{"id":164995,"date":"2010-02-15T00:00:00","date_gmt":"2010-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-shrikrishna-wasudeo-dhage-vs-shivcharan-on-15-february-2010"},"modified":"2016-01-18T23:49:59","modified_gmt":"2016-01-18T18:19:59","slug":"shri-shrikrishna-wasudeo-dhage-vs-shivcharan-on-15-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-shrikrishna-wasudeo-dhage-vs-shivcharan-on-15-february-2010","title":{"rendered":"Shri Shrikrishna Wasudeo Dhage vs Shivcharan on 15 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Shrikrishna Wasudeo Dhage vs Shivcharan on 15 February, 2010<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                               1\n\n\n\n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                  \n                         NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                          \n                   WRIT PETITION  Nos.5034 & 5658  OF 2009.\n\n                                         ...........\n\n\n\n\n                                                         \n    WRIT PETITION No.  5034\/2009.\n\n\n\n\n                                          \n    Shri Shrikrishna Wasudeo Dhage,\n    Aged Adult, Occupation - Member\n    Panchayat Samiti, r\/o. Agar, Tahsil \n                          \n    and District Akola.                                                ....PETITIONER.\n                         \n                                        VERSUS\n\n\n       1. Shivcharan s\/o Trimbakrao Kalne,\n      \n\n\n          Aged adult, r\/o. Agar, Tahsil and \n          District - Akola.\n   \n\n\n\n       2. Village Development Officer,\n          Gram Panchayat, i.e. Registrar Birth\n          and Death of Gram Panchayat, Agar,\n\n\n\n\n\n          District Akola.\n\n       3. Registrar Birth and Death, Akola\n          Municipal Corporation, Municipal \n          Corporation, Akola.\n\n\n\n\n\n       4. Medical Officer of Zilla Mahila Rugnalaya,\n          Akola, Zilla Mahila Rugnalaya,\n          Akola  i.e. Lady Harding Akola.\n\n       5. The Additional Commissioner,\n          Amravati Division, Amravati,\n          Tahsil and District Amravati.                                   ....RESPONDENTS.\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 15:36:47 :::\n                                               2\n\n\n\n                              ----------------------------------- \n\n\n\n\n                                                                                  \n                 Mr.  A.M. Ghare,  Advocate for Petitioner.\n                 Mr.  S.D. Chopde, Advocate for  Respondent No.2.\n                 Mr. R.M. Mardikar, Advocate for Respondent no.3.\n\n\n\n\n                                                          \n                 Mr.  V.A. Thakre, Asstt. Govt. Pleader for  Respondent No.5.\n                              ------------------------------------\n\n                                          ...........\n\n\n\n\n                                                         \n                                            \n    WRIT PETITION No.  5658\/2009.\n                           \n    Sou. Vandana Surendra Uke,\n    Age 32 years, Sarpanch, Gram Panchayat,\n    Sawarband, Taluka Sakoli,\n                          \n    District Bhandara.                                                 ....PETITIONER.\n      \n\n                                          VERSUS\n   \n\n\n\n       1. Additional Commissioner,\n          Nagpur Division, Nagpur.\n\n       2. Additional Collector, Bhandara.\n\n\n\n\n\n       3. Gram Panchayat, Sawarband\n          Taluka Sakoli, District Bhandara\n          through the Secretary.\n\n\n\n\n\n       4. Chopram Gopala Nandagawali,\n          resident of Sawarband, Taluka\n          Sakoli, District Bhandara.\n\n         5.   Kedar Bhojramji Badwaik,\n               resident of Sawarband,\n               Taluka Sakoli, District Bhandara.                          ....RESPONDENTS.\n               (Respondent no.5 Deleted)\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 15:36:47 :::\n                                                      3\n\n\n\n\n                                                                                          \n                                                                  \n                                ----------------------------------- \n                   Mr.  M.V. Samarth,  Advocate for Petitioner.\n                   Mr.  A.M. Ghare, Advocate for  Respondent Nos.3 and 4.\n                   Mrs. T.D. Khade, Asstt. Govt. Pleader for  Respondent Nos.1 & 2.\n\n\n\n\n                                                                 \n                                ------------------------------------\n\n\n                                  CORAM :  B.P. DHARMADHIKARI,  J.\n<\/pre>\n
