Tanaji Jagannath Palave vs The State Of Maharashtra Through ...
2022 Latest Caselaw 2809 Bom

                                                                     wp.4784.21.doc


Ajay           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO. 4784 OF 2021

       Shri. Tanaji Jagannath Palave
       Age : 46 years, Indian Habitant,
       Occupation : Agriculturist, residing at
       Mandave, Taluka : Malshiras,
       District : Solapur.                                 .. Petitioner

             Versus

       1. The State of Maharashtra
          Through the Department of Gram Vikas
          Having office at Mantralaya,
          Mumbai 400 032.
       2. The Collector, Solapur, Having
          Office at Solapur.
       3. The Tahsildar, Malshiras, Having
          Office at Malshiras.
       4. The State Election Commission,
          Having office at New Administrative
          Building, Opp. Mantralaya, Mumbai.
       5. Nagarabai Jaywant Palave
          Age : 60 years, Occu: Housewife,
          Residing at Mandave, Taluka Malshiras,
          District : Solapur.
       6. Nagarabai Tanaji Palve
          Age : Adult, Occu: Housewife,
          Residing at Mandave,
          Taluka : Malshiras, District : Solapur.          .. Respondents
                                  ....................
        Mr. Sarang S. Aradhye, Advocate for the Petitioner.
        Mr. A.A. Kumbhkoni, Advocate General a/w. Mr. P.P. Kakade, GP
         and Mr. A.I. Patel, AGP for the State.
        Mr. Rupesh K. Bobade, Advocate for Respondent No.5.
        Mr. Milind Shambharkar, Collector, Solapur present by Video
         Conferencing.
                                     ...................


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                                                                    wp.4784.21.doc


                                 CORAM : S. J. KATHAWALLA &
                                         MILIND N. JADHAV, JJ.

DATE OF RESERVED : 06.09.2021 DATE OF PRONOUNCED : 23.03.2022.

JUDGMENT: (Per : S.J. Kathawalla & Milind N. Jadhav, JJ.)

. By the present petition, the Petitioner has, inter alia, prayed

for the following reliefs:

"B. That by appropriate orders as well as directions of this Hon'ble Court, the record and proceedings in respect of the Dispute Application (Dispute Application No. 01/2021) on the file of the Respondent No. 2 the Collector, Solapur be called for;

C. That after going through the same, by appropriate Writ, Order as well as directions of this Hon'ble Court the impugned order dated 18/02/2021 passed by the Respondent No. 2 the Collector, Solapur which was received by the Petitioner on 23/02/2021 thereby rejecting Dispute Application filed by the Petitioner be quashed and set aside;

D. That by appropriate orders as well as directions of this Hon'ble Court the Dispute Application filed by the Petitioner before the Respondent No. 2 Collector, Solapur pursuant to the provisions of the Section 14(b) of the Maharashtra Village Panchayats Act be kindly allowed and the Respondent No. 5 be disqualified from the Post of Member of the Village Panchayat, Mandave, Taluka Malshiras, District, Solapur forthwith."

2. The Petitioner is the elected Member of Panchayat Samiti

from Ward No.5 of Village Panchayat - Mandave, the election to which

was held on 15.01.2021. In the same election Respondent No.5 was

also declared elected as Member from Ward No.4.

3. It is the Petitioner's case that Respondent No.5 was

disqualified from contesting election for a period of 5 years by order

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dated 14.06.2016 passed by the then Collector, Solapur under Section

14B of the Maharashtra Village Panchayats Act, 1958 ("the said Act").

Despite the subsistence of the said order, Respondent No.5 contested

the election from Ward No.4 of Village Panchayat - Mandave on

15.01.2021 by misrepresentation and fraud and was elected.

Petitioner has therefore, inter alia, prayed for disqualification of

Respondent No.5.

4. Before we advert to the submissions made by the respective

Advocates, it will be apposite to refer to the relevant facts briefly.

4.1. General Election for the term 2015-2016 to 2020-2021 of

Panchayat Samiti - Mandave was held in the year 2016. Respondent

No.5 - Nagarabai Jaywant Palave contested the said election. After the

election was over, Respondent No.5 failed to submit the election

expenses within the prescribed time limit; Respondent No.3 -

Tahsildar, Malshiras therefore filed Dispute Application No.4091 of

2016 before the Collector, Solapur for seeking disqualification of

Respondent No.5 under Section 14B of the said Act.

4.2. Two show cause notices dated 07.05.2016 and 24.05.2016

were issued by the Tahsildar calling upon the Respondent No.5 -

Nagarabai Jaywant Palave to attending the hearings on 13.05.2016

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and 03.06.2016. The notices were received by Rajendra Jaywant

Palave, son of Respondent No.5. By reply dated 03.06.2016

Respondent No.5 - Nagarabai Jaywant Palave informed the Election

Returning Officer that her son Rajendra Jaywant Palave will submit

the election expenses, but failed to submit the same.

