Shobhabai Narayan Shinde v. the Divisional Commissioner, Nashik Division, Nashik & Ors.

A. M. KHANWILKAR, J. 1. Leave granted. 2. The core issue in these appeals is: whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B(1) of the Maharashtra Village Panchayats Act, 19591, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure? 3. Briefly stated, the appellants contested election s held in September, 2018 for electing a new Panchayat. The appellant in appeal arising out of SLP (C) No. 295/2021 had been directly elected a s a Sarpanch of Village Panchayat, Kusumba, Taluka and District Dhule in the State of Maharashtra, from public, whereas, the appellant in appeal arising out of SLP (C) No. 451/2021 was elected as a member of the same Village Panchayat. 4. Respondent No. 2 filed two Dispute Applications being N os. 10/2019 and 11/2019 in the office of respondent No. 5 – Collector, seeking declaration under Section 14B(1) - that the appellants herei n stood 1 for short, “the 1959 Act” SHOBHABAI NARA Y AN SHINDE v. THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS. disqualified for not submitting the election expenses within the stipulated time. The Collector, after considering the relevant mat erial and the submissions of the rival parties, rejected both the Dispute Applications by separate judgment and order dated 5.2.2019 being devoid of merits. 5. The respondent No. 2 thereafter carried the matter in ap peal before the Divisional Commissioner, Nasik Region, Nasik2, questioning the correctness of the rejection of his Dispute Appli cations by the Collector. The Divisional Commissioner allowed both the a ppeals by separate judgment and order dated 15.7.2019 and thereby declaring the appellants as disqualified and ineligible to remain as Gram Panchayat Sarpanch/Member. 6. Feeling aggrieved, the appellants filed writ petitions before the High Court of Judicature at Bombay Bench at Aurangabad3 being Writ Petition Nos. 9244/2019 and 9245/2019. 7. As common question had arisen for consideration, the High Court vide impugned common judgment and order dated 17.12.2020, dismissed both the writ petitions and affirmed the order of disqualification passed by the Divisional Commissioner against the appellants herein. 8. The principal challenge before the High Court was ab out the jurisdiction of the Divisional Commissioner to entertain the appeals as filed by the respondent No. 2. For, the 1959 Act does not provide for an appeal against the order passed by the Collector under Section 14B(1) in rejecting the application for declaring the incumbent member as disqualified. Further, the remedy provided for consequent to the decision of the Collector under Section 14B(1) before the Divisional Commissioner, is limited to removing the disqualification or reducing the period of any such disqualification. However, in a case where the Colle ctor rejects the application for disqualification of Sarpanch/Member, no further remedy of appeal is provided for in the 1959 Act. The High Court negatived this contention and opined that it was open to the aggrie ved applicant(s) to assail such decision of the Collector, by way of an appeal under Section 14B(2) before the Divisional Commissioner. To buttress this conclusion, the High Court drew analogy from remedy of appeal against order of Collector under Section 16(2) before the Divi sional Commissioner under Section 16(2) and then adverted to the decision in 2 for short, “the Divisional Commissioner” 3 for short, “the High Court” 1039 Suchita Murlidhar Kewati (Sarpanch) & Ors. vs. Stat e of Maharashtra & Ors.4 Further, having rejected the objection regarding jurisdiction of the Divisional Commissioner to entertain the appeal( s), the High Court proceeded to affirm the view taken by the D ivisional Commissioner of reversing the decision of the Collector, on me rits. Accordingly, the writ petitions filed by the appellan ts came to be dismissed. 9. We have heard Mr. Sudhanshu S. Choudhari, learned counsel for the appellants and Mr. Nishant R. Katneshwarkar, learned counsel for the respondent No. 2. They have, more or less, reiterated th e stand taken before the High Court by the respective parties. 10. The provision, for disqualifying, to be a member of a Panchayat and to continue as such, is imbued in Section 145 of the 1959 Act. One of the stipulations inserted by way of amendment in 2010 with effect from 6.5.2010 is clause (j-4) in Section 14(1). It predicates that a person, if disqualified by the State Election Commission under Section 14B of the Act, shall not be a member of a Panchayat or continue as such. Section 14B6 was also inserted by the same amendment Act in 2010. It enables the State Election Commission to declare a person (memb er of the Panchayat) as disqualified for being a member of the Panchayat or for contesting an election for being a member for a period of fi ve years from the date of the order so passed, if he has failed to lodge an account of election expenses within the time and in the manner required by the 4 2013 (6) Mh.L.J. 414 5 Disqualifications. – (1) No person shall be a member of a Panchayat continue as such, who – (a) to (j-3) xxx xxx x xx (j-4) has been disqualified by the State Election Commission under section 14B; or ….. 