Bombay High Court
Sagarbai Gautam Bhise vs The Divisional Commissioner ... on 21 January, 2022
Bench: V.K. Jadhav
1 RA 71.2022 with WP 13217.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.71 OF 2022
IN
WRIT PETITION NO.9882 OF 2017
...
SAGARBAI W/O. GAUTAM BHISE
VERSUS
THE DIVISIONAL COMMISSIONER AURANGABAD AND
OTHERS
...
Mr. S B Ghatol Patil h/f Mr. S K Sawangikar advocate
for the applicant.
Mr. S S Dande AGP for respondent nos.1,2-State.
Mr. S B Ghute advocate for respondent no.3.
Mr. A G Thitte advocate for respondent no.4.
....
WITH
WRIT PETITION NO.13217 OF 2019
SAGARBAI W/O GAUTAM BHISE
VERSUS
THE DISTRICT COLLECTOR AND OTHERS.
...
Mr. S B Ghatol Patil h/f Mr. S K Sawangikar advocate
for the petitioner.
Mr. S S Dande AGP for respondent 1 & 2-State.
Mr. S B Ghute advocate for respondent no.3.
Mr. S.V.Suryawanshi advocate for respondent no.4.
Mr. S K Chavan advocate for respondent no.5.
Respondent nos.6 to 8 deleted.
...
CORAM : V.K. JADHAV, J.
Dated : JANUARY 21, 2022
...
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2 RA 71.2022 with WP 13217.19.odt
PER COURT :-
1. Heard fnally with the consent of the parties at
admission stage.
2. Being aggrieved and dissatisfed by the judgment
and order dated 24.9.2019 passed by the learned
District Judge-1, Hingoli in Election Petition no.14 of
2017, the original respondent no.1-Sagarbai Bhise has
preferred writ petition no.13217 of 2019.
3. By judgment and order dated 21.3.2018 in writ
petition no.9882 of 2017 preferred by the Review
Applicant, this Court has allowed the writ petition in
terms of prayer clause "C" and thereby quashed and set
aside the order passed by the respondent-Additional
Divisional Commissioner, Aurangabad Division,
Aurangabad in preliminary objection application case
no.34 of 2017 was allowed and in terms of the prayer
clause of the said preliminary objection, the further
proceedings before the respondent-Additional Divisional
Commissioner, Aurangabad Division, Aurangabad held
to be not maintainable. One Devidas Ramkisan
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Gawande has fled Election Petition no.14 of 2017
against the petitioner in writ petition no.9882 of 2017
i.e. Sagarbai Gautam Bhise and others.
4. Brief facts, giving rise to all these proceedings, are
as follows :-
a] In the year 2017, the elections of Zilla Parishad,
Hingoli was declared by the State Election Commission
of Maharashtra and nominations were invited from the
candidates from date 27.1.2017 to 1.2.2017. On 2.2.2017
one Bhagwat Khandare and Smt. Kusum Khandare had
submitted their objections to the Returning Offcer, Zilla
Parishad, Hingoli against nomination form submitted by
the present petitioner Sagarbai Gautam Bhise on the
ground that she is having third child after the cut-off
date and also on the ground of encroachment on the
government land. Returning offcer has rejected the
said objection and accepted nomination of the said
candidate Sagarbai Bhise (petitioner herein). Thereafter,
the petitioner came to be elected from Falgaon Block
(Block No.1) as a Member of Zilla Parishad, Hingoli.
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b] On 28.2.2017 one Devidas Ramkisan Gavande has
fled Election Petition no.14 of 2017 under section 27 of
the Maharashtra Zilla Parishads and Panchayat Samitis
Act, 1961 (hereinafter referred to as the 'Act of 1961')
against the present petitioner and others before the
District Judge, Hingoli. On 23.3.2017 respondent
Ramesh Mariba Kamble had fled an application no.34
of 2017 before the Additional Divisional Commissioner,
Aurangabad Division, Aurangabad for disqualifcation of
the petitioner Sagarbai on the same ground. The
Petitioner herein i.e. Sagarbai has raised preliminary
objection before the Additional Divisional Commissioner,
Aurangabad Division, Aurangabad about maintainability
of the said proceedings. Said Preliminary objection came
to be rejected by the Additional Divisional
Commissioner, Aurangabad Division, Aurangabad by
order dated 4.7.2017. Being aggrieved by the same, the
petitioner Sagarbai Gautam Bhise had fled writ petition
no.9882 of 2017. By judgment and order dated
21.3.2018 this Court allowed the said writ petition in
terms of the prayer clause 'C' and upheld the
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preliminary objection raised by the petitioner. In view of
the same, the learned District Judge-1, Hingoli has
dealt with the Election Petition no.14 of 2017. In terms of
the pleadings raised by the parties in the Election
Petition no.14 of 2017, the learned District Judge-1,
Hingoli has framed the following issues and recorded
the fndings thereon, which are as follows :-
Sr. No. Issues Findings.
