Bombay High Court
Jagannath Laxmanrao Sherki vs The Divisional Commissioner on 16 January, 2009
Equivalent citations: AIR 2009 (NOC) 1248 (BOM.) (NAGPUR BENCH), 2009 (2) AIR BOM R 421
Author: J. H. Bhatia
Bench: J. H. Bhatia
wp2016.2008.sxw 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2016 OF 2008
Jagannath Laxmanrao Sherki
aged about 35 yrs., ,
r/o Hanuman Nagar, Tukum ,
Chandrapur, Distt. Chandrapur. :: PETITIONER
-: Versus :-
1. The Divisional Commissioner,
Nagpur Division, Nagpur.
2. The Zilla Parishad, Chandrapur
through its Chief Executive Officer
3. Santoshsingh Chandansingh Rawat,
aged about 45 yrs., r/o Tadala road,
Anand Nagar, Mul,
Chandrapur. :: RESPONDENTS
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Mr. P. C. Madkholkar, Advocate for the petitioner.
Mr. A. D. Sonak, A. G. P. for respondent No. 1.
Mr. K. H. Deshpande, Senior Advocate and Mr. A. S. Kilor, Advocate for
respondent No. 3.
Smt. I. L. Bodade & Ms Gaikee, Advocates for respondent No. 2.
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CORAM: J. H. BHATIA, J.
DATED: 16TH JANUARY, 2009.
JUDGMENT
1. Rule. Rule made returnable forthwith. With consent of parties, the petition is taken up immediately for final hearing.
::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 2/112. Heard the learned Counsel for the parties. On 20/02/2007 election for Zilla Parishad, Chandrapur as well as panchayat samittees under Zilla Parishad, Chandrapur were declared.
Respondent No. 3 submitted nomination papers and contested the election. On 12/3/2007 he was declared elected as Councilor for the Zilla Parishad and on 21/3/2007 he was elected as President of the Zilla Parishad. The petitioner before this Court, moved an application before the Commissioner, Nagpur under Section 16(1)(i) of the Maharashtra Zilla Parishads and panchayat Samitis Act contending that respondent No. 3 had entered into contract with the Zilla Parishad and had carried out certain works under that contract. On the day when he had submitted nomination papers, when he was declared elected to the post of Councilor as well as on the day when he was declared elected to the office of President, Zilla Parishad, certain amounts were due from Zilla Parishad to him towards the work done by respondent No. 3 under that contract.
After assuming the charge of the President, he had received the amounts from the Zilla Parishad. The petitioner contended that as per the provisions of Section 16(1)(i) respondent No. 3 was disqualified for being chosen as Councilor or as President of the ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 3/11 Zilla Parishad. With these pleadings, he prayed as follows:
Prayer :
"(1) Hold and declare that the non-applicant no. 2's election (13/03/2007) on the post of as Councilor from Chichala-Kelzar Constituency from the Congress-I Party was contrary to the provision of the Act 1961 and therefore null and void.
(2) Further hold and declare that declaring the non applicant no. 2 as elected on 21/03/2007 on the post of President, Zilla Parishad, Chandrapur is illegal in view of Section 16 of the Act of 1961.
(3) Grant any other relief which this Hon'ble Court deems fit."
3. After hearing the parties, the Commissioner rejected that application holding that work of the contract was already completed and only because the payment was delayed for want of funds by the Zilla Parishad, and such payment of the contract made by the Zilla Parishad to respondent No. 3, after his election, cannot be a ground for disqualification under Section 16(1)(i) of the Act. The petitioner has challenged that order in this petition. In this petition ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 4/11 also he has made several prayers. Prayer clause (c) is relevant and reads as follows:
"(c) Declare that the election of Respondents no. 3 to the post of Councilor as well as President of the Respondents no. 2, Zilla Parishad is illegal;.."
4. From the prayers made by the petitioner before the Commissioner as well as in this petition, it is clear that the petitioner wanted the election of respondent No.3 to the post of Councilor as well as President of the Zilla Parishad to be declared illegal and to be set aside. The learned Counsel for respondent No. 3 contended that in view of the provisions of Article 243-O (b) of the Constitution of India, no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. Part IX of the Constitution of India includes Zilla Parishads and, therefore, any election to the post of Councillor or to the post of President of Zilla Parishads can be challenged only by election petition as provided under the provisions of law made by the concerned legislature. The learned Senior Counsel for respondent No. 3 rightly pointed out that ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 5/11 election petition challenging election including the nomination of the person can be filed under Section 27 of the Mah. Z.P. & P. S. Act and that petition lies before the District Judge. The procedure is laid down in Section 27 of the Act as to how the election petition be filed, heard and disposed of. The Commissioner is not a District Judge and he cannot hear the election petition. Admittedly, the petitioner had notig filed any election petition before the Commissioner under Section 27 nor the election petition could be filed before the Commissioner.
5. Section 16 (1) (i) reads as follows:
"(1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor-
(i) if he has directly or indirectly by himself or by his partner any share or interest in any work done by order of the Zilla Parishad or in any contract with, by or on behalf of the Zilla Parishad;...."
If such person directly or indirectly has share or interest in any contract with the Zilla Parishad he will be disqualified for being chosen as, and for being, a Councillor. It indicates that this will be ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 6/11 a disqualification for his election and it will also be a disqualification for his continuation as Councillor. His disqualification for being elected can be raised in the election petition and his election can be challenged by filing petition under Section 27 of the Act, 1961.