6 14B. Disqualification by State Election Commission . – (1) If the State Election Commission is satisfied that a person, - (a) has failed to lodge an account of election expe nses within the time and in the manner required by the State Election Commission, a nd (b) has no good reason or justification for such failure, the State Election Commission may, by an order published in the Official Gazette, declare him to be disqualified and such person shal l be disqualified for being a member of panchayat or for contesting an election for being a member for a period of five years from the date of this order. (2) The State Election Commission may, for reasons to be recorded, remove any disqualification under sub-section (1) or reduce th e period of such disqualification. SHOBHABAI NARA Y AN SHINDE v. THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.] State Election Commission and has no good reason or justification for such failure. Sub-Section (2) of Section 14B enables the State Election Commission to remove such disqualification or reduce the period thereof. 11. Be it noted that the State Election Commission in exercise of its enabling powers, vide Article 243-K of the Constitution of India including Section 10A(2) 7 of the 1959 Act, issued an order dated 19.11.20108 to delegate its powers, such as under Section 14B of the 1959 Act to the officers of the State Government. Clause B of the stated order stipulates that powers conferred upon the State Election Commission under Section 14B(1) shall vest in the concerned Collector of the District and powers conferred on it under Section 14B(2) shall vest wi th the concerned Divisional Commissioner. 12. By virtue of this order, the State Election Commission has had authorised the Collector to exercise its powers under Sectio n 14B(1); 7 10A. State Election Commission .- ….. (2) The State Election Commissioner may, by order, delegate any of his powers and functions to any officer of the Commissi on or any officer of the State Government not below the rank of Tahsildar. 8 … STATE ELECTION COMMISSION, MAHARASHTRA New Administrative Building, Opp. Ministry, Madam Cama Road, Mumbai – 400 032 Date: 19.11.2010 O R D E R Regarding conferring of powers to declare disqualif ication of the candidates contesting the elections of Zilla Parishad, Panchay at Samiti and Village Panchayats if they do not submit the expenditure account in the p rescribed manner. No. SEC/ZPPS/2010/L.No.9/KA-7: Under the powers con ferred vide Article No. 243-K of the Indian Constitution, as well Section 9 A(2) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and Section 10A(2) of the Bombay Village Panchayat Act, 1958 and in exercise of other powers, the State Election Commissioner, Maharashtra pass the following order: - (A) The powers conferred under the provisions of Sec tion 15(B)(1) and 62(A) of the Maharashtra Zilla Parishads and Panchayat Samitis A ct, 1961 are hereby vested in concerned Collector. Similarly the powers confer red under Section 15(B)(2) and 62(B)(1) are hereby vested in concerned Divisio nal Commissioners. (B) The powers conferred under the provisions of Section 14(B)(1) of the Bombay Village Panchayats Act, 1958 are hereby vested in c oncerned Collector. Similarly the powers conferred under Section 14(B)( 2) are hereby vested in concerned Divisional Commissioners. By the order of Election Commissioner … (emphasis supplied) 1041 whereas powers under Section 14B(2) by the Divisional Commissioner. It follows that the concerned State Government officials are ordained to exercise the assigned power in silos. Ergo, the power of State Election Commission under Section 14B(1) to declare that the Sarpanch/Member of a Panchayat as disqualified, is to be exercised by the Collector and not the Divisional Commissioner. Similarly, the Divisional Commissioner can exercise power only in respect of matters specified in Section 14B(2) - to remove the disqualification incurred under sub-Section (1) or reduce the period of such disqualification. In either case, the power to decide concerned issues is that of the State Election Commi ssion, which thenceforth could be exercised by its concerned delegatee in respect of matters specified in the stated order. 13. Notably, no appeal is provided against the order of Collector (or of State Election Commission) refusing to disqualify the Sarpanch/ Member under Section 14B(1). Similarly, no appeal is provided even against the order of the Divisional Commissioner (or of State Ele ction Commission) under Section 14B(2). A limited window against the order under Section 14B(1) passed by the Collector (or St ate Election Commission itself) declaring the Sarpanch/Member of a Pa nchayat as disqualified, is kept open before the Divisional Commissio ner (or the State Election Commissioner, if the order under Section 14B (1) is or were to be passed by the State Election Commission itself) - to remove such disqualification or to reduce the period thereof in deserving cases. To put it tersely, for the nature of power exercised by the State Election Commission under Section 14B, no remedy of appeal is envisioned by the statute. 