    Date of Pronouncement.\n<\/p>\n
    Date of reserving the Judgment.              -\n                                                 -\n                                                                  03.02.2010.\n                                                                  15.02.2010.\n\n                    \n                             \n    JUDGEMENT.   \n      \n\n<\/pre>\n
                   By   these   petitions   filed   under   Articles   226   and   227   of   the <\/p>\n
    Constitution of India challenge is to order of disqualification passed against <\/p>\n
    the   respective  petitioners.     Petitioner – Shrikrishna   in Writ Petition No. <\/p>\n
    5034\/2009   has   been   held   disqualified   by   respondent   no.5   Additional <\/p>\n
    Commissioner   therein,   in   Appeal   proceeding   under   Section   58[1-E]     read <\/p>\n
    with Section 16[1] of the Maharashtra Zilla Parishad and Panchayat Samitis <\/p>\n
    Act,   1961.     The   disqualification   is   on   account   of   having   more   than   two <\/p>\n
    children after the stipulated date.  The Appellate Authority has found that the <\/p>\n
    4th  child   of   petitioner   is   born   on   23.11.2002   i.e.   after   the   cut   off   date <\/p>\n
    12.09.2001 and hence petitioner has incurred disqualification under  section <\/p>\n
    16[1][n] of the 1961 Act.  These finding of facts are not in dispute before me.\n<\/p>\n
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\n                                                    4<\/span><\/p>\n
    2.            Petitioner   –  Vandana   in  Writ  Petition  No.  5658\/2009   is  found <\/p>\n
    disqualified   to   continue   as   Sarpanch   and   Member   of   Gram   Panchayat <\/p>\n
    [respondent   no.3]   under   the   provisions   of   Section   14[j-3]   of   the   Bombay <\/p>\n
    Village Panchayat Act, 1958 as she has encroached on 1300 sq. meters of <\/p>\n
    government land.   This order of disqualification passed by respondent no.2 <\/p>\n
    Additional Collector has been upheld in Appeal under section 16[2] of the <\/p>\n
    1958 Act, by respondent no.1 Additional Commissioner.   Here though the <\/p>\n
    fact   of   encroachment   by   petitioner   is   not   disputed,     contention   is, <\/p>\n
    encroachment   was   made   long   back   by   her   mother-in-law   and   petitioner <\/p>\n
    married into that family subsequently.\n<\/p>\n
    3.            Basic contention in both these petitions is that as the ground used <\/p>\n
    for   disqualification   was   in   existence   at   the   time   of   election   of   respective <\/p>\n
    petitioner,   election   petition   was   the   only   remedy   available   and   the <\/p>\n
    proceedings for disqualification moved after expiry of period of limitation are <\/p>\n
    not sustainable.  Reliance has been placed on the judgment of Hon’ble Apex <\/p>\n
    Court reported at AIR 2007 SC 903  (State of Himachal Pradesh and others <\/p>\n
    .vrs. Surinder Singh Banolta) for the said purpose.\n<\/p>\n
    4.            I   have   heard   Shri   A.M.   Ghare,   learned   counsel   for   petitioner, <\/p>\n
    Shri     S.D.   Chopde,   learned   Counsel   for     Respondent   No.2,   Shri     R.M.\n<\/p>\n
    Mardikar,   learned   Counsel   for   Respondent   no.3   and   Shri     V.A.   Thakre, <\/p>\n
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\n                                                 5<\/span><\/p>\n
    learned   Asstt.   Govt.   Pleader   for     Respondent   No.5   in   Writ   Petition   No. <\/p>\n
    5034\/2009.     Respondent   no.1   who   filed   complaint   and   sought <\/p>\n
    disqualification of petitioner has chosen not to appear though notice for final <\/p>\n
    disposal has been served upon him.\n<\/p>\n
                 In   Writ   Petition   No.   5658\/2009   I   have   heard     Shri       M.V.\n<\/p>\n
    Samarth,  learned Counsel for Petitioner, Shri   A.M. Ghare, learned Counsel <\/p>\n
    for   Respondent Nos.3 – Gram Panchayat and 4 – Complainant, and Mrs. <\/p>\n
    T.D. Khade, learned Asstt. Govt. Pleader for   Respondent Nos.1 & 2.   The <\/p>\n
    complaint for disqualification was filed by respondent no.4 and one Kedar <\/p>\n
    together.  That Kedar was joined as respondent no.5 earlier, but lateron the <\/p>\n
    petitioner sought his deletion and the same has been allowed on 25.01.2010.\n<\/p>\n
    As the facts are in dispute in Writ Petition No. 5658\/2009, I find it proper to <\/p>\n