4.3. By a speaking order dated 14.06.2016 the Collector,

Solapur allowed the Dispute Application and passed an order

restraining the Respondent No.5 from contesting the Grampanchayat

election or become a Member of the Grampanchayat for a period of 5

years from the date of the order. However, in this order the name of

the Respondent No.5 as appearing in the cause title was mentioned as

Nagarabai Tanaji Palave, whereas in entire order the reference to the

Respondent No.5 was made as "Opponent".

4.4. General election for Panchyat Samiti - Mandave for the term

2020-2021 to 2025-2026 were announced in the year 2020.

Respondent No.5 - Nagarabai Jayawant Palave filed her nomination

form and contested the election. Respondent No.5 filed a specific

declaration in part II of Form A under Rule 8 of the Maharashtra

Village Panchayats Rules, 1959, declaring that she has not been

disqualified as a Member of the Grampanchayat for contesting the

election under the provisions of section 14B or Section 16 of the said

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Act. The Election Returning Officer scrutinized the said form despite

there being a specific complaint of the Petitioner that by virtue of the

order dated 14.06.2016, the Respondent No.5 stood disqualified and

was ineligible to contest the said election. The Election Officer

certified that the disqualification order dated 14.06.2016 passed in

Dispute Application No.4091 of 2016 pertained to Nagarabai Tanaji

Palave and not the Respondent No.5 (Nagarabai Jaywant Palave) and

both the said persons were different; thus the Respondent No.5 was

considered eligible and her nomination form was accepted.

4.5. Petitioner filed Dispute Application dated 22.01.2021 under

Section 14B of the said Act before the Collector, Solapur seeking

disqualification of the Respondent No.5 on the ground that by an

order dated 14.06.2016 she was restrained from contesting election

for a period of 5 years from 14.06.2016 and to declare her election in

January 2021 as illegal and void.

4.6. Respondent No.2 - Collector by the impugned order dated

18.02.2021 rejected the Dispute Application and hence the Petitioner

approached this Court by the present Writ Petition.

5. Mr. Sarang S. Aradhye, learned Advocate appearing for the

Petitioner has taken us through the pleadings and has made the

following submissions:

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i. Respondent No.5 has taken advantage of the mistake

appearing in the cause title of the order dated 14.06.2016

wherein the name of the Opponent (i.e. Respondent No.5) is

typed as "Nagarabai Tanaji Palave"; that she stood

disqualified for a period of 5 years from 14.06.2016 and

despite the subsistence of the said order, she filed her

nomination in December, 2020;

ii. that "Nagarabai Jaywant Palave" and "Nagarabai Tanaji

Palave" are one and the same person; there is no person by

the name of Nagarabai Tanaji Palave residing in the

jurisdiction of Village Panchayat - Mandave and such a name

does not appear in the electoral roll of the said village; the

Collector, Solapur ought to have taken into consideration the

report and certificate dated 01.02.2021 and 03.02.2021

issued by the Talathi of Village Mandave and the Gramvikas

Officer of Grampanchayat - Mandave certifying this aspect;

iii. that Respondent No.5 has played a fraud; she was having

knowledge that she is disqualified from contesting the

election or becoming a Member of the Grampanchayat for a

period of 5 years from 14.06.2016; despite that Respondent

No.5 filed a false declaration before the Election Returning

Officer in December 2020 stating that she is not declared as

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ineligible from contesting election under Section 14 of the

said Act;

iv. that the impugned order passed by the Collector, Solapur in

paragraph No.5 clearly records a finding that there is no

person by the name of "Nagarabai Tanaji Palave" residing in

Village - Mandave, despite which the impugned order

proceeds on the basis that the disqualification order dated

14.06.2016 is against "Nagarabai Tanaji Palave" and not

against "Nagarabai Jaywant Palave".

5.1. Mr. Sarang Aradhye, learned Advocate has therefore prayed

for quashing and setting aside of the impugned order dated

18.02.2021 and consequential disqualification of the Respondent No.5.

6. PER CONTRA, Mr. A.A. Kumbhkoni, learned Advocate

General appearing alongwith Mr. P.P. Kakade, learned Government

Pleader and Mr. A.I. Patel, learned AGP appearing on behalf of State

has drawn our attention to the Affidavit-in-Reply dated 12.04.2021

filed by Mr. Milind Shambharkar, Respondent No.2 - Collector,

Solapur and has contended that the impugned order has been passed

after following the due process of law and the principles of natural

justice. It is submitted that by order dated 14.06.2016 "Nagarabai

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Tanaji Palave" was disqualified and not Respondent No.5 i.e.

Nagarabai Jaywant Palave; since Nagarabai Tanaji Palave stood

disqualified, her name was recorded in the Government Gazette dated

03.02.2017 as being disqualified. They have therefore prayed for

dismissal of the Petition.

