Bombay High Court
Rajmal Namdeo Bhagwat And Others vs The State Of Maharashtra And ... on 29 September, 2016
Bench: T.V. Nalawade
WP No. 7927/2016
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
912 WRIT PETITION NO. 7927 OF 2016
RAJMAL NAMDEO BHAGWAT AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Talhar Ajay G.
AGP for Respondents 1 & 2 : S.R. Yadav
Advocate for Respondent 3 : Rajendra Deshmukh
...
ig CORAM : T.V. NALAWADE, J.
DATED : 29th September, 2016.
ORDER :
1. The petition is filed under Articles 226 and 227 of
Constitution of India to challenge the order made by the learned
Additional District Collector, Jalgaon in Dispute Application No.
31/2016 which was filed by present respondent No. 3 under the
provision of section 10-1A of the Maharashtra Village Panchayats
Act, 1958 (hereinafter referred to as 'the Act' for short). Both the
sides are heard.
2. The petitioners were elected to Village Panchayat
Londhri (Bk), Tahsil Jamner, District Jalgaon in general elections
of Village Panchayat held in the year 2015. They had contested
the elections from reserved category. Along with the nomination
forms, they had filed their caste certificates, but within six
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months from the date of elections, they did not file the caste
validity certificate and so, a person from the same village had
filed aforesaid dispute for seeking disqualification of the present
petitioners. Notices were given to the present petitioners. They
filed their reply and they contested the proceeding.
3. It appears that subsequent to the date fixed in the
relevant provision, the petitioners Rajmal Bhagwat and Jyoti
Sapkale got the caste validity certificates i.e. on 29.3.2016.
Copies of those validity certificates are produced on record.
Lilabai has contended that the validity certificate is issued to
her, though it is in her name, which was prior to the date of
marriage.
4. The learned counsel for petitioners submitted that on
4.8.2016, the State Government has issued Government
Resolution and the period mentioned in section 10-1A of the Act
is extended up to 31.12.2017 and this order of the State
Government is not taken in to consideration by the learned
Additional District Collector and so, the order needs to be set
aside. In support of the contentions made, he placed reliance on
the case reported as 2008 (2) Bom.C.R. 712 [Dadasaheb
Arjun Gulve Vs. State of Maharashtra & Ors.] and the order
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of one case made by another Division Bench which is interim in
nature made in Writ Petition No. 8002/2016 and others
[Vaishali Kesharlal Mahajan Vs. The State of Maharashtra
& Ors.] dated 2.8.2016 and the decision given by the Single
Judge of this Court in Writ Petition No. 3963/2013 and
another (Alka w/o. Rajkaran Kshirsagar Vs. Sow. Shalini
w/o. Mahadeo Lokhande and Ors.] dated 16/09/2013. On
the other hand, the learned counsel for respondent placed
reliance on the decision given by this Court in Writ Petition No.
5686/2016 [Shankar s/o. Raghunath Devre (Patil) Vs. The
State of Maharashtra and Ors] dated 2.9.2016, in which
this Court has used the decision given by another Division Bench
of this Court in the case reported as 2010(1) Mh.L.J. 497 (Gita
Rupchand Vs. State of Maharashtra).
5. Submission was made by the learned counsel for
petitioners that in view of the time extended in Government
Resolution, the disqualification cannot occur atleast till
31.12.2017. This submission is not at all acceptable and there is
misconception behind this contention.
6. The relevant provision is section 10-1A of the Act and
it is as under :-
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"10-1A. Person contesting election for
reserved seat to submit Caste Certificate
and Validity Certificate.- Every person desirous
of contesting election to a seat reserved for
Scheduled Castes, Scheduled Tribes or, as the case
may be, Backward Class of Citizens, shall be
required to submit, alongwith the nomination
paper, Caste Certificate issued by the Competent
Authority and the Validity Certificate issued by the
Scrutiny ig Committee in accordance with the
provisions of the Maharashtra Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta
Jatis), Nomatic Tribes, Other Backward Classes and
Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act,
2000 (Mah. XXIII of 2001) :
Provided that, for the General or by-elections
for which the last date of filing of nomination falls
on or before the 31st December 2017, in
accordance with the election programme declared
by the State Election Commission, a person who
has applied to the Scrutiny Committee for
verification of his Caste Certificate before the date
of filing of the nomination papers but who has not
received the Validity Certificate on the date of
filing of the nomination papers shall submit,
alongwith the nomination papers,-
(i) a true copy of the application preferred
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by him to the Scrutiny Committee for issuance of
the Validity Certificate or any other proof of having
made such application to the Scrutiny Committee;
and
(ii) an undertaking that he shall submit,
within a period of six months from the date on
which he is declared elected, the Validity
Certificate issued by the Scrutiny Committee:
Provided further that, if the person fails to
produce the Validity Certificate within a period of
six months from the date on which he is declared
elected, his election shall be deemed to have been
terminated retrospectively and he shall be
disqualified for being a member."
