Bombay High Court
Vishwas Laxman Bhagat vs Devendra Gana Bhagat And Ors on 6 May, 2016
Bench: S.C. Dharmadhikari
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO.162 OF 2012
IN
WRIT PETITION NO.5606 OF 2012
Vishwas Laxman Bhagat, ]
Age 40 years, Occupation : Business, ]
Residing at Usurli-Khurd, ] .... Appellant /
Taluka Panvel, District Raigad. ] [ Org. Petitioner ]
Versus
1. Devendra Gana Bhagat ]
Adult, Occupation : Business ]
ig ]
2. Ramchandra Gana Bhagat ]
Adult, Occupation : Business ]
]
3. Vijay Waman Bhagat ]
Adult, Occupation : Business ]
]
4. Ramesh Namdeo Bhagat ]
Adult, Occupation : Business ]
]
Respondent Nos.1 to 4 are residing ]
at Usurli Khurd, Post ONGC, ]
Taluka Panvel, District Raigad. ]
]
5. Gram Sevak, Group Gram Panchayat, ]
Usurli Khurd, Post ONGC, ]
Taluka Panvel, District Raigad. ]
]
6. Medical Officer, Primary Health Centre, ]
At Ajivali, Post & Taluka Panvel. ]
]
7. Project Officer, ICD Panchayat Samiti, ]
At & Post Usurli Khurd, Panvel, ]
District Raigad. ]
]
8. Mini Anganwadi Sevika, ]
At Usurli Khurd, Gharkool, ]
Post & Taluka Panvel, Dist. Raigad. ]
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9. The District Collector, ]
Office of District Collector, Raigad, Alibag, ]
District Raigad. ]
]
10. The Additional Divisional Commissioner, ]
Konkan Division, Mumbai. ]
]
11. State of Maharashtra ] .... Respondents
Mr. P.K. Dhakephalkar, Sr. Counsel, a/w. Mr. C.G.
Gavnekar and Mr. G.S. Hiranandani, for the
Appellant.
Mr. R.V. Pai, a/w. Mr. A.R. Pai, i/by Mr. Sanjay
Gavade, for Respondent Nos.1 to 4.
Ms. Sushma Bhende, A.G.P., for Respondent Nos.9
to 11.
CORAM : S.C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
RESERVED ON : 26TH APRIL 2016.
PRONOUNCED ON : 6TH MAY 2016.
JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
1. This Letters Patent Appeal is preferred by the Original Petitioner,
being aggrieved by the Judgment and Order dated 31 st July 2012, passed
by learned Single Judge of this Court in Writ Petition No.5606 of 2012. By
the impugned Judgment and Order, learned Single Judge has confirmed
the Judgment and Order dated 21st June 2012 passed by the Additional
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Divisional Commissioner, Konkan Division, Mumbai in Appeal bearing
No.Appeal/Desk/VP/28/2012, thereby confirming the Judgment and Order
dated 16th January 2012 passed by the District Collector, Raigad in
Dispute Application No.41 of 2010. By these orders, the election of the
Appellant as a Member and Sarpanch of Gram Panchayat, Usurli-Khurd is
held as invalid on the count that he has incurred disqualification under
Section 14(1)(j-1) of the Maharashtra Village Panchayats Act (Act No.III of
1959), (for short "the Act), since he is having more than two children.
2. The facts, which are relevant and material, for deciding this Appeal
may be stated as follows :-
In the General Election to the Grampanchayat, Usurli-Khurd, held in
October 2010, Appellant was elected as one of the Members of the
Grampanchayat from Ward No.3. Subsequent thereto, Appellant was
further elected as Sarpanch in the first meeting of the Members of the
Grampanchayat held on 1st November 2010. Respondent Nos.1 to 4
herein, on 11th November 2010, moved Dispute Application under Section
14(1)(j-1), read with Section 16(2), of the Act before the Collector, Raigad,
alleging, inter alia, that the Appellant is having three children, namely,
Pranjal Vishwas Bhagat, born on 17th July 2002; Vishwati Vishwas Bhagat,
born on 22nd August 2003; and Shreya Vishwas Bhagat, born on 20 th May
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2010, thereby the Appellant has incurred disqualification, as provided
under Section 14(1)(j-1) of the Act. It was further alleged that the Appellant
did not disclose this fact at the time of filing his nomination paper and
even after he was elected as 'Member' and, subsequently, as 'Sarpanch'.
It was, therefore, prayed that the Appellant was liable to be removed, as
disqualified under the said provision. In support of this Dispute
Application, Respondent Nos.1 to 4 produced (i) Birth Certificates of three
children of the Appellant; (ii) Birth Certificate dated 14 th October 2010 of
the third child Shreya, issued by Dr. Panandikar Hospital; (iii) letter dated
22nd October 2010 of Medical Officer, Primary Health Centre, Ajiwali; (iv)
the letter dated 21st October 2010 issued by the Medical Officer, Primary
Health Centre, Ajiwali, containing details of the registration of pregnant
women and medical services provided to them, which included the name
of Appellant's wife in respect of her third pregnancy.
