Kiran Daulat Gosavi vs Election Returning Officer And ...
2021 Latest Caselaw 37 Bom

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          Digitally signed
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          by Kanchan V.
Kanchan   Mayekar                    CIVIL APPELLATE JURISDICTION
V.        Date:
Mayekar
          2021.01.04
          16:54:26
          +0530
                                    WRIT PETITION (ST) NO. 24 OF 2021
                       Shivaji Laxman Wadkar                  )
                       Age 53 years, Occ. Agriculturist,      )
                       Residing at Post :- Velu,              )
                       Tal. Bhor, Dist. Pune                  )   ..... Petitioner
                             VERSUS

                       1. Election Returning Officer,     )
                       Grampanchayat Velu,                )
                       Tal.Bhor, Dist.Pune                )
                                   And
                       Having address at c/o. Tahasiladar Bhor)
                       Tal. Bhor, Dist. Pune              )

                       2. Shri Balasaheb Ramchandra Wadkar)
                       Age Adult Occupation Agriculturist)
                       Residing at :- At Post Velu,      )
                       Tal. Bhor, Dist. Pune             )  ..... Respondents


                                             ALONGWITH
                                    WRIT PETITION (ST) NO. 23 OF 2021
                       Kiran Daulat Gosavi,                   )
                       Age 30 years, Occ. Agriculturist,      )
                       Residing at Post :- Velu,              )
                       Tal. Bhor, Dist. Pune                  )   ..... Petitioner
                             VERSUS

                       1. Election Returning Officer,     )
                       Grampanchayat Velu,                )
                       Tal.Bhor, Dist.Pune                )
                                   And
                       Having address at c/o. Tahasiladar Bhor)
                       Tal. Bhor, Dist. Pune              )

                       2. Shri Ishwar Baban Pangare      )
                       Age Adult Occupation Agriculturist)
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Residing at :- At Post Velu,             )
Tal. Bhor, Dist. Pune                    )   ..... Respondents

Mr.R.A.Thorat, Senior Advocate, a/w. Mr.Balasaheb Deshmukh for the
Petitioner in both writ petitions.

Mr.Rajiv Patil, Senior Advocate, i/b. Mr.Prashant Patil for the
Respondent no.2 in both the writ petitions.

Mr.S.S.Panchpor, A.G.P. for the State in both writ petitions.
                         CORAM: R. D. DHANUKA AND
                                MADHAV J.JAMDAR, JJ.

DATE : 4th JANUARY, 2021

ORAL JUDGMENT (PER R.D.DHANUKA, J.) :-

By this writ petition filed under Article 226 of the Constitution

of India, the petitioner has impugned the order dated 31 st December,

2020 passed by the respondent no.1 thereby rejecting the written

objection filed by the petitioner in respect of the Nomination Form

filed by the respondent no.2 for contesting the election from Ward No.4

of Gram Panchayat Velu, Taluka Bhor, District Pune.

2. The matter was taken on board in view of the praecipe filed by

the respondent no.2 praying for vacating the ad-interim order passed by

a learned Single Judge of this court (Vacation Court in Chamber).

3. Mr.Thorat, learned senior counsel for the petitioner submits that

the writ petition filed by his client was rightly heard by the learned

Single Judge. This petition cannot be heard by the Division Bench. In KVM

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support of this submission, learned senior counsel placed reliance on

Rule 18(3) of the Bombay High Court Appellate Side Rules, 1960

which reads as under :-

18(3) The decrees or the orders passed by any Subordinate Court or by any quasi Judicial Authority in any suit or proceeding (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court and orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002and Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000;]

4. It is submitted by the learned senior counsel that challenge to

any impugned order passed by the quasi judicial authority in any of the

proceedings, under Rule 18(3) of the Bombay High Court Appellate

Side Rules, 1960 is required to be heard by a learned Single Judge of

this Court and not by the Division Bench. He relied upon the judgment

of this court in case of Manchak Shahaji Pawar vs. The State of

Maharashtra, 2011 (3) BCR 812. He also addressed this court on

merits of the matter.

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5. Mr.Patil, learned senior counsel for the respondent no.2 on the

other hand strongly objects to this submission made by the learned

senior counsel for the petitioner and submits that the impugned order

passed by the respondent no.1 is not arising out of the quasi judicial

order passed under one or more of the Acts prescribed in Rule 18 of

Chapter XVII of the Bombay High Court Appellate Side Rules, 1960

and thus the matter will have to be heard by the Division Bench of this

Court and not by the learned Single Judge.

6. To deal with the rival submissions of the learned senior counsel

for the parties, it would be appropriate to deal with the relevant

provisions of the Bombay High Court Appellate Side Rules, 1960.

7. Rule (1) of Chapter XVII of the Bombay High Court Appellate

Side Rules, 1960 clearly provides that every application for the issue of

a direction, order or writ under Article 226 of the Constitution shall, if,

the matter in dispute is or has arisen substantially outside Greater

Bombay, be heard and disposed of by a Division Bench to be appointed

by the Chief Justice. It is not in dispute that the subject matter of this

petition has arisen outside Greater Mumbai.

8. Rule (17) provides that an application invoking the jurisdiction KVM

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of the High Court under Article 227 of the Constitution or under Article

228 of the Constitution, shall be filed on the Appellate Side of the High

Court and be heard and disposed of by a Division Bench to be

appointed by the Chief Justice.

9. Rule (18) of the Bombay High Court Appellate Side Rules, 1960

provides that notwithstanding anything contained in Rules 1,4 and 17

of Chapter XVII, applications under Article 226 or under Article 227

of the Constitution (or applications styled as applications under Article

227 of the Constitution read with Article 226 of the Constitution)

arising out of Acts specifically mentioned therein shall be heard by the

learned Single Judge of this court.

