Bombay High Court
Alka Keshav Tayade @ vs Kailash Pandurang Pawar on 26 March, 2014
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
WP/8762/2013
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8762 OF 2013
Alka Keshav Tayade @
Alka Namdeo Shirsat,
Age 56 years, Occ. Sarpanch,
R/o Plot No.6,7 Satara Parisar,
Peshave Nagar, Beed Byepass,
Aurangabad. ..Petitioner
Versus
1. Kailash Pandurang Pawar
Age major, Occ. Business,
R/o Shivaji Nagar, Cidco,
11th Scheme, Garkheda,
Aurangabad.
2. Rajendra Laximan Narwade
Age major, occ. agriculture,
r/o Satara Khandoba,
Satara Parisar, Beed Byepass Road,
Aurangabad.
3. Sow. Shakuntala Ramrao Sable,
Age major, occ. household,
R/o Satara Khandoba,
Satara Parisar, Beed Byepass Road,
Aurangabad.
4. Kishor Ramrao Sable,
Age major, Occ. agriculture,
R/o Satara Khandoba,
Satara Parisar, Beed Byepass Road,
Aurangabad.
5. The Collector, Aurangabad.
6. The Additional Commissioner,
Aurangabad. ..Respondents
...
Advocate for Petitioner : Shri P.V.Mandlik, Sr. Advocate
i/b Shri Anandsing Bayas
Advocate for Respondents1, 3 & 4 : Shri V.D.Salunke
h/f Shri S.S.Shete
Advocate for Respondent 2: Shri G.V.Sukale
::: Downloaded on - 29/03/2014 19:00:51 :::
WP/8762/2013
2
AGP for Respondents 5 & 6 : Shri D.R.Kale
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: March 26, 2014
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.
4. Being aggrieved by the impugned order dated 9.10.2013 passed by the learned Additional Commissioner, Aurangabad, thereby cancelling the election of the petitioner to the post of Sarpanch of Gram Panchayat, Satara, Taluka and District Aurangabad, the petitioner has preferred this Writ Petition.
5. The submissions of Shri Mandlik, learned Sr. Advocate appearing for the petitioner can be summarized as follows:-
(a) The petitioner belongs to Scheduled Caste category.
(b) As regards the election as a Member to Satara Gram Panchayat, the petitioner submitted her nomination paper on 4.10.2012 from the open category.::: Downloaded on - 29/03/2014 19:00:51 :::
WP/8762/2013 3
(c) Since the election as Member was contested from open category, the petitioner was not required to comply with Section 10 (1A) of the Bombay Village Panchayat Act, 1958 ("Act of 1958").
(d) The petitioner submitted her caste certificate for the scrutiny and validation of the competent scrutiny committee on 5.10.2012.
(e) Page 40 is the acknowledgment receipt dated 5.10.2012 of having submitted the caste certificate for validation.
(f) Elections to the post of Sarpanch of Satara Gram Panchayat were held on 19.11.2012.
(g) The post of Sarpanch was reserved for Scheduled Caste category.
(h) The petitioner was elected as the Sarpanch from the Scheduled Caste category by defeating respondent No.3.
(i) Respondents 1 to 4 filed a complaint against the petitioner on 14.4.2013 before the learned Additional Collector, Aurangabad under Section 30(1A) of the Act of 1958.
(j) Grievance was that the petitioner, neither has produced the acknowledgment receipt from the caste scrutiny committee of having applied for validation nor has submitted the caste validity along with her nomination paper for the post of Sarpanch.
(k) By order dated 7.8.2013, the learned Additional Collector, Aurangabad rejected the complaint filed by the said respondents, concluding therein that the complainants have produced evidence that ::: Downloaded on - 29/03/2014 19:00:51 ::: WP/8762/2013 4 the caste certificate purportedly issued to the petitioner was not in fact issued by the concerned competent authority. However, it is concluded that the caste certificate of the petitioner is pending validation with the competent scrutiny committee.
(l) The respondents challenged the said order before the learned Additional Commissioner.
