ORAL JUDGMENT (PER A. M. DHAVALE, J.) :-
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties and taken up for final disposal at admission stage.
2. The petitioner, a defeated candidate in the Sarpanch election, seeks following reliefs:
(a) Election of respondent No. 5 as Sarpanch of village Grampanchayat Fagane dt. 11.10.2017 be quashed and set aside in view of his disqualification for five years dt.
03.11.2014.
(b) The petitioner be declared as elected Sarpanch for the remaining term.
(c) Enquiry be held against respondent No. 3 in respect of illegal and arbitrary order of refusing the to disqualify respondent No. 5.
(d) Respondent No. 5 be restrained from enjoying any benefits of the post of Sarpanch including salary, allowance and remuneration.
3. Shri. Mukul Kulkarni, the learned counsel for the petitioner argued that, in the year 2013 respondent No. 5 had contested
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election for membership of Zilla Parishad, Dhule. The Election Commissioner (R-2) through the Collector, Dhule, by order dt. 03.11.2014 disqualified him and banned him for five years from contesting election on account of not submitting or concealing election expenses to the Election Commission. Respondent No. 5 by concealing this fact submitted his nomination on 22.09.2017 for the post of Sarpanch of Gram Panchayat, Fagane (R-4). The petitioner was also contesting the said election. Another candidate raised objection before the Election Officer (R-3) and brought this fact to his notice. Respondent No. 3 took a stand that the said order was applicable only for elections of Zilla parishad and Panchayat Samittee and rejected the objection. On 07.10.2017, respondent No. 5 was declared as elected Sarpanch. The present petitioner had secured votes next to him. Ld. counsel Shri. Kulkarni argued that, as per Section 13 of the Maharashtra Village Panchayats Act, 1958 disqualification under any law would make respondent No. 5 ineligible from contesting the election of Sarpanch. The interpretation by respondent No. 3 is not correct and legal. He relied on the judgment of the Apex Court in a case of K. Venkatachalam v. A. Swamickan (1999) 4 SCC 526 & Vidyadhar Mathane v State of Maharashtra (2004) 3 Mah.L.J. 328.
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4. Per contra, Mr. V. D. Sapkal, learned counsel for respondent No. 5 supported the impugned order of respondent No. 3. He argued that, the disqualification by the Collector in connection with membership of Zilla Parishad will not apply to the elections of Sarpanch. He relied on the judgment of this Court in a case of
Sadasheo Jagannath Barapatre v. Hemaji Hiraman Bakde AIR 1958 Bom 507.
5. From the arguments advanced, the question for our consideration is, whether the disqualification order passed at the time of election of membership of Zilla Parishad would make him disqualified for the election of Sarpanch of Grampanchayat and whether the petitioner is entitled for the consequential reliefs as claimed; (a) his own election as a Sarpanch and (b) restraining respondent No. 5 from enjoying any benefits of his post.
6. The eligibility for submitting the application for the post of Sarpanch as per the Maharashtra Government Gazette, Part 4 September 1, 2017 in Marathi, is as follows:
Þ¼1½ ernkj ;knhr uko vlysyh izR;sd O;Drh] ;k vf/kfu;ek[kkyh fdaok R;k R;k osGh vaeykr vlysY;k brj dks.kR;kgh dk;|k[kkyh fujgZ Bjysyh ulsy rj] v'kh ;knh T;k izHkkxkalacaf/kr vlsy R;k izHkkxkP;k lnL;kPa ;k] vkf.k FkVs ljiap fuoMwu |ko;kP;k iapk;rhP;k ljiaPkkP;k fuoM.kqdhr ernku dj.;kl vgZ vlsy- ¼2½ izR;sd lkoZtfud fuoM.kqdhdfjrk fdaok iksV&fuoM.kqdhdfjrk ukefunZsf'kr dj.;klkBh fuf'pr dsysY;k vafre fnukadkl ernkj ;knhr uko vlysyh vkf.k 21 o"kkZgqu deh o; ulysyh izR;ds O;Drh] ;k vf/kfu;ek[kkyh fdaok R;k R;k osGh vaeykr vlyYs ;k brj dks.kR;kgh dk;|k[kkyh fujgZ Bjysyh ulsy rj] R;k xkoP;k dks.kR;kgh izHkkxklkBh vkf.k iapk;rhP;k ljiap inklkBh Eg.kwu fuoMwu
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;s.;kl vgZ vlsy- v'kk xkokP;k ernkj ;knhr ftps uko uksanfo.;kr vkys ulys v'kh dks.krhgh O;Drh R;k xkokP;k dks.kR;kgh izHkkxklkBh vkf.k iapk;rhP;k ljiap inkdfjrk fuoMuw ;s.;kl vgZ vl.kkj ukgh-ß
7. The material words are that the candidate should not be disqualified under this Act or under any other Act in force.
8. The provisions of Section 15 of the Zilla Parishad Act reads as under :
S. 15. Persons qualified to be elected.-
Every person [who is not less than twenty-one years of age on the last date fixed for making nominations for every general election or bye-election and] whose name is in the list of voters of any electoral division in a District, shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected, and every person [who is not of twenty-one years of age as aforesaid and) whose name is not such list shall not be qualified to be elected from any electoral divisions of that District.
