Bombay High Court
Sudhir Govardhan Dasvant vs Rahul Shivaji Bhad And Ors on 23 March, 2017
Bench: R.M. Savant
(926)-WPST-2223-17 & group matters.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION STAMP NO.2223 OF 2017
Vaishali Baburao Bhad ]
Age: 38 years, Occ: Household/Agriculturist ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
Versus
1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
ALONGWITH
WRIT PETITION STAMP NO.2224 OF 2017
Atul Sampatrao Yadav, ]
Age: 32 years, Occ: Agriculturist ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
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Versus
1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
ALONGWITH
WRIT PETITION STAMP NO.2225 OF 2017
Sudhir Govardhan Dasvant, ]
Age: 34 years, Occ: Agriculturist ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
Versus
1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
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(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
ALONGWITH
WRIT PETITION STAMP NO.2226 OF 2017
Usha Raghnath Garad, ]
Age: 32 years, Occ: Household/Agriculturist ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
Versus
1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
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Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
ALONGWITH
WRIT PETITION STAMP NO.2229 OF 2017
Sampat Vasudev Chavan, ]
Age: 34 years, Occ: Agriculturist ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
Versus
1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
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ALONGWITH
WRIT PETITION STAMP NO.2230 OF 2017
Suraj Sampatrao Kakade, ]
Age: 42 years, Occ: Service ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
Versus
1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
ALONGWITH
WRIT PETITION STAMP NO.2231 OF 2017
Anjana Sambhaji Paikekar, ]
Age: 25 years, Occ: Household/Agriculturist ]
Residing at Gaudgaon, Taluka Barshi, ]
District Solapur ]..Petitioner
Versus
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1. Rahul Shivaji Bhad, ]
Age: 35 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
2. Dattatray Machindra Aargade, ]
(Since deceased) ]
3. Amit Nilkantha Bhad, ]
Age: 27 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
4. Suresh Jyoti Aargade, ]
Age: 52 years, Occu: Agriculturist, ]
Residing at Gaudgaon, ]
Taluka Barshi, District Solapur. ]
5. The Tahsildar/Election Officer, ]
Grampanchayat Ghodegaon, ]
6. The State of Maharashtra ]..Respondents
Mr. D. S. Mhaispurkar for the Petitioner in all the Writ Petitions.
Mr. Vishal Kanade i/by Mr. V. V. Ugle for the Respondent Nos.1, 3 & 4.
Mr. S. D. Rayrikar, AGP for the Respondent Nos.5 and 6.
CORAM : R. M. SAVANT, J.
DATE : 23rd MARCH, 2017
ORAL JUDGMENT
1 Rule in all the above Petitions. With the consent of the
Learned Counsel for the parties made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Article 227 of the
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Constitution of India is invoked against the order dated 28.12.2016
passed by the I/c Additional Commissioner, Pune Division, Pune, by
which order, the Appeals filed by the Petitioners herein came to be
dismissed and resultantly the order dated 30.04.2016 passed by the
Collector, Solapur came to be confirmed.
3 It is not necessary to burden this order with unnecessary
details. Suffice it would be to state that the Petitioners in each of the
above Petitions were members of the Gram Panchayat Gaudgaon, Taluka
Barshi, District Solapur being elected from the respective wards from
which they had contested the elections. The Respondent Nos.1 to 4
herein who are the residents of the said village Gaudgaon filed
applications against each of the Petitioners above named under Sections
14B and 16 of the Maharashtra Village Panchayats Act, 1958 (For short
"the said Act") for disqualification of the Petitioners on the ground that
the Petitioners have failed to open bank accounts. The Respondents in the
said applications however accepted the fact that the Petitioners had
submitted their statement of accounts of the election expenses but the
same was without opening bank accounts. The Petitioners herein replied
to the said applications. The Petitioners contended that the fact that they
have filed their statement of accounts of the election expenses has been
accepted by the complainants. It was further contended in the said reply
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that the directions as contained in the order dated 30.07.2011 of the
State Election Commission in respect of the opening of the bank account
cannot be construed to mean that in the event the bank account is not
opened the candidate would stand disqualified. It was further contended
in the reply that in almost 90% of the Gram Panchayats established
within the State of Maharashtra, there are no banks. It was lastly
contended that the Petitioners have the mandate of the people of the said
village Gaudgaon and therefore their election should not be interfered
with.
4 At this stage, it would be necessary to refer to the directions
issued by the State Election Commission vide order dated 30.07.2011.