3. Appellant resisted the Dispute Application by filing a detailed reply
dated 28th February 2011, contending, inter alia, that he had only two
daughters, namely, Pranjal and Vishwati. It was his case that the third
child Shreya was not his daughter and he is not concerned with her Birth
Certificate. To substantiate his contention, Appellant has relied upon the
Birth Certificate of Shreya, as produced by Respondent Nos.1 to 4, in
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which the name of Shreya's father was shown as 'Vishwas Gajanan Patil'
and mother's name as "Sandhya Vishwas Patil', residents of Usarli, Taluka
Panvel. As against this, the name of the Appellant is 'Vishwas Laxman
Bhagat' and his wife is 'Deepmala Vishwas Bhagat', both of them being
the residents of Usurli-Khurd, Taluka Panvel. Thus, according to the
Appellant, in view of the difference in surname, father's name and
mother's name, as also the name of the village, where they are shown to
be residents, he was not concerned with the third child Shreya and hence,
there was no question of his incurring any disqualification as such.
4. In view of these rival contentions raised by the Appellant and
Respondent Nos.1 to 4, the Collector, District Raigad, thought it fit to call
for the report of enquiry from the Commissioner of Police. Pursuant
thereto and as directed, the Police authorities held the enquiry and
submitted the report to the Collector, District Raigad, substantiating the
allegations made by Respondent Nos.1 to 4. In view of this report and the
material produced on record by Respondent Nos.1 to 4, the Collector
allowed the Dispute Application, while coming to the conclusion that
Shreya was born to the Appellant and his wife and she being the third
child of the Appellant, Appellant has incurred disqualification under
Section 14(1)(j-1) of the Act.
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5. Aggrieved by this decision of the Collector, District Raigad, dated
16th January 2010, the Appellant preferred an Appeal before the Additional
Commissioner, Konkan Division, Mumbai, and, as stated above, it came
to be dismissed on 21st June 2012. Against these concurrent orders of the
Collector and the Additional Commissioner, the Appellant filed Writ Petition
No.5606 of 2012 in this Court and the learned Single Judge of this Court,
by his Judgment and Order dated 31st July 2012, confirmed the concurrent
finding of the authorities below and dismissed the Writ Petition.
6. While challenging this order of the learned Single Judge and the
authorities below, the first and foremost submission advanced by learned
counsel for Appellant is that, the entire Judgment and Order of the
authorities and learned Single Judge is based on the report of enquiry
conducted by the Police authorities. According to learned counsel for the
Appellant, Section 16(2) of the Act mandates a duty on the District
Collector to make enquiry and arrive at his own finding, whenever such
enquiry is initiated by him suo-motu or on the application made to him by
any person. It is urged that, in this case, the Collector, Raigad, has
adopted a novel procedure, which is unknown to the Act, of inviting report
from the Police authorities and relying solely on the said report to arrive at
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the conclusion. According to learned counsel for the Appellant, the
Collector has not only thereby abdicated his own duty, but also called
upon the Police to do something, which cannot be done. In his opinion,
the Police can be called upon to initiate enquiry only when some
cognizable offence is reported. In the instant case, there was no such
question of any cognizable offence being reported. Therefore, calling upon
the Police machinery to make such enquiry and relying upon the report of
the enquiry conducted by the Police to disqualify the Appellant with regard
to the elected post, which proceeding is of a civil nature, the Collector has
misinterpreted relevant provisions of the law and, therefore, on this
ground itself, the impugned order of the Collector, which is subsequently
confirmed by the Additional Commissioner and the learned Single Judge
of this Court, is required to be quashed and set aside.
7. Further, it is submitted that the Collector was expected and duty
bound to make enquiry by following principles of natural justice, which
contemplate recording of evidence and giving an opportunity to the
Appellant to rebut the material adduced against him. In the instant case, it
is urged that no such enquiry was initiated by the Collector himself. No
opportunity of adducing evidence or rebutting the material produced by
Respondent Nos.1 to 4 against the Appellant, was given to the Appellant
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and on this count also, the impugned order needs to be quashed. In
support of this submission that adherence and compliance with the
principles of natural justice is a must in any enquiry, reliance is placed on
the authority of Narsingrao Gurunath Patil & Ors. Vs. Arun Gujarathi,
Speaker & Ors., 2003 (1) Bom.C.R. 363.
8. Third submission advanced by learned counsel for the Appellant,
which is by way of amendment in the Appeal Memo and is raised for the
first time in this Appeal, pertains to maintainability of proceedings under
Section 16(2) of the Act on the count that the alleged disqualification was
incurred and was in existence much prior to even filing of the nomination
paper. Hence, it is urged that, as, in effect, the Respondents are
challenging the election of the Appellant, in view of the provisions of
Article 243(O) of the Constitution of India, only an Election Petition, as
contemplated under Section 15 of the Act, could have been filed. It is
submitted that, only when the disqualification is incurred after election, a
remedy under Section 16(2) of the Act can be availed and not otherwise.