    deal with that Writ Petition first.\n<\/p>\n
    5.           Petitioner   Vandana   accepts   that   there   is   encroachment   on <\/p>\n
    government land, however, she has pointed out that, that encroachment has <\/p>\n
    been   noted   on   12.11.2003   and   it   has   been   done   by   her   mother-in-law <\/p>\n
    Rukhma.   She states that the encroachment was done in the year 1991 by <\/p>\n
    Rukhmabai who lateron applied for is regularization.  She got married  with <\/p>\n
    Surendra   who   is son  of  Rukhmabai,  in  the   year   1999   i.e.  before  she   was <\/p>\n
    elected as Sarpanch of Gram Panchayat.   In this situation, contention is as <\/p>\n
    encroachment is not done by the petitioner, she cannot be disqualified on <\/p>\n
    that account.  The other contention is that she has been elected as Member of <\/p>\n
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\n                                                  6<\/span><\/p>\n
    Gram Panchayat   in 2007 and Sarpanch thereafter.     Hence, encroachment <\/p>\n
    and   disqualification   available   at   that   time   cannot   be   used   by   filing <\/p>\n
    proceedings under Section 14 of the 1958 Act to disqualify her, when that <\/p>\n
    challenge was open in election petition under Section 15 of the Act.  Support <\/p>\n
    is also sought to be taken from the stand in application for disqualification <\/p>\n
    filed by respondent nos. 4 and 5 that petitioner was working as Sarpanch <\/p>\n
    since   2002-03   and   the   encroachment   is   recorded   since   then.     For   this <\/p>\n
    purpose, the respective counsel for respondents contend that   petitioner is <\/p>\n
    admittedly residing with her husband in encroached premises, tax receipts <\/p>\n
    from 2003-04 show name of her husband as   owner and hence petitioner <\/p>\n
    cannot take advantage of the alleged fact that encroachment was in existence <\/p>\n
    prior to her election.   Attention  is invited to the consideration of this  aspect <\/p>\n
    by Appellate Authority, namely the Additional Commissioner who has found <\/p>\n
    that   the   petitioner   had   in   fact   applied   for   regularization   of   that <\/p>\n
    encroachment.     Reliance   by   her   on   order   of   Sub   Divisional   Officer   dated <\/p>\n
    01.12.2009 on her application dated 26.11.2009 to drop the application for <\/p>\n
    regularization   of   encroachment  is   found   to   be   misconceived.     Shri   Ghare, <\/p>\n
    learned   counsel   has   argued   that   if   a   Member   of   the   Gram   Panchayat   or <\/p>\n
    Sarpanch   of   Gram   Panchayat   is   exempted   from   disqualification   on   such <\/p>\n
    ground, there will be conflict between his duty and personal interest, which is <\/p>\n
    sought to be prohibited by adding disqualification clause vide Section 14[j-3].\n<\/p>\n
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\n                                                   7<\/span><\/p>\n
    6.            The finding of encroachment against the petitioner is concurrent.\n<\/p>\n
    The   petitioner   herself   has   accepted   the   encroachment.   Her   contention   is <\/p>\n
    however, the encroachment is done by her mother-in-law.   Documents  on <\/p>\n
    record of encroachment for village Sawarbandh for the year 2002-03 mention <\/p>\n
    that,   that   encroachment   came   to   notice   on   12.11.2003   and     name   of <\/p>\n
    Rukhmabai has been mentioned as person encroaching.   It also shows that <\/p>\n
    fine of Rs.500\/- was paid by her on 20.11.2003.  The petitioner has filed her <\/p>\n
    reply before the Additional Collector and in it has reiterated this stand.   In <\/p>\n
    her affidavit filed before the Additional Collector, she has made improvement <\/p>\n
    to urge that the encroachment was done by her mother-in-law since 1996-97.\n<\/p>\n
    In Writ Petition before this Court, encroachment by Rukhmabai is claimed to <\/p>\n
    be  from  1991.    Affidavit  filed   by  her   mother-in-law   before   the   Additional <\/p>\n
    Collector states that she has done encroachment in 1996.  It also stated that <\/p>\n
    mention   of   encroachment   in   name   of   petitioner   in   2007-08   is   incorrect.\n<\/p>\n
    Perusal of order dated 01.12.2009 passed by the Sub Divisional Officer shows <\/p>\n
    that   on   14.11.2008,   Tahsildar,   Sakoli   had   submitted   a   proposal   for <\/p>\n
    regularization   of   this   encroachment   by   Vandana.     It   has   been   further <\/p>\n
    recorded that upon enquiry it was discovered that encroachment is not by <\/p>\n
