Bombay High Court
Rukhmina Rajesh Dange vs Kailash Natthuji Pawar And Others on 5 April, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
908-J-WP-2047-19 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2047 OF 2019
Rukhmina Rajesh Dange
Aged about 40 years, Occ. House Wife,
R/o Post Vyad, Tq. Risod, Dist. Washim ... Petitioner.
-vs-
1. Kailash Natthuji Pawar
Aged about 50 years, Occ. Nil,
R/o Post Vyad, Tq. Risod, Dist. Washim
2. Collector, Washim
3. Adhyasi Adhikari, Sarpanch Election,
Gram Panchayat Vyad
4. Secretary, Gram Panchayat, Vyad,
Tq. Risod
5. Tahsildar, Tq. Risod, Dist. Washim
6. State of Maharashtra,
Thorough Ministry of
Rural Development
7. Divisional Commissioner,
Amravati Division, Amravati ... Respondents
Shri R. L. Khapre, Advocate for petitioner.
Shri R. M. Mardikar, Advocate for respondent No.1.
Ms M. S. Naik, Assistant Government Pleader for respondent Nos.2, 5 to 7.
CORAM : A. S. CHANDURKAR, J.
DATE : April 05, 2019.
Oral Judgment :
The question that arises for consideration in this writ petition is ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 2/12 whether a candidate after unsuccessfully contesting an election without raising any objection can thereafter challenge the said election on the ground that it was conducted by the Returning Officer who had no authority in law to conduct the meeting in which the said election was held.
2. Rule. Heard finally with consent of learned counsel for the parties.
The facts lie in a narrow compass. Elections were held to the post of Sarpanch of Gram Panchayat Vyad, Taluka Risod, District Washim. The Deputy Collector issued a notice on 31/07/2018 convening a meeting for electing the Sarpanch to the said Gram Panchayat on 09/08/2018 and deputed the Tahsildar to conduct the said meeting. The Tahsildar thereafter on 01/08/2018 directed the Circle Officer to preside over the meeting that was to be held on 09/08/2018. In the elections that were so held on 09/08/2018 the petitioner secured seven votes while the respondent No.1 secured four votes. The petitioner was accordingly declared elected to the post of Sarpanch. The respondent No.1 thereafter filed a dispute under Section 33(5) of the Maharashtra Village Panchayats Act, 1959 (for short, the said Act) challenging the election of the petitioner. According to the respondent No.1, the Circle Officer was not authorised to act as the Presiding Officer in the said meeting. Referring to the provisions of Section 33(2) of the said Act, it was the case of the respondent No.1 that the meeting could be ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 3/12 presided over only by an officer who the Collector may appoint in that behalf. The Collector having appointed the Tahsildar to preside over the said meeting, it was not permissible for the Tahsildar in turn to delegate those powers to the Circle Officer. On this count the conduct of the meeting itself was illegal and contrary to the statutory provisions. Other challenges raised were that the petitioner had three issues and was therefore disqualified under provisions of Section 14(1)(j-i) of the said Act.
Reply was filed on behalf of the petitioner opposing the aforesaid dispute. The Collector by the order dated 22/10/2018 recorded a finding that the Tahsildar was not empowered to delegate his authority to the Circle Officer to conduct the meeting and the same was in violation of the provisions of Section 33(2) of the said Act. On that count the election of the petitioner was held to be illegal and the same was accordingly set aside. The petitioner then filed an appeal before the Divisional Commissioner under provisions of Section 33(5) of the said Act. The Divisional Commissioner confirmed the order passed by the Collector and held the petitioner not entitled to hold the post of Sarpanch. Being aggrieved the said orders are challenged in the present writ petition.
3. Shri R.L. Khapre, learned counsel for the petitioner submitted that both the Authorities erred in accepting the challenge as sought to be raised by the respondent No.1 to the election of the petitioner as Sarpanch. He did ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 4/12 not dispute the position that under provisions of Section 33(2) of the said Act the meeting to elect the Sarpanch was required to be presided over by the officer as appointed by the Collector and in the present case such officer was the Tahsildar. Further sub-delegation by the Tahsildar in favour of the Circle Officer was not permissible. However, the respondent No.1 was estopped from raising this objection in view of the fact that the respondent No.1 had willingly participated in the election that was held on 09/08/2018 and only after losing the same he had chosen to challenge the petitioner's election on that count. Having acquiesced to the conduct of the special meeting by the Circle Officer and thereafter having taken a chance to be elected as Sarpanch, it was not open for the respondent No.1 to raise the aforesaid dispute after losing the elections. In that regard the learned counsel placed reliance on the decision in Padmini Singha vs. State of Assam and ors. (2018) 10 SCC 561 and submitted that the respondent No.1 had waived his rights in that regard. It was also his submission that the respondent No.1 did not point out any prejudice whatsoever that was caused by the conduct of meeting by the Circle Officer. In absence of any such prejudice being demonstrated, the respondent No.1 could not be heard in that regard. For said purpose learned counsel referred to the decision in Union of India vs. Alok Kumar AIR 2010 SC 2735. It was thus submitted that both the Authorities erred in permitting the respondent No.1 to challenge the election of the petitioner on the aforesaid ground. According ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 5/12 to him, the petitioner was entitled to function as a Sarpanch.
