Hemraj Yuvraj Patil vs The State Of Maharashtra And ...
2016 Latest Caselaw 6141 Bom

                                                            WP No. 1836/2016
                                           1




                                                                           
                       IN THE HIGH COURT AT BOMBAY
                   APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                             WRIT PETITION NO. 1836 OF 2016

              Hemraj S/o Yuvraj Patil,
              Age: 38 years, Occu: Agriculture,
              R/o : Sukwad, Post Vishwanath,




                                                  
              Tq. and District Dhule.                     ....Petitioner.

                      -Versus-




                                        
     1        The State of Maharashtra,
              Through its Principal Secretary,
              Rural Development Department,
                             
              Mantralaya, Mumbai - 32

     2        The Divisional Commissioner,
                            
              Nashik Division, Nashik.

     3        The Collector,
              Dhule, District Dhule.
      

     4        Chandrakala Yuvraj Patil,
              Age : Years, Occu.: Household,
   



              R/o : Vishwanath, Tq. and Dist. Dhule.     ....Respondents.

                                  ...
     Mr. Vishnu B. Madan, Advocate for petitioner.





     Mr. S.N. Kendre, AGP for respondent/State Nos. 1 to 3.
     Mr. V. P. Raje, Advocate for respondent No.4.
                                          ...
                                         CORAM : T.V. NALAWADE, J.





                                         DATED : 18th October, 2016.

     JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

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2) The petition is filed to challenge the order made by

learned Divisional Commissioner, Nashik Division, Nashik in

Appeal No. 75 of 2015. This appeal was filed against the decision

of Dispute Proceeding bearing No. 09 of 2015, which was pending

before the District Collector, Dhule and which was filed under

section 14-B of the Bombay Village Panchayats Act, 1958

(hereinafter referred to as 'the Act' for short).

3)

The Collector had allowed the proceeding and on the

ground of not filing of returns of expenditure of election within

prescribed time, respondent No.4 -Smt. Chandrakala Patil, was

declared as disqualified by the Collector. The decision is set aside

by the learned Divisional Commissioner and so the decision of the

learned Divisional Commissioner is challenged in the present

proceeding. The dispute proceeding was filed against the three

members and the Collector made order against all of them. The

decision of the Collector was challenged by Smt. Chandrakala

Patil only.

4) The learned counsel for the petitioner submitted that

the provision of section 14-B shows that the candidate needs to

file returns in respect of expenditure in time and if the

expenditure returns are not filed within the prescribed time and

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no good reason or justification for such failure is given, such

person automatically stands disqualified for being the member of

Panchayat or for contesting elections also for the period

mentioned in the section. He produced copy of notification issued

by the State Government, in which the State Government has

mentioned the period as thirty days from the date of result of the

election and the State Government has made it clear that the

provision is applicable even against the candidate who is declare

elected unopposed.

5) The provision of section 14-B of the Act runs as

under:-

14B. Disqualification by State Election

Commission :- (1) If the State Election Commission is satisfied that a person,-

(a) has failed to lodge an account of election expenses within the time and in

the manner required by the State Election Commission, and

(b) has no good reason or justification for such failure,

the State Election Commission may, by an order published in the Official Gazette, declare him to be disqualified and such person shall be disqualified for being a member of panchayat or for contesting an election for being a member for a period of five years from the date of this order.

(2) The State Election Commission may, for

WP No. 1836/2016

reasons to be recorded, remove any disqualification under sub-section (1) or reduce the period of any such disqualification.

6) Admittedly, in the present matter the elections were

held in the year 2012. The returns were not submitted by

respondent Smt. Chandrakala Patil and when inquiry was made

by the present petitioner, who had filed proceeding before the

Collector, it was informed to him that till 31-12-2014, the returns

were not filed. In view this circumstance, notice was issued by

the learned Collector Dhule against respondent Smt. Chandrakala

Patil. In reply, she contended that she had tried to file the returns

by visiting the office of Tahsildar on 02-11-2012 and 05-11-2012,

but the Returning Officer was not present in the office and so, she

could not file the returns. She also contended that when she had

made inquiry with the Returning Officer, he had informed that as

she was declared elected as unopposed, there was no need to file

such returns to her. It appears that she filed returns on

28-04-2015 after more than two and half years of the date of the

election.

7) In view of the aforesaid circumstances, the Collector

declared respondent Smt. Patil as disqualified under aforesaid

provision. The Commissioner set aside the decision by observing

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that other candidates had also not filed the returns, but no

complaint was made by the present petitioner against them. The

circumstance that on 28-04-2015 the returns were filed is taken in

to consideration and on that basis, the order of the Collector set

aside.

8) The learned counsel for the respondent Smt. Patil,

placed reliance on the observation made by the High Court of

Jammu & Kashmir in the case of reported as E. L. R. 323

(Kacho Mohd Ali Khan Vs. Shri Kushok Bakula) decide on

21-12-1967. The facts of that case were totally different.

Election Petition was filed under Chapter II of the Representation

of the People Act, 1951 to challenge the election of respondent of

that matter, who had got elected to the Parliament as unopposed.

Thus, the provisions of the Representation of the People Act, 1951

were considered for making some observation in favour of the

returned candidate. The learned counsel for the respondent Smt.

Patil placed reliance on the order made by this Court at Principle

Seat At Bombay in Writ Petition No. 11547 of 2015 with

other petitions (Smt. Vaijayata Deepak Warke and others

Vs. State Election Commission and others) decided on

11-12-2015. In those matters, this Court had given interim relief

for the period during which the matters were pending before the

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learned Divisional Commissioner. The returned candidates were

already disqualified by the Collector and the matters were before

the Commissioner. Thus, the order was of interim nature. For

giving such interim relief the observations made by Jammu &

Kashmir High Court in the case cited supra of Kacho Mohd Ali

Khan were referred by this Court.

     9)               On the other hand, the learned counsel
                              ig                                        for the

petitioner placed reliance on the order made by this Court in Writ

Petition No. 9508 of 2013 of this Bench (Balasaheb

Kashinath Tambe and others Vs. Nanasaheb Janardhan

Khade and others) decided on 13-02-2014. In that case also,

the returns were not submitted within thirty days as provided

under section 14-B of the Act. In that matter, there was contest in

the election. However, that will not make difference in view of the

wording of provision of section 14-B of the Act. Every person, who

filed nomination is covered under the provision. The expenditure

needs to be considered right from the date of nomination and so,

there is such requirement. There was the opportunity to give good

reason or justification, but the say filed by the respondent does

not show that good reason was given or justification was shown

by her. The reason given cannot be accepted in view of the

wording of section. This Court has no hesitation to hold that the

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Commissioner has committed error in setting aside the decision

given by the Collector.

10) In the result, the petition is allowed. The decision

given by the Divisional Commissioner, Nashik Division, Nashik in

Appeal No. 75 of 2015 is hereby set aside. The order made by the

Collector, Dhule is hereby restored. The learned counsel for the

respondent No. 4 requested for giving stay to this decision. But it

is refused.

Rule is made absolute. In aforesaid terms.

[ T.V. NALAWADE, J. ]

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