The said order has been issued by the State Election Commission
increasing the limit of expenditure for a candidate contesting elections to
the Municipal Corporations, Municipal Councils, Zilla Parishads,
Panchayat Samitis and Gram Panchayats. In so far as the Gram Panchayat
is concerned, the limit of expenditure has been increased from Rs.7500/-
to Rs.25,000/-. It is mentioned in the said order just below the table
mentioning the limit for expenditure of the Gram Panchayat that a
candidate contesting the elections should open a bank account for every
election and it is through the said bank account that the expenses of the
election should be incurred. It is further stated that the statement of the
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said account should be submitted to the Returning Officer and Collector
or the Municipal Commissioner as the case may be. It is the aforesaid part
of the said order dated 30.07.2011 which is relevant in the context of the
applications for disqualification filed by the Respondents. The said
applications for disqualification filed by the Respondents was considered
by the Collector, Solapur who by his order dated 30.04.2016 has allowed
the same. The Collector, Solapur though has allowed the said applications
has recorded in the order that the Petitioners have submitted the
statement of account of the election expenses within time. However the
same has not been done along-with the bank statements. The Collector
has further observed that the reasons given by the Petitioners are not
acceptable, and considering the legal provisions it is necessary to
disqualify the Petitioners. The Collector has accordingly by orders dated
30.04.2016 disqualified the Petitioners above named.
5 The Petitioners aggrieved by the said order dated 30.04.2016
passed by the Collector, Solapur challenged the same by way of Appeals
under Section 16 of the said Act. The I/c Additional Commissioner, Pune
Division, Pune has by the impugned order dated 28.12.2016 dismissed
the Appeals and has resultantly confirmed the order passed by the
Collector, Solapur dated 30.04.2016. The Additional Commissioner
principally on the ground that the Petitioners had not opened bank
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accounts which was required in terms of the directions issued by the
Election Commission from time to time did not deem it appropriate to
interfere with the order passed by the Collector, Solapur dated 30.4.2016
and accordingly has dismissed the Appeals.
6 The Learned Counsel for the Petitioners Mr. D. S.
Mhaispurkar would contend that the directions as contained in the order
dated 30.07.2011 issued by the State Election Commission cannot be
invoked to disqualify the Petitioners as they are not part of Section 14B of
the said Act. The Learned Counsel would contend that in any event the
said directions are directory in nature and therefore their non-compliance
would not entail disqualification of the Petitioners. The Learned Counsel
sought to place reliance on the judgment of a Learned Single Judge of
this Court reported in 2008(4) Mh.L.J. 728 in the matter of Kumudini
Balasaheb Salkar Vs. Additional Commissioner, Amravati and others.
7 The Learned Counsel would next contend that both the
Collector, Solapur as well as the Additional Commissioner, Pune Division,
Pune have passed orders mechanically without considering the fact that
discretion was vested in them as to whether the Petitioners were required
to be disqualified for non-compliance of the directions of the State
Election Commission in the matter of non-opening of a bank account
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when the Petitioners had submitted statement of account of the election
expenses within time. The Learned Counsel would seek to place reliance
on the judgment of another Learned Single Judge of this Court reported
in 2011(3) BCR 359 in the matter of Sahebrao Dashrathrao Patole Vs.
State of Maharashtra and others. The Learned Counsel would contend
that the Authorities below have also not taken into consideration the
contentions which were raised on behalf of the Petitioners and therefore
the orders passed by them are vitiated on the said ground. Reliance is
sought to be placed on an unreported decision of this Court dated
21.07.2011 in Writ Petition No.1907 of 2011 in the matter of Arun
Kanhu Pawar Vs. Sakru Ganu Rathod and others and companion
Petitions.
8 Per contra, the Learned Counsel appearing for the
Respondents/Complainants Mr. Vishal Kanade would contend that having
regard to the manner in which Section 14B of the said Act is structured,
the directions of the Election Commission would be covered by the
second part of the clause (a) of Section 14B(1). The Learned Counsel
would contend that the Petitioners having taken advantage of the
increase in the limit of expenditure for the Gram Panchayat election from
Rs.7500/- to Rs.25,000/- now cannot be heard to contend that they
would not comply with the directions of the State Election Commission in
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so far as the compliance of the directions as regards opening of the bank
account is concerned.
9 Having heard the Learned Counsel for the parties, I have
considered the rival contentions. Before dealing with the contentions
urged on behalf of the parties, it would be apposite to refer to Section
14B of the said Act.
"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 reasons to be
recorded, remove any disqualification under sub-section (1)
or reduce the period of any such disqualification."
Hence the said provision postulates that if the State Election Commission
is satisfied that a candidate has failed to lodge an account of election
expenses within the time and in the manner required by the State
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Election Commission, and has no good reason or justification for such
failure, the State Election Commission may, by an order published in the
Official Gazette, declare such a candidate to be disqualified for being a
member of the Gram Panchayat. However Sub Section (2) envisages that
the State Election Commission may, for reasons to be recorded, remove
any disqualification under sub-section (1) or reduce the period of any
such disqualification. Hence under the said provision discretion is vested
in the State Election Commission whether or not to disqualify a particular
candidate for non-compliance in the matter of filing the statement of
election expenses. The said discretion therefore would have to be
exercised having regard to the facts and circumstances which are
prevailing in a particular case.