10. Admittedly the Maharashtra Village Panchayats Act, 1959 is not

specified as one of those Acts prescribed in Rule 18 of Chapter XVII of

the Bombay High Court Appellate Side Rules, 1960. A perusal of the

explanation to the said rule makes it clear that the expression 'order'

appearing in clauses 1 to 46 thereof means any order passed by any

judicial or quasi judicial authority empowered to adjudicate under

those specified statues.

11. A conjoint reading of the aforesaid provisions makes it clear that KVM

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even if the impugned order is passed by a quasi judicial authority, that

itself would not be the criteria to decide that the learned Single Judge

of this Court could hear the writ petition under Article 226 or Article

227 of the Constitution of India unless the impugned order is passed by

any judicial or quasi judicial authority empowered to adjudicate under

one of those Acts specified in Rule 18 of Chapter XVII.

12. There is no merit in the submission of the learned senior counsel

for the petitioner that in view of sub-Rule 3 of Rule 18 a learned Single

Judge of this Court has jurisdiction to hear the matter arising out of the

order passed under the provisions of the Maharashtra Village

Panchayats Act. In our view, rule 3 will have to be read with rule 18,

1st Part which specifies the number of Acts to be read with explanation

which makes it clear that a Single Judge can exercise powers under

Article 226 or Article 227 of the Constitution only if the quasi judicial

or judicial order is passed under any of the Acts specified under Rule

18 of the Bombay High Court Appellate Side Rules.

13. In view of the fact that the Maharashtra Village Panchayats Act

does not fall under any of those specified Acts, these writ petitions

impugning quasi judicial orders passed under Maharashtra Village

Panchayats Act pertain to the Division Bench and not Single Judge of KVM

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this court. The objection raised by the learned senior counsel for the

petitioner is devoid of merits and is accordingly rejected.

14. Insofar as the judgment of this Court in case of Manchak

Shahaji Pawar (supra) relied upon by the learned senior counsel for

the petitioner is concerned, a perusal of the said judgment clearly

indicates that the said petition was filed impugning the quasi judicial

order passed under the provisions of the Maharashtra Co-operative

Societies Act, 1960. It is not in dispute that the said Maharashtra Co-

operative Societies Act, 1960 is one of the Act specified under Rule 18

of Chapter XVII of the Bombay High Court Appellate Side Rules,

1960. The said judgment is not even remotedly applicable to the facts

of this case. The reliance placed thereon by the learned senior counsel

is totally misplaced. We shall now deal with the merits of the petition.

15. The Nomination Form filed by the respondent no.2 was opposed

by the petitioners on the ground that by an order dated 15 th May, 2015

passed by the Divisional Commissioner, Pune, the respondent no.2

was disqualified under section 39(1) of the Maharashtra Village

Panchayats Act, 1959. It is not in dispute that the said order was

passed on 15th May, 2015. Our attention is invited to section 14(1) (d)

of the Maharashtra Village Panchayats Act by the learned senior KVM

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counsel which reads as under :-

Section 14(1) No person shall be a member of a Panchayat, or continue as such, who

(d) has been removed from office under sub-section (1) of section 39 and a period of [six years] has not elapsed from the date of such removal, unless he has, by an order of the State Government notified in the Official Gazette, been relieved from the disqualification arising on account of such removal from office; or

16. It is submitted by the learned senior counsel that though the

period of (5 years) has been substituted by six years by the

Maharashtra Village Panchayats (Amendment) Act, 2017 by

Maharashtra Act No. 54 of 2018 dated 13 th August, 2018, the period of

six years for the purpose of computation of period of disqualification

under section 14 would apply to the facts of this case. It is submitted

that the respondent no.2 cannot be given benefit of the unamended

provisions of five years in view of the respondent no.2 already having

been declared disqualified by an order under section 39(1) of the

Maharashtra Village Panchayats Act.

17. A perusal of Maharashtra Village Panchayats (Amendment) Act,

2017 by Amendment Act, 54 of 2018 clearly indicates that the said

amendment by which the period of five years has been substituted by KVM

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six years has been brought into effect with effect from 19 th July, 2017.

The legislative intent is thus being clear that the effective date of the

said amendment having been brought in force as 19 th July, 2017, the

period of six years cannot be read in place of five years with

retrospective effect i.e. with effect from the date on which the

respondent no.2 was disqualified under section 39(1) of the

Maharashtra Village Panchayats Act, 1959 i.e. 15th May, 2015.

18. In our view, unless the Act itself provides that the amendment

would apply with retrospective effect or the legislative intent is clear,

the amendment has to be read with prospective effect. Admittedly in

this case five years period was specifically prescribed and was in force

prior to the date of amendment having been brought in force w.e.f. 19 th

July, 2017. The respondent no.2 has admittedly filed Nomination Form

much after expiry of five years from the date of his incurring

disqualification. The period of six years substituting the period of five

years would not apply with retrospective effect. The respondent no.2 is

thus not debarred from contesting election to become member of

Panchayat on that ground. The disqualification of the respondent no.2

came to an end within five years w.e.f. 15 th May, 2015. In our view,

both these writ petitions are devoid of merits. KVM

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19. We, therefore, pass the following order :-

(a) Writ petition is dismissed with cost quantified at

Rs.25,000/- in each of writ petition which shall be paid

by the petitioner to the respondent no.2 within three

days from today.

(b) Ad-interim order passed by this court on 2nd

January, 2021 stands vacated.

(c) Learned A.G.P. for the respondent no.1

undertakes to communicate this order to the Election

Returning Officer forthwith.

20. The parties to act on the copy of this order duly authenticated by

the Sheristedar of this court.

[MADHAV J. JAMDAR, J.]                          [R. D. DHANUKA, J.]