Shri Sanjay Nayaku Anuse v. District Collector, Kolhapur & Ors.

Order

(Per B.R.Gavai, J.)

1. Rule. Mr.Sonawane, learned AGP waives service on behalf of respondent nos 1, 2 and 4 and Mr Killedar, learned counsel waives service on behalf of respondent no.3. By consent of the parties, Rule is made returnable forthwith and Petition is taken up for final hearing.

2. The petitioner has approached this Court for a writ or order to hold that the respondent no.3 was not qualified under the provisions of Section 15 of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 to contest election for Panchayat 2 / 11 WP/2220/2012 Samiti (hereinafter referred to as 'the Z.P.Act') and for other consequential reliefs, restraining him from exercising the rights of elected candidate, as are available to a member of the Panchayat Samiti, Shirol.

3. The undisputed facts, giving rise to the present petition, are as under. Respondent no.3 had contested the Grampanchayat Election to the Gram Panchayat Herwad, Tq.Shirol, Dist.Kolhapur. Respondent no.3 was a successful candidate in the election and was declared as elected. However, it appears that one Shantijurao Shivajirao Desai and Vasantrao Ramchandra Desai had filed the proceedings against the respondent no.3 for her disqualification on the ground that the arrears of taxes were not paid by her. The Addl. Collector, Kolhapur, vide order dated 3.11.2010, allowed the dispute application filed by those two persons and held the respondent no.3 to be disqualified to continue as a member of the Gram Panchayat Herwad. The respondent no.3 had carried the said order in appeal before the Addl. Divisional Commissioner, Pune. During the pendency of the appeal, on 20.1.2012 the elections to the Panchayat Samiti, Shirol were notified. Undisputedly, there was a stay operating during the pendency of the appeal. The respondent no3 accordingly contested the elections to the said Panchayat Samiti in which she was declared as elected on 3 / 11 WP/2220/2012

17.2.2012. However, immediately, on the very next day, i.e.18.2.2012 the Addl. Commissioner dismissed the appeal filed by the respondent no.3.

4. Thereafter, on 7.3.2012, the present petition came to be filed by the petitioner, whose wife had contested against the respondent no.3 and lost the election. In the meantime, it appears that the respondent no.3 had also approached this court by way of Writ Petition Nos 2200 of 2012 and 2201 of 2012. On

9.3.2012 the learned Single Judge of this court found that there was no reason to grant any such stay since the petitioner has resigned and she has not been disqualified as a member of Gram Panchayat. It is not in dispute that subsequently the said writ petitions were withdrawn.

5. In this factual matrix of the case, we have heard Mr P.S.Dani, learned counsel appearing for the petitioner, Mr C.R.Sonawane, learned AGP for respondent nos 1,2 and 4 and Mr

Vijay Killedar, learned counsel for the respondent no.3.

6. Mr Dani, learned counsel appearing on behalf of the petitioner, submits that in view of the provisions of section 16(1) (b) of the Bombay Village Panchayats Act,1958 (for short, 'Village Panchayats Act') read with Section 15 of the Z.P.Act, on account of the respondent no.3's disqualification as a member of the Panchayat Samiti, having been reached finality, she was not 4 / 11 WP/2220/2012 entitled to contest the election to the Panchayat Samiti and as such her continuation as a member of the Panchayat Samiti was not permissible under law. The learned counsel submits that after dismissal of the appeal and withdrawal of the petitions, the disqualification would relate back to the original order passed by the Addl. Collector, Pune on 3.11.2010. It is further submitted that the respondent no.3 had also given a false declaration in the nomination form stating therein that she was not disqualified either under the Village Panchayats Act or any other law for the time being in force. He submitted that on this ground also the petition deserves to be allowed.

7. Mr Killedar, learned counsel appearing on behalf of the respondent no.3, has raised three-fold submissions. The learned counsel submits that perusal of section 15 of the Z.P.Act, would reveal that the words used “any other law for the time being in force” have to be read in a manner that a candidate should not be disqualified to exercise his right to vote. The learned counsel submits that the provision cannot be read in a manner that it provides that a person, who is disqualified in any other statutes would automatically be disqualified to contest the election under the Z.P.Act. The learned counsel submits that in the absence of any specific provisions, providing for disqualification under the Z.P.Act in respect of a person who is also disqualified under the Village Panchayats Act, the disqualification would not be 5 / 11 WP/2220/2012 automatic.

8. The learned counsel further submits that in view of the provisions of Articles 243(B), 243(F) and 243(O), the disqualification can be done only in accordance with machinery provided under the Law as made by the State Legislature. The learned counsel, therefore, submits that since section 27 of the Z.P.Act provides for a complete machinery to challenge the election, the present respondent no.3 can be disqualified only by invoking section 27 of the Z.P.Act.

9. Thirdly, the learned counsel submits that the finding is recorded by the learned Single Judge of this court (as he then was) vide order dated 9.3.2012 that the respondent no.3 has not been disqualified as a member of the Village Panchayat and, therefore, the same would operate as res judicata.