7. We have perused the pleadings and considered the

submissions made by the respective Advocates. Submissions made are

on pleaded lines.

8. We may state that the disquieting facts in the present case

have dismayed us. Before we dwell to highlight the shocking facts in

the present case, it would be appropriate to quote the observations by

the Division Bench of this Court in the case of Sanjeev D. Devre and

Ors. Vs. State of Maharashtra and Ors.1, which refer to the decisions of

the Supreme Court in the case of United India Insurance Co. Ltd. Vs.

Rajendra Singh and Ors.2, and S.P. Chendgalvaraya Naidu Vs.

Jagannath3, in respect of fraud played upon by a litigant / party.

Paragraph Nos.12 to 14 of the said decision are relevant and

reproduced hereunder:

"12. Fraud and justice cannot co-exist. They do not dwell together. Fraus et jus nunquam co-habitant is pristine maxim which has never lost its temper all over the centuries.

1    [2004] 1 ALL MR 75 :: [2004] 4 Bom CR 302
2    2000 (3) SCC 581
3    AIR 1994 SC 853


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In (United India Insurance Co. Ltd Vs. Rajendra Singh and others) reported in (2000) 3 SCC 581, the Supreme Court applied the said maxim and quoted with approval observation of (Lord Denning in Lazarus Estates Ltd. Vs. Beasley) reported in (1956) 1 All ER 341 to the effect "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything. Castigating the Motor Accidents claims Tribunal and the High Court for not annulling the awards obtained by fraud, the Supreme Court observed (para 4 of the judgment).

"For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and peoples faith in the efficacy of the High Courts would corrode."

In (S. P. Chengalvaraya Naidu Vs. Jagannath) reported in A.I.R. 1994 S.C. 853, the Supreme Court has observed :

"Fraud avoids all judicial acts, ecclesiastical or temporal observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court whether superior or inferior. It can be challenged in any Court even in collateral proceedings."

13. In Ronald Hyacinth Mendosa Vs. State of Maharashtra a Division Bench of this Court (to which one to us, A. P. Shah, J., was a party) also had an occasion to consider the effect of a fraud, on administrative actions and/ or judgments obtained by fraud. Repelling that the contention that the petitioner aggrieved by an order of transfer based on a judgment of Administrative Tribunal, which is obtained by fraud, is required to approach the Administrative Tribunal at the first instance this Court observed:

"There cannot be any dispute about the proposition that the litigant is required to approach the Central Administrative Tribunal as the court of first instance in respect of the areas of law for which it has been constituted. However, when the party has approached this court complaining of fraud or collusion by another party resulting in an order which directly affects him, should the remedy under Article 226 be foreclosed. Surely this Court exercising jurisdiction under Article 226 is not powerless and would not hesitate to quash and set aside such order if it is convinced that the order was procured by fraud, collusion, misrepresentation, or suppression of material which would

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affect the very basis of the claim made before the Tribunal." A Special Leave Petition to appeal against this judgment was rejected by the Hon'ble Supreme Court.

14. The superior courts have a right and obligation to set aside the orders obtained by fraud and not allow perpetuation of the benefits obtained by fraud. This is all the more true where persons who exercise the police powers of the state are involved in and are beneficiaries of fraud committed by them. The respondent Nos.4 to 38 are appointed as State Excise Inspector. They exercise the police powers of the State to Supervise and regulate trade in liquor. Appointment of the persons of such posts, if obtained on the basis of fraud, cannot be sustained. The State wants to take appropriate action against them but doubts whether the orders passed by M.A.T., writ petition against one of which was summarily dismissed prevent it from enquiring into the allegations of fraud. We have no doubt that the State has a power to enquire and find out if any fraud is committed. If at all the State feels any constraints we hereby remove the shackles apparently faced by it making an enquiry whether the respondent Nos.4 to 38 (except respondent Nos.20 and

32) have obtained medical certificates fraudulently and holding appropriate enquiries against them."

9. While adverting to the facts of the present case, we may now

highlight our observations and findings:

i. there is a categorical finding in the impugned order dated

18.02.2021 that there is no person by the name of Nagarabai

Tanaji Palave residing in the jurisdiction of Village -

Mandave, Taluka - Malshiras; despite which, without

conducting any enquiry, the Respondent No.2 Collector has

given a conclusive finding that the order dated 14.06.2016

pertained to Nagarabai Tanaji Palave and not the

Respondent No.5;

ii. the Respondent No.2 - Collector in his Affidavit-in-Reply

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dated 12.04.2021 has categorically stated that "At the time

of hearing it is also found that there is no person by the

name of Smt. Nagarabai Tanaji Palve in the Village

Mandave, Taluka Malshiras, District Solapur, only Nagarabai

Jaywant Palave is resident of said Village."

