JUDGMENT
A.H. Joshi, J.
1. On 27th February, 2008, this Court had issued notice before admission.
2. Hence Rule. Rule is made returnable forthwith and heard by consent.
3. The petitioner has suffered a Vote of No Confidence duly passed by eleven in favour of motion out of sixteen members.
4. According to petitioner, two members, namely respondent Nos. 10 and 12, were not .entitled to sit and vote.
5. According to petitioner, the objection “to sit and vote”, if acceptable, would go to the root of case and vitiate the motion, as it would not be liable to be regarded as passed with two-third majority.
6. Petitioner relies on copies of Notifications of State Election Commission and consequential Govt. Circular, which are Annexures-G & H. Based on these documents, it is argued that these two members are not entitled to sit and vote in the meeting as the members of the Panchayat. Though they are elected from seats reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes, they have not furnished evidence of their caste/tribe claim and as such disqualification was attached to this failure due to directions of Election Commission.
7. Learned Advocate Mr. Saboo placed reliance on reported Judgment of this Court in case of Uttamsingh Rambhau Chavan v. Ganesh Shivsingh Chavan and Anr. 2007 (2) Mh. L.J. 271, to substantiate his contention.
8. It is clear that the power of Election Commission to issue directions is not in dispute. Exercise of such power has, however, to be within the four corners of law.
9. The directions relied upon by the petitioner tend to create a disqualification, which is not provided in Section 14 or elsewhere of the Bombay Village Panchayats Act. The act of State Election Commission amounts to giving directions of legislative nature on the matters which are already pre-occupied by express provision of the law in force.
10. This Court will have to look at the provision of law as enacted by Amending Act No. XXXVII of 2006 with further amendment therein by Amending Act No. XXI of 2007. By this act of Legislature, it is prescribed that if after election in a reserved constituency, a candidate fails to furnish validity certificate, a disqualification is attached to the candidate due to this failure with a deeming fiction of the Office as a member to fall vacant. This provision too is held by this Court to be directory. On this sole ground, it has to be held that the directions of Election Commission relied upon by the petitioner have to be construed as directory. The directions of Election Commission, therefore, do not take the place of a statutory disqualification in addition to those already in existence in law at material time.
11. The petition, therefore, does merit any interference. Rule is discharged.