According to learned counsel for Appellant, therefore, once the election is
over and the remedy of filing Election Petition is not availed, then, in the
guise of entertaining a complaint alleging disability under Section 16(2) of
the Act, the Appellant or an elected member like him cannot be compelled
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to undergo the same scrutiny or test. To re-enforce this submission, the
reliance is placed by the learned counsel for the Appellant on the
Judgment of the Hon'ble Supreme Court in State of H.P. & Ors. Vs.
Surinder Singh Banolta, (2006) 12 SCC 484.
9. Thus, in sum and substance, the submission of learned counsel for
the Appellant is that, if the proceedings under Section 16(2) of the Act
were not maintainable at all, the question of disqualifying the Appellant
does not arise. Even otherwise, according to him, the procedure adopted
by the Collector, Dist. Raigad, in holding the enquiry also not being proper
and according to law, on this count also, the concurrent findings recorded
by the two authorities below, which are confirmed by the learned Single
Judge of this Court, are required to be quashed and set aside.
10. Per contra, learned counsel for Respondent Nos.1 to 4 has
completely endorsed and supported the findings of the authorities below
and of the learned Single Judge by submitting that, in view of the
concurrent fact findings of the two authorities below, which are further
confirmed by the learned Single Judge of this Court, in the Appeal under
Letters Patent, this Court cannot interfere into the said finding by entering
into the disputed questions of facts and law. Secondly, it is urged that the
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provisions of Section 16(2) of the Act nowhere lay down the procedure to
be adopted by the Collector for the purpose of holding enquiry. No rules
are also framed for laying down such procedure. The only mandatory
requirement, in view of Proviso to Section 16(2) of the Act, is that the
person affected must be given an opportunity of being heard. In the
instant case, the Collector has given such opportunity to the Appellant.
Even in the enquiry conducted by the Police authorities, the statements of
the Appellant and his wife were recorded. Hence, according to learned
counsel for Respondent Nos.1 to 4, there is no question of Collector
adopting any novel procedure or the principles of natural justice being not
followed. It is urged that the documentary evidence produced on record by
Respondent Nos.1 to 4 was otherwise also independently sufficient to
arrive at the conclusion that Appellant has incurred such disqualification in
view of the birth of third child Shreya. Hence, according to learned
counsel for Respondent Nos.1 to 4, there is absolutely no scope for this
Court to interfere in the concurrent findings of the authorities below and of
the learned Single Judge of this Court.
11. As to maintainability of the application under Section 16(2) of the
Act, learned counsel for Respondent Nos.1 to 4 submitted that, the
challenge to the maintainability of the proceedings was never raised
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before any of the authorities below or even before the learned Single
Judge of this Court. For the first time, it is raised in this Appeal and such
challenge is also not maintainable in the light of the view taken by this
Court, (Coram : S.C. Dharmadhikari, J.), in the case of Santosh Maruti
Walanj Vs. Manoj Sadashiv Jadhav, 2013 (2) Mh.L.J. 68. It is urged that
in this Judgment of our High Court, the Judgment of the Supreme Court in
State of H.P. & Ors. Vs. Surinder Singh Banolta (Supra) was
considered and distinguished on the facts. According to learned counsel
for Respondent Nos.1 to 4, the remedy, as provided under Section 16(2)
of the Act, cannot be blocked merely because the said ground of
disqualification could have been taken up when the nomination paper was
filed by the Appellant or in the Election Petition, under Section 15 of the
Act. As per the submission of learned counsel for Respondent Nos.1 to 4,
this is a last ditch attempt made by the Appellant to save his post, the
election to which was completely vitiated in view of the disqualification
incurred by him and proved on record by the voluminous evidence, the
genuineness of which is not disputed or challenged.
12. In the light of these rival submissions and upon these allegations
and denials, with the assistance of learned counsel appearing for the
parties, we have perused the impugned orders of the authorities below
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and also of the learned Single Judge of this Court. We have also perused
the documents filed on record before the Collector including the report of
enquiry conducted by the Police. The learned counsel for the parties have
also elaborately taken us through the relevant statutory provisions and the
decisions of this Court and the Hon'ble Supreme Court.
13. In our considered opinion, for properly appreciating the rival
contentions raised by the parties in the case, it would be advantageous to
refer firstly to the facts of this case.
14. Undisputedly, in the Election to the Grampanchayat, Usarli,
conducted in October, 2010, Appellant was, initially, elected as the
'Member' and, subsequently, as the 'Sarpanch' of the village in the first
meeting of the Members of Grampanchayat held on 1 st November 2010.
