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2007 DIGILAW 1438 (BOM)

BABURAO KALU KOLI v. STATE OF MAHARASHTRA

2007-10-04

NARESH H.PATIL, R.M.BORDE

body2007
NARESH H. PATIL, J. ( 1 ) NOTICE for final disposal at the stage of admission was issued by this Court on 20th July 2007. ( 2 ) HEARD learned Counsel for the respective parties. Rule. Rule returnable forthwith. ( 3 ) THE petitioner, a defeated candidate at the election of the Village Gram Panchayat, jalod, Taluka Amalner, District Jalgaon, held in the year 2005, seeks issuance of a writ or direction for setting aside the said election of the Village Panchayat on the ground of illegality and nullity. ( 4 ) THE brief factual matrix is as follows: the petitioner is resident of village jalod, Taluka Amalner, District Jalgaon. The collector Jalgaon as per the direction of the state Election Commission, had issued a draft Notification under Rule (2) of the Bombay village Panchayats (Number of Members, divisions into Wards and Reservation of seats) Rules, 1966 (for short, "the Rules, 1966") on 30-6-2005 and invited objections to the said Notification by 6th July 2005. Thereafter the Collector issued a final Notification under Rule 5 (1) of the Rules, 1966 on 15th July 2005. ( 5 ) FROM the material placed on record of this Court we find that wardwise reservation was declared by the Collector Jalgaon in the following manner as per Rule 5 (1) of the Rules, 1966. Ward No. Number of Seats SC ST OBC For Women 01 03 - - 01 01 General 02 03 - 01 - 1 S. T. 03 03 - - 01 1 OBC The precise allegation of the petitioner is that the Tahsildar Amalner had interpolated the notification dated 15-7-2005 issued by the collector Jalgaon under Rule 5 (1) of the rules, 1966. For the sake of convenience it is necessary to describe the changes brought into effect in the wardwise reservation in the following manner. Ward No. Number of Seats SC ST OBC For Women 01 03 - - 01 01 General 02 03 - 01 - 1 S. T. & 1 O. B. C. 03 03 - - 01 ? The petitioner contends that he was not aware of the fraud played by the Tahsildar amalner who manipulated the wardwise reservation in ward No. 2. The elections were held on 30-8-2005 and on the same day the results were declared by the Returning Officer. The petitioner lost the said election from ward No. 1. The petitioner contends that he was not aware of the fraud played by the Tahsildar amalner who manipulated the wardwise reservation in ward No. 2. The elections were held on 30-8-2005 and on the same day the results were declared by the Returning Officer. The petitioner lost the said election from ward No. 1. The names of the elected candidates were published by the Returning Officer as per Rule 37 of the Bombay Village panchayats Election Rules, 1959. ( 6 ) THE petitioner further alleges that on the date of result of the election the petitioner and other persons from the village were falsely implicated in an offence of riot. They were arrested on the same day i. e. on 30-8-2005 and were sent initially to the police custody and subsequently to the Magisterial custody and the petitioner was behind the bars for about 52 days. Therefore, the petitioner was not aware of the events which took place after 30-8-2005 till his actual release from jail on 21-10-2005. It is stated that on 2-12-2005 one news was published in the news paper "daily Sakal" which disclosed that the ministerial staff working under respondent No. 5. Tahsildar Amalner, had manipulated and interpolated the Notification by which wardwise reservations were changed. According to the news item a Clerk from the Tahsil office was suspended. The petitioner has annexed a copy of the hews item published in "daily Sakal" at Exhibit "e" to the petition. The petitioner has also annexed a copy of charge sheet involving the petitioner in a criminal case at Exhibit "d" to the petition. ( 7 ) THE petitioner contends that after going through the news item he approached the offices of the respondents Nos. 2 and 5 and applied for certified copies of the Notifications and the relevant documents. After getting copies of the documents the petitioner decided to approach this Court in its extraordinary writ jurisdiction under Article 226 of the constitution of India to question the legality of the elections held to the Gram Panchayat and for praying for holding fresh elections by maintaining the reservations prescribed by the Collector under the Notification. ( 8 ) RESPONDENTS Nos. 2 and 5 filed affidavit-in-reply through Smt. Maya Jibhau sonavane, working as Tahsildar Amalner. The deponent stated in paragraphs 4, 6, 7 and 9 thus : "4. ( 8 ) RESPONDENTS Nos. 2 and 5 filed affidavit-in-reply through Smt. Maya Jibhau sonavane, working as Tahsildar Amalner. The deponent stated in paragraphs 4, 6, 7 and 9 thus : "4. As regard the contents of para No. 2 I say and submit that, it is true that the reservation of seats was changed in different wards on the part of the respondent. The said fact was came to know to this authority at the time of publication of names of elected members as per Rule 37. Further it is also submitted that, the fact of change in reservation seats in different wards were brought to the notice of the vide report of Hon'ble District Collector to the State election Commission and the State Election Commission permitted to publish the names of elected members. 