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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos.5034 & 5658 OF 2009.
...........
WRIT PETITION No. 5034/2009.
Shri Shrikrishna Wasudeo Dhage,
Aged Adult, Occupation - Member
Panchayat Samiti, r/o. Agar, Tahsil
and District Akola. ....PETITIONER.
VERSUS
1. Shivcharan s/o Trimbakrao Kalne,
Aged adult, r/o. Agar, Tahsil and
District - Akola.
2. Village Development Officer,
Gram Panchayat, i.e. Registrar Birth
and Death of Gram Panchayat, Agar,
District Akola.
3. Registrar Birth and Death, Akola
Municipal Corporation, Municipal
Corporation, Akola.
4. Medical Officer of Zilla Mahila Rugnalaya,
Akola, Zilla Mahila Rugnalaya,
Akola i.e. Lady Harding Akola.
5. The Additional Commissioner,
Amravati Division, Amravati,
Tahsil and District Amravati. ....RESPONDENTS.
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Mr. A.M. Ghare, Advocate for Petitioner.
Mr. S.D. Chopde, Advocate for Respondent No.2.
Mr. R.M. Mardikar, Advocate for Respondent no.3.
Mr. V.A. Thakre, Asstt. Govt. Pleader for Respondent No.5.
------------------------------------
...........
WRIT PETITION No. 5658/2009.
Sou. Vandana Surendra Uke,
Age 32 years, Sarpanch, Gram Panchayat,
Sawarband, Taluka Sakoli,
District Bhandara. ....PETITIONER.
VERSUS
1. Additional Commissioner,
Nagpur Division, Nagpur.
2. Additional Collector, Bhandara.
3. Gram Panchayat, Sawarband
Taluka Sakoli, District Bhandara
through the Secretary.
4. Chopram Gopala Nandagawali,
resident of Sawarband, Taluka
Sakoli, District Bhandara.
5. Kedar Bhojramji Badwaik,
resident of Sawarband,
Taluka Sakoli, District Bhandara. ....RESPONDENTS.
(Respondent no.5 Deleted)
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-----------------------------------
Mr. M.V. Samarth, Advocate for Petitioner.
Mr. A.M. Ghare, Advocate for Respondent Nos.3 and 4.
Mrs. T.D. Khade, Asstt. Govt. Pleader for Respondent Nos.1 & 2.
------------------------------------
CORAM : B.P. DHARMADHIKARI, J.
Date of Pronouncement.
Date of reserving the Judgment. -
-
03.02.2010.
15.02.2010.
JUDGEMENT.
By these petitions filed under Articles 226 and 227 of the
Constitution of India challenge is to order of disqualification passed against
the respective petitioners. Petitioner – Shrikrishna in Writ Petition No.
5034/2009 has been held disqualified by respondent no.5 Additional
Commissioner therein, in Appeal proceeding under Section 58[1-E] read
with Section 16[1] of the Maharashtra Zilla Parishad and Panchayat Samitis
Act, 1961. The disqualification is on account of having more than two
children after the stipulated date. The Appellate Authority has found that the
4th child of petitioner is born on 23.11.2002 i.e. after the cut off date
12.09.2001 and hence petitioner has incurred disqualification under section
16[1][n] of the 1961 Act. These finding of facts are not in dispute before me.
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2. Petitioner – Vandana in Writ Petition No. 5658/2009 is found
disqualified to continue as Sarpanch and Member of Gram Panchayat
[respondent no.3] under the provisions of Section 14[j-3] of the Bombay
Village Panchayat Act, 1958 as she has encroached on 1300 sq. meters of
government land. This order of disqualification passed by respondent no.2
Additional Collector has been upheld in Appeal under section 16[2] of the
1958 Act, by respondent no.1 Additional Commissioner. Here though the
fact of encroachment by petitioner is not disputed, contention is,
encroachment was made long back by her mother-in-law and petitioner
married into that family subsequently.
3. Basic contention in both these petitions is that as the ground used
for disqualification was in existence at the time of election of respective
petitioner, election petition was the only remedy available and the
proceedings for disqualification moved after expiry of period of limitation are
not sustainable. Reliance has been placed on the judgment of Hon’ble Apex
Court reported at AIR 2007 SC 903 (State of Himachal Pradesh and others
.vrs. Surinder Singh Banolta) for the said purpose.
4. I have heard Shri A.M. Ghare, learned counsel for petitioner,
Shri S.D. Chopde, learned Counsel for Respondent No.2, Shri R.M.
