Shakuntala Babasaheb Gadade vs The State Of Maharashtra And ...
2017 Latest Caselaw 597 Bom

                                                 W.P.No.10565/16 & Anr.
                                        1


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

                  WRIT PETITION NO. 10565 OF 2016  

Smt. Jayashree w/o. Pawan Girhe                     ....Petitioner.

               Versus

The State of Maharashtra and ors.                   ....Respondents.

                                 WITH
                  WRIT PETITION NO. 10566 OF 2016  

Smt. Shakuntala w/o. Babasaheb Gadade ....Petitioner.

               Versus

The State of Maharashtra and ors.                   ....Respondents.

Mr. S.S. Thombre, Advocate for petitioners. 
Mr. S.B. Joshi, A.G.P. for respondent Nos. 1 to 5. 
Mr.   V.D.   Salunke,   Advocate   for   respondent   -   R.B. 
Devkate.
                                CORAM   :  T.V. NALAWADE AND
                                           SANGITRAO S. PATIL, JJ.

DATED : March 8, 2017.

ORDER : [PER T.V. NALAWADE, J.]

Both the petitioners were Members of Village

Panchayat Pangra Gadade, Tahsil Mantha, District

Jalna. They were elected from reserved categories

like Scheduled Tribe (Lady) and Nomadic Tribes (C),

respectively. In the proceeding bearing C.R. No.

61/2015, disqualification of petitioner - Smt.

W.P.No.10565/16 & Anr.

Jayashree Girhe was sought by one person viz.

Ravindra Bhalchandra Devkate of her village. The

Collector had dismissed the said proceeding, but in

appeal bearing proceeding No. 268/2016, the learned

Additional Commissioner, Aurangabad has disqualified

her under the provision of section 10(1)(A) of the

Maharashtra Village Panchayats Act, 1958 (hereinafter

referred to as 'the Act' for short) by the decision

dated 30.9.2016 (for not producing Caste Validity

Certificate within fixed time). Similarly, the

petitioner from the second proceeding viz. Smt.

Shakuntala Gadade is disqualified by the learned

Additional Commissioner in appeal bearing proceeding

No. C.R.-269/2016 by the decision dated 30.9.2016.

Both the sides are heard.

2. The learned counsel for petitioners mainly

submitted that in view of the stay given by the Apex

Court to the decision given by the Full Bench of this

Court in the case reported as 2017 (1) Mh.L.J. 431

[Anant H. Ulahalkar and Anr. Vs. Chief Election

Commissioner and Ors.], present proceedings cannot be

W.P.No.10565/16 & Anr.

decided and the stay needs to be given to the

disqualification. (One proceeding bearing Special

Leave to Appeal No. 29874-29857/16 with connected

S.L.Ps. is pending in Apex Court in which stay is

given). The learned counsel for petitioners submitted

that in view of the circumstance that the Apex Court

has given stay to the interpretation made by this

Court of the provision of section 10(1)(A), the

circumstance that one Division Bench of this Court

has given interim relief in favour of petitioner of

that case who is similarly placed in Writ Petition

No. 87/2017 [Sunita Jaisingh Zaware Vs. The State of

Maharashtra and Ors.] by order dated 16.2.2017 stay

to disqualification needs to be given. On the other

hand, the learned counsel for respondent, original

complainant submitted that in view of the provisions

in the Act which are still there and as the relief

granted by the Apex Court is of interim nature and

the relief granted by the other Division Bench of

this Court is also of interim nature, the present

proceedings cannot be stayed and no interim relief

can be granted. Both the sides were heard for

W.P.No.10565/16 & Anr.

admission purpose.

3. The facts of the first matter show that Smt.

Jayshree Girhe came to be elected on 3.11.2015. Till

the hearing of the appeal was started before the

Additional Commissioner, Caste Validity Certificate

was not produced by her. The learned Additional

Commissioner has held that though the Validity

Certificate was issued subsequently, it was not

issued and produced within six months, within the

period fixed as provided in provision of section

10(1)(A) of the Act. The Additional Commissioner has

observed that no record is produced by this lady to

show that she was not responsible for not giving the

decision earlier in time by the Caste Scrutiny

Committee and so, she cannot escape from

disqualification, from the aforesaid provision. The

learned Additional Commissioner has observed that

only zerox copy of Validity Certificate dated

24.7.2016 was produced before him and it was not

bearing seal and stamp of Scrutiny Committee and so,

it was necessary to declare that she stood

W.P.No.10565/16 & Anr.

disqualified as provided in aforesaid provisions.

4. In the second matter which is from the same

election, the Additional Commissioner has observed

that no record was produced by Smt. Shakuntala to the

effect that she had taken proper steps to get early

decision of the matter and to show no fault can be

found with her for not taking the decision of the

matter by the Caste Scrutiny Committee. The

Additional Commissioner has considered the

circumstance like a letter issued by Caste Scrutiny

Committee dated 18.7.2016 showing that the

discrepancies were not removed by the petitioner in

the proceeding and due to that the proceeding could

not make any progress. In this matter, the Validity

Certificate is admittedly not issued in favour of the

petitioner. In view of these circumstances, the

Additional Commissioner has given decision against

the petitioners.

5. The power is vested with the Collector and

the Commissioner, the authorities created under the

W.P.No.10565/16 & Anr.

Act, to take decision on the basis of subjective

satisfaction as per the provision of section 10 (1)

(A) read with section 16 of the Act and so, it is

necessary for the party like petitioners to satisfy

the authorities that there was no fault on their part

in respect of the ground raised against them.

6. Even if it is presumed that the Hon'ble Apex

Court has stayed the interpretation done by the Full

Bench of this Court that provision of section 10(1)

(A) of the Act is mandatory in nature, the fact

remains that the provision is still there and the

power given to the authority is still there. The

power needs to be exercised on the subjective

satisfaction. The Apex Court has not given stay to

the similar proceedings pending in the Courts of this

State. In view of these circumstances and as the

order is interim in nature, this Court holds that it

is open to the authority to give decisions of the

matters pending before the authority. Similarly, this

Court is expected to take decisions in the matters

which are pending before this Court.

W.P.No.10565/16 & Anr.

7. Following cases were cited in the present

matters :-

(i) 2009 (3) Supreme 281 [State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha],

(ii) Case of Calcutta High Court decided on 14.5.2007 between Pijush Kanti Chowdhury Vs. State of West Bengal.

(iii) WP(C) No. 26073 of 2009 (D) between Abdu Rahiman Vs. The District Collector decided on 29.9.2009 by the Kerala High Court.

The Apex Court has laid down that interim order

cannot become precedent. There cannot be dispute over

the proposition and discussion on this point is

already made by this Court. Interim order always

involves the use of discretion. In view of the

aforesaid circumstances, this Court holds that it is

not possible to interfere in the decisions given by

the appellate authority against the petitioners. In

the result, the petitions stand dismissed.

[SANGITRAO S. PATIL, J.] [T.V. NALAWADE, J.]

ssc/