Thereafter, the Dispute Application, under Section 14(1)(j-1), read with
Section 16(2), of the Act, was filed by Respondent Nos.1 to 4 before the
Collector on 11th November 2010. The only ground on which the
Appellant's disqualification was sought was that of Appellant having more
than two children, as laid down under Section 14(1)(j-1) of the Act. Along
with the Dispute Application itself, Respondent Nos.1 to 4 had produced
the Birth Certificates of three children of the Appellant, namely, Pranjal -
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born on 17th July, 2002, Vishwati - born on 22nd August 2003, and the third
child Shreya - born on 20th May 2010. In addition thereto, Respondent
Nos.1 to 4 had also produced on record the Certificate dated 14 th October
2010, issued by Dr. Panandikar Hospital, where the birth of the third child
Shreya had taken place. Respondent Nos.1 to 4 further produced on
record the crucial piece of evidence, like, the letter dated 22 nd October
2010 issued by the Medical Officer, Primary Health Centre, Ajiwali, stating
that the Appellant's wife Deepmala was pregnant for third time. Her name
was also entered in "R-15 Register" and her delivery took place on 20 th
May 2010. A further letter dated 21st October 2010 was also issued by the
Medical Officer, Primary Health Centre, Ajiwali, giving the details of the
registration of pregnant women and medical services provided to them
under the Scheme of Village Health and Protection of the Children, in
which name of Appellant's wife is appearing in respect of her third
pregnancy.
15. Appellant herein has not disputed genuineness of these documents,
which were produced by Respondent Nos.1 to 4 along with the Dispute
Application. Moreover, these documents are issued by the competent
statutory village authorities, like, the Medical Officer, and that too along
with the concerned record, which was statutorily required to be maintained
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by those authorities. Hence these documents carry evidential value. The
only dispute raised by the Appellant is in respect of the Birth Certificate of
the third child Shreya, as issued by the Grampanchayat on the ground
that, in the said Birth Certificate, the names of the parents of the child are
mentioned as 'Vishwas Gajanan Patil' and 'Sandhya Vishwas Patil'.
Moreover, they were shown to be the residents of Usarli, Taluka Panvel,
whereas, Appellant is the resident of Usurli-Khurd, Taluka Panvel. Hence,
on account of the difference in the surname, the parent's name and the
name of the village, Appellant has contended that he has no concern with
the said Birth Certificate. Except for this contention, there is no specific
denial to the case put by Respondent Nos.1 to 4 on the factual aspects
and other three documents, which prove that Appellant's wife Deepmala
was pregnant for the third time and she gave birth to a girl child on 20 th
May 2010. No specific stand is taken by the Appellant on these factual
aspects.
16. It appears that, only because Appellant has challenged the Birth
Certificate of Shreya as having no concern therewith, the Collector
thought it fit to direct the Police to visit the concerned area, the Rural
Health set up and meet the public officials. This was to obtain information
about how the Appellant and his wife, though residing in the same Taluka,
are disputing the birth record. The contents of the records maintained by
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the Primary Medical Centres and the pregnancy record being not
disputed, that the Collector desired corroboration. That is how in the
peculiar facts and the difference in the names of the parents of the child
Shreya that the Collector adopted this course, which cannot be a
precedent for all cases. There is no abdication of the power to decide the
Dispute Application, nor is the Collector blindly endorsing the report of the
Police.
17.
The report of the Police reveals that the statements of the Appellant
and his wife in the said enquiry, verification of the record confirms the fact
that the third child Shreya is born to the Appellant and his wife. On the
basis of above three documents, which, otherwise, were also establishing
the paternity of the Appellant to the third child Shreya and completely
supported and corroborated with the report by Police, certifying that the
Appellant was very much concerned with the third child Shreya, the
Collector arrived at the conclusion that Appellant has incurred
disqualification in view of having more than two children and, accordingly,
invalidated his election as a 'Member' and also as a 'Sarpanch'. This is the
Collector's independent application of mind to the materials placed on
record. It is his overall assessment of the same which led to this
conclusion.
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18. This finding of the fact recorded by the Collector is then confirmed
by the Appellate Authority, the Divisional Commissioner and also by the
learned Single Judge of this Court. Hence, questioning those concurrent
findings of facts in this Appeal is nothing but an attempt to invite us to do
re-appreciation and reappraisal of the material on record. These factual
aspects cannot be re-opened once the Appellant has been given full
opportunity to rebut the case, as made out by the Respondents.
Moreover, on such reappraisal, we also find that this finding of fact is
based on the undisputed documents on record, corroborated with the
Police report, hence, in our appellate jurisdiction, we are not inclined to
interfere in this concurrent finding of fact. Otherwise also, there is
absolutely nothing brought on record by the Appellant herein, to take any
other view of the matter so as to disturb the said concurrent finding of fact.
19. Now coming to the contention of the Appellant that the Collector has
abdicated his duty by adopting a novel procedure of calling upon the
Police to make enquiry into the truthfulness of the allegations made in the
Dispute Application, in this respect, it would be necessary to take recourse
to the provisions of Section 16 of the Act. It is reproduced as follows :-
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16. Disability from continuing as member. -
(1) If any member of a Panchayat
(a) who is elected or appointed as such, was
subject to any of the disqualification 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 :
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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."