9. The order dt. 03.11.2014 discloses that several persons who had not declared their election expenses were served with show- cause notices calling upon them to explain why they should not be disqualified for the next five years. Respondent No. 5 has submitted explanation that he had filed the expenses but there was no acknowledgement. The Collector, Dhule found that the explanation was not satisfactory and in exercise of powers vested with him in this regard by the Election Commissioner vide order dt.19.11.2010, he exercised the powers u/s 15[k(1)(d)([k) of The Maharashtra Zilla
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Parishads And Panchayat Samitis Act, 1961 to disqualify several candidates named therein including respondent No. 5 from contesting election for next five years. The relevant provision is as follows:
15 [k- ¼1½ tj jkT; fuoM.kqd vk;ksxkph v'kh [kk=h iVyh vlsy dh] , [kk|k O;Drhus&
¼d½ jkT; fuoM.kdw vk;kxs kus fu/kkZfjr dsysY;k osGse/;s vkf.k vko';d dsysY;k jhrhus] fuoM.kwd [kpkkZpk fg'ksc ns.;kr dlwj dsyh vkgs] vkf.k ¼[k½ v'kk dlwjhlkBh frP;kdMs dks.krsgh ;ksX; dkj.k fdaok leFkZu ukgh] rj jkT; fuoM.kwd vk;ksx] jkti=kr izfl/n dsysY;k vkns'kk}kjs] rh O;Drh fujgZ vlY;kps ?kksf"kr djhy vkf.k v'kh O;Drh v'kk vkns'kkP;k fnukadkikluw ikp o"kkZaP;k dkyko/khdjhrk] ifj"knspk lnL; Eg.kuw jkg.;kl fdaok ifj"kn lnL; gks.;klkBh fuoM.kwd y
10. In K. Venkatachalam (supra), the facts were quite different. The appellant was not qualified to be a member of the Legislative assembly but was so elected and his election was not challenged within time. Hence, writ petition was filed and the apex court held that the High Court was not powerless to grant the relief when the appellant was not entitled to sit in the assembly and played fraud on the Constitution. This ruling is relevant to the extent that it lays down that a writ petition lies against the challenge to the election of a candidate when he has played fraud. There is a reference in this case about the judgment in N. P. Punnuswami v The Returning Officer AIR 1952 SC 64. In Punnuswami's case, the appellant's nomination was rejected and he challenged the same by a writ of certiorari to quash the order and include his name. The High Court dismissed the petition on the ground that it had no jurisdiction to
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interfere with the order of the Returning Officer. The Apex Court held that, the only remedy provided was by election petition to be presented after the election was over and even the High Court had no jurisdiction under Article 226 of the Constitution of India during the intermediate period. However, if there were illegalities in the election, it would have effect of vitiating the election.
11. In Vidyadhar Mathane's case (supra), the petitioner was elected as a Councilor. Earlier he had contested the election of MLA. Since he did not submit election expenses within time, he was disqualified u/s 10A of the Representation of People Act for being a member of either house of Parliament or of the Legislative Assembly or Legislative Council for a period of three years from the date of order of Commission declaring him to be so disqualified. The Collector, Wardha issued a notice and after giving opportunity of hearing disqualified him from continuing to be a Councillor of Municipal Council. It was argued that, the disqualification should have been incurred during the term of the office and not subsequent thereto as happened in the present case. The appeal against the same was dismissed. It was argued that, the bar was applicable only for becoming a member of either house of Parliament or Assembly and would not come in way to contest any election of local bodies.
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The Section 16(1) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 relevant for disqualification, reads as follows:
S.16(1) No person shall be qualified to become a Councillor whether by election or nomination, who has been so disqualified by or under any law, for the time being in force for the purpose of elections to the Legislature of the State.
12. Reliance was placed on the judgment of this Court in
Dattatraya Narhar Pitale v. Vibhakar Dinkar Gokhale 1975 Mh.L.J. 701 (Full Bench). The Division Bench of this Court relied on explanation to Section 44 of the Act to hold that the disqualification incurred after the election shall be deemed to be incurred during the term for which he is elected or nominated and therefore the disqualification was upheld.