(m) By its judgment dated 9.8.2013, the learned Additional Commissioner arrived at a conclusion that the record before it does not indicate that the petitioner had made any application to the caste scrutiny committee for the validation of her caste.
(n) The learned Additional Commissioner has then concluded that since the caste validity certificate was not produced by the petitioner and in view of there being no evidence that an application for validation was pending, the order of the learned Additional Collector was set aside and the election of the petitioner to the post of Sarpanch was quashed.
5. Contention of the petitioner is that in view of Section 10(1A) of the Act of 1958 having been held to be directory in nature, in light of the reported judgment of the learned Division Bench of this Court in the case of Dadasaheb Arjun Gulve Vs. State of Maharashtra [2008(2) Bom.C.R.712] and in light of the subsequent orders of this Court in the cases of (i) Jagdish Laxman Dhonde Vs. State of Maharashtra and others - Writ Petition No.1176 of 2013, (ii) Sachin Hiraman Gangawane Vs. State of Maharashtra and others - Writ Petition No.1381 of 2013 and (iii) Alka Rajkaran Kshirsagar Vs. Sow. Shalini Mahadeo Lokhande - Writ Petition No.3963 of 2013, provisions under Section ::: Downloaded on - 29/03/2014 19:00:51 ::: WP/8762/2013 5 30(1A) of the Act of 1958 are also required to be held to be directory in nature and not mandatory.
6. He however, concedes that the learned Additional Commissioner, in the impugned judgment, has not dealt with this issue, as to whether Section 30(1A) is pari materia identical to Section 10(1A) and as to whether it can also be held to be directory in nature as has been the consistent view of this Court to the extent of Section 10(1A) of the Act of 1958. He states that the impugned judgment is purely based on assumptions. This can be seen in the observations of the learned Additional Commissioner in the operative part of the order at page 129 of the petition paper book.
7. He, therefore, reiterates that the entire impugned judgment is based on the unsustainable presumption and assumption that the petitioner's caste certificate had not been submitted to the competent scrutiny committee for seeking a validity certificate. He, therefore, submits that the conclusion of the learned Additional Commissioner is on the premises that there was no acknowledgment on record as regards the submission of the caste claim and therefore, the basic ingredient of Section 30(1A) akin to Section 10(1A) has not been complied with. He has reiterated that page 40 of the petition paper book is that acknowledgment receipt of the pendency of her claim and which was placed before the learned Additional Collector. He, therefore, prays that the impugned order is unsustainable in law and deserves to be quashed and set aside.
::: Downloaded on - 29/03/2014 19:00:51 :::WP/8762/2013 6
8. Shri Salunke, learned Advocate appearing on behalf of respondents 1 to 4 vehemently submits that the acknowledgment receipt of the pendency of the caste claim was not before the learned Additional Collector. When the learned Additional Commissioner considered the record before him, the acknowledgment receipt was not noticed. He, therefore, submits that when the learned Additional Commissioner realised that the basic ingredient of Section 30(1A) was not complied with, there was no question of the petitioner submitting a caste validity certificate within four months from the date of election as Sarpanch of the Satara village.
9. He, however, is in agreement with the petitioner that neither was the issue as to whether Section 30(1A) is mandatory or directory was raised by any of the parties nor was the learned Additional Commissioner required to deal with the same. He, therefore, states that the impugned order of the learned Additional Commissioner is on the basis of the available record before him, that there was no acknowledgment receipt of pendency of the caste claim produced by the petitioner and therefore, the learned Additional Commissioner has based his findings on the fact that there was no acknowledgment receipt before the said authority.
10. Shri Salunke, learned Advocate has further, submitted that the caste certificate in the custody of the petitioner is not issued by the competent authority. He has drawn my attention to the letter dated 13.3.2013 (page 148 ::: Downloaded on - 29/03/2014 19:00:51 ::: WP/8762/2013 7 of the petition paper book), whereby the Information Officer of Akola Tahsil, District Akola has informed one of the respondents Kailas Pawar that the caste certificate in the custody of the petitioner has not been issued by the said Tahsil Office.
