Tulsabai W/O Maroti Shelke vs Additional Commissioner And Ors.
2003 Latest Caselaw 1235 Bom

JUDGMENT

S.A. Bobde, J.

1. Rule returnable forthwith. Heard by consent.

2. This petition is directed against the order of the Additional Commissioner, Amravati Division, Amravati dated 11th November, 2003 by which the Additional Commissioner has upheld the finding of the Additional Collector that the respondent had not completed 21 years at the time of nomination, but, nonetheless declined to exercise powers under Section 16 of the Bombay Village Panchayat Act.

3. Respondent No. 3 Sharda submitted her nomination for election to the post of Member, Gram Panchayat. It confirmed that she has not completed the age of 20 years. Since Section 13 of the Bombay Village Panchayat Act provides that only a person who is not less than 21 years of age is qualified to be elected for any ward of the village, the petitioner applied for having respondent No. 3 disqualified under Section 16 of the Bombay Village Panchayat Act. Section 16 reads as follows:

"(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
 

(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. 
 

(2) (If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under Sub-section (1) from continuing to be a member). Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appeal shall be final :

Provided that no order shall be passed under this sub-section by the Collector against any member without giving him a reasonable opportunity of being heard."

4. The question is whether the Collector is empowered under Section 16 to declare that the vacancy has occurred in a case where it is found that a person who is contesting election as a member for the Gram Panchayat has not completed the age of 21 years.

5. On a plain reading of Section 16, it is clear that sub-section 2 confers on the Collector a power to determine the question whether the vacancy has occurred under "this section" namely Section 16 itself. Sub-section 1(a) provides that if any member of a panchayat who is elected or appointed was subject to any of the disqualification mentioned in Section 14 at the time of his election or appointment, he shall be disabled from continuing to be a member and the Office shall become vacant. It is clear that the power of Collector to decide whether the vacancy has occurred is restricted to an inquiry as to whether the person who is elected was subject to any disqualification mentioned in Section 14 at the time of his election.

6. It is, therefore, necessary to consider the disqualification provided by Section 14. Section 14 reads as under:--

"(1) No person shall continue to be a member of a panchayat as such, who --

(a) (i) and (ii)...................

(a-1) has been disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the Maharashtran State :

Provided that, no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years."

7. It is, therefore, clear that Section 16 empowers the Collector to determine whether the vacancy has arisen upon disqualification of a person under Section 14 of the Act i.e. to say, inter alia, on the ground that the person has been disqualified under any law for the time being in force "for the purposes of election to the legislature of the Maharashtra State". In the present case, admittedly, there is no order of any Authority disqualifying respondent No. 3 by or under any law for the time being in force for the purpose of election to the Legislature of the Maharashtra State which, in my view, is the purport of the phrase 'has been disqualified'. Merely because the person is found to be less than the age prescribed by the Gram Panchayat, it does not attract the disqualification under Section 14. Hence, it must follow that the Collector had no power to declare vacancy under Section 16. In the circumstances, I find no error of law apparent on the face of the order upholding the order of the Additional Collector declining to exercise powers under Section 16 of the Act on the ground that third respondent has not attained age of 21 years. Hence, the petition is liable to be dismissed and is accordingly dismissed. This shall, however, not come in the way of the petitioner resorting to appropriate proceedings in accordance with law.