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Amol Sahebrao Solanke v/s The Tahsildar, Kanzara & Others

    Writ Petition No. 4255 of 2015

    Decided On, 31 July 2015

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.P. BHANGALE

    For the Petitioner: A.R. Deshpande, Counsel. For the Respondents: R3, Firdos Mirza, Advocate.



Judgment Text

Oral Judgment:

1. Rule. Rule is made returnable forthwith. Heard the petition by consent of learned counsel appearing for both the parties.

2. This petition was assigned to this Court pursuant to the direction dated 30.6.2015 from the Honourable Chief Justice of this Court.

3. The facts of the case, are thus:

The petitioner is contesting the general elections as Member of Kanzara village panchayat to be held on 4.8.2015 from Ward No.2 of the said village panchayat. Respondent No.1/Tahsildar, Kanzara village, Taluka Mangrulpir and respondent No.2/Anil Bhaurao Yewtikar are appointed as returning officer to held elections of village panchayat of Kanzara pursuant to election notice dated 4.7.2015 issued by respondent No.1/Tahsildar, Kanzara, Taluka Mangrulpir, District Washim. The grievance of the petitioner is that respondent No.2 returning officer could not have considered nomination form of respondent No.3 Sunil Namdeorao Harne for contesting the election as Member of the village panchayat; Kanzara on the ground that respondent No.3 was disqualified by order passed by the Additional Commissioner, Amravati Division, Amravati. However, the returning officer without any application of mind to the order passed by the said competent Authority wrongly accepted the nomination form filed by respondent No.3.

4. My attention is invited by learned counsel for the petitioner to order dated 4.9.2014 in Appeal No.41/BVP 16(2)Kanzara/201314 passed by the Additional Commissioner, Amravati Division, Amravati in an appeal under Section 16(2) of the Maharashtra Village Panchayats Act, 1958 (for short, 'the said Act'). The Additional Commissioner, Amravati Division, Amravati was heari

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ng the appeal against order passed by the Additional Collector, Washim on 17.10.2013 whereby the Additional Collector, Washim had rejected the application preferred by petitioner Amol Subhashrao Solanke. The application was moved before the Additional Collector, Washim by the petitioner to reject the nomination form filed by Sunil Namdeorao Harne on the ground that said Sunil Namdeorao Harne had encroached upon the government land as he made construction unlawfully to the extent of 368 square feet on the plot No.10 is area admeasuring 325 square feet only. The additional construction to the extent of 43 square feet was made encroaching upon the government land. The Talathi of village Kanzara had reported the encroachment on the government land to the superior Authority. In the result, the Additional Commissioner, Amravati Division, Amravati was pleased to allow the appeal made by the petitioner on the ground that respondent No.3 Sunil Harne incurred disqualification as member of the village panchayat, Kanzaraunder Section 14(j-3) of the said Act. It is under these circumstances, it is contended on behalf of the petitioner that when the order passed by the Additional Commissioner, Amravati Division, Amravati remained unchallenged, the returning officer was bound to consider the same to take an appropriate decision on the question of disqualification incurred by Shri Sunil Harne for to contest the village panchayat election as Member thereof. According to the learned counsel for the petitioner, last election for village panchayat Kanzara was held on 8.8.2010 and the first meeting of elected members of village panchayat was conducted on 17.9.2010. Therefore, in view of Section 28 of the said Act, the term of village panchayat Kanzara is deemed to have commenced from 17.9.2015 which was the first meeting of the members of the village panchayat Kanzara. Thus, the tenure of the elected members of the village panchayat would last for five years w.e.f. 17.9.2010 until 16.9.2015 while respondent No.3 is elected sitting member of village panchayat Kanzara, he incurred disqualification as member of village panchayat because of encroachment made by him upon the government land as stated above.

5. My attention is invited to Section 14(1)(j-3) of the said Act regarding disqualifications, which reads thus :

14. Disqualifications. [(1)] No person shall be a member of a panchayat continue as such, who.........

(a) has, whether before …..

(b) has been adjudged …..

(c) has been adjudged by a competent Court …..

(d) has been removed from …..

(e) has been disqualified from …..

(f) holds any salaried office or …..

(g) has directly or indirectly, …..

(h) fails to pay any tax or fee …..

(i) is a servant of the Government …..

(j) has voluntarily acquired …...

(j-1) has more than two children.....

(j-2) has been elected as a Councillor …..

(j-3) has encroached upon the Government land or public property; or

…......