1. Whether petitioner proves that Proved.
respondent no.1 begotten third
child after 13.09.2001 ?
2. Whether this Court is having Yes.
jurisdiction to entertain the
petition ?
2A. Whether present petition is Yes.
maintainable under Section 27 of
the Maharashtra Zilla Parishad
and Panchayat Samiti, Act 1961 ?
3. Is petitioner entitled for relief Yes. But only for
sought ? setting aside
election of resp.1
4. What order ? As per fnal order.
5. By order dated 24.9.2019, the District Judge-1,
Hingoli has partly allowed the Election Petition No.14 of
2017 and thereby set aside the Election of the returned
candidate respondent no.1 Sagarbai as a Councilor of
Zilla Parishad, Hingoli and declared it as void under
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section 16(1)(n) of the Act of 1961. However, rejected the
prayer of respondent no.2 as elected candidate in place
of respondent no.1. It is further held that respondent
no.1 Sagarbai (petitioner herein) having incurred
disqualifcation under section 16(1)(n) shall not be
entitled to contest the election.
6. Being aggrieved by the same, Sagarbai Gautam
Bhise has preferred the writ petition. Further, Sagarbai
Bhise has also fled Review Application No.71 of 2022 in
Writ Petition no.9882 of 2017 to review the order passed
in writ petition no.9882 of 2017 in her favour.
7. The learned counsel appearing for the petitioner
submits that the dispute remains only as to whether
"Surbhi" is the daughter of the present petitioner or not
as claimed by the respondent no.4 in Election Petition
no.14 of 2017. Learned counsel submits that, "Surbhi"
is not the biological daughter of this petitioner, but she
is the daughter of her husband Gautam Dhonduji Bhise
and his frst wife namely Meenabai @ Sakharbai. The
petitioner is the second wife of Gautam Bhise and
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having only two children born before cut-off date.
"Surbhi" is step child of the present petitioner and not
the biological child. Learned counsel for the petitioner
submits that, the learned District Judge-1, Hingoli has
failed to consider the documents on record in its proper
perspective and passed the erroneous order dated
24.9.2019.
. The learned counsel for the petitioner submits that
date of birth of frst child of the petitioner namely Rahul
is 24.4.2001 and date of birth of second child namely
Suraj is 26.8.2003. Said third child namely "Surbhi" is
borne on 5.7.1998. She is daughter of Gautam Bhise
and his frst wife Meenabai @ Sakharbai w/o Gautam
Bhise. Marriage between Gautam Bhise and said
Meenabai @ Sakharbai came to be dissolved by a decree
of divorce by mutual consent. Thereafter, said Gautam
Bhise married with the petitioner Sagarbai, who has
given birth to two children namely Rahul and Suraj i.e.
on 24.4.2001 and 26.8.2003, respectively. "Surbhi" is
not biological child of the present petitioner. Thus, due
to said third child "Surbhi", the learned District Judge-1
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Hingoli ought not have disqualifed the present
petitioner. The Birth report prepared by Nagarparishad,
District Washim shows the correctness of the date of
birth of the above referred children as well as birth
register of the offce of the Anganwadi also shows the
correctness of the date of birth of above referred
children.
8. Learned counsel for the petitioner submits that,
certifcates issued by the Village Development Offcer,
Offce of Grampanchayat of Kanhergaon Naka dated
11.4.2017 shows that as per the entry of the offce of the
Grampanchayat "Surbhi" is daughter of Sakharbai
Gautam Bhise. The learned counsel submits that birth
certifcates issued by Washim Municipal Council,
wherein, date of births 24.4.2001 and 26.8.2003 are
recorded in respect of the children namely Rahul and
Suraj and both birth dates are true and correct,
whereas, birth certifcates issued by Reynonds Memorial
Hospital, Washim, wherein the date of birth 5.7.1998 is
shown, and the Head Master of Mahatma Phule High
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School Kanhergaon Naka has issued the First
Admission Report, wherein the birth dates 24.4.2001
and 26.8.2003 are also shown.
