Sau. Soni W/O. Gajanan Kurkute Nee ... vs Election Officer, Gram ...
2016 Latest Caselaw 3044 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                             
                              NAGPUR BENCH, NAGPUR.


     WRIT PETITION NO.1788 OF 2016




                                                            
     Sau. Soni w/o Gajanan Kurkute,
     nee Ku. Soni d/o Ramrao Pote,
     Aged about 29 years, 




                                               
     Occupation - Household, 
     R/o Taroda, Tahsil - Umarkhed, 
                             
     District - Yavatmal.                                             ....       PETITIONER
                            
                        VERSUS


     1) Election Officer,
      

         Gram-Panchayat, Taroda, Tahsil -
         Umarkhed, District - Yavatmal.
   



     2) Sau. Nanda w/o Ganesh Khandale,
         Aged about 45 years, 
         Occupation - Household, 





         R/o Taroda, Tahsil - Umarkhed, 
         District - Yavatmal.                                         ....       RESPONDENTS


     ______________________________________________________________





               Shri Shantanu Khedkar, Advocate for the petitioner,
               Shri H.R. Dhumale, A.G.P. for the respondent No.1,
              Shri K.S. Narwade, Advocate for the respondent No.2.
      ______________________________________________________________


                                   CORAM : Z.A. HAQ, J.

DATED : 21 JUNE, 2016 st

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ORAL JUDGMENT :

1. Heard Shri Shantanu Khedkar, Advocate for the petitioner,

Shri H.R. Dhumale, Assistant Government Pleader for the respondent

No.1 and Shri K.S. Narwade, Advocate for the respondent No.2.

2. Rule. Rule made returnable forthwith.

3. The respondent No.2 has filed petition under Section 15 of

the Maharashtra Village Panchayats Act challenging the election of the

present petitioner on the ground that she was not eligible to contest

the election as on the date of election she was below twenty-one years.

In the election petition, the present petitioner filed an application

praying that the issue present about jurisdiction of the Court, to

entertain the petition on the ground raised in the petition, be framed

and tried as preliminary issue. The Court considered the submissions

of the parties and passed an order dated 08-01-2016 directing the

framing of preliminary issue. By the impugned order, the Court has

concluded that it has jurisdiction to entertain and try the election

petition on the ground raised by the respondent No.2 in the election

petition. The petitioner being aggrieved by this order, has filed this

petition.

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4. The learned Advocate for the petitioner has submitted that

the election of petitioner cannot be challenged on the ground that she

was not having eligibility to contest the election as she had not

completed 21 years of age, in election petition and the Court where the

election petition is filed cannot entertain and decide the election

petition on the basis of such challenge. To support the submissions,

the learned Advocate for the petitioner has relied on the following

judgments :

(i) The judgment given by this Court in the case of Jagannath Pundlik and others vs. Sukhdeo Onkar

Wankhade and others reported in 1967 Mh.L.J. 126.

(ii) The judgment given by this Court in the case of Dhondba and another vs. Civil Judge, Junior Division, Hinganghat and others reported in 1966 Mh.L.J. 869.

(iii) The judgment given by this Court in the case of Manik Mallappa Karale vs. Kisan Nagurao Patil and others reported in 1976 Mh.L.J. 621.

(iv) The judgment given by this Court in the case of Shrikrishna Wasudeo Dhage vs. Shivcharan s/o Trimbakrao Kalne and others reported in 2010(3) Mh.L.J. 281.

(v) The judgment given by this Court in the case of Dnyaneshwar M. Satav vs. Jalindhar Dgondiba Kharabi and others reported in 2014(1) ALL MR 631.

(vi) The judgment given by this Court in the case of

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Dnyaneshwar Patiram @ Ratiraj Shirbhiye vs.

Divisional Commissioner, Nagpur and others reported in 2012(3) Mh.L.J. 253.

(vii) The judgment given by this Court in the case of

Hanumant P. Pawar vs. State of Maharashtra and others reported in 2012(3) Mh.L.J. 697.

It is prayed that the impugned order be set aside, the

objection raised on behalf of the petitioner be upheld and the election

petition pending before the learned Civil Judge be dismissed by

answering the preliminary issue in favour of the petitioner.

5. The learned Advocate for the respondent No.2 has

supported the impugned order and has argued that the point raised by

the petitioner could not have been dealt with as preliminary issue.

On merits, Shri K.S. Narwade, Advocate for the

respondent No.2 has submitted that the electoral roll showed the age

of petitioner as 19 years. It is submitted that as per Section 12 of the

Maharashtra Village Panchayats Act, the electoral roll of the

Maharashtra Legislative Assembly prepared under the provisions of the

Representation of the People Act, 1950 is used for the purposes of

elections of Gram-Panchayat. The learned Advocate has pointed out

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that as per Section 19(a) of the Representation of the People Act,

1950, every person who is not less than 18 years of age on the

qualifying date is entitled to be registered in the electoral roll of the

constituency and therefore, the name of the petitioner is enrolled as

voter in the list of voters. It is submitted that as per Section 13(1) of

the Maharashtra Village Panchayats Act, 1950, a person who is not less

than 21 years of age on the last date fixed for making nomination is

qualified to be a candidate at the election. It is submitted that in the

judgment given in the case of Jagannath Pundlik and others the list

of voters showed the age of candidate whose election was challenged,

as 21 years and in these facts this Court recorded that the entry in the

list of voters is conclusive and it will not be open for the Court while

considering election petition to examine the legality of the entry.