The aforesaid provision shows that the basic provision was made
with the intention to see that a candidate who is having caste
validity certificate is allowed to contest the election from
reserved category mentioned in first part of the provision.
Considering the possibility that candidates were not having
validity certificates on the date of nomination, by way of
concession, the first proviso came to be added. By the first
amendment, which was made in the year 2012, concession was
given to the candidates, who wanted to contest elections from
the reserved category and it was for the elections which were to
be held prior to 31.12.2014. The candidates were allowed to
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contest the elections if condition Nos. (i), (ii) of the first proviso
were fulfilled by the candidates. Below these conditions, right
from the first amendment, further proviso was added which was
making it clear that if the caste validity certificate was not
produced within the period of six months from the date on which
he was declared as elected, his election was to be deemed to
have been terminated retrospectively and he was to be
disqualified for being a member. By subsequent amendments,
the date mentioned in the first proviso was changed to make it
31.12.2015 and then by the recent amendment, the date fixed is
31.12.2017. It can be said that only the dates mentioned in the
first proviso are changed and the remaining provision of the first
amendment is kept intact.
7. In view of the aforesaid steps taken by the State
Government to give concession, but to put conditions for the
concession, it can be said that the concession can be availed
only after complying two conditions mentioned in the first
proviso and after that there is mandatory provision in the second
proviso. In the mandatory provision, it is specifically provided
that election shall be deemed to have been terminated
retrospectively if the validity certificate is not produced within a
period of six months from the date of the declaration of the
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election. Thus, it cannot be said that any further scope is kept to
the candidate and he can give excuse that the Caste Scrutiny
Committee constituted by the State Government for issuing
caste validity certificate was not discharging function or it was
not making progress in the matter for some reason. There can
be many reasons including inaction on the part of such
candidate to supply necessary information to the Caste Scrutiny
Committee or seeking time before Caste Scrutiny Committee
during hearing of the said proceeding. There can be reason
which can be used against the Caste Scrutiny Committee also.
But these circumstances are not required to be considered in
view of the mandatoriness of the second proviso quoted above.
8. It can be said that there are two cases of Division
Bench on the aforesaid point and there is one case of Hon'ble
learned Single Judge of this Court in which the decision given by
the Division Bench of this Court in the case of Dadasaheb
Gulve cited supra is followed (Writ Petition No. 3969/2013)
and on the other hand, there is the decision of other Division
bench in the case of Gita Rupchand cited supra. As per the law
of precedent, this Court has liberty to choose one of the two
decisions delivered by the two benches of equal strength of this
Court. Further, there is aforesaid provision which is mandatory in
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nature. It can be said that there was no opportunity to consider
the aforesaid proviso which was not there in the Act. The case of
Dadasaheb Gulve cited supra was decided on the basis of
similar provision made in Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Township Act. It can be said that in the
said provision also the second proviso mentioned in the Act was
there. But the Division Bench of this Court had held that the
proviso prescribing the period of four months in that case was
not mandatory in nature. In subsequently decided case of Gita
Rupchand cited supra, the Division Bench held that the
provision is mandatory in nature. In view of the wording used in
the second proviso, this Court holds that the view expressed by
the Division Bench of this Court in the case of Gita Rupchand
cited supra needs to be accepted and this Court is accepting
that view.
9. The learned counsel for petitioners placed reliance
on some observations made by the Apex Court in the case
reported as AIR 2011 SC 312 [Siddharam Satlingappa
Mhetre Vs. State of Maharashtra and Ors.]. The purpose
behind some observations in that case was totally different. This
Court holds that those observations made with regard to the
grant of anticipatory bail by the Apex Court can not be used in
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the present matter.
10. In the result, petition stands dismissed. Interim relief,
if any, is vacated.
[ T.V. NALAWADE, J. ]
ssc/