    Vandana,   but   by   Rukhmabai.     In   view   of   this   position   the   Sub   Divisional <\/p>\n
    officer  has  passed  an  order   and   directed   deletion  of  name   of  Vandana   as <\/p>\n
    encroacher.     This   order,   as   submitted   by   the   petitioner   herself   on   record <\/p>\n
    shows  that  she   moved  for   regularization   of   that  encroachment   some   time <\/p>\n
    before  November,  2008  i.e.  prior  to  institution  of  the  proceedings for  her <\/p>\n
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\n                                                     8<\/span><\/p>\n
    disqualification by respondent no.4.  After this proceeding for disqualification <\/p>\n
    came to be instituted on 05.03.2009, she perhaps thought it proper to get her <\/p>\n
    regularization application disposed of.  The order dated 01.12.2009 is passed <\/p>\n
    by   the   Sub   Divisional   Officer   in   view   of   these   facts.     The   Additional <\/p>\n
    Commissioner has  observed that the Sub Divisional Officer passed that  order <\/p>\n
    to remove petitioner from the clutches of encroachment.   It appears that in <\/p>\n
    those proceedings the petitioner herself prayed for closing of proceedings and <\/p>\n
    this fact is also taken note of by the Additional Commissioner.  In view of this <\/p>\n
    position   it   is   apparent   from   record   that     contention   of   petitioner   that <\/p>\n
    Rukhmabai has done that encroachment and she is not responsible for it in <\/p>\n
    any way, cannot be accepted.    Even if it is presumed that encroachment is <\/p>\n
    prior   to   her   election   and   was   not   recorded   in   her   name,   her   own   act   of <\/p>\n
    getting   it   regularized   in   her   name   shows   that   she   can     be   treated   as <\/p>\n
    encroacher.   Her name  was recorded in the encroachment register in 2007-\n<\/p>\n
    08   and   thereafter   she   applied   for   its   regularization.     She   has   therefore <\/p>\n
    become encroacher qua the structure in 2007-08 and accepted it by moving <\/p>\n
    an  application  for   its   regularization.     Had   respondent   no.4   not  moved  an <\/p>\n
    application for her disqualification, it is clear that she would have succeeded <\/p>\n
    in getting that encroachment regularized.\n<\/p>\n
    7.             Provisions of Section 14[1][j-3] are added to Statute book to deal <\/p>\n
    with   only   such   situation.     The   act   of   petitioner   in   trying   to   get   her <\/p>\n
    encroachment regularized clearly shows abuse of her position and is contrary <\/p>\n
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\n                                                   9<\/span><\/p>\n
    to   that   clause.     She   is   therefore   correctly   found   to   have   incurred <\/p>\n
    disqualification  by both the  authorities.    The  name  of  petitioner  has been <\/p>\n
    recorded as   encroacher in 2007-08 and she has tried to get it regularized.\n<\/p>\n
    Both   these   events   are   after   her   election.     The   contention   that   this <\/p>\n
    encroachment therefore could have been used to challenge her election by <\/p>\n
    filing   election   petition   under   section   15   of   the   1958   Act,   and   hence <\/p>\n
    proceedings   under   Section   14   therefor   is   not   tenable,   is   therefore <\/p>\n
    misconceived in present facts.\n<\/p>\n
    8.<\/p>\n
                  Section   14   of   the   1958   Act,   states   that   no   person   can   be   a <\/p>\n
    Member of Panchayat or can continue as a member of Panchayat, if he is <\/p>\n
    encroacher as stipulated in its sub-section [1][j-3].  Thus bar is not only from <\/p>\n
    getting elected, but also from continuing as Member.   There are two forums <\/p>\n
    provided   for   getting   rid   of   such   disqualified   person.       Application   under <\/p>\n
    section 14 read with section 16 before respondent no.2 Additional Collector <\/p>\n
    is   one   such   remedy.     Against   order   passed   in   those   proceedings   Statute <\/p>\n
    provides   appeal   under   section   16[2],   to   respondent   no.1   Additional <\/p>\n
    Commissioner.  The other forum is of filing an Election Petition under Section <\/p>\n
    15 before the Civil Judge, Junior  Division or Civil Judge, Senior Division as <\/p>\n
    the case may be.   The election petition is required to be filed within 15 days <\/p>\n
    after  the  date  of declaration of result and  by  any candidate  who  has lost <\/p>\n