Shri K.S. Narwade, Advocate has submitted that the judgment given by

the Division Bench of this Court in the case of Jagannath Pundlik and

others, in fact supports the contention of the respondent No.2

inasmuch as the list of voters shows the age of the petitioner as 19

years and the petitioner will not be able to contend otherwise. It is

prayed that the impugned order be maintained and the petition be

dismissed.

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6. Section 12(1) of the Maharashtra Village Panchayats Act

provides that the State Election Commissioner may by order notify that

for such part of the constituency of the Assembly as is included in a

ward or in a village, the electoral roll of the Maharashtra Legislative

Assembly prepared under the provisions of the Representation of the

People Act, 1950 and in force on the day on which such notification is

issued, shall be treated as the list of voters for such ward or village.

Section 19(a) of the Representation of the People Act,

1950 lays down that every person who is not less than 18 years of age

on the qualifying date is entitled to be registered in the electoral roll of

the constituency where he ordinarily resides.

In view of the above, it is clear that a person is entitled to

be enrolled in the electoral roll if he has completed 18 years of age and

is not otherwise disqualified under the provisions of the Act.

7. However, a person is entitled to be elected as member of

the Gram-Panchayat if he is not less than 21 years of age on the last

date fixed for making nomination, as laid down in Section 13(1) of the

Maharashtra Village Panchayats Act. As per Section 13(3) of the

Maharashtra Village Panchayats Act, the entries in the list of voters is

conclusive. The Court considering the election petition will not be able

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to examine the legality of the entries made under Section 13(3) of the

Maharashtra Village Panchayats Act and this is the ratio decidendi of

the judgment given in the case of Jagannath Pundlik and others. It

cannot be said that the Court dealing with the election petition under

Section 15 of the Maharashtra Village Panchayats Act cannot examine

the eligibility of the candidate to contest the election if the eligibility of

the candidate is challenged relying on the entries made under Section

13(3) of the Maharashtra Village Panchayats Act.

8. It is well settled that everything stated in the judgment

does not constitute precedent and only thing which binds the party is

the principle upon which the case is decided and for this the decision

has to be analysed and ratio decidendi has to be isolated. In the

judgment given by the Hon'ble Supreme Court in the case of Dalbir

Singh and others vs. State of Punjab reported in (1979) 3 SCC 745,

Shri A.P. Sen, J., while expressing his dissenting view laid down the

following proposition in paragraph No.22 of the judgment :

"22. With greatest respect, the majority decision in Rajendra Prasad case (supra) does not lay down any legal principle of general applicability. A decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent,

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much less 'law declared' within the meaning of Article 141 of

the Constitution so as to bind all courts within the territory of India. According to the well-settled theory of precedents every decision contains three basic ingredients :

(i) findings of material facts, direct and inferential.

An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts ;

(ii) statements of the principles of law applicable to the

legal problems disclosed by the facts ; and

(iii)judgment based on the combined effect of (i) and

(ii)above.

For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it

determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio

decidendi. It is not everything said by a judge when giving

judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. In

the leading case of Qualcast (Wolverhampton) Ltd. vs. Havnes, it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents.

The judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the judge is not bound to draw the same inference as drawn in the earlier case."

The above proposition is accepted by the Hon'ble Supreme

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Court in the judgment given in the case of State of Orrissa and others

vs. MD. Illiyas reported in 2006(1) SCC 275. In paragraph No.12 of

this judgment, it is laid down as under :

"12. ............... A decision is a precedent on its own facts. Each case presents its own features. It is not everything

said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a

party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled

theory of precedents, every decision contains three basic Postulates : (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts ;

(ii) statements of the principles of law applicable to the legal

problems disclosed by the facts ; and (iii) judgment based on the combined effect of above. A decision is an authority for

what it actually decides. What is of the essence in a decision its ratio and not every observation found therein nor what logically flows from the various observations made in the

judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See. State of Orissa v. Sudhansu Sekhar Misra and Union of India vs. Dhanwanti Devi). A case is a precedent and binding for what it explicitly decides

and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."

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In view of the propositions laid down in the judgments

given in the cases of Dalbir Singh and others and State of Orrissa

and others, it is clear that only the ratio which deduces from the above

judgments is binding and the ratio which culls out from the judgment

given in the case of Jagannath Pundlik and others, is not that the

Court dealing with an election petition under Section 15 of the

Maharashtra Village Panchayats Act cannot decide about the eligibility

of the candidate to contest the election if the challenge is based on the

ground that the candidate was below the qualifying age at the time of

submission of nomination paper. The ratio of the judgment is that the

Court cannot decide the issue of legality of the entries recorded in the

list of voters.

9. In the present case, the trial Court is not required to

examine the legality of the entries made under Section 13(3) of the

Maharashtra Village Panchayats Act but the petitioner is relying on

those entries in support of her challenge. Thus the proposition laid

down in the judgment given in the case of Jagannath Pundlik and

others does not support the petitioner, but supports the respondents.

In view of my conclusions, the other judgments relied

upon on behalf of the petitioner are not required to be considered.

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10. In view of the above, I do not find any patent illegality in

the impugned order. It cannot be said that the subordinate Court has

committed any error of jurisdiction. The impugned order does not

require any interference by this Court. The petition is dismissed. In

the circumstances, the parties to bear their own costs.

As the election petition is pending for more than a year,

the trial Court is directed to dispose the election petition till

30-08-2016, if necessary by taking up the hearing on day to day basis.

JUDGE

adgokar