Mardikar, learned Counsel for Respondent no.3 and Shri V.A. Thakre,
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learned Asstt. Govt. Pleader for Respondent No.5 in Writ Petition No.
5034/2009. Respondent no.1 who filed complaint and sought
disqualification of petitioner has chosen not to appear though notice for final
disposal has been served upon him.
In Writ Petition No. 5658/2009 I have heard Shri M.V.
Samarth, learned Counsel for Petitioner, Shri A.M. Ghare, learned Counsel
for Respondent Nos.3 – Gram Panchayat and 4 – Complainant, and Mrs.
T.D. Khade, learned Asstt. Govt. Pleader for Respondent Nos.1 & 2. The
complaint for disqualification was filed by respondent no.4 and one Kedar
together. That Kedar was joined as respondent no.5 earlier, but lateron the
petitioner sought his deletion and the same has been allowed on 25.01.2010.
As the facts are in dispute in Writ Petition No. 5658/2009, I find it proper to
deal with that Writ Petition first.
5. Petitioner Vandana accepts that there is encroachment on
government land, however, she has pointed out that, that encroachment has
been noted on 12.11.2003 and it has been done by her mother-in-law
Rukhma. She states that the encroachment was done in the year 1991 by
Rukhmabai who lateron applied for is regularization. She got married with
Surendra who is son of Rukhmabai, in the year 1999 i.e. before she was
elected as Sarpanch of Gram Panchayat. In this situation, contention is as
encroachment is not done by the petitioner, she cannot be disqualified on
that account. The other contention is that she has been elected as Member of
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Gram Panchayat in 2007 and Sarpanch thereafter. Hence, encroachment
and disqualification available at that time cannot be used by filing
proceedings under Section 14 of the 1958 Act to disqualify her, when that
challenge was open in election petition under Section 15 of the Act. Support
is also sought to be taken from the stand in application for disqualification
filed by respondent nos. 4 and 5 that petitioner was working as Sarpanch
since 2002-03 and the encroachment is recorded since then. For this
purpose, the respective counsel for respondents contend that petitioner is
admittedly residing with her husband in encroached premises, tax receipts
from 2003-04 show name of her husband as owner and hence petitioner
cannot take advantage of the alleged fact that encroachment was in existence
prior to her election. Attention is invited to the consideration of this aspect
by Appellate Authority, namely the Additional Commissioner who has found
that the petitioner had in fact applied for regularization of that
encroachment. Reliance by her on order of Sub Divisional Officer dated
01.12.2009 on her application dated 26.11.2009 to drop the application for
regularization of encroachment is found to be misconceived. Shri Ghare,
learned counsel has argued that if a Member of the Gram Panchayat or
Sarpanch of Gram Panchayat is exempted from disqualification on such
ground, there will be conflict between his duty and personal interest, which is
sought to be prohibited by adding disqualification clause vide Section 14[j-3].
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6. The finding of encroachment against the petitioner is concurrent.
The petitioner herself has accepted the encroachment. Her contention is
however, the encroachment is done by her mother-in-law. Documents on
record of encroachment for village Sawarbandh for the year 2002-03 mention
that, that encroachment came to notice on 12.11.2003 and name of
Rukhmabai has been mentioned as person encroaching. It also shows that
fine of Rs.500/- was paid by her on 20.11.2003. The petitioner has filed her
reply before the Additional Collector and in it has reiterated this stand. In
her affidavit filed before the Additional Collector, she has made improvement
to urge that the encroachment was done by her mother-in-law since 1996-97.
In Writ Petition before this Court, encroachment by Rukhmabai is claimed to
be from 1991. Affidavit filed by her mother-in-law before the Additional
Collector states that she has done encroachment in 1996. It also stated that
mention of encroachment in name of petitioner in 2007-08 is incorrect.
Perusal of order dated 01.12.2009 passed by the Sub Divisional Officer shows
that on 14.11.2008, Tahsildar, Sakoli had submitted a proposal for
regularization of this encroachment by Vandana. It has been further
recorded that upon enquiry it was discovered that encroachment is not by
Vandana, but by Rukhmabai. In view of this position the Sub Divisional
officer has passed an order and directed deletion of name of Vandana as
encroacher. This order, as submitted by the petitioner herself on record
shows that she moved for regularization of that encroachment some time
before November, 2008 i.e. prior to institution of the proceedings for her
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disqualification by respondent no.4. After this proceeding for disqualification
came to be instituted on 05.03.2009, she perhaps thought it proper to get her
regularization application disposed of. The order dated 01.12.2009 is passed
by the Sub Divisional Officer in view of these facts. The Additional
Commissioner has observed that the Sub Divisional Officer passed that order
to remove petitioner from the clutches of encroachment. It appears that in
those proceedings the petitioner herself prayed for closing of proceedings and
this fact is also taken note of by the Additional Commissioner. In view of this
position it is apparent from record that contention of petitioner that
Rukhmabai has done that encroachment and she is not responsible for it in
any way, cannot be accepted. Even if it is presumed that encroachment is
prior to her election and was not recorded in her name, her own act of
getting it regularized in her name shows that she can be treated as
encroacher. Her name was recorded in the encroachment register in 2007-
08 and thereafter she applied for its regularization. She has therefore
become encroacher qua the structure in 2007-08 and accepted it by moving
an application for its regularization. Had respondent no.4 not moved an
application for her disqualification, it is clear that she would have succeeded
in getting that encroachment regularized.