20. Thus, even the bare perusal of Section 16(2) of the Act makes it
clear that, this enquiry is in the nature of summary and inquisitorial
proceedings, though it casts a duty on the Collector to make enquiry into
such Dispute Application, it does not lay down any procedure, much less,
the manner in which the enquiry is to be conducted. No rules are also
framed for laying down the procedure to conduct such enquiry. The only
mandate laid down in Proviso to sub-section (2) of Section 16 of the Act is
that, no such order disqualifying a person shall be passed by the Collector
against any Member, without giving him a reasonable opportunity of being
heard. Except for this mandate, the provisions of Section 16 of the Act or
any other provision under the Act does not lay down a specific procedure
to be followed for the purpose of enquiry. It is left entirely to the discretion
of the Collector as to the particular mode of enquiry, which he may deem
fit, to adopt in facts and situation of that case. The Collector is, thus, while
adjudicating the issue of disqualification, required only to follow the
principles of natural justice and fair play.
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21. In such situation, merely because the Collector has called for the
report from the Police authorities to support and corroborate his finding
and that too by way of additional safe-guard, it cannot be said that the
Collector has adopted the mode, which is novel or not recognized under
the Act. As stated above, it was his discretion to adopt a particular mode
of enquiry and in the fact situation of this case, when the Birth Certificate
of the third child Shreya was disputed by the Appellant as having no
concern therewith, no fault can be found if the Collector had thought it fit
to ask the Police to verify the truthfulness of the contents of the said Birth
Certificate, so as to ascertain whether the said Birth Certificate belongs to
the third child of the Appellant. It can hardly be said that, by calling upon
the Police to do so, the Collector has abdicated his duty or has adopted a
mode which is novel to the Act. For the sake of emphasis, it may be re-
iterated that, in addition to this Birth Certificate, there were three other
documents, genuineness of which, or, the contents thereof, were not at all
disputed by the Appellant and the order passed by the Collector goes to
show that he has mainly relied upon these three documents and, in
support thereof, on the report of the Police. Therefore, if for the sake of
arguments the said report is excluded from consideration, even then,
these three other documents were and are more than sufficient to prove
that the third child Shreya very much belongs to the Appellant and his
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wife.
22. As to the submission of learned counsel for the Appellant that such
report of enquiry by Police can be called for only in the criminal
proceedings and not in civil proceedings, we are not at all inclined to
accept the same. It is merely a assistance, which the Collector can very
much seek from the Police, especially, in the facts of the present case,
wherein the Appellant has denied any concern with the Birth Certificate of
his third child Shreya.
23. Coming to the next submission advanced by learned counsel for the
Appellant that the Appellant was not given any opportunity of being heard
in the proceedings by the Collector, in our considered opinion, it is too late
in a day for the Appellant to raise such contention. It is pertinent to note
the Appellant has appeared before the Collector, filed his written say
taking objections and denying the contents of the Dispute Application. His
statement and the statement of his wife were also recorded by the Police.
He challenged the report submitted by the Police. He also further
challenged the order of the Collector before the Additional Divisional
Commissioner. In the face of adequate opportunity of rebuttal, enjoyed by
Appellant, he cannot contend that he was not given opportunity of hearing
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in the proceedings. Moreover, the Appellant has made only vague denial
and has not taken any specific stand that he was obliged to do, so that he
needs to be given an opportunity to prove it. When he challenged the Birth
Certificate, the Collector had taken care to see that the enquiry is made in
the said Birth Certificate to ascertain whether it was really of the third child
of the Appellant. Thus, having participated in the proceedings, without any
protest or demur, in our opinion, it is too late in a day for the Appellant to
urge that he was denied a fair and adequate opportunity to defend himself
or to rebut the allegations levelled against him. The findings of fact arrived
at against him by the authorities below, being based on the record, they
cannot be brushed aside on such a vague complaint and grievance of the
Appellant in this Letters Patent Appeal.
24. Even in the authority relied upon by learned counsel for the
Appellant that of Narsingrao Gurunath Patil (Supra) referred above, it
was held that, whether the principles of natural justice were followed or
not would necessarily depend upon the facts and circumstances of each
case, including the nature of the action, the grounds on which the action is
taken, the material on which the allegations are based, the attitude of the
parties, the nature of the plea raised in the reply, the request for further
opportunity, the admission by conduct or otherwise of the parties, all these
materials in order to know whether the principles of natural justice are
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followed or not. Their applicability, thus, depends upon the context of facts
and circumstances of each case.
25. As held by the Supreme Court in the case of Chairman, Board of
Mining Examination and Chief Inspector of Mines Vs. Ramjee, (1977)
2 SCR 904, "natural justice is no unruly horse, no lurking land mine, nor a
judicial cure-all. If fairness is shown by the decision-maker to the man
proceeded against, the form, features and the fundamentals of such
essential process full propriety being conditioned by the facts and
circumstances of each situation, no breach of natural justice can be
complained of. Unnatural expansion of natural justice, without reference
to the administrative realities and other factors of a given case, can be
exasperating. We can neither be financial nor fanatical but should be
flexible yet firm in this jurisdiction. No man shall be hit below the belt ----
that is the conscience of the matter."