13. In Sadasheo v Hemaji (supra), the facts were quite different. The petitioner's candidature was wrongly declared as withdrawn when he had actually not withdrawn. It was upheld by the Civil Judge and subsequently upto the High Court. Relating to another challenge on the ground of disqualification of the elected person, the emphasis was made on a word 'in this behalf' appearing in the relevant provision as follows.
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Clause 3(d) : "Notwithstanding anything contained in sub- section (1) or sub-s. (2), no person shall be entitled to vote any election if
(d) he is subject to any disqualification which may be imposed in this behalf by any law for the time being in force."
14. Mr Sapkal, learned counsel for the respondents argued that, the disqualification order would prohibit respondent No. 5 from contesting the election of only Zilla Parishad or Panchayat Samitee and not the election of Sarpanch of Gram Panchayat. Section 13 which provides for qualification to contest the election reads as follows:
S.13. Persons qualified to vote and be elected.
(1) Every person whose name is in the list of voters shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote at the election of a member for the ward to which such list pertains.
(2) Every person (who is not less than 21 years of age on the last date fixed for making nomination for every general election or bye-election and) whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected for any ward of the village. No person whose name is not entered in the list of voters for such village shall be qualified to be elected for any ward of the village.
(3) Subject to any disqualification incurred by a person, the list of voters, shall be conclusive evidence for the purpose of determining under this section whether any person is qualified or is not qualified to vote, or as the case may be, is qualified or is not qualified to be elected, at any election.
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15. This section clearly lays down that if any person is disqualified under the Maharashtra Village Panchayat Act or under any other law, he would not be entitled to contest the election of Sarpanch. As per order of Collector, Dhule dt. 03.11.2014, the petitioner had not disclosed his expenses of the election held for membership of Zilla Parishad in 2013. Even after show-cause notices he failed to submit the expenses within time and therefore he was disqualified.
16. In the present case, the State Election Commission has delegated its powers to Collector, Dhule to pass order regarding the disqualification which the Collector, Dhule exercised and passed the order of disqualification for five years from 03.11.2014, obviously on the date when respondent No. 5 submitted nomination for candidature as Sarpanch for Fagane on 22.09.2017. He was already disqualified under the Maharashtra Zilla Parishads & Panchayat Samitis Act and it was existing. This disqualification will be applicable to the elections of Sarpanch as per the express language used in Section 13(2) of the Maharashtra Village Panchayat Act and the Notification dt. 01.09.2017. The arguments of learned advocate Shri. Sapkal that the disqualification will apply only to the election under particular Act cannot be accepted as it is contrary to the plain
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language. In 1955, the language of disqualification in Section 3(d) of the Municipalities Act was different. The word 'in this behalf' was used and the argument was advanced that those related to disqualification under particular act only but even this argument was not accepted in Sadasheo v Hemaji (supra).
17. We find that, the Returning Officer has taken a stand totally contradictory to the provisions of law while upholding the nomination of respondent No. 5. Since respondent No. 5 was disqualified but was allowed to contest the election, the whole election stands vitiated.
18. The disqualification of respondent No. 5 will not lead to declaring the petitioner as Sarpanch as the election itself stands vitiated. Therefore, the prayer for declaring the petitioner as elected Sarpanch deserves to be rejected.
19. Since we are disqualifying the respondent No. 5 on the ground of fraud committed by him by concealing the election expenses, he shall forfeit the benefits accrued under the post and his election to the post would be void ab initio.
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20. Hence, we allow the petition in terms of prayer clauses A and D. The election of respondent No. 5 to the post of Sarpanch, Grampanchayat Fagane is hereby declared void ab initio and quashed and set aside. Respondent No. 5 is restrained from enjoying any benefits by virtue of holding the post of Sarpanch. The prayer clause B for declaring the petitioner as elected Sarpanch and prayer clause C for directing enquiry against respondent No. 3 are rejected.
21. Rule is accordingly made absolute in the above terms. No costs.
[ A. M. DHAVALE ] [ S. V. GANGAPURWALA ]
JUDGE JUDGE
1. At this stage Mr Sapkal, learned advocate for the respondent No. 5 seeks stay of the order for a period of eight (8) weeks.
2. Mr Kulkarni, learned counsel for the petitioner, opposes the request.
3. However, considering the fact that the respondent No. 5 is holding the office, we stay the order for a period of four (4) weeks from today.
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4. Needless to state, on lapse of four (4) weeks, the protection granted by this court shall come to an end.
[ A. M. DHAVALE ] [ S. V. GANGAPURWALA ]
JUDGE JUDGE
Punde
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