7. Provisions of Section 14[1][j-3] are added to Statute book to deal
with only such situation. The act of petitioner in trying to get her
encroachment regularized clearly shows abuse of her position and is contrary
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to that clause. She is therefore correctly found to have incurred
disqualification by both the authorities. The name of petitioner has been
recorded as encroacher in 2007-08 and she has tried to get it regularized.
Both these events are after her election. The contention that this
encroachment therefore could have been used to challenge her election by
filing election petition under section 15 of the 1958 Act, and hence
proceedings under Section 14 therefor is not tenable, is therefore
misconceived in present facts.
8.
Section 14 of the 1958 Act, states that no person can be a
Member of Panchayat or can continue as a member of Panchayat, if he is
encroacher as stipulated in its sub-section [1][j-3]. Thus bar is not only from
getting elected, but also from continuing as Member. There are two forums
provided for getting rid of such disqualified person. Application under
section 14 read with section 16 before respondent no.2 Additional Collector
is one such remedy. Against order passed in those proceedings Statute
provides appeal under section 16[2], to respondent no.1 Additional
Commissioner. The other forum is of filing an Election Petition under Section
15 before the Civil Judge, Junior Division or Civil Judge, Senior Division as
the case may be. The election petition is required to be filed within 15 days
after the date of declaration of result and by any candidate who has lost
election or by any person qualified to vote in it. The proceedings under
Section 16[2] for disqualification can be undertaken by respondent no.2 suo
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motu or on an application made to him by any person.
9. In the case of State of Himachal Pradesh and others (supra), the
Hon’ble Apex Court states the right approach when for same cause of action
two remedies are open. There the Hon’ble Apex Court has found that Section
122 of Himachal Pradesh Panchayat Raj Act, 1994 contemplated both
situations, namely where a person shall be disqualified for being chosen as
and also for being a office bearer of Panchayat, if he has encroached upon
any land belonging to any Authority, as mentioned in that section. The
findings in paragraph no.9 show that when a person is shown to be
encroacher prior to the date on which he has been declared as elected and if
that order has attained finality, the question whether he stood disqualified,
must be raised by way of election petition under Section 163 of that Act
before authorized officer. Consideration in paragraph no.10 shows that
otherwise a situation may arise where two different proceedings may be filed
before two different authorities for such disqualification at the instance of
two different persons. Section 162 of that Act expressly provided for
exclusive jurisdiction of authorized officer to determine the existence or
otherwise of any ground enumerated in Section 175 thereof. In the light of
provisions of Article 243-O of the Constitution of India, the Hon’ble Apex
Court noted that the election cannot be set aside, save and except by an order
passed by the authorized officer. Hence remedy for disqualification in
relation to any order passed after election process is over, has been held to be
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before the Deputy Commissioner. In view of these two remedies the Hon’ble
Apex Court has found that under a given situation, two different proceedings
may be filed before two different authorities at the instance of two different
persons. It has been held that two parallel proceedings cannot be allowed to
be held at the same time and a construction of statute which may lead to
such a situation therefore must be avoided. It is noticed that it will be
absurd to allow two different tribunals to come to contradictory decision. In
facts before it, the Hon’ble Apex Court found that respondent no.1 before it
was declared encroacher in the year 1998 and he was elected in result of
election declared on 15.01.2001, hence in terms of provisions of Article 243-
O, read with Section 163 the Election Petition was maintainable for setting
aside his election. Hence filing of disqualification proceedings before the
Deputy Commissioner in view of Section 122 was not permissible. The
Hon’ble Apex Court also expressed that matter would have been different if
respondent no.1 was declared to be an encroacher after the election process
was over and thus became disqualified to continue to be an office bearer of
Panchayat or Zilla Parishad.