.....

Thus, no person shall continue as a member of the village panchayat, who has encroached upon the Government land or public property. Thus, according to learned counsel since the appeal preferred by the petitioner was allowed by the Additional Commissioner, Amravati Division, Amravati and order passed by the Additional Collector, Washim dated 17.10.2013 was set aside on the ground that respondent No.3 Sunil Harne incurred disqualification in view of the aforesaid provision, it is contended that the returning officer could not have feigned ignorance of the fact while taking decision upon making scrutiny of application as contemplated under Rule 11 of the Bombay (Maharashtra) Village Panchayats Election Rules, 1959, which reads thus :

11. Security of nominations.

(1) At the time and place appointed for the scrutiny of nominations, intending candidates and any other person duly authorised in writing by such intending candidate shall alone be entitled to be present. The Returning Officer shall allow such persons reasonable facilities for examining the nomination papers of intending candidates.

(2) The Returning Officer shall examine the nomination papers and decide all objections which may be made before him to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any as he considers necessary reject a nomination paper on any of the following grounds, namely:

(i) that the candidate is disqualified or is not qualified under the Act or these rules for election; or

(ii) that the candidate has failed to comply with any of the provisions required by these rules of the Act.

[(2A) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.]

(3) For the purpose of sub-rule(1) the production of a certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified.

Sub-rule (2) of Rule 11 makes it mandatory for the returning officer to examine the nomination papers and to decide all the objections which may be made before the returning officer in respect of any nomination of candidate. The returning officer is contemplated to make summary inquiry either upon objection or on his own motion and is required to reject the nomination papers if a candidate is disqualified either under the said Act or in view of the provisions of the Bombay Village Panchayats Election Rules, 1959. Sub-rule (2A) of sub-rule (2) of Rule 11 however permits the returning officer not to reject the nomination paper on the ground of any defect which is not of a substantial character.

6. The grievance of the petitioner is that this procedure which is mandatory in nature ought to have been followed by the returning officer unscrupulously when objection was clearly taken to the nomination filed by respondent No.3 Sunil Harne.

7. It is, therefore, submitted on behalf of the petitioner that the returning officer may be directed to apply his mind to interpret the order passed by the Additional Commissioner, Amravati Division, Amravati.

8. Shri Mirza, learned counsel for respondent No.3 opposes the petition on the ground of its maintainability. He invites my attention to Article 243-O of the Constitution of India, which reads thus :

243-O. Bar to interference by courts in electoral matters. Notwithstanding anything in this Constitution –

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.]

There is bar for interference by the Courts in electoral matters. Therefore, no election to any panchayat can be called in question except by a election petition in accordance with law.

9. The reference is made to the ruling in the case of N.P. Ponnuswami : Union of Indiaand State of Madhya Bharat ..vs.. Returning Officer, Namakkal Constituency, Namakkal, Salem Distt : Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., reported in AIR 1952 SC 64 to argue that the election process of the village panchayat must be taken to embrace the whole procedure which consisted of several stages and embraced many steps, whereby an elected member was returned and rejection of acceptance of a nomination paper is included in the term 'election'. The Apex Court while deciding an appeal against order of the Madras High Court, dismissed the writ of certiorari. The view of the Madras High Court that the writ court under Article 226 of the Constitution of India has no jurisdiction to entertain the petition regarding improper rejection of nomination paper was considered as correct opinion.

The reference is also made to the ruling in the case of Vinod Pandurang Bharsakade ..vs.. Returning Officer, Akot and another, reported in 2003(4) Mh.L.J. 359 wherein the Division Bench of this Court expressed opinion that once the election process starts, it has to be completed in accordance with the provisions of the relevant statute. The scrutiny of nomination papers is one of the stages of an election. The law contemplates only one attack in election matters, and that too, after the election is over. A petition under Article 226 of the Constitution of India against the rejection of nomination paper, therefore, cannot lie. In view of the mandate of Article 243-O(b) of the Constitution of India and Sections 15 and 15A of the Bombay ( now Maharashtra) Village Panchayats Act, the remedy available is to file election petition in accordance with the provisions of the Act. Thus, it is contended on behalf of the respondents that remedy is available to the petitioner is to wait until the election of the village panchayat is over and till after the result is declared. Thereafter the petitioner may file an election petition in accordance law incorporating all the objections taken to the election process. It is submitted that improper rejection or acceptance of nomination form by the returning officer cannot be mootable questions while the election process is still continuing for the village panchayat election of Kanzara Gram Panchayat.