10. We find that the contentions, as raised by the learned counsel for the respondent no.3, are totally without substance. It will be relevant to refer to Section 16(1) of the Village Panchayats Act, which reads as under : “16. Disability from continuing as member. (1) If any member of a Panchayat,- (a) who is elected or appointed as such, was subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment, or 6 / 11 WP/2220/2012 (b) during the term for which he has been elected or appointed, incurs any of the disqualifications mentioned in section 14, he shall be disabled from continuing to be a member, and his office shall become vacant.” Perusal of the same would reveal that a member of a Panchayat who is elected or appointed as such, was subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment, or during the term for which he has been elected or appointed incurs any of the disqualifications mentioned in section 14, he shall be disabled from continuing to be a member and his office shall become vacant. It is thus clear that if a person is found to have incurred any of the disqualifications as mentioned in section 14 at the time of his election or during the term for which he has been elected, he shall be disabled from continuing to be a member and his office shall become vacant. Undisputedly, the respondent no.3 has been held to be disqualified under section 14(h) of the Village Panchyats Act by order dated 3.11.2010. The same order has also been confirmed in Appeal vide order dated 18.2.2012. The writ petitions challenging the same have been withdrawn. As such, the order of disqualification would relate back to the original order of disqualification passed by the Addl. Collector, dated 3.11.2010. 7 / 11 WP/2220/2012

11. It will also be necessary to refer to section 15 of the Maharashtra Zilla Parishads and Panchayat Samitis Act,1961, which reads thus: “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 by-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 in such list shall not be qualified to be elected from any electoral divisions of that District.” Perusal of the said provisions deals with qualification of persons to be elected as a member of Zilla Parishad or Panchayat Samiti. The said provision is very clear. It provides that a person, who is not less than twenty-one years of age on the last date fixed for making nominations for every general election or by-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, is qualified to be elected and every person who is not of twenty one years of age as aforesaid and whose name is not in such list shall not be qualified to be elected form any electoral divisions of that district. The first principle of interpretation of statutes is of plain and literal construction. The plain reading of the said section would provide 8 / 11 WP/2220/2012 for qualification to be eligible for contesting election and also for disqualification. The said section provides that to be qualified for election it is necessary that a person should not be less than twenty one years of age and that his name should be in the list of voters of any electoral division in a district. The said section also provides that a person who is disqualified under this Act or under any other law for the time being in force, or a person who is below 21 years and whose name is not in such list, would not be qualified to be elected. It is thus clear that the contention of the learned counsel for respondent no.3 is that the disqualification is only in relation to right to vote, is without any substance. The disqualification is undisputably with respect to get elected.

12. Since respondent no.3 has been held to be disqualified under the provisions of the Village Panchayats Act, the said disqualification would automatically disqualify her under the Z.P.Act also as the disqualification under the Village Panchayats Act is continued for a period during which a person was elected and since the respondent no.3 was elected on 25.11.2007 the said disqualification would continue till 27.11.2012. Since after dismissal of the appeal and withdrawal of the petitions, disqualification would relate back to the date of the original order I,e. 3.11.2010, respondent no.3 was very much disqualified to 9 / 11 WP/2220/2012 submit his nomination on 20.1.2012.

13. Insofar as the contention of the learned counsel with regard to the provision of Article 243(B) and 243(O) of the Constitution of India is concerned, no doubt, clause (b) of Article 243F provides for disqualifications for membership of the Panchayat if a person is so disqualified by or under any law made by the legislatures of the State. Undisputedly, the qualification is provided under the provisions of Section 15 of the Z.P.Act read with section 14 of the Village Panchayats Act. Since the disqualification is provided by law made by the State Legislature, we do not see as to how the said Article would come to the rescue of the respondent no.3. Insofar as the reliance on Article 243(O) is concerned, it provides that no election of the Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by of under any law made by the legislature of a State. Undisputedly, section 27 of the Zilla Parishad Act provides for election petition if election of a candidate who is elected is sought to be challenged. Reading of clause (b) of Article 243(O) and section 27 of the Z.P.Act, undisputedly would indicate that if the election of a elected candidate is sought to be challenged the same can be done only by filing election petition. In the present case, the challenge is not to the election of the respondent no.3 10 / 11 WP/2220/2012 but the basic disqualification which was incurred by the respondent no.3 on the date she submitted nomination papers. Reliance on Article 243(O) and section27 of the Z.P.Act is without any substance. Since respondent no.3 was disqualified on the date of nomination, in law she could not have contested the election. As such her nomination itself is not valid in law.

14. That leave us with the last submission made by the petitioner regarding an order passed by the learned Single Judge of this Court on 9.3.2012. Firstly, the petitioner was not a party to the said petition and as such principles of res judicata would not be applicable. In any case, the stray observation made to the following effect that “there is no reason to grant any such stay since the petitioner has resigned and she has not been disqualified as a member of the Panchayat Samiti” cannot be held to be a pronouncement of the learned Single Judge to the effect that the respondent no.3 has been held to be not disqualified as a member of the Panchayat Samiti. To apply the principles of ratio decindi, the court is required to consider the facts of the case in the light of the statutory provisions and apply the same to the facts of the case and give its finding thereon. In any case, the petitions have already been withdrawn by respondent no.3 and the interim order merged with the final order. In that view of the matter, the contention in that regard is 11 / 11 WP/2220/2012 of no substance. We are of the considered view, on the combined reading of section 16 of the V illage Panchayats Act and section 15 of the Z.P.Act that the respondent no.3 is not entitled to continue as a member of the Panchayat Samiti. Rule is, therefore, made absolute in terms of prayer clauses (a) and (b).

15. At this stage, the learned counsel for the respondent no.3 seeks stay to the implement ion of our order for a period of three weeks from today. Mr Dani opposes the prayer. However, in the facts and circumstances of the case and in the light of the law laid down by the Apex Court in the case of Indira Nehru Gandhi Vs Raj Narayan, AIR 1975 SC 2299, we are inclined to pass the following order. “The order passed by us shall be stayed for a period of three weeks from today. However, though the respondent no.3 would not entitle to seat and participate in meetings of the Zilla Parishad she shall not take part in the voting and shall not get any remuneration as a member of Panchayat Samiti. (R.G.KETKAR, J.) (B.R.GAVAI,J.)