11. He has, therefore, canvassed that when the caste certificate itself was not issued by the competent authority, the question of submitting it for validation and obtaining an acknowledgment receipt is ruled out. He, therefore, submits that the conclusions drawn by the learned Additional Commissioner, Aurangabad, in the impugned judgment, are legal, sustainable and there is no perversity pointed out by the petitioner.
12. Shri Salunke, learned Advocate further submits that the copy of the acknowledgment shown by the petitioner to be on record is a photostat copy.
The law requires that an original should be produced, so as to assess the probative value of the document. It is neither original nor has it even been attested as a true copy.
13. In reply submissions, Shri Mandlik, learned Sr. Advocate has stated that the objection of the respondents based on the document issued by the Tahsil Office, Akola have been rendered ill-conceived in view of the fact that these respondents have contested the caste validity claim of the petitioner before the competent authority. All objections raised by them, including the origin of the caste certificate, were duly considered by the scrutiny committee. The ::: Downloaded on - 29/03/2014 19:00:51 ::: WP/8762/2013 8 said objections have been negated and the petitioner has now been issued the caste validity certificate. He, therefore, submits that the arguments of the respondents, based on the document at page No.128 deserves no consideration.
14. The issue before this Court, therefore, is as to whether the pendency of the caste claim evidenced by the acknowledgment receipt was before the learned Additional Commissioner or not? I, therefore, called upon the learned AGP to submit on the basis of the record. He has placed before me the record and proceedings pertaining to the dispute. He points out that page 47 of the said R & P is an acknowledgment receipt dated 5.10.2012, evidencing that the petitioner's claim for seeking validation of her caste was pending before the competent committee on 5.10.2012. The learned AGP, therefore, states that this document was before the learned Additional Commissioner who decided the complaints of the respondents. He further submitted that this R & P was then transmitted to the learned Additional Commissioner while dealing with the appeal of the respondents.
15. I, therefore, find from the record as well as the submissions of the learned AGP that the concerned acknowledgment receipt was before the learned Additional Commissioner, Aurangabad when he dealt with the appeal of the respondents. It appears that the learned Additional Commissioner failed to notice the said document.
::: Downloaded on - 29/03/2014 19:00:51 :::WP/8762/2013 9
16. Nevertheless, in light of the record before the Court, the acknowledgment receipt of the pending claim of the petitioner was, therefore, part of the record. In these circumstances, I am convinced that the learned Additional Commissioner, while dealing with the appeal has lost sight of the said acknowledgment receipt and as a consequence of which, its conclusions in the impugned order are rendered unjustified and unsustainable.
17. The aspect as to whether Section 30(1A) would have a mandatory effect in contradiction to the consistent view taken by this Court that Section 10(1A) is directory in nature, has not been addressed to this Court.
Moreover, so far the facts of this case are concerned, the said issue is now rendered purely academic, in view of the fact that the petitioner has subsequently been issued with the caste validity certificate. In this view of the matter, I do not intend to deal with the aspect of Section 30(1A) whether being directory or mandatory in nature, since it remained only for an academic purpose. I, therefore, leave open the said issue to be dealt with in an appropriate matter when the situation may so arise.
18. While dealing with the objection of Shri Salunke, learned Advocate that the photostat copy was produced before the learned Additional Commissioner, it is not evident from the record that any of the respondents objected to the probative value of the said document before the learned Additional Commissioner. Nevertheless, the said copy need not be doubted ::: Downloaded on - 29/03/2014 19:00:51 ::: WP/8762/2013 10 now in the light of the fact that the claim of the petitioner was indeed pending and has been subsequently validated and that there is no contradiction as regards the said document on record.
19. In the light of the above, the Writ Petition succeeds. The impugned judgment of the Additional Commissioner dated 9.10.2013, thereby setting aside the election of the petitioner as Sarpanch, is quashed and set aside.
Rule is made absolute accordingly. No order as to costs.
ig ( RAVINDRA V. GHUGE, J. )
...
akl
::: Downloaded on - 29/03/2014 19:00:51 :::