4. Shri R. M. Mardikar, learned counsel for the respondent No.1 opposed aforesaid submissions. According to him the provisions of Section 33(2) of the said Act were clear and the conduct of the meeting by the Circle Officer was without jurisdiction. When it was clear that holding of the meeting was not in accordance with law under the provisions of Section 33(2) of the said Act, the participation of respondent No.1 in the said proceedings was irrelevant. His participation in the special meeting and the elections as held would not have the effect of rectifying the statutory defect. Referring to the provisions of Section 182(4) of the said Act it was submitted that the delegation in question could only in favour of the Tahsildar and not any Authority below the rank of Tahsildar. Both the Authorities rightly found that the election of the petitioner was vitiated on that count. He referred to the decision in Sitaram Bansi Pawar vs. State of Maharashtra and ors. 1998 (2) Mh.L.J. 79 in that regard. He then submitted that notice of the special meeting was required to be given at least three clear days before the date of the meeting as required by the relevant Rules. The meeting in question was held prior to expiry of three clear days from the notice of the meeting. The provisions in that regard were mandatory and relying upon the decision in Murlidhar Bhaiyaji Kapgate and ors. vs. Krishna Jairamji Meshram and ors. 1991(2) Mh.L.J. 897 it was submitted ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 6/12 that the proceedings of the special meeting were also vitiated on this count. Further by virtue of the fact that the petitioner had three issues, one of them having been born after the cut-off date, the petitioner was disqualified also on that count. Reference was made to the decision in Dalpat s/o Totaram Kshirsagar vs. Additional Commissioner, Amravati and ors. 2017 (2) Mh.L.J. 2626 in that regard. It was submitted that in the light of these factors, there was no ground made out for interference.
5. In response to the aforesaid submissions the learned counsel for the petitioner submitted that only the ground of sub-delegation of authority by the Tahsildar was pressed into service in the dispute. The other grounds as regards short period of notice and the aspect of the petitioner having three issues was not canvassed before the Authorities. The learned counsel referred to the roznama of the proceedings in that regard.
6. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. Perusal of the impugned order indicates that the election of the petitioner has been set aside by the Collector only on the ground that there was breach of the provisions of Section 33(2) of the said Act as the meeting in which the election was conducted was presided over by the Circle Officer. Though reference has been made by referring to contentions in respect of other ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 7/12 challenges, the election has not been set aside on any other count except the breach of provisions of Section 33(2) of the said Act. Similar is the case with the order passed by the Divisional Commissioner. The present adjudication therefore will have to be confined only to the aspect of validity of the meeting being presided over by the Circle Officer in the light of the provisions of Section 33(2) of the said Act.
7. Under provisions of Section 33 of the said Act the procedure for electing a Sarpanch has been laid down. Section 33(2) of the said Act prescribes that such meeting has to be called by the Collector and an officer appointed by the Collector is required to preside over such meeting. There is no power conferred on the delegatee of the Collector to further sub- delegate that authority to any other officer for presiding over such meeting. In the present case the Additional Collector in exercise of powers under Section 33(2) of the said Act authorised the Tahsildar to hold the meeting for electing the Sarpanch. Thereafter on 01/08/2018 the Collector delegated those powers in favour of the Circle Officer and directed him to preside over said meeting. This sub-delegation by the Tahsildar in favour of the Circle Officer is without authority of law and beyond the scope of powers conferred by Section 33(2) of the said Act. To that extent the finding recorded by both the Authorities that the meeting held 09/08/2018 which was presided over by the Circle Officer was against the provisions of Section 33(2) of the said ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 8/12 Act is a correct finding.
8. The question to be considered is whether in the facts of the present case despite holding that the meeting was conducted in breach provisions of Section 33(2) of the said Act, the election of the petitioner is liable to be set aside. It is not in dispute that in the said meeting the petitioner as well as respondent No.1 were the two contestants for the post of Sarpanch. No objection was raised either by the petitioner or the respondent No.1 or any of the members of the Grampanchayat to the conduct of the meeting by the Circle Officer or his presiding over the same. In the election that was held the petitioner secured seven votes while the respondent No.1 secured four votes. The petitioner was then declared elected after which for the first time the respondent No.1 raised a dispute as to the competence of the Circle Officer to conduct the meeting.