6. In respect of para No. 4 of the writ petition it is submitted that after publication of the said notice, "a" notification (Final) under Rule 5 (1)was published by the District Collector, jalgaon on 15-7-2005. I further say and submit that after receipt of the "a" notification from the District Collector, jalgaon the Clerk of this office, Circle officer and Talathi Jalod with collaboration of mind changed the said notification without any authority. Clerk Shri Borase by using the hitener deleted the reserved seats with his mind as under: 1. Ward No. 1. . . Deleted OBC seat 2. Ward No. 2. . . Added OBC Woman seat 3. Ward No. 3. . . By deleting OBC Woman added obc instead of woman by correcting the reserved seats using whiteners pen. Shri. Borase Clerk changed both the notifications "b" and "a" in his unlawful authority and misconducted. Further it is submitted that this fact was not brought to the notice of this respondent authority, neither to his superior. I say that according to the changed notification the General election of the Village Panchayat Office. Moreover, it is also submitted that the petitioner also participated in the election process and the result of the election has also declared. Further it is submitted that the petitioner has defected the said election and hence after thought the petitioner has filed this petition. 7. Moreover, it is also submitted that the petitioner also participated in the election process and the result of the election has also declared. Further it is submitted that the petitioner has defected the said election and hence after thought the petitioner has filed this petition. 7. As regards to para No. 5 of the Writ Petition I say and submit that as soon as the result of the election declared by the Returning Officer on 30-8-2005, a detailed report of result was submitted by this respondent to the collector Jalgaon for publication of names of the elected candidates. ( 9 ) IN respect of para Nos. 12 to 14 it is submitted that as the fact recorded in para Nos. 3 and 4 of the remarks, the Clerk Circle Officer and Talathi. These there employees with collaboration of mind made changes in the notification in their unlawful authority and without notice to the higher authorities interpolating the notifications and they have made grave misconduct. I say and submit that due to this misconduct of the employees, enquiry was conducted by the then Tahsildar and detailed enquiry report was submitted by this office to the Collector jalgaon on 8-9-2005 for initiating the appropriate actions against these employees. I further say and submit that, the Collector, jalgaon vide his office order suspended the concerned Clerk Shri. Borase and initiated the departmental enquiries against the employees under Rule 8 of the Maharashtra Civil services (Discipline and Appeal) Rules 1979 and the enquiries are pending for the hearing before the competent authority. " the deponent further states that names of the elected members were published under rule 37 of the Bombay Village Panchayats election Rules, 1959 on 27-9-2005. The first meeting of the newly elected members was held on 4-10-2005 wherein the Sarpanch and up Sarpanch were elected as per section 15 of the Bombay Village Panchayats Act. The deponent further submitted that the petitioner had alternate remedy to file an election petition. 9. Respondents Nos. 6 to 10 and 12, the elected members of the Gram Panchayat, had filed their affidavit in reply. They contended that in view of the provisions of Article 243-O of the Constitution of India all election disputes must be determined only by way of an election petition. There is bar to judicially review the election results. 9. Respondents Nos. 6 to 10 and 12, the elected members of the Gram Panchayat, had filed their affidavit in reply. They contended that in view of the provisions of Article 243-O of the Constitution of India all election disputes must be determined only by way of an election petition. There is bar to judicially review the election results. These respondents in support of their contentions have relied on the judgment of the Apex court in (Harnek Singh Vs. Charanjit singh), 2005 DGLS 498 : A. I. R. 2005 s. C. W. 5459 and on a judgment of the Division Bench of this Court (Coram: P. V. Hardas and R. M. Savant, JJ.) in Writ Petition No. 7431 of 2006 (Shantabai w/o surendra Pedapalli Vs. State Election Commission), decided on 13-12-2006. ( 10 ) THE learned Counsel for the petitioner shri. B. R. Warma has placed reliance on the reported judgements in (K. Venkatachalam vs. A. Swamickan), 1999 DGLS 506 : A. I. R. 1999 S. C. 1723; (Anant Janardan Patil Vs. State of Maharashtra), 2002 (4) Bom. C. R. 270; (Baburao Shankarrao Wadikar Vs. State of Maharashtra), 1985 (2) Bom. C. R. 655 : 1985 Mah. L. R. 626; (Poona Vs. Collector, yeotmal), 1965 Mh. L. J. Notes ofCases (40)and (Bhosale Deepak Manikrao Vs. State of maharashtra), 1998 (2) Bom. C. R. (A. B.)352 : 1998 (2) All. M. R. 546. ( 11 ) FROM the affidavit-in-reply filed by respondents Nos. 2 and 5 it was made clear that the concerned employees working under the Tahsildar Amalner in collusion with each other interpolated and manipulated the notification issued by the Collector in respect of ward wise reservation. The deponent in the affidavit-in-reply has made a categorical statement that after receipt of "a" Notification from the Collector Jalgaon the Clerk of the Tahsil office, Circle Officer and Talathi jalod changed the said Notification without any authority and one Clerk namely Borase by using the whitener interpolated in the final notification issued by the Collector. This fact was not brought to the notice of the respondents authorities till the petitioner raised his voice. Considering the misconduct of the employees the Collector had initiated action against these employees on 8-9-2005. ( 12 ) WE find that the respondents - elected members did not contradict the contentions raised by respondents Nos. This fact was not brought to the notice of the respondents authorities till the petitioner raised his voice. Considering the misconduct of the employees the Collector had initiated action against these employees on 8-9-2005. ( 12 ) WE find that the respondents - elected members did not contradict the contentions raised by respondents Nos. 2 and 5 in their affidavit-in-reply regarding interpolation and manipulation of the Notification issued by the Collector by the employees working under the Tahsildar. The modus operandi was that whitener was used to change the reservation. The only submission advanced by the learned Counsel appearing for the respondents, elected members, was that there is efficacious statutory remedy under section 15 of the Bombay Village Panchayats Act, 1958 (for short, "the Act") for the petitioner under which an election petition could be filed and in view of the same and further in view of the injunction prescribed under Article 243-O of the Constitution of India the writ petition is not maintainable. ( 13 ) THE learned Counsel appearing for the petitioner states that the petitioner could not file election petition under section 15 of the act as no sooner the result of the election was declared the petitioner was involved in a false criminal case and he was behind the bars for a considerable period and due to which the period of limitation for filing election dispute was already over. The petitioner could not be blamed for non filing of the election petition. ( 14 ) LEARNED Counsel appearing for the state Election Commission states that there is alternate statutory remedy of filing of Election petition under section 15 of the Act. ( 15 ) IN the judgment reported in Bhosale deepak Manikrao Vs. State of Maharashtra, 1998 (2) Bom. C. R. (A. B.) 352 : 1998 (2) All. M. R. 546, a Division Bench of this Court (Coram: n. P. Chapalgaonkar and V. R. Datar, JJ.)considered the scope of the provisions of sections 15 and 15-A of the Bombay Village panchayats Act 1958 read with Article 243-O of the Constitution. In para 14 this Court observed : "14. Sub-section (7) of section 15 cannot be read in isolation. Section 15 itself gives wide powers to the trial Judge to decide the validity of an election and does not specify any grounds. In para 14 this Court observed : "14. Sub-section (7) of section 15 cannot be read in isolation. Section 15 itself gives wide powers to the trial Judge to decide the validity of an election and does not specify any grounds. Therefore, qualification or the disqualification of a candidate elected, improper rejection or acceptance of nomination paper, improper counting or commission of corrupt practice can be a ground for invalidating the result of an election. Sub-section (7) of section 15 was added to the statute by amendment in the year 1970. It prohibits setting aside of an election only on the ground of an error made by the Officer charged with carrying out the Rules. Therefore, if there is an error which does not go to the root of the case and is only an infraction of a rule, that by itself will not entitle anybody to challenge the election and get it set aside on that count. If any of the provisions of the rules which does not relate to the qualification of a candidate or has not materially affected the result of the case, can be no ground for setting aside the election. Therefore, the legislature has specifically directed that the Judge shall not set aside the election on such a ground, if irregularity and informality is not corruptly caused. When the Returning Officer accepts the nomination paper or rejects the nomination paper, he adjudicates entitlement of a person to contest the election. This is a quasi judicial function. Infraction of the rule or error committed by the Returning Officer referred to in sub-section (7) is not a wrong decision of the Returning Officer in respect of acceptance or rejection of nomination paper. We, therefore, hold that sub-section (7)of section 15 does not prevent the Judge from considering the improper rejection or acceptance of a nomination paper as a ground for setting aside the election of a returned candidate. The apprehension expressed is without any foundation. " ( 16 ) THE question which is posed before us is whether jurisdiction under Article 226 could be invoked in view of the bar prescribed in Article 243-O of the Constitution of India and in the facts of this case whether the elections held to the village Panchayat could be held to be bad in law without petitioner availing the statutory remedy. ( 17 ) WE find that the issues raised in this petition arise out of exceptional facts and circumstances. The responsible officers working under the supervision and control of the state Election Commission