Bombay High Court
Pradip S/O Tekchand Shahare vs The State Election Commission ... on 4 January, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.23/2023
Pradip S/o Tekchand Shahare and others
-Vs.-
The State Election Commission through its Secretary, New Administrative
Building, Mantralaya, Mumbai and another
WRIT PETITION NO.68/2023
Hemant S/o Nilkantha Rathod
-Vs.-
The State of Maharashtra and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. R.K. Borkar, Advocate for the petitioners.
Mr. A.M. Deshpande, In-charge Government Pleader for respondent
Nos.2 & 3. (..in W.P. No.23/2023)
Mr. A.M. Jaltare, Advocate for the petitioner.
Mr. S.M. Ghodeswar, Assistant Government Pleader for respondent
Nos.1 to 3. (..in W.P. No.68/2023)
CORAM: A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.
DATE : 4.1.2023
Heard.
2. The challenge raised in these writ petitions is to the
communication dated 30.9.2022 issued by the Rural
Development Department of the State Government by which it
has been directed that in election for the post of Upa-Sarpanch,
the Sarpanch would have a right to vote and in case there being
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equality of votes, the Sarpanch would have further right of his
casting vote. The learned counsel for the petitioners submit that
granting such right to the Sarpanch to vote in case there being
equality of votes, is not in accordance with the provisions of
Section 33(6) of the Maharashtra Village Panchayats Act, 1959
(for short "Act of 1959"). The learned counsel have referred to
the interim orders passed in Writ Petition Nos.12/2023 and
8/2023.
3. Mr. Deshpande, learned In-charge Government Pleader
for the respondents has invited our attention to the judgment in
Writ Petition No.209/2018 with connected matter (Anjua W/o
Kalyan Gore V/s. The State of Maharashtra and others) decided
on 6.3.2018 at the Aurngabad Bench of this Court. It was held
therein that the prohibition to exercise the right of vote is only
against an officer who presides on the meeting for election of the
Upa-Sarpanch. There is no prohibition for the Sarpanch to vote
at the election of Upa-Sarpanch in the said Act. He, therefore,
submits that in view of the aforesaid decision, the challenge
raised by the petitioners has been considered and decided against
them.
4. We have heard the learned counsel for the parties and we
have perused the relevant provisions. It is seen from the
provisions of Section 33 of the Act of 1959 that Sub-Section (6)
has been inserted by Maharashtra Act 54 of 2018. As per the
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said provision whenever a meeting for electing the Upa-Sarpanch
is to be held, it has to be presided over by the Sarpanch and if the
said post is vacant then by the officer appointed by the Collector.
By Sub-clause (4) of Sub-Section (6) of Section 33 the right to
exercise casting vote in case of equality of votes in the election of
Upa-Sarpanch is granted to the Sarpanch. These provisions have
been considered in the aforesaid decision and in paragraphs 11,
20 and 24 of the said decision it has been held as under:-
"11. The procedure for elections of
Upa-sarpanch has been laid down in section 33 of
the Act. By virtue of the amended section 2, it has
been provided that the meeting called under
subsection 1 shall be presided over by the
Sarpanch and if the post of Sarpanch is vacant, by
such an officer as the Collector may appoint in
that behalf. The prohibition in respect of exercise
of right to vote is only operative against an officer
appointed by the Collector to preside over the
meeting. The prohibition contained in subsection
2 in respect of exercise of right to vote has been
restricted to the officers appointed by the Collector
and it does not specifically lay down that such
prohibition operates as against the elected
Sarpanch. Merely because the Sarpanch has been
vested with casting vote, it does not dis-entitle him
from exercising his right to vote at the meeting
convened for election of Upa-sarpanch. There is
no such prohibition incorporated in statute and as
such, cannot be read to curtail right of directly
elected Sarpanch.
20. It is thus clear that merely because
Sarpanch has been conferred with casting of votes,
it does not take away his entitlement to exercise
the right to vote as a Member of the Village
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Panchayat. Such an interpretation would be in
consonance with the constitutional provisions of
Article 243-C-4 of the Constitution of India.
24. In the instant case, if the construction as
canvassed by the respondents is to be accepted, the
interpretation would lead to a conclusion that the
amended provisions restrict the right of the
Sarpanch to cast vote at the meeting of village
Panchayat which would obviously be in conflict
with the provisions of Article 243-C-4 and such
an interpretation shall have to be avoided. A
statute has to be interpreted in such a manner so as
to bring it within the realm of constitutionality.
Any interpretation which renders the provision
futile or in conflict with the constitutional
provision shall be avoided."
5. It is thus clear that this very issue has been considered at
the Aurangabad Bench and the provisions of Section 33 have
been interpreted in the aforesaid manner. Entitlement of the
Sarpanch to have the casting vote would not dis-entitle him from
voting at the meeting convened for electing the Sarpanch.
6. We may note here that when the interim orders were
passed in Writ Petition Nos.8/2023 and 12/2023 on 3.1.2023
the aforesaid decision of the Division Bench was not brought to
our notice. Since said decision is now placed before us and we
are inclined to adopt the same view, we find that no relief can be
granted to the petitioners. Hence for the reasons contained in
the aforesaid decision dated 6.3.2018 the challenge raised in
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the writ petitions cannot succeed. The writ petitions are
dismissed. There shall be no orders as to costs.
7. Needless to state that if the petitioners are aggrieved by
the provisions of Section 33 of the Act of 1959 as amended, they
are free to take legal recourse in accordance with law.
(MRS. VRUSHALI V. JOSHI, J.) ( A.S. CHANDURKAR J.)
Signed By:NILESH VILASRAO
TAMBASKAR
Private Secretary
Tambaskar.
Date:04.01.2023 18:52