14. The power of the State Election Commission, bestowed under sub-Section (1) or (2) of Section 14B, though concerns subject of disqualification of a person, it operates in two different silos. In that, the power under Section 14B(2) gets triggered only after a n order of disqualification is passed under Section 14B(1). The fo rmer is not activated at all in a case where the application or the pr oceedings to declare the Sarpanch/Member as disqualified, is rejected or dropped. Taking any other view would inevitably result in a situation where the power exercised by the State Election Commission under Section 14B(1) could be appealed against before itself (its delegatee). Tha t cannot be countenanced. For, an appeal cannot lie before the same Authorit y/ functionary who had passed the order of rejection of prayer to declare the member concerned as disqualified. Sans an express statutory intent SHOBHABAI NARA Y AN SHINDE v. THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.] to provide appeal against the order rejecting application to declare a person disqualified, it must follow that upon passing such order the power under Section 14B is fully exhausted by the State Election Commission (or its delegatee, as the case may be). 15. Indubitably, an authority rejecting the proposal regardin g disqualification, cannot sit “in appeal” over its own order of rejection. Notably, there is no express power bestowed upon the Sta te Election Commission or its delegatee to review its own decision pas sed under Section 14B(1) or 14B(2) of the Act, as the case may be. The argument of the respondent No. 2 that the power bestowed on the Divi sional Commissioner under Section 14B(2) posits power to i mpose disqualification by virtue of Section 21 of the General Clauses Act, 1897, does not commend to us and the same needs to be merely stat ed to be rejected. Similarly, we reject the argument of the respondent No. 2 that it is a case of Casus Omissus. Whereas, the legislative intent and the setting in which the relevant provisions are couched leaves no manner of doubt that such power had not been given to the delegatee (Divisional Commissioner), as it does not inhere in the State Election Commission itself. 16. The High Court, however, answered the question by referring to the logic under Section 16(2) 9 of the Act. We hasten to observe that the High Court posed a wrong question to itself in paragraph 2 of the impugned judgment (whether the Divisional Commissioner had jurisdiction 916. Disability from continuing as member. – (1) If any member of a Panchayat (a) who is elected or appointed as such, was subjec t to any of the disqualification mentioned in Section 14 at the time of his election or appointment, or (b) during the term for which he has been elected o r appointed incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant. (2) If any question whether a vacancy has occurred under this Section is raised by the Collector suo motu or on an application made to him by any person in t hat behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under sub- section (1) from c ontinuing to be a member. Any person aggrieved by the decision of the Collector m ay, within a period of fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appea l shall be final : Provided that no order shall be passed under this s ub-section by the Collector against any member without giving him a reasonable opportunity of being heard. (emphasis supplied) 1043 to entertain an appeal under “Section 16(2)” against an order of Collector under Section 14B(1) refusing to disqualify a Sarpanch/Member), an d as a result of which arrived at the wrong conclusion. 17. Concededly, Section 16 is a provision which speaks about the disability from continuing as the member of a Panchayat, consequent to incurring disqualification or has been so declared under Secti on 14 of the Act. Once a Sarpanch/Member is disqualified under Section 14B by virtue of an order under Section 14B(1), it would give rise to two situations – the first is that the person concerned can invoke option under Section 14B(2) for removal of his disqualification or for reduction of the period of such disqualification. The second is the obligation fastened upon the Collector to decide the issue as to whether vacancy has oc curred on account of such disqualification. That question is required to be answered by the Collector in the first instance, in terms of Section 16( 2) and to take follow-up steps thereafter in filling up such vacancy. The decision of the Collector on such question, referable to sub-Section (2) of Section 16, however, has explicitly been made appealable before the State Government or the delegate of the State Government. That is, completely, a different regime albeit a consequence of process referred to in Section 14B(1) - to declare a Sarpanch or a member as havin g incurred disqualification. This question decided by the Collector, is essentially in his capacity as a delegatee of the State Election Commis sion and, de jure, deemed to have been decided by the State Election Commission itself. Be that as it may, the question decided by the Collect or under Section 16 is, in one sense, a ministerial act bestowed upon him to ascertain whether vacancy had arisen as a consequen ce of the disqualification order and to fill up such vacancy. 