10. This judgment relied upon by Shri Samarth, learned counsel
shows that it does not favour petitioner at all, as present petitioner has been
found to be an encroacher after commencement of her term and after
noticing this, she tried to get those proceedings of regularization of
encroachment dropped by giving her statement accordingly on 26.11.2009 to
the Sub Divisional Officer. This judgment of Hon’ble Apex Court again shows
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that when ground for disqualification can be used in election petition and
also in disqualification proceedings under Section 16[2] of the Bombay
Village Panchayat Act, 1958 the question of parallel proceedings can arise.
Here election petition is contemplated under Section 15 of the Bombay
Village Panchayat Act. It’s perusal reveals that the Civil Judge dealing with
the election petition cannot nullify the election of petitioner on the ground
that she has done encroachment or she was encroacher. The interference in
election petition is possible only if the elected candidate is found to have
committed a corrupt practice within the meaning of sub-section [6] or has
submitted a false claim or false caste certificate as given in its sub-section [5]
[a].
11. The Division Bench of this Court has considered the similar
challenge in proceedings in Maharashtra Zilla Parishad and Panchayat
Samitis Act, in a judgment reported at 1976 Mh.L.J. 621 (Manik Mallappa
Karale .vrs. Kisan Nagurao Patil and others). There the provisions of Section
27 permit filing of Election Petition while Section 16 prescribes
disqualification. The Division Bench after considering all relevant provisions
noticed that the election of respondent no.3 before it was challenged on the
ground that he was initially disqualified to be elected. The jurisdiction of the
Court trying election petition is regulated by sub-section [27] [2] and [5] of
the Zilla Parishad Act. The Division Bench noticed that sub-section [5]
thereof gives the ground on which election of an elected candidate can be set
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aside, and hence it held that the said Court had no power to go into the
question whether elected candidate was disqualified at the time when his
nomination paper was accepted. It has relied upon the earlier Division Bench
judgment taking similar view and reported at 1965 Mh.L.J. Note 56 (Brijlal
Sao .vrs. D.J. Bhandara). This judgment covers the controversy involved
before me. It is apparent that the question whether nomination paper of
present petitioner deserved to be rejected under Section 14[1][j-3] of the
1958 Act, cannot be gone into in election petition under section 15 thereof.
In short, there are no parallel proceeding in so far as the disqualification of
petitioner as encroacher is concerned, contemplated in law. I therefore, do
not find any substance in challenges raised by petitioner Vandana and Writ
Petition No. 5658/2009 accordingly deserves to be dismissed by upholding
the concurrent views and findings of respondent nos.1 and 2.
12. This bring me to consideration of identical legal challenge in Writ
Petition no.5034/2009. Petitioner – Shrikrishna therein is disqualified
under section 16[1][n] of the Maharashtra Zilla Parishad and Panchayat
Samitis Act. Said provision disqualifies a person for being chosen as and for
being a Councillor if he has more than two children. As already observed
above, the learned counsel for petitioner has not raised any factual dispute in
this respect before this Court. Therefore, the relevant question is whether
the disqualification subsisting on the date of election could have been
challenged in election petition under Section 27 of the Zilla Parishad Act.
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The Division Bench judgment of this Court in the case of Manik Mallappa
Karale .vrs. Kisan Nagurao Patil and others (supra) is already mentioned by
me above to note the limitations on election tribunals dealing with such
election petition.
13. Shri Ghare, learned Counsel for petitioner has urged that
judgment in State of Himachal Pradesh and others .vrs. Surinder Singh
Banolta (supra) squarely applies even in present facts. The learned Assistant
Government Pleader Shri Thakre, has pointed out earlier judgment of
Hon’ble Apex Court to distinguish this judgment. The earlier judgment of
Hon’ble Apex Court reported at 1999 [2] SCC 627 (Rabindra Kumar Nayak
.vrs. Collector, Mayurbhanj, Orissa and others) is delivered by the Bench of
equal strength, it is not considered in case of State of Himachal Pradesh and
others .vrs. Surinder Singh Banolta (supra). Perusal of that judgment shows
that there disqualification under section 45[1][i] of the Orissa Panchayat
Samiti Act, 1959 was urged on account of holding an office of profit under
the State Government. The consideration of “parallel proceeding” as in State
of Himachal Pradesh and others .vrs. Surinder Singh Banolta (supra), is
undertaken by the Hon’ble Apex Court in this earlier judgment in paragraph
no.18 onwards, where it has been mentioned as “second contention”. After
noticing the relevant provisions in paragraph nos.18 and 19, in paragraph
no.20 difference between two remedies is briefly noticed and then it has
been found that though disqualification mentioned in Section 45 is one of the
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ground under Section 44L for declaring the election void, there were also
other grounds on which the election of returned candidate can be declared
void. Thus other grounds could not be the subject matter of an application
under Section 45[B] to decide the question of disqualification. The Hon’ble
Apex Court also notices that there was some overlapping between two
sections but, then the field of operation of these two sections is different and
distinct. It has been noted that the District Judge under Section 45 [B] of the
Orissa Panchayat Samiti Act was not pronouncing upon validity of election,
but was only pronouncing upon the question as to whether the member is or
has become disqualified. In short the proceedings were not found to be
parallel or inconsistent there. The provisions of Articles 243-O and 243-F
considered in later judgment of Hon’ble Apex Court were not required to be
looked into in that judgment. The Constitutional Bar to interfere by courts
in electoral matters therefore did not fell for consideration in that judgment.