26. In the case of Ravi Naik Vs. Union of India and Ors.,
MANU/SC/0366/1994, the Supreme Court cited with approval, following
passage from Administrative Law :-
"The Judges, anxious as always to preserve some
freedom of manoeuvre emphasis that it is not possible
to lay down rigid rules as to when the principles of
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natural justice are to apply; nor as to their scope and
extent. Everything depends on the subject-matter. The
so-called rules of natural justice are not engraved on
tablets of stone. Their application, resting as it does
upon statutory implication, must always be in
conformity with the scheme of the Act and with the
subject-matter of the case. In the application of the
concept of fair play, there must be real flexibility. There
must also have been some real prejudice to the
complainant, there is no such thing as merely technical
infringement of natural justice."
27. In the case of K.L. Tripathi Vs. State Bank of India & Ors.,
MANU/SC/0334/1983, the Supreme Court has further elaborated, by
observing that, the concept of fair play in action must depend upon
particular lis between the parties........ There is no requirement of cross-
examination to be fulfilled to justify fair play in action. When on the
question of facts there is no dispute, no real prejudice has been caused to
a party aggrieved by an order, by absence of any formal opportunity of
cross-examination per se does not invalidate or vitiate the decision arrived
at fairly. This is more so, when the party against whom an order has been
passed does not dispute the facts and does not demand to test the
veracity of the version of the credibility of the statement.
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28. According to Supreme Court, the principles of natural justice are
such means of achieving ends of justice. They cannot be perverted to
achieve the very opposite end that would be a counter protective exercise.
29. In the case of M.C. Mehta Vs. Union of India,
MANU/SC/0982/1999, the Supreme Court pointed out that, "there can be
certain situations in which an order passed in violation of natural justice
need not be set aside under Article 226 of the Constitution of India. For
example, where no prejudice is caused to the person concerned,
interference under Article 226 is not necessary".
30. Thus, point to be stressed is that the principles of natural justice
cannot be reduced to hard and fast formula. These principles cannot be
put in straight jacket. Hence, unless some prejudice is shown to have
been caused by non-observance of such principles of natural justice, the
decision arrived at by the authorities cannot be vitiated or quashed and
set aside.
31. In the instant case, absolutely there is no allegation that any
prejudice was caused to the Appellant. Assuming that no evidence was
led before the Collector, it was because genuineness of the documents
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produced on record by Respondent Nos.1 to 4 before the Collector was
not disputed, nor contents thereof were in the realm of dispute. If on the
basis of such undisputed documents the finding is arrived at, it can hardly
be called as vitiated merely because there was no recording of evidence
as such. The perusal of the impugned order of the Collector, Dist. Raigad,
clearly goes to prove that he has considered all the aspects of the case
before passing the order. Proper and valid reasons are given by him while
arriving at the decision. The enquiry contemplated before him is also not
some elaborate, like, a trial, but, it is an enquiry of summary nature,
wherein Appellant has not taken any specific stand, nor offered to produce
evidence to substantiate such stand so as to persuade the authority to
drop the proceedings against him on the finding that the Appellant has not
incurred disqualification at all. In view thereof, in such proceedings, when
the question of technicalities of pleading and inadequacy of evidence will
not arise at all, the Appellant cannot succeed by finding fault with the
procedure adopted by the Collector because the law casts obligation on
the Collector to address himself to all the materials relevant for
consideration so as to form his opinion on the question of disqualification.
32. Hence, the authority relied upon by learned counsel for the
Appellant that of State Bank of India Vs. National Housing Bank &
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Ors., (2013) 16 SCC 538, which pertains to totally different facts and
circumstances of the case, cannot be made applicable to the present
case.
33. The last submission, which is introduced by way of amendment in
the Appeal Memo and is advanced for the first time in this Appeal and not
before any of the authorities below or even before the learned Single
Judge of this Court, is about the maintainability of the proceedings itself
under Section 16(2) of the Act. According to learned counsel for the
Appellant, as the alleged disqualification was incurred by the Appellant
even prior to filing of the nomination papers, in view of the provisions of
Article 243(O) of the Constitution of India, only an Election Petition, as
contemplated under Section 15 of the Act, could have been filed. It is
urged that the nomination papers for the General Election to the
Grampanchayat were filed in October 2010 and as per the case of
Respondent Nos.1 to 4, the third child was born to the Appellant on 20 th
May 2010. Therefore, it is urged that only when the disqualification was
incurred after election and as not in the present case where it has
occurred before election, a remedy under Section 16(2) of the Act could
be availed of and not otherwise.
34. To substantiate this submission, learned counsel for the Appellant
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has relied upon the Judgment of the Apex Court in the case of State of
H.P. & Ors. Vs. Surinder Singh Banolta (Supra), wherein the provisions
of Himachal Pradesh Panchayat Raj Act, 1994, particularly Section 122 of
the Act, which pertains to disqualification of the elected members to
Panchayat, were for consideration before the Hon'ble Supreme Court and
in the particular provisions of the said Act, it was held that, "once, thus, a
person is declared to be an encroacher prior to the date on which he has
been declared as elector and if the said order has attained finality, the
question as to whether he stood disqualified in terms of the provisions of
Section 122 of the Act must be raised by way of an Election Petition
alone". It was further held that, "otherwise it may result into two parallel
proceedings, which cannot be allowed to continue at the same time".