    election or by any person qualified to vote in it.     The proceedings under <\/p>\n
    Section 16[2] for disqualification can be undertaken by respondent no.2 suo <\/p>\n
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\n                                                 10<\/span><\/p>\n
    motu or on an application made to him by any person.\n<\/p>\n
    9.            In the case of  State of Himachal Pradesh and others (supra), the <\/p>\n
    Hon’ble Apex Court  states the right approach when for same cause of action <\/p>\n
    two remedies are open.  There the Hon’ble Apex Court has found that Section <\/p>\n
    122   of   Himachal   Pradesh   Panchayat   Raj   Act,   1994   contemplated   both <\/p>\n
    situations, namely where a person shall be disqualified for being chosen as <\/p>\n
    and also for being a office bearer of Panchayat, if he has encroached upon <\/p>\n
    any land  belonging  to  any Authority,  as mentioned  in that  section.      The <\/p>\n
    findings   in   paragraph   no.9   show   that   when   a   person   is   shown   to   be <\/p>\n
    encroacher prior to  the date on which he has been declared as elected and if <\/p>\n
    that order has attained finality, the question whether he stood disqualified, <\/p>\n
    must be raised by way of election petition   under Section 163 of that Act <\/p>\n
    before   authorized   officer.     Consideration   in   paragraph   no.10   shows   that <\/p>\n
    otherwise a situation may arise where two different proceedings may be filed <\/p>\n
    before two different authorities for such disqualification at the instance of <\/p>\n
    two   different   persons.       Section   162   of   that   Act   expressly   provided   for <\/p>\n
    exclusive   jurisdiction   of   authorized   officer   to   determine   the   existence   or <\/p>\n
    otherwise of any ground enumerated in Section 175 thereof.  In the light of <\/p>\n
    provisions  of  Article  243-O of the  Constitution of  India,  the  Hon’ble  Apex <\/p>\n
    Court noted that the election cannot be set aside, save and except by an order <\/p>\n
    passed   by   the   authorized   officer.     Hence   remedy   for   disqualification   in <\/p>\n
    relation to any order passed after election process is over, has been held to be <\/p>\n
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\n                                                   11<\/span><\/p>\n
    before the Deputy Commissioner.  In view of these two remedies the Hon’ble <\/p>\n
    Apex Court has found that under a given situation, two different proceedings <\/p>\n
    may be filed before two different authorities at the instance of two different <\/p>\n
    persons.  It has been held that two parallel proceedings cannot be allowed to <\/p>\n
    be held at the same time and a construction of statute which may lead to <\/p>\n
    such   a   situation  therefore  must   be   avoided.       It  is noticed   that  it  will   be <\/p>\n
    absurd to allow two different tribunals to come to contradictory decision.  In <\/p>\n
    facts before it, the Hon’ble Apex Court found that respondent no.1 before it <\/p>\n
    was declared encroacher in the year 1998 and he was elected in result of <\/p>\n
    election declared on 15.01.2001, hence in terms of provisions of Article 243-\n<\/p>\n
    O, read with Section 163 the Election Petition was maintainable for setting <\/p>\n
    aside   his   election.   Hence   filing   of   disqualification   proceedings   before   the <\/p>\n
    Deputy   Commissioner   in   view   of   Section   122   was   not   permissible.       The <\/p>\n
    Hon’ble Apex Court also expressed that matter would have been different if <\/p>\n
    respondent no.1 was declared to be an encroacher after the election process <\/p>\n
    was over and thus became disqualified to continue to be an office bearer of <\/p>\n
    Panchayat or Zilla Parishad.\n<\/p>\n
    10.           This   judgment   relied   upon   by   Shri   Samarth,   learned   counsel <\/p>\n
    shows that it does not favour petitioner at all, as present petitioner has been <\/p>\n
    found   to   be   an   encroacher   after   commencement   of   her   term   and   after <\/p>\n
    noticing   this,   she   tried   to   get   those   proceedings   of   regularization   of <\/p>\n
    encroachment dropped by giving her statement accordingly on 26.11.2009 to <\/p>\n
    the Sub Divisional Officer.  This judgment of Hon’ble Apex Court again shows <\/p>\n
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\n                                                 12<\/span><\/p>\n
    that when ground for disqualification can be used in election petition and <\/p>\n