9. The learned counsel submits that E.P. no.14 of
2017 under section 27 of the Act of 1961 is not tenable
before the District Judge and proper remedy is only to
approach the Divisional Commissioner under section 40
(2) of the Act of 1961. Learned counsel for the applicant/
petitioner submits that the petitioner has also therefore
fled an application to review the order dated 21.3.2018.
in writ petition no.9882 of 2017. The learned counsel for
the petitioner submits that his writ petition so also the
review application thus deserves to be allowed.
10. Learned counsel for the applicant/petitioner, in
order to substantiate his contentions placed reliance on
following cases :-
i. Santosh Chandansingh Rawat Vs. Divisional
Commissioner, Nagpur and others reported in 2009
(6) Mh.L.J. 828.
ii. Gautam Rama Latke Vs. The State of Maharashtra
and others reported in 2019 (1) ALL MR 318.
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11. The learned A.G.P. appearing for the respondent
State submits that the learned District Judge-1, Hingoli,
after considering the documents on record correctly
passed the impugned order dated 24.9.2019. The
learned District Judge-1, Hingoli has rightly considered
the evidence adduced by the witnesses and on perusal
of the documentary evidence has rightly come to the
conclusion that the present petitioner is having three
children and her youngest son Suraj born to her after
the cut-off date 12.9.2001. Therefore, the petitioner thus
incurred disqualifcation under section 16(1)(n) of the
Act of 1961. The learned AGP submits that the petitioner
by playing a fraud has produced false school record
before the Returning Offcer at the time of deciding the
objection application dated 2.2.2017. The petitioner has
admitted before the Returning Offcer that "Surbhi",
Rahul and Suraj are her own children, and, now, she
has taken a stand that "Surbhi" is not her biological
child, but her step child. The birth entries of three
children of the petitioner have been entered in the
record of the Municipal Council, Washim. Said record
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shows that the petitioner has given birth to three
children, who born to her on 5.7.1998 (Surbhi),
24.4.2001 (Rahul) and 26.8.2003 (Suraj). Said
certifcates issued by Municipal Council, Washim shows
the name of the mother as Sagarbai Gautam Bhise and
name of the children as "Surbhi", Rahul and Suraj. It
appears that the petitioner has manipulated the dates of
birth of their children in Village Panchayat Record and
School Record which is run by the Gautam Bhise-the
husband of the petitioner. The learned AGP submits
that the petitioner has not approached before this court
with clean hands. There is no substance in this writ
petition and the review application and the same are
liable to be dismissed.
12. I have heard the learned counsel appearing for
respondent no.3.
13. I have also heard learned counsel for respondent
no.4. He has supported the judgment and order passed
by the learned District Judge-1, Hingoli. He has
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adopted the submissions made on behalf of the
respondents/State by the learned AGP.
14. I have carefully perused the reasons given to issue
nos.1 and 2 by the learned District Judge-1, Hingoli
while deciding the Election Petition. PW-1 Devidas
Ramkisan Gawande (respondent no.4 in writ petition
no.13217 of 2019) has testifed himself in the Election
Petition and deposed that respondent no.1 Sagarbai
(petitioner herein) is having three children and her third
son Suraj Gautam Bhise born to her after the cut-off
date. However, he has no personal knowledge and the
learned District Judge has rightly observed that his
evidence is not much helpful that "Surbhi" is whether
daughter of the respondent no.1 Sagarbai (petitioner
herein). However, the respondent no.4 in writ petition
i.e. Devidas Ramkisan Gawande (petitioner in election
petition) has examined PW-2 Ganesh Shete, Chief
Executive Offcer to prove the entries at exh.55, 56 and
57 which shows that the entry at sr. no.1651 was taken
on 13.7.1998 showing birth of a girl child on 5.7.1998 in
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Renault Memorial Hospital, Washim, entry at sr.no.297
was taken on 31.5.2001 showing birth of a male child on
24.4.2001 at Sarda Hospital, Washim and entry at sr.
no.896 is made on 30.8.2003 showing birth of a male
child on 26.8.2003 at Sarda Hospital to Sagarbai w/o
Gautam Bhise (petitioner herein). The birth certifcates
exhibit 114, 115 and 116 issued on the basis of those
entries in the birth registers also show that respondent
no.1-Sagarbai (petitioner herein) has given birth to
above 3 children, eldest one amongst them is female
child and their date of births are 5.7.1998, 24.4.2001
and 26.8.2003, respectively.