35. As against it, learned counsel for Respondent Nos.1 to 4 had
placed reliance on the Judgment of the Supreme Court in Dhirendra
Pandua Vs. State of Orissa and Ors., AIR 2009 SC 163, wherein, on
conjoint reading of Sections 18 and 38 of Orissa Municipal Act, 1950, it
was held that, "Sections 18 and 38 of the said Act operate in two
independent fields. The scope of enquiry under Section 18 of the Act,
which is prior to the election, is limited as compared to scope of enquiry
under Section 38 of the Act, which is after the election. It was further held
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that the question of disqualification to hold an office would arise at the
stage posterior to the election and as such, when the disqualification
continues, even if it was incurred prior to the election, the proceedings
subsequent to the election on the same disqualification can be very much
maintainable and there is no necessity of filing separate Election Petition.
36. According to us, the issue raised for our consideration in this Appeal
is no more res-integra, as in the case of Santosh Maruti Walanj (Supra),
this Court, wherein one of us, (Coram : S.C. Dharmadhikari, J.), had
occasion to decide this controversy. In the said decision, issue raised for
consideration was, 'whether Section 16(1)(a) of the Act is inconsistent with
Article 243N or 243-O of the Constitution of India, therefore, null and void
and be declared as such and while addressing this issue, it was held that
the ambit and scope of the provisions of Sections 15 and 16 of the Act is
different. It was held that,
"There is power to question the validity of election and
determination of dispute in relation thereto and that is a
forum which has been made available by section 15.
There is a provision by which disability to continue as a
member upon election is taken care of and that is an
aspect dealt with by section 16. Section 16 is therefore
on the statute book because it is not pertaining to
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validity of election as understood in section 15. It is a
provision which enables the question of vacancy caused
by disability to continue as a member to be decided.
The disability to continue might arise on the basis of
disqualification incurred subsequent to election or
person who might be disqualified for being elected has
been elected but his continuance is put in issue.
Therefore, the words 'disqualification' and 'disability'
both have been used by the State Legislature and with
some specific object and purpose. The disqualification
disables a person to continue. Disability also arises if a
legal right is impaired or sought to be curtailed and that
in this case is to continue as a member of the
Grampanchayat. I do not see how any conflict arises
because the State Legislature deems it fit not to either
repeal or do away with section 16(1)(a). Section 16
therefore covering a broad field and enabling a very
wide question to be agitated and raised, that does not
mean that by virtue of Article 243-N, the same is
inconsistent and therefore stands repealed
automatically. I do not find any inconsistency. Even in
the Constitution of India itself one may note several
Articles by which upon election as a member of the
Loksabha / Parliament or Council of States, a question
of person's disqualification can be raised and the
President of India has been empowered and equally the
Governor of the State to take note of such issues and
have them decided (See Article 102 and Article 191 of
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the Constitution of India). Therefore, there being no
inconsistency, I do not find that section 16(1)(a) stands
repealed being inconsistent with Article 243-N of the
Constitution of India. There cannot be any inconsistency
with Article 243-O because this not a case of only a
person's election being questioned but what is being
questioned is his disability to continue on the footing he
was disqualified for being elected."
37. As to the question 'whether in view of remedy of Election Petition
available under Section 15 of the Act, and if not availed, proceeding under
Section 16 can be maintainable?', it was held that,
"The distinction is made in Section 15 and Section 16.
An issue of validity of elections in terms of the earlier
provision can be raised by any candidate at such
election or by any person Qualified to vote at the
election to which such Question refers whereas the
Question of vacancy caused by the disability of a
member to continue can be raised by the Collector suo
motu or on an application made to him by any person.
Therefore and when the Question can arise in case of
elected or appointed members, then, I see no
inconsistency between section 16(1)(a) and Article 243-
O of the Constitution of India."
38. As to the Judgment of the Supreme Court in the case of State of
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H.P. & Ors. Vs. Surinder Singh Banolta (Supra), it is clearly
distinguishable as it merely aims at avoiding the possibility of there being
two parallel proceedings which may result into contradictory and
conflicting decisions. It does not carve out a ban to the maintainability of
proceeding under Section 16(2) of the Act. This is also not a case where
any parallel proceedings are filed or rejected. Things might have been
different to some extent if the Respondent or any other person had filed
an Election Petition on the same allegations and facts and were not
successful therein. Then depending upon the findings and conclusions of
the Court therein, in a given case, it could be held that an Appellant is not
disabled and can continue in the office.
39. Thus, ultimately, whether a proceeding under Section 16(2) of the
Act is maintainable or not is a question of fact and no general rule can be
laid down that if remedy of Election Petition is not availed, then remedy
under Section 16(2) of the Act is also barred. The very fact that under
Section 16(2) of the Act, the Collector himself, suo-motu, can initiate such
enquiry makes it clear that this enquiry is not barred on the count that
Election Petition is not filed or there was no aggrieved party or aggrieved
party has not come forward. After all, it is the sanctity attached to the
office, which needs to be protected by ensuring that disqualification
incurred by the member does not vitiate the same. In this case, there is
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nothing on record to show that Respondent Nos.1 to 4 or any other
person has earlier raised the same allegation by way of Election Petition
and it was decided or was pending at the time of filing this application
under Section 16(2) of the Act. Thus, when there was no prior adjudication
concluded or pending in the same allegations as raised in this Application,
then holding that the present proceedings were not maintainable would be
doing violence to the plain language of Section 16(2) of the Act.