for holding the election to the Village Panchayat are themselves convinced that the staff members working in the office of the Tahsildar were involved in interpolating the Notification prescribing ward wise reservation issued by the collector. It is obvious that the final Notification issued by the Collector was interpolated and manipulated with some ulterior motive and purpose. Prima facie it seems that whoever has done it had done intentionally as we do not find any plausible defence taken to justify the interpolation done in the final notification. The act of interpolation in the final Notification issued by the Collector is a serious misconduct which has to be dealt with severally and with firm hand. ( 18 ) IN such circumstances when the foundation of the election itself is based on interpolated and manipulated record depriving certain persons from contesting the election and benefiting some persons by adopting illegal and undeserving methods, it would be a fit case for exercising writ jurisdiction under article 226 of the Constitution of India being an exceptional case of this nature. The Village panchayat is a unit of grass root democracy. It is, therefore, imperative that such units are nourished in an atmosphere which is congenial to healthy growth of the democratic system. Every effort has to be made to discourage any move to disrupt free and fair election process. ( 19 ) THE provisions of Article 243-0 of the constitution read 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 243-K, 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. " ( 20 ) LEARNED Counsel appearing for the respondents, elected members, placed reliance on the reported judgment in Harnek Singh vs. Charanjit Singh, 2005 DGLS 498 : A. I. R. 2005 S. C. W. 5459. " ( 20 ) LEARNED Counsel appearing for the respondents, elected members, placed reliance on the reported judgment in Harnek Singh vs. Charanjit Singh, 2005 DGLS 498 : A. I. R. 2005 S. C. W. 5459. The Apex Court in paragraphs 15 and 16 observed thus: "15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is true that the high Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. See (Mrs. Sanjana m. Wig Vs. Hindustan Petro Corporation Ltd.), 2006 (1) Bom. C. R. (S. C.)689 : 2005 DGLS 582 : 2005 (7) SCALE 290 . 16. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question. " ( 21 ) THE Division Bench of this Court in writ Petition No. 7431 of 2006 Shantabai Vs. State Election Commission (cited supra) referred to the judgment of the Apex Court in (Ashok Kumar Jain Vs. Neetu Kathoria), (2004)12 S. C. C. 73. In para. 11 of the said judgment the Apex Court observed :- "11. Section 66-A of the Act is clear in terms while providing that an election under the act would be challenged only by presenting an election petition. Except in some exceptionally extraordinary circumstances, normally remedy under article 226 of the Constitution, challenging the election by filing a writ petition would not be available to the petitioner. . . . . In the absence of there being any exceptionally extraordinary circumstances, exercise of powers under Article 226 of the Constitution by the learned Single judge was uncalled for. Except in some exceptionally extraordinary circumstances, normally remedy under article 226 of the Constitution, challenging the election by filing a writ petition would not be available to the petitioner. . . . . In the absence of there being any exceptionally extraordinary circumstances, exercise of powers under Article 226 of the Constitution by the learned Single judge was uncalled for. " ( 22 ) IN the judgment of the Division Bench of this Court in Writ Petition No. 7431 of 2006 (cited supra) in para 17 it was observed that, "since a dispute on facts is raised and also in view of the fact that the election of a returned candidate cannot be set aside by the High Court in a Writ Petition under Article 226 of the Constitution of India, according to us, the reliefs which the petitioner has sought for in this petition cannot be granted. " ( 23 ) THE facts of the case referred to by the learned Counsel for the respondents, elected members (cited supra) are different than the clear picture which has emerged in the present case. Even if an election petition was maintainable it would be unreasonable to relegate the petitioner to avail of statutory alternate remedy. The result of the election was declared on 30-8-2005 and the present writ petition was filed on 20-3-2006. Considering the fact situation of the case and the exceptional circumstances brought on record which vitiate the foundation of the election, we consider it appropriate and reasonable to exercise our extraordinary jurisdiction for interfering and for setting aside the election results of the elections held to the Village Panchayat Jalod. The elections held to the village panchayat are apparently in breach of the Rules, 1966 and violate the mandate of the provisions of sections 10 and 176 of the Act. Therefore, the foundation of the elections held to the Village Panchayat was vitiated which is apparent on its face. The illegality goes to the root of the matter. Such an election could not be held to be a valid election in the eye of law. It violates the constitutional spirit and the legal provisions of the Act and the Rules framed thereunder more particularly the Rules, 1966 