    also   in   disqualification   proceedings   under   Section   16[2]   of   the   Bombay <\/p>\n
    Village Panchayat Act, 1958 the question of parallel proceedings can arise.\n<\/p>\n
    Here   election   petition   is   contemplated   under   Section   15   of   the   Bombay <\/p>\n
    Village Panchayat Act.  It’s perusal reveals that the Civil Judge dealing with <\/p>\n
    the election petition cannot nullify the election of petitioner on the ground <\/p>\n
    that she has done encroachment or she was encroacher.   The interference in <\/p>\n
    election petition is possible  only if the  elected candidate is found  to have <\/p>\n
    committed a corrupt practice within the meaning of sub-section [6] or has <\/p>\n
    submitted a false claim or false caste certificate as given in its sub-section [5]<\/p>\n
    [a].\n<\/p>\n
    11.           The   Division   Bench   of   this   Court   has   considered   the   similar <\/p>\n
    challenge   in   proceedings   in   Maharashtra   Zilla   Parishad   and   Panchayat <\/p>\n
    Samitis Act, in a judgment reported at 1976 Mh.L.J. 621  (Manik Mallappa <\/p>\n
    Karale .vrs. Kisan Nagurao Patil and others).  There the provisions of Section <\/p>\n
    27   permit   filing   of   Election   Petition   while   Section   16   prescribes <\/p>\n
    disqualification.  The Division Bench after considering all relevant provisions <\/p>\n
    noticed that the election of respondent no.3 before it was challenged on the <\/p>\n
    ground that he was initially disqualified to be elected.  The jurisdiction of the <\/p>\n
    Court trying election petition is regulated by sub-section [27] [2] and [5] of <\/p>\n
    the   Zilla   Parishad   Act.     The   Division   Bench   noticed   that   sub-section   [5] <\/p>\n
    thereof gives the ground on which election of an elected candidate can be set <\/p>\n
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\n                                                13<\/span><\/p>\n
    aside, and hence it held that the said Court had no power to go into the <\/p>\n
    question  whether   elected  candidate  was  disqualified   at the  time  when  his <\/p>\n
    nomination paper was accepted.  It has relied upon the earlier Division Bench <\/p>\n
    judgment taking similar view and reported at 1965 Mh.L.J. Note 56 (Brijlal <\/p>\n
    Sao .vrs. D.J. Bhandara).     This judgment covers the controversy involved <\/p>\n
    before me.     It is apparent that the question whether nomination paper of <\/p>\n
    present petitioner  deserved  to  be  rejected  under  Section 14[1][j-3] of the <\/p>\n
    1958 Act, cannot be gone into in election petition under section 15 thereof.\n<\/p>\n
    In short, there are no parallel proceeding in so far as the disqualification of <\/p>\n
    petitioner as encroacher is concerned, contemplated in law.   I therefore, do <\/p>\n
    not find any substance in challenges raised by petitioner Vandana and Writ <\/p>\n
    Petition No. 5658\/2009 accordingly deserves to be dismissed by upholding <\/p>\n
    the concurrent views and findings  of respondent nos.1 and 2.\n<\/p>\n
    12.          This bring me to consideration of identical legal challenge in Writ <\/p>\n
    Petition   no.5034\/2009.     Petitioner   –   Shrikrishna       therein   is   disqualified <\/p>\n
    under   section   16[1][n]   of   the   Maharashtra   Zilla   Parishad   and   Panchayat <\/p>\n
    Samitis Act.  Said provision disqualifies a person for being chosen as and for <\/p>\n
    being a Councillor if he has more than two children.   As already observed <\/p>\n
    above, the learned counsel for petitioner has not raised any factual dispute in <\/p>\n
    this respect before this Court.     Therefore, the relevant question is whether <\/p>\n
    the   disqualification   subsisting   on   the   date   of   election   could   have   been <\/p>\n
    challenged in election petition under Section 27 of the Zilla Parishad Act.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:36:48 :::<\/span>
\n                                                  14<\/span><\/p>\n
    The Division Bench judgment of this Court in the case of   Manik Mallappa <\/p>\n
    Karale .vrs. Kisan Nagurao Patil and others (supra) is already mentioned by <\/p>\n
    me   above   to   note   the   limitations   on   election   tribunals   dealing   with   such <\/p>\n
    election petition.\n<\/p>\n
    13.           Shri   Ghare,   learned   Counsel   for   petitioner   has   urged   that <\/p>\n
    judgment   in     State   of   Himachal   Pradesh   and   others   .vrs.   Surinder   Singh <\/p>\n
    Banolta (supra) squarely applies even in present facts.   The learned Assistant <\/p>\n
