by operation of law as a consequence of the member being disqualified for being chosen as or for being a member of the Market Committee, as representative of the agriculturists and no formal order or pronouncement is required to declare the seat as vacant. The provision merely contemplates of an intimation in writing to the member. That apart the concept of deemed vacation of the seats or automatic cessation of membership has been upheld by the Apex Court convincing in the case of Ravanna Subban vs. G.S.Kaggeerappa reported in AIR 1954 Supreme Court 653, Rabindra Kumar Nayaka vs. Collector, Mayurbhanj, Orissa and others reported in (1999) 2 Supreme Court Cases 627 and in the case of Lilly Thomas vs. Union of India and others reported in (2013) 7 Supreme Court Cases 653.
87. The other contention with regard to the lack of mandate in the second respondent authority to hear and decide disqualification pertaining to pre election period cannot be countenanced in the light of the amendment to Section 17 and the provision of sub Section 2 of Section 17 empowers the second respondent, the Director of Agricultural Marketing, decide the question regarding disqualification. The wordings of the sub-Section 2 to quote “question whether a person is or has become subject to disqualification” “or whether on the date of his election, the returned candidate was not qualified”, are sufficient to demonstrate that the enactment has vested in the second respondent the mandate to adjudicate the issue regarding pre election disqualification. The rigor of the provision is further enhanced by the fact of the amendment to Section 21 whereby Clause (a) of Section 21 has been deleted. The said provision also provided the grounds upon which the Election Tribunal would set aside or declare an election as void and Clause (a) pertained to disqualification. The authority of the law makers, to even transfer pending proceedings, has been upheld by the Apex Court. In this regard this Court relies on the rulings reported in AIR 1995 Supreme Court 807 – P.L.Kanta Rao and others vs. State of A.P. and others, (1974) 3 Supreme Court Cases 415 – Hari Prasad Mulshanker Trivedi vs. V.B.Raju and others and AIR 1961 Supreme Court 1087 – The Custodian of Evacuee Property, Bangalore vs. Khan Saheb Abdul Shukoor etc., 88. This Court has placed reliance on the following rulings to emphasize the distinction between the procedures pertaining to disqualification and the process of an election petition. The rulings are ;-
(2014) 7 SCC 99, (2008) 17 SCC 311, AIR 1957 SC 871 and (1999) 2 SCC 627.
Though the point of fraud was strenuously canvassed by the learned senior counsel appearing on behalf of the private respondents, the said issue is not addressed by this Court, in view of this Court dismissing the writ petitions on the points of law.
In view of the law laid down by the Hon’ble Apex Court and in the light of the above discussions, the order under challenge in the writ petitions requires to be upheld.
Consequently, writ petitions stand rejected.
LG/sdu/BL/RR Sd/- JUDGE