iii. that admittedly there is only one "Nagarabai" i.e. Nagarabai

Jaywant Palave in existence;

iv. that before passing the order of disqualification dated

14.06.2016, Nagarabai Jaywant Palave was served with two

specific show cause notices for hearing on 07.05.2016 and

24.05.2016 issued by the Tahsildar; that both the said

notices were admittedly received by Rajendra Jaywant

Palave, son of Nagarabai; that by reply dated 03.06.2016

Nagarabai Jaywant Palave replied to the contents of the two

notices stating that her son Rajendra Jaywant Palave will

submit the election expenses on her behalf; that the

disqualification order dated 14.06.2016 is passed under

Section 14B of the said Act against "Nagarabai Jaywant

Palave" wherein there is a clear reference to the enquiry

conducted by the Collector, Solapur and the notices issued

to Nagarabai Jaywant Palave in respect of non-submission of

her election expenses; therefore Nagarabai Jaywant Palave

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admittedly stood disqualified and ineligible for contesting

election as Member for a period of 5 years from 14.06.2016.

Hence, it is beyond doubt that the disqualification order

dated 14.06.2016 is passed against Nagarabai Jaywant

Palave i.e. the Respondent No.5;

v. that the Respondent No.5 has taken undue advantage of the

incorrect name mentioned / typed in the cause title of the

disqualification order dated 14.06.2016 as "Nagarabai Tanaji

Palave" and the same name having been reflected in the

Government Gazette dated 03.02.2017 as having stood

disqualified; due to this mistake of having an incorrect name

reflected in the aforementioned two documents, Respondent

No.5 in 2020-2021 fraudulently filed her nomination and

stated that she had not incurred any disqualification and was

eligible for contesting the election.

10. From the material on record, it is clearly evident that

Respondent No.5 has taken undue advantage of the mistake occurring

in the mention of her name as "Nagarabai Tanaji Palave" in the cause

title her disqualification order dated 14.06.2016 and the Government

Gazette dated 03.02.2017 and is guilty of misrepresentation.

11. What is equally shocking is the fact that despite ample

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material on record, the Respondent No.2 - Collector has turned a blind

eye to the same; that it is the duty of the Respondent No.2, being a

statutory officer hearing an election Dispute Application under the said

Act to investigate and unearth the fraud on the basis of material placed

on record. In the present case, the fundamental fact is that no person

by the name of "Nagarabai Tanaji Palave" has appeared before the

Respondent No.2 while conducting his enquiry and hearing the

Dispute Application filed by the Petitioner in 2021; infact no person by

the name of "Nagarabai Tanaji Palave" could have appeared as no such

person exists.

12. We would also like to refer to the certificate dated

01.02.2021 issued by the Talathi of Village - Mandave clearly records

that no person by the name of "Nagarabai Tanaji Palave" exists in

Village - Mandave; similarly the certificate dated 03.02.2021 issued by

the Gramvikas Officer, Grampanchayat - Mandave states that since the

last 15 to 20 years no person by the name of "Nagarabai Tanaji Palave"

has been a resident of Village - Mandave and the name of "Nagarabai

Tanaji Palave" does not appear on the Grampanchayat Electoral Rolls

for the years 2015 as well as 2020.

13. Though the Respondent No.5 has appeared before us

through an Advocate she has chosen not to file any response / reply.

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In view of the above discussion and findings, we hold that the

declaration dated 28.12.2020 given by Respondent No.5 - Nagarabai

Jaywant Palave to the Election Returning Officer is a false declaration

since on the date of the said declaration Nagarabai Jaywant Palave

stood disqualified and was ineligible for contesting the election due to

the subsistence of the order dated 14.06.2016. We further hold that

the decision of the Election Returning Officer dated 31.12.2020 after

scrutiny of the application filed by Respondent No.5 to allow the

Respondent No.5 to contest the election as illegal and bad in law and

set aside the same; as a consequence of which the impugned order

dated 18.02.2021 passed by the Respondent No.2 - Collector

accordingly stands quashed and set aside. The election of the

Respondent No.5 in 2021 as the Member of the Grampanchyat i.e.

Panchayat Samiti - Mandave is therfore set aside. The Respondent

No.2 is directed to initiate appropriate steps against Respondent No.5 -

Nagarabai Jaywant Palave under the provisions of the said Act and /

or in accordance with law as deemed fit for misrepresentation and

fraud as observed hereinabove.

14. In view of the above directions and findings, the Writ

Petition stands disposed of. However, there shall be no order as to

costs.

[ MILIND N. JADHAV, J. ] [ S. J. KATHAWALLA, J.]

Digitally signed by AJAY TRAMBAK AJAY TRAMBAK UGALMUGALE UGALMUGALE Date: 2022.03.23 12:54:17 +0530 14 of 14