. Though, DW-1 Sagarbai has admitted that her
parental village is at Songavan Tq. and District Washim,
however, she has denied that she gave birth to her frst
child "Surbhi" in Reynolds Memorial Hospital, Washim
and also birth of her other two children namely Rahul
and Suraj in Sarda Hospital, at Washim. However, she
has not disclosed then in which hospital she gave birth
to her admitted two children Rahul and Suraj. The
learned District Judge has, therefore, rightly observed
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that, there is no reason to discard the birth certifcates
exh.115 and 116 of her admitted children Rahul and
Suraj and also exh.114 of disputed girl child of the
petitioner Sagarbai. The evidence led by the (petitioner)
Sagarbai is not suffcient to rebut the presumptions
arising out of said birth certifcates. Further, as per the
evidence of DW-1 Sagarbai her marriage was performed
with Gautam Bhise on 19.5.1997. She has admitted in
the cross-examination that in the nomination form she
has shown "Surbhi", Rahul and Suraj as dependent
upon her. In the nomination form exh.72 she has
admitted that she is having 3 children (not 2 children as
claimed) and names of these 3 children are "Surbhi",
Rahul and Suraj and in the declaration on affdavit, it
was disclosed that none of the children born to her after
cut off date 12.9.2001.
15. Petitioner Sagarbai has also examined DW-2
Bhujang Shesherao Sonkamble, Secretary of Village
Panchayat, Kanergaon to prove birth certifcate exh.82
and birth entry exh.84 in the Register of Births from
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record of village Panchayat to show that "Surbhi" is born
on 5.7.1997 and names of her parents are Sakharabai
and Gautam Bhise. However, said DW-1 Bhujang has
admitted that birth certifcate exh.82 does not bear
serial number of birth register. The learned District
Judge-1, Hingoli has rightly considered the scorings on
the birth date of daughter of Sakhrabai Gautam Bhise
mentioned it as '5.7.1997' from original date '5.7.1998'
and date of recording of entry is scored '15.8.1998' from
'15.8.1997.' The learned District Judge-1, Hingoli has
rightly observed that, if the female child "Surbhi" of
Sakhrabai Gautam Bhise was born on 5.7.1997 (date
scored from 5.7.1998), then her birth entry would not
have been taken on 15.8.1997 (prior to her birth as it is
scored from 15.8.1998) between two entries dated
15.8.1998 and 27.8.1998 of other children. I have also
carefully gone through the said entries and evidence of
DW-2 Bhujang. It appears that the petitioner herein
Sagarbai alongwith her husband, who is the Member of
village Panchayat have manipulated the dates of birth of
their children in the village Panchayat Record and
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school record which is run by Gautam Bhise only to
overcome from disqualifcation. I fully agree with the
observations made by the learned District Judge-1
Hingoli in paragraph no.27 of the judgment.
16. Though, the petitioner Sagarbai has examined
DW-3 Gautam Bhise i.e. her husband and DW-6
Sakharabai @ Minabai and even though they have
deposed about divorce, however, DW-3 Gautam and DW-
6 Meenabai @ Sakharbai have admitted that said DW-6
Minabai was working as a Peon in the School of DW-5
Gautam Bhise. They have also admitted that there is no
single document either Aadhar Card, Ration Card or
entries in the service book of DW-6 Minabai to show
that name of DW-6 Minabai is 'Sakharabai' and name of
her former husband was Gautam Bhise. There is no
evidence to prove the marriage between Minabai @
Sakharabai and Gautam Bhise. DW-3 Gautam Bhise/
husband of the petitioner has also shown name of
mother of Surbhi as 'Sagrabai' which is the name of the
present petitioner.