    Government   Pleader   Shri   Thakre,     has   pointed   out   earlier   judgment   of <\/p>\n
    Hon’ble Apex Court to distinguish this judgment.     The earlier judgment of <\/p>\n
    Hon’ble Apex Court reported at 1999 [2] SCC 627 (Rabindra Kumar Nayak <\/p>\n
    .vrs. Collector, Mayurbhanj, Orissa and others)  is delivered by the Bench of <\/p>\n
    equal strength, it is not considered in case of State of Himachal Pradesh and <\/p>\n
    others .vrs. Surinder Singh Banolta (supra).  Perusal of that judgment shows <\/p>\n
    that   there   disqualification   under   section   45[1][i]   of   the   Orissa   Panchayat <\/p>\n
    Samiti Act, 1959 was urged on account of holding an office of  profit under <\/p>\n
    the State Government.  The consideration of “parallel proceeding” as in State <\/p>\n
    of   Himachal   Pradesh   and   others   .vrs.   Surinder   Singh   Banolta   (supra),     is <\/p>\n
    undertaken by the Hon’ble Apex Court in this earlier judgment in paragraph <\/p>\n
    no.18 onwards, where it has been mentioned as “second contention”.   After <\/p>\n
    noticing the relevant provisions in paragraph nos.18 and 19, in paragraph <\/p>\n
    no.20   difference between two remedies is briefly noticed and then it has <\/p>\n
    been found that though disqualification mentioned in Section 45 is one of the <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:36:48 :::<\/span>
\n                                                      15<\/span><\/p>\n
    ground under Section 44L for declaring the election void, there were also <\/p>\n
    other grounds on which the election of returned candidate can be declared <\/p>\n
    void.  Thus other grounds could not be the subject matter of an application <\/p>\n
    under Section 45[B] to decide the question of disqualification.  The Hon’ble <\/p>\n
    Apex   Court   also   notices   that   there   was     some   overlapping   between   two <\/p>\n
    sections but, then the field of operation of these two sections is different and <\/p>\n
    distinct.  It has been noted that the District Judge under Section 45 [B] of the <\/p>\n
    Orissa Panchayat Samiti Act was not pronouncing upon validity of election, <\/p>\n
    but was only pronouncing upon the question as to whether the member is or <\/p>\n
    has   become   disqualified.     In   short   the   proceedings   were   not   found   to   be <\/p>\n
    parallel or inconsistent there.     The provisions of Articles 243-O and 243-F <\/p>\n
    considered in  later judgment of Hon’ble Apex Court were not required to be <\/p>\n
    looked into in that judgment.   The Constitutional Bar to interfere by courts <\/p>\n
    in electoral matters therefore did not fell for  consideration in that judgment.\n<\/p>\n
    The   later   judgment   considers   the   issue   of   disqualification   and   election <\/p>\n
    petition in the light of the constitutional provisions.   I therefore, find that <\/p>\n
    later judgment is more on the issue raised before me for consideration.\n<\/p>\n
    14.            The proceeding for disqualification of petitioner were initiated by <\/p>\n
    respondent no.1 Shivchanran.  He in paragraph no.2 of his application stated <\/p>\n
    that Shrikrishna [petitioner] submitted his nomination form on 15.11.2008 <\/p>\n
    and   at   that   time   filed   false   affidavit   and   declared   on   oath   that   he   is   not <\/p>\n
    having   3rd  issue   after   12.09.2001   i.e.   after   the   commencement   of <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 15:36:48 :::<\/span>
\n                                                     16<\/span><\/p>\n
    Maharashtra Zilla Parishad and Panchayat Samiti (Amendment) Act, 1995.\n<\/p>\n
    Along   with   his   nomination   paper   petitioner   filed   a   false   birth   certificate <\/p>\n
    issued by respondent no.3 [Registrar of Births and Death of Akola Municipal <\/p>\n
    Corporation].   Thus on the basis of this false certificate and declaration on <\/p>\n
    affidavit,   petitioner   got   himself   elected   as   Member   of   Panchayat   Samiti, <\/p>\n
    Akola.       The   filing   of   this   certificate   or   affidavit   is   not   disputed   by   the <\/p>\n
    petitioner.   His contention is, the stand of respondent no.1 about this being <\/p>\n
    incorrect   and   false   is   wrong.     The   Additional   Commissioner,   Amravati <\/p>\n
    Division, Amravati has disqualified the petitioner by accepting the application <\/p>\n
    of respondent no.1.\n<\/p>\n
    15.            The   contention   of   respondent   no.1   Shivcharan   therefore,   itself <\/p>\n