10. According Shri Mirza, learned counsel, at this stage scrutiny of nomination is already over and rightly or wrongly nomination of respondent No.3 is accepted. The present writ petition is filed to challenge the improper acceptance of the nomination form and for prayer to set aside order dated 21.7.2015 passed by the returning officer rejecting the objection made by the petitioner. The said order cannot be questioned before this Court on the ground that the petitioner will have to wait until the election process is completed. Shri Mirza, learned counsel, prays for dismissal of the petition in view of the rulings cited (supra).

11. On the other hand, it is contended on behalf of the petitioner that in view of the order passed by the Additional Commissioner, Amravati Division, Amravati against respondent No.3 Sunil Namdeorao Harne the returning officer in view of this mandatory duty as contemplated under Rule 11 of the Bombay Village Panchayats Election Rules, 1959 the Returning Officer ought to have examined the nomination paper and should have scrutinized it for to decide the objections raised by the writ petitioner by holding a summary inquiry if he so considered it necessary but the returning officer failed in his statutory duty to apply his mind and to decide the objection raised by the writ petitioner before him While reading Rule 11 of the Bombay Village Panchayats Election Rules, 1959, one cannot ignore Rule 12 thereof, which reads thus :

12. Completion of Scrutiny.

(1) The scrutiny shall be completed on the day appointed in this behalf.

(2) The Returning Officer shall, on the same day, endorse on each nomination paper his decision accepting or rejecting the same, and, if the nomination paper is rejected, shall record a brief statement of his reasons for such rejection.

(3) Immediately after all the nominations paper have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix, it on the notice board of the village panchayat office and the village Chavdi, or if there is no village Chavdi, at any other conspicuous public place in the village.

12. Rule 11 of the Bombay Village Panchayats Election Rules, 1959 which also mandates that prompt scrutiny shall be completed on the same day appointed in that behalf. For the returning officer, it is mandatory that on the same day he shall endorse on each nomination paper his decision either accepting or rejecting the nomination form. Rightly or wrongly, therefore, when the returning officer accepted the nomination paper filed by respondent No.3 on the same day accepting his nomination papers, we may not at this stage pass an order which would have effect to stultify the election process of village panchayat concerned.

13. Under Section 15A of the said Act read with Article 243-O of the Constitution of India statutorily, therefore, there is clear bar for interference for the Courts in electoral matters. Therefore, no election to the village panchayat can be called in question except by following the procedure stated according to law i.e. filing of an election petition. The relevant provisions, in the case of Vinod Pandurang Bharsakade cited (supra), have been stated and referred to by the Division Bench of this Court and it was concluded that once the election notification is issued, the election process can be said to have started. Acceptance or rejection of nomination form is part and parcel of the election process but the law contemplates only one attack in the matter of election to the village panchayat i.e. challenging the election to the village panchayat by filing an election petition. A petition under Article 226 of the Constitution of India, therefore to challenge the scrutiny by the returning officer is not the remedy available for the writ petitioner in view of the clear statutory bar but the petitioner will have to wait until the election process of village panchayat is over and may then invoke remedy by way of an election petition in accordance with the provisions of the said Act incorporating all available grounds of challenge. If an order, as pointed out by learned counsel for the writ petitioner, is passed at this stage allowing challenge to the scrutiny made by the returning officer, such order directing fresh scrutiny on the ground that earlier scrutiny was improper would not be only time consuming but also would be contrary to Rule 16 which contemplates returning officer to complete the process of scrutiny promptly on the very day which is specified for scrutiny on nomination papers. Since in view of the ruling in the case of Vinod Pandurang Bharsakade cited (supra) in which improper rejection or acceptance of nomination papers is considered as one of the grounds for setting aside the election, the petitioner can wait for the result of the election and may file an election petition as a remedy available to him according to law. Of course, in the election, if the petitioner is defeated in the village panchayat election at the hands of respondent No.3, the ground shall be available to the petitioner that the respondent No.3 Sunil Harne was wrongly and unlawfully allowed to contest village pachayat election of Kanzara village which is scheduled to be held on 4.8.2015, in very near future.

14. For all these reasons, no interference is warranted in the light of the law at this stage to stall the process initiated by the Returning officer for the election of village pancyayat, Kanzara. Therefore, the writ petition is dismissed.

Rule is discharged in above terms. There shall be no order as to costs.
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