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17. Further, it appears that the petitioner has placed
reliance on a divorcee deed exh.89, which is shown to
have been executed on 5.1.1998. It is mentioned in the
said deed that "Surbhi" is 6 months of age is daughter
of DW-3 Gautam Bhise and DW-6 Minabai @
Sakharabai and her custody was given to Gautam
Bhise. However, said divorce deed is notarized
document. There is a manipulated entry of date of birth
of "Surbhi". The learned District Judge-1, Hingoli, has,
therefore, rightly observed that divorcee deed exh.89 is
anti dated created document after fling of the Election
Petition on back dated stamp paper. The learned
District Jude-1, Hingoli has rightly come to the
conclusion that the respondent no.1 (petitioner herein)
has incurred disqualifcation under section 16(1)(n) of
the Act of 1961 and she is not entitled to contest the
election as a Councilor of Zilla Parishad, Hingoli.
18. Learned counsel for the petitioner submits that in
terms of the provisions of Section 27 of the Act of 1961,
the Election Petition as against disqualifcation incurred
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is not tenable and proper remedy is only to approach the
Divisional Commissioner in terms of Section 40 of the
Act of 1961. Learned counsel submits that the
impugned judgment and order passed in the Election
Petition No.14 of 2017 is thus liable to be quashed and
set aside on this ground alone. Learned counsel for the
petitioner submits that, so far as the order passed in
Writ Petition no.9882 of 2017 preferred by the petitioner
Sagarbai is concerned, the petitioner has also fled
Review Application No.71 of 2022 in writ petition
no.9882 of 2017. The same is tagged with the present
Writ Petition no.13217 of 2019.
19. It is to be mentioned here that the petitioner when
the learned District Judge-1, Hingoli has decided the
Election Petition no.14 of 2017 against her, conveniently
with oblique motive fled Review Application no.71 of
2022 to review the order passed in writ petition no.9882
of 2017, which has invited by her.
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20. In view of the above challenge, I fnd it appropriate
to mention the relevant provisions of Section 16(1)(n),
Section 40 and Section 27 of the Act of 1961.
Section 16. Disqualifications :-
(1) Subject to the provisions of sub-section (2), a person shall
be disqualified for being chosen as, and for being, a
Councilor, -
(a) .......
to
(m)..........
(n) if he has more than two children ;]
S. 27. Determination of validity of elections; enquiry by
Judge; Procedure. -
(1) If the validity of any election of a Councilor or the
legality of any order made or proceedings held under section 26
is brought in question by any candidate at such election or by
any person qualified to vote at the election to which such
question refers such candidate or person may, at any time within
fifteen days after the date of declaration of the result of the
election or the date of the order or proceeding apply to the
District Judge of the district within which the election has been
held, for the determination of such question.
(2).......................................................................................(3)
.......................................................................................(a)
.......................................................................................
(b).......................................................................................(4)
.......................................................................................(a)
.......................................................................................(b)
.......................................................................................
(5) (a) If on holding such enquiry, the Judge finds that a
candidate has, for the purpose of election, committed a
corrupt practice within the meaning of sub-section (6) or
submitted a false claim or a false Caste Certificate, he shall
declare the candidate disqualified for the purpose of that
election and of such fresh election as may be held under
sub-section (2) and shall set aside the election of such
candidate if he has been elected.
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Section 40:Disqualification of Councilor during term of office
(1) Subject to the provisions of sub-section (2) of section 62, if
any Councilor during the term of his office, -
(a) becomes disqualified under sub-section (1) [1] [or (4)] of
section 16, or
(b) is, for a period of six consecutive months (excluding in the
case of the presiding authority the period of leave duly
sanctioned) without the permission of the Zilla Parishad,
absent from meetings thereof [2] [or is absent from such
meeting for a period of twelve consecutive months],
the office of such councilor, shall, notwithstanding anything
contained in clause (c) [3] [* * * * * *] of sub-section (1) of
section 9 become vacant.
[4] [* * * * * *]
[5] [(2) If any question whether a vacancy has occurred under
this section is raised either by the Commissioner suo motu
or on an application made to him by any person in that
behalf, the Commissioner shall decide the question [6] [as
far as possible] within ninety days from the date of receipt
of such application; and his decision thereon shall be final.
Until the Commissioner decides that the vacancy has
occurred, the Councilor shall not be disabled from
continuing to be a councilor :
Provided that, no decision shall be given against any
Councilor without giving him a reasonable opportunity of
being heard.]
