Gunwanti W/O. Sheshrao Wankhede vs The Divisional Commissioner, ...
2022 Latest Caselaw 11369 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 2861 OF 2021
                   ( Gunwanti W/o Sheshrao Wankhede
                                   Vs.
     The Divisional Commissioner, Amravati Division, Amravati & Ors. )

Office Notes, Office Memoranda                            Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. A.B. Mirza, Advocate for the Petitioner.
                                  Mr. N.R. Patil, A.G.P. for the Respondent Nos. 1 & 2/State.
                                  Mr. A.S. Thotange, Advocate for the Respondent No.3.



                                  CORAM:         AVINASH G. GHAROTE, J.

DATED : 10th NOVEMBER, 2022.

Heard Mr. Mirza, learned counsel for the petitioner, Mr. Patil, learned AGP for the respondent Nos. 1 and 2/State and Mr. Thotange, learned counsel for the respondent No.3.

2. Mr. R.K. Ghangare, learned counsel for the respondent No. 4 is absent.

3. The petition raises an interesting question, as to whether Section 14(1)(j-5) of the Maharashtra Village Panchayats Act (hereinafter to be referred as the "MVP Act" for short), requires the submission of any of the certificates as mentioned therein or whether the requirement is of submitting a certificate of a concerned panchayat and any one of the certificates as indicated by the later part of the provision.

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4. Mr. Mirza, learned counsel for the petitioner, by relying upon the judgment in Sushila Sukram Naik Vs. The State Election Commission Maharashtra State & others, Writ Petition No. 3595/2019 decided on 14.03.2019 submits, that what is required is one of any of the certificates as mentioned in Section 14(1)(j-5) of the MVP Act and since the certificate of the concerned panchayat was submitted, which certifies that the petitioner was having a toilet in his house and was using it, that would suffice the requirement to the provision, and therefore, the disqualification of the petitioner on account of violation of the mandate of Section 14(1)(j-5) of the MVP Act, as held by both the Authorities below was not justified, in view of which, the order of the Collector dated 09.03.2021 and that of the Divisional Commissioner dated 12.07.2021 in appeal were required to be quashed and set aside.

5. As against this, Mr. Patil, learned AGP for the respondent Nos. 1 and 2/State and Mr. Thotange, learned counsel for the respondent No.3 support the impugned orders and contend, that the requirement of Section 14(1)(j-5) of the MVP Act, is two fold : the first requirement being the submission of a certificate of the concerned panchayat and the second requirement being submission of the resolution of the Gram Sabha or of the Chief Executive Officer or an officer designated by him; or a self certificate. It is contended, that unless both these requirements are satisfied, the mandate of Section 14(1) (j-5) of the MVP Act, cannot be held to be fulfilled.

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Reliance is placed upon the judgment of this Court in Suresh Atmaram Shirsat Vs. The Divisional Commissioner, Amravati & others, Writ Petition No. 2218/2018 decided on 09.08.2018 (page 67) and Karishma Gautam Pagare Vs. Suman Madhukar Kharat & Ors., Writ Petition (Stamp) No. 23252/2018 decided on 30.08.2018 (page 57).

6. For the purpose of considering the controversy, it is necessary to see the language of Section 14(1)(j-5) of the MVP Act, which for the sake of ready reference is reproduced as under :

"Section 14(1)- No person shall be a member of a panchayat continue as such, who-

(j-5) - fails to submit a certificate of the concerned panchayat, alongwith the resolution of the Gram Sabha or of the Chief Executive Officer or an officer designated by him; or a self certificate certifying that, -

(i) he resides in a house owned by him and has a toilet in such house and he regularly uses such toilet; or

(ii) he resides in a house not owned by him and has a toilet in such house and he regularly uses the public toilet: "