concerning number of members, divisions into wards and reservation of seats. ( 24 ) IN the result, the writ petition is allowed. It violates the constitutional spirit and the legal provisions of the Act and the Rules framed thereunder more particularly the Rules, 1966 concerning number of members, divisions into wards and reservation of seats. ( 24 ) IN the result, the writ petition is allowed. We hold that the elections held on 30-8-2005 to the Village Gram Panchayat jalod, Taluka Amalner, District Jalgaon are vitiated and are declared to be null and void. The election results of the said elections declared on 30-8-2005 by the Returning Officer are quashed and set aside. We direct the respondent No. 2 Collector Jalgaon to hold fresh elections of the Village Gram Panchayat Jalod, Taluka Amalner, for the remainder period, on the basis of the final notification issued on 15-7-2005 under rule 5 (1) of the Rules, 1966 strictly in accordance with law. We further direct the respondent Collector Jalgaon to initiate enquiry against the employees who were responsible for interpolation and manipulation of the Notification issued by the Collector, in case not earlier initiated. In case the departmental enquiries were already initiated the same be completed within 3 months from today. In case the staff members involved in the interpolation of the record are found to be guilty then such employees shall be dealt with severally under the law. A report in this regard shall be presented by the Collector to the State Election commission. ( 25 ) RULE is made absolute in the above terms. No costs. ( 22 ) IN the judgment of the Division Bench of this Court in Writ Petition No. 7431 of 2006 (cited supra) in para 17 it was observed that, "since a dispute on facts is raised and also in view of the fact that the election of a returned candidate cannot be set aside by the High Court in a Writ Petition under Article 226 of the Constitution of India, according to us, the reliefs which the petitioner has sought for in this petition cannot be granted. " ( 23 ) THE facts of the case referred to by the learned Counsel for the respondents, elected members (cited supra) are different than the clear picture which has emerged in the present case. Even if an election petition was maintainable it would be unreasonable to relegate the petitioner to avail of statutory alternate remedy. " ( 23 ) THE facts of the case referred to by the learned Counsel for the respondents, elected members (cited supra) are different than the clear picture which has emerged in the present case. Even if an election petition was maintainable it would be unreasonable to relegate the petitioner to avail of statutory alternate remedy. The result of the election was declared on 30-8-2005 and the present writ petition was filed on 20-3-2006. Considering the fact situation of the case and the exceptional circumstances brought on record which vitiate the foundation of the election, we consider it appropriate and reasonable to exercise our extraordinary jurisdiction for interfering and for setting aside the election results of the elections held to the Village Panchayat Jalod. The elections held to the village panchayat are apparently in breach of the Rules, 1966 and violate the mandate of the provisions of sections 10 and 176 of the Act. Therefore, the foundation of the elections held to the Village Panchayat was vitiated which is apparent on its face. The illegality goes to the root of the matter. Such an election could not be held to be a valid election in the eye of law. It violates the constitutional spirit and the legal provisions of the Act and the Rules framed thereunder more particularly the Rules, 1966 concerning number of members, divisions into wards and reservation of seats. ( 24 ) IN the result, the writ petition is allowed. We hold that the elections held on 30-8-2005 to the Village Gram Panchayat jalod, Taluka Amalner, District Jalgaon are vitiated and are declared to be null and void. The election results of the said elections declared on 30-8-2005 by the Returning Officer are quashed and set aside. We direct the respondent No. 2 Collector Jalgaon to hold fresh elections of the Village Gram Panchayat Jalod, Taluka Amalner, for the remainder period, on the basis of the final notification issued on 15-7-2005 under rule 5 (1) of the Rules, 1966 strictly in accordance with law. We further direct the respondent Collector Jalgaon to initiate enquiry against the employees who were responsible for interpolation and manipulation of the Notification issued by the Collector, in case not earlier initiated. In case the departmental enquiries were already initiated the same be completed within 3 months from today. We further direct the respondent Collector Jalgaon to initiate enquiry against the employees who were responsible for interpolation and manipulation of the Notification issued by the Collector, in case not earlier initiated. In case the departmental enquiries were already initiated the same be completed within 3 months from today. In case the staff members involved in the interpolation of the record are found to be guilty then such employees shall be dealt with severally under the law. A report in this regard shall be presented by the Collector to the State Election commission. ( 25 ) RULE is made absolute in the above terms. No costs.