21. In a case of Santosh Chandansingh Rawat Vs.
Divisional Commissioner, Nagpur (Supra) relied upon
by the learned counsel for the applicant/petitioner, the
challenge in the LPA was to the judgment delivered by
the learned Single Judge dismissing the writ petition
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no.2819 of 2009. The appellant has raised the challenge
on two grounds and alternative ground is important for
the present discussion. The appellant in the said LPA
has raised the point that such ground of disqualifcation
may at the most be relevant in election petition, but
same cannot in these circumstances be viewed as
incurred during the term of his offce as Councilor.
Thus, locus of respondent no.3 for move to for
declaration of disqualifcation under section 40 also,
assailed. In the backdrop of these facts, in paragraph
no.8 the Division Bench of this Court has made
following observations :-
"8. Question whether action for removal on account of such
continuing disqualification must be sought only under
Section 27 through election petition and, it cannot be done
via Section 40 also calls for scrutiny. Order dated 16-1-2009
passed by this court in writ petition 2016/2008 gave liberty
to Respondent No.3 to file fresh application under Section
40 before Respondent No.1 Commissioner. That Writ
Petition was filed by present Respondent No.3 challenging
order of Commissioner rejecting his earlier application
under Section 40 on the ground that contract was already
completed by present Appellant and only because the
payment was delayed for want of funds, receipt thereof by
Appellant after his election would not be a ground for
disqualification under Section 16 (1) (i). In that writ petition,
present Appellant contended that because of provisions of
Article 243-O(b) of the Constitution of India, his election
could not have been set aside except through election
petition under Section 27. He contended that Section 40 was
therefore not available. These arguments are considered by
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this Court and it found that Commissioner can declare him
disqualified if he is incurred such disqualification during the
term of the office i.e. after he entered the office. The
Commissioner is held not to have power to declare his
election illegal or invalid or to quash that election. It is
therefore found that application then filed seeking to set
aside election of Appellant was not tenable. Then it was
pointed out to this Court that as receipt of payment after
election revealed his interest, Appellant could have been
disqualified even suo motu by Commissioner. The then
learned Single Judge applied his mind to various authorities
like Chaturbhuj Vithaldas Jesani vs. Moreshwar Parashram
& Others (supra), Dattatraya Narhar Oitale vs. Vibhakar
Dinkar Gokhale and another, 1975 Mh.L.J. 701, Dinkar
Ananda Deore vs. Shantaram Punaji and others. 1981 Mh.
L.J. 673 and Indumati Laxman Bhakre vs. State of
Maharashtra (supra) in paragraph 9 and concluded-- "All
these authorities support the contention of the Petitioner in
respect of the interest by way of contract even if work is
completed, when payment is yet to be made by Municipal
Council or the Zilla Parishad or by the concerned
Government or Government body". Present Respondent No.
3 was the Petitioner in Writ Petition No.2016/2008. In
paragraph 10, it is also noticed that objection by present
Appellant to earlier application under Section 40 was
because of its form. In paragraph 11, leave was given to said
Petitioner to file fresh application under Section 40 with
direction to Commissioner to dispose it off within 90 days.
All the objections /contentions of the parties have been left
open for consideration by Commissioner. Thus, finding that
an interest in work though completed subsisted if payment
was not made is recorded in paragraph 9 and then liberty has
been given. Hence, as liberty is given after hearing both
sides and after recording of finding, present Appellant
cannot in subsequent proceedings contend that even such
application under Section 40 not touching his election in any
way, is not maintainable. It may be pointed out here that in
fresh application filed by present Respondent No. 3,
Appellant raised preliminary objection about this locus and
then approached this Court in Writ Petition No.2952/2008
and sought direction to Commissioner to decide it. That writ
petition was withdrawn on 15-6-2009. Appellant has already
filed the Writ Petition No. 3783/2008 challenging
constitutionality of Section 40 (2) as it enables any person to
seek disqualification. This Court has issued notice before
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admission in said matter on 15-1-2009. In any case, as the
interest in work done survives during the term of office of
Appellant, Section 16 (1)(i) is clearly attracted and hence,
remedy under Section 40 of 1961 Act is rightly availed by
Respondent No. 3. Section 40 does not prescribe any new
disqualification but it lays down the procedure once
disqualification under section 16(1)(i) is found to be
incurred or continued or available during the term of office.