6. Section 40 (1) reads as follows.
40. Disqualification of Councillors during term of office :-
(1) Subject to the provisions of sub section (2) of section 62, if any Councillor during the term of his office -
(a) becomes disqualified under sub-section (1) of (4) of section 16, or
(b) is, for a period of six consecutive months excluding in the case of the presiding authority the period of leave duly sanctioned without the permission of the Zilla Parishad, absent from meetings thereof or is absent from such meeting for a period of twelve consecutive months.
the office of such Councillor, shall, notwithstanding anything contained in clause (c) of sub-section (1) of section become vacant.
::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 7/11(2) If any question whether a vacancy has occurred under this section is raised either by the Commissioner suo motu or on an application made to him by any person in that behalf, the Commissioner shall decide the question as far as possible within ninety days from the date of receipt of such application; and his decision thereon shall be final. Until the Commissioner decides that the vacancy has occurred, the Councillor shall not be disabled from continuing to be a Councillor:
Provided that, no decision shall be given against any Councillor without giving him a reasonable opportunity of being heard."
From the opening sentence of sub Section (1), it is clear that if any Councilor during the term of his office becomes disqualified, he may be so declared and his post may be declared vacant by the Commissioner. The words; "during the term of his office" are important. The term, "during the term of office", means, from the moment he resumes the charge of that post and not before.
It means the Commissioner can declare him disqualified if he has incurred such disqualification during the term of the office i.e. from ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 8/11 the moment he has entered into the office or received the charge of the office. The Commissioner does not have power to declare his election illegal or invalid nor he can quash the election. That can be done only under Section 27.
7. In view of the facts and legal position, it appears that the application made before the Commissioner seeking to set aside the election of respondent No. 3 was not tenable.
ig If the petitioner wanted to get the election set aside, he could have filed election petition under Section 27 and if he wanted the Commissioner to take action under Section 40, he could have made prayer for declaration that respondent No. 3 had incurred disqualification for being a Councilor during the term of his office. In view of these circumstances, in my considered opinion, application under Section 16(1)(i) of the Act filed before the Commissioner and also the instant writ petition are not tenable and on this ground itself the application and this petition could be rejected.
8. The learned Counsel for the petitioner contends that the facts brought to the notice of the Commissioner in the application clearly indicate that the action could be taken under Section 40 also because respondent No. 3 had incurred disqualification after ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 9/11 assuming the post of Councilor as well as the President, on account of his interest in the contract with the Zilla Parishad, receipt of money by him in connection with that contract. Learned Counsel for the petitioner contends that suo motu action could be taken by the Commissioner under Section 40 in view of the facts and circumstances of the case. It is true that under Section 40 action can be taken by the Commissioner suo motu or on application. It appears that the Commissioner did not take such action suo motu and even though in the application filed by the petitioner before the Commissioner, the facts were stated, the prayer was in the form of election petition, which could not be entertained.
9. The learned Counsel for the petitioner relied upon several authorities in support of his contention that even if the work under contract is completed and the payment alone remains to be unpaid, still it cannot be said that the contract has come to an end. In support of this, he relied upon Chatturbhuj Vithaldas Jesani vs. Moreshwar Parashram & others - AIR 1954 SC 236; Dattatraya Narhar Pitale Vs. Vibhakar Dinkar Gokhale & another - 1975 Mh. L. J. 701; Dinkar Ananda Deore vs. Shantaram Punjaji & others 1981 Mh. L. J. 673 and Indumati Laxman Bhakare Vs. State of ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 10/11 Maharashtra 2004 (4) All MR 89. All these authorities supports the contention of the petitioner in respect of the interest by way of contract even if the work is completed, whether payment is yet to be made by the Municipal Council or Zilla Parishad or by the concerned Government or Government body.
10. In view of the objection taken by the learned Counsel for respondent No. 3 to the tenability of the application in the form in which it was made before the Commissioner as well as in view of the prayers made in this writ petition, I am of the view that the said application as well as the writ petition are not tenable.
11. After some discussion at the bar, the learned Counsel for the petitioner seeks leave to move fresh application before the Commissioner under Section 40 read with Section 16(1)(i) of the Act in view of the fact that the interest of respondent No. 3 in the contract with Zilla Parishad was subsisting when he took over the charge as President and after taking over charge as President he had received certain amount. In my considered opinion, it will be in the interest of justice to grant such a leave to the petitioner.
12. For the aforesaid reasons, the writ petition stands dismissed with liberty to the petitioner to move fresh application before the ::: Downloaded on - 09/06/2013 14:15:20 ::: wp2016.2008.sxw 11/11 Commissioner under Section 40 read with Section 16(1)(i) of the Mah. Zilla Parishads & Panchayat Samitis Act, 1961. The petitioner is at liberty to move such application before the Commissioner within one week from today and if such application is made, the Commissioner shall expedite hearing of that application and dispose it off on its own merits and as per law as early as possible and in any case before the expiry of NINETY DAYS.
13. All the objections/contentions of the parties are left open and may be taken before the Commissioner. Parties concerned shall act on the authenticated copy of this order.
JUDGE WWL ::: Downloaded on - 09/06/2013 14:15:20 :::