7. A reading of the language of Section 14(1) (j-5) of the MVP Act indicates, that the requirement is not either of the certificates but two fold : the first requirement being a certificate of the concerned panchayat and the second requirement being either the 4 6.WP.2861-2021.odt

resolution of the Gram Sabha or of the Chief Executive Officer or any other officer designated by him or a self certificate. This is clearly indicated by the use of the word "alongwith" after the first requirement of certificate of the concerned panchayat as occurring in Section 14(1) (j-5) of the MVP Act. The word "along", would mean in company or association with; and the word "with" also indicates in the company of, associated with, beside, and therefore, both the words in conjunction with each other would indicate an addition and not alternate mode, and therefore, the word "alongwith" would indicate reassertion of the existence of both the requirements. Had this not been the case the legislature while amending the said provision by virtue of the Maharashtra Act 28 of 2017 by way of Section 2 therein with effect from 31.01.2017, would have deleted the word "alongwith" as occurring in Section 14(1)(j-5) of the MVP Act. However, that does not appear to have been done, which would clearly indicate, that even after the amendment since the word "alongwith" has been retained in the provision, considering the meaning of the said word, it can only be held that though the requirement of submitting a resolution of the Gram Sabha or of the Chief Executive Officer or an officer designated by him or a self certificate, is an alternate requirement within itself, this has to be in addition to the requirement of submitting a certificate of the concerned panchayat. Read otherwise, the word "alongwith" would clearly lose its significance and would give a totally different texture and meaning to the provision not 5 6.WP.2861-2021.odt

contemplated by it. Thus, the requirement of Section 14(1)(j-5) of the MVP Act, has to be held to be two fold :

(i) the submission of a certificate of the concerned panchayat and (ii) anyone of the three namely resolution of the Gram Sabha or of the Chief Executive Officer or an officer designated by him or a self certificate.

8. The position that Section 14(1)(j-5) of the MVP Act, was mandatory and has been considered by this Court in Suresh Atmaram Shirsat (supra), which also considers the amendment to Section 14(1)(j-5) of the MVP Act by virtue of the notification dated 15.04.2017 with effect from 31.01.2017, the date of the earlier ordinance. Similar is the position as reflected from Karishma Gautam Pagare (supra), where the learned Court after having considered the amended provisions, has held that the certificates are mandatory.

9. In the instant case, the petitioner, has only filed a certificate by the Gram Sewak, which is not the compliance with the requirement of Section 14(1)(j-5) of the MVP Act as indicated above.

10. Sushila Sukram Naik (supra), relied upon by the petitioner, is on an incorrect premise as is indicated by the reading of para 14 which holds, that the requirement of the certificate of the concerned Gram Panchayat to be accompanied with the resolution of Gram Sabha is done away with, which is not the position as is reflected from the language of Section 14(1)(j-5) of the MVP Act. Moreover, the same relies upon a 6 6.WP.2861-2021.odt

clarification dated 31.01.2017 as quoted in para 13 thereof, and it is a settled position of law, that any clarification issued by the Rural Development Department, cannot have the effect of overriding the statutory provisions as contained in Section 14(1)(j-5) of the MVP Act. Sushila Sukram Naik (supra), therefore is clearly not applicable.

11. That being the position, reiterating the fact, that in the instant case, what has been filed by the petitioner alongwith the nomination, is merely a certificate of the Gram Sewak, that by itself cannot be held to be the compliance with the requirement of Section 14(1)(j-5) of the MVP Act, in view of which, I do not see any reason to interfere in the impugned orders.

12. There is no merit in the petition, the same is dismissed. No costs.

13. Though a request is made by Mr. Mirza, learned counsel for the petitioner, to continue the interim relief granting protection to the petitioner, however in view of the fact, that the petitioner has not complied with the statuary requirement, and therefore, has been held to be disqualified, I am not inclined to accept the request. The same is therefore rejected.

Signed By:SHRIKANT DAMODHAR BHIMTE JUDGE Signing Date:11.11.2022 18:04 SD. Bhimte