SRI CHITURI DURGA RAO vs. THE STATE OF KARNATAKA

1 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:

2 3. The Agricultural Produce Marketing Committee, Gangavathi Taluk, Represented by its Secretary, Gangavathi – 583 227, Koppal District.

(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,

3 Gangavathi Taluk, Koppal District. ... Petitioner

(By Sri. Jayakumar S. Patil, Advocate)

AND:

(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)

4 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.

5 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.

6 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.

7 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.

8 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

9 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,

10 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

11 before the second respondent on 25.07.2017 and the second respondent was also directed to hear and pass appropriate orders within two weeks.

12 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

13 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

14 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

15 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

16 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

17 requested by the counsel, the petitions were heard on day to day basis and the hearing was expedited.

18 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.

“16. Disqualifications for membership.- Without prejudice to any other disqualifications provided in this Act.-

19 (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

20 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.

21 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.

22 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.

23 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.

24 persons to contest from an agriculturists constituency is punitive in nature.

25 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.

26 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.

27 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.

28 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

29 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.

30 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.

31 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.

32 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.

33 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.

34 provision empowering the 2nd respondent to pass a punitive order.

Contentions on behalf of the official Respondents:

35 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”

36 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;”

37 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;”

38 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

39 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.

40 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

41 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.”

42 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

43 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/

44 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.

45 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.”

“40. Though the rule of casus omissus i.e., “what has not been provided for in the statute cannot be supplied by the courts”,

46 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.”

47 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.

48 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’.

(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.

On a query from this Court with regard to the document produced at Annexure-E by the petitioner in

50 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.

51 attendance register. The copy of the said attendance register for the month of April 2011 is herewith produced as Annexure-R9.

52 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.

53 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

54 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:

55 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.

56 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.

57 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.”

58 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

59 for which the Act was made by the legislature.

“ 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

60 meaning assigned to it therein unless the context otherwise requires.

“ 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:

61 “ 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.”

“ 2. Definitions- In this Act, unless the context otherwise requires.”

62 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.

63 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

64 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.

65 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.

66 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.

67 registered traders as on the date of the notification and the date of election.

68 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.

69 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

70 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

71 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

72 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

73 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

74 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

75 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

76 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.

77 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.

78 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.

79 legislation. That being so, the State is entitled to enact the legislation.

80 petitioners are members of a family whose other member holds a traders’ license is sustainable in law?

81 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.

82 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

83 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.

84 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.

85 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.

86 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.

87 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

88 constitution of the market committee even in the absence of a representative of the traders.

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

89 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.

“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.

90 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.”

91 “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

93 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.”

94 the flavour of reality bearing in mind the object for enactment.

“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

95 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

96 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

97 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.

98 Eastern Metals and Ferro Alloys & Ors., (2011) 11 SCC 334).”

“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

99 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

100 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

101 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

102 inadequacy etc. and the legislation is evidenced by the language of the statue.

103 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

104 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.”

105 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.

106 “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

107 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……”

(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

108 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

109 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

110 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

111 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.’

112 148. 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.” ”

113 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.

“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

114 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.

115 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

116 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

117 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

118 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.””

119 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

120 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

121 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

122 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.

What flows from the above is that the word ‘family’ is not merely referable to only a husband and wife and

123 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

124 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.

125 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.

126 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.

127 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

128 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)

129 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.

130 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

131 415 – 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.,

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.

132 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.

SD/- JUDGE LG/sdu/BL/RR