The words "and for being" in opening part of section 16(1)
stipulate existence of very same interest which disqualifies
its holder for election also as bar for continuing as Councilor
after the election. It is continuation of that interest which
operates as disqualification and it does not require accrual of
such interest again after the election. Continuing possession
of such interest after election is sufficient without anything
more. Interest which disqualifies at threshold can not cease
automatically because of a successful election. Section 16
does not specify the work as disqualification but it is interest
in it and if interest continues even after the election is over,
the legislature has made provision in Section 40 for removal
of its holder to avoid conflict in interest and duty. By
providing disqualifications for getting elected and even for
continuing in the same section and then by providing
separate remedies for removal of such hostile Councilors
from the Zilla Parishad, legislature has provided a complete
scheme which needs to be preserved and protected.
Difference in nature of remedy under Section 27 and Section
40 cannot be used to defeat the otherwise clear legislative
mandate so as to enable Appellant to continue as Councilor."
22. In a case Gautam Rama Latke Vs. State of
Maharashtra (supra) (Coram Ravindra V. Ghuge, J.),
relied upon by the learned counsel for the applicant, In
this case also the view expressed by the Division Bench
of this Court has been referred in the aforesaid case of
Santosh Rawat Vs. Divisional Commissioner, Nagpur
(supra).
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24 RA 71.2022 with WP 13217.19.odt
23. In the concluding expressions, the Division Bench
in the case of Santosh Rawat Vs. Divisional
Commissioner, Nagpur (supra) has observed that by
providing disqualifcations for getting elected and even
for continuing in the same section and then by
providing separate remedies for removal of such hostile
Councilors from the Zilla Parishad, the legislature has
provided a complete scheme which needs to be
preserved and protected. Difference in nature of remedy
under section 27 and Section 40 cannot be used to
defeat the otherwise clear legislative mandate so as to
enable Appellant to continue as Councilor.
24. In the cited case there are no observations
whether Election Petition under section 27 would be or
would not be maintainable.
25. Further, it is pertinent that the petitioner Sagarbai
Gautam Bhise has preferred Writ Petition no.9882 of
2017 against rejection of the preliminary objection in
application No.34 of 2017 raised by her before the
Additional Divisional Commissioner, Aurangabad
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25 RA 71.2022 with WP 13217.19.odt
Division, Aurangabad fled by Ramesh Ramesh Mariba
Kamble. Petitioner Sagarbai Bhise has fled said
objection about the maintainability of the petition and
has raised contention that section 27 of the Act of 1961
permits an Election Petition to be fled before the
learned District Judge, which is already fled and,
therefore, fling of the application no.34 of 2017 before
the Additional Divisional Commissioner, Aurangabad
Division, Aurangabad is not maintainable. The
petitioner when, the learned District Jude had decided
the Election Petition against her, has preferred Review
Application no.71 of 2022 to review the order passed by
this Court in the aforesaid writ petition no.9882 of 2017.
26. Furthermore, as discussed above, there is no
specifc bar as such to consider the issue of
disqualifcation by way of fling the Election Petition. In
terms of the provisions of sub-section 5(a) of section 27
of the Act of 1961 if the validity of any election of a
Councilor or the legality of any order made or
proceedings held under section 26 is brought in
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26 RA 71.2022 with WP 13217.19.odt
question, [by any candidate at such election or by] any
person qualifed to vote at the election to which such
question refers [such candidate or person] may, at any
time within the period as stipulated therein, on holding
such inquiry the Judge fnds that candidate has for the
purpose of election committed corrupt practice within
the meaning of sub-section (6) or submitted a false
claim or false caste certifcate, the Judge shall declare
the candidate disqualifed for the purpose of that
election and such fresh election shall be held under
sub-section (2) and shall set aside the election of such
candidate if he has been elected.
27. It is clear from the observations made in Santosh
Rawat's case (supra) that for removal of such hostile
Councilors from the Zilla Parishad, legislature has
provided a complete scheme which needs to be
preserved and protected. Difference in nature of remedy
under Section 27 and Section 40 cannot be used to
defeat the otherwise clear legislative mandate so as to
enable the Appellant to continue as Councilor.
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27 RA 71.2022 with WP 13217.19.odt
28. In view of the discussion above, I fnd no merit in
the Review Application so also the Writ Petition. Both
are liable to be dismissed. Hence, following order.
ORDER
i. Review application no.71 of 2022 in Writ
Petition No.9882 of 2017 is hereby dismissed.
ii. Writ Petition no.13217 of 2019 is hereby
dismissed.
( V.K. JADHAV, J. )
...
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