18. A priori , if the State Election Commission or its delegatee were to reject or drop the proceedings against the concerned person or member initiated under Section 14B(1), as being devoid of merits or for any other reason, the complainant does not have remedy of appeal against such decision. Such an order becomes final and is not appealable at all. Indeed, it can be assailed before the constitutional court under Article 226 of the Constitution of India. 19. The High Court has adverted to the decision in Suchita Murlidhar Kewati 10. Indeed, the exposition in that decision is in the 10 supra at Footnote No. 4 SHOBHABAI NARA Y AN SHINDE v. THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.] context of an application filed under Section 14B for a declaration that the elected member had incurred disqualification. H owever, the observations in paragraph 9 of the reported decisio n have been completely misconstrued and misapplied to the fact situation of the present case. 20. Our attention has also been drawn to yet another decision of the same Bench of the High Court in Writ Petition No. 12276/2021 decided on 3.12.202111. In the said judgment, the legal position has been correctly expounded that the processes under Section 14B(1) and Section 16 are completely different, though concern the matter of disqualification and vacancy arising therefrom. In case, the Collector rejects the compl aint and drops the proceedings in favour of concerned Sarpanch/Membe r, there would be no question of accrual of any vacancy. In contradistinction, if the Collector declares the member as having incurred disqualification, the follow-up issue required to be considered by the Collec tor under Section 16 then is to ascertain if any vacancy had arisen bec ause of such disqualification. The two are different processes. 21. Taking any view of the matter, the opinion of the High Court in the impugned judgment cannot be countenanced. We conclude that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee – the Collector, under Section 14B(1), rejecting the complaint or to drop the proceedings for declaratio n of a Sarpanch/Member having incurred disqualification. That order becomes final and if passed by the Collector as the delegatee, is deemed to have been passed by the State Election Commission itself. E ven the State Election Commission cannot step in thereafter in any manner much less in the guise of reconsideration or review of such order. It mus t follow that the Divisional Commissioner would have no jurisdiction (ab initio) to entertain assail to such an order of the Collector. 22. We are conscious of the fact that the High Court not only negatived the objection regarding jurisdiction of t he Divisional Commissioner to entertain the stated appeals, but also a ffirmed the decision on merits in reversing the order(s) of Collector r ejecting the Dispute Applications of the respondent No. 2. The fact that the Hig h Court ventured into the terrain of dealing with merits of the case, does 11 Shri Gulabrao vs. State of Maharashtra & Ors. - Wr it Petition No. 12276/2021 decided on 3.12.2021 1045 not require us to examine that question. For, once it is hel d that the Divisional Commissioner had no jurisdiction to entertain the appeal against the order of the Collector under Section 14B(1) rejecting the complaint filed by the respondent No. 2, no other issue needed examination by the High Court at his instance. Resultantly, we decline t o go into the correctness of the decision of the Collector on merits in rej ecting the Dispute Applications filed by respondent No. 2, for a declaration that the appellants had incurred disqualification. We also do not wish to dilate on the plea urged by the respondent No. 2 that the appellants had disentitled themselves for indulgence of this Court owing to their conduct, a s we have held that the stated order(s) of the Divisional Com missioner are without jurisdiction and non-est in law. 23. Accordingly, these appeals succeed. The impugned common judgment and order is set aside. As a result, the separate orders passed by the Divisional Commissioner dated 15.7.2019 in the respective appeals are also set aside and instead the writ petitions filed by t he appellants are allowed, thereby restoring the separate orders passed by the Collector dated 5.2.2019, rejecting the stated Dispute Application(s) filed by the respondent No. 2. There shall be no order as to costs. Bibhuti Bhushan Bose Appeals allowed. (Assisted by : Preetam Bharti, LCRA) SHOBHABAI NARA Y AN SHINDE v. THE DIVISIONAL COMMISSIONER, NASHIK DIVISION, NASHIK & ORS. [A. M. KHANWILKAR, J.]