    shows that he pointed out incorrect or false declaration on affidavit and use <\/p>\n
    of   false   certificate   by   petitioner   while   filing   his   nomination   paper.     The <\/p>\n
    disqualification was therefore in existence since prior to election.  Section 27 <\/p>\n
    of the Zilla Parishad Act, permits an Election Petition to be filed before the <\/p>\n
    District Judge by any candidate at such election or by any person qualified to <\/p>\n
    vote at such election within 15 days, after the date of declaration of result of <\/p>\n
    election.  Section 58 [1-A] permit respondent no.1 to look into the aspect of <\/p>\n
    disqualification of petitioner in the light of provisions of Section 16.  Section <\/p>\n
    62[3] permits Commissioner to look into such issue of disqualification suo <\/p>\n
    moto or on an application made to him by any person.   In this background <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 15:36:48 :::<\/span>
\n                                                  17<\/span><\/p>\n
    provisions of Sub-section [5] of section 27 show that the District Judge trying <\/p>\n
    election petition can declare a person who has submitted false claim or false <\/p>\n
    certificate  as disqualified for the purpose  of that election.   The  words  “or <\/p>\n
    submitted  a   false   claim  or   a   false   caste   certificate”  have  been  inserted   by <\/p>\n
    Maharashtra Amendment Act no. 34 of 2000.  These words were not in the <\/p>\n
    statute book when the Division Bench of this Court decided the case of Manik <\/p>\n
    Mallappa   Karale   .vrs.   Kisan   Nagurao   Patil   and   others   (supra).         It   is <\/p>\n
    therefore, obvious that if petitioner has submitted a false affidavit or false <\/p>\n
    declaration with false certificate to show his entitlement to contest election, <\/p>\n
    he   could   have   been   declared   as   disqualified   under   section   27[5][a]   in <\/p>\n
    Election Petition by the District Judge, and his election could have been set <\/p>\n
    aside.\n<\/p>\n
    16.           Thus, in Writ Petition No.5034\/2009 possibility of two parallel <\/p>\n
    proceeding as expressed by the Hon’ble Apex Court in its judgment   in the <\/p>\n
    case of State of Himachal Pradesh and others .vrs. Surinder Singh Banolta <\/p>\n
    (supra)   is not ruled out.  It therefore follows that the said judgment clinches <\/p>\n
    the issue involved in the present matter.   The disqualification of petitioner <\/p>\n
    Shrikrishna on the ground of having more than two children therefore, ought <\/p>\n
    to   have   been   asserted   in   the   election   petition   under   section   27   of   the <\/p>\n
    Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 and recourse to <\/p>\n
    remedy   of   disqualification   before   respondent   no.5   is   not   available.     The <\/p>\n
    application   filed   by   the   present   respondent   no.1   Shivcharan   before <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:36:48 :::<\/span>
\n                                                   18<\/span><\/p>\n
    respondent no.5  under section 58[1][e] read  with Section 62 and 16 and <\/p>\n
    16[1][n]   of   that   Act   is   therefore   not   maintainable.     The   impugned   order <\/p>\n
    dated 06.11.2009 passed by the Additional Commissioner, Amravati Division, <\/p>\n
    Amravati   is   therefore   without   jurisdiction.   Same   is     therefore   liable   to   be <\/p>\n
    quashed and set aside and is accordingly quashed and set aside.  Writ Petition <\/p>\n
    is thus allowed, by making Rule absolute accordingly with no order as to cost.\n<\/p>\n
    17.           For   reasons   recorded   above   challenge   in   Writ   Petition   No. <\/p>\n
    5658\/2009 fails  and the same is dismissed.  Writ Petition No. 5034\/2009 is <\/p>\n
    allowed in the aforesaid terms.\n<\/p>\n
                                                                              JUDGE<\/p>\n
    Rgd.\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:36:48 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Shrikrishna Wasudeo Dhage vs Shivcharan on 15 February, 2010 Bench: B. P. Dharmadhikari 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-164995","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Shrikrishna Wasudeo Dhage vs Shivcharan on 15 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-shrikrishna-wasudeo-dhage-vs-shivcharan-on-15-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Shrikrishna Wasudeo Dhage vs Shivcharan on 15 February, 2010 - 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