The later judgment considers the issue of disqualification and election
petition in the light of the constitutional provisions. I therefore, find that
later judgment is more on the issue raised before me for consideration.
14. The proceeding for disqualification of petitioner were initiated by
respondent no.1 Shivchanran. He in paragraph no.2 of his application stated
that Shrikrishna [petitioner] submitted his nomination form on 15.11.2008
and at that time filed false affidavit and declared on oath that he is not
having 3rd issue after 12.09.2001 i.e. after the commencement of
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Maharashtra Zilla Parishad and Panchayat Samiti (Amendment) Act, 1995.
Along with his nomination paper petitioner filed a false birth certificate
issued by respondent no.3 [Registrar of Births and Death of Akola Municipal
Corporation]. Thus on the basis of this false certificate and declaration on
affidavit, petitioner got himself elected as Member of Panchayat Samiti,
Akola. The filing of this certificate or affidavit is not disputed by the
petitioner. His contention is, the stand of respondent no.1 about this being
incorrect and false is wrong. The Additional Commissioner, Amravati
Division, Amravati has disqualified the petitioner by accepting the application
of respondent no.1.
15. The contention of respondent no.1 Shivcharan therefore, itself
shows that he pointed out incorrect or false declaration on affidavit and use
of false certificate by petitioner while filing his nomination paper. The
disqualification was therefore in existence since prior to election. Section 27
of the Zilla Parishad Act, permits an Election Petition to be filed before the
District Judge by any candidate at such election or by any person qualified to
vote at such election within 15 days, after the date of declaration of result of
election. Section 58 [1-A] permit respondent no.1 to look into the aspect of
disqualification of petitioner in the light of provisions of Section 16. Section
62[3] permits Commissioner to look into such issue of disqualification suo
moto or on an application made to him by any person. In this background
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provisions of Sub-section [5] of section 27 show that the District Judge trying
election petition can declare a person who has submitted false claim or false
certificate as disqualified for the purpose of that election. The words “or
submitted a false claim or a false caste certificate” have been inserted by
Maharashtra Amendment Act no. 34 of 2000. These words were not in the
statute book when the Division Bench of this Court decided the case of Manik
Mallappa Karale .vrs. Kisan Nagurao Patil and others (supra). It is
therefore, obvious that if petitioner has submitted a false affidavit or false
declaration with false certificate to show his entitlement to contest election,
he could have been declared as disqualified under section 27[5][a] in
Election Petition by the District Judge, and his election could have been set
aside.
16. Thus, in Writ Petition No.5034/2009 possibility of two parallel
proceeding as expressed by the Hon’ble Apex Court in its judgment in the
case of State of Himachal Pradesh and others .vrs. Surinder Singh Banolta
(supra) is not ruled out. It therefore follows that the said judgment clinches
the issue involved in the present matter. The disqualification of petitioner
Shrikrishna on the ground of having more than two children therefore, ought
to have been asserted in the election petition under section 27 of the
Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 and recourse to
remedy of disqualification before respondent no.5 is not available. The
application filed by the present respondent no.1 Shivcharan before
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respondent no.5 under section 58[1][e] read with Section 62 and 16 and
16[1][n] of that Act is therefore not maintainable. The impugned order
dated 06.11.2009 passed by the Additional Commissioner, Amravati Division,
Amravati is therefore without jurisdiction. Same is therefore liable to be
quashed and set aside and is accordingly quashed and set aside. Writ Petition
is thus allowed, by making Rule absolute accordingly with no order as to cost.
17. For reasons recorded above challenge in Writ Petition No.
5658/2009 fails and the same is dismissed. Writ Petition No. 5034/2009 is
allowed in the aforesaid terms.
JUDGE
Rgd.
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