Bombay High Court
Shri Shrikrishna Wasudeo Dhage vs Shivcharan S/O Trimbakrao Kalne on 15 February, 2010
Author: B.P. Dharmadhikari
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
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.
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...........
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.
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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.
::: Downloaded on - 09/06/2013 15:36:49 ::: 42. 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, ::: Downloaded on - 09/06/2013 15:36:49 ::: 5 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 6 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].
::: Downloaded on - 09/06/2013 15:36:49 ::: 76. 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 8 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 9 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 10 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 11 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 12 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 13 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.
::: Downloaded on - 09/06/2013 15:36:49 ::: 14The 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 15 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 16 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 17 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 ::: Downloaded on - 09/06/2013 15:36:49 ::: 18 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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