40.
In the facts of the present case, as the disqualification incurred by
the Appellant on account of the birth of third child continued even after his
election, he becomes disqualified to remain in his office. It is not only that
his election to the office is vitiated on account of this disqualification, but
his remaining in office is also vitiated. Hence, as held by Supreme Court in
the case of Dhirendra Pandua Vs. State of Orissa (Supra), "It is
axiomatic that the question of disqualification to hold an office would arise
at the stage posterior to the election i.e. after a person is elected as a
Councilor. The provision appears to have been made to ensure that no
Councilor, who has incurred disqualification on any of the grounds,
mentioned in Sections 16 and 17 of the Act, either prior to the election or
after the election at any time during the tenure for which he is elected
should be allowed to hold the office. Precisely for this reason, unlike in
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Section 19, no period of limitation has been prescribed for presentation of
a petition under Section 38 of the Act to the District Judge".
41. In this respect we may also draw support from the decision of this
Court in Anand s/o Babasaheb Jadhav Vs. Shivbhushan s/o Laxman
Jadhav and Ors., 2013 (3) Mh.L.J. 778, wherein, exactly the similar
question of law fell for consideration before the Division Bench of this
Court. In the said case also, Appellant, a member of Village Panchayat,
was disqualified under Section 14(1)(j-1) of the Act for having more than
two children. As the remedy of Election Petition was not resorted to, a
challenge was raised to maintainability of proceeding under Section 16(2)
of the Act. A specific question of law was raised for consideration, 'as to
when the remedy of Election Petition is lost, a ground which was available
for challenge of Election Petition, cannot be agitated or brought in use by
filing a claim for disqualification, since the disqualification alleged was
preexisting?' and it was held that,
"Legislature has, in its wisdom, enacted the amendment
and have created a statutory barrier both, for election as
well as continuation as a member in the office of
Panchayat if the person has or gets third child after
commencement of the Amending Act, which event does
not fall in the bracket of the exceptions carved out by the
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said clause. The Policy Law and Public Law will have to
be given overriding effect over an individual rights to
challenge. Giving to-by to the statutory enactment of
attaching disqualification to a person who has more than
two children when the third is begotten after the
commencement of the Amendment Act, would mean
openly compounding the Act and defeating the said
provision. The amended Village Panchayats Act,
therefore, will have to be given overriding effect over the
right of challenge left at the sweet will of a relater.
Section 14(1)(j-1) of Bombay Village Panchayats Act is
a doctrinal amendment and all efforts ought to be made
to uphold its enforcement. Individual rights and
procedural matters should take a back seat in the
context of procedural and personal rights on one hand,
opposed to the policy of State Policy Law and Public
Law on the other hand. The remedy of election petition
which was not resorted, does not confer upon the
appellant the legitimacy which inherently lacks in the
regime of policy legislation."
42. In the ultimate analysis, therefore, we have no hesitation in holding
that, considering the object and purpose behind introducing Section 14(1)
(j-1) of the Act, by way of amendment in 2000, and giving it purposive
construction, bearing in mind the sanctity of the public office, which
Appellant holds, it has to be held that, in view of his incurring and
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continuing with disqualification incurred by him, he has rendered himself
disable to hold the said office. From the mere fact that remedy of Election
Petition was not availed does not remove his disqualification, nor confer
on him the legitimacy, which he inherently lacks.
43. To sum up, therefore, all the contentions raised by learned counsel
for the Appellant for challenging the impugned order passed by learned
Single Judge, being found without merits and hence rejected, we hold that
Appeal needs to be dismissed and, accordingly, stands dismissed.
44. At this stage, a request is made by the learned counsel appearing
for the Appellant to continue the interim order for a period of twelve weeks
so as to enable the Appellant to challenge this Judgment in Higher Court.
This request is opposed by Mr. Pai, learned counsel appearing for
Respondent Nos.1 to 4.
45. We have heard both sides on this limited point. There is a disability
for the Appellant to continue as a Member on account of his having
suppressed the birth of the third child. That is why the Collector has
passed an order and declared the Appellant's seat vacant. The learned
Single Judge granted ad-interim stay to his Judgment and Order, which
was continued by the Division Bench on 21st August 2012.
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46. The term of office of the Appellant as a 'Sarpanch' has come to an
end. That came to an end, according to Mr. Pai, in November 2015. The
Appellant has to face prosecution and other proceedings arising out of the
order of the Collector. We do not think that such proceedings deserve to
be stayed, after it was held concurrently that the Appellant is the father of
the third child. Hence, the request is refused.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [S.C. DHARMADHIKARI, J.]
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