9. The principle of approbate and reprobate is a well recognised principle in equity. A person is not permitted to take advantage of the situation so long as it suits his interest and thereafter turn around and make a grievance about the same at a subsequent stage when the consequence becomes unfavourable. The conduct of such person estops him from making a grievance in respect of the invalid action in respect of which no grievance was made earlier despite having an opportunity to raise such grievance. ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 9/12 Though it is true that the provisions of Section 33 (2) of the said Act are mandatory in nature, the conduct of the respondent No.1 herein indicates that he had elected to waive such mandatory requirement. In absence of any public interest being involved, waiver of such mandatory requirement is permissible. In Padmini Singha (supra) it has been held by the Honourable Supreme Court that though a mandatory provision of law requires strict compliance, in situations even if a provision is mandatory, there are exceptions when its non-compliance would not result in nullifying the act. In that case the Block Development Officer presided over a meeting for considering the non-confidence motion when in fact the meeting was required to be presided over by a Deputy Collector and/or a Gazetted Officer. The respondent therein after participating in the meeting and losing the no- confidence motion sought to assail the process. It was held that having participated in the said meeting the concerned respondent had waived the aforesaid mandatory requirement.
10. The minutes of the meeting held on 09/08/2018 indicate that respondent No.1 had participated in the said meeting without any demur. No objection was raised to the said meeting being presided over by the Circle Officer. Having participated in the said election and having lost the same it would not be permissible thereafter for the respondent No.1 to turn around and contend that the meeting was held in a manner contrary to the ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 10/12 provisions of Section 33(2) of the said Act. By his act of participating in the election without any protest, the respondent No.1 was precluded from raising any objection as to the manner in which the said meeting was held. This aspect of the matter has not been considered by both the Authorities.
11. Though the impugned order was also sought to be sustained by the respondent No.1 by urging that the period of notice was shorter than three clear days as required by the meeting Rules as well as the submission that the petitioner had more than three issues who were born after to the cut-off date, it can be seen that these aspects were not appropriately raised before the Authorities. The roznama of the proceedings indicates that it was only the aspect of sub-delegation on the part of the Tahsildar that was pressed into service by the respondent No.1. It is also to be noted that though the respondent No.1 had sought to contend that the petitioner had been disqualified in the earlier term as member of the Gram Panchayat by virtue of earlier orders, those orders have not been placed on record. The impugned orders therefore are not liable to be sustained on the ground that the petitioner was already disqualified from holding the post of Sarpanch as urged.
In so far as a shorter period of notice being issued to the members is concerned which objection is sought to be sustained by relying upon the judgment of the Division Bench in Murlidhar Kapgate and ors. (supra), ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 11/12 suffice it to state that the Full Bench in Tatyasaheb Ramchandra Kale (supra) has held that the provisions of Section 44(3) of the said Act when read with Rule 17 of the meeting Rules are directory in nature. The resolution of no-confidence in that case was passed with 2/3rd majority and it was held that by applying provisions of Section 44(3) of the said Act such resolution would not be vitiated on account of any infirmity in conducting the proceedings. It would also be profitable to refer to the decision in K. Narasinhiah vs. H. C. Singri Gowda and ors. AIR 1966 SC 330 where the Honourable Supreme Court has observed that the requirement of giving three days clear notice for holding of a special meeting would not be mandatory and it would be directory. There is also absence of any prejudice being indicated by the respondent No.1 being caused on account of a shorter notice period being given.
Be that as it may, this ground as regards shorter period of notice for holding the special meeting also does not appear to have been canvassed before the Authorities as there is no discussion in the impugned orders in that regard. It therefore would not be permissible to consider the same for the first time in the present proceedings. The impugned orders have been passed only on the aspect of sub-delegation of authority by the Tahsildar and once it is found that the Authorities were not justified in the facts of the present case in accepting that contention at the behest of respondent No.1, the other grounds now sought to be raised for justifying the impugned order ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 ::: 908-J-WP-2047-19 12/12 do not deserve consideration.
12. In view of aforesaid discussion it is found that both the Authorities erred in declaring the proceedings of the meeting held on 09/08/2018 to be illegal in which the petitioner was elected as Sarpanch. Consequently the order dated 22/10/2018 passed by the Collector as well as the order dated 10/02/2019 passed by the Divisional Commissioner upholding the said order is set aside. It is declared that proceedings held in the meeting dated 09/08/2018 wherein the petitioner was elected as Sarpanch are legal and valid. Accordingly by quashing the impugned orders, the writ petition is allowed. Rule is made absolute in aforesaid terms with no order as to costs.
(A. S. Chandurkar, J.) Asmita ::: Uploaded on - 16/04/2019 ::: Downloaded on - 05/04/2020 18:08:47 :::