10 The State Election Commission as indicated above has issued
an order on 30.07.2011 thereby raising the limit of expenditure that a
candidate can incur, the limit has been increased for elections from the
Municipal Corporations to the elections for the Gram Panchayats. In so
far as the Gram Panchayats are concerned, the limit of election
expenditure has been increased from Rs.7500/- to Rs.25,000/-. The said
order also provides that the candidate would open a bank account for
every election and expend funds for the elections from the said account
and ultimately submit details of the bank account to the Returning
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Officer and Collector or the Municipal Commissioner as the case may be.
It is also stated in the said order that the said directions would be binding
on the candidates. Though such directions have been issued by the State
Election Commission from time to time, the substantive provision i.e.
Section 14 of the said Act has not been amended so as to make the
directions as part of the said substantive provision.
11 In the instant case, there is no dispute about the fact that the
statement of election expenses was submitted by each of the Petitioners
within the time stipulated by the State Election Commission as contained
in its letter dated 21.10.2015. In fact the said fact has been accepted by
the Complainants in the dispute application filed by them. Both the
Authorities below i.e. Collector, Solapur and the Additional
Commissioner, Pune Division, Pune have passed orders disqualifying the
Petitioners on the ground that the Petitioners though have filed their
statement of account of election expenses they have not opened the bank
accounts. In so far as the Collector, Solapur is concerned, he has very
fleetingly referred to the case of the Petitioners and has thereafter
observed that the reasons given by the Petitioners for non-opening of the
bank accounts are not acceptable. The Collector, Solapur has not dealt
with the contentions raised by the Petitioners in their replies filed to the
dispute applications. In so far as the Additional Commissioner is
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concerned, as indicated above, the Additional Commissioner did not
deem it appropriate to interfere with the order passed by the Collector, as
according to the Additional Commissioner the non-compliance of the
directive of the Election Commission in the matter of opening of bank
accounts was fatal to the case of the Petitioners. Both the Authorities
below have thereby failed to note that there is a discretion which is
vested in them as regards whether the Petitioners are required to be
disqualified only because they have not opened the bank accounts when
in fact Petitioners have submitted their statement of account of election
expenses within the time stipulated by the State Election Commission and
therefore have complied with the statutory provision i.e. Section 14B.
Both the Authorities can therefore be said to have abdicated from the
responsibility which is imposed by the statute on them especially having
regard to the fact that they were dealing with cases of disqualification
under Section 14B of the said Act of an institution of Local Self
Government at the lowest level i.e. the Gram Panchayat. It is required to
be noted that out of the 11 members of Gram Panchayat as many as 7 i.e.
Petitioners herein have been disqualified on the ground of non-opening of
the bank accounts. The judgments cited by the Learned Counsel for the
Petitioners would have relevance in the context of the challenge which
has been raised by the Petitioners as regards their disqualification.
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12 In my view, therefore, both the Authorities having decided
the applications and the Appeals in a manner not warranted by law, the
impugned orders passed by both the Authorities below i.e. order dated
30.04.2016 passed by the Collector, Solapur, as well as the order dated
28.12.2016 passed by the Additional Commissioner, Pune Division, Pune
would have to be quashed and set aside and is accordingly quashed and
set aside and the following directions are issued :-
I) On the impugned orders being quashed and set aside the
matter is remitted back to the Collector, Solapur for a de-
novo consideration of the dispute applications filed by
the Respondents against each of the Petitioners.
II) The Collector, Solapur to decide the dispute applications
on the touchstone of Section 14B and especially having
regard to the fact that a discretion is vested in the State
Election Commission whether to disqualify a particular
candidate or not in the facts and circumstances of the
case.
III) The contentions of the parties are kept open for being
urged before the Collector, Solapur.
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IV) The parties may file further pleadings to amplify the
dispute applications filed by the Respondent Nos.1, 3 and
4 and the replies filed by the Petitioners to the dispute
applications respectively.
V) The parties to appear before the Collector, Solapur on
06.04.2017. The Collector, Solapur thereafter to decide
the dispute applications expeditiously and not later than
30.06.2017. The same to be done on their own merits
and in accordance with law.
VI) In view of the setting aside of the orders passed by the
Authorities, the Petitioners would be entitled to function
as members of the Gram Panchayat Gaudgaon subject to
the result of the dispute applications and further
challenge if any.
VII) In the event an adverse order is passed against the
Petitioners in the dispute applications by the Collector,
Solapur, the same not to be given effect to for a period of
two weeks of the receipt of the said orders by the
respective Petitioners so as to enable the Petitioners to
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avail of the remedy available in law.
13 With the aforesaid directions, the Writ Petitions are